97-003144 Department Of Health vs. Habib U. Shaikh And Sds Properties Investors Group, Inc., D/B/A Budget Motel Status: Closed Recommended Order on Wednesday, May 27, 1998.

Summary: The Department has shown that Respondent violated Rules 62-550.518(3), 62-555.320(4) and (8), 62-555.345, 62-555.350(2) and 560.410(2)(c), Florida Administrative Code.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 97-3144

) (96- 653PW2442B)

HABIB U. SHAIKH and SDS )

PROPERTIES INVESTORS GROUP, INC., )

d/b/a BUDGET MOTEL, )

)

Respondents. )

__________________________________)

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 97-3145

) ( 96- 653PW2442C)

HABIB U. SHAIKH and SDS )

)

PROPERTIES INVESTORS GROUP, INC., )

d/b/a BUDGET MOTEL, )

)

Respondents. )

__________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge

for the Division of Administrative Hearings, held a formal hearing

in this matter on January 5, 1998, in Bartow, Florida.

APPEARANCES

For Petitioner: Roland Reis, Esquire

Department of Health

Polk County Health Department

1290 Golfview Avenue, Fourth Floor

Bartow, Florida 33830-6740

For Respondents: No appearance

STATEMENT OF THE ISSUE

Did Respondents violate the provisions of Rules 62-550.518(3),

62-555.320(4)(8), 62-560.410(2)(c), 62 555.350(2), and 62-555.345,

Florida Administrative Code, as alleged in the Notice of Violation

and Orders for Corrective Action, Case Nos. 96- 653PW2442B and 96-

653PW2442C dated June 9, 1997?

PRELIMINARY MATTERS

On June 9, 1997, the Department of Health (Department), through the

Polk County Health Department ( Polk County), issued a 7-count

Notice of Violation and Orders for Corrective Action (notice)

against the Respondents alleging that Respondents had violated

certain statutory and rule provisions, and providing for the

remediation of those violations. The allegations in each of the

notices are identical but were served separately on each party.

The notice identified as Case No. 96- 653PW2442B was served on

Respondent SDS Properties Investors Group, Inc. d/b/a Budget Motel

and the notice identified as Case No. 96- 65PW2442C was served on

Habib U. Shaikh. By letter dated June 23, 1997, Respondent Habib

U. Shaikh ( Shaikh) requested a formal hearing in both cases under

Chapter 120, Florida Statutes. By Notice dated July 8, 1997, the

Department referred both of these cases to the Division of

Administrative Hearings (Division) for the assignment of an

Administrative Law Judge and for the conduct of a hearing. Upon

receipt of the two notices, the Division assigned Case No. 97-3144

to the notice that had been assigned Case No. 96- 653PW2442B by the

Department and assigned Case No. 97-3145 to the notice that had

been assigned Case No. 96- 653PW2442C by the Department. In the

letter of referral from the Department, the Division was advised

that the matter involved two parties to the same violations and

requested the matters to be consolidated. By order dated August

19, 1997, the two cases were consolidated.

At the hearing, the Department presented the testimony of

Henry Tagioff, Mark Fallah, George Dunham, and Lewis Taylor.

Department's Exhibits 1 through 13 were received as evidence. The

Respondents did not appear at the hearing and offered no testimony

or documentary evidence.

Subsequent to the hearing, an Order to Show Cause was entered

giving Respondents an opportunity to show cause why they had not

appeared at the hearing. The Respondents did not reply to this

Order to Show Cause. Thereafter, an Order was entered on

February 9, 1998, deeming the formal hearing on these matters to

have been concluded, and giving the parties an opportunity to file

proposed findings of fact and conclusions of law.

There was no transcript of this proceeding filed with the

Division. The Department timely filed its proposed findings of

fact and conclusions of law. Respondents-elected not to file any

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. At all times pertinent to this proceeding, the Department,

through the Polk County Health Department, under the authority of

an Interagency Agreement with the Department of Environmental

Protection, was the agency of the State of Florida charged with the

responsibility for inspecting and clearing Public Water Systems in

Polk County Florida under Section 403.121, Florida Statutes.

2. SDS Properties Investors Group, Inc. ( SDS) is a Florida

corporation authorized to do business as Budget Motel. SDS is

owned by Shaikh.

3. Sanitary surveys are conducted by the Department every

three years and include the inspection of Public Water Systems

( PWS) .

4. On January 26, 1996, the Department conducted a routine

sanitary survey of Budget Motel (Budget) located at 1418 Highway 17

South, Lake Wales, Florida, which should have included Budget's

public water system, PWS 6532442. However, Polk County's

inspector, Henry Tagioff, was shown a well, by a Budget employee,

that was located on the adjacent property owned by Smokey's Mobile

Home Park (Smokey's) and not a part of Budget's water system.

Tagioff was not aware that the well he inspected was owned by

Smokey's and not on Budget's property. During the inspection,

Tagioff noted several violations and advised the Budget employee

that Tagioff needed to discuss these violations with Shaikh.

5. On January 29, 1996, Tagioff and Lee Forgey, another Polk

County employee, met with Shaikh to discuss the violations noted by

Tagioff on January 26, 1996. During this meeting, Shaikh, Tagioff,

and Forgey discussed the violations previously found by Tagioff on

January 26, 1996, concerning the well on Smokey's property. At no

time during this meeting did Shaikh advise Tagioff or Forgey that

neither he nor Budget own the well under discussion.

6. The record is not clear, but sometime between January and

May 1996, Budget's well had collapsed and was not useable.

Subsequent to Budget's well collapsing, Shaikh contracted with

George Dunham, after obtaining Smokey's permission, to connect

Budget's water system ( PWS6532442) to Smokey's well. At the time

of connecting Budget's water system to Smokey's well, Dunham

advised Shaikh that this was only a temporary solution and gave

Shaikh a proposal for a new well since Budget's old well could not

be repaired.

7. On May 2, 1996, Tagioff made a reinspection of Budget's

water system and found that Budget's well had collapsed and was

inoperable, and that Budget had connected to Smokey's well to

furnish water to the motel and its guests. Tagioff advised Shaikh

that Budget would need a new well since its old well was inoperable

and the connection to Smokey's well was only temporary.

8. On May 21, 1996, Mark Fallah, a Polk County employee,

conducted a site inspection and prepared a report for use in

connection with Budget's application with Southwest Florida Water

Management District ( SWFWMD) for a new well permit.

9. In connection with Fallah's site inspection and report,

the Department advised Shaikh by letter dated May 21, 1996, of

certain things concerning the new well that had to be completed

prior to placing the well into public use. The letter provides in

pertinent part as follows:

Upon completion of the drilling and the

verification of the grouting procedure by the

Water Management District, the following items,

as required by Chapters 62-555 and 62 550 of the

Florida Administrative Code, are to be

completed prior to this water system being

placed into public use.

* * *

2. A continuous chlorination unit that is

electrically interlocked with the well pump

circuit.

* * *

5. A flow measuring device is required on all

Non-Community Water Systems.

6. A copy of the well completion report must

be furnished to this office by the well driller

within thirty (30) days after the well

installation.

7. Bacteriological clearance of the well must

be performed by submitting twenty (20)

consecutive water samples for analysis to an

HRS certified laboratory. A maximum of two (2)

samples per day taken at least six hours apart

may be collected. Additional samples may be

required until twenty (20) consecutive

satisfactory samples are received.

* * *

After the well and plant construction is

completed, contact our office for an inspection

so that written clearance can be issued. It is

prohibited for any Public water system to be

placed into use without clearance being issued

from this department. (Emphasis Furnished).

10. SWFWMD approved Budget's new well application and issued

Budget Permit No. 579811.01 for drilling a new well. However, upon

completion of the new well, there were certain conditions that had

to be met as indicated in the letter from the Department dated May

21, 1996.

11. On May 31, 1996, and July 10, 1996, Fallah inspected

Budget's new water system for compliance and, on both occasions,

found that Budget had failed to install the chlorination unit, the

flow meter, and had not submitted a well completion report or

bacteriological samples.

12. On July 15, 1996, the Department issued a Warning Notice

to Shaikh advising him that the system could not be used until

approved by the Department.

13. For enforcement purposes, the file was transferred to

Lewis Taylor, enforcement officer for drinking water systems for

Polk County.

14. On November 14, 1996, Taylor conducted an inspection of

Budget's water system and reported that: (1) Budget's well had been

placed into service without approval from the Department; (2) there

was no chlorinator in operation; (3) there was no flow meter; (4)

the Department had not received any bacteriological samples since

November 1995; (5) there was no certified operator servicing the

motel's water system; and (6) Budget had not provided public notice

to its customers of its failure to monitor its drinking water.

15. A second Warning Notice was issued by the Department and

furnished to Shaikh on November 22, 19-96, which in substance

advised Shaikh that Budget was in violation of Rules 62-550 and 62-

555, Florida Administrative Code, for its: (1) failure to obtain

the Department's clearance before placing its new well in service;

(2) failure to provide quarterly bacteriological samples; (3)

failure to maintain proper chlorine residual in the water system;

(4) failure to provide a flow meter in the water system; (5)

failure to provide public notification to its customers that its

water system had failed to comply with Rule 62-550, Florida

Administrative Code; and (6) failure to provide the Department with

verification of Budget retaining a certified operator to oversee

the operation and maintenance of its water system.

16. On March 3, 1997, Tagioff and John GoPaul, US

Environmental Agency, inspected Budget's water system and found

that: (1) there was no chlorine residual in the system; (2) the

chlorination unit located at the motel was not in use; (3) there

was no flow meter within the system; (4) no quarterly

bacteriological samples had been furnished to the Department; and

(5) the well had not been cleared for use by the Department.

17. Based on the testimony of Lewis Taylor which I find

credible, the Department has expended the following in the

inspection of Budget's water system: (1) 20.25 hours of

professional time at a rate of $30.00 per hour for a total of

$607.50; (2) three hours of clerical time at a rate of $15.00 per

hour for a total of $45.00; and (3) $27.00 in travel costs and

postage. The total amount expended in the inspection of this water

system by the Department was $679.50.

CONCLUSIONS OF LAW

18. 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.

19. Sections 403.852(2),(3),(4),(5),(8), and (16), Florida

Statutes, provide in pertinent part as follows:

(2) "Public water system" means a community,

nontransient noncommunity, or noncommunity

system for the provision to the public of piped

water for human consumption. . . .

(3) "Community water system" means a public

water system which serves at least 15 service

connections used by year-round residents or

regularly serves at least 25 year-round

residents.

(4) " Noncommunity water system" means a public

water system for provision to the public of

piped water for human consumption, which serves

at least 25 individuals daily at least 60 days

out of the year, but which is not a community

water system; except that a water system for a

wilderness educational camp is a noncommunity

water system.

(5) "Person" means an individual, public or

private corporation, company, association,

partnership, municipality, agency of the state,

district, federal agency, or any other legal

entity, or its legal representative, agent, or

assigns.

* * *

(8) "Supplier of water" means any person who

owns or operates a public water system.

Budget's water system is a noncommunity water system and

Budget is a supplier of water.

20. Rules 62-550.518(3) and (4), Florida Administrative Code,

provide in pertinent part as follows:

(3) A non-community water system that serves

1,000 or fewer persons shall monitor at the

rate of two samples in each calendar quarter

during which the system provides water to the

public. In addition, a minimum of one raw

sample shall be collected per quarter.

(4) The supplier of water shall maintain free

chlorine residual of 0.2 milligrams per liter

or its equivalent throughout the distribution

system at all times. If the supplier of water

fails to maintain this level of free chlorine

residual, or its equivalent, the supplier of

water shall take the necessary corrective

action as approved by the Department. . . .

21. Rules 62-555.320(4)(a) and (8), Florida Administrative

Code, provide as follows:

(4) Disinfection.

(a) All public water systems shall continually

have effective disinfection measures employed

on the water which the system distributes. The

necessary apparatus shall be designed,

according to acceptable engineering practices,

to maintain a free chlorine residual or its

equivalent throughout the distribution system

in accordance with Rule 62-550.518(4), FAC.

* * *

(8) Meters - All community water systems shall

be equipped with a metering device that

accurately indicates pumpage of finished water.

Non-community and non-transient non-community

systems shall be equipped with at least an

elapsed time clock or other device in

conjunction with filed calibration of the pump

that will permit determination of flow.

22. Rule 62-555.345, Florida Administrative Code,

provides as follows:

Upon completion of construction, the engineer

of record or the system's professional engineer

who was responsible for overseeing construction

shall submit a certification of completion

letter to the Department. When the letter of

certification and a copy of satisfactory

bacteriological results (absence of total

coliform in two consecutive daily water

samples) and analyses to demonstrate compliance

with Chapter 62-550 and, if applicable, Chapter

62-524, FAC, are received, a letter of

clearance to place the facility ( ies) into

service shall be issued.

23. Rule 62-555.350(2), Florida Administrative Code, provides

as follows:

(2) The supplier of water shall provide

responsible operation personnel in accordance

with Chapters 62-602 and 62-699, FAC, and the

permit.

24. Rule 62-699.310(1), Florida Administrative Code, provides

as follows:

(1) All permittees and suppliers of water or

wastewater treatment plants shall employ

certified operators on-site as specified below.

25. Rule 62-560.410(2), Florida Administrative Code, provides

in pertinent part as follows:

(2) Other violations, variances, exemptions.

The owner or operator of a public water system

which fails to perform monitoring required by

Chapter 62-550, Part V., FAC. . . shall notify

persons served by the system as follows: (a)

Except as provided in paragraph . . . 2(c) of

this section, the owner or operator of a public

water system shall give notice within three

months of the violation or granting of a

variance or exemption by publication in a daily

newspaper of general circulation, other than a

newspaper established primarily for the

publication of legal notices, serving the area.

Repeat notice shall be given every three months

for as long as the violation continues or the

variance or exemption remains in effect.

* * *

(c) In lieu of the requirements of paragraph

(2)(a) of this section, the owner or operator

of a non-conforming water system may give

notice, within three months of the violation or

the granting of the variance or exemption, by

hand delivery or by continuous posting in

conspicuous places within the area served by

the system. Posting shall continue for as long

as the violation exists or a variance or

exemption remains in effect. Notice by hand

delivery shall be repeated at least every three

months for as long as the violation exists or a

variance or exemption remains in effect.

26. Section 403.860(3), Florida Statutes, grants the

Department authority to recover from the violator the Department's

reasonable costs and expenses incurred in investigating the

violation and prosecuting the administrative proceeding.

27. The burden of proof is on the party asserting the

affirmative of an issue before and administrative tribunal.

Florida Department of Transportation v. J.W.C. Company, Inc. , 396

So. 2d 778 (Fla. 2d DCA 1981). To meet this burden, the Department

must establish facts upon which its allegations are based by a

preponderance of the evidence. The Department has met its burden

to show that Respondents violated Rules 62-550.518(3), 62-

555.320(4) and (8), 62-555.345, 62-555.350(2), and 62-

560.410(2)(c), Florida Administrative Code, and the Department has

equally met its burden to show that it expended $679.50 in the

investigation of this matter and prosecuting the administrative

proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Department enter a final order

finding Respondents guilty of the violations as charged and

requiring Respondents to comply with the Orders for Corrective

Action as set out in the Notice of Violation and Orders of

Corrective Action in Case Nos. 96- 653PW2442B and 96- 653PW2442C. It

is further recommended that Respondents be required to pay the

costs and expenses of investigating the violations and prosecuting

this matter in the amount of $679.50.

DONE AND ENTERED this 27th day of May, 1998, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of May, 1998.

COPIES FURNISHED:

Angela T. Hall, Agency Clerk

Department of Health

1317 Winewood Boulevard, Building 6

Tallahassee, Florida 32399-0700

Roland Reis, Esquire

Department of Health

Polk County Health Department

1290 Golfview Avenue, 4th Floor

Bartow, Florida 33830-6740

Habib U. Shaikh

4014 Billingsgate Road

Orlando, Florida 32839-7515

SDS Properties Investors Group, Inc.

d/b/a Budget Motel

1418 Highway 17 South

Lake Wales, Florida 33853

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.