STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1985

)

ARNOLD H. PARKER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on December 6, 1979, in the Federal Building, 100 North Palafox Street, Pensacola, Florida.

APPEARANCES

For Petitioner: William Hyde, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Respondent: Barns J. Morain, Esquire

113 North Palafox Street Pensacola, Florida 32501

ISSUES

The matter to be resolved by this Recommended Order concerns the Petitioner's Notice of Violation and Order of Corrective Action filed against the Respondent on the subject of alleged violations by the Respondent of the "Florida Safe Drinking Water Act", Sections 403.850 through 403.864, Florida Statutes. Within this complaint document there are six counts constituted of the following allegations:

Count I. The Respondent does not continually apply effective disinfection measures to the water distributed to the service connections of the Respondent's water system. Respondent's water system has chlorination equipment installed but a chlorine residual is not continually maintained. This condition has existed since at least February, 1979. These facts show a violation of Rule 17- 22.106(3)(c), Florida Administrative Code.

Count II. The Department has not received reports from the Respondent which contain information about the operation and maintenance of the water system. This condition has existed since at least April, 1978. These facts show a violation of Rule 17-22.111(2), Florida Administrative Code.

Count III. The Respondent's water system has a daily flow of more than 2,500 gallons per day but less than 0.1 million gallons per day. The operation, maintenance and supervision, if any, of the water system is not performed by a person who has passed an examination that entitled such person to be a certified operator. This condition has existed since at least April, 1978. These facts show a violation of Rule 17-22.107(3)(b), Florida Administrative Code.

Count IV. The slab surrounding the well casing has been broken exposing the system to possible contamination. This condition has existed since at least February, 1979. These facts show a violation of Rule 17-22.106(2)(c)2.e., Florida Administrative Code.

Count V. The Respondent`s water system has no flow meter for accurately measuring the volume of water distributed by the public water system. This condition has existed since at least February, 1979. These facts show a violation of Rule 17-22.106(3)(g), Florida Administrative Code.

Count VI. The Petitioner has incurred costs and expenses in the amount of

$57.22 in the course of investigating the case and is entitled to be reimbursed pursuant to Subsection 403.860(3), Florida Statutes.

FINDINGS OF FACT

1. This case is presented for consideration based upon the Notice of Violation and Order of Correction filed by the Secretary of the State of Florida, Department of Environmental Regulation, on August 24, 1979. The action is taken against Arnold H. Parker, an individual who resides in Escambia County, Florida. On September 17, 1979, the Respondent, Parker, by and through his counsel answered the allegations of the Petitioner and requested a Subsection 120.57(1), Florida Statutes, hearing. The request for hearing was granted and on December 6, 1979, in Florida, a formal hearing was held to consider the Petitioner's complaint. (The essential elements of that complaint are reflected in the synopsis reported in the Issue statement of this Recommended Order.)

   
   

2. The facts reveal that Daniel C. Walker, an employee of Petitioner, went to Perdido Key, Escambia County, Florida, in February, 1979, for the purpose of inspecting a water system owned and operated by the Respondent and to ascertain the number of service connections associated with the system. When Walker arrived at the location of the Respondent's well, he observed that the above-ground equipment utilized in pumping the water out of the ground was housed in a building. This building had a hole in the roof and the concrete slab surrounding the well casing was broken at the surface allowing for possible contamination by influent. At the time of the inspection a device for introducing chlorine into the extracted water was noted but that device was not connected and no chlorine residual was found in the water system.

   
   

3. The water system was not being operated by a certified operator within the meaning of Rule 17-22.107(3)(b), Florida Administrative Code. In addition, the Respondent had not submitted operational reports to the Petitioner since April, 1978. The reports referred to are those reports required by Rule 17- 22.111(2), Florida Administrative Code.

   
   

4. While Walker was at the general location of the well in onestion, he observed forty individual lots on which various types of trailers, campers and mobile homes could be found. Walker did not determine if persons were living in these shelters and he does not recall seeing persons in the area of the lots.

5. The witness, Walker, did not observe any restaurant or public food establishment in the area of the well house and lots.

   
   

6. On September 25, 1979, Robert Court, another employee of the Petitioner, went to the site of the well house and lots. At that time he counted thirty-two trailers, campers and mobile homes and each of those shelters had a service connection from the well of the Respondent located somewhere on the lot where the shelter was found. The service connection was in the form of a spigot. Court observed several people in the north-east section of the general area which is constituted of the well location and lots.

   
   

7. Court returned to the location on November 30, 1979, and in a random survey saw approximately thirty-two trailers, campers and mobile hones.

   
   

8. Subsequent to the visits of the employees, the Notice of Violation and Order of Correction was prepared by the enforcement section of the Petitioner and the cost of that preparation was $57.22.

   
   

9. The Respondent, Arnold H. Parker, testified in the course of the hearing and his testimony established that there are nine persons who live in the area of the well on a year-round basis and these persons are served by the well during that period of time. Of the nine persons one family, the family of the Respondent, lives in a mobile home and the family is constituted of three persons, the Respondent, his wife and son. In a second mobile home the Respondent's daughter and her husband are found to reside. The final group of persons constituted of the nine full-time residents are the Respondent's daughter, her husband and two children in a third mobile home. Each lot on which the three mobile homes are found is served by a service connection.

   
   

10. The remaining lots at the location in question were subdivided approximately two years prior to the hearing date and sold separately with the exception of the three lots where the nine permanent residents reside and two lots where other children of the Respondent resided prior to the February, 1979, inspection by the Petitioner's employee.

    
    

11. Respondant sold twenty-four mobile home lots and twelve camper sites to persons other than family members and each of the mobile home lots and camper sites has a service connection to the well.

    
    

12. Those persons who use the water system other than the nine permanent residents, use the system from mid-March through mid-September in the calendar year. During that time of usage, there are two families at two separate lots who come down during the week and use the water supply. The number of members in those families was not indicated in the course of the hearing. The balance of the persons using the water supply, excluding the above-mentioned two families and the nine permanent residents, use the shelters for vacation purposes and on the weekend. Some of this latter group would be vacationing in their summer home for a period as long as two weeks.

    
    

13. The highest number of persons using the water from the well during the vacation period would be approximately forty persons during holiday weekends in the vacation cycle.

    
    

14. From the testimony of the Respondent there would never be more than ten days during the vacation period in which twenty-five or more persons would be utilizing the water supply from the well.

15. The water is brought into the trailers, campers and mobile hones by hoses attached to the spigot service connections and the hoses are removed when the individual owners are not in attendance.

    
    

16. The lot owners who are served by the water system of the Respondent pay a fee of $18.00 a year, which the Respondent uses to repair the well pump, for pipe and for the cost of electricity to run the well.

    
    

17. The well generating device is a two-horsepower electric pump and the well source is tapped by a two-inch service pipe. A one-half-inch line runs from the main to the service connectors (spigot).

    
    

18. After the inspection of February, 1979, the Respondent repaired the broken slab around the well casing and these repairs were made in March or April, 1979. The repairs were depicted in the Respondent's Exhibits 1 and 2 admitted into evidence which are photographs of the well casing after the repair.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

    
    

20. As stated before, the case presented concerns the attempt of the State of Florida, Department of Environmental Regulation, to enforce the provisions of the "Florida Safe Drinking Water Act", see Section 403.850, Florida Statutes. Counts I through VI of the Notice of Violation allude to various requirements expressed in the Regulations of the Petitioner which are found in the Florida Administrative Code and are enacted in accordance with the overall regulatory scheme found in the "Florida Safe Drinking Water Act", Sections 403.850 through 403.864, Florida Statutes.

    
    

21. The principal claim by the Petitioner is that the Respondent is operating a "public water system" and is thereby subject to the requirements of the "Florida Safe Drinking Water Act".

    
    

22. "Public water system" is defined in Subsection 403.852(2), Florida Statutes, to be:

    
    

    (2) 'Public water system' means a community or noncommunity system for the provision to the public of piped water for human consump- tion, provided that such system has at least

    15 service connections or regularly serves at least 25 individuals daily at least 60 days out of the year. The term includes:

    1. Any collection, treatment, storage, and distribution facility or facilities under control of the operator of such system and used primarily in connection with such system.

    2. Any collection or pretreatment storage facility or facilities not under control of the operator of such system but used prima- rily in connection with such system.

    The language of that provision shows that there are two categories of "public water system", community and noncommunity systems. Consequently, if the Respondent is operating a water system which is found to be a community or noncommunity system, then it is a "public water system" within the meaning of the "Florida Safe Drinking Water Act" and is subject to the regulation of Chapter 403, Florida Statutes, and those Rules promulgated to implement the purposes of the "Florida Safe Drinking Water Act".

    
    

23. A "community water system" is defined in Subsection 403.852(3), Florida Statutes, to be:

    
    

    (3) 'Community water system' means a public water system which serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round resi- dents.

    
    

    A reading of that statement of law in view of the facts found in this Recommended Order leads to the conclusion that the Respondent is not operating a "community water system". Although there are more than fifteen service connections tied to the water system of the Respondent, there are not fifteen service connections used by year-round residents. Moreover, the Respondent's water system does not regularly serve at least twenty-five year-round residents. The facts presented demonstrated that there are three service connections used by year-round residents and those service connections are for the benefit of nine year-round residents.

    
    

24. The alternative opportunity for the Petitioner to show its jurisdiction to regulate the Respondent`s water system pursuant to the "Florida Safe Drinking Water Act" is to show that the Respondent's water system is in the category of "public water system" known as a "noncommunity water system". "Noncommunity water system" is defined in Subsection 403.852(4), Florida Statutes, as:

    
    

    (4) 'Noncommunity water system' means a public water system for provision to the public of piped water for human consumption, that serves at least 25 individuals daily at least 60 days out of the year, but that is not a community water system.

    
    

    The crucial language of that provision is the language that requires that the piped water provided for the public be water for human consumption, and serve at least twenty-five individuals daily at least sixty days out of the year. The Respondent`s water system does not meet that criterion. Petitioner offered insufficient evidence to establish this criterion and the evidence of the Respondent which was accepted as fact shows that there are not more than ten days of the year in which twenty-five individuals are using water from the Respondent's water system. Therefore, the Respondent's water system is not a "noncommunity water system".

    
    

25. It having been determined that the Respondent's water system is neither a community nor a noncommunity system, it is not a "public water system" within the meaning of the law and is not subject to regulation under the "Florida Safe Drinking Water Act" or the Rules promulgated to effect the purposes of that act. This conclusion is reached with due regard for the language of Subsection 403.852(2), Florida Statutes, which states:

    (2) 'Public water system' means a community or noncommunity system for the provision to the public of piped water for human consump- tion, provided that such system has at least

    15 service connections or regularly serves at least 25 individuals daily at least 60 days out of the year . . . ." (emphasis supplied)

    
    

    From a reading of the emphasized language it might be argued that if a water system has fifteen service connections, which the Respondent's water system clearly does, then it is a "public water system"; however, the initial provisions of the definition of "public water system" states that "public water system" means a community or noncommunity system and the criteria for establishing the existence of a community or noncommunity system are different criteria from that found in the emphasized language discussing "public water system" and it is the succeeding definitional statements pertaining to community and noncommunity systems that must take precedence. Referring back to the analysis of the definition of "community water system" and "noncommunity water system" it has been shown that the criteria in these definitions have not been demonstrated by the facts of this case, effectively leading to the conclusion that the Respondent's water system is not a "public water system" within the meaning of Section 403.852, Florida Statutes. The language referred to above in Subsection 403.852(2), Florida Statutes, which indicates a potential that fifteen service connections constitutes a "public water system" must be read in the context of the definition of the "community water system", see Subsection 403.552(3), Florida Statutes, and the definition of a "noncommunity water system", see Subsection 403.852(4), Florida Statutes, and when that reading is made the definitions in the latter subsections necessarily prevail.

    
    

26. Count I of the Notice of Violation charges the Respondent with failing to continually apply effective disinfectant measures to the water distributed through the service connections of the Respondent's water system, in violation of Rule 17-22.106(3)(c), Florida Administrative Code. This claim must fail because that provision of the Florida Administrative Code is enacted in accordance with the authority of the "Florida Safe Drinking Water Act" which as found above does not apply to the Respondent's water system because his water system is not a "public water system" within the meaning of Section 403.852, Florida Statutes.

    
    

27. The Petitioner claims in its Count II that it has not received from the Respondent reports which contained information about the operation and maintenance of the water system, in violation of Rule 17-22.111(2), Florida Statutes. This claim must fail because that provision of the Florida Administrative Code is enacted in accordance with the authority of the "Florida Safe Drinking Water Act" which as found above does not apply to the Respondent's water system because his water system is not a "public water system" within the meaning of Section 403.552, Florida Statutes.

    
    

28. The Petitioner claims in its Count III that the Respondent's water system has a daily flow of more than twenty-five hundred gallons per day but less than 0.1 million gallons per day and that the operation, maintenance and supervision, if any, of the water system is not performed by a person who has passed an examination which entitled such person to be a certified operator, in violation of Rule 17-22.107(3)(b), Florida Administrative Code, as implemented by Chapter 17-16, Florida Administrative Code. This claim must fail because that provision of the Florida Administrative Code is enacted in accordance with

    the authority of the "Florida Safe Drinking Water Act" which as found above does not apply to the Respondent's water system because his water system is not a "public water system" within the meaning of Section 403.852, Florida Statutes.

    
    

29. The Petition claims in its Count IV of the Administrative Complaint that the slab surrounding the well casing was broken exposing the system to possible contamination, as discovered in the February, 1979, inspection, in violation of Rule 17-22.106(2)(c)2.e., Florida Administrative Code. This claim must fail because that provision of the Florida Administrative Code is enacted in accordance with the authority of the "Florida Safe Drinking Water Act" which as found above does not apply to the Respondent's water system because his water system is not a "public water system" within the meaning of Section 403.852, Florida Statutes.

    
    

30. Count V of the Petitioner's complaint claims that the Respondent's water system has no flow meter for accurately measuring the volume of water distributed by the public water system, in violation of Rule 17-22.106(3)(g), Florida Administrative Code. This claim must fail because that provision of the Florida Administrative Code is enacted in accordance with the authority of the "Florida Safe Drinking Water Act" which as found above does not apply to the Respondent's water system because his water system is not a "public water system" within the meaning of Section 403.852, Florida Statutes.

    
    

31. The Petitioner claims in Count VI of the Complaint that it has incurred $57.22 in costs and expenses in investigating the matters set forth above and that in accordance with Subsection 403.860(3), Florida Statutes, that it is entitled to be reimbursed that amount in costs and expenses. Because the Petitioner is found to be without jurisdiction to regulate the Respondent's water system under the terms and conditions of the "Florida Safe Drinking Water Act", the Respondent is not liable for the costs and expenses which the Petitioner has incurred.

RECOMMENDATION

It is recommended that the action taken by the Petitioner against Respondent pursuant to the Notice of Violation and the Order for Corrective Action be dismissed, to include the Petitioner's claim for costs and expenses.

DONE AND ENTERED this 7th day of January, 1980, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

William Hyde, Esquire

Department of Environmental Regulation 2600 Blair Stone Read

Tallahassee, Florida 32301

Barne J. Morain, Esquire

113 North Palafox Street Pensacola, Florida 32501

Docket for Case No: 79-001985

Orders for Case No: 79-001985