STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

)

Petitioner, )

)

vs. ) CASE No. 91-7358

)

LOIS GREEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on February 18, 1992, in Bartow, Florida.

APPEARANCES

For Petitioner: Raymond R. Deckert, Esquire

HRS District VI Legal Office 4000 West Dr. Martin Luther

King Jr. Boulevard Tampa, Florida 33614

For Respondent: Mygnon Evans, Esquire

5600 US Highway 98 North

Lakeland, Florida 33809 STATEMENT OF THE ISSUES

Whether or not Respondent operated a water system which is in violation of Subsections 381.031(1)(g)3, and 403.862, Florida Statutes, and Subparagraph 10D- 4.021(1)(a), Florida Administrative Code, and if so, what, if any, administrative penalty should be imposed.

PRELIMINARY STATEMENT

On or about October 11, 1990, Petitioner, Department of Health and Rehabilitative Services, gave Respondent, Lois Green, a notice of alleged violations of certain provisions of the Florida Administrative Code relative to the maintenance of a noncompliant water system. Additionally, on September 23, 1991, Petitioner issued to Respondent an Administrative Complaint evidencing an intent to assess an administrative fine of $100.00 per day for 30 days (or less) if the violations were corrected sooner. Respondent timely requested a formal hearing and filed an answer setting forth certain affirmative defenses.

Additionally, at the hearing, Respondent's counsel tendered a motion to strike the Amended Administrative Complaint and in particular, paragraph 4 thereof, based on Respondent's contention that Petitioner has referenced an outdated statutory provision as a basis for imposition of an administrative fine and further that the statute has been amended at least twice since the issuance of

the first Administrative Complaint and that major changes came about as a result of those amendments.

At the hearing, Petitioner amended the Administrative Complaint to reflect the new citation, i.e., Section 381.0061, Florida Statutes (1991).

Respondent also filed a motion to dismiss the complaint based on its contention that Petitioner had failed to state a cause of action upon which relief could be granted.

At the hearing the undersigned deferred ruling on the motions. Based on the Hearing Officer's review of the pleadings file in this case, including the amendments by Petitioner at the hearing, it is concluded that Petitioner properly placed Respondent on notice of the alleged violations for which it was seeking to impose an administrative fine and that throughout the course of this proceeding, Respondent was placed on notice as to the basis for the fines and statutory references which Petitioner was proceeding under and that a cause of action was stated in the complaint as amended. For these reasons, Respondent's motions to dismiss and to strike are denied.

At the hearing, Petitioner presented the testimony of Mark Fallah, a civil engineer employed by Petitioner and Milton Boring, Petitioner's environmental health supervisor. Petitioner's Exhibit 1 was offered and received in evidence and Respondent's Exhibits 1-6 were offered and received in evidence at hearing. Respondent testified on her behalf.

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings:

FINDINGS OF FACT

1. Respondent, Lois Green, is a resident of Florida and owns the property known as the Nichols Post Office located on Highway 676 in Nichols, Polk County, Florida. There is one employee stationed at the post office and members of the public use the post office for U.S. mail purposes.

   
   

2. On October 11, 1990, Petitioner advised Respondent that the source of water that she used to supply the post office building did not comply with the requirements of the Florida Administrative Code. Thereafter, on September 23, 1991, Petitioner issued an Administrative Complaint to Respondent, advising of Petitioner's notice of intent to assess a fine of $100.00 per day until the corrections were made or for 30 days, whichever occurred first. At the hearing, Petitioner orally amended paragraph 4 of the Administrative Complaint to change the reference "December 22, 1989" to "October 4, 1990."

   
   

3. Following service of the Administrative Complaint on Respondent and for

   30 days thereafter, the water source for the post office building was a well located behind the post office on Respondent's property.

   
   

4. In approximately December of 1991, Respondent disconnected the well which was presently serving the post office and connected to another well located adjacent to the property which supplied a residential home.

   
   

5. The well which provided water to the post office was originally drilled as an irrigation well. The well head was located approximately 50 ft. to the closest septic tank and restroom pipe outlets. That well had no raw sample taps

   or a pressure tank with an inlet or outlet. Additionally, there was no surface protection pad nor were quarterly bacteriological samples taken to measure the water quality samples. Finally, the well was not approved by Petitioner prior to placing it into use by Respondent.

   
   

6. Sometime subsequent to 30 days after Petitioner issued the Administrative Complaint to Respondent, Respondent abandoned the well without notifying the Petitioner and connected to a residential well which also contravenes the setback requirements contained in Chapter 17, Florida Administrative Code. Specifically, that well is approximately 30 ft. from the on-site sewage disposal system (septic tank) and is in violation of Rule 17- 555.302, Florida Administrative Code, formerly Rule 17-22.615(2), Florida Administrative Code.

   
   

7. Petitioner's agent, Mark Fallah, during times material, was employed in Petitioner's Code Enforcement Section and was charged with investigating the problems surrounding Respondent's supply of water to the Nichols Post Office. Throughout the course of employee Fallah's involvement with the investigation of this matter, there have been several proposals and counter-proposals which have been exchanged by and between Petitioner and Respondent. Petitioner's agent Fallah attempted to see if a variance could be obtained whereby Respondent could continue to use the then existing well despite the fact, however, that it was in violation of the setback requirements. Additionally, Fallah attempted to get Respondent to make certain minor changes and modifications to the existing well which were not successful. Throughout the course of the parties negotiations in an effort to resolve this matter, there has been certain concessions made by both sides; however, the well which supplies the post office is a water system which is noncompliant with applicable statutory and rule requirements.

   
   

8. Petitioner, through its employee Fallah, checked with a local well drilling company, Dunham Well Drilling Company, to obtain an estimate for a well. That company gave an estimate of approximately $2,000.00 to $3,500.00 to install a water supply system to the post office which would comply with Petitioner's requirements.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

   
   

10. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

11. The authority of the Petitioner is derived from Chapters 381 and 403, Florida Statutes.

    
    

12. Respondent's water system is a limited use commercial public system as defined in Subsection 381.0062, Florida Statutes. See also, Subsection 403.852(2), Florida Statutes and Rule 10D-4.018(2), Florida Administrative Code.

    
    

13. Respondent's well which supplies the post office in Nichols was not approved by Petitioner prior to installation and use and therefore violates the requirements of Section 17-555.315(2)(b)1, formerly Rule 17-22.615, Florida Administrative Code.

14. Respondent's well in dispute here, does not meet the setback requirements of 100 ft. from the on-site sewage disposal system, a septic tank, and is therefore in violation of Rule 17-555.312, Florida Administrative Code, formerly Rule 17-22.615(2), Florida Administrative Code.

    
    

15. The subject well does not have a concrete platform and apron, which platform is required to have a minimum thickness of 4 inches and a dimension of

    6 ft. by 6 ft. and is therefore in violation of Rule 17-555.315(2)(b)5, formerly Rule 17-22.615, Florida Administrative Code.

    
    

16. The subject well has no sampling tap and is therefore in violation of Rule 17-555.315(2)(f), formerly Rule 17-22.615, Florida Administrative Code.

    
    

17. Petitioner established, by a preponderance of the evidence, that Respondent was given adequate notice of the alleged water well code violations and that certain applicable codes govern the location, approval and construction of the water well in dispute here which is in violation of the applicable standards.

    
    

18. Chapter 381.061, Florida Statutes, authorizes the Petitioner to impose an administrative fine of $100.00 per day up to a total of 30 days for each day that a cited well remains noncompliant up to a maximum of $3,000.00. However, in view of the continuing ongoing relations between the parties to amicably resolve this situation, the fact that only one public person was involved in consummation of water from the well and Respondent's provision of bottled water to satisfy Petitioner's requirements during the pendency of this Administrative Complaint all tend to show that both parties were working, in good faith, to settle this dispute in a manner which was reasonable both from an economic point of view and Respondent's efforts to cure a health hazard posed by the well. Based thereon, imposition of the maximum administrative penalty is not warranted, at present.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

1. Petitioner enter a Final Order imposing an administrative fine against Respondent in the total amount of $3,000.00 of which amount $2,500.00 shall be suspended pending Respondent's initiation of a plan to construct and install a water well system to provide the Nichols Post Office which complies with Petitioner's requirements enunciated in Chapters 403 and 381, Florida Statutes and Rule Chapter 17, Florida Administrative Code.

   
   

2. In the event that Respondent fails to initiate a plan of correction and complete the installation of the well within sixty (60) days of the date of Petitioner's entry of its Final Order, then Petitioner shall be authorized to impose the full administrative penalty of $3,000.00 without further administrative proceedings.

   
   

3. Respondent shall submit to Petitioner the five hundred dollar ($500.00) administrative fine within thirty (30) days from the entry of Petitioner's Final Order.

DONE and ENTERED this 22 day of April, 1992, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this day of April, 1992.

COPIES FURNISHED:

Raymond R. Deckert, Esquire Asst District Legal Counsel HRS District VI Legal Office 4000 W Dr Martin Luther King

Jr Blvd Tampa, Fl 33614

Mygnon Evans, Esquire 5600 US Highway 98 N

Lakeland, Fl 33809

Richard S. Power Agency Clerk

Dept of Health and Rehabilitative Services

1323 Winewood Blvd

Tallahassee, Fl 32399 0700

John Slye, Esquire General Counsel Dept of Health and

Rehabilitative Services 1323 Winewood Blvd

Tallahassee, Fl 32399 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-007358

Orders for Case No: 91-007358