99-000655 Department Of Health vs. Robert J. Gorman Status: Closed Recommended Order on Friday, June 25, 1999.

Summary: Respondent operated three limited use community public water systems without permits. A $500 administrative fine per violation is recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 99-0655

)

ROBERT J. GORMAN, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on

April 26, 1999, in Fort Pierce, Florida, before Patricia Hart

Malono, a duly-designated administrative law judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Donna L. Korora

Chief Legal Counsel

Department of Health

620 South Dixie Highway

Stuart, Florida 34994

For Respondent: Robert J. Gorman

1209 Delaware Avenue

Fort Pierce, Florida 34950

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in

the Administrative Complaint dated January 8, 1999, and, if so,

the penalty which should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated January 8, 1999, the

Department of Health ("Department") charged that Robert Gorman

violated Section 381.0062, Florida Statutes, and Chapter 64E-8,

Florida Administrative Code, by operating three limited use

community public water systems without the required permits. The

charge was based on Mr. Gorman's failure to apply for operating

permits for the three wells which provide water to three duplexes

Mr. Gorman owns and rents. Mr. Gorman timely filed a request for

a formal hearing in which he asserted that the Department had

exceeded its authority in requiring the permits and the

information requested to be submitted with the application for

the permits. 1/ The Department transmitted this matter to the

Division of Administrative Hearings for assignment of an

administrative law judge.

At the final hearing, the Department presented the testimony

of Bruce J. McLeod, an environmental supervisor with the St.

Lucie County Health Department. Petitioner's Exhibits A through

F were offered and received into evidence. Mr. Gorman testified

in his own behalf, and Respondent's Exhibits 1 and 2 were offered

and received into evidence. At the Department's request and

without objection from Mr. Gorman, Sections 381.0061 and .0062,

Florida Statutes, and Chapter 64E-8, Florida Administrative Code,

were officially recognized. At the request of Mr. Gorman and

without objection from the Department, the complaint for

declaratory relief filed by Mr. Gorman in the Circuit Court for

the Nineteenth Judicial Circuit in and for St. Lucie County,

Florida, on April 19, 1999, was officially recognized. The

gravamen of this complaint is the unconstitutionality of the

statute and rules underlying the administrative complaint filed

against Mr. Gorman by the Department.

No transcript of the proceeding was filed, but the parties

timely submitted proposed recommended orders, 2/ which have

been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department of Health, including the county health

departments such as the St. Lucie County Health Department

("County Health Department"), are responsible for supervising and

controlling limited use public water systems. Section

381.0062(3), Florida Statutes (1997).

2. Mr. Gorman is the owner of three duplexes located at 120

and 122 Laidback Way, Fort Pierce, Florida; 140 and 142 Laidback

Way, Fort Pierce, Florida; and 160 and 162 Laidback Way, Fort

Pierce, Florida. The duplexes were built in 1982 and 1983 and

each contains two units which are available for rent. Water is

piped into each duplex from a well located on the property.

3. The wells providing water to 120 and 122 Laidback Way

and to 140 and 142 Laidback Way were inspected by the Department

of Health and Rehabilitative Services in May 1994 and found to be

satisfactory pending results of water tests. Two-day

bacteriological analyses were conducted on May 2 and 3, 1994, on

the wells serving these two properties, and the results were

satisfactory. 3/

4. The 1994 inspection report for the well serving the

property at 120 and 122 Laidback Way reflects that it had the

following equipment: a one-half horsepower pump; a 30-gallon

"p tank"; a 20-gallon water softener filter; and a 30-gal lon

brine tank. The 1994 inspection report for the well serving the

property at 140 and 142 Laidback Way reflects that it had the

following equipment: a one-half horsepower pump; a 20-gallon

"p. tank"; a 25-gallon water softener filter; and a 40-gallon

brine tank.

5. In a letter dated August 21, 1998, the County Health

Department notified Mr. Gorman that he needed to submit the

application enclosed with the letter and a $140.00 fee to bring

the "permit" to current status for the property located at 140

and 142 Laidback Way. The letter was inartfully composed and

conveyed incomplete information regarding the nature of the

permit. The letter did, however, contain reference to "Chapter"

381.0062, Florida Statutes, and Chapter 64E-8, Florida

Administrative Code, and it also provided notification that

Chapter 64E-8 required quarterly sampling of limited use public

water systems for bacteria and a lead and nitrate test every

three years.

6. The County Health Department sent Mr. Gorman an

identical notice, dated August 21, 1998, regarding the property

located at 160 and 162 Laidback Way.

7. The County Health Department sent Mr. Gorman a somewhat

different letter, dated August 31, 1998, regarding the "Limited

Use Public Water Systems" for the property located at 120 and 122

Laidback Way. The letter notified Mr. Gorman that his permit to

operate the "referenced water system has expired as of

September 30, 1998." The letter reiterated the information

contained in the August 21 letter and requested in addition that

Mr. Gorman submit "a minimum 8.5 x 11 inch site plan of the

system, drawn to scale, that accurately identifies the location

of the source of water in relation to property boundaries and

contaminant sources, i.e., well must be 75 feet from septic

system, etc." and an "[e] quipment list: pump, tank, softener,

automatic chlorinate, etc., manufacturer, model #, and capacity."

Finally, Mr. Gorman was notified of the permitting and testing

fees and told that the "[a] pplication with required site and

equipment information must be submitted with necessary fees

within 30 days receipt of this notification."

8. Mr. Gorman responded with a letter dated October 16,

1998, in which he posed several questions to the County Health

Department:

Do you understand that these are duplexes?

Are all rental properties including single

family subject to these regulations? Can you

give me a valid reason why rental units of

two units or more should be subject to

quarterly bacterial testing (I believe the

statute only authorizes it annually) and not

all other residential properties, public

facilities or otherwise that might use well

water?

Mr. Gorman requested a response to his questions but did not

provide the information, applications, and permit fees requested

in the letters dated August 21 and August 31.

9. In a letter dated December 14, 1998, sent certified mail

with return receipt requested and referenced as a Notice of

Violation, the County Health Department notified Mr. Gorman that

he was operating limited use community public water systems

without a permit at 120 and 122, 140 and 142, and 160 and 162

Laidback Way and that he had not provided

the following required information:

· Signed, dated application form.

· An operation permit fee of $75.00 for the

initial permit.

· A site plan of the property that

accurately identifies the location of the

well in relation to property, boundaries

and contaminant sources such as septic

tank systems.

· Capacity/size, model and brand information

on system components.

· Well completion report if available or

year well was installed if known.

· Required chemical analysis results

(lead and nitrate).

· Initial satisfactory two-day source

(well) water and system water

bacteriological tests results.

Mr. Gorman was told to contact Bruce McLeod within five days of

receipt of the notice. Although Mr. Gorman received the notice

on December 16, 1998, he did not respond.

10. The County Health Department had not, as of the final

hearing, received any reports of illness attributable to the

water from the wells at the subject properties, and it does not

have any reason to believe that the wells are contaminated.

11. Mr. Gorman had not, as of the final hearing, submitted

the applications, permit fees, or information requested by the

County Health Department, and he had no operating permits for the

wells providing water to the subject properties.

12. The evidence presented in this case is sufficient to

establish that the wells providing water to the three duplexes

owned and rented by Mr. Gorman each contains two rental units and

are limited use community public water systems. Mr. Gorman must

have operating permits for the wells providing water to these

properties.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties pursuant to Sections 120.569 and .57(1), Florida

Statutes (1997).

14. In its administrative complaint, the Department seeks

to impose on Mr. Gorman an administrative penalty consisting of

the assessment of an administrative fine. Therefore, the

Department has the burden of proving by clear and convincing

evidence that Mr. Gorman committed the violations alleged in the

complaint. Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Co. , 670

So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

15. Section 381.0062, Florida Statutes (1997), provides in

pertinent part:

381.0062 Supervision; private and certain

public water systems.

(1) LEGISLATIVE INTENT. It is the intent

of the Legislature to protect the public's

health by establishing standards for the

construction, modification, and operation of

public and private water systems to assure

consumers that the water provided by those

systems is potable.

(2) DEFINITIONS. As used in this section:

* * *

(b) "Department" means the Department of

Health, including the county health

departments.

* * *

(f) "Limited use community public water

system" means a public water system not

covered or included in the Florida Safe

Drinking Water Act, 4/ which serves five or

more private residences or two or more rental

residences, and provides piped water.

* * *

(h) "Person" means an individual, public

or private corporation, company, association,

partnership, municipality, agency of the

state, district, federal, or any other legal

entity, or its legal representative, agent,

or assignee.

* * *

(j) "Private water system" means a water

system that provides piped water for no more

than four nonrental residences.

* * *

(l) "Public water system" means a water

system that is not included or covered under

the Florida Safe Drinking Water Act, provides

piped water to the public, and is not a

private water system. For purposes of this

section, public water systems are classified

as limited use community or limited use

commercial.

(m) "Supplier of water" means the person,

company, or corporation that owns or operates

a limited use community or limited use

commercial public water system, or a private

water system.

* * *

(3) SUPERVISION. The department and its

agents shall have general supervision and

control over all private water systems, and

public water systems not covered or included

in the Florida Safe Drinking Water Act (part

VI of chapter 403), and over those aspects of

the public water supply program for which it

has the duties and responsibilities provided

for in part VI of chapter 403. The

department shall:

(a) Administer and enforce the provisions

of this section and all rules and orders

adopted or issued under this section,

including water quality and monitoring

standards.

(b) Require any person wishing to

construct, modify, or operate a limited use

community or limited use commercial public

water system or a private water system to

first make application to and obtain approval

from the department on forms adopted by rule

of the department.

(c) Review and act upon any application

for the construction, modification,

operation, or change of ownership of, and

conduct surveillance, enforcement, and

compliance investigations of, limited use

community and limited use commercial public

water systems, and private water systems.

(d) Require a fee from the supplier of

water in an amount sufficient to cover the

costs of reviewing and acting upon any

application for the construction,

modification, or operation of a limited use

community and limited use commercial public

water system, of not less than $10 or more

than $90 annually.

(e) Require a fee from the supplier of

water in an amount sufficient to cover the

costs of reviewing and acting upon any

application for the construction or change of

ownership of a private water system serving

more than one residence, of not less than $10

or more than $90.

(f) Require a fee from the supplier of

water in an amount sufficient to cover the

costs of sample collection, review of

analytical results, health-risk

interpretations, and coordination with other

agencies when such work is not included in

paragraphs (b) and (c) and is requested by

the supplier of water, of not less than $10

or more than $90.

(g) Require suppliers of water to collect

samples of water, to submit such samples to a

department-certified drinking water

laboratory for contaminant analysis, and to

keep sampling records as required by rule of

the department.

(h) Require all fees collected by the

department in accordance with the provisions

of this section to be deposited in an

appropriate trust fund of the department, and

used exclusively for the payment of costs

incurred in the administration of this

section.

( i) Prohibit any supplier of water from,

intentionally or otherwise, introducing any

contaminant which poses a health hazard into

a drinking water system.

(j) Require suppliers of water to give

public notice of water problems and

corrective measures under the conditions

specified by rule of the department.

(k) Require a fee to cover the cost of

reinspection of any system regulated under

this section, which may not be less than $25

or more than $40.

16. On the basis of the facts found herein, the St. Lucie

County Health Department was acting within the authority granted

to it in Section 381.0062 when it required Mr. Gorman to apply

for a limited use water system operating permit for the wells

providing water to his three rental duplexes.

17. Chapter 64E-8, Florida Administrative Code, was adopted

by the Department to implement Section 381.0062, among other

statutes governing drinking water systems. Rule 64E-8.004,

Florida Administrative Code, governs limited use water system

operating permits and provides in pertinent part:

(1) Annual permits are required for all

limited use systems, except those systems

registered per s. 64E-8.004(6). Annual

operating permits expire September 30.

(2) By September 1st each year, the owner

of a non-registered Limited Use System shall

submit the following items to the county

health department:

(a) A completed Form DH 4092A;

(b) A $75 operating permit application fee

the first year, and then a $70 annual

operating permit fee each year thereafter;

however, any initial operating permit fee for

a system put into operation after March 31 is

$35;

* * *

(d) For the initial permit, evidence that

the water meets rule 64E-8.006(1)(a) chemical

MCL's and a recent, satisfactory two

consecutive day source water microbiological

survey;

(e) For the initial permit, a minimum size

8.5 X 11 inch site plan of sufficient clarity

to be reproduced successfully onto microfilm;

(f) For the initial permit, the

capacity/size, model, and brand of all system

components; and

(g) A well completion report the first

year, if available, and then any time a well

is replaced.

(3) Upon receipt of satisfactory items in

rule 64E-8.004(2) and a satisfactory sanitary

survey, the department shall issue

authorization on Form DH 4093 to operate the

system.

18. On the basis of the facts found herein, the St. Lucie

County Health Department was acting within the authority granted

to it in Rule 64E-8.004 to require Mr. Gorman to apply for a

limited use water system operating permit for the wells providing

water to his three rental duplexes and to submit with his

application the permitting fee and the information required in

the final Notice of Violation sent to Mr. Gorman in the letter

dated December 14, 1998.

19. On the basis of the facts found herein, the Department

has satisfied its burden of proving by clear and convincing

evidence that Mr. Gorman has been operating the limited use

community public water systems at 120 and 122, 140 and 142, and

160 and 162 Laidback Way without a permit in violation of Section

381.0062 and Rule 64E-8.004.

20. Section 381.0061, Florida Statutes, specifies as

follows:

(1) In addition to any administrative

action authorized by chapter 120 or by other

law, the department may impose a fine, which

shall not exceed $500 for each violation, for

a violation of s. 381.0065, s. 381.0066, s.

381.0072, or part III of chapter 489, for a

violation of any rule adopted under this

chapter, or for a violation of any of the

provisions of chapter 386. Notice of intent

to impose such fine shall be given by the

department to the alleged violator. Each day

that a violation continues may constitute a

separate violation.

(2) In determining the amount of fine to

be imposed, if any, for a violation, the

following factors shall be considered:

(a) The gravity of the violation,

including the probability that death or

serious physical or emotional harm to any

person will result or has resulted, the

severity of the actual or potential harm, and

the extent to which the provisions of the

applicable statutes or rules were violated.

(b) Actions taken by the owner or operator

to correct violations.

(c) Any previous violations.

21. The Department did not present any evidence that harm

resulted from Mr. Gorman's refusal to apply for an operating

permit for the wells on his three rental duplexes or that the

probability of harm existed. The Department did not present

evidence that Mr. Gorman had committed any previous violations of

Section 381.0062 or Rule 64E-8.004. On the other hand, Mr.

Gorman's failure to apply for the permits was willful. 5/ The

penalty of $500.00 for each violation suggested in the

Department's Proposed Recommended Order is consistent with the

penalties set forth in Section 381.0061(2), and there is no

apparent reason to deviate from the Department's proposal.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Health enter a

final order:

1. Finding that Robert J. Gorman is guilty of three

violations of Section 381.0062, Florida Statutes (1997), because

he failed to obtain operating permits for the limited use

community public water systems he maintains at 120 and 122, 140

and 142, and 160 and 162, Laidback Way, Fort Pierce, Florida; and

2. Imposing an administrative fine in the amount of

$1500.00, or $500.00 for each of the three violations.

DONE AND ENTERED this 25th day of June, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of June, 1999.

ENDNOTES

1 Mr. Gorman further asserted that Section 381.0062 and the

rules implementing that statute are unconstitutional both

facially and as applied. Neither an administrative law judge nor

an agency head has the authority to declare a statute or an

existing rule unconstitutional. That power resides with a

district court on appeal from the final order entered in an

administrative proceeding or with a circuit court in an

appropriate civil action. See Department of Business Regulation,

Division of Alcoholic Beverages v. Ruff , 592 So. 2d 668 (Fla.

1992); Palm Harbor Special Fire control District v. Kelly , 516

So. 2d 249 (Fla. 1987).

2 In his Proposed Recommended Order, Mr. Gorman requested that

this case be placed in abeyance prior to entry of a recommended

order pending resolution of the declaratory judgment action. The

request is DENIED.

3 The record does not contain any information regarding the well

serving 160 and 162 Laidback Way.

4 The parties agree that the wells on Mr. Gorman's properties

are not governed by the Florida Safe Drinking Water Act.

5 Mr. Gorman's refusal to apply for the permits is based on his

belief that the statute and rule underlying this proceeding are

unconstitutional facially and as applied to him. This

justification for his action does not affect the recommendation

regarding the appropriate penalty which should be imposed in this

case. See footnote 1, above.

COPIES FURNISHED:

Donna L. Korora

Chief Legal Counsel

Department of Health

620 South Dixie Highway

Stuart, Florida 34994

Robert J. Gorman

1209 Delaware Avenue

Fort Pierce, Florida 34950

Angela T. Hall, Agency Clerk

Department of Health

2020 Capital Circle, Southeast, Bin A02

Tallahassee, Florida 32399-1703

Pete Peterson, General Counsel

Department of Health

2020 Capital Circle, Southeast, Bin A02

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this R ecommended O rder. Any exceptions to

this R ecommended O rder should be filed with the agency that will

issue the F inal O rder in this case.