Judges: K. N. AYERS
Agency: Department of Health
Latest Update: Oct. 15, 1976
Summary: By this petition the Florida Game and Fresh Water Fish commission (GFWFC) seeks administrative review of Respondent's, Department of Health and Rehabilitative Services (HRS), denial of a permit to operate a swimming facility at the J. W. Corbett Wildlife Management Area, Palm Beach County, Florida, in connection with its operation of the Everglades Youth Camp. Four witnesses were called by Petitioner, Six witnesses were called by Respondent, twenty exhibits were offered into evidence, and sixtee
Summary: By this petition the Florida Game and Fresh Water Fish commission (GFWFC) seeks administrative review of Respondent's, Department of Health and Rehabilitative Services (HRS), denial of a permit to operate a swimming facility at the J. W. Corbett Wildlife Management Area, Palm Beach County, Florida, in connection with its operation of the Everglades Youth Camp. Four witnesses were called by Petitioner, Six witnesses were called by Respondent, twenty exhibits were offered into evidence, and sixteen exhibits were admitted. Objection to the admission of Exhibits 6, 7 and 8 was sustained on the ground that the photographs could not be identified by a witness who could testify to the accuracy of the photographs. Objection to the admission of Exhibit 14, a copy of a letter from Geotec, Inc., to the Youth Camp was sustained on the ground that it was hearsay. Subsequently, however, testimony was adduced that Respondent relied in part upon the exhibits not admitted in denying the permit requested.Construction of rule means the only pollutants that count in the permitting of public natural swimming places are industrial/sewage ones. Issue permit.
More
vs. ) CASE NO. 76-914
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled cause on June 10, 1976, at Tallahassee, Florida.
For Petitioner: Thomas A. Harris
For Respondent: Robert M. Eisenberg, Esquire
By this petition the Florida Game and Fresh Water Fish commission (GFWFC) seeks administrative review of Respondent's, Department of Health and Rehabilitative Services (HRS), denial of a permit to operate a swimming facility at the J. W. Corbett Wildlife Management Area, Palm Beach County, Florida, in connection with its operation of the Everglades Youth Camp. Four witnesses were called by Petitioner, Six witnesses were called by Respondent, twenty exhibits were offered into evidence, and sixteen exhibits were admitted. Objection to the admission of Exhibits 6, 7 and 8 was sustained on the ground that the photographs could not be identified by a witness who could testify to the accuracy of the photographs. Objection to the admission of Exhibit 14, a copy of a letter from Geotec, Inc., to the Youth Camp was sustained on the ground that it was hearsay. Subsequently, however, testimony was adduced that Respondent relied in part upon the exhibits not admitted in denying the permit requested.
Petitioner, GFWFC, has operated a youth camp at the J. W. Corbett Wildlife Management Area in Palm Beach County for the past six years. The camp is attended by youths of both sexes, ages 8 to 14 years. Normal facilities expected at a camp of this nature, including a sewage treatment plant, are provided. During the summer camp period 90 to 110 campers per week are enrolled. At other times the facilities are utilized on weekends by scout groups and clubs.
A six-acre lake with a maximum depth of 6 to 8 feet forms an essential part of the recreation facilities of the camp. Over the years GFWFC has removed silt from the lake and most of the area now used for swimming has a white sand bottom.
There are no streams that feed the lake. The water level in the lake is maintained by the ground water table in the area.
During the camp season the lake is used by swimmers twice per day--once in the morning and once in the afternoon. Bacteriological samples of the water are taken at weekly intervals during the camping season and more frequently if the coliform count is high. Medical records of the camp indicate the only
water-related diseases experienced by the campers has been ear infections which average 5 to 10 per week. As a result of the incidence of ear infections the doctor recommended ear drops be administered to all swimmers.
The Director of the camp recalled only one time when the coliform count reached 1,000 organisms per 100 milliliters. On that occasion he put chlorine in the lake and the coliform count returned to a low reading.
Exhibit 3 shows most probable number (MPN) coliform count per 100 milliliters in the youth camp lake in July and August, 1974 and 1974, during the camping season to vary between 1 and 450, for an average of approximately 115 coliform organisms per 100 milliliters.
Recently Petitioner pumped down the lake to remove accumulated silt, regrade the lake to reduce surface water runoff into the lake and to create an outfall to permit water to flow out of the lake. During this evolution the question of a permit arose and after application therefor was made by Petitioner, Respondent refused to issue the permit which is required by Chapter 514, F.S. for the operation of a public swimming place.
In the application for permit (Exhibit 1) submitted by Petitioner the information required by 504.03 F.S. and Rule 10D-5.24 F.A.C. was included.
Palm Beach County Health authorities consider no lake that does not receive flushing from a spring or artesian source to be a natural swimming place or able to qualify for a permit. These authorities recommended denial of the permit in the instant case. They consider all of the small lakes west of the coastal ridge in Palm Beach County to be not lakes, but mere depressions in the ground which receive their water supply from the ground water table.
The reasons for denial of the permit by HRS are shown in Exhibit 2 as follows:
"1. Non-compliance with Subsection 10D-5.24(1) FAC in that sanitary surveys show no water flow-through or feed to the
requested pond area except by surface run-off and/or rainfall; water from ground water table may possibly provide a minimal source of water when the head pressure of the filled pond is eliminated. Accordingly, there is no flushing of said pond.
The pond being in a non-fenced area in a natural habitat is not protected from animal body pollution, and additionally, will be receiving bather pollution.
With no flow-through, bathtub-like conditions described above, the subject pond constitutes an area by or through which the health or life of individuals may be threatened or impaired or directly or indirectly disease may be caused
(386.01 F.S. and 10D-5.24 FAC).
The marl shores and sides of the pond retain water and thereby are capable of retaining water-borne diseases.
There is a high likelihood the pond will be subject to high turbidity in the bathing area.
In the past the bacterial quality of the pond water has been erratic.
* * *
8. (sic) That the holding out of the pond subject herein by the Commission in a youth camp under the conditions described above places, and in fact encourages, the use of said facility by young people and subjects them to a high probability and potential risk dangerous to their health and the health of the community and the
health of the people of the State of Florida, contrary to the injunction of the
Legislature of the State of Florida to this agency to protect and oversee the public health (Chapters 381, 386, 514 F.S.)."
In conducting a sanitary survey Palm Beach County officials consider all other forms of pollution in addition to the possible sources of sewage contamination and industrial wastes specified in Rule 10D-5.24(1) F.A.C. These "other forms of pollution" are interpreted by Palm Beach County officials to include plant nutrients, organic chemicals, heat, and any and all forms of pollution that could cause health problems including wild animals having access to the lake, sedimentation, turbidity of the water, decaying vegetation, and water retention capability of the lake boundary. Otherwise stated they consider all scientific information available on pollution in determining whether or not a natural swimming place will be granted a permit. There are no fresh water natural swimming places in Palm Beach County that have current permits.
HRS in denying the permit in the instant case relied heavily upon the recommendation of Palm Beach County.
HRS considers natural swimming places should be as free from pollution and communicable diseases as possible. Without some flushing of the system pollutants will increase, principally from use by bathers, and these pollutants will remain in the water for a long time. No evidence was submitted regarding the dissipation of pollutants by aeration, bacteria, animal life, etc.
In order for the youth camp lake to meet the dilution criteria considered necessary by HRS, 50,000 gallons of water per day into the lake is required. Otherwise the water would need filtering and the addition of approximately 1,000 pounds of chlorine per day.
In denying the permit HRS adopted the position of Palm Beach County that flushing of the lake was necessary in order to dilute the pollutants.
Leon County Health officials use only the criteria listed in Rule 100-
5.24 F.A.C. in determining whether or not to recommend granting a permit for a natural public bathing place. The bacteriological survey is done by Leon County rather than by the applicant. Several lakes in Leon County have been issued permits. Some in U.S. National Forests were formerly permitted while operated by a concessionaire, but now that they are operated by the Forestry Division no permit is applied for. Some of the lakes used as natural swimming places in Leon County have no source of water supply other than the ground water table. The bacteria count is taken at weekly intervals and at lakes which get heavy usage the coliform count exceeds 1,000 organisms per 100 milliliters following heavy Sunday afternoon usage. The coliform count can be reduced by the use of chlorine; however, there is no assurance in natural swimming places that the chlorine will be evenly distributed or that all areas of the lake will receive chlorine.
Other natural swimming places in Leon County are used by swimmers but a permit has not been recommended by the county because the coliform count is over 1,000 organisms per 100 milliliters.
A national committee on water quality criteria for swimming pools and bathing places has recommended discontinuance of the use of total coliform count in determining the condition of the water from a public health standpoint. They would use only fecal coliform count and recommend that all factors that may pollute the water be considered and that dilution of the pollution by the flow- through of water should be a requirement for bathing places.
Other witnesses for HRS attested to the dangers to the health of swimmers using the same water used by other swimmers, wild animals, and waterfowl.
Swimmers pollute the water with fecal coliforms, virulent diptheria organisms from the nose and throat, as well as streptococci, staphylococci and other flagellates in nasal paryngeal passages.
Wild animals, notably raccoons, carry rabies, meningitis germs and salmonella. Waterfowl cause other diseases and droppings from these waterfowl remain viable on the lake bottom for years. Similarly, tetanus germs are carried in water by the soil. As a result water related injuries are subject to tetanus infection.
CONCLUSIONS OF LAW
Chapter 514 F.S. provides that public bathhouses and swimming places shall be supervised by HRS and that a permit is necessary for one to operate a bathing or swimming place. Section 514.03 F.S. provides in pertinent part:
"Any person, institution, municipality, or county desiring to . . . operate any bathing or swimming places shall file application for permission to do so with [HRS] which application shall be accompanied by detailed maps, drawings, specifications . . . and all other information and statistics that may be required by HRS whereupon HRS shall cause an investigation to be made for the proposed public bathing places, and if it determines as a fact that the same is or may reasonably be expected to become unclean or unsanitary or may constitute a menace to the public health, it shall deny the application for a permit; if it determines as a fact that the same is or may reasonably be expected to be conducted continuously in a clean and sanitary manner and will not constitute a menace to public health, it shall grant the application for permit under such restrictions as it shall deem proper."
Section 514.05 F.S. provides:
"Any permit granted by HRS as provided in this chapter shall be revocable or subject to suspension at any time, if it shall determine as a fact that the swimming or bathing places are being conducted in a manner unsanitary, unclean, or dangerous to the public health."
The provisions of Chapter 514 F.S. have been implemented by Chapter 10D-5 F.A.C. Therein regulations have been promulgated for both swimming pools and natural bathing places. The regulations pertaining to the latter are contained in Rule 10D-5.24 F.A.C. which provides:
"There are many natural bathing places in the State of Florida and adequate facilities should be provided and precautions should be taken to exercise control of the bathers and insure their health and well being. Permit to operate a natural public bathing place on any waters of this state shall be obtained from the Division of Health, and application
for permits shall be made upon forms obtained from the Division of Health on request.
Acceptability as a public bathing place shall be based on the following:
Surveys- A sanitary survey shall be made of the possible sources of sewage contamination, industrial waste or other forms of pollution and a written report
of this survey shall be submitted to the Division of Health for review.
Bacterial Quality - A bacteriological survey shall be made of the waters in the bathing place area and the average
coliform density indicated by this survey shall not exceed one thousand (1,000) most probable number of coliform organisms per one hundred (100) milliliters. This survey shall consist of a minimum of three bacteriological samples collected from the proposed bathing area daily for the first three (3) days of each week for three (3) consecutive weeks. The bacteriological results shall be reviewed in light of the sanitary survey.
Sanitary Facilities - Sanitary facilities should be provided in proportion to the anticipated bathing load.
Safety Recommendation - It is strongly recommended that a minimum of one
lifeguard should be provided for every one hundred (100) yards of beach or fraction thereof, and he should be a capable swimmer, competent in lifesaving and first aid methods, including methods of artificial resuscitation. Each lifeguard should man an elevated station or platform which is equipped with 15" diameter lifesaving ring with 100' of light, strong line of manila or other suitable material and a swimming buoy, diamond or torpedo type, with 100 to 300 feet of trail line. If bathing is permitted beyond a depth of
5 feet a square sterned boat of 10 to 12 feet in length or a surfboat not less than
16 feet long at salt water beaches, equipped with oars and oar locks, and one lifesaving ring with line, should be provided to patrol the outer edges of standing bathers during periods of maximum bathing loads. The outer safe limit or boundary of the bathing area should be marked with buoys or other markers visible to bathers and spaced at a maximum of 100 feet apart. For particularly hazardous bathing conditions or unusual crowding, it may be necessary to provide additional guards and equipment."
HRS acknowledges that the application herein meets all of the criteria for a permit contained in Rule 10D-5.24 F.A.C. with the possible exception of subsection (1) thereof regarding the sanitary survey. Accordingly the reasons given in Exhibit 2 for denying the permit relate to the sanitary survey.
The issue for determination is whether or not the sanitary survey requirement is sufficiently broad to encompass all health related matters as contended by Respondent.
Section 514.03 F.S. above quoted provides if HRS finds as a fact that the proposed bathing place is, or may reasonably be expected to become, unsanitary or a menace to the public health it shall deny the permit, otherwise tie permit shall be granted. The regulations with which we are here concerned were written by the agency assigned the responsibility of carrying out the legislative intent of Chapter 514 F.S. and presumably these regulations were promulgated shortly after the statute was enacted. The purpose of the regulations would appear to be to furnish guidelines to applicants as well as to those officials charged with carrying out the intent of the legislature. Accordingly, the regulations should be given great weight in ascertaining the legislative intent with respect to the standards to be followed in determining as a fact those public bathing places which are, or may be expected to become, dangerous to the public health.
Unfortunately the regulations contain the general words "or other forms of pollution" following the specific sources of pollution of sewage contaminants and industrial wastes. However, it is a well recognized rule of statutory construction that general words of a statute or rule which follow specific words are limited by the specific words. Under this rule of ejusdem generis where the enumeration of specific things is followed by a more general percent word or phrase, the general phrase is construed to refer to a thing of the same kind or species as included within the preceeding limiting and more confining terms. 30 FLA. JUR STAT. 92 and cases there cited. Thus, under this rule of construction the words "or other forms of pollution" refer to forms of pollution similar in kind to sewage contaminants and industrial wastes and does not include all possible sources of pollution as contended by Palm Beach County officials. Accordingly the reasons given in Exhibit 2 by HRS for denying the permit are not valid because they are not provided for by the regulations.
This is not to say that HRS could not, under the authority of Chapter
514 F.S., enact regulations that would require natural bathing places to have flowing water, be fenced, etc. However, the regulations now existing do not allow HRS to deny the application of GFWFC for a permit to operate the Everglades Youth Camp Lake when the proposed facility complies with Rule 10D-
5.24 F.A.C. One witness from Palm Beach County indicated that a committee had been appointed to consider changes to the regulations respecting public swimming places but had not been successful in getting these changes into the regulations. If so, the agency may not circumvent the administrative procedures for adopting rules by the expedient of a more liberal interpretation of the existing regulations.
Even under the general words of the statute HRS must make a factual determination that the proposed bathing facility is, or is likely to become a hazard to public health before the permit may be denied. The fact that the facility has been in existence for 6 years should provide an adequate base for such a factual determination. Other than the fact that this facility has been operated for the past 6 years without significant problem to the public health, no evidence was presented from which a factual determination can be made that the operation of this facility is likely to constitute a menace to the public health. In the event the facility is operated so that it does become a menace to the public health the authority to take remedial action, including closing the facility, has been granted to respondent by 514.05 F.S. quoted above.
From the foregoing it is concluded that in denying GFWFC application HRS relied upon grounds contained in neither the statutes nor the regulations. Accordingly, the permit was erroneously denied.
RECOMMENDED that the application of the Fresh Water Fish and Game Commission for a permit to operate a bathing facility at the Everglades Youth Camp be granted.
DONE and ENTERED this 1st day of July, 1976, in Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Robert M. Eisenberg, Esquire Thomas A. Harris, Esquire
