STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2784

)

MORGAN ROGER HOWARD, )

)

Respondent. )

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2785

)

MORGAN ROGER HOWARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on August 10, 1990, in Lakeland, Florida, before Veronica E. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings. Case NO. 90-2784 and Case NO. 90-2785 were consolidated for purposes of hearing as the cases involve the same parties and similar issues at two separate business locations operated by the Respondent, Morgan Rogen Howard.

APPEARANCES

For Petitioner: Francine M. Ffolkes, Esquire

Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

For Respondent: James A. Yancey, Esquire

1701 South Florida Avenue Post Office Box 1028 Lakeland, Florida 33802

STATEMENT OF THE ISSUES

Whether the rules promulgated by the Department of Environmental Regulation require the Respondent to employ the services of a state certified water system operator to operate the water systems at the two business locations involved in these proceedings.

PRELIMINARY STATEMENT

On April 11, 1990, the Department of Environmental Regulation (the Department) issued two Notices of Violation and Orders for Corrective Action to the Respondent, Morgan Roger Howard (Howard). Essentially, the notices allege that the Respondent, who owns and operates two public water supply systems in Polk County, Florida, has not complied with the Florida Safe Drinking Water Act. Respondent Howard denied the factual allegations set forth in the notices and requested a formal hearing to resolve all material disputes of fact.

Prior to hearing, the parties resolved many of the factual disputes between themselves. The only matter left to the Hearing Officer was the issue of whether the Respondent was required to employ a state certified water system operator. During the hearing on this issue, the Department presented two witnesses. The Respondent had the opportunity to cross-examine these witnesses and testified on his own behalf.

A transcript of the hearing was not ordered. The parties were given ten days in which to file proposed recommended orders. Rulings on the proposed findings of fact submitted by the Department are in the Appendix of the Recommended Order. The Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. At all times material to these proceedings, the Respondent was responsible for the operation of two water systems. One water system is located on Highway 92 West, Winter Haven, Polk County. The other water system is located on State Road 37 South, Mulberry, Polk County.

   
   

2. The restaurant and bar business operated at the Winter Haven location is known as the Rainbow Club. Customers eat food and drink beverages prepared with water from the on site water system. The system serves at least twenty- five individuals daily, at least sixty days out of the year.

   
   

3. The convenience store business operated in Mulberry serves ice tea, juices, and coffee to customers which is prepared with water from the on site water system. The system serves at least twenty-five individuals daily, at least sixty days out of the year.

   
   

4. During the recent past, the Respondent retained a certified operator to meet the state requirements. He was not satisfied with the operator for the following reasons: (1) He had to show the man how to chlorinate the water. (2) The operator took the required chlorine samples from water that had not been chlorinated. (3) Visits were not made to the site as scheduled. (4) The pump at one of the establishments was harmed by the certified operator. (5) The expense of four hundred dollars a month for the testing of three sites operated by the Respondent was too much money.

5. The Respondent wants to be able to chlorinate the water and maintain the systems himself. He has professional experience regulating the chemical balance of water in swimming pools. The samples he turned into the lab himself were good.

   
   

6. The Respondent also wants to keep the old well next to the convenience store in Mulberry. He disagrees with the Department's request that he abandon the well because he needs it for an adjoining piece of property. This well is used for lawns, not for the convenience store business.

   
   

7. The Department is amenable to the Respondent maintaining his own systems if he is certified to do so. The next examination is scheduled for November 1990.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter, pursuant to Sections 120.57(1) and 403.860(3), Florida Statutes.

   
   

9. The water systems for both the Rainbow Club and the convenience store are noncommunity water systems as defined in Section 403.852(4), Florida Statutes. Accordingly, the two systems are regulated by the Florida Safe Drinking Water Act, Sections 403.850 through 403.864, Florida Statutes.

   
   

10. Under the rules promulgated by the Department of Environmental Regulation to administer the act, these water systems each require the services of a Class D certified operator. A Class D operator can be an owner or an employee of the owner, at the water system site. Rule 17-602.300, Florida Administrative Code, states the required qualifications for certification.

    
    

11. The examination requirements for Class D certification are less stringent than the requirements for Class A-C certification. Rule 17- 602.320(5), Florida Administrative Code, provides for a different examination for the Class D operator. This test is given during the same session as the Class A-C certification examinations. By rule, the Class D examination relates to the following subject matter:

    
    

    Class D certification examinations will relate primarily to the efficient operation of extended aeration wastewater "package" plants and primary drinking water plants, and shall include questions regarding rules, regulation, reporting requirements, maintenance and safety practices.

    
    

12. Rule 17-602.300(1)(c), Florida Administrative Code, does not require a Class D operator to pass the entire examination. The rule reads as follows:

    
    

    To be eligible for certification by the Department; the applicant shall:

    * * *

    (c) Pass to the satisfaction of the Department, an examination directly pertinent to the duties and responsibilities of the operator of a plant in Class D category.

13. If the Respondent has the qualifications and the experience represented to the Hearing Officer, he is likely to pass the examination to the satisfaction of the Department.

    
    

14. Although the rule requires that a specific examination be administered to an owner of a drinking water plant seeking certification, Section 403.854, Florida Statutes, allows the Department to authorize variances or exemptions from these rules. Specifically, Section 403.854(5), Florida Statutes, provides:

    
    

    The department shall, except upon a showing of good cause, waive on a case-by-case basis any requirement for a certified operator for a noncommunity water system having a design flow of less than 10,000 gallons per day upon an affirmative showing by the supplier of water that the system can be properly maintained without a certified operator .

    
    

15. As statutes prevail over rules, it appears that the Respondent is entitled to an exemption from the requirement for a certified operator for the two water systems if he is able to satisfy the considerations listed in Section 403.854(5), Florida Statutes. These considerations were not demonstrated to the Hearing Officer during the hearing, which was limited to the resolution of the issue of whether a waiver could occur.

Based upon the foregoing, it is RECOMMENDED:

1. That the Respondent's water systems be reviewed to determine if he is eligible for a waiver of the requirement that he employ a state certified operator.

   
   

2. That the Respondent be allowed the benefit of the review prior to the next scheduled examination session, if he so desires.

   
   

3. That the Respondent not be required to employ an operator during the pendency of these matters based upon the delay caused by the litigation of an issue clearly resolved by statute. The unnecessary litigation of this nonjusticiable issue denied the Respondent the opportunity to promptly satisfy the waiver criteria prior to the next semiannual examination session in November 1990.

DONE and ENTERED this 18th day of September, 1990, in Tallahassee, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1990.

APPENDIX TO RECOMMENDED ORDER

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted. See HO #1.

2. Rejected. Conclusions of law.

3. Accepted. See HO #2.

4. Accepted. See HO #2.

5. Accepted.

6. Accepted. See HO #1.

7. Accepted. See HO #3.

8. Rejected. Conclusions of law.

9. Accepted. See HO #3.

   
   

   COPIES FURNISHED:

   
   

   Francine M. Ffolkes, Esquire Department of Environmental Regulation

   Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

   
   

   James A. Yancey, Esquire 1701 South Florida Avenue Post Office Box 1028 Lakeland, FL 33802

   
   

   Dale H. Twachtmann, Secretary Department of Environmental Regulation

   Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

   Daniel H. Thompson, General Counsel Department of Environmental Regulation

   2600 Blair Stone Road Tallahassee, FL 32399-2400

   
   

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

   
   

   MORGAN ROGER HOWARD

   
   

   Petitioner,

   
   

   vs.	DOAH CASE NOS.	90-2784
   		90-2785
   STATE OF FLORIDA DEPARTMENT	OGC CASE NOS.	90-0379
   OF ENVIRONMENTAL REGULATION,		90-0080

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   On September 18, 1990, a hearing officer from the Division of Administrative Hearings ("DOAH") submitted to me and all parties her Recommended Order, a copy of which is attached, as Exhibit 1. Timely exceptions to the Recommended Order were filed on October 3 by the Department of Environmental Regulation ("Department"). The matter thereafter came before me as Secretary of the Department for final agency action.

   
   

   BACKGROUND

   
   

   On April 11, 1990, the Department issued two Notices of Violation and Orders for Corrective Action to Petitioner Morgan Roger Howard (Mr. Howard). Mr. Howard owns and operates two public water supply systems in Polk County, Florida, at the following locations: the Rainbow Club, 1955 Highway 92, Winter Haven; and Mr. Howard's Jitney Jr., 1505 S.R. 57, Lakeland. The Notices allege that Mr. Howard has not complied with certain provisions of the Florida Safe Drinking Water Act ("Act:,") , Chapter 403 Part VI, Florida Statutes, and rules promulgated pursuant to the Act. In response to the notices Mr. Howard timely

   ,filed petitions for administrative proceedings in which he did the factual allegations set forth in the notice and requested a formal hearing to resolve all material disputes of fact. The Department referred the petitions to DOAH where the cases were consolidated.

   
   

   Prior to the hearing, the parties resolved many of their factual disputes. The only matter left to the hearing officer was whether Mr. Howard was required to employ a state certified drinking water treatment plant operator. A final

   hearing on the matter was held on August 10, 1990, in Lakeland. The hearing officer recommended that: (1) Mr. Howard's "water systems be reviewed to determine if he is eligible for a waiver of the requirement that he employ a state certified operator;" (2) Mr. Howard "be allowed the benefit of the review prior to the next scheduled examination session, if he so desires;" and (3) Mr. Howard "not be required to employ an operator during the pendency of these matters based upon the delay caused by the ligation of an issue clearly resolved by statute." Finally the hearing officer stated, as part of the recommendation (3), that the "unnecessary litigation of this nonjusticiable issue denied [Mr.

   Howard] the opportunity to promptly satisfy the waiver criteria prior to the next semiannual examination session in November 1990." (Recommended Order at pp 7-8.)

   
   

   RULING ON EXCEPTIONS

   
   

   Exception No. 1. The Department first takes exception to the hearing officer's conclusion of law that seeks to apply Section 403.854(5), Florida Statutes, to this case by stating that the hearing "was limited to the resolution of the issue of whether a waiver [of the certified operator requirement] could occur." (Recommended Order P. 6) This statement appears to be inconsistent with the one given by the hearing officer in the Statement of the Issues, which says that the issue before her was "whether the rules promulgated by the Department of Environmental Regulation require [Mr. Howard] to employ the services of a state certified water system operator to operate the water systems at the two business locations involved in these proceedings." (Recommended Order P. 2) The statement in the conclusion also was not an issue articulated by Mr. Howard in his petitions, nor by Mr. Howard's attorney at the beginning of the hearing, when he stated that the issue "involves the question or the proposal as to ... what is termed a certified drinking water systems operator being retained to insure proper operation of the system;" and that "the only thing in dispute at this point is whether or not Mr. Howard himself, through some procedure of the department or whether he would have to have a certified operator doing the testing ...." (T. 4-5) The testimony presented at the hearing involved the need for a state certified operator at Mr. Howard's two water systems. There was no testimony regarding the availability of the waiver provision of Section 403.854(5), Florida Statutes. Indeed, I have been unable to find any reference to the waiver issue anywhere in the record or file in this case prior to its being raised by the hearing officer in her Recommended Order. I conclude that the issue presented at the hearing was not whether a waiver could occur, but rather whether a state certified water plant operator is required at Mr. Howard's two public water systems. (I shall address in greater detail the applicability of the waiver provision in my response to the next exception.) The exception is therefore accepted.

   
   

   Exception No. 2. The Department next takes exception to the hearing officer's first and second recommendations, that Mr. Howard's water system be reviewed to determine if he is eligible for a waiver from the certified operator requirement and that the review occur prior to the next scheduled examination.

   These recommendations are in turn derived from the hearing Officer's conclusion of law that Mr. Howard may be eligible for such waiver. The conclusion interprets Section 403.-854(5), Florida Statutes, which provides:

   
   

   1. The department shall, except upon a showing of good cause, waive on a case-by-case basis any requirement for a certified operator for a noncommunity water system having a design flow of less than 10,000 gallons per day upon

      an affirmative showing by the supplier of water that the system can be properly maintained without a certified operator. The department shall consider:

      1. The results of a sanitary survey if deemed necessary;

      2. The operation and maintenance records for the year preceding an application for waiver;

      3. The adequacy of monitoring procedures for maximum contaminant levels included in primary drinking water regulations;

      4. The feasibility of the supplier of water becoming a certified operator; and

      5. Any threat to public health that could result from nonattendance of the system by a certified operator. (Emphasis added.)

The statute clearly provides that for a waiver from the certified operator requirement to be granted by the Department, three conditions must be met: (1) there must be an application for the waiver, (2) the noncommunity water system must have a design flow of less than 10,000 gallons per day, and (3) the supplier of water must affirmatively show that the system can be properly maintained without a certified operator. The statute then lists five factors that must be made a part of this affirmative showing. Nowhere in the statute is there any indication that the Department can on its own initiative, without the application and showings, waive the certified operator requirement.

Nonetheless, this is what the hearing officer has recommended that I order the Department to do.

The hearing officer, in essence, is recommending that I disregard a fundamental principal of administrative law - that a petitioner must "identify the areas of controversy and allege a factual basis for the contention" in order for such areas to be properly placed at issue in a Section 120.57(1), Florida Statutes, administrative proceeding. Florida Department of Transportation v.

1. Company, Inc., 396 So.2d 778, 789 (Fla. 1st DCA 1981). While the Department in this enforcement case has the "ultimate burden of persuasion " Id. at 790, to establish that a violation has occurred, the burden was upon Mr. Howard to come forward with evidence to show that he was entitled to a waiver as an affirmative defense to this enforcement proceeding. For me to accept the hearing officer's recommendation would have the effect of putting the Department in an impossible situation. As a part of providing proof in an enforcement proceeding, the Department would have to anticipate every conceivable affirmative defense that could exist to the proceeding, and then prove that such affirmative defense was not applicable in the specific case, in order for the Department to meet its burden of proof. Such an approach would be inconsistent not only with established principles of administrative law, but also with the only judicial interpretation of the Act. In Department of Environmental Regulation v. Whitfield, 382 So.2d 89 (Fla. 1st DCA 1980), the district court reversed a trial court order finding the owner of a water system to be exempt from certain requirements of the Act because the owner's "claim [was] not elaborated." Id. at 90.

   
   

   The hearing officer appears to base her legal authority for her conclusion and recommendation on her statement that "statutes prevail over rules." (Recommended Order at p.6) The implementing rule, however, Florida Administrative Code Rule 17-560.540, merely implements Section 403.854(5), by detailing how a supplier of water may request the waiver of a certified operator

   requirement. The hearing officer seems to be suggesting that the Department cannot set forth, in rule form, procedures for the applicant to follow to be able to demonstrate entitlement to a waiver. Such argument conflicts with the plain language of the Statute itself, which makes it clear that the applicant for a waiver has the obligation to make an affirmative showing of entitlement. The exception is therefore rejected.

   
   

   Exception No. 3. The Department also takes exception to the third recommendation of the hearing officer, which states that the "unnecessary litigation of this nonjusticiable issue denied [Mr. Howard] the opportunity to promptly satisfy the waiver criteria" before the next certified operator examination session. (Recommended Order at P. 7) The hearing officer in her Recommended Order made no finding of fact or specific conclusion of law identifying this "nonjusticiable issue" or indicating how the issue may or may not have affected Mr. Howard. Presumably the "nonjusticiable issue" to which the hearing Officer refers is her apparent conclusion that a waiver of the certified operator requirement is available to a supplier of water without any application or showing made by the supplier. As my earlier discussion indicates, the legal requirement for a certified operator is clearly not a "nonjusticiable issue." The hearing officer acknowledges that Mr. Howard's two water systems serve beverages prepared with water from onsite water systems to at least twenty-five persons daily at least sixty days out of the year, and are therefore noncommunity public water systems that require the services of a certified operator. (Recommended Order pp. 3-5). Because the issue of the need for Mrs. Howard to have a state certified operator was properly framed, there has been no "unnecessary litigation" which denied Mr. Howard an opportunity to satisfy the waiver criteria before the next examination. Mr. Howard could have made application to the Department far a waiver of the certified operator requirement at any time, but he did not do so. Indeed, if there is a "nonjusticiable issue," it is whether Mr. Howard is entitled to the waiver.

   Therefore, this exception is accepted.

   
   

   Exception No. 4. Lastly, the Department takes exception to the hearing officer's omission of any findings or conclusions regarding alleged violations of Department rules and the Act by Mr. Howard through his failure to employ a state certified operator for his two water systems. The Department did not provide evidence, nor submit in its proposed recommended order of August 20, 1990, any proposed findings of fact or proposed conclusions of law, that detail any violations by Mr. Howard of the state rules and statutes requiring the services of a state certified operator. The exception is therefore, rejected.

   
   

   Therefore, it is ORDERED:

   1. The findings of fact of the hearing officer are accepted in their entirety and adopted in this Final Order.

      
      

   2. The conclusions of law of the hearing officer are accepted and adopted in this Final Order except for the last paragraph of the conclusions, on page six of the Recommended Order, which begins "As Statutes ...." That paragraph is rejected in its entirety, and the following paragraph is substituted.

      
      

   3. Respondent [Mr. Howard] has not established that he is eligible for a waiver of the certified operator requirement as provided in Section 403.854(5), Florida Statutes. He is not entitled to such a waiver until he makes an affirmative showing that he is eligible.

   4. The recommendations of the hearing officer are rejected in their entirety. The following two paragraphs are substituted.

      
      

   5. Within 30 days of the effective date of this Final Order, Mr. Howard is required to employ the services of a, Class D or higher operator certified by the Department in accordance with Florida Administrative Code Rule 17-602.300 to operate the two public water systems described in this Final Order.

      
      

   6. Mr. Howard by this Final Order is not precluded from obtaining a waiver of the certified operator requirement. However, such a waiver is not available to Mr. Howard until one is issued by the Department after Mr. Howard makes application to the Department and affirmatively demonstrates that he meets the waiver requirements in Section 403.854(5), Florida Statutes, and Florida Administrative Code Rule 17-560.540.

Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the Clerk of the Department.

DONE AND ORDERED in Tallahassee this 14th day of December, 1990.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

DALE TWACHTMANN SECRETARY

2600 Blair Stone Road Tallahassee, Florida 3299-2400

Telephone (904) 488-4805

FILING AND ACKNOWLEDGMENT

FILED, on this date, pursuant to S. 120.52 Florida Statutes, with the designated Departmen Clerk, receipt of which is hereby acknowledged.

Clerk Date

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by hand delivery to Veronica D. Donelly, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and to Francine M. Folks, Assistant General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by U.S. Mail to James A. Yancey, Esq., 1701 South Florida Avenue, P.O. Box 1028, Lakeland, Florida 33802 on this 17th day of December, 1990.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

DANIEL H. THOMPSON GENERAL COUNSEL

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 3299-2400

Telephone: (904) 488-9730

Docket for Case No: 90-002784

Orders for Case No: 90-002784