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October 2000

Class Action Suit Filed Against County Over Rancho Nicasio Illnesses


By Louis Nuyens

Early in February 2000, at least 21 people took ill after visiting Bob Brown's Rancho Nicasio restaurant. Symptoms included severe vomiting and diarrhea, and weakness that lasted for days. These symptoms are common to illness from food- or water- borne pathogens.

County staff reports indicate that it is widely believed by public health officials that a seriously contaminated well water system was the cause of the illnesses. Tap water at all six Rancho Nicasio sample locations tested positive for general coliforms; and several for fecal coliform, which is associated with severe hazards to human health. Sites tested include the restaurant kitchen, the bar beverage station, and storage tanks. Failed enforcement of monthly testing requirements may have precluded a chance to prevent the illnesses. Delays in making findings public may have hurt chances to make an "absolute" lab test link between the illnesses and the water contaminants.

The county has not made the names of the affected individuals available to the public or to each other, citing confidentiality, but perhaps due in part to concerns that those victims might band together and bring forward precisely the type of legal action that is now taking place.

Acting on behalf of Point Reyes Station resident Jeri Jacobson and "Does" (unspecified others who can be named later), San Rafael attorney Steven Schoonover has filed a one million dollar class action lawsuit against the County of Marin. Jacobson's interest in the suit is to encourage County agencies to perform their public health oversight duties more responsibly.

Schoonover and his clients allege that the County failed to adequately protect public health and safety, allowed Rancho Nicasio's restaurant to open under new ownership without adequate review, and allowed continued operation under potentially risky conditions. County Environmental Health did conduct permit reviews, with some testing, and inspected Rancho Nicasio's septic system and well water. However, the suit alleges that "Éthey did so in a negligent manner, and thereby allowing the well water to become contaminated with bacteria and other harmful substances which caused claimant Jacobson and other unidentified individuals to become quite ill."

Also at issue is the regulatory process used by the County to evaluate and regulate the transition of ownership and subsequent operation. Requests for testing data, repairs to the well water system, records of well drilling permits, went unheeded and ultimately unenforced. For example:

No lab tests were submitted by the new owners in 1999; regulations require tests to be taken and results submitted monthly. Enforcement of this requirement may have given an early indication and allowed the illnesses to be prevented.

Documentation requested for two wells, after it was discovered that one or both were being illegally used in addition to the one legal well, were not provided; County neither received documentation nor compensated with onsite testing, although the illegal use was present at the time that the illnesses occurred.

County mandated repairs to the main "in use" well were not enforced in a timely fashion.

A "special" legal agreement was used to allow the new owner to begin operations without upgrading a failed septic system, known to be polluting the groundwater table. The new septic system was constructed and issued a permit to operate 13 months after the restaurant began operations; one and a half months prior to the well water system being implicated in the illness outbreak.

Another issue brought up in Schoonover's class action lawsuit is that "Marin County Environmental Health Department has been subject to pressure from policy-making officials in the County of Marin, including but not limited to Supervisor KinseyÉ"

The allegations include pressure to "refrain from appropriate and thorough enforcement of ordinances, regulations and codes designed to protect individualsÉ from becoming ill when drinking well waterÉ from becoming ill due to contamination from septic systems that are improperly permitted, inspected, tested and monitored by the Marin County Environmental Health Department."

These allegations of EHS inefficiency and political pressures on EHS to ignore regulations in selected cases echo the Marin Civil Grand Jury report on EHS operations, published in June of this year, which cited lack of County leadership, haphazard enforcement, disorganization, and the "political accommodations." The report was publicly snubbed by Supervisor. Kinsey, who, shortly before its publication, announced his desire to "lower the bar" vis-ˆ-vis septic system regulation. The report's recommendations have, to date, been almost wholly disregarded by the County.

A disturbing document found in the restaurant's Environmental Health septic file is a memo from Supervisor Steve Kinsey, questioning an EHS staff person's determination of the old septic system as a public health nuisance, and requesting that no action be taken, yet admitting that "Éaddition, and/or change of use will require replacement of the existing system with one which does not come in contact with the groundwater." A system determined by a public health officer to be in failure, and a danger to the public's health, is enough in and of itself to require the system to be replaced immediately.

If charges common to this million-dollar class action lawsuit and June's Grand Jury report are accurate, one hopes that Marin's County agencies and government can be reformed in time to prevent even more serious outcomes.

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