STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLAMINGO INN OF GRASSY KEY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4561

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February

14 , 1988, at Marathon, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

For Petitioner: Mark A. Hruska, Esquire

Vernis & Bowling, P.A. Post Office Drawer 529 Islamorada, Florida 33036

For Respondent: Morton Laitner, Esquire

401 North West 2nd Avenue, Suite 5424 Miami, Florida 33128

ISSUES AND INTRODUCTION

The basic issue in this case is whether the Petitioner is entitled to a variance from some of the requirements of Rule 10D-5.097, Florida Administrative Code, regarding public swimming pools. At the hearing, both parties presented the testimony of witnesses and offered exhibits. Following the hearing a transcript was filed on March 3, 1989, and the parties were allowed until March 23, 1989, within which to file their proposed recommended orders. Both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. All proposed findings of fact submitted by all parties are specifically addressed in the appendix to this recommended order.

FINDINGS OF FACT

Based on the stipulations of the parties and on the evidence received at the final hearing, I make the following findings of fact.

1. The Petitioner submitted an application for a swimming pool operating permit to the Respondent. The Respondent denied the Petitioner's request for an operating permit, whereupon the Petitioner requested a variance from the Public Swimming and Bathing Facilities Advisory Review Board. The Board recommended favorable action on the request for variance, but by letter of July 29, 1988,

   the Petitioner was advised that the Respondent intended to deny the request for variance. The Petitioner's request for formal hearing followed.

   
   

2. The Petitioner operates a public swimming pool in Grassy Key, Florida. The Petitioner has never obtained a permit to operate the pool from the Respondent.

   
   

3. The floor and walls of the Petitioner's pool are covered with glazed tile. There is no evidence that the glazed tile on the floor and walls of the Petitioner's pool is anything other than ordinary glazed tile. The coefficient of friction for wet glazed tile is normally between .2 and .25. Approximately twenty-one percent of the surfaces of the floor and walls of the Petitioner's pool consists of grout. The grout is located between the tiles. The top surface of the grout is lower than the top surface of the tiles. The tiles covering the vast majority of the floor and walls of Petitioner's pool are medium blue to dark blue and black in color. Specifically, the tiles are not white or light pastel in color. The tiles covering the vast majority of the floor and walls of the Petitioner's pool reflect less light than would be reflected if they were white or light pastel in color. The more light present in a pool, the greater the ability to detect objects in the pool. A decrease in the amount of light in a pool increases the risk of objects in the pool not being detected. Light colors in pools also facilitate the ability to maintain proper sanitation. An epoxy coating could be placed on the floor and walls of the Petitioner's pool for approximately $1,500.00. Such a coating would improve the safety of the pool by making the pool surfaces more slip resistant. By reason of the glazed tile surface, the Petitioner's pool is a safety hazard to the public.

   
   

4. It is not difficult to see people on the bottom of the Petitioner's pool during day or night operation, even though the pool is dark in color and does not have the characteristic of reflecting, rather than absorbing light. Objects on the bottom of the pool are visible from the pool deck. The color of the pool does not appear to be a significant safety hazard. The water clarity in Petitioner's pool is well above average. The color of the pool does not appear to cause any depth perception different from the depth perception problems inherent in any pool of water. Department inspection reports for the period 1981 through 1988 reveal no problems with cleaning the pool, reveal no findings of algae at all, and indicate that the operator of the pool has done a good job of maintaining the pool. The pool has been in continuous operation for over eight years and there have not been any accidents resulting from use of the pool.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

   
   

6. Section 514.021, Florida Statutes, authorizes the Department of Health and Rehabilitative Services to adopt and enforce rules related to the health, safety, and welfare of persons using public swimming pools and bathing places. Implicit in Section 514.028, Florida Statutes, is the authority of the Department to grant variances from the rule requirements. Rule 10D-5.091(23), Florida Administrative Code, contains the following definition:

   (23) "Slip resistant" - Having a textured surface characteristic with a "wet" friction factor which is not conducive to slipping under contact of bare feet unlike glazed tile or masonry terrazzo and non-textured plastic materials.

   
   

7. Rule 10D-5.097(1), Florida Administrative Code, contains the following provisions:

   
   

   1. Pools shall be constructed of concrete or other impervious and structurally rigid materials with a finish adapted to the bathing demands of different areas of the pool. All side walls and bottom surfaces shall be watertight, free from structural cracks and shall have a smooth, easily

      cleanable, and slip resistant finish. Floors and walls below the gutter and six inch tile line 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 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. (emphasis added)

      
      

8. The walls and floor of the pool in question are constructed of glazed tile. There is no credible evidence that the glazed tile used in the subject pool is in any way different from ordinary glazed tile. It is clear from the definition at Rule 10D-5.091(23), Florida Administrative Code, that "glazed tile" is not a "slip resistant" surface. Rule 10D-5.097(1), Florida Administrative Code, requires that pool floors and walls have a "slip resistant" finish. Therefore the subject pool is in violation of the requirements of Rule 10D-5.097(1). Although there is opinion testimony that the glazed tile in the subject pool is less slippery that standard glazed tile, that testimony has been rejected as not worthy of belief because it is not supported by any factual basis to explain why the subject tile would be less slippery than ordinary glazed tile. On the record in this case, it is more likely that there was some error in the manner in which the pool's coefficient of friction was tested than it is likely that the glazed tile in this pool is remarkably different from other glazed tile.

   
   

9. The tiles that make up the vast majority of the surface of the floor and walls of the subject pool range in color from medium blue to dark blue and black. The floor and walls of the subject pool are certainly not "white or light pastel in color," as required by Rule 10D-5.097(1). Further, the dark color of the floor and walls of the subject pool fails to comply with the requirement of Rule 10D-5.097(1), that they "have the characteristic of reflecting rather than absorbing any natural or artificial light that may be incident upon the floor and wall surfaces."

10. The Petitioner argues that it is in compliance with the "spirit" of all of the rule requirements discussed above, and that, therefore, it should be granted a variance excusing it from specific compliance with the letter of those requirements. The Petitioner's argument fails in part because the subject pool does not comply with the "spirit" of the rule requirements respecting a "slip resistant" finish. Although somewhat inartfully worded, the rule specifically excludes the use of glazed tile as an acceptable pool surface. The Petitioner's argument does have merit with regard to the issue of the pool color. The greater weight of the evidence is that the color of Petitioner's pool does not cause any significant safety hazard.

RECOMMENDATION

For all of the foregoing reasons, it is recommended that that Department of Health and Rehabilitative Services enter a final order in this case denying the Petitioner a variance from the "slip resistant" surface requirement of Rule 10D- 5.097(1), Florida Administrative Code, and granting the Petitioner a variance from the requirement of that rule that the pool floor and walls be "white or light pastel in color."

DONE AND ENTERED this 15th day of May, 1989, at Tallahassee, Florida.

MICHAEL M. PARRISH

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 15th day of May, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4561

The following are my specific rulings on all of the proposed findings of fact submitted by all parties. Findings proposed by Petitioner

Paragraphs 1, 2, and 3: Rejected as not supported by persuasive competent substantial evidence. The Petitioner's expert testimony regarding the coefficient of friction of the tiles in question is not persuasive and has not been used as a basis for fact-finding in this case. The measurements made by the Petitioner's expert deviate dramatically from the measurements one would expect. There is no persuasive record basis to explain the deviation. The proffered suggestion that the amount of grout affected the measurements is not persuasive, because it is unlikely that the testing equipment came in contact with the grout, inasmuch as the surface of the grout is typically below the surface of the tiles.

Paragraph 4: Accepted.

Paragraph 5: Rejected as not supported by persuasive competent substantial evidence. (See discussion of Paragraphs 1, 2, and 3, above.)

Paragraph 6: First clause (through the word "tiles") is accepted in substance. The remainder is rejected as not supported by persuasive competent substantial evidence.

Paragraphs 7 through 20: Accepted in substance.

Findings proposed by Respondent Paragraphs 1 through 6: Accepted.

Paragraphs 7 through 9: Accepted in substance, but with numerous subordinate and unnecessary details omitted.

Paragraph 10: First sentence rejected as subordinate and unnecessary details. Second sentence rejected as constituting argument rather than proposed findings of fact.

Paragraphs 11 and 12: Accepted.

Paragraph 13: Rejected as not completely accurate; the tiles in the subject pool reflect less light than is reflected by a white or pastel colored pool.

Paragraph 14: Rejected as irrelevant, because even though the proposed statement is true, algae detection has not been a problem in the subject pool.

Paragraph 15: Rejected as constituting subordinate and unnecessary details. Paragraph 16: Rejected for same reason as rejection of Paragraph 14.

Paragraph 17: Rejected as being somewhat of an over statement. The subject pool is, however, less safe than a pool that complies with all of the applicable rule criteria.

Paragraph 18: Rejected as not supported by persuasive competent substantial evidence. Although the Respondent's expert testified to the opinion proposed in this paragraph, I have not made any finding based on that opinion testimony, because the basis for the opinion is essentially unexplained in the record and appears to be more of a "feeling" than a "fact." Further, other evidence in the record indicates that depth perception in swimming pools is affected by a number of variables other than pool color.

Paragraph 19: Rejected as irrelevant, as well as for the reasons discussed immediately above.

Paragraph 20: Rejected as subordinate and unnecessary details. Paragraphs 21 through 23: Accepted in substance.

Paragraph 24: Rejected as subordinate and unnecessary details.

Paragraph 25: First sentence rejected as contrary to the greater weight of the evidence. The remainder of this paragraph is rejected as unnecessary repetition of previously proposed facts.

COPIES FURNISHED:

Mark A. Hruska, Esquire Vernis & Bowling, P.A. Post Office Drawer 529 Islamorada, Florida 33036

Morton Laitner, Esquire

401 North West 2nd Avenue Suite 5424

Miami, Florida 33128

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

John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard 7

Tallahassee, Florida 32399-0700

Docket for Case No: 88-004561

Orders for Case No: 88-004561