STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PEACE RIVER CAMPGROUND, d/b/a ) GEORGE LEMPENAU, )

)

Petitioner, )

)

vs. ) Case No. 97-1713

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Administrative Law Judge, Division of Administrative Hearings, held a formal hearing in this matter on August 9, 1997, in Arcadia, Florida.

APPEARANCES

For Petitioner: George Lempenau, pro se

Peace River Campground 2998 Northwest Highway 70

Arcadia, Florida 34266

For Respondent: Susan Martin Scott, Esquire

Department of Health Post Office Box 60085

Fort Myers, Florida 33906 STATEMENT OF THE ISSUES

Are Petitioner’s outside water supply connections in violation of Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, and, if so, should Petitioner be assessed an administrative fine for such violation?

PRELIMINARY MATTERS

On February 28, 1997, the Department of Health (Department) issued a citation of violation to Petitioner alleging that the outside water supply connections at Petitioner’s Peace River Campground were not designed or constructed so as to prevent backflow or back-siphonage and were in violation of Rule 10D- 26.120(2) and (3)(a), Florida Administrative Code. Petitioner denied the allegation and requested a formal hearing. By Notice dated April 4, 1997, the Department referred the matter to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a hearing.

At the hearing, the Department presented the testimony of Juan Menendez and Steve Sams. Department’s Exhibits 1, 2, and 3 were received as evidence. Department’s Exhibit 4 was rejected. Petitioner testified on his own behalf. Petitioner’s Exhibits 1A through 1G were received as evidence. Joint Exhibit 1 was received as evidence. Chapter 513, Florida Statutes and Rule

10D-26.120, Florida Administrative Code, were officially recognized.

There was no transcript of this proceeding filed with the Division. The parties timely filed their proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. Petitioner is permitted by the Department in accordance with Chapter 513, Florida Statutes, to operate the Peace River Campground, (Campground) which is a Recreational Vehicle (RV) Park (182 spaces) and a Mobile Home (MH) Park (15 spaces), annual permit number 14-010-97.

2. The Campground’s water is supplied by a community public water utility company. Each RV and MH space has an outside water tap as required by Chapter 10D-26, Florida Administrative Code.

   Many of the outside water taps do not have a backflow or back-siphonage prevention device installed on them.

3. On February 6, 1997, the Department conducted a routine inspection of the campground and determined that the campground was in violation of Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, for failing to have the required backflow or back-siphonage prevention.

4. The citation required Petitioner to install backflow or back-siphonage prevention by February 28, 1997, the next scheduled inspection date.

5. On February 28, 1997, the Department conducted a follow-up inspection of the Campground’s water system and determined that the alleged violation had not been corrected.

6. Petitioner disagreed with the Department’s determination that the Campground’s water system was not in compliance with Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, for failing to have the Campground’s water system designed or constructed to prevent backflow or back-siphonage.

7. On February 28, 1997, the Department issued a citation of violation (citation) to Petitioner alleging a violation of Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, for failing to have the Campground’s water supply connection designed or constructed to prevent backflow or back-siphonage.

8. The Campground’s water connections at each RV and MH site have water taps which are above ground and have standard water shut-off valves.

9. The Campground’s water system has good water pressure of approximate 70-100 pounds pressure per square inch (psi).

10. The Campground’s outside water taps are neither constructed nor designed to prevent backflow or back-siphonage in the event the water pressure drops to a point which would allow backflow or back-siphonage, such as if the water main feeding the Campground’s water system broke.

11. If the water pressure in the Campground’s water system should drop allowing backflow or back-siphonage, hazardous material could possible be injected in the water system.

12. Although there has never been a recorded incident of backflow or back-siphonage into the Campground’s water system, without the some type of backflow or back-siphonage preventer being installed there remains a potential for this to happen.

13. The Campground’s outside water connections would not prevent backflow or back-siphonage under certain conditions and are not in compliance with Rule 10D-26.120(2) and (3)(a), Florida Administrative Code.

14. There are six basic types of devices that are recognized by the Environmental Protection Agency and the engineering profession which prevent backflow and back-siphonage. These devices are: (a) air gaps; (b) barometric loops;

    (c) vacuum breakers--both atmospheric and pressure type; (d) double check with intermediate atmospheric vent; (e) double check valve assembler; and (f) reduced pressure principle devices.

15. The Department does not mandate which device the Petitioner must install, only that a proper device be installed which will prevent backflow or back-siphonage.

16. A hose bib vacuum breaker such as Department’s Exhibit 3 provide the minimum protection against backflow or back-siphonage and is considered acceptable for compliance with Rule 10D- 26.120(2) and (3)(a), Florida Administrative Code.

    CONCLUSIONS OF LAW

    
    

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

18. Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, provides:

    1. In a mobile home or lodging park, at least one water supply service connection shall be provided to each mobile home space and shall be so designed and constructed as to prevent backflow or back-siphonage. The water connections shall be protected from damage by the parking of mobile homes. Multi-family mobile home units shall be provided an individual water supply connection to each family residential unit served.

1. Every building in a recreational vehicle park which provides personal hygiene or cooking facilities shall be connected to an approved, potable water supply which meets the minimum requirements of subsection (1) above. Recreational vehicle parks shall also comply with the following additional requirements:

   1. In recreational vehicle parks, where each space is served by a water supply service connection, the connection shall be protected against the hazards of backflow and back-siphonage.

      19. Sections 513.065(1),(3),(5) and (6), provide in pertinent part:

      1. If the department reasonably believes that a permittee has committed a violation of this chapter which affects the public health, safety, or sanitation, then the department may serve a citation on the permittee for such violation. However, the department must have previously notified the permittee of the violation and the permittee must have failed to timely correct the violation. Citations

         issued under this section are proposed agency action.

         
         

         * * *

         
         

         (3) The department may seek to impose a fine not to exceed $500 for each violation cited under this section. Each day a violation continues after an initial citation is issued is a separate violation for which a subsequent citation may be issued....

         
         

         * * *

         
         

         1. The department may reduce or waive any civil penalty initially sought to be imposed through a citation. In determining whether to reduce or waive a fine under this section, the department shall use the criteria in s. 513.055(2)(b).

            
            

         2. This section is an alternative means of enforcing this chapter. Nothing contained in this section prohibits the department from enforcing this chapter or the rules adopted thereunder by any other means permitted under this chapter. However, the department may only use a single enforcement procedure for any one violation.

         1. Section 513.055(2)(b), Florida Statutes, provides:

            
            

   2. In determining the amount of fine to be imposed, if any, for a violation, the department shall consider the following factors:

1. The gravity of the violation and the extent to which the provisions of the applicable statutes or rules have been violated.

2. Any action taken by the operator to correct the violation.

3. Any previous violation.

1. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino vs. Department of Health and

   rehabilitative Services, 348 So. 2d 349 (2nd DCA Fla. 1977). The Department has the burden of proving such allegation by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection vs. Osborne Stern Company, et al., 670 So. 2d 932 (Fla. 1996). The Department has met its burden by establishing that the Campground’s outside water connections, under certain conditions, would not prevent backflow or back-siphonage.

2. Likewise, the Department has shown that it has the authority to access an administrative fine for such violation and that based on the factors set out in Section 513.055(2)(b), Florida Statutes, the fine of $150.00 is reasonable. However, the Petitioner should be aware that the failure to bring the outside water connections into compliance with Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, could result in an additional fine or the suspension or revocation of his permit to operate the Campground as a RV and MH park.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order assessing an administrative fine in the amount of $150.00.

DONE AND ENTERED this 27th day of August, 1997, in Tallahassee, Leon County, Florida.

_ WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1997.

COPIES FURNISHED:

Susan Martin Scott, Esquire Department of Health

Post Office Box 60085

Fort Myers, Florida 33906

George Lempenau, pro se Peace River Campground 2998 Northwest Highway 70

Arcadia, Florida 34266

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard

Building 6

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-001713

Orders for Case No: 97-001713