STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLEAN WATER SYSTEMS, INC., )

)

Petitioner, )

)

vs. ) CASE NO.89-0668

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on August 16, 1989 in Sarasota, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: H. Lewis McKinney, as President

Clean Water Systems, Inc.

250 Warfield Avenue Venice, Florida

For Respondent: Eugenie G. Rehak, Esquire

Health Program Attorney Department of Health and

Rehabilitative Services 12381 South Cleveland Avenue Fort Myers, Florida

STATEMENT OF THE ISSUES

Whether the Petitioner is entitled to the issuance of a water vending machine permit for a machine located at Herman's Meat Market, Nokomis, Florida, under the provisions of Section 381.295, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner submitted an application for a water vending machine permit on September 6, 1988. By letter dated November 3, 1988 the application was denied. The Petitioner made a timely request for a formal hearing concerning the Department's denial letter which related to the 1988 permit. The permit would have expired on June 30, 1989, if issued. The Petitioner has now applied for a 1989 permit, relying upon the same information which was previously submitted for the 1988 permit. Rather than declaring the matter before this tribunal moot, the Parties have stipulated that the decision rendered herein shall also apply to the anticipated denial of the 1989 permit.

H. Lewis McKinney testified for the Petitioner and presented four exhibits in evidence. Respondent offered the testimony of two witnesses and presented three exhibits in evidence. The Hearing Officer took official notice of Chapter 10D-22 and Chapter 17-550, Florida Administrative Code. The transcript was filed with the Clerk of the Division on September 6, 1989. The parties were instructed to submit their proposed findings of fact and conclusions of law within ten days of the filing of the transcript. Respondent filed its proposed findings of fact on September 14, 1989. Petitioner filed its proposed findings on September 25, 1989. The Parties' proposals have been considered and have been incorporated where appropriate. Specific rulings are addressed in the Appendix attached to this order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. A water vending machine located at Herman's Meat Market, 227 West Albee Road, Nokomis, Florida, operating from a non-community water supply came to the attention of the Department's water vending machine permitting personnel in Tallahassee on March 9, 1987.

   
   

2. At that time, Frank Dowdney, on behalf of Bottled Water Vending of Florida, had made application for issuance of a water vending machine permit at that location.

   
   

3. Upon request of the Department in June, 1987, Mr. Dowdney had the well water tested to determine whether the water met community public water supply system standards as required in Chapter 10D-22.004(5) Florida Administrative Code. The water failed to meet the minimum standards as determined by the lab report dated July 22, 1987 of Thornton Laboratories Inc. There were four areas of deficiency, specifically, turbidity, radionuclides, iron, and total dissolved solids (T.D.S.). Mr. Dowdney did not provide any additional test results to the Department and did not receive a permit from the Department for this location.

   
   

4. Subsequent to Mr. Dowdney's death in the fall of 1987, the water vending machine location at Herman's Meats was operated by Glacier Water Vending. In the summer of 1988, an agent of Glacier Water had notified departmental permitting personnel that the machine at this location was not in operation. Glacier Water Vending never requested a permit for this location.

   
   

5. On September 7, 1988, Mr. McKinney, President of the Petitioner Clean Water Systems, Inc., became the operator of a new water vending machine at the Herman's Meats Location. Mr. McKinney submitted an application for a permit on September 6, 1988, which was denied on November 3, 1988. The reason for denial was that the water source at Herman's Meats had not been shown to be in compliance with community public water system standards.

   
   

6. Neither Mr. McKinney nor Clean Water Systems, Inc., though aware of the predecessor operators at this location, had any ownership interest and had not been an employee of either Bottled Water Vending of Florida or Glacier Water Vending. A reverse osmosis system which had been installed on the source line from the well to the water vending machine subsequent to the 1987 testing was removed by Robert Miller of Glacier Water Vending.

   
   

7. Mr. McKinney installed a new reverse osmosis system on the source line on September 7, 1988.

8. The source water for a vending machine is the water just prior to entering the machine, which includes the well and any treatment processes between the well and the machine. The source water for Petitioner's vending machine has been processed through chlorination and one reverse osmosis system. This source water must meet minimum standards established for community public water supply systems.

   
   

9. There are many different types of reverse osmosis systems. In general, a reverse osmosis system is a purification process intended to improve water quality. The degree of improvement in product water is affected by many factors including, but not limited to, feed water mineral concentration, feed pressure, feed water temperatures and Ph.

   
   

10. It cannot be assumed that minimum water quality standards are being met just because a reverse osmosis system has been installed.

    
    

11. The Department has no obligation to provide and/or pay for the chemical testing that is a prerequisite to the issuance of this water vending machine permit.

    
    

12. Department personnel do perform required bacteriological and nitrate testing on the non-community well at Herman's Meats. There has been a pattern of noncompliance for bacteriological and chlorine residual levels at this location. The Department does not perform water vending machine testing at Herman's Meats and would only do so if there was a complaint. At the time of the hearing, there had been no complaints about the vended water there.

    
    

13. The Petitioner has provided no test results from a state certified lab to the Department. The Petitioner has provided to the Department only test results from his own testing efforts which relate only to the total dissolved solids (T.D.S.) category. The test results generated by Mr. McKinney are not adequate for departmental permitting purposes.

    
    

14. The only state certified chemical test results available to the Department on this location show that the source water did not meet minimum standards for community public water supply systems in 1987.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. The Department of Health and Rehabilitative Services is authorized to regulate and permit water vending machines pursuant to Section 381.295, Florida Statutes. In compliance with Section 381.295(7)(a), Florida Statutes, the Department has duly promulgated regulations for water vending machines in Chapter 10D-22, Florida Administrative Code.

    
    

17. Chapter 10D-22.004(5), Florida Administrative Code provides that if the source water for a water vending machine is a non-community water supply, the water shall be of equivalent quality as that required for community public water supply systems. Upon application for an initial operating permit and at three year intervals thereafter, chemical analyses shall be required for non- community and other public water supply systems that are water sources for vending machines. The chemical analyses shall include the primary and secondary

    contaminants and the priority pollutants listed in Chapter 17-22, Florida Administrative Code. When indicated by reason of complaint or illness, the Department may require that additional analyses be performed on the source or products of water vending machines.

    
    

18. Chapter 17-22, Florida Administrative Code was amended on January 18, 1989, and is now contained in Chapter 17-550. Chapter 17-550.310, Florida Administrative Code, establishes primary drinking water standards which includes maximum contaminant levels for turbidity, (Chapter 17-550.310(3), Florida Administrative Code) and radionuclides (Chapter 17-550.310(5), Florida Administrative Code). Chapter 17-550.320, Florida Administrative Code, establishes secondary drinking water standards, which include maximum contaminant levels for iron and total dissolved solids. Community water systems must sample and analyze for these four contaminants, among others, in compliance with Chapter 17-550.550 as established in Chapter 17-550.335, Florida Administrative Code.

    
    

19. Chapter 17-550.550, Florida Administrative Code, establishes that samples for compliance monitoring are acceptable only if they have been analyzed by a laboratory approved by the Department of Health and Rehabilitative Services in accordance with Section 403.863, Florida Statutes. In addition, the other provisions of Chapter 17-550, Part V, Florida Administrative Code, establish extensive monitoring requirements for primary and secondary contaminants and place the responsibility for initial and recheck sampling on the supplier of water. See Chapter 17-550.510(1)(d), Florida Administrative Code.

    
    

20. Chapter 17-550, Part VI, Florida Administrative Code, establishes very detailed methodologies which are mandatory to comply with the sampling and analyses required in Parts III and V.

    
    

21. It is the obligation of the applicant to provide appropriate test results to be entitled to the issuance of a permit. This conclusion is based upon a review of Chapters 10D-22.004(5), 10D-22.007(1,2) and 17-550, Florida Administrative Code. A reading of these provisions establishes that it is the responsibility of the supplier/applicant to test the source water. The Department is authorized to test the vended water when necessary. The Department has not had the occasion to perform primary and secondary chemical contaminant analysis on the Herman's Meats location and is not in possession of testing results required to authorize the issuance of a permit.

    
    

22. In the absence of any appropriate test results furnished by the Petitioner or otherwise in the possession of the Department to establish that the source water meets community public water supply systems standards as established in Chapter 17-550, Florida Administrative Code, the Petitioner is not entitled to the issuance of a water vending machine permit.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application for a water vending machine

permit be DENIED.

DONE AND ENTERED this 3rd day of October, 1989, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 3rd day of October, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0668

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Respondent's Findings of Fact Accepted-paragraphs 1-11.

Rejected-paragraph 11 is covered in the Preliminary Statement

Petitioner's Findings of Fact

Accepted-paragraph 7 (in substance)

Rejected-paragraph 1 - irrelevant

paragraph 2 - against the weight of the evidence or subordinate

paragraph 3 - insufficient proof (first

subparagraph); uncorroborated hearsay (second subparagraph); subordinate (third, fourth and fifth subparagraphs)

paragraph 4 - argumentative and uncorroborated 5,8 (sic) hearsay

and 10

paragraph 6 - insufficient proof

COPIES FURNISHED:

Eugenie G. Rehak, Esquire Health Program Attorney Department of Health and Rehabilitative Services 12381 South Cleveland Avenue Suite 501

Fort Myers, Florida 33907

Lew McKinney, President Clean Water Systems, Inc.

250 Warfield Avenue Venice, Florida 34292

Sam Power Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller General Counsel

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 89-000668

Orders for Case No: 89-000668