N. View Home for Adults, LLC v. Va. Dep't of Health

NORTH VIEW HOME FOR ADULTS, LLC v. VIRGINIA DEPARTMENT OF HEALTH

Record No. 1006-20-2

COURT OF APPEALS OF VIRGINIA

MAY 18, 2021

UNPUBLISHED

Present: Judges Huff, Russell and Malveaux

Argued by videoconference

MEMORANDUM OPINION^* BY JUDGE MARY BENNETT MALVEAUX

FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY

J. William Watson, Jr., Judge

Mark Englisby (Bourdow, Bowen & Ellis, on brief), for appellant.

Grant E. Kronenberg, Assistant Attorney General (Mark R. Herring, Attorney General; Donald D. Anderson, Deputy Attorney General; Paul Kugelman, Jr., Senior Assistant Attorney General and Section Chief, Environmental, on brief), for appellee.

North View Home for Adults, LLC ("North View") appeals an order of the Mecklenburg County Circuit Court ("circuit court") that upheld the Virginia Department of Health's ("VDH") determination that North View's water system qualifies as a "waterworks" under Virginia law. For the following reasons, we affirm the decision of the circuit court.

I. BACKGROUND

North View is an assisted living facility owned by Beverly Hargrove in Mecklenburg County. The facility, which operates year-round, provides assisted living for residents with mental illness and intellectual disabilities. Prior to October 2017, the facility used a single well on its property as the water source for its residents and staff.

In February 2016, VDH sent a letter to Hargrove explaining that, based on North View's responses to a VDH questionnaire, the water system at North View appeared to meet the definition of a "waterworks" as defined in Code § 32.1-167.¹ That code section defines a waterworks as "a system that serves piped water for human consumption to at least 15 service connections or 25 or more individuals for at least 60 days out of the year."

On June 8, 2017, VDH held an informal fact finding proceeding ("IFFP") to determine if the water system serving North View was a waterworks. The presiding officer issued a case decision on August 7, 2017, finding that the water system did qualify as a waterworks under the statute and its corresponding regulation.²

North View challenged the decision and requested a formal hearing. Prior to the formal hearing, VDH learned that North View had modified its water system in October 2017 by installing and connecting a second well and reconfiguring some pipes within the facility to use water from the second well. By request of VDH, the hearing officer remanded the case back to the agency for consideration of whether the water system, as modified, still met the definition of a waterworks. VDH conducted a second IFFP on August 6, 2018, and on November 9, 2018, the presiding officer issued a case decision upholding the earlier determination that the water system met the definition of a waterworks.

Following the second IFFP, North View again requested a formal hearing. On May 22, 2019, a formal hearing before a hearing officer was held in which the parties presented evidence as to whether the facility's water system was a "waterworks" per Code § 32.1-167.

VDH provided the hearing officer with Virginia Department of Social Services ("DSS") records showing that the total capacity of the facility is twenty-three residents. DSS inspection reports further reflected that North View had eighteen residents in care in April 2019, twenty residents in care in June 2018, twenty-one residents in care in August 2016, twenty-one residents in care in May 2016, twenty residents in care in May 2015, and twenty residents in care in June 2014.

At the hearing, Hargrove testified that North View staff assist the residents with "daily living activities such as bathing [and] brushing their teeth." Staff at the facility also serve breakfast and dinner to residents each day and clean up following the meals.

At the time of the hearing, the facility had two full-time and eight part-time employees. Prior to the recent death of a staff member, North View had had eleven employees. Hargrove described the facility's schedules as follows. All residents attend day programs from 8:00 a.m. to 4:30 p.m. From Monday through Saturday, between 8:00 a.m. and 4:00 p.m., two staff members and Hargrove generally are present at the facility. From 4:00 p.m. to 6:30 p.m., two different staff members are on duty along with Hargrove. Another two staff members work the night shift, which starts at 6:30 p.m. On Sundays, two staff members are present throughout the day. Hargrove testified that the maximum number of staff present at the facility at any time is four. She also stated that there are few visitors to the facility.

Hargrove further testified that she added a second well to the property in October 2017 "[t]o try to divide the population" and because she was thinking of expanding the facility. North View provided a diagram of its facility, which consists of a single building. The diagram shows that one well, labeled "Well #1 Residents," is connected to a three-basin sink in the kitchen, the men's restroom, another restroom, the laundry facility, and an eighty-gallon hot water tank. The second well, labeled "Well #2 Staff," is connected to a restroom adjacent to the main office, astaff restroom in the kitchen area, a handwashing sink, a utility sink, and a fifty-gallon hot water tank. Ron Hargrove, North View's maintenance director, testified that one pipe from each well directs water into the facility. At the hearing, a representative of DHS did not "contest that the facilities are separated, and that the well water is distinct between the two" as the wells came "[f]rom separate sources."

North View also introduced a document titled "Rights and Responsibilities of Residents" that includes the provision that "staff is not permitted to use any facilities distinctly labeled and or assigned for use by the residents only, this includes bathroom and kitchen area as indicated." North View also provided a document titled "Standard Operating Procedure" that indicates that the purpose of the policy is "[t]o keep the users of the two wells located on the premises of North View . . . limited to separate, distinct populations that are limited to 24 users." The procedures document further indicates that staff are not to the use the bathroom located in the resident area and are instead only to use the staff restroom.

Hargrove testified that staff are subject to discipline for violating these procedures, and that to her knowledge, no staff member had violated the policy against use of the residential bathroom. Further, she testified that residents do not have access to the staff bathroom, which is "locked off." Hargrove testified that staff members do not prepare food for themselves in the kitchen. North View also provided a picture of a sink in its facility labeled "Employees Only."

Bernard Proctor, an engineer with VDH, conducted a site visit of North View. During the hearing, he described the kitchen and dining area as "open" and "one large room" with the kitchen at one end and no dividing partitions. If they were in the dining area, residents would be able to walk up to and access the kitchen sink and handwashing sink in that room. Proctor admitted that there were no residents present during his site visit and therefore he did not observe any residents using staff sinks.

Following the formal hearing, on August 23, 2019, the hearing officer provided his recommended decision recommending that the State Health Commissioner ("the Commissioner") affirm the findings of the prior IFFPs that North View's water system qualified as a waterworks under Code § 32.1-167.

VDH issued its case decision on September 19, 2019, in which the Commissioner found that the water system at North View met the requirements of a "waterworks" as defined by the Code. The Commissioner found that North View provided "water for human consumption to 25 or more people 60 or more days a year" based on the DSS inspection reports and Hargrove's testimony that demonstrated that "[t]he population served consist[ed] of 18 to 21 residents . . . and 10 staff, of which 7 [were] present on most days." The Commissioner also noted that the population served may be greater because the facility's license allows as many as twenty-three residents and, until recently, North View had employed eleven staff members.

On November 20, 2019, North View filed a petition for appeal in the circuit court. On July 8, 2020, the circuit court held a hearing on the matter, and on August 3, 2020, issued an order affirming the Commissioner's decision. In its order, the circuit court found "that the agency acted in accordance with applicable law, did not commit any procedural errors, and there is substantial evidence in the agency record to support the decision of the State Health Commissioner that [North View's] water system is a waterworks under the Public Water Supplies law." This appeal followed.

II. ANALYSIS

The Virginia Administrative Process Act ("VAPA"), Code §§ 2.2-4000 to -4031, authorizes judicial review of agency decisions. See Code § 2.2-4027. On appeal of an agency decision under the VAPA, the party complaining of agency action "bears the 'burden ofdemonstrat[ing] an error . . . subject to review.'" Va. Bd. of Med. v. Hagmann, 67 Va. App. 488, 499 (2017) (alterations in original) (quoting Code § 2.2-4027). Such errors include as follows:

(i) accordance with constitutional right, power, privilege, or immunity, (ii) compliance with statutory authority, jurisdiction limitations, or right as provided in the basic laws as to subject matter, the stated objectives for which regulations may be made, and the factual showing respecting violations or entitlement in connection with case decisions, (iii) observance of required procedure where any failure therein is not mere harmless error, and (iv) the substantiality of the evidentiary support for findings of fact.

Code § 2.2-4027.

"Under the VAPA, the governing standard of review depends on the nature of the controversy." New Age Care, LLC v. Juran, 71 Va. App....