STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOCA PATIO VILLAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 82-323

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

/

RECOMMENDED ORDER

Pursuant to notice this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, in West Palm Beach, Florida, on March 3, 1982.

APPEARANCES

For Petitioner: Mitchell Beers, Esquire

Admiralty Building, Suite 409 4440 PGA Boulevard

Palm Beach Gardens, Florida 33410

For Respondent: K. C. Collete, Esquire

District IX Legal Counsel Department of Health and Rehabilitative Services

111 Georgia Avenue, Third Floor West Palm Beach, Florida 33401

This case involves a swimming pool of a commercial nature built at a real estate development in Palm Beach County. The Respondent has refused to issue the permit required in order for the pool to commence operation. Accordingly, Mr. K. G. Stamos, a professional engineer who was required to certify the preparation of the engineering documents and sign the application for approval of the plans for the pool and the permit, requested a hearing pursuant to Section 120.57(1), Florida Statutes. As design engineer of the pool, Mr. Stamos is required to certify that the pool is constructed in accordance with the application, engineering plans and equipment specifications as approved by the Respondent through the Palm Beach County Health Department and Mr. Stamos is required to sign the permit application (HRS Form 916). In view of this situation, the parties stipulated that Mr. Stamos has standing to bring this cause of action along with the Petitioner; and, in essence, the Petitioner and Mr. Stamos are requesting that Rule 100-5.67(1), Florida Administrative Code, be varied from or alternatively interpreted so as not to preclude the installation of one six-inch row of dark brown colored tile around the perimeter of the subject pool immediately below the lip of the pool gutter. The factual issues involved in the petition, related to the legal question of the applicability of the rule to such tile installations, involve whether such dark tile will conceal

algae or other dirt deposited on the wall of the pool; whether the tiles are easily cleanable; whether the tile constitutes a design incorporated into the construction of the pool, which will prevent the detection of a human in distress; the deposition of algae, sediment or other objects; and, as a corollary, whether the rule involved strictly requires that floors and walls of a pool shall be entirely white or light (pastel) in color. A related issue is, therefore, whether the band of tile around the pool in question is part of the wall or a design placed on the wall.

The Petitioner presented six witnesses and four exhibits and the Respondent presented one witness and Joint Composite Exhibit A. All exhibits were admitted into evidence. In order to obtain a prompt resolution of this dispute, the parties waived the fourteen day requirement for notice of hearing.

FINDINGS OF FACT

1. The Petitioner constructed a pool for public use at its condominium development in Palm Beach County during 1980 and applied for a permit authorizing its use. The Respondent denied the permit because of the dark tile border used around the toe of the pool and the Petitioner initiated this proceeding.

   
   

2. Mr. Lee Reed supervises the inspection of public or commercial swimming pools in Palm Beach County. He is familiar with the pool constructed by the Petitioner and inspected it, or a similar one, for purposes of applications for permits. Mr. Reed is responsible for the denial of the permit in this case. He took this position because dark tile was used when the rule in his view requires that the walls and floors of the pool be a light, pastel color; and, further, that they be easily cleaned and not conceal algae, dirt or the typical "grease line" caused by the accumulation of suntan oil or lotion on the sides of the pool at the water surface. The Respondent denied the permit on the basis that the walls should be smooth and easily cleanable and that non-decorative tile should be used on the theory that decorative tile tends to camouflage dirt deposits. The Respondent took the position that any tile on the vertical surface of the pool walls is part of the wall; and, therefore, as Mr. Reed enforces the rule, the tiles must be of a light pastel color.

   
   

3. Many commercial pools serving members of the public in Palm Beach County have been approved with dark tile. The Respondent demonstrated no instances where the use of dark colored tile around or near the top of pool walls had resulted in a health hazard to the users of pools. Additionally, Mr. Reed is aware of public swimming pools approved and permitted in other counties with brown tiles installed. Finally, Mr. Reed admitted that public swimming pools have customarily been approved in Palm Beach County by the Respondent, which are designed to AAU specifications with dark or black tile installed in the bottom as lane markers for swimming competition.

   
   

4. Mr. Reed and the inspectors in his employ have noticed "grease lines" in hundreds of pools--some with dark tile--some with light tile. It is somewhat easier to see some types of contaminants in a grease line on light-colored tile.

   
   

5. The Petitioner presented the testimony of four contractors who have constructed and maintained commercial or public swimming pools for a substantial number of years in Palm Beach and Broward Counties. The so-called "grease line" caused by suntan oil residue on the surface of pools, as well as algae, is readily visible even on dark tile; especially since algae, when it is killed by the chlorine in swimming pool water, is of a greyish color which is easily

   discerned on dark brown tile. These witnesses have seldom observed algae to be a problem inasmuch as the glossy, slick tile prevents it from adhering readily. Further, the deposition of any type of dirt is an insignificant problem on such a six-inch band of tile on the upper portion of a pool wall, since it is readily observable and easily reached for cleaning. There is no dispute that the major portion of swimming pool walls should be of white marsite because it is a non- slip, roughened sort of surface on which algae will adhere readily and is farther beneath the surface of a pool and thus more difficult to clean. The white color would tend to render algae more observable and removable at an early stage.--Such a problem does not occur, however, with the glossy type of tile which is involved here.

   
   

6. Several of these witnesses have constructed commercial or public pools in other counties and have never had them disapproved because they used dark tile near the tops of the pool walls. Such a narrow band of dark tile would have no effect on preventing detection of a swimmer in distress. Additionally, the Department requires the dark tile on the edges of swimming pool steps to establish a contrasting color to show where the edges of the steps are located for safety purposes. The band of dark tile around the top of the swimming pool wall is also a positive safety feature, in that when a person is in distress it shows where the edge of the wall is for purposes of obtaining a safe handhold. It also tends to prevent people from running into the wall with their head.

   
   

7. Mr. Reed's counterpart in Broward County, David Bissett, the Respondent's Director of Public Pool Programs for Broward County, testified on behalf of the Petitioner on the basis that he considers tile on the top edge of a swimming pool wall to be a design on the wall of the pool, and permissible, rather than part of the wall structure, which is designed to retain water in the pool. Many approved pools in Broward County have dark tile around the perimeter of the pool at water level. Through frequent contact with his counterparts in other counties, he knows of a substantial number of commercial pools approved by the Respondent with similarly installed dark tiles. In all his experience he has observed no health hazard attributable to the installation of dark tiles around the top of the swimming pool walls; and, indeed, some kinds of dirt can be better seen against a dark tile background. Some forms of dirt would not show up as well, but all types of dirt or sediment are readily observable, even against a dark background.

   
   

8. The tile has been shown to be a design, rather than a part of the wall itself. It performs no function of a wall in retaining water in the pool, but is merely decorative. Thus the issue of whether algae or dirt is easily detectable and cleanable and whether a person in distress is easily noticed is the pivotal consideration herein. Since the tile involved is a relatively narrow band located near the top of the pool, and since dirt is readily observable when it adheres to the tile, then the accessibility of the tile to easy cleaning, as well as its slick, glossy surface, renders its accumulation of algae or dirt to the extent of forming a health hazard virtually impossible. Such a design does not prevent ready detection of a swimmer in distress. Mr. Bissett would approve the pool in question if it was in his territorial area of responsibility, and has approved similar pools on other occasions in Broward County. Only the Department's personnel in Palm Beach County so stringently attempt to preclude the use of dark tiles in the design of swimming pools, as compared to all other counties within the Respondent's jurisdiction.

   
   

9. Mr. K. G. Stamos, the engineer who designed the subject pool, put on evidence of a test he performed regarding the question of the visibility of dirt adhering to swimming pool tiles. Mr. Stamos used dark brown, dark blue, light

   blue and light tan tiles and a mixture of dirt and suntan oil. The suntan oil was clearly observable on the dark tiles and less observable on the light colored tiles. Dirt sprinkled on the tiles after the oil had adhered to them showed up somewhat better on the light tiles, but the white grout between the tiles showed all forms of dirt clearly, regardless. Every other county wherein he designs and has approved swimming pools approves pools such as that here in dispute.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

    
    

11. Rule 10D-5.67(1), Florida Administrative Code, states in pertinent part as follows:

    
    

    1. Pools shall be constructed of concrete or other impervious materials with a finish adapted to the bathing demands of different areas of the pool. All side walls and bottom surfaces shall have a smooth, easily cleanable, and slip-resistant finish. Floors and walls shall be white or light (pastel) in color and shall have the characteristic of reflecting rather than absorbing any natural or

       artificial light that may be incident upon the floor and wall surfaces. Any design incorporated into construction or painted on the pool floor or pool walls shall be such that it will not prevent the detection of a human in distress, algae, sediment, or other objects in the pool.

       
       

12. There is no question that the above rule provides that all surfaces of walls and floors be easily cleanable and have a slip-resistant smooth finish and that floors and walls should be of a light color. The testimony and evidence propounded by the Petitioner establishes without question, however, that the wall of the swimming pool means the structural portion of the pool designed and constructed to retain the water in the pool and that the tile in question is merely placed on the surface of the structural wall and is thus a form of decoration. The testimony of Mr. Lee Reed indicates that he considers the tile to be part of the wall merely because it is one of the vertical surfaces; however, the testimony of the contractors who construct pools regularly established that in the industry it is commonly and universally considered to be a design or decoration attached to the wall of the swimming pool. Mr. Reed's testimony was directly refuted by that of his counterpart from Broward County, Mr. Bissett, who firmly established that the subject tile band around the top of the swimming pool walls in question is merely a design or decoration and not truly part of the wall. The evidence in the record leaves no doubt that the swimming pool walls function in retaining water would be performed just as adequately had the tile not been placed upon it.

    
    

13. It being concluded that the tile in question is a design incorporated into construction; the considerations in the last sentence of the above rule which require that such a design shall not prevent the detection of a human in

    distress, the detection of algae, and the detection of sediment or other objects in the pool, are controlling in a disposition of this matter.

    
    

14. The great weight of the testimony and evidence establishes that algae is easily detectable on brown tile, especially when killed by the chlorine in the water; and, further, that algae does not readily adhere or form on the tile because of its slick surface. Further, other forms of dirt are easily detectable as a greyish line on dark colored tile or on the white grout joints between the tile. Such dirt is easily cleanable for purposes of the rule, since it constitutes a line around the top part of the pool which is easily reached for cleaning. The Respondent's testimony and evidence is directly controverted in a non-self-serving way by the Petitioner's witnesses; especially the witness coming from the Department itself, Mr. Bissett, who established in his own right that dark tile so installed does not promote an unhealthy accumulation of dirt and algae, in no way conceals a human in distress in the pool and, indeed, may assist a person in distress in finding the wall of the pool.

    
    

15. The undersigned must perforce conclude that the subject six-inch-wide band of dark brown decorative tile around the perimeter of the pool in question constitutes a design incorporated into the construction of the pool and, that it does not violate Subsection 10D-5.67(1), Florida Administrative Code, for the reasons enunciated above.

RECOMMENDATION

Having considered the foregoing findings of fact, conclusions of law, the candor and demeanor of the witnesses and the pleadings and arguments of counsel; it is, therefore,

RECOMMENDED that the petition herein be granted and that a permit authorizing operation of the swimming pool at the location herein for the use of the public be issued to the Petitioner.

DONE AND ENTERED this 16th day of March, 1982, in Tallahassee, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1982.

COPIES FURNISHED:

Mitchell Jay Beers, Esquire Admiralty Building, Suite 409 4440 PGA Boulevard

Palm Beach Gardens, Florida 33410

K. C. Collette, Esquire District IX Legal Counsel Department of Health and

Rehabilitative Services

111 Georgia Avenue, Third Floor West Palm Beach, Florida 33401

Docket for Case No: 82-000323

Orders for Case No: 82-000323