STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-969

)

PAUL RIPPEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held a final hearing in this case on November 4, 1980, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Martha Harrell Hall, Esquire

Assistant General Counsel

Department of Environmental Regulation 2600 Blairstone Road

Tallahassee, Florida 32301

For Respondent: Paul Rippee., Pro Se

Big Oak Trailer Park 4024 North Monroe Street

Tallahassee, Florida 32304 PROCEDURAL BACKGROUND

These proceedings began on May 25, 1979, when the Petitioner, Department of Environmental Regulation (DER) served a Notice of Violation on the Respondent, Paul Rippee. On August 20, 1979, a final order on the Notice of Violation was entered by Jacob D. Varn, Secretary of DER. Subsequently, on December 21, 1979, DER filed a petition in the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida. By its petition the Department sought to enforce its final order which had found that Mr. Rippee violated several regulations relating to the operation of a public water system. After a motion by the Department for judgment on the pleadings the Circuit Court temporarily relinquished jurisdiction back to DER. The Court ordered that, "This Court hereby temporarily relinquishes jurisdiction over this matter. The Petitioner, State of Florida, Department of Environmental Regulation, shall provide defendant a hearing pursuant to Chapter 120, Florida Statutes, concerning the allegations in the Notice of Violation previously sent to Respondent."

As the result of the Court's order this matter was forwarded to the Division of Administrative Hearings on May 20, 1980, for the assignment of a

Hearing Officer and the scheduling of a final hearing. By notice to all parties the final hearing was scheduled for and held on November 4, 1980, in Tallahassee, Florida.

At the final hearing, Petitioner presented as its witnesses: Mr. Cliff McKeown, Mr. Dan Walker and the Respondent, Mr. Paul Rippee. DER offered Exhibits A and B which were received into evidence. The Respondent presented as his witness, himself and offered Exhibit 1 which was received into evidence.

FINDINGS OF FACT

1. The Respondent, Paul Rippee operates the Big Oak Trailer Park. He has owned and operated it since 1955. As part of that operation he supplies his residents with water for human consumption. At the present time there are 41 residents in the park who receive their water from 31 service connections. A majority of the residents live in the park all year.

   
   

2. The Big Oak Trailer Park water system does not have any means for providing continuous disinfection measures. While Mr. Rippee does have available the means to inject chlorine into the water system on a one shot basis, there is no means for continuous disinfection.

   
   

3. The Big Oak Trailer Park water system does not have installed in it a flow meter, that is, a metering device which accurately indicates the volume of water pumped for distribution to residents.

   
   

4. Mr. Rippee does not maintain any disinfectant level in the water distributed to the residents.

   
   

5. The Big Oak Trailer Park water system is operated exclusively by Mr. Rippee himself. He is not certified as a water system operator by the Department of Environmental Regulation and he has never employed a certified operator for the supervision of his water system.

   
   

6. Since the beginning of the year 1980, Mr. Rippee has filed no monthly operation reports as required by Department regulations.

   
   

7. At no time since 1955 have any of the numerous tests done on the water supplied by the Big Oak Trailer Park water system indicated that the water was in any way unsafe for human consumption.

   
   

8. Mr. Rippee is a small business man. His sole income comes from the Big Oak Trailer Park. At present only 41 people live there. The park is modest in size with small lots which will not accommodate even double-wide mobile homes.

   
   

9. While the most commonly used and readily available disinfectant is chlorine, adequate disinfection meeting DER standards may be provided by ozone which is commercially available or by chlorine dioxide which is not yet commercially available.

   
   

10. The design pumping capacity of the Big Oak Trailer Park water system is 2,000 gallons per hour or 48,000 gallons per day.

    
    

11. Since at least August 28, 1978, Mr. Rippee has been on notice from the Department of Environmental Regulation that the Big Oak Trailer Park water system as deficient under Chapter 403 and Chapters 17-16 and 17-22, Florida Administrative Code, in the following respects: the water system does not have

    a flow meter, it fails to provide chlorination to the water, the plant is not operated by a certified operator and the monthly operation reports are not being submitted to DER. These deficiencies have continued until November 4, 1980.

    
    

    CONCLUSIONS OF LAW

    
    

12. Pursuant to the Florida Safe Drinking Water Act it is the policy of the state that the citizens be assured of the availability of safe drinking water. Section 403.851, Florida Statutes (1979). Because it has more than 15 service connections used by year round residents, the Big Oak Trailer Park water system is a "community water system". Section 403.852(3), Florida Statutes (1979). As such it is also a public water system. Id. at paragraph 2.

    
    

13. The Petitioner, Department of Environmental Regulation, is charged with promulgating and enforcing the drinking water standards for the State of Florida. Section 403.864, Florida Statutes (1979). Pursuant to its rulemaking authority the Department at Section 17-22. 106(3)(c) has provided:

    
    

    All public water systems shall con- tinually have effective disinfection measures employed on the water which the system distributes. The necessary apparatus shall be designated according to acceptable engineering practices based on substantive data regarding, but not limited to, the proposed disinfection measure, the source water

    and a sanitary survey, so as to maintain throughout the distribution system a minimum continuous and effective free chlorine residual of 0.2 mg/1 or its equivalent if other than chlorination

    is used as the disinfection measure.

    
    

    Additionally, the Department provides at 17-22.106(3)(g) that: "All community supplies shall be equipped with a metering device that accurately indicates pumpage of finished water to distribution".

    
    

14. At Section 17-22.107(3)(b), the Department's rules require that: "The supplier of water shall provide responsible operation personnel so that the public water system will comply with Chapter 17-16, Florida Administrative Code. Compliance with 17-16, Florida Administrative Code is a requirement of this Chapter." That part of the Administrative Code requires Respondent to employ a certified operator to operate the Big Oak Trailer Park water system. Section

    17-16.12(2) and 17-16.15, Florida Administrative Code.

    
    

15. Finally, Section 17-22.111(2)(b) requires that monthly operation reports for a public water system be submitted by the plant's certified lead operator to the Department of Environmental Regulation and the designated County Health Department within fifteen (15) days after a given month of operation.

    
    

16. The Respondent, Paul Rippee as the operator of the Big Oak Trailer Park water system has violated all of the foregoing regulations. He has not submitted the monthly operation reports, his system has no disinfectant facilities, it has no flow meter and it is not supervised by a certified operator. In light of the foregoing, Mr. Paul Rippee has engaged in a

    prohibited act by failing to comply with regulations adopted pursuant to Section 403.853, Florida Statutes. Section 403.859, Florida Statutes (1979).

    
    

17. Pursuant to Section 403.860(3), Florida Statutes, the Department is entitled to the reasonable costs and expenses incurred in the investigation of the foregoing violations. At the final hearing, however, the Department did not prove those costs and expenses.

    
    

18. The undersigned has considerable doubt about the jurisdiction of the Division of Administrative Hearings to conduct these proceedings. As noted above there has been a Final Order entered on August 20, 1979, by the Department of Environmental Regulation. That order not having been invalidated by a court of competent jurisdiction, and it not having been withdrawn by DER, it appears to be still conclusive in the foregoing case.

    
    

19. This case began in Circuit Court as an enforcement action pursuant to Section 120.69, Florida Statutes (1979). The language of that section prohibits a collateral attack on the agency's Final Order being enforced. Section 120.69(5), Florida Statutes (1979) provides:

    
    

    In any enforcement proceeding the respondent may assert as a defense the invalidity of any relevant statute, the inapplicability of the administrative determination to respondent, compliance by the respondent, the in- appropriateness of the remedy sought by the agency, or any combination of the foregoing. In addition, if the petition for enforcement is filed during the time within which the respondent could petition for judicial re- view of the agency action, the respondent

    may assert the invalidity of the agency action.

    
    

20. The Bradford County Circuit Court in Department of Environmental Regulation v. Bruno, 44 Fla. Supp. 205 (Circuit Court Bradford County, Case No. 76-163-CA, September 13, 1976) construed Section 120.69 together with Section 120.68, Florida Statutes to hold that a Circuit Court was without authority in an enforcement case to review the validity of the Final Order sought to be enforced. The proper place for that review is the District Court of Appeal pursuant to Section 120.68. See also Department of Environmental Regulation v. Whitfield, 382 So.2d 89 (Fla 1st DCA 1980) where the Court notes that an unappealed Final Order may not be collaterally attacked in a Circuit Court enforcement action.

    
    

21. The foregoing discussion makes it clear that the DER Final Order entered in this case on August 20, 1979, is still binding on all parties and is not subject to review or modification by any court or any other forum.

RECOMMENDATION

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

That the State of Florida, Department of Environmental Regulation either return to Circuit Court to continue its enforcement action under the provisions

of Section 120.69, Florida Statutes or that the Department withdraw its Final Order of August 20, 1979, and in its place substitute a new Final Order, finding that the Respondent has violated Section 403.859, Florida Statutes (1979) and order appropriate corrective action as stated in the Notice of Violation, paragraphs A through D.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of December, 1980.

MICHAEL PEARCE DODSON

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1980.

COPIES FURNISHED:

Martha Harrell Hall, Esq. Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32301

Paul Rippee

Big Oak Trailer Park 4024 North Monroe Street Tallahassee, FL 32304

Docket for Case No: 80-000969

Orders for Case No: 80-000969