Opinion
No. 71-382
Decided July 12, 1972.
Public utilities — Waterworks and sewage disposal system — Public Health Council — Powers and duties — R.C. 3701.34 — Hearings — Necessity — R.C. 6111.17 — Findings.
The Public Health Council, under the provisions of R.C. 3701.34(C) and R.C. 6111.17, is required to conduct hearings in cases where the law demands that the council shall give such hearings and reach decisions on the evidence presented, and the council is required to make findings and conclusions; and elucidate in writing such decision and the basis therefor.
APPEAL from the Acting Director of Health.
Appellant, the Forest Hills Utility Company, is a waterworks and sewage disposal system company servicing customers in the Forest Hills Subdivision in the city of Heath, Ohio.
By letter, dated February 3, 1971, the chief engineer of the Ohio Department of Health directed Forest Hills Utility to make certain improvements in its water system. On February 9, 1971, Forest Hills Utility notified the Health Department of its financial inability to install the equipment until the Public Utilities Commission authorized a rate increase or provided authority to borrow $150,000. Application for authority to make such a loan was pending before the Public Utilities Commission.
On April 12, 1971, the Acting Director of Health found that the water supply of Forest Hills "is subject to the danger of contamination * * *; and that the public health of the community served is endangered by reason of the existence of an inadequate public water supply; and that the Forest Hills Utility Company has not complied with Section 3701.18 and Sections 6111.13 and 6111.14 of the Revised Code."
In accordance with R.C. 6111.16, a hearing was held before the Public Health Council on May 8, 1971, relative to the finding of the Acting Director of Health. On the obverse side of the paper bearing that finding a certification signed by the Secretary of the Public Health Council, dated June 11, 1971, indicated that the finding " was approved by the Public Health Council, after hearing, at a special meeting of the council held May 8, 1971." (Emphasis added.)
On May 15, 1971, the Acting Director of Health issued an order to Forest Hills Utility to:
1. Provide a certified operator of the water supply system within 30 days.
2. Provide reports of operation and bacterial analyses of water to the Department of Health.
3. Operate disinfection equipment.
4. Provide adequate storage of treated water.
5. Secure necessary plan approvals before construction is begun as required under R.C. 3701.18.
On the obverse side of the paper bearing that order a certification signed by the Secretary of the Public Health Council, dated June 11, 1971, indicated that the order " was approved by the Public Health Council at a regular meeting of the council held on May 15, 1971." (Emphasis added.)
The cause comes to this court upon appeal by Forest Hills Utility from the May 15, 1971, order of the Acting Director of Health, pursuant to the provisions of R.C. 6111.24.
Messrs. Lucas, Prendergast, Albright, Gibson, Brown Newman and Mr. Rankin M. Gibson, for appellant.
Mr. William J. Brown, attorney general, and Mr. James A. Laurenson, for appellee.
Appellant, Forest Hills Utility, challenges the authority of the Director of Health to order improvements and changes in a waterworks system where the Public Health Council has, after due notice and hearing, approved his finding, without stating the reasons therefor.
R.C. 3701.34 delineates the powers and duties of the Public Health Council and provides, in part:
"The Public Health Council shall:
"* * *
"(C) Conduct hearings in cases where the law requires that the department shall give such hearings and reach decisions on the evidence presented, which shall govern subsequent actions of the director with reference thereto * * *." (Emphasis added.)
In addition, R.C. 6111.17 reads, in part:
"After the hearing provided for in Section 6111.16 of the Revised Code, if the Public Health Council determines that improvements or changes are necessary and should be made, the Director of Health shall notify the * * * person owning or operating such water supply or water-works system to make improvements, corrections, and changes * * *. The order of the director and the time fixed for making the improvements or changes shall be approved by the council * * *." (Emphasis added.)
The record before our court in this case certifies that a hearing, pursuant to R.C. 6111.16, was conducted by the Public Health Council, but that record is devoid of any independent determinations, findings or conclusions of the council. The only communication from the Public Health Council is the certification signed by the secretary, dated June 11, 1970, which merely approves the acting director's finding. A separate determination of findings by the Public Health Council must be made, after hearing with notice, and included in the conclusions of the council.
Further, our reading of R.C. 3701.34(C) and R.C. 6111.17 compels the determination that these two statutes contemplate that the Public Health Council, after due notice and hearing, make findings and conclusions and elucidate in writing such decision and the basis therefor, in approving the finding of the Director of Health.
The Public Health Council did not come to a decision in this case in accordance with the provisions of these statutes. The certification made by the Public Health Council on June 11, 1971, approving the order of the Acting Director of Health of May 15, 1971, does not comply with the statutory requirements, and is, therefore, unreasonable and unlawful. Such order is reversed and the cause is remanded to the Public Health Council for further consideration in accordance with this decision.
Order reversed.
O'NEILL, C.J., SCHNEIDER, HERBERT, STEPHENSON, LEACH and BROWN, JJ., concur.
STEPHENSON, J., of the Fourth Appellate District, sitting for STERN, J.