STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRIAD TECHNOLOGIES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 86-3999

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on June 11, 1987, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Frances Daly, pro se

President and Marketing Director Triad Technologies, Inc.

4000 Galster Road

East Syracuse, New York 13057

For Respondent: Michael O. Mathis, Esquire

Department of Health and Rehabilitative Services

Office of Licensure and Certification 2727 Mahan Drive

Tallahassee, Florida 32308 PROCEDURAL STATEMENT

The Petitioner, Triad Technologies, Inc., submitted two products to the Respondent, the Office of Licensure and Certification of the Department of Health and Rehabilitative Services, for approval for use in public swimming pools throughout the State of Florida. The Respondent rejected the products for failure to comply with Chapter 10D-5, Florida Administrative Code. The Petitioner timely requested a formal hearing to contest the Respondent's proposed denial of approval of its products.

At the formal hearing, the Petitioner presented the testimony of Frances Daly, the President and Marketing Director of the Petitioner. The Petitioner also offered 14 exhibits which were marked as "Petitioner's" exhibits.

Petitioner's exhibits 1- 4, 6-8 and 11-14 were accepted into evidence.

Petitioner's exhibits 5, 9 and 10 were rejected.

The Respondent presented the testimony of Thomas R. Hamilton and offered 12 exhibits for identification. Respondent's exhibits 1-11 were accepted into evidence. Respondent's exhibit 12 was not offered into evidence.

Subsequent to the conclusion of the formal hearing, the Respondent filed a Motion for Extension of Time to Prepare and File Proposed Recommended Order.

That Motion is hereby granted.

The parties have timely filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

ISSUE

Whether the Petitioner's products, the Transfer Tier and the Easy Ladder, should be approved for use in public swimming pools throughout the State of Florida?

FINDINGS OF FACT

1. The Petitioner manufactures the products under review in this case: the Transfer Tier and the Easy Ladder (hereinafter referred to as the "Products").

   
   

2. The Products are designed and intended for use by the aged and disabled in entering and exiting swimming pools. The Easy Ladder is intended to be used by people who are able to walk but have difficulty in using a traditional swimming pool vertical ladder. The Transfer Tier is intended for use by people with more disabling handicaps.

   
   

3. The Products are intended to be used as portable devices which are not left in the swimming pool. There is nothing to prevent purchasers of the Products, however, from leaving the Products in a swimming pool for extended periods of time.

   
   

4. Although designed for use by the aged and disabled, either Product can be used by anyone in the same manner that steps are used.

   
   

5. By letter dated May 7, 1986, the Petitioner requested a review of the Products by the Respondent and approval of the Products for use in Florida public swimming pools.

   
   

6. The Respondent reviewed the Products and determined that both Products failed to meet the requirements of the Respondent's Rules.

   
   

7. The Products are made of fiberglass. When placed in a swimming pool there are areas of the swimming pool and parts of the Products which cannot be seen. Therefore, algae and sediment in the pool can go undetected. Although the Products are intended to be used as portable devices, they can be left in the pool. Additionally, although all areas of the Products are accessible so that algae formation can be prevented, the Products would have to be removed from the pool in order to gain access.

   
   

8. The Products are not designed to be installed as a part of a swimming pool.

9. The front edge intersections and the treads and risers of the steps of the Products do not have contrasting colored stripes on the risers of the steps at least two inches wide.

   
   

10. The handrails on the Products are not anchored in the pool deck or the bottom step.

    
    

11. There are no nationally recognized standards for the Products. The Products are within limits of sound engineering practice.

    
    

12. The metallic handrails of the Products and the metallic legs of the Transfer Tier are not to be bonded to other metallic parts of the swimming pool with copper wire no smaller than No. 8 wire. These metallic parts of the Products will be touching the side and bottom of the swimming pool. The metallic parts are not fixed to the swimming pool. They are also not separated from the pool by a permanent barrier.

    
    

13. The Transfer Tier is not designed to fit completely flush with the swimming pool wall and floor. Additionally, either Product, if not properly placed in a swimming pool will not fit completely flush with the swimming pool floor. Therefore, the Products will not preclude entanglement or obstruction which could result in the submerged entrapment of bathers.

    
    

14. By letter dated May 30, 1986, the Petitioner was informed by the Respondent that the Products failed to comply with the Respondent's Rules.

    
    

15. By letter dated July 2, 1986, the Petitioner requested a formal hearing to contest the denial of the Petitioner's application and requested a review of the Respondent's decision by the Public Swimming and Bathing Facilities Advisory Review Board.

    
    

16. The Public Swimming and Bathing Facilities Advisory Review Board unanimously approved the Respondent's decision.

    
    

17. There is a need in Florida for the type of products proposed by the Petitioner.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1986 Supp.).

    
    

19. Pursuant to Chapter 514, Florida Statutes, and Rule 10D-5.118(2), Florida Administrative code, manufacturers of products for use in public swimming pools must obtain approval of the products before they can be used in public swimming pools in Florida. Therefore, the Petitioner has requested approval of the Transfer Tier and the Easy Ladder, two products intended for use in public swimming pools in the State.

    
    

20. In order to be approved for use in public swimming pools, products must meet the requirements of Chapter 10D-5, Florida Administrative Code. Based upon an application of the requirements of these Rules, the Respondent has determined that the Products do not qualify for use in public swimming pools.

    In particular, the Respondent has determined that the Petitioner's Products fail

    to comply with Rules 10D-5.097(1), (5)(b), (5)(c), (5)(e), 10D-5.107(7) and 10D- 5.111(3), Florida Administrative Code.

    
    

21. Rule 10D-5.097(1), Florida Administrative Code, provides, in pertinent part:

    
    

    Any design incorporated into the 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 and written permission must be obtained from the Department prior to installation.

    
    

    The Respondent has taken the position that the Products fail to meet this requirement of the Rules because the design of the Products will "prevent the detection of algae or sediment in the pool area around the installation." Although it is true that algae or sediment may not be detected because of the design of the Products, the Respondent is attempting to apply a rule which has no application whatsoever to the Products. The requirements of Rule 10D- 5.097(1), Florida Administrative Code, only apply to materials "incorporated into the construction . . . ." of a swimming pool. The evidence in this case failed to prove that the Products will be incorporated into the construction of any pool. Therefore, Rule 10D-5.097(1), Florida Administrative Code, is inapplicable to the Products.

    
    

22. Rule 10D-5.097(5)(b), Florida Administrative Code, provides, in pertinent part:

    
    

    The front edge intersection of the tread and riser of all steps shall have colored stripes contrasting with the interior color of the pool. These stripes shall be a minimum of two inches in width on the tread and on the

    riser and extend the full length of the steps.

    
    

    The Petitioner has not disputed that the Products do not meet this requirement of the Rules. Instead, the Petitioner has argued that the Products are not "steps." The Petitioner's contention defies logic. The Easy Ladder is no more than a portable set of steps. The Transfer Tier, although not intended to be used as steps, has the same design as steps and can be used as steps even though not intended for such use. Since both Products can serve as steps, they are subject to the requirements of Rule 10D-5.097(5)(b), Florida Administrative Code, which the Products fail to meet.

    
    

23. Rule 10D-5.097(5)(c), Florida Administrative Code, provides, in pertinent part:

    
    

    Handrails shall be provided for all steps, shall be anchored in the bottom step, and shall be anchored in the deck. . . .

    
    

    Again, the Petitioner has not disputed the fact that the Products fail to meet this requirement of the Rule but has argued that the requirement does not apply because the Products are not "steps" and are designed only for portable use.

    The Products are, however, steps. As such, they must be anchored to the pool.

24. Rule 10D-5.097(5)(e), Florida Administrative Code, provides, in pertinent part:

    
    

    Steps, ramps, handrails, lifts, or other appurtenances designed to accommodate handicapped individuals in swimming pools are optional and will be approved within limits of sound engineering practice and nationally recognized standards.

    
    

    The Respondent determined that the Products were not demonstrated to be within the limits of nationally recognized standards for handicap pool access steps or other appurtenances. The evidence failed to prove this determination. Although the testimony of the Respondent's only witness was contradictory, the weight of his testimony and other evidence support a finding that there are no nationally recognized standards for the Products under review in this case. Therefore, Rule 10D-5.097(5)(e), Florida Administrative Code, has no application to the Products.

    
    

25. Rule 10D-5.107(7), Florida Administrative Code, provides, in pertinent part:

    
    

    Electrical equipment wiring and

    installation including the grounding of pool components shall conform with the 1984 edition of the National Electrical Code which is incorporated by reference in these rules and shall comply with applicable local codes.

    
    

    The Respondent has taken the position that the Products fail to meet Section 680-22 of the National Electrical Code, because the metallic handrails of the Products and the metallic legs of the Transfer Tier will not be bonded to the other metallic parts of the. pool using copper wire no smaller than No. 8.

    Although it is true that these metallic parts will not be bonded according to the specifications of Section 680-22 of the National Electrical Code, this Section simply does not apply to the Products. Section 680-22(a) of the National Electrical Code, requires that only the following parts are to be bonded together:

    
    

    1. All metallic parts of the pool structure, including the reinforcing metal of the pool shell, coping stones, and deck.

    2. All forming shells.

    3. All metal fittings within or attached to the pool structure.

    4. Metal parts of electric equipment associated with the pool water circulating system, including pump motors.

    5. Metal parts of equipment associated with pool covers including electric motors.

    6. Metal conduit, metal piping, and all fixed metal parts that are within 5 feat (1.52 m) of the inside walls of the pool and that are not separated from the pool by a permanent barrier.

       The metallic handrails of the Products and the metallic legs of the Transfer Tier simply are not listed as parts which must he bonded under the National Electrical Code.

       
       

26. Finally, Rule 10D-5.111(3), Florida Administrative Code, provides, in pertinent part:

    
    

    Swimming pools shall not have any protrusions, extensions, means of entanglement or other obstructions which can cause the submerged entrapment of or injury to bathers.

    
    

    Although the Products, if properly used, meat this requirement of the Respondent's Roles, the evidence failed to prove that the Products will only be used in a proper manner. Because the Products are portable, they can be placed in a swimming pool in such a manner to create an area under the Products and the swimming pool floor where a bather could be trapped. Therefore, the Products do not meet the requirement of Rule 10D-5.111(3), Florida Administrative Code.

    
    

27. Although the parties agreed that the Products may be beneficial to the aged and disabled who wish to use public swimming pools and that the Respondent's Roles have not bean promulgated with the needs of the aged and disabled in mind, the evidence in this case proved that the Products do not meet the current requirements of the law. In particular, the Products failed to meet the requirements of Rules 10D-5.097(5)(b), (5)(c), and 10D-5.111(3), Florida Administrative Code. Therefore, the Products should not be approved for use in public swimming pools in Florida.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying approval of the

Products for use in public swimming pools in the State of Florida.

DONE and ORDERED this 24th day of August, 1987, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3999

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the

paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

Deficiency No. 1 3 and 7.

Deficiency Nos. 2 & 3 Irrelevant or not supported by the

weight of the evidence. See 4 and 9.

Deficiency No. 4 11.

Deficiency No. 5 12.

Deficiency No. 6 Not supported by the weight of the evidence.

The Respondent's Proposed Findings of Fact

1 Hereby accepted.

2 2.

3 5.

4 6.

4a Not supported by the weight of the evidence.

4b 9.

4c 10.

4d Not supported by the weight of the evidence.

4e The first sentence is accepted in

12. The conclusion of law of the second sentence is not supported by the weight of the evidence.

4f 13.

5 14.

6 15.

7 16.

8 Not supported by the weight of the evidence.

9. Irrelevant.

10 The first sentence is accepted in 17. The rest of the paragraph is irrelevant.

COPIES FURNISHED:

Mr. Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Michael O. Mathis, Esquire Senior Staff Attorney Office of Licensure and

Certification Department of Health and

Rehabilitative Services 2727 Mahan Drive

Tallahassee, Florida 32308

Frances Daly

President and Marketing Director Triad Technologies, Inc.

4000 Galster Road

East Syracuse, New York 13057

Docket for Case No: 86-003999

Orders for Case No: 86-003999