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.

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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.





13Petitioner, )


16vs. ) Case No. 97-3144

21) (96- 653PW2442B)



35d/b/a BUDGET MOTEL, )


40Respondents. )




48Petitioner, )


51vs. ) Case No. 97-3145

56) ( 96- 653PW2442C)




72d/b/a BUDGET MOTEL, )


77Respondents. )



82Upon due notice, William R. Cave, an Administrative Law Judge

92for the Division of Administrative Hearings, held a formal hearing

102in this matter on January 5, 1998, in Bartow, Florida.


113For Petitioner: Roland Reis, Esquire

118Department of Health

121Polk County Health Department

1251290 Golfview Avenue, Fourth Floor

130Bartow, Florida 33830-6740

133For Respondents: No appearance


141Did Respondents violate the provisions of Rules 62-550.518(3),

14962-555.320(4)(8), 62-560.410(2)(c), 62 555.350(2), and 62-555.345,

155Florida Administrative Code, as alleged in the Notice of Violation

165and Orders for Corrective Action, Case Nos. 96- 653PW2442B and 96-

176653PW2442C dated June 9, 1997?


183On June 9, 1997, the Department of Health (Department), through the

194Polk County Health Department ( Polk County), issued a 7-count

204Notice of Violation and Orders for Corrective Action (notice)

213against the Respondents alleging that Respondents had violated

221certain statutory and rule provisions, and providing for the

230remediation of those violations. The allegations in each of the

240notices are identical but were served separately on each party.

250The notice identified as Case No. 96- 653PW2442B was served on

261Respondent SDS Properties Investors Group, Inc. d/b/a Budget Motel

270and the notice identified as Case No. 96- 65PW2442C was served on

282Habib U. Shaikh. By letter dated June 23, 1997, Respondent Habib

293U. Shaikh ( Shaikh) requested a formal hearing in both cases under

305Chapter 120, Florida Statutes. By Notice dated July 8, 1997, the

316Department referred both of these cases to the Division of

326Administrative Hearings (Division) for the assignment of an

334Administrative Law Judge and for the conduct of a hearing. Upon

345receipt of the two notices, the Division assigned Case No. 97-3144

356to the notice that had been assigned Case No. 96- 653PW2442B by the

369Department and assigned Case No. 97-3145 to the notice that had

380been assigned Case No. 96- 653PW2442C by the Department. In the

391letter of referral from the Department, the Division was advised

401that the matter involved two parties to the same violations and

412requested the matters to be consolidated. By order dated August

42219, 1997, the two cases were consolidated.

429At the hearing, the Department presented the testimony of

438Henry Tagioff, Mark Fallah, George Dunham, and Lewis Taylor.

447Department's Exhibits 1 through 13 were received as evidence. The

457Respondents did not appear at the hearing and offered no testimony

468or documentary evidence.

471Subsequent to the hearing, an Order to Show Cause was entered

482giving Respondents an opportunity to show cause why they had not

493appeared at the hearing. The Respondents did not reply to this

504Order to Show Cause. Thereafter, an Order was entered on

514February 9, 1998, deeming the formal hearing on these matters to

525have been concluded, and giving the parties an opportunity to file

536proposed findings of fact and conclusions of law.

544There was no transcript of this proceeding filed with the

554Division. The Department timely filed its proposed findings of

563fact and conclusions of law. Respondents-elected not to file any

573proposed findings of fact and conclusions of law.


584Upon consideration of the oral and documentary evidence

592adduced at the hearing, the following relevant findings of fact are


6041. At all times pertinent to this proceeding, the Department,

614through the Polk County Health Department, under the authority of

624an Interagency Agreement with the Department of Environmental

632Protection, was the agency of the State of Florida charged with the

644responsibility for inspecting and clearing Public Water Systems in

653Polk County Florida under Section 403.121, Florida Statutes.

6612. SDS Properties Investors Group, Inc. ( SDS) is a Florida

672corporation authorized to do business as Budget Motel. SDS is

682owned by Shaikh.

6853. Sanitary surveys are conducted by the Department every

694three years and include the inspection of Public Water Systems

704( PWS) .

7074. On January 26, 1996, the Department conducted a routine

717sanitary survey of Budget Motel (Budget) located at 1418 Highway 17

728South, Lake Wales, Florida, which should have included Budget's

737public water system, PWS 6532442. However, Polk County's

745inspector, Henry Tagioff, was shown a well, by a Budget employee,

756that was located on the adjacent property owned by Smokey's Mobile

767Home Park (Smokey's) and not a part of Budget's water system.

778Tagioff was not aware that the well he inspected was owned by

790Smokey's and not on Budget's property. During the inspection,

799Tagioff noted several violations and advised the Budget employee

808that Tagioff needed to discuss these violations with Shaikh.

8175. On January 29, 1996, Tagioff and Lee Forgey, another Polk

828County employee, met with Shaikh to discuss the violations noted by

839Tagioff on January 26, 1996. During this meeting, Shaikh, Tagioff,

849and Forgey discussed the violations previously found by Tagioff on

859January 26, 1996, concerning the well on Smokey's property. At no

870time during this meeting did Shaikh advise Tagioff or Forgey that

881neither he nor Budget own the well under discussion.

8906. The record is not clear, but sometime between January and

901May 1996, Budget's well had collapsed and was not useable.

911Subsequent to Budget's well collapsing, Shaikh contracted with

919George Dunham, after obtaining Smokey's permission, to connect

927Budget's water system ( PWS6532442) to Smokey's well. At the time

938of connecting Budget's water system to Smokey's well, Dunham

947advised Shaikh that this was only a temporary solution and gave

958Shaikh a proposal for a new well since Budget's old well could not

971be repaired.

9737. On May 2, 1996, Tagioff made a reinspection of Budget's

984water system and found that Budget's well had collapsed and was

995inoperable, and that Budget had connected to Smokey's well to

1005furnish water to the motel and its guests. Tagioff advised Shaikh

1016that Budget would need a new well since its old well was inoperable

1029and the connection to Smokey's well was only temporary.

10388. On May 21, 1996, Mark Fallah, a Polk County employee,

1049conducted a site inspection and prepared a report for use in

1060connection with Budget's application with Southwest Florida Water

1068Management District ( SWFWMD) for a new well permit.

10779. In connection with Fallah's site inspection and report,

1086the Department advised Shaikh by letter dated May 21, 1996, of

1097certain things concerning the new well that had to be completed

1108prior to placing the well into public use. The letter provides in

1120pertinent part as follows:

1124Upon completion of the drilling and the

1131verification of the grouting procedure by the

1138Water Management District, the following items,

1144as required by Chapters 62-555 and 62 550 of the

1154Florida Administrative Code, are to be

1160completed prior to this water system being

1167placed into public use.

1171* * *

11742. A continuous chlorination unit that is

1181electrically interlocked with the well pump


1188* * *

11915. A flow measuring device is required on all

1200Non-Community Water Systems.

12036. A copy of the well completion report must

1212be furnished to this office by the well driller

1221within thirty (30) days after the well


12297. Bacteriological clearance of the well must

1236be performed by submitting twenty (20)

1242consecutive water samples for analysis to an

1249HRS certified laboratory. A maximum of two (2)

1257samples per day taken at least six hours apart

1266may be collected. Additional samples may be

1273required until twenty (20) consecutive

1278satisfactory samples are received.

1282* * *

1285After the well and plant construction is

1292completed, contact our office for an inspection

1299so that written clearance can be issued. It is

1308prohibited for any Public water system to be

1316placed into use without clearance being issued

1323from this department. (Emphasis Furnished).

132810. SWFWMD approved Budget's new well application and issued

1337Budget Permit No. 579811.01 for drilling a new well. However, upon

1348completion of the new well, there were certain conditions that had

1359to be met as indicated in the letter from the Department dated May

137221, 1996.

137411. On May 31, 1996, and July 10, 1996, Fallah inspected

1385Budget's new water system for compliance and, on both occasions,

1395found that Budget had failed to install the chlorination unit, the

1406flow meter, and had not submitted a well completion report or

1417bacteriological samples.

141912. On July 15, 1996, the Department issued a Warning Notice

1430to Shaikh advising him that the system could not be used until

1442approved by the Department.

144613. For enforcement purposes, the file was transferred to

1455Lewis Taylor, enforcement officer for drinking water systems for

1464Polk County.

146614. On November 14, 1996, Taylor conducted an inspection of

1476Budget's water system and reported that: (1) Budget's well had been

1487placed into service without approval from the Department; (2) there

1497was no chlorinator in operation; (3) there was no flow meter; (4)

1509the Department had not received any bacteriological samples since

1518November 1995; (5) there was no certified operator servicing the

1528motel's water system; and (6) Budget had not provided public notice

1539to its customers of its failure to monitor its drinking water.

155015. A second Warning Notice was issued by the Department and

1561furnished to Shaikh on November 22, 19-96, which in substance

1571advised Shaikh that Budget was in violation of Rules 62-550 and 62-

1583555, Florida Administrative Code, for its: (1) failure to obtain

1593the Department's clearance before placing its new well in service;

1603(2) failure to provide quarterly bacteriological samples; (3)

1611failure to maintain proper chlorine residual in the water system;

1621(4) failure to provide a flow meter in the water system; (5)

1633failure to provide public notification to its customers that its

1643water system had failed to comply with Rule 62-550, Florida

1653Administrative Code; and (6) failure to provide the Department with

1663verification of Budget retaining a certified operator to oversee

1672the operation and maintenance of its water system.

168016. On March 3, 1997, Tagioff and John GoPaul, US

1690Environmental Agency, inspected Budget's water system and found

1698that: (1) there was no chlorine residual in the system; (2) the

1710chlorination unit located at the motel was not in use; (3) there

1722was no flow meter within the system; (4) no quarterly

1732bacteriological samples had been furnished to the Department; and

1741(5) the well had not been cleared for use by the Department.

175317. Based on the testimony of Lewis Taylor which I find

1764credible, the Department has expended the following in the

1773inspection of Budget's water system: (1) 20.25 hours of

1782professional time at a rate of $30.00 per hour for a total of

1795$607.50; (2) three hours of clerical time at a rate of $15.00 per

1808hour for a total of $45.00; and (3) $27.00 in travel costs and

1821postage. The total amount expended in the inspection of this water

1832system by the Department was $679.50.


184118. The Division of Administrative Hearings has jurisdiction

1849over the parties and the subject matter of this proceeding pursuant

1860to Section 120.57(1), Florida Statutes.

186519. Sections 403.852(2),(3),(4),(5),(8), and (16), Florida

1875Statutes, provide in pertinent part as follows:

1882(2) "Public water system" means a community,

1889nontransient noncommunity, or noncommunity

1893system for the provision to the public of piped

1902water for human consumption. . . .

1909(3) "Community water system" means a public

1916water system which serves at least 15 service

1924connections used by year-round residents or

1930regularly serves at least 25 year-round


1937(4) " Noncommunity water system" means a public

1944water system for provision to the public of

1952piped water for human consumption, which serves

1959at least 25 individuals daily at least 60 days

1968out of the year, but which is not a community

1978water system; except that a water system for a

1987wilderness educational camp is a noncommunity

1993water system.

1995(5) "Person" means an individual, public or

2002private corporation, company, association,

2006partnership, municipality, agency of the state,

2012district, federal agency, or any other legal

2019entity, or its legal representative, agent, or


2027* * *

2030(8) "Supplier of water" means any person who

2038owns or operates a public water system.

2045Budget's water system is a noncommunity water system and

2054Budget is a supplier of water.

206020. Rules 62-550.518(3) and (4), Florida Administrative Code,

2068provide in pertinent part as follows:

2074(3) A non-community water system that serves

20811,000 or fewer persons shall monitor at the

2090rate of two samples in each calendar quarter

2098during which the system provides water to the

2106public. In addition, a minimum of one raw

2114sample shall be collected per quarter.

2120(4) The supplier of water shall maintain free

2128chlorine residual of 0.2 milligrams per liter

2135or its equivalent throughout the distribution

2141system at all times. If the supplier of water

2150fails to maintain this level of free chlorine

2158residual, or its equivalent, the supplier of

2165water shall take the necessary corrective

2171action as approved by the Department. . . .

218021. Rules 62-555.320(4)(a) and (8), Florida Administrative

2187Code, provide as follows:

2191(4) Disinfection.

2193(a) All public water systems shall continually

2200have effective disinfection measures employed

2205on the water which the system distributes. The

2213necessary apparatus shall be designed,

2218according to acceptable engineering practices,

2223to maintain a free chlorine residual or its

2231equivalent throughout the distribution system

2236in accordance with Rule 62-550.518(4), FAC.

2242* * *

2245(8) Meters - All community water systems shall

2253be equipped with a metering device that

2260accurately indicates pumpage of finished water.

2266Non-community and non-transient non-community

2270systems shall be equipped with at least an

2278elapsed time clock or other device in

2285conjunction with filed calibration of the pump

2292that will permit determination of flow.

229822. Rule 62-555.345, Florida Administrative Code,

2304provides as follows:

2307Upon completion of construction, the engineer

2313of record or the system's professional engineer

2320who was responsible for overseeing construction

2326shall submit a certification of completion

2332letter to the Department. When the letter of

2340certification and a copy of satisfactory

2346bacteriological results (absence of total

2351coliform in two consecutive daily water

2357samples) and analyses to demonstrate compliance

2363with Chapter 62-550 and, if applicable, Chapter

237062-524, FAC, are received, a letter of

2377clearance to place the facility ( ies) into

2385service shall be issued.

238923. Rule 62-555.350(2), Florida Administrative Code, provides

2396as follows:

2398(2) The supplier of water shall provide

2405responsible operation personnel in accordance

2410with Chapters 62-602 and 62-699, FAC, and the


241924. Rule 62-699.310(1), Florida Administrative Code, provides

2426as follows:

2428(1) All permittees and suppliers of water or

2436wastewater treatment plants shall employ

2441certified operators on-site as specified below.

244725. Rule 62-560.410(2), Florida Administrative Code, provides

2454in pertinent part as follows:

2459(2) Other violations, variances, exemptions.

2464The owner or operator of a public water system

2473which fails to perform monitoring required by

2480Chapter 62-550, Part V., FAC. . . shall notify

2489persons served by the system as follows: (a)

2497Except as provided in paragraph . . . 2(c) of

2507this section, the owner or operator of a public

2516water system shall give notice within three

2523months of the violation or granting of a

2531variance or exemption by publication in a daily

2539newspaper of general circulation, other than a

2546newspaper established primarily for the

2551publication of legal notices, serving the area.

2558Repeat notice shall be given every three months

2566for as long as the violation continues or the

2575variance or exemption remains in effect.

2581* * *

2584(c) In lieu of the requirements of paragraph

2592(2)(a) of this section, the owner or operator

2600of a non-conforming water system may give

2607notice, within three months of the violation or

2615the granting of the variance or exemption, by

2623hand delivery or by continuous posting in

2630conspicuous places within the area served by

2637the system. Posting shall continue for as long

2645as the violation exists or a variance or

2653exemption remains in effect. Notice by hand

2660delivery shall be repeated at least every three

2668months for as long as the violation exists or a

2678variance or exemption remains in effect.

268426. Section 403.860(3), Florida Statutes, grants the

2691Department authority to recover from the violator the Department's

2700reasonable costs and expenses incurred in investigating the

2708violation and prosecuting the administrative proceeding.

271427. The burden of proof is on the party asserting the

2725affirmative of an issue before and administrative tribunal.

2733Florida Department of Transportation v. J.W.C. Company, Inc. , 396

2742So. 2d 778 (Fla. 2d DCA 1981). To meet this burden, the Department

2755must establish facts upon which its allegations are based by a

2766preponderance of the evidence. The Department has met its burden

2776to show that Respondents violated Rules 62-550.518(3), 62-

2784555.320(4) and (8), 62-555.345, 62-555.350(2), and 62-

2791560.410(2)(c), Florida Administrative Code, and the Department has

2799equally met its burden to show that it expended $679.50 in the

2811investigation of this matter and prosecuting the administrative



2821Based on the foregoing Findings of Fact and Conclusions of

2831Law, it is recommended that the Department enter a final order

2842finding Respondents guilty of the violations as charged and

2851requiring Respondents to comply with the Orders for Corrective

2860Action as set out in the Notice of Violation and Orders of

2872Corrective Action in Case Nos. 96- 653PW2442B and 96- 653PW2442C. It

2883is further recommended that Respondents be required to pay the

2893costs and expenses of investigating the violations and prosecuting

2902this matter in the amount of $679.50.

2909DONE AND ENTERED this 27th day of May, 1998, in Tallahassee,

2920Leon County, Florida.



2927Administrative Law Judge

2930Division of Administrative Hearings

2934The DeSoto Building

29371230 Apalachee Parkway

2940Tallahassee, Florida 32399-3060

2943(850) 488-9675 SUNCOM 278-9675

2947Fax Filing (850) 921-6947

2951Filed with the Clerk of the

2957Division of Administrative Hearings

2961this 27th day of May, 1998.


2969Angela T. Hall, Agency Clerk

2974Department of Health

29771317 Winewood Boulevard, Building 6

2982Tallahassee, Florida 32399-0700

2985Roland Reis, Esquire

2988Department of Health

2991Polk County Health Department

29951290 Golfview Avenue, 4th Floor

3000Bartow, Florida 33830-6740

3003Habib U. Shaikh

30064014 Billingsgate Road

3009Orlando, Florida 32839-7515

3012SDS Properties Investors Group, Inc.

3017d/b/a Budget Motel

30201418 Highway 17 South

3024Lake Wales, Florida 33853


3034All parties have the right to submit written exceptions within 15

3045days from the date of this Recommended Order. Any exceptions to

3056this Recommended Order should be filed with the agency that will

3067issue the Final Order in this case.

Select the PDF icon to view the document.
Date: 08/31/1998
Proceedings: Final Order filed.
Date: 08/27/1998
Proceedings: Agency Final Order
Date: 08/27/1998
Proceedings: Recommended Order
Date: 05/27/1998
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 01/05/98.
Date: 02/25/1998
Proceedings: Agency`s Proposed Recommended Order filed.
Date: 02/09/1998
Proceedings: Order sent out. (formal hearing concluded; PRO`s due by 2/24/98)
Date: 01/13/1998
Proceedings: Order to Show Cause sent out. (respondent to respond by 2/2/98 as to why he failed to show at the 1/5/98 hearing)
Date: 08/28/1997
Proceedings: Notice of Hearing sent out. (hearing set for 1/5/98; 1:00pm; Bartow)
Date: 08/19/1997
Proceedings: Order of Consolidation sent out. (Consolidated cases are: 97-003144 & 97-003145) . CONSOLIDATED CASE NO - CN002764
Date: 08/05/1997
Proceedings: Joint Response to Initial Order filed.
Date: 07/24/1997
Proceedings: Initial Order issued.
Date: 07/11/1997
Proceedings: Notice; Request for Formal Hearing, letter form; Notice Of Violation And Orders For Corrective Action filed.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Bartow, Florida

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Related Florida Rule(s) (6):