Arapahoe County Board of Health - Regular Meeting

WELCOME.

GOOD AFTERNOON. I'D LIKE TO CALL THE ARAPAGO COUNTY BOARD OF HEALTH BUSINESS LEADING TO ORDER. MS. FANGS, WILL YOU PLEASE CALL THE ROLL. NEW SPEAKERS? NEW SPEAKERS? NEW SPEAKERS? NEW SPEAKERS? NEW SPEAKERS? NEW SPEAKERS?

He's here. He just put in the chat.

His audio broke up, but he's here.

Here.

I think we're getting a lot of the audio from you all.

Item number one, license revocation hearing.

This is a hearing before the Arapahoe County Board of Health regarding the retail food establishment license of Shack Hoos. LLC, DVA, Tandoori Deli Along. We are asked to determine whether to revoke the restaurant's license for violations of the Colorado Food Protection Act and regulations. The tone of this hearing will be informal. First, we will hear a presentation from Arapahoe County Public Health staff. Then we will take comments and hear from the restaurant owner if they are present. The ACPH staff may then respond to the restaurant's comments Board members may ask questions at any time and do not need to hold their questions until the end. This board will then make a finding whether there has been a violation of the Food Protections Act and Food Code regulations and determine if there is sufficient evidence to revoke CHAP rules. BBA, Tandori, Dele, Palals, Retail Food Establishment License. Ms. Cavacci, can you please lay the foundation for this hearing?

Hi there. The Board of Health has authority to conduct this matter under Colorado revised statute sections 25-1-508, paragraph 5, 25-4-16-11.5, paragraphs 9 and paragraph 8, and 24-4-104 and 105, which is the administrative procedures F. The licensee, Charcruz LLC, doing business as Tandori Deli Halal has been provided the required 30-day notice via first-class mail. And I'll just remind you that the burden of proof in this situation is on the agency, so on Arapahoe County Public Health, to show violations were committed by a preponderance of the evidence, which means that the violation is more likely true than not. So you can proceed with the hearing.

You will now hear argument. Oh, no, wait a second. Presentation by representatives of Arapahoe County Public Health. You will now hear argument for revocation from Arapahoe County Public Health staff. Please make sure to introduce yourselves before you begin.

Thank you, Director, and thank you, Board of Health, for being present during the matter regarding a license revocation for potential license revocation of a retail food establishment. My name is Josh Skaggs, and I'm a supervisor with Arapahoe County Public Health in the Health Protection and Response Division and part of the Environmental Health Program. I will be presenting this case to you today. The primary inspector for this facility, Environmental Health Specialist Vanessa, is here as well. So depending on your questions that you may have, I may refer to her with answering those specific questions. I'm happy to take questions during the case if you have them. I have a paper copy of the exhibits that I will pass to you now, but they will be digitally and put up on screen if you would like and as needed during the presentation. So we're going to get started with the purpose of today being today's hearing is to inform you about the persistent violations observed with a retail food establishment called Tandori Deli Halal. Tandori Deli Halal is owned and operated by Shakruz LLC. The registered agent and reported owner is Shakruz Erkenold. In the clip for you, we will show that Shakruz LLC and Tandori Deli Halal have had pervasive non-compliance with food safety regulations. Additionally, we will show that all efforts have been made to bring the facility into compliance to protect public health. And despite our best efforts, the only path left available for protecting the public is to revoke the license. To that end, and because of the severe food safety violations, we will recommend that the Board of Health revoke the Retail Food Establishment License issued to Kandori Deli Halal and Shakru's LLC. Generally speaking, we want to go through some statutory authority first. And so our request for revocation comes from the authority delegated to us by the state health department to conduct inspections and enforce the Food Protection Act. This statute allows for the department to seek revocation of a retail food establishment license when they violate the act and the food safety regulations of the act as well. This hearing is held before you as the Board of Health. due to the authority provided to you under the Public Health Act and to ensure due process rights are followed with the hearing and your authority provided, you will have the ability to revoke the Retail Food Establishment License as mentioned under the Administrative Procedures Act and the Public Health Act. For some background and what you can expect to hear during this meeting, Chikru's LLC's Tandori Deli Halal is located within Arapahoe County In the city of Aurora at 4034 South Parker Road, this business was acquired by Chacruz LLC in November of 2024. Arapahoe County Public Health is familiar with the establishment as we conduct regulatory inspections at Tandori Deli Halal as a condition of them having their retail food establishment license. For the purpose of this case, we will review reports and actions taken since March of 2025. We have conducted inspections before March of 2025 at the establishment, but those inspections under this owner were inspections and regulatory work done to bring the facility both up to code and provide a solid educational foundation for a successful start to the business. Additionally, before Shakru's LLC took over operation, Tandori Delhi Halal, was the same business operated by a different organization that was previously issued a civil penalty for the issues that will be presented in the case today. Ownership changed as soon as regulatory efforts began. So we will continue the review of the current establishment and ownership under Shakruz LLC. To that end, we've had 29 points of contact with the establishment since March of 2025. 18 of those were routine regulatory inspections used to determine compliance with food safety regulations. Those inspections resulted in regulations and ratings of either pass, re-inspection required or closed. And these ratings impact the inspection frequency. Of those 18 inspections, only six resulted in a pass rating We did dedicate three compliant assistance visits, which are conducted to provide education and guidance in a non-regulatory framework and environment. The other eight inspections conducted were opening inspections, which do not have ratings associated with them and are done to open a facility if their license was suspended. Approximately 130 hours of staff time More than that was spent across these 29 points of contact. Most of our retail food establishments get one inspection a year, which over 83% passed that initial inspection. We generally spend on average one to three hours per inspection. Despite the educational efforts you will hear about, you will see the facility has a history of noncompliance, and what may appear as either unwilling or deliberate violations of food safety. In addition to our educational efforts, we also took some regulatory efforts to curb poor food safety behavior, including monetary civil penalties and license suspensions. And this was due to the 197 food safety violations observed since March of 2025 to May of this year. Arapahoe County Public Health has also issued a public health order to close in response to willful and deliberate violation of the facility opening and conducting business with the suspended food license. The food license suspended due to an imminent health hazard and excessive number of severe violations. So before the Board of Health, you have a list of exhibits, A through double I, that demonstrate the history of noncompliance and will be referenced in this hearing. So that sets the background Now let's get into the regulations. So the Colorado Retail, in order to understand the violations and the history of noncompliance with this facility, you will hear reference to the regulations, which are the Colorado Retail Food Establishment Regulations. Also sometimes colloquially referred to as the Food Code or Food Safety Regulations in this case. These references are adopted or these regulations are adopted by the state of Colorado and the state department of health. And these regulations almost fully incorporated the nationally recognized FDA model food code. And we are following the current 2022 version. The FDA food code is the model food safety code and serves as a means of having scientifically backed guidance for food safety and sanitation to prevent foodborne illness. The Food Code generally has the following major five risk factors as known for causing foodborne illness, and these are based on national epidemiological outbreak data. These include improper holding temperatures, inadequate cooking, contaminated equipment, food obtained from unsafe sources, poor personal hygiene. Kandori Deli Halal has had violations in all five of these categories. Additionally, the food code lists citable offenses as priority, priority foundation, or core violations. Correction of priority violations directly eliminate hazards known or have been associated with foodborne outbreaks. Priority foundation violations are those that support elimination of priority violations, where a priority violation might not be washing your hands appropriately. Priority foundation violation might not be having soap in a hand sink. And then core violations are general sanitation, maintenance and operating procedures, such as having instructions at a hand sink for staff to wash their hands. The food code also sets guidance for inspectors on when to cite violations and the means for consistent application of code of the provisions to eliminate food safety hazards. We will take a brief look at an inspection report here in just a second. So we'll pull up an exhibit for you in just a moment. Now, 29 inspections, again, were conducted or site visits were conducted between March of 2025 and May of this year. Except for dedicated educational site visits, most all regulatory inspections are unannounced and unscheduled. Routine inspections are just that, routine, where re-inspections are conducted when the facility does not meet the requirements to pass a routine inspection or have adequate control over food safety hazards. Usually when a re-inspection is required, the facility is given notice and a timeframe of when that re-inspection may occur. At these inspections, inspectors utilize a checklist to evaluate the food safety that's happening on site. And a copy of the report that you'll see here momentarily is provided to the operator at the end of every inspection. And the violations are discussed with the operator at the exit interview, as well as corrective actions that they have taken or need to take to correct those hazards. We will start with taking a look at Exhibit E, and we'll pull that up on screen for you to review. While that is being pulled up, Exhibit E is going to be a copy of an inspection report for the facility. This specific inspection report is going to be the second routine inspection that was conducted during this timeframe. But prior to this inspection, they had three other inspections. On the first page across the top, in the tiniest text you'll ever see, we're going to have the facility information and the type of inspection. Below that are violations numbered one through 29, which are direct risk factors of causing foodborne illness. The second column you'll see indicates whether the issue was found to be in compliance, out of compliance, not applicable or not observed during that inspection. And column three is going to be a slight description or category of that violation context. Column four refers to whether that violation was corrected on site during the inspection, and column five indicates if that particular violation was a repeat violation, meaning it was observed on prior inspections. If we go to the next page of this report, you'll see a list of good retail practices, one more back, a list of good retail practices on this page, which includes facility maintenance, testing devices, thermometers, and water supply, but at the bottom of that page, you'll see the inspection results given to them during that inspection, meaning the rating that was assessed to this facility in this particular inspection report was closed. So that was the rating associated with this one. You will further see a point scale associated with that rating, but the points are not included in the report due to how they just do not provide enough information on this report to adequately assess food safety with just a number. Additionally, On the following pages, you will start to see some of the food safety violations that were observed and comments made by the inspector themselves about the violations to provide context for the operator on how to correct that. We will take a quick look at violation eight, which you see on the bottom of the shown page there. This particular violation, just by way of example, shows improperly hand washing where staff were not washing their hands using the effects method or at the right hand washing sink and the action taken to correct it, including talking to the person in charge to let them know about the violation that was observed, a comment about it being a repeat violation and the citation text from the code. And if we scroll down a little bit more as one of the last attachments in this inspection reports, it's gonna be about two more or three more pages in, you will see, one more, you will see that we did issue a closure order due to an imminent health hazard. Most of the imminent health hazard closures you see presented to you during this case today are in reference to the facility not having what we call active managerial control. That means, essentially, the person in charge let foodborne illness risk factors get out of control to the point that they ran rampant without correction by the person in charge. And this will be demonstrated by the number of violations observed and the pervasiveness of those violations, which leads to the rating that we saw, which in this case was closed. Now, we're not going to go through all the violations as much as you want to today, all 197 of them, but the next slide will outline some of the violations you could expect to see on some of these reports. So we're going to go back to the presentation slides, and we will start taking a look at just some of these example violations and what they mean. On this slide here, you'll see some of the violations that were noted on the inspection specifically at this facility, all occurring at different inspection times, with the exception of the third bullet point, which indicates that the facility repeatedly instructed to have food safety train manager on site and didn't have one available at multiple inspections shown through exhibits B through AA. The reports do not include the public health reasons, but we provide that information to the operator, so you won't see the public health reasons here. It's also worth mentioning that some of these other violations were observed at multiple times, but because they were direct quotes, I didn't copy in exhibits where it was not a direct text word for word. Now, the first point we see here is a violation where a food handler was observed working with food with an open and exposed wound on their arm, highlighting poor staff training and the manager not taking corrective action when they observed that issue. The second point you see is undercooking of raw poultry prior to the service of that product, which happened on multiple inspections. We recall from the prior slides, this issue has been indicated to causing foodborne illness in the past across the nation. And the fourth bullet point you'll see up here indicates raw animal proteins stored over ready to eat food, which is colloquially known as cross-contamination. These are all foodborne illness risk factors. They have all been observed at the facility at least once. And since these are direct quotes, I'm not including reference to other exhibits where similar undercooking or cross-contamination events occurred. Yes, sir.

Josh, the second bullet, it says one batch was only cooked to 160 degrees Fahrenheit.

What should it have been? Yeah. So in order to eliminate salmonella and other pathogens from the chicken, we need that cooking temperature to be at least 165 degrees Fahrenheit for at least one second. For at least? One second. Okay. Instant cook. Okay. Thank you. Thank you, Derek. So to this extent, I'm happy to answer other questions about reports. You have the exhibits in front of you if you would like to look them or view them at the board's direction. But continuing on to the next slide, I want to showcase some examples. of some of the food safety violations that are also available to you in the exhibits as well. These are provided in exhibit II. These are all photos that the inspector obtained during the food safety, during the inspections that showcase food safety violations. There are approximately 31 pages of these photos, but I'm only highlighting three of these here. Most of these photos that you'll see in exhibit II are going to be temperature violations, but The ones you see here from left to right, with the first one showing a blocked hand sink, could have led to missed hand washing opportunities during that inspection if staff couldn't access the hand sink. This middle photo shows food being stored outside on what we would call a spit or vertical broiler, which could be cooked. Food stored outside leaves it exposed to pests and other environmental contamination. And finally, the last photo up on screen shows a test of sanitizer. And that test showed it was at a toxic level. When the test strip turns black instead of purple, it shows that there's too much sanitizer. That sanitizer is used for cleaning dishes and also used for cleaning food preparation tables within the establishment.

So they had too much sanitizer. I thought they had so poor, like they washed it in dirty water. But you're saying that the water was clean, just too much chemicals.

They had both sides of the equation where they had some sanitizer and some inspections that was too toxic and some sanitizer on some inspections where it was nonexistent. They weren't sanitizing their dishes at all. These photos are provided to you, and I'm happy to discuss any of these as you see fit. And again, there's plenty more examples in Exhibit II, but to keep the case truncated today, we will carry on unless you want to go through any specific ones. So that being said.

You actually talked to the own instance.

Correct. Yes. So all inspection reports and violations that are presented to you in these exhibits have been shared with either the person in charge at the facility and worship crews are going off the registered agent for Kandori Delhi law. So they have been made aware of all the violations across multiple inspections at multiple times. And to that point, and up on screen here, I wanted to call out the history of this facility since March of 2025 to make it a little more easier to understand and see and visualize. On the left table, you will see the 18 regulatory inspections that were conducted. As shown on the right, green means that they passed the inspection, yellow means the inspection resulted in a rating of a re-inspection, and red means that the rating was closed. Handoree deli halal. had seven routine inspections since March of 2025. And as we recall, those are unannounced, unscheduled inspections. The facility would not know when the inspectors would be there. And these unscheduled inspections, we think, best shows the inspectors the condition of the facility during normal day-to-day operations because they don't expect us to be there. Tandori Delhi Halal did not pass a single routine inspection during this time period. on re-inspections when the facility knew that we would be coming back within a specific timeframe. There were times where they had opportunity to prepare and which is why you might see a pattern of some past inspections specifically equated to those re-inspections. But re-inspections have some of those past ratings because they know coming back. Now, this pattern shows that the facility only tends to follow good food safety practices when they know we will be coming back. But otherwise they operate without due regard to food safety. A facility that follows good food safety practices generally passes their routine inspections, but this facility has not passed a single one of those. We'll hear more about those numbers in a minute, but generally our pass rate is roughly 85% on that initial inspection. or subsequent re-inspections for all 2400 plus inspections we conduct in a given year. I want to further highlight the pattern of non-compliance we see here and the out of control food safety practices by this chart you see up on screen. This page has all of the food safety violations added together that were observed since March of 2025 to May of this year. The first item I want to call out is the blue bar at the bottom, which indicates the 197 violations I indicated were observed by inspectors across their inspections. This equates to roughly 11 violations across the 18 regulatory inspections. Now of those 197 violations, 163 of those violations were repeat violations, meaning that the facility was made aware of these on prior inspections, and allowed the items to persist across multiple inspections, which indicates that their behavior did not change across these inspections. And finally, this chart shows the clearly pervasive, numerous, and persistent violations that the facility would not remedy or correct long-term despite educational efforts made and provided to the facility, including immediate correction actions that our staff would take during these inspections. Education is our main means of compliance, so let's explore that. We provide education at every single one of our inspections where we provide food safety education and educational resources for correcting violations at every contact, meaning the facility had 29 points of contact with an inspector and roughly 68 hours of time with a dedicated food safety specialist where they had the opportunity to ask questions and learn from the inspectors. Even if Tandoori Deli Halal would not take the time to get the required training themselves, we were there to provide them that assistance to hopefully get food safety compliance. Now, every violation is discussed with the person in charge at the end of the inspection, so they're aware of what we observed and what to work on during the inspection. But the inspector provides comments and additional public health reasons throughout the inspection, not just at the end, to provide real-time guidance and to allow for correction by the operator. The inspector would also attach educational resources to the email that they provided to the operator if they didn't provide those resources on site. And these resources would provide an opportunity for the person in charge to refresh themselves on what they learned during that inspection, and so they could use those resources to train their staff as well. Additionally, the inspector ensured that the facility had three dedicated food safety trainings made available and that were conducted at the facility. first was conducted in October of 2025, prior to true regulatory actions being taken. And then additionally, a couple more were done in order to help curb behavioral practices that we saw leading to enhanced or further enforcement activities. So we were attempting to keep them from facing enforcement activities or regulatory efforts.

Did you ever see that the same people or any of these Like, did they have consistent staff? Or every time you went, it was a different group of staff?

So during our March of last year to current, facility had approximately six consistent staff, two of those being managers and four being direct food handlers. That's not including the owner that was there on one or two inspections. So it was roughly the same crew and same managers across all the inspections.

Does this owner own other restaurants?

To our knowledge, they don't own a permit within our county. this owner largely operates in the state of Virginia. So we don't have records for that. So the next two food safety trainings, like I said, happened as we started to see repeated closure ratings occurring, and we were trying to have those trainings to attempt to prevent further closures at the establishment from occurring. And then additionally, our inspector offered free use of translation services at inspections where we were concerned that the person in charge might have had difficulties with understanding the services or the results of the inspection being communicated to them. Those interpretation services are offered for free. Arapahoe County Public Health outdoors those charges so we can ensure that the inspections are fair and equitable.

Is there a way to search if this owner aims other restaurants, not in Arapahoe County, like Denver, Jeffco, is there any way to search that, to warn that other health department?

Good question. So to the extent that the state health department might have those organized files within their state database, there may be a potential route for doing so. However, with the way the Food Protection Act is written, it leaves it up to each county to monitor and verify. And that being said, food safety practices change from restaurant to restaurant as well. So they might be doing things at other restaurants that aren't as risky if this owner does indeed have other restaurants. From my conversations with Chagrouz Ergunoglu, he said he is no longer based in Colorado following the actions taken against this facility. So I take that to mean he doesn't own any others within our jurisdiction or within the state of Colorado. Overall, Arapahoe County Public Health has dedicated an abundance of time and resources to help steer the facility away from enforcement, but ultimately to attempt to protect the public's health to no avail, which leads to the regulatory actions that we have taken. So when education doesn't work and pervasive and repeated poor inspections occur, this department has an obligation to protect public health and take regulatory efforts to protect the public's health. And additionally, we can use these efforts to hopefully try to curb poor food safety practices we see. One of these regulatory actions that occurred on multiple inspections is where the inspector had requested the facility to voluntarily condemn food they found unsafe for human consumption, where that food could not have been reconditioned or made safe otherwise. A couple of these reasons for the discard of some food was finding it out of temperature control, which would allow for the growth of phaginic bacteria, which may have led to it to probably have been dangerous for consumption if served to the public. There were also times when food was discarded when it was found to be unwholesome, which typically in our lingo means it was found wholly or spoiled and stored or potentially about to be used within the facility, as well as some other reasons.

Is this throwing away or destroying or whatever food? Is that, I was Fixed on site. What is it? Correct. Correct. Thank you. Does that mean it was corrected on site if it was discarded?

Good question, director. It depends on the context, but I mean, very basically, if we found food in a refrigerator and that refrigerator is not working and they discard the food, that was a corrective action. But the overlying cause is the broken fridge and they can't fix that during the section. Okay. But with moldy food, they throw that out. Yes, they corrected that on site. Okay. Thank you. I appreciate that. Um, Additionally, our team has issued two monetary civil penalties in accordance with the Food Protection Act. And this is for having multiple inspections, consecutive inspections in a row that did not pass. The Act allows us to issue a civil penalty under circumstances where the facility had four out of five consecutive inspections in a row where the facility did not have a pass rating. One civil penalty was issued back in November, shortly after the training we provided to them, and another in May of this year. And while both of those monetary penalties were paid, the violations persisted. In addition to those regulatory actions, the retail food establishment license was suspended on eight occasions, all for having too many severe and pervasive food safety violations that demonstrated that food safety was not a priority and it led to unsanitary conditions. For closures, this accounts for roughly 0.5 to 1% of all 2400 plus inspections that this department conducts. So it is a very, very rare or infrequently used tools. This accounts for roughly 10 to 25 inspections per year and this facility had eight. When the license was suspended, we mostly suspended the license until the facility was able to correct those outstanding food safety violations, meaning the facility could have an opportunity to open as soon as they came into compliance with the food code and receive written approval of their license being stated. And the next regulatory action we took is after our most recent license suspension on May 13th, which occurred due to a large number of violations that led to unsanitary conditions. And the facility was instructed to contact us and get written approval before open and operating after that incest suspension. Our inspector went back at the facility's request. So they understood the requirement. They called us back two days later to attempt to reopen. And on May 15th, We found that the facility was still in operation and was instructed to remain closed as they could not open safely to serve food. When our team did not hear back by the following week, they went out on their own and found the facility was open and operating without a valid retail food establishment license. So essentially operating with a suspended license. despite being provided on multiple occasions, the need to obtain written approval to reopen, as well as a list that we provide them on what they need to do to reopen. This willful and deliberate operation was directly in violation of the Food Protection Act. And as we have reached a point where the facility was openly and blatantly violating the Food Protection Act statute, we moved forward with a public health order instructing the facility to close until a hearing could be made about their license, which brings us to today. There are some statutory thresholds that must be met for revoking a license. And first is that there must be a violation of the Food Protection Act, which we have presented to you in exhibits B through DD. Next, we need to provide notice of hearing to the owner at least 30 days beforehand, which this was mailed and emailed to the owner at least 30 days before. So this notice was sent out on June 1st via mail, but sent out on May 29th via email to the owner, which is 35 days before today's hearing. Lastly, we had to notify the operator of their due process rights, which we did at multiple inspections, but which I will just summarily showcase with exhibit case, exhibit G here, which is called a notice of potential fines and closure, which affords them the opportunity to understand the grievance process afforded to them within law. All these conditions have been satisfied, which takes me to my final point, which is based on the documented history of numerous persistent and pervasive severe food safety violations, and in the best interest of the public's health and the safety of Arapahoe County residents and visitors, we at Arapahoe County Public Health recommend that the Board of Health revoke the Retail Food Establishment License issued to Tandori Deli Vlog, owned and operated by Shakru's LLC. That's it for my case that I'm making on those points. Again, I'm happy to make questions, but I also understand there is a order to the hearing for you to go through. Thank you.

So the next section is a presentation by the property owner. If the restaurant owner is here, the board will hear from you now. You may cross-examine public health staff and present any other arguments or evidence for the board to consider. Please make sure to introduce yourself before you begin. Good night. And they're not online.

Alexandra Holmes and Brian Contreras. Alex is part of our staff.

Alex is part of our staff. Oh, thank you.

I'm from Arapaho, Kenya as well. Thank you.

Thank you.

Thank you for everyone's presentation. Board members, it is now time for us to discuss and determine how best to proceed. The issues we are asked to decide is whether there has been sufficient evidence presented to show a violation of the Colorado Food Protection Act and the Food Code regulations, and whether these violations are sufficient for the revocation of the Retail Food Establishment License of Tandori Deli Halal.

So you all can discuss. I have given all three of you a copy of the proposed order for replication. If you want to take a break so that everyone has a chance to read through it. And I think Hannah emailed or sent an electronic copy to all the participants online. And so... Monica, I had just sent it to Sean and Bita. So let me just send it to them. Okay.

I could read it. Okay.

The board members have any thoughts?

I think it is apparent that the establishment is committed to public health and safety. I see no reason to

enable them to continue in business.

Anyone on launch? Sean, Mark, Dylan, Terrence, Michelle, any thoughts?

Hi, everybody. Yeah, I would just add that, you know, per the case that was presented, the number of opportunities that the businesses had to have corrective behaviors on their own And the fact that they were willful and wanton in staying open past a suspension to me tells me that they're not interested in, you know, not taking risks with their patrons' health. And that makes me incredibly concerned.

Can you hear me? Yes. Yeah, I agree with that. And this is quite egregious in my opinion. And I don't,

am in full agreement with what has been said yes yep yeah i just want to say i agree too i i would argue i haven't seen a case disagree just or heard about a case disagree just nationally i think our staff spent a year too long in trying to work with them. It was clear from numerous violations that they had no intention of addressing any of those issues. And so I don't even think it's a, you know, I don't think it's a realistic conversation about what we should do. We have to really protect the public's interests. And I don't, you know, and I just, I applaud our staff for being patient and working with them for as long as they did and doing a great job. So thank you to the staff for working through that.

especially because they had consistent staff. Like you saw the same people that you trained when you went over. It wasn't like every time you went, there were six new people.

Hey, you have a question about that. If this, if Tendori Deli Halal loses their business license, all of those folks could potentially go elsewhere. Is what, like, how do we manage that type of education? And I mean, it could just be like poor management and we, having a better manager who's more reliable about food safety could be the, you know, seal the deal. But what does that look like?

Is it directed, a question directed towards me?

Any of them, yeah. I guess anyone who could answer that question.

So when you have systemic issues at a restaurant, we typically find it starts from the top down, meaning that when a manager is not taking control of a facility, food loan illness risk factors get out of control. So yes, the staff could conceivably go to other locations and operate their But with the good operators that we see across our county, we would like to see that those would be corrected by that manager. Because again, most of our restaurants pass their inspections. And that's generally because they have dedicated managers, owners that care and take the time to correct food safety issues and prevent them from reoccurring.

Maybe Mark had his hand up, but then took it down. So Mark. online. Do you want to jump in?

Yeah, thank you. I'd like to start by giving an incredible thanks to the staff. I mean, the work with this case is tremendous. Other comments from fellow board members. I think Arapahoe County went up and beyond to try to assist this operator to get things back together. But clearly, in my opinion, zero interest to try to do what was necessary here. But my focus here is primarily kudos to the staff that go in the extra distance. Maybe outside of this hearing discussion, I'd welcome maybe offline a conversation about just how much resources go into situations like this where, again, it seemed from what I read and what was presented today that Arapahoe County just really went up and beyond And this one, an incredible amount of resources spent on a facility that really seemed to have zero interest in their responsibility around protecting public health. But again, kudos to the staff. Great presentation today that really laid out a very compelling case. Thank you.

Proposed motion. I move for the Board of Health to approve the following. Based on the record presented, there is sufficient evidence to support a finding that Chukru's DBA, Tandori Deli, has had numerous ongoing and pervasive violations of the Colorado Food Protection Act and of the Food Code regulations. And despite repeated opportunities to correct the violations and achieve compliance, Tandori Deli has continued to engage in operational practices that pose a risk the public health sufficient to justify revocation of the restaurant's retail food establishment license, and the Board approves adoption and issuance of the written order for revocation as presented. Ask for a second.

There is. I second.

Ask for a second. All in favor say aye. Aye. All against?

Aye. Aye. Hi. Okay, thank you. All again, say hi. Thank you. Motion passes anonymously.

And I see that Sean has to sign this. Oh, I actually printed off one that has your name on it. So let me find one that has your name.

I printed off a bunch of them.

Would folks entertain a quick question related to this case? Yes.

So it sounds like this operator knowingly had gone back in and operated the facility even after they were closed. Does Ratbo County Public Health envision locking the facility so that there truly is no more business conducted at that address? Is that something that's even allowed, Monica?

I'm sorry, repeat your question.

To your question, Mark, when licenses were evoked, we conduct site visits to determine if the facility continues to operating without a valid license. in those cases and when that occurs, if it occurs for this facility, which it hopefully shouldn't, and they have not been found operating since we closed down. But if we found them doing so, then we would petition the courts for an injunction to essentially have a court order suspending or closing the business or preventing their operation, in which case that order would carry potential jail time and additional fines. But Arapahoe County Public Health does not have the authority to just want the business itself.

Thank you.

Yes, we are ready to move on. I am handing out the script and the proposed motion for the second matter.

And it's the same. So script with those, oh, it's not for you guys.

It's for you. You know what? I will give you the final so that you can mail it because I don't have your certificate of service. And Josh, I will also give you the design copy of the order.

You can sign the certificate of service. Thank you. Okay, this will move forward.

This is a presentation regarding the onsite wastewater treatment system, OWTS, concerned at 23900 East Ohio Avenue, Aurora, Colorado, 80018. We are asked to determine, one, whether or not there has been a violation of the Colorado Onsite Wastewater Treatment System Act and the Arapahoe County Public Health Onsite Wastewater Treatment System regulations. And two, Whether this board will issue civil penalties against the property owner for these violations. And three, whether the OWTS at this address constitutes a nuisance violation. Now go to presentations by representatives of Arapahoe County Public Health. You don't have to speak.

I don't. But just to clarify, so this is not a full hearing like we just had for the revocation. We did provide notice to the property owner via email notification. And so they were given the opportunity to come and testify in front of you. And so if they come, then you are welcome to take testimony from them and hear from them. But the This is a presentation mostly for you to determine whether there have been violations of the OWTS statute and whether this constitutes a nuisance, and then also for issuance of civil penalties, all of which you're able to do without a full hearing. What does require a hearing is if the board or staff ask for issuance of a cease and desist order, which would essentially kick them out of the property of the home And so that would require a full hearing, but we're not at that point yet.

So now we have a presentation by Steve.

Thank you, Director, and thank you for setting the context. As Michael mentioned, this item is to inform the board about the continuing violations I went into a subject system at 23, not under 80. Wow.

Can you speak up a little louder?

Yeah. I think that was.

Thank you.

We're discussing the continued violations related to the subject system at 23900 East High Avenue. This is unincorporated for Avalon County, but it's got an Aurora address. The violations were identified during the transfer of title or use permit inspection process for a real estate transaction, and these have remained unresolved, although we've had repeated communication, site follow-up, and formal notices from Avalon County Public Health. At this time, we're requesting the board to review the information that we're presenting here today and also find that the property owner is a violation of the Arapahoe County ODPTS regulations and assess civil penalties due to this continued noncompliance. We're also requesting that the board require corrective actions to bring the septic system into compliance, including obtaining the required repair permits that are associated with it, completing the required repairs, and then securing the damaged tank area, preventing sewage from surfacing and obtaining our approval for continued use of the septic system. I'll jump into the background. This property, as I mentioned, is located at 23900 East Ohio Avenue and it's served by a septic system. During the transfer of title inspection or the use permit inspection process pending the real estate transaction, we received information from the third party inspector The subject correctional performed the inspection of the system and noted that it required repair and further evaluation before we could continue to process this to use permit. This isn't out of the ordinary at all. Whenever they run into situations where it might get a little squirrely, these professionals will give us a heads up and let us know that there's going to be some bumps in the road as we try to work through, knowing that we're up against a deadline with closing of the real estate transactions. We're trying to push all these things through and get things repaired in a timely manner.

That's the question about that. If an inspector does inspect something and approves it, they can issue. Do they still have to come through and wrap the whole account They still do, but they're sending an approved letter. And you're just sending.

Yeah. So they send us a, it comes in with the application for the permit, but it's a whole inspection form that they check yes, no, and a, and lets us know what's going on with the system. And just to remind the board, the sale of a property that's on the septic system as required by our regulations is an event that requires a use permit to ensure this third party inspection, just to make sure that the, the system is dysfunctioning how it's supposed to prior to that transfer of ownership so that we're not handing off a system to a new owner that's not functioning correctly. So after we received this initial communication from the subject professional, we responded back to that subject professional on February 26th and requested that this information also be forwarded to the property owner that the system has some issues with it. One of the issues was the tank, the secondary tank. The secondary tank was in such condition that it was deteriorating and also had a large excavation around it, so it wasn't a safe situation. Based on the tank condition, we requested that the property owner immediately fence off this area to protect people, children, and pets from falling in, and then they take necessary action to keep sewage from surfacing and pump the contents of the tank as much as necessary just to prevent surfacing sewage.

Thank you.

And if you want me to .

That's perfect.

So we went back and forth with the septic professional and exchanged quite a few emails. In the packet, there's 15 pages of record communication, just showing our extent of efforts with this property. The independent septic inspector also noted that the tanks had never been pumped since the system was installed. This is abnormal. Usually they're pumped about every four years, and the system, I believe, was installed in the early 90s. The inspector also reported that there was no surfacing effluent there.

When was the tank installed? How many years ago?

I believe it was in the early 90s. I think 1992. I've never been. Wow. When it was. Okay. 97. Yeah.

So it's been a while.

So the inspector noted that there was no surfacing at the moment, which is great. But they noted that the cell treatment area needed further investigation because it is so deep. So they weren't able to do their normal inspection process where they probe the field to determine how well it is functioning. They needed to send a camera of the lines to be able to do that. And they weren't able to do that at the time of the inspection. The inspector also reported that the tanks were over full, but they didn't appear to be overflowing over the top. Also, great news.

Except, it means they're leaking.

potentially because of the condition of the tank.

And no core samples were done.

No core samples were done.

That's not a requirement.

Probing of the septic field is part of a standard that the inspectors have to follow as part of their certification. So, yes, it's not something that we require, but as part of their certification, they do have to do that just because they're a third-party inspector. They tried, but it was too deep. They couldn't locate the area of the field. Then on March 3rd, we circled back with the property owners to see how things were going. We informed them that a transfer of title or use permit couldn't be issued because of the required repairs and couldn't do that until they were completed. We continued to follow up with the property owner and the subject professionals throughout March. Information received during follow-up, doing the back and forth with the subject professional, confirmed that the secondary tank was in the point of needing replacement. There was also a diverter valve that needed to be excavated for evaluation. And then also the field required further evaluation too. The only component that the inspector could verify was the primary tank in terms of the condition. And even that was missing a lid. So the lid is required to be on the tank just for safety reasons as well. Then on March 16th, the then current property owner reported that caution tape had been placed around the excavation area. And when the lid was off, her dog had gone down into the tank area and had to be removed. So it shows the need for additional fencing around this. We requested additional photographs of the fencing and signage and later advised that more caution tape for fencing was recommended here. Um, after that, uh, there's radio silence from the then property owner. And on April 3rd, we learned from, uh, the septic inspector, uh, that the, uh, sale of the property had closed without repair of these issues. And, uh, we had not issued a use permit for the property.

So is that even like a legal agreement? If we said you can't close on this property because this, I mean, not that we want to get into that, but like,

Yeah. So it's something that the title companies should be checking for before they push that title through and is a common process for them to ensure that use permit has been issued by us.

So who of all those people, the realtors, the owners, the buyer, the title company, who is most liable for this mistake? We just turned it into a panel of attorneys.

Oh, yeah.

Okay. And your realtor didn't mention it, the title company. I mean, I bought houses, title companies are cheap.

Yeah. In terms of liability, I don't know.

Certainly there's a potential for other cases outside of what we're doing here today.

I'm also assuming that if these people have a septic system, they're also like on well water? Are they like, is the water table so deep that they're not worried about their septic leaking into their water system?

So typically, wells are 600 to 800 feet deep, and there shouldn't be impact from the septic system, but that is only if the well casing is intact. So there's potential. But we also have setbacks between the septic system and the wells for that reason. It's not out of the possibilities, but it could happen. So after the property had closed, we had to take some time to try to track down the new property owner. We were able to do that and we issued, and I should go back. Since the use permit wasn't issued to the prior property owner, it now becomes the new property owner's responsibility to obtain this use permit. And so since we didn't have one from this new property owner, we issued a notice of violation to try to get the wheels turned in to get them to do these repairs. So we issued that on April 17th to Fernando Garcia. We mailed this certified mail to the property. And although we didn't have a use permit application, or we did have a use permit application submitted to us, those repairs hadn't been completed. And so we hadn't issued that use permit. Our notes violation identified the section 18.1D of our regulations, which states that no person shall... construct or maintain any dwelling or other occupied structure that's not equipped with adequate facilities for the sanitary disposal of sewage, and then we gave them 48 hours to apply for a repair permit after receipt of the notice. We didn't get any communication from the property owner at that time. Then we started to try to reach out to the property owner again in June. We did a site visit to try to locate that property owner. We were able to meet with a member of their family who then got us connected with the property owner. We had phone calls, emails with this person, and unfortunately, they have decided not to respond to us and with exception of some initial conversations where they had asked what the consequences would be if they didn't obtain a repair permit and did not obtain a use permit. And so here we are today. We've attempted to gain compliance through education, written communication, phone calls, direct follow-up, site visits, formal notices. The repairs haven't been completed. Repair permit has not been obtained. The property remains without an approved transfer of title or use permit. for the use of the septic system. Currently, the condition of the septic system presents a public health and safety concern because the system has a severely deteriorated tank and open tank area that open excavation and then the adequacy of the system for sanitary disposal of sewage hasn't been demonstrated. As outlined in CRS 2510.113 and Section 18.4 of our regulations, Upon finding by the local Board of Health that a person is in violation of the OWTS Act or regulations, the Board of Health may assess a penalty of up to $50 per day of violation. In determining that amount of the penalty to be assessed, the Board of Health shall consider the seriousness of the danger to the health of the public caused by the violation, their duration of violation, and whether the person has previously been determined to have committed a similar violation. Based on that, our recommendation is that the board finds that the property owner is in violation of the Arapahoe County ODBTS regulations, assess appropriate civil penalties up to $50 per day, require the property owner to immediately apply for and obtain a repair permit and submit all required documentation. We'd also like the board to consider requiring the property owner to complete each of the following corrective actions before August 6th through a licensed qualified ODBTS professionals. Professional one is to pump the tank so that the condition can be evaluated. Evaluate the primary tank after pumping just to ensure that it is in a good condition. Add risers to grade and install a secure lid to cover on the primary tank. Replace the secondary tank unless we're able to determine through a system evaluation that the secondary tank isn't needed, and this has to do with the number of bedrooms in the home. We need to determine that, but we also need to talk to the property owner to confirm that. Also excavate and evaluate the diverter valve, including cleaning up debris to determine its condition. Complete a full evaluation of the soil treatment area to determine whether the ODTS is functioning. Submit an updated use permit inspection report completed by a certified septic inspector. Submit a repair verification documentation for any Non-permitted corrective work completed outside of our repair permit. So there's stuff they can do outside of repair permit, but we just have a form that says what they fixed. Complete all required septic repairs and make sure that those are approved by us and then obtain a inspection approval and certificate of use for that septic system. So completing the entire process, you get the repair permit, repairs are completed, and then we can issue that use permit. We'd also like the board to consider to require the property owner to maintain the septic system, the damaged tank area, and surrounded work area in a nuisance-free and secure condition until all required repairs are completed and approved. This includes preventing sewage from surfacing or otherwise being discharged to the ground surface. This is just a catch-all in case something goes drastically wrong with the system. Pumping of septic tanks is necessary to prevent sewage from surfacing. Securely covering any tank opening or damaged area to prevent people and pets from falling in. installing and maintaining a fence or barricading around the damaged tank area, posting the area as restricted until the tank is repaired, and then providing all documentation that's associated with the interim preventative measures. And with that, if the board would like to see photos of the property, I can run through those next.

How close is the next thing?

I can show you on that. It's a fairly large.

You've had some pictures. It's pretty big. Yeah, pretty big.

I don't know.

It should just be. Do you want me to go to a certain page?

Yeah, can you go to 19? It should be hyperlinked on that.

Well, she's going to the photos.

Can you explain the community-wide public health impact of this versus just this property impact?

Yeah. So in terms of the safety issue, anybody could be trespassing and wander on the property. But that also includes wild animals and pets, too. So we wouldn't want anything to happen in that regard. In regards to a public health concern, there are sewer gases that are associated with septic systems. And when you have an unconfined system, then there's potential for sewer gases to collect and provide a nuisance condition.

That's why you don't have a top on.

And then in terms of a neighborhood-wide impact, not as much with the tank being deteriorated, but once that tank completely fails, then there's potential for servicing sewage and depending on the topography of the area. But it is a fairly large property, so the chances of that happening without being able to contain it are pretty low.

So here's a picture of the property itself.

Here's what the tops of the septic tanks look like. This is the primary tank that you're seeing with the risers to grade. The excavation is in the back for the secondary tank.

Look at that.

Here's the secondary tank. You can see some of the perforation in the concrete of the tank. This doesn't give a good scale for how deep that is. But here you can see how deep that pit is.

Are those three, are they like exhaust systems?

Those are like manholes access into the tanks for cleaning, for maintenance.

It's a big tank. There's like three access ports. Yeah, these are... Pretty standard.

Really? Yeah. Just some more photos of the property. This is where the subject field is, where all those vessels are growing on top of it.

We'll plant one.

Yeah, it's very good.

Right. But only right there. We took the rest of the land. So that's what the concern is, is that it's getting enough moisture to grow something, and the rest of the property is growing nothing.

Yeah, typically... You'll see some green on top of septic systems, but when it's important that much plant life, there could be something else going on there for sure.

So here's the aerial view of the property. You can see that the other properties are fairly spaced out. You can see the excavation to the right of the house.

And is this property higher in elevation than the surrounding? Is it on a hill? Is it elevated? Is it possible that any contamination could be coming down to other properties?

I don't know what the topography is. Connor might be able to speak to that. It's great. Since it's so flat, it might just stay on the property. And if it does start to catastrophically fail, you could build a version firms around it, too, to keep it on the property. But we don't know whether that's necessary.

I hope it won't be necessary.

Yeah. Right. I think we have been working with it.

Right. That is it for my presentation. I'll turn it over to the board for consideration.

So if I can just add one of the request for consideration was whether or not this constitutes a nuisance. And so I just wanted to, um, draw your attention to the nuisance statute and the public health act and exactly what it says about it. Um, so it's in Colorado revised statutes, 25 dash one dash five 18. And it says that the County or district board of health shall examine all nuisances, sources of filth and causes of sickness, which are injurious to the health of the inhabitants within the town, city, or county, and it shall destroy, remove, or prevent the nuisance, source of filth, or cause of sickness as the case may require. Just wanted to provide you with that definition.

Mark McMillan. Mark, do you want to speak?

I do. Thank you. Steve, thanks for a thorough presentation. Has the property owner given any rationale for why they have not taken any corrective action? Have they indicated, for example, financial hardship or other circumstances that the board might consider?

Yes. So during initial conversation with the current property owner, they stated that they had received quotes to repair and replace the tank. The quote that they got, I believe, was $20,000, sorry, $30,000, which is extraordinary and not typical. So at that time, Connor encouraged him to get additional quotes and also provided our resource of different septic professionals that they could reach out to to try to get some different cost comparisons there.

So you think that's a high number?

Very.

Is there habitation, anybody living on this property?

Yes. We don't know how many individuals are living on this property. All we know so far is the property owner himself and then his brother, uncle, sorry, his uncle,

In terms of a nuisance, I would think that it would be a nuisance to anybody living there. And if there was nobody living there, then perhaps it might not be a nuisance. But the fact that people are there, I would assume that's a nuisance.

I would agree with you, Director.

But not everyone has $30,000 to shell out for a new septic tank. And it seems like this guy maybe is on the hook for something that he potentially didn't know about. My hackles are up on this one, too. Why didn't we know about this?

Connor, if you wouldn't mind coming. When you discussed with the property owner, did he give any indication that he was aware of this at the time of sale? He was unaware.

He was unaware?

And his realtor was unaware?

One would think that he's got quite a case if he should...

Rachel, I'm one of the environmental specialists. One of the things when we were talking with the seller for this property, Christine Starr, she indicated that the buyers, I don't know if it was this buyer or a different buyer, but that they needed financing to purchase this property. And so the closing, she stated, got pushed out several times. And so there was information about like the well needing to have some work done as well as the septic needing work done. And the excavation that had occurred that you see in the photos, it was communicated to our department that that had happened before closing. So there's some information that potentially, whomever was buying the property, if they're getting financing, the subject system would need to be repaired before that happened. So that was one of the things that was duplicated to us.

In a way, I think there are two different issues. One would think that the new owner might have reason to hire a lawyer and look into the title requirements and whether he was treated fairly in one way or another. But that's not our consideration. Our consideration has to be the safety of the current situation in which I believe there is a nuisance and a reason to take steps to remedy the situation. So that's the way I read it.

I think our next thing has to be the presentation by property. Are you sure? There's nobody online that is not either our staff, board members, or public works. Next thing is board management. It is now time for us to discuss and determine how best to proceed. The issues we are asked to decide is whether there has been sufficient evidence presented to show a violation of the Colorado On-Site Wastewater Treatment Systems Act sufficient to assess civil penalties against the property owner and if the OWTS at this address constitutes nuisance violation as explained to us by Monica. So anyone online, John, Mark, Perry?

Can I ask a question? Yes, Sean.

So I agree. When we say public health and we say a public health nuisance, I would just be clear, looking at the location, when you say it constitutes a public health issue, meaning is it going to affect a large amount of people versus just the neighbors? And so when you get into the issues, I know Mark said that, yes, those aren't our issues related to title and all of those. But I would say we should have to take those into consideration because they affect public health. And it's real common. uh the realtors don't disclose it and what they do will say here here's the document it's one of 300 documents you sign a closing so they they slip it in there and you aren't aware of it you don't understand the cost uh and this is speaking from experience i went through the exact same thing and so yes a homeowner should know but just from the public health implications usually when it's out in the country it might be affecting a few people on the land but it does constitute public health so just be clear on how many people it actually or how many families it actually is affecting so when we say public health and it falls up under our purview you know the impact how many you know families are we talking about it because it is a huge issue from the homeowner's perspectives the amount and everything you have to go through in that context.

John are you saying that this isn't a total public health issue because it really is only impacting the homeowner? Are you saying that it is a public health issue because it is impacting the homeowner?

I'm not clear on your statement. Well, that's my question. Well, that was my question. How many, yeah. Yes, how many local, like how many local owners is the issue affecting? And I understand when it's run off and how it affects, but I guess the question is, is a quantifiable number that we can say this could potentially impact 50 families that live in the area, 25. So is there a quantifiable number to that?

Well, the difficulty is if we choose to do nothing, then that's the precedent that we're setting. And we could have 50 tanks that are deteriorating. And well, we let this guy off, but we're not going to let this guy up. The inconsistency is what it's not how many individuals are walking past the property and could get hurt. It's what is the consistency that we have to maintain for the general public health? I think Mark McMillan has his hand up.

I think that's a pretty good discussion. I don't know if we exhausted that one, but I think it's a good point or an intriguing point that John brings up. Two questions, comments from me. One, Monica spoke to the nuisance piece and wasn't sure what additionally that might add or take away from this case. So Monica, if you can expand on that, that'd be great. And then regarding the potential for a monetary fine, I'm curious what discretion the board has there to potentially suspend a financial penalty against the property owner such that if he does get a result, that there's no financial penalty there. I mean, it sounds as if it's possible that the new homeowner did not know about this expense. To Steve's point, $30,000 seems pretty excessive, but even if it's half or a third of that, it could still be substantial money for this individual. So those are my two questions and comments.

Yeah, so they actually relate to each other and are kind of the same. So the board has discretion on the $50 per day. That's up to $50 per day. So you can decide not to impose any civil penalties. You also do have the ability to impose the penalties. And then if they start complying, then to essentially waive them and say, you can put this amount of money towards the project to getting abatement and whatever else they need to do to remediate the situation. The reason that the nuisance has an impact here is because of those civil penalties, the nuisance statute specifically allows us to then tie those penalties as a lien on the property. And so that would be an option that the board has assuming that the penalties accumulate, you can at some point decide that you want to move forward with executing on those penalties and it would become a lien on the property.

If we declare it a nuisance, it would require the current habitant, people living at the place to leave, which is a form of a fine of nature. And one wonders whether or not that might be a first step is simply to declare a nuisance, also defer for a given period of time, and then start a fine not immediately, but at some time in the future, maybe in a month or six weeks or something like that, to give them an opportunity to address the situation. Otherwise, if they're not making any progress, then the financial penalty goes into effect. But starting first with a nuisance declaration, and then deferring the start of a penalty So we could say the penalty is a dollar a day for 30 days. And if certain things are not made, it goes up to 50 bucks or whatever we might decide.

Can the septic system be disconnected from the house and they put a port-a-potty in?

No, that would be in conflict with our regulations. It wouldn't be an adequate system to serve the property.

And besides the nuisance is the fact that this unsafe thing exists and who wants people living next to it?

Right. If we ask them to vacate the property, that is like a cease and desist, right? And that's like elevating way beyond this, right? Yes.

Okay.

That's not something that we're seeking yet.

Okay.

So there are three... are to this proposed motion. Should we take them individually? You can, yeah. Because it's so complicated. I have one question before I take my question.

Do we have any resources that we can give these folks? I have a lot of heartburn over the amount of, even if it's $10,000 that you weren't expecting to pay. This is a public health emergency or a public health issue and we need to solve it, but I am I got that.

Yeah. Let me offer some perspective.

Okay.

We've reached out consistently to try to make contact with this individual to try to make some first steps to help. Yeah. And we could spread this responsibility over a period of time, but we're getting nothing.

Okay.

In terms of resources, financial resources, we don't have anything to direct force them. There are USDA grants.

Mm-hmm.

but this property doesn't fit in that type of grant scenario. The best that we can do is to try to give them more time and then to offer them the resources of, here's the installers that we work with the most. They're going to turn a burn and get this done and do it right. But we have to have those initial conversations with them, and we've exhausted those opportunities, and that's why we're here.

My second question is about the secondary tank. The secondary tank is deteriorating. Is there a way to, this is such a naive question about wastewater treatment. Is there a way to like stop the secondary tank from receiving effluent?

Not naive at all. So that's a possibility. This system was initially sized for a six bedroom home because they were planning on finishing the basement. So that's why we have two tanks. Typically we see a three bedroom home in one tank. If we can make the determination, that there are only three bedrooms there that we can collapse and abandon the secondary tank and connect the primary tank into the soil treatment area.

Okay. And would that be a cheaper option for them?

Much.

Cool. Okay. Can I add on? Again, we've contacted numerous septic professionals, the seller and the buyer, And one of the complicated pieces of this is that we got a lot of different stories about, for example, what Steve's talking about, of how many bedrooms are in the home, which is how a septic system is sized. So if it's three bedrooms, then you can have that thousand gallon primary treatment tank and then not worry about that secondary tank. However, it's designed for a six bedroom home. And so that's why there's two septic tanks there. That second tank has collapsed and it's, an open excavation. And so one of the septic professionals let us know that the buyer stated they needed the home to be sized for six bedrooms. So again, it's a convoluted picture. At the end of the day, if it's a six bedroom home, then I would need 1750 gallons worth of treatment capacity. So that thousand gallon tank and typically another 1,000 gallon tank in cereals. So, okay.

What about questions? Sorry, I have more questions. It turns out on-site wastewater treatment is like way more fascinating than I originally thought it would be. Like pumping frequency, like could you get away with a smaller tank if you have the higher pumping frequency?

No, the pumping frequency doesn't necessarily have to do with the capacity, is to sell a lot of the black water moves to the solar driven area.

So there's black water and it moves to an open field. Underground. Underground open field. And the pumping is for the solar units.

Yes, to get all the solids out of the tank and also be able to inspect it. You know so much about this. You are always welcome to cut out inspections with us and really get your hands dirty.

I can't go to that restaurant. I'm afraid to go to any restaurant. Any more comments from the board online? Is there anyone else online? No hands are raised. No hands are raised. Any more? Okay, I'm going to do these separately.

Do you want to do a motion for each one?

I don't feel like we have to, because then we can have a discussion on each motion. Correct. Okay, so I move that the Board of Health to approve the following first motion. Based on the record presented, there is sufficient evidence to support a filing finding that the OWTS at 23900 East Ohio Avenue Aurora is in violation of the Colorado Onsite Wastewater Treatment Systems Act and the Arapahoe County Public Health Onsite Wastewater Treatment Systems Regulations and that it constitutes a nuisance in violation of the Colorado Public Health Act.

I second that motion.

Now do we want to have some conversation? OK, yeah, have conversation and then take a final vote on that on that one.

So any discussion? On that.

Mark has his hand up mark. Thank you questions back on that the nuisance. So again, I think I heard from Monica that the. The nuisance finding allowed for a potential lean on the property. assuming that the board goes forward with a financial penalty for a lien in that situation, is that something that can be revoked or is that permanent with the decision here today?

You are not making a decision today on a lien in any way. You're just making a decision on whether or not it's a nuisance requiring the property owner to take steps to bring the property into compliance.

Thank you.

Sorry, go ahead, Mark.

Thank you. Would it come back to the board then to make a recommendation on the lien or where does that decision then get made?

It gets made later on and it would really actually even require a court action. So staff would come back to you asking for approval to file a district court action to have that lien certified by the court and then it would be sent to to the treasurer's office to certify it to the property.

Thank you. So I interpret that to me that it gives Arapahoe County Public Health sort of a bigger hammer, for lack of a better term, but one that does not necessarily need to be used. Is that accurate? Yes. Thank you.

If we declare this property to be a nuisance, what does that mean about people living on the property?

I think that they can, you can decide that. You can decide whether to issue a cease and desist order. The cease and desist is separate from the nuisance. And so it would be a decision for you all. The nuisance does not require you to issue a cease and desist order.

So we have Motion and a second we have another question.

Another question, thank you so I think Steve into the service of staff are not suggesting a cease and desist today is that accurate.

That's correct.

Thank you Steve.

And we have a motion and a second.

All in favor, say aye.

Aye. Aye.

Aye.

Aye.

Aye.

That's four, that's everyone, okay. That one passes. I think I'm gonna go to number three before I do number two. Next motion is the Board of Dudes adoption and issuance of the written order as presented. which details the corrective actions to be completed by the property owner by August 6th, 2026, to bring the system into compliance over 30 days.

Do I have a second? Monica, can we- You need a second to open discussion.

Second. Great. Monica, I was going to say, can we make this motion and present this? like the, it's a written order before we talk about the civil penalty?

Yes, although the proposed order does have the civil penalty language included in it. And so you'd have to make a decision on whether or not you're doing the civil penalty, because then we'll have to take that paragraph out.

So would it be so bad to do the second one first?

So number two, or number three,

Do you want to focus your number three just on the corrective actions that Steve laid out? Okay, we can do that. That's what I thought this was. Go ahead and close the loop on that conversation. And then if we need to make changes to the final order, then we can talk about that at the end.

So am I changing the motion to cut out the words order as presented, which details the corrective actions, because that's what I thought we were voting on, Steve's corrective actions.

Yes. You can have it to the board approves adoption and issuance of a written order not as presented, which details the corrective actions to be completed. So it's all the things that were in that board summary report and that Steve laid out.

People on

line would that make sense to you mark and mark yeah i was seeking some clarification um i don't have the document in front of me though i understand it may be in my email but bb are you basically looking at the motion that lists out the 10 or so things that they need to do in terms of construction of the facility and remediation yeah um in the document there are lines

And it means property owner must complete these things and then our property owner must maintain all this other stuff.

So can you bring back the board summary report? I've got it right here. Okay.

So everyone online should be able to see.

Thank you. I can see it.

This is the BSR, the board summary report with the list of So this is what's in the order.

I'll slowly scroll.

Okay.

Any other questions?

So that's what we're voting on is the recommendations.

So move.

A second.

Okay. Now, all in favor say aye.

Aye.

Aye. Aye.

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Aye. Aye. Aye. Aye. Aye. Aye.

Aye. Aye. Aye. Aye. Aye. Aye. We also determined that the property owner shall be assessed a civil penalty of $50 a day, beginning on Monday, July 6th, and continuing for such time that this Board finds that the OWTS is brought into compliance with the stated statutes and regulations. I need a second before we talk about this.

For a second, can I ask a question?

Steve and the rest of the staff, is it safe for people to be living on this property?

If it was my family, I would not want them to live there.

Before I move on that motion, may I with a

but the chair allowed me to do a substitute, then we can come back to the question of finding.

I don't know what you're trying to do.

What I would like to do is to move that we require that nobody live in the property because it's unsafe.

Oh, so you want to move to a cease and desist.

Yeah.

We can't do that today.

We can't.

We can't. And so the motion that you just agreed to with those list of corrective actions, in the motion it had a date of August 6th, so a month for them to complete these corrections. And after that month, we would have to do another hearing, give full notice. And then at that point you can issue a cease and desist to make sure that nobody is living on the property, but we can't do that today. Okay. Today we can assess the spot. Yes. Today you can assess the fine. Yes.

And the corrective actions. So now I need a second to have conversation. I need a second.

I'll second.

We've got a second. Okay, we got two. Okay, now we can have conversation. Mark. Okay, go ahead, Mark.

Thank you. Thank you, Bibi, for keeping us organized. So my question is one I brought up a little bit earlier in this hearing in terms of whether the board has the authority to potentially defer the penalty, perhaps similar to a commoner question that Dr. Levine made. where it's sort of a minimal penalty, whether it's a dollar or otherwise, but in essence, a financial incentive for the property owner to move quickly. And so more specifically, in terms of my question, I'm wondering if the board has the ability to say, for discussion purposes only here, yes, we will assess a civil penalty of $50 a day beginning on today's date. But that will be deferred or basically go to zero if by some date the property owner addresses all the requirements that are being ordered. Again, is an additional sort of financial incentive to move quickly. So kind of a question again to Monica on is this allowed? And then I welcome feedback from board members if that's even an approach you'd be interested in. Thank you.

That is allowed. Would you want to say that in the order or do you want to just have the order say that civil penalties are going to be assessed starting today and then just leave it open-ended on what the board is going to do with those civil penalties at a future time? So I'll bring up what we did in that Gerard property case before. was you approved for civil penalties to be assessed. The property owner started working on corrections. And then when we had the second hearing, you waived all of those penalties. And so they all went away. So it's just a matter of how prescriptive do you want to be in the order that is sent to the property owner?

I would like the property owner to know that we are willing to waive the penalties if they get on it. I mean, if you can't even communicate with them, that's real difficult. Would that be an incentive for having them to respond? I mean, that's $1,500. They could have done something.

Yeah, I'm leaning towards where Bibi is as well. I think that was Bibi that spoke there and to be explicit in the order about the potential for the daily penalty to be waived if, in fact, they meet the requirements, again, by this date certain, I guess now August 6th. So it's real explicit and, again, hopefully incentivizes the property owner to move quickly. And then if he chooses not to, then we have – Again, the the backstop of the civil penalty, but I like the idea about being over explicit personally.

Thank you.

Motion, but how do we get rid of one and the penalty? I don't have it.

So the motion is still valid because it would be assessing the start assessing civil penalties and so um the waiver is really a decision for next time anyway so it's just a matter of adding it to the written order that is going to be sent out okay yes okay and your recommendation for fifty dollars is a day is to like fix some tension under gear

That's the maximum amount by the statute. But we like, I mean, we, Mark just said, maybe we do it a dollar a day. It's like a, with that, I mean, that's fine. Yeah. Yeah.

And that's not my recommendation. I think that was Mark Levine's. I like the idea of keeping the civil penalty of $50 a day as it's prepared and presented here rather. And then to Monica's point in the final order that goes out to the property owner, there would be additional language that, again, incentivize the property owner to move quickly. And it would be, of course, then the board's discretion down the road there to waive those civil penalties.

And can you remind me how we collect those civil penalties? Send them a bill?

pretty much yes unless if they don't pay then we would have to go to court and receive a court judgment for that amount which there's a high probability August 6th is going to come and we're not going to get this done and we're going to have three months of penalties right it's going to be like then it takes days to go to court and days for them to serve and I mean this could take 90 days they already paid for half the time

Potentially, yes. Well, are we happy with this motion?

Any more discussion? Okay. So before you take a final vote, then is the board, So if we write into the letter that the board agrees to waive the civil penalties, if the property owner, what?

But I asked staff what they might recommend for us to consider.

Is it going to answer that question?

Well, I think this is what you're wanting us to consider.

I appreciate all the discussion I'm hearing all of you. But, Director Burroughs, to your point, the SOAP panel is just trying to get things moving where we are stuck.

Yeah. Mark has his hand up. Go ahead, Mark.

Yeah, thank you. To the question that was posed and Steve's response, I mean, I agree that we need, as a board, need to push the property owner forward. So I think for the question on what does the property owner need to do, I think that's already been outlined. in what Steve and the team have presented there. That was in that second motion that we heard. So in my mind, it's everything that's listed there unless there's a recommendation to strike something, but I think it's all in there to be done by date certain.

Okay. So my proposed sentence then to add to the written order after the paragraph that assesses the $50 fee per day penalty is that the Board of Health is amenable to waive the civil penalties if the property owner achieves compliance by August 6, 2026.

Then if they don't, we're going to have another hearing. If they don't, three days is enough time. Three days is enough time.

Is 30 days enough time if they get on it right today, but if they get on it next week, 30 days is not enough time?

Yes. You have to pull in a contractor. You have to get on to their schedule.

Potentially get financing.

Potentially get financing.

They needed to start last week when I sent them an email saying, you need to respond to me or this is going to the board.

Well, I mean, if they really make a good faith effort, you go out there and they're like 90% done, we're going to wait. We've already agreed to wait. So that means the contractor is doing their stuff and the contractor is going to say to you, I need another week. And we're going to be like, you get it.

So, but if he waits 30 days and doesn't have a contractor, then.

Sorry, go ahead.

Oh, go ahead, Mark.

I was saying, Monica, I like the term that you use, amenable. And it doesn't lock the board into, we will, we will waive. Because I feel for Steve and the staff for all the efforts that they've done here in what seems like another unresponsive property owner, restaurateur. I mean, there's a pattern here and these two hearings today. So we clearly need to drive these folks forward, but I would not want to, I didn't want to really drive us forward. So I want to keep amenable open personally.

So here's another proposal. The board is the minimal to waive the civil penalties if the property owner takes affirmative steps to achieve compliance by August 6th.

I feel good about that. These expressions made me think that.

And can I can I ask that we add in writing so that they can't play a they said we said game of. We called you and told you we were working on it. Like Steve and the team deserve proof because I think Mark's point is so salient related to this case and the last case. The amount of human hours that are going into this by incredible national, international level experts is not fair to the rest of the county.

So takes affirmative steps and proves in writing that, Or, yeah, proofs in writing that they have taken affirmative steps to achieve compliance.

So as a non-attorney, what does affirmative steps mean? As just like kind of a local yokel that I, what is, what's that mean?

For the contractor. I mean, they just have to take concrete steps. They have to move it, move forward with something. It's not.

Here's what I would expect is a contract. It's also a repair permit. It's also some kind of contract from the use permit inspector that they're going to do a full evaluation. It's some of the stuff that's already in there.

I like that because I'm hearing that there's some interim things that potentially happen between now and August 6th. Affirmative, respectfully, sounds a little subjective. I mean, again, I trust Steve and his team. What's enough? But the fact that Steve and his team have had so little from this gentleman, I do like the idea of hard deadline on these two items that Steve specifically laid out. Welcome feedback from others on the two.

So a contract with a third party inspector and a repair permit?

And a contract with a licensed installer.

Is that two contracts or one contract? Oh, two contracts?

It could be one in the same person, but it's actually two contracts.

Contracts with a licensed installer and a third party inspector.

Those people pulled over. And a repair permit.

So the affirmative steps are going to be contracts with a third-party inspector and with a licensed installer, as well as obtaining a repair permit for the OWTS.

Any further considerations?

photo documentation that the tank is, the tank area has been secured. Oh, yeah.

Is that not part of? It's a part of this. Is that not part of the?

It is, but if we're looking for substantial room.

Oh, I think I've heard. Yes, thank you. Affirmative steps.

You want that secure first. I mean, you're concerned about not having people in front of you. So photographs.

Steve, for you on that last point, which I think is a good one, could that even have a shorter duration? It sounds like it's primarily fencing to keep people and animals out. Is that something that could be, for example, one week out and these other affirmative steps, say two weeks out and then the August 6th deadline for the rest of the requirements?

Yeah, I absolutely think that's up for consideration and not out of the realm of getting done soon. We need to run to Home Depot and grab some construction fencing and posts and put it up now.

So kind of like a previous hearing, are we? Yeah. Do you want to have the photographic evidence of fencing installed to be done by within a week?

I'm really glad. One of the things that moved forward with the septic rate, I'm going back to our 30,000 foot deal. One of the big things that moved forward with our septic regulations was having a secondary safety feature installed in septic tanks that are repaired or newly installed. And so at the state level, there's a lot of concern about people potentially falling into a septic tank if the lived lacked structural integrity. So for the board to consider having a tighter turnaround of making this area a little bit potentially less of a attractive nuisance to children and pets, I think that would be really helpful because for us as environmental health specialists, It's hard to sleep at night when there's a giant hole in the ground that we know about that we've been saying, hey, please fix this thing that could be full of liquid that someone could fall in and drown. So that's my two cents from the field of, you know, at the state level, we're really looking to reduce these types of risks. And so if they're getting tighter turnaround, that would be great. Okay.

particularly if the tank itself is compromised.

Yes, so that secondary tank is compromised. There's not even a primary thing limiting potential people or pets from falling into it.

I agree with that. It also seems like we're complicating this agreement, which, like, has already become complicated. So part of me is like, let's just bundle it all together in a month, even though it is open and I totally agree. I don't want anybody falling in. But part of me thinks that we may have better compliance if it's not as complicated. But I can be dissuaded on that one.

I haven't spoken to the- Really, what we're talking about is this third motion, which is that the Board of Health approves assessment of a civil penalty of $50 a day starting today and including in the written order a statement that the board is amenable to waiving the civil penalties if the property owner takes affirmative steps towards achieving compliance by August 6th. And the affirmative steps include indicating a contract with a third-party inspector, a licensed installer, receipt of a repair permit for the system and photographs of fencing installed. So you mean, so we don't have the week, like in a week you need to have a fence.

Do you want it?

I don't know. Do you all want to take a motion on the one week language? It's really up to the seven of you.

I'm sorry, the sleepless nights, and it's true. I worry about that, but I just think this, the owners are not connecting well. They really need to change things, but I'm worried about making it too common. If we add a secondary date, I'm worried they're going to see that as the secondary date. I think we just do a month out.

Can we put up fencing? Is that an overview? Yes. All right. Or do we have to have the owner do it?

I would not be comfortable with staff going on to private property and committing offense without permission.

I agree with that. I'm wondering if there's another way. Can law enforcement go and do that for us?

So it is allowed because you made a determination that it's a nuisance, and the nuisance statute specifically says that we have the right to enter private property and remediate. And so... Yes, you would want to do it with law enforcement, but you do have the authority to do it.

But they might have a budget for it and we don't.

We're law enforcement. I guess my preference is that our staff does not put up events and that we keep it at one month to keep it clean.

Mark has his hand up. Go ahead, Mark.

I definitely hear the argument about the complication of the perceived complication on the order. I do think that there's an imminent threat here as Steve and others have mentioned. I'm okay with having multiple dates that are in there, one week out to put up some fencing. I'm envisioning like some of that orange construction fencing personally, though I don't think we're dictating what that is. So I would like to see a shorter duration, quicker timeline on it. And if nothing else, and then the August 6th deadline for the respite. The thought from the board is that the order needs to be simplified, then maybe again, just then two parts. That's the near-term installation of fencing or some other boundary to keep others out. And then the Brightline deadline for everything else on August 6th.

Then we should probably make two motions. A motion about fencing and the expectation. Because at the end of the week, if they haven't done that, then can we instruct law enforcement to create a safe environment? I don't know. No.

No. It would be our staff that would do it. Whether we want. Yeah. If you're not comfortable with our staff going on the property. Then you assess the fine. Yeah. Yeah.

Yeah, I don't have any desire to have staff on location like that. I think it also creates liability for Repo County. I mean, that's based on the fencing is faulty and someone falls in. Now does Repo County in that situation. So I strongly recommend against not having staff with any sort of responsibility like that. And if the property owner is sincere about addressing the issues out there, then he will do so.

and if he doesn't do it in a week we have to have a hearing in one week right you do not because how would we reinforce that enforce it then he doesn't do it in a week what's the penalty for that well we come back next month and do the why am I blinking on the it's the order of the cease and desist yeah

That's really the only step that you take next is the cease and desist. And then if they don't put fencing, they don't do any of the other stuff, it's at some point you make a decision about.

So about going to court, having new dates for fencing and dates for that doesn't really matter. They're not going to do it. They're not going to do it. Right. We have no action. But 30 days from now, we get to have another hearing. Yes.

And the clock on the civil penalty runs the whole time too. Sorry, I talked over Jennifer's.

Go ahead, Mark.

So I'm hearing no date for fencing. Wait, Mark has a question or comment. Mark, go ahead.

Thank you. I think the other recourse again for the board in Arapahoe County is the fact that the clock is running on the civil penalty, and so that is a little bit of the recourse there. I mean, that's $50 if the board chooses, so $50 a day times seven. So the clock has started on that. I mean, I don't know how satisfying that is at the end of the day, but I think that's sort of the situation that we're in here.

All right. Well, we have a motion.

Monica has written it over seven times.

Can I just clarify that no shorter date for the fencing? Because it has, there's no, it's okay. Okay.

I'm going to call for a vote. All in favor say aye. Aye. Online? Aye.

Aye.

I agree with Terrence, so we have a unanimous six, six of us. Okay, well, Terrence didn't vote, but we're six, right? Okay, be there, no other business.

Steve. I'm impressed with the fact that This property apparently existed, if I understand correctly, for over 20 years without an inspection.

Our use permit program started in 2014 in Tri-County Health Department. So any inspection that happened prior to that.

So for at least 10 years, it was not inspected. Is there a requirement for an inspection? periodically for septic tanks?

Only when there's a triggering event like a real estate transaction or addition of a bedroom. Those are the most common.

I guess I mean it without a permit for those extra bedrooms that they need.

But that presents a potential issue of a non-compliant septic tank for years and years and years. Should we consider the possibility of requiring a certain rate of inspection in order to maintain licensure or permit for septic tanks?

There are some models, I'm not sure within Colorado, where there is like a use permit every system and it's done biannually or every four years, every five years. Not necessarily a model for this state, particularly because it is so dry, but it doesn't mean that it's not something for the board to consider later.

I think there would be quite a bit of community feedback on that subject.

Who inspects the oil tanks that people have on their property? Like, is that a public health nuisance too? You know, like when people have fuel on their property, like... Like big propane tanks. Like propane tanks. Who does that?

Oh, I've been... The addition of gas.

Those are for... Yes, the addition of labor. They do, like, with larger... I don't, I don't know if it can do something to everybody by building, but that I would assume that it's only if it is failing. I don't know. What's the question?

Okay, well, guess what? Hold on, hold on.

Okay.

And that has to do with the fact that we had this restaurant that we, food distribution entity, went months in and out of certification. There are states that require posting of their current licensure state. Is that something that we should consider in Colorado or at least in the county? That was at ABCD. But I'm concerned in both instances that we have these hearings today that there are preventive measures that might have prevented or precluded these issues.

Are you talking about posting their most recent inspection or... pass or fail?

Yeah. Yeah, I can briefly comment on that. So retail food being a delegated program, so we work in conjunction or at the behest of state, right? So to sort of comprehensively overhaul would sort of take a lot more agreement. And I can tell you that, you know, in terms of posting grades, there's been a lot of discussion around that. It's a very contentious issue. And it didn't land well in Colorado. Some states have adopted it, but Colorado wasn't one of them. So the simple pass, re-inspect, closure was the model that they adopted. Could be more efficacious, I don't know. But again, it would take a pretty comprehensive review and agreement if they wanted to do that. So, Dr. O'Neill, do you want to comment on that? Yeah, placarding would require state.

It's not something we can do at the county level.

No, all we can do is advocate for it or suggest to the state that they consider it. But obviously we can't just snap our fingers and make that happen. But should we is really the question. I don't wish for us to debate that now. I would just like to get it out there for us to consider it at some future time.

All inspections are online. People can find the most recent inspection online if they went online to look at it. I understand the visibility of it, but it has been something that has been debated for decades.

Absolutely. Monica, do you have something you'd like to add?

I just wanted to clarify that with the addition of this one additional sentence about the civil penalties, I will have to make a change to the proposed order. And so that I will just have Phoebe, your electronic signature added on here. That's okay. That would be great. Can we send a docu-sign? We can make it a docu-sign.

Thanks, all. Michelle, thank you for joining online. Appreciate it.

Thank you all.

Thanks, everybody. Great work. Yay! Yeah. All right. Take care. Thank you.