STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WARWICK CONDOMINIUM )

ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-3045

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on November 23, 1988, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Lois J. Minetti, Manager

Warwick Condominium Association, Inc. 5100 DuPont Boulevard

Fort Lauderdale, Florida 33308

For Respondent: Martha F. Barrera, Esquire

Department of Health and Rehabilitative Services 2421 Southwest Sixth Avenue

Fort Lauderdale, Florida 33315 PRELIMINARY STATEMENT

Petitioner filed an application with Respondent seeking Respondent's approval of modifications to Petitioner's existing swimming pool, requesting a variance from certain of Respondent's swimming pool regulations. Petitioner's request for a variance was denied, and Petitioner timely requested a formal hearing. Accordingly, the issue for determination herein is whether Petitioner is entitled to a variance.

Petitioner presented the testimony of Lois J. Minetti and William A. Kent.

Additionally, Petitioner's Exhibits numbered 1-6 were admitted in evidence.

Respondent presented the testimony of Thomas R. Hamilton, David Bissett, and Daniel D. LaGasse. Additionally, Respondent's Exhibits numbered 1 and 2 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Warwick Condominium Association, Inc., operates a swimming pool at its condominium located at 5100 DuPont Boulevard, Fort Lauderdale, Florida. The swimming pool is licensed as a commercial swimming pool, and it has satisfactorily passed the inspections conducted by Respondent over the past two years.

   
   

2. The Warwick pool has a perimeter gutter system which meets Respondent's regulations. The Condominium Association plans to renovate the pool. The renovation plans, which must be approved by Respondent, involve changing the pool from the approved gutter system to a recessed automatic surface skimmer system.

   
   

3. The pool dimensions are approximately 25' x 46', and the pool surface water area is approximately 1,035 square feet. Respondent's rules prohibit the use of recessed automatic surface skimmers for pools larger than 800 square feet and for pools wider than 20'. Therefore, Petitioner's proposed modifications to the pool do not meet existing rule requirements for commercial pools.

   
   

4. The pool renovation plans were not approved by Respondent since the plans do not meet the standards set by the Department's rules. Petitioner submitted its proposed plans to the independent Public Swimming and Bathing Facilities Advisory Review Board, and that Board recommended to the Department that Petitioner's request for a variance from the Department's rules be granted. The Department denied Petitioner's request for a variance. There is no evidence that the Department considered the Advisory Review Board's recommendation to approve a variance, and there is no evidence as to what standards the Department has used in approving variances, if any variances have been approved.

   
   

5. The location of the Warwick pool is unique and causes the Warwick to experience extraordinary problems in maintaining the cleanliness of the pool. The Warwick pool is located adjacent to the Intracoastal Waterway and a bascule bridge crossing the Waterway. The pool receives an extraordinary amount of highway soot and dirt due to its location next to the elevated highway and bridge. Additionally, grease and oils from boats idling next to the swimming pool waiting for the bridge to open are deposited on the surface of the Warwick swimming pool. Swimming pools at nearby condominiums are not located directly on the Waterway. They are located either on the roofs of those condominium buildings or on the other side of those buildings away from the Waterway. Accordingly, the location of the Warwick pool is unusual.

   
   

6. A prevailing southeast wind blows across the Waterway and across the Warwick pool. It then hits the wall of the condominium building and reverses its direction. It creates a great deal of turbulence on the surface water of the pool, pushing the water and the debris on the surface of the water to the south wall of the pool which is located at the pool's deep end. The dirt, debris, grease, and oil deposited by the vehicular and boat traffic accumulate at, and adhere to, the south wall of the pool at the deep end. Cleaning the tile at the south end of the pool requires constant effort. The accumulation of grease and oil at the deep end of the swimming pool is unusual.

   
   

7. The perimeter gutter at the deep end of the Warwick pool is slightly higher than the gutters around the other three sides of the pool. Accordingly, the surface water does not overflow the gutter at the deep end except when there are a number of bathers in the pool, thereby altering the water level and

   creating additional turbulence. At such times and during heavy rains, the gutters flood, and the debris and grease are carried back into the pool where they come in contact with bathers. There is no guarantee that attempting to lower the level of the south gutter will make the perimeter gutter system ideally level.

   
   

8. The condominium manager and one of the condominium owners, each of whom have substantial expertise and experience in constructing and operating swimming pools, have determined that the unique problems of the Warwick pool can be resolved by the installation of recessed automatic surface skimmers at the south end of the pool. All witnesses in this proceeding agree that proper skimmer location is determined by the prevailing wind.

   
   

9. The amount of surface water removed is the same for both the perimeter gutter system and the recessed automatic surface skimmer system. The accessibility to debris is greater with a gutter system than with the skimmer system since the skimmer system collects debris and retains it in baskets which are then manually emptied. There are greater losses of water with the gutter system than with the skimmer system.

   
   

10. Department employees visited the Warwick pool on one occasion for approximately 45 minutes. They placed the gutter system into operation and found that it was working. They testified that the Warwick's system is operational and therefore should simply be improved. The Warwick's witnesses agreed that the system is operational but have shown that the system does not operate properly based upon their extended familiarity with that particular swimming pool. The opinion of the experts with extended experience with the Warwick pool has been given more weight than those who visited the pool on one occasion for less than-one hour, particularly since the Department's witnesses admitted that the conditions at the Warwick during their site visit were not the normal conditions. Although the Department's witnesses clearly have a preference for gutter systems over recessed skimmer systems, no evidence was offered to show that the skimmer system (allowed by the Department in smaller swimming pools) would pose a threat to the health or safety of the bathing public should a variance be granted.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. The parties agree that the Warwick Condominium's pool is subject to the provisions of Rule 10D-5.097, Florida Administrative Code. That rule provides that continuous perimeter overflow gutters be used except where recessed automatic surface skimmers are allowed. Subsection (7)(b) provides that recessed automatic surface skimmers can be used where the pool water surface area does not exceed 800 square feet and the width of the pool does not exceed 20'. The Warwick pool's surface water area is approximately 1,035 square feet, and its width is approximately 25'. Therefore, the Condominium Association has requested a variance from Rule 10D-5.097(7)(b), Florida Administrative Code.

    
    

13. The Department of Health and Rehabilitative Services is authorized to review plans and issue permits for public swimming pools and bathing places. Section 514.025, Florida Statutes. However, the statutory scheme specifically permits variances from the Department's rules regulating swimming pools.

    Further, Section 514.028, Florida Statutes, specifically authorizes the governor to appoint an Advisory Review Board to recommend agency action on variance requests. That Advisory Review Board considered Petitioner's request for a variance and recommended to the Department that the variance be granted. The Department offered no evidence to show that it considered the Review Board's recommendation to grant the variance, offered no evidence to show that any variances have ever been granted in accordance with the statutory scheme anticipating the granting of variances, and offered no evidence to show what criteria should be considered in the granting or denying of a request for a variance.

    
    

14. The thrust of the Department's position in this proceeding is that the Warwick Condominium's pool is larger than the pools allowed to use recessed automatic surface skimmers--a fact which is not an issue in this proceeding--and that the Department personnel who testified prefer the gutter system to the skimmer system--a fact which is irrelevant since both systems have been approved by the Department in its rules. The Department takes the position that it simply wants the Warwick Condominium to meet its current code requirements by using a gutter system. The condominium already uses a gutter system and meets the Department's code requirements.

    
    

15. The Condominium Association has clearly proven its concern over both the appearance and the sanitation of its pool which meets code requirements, due to the unusual location of its pool and the extraordinary amount of pollutants deposited on the surface water by traffic passing overhead, by boats idling in the hold basin waiting for the bridge to open, and by the prevailing southeast wind reversing its direction against the condominium building and causing the surface water contaminants to accumulate at one end of the pool. The Condominium Association has presented convincing evidence as to why a variance should be granted, and the Department has presented no evidence as to why the variance should not be granted, due to its steadfast position that the Condominium Association should simply comply with the Department's regulations.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT:

A Final Order be entered approving Petitioner's request for a variance.

DONE and RECOMMENDED this 9th day of February, 1989, at Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings, The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this day 9th day of February, 1989.

APPENDIX TO RECOMMENDED ORDER D0AH CASE NO. 88-3045

1. Petitioner's proposed findings of fact numbered 1

   4, 5, 7-14, 16, and 17 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed finding of fact numbered 2 has been rejected as being irrelevant to the issues under consideration in this cause.

3. Petitioner's proposed finding of fact numbered 6 has been rejected as being subordinate to the issues under consideration herein.

4. Petitioner's proposed findings of fact numbered 3 and 15 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law.

5. Respondent's proposed findings of fact numbered 1-3 and 9 have been adopted either verbatim or in substance in this Recommended Order.

6. Respondent's proposed findings of fact numbered 4- 6, 10, and 11 have been rejected as not being supported by the weight of the evidence in this cause.

7. Respondent's proposed findings of fact numbered 7 and 8 have been rejected as being contrary to the evidence presented herein.

8. Respondent's proposed finding of fact numbered 12 has been rejected as being irrelevant to the issues under consideration herein.

COPIES FURNISHED:

Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Lois J. Minetti, Manager

Warwick Condominium Association, Inc. 5100 DuPont Boulevard

Fort Lauderdale, Florida 33308

Martha F. Barrera, Esquire Department of Health and Rehabilitative Services 2421 Southwest Sixth Avenue

Fort Lauderdale, Florida 33315

Docket for Case No: 88-003045

Orders for Case No: 88-003045