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State ex rel. Cordray v. Massarelli

Court of Appeals of Ohio, Fifth District

July 24, 2013

STATE OF OHIO, EX REL, ATTORNEY GENERAL RICHARD CORDRAY Plaintiff-Appellee
v.
SHIRLEY A. MASSARELLI Defendant-Appellant

Appeal from the Tuscarawas County Common Pleas Court, Case No. 2010 CV 04 0541

For Plaintiff-Appellee EUGENE H. NEMITZ, JR.

For Defendant-Appellant RICHARD CORDRAY OHIO ATTORNEY GENERAL CASEY L. CHAPMAN L. SCOTT HELKOWSKI ALANA R. SHOCKEY Assistant Attorneys General Envirnonmental Enforcement Section.

JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

OPINION

HOFFMAN, P.J.

{¶1} Defendant-appellant Shirley A. Massarelli appeals the July 10, 2012 Judgment Entry entered by the Tuscarawas County Court of Common Pleas, which found her in violation of R.C. 6109.31, and imposed a civil penalty of $144, 450.00. Plaintiff-appellee is State of Ohio, ex rel. Attorney General Richard Cordray ("the State").

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant owned and operated The Red Onion Bar ("the Bar) and The Red Onion Party Center ("the Party Center). Pursuant to R.C. 6109.21 and Ohio Adm. Code 3745-84-02(A), these establishments were public water systems; therefore, Appellant was required to obtain licenses to operate ("LTOs") from the Ohio EPA, and follow certain regulations for providing drinking water to the public. Appellant was also required to complete applications and pay fees to renew the LTOs.

{¶3} Appellant did not obtain or apply for LTOs for the Bar in 2005, 2006, 2007, or 2008. Appellant was late in submitting the LTO applications in 2009, and 2010. Appellant, nonetheless, continued to operate the Bar and serve drinking water to the public. In addition, throughout substantial periods of her ownership of the Bar, Appellant failed to properly complete the required bacteriological sampling of the water served to the public. Appellant failed to sample the drinking water at the Bar for total coliform during 3 quarters of each year between 2005, and 2009. Appellant failed to monitor the drinking water at the Bar for nitrate in 2004, 2005, and 2008, and for nitrite in 2005. Appellant did not post public notifications for her failures to monitor these chemicals.

{¶4} With respect to the Party Center, Appellant failed to apply for LTOs in 2005, 2006, and 2007, and applied late in 2008, and 2009. Appellant submitted a late application in 2010. Appellant, nonetheless, continued to operate the Party Center and serve drinking water to the public. In addition, throughout substantial periods of her ownership of the Party Center, Appellant failed to properly complete the required bacteriological sampling of the water served to the public. Appellant failed to sample the drinking water at the Party Center for total coliform during 3 quarters of each year between 2005, and 2009. Appellant failed to monitor the drinking water at the Party Center for nitrate in 2004, 2005, and 2008, and for nitrite in 2005. Appellant did not post public notifications for her failures to monitor these chemicals.

{¶5} Ohio EPA made on-going attempts to bring Appellant to compliance. Appellant received her first violation for failure to monitor in 1991. Ohio EPA sent Appellant courtesy reminders, monitoring schedules, notifications, and notice of violation letters. Ohio EPA also made phone calls and conducted on-site visits in an attempt to achieve compliance from Appellant.

{¶6} After these attempts proved unsuccessful, Ohio EPA moved to the next level of enforcement - a bilateral compliance agreement. The bilateral compliance agreement identified the violations and the actions Appellant agreed to undertake to return to compliance. The document was signed by Appellant as well as the Chief of the Division of Drinking and Ground Water. Appellant signed the bilateral compliance agreement in 1999, but did not perform the necessary actions. In 2001, Ohio EPA moved to the next level of enforcement with the Director issuing Final Findings and Orders, and Appellant agreeing to comply with the safe drinking water laws and monitoring schedules. Nonetheless, Appellant's violations continued.

{¶7} In 2010, Appellant submitted an application for the LTOs eight months late. The application was denied due to her noncompliance. Appellant's case was referred to the Ohio Attorney General's Office in September, 2009.

{¶8} On April 30, 2010, the State filed a complaint, seeking injunctive relief and civil penalty against Appellant. The complaint alleged Appellant served drinking water to the public without having the proper licenses; Appellant failed to routinely test the drinking water to ensure its safety for human consumption; and Appellant failed to inform the public of the violations. The State also sought a preliminary injunction. On May 28, 2010, the trial court ordered Appellant to cease operation of the Bar and Party Center until she obtained the necessary licenses.

{¶9} The State filed a motion for partial summary judgment on the issue of liability relative to Counts One through Ten of the complaint. Via Decision filed April 6, 2011, the trial court found Appellant liable for the ten violations. The trial court determined Appellant had not monitored for total coliform, nitrate, and nitrite; had not given public notice of the failure to monitor; and had not timely obtained LTOs before providing drinking water to the public.

{¶10} The trial court conducted a hearing to determine the civil penalties on April 5, 2012. Holly Kaloz, an enforcement coordinator with Ohio EPA, testified regarding Appellant's history of noncompliance, the number of violations Appellant committed, the risk of harm posed by those violations, the economic benefit Appellant received because of the violations, the recalcitrance Appellant exhibited, and the cost of the enforcement since the referral to the Ohio Attorney General's Office.

{¶11} The State filed its Civil Penalty Post-Hearing Briefs on April 13, 2012. Appellant filed her Post-Trial Memorandum on May 4, 2012. Therein, Appellant raised, for the first time, the State's failure to present evidence the Attorney General's Office received a written referral letter from the Director of Ohio EPA. The State filed a Reply opposing Appellant's assertion and attaching a copy of the authenticated referral letter. Appellant ...


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