99-000655
Department Of Health vs.
Robert J. Gorman
Status: Closed
Recommended Order on Friday, June 25, 1999.
Recommended Order on Friday, June 25, 1999.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF HEALTH, )
12)
13Petitioner, )
15)
16vs. ) Case No. 99-0655
21)
22ROBERT J. GORMAN, )
26)
27Respondent. )
29________________________________)
30RECOMMENDED ORDER
32Pursuant to notice, a final hearing was held in this case on
44April 26, 1999, in Fort Pierce, Florida, before Patricia Hart
54Malono, a duly-designated administrative law judge of the
62Division of Administrative Hearings.
66APPEARANCES
67For Petitioner: Donna L. Korora
72Chief Legal Counsel
75Department of Health
78620 South Dixie Highway
82Stuart, Florida 34994
85For Respondent: Robert J. Gorman
901209 Delaware Avenue
93Fort Pierce, Florida 34950
97STATEMENT OF THE ISSUE
101Whether the Respondent committed the violations alleged in
109the Administrative Complaint dated January 8, 1999, and, if so,
119the penalty which should be imposed.
125PRELIMINARY STATEMENT
127In an Administrative Complaint dated January 8, 1999, the
136Department of Health ("Department") charged that Robert Gorman
146violated Section 381.0062, Florida Statutes, and Chapter 64E-8,
154Florida Administrative Code, by operating three limited use
162community public water systems without the required permits. The
171charge was based on Mr. Gorman's failure to apply for operating
182permits for the three wells which provide water to three duplexes
193Mr. Gorman owns and rents. Mr. Gorman timely filed a request for
205a formal hearing in which he asserted that the Department had
216exceeded its authority in requiring the permits and the
225information requested to be submitted with the application for
234the permits. 1/ The Department transmitted this matter to the
244Division of Administrative Hearings for assignment of an
252administrative law judge.
255At the final hearing, the Department presented the testimony
264of Bruce J. McLeod, an environmental supervisor with the St.
274Lucie County Health Department. Petitioner's Exhibits A through
282F were offered and received into evidence. Mr. Gorman testified
292in his own behalf, and Respondent's Exhibits 1 and 2 were offered
304and received into evidence. At the Department's request and
313without objection from Mr. Gorman, Sections 381.0061 and .0062,
322Florida Statutes, and Chapter 64E-8, Florida Administrative Code,
330were officially recognized. At the request of Mr. Gorman and
340without objection from the Department, the complaint for
348declaratory relief filed by Mr. Gorman in the Circuit Court for
359the Nineteenth Judicial Circuit in and for St. Lucie County,
369Florida, on April 19, 1999, was officially recognized. The
378gravamen of this complaint is the unconstitutionality of the
387statute and rules underlying the administrative complaint filed
395against Mr. Gorman by the Department.
401No transcript of the proceeding was filed, but the parties
411timely submitted proposed recommended orders, 2/ which have
419been duly considered.
422FINDINGS OF FACT
425Based on the oral and documentary evidence presented at the
435final hearing and on the entire record of this proceeding, the
446following findings of fact are made:
4521. The Department of Health, including the county health
461departments such as the St. Lucie County Health Department
470("County Health Department"), are responsible for supervising and
480controlling limited use public water systems. Section
487381.0062(3), Florida Statutes (1997).
4912. Mr. Gorman is the owner of three duplexes located at 120
503and 122 Laidback Way, Fort Pierce, Florida; 140 and 142 Laidback
514Way, Fort Pierce, Florida; and 160 and 162 Laidback Way, Fort
525Pierce, Florida. The duplexes were built in 1982 and 1983 and
536each contains two units which are available for rent. Water is
547piped into each duplex from a well located on the property.
5583. The wells providing water to 120 and 122 Laidback Way
569and to 140 and 142 Laidback Way were inspected by the Department
581of Health and Rehabilitative Services in May 1994 and found to be
593satisfactory pending results of water tests. Two-day
600bacteriological analyses were conducted on May 2 and 3, 1994, on
611the wells serving these two properties, and the results were
621satisfactory. 3/
6234. The 1994 inspection report for the well serving the
633property at 120 and 122 Laidback Way reflects that it had the
645following equipment: a one-half horsepower pump; a 30-gallon
"653p tank"; a 20-gallon water softener filter; and a 30-gal lon
664brine tank. The 1994 inspection report for the well serving the
675property at 140 and 142 Laidback Way reflects that it had the
687following equipment: a one-half horsepower pump; a 20-gallon
"695p. tank"; a 25-gallon water softener filter; and a 40-gallon
705brine tank.
7075. In a letter dated August 21, 1998, the County Health
718Department notified Mr. Gorman that he needed to submit the
728application enclosed with the letter and a $140.00 fee to bring
739the "permit" to current status for the property located at 140
750and 142 Laidback Way. The letter was inartfully composed and
760conveyed incomplete information regarding the nature of the
768permit. The letter did, however, contain reference to "Chapter"
777381.0062, Florida Statutes, and Chapter 64E-8, Florida
784Administrative Code, and it also provided notification that
792Chapter 64E-8 required quarterly sampling of limited use public
801water systems for bacteria and a lead and nitrate test every
812three years.
8146. The County Health Department sent Mr. Gorman an
823identical notice, dated August 21, 1998, regarding the property
832located at 160 and 162 Laidback Way.
8397. The County Health Department sent Mr. Gorman a somewhat
849different letter, dated August 31, 1998, regarding the "Limited
858Use Public Water Systems" for the property located at 120 and 122
870Laidback Way. The letter notified Mr. Gorman that his permit to
881operate the "referenced water system has expired as of
890September 30, 1998." The letter reiterated the information
898contained in the August 21 letter and requested in addition that
909Mr. Gorman submit "a minimum 8.5 x 11 inch site plan of the
922system, drawn to scale, that accurately identifies the location
931of the source of water in relation to property boundaries and
942contaminant sources, i.e., well must be 75 feet from septic
952system, etc." and an "[e] quipment list: pump, tank, softener,
962automatic chlorinate, etc., manufacturer, model #, and capacity."
970Finally, Mr. Gorman was notified of the permitting and testing
980fees and told that the "[a] pplication with required site and
991equipment information must be submitted with necessary fees
999within 30 days receipt of this notification."
10068. Mr. Gorman responded with a letter dated October 16,
10161998, in which he posed several questions to the County Health
1027Department:
1028Do you understand that these are duplexes?
1035Are all rental properties including single
1041family subject to these regulations? Can you
1048give me a valid reason why rental units of
1057two units or more should be subject to
1065quarterly bacterial testing (I believe the
1071statute only authorizes it annually) and not
1078all other residential properties, public
1083facilities or otherwise that might use well
1090water?
1091Mr. Gorman requested a response to his questions but did not
1102provide the information, applications, and permit fees requested
1110in the letters dated August 21 and August 31.
11199. In a letter dated December 14, 1998, sent certified mail
1130with return receipt requested and referenced as a Notice of
1140Violation, the County Health Department notified Mr. Gorman that
1149he was operating limited use community public water systems
1158without a permit at 120 and 122, 140 and 142, and 160 and 162
1172Laidback Way and that he had not provided
1180the following required information:
1184· Signed, dated application form.
1189· An operation permit fee of $75.00 for the
1198initial permit.
1200· A site plan of the property that
1208accurately identifies the location of the
1214well in relation to property, boundaries
1220and contaminant sources such as septic
1226tank systems.
1228· Capacity/size, model and brand information
1234on system components.
1237· Well completion report if available or
1244year well was installed if known.
1250· Required chemical analysis results
1255(lead and nitrate).
1258· Initial satisfactory two-day source
1263(well) water and system water
1268bacteriological tests results.
1271Mr. Gorman was told to contact Bruce McLeod within five days of
1283receipt of the notice. Although Mr. Gorman received the notice
1293on December 16, 1998, he did not respond.
130110. The County Health Department had not, as of the final
1312hearing, received any reports of illness attributable to the
1321water from the wells at the subject properties, and it does not
1333have any reason to believe that the wells are contaminated.
134311. Mr. Gorman had not, as of the final hearing, submitted
1354the applications, permit fees, or information requested by the
1363County Health Department, and he had no operating permits for the
1374wells providing water to the subject properties.
138112. The evidence presented in this case is sufficient to
1391establish that the wells providing water to the three duplexes
1401owned and rented by Mr. Gorman each contains two rental units and
1413are limited use community public water systems. Mr. Gorman must
1423have operating permits for the wells providing water to these
1433properties.
1434CONCLUSIONS OF LAW
143713. The Division of Administrative Hearings has
1444jurisdiction over the subject matter of this proceeding and of
1454the parties pursuant to Sections 120.569 and .57(1), Florida
1463Statutes (1997).
146514. In its administrative complaint, the Department seeks
1473to impose on Mr. Gorman an administrative penalty consisting of
1483the assessment of an administrative fine. Therefore, the
1491Department has the burden of proving by clear and convincing
1501evidence that Mr. Gorman committed the violations alleged in the
1511complaint. Department of Banking and Finance, Division of
1519Securities and Investor Protection v. Osborne Stern and Co. , 670
1529So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292
1541(Fla. 1987).
154315. Section 381.0062, Florida Statutes (1997), provides in
1551pertinent part:
1553381.0062 Supervision; private and certain
1558public water systems.
1561(1) LEGISLATIVE INTENT. It is the intent
1568of the Legislature to protect the public's
1575health by establishing standards for the
1581construction, modification, and operation of
1586public and private water systems to assure
1593consumers that the water provided by those
1600systems is potable.
1603(2) DEFINITIONS. As used in this section:
1610* * *
1613(b) "Department" means the Department of
1619Health, including the county health
1624departments.
1625* * *
1628(f) "Limited use community public water
1634system" means a public water system not
1641covered or included in the Florida Safe
1648Drinking Water Act, 4/ which serves five or
1656more private residences or two or more rental
1664residences, and provides piped water.
1669* * *
1672(h) "Person" means an individual, public
1678or private corporation, company, association,
1683partnership, municipality, agency of the
1688state, district, federal, or any other legal
1695entity, or its legal representative, agent,
1701or assignee.
1703* * *
1706(j) "Private water system" means a water
1713system that provides piped water for no more
1721than four nonrental residences.
1725* * *
1728(l) "Public water system" means a water
1735system that is not included or covered under
1743the Florida Safe Drinking Water Act, provides
1750piped water to the public, and is not a
1759private water system. For purposes of this
1766section, public water systems are classified
1772as limited use community or limited use
1779commercial.
1780(m) "Supplier of water" means the person,
1787company, or corporation that owns or operates
1794a limited use community or limited use
1801commercial public water system, or a private
1808water system.
1810* * *
1813(3) SUPERVISION. The department and its
1819agents shall have general supervision and
1825control over all private water systems, and
1832public water systems not covered or included
1839in the Florida Safe Drinking Water Act (part
1847VI of chapter 403), and over those aspects of
1856the public water supply program for which it
1864has the duties and responsibilities provided
1870for in part VI of chapter 403. The
1878department shall:
1880(a) Administer and enforce the provisions
1886of this section and all rules and orders
1894adopted or issued under this section,
1900including water quality and monitoring
1905standards.
1906(b) Require any person wishing to
1912construct, modify, or operate a limited use
1919community or limited use commercial public
1925water system or a private water system to
1933first make application to and obtain approval
1940from the department on forms adopted by rule
1948of the department.
1951(c) Review and act upon any application
1958for the construction, modification,
1962operation, or change of ownership of, and
1969conduct surveillance, enforcement, and
1973compliance investigations of, limited use
1978community and limited use commercial public
1984water systems, and private water systems.
1990(d) Require a fee from the supplier of
1998water in an amount sufficient to cover the
2006costs of reviewing and acting upon any
2013application for the construction,
2017modification, or operation of a limited use
2024community and limited use commercial public
2030water system, of not less than $10 or more
2039than $90 annually.
2042(e) Require a fee from the supplier of
2050water in an amount sufficient to cover the
2058costs of reviewing and acting upon any
2065application for the construction or change of
2072ownership of a private water system serving
2079more than one residence, of not less than $10
2088or more than $90.
2092(f) Require a fee from the supplier of
2100water in an amount sufficient to cover the
2108costs of sample collection, review of
2114analytical results, health-risk
2117interpretations, and coordination with other
2122agencies when such work is not included in
2130paragraphs (b) and (c) and is requested by
2138the supplier of water, of not less than $10
2147or more than $90.
2151(g) Require suppliers of water to collect
2158samples of water, to submit such samples to a
2167department-certified drinking water
2170laboratory for contaminant analysis, and to
2176keep sampling records as required by rule of
2184the department.
2186(h) Require all fees collected by the
2193department in accordance with the provisions
2199of this section to be deposited in an
2207appropriate trust fund of the department, and
2214used exclusively for the payment of costs
2221incurred in the administration of this
2227section.
2228( i) Prohibit any supplier of water from,
2236intentionally or otherwise, introducing any
2241contaminant which poses a health hazard into
2248a drinking water system.
2252(j) Require suppliers of water to give
2259public notice of water problems and
2265corrective measures under the conditions
2270specified by rule of the department.
2276(k) Require a fee to cover the cost of
2285reinspection of any system regulated under
2291this section, which may not be less than $25
2300or more than $40.
230416. On the basis of the facts found herein, the St. Lucie
2316County Health Department was acting within the authority granted
2325to it in Section 381.0062 when it required Mr. Gorman to apply
2337for a limited use water system operating permit for the wells
2348providing water to his three rental duplexes.
235517. Chapter 64E-8, Florida Administrative Code, was adopted
2363by the Department to implement Section 381.0062, among other
2372statutes governing drinking water systems. Rule 64E-8.004,
2379Florida Administrative Code, governs limited use water system
2387operating permits and provides in pertinent part:
2394(1) Annual permits are required for all
2401limited use systems, except those systems
2407registered per s. 64E-8.004(6). Annual
2412operating permits expire September 30.
2417(2) By September 1st each year, the owner
2425of a non-registered Limited Use System shall
2432submit the following items to the county
2439health department:
2441(a) A completed Form DH 4092A;
2447(b) A $75 operating permit application fee
2454the first year, and then a $70 annual
2462operating permit fee each year thereafter;
2468however, any initial operating permit fee for
2475a system put into operation after March 31 is
2484$35;
2485* * *
2488(d) For the initial permit, evidence that
2495the water meets rule 64E-8.006(1)(a) chemical
2501MCL's and a recent, satisfactory two
2507consecutive day source water microbiological
2512survey;
2513(e) For the initial permit, a minimum size
25218.5 X 11 inch site plan of sufficient clarity
2530to be reproduced successfully onto microfilm;
2536(f) For the initial permit, the
2542capacity/size, model, and brand of all system
2549components; and
2551(g) A well completion report the first
2558year, if available, and then any time a well
2567is replaced.
2569(3) Upon receipt of satisfactory items in
2576rule 64E-8.004(2) and a satisfactory sanitary
2582survey, the department shall issue
2587authorization on Form DH 4093 to operate the
2595system.
259618. On the basis of the facts found herein, the St. Lucie
2608County Health Department was acting within the authority granted
2617to it in Rule 64E-8.004 to require Mr. Gorman to apply for a
2630limited use water system operating permit for the wells providing
2640water to his three rental duplexes and to submit with his
2651application the permitting fee and the information required in
2660the final Notice of Violation sent to Mr. Gorman in the letter
2672dated December 14, 1998.
267619. On the basis of the facts found herein, the Department
2687has satisfied its burden of proving by clear and convincing
2697evidence that Mr. Gorman has been operating the limited use
2707community public water systems at 120 and 122, 140 and 142, and
2719160 and 162 Laidback Way without a permit in violation of Section
2731381.0062 and Rule 64E-8.004.
273520. Section 381.0061, Florida Statutes, specifies as
2742follows:
2743(1) In addition to any administrative
2749action authorized by chapter 120 or by other
2757law, the department may impose a fine, which
2765shall not exceed $500 for each violation, for
2773a violation of s. 381.0065, s. 381.0066, s.
2781381.0072, or part III of chapter 489, for a
2790violation of any rule adopted under this
2797chapter, or for a violation of any of the
2806provisions of chapter 386. Notice of intent
2813to impose such fine shall be given by the
2822department to the alleged violator. Each day
2829that a violation continues may constitute a
2836separate violation.
2838(2) In determining the amount of fine to
2846be imposed, if any, for a violation, the
2854following factors shall be considered:
2859(a) The gravity of the violation,
2865including the probability that death or
2871serious physical or emotional harm to any
2878person will result or has resulted, the
2885severity of the actual or potential harm, and
2893the extent to which the provisions of the
2901applicable statutes or rules were violated.
2907(b) Actions taken by the owner or operator
2915to correct violations.
2918(c) Any previous violations.
292221. The Department did not present any evidence that harm
2932resulted from Mr. Gorman's refusal to apply for an operating
2942permit for the wells on his three rental duplexes or that the
2954probability of harm existed. The Department did not present
2963evidence that Mr. Gorman had committed any previous violations of
2973Section 381.0062 or Rule 64E-8.004. On the other hand, Mr.
2983Gorman's failure to apply for the permits was willful. 5/ The
2994penalty of $500.00 for each violation suggested in the
3003Department's Proposed Recommended Order is consistent with the
3011penalties set forth in Section 381.0061(2), and there is no
3021apparent reason to deviate from the Department's proposal.
3029RECOMMENDATION
3030Based on the foregoing Findings of Fact and Conclusions of
3040Law, it is RECOMMENDED that the Department of Health enter a
3051final order:
30531. Finding that Robert J. Gorman is guilty of three
3063violations of Section 381.0062, Florida Statutes (1997), because
3071he failed to obtain operating permits for the limited use
3081community public water systems he maintains at 120 and 122, 140
3092and 142, and 160 and 162, Laidback Way, Fort Pierce, Florida; and
31042. Imposing an administrative fine in the amount of
3113$1500.00, or $500.00 for each of the three violations.
3122DONE AND ENTERED this 25th day of June, 1999, in
3132Tallahassee, Leon County, Florida.
3136___________________________________
3137PATRICIA HART MALONO
3140Administrative Law Judge
3143Division of Administrative Hearings
3147The DeSoto Building
31501230 Apalachee Parkway
3153Tallahassee, Florida 32399-3060
3156(850) 488-9675 SUNCOM 278-9675
3160Fax Filing (850) 921-6847
3164www.doah.state.fl.us
3165Filed with the Clerk of the
3171Division of Administrative Hearings
3175this 25th day of June, 1999.
3181ENDNOTES
31821 Mr. Gorman further asserted that Section 381.0062 and the
3192rules implementing that statute are unconstitutional both
3199facially and as applied. Neither an administrative law judge nor
3209an agency head has the authority to declare a statute or an
3221existing rule unconstitutional. That power resides with a
3229district court on appeal from the final order entered in an
3240administrative proceeding or with a circuit court in an
3249appropriate civil action. See Department of Business Regulation,
3257Division of Alcoholic Beverages v. Ruff , 592 So. 2d 668 (Fla.
32681992); Palm Harbor Special Fire control District v. Kelly , 516
3278So. 2d 249 (Fla. 1987).
32832 In his Proposed Recommended Order, Mr. Gorman requested that
3293this case be placed in abeyance prior to entry of a recommended
3305order pending resolution of the declaratory judgment action. The
3314request is DENIED.
33173 The record does not contain any information regarding the well
3328serving 160 and 162 Laidback Way.
33344 The parties agree that the wells on Mr. Gorman's properties
3345are not governed by the Florida Safe Drinking Water Act.
33555 Mr. Gorman's refusal to apply for the permits is based on his
3368belief that the statute and rule underlying this proceeding are
3378unconstitutional facially and as applied to him. This
3386justification for his action does not affect the recommendation
3395regarding the appropriate penalty which should be imposed in this
3405case. See footnote 1, above.
3410COPIES FURNISHED:
3412Donna L. Korora
3415Chief Legal Counsel
3418Department of Health
3421620 South Dixie Highway
3425Stuart, Florida 34994
3428Robert J. Gorman
34311209 Delaware Avenue
3434Fort Pierce, Florida 34950
3438Angela T. Hall, Agency Clerk
3443Department of Health
34462020 Capital Circle, Southeast, Bin A02
3452Tallahassee, Florida 32399-1703
3455Pete Peterson, General Counsel
3459Department of Health
34622020 Capital Circle, Southeast, Bin A02
3468Tallahassee, Florida 32399-1701
3471NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
3477All parties have the right to submit written exceptions within 15
3488days from the date of this R ecommended O rder. Any exceptions to
3501this R ecommended O rder should be filed with the agency that will
3514issue the F inal O rder in this case.
- Date
- Proceedings
- Date: 10/01/1999
- Proceedings: Notice of Scrivener`s Error, Final Order attached filed.
- Date: 07/09/1999
- Proceedings: Respondent`s Exceptions to Recommended Order (filed via facsimile).
- Date: 05/17/1999
- Proceedings: Order Extending Time for Filing Proposed Recommended Order sent out. (Respondent shall file his proposed orders by 5/14/99)
- Date: 05/13/1999
- Proceedings: (Respondent) Proposed Recommended Order (filed via facsimile).
- Date: 05/11/1999
- Proceedings: Respondent`s Request for Extension to File Proposed Finding of Fact (filed via facsimile).
- Date: 05/06/1999
- Proceedings: (Petitioner) Proposed Recommended Order filed.
- Date: 04/26/1999
- Proceedings: CASE STATUS: Hearing Held.
- Date: 04/20/1999
- Proceedings: Order Denying Motion for Summary Final Order sent out.
- Date: 04/19/1999
- Proceedings: Respondent`s Reply to Motion for Summary Final Order filed.
- Date: 04/01/1999
- Proceedings: (Petitioner) Motion for Summary Final Order filed.
- Date: 03/16/1999
- Proceedings: Notice of Hearing sent out. (hearing set for 4/26/99; 9:00am; Ft. Pierce)
- Date: 02/25/1999
- Proceedings: Joint Response to Initial Order (filed via facsimile).
- Date: 02/16/1999
- Proceedings: Initial Order issued.
- Date: 02/11/1999
- Proceedings: Notice; Administrative Complaint Request for Hearing; Administrative Complaint rec`d
Case Information
- Judge:
- PATRICIA M. HART
- Date Filed:
- 02/11/1999
- Date Assignment:
- 02/16/1999
- Last Docket Entry:
- 10/01/1999
- Location:
- Fort Pierce, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO