STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1925

) THE FAIRWAYS, TOWNHOUSES AND ) VILLAS, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on September 28, 1979, in Bradenton, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. The parties stipulated to late submission of their proposed findings, which were received December 12, 1979. On December 19, 1979, an Order was entered directing the parties to respond to the question of which rules should be applied to this case, the rules having been repealed under which the application was made and the agency's decision determined. Only the Respondent, The Fairways, Townhouses and Villas (Fairways), responded, urging that the repealed rules be applied. Considering the arguments advanced by the Respondent, the repealed rules were determined to be applicable by separate order

APPEARANCES

For Petitioner: Amelia Park, Esquire and

Janice Sorter, Esquire Department of Health and

Rehabilitative Services

W. T. Edwards Facility

4000 West Buffalo Avenue, 4th Floor Tampa, Florida 33614

For Respondent: David Paul Montgomery, Esquire

2103 Manatee Avenue, West Bradenton, Florida 33505

ISSUE

The legal issues raised and the status of the parties in this cause are seemingly complex due to the manner in which the case was presented on the initial pleadings to the Division of Administrative Hearings. At bearing, it was determined that Fairways was seeking approval of a permit for use of its swimming pool. This application had been denied by the Department of Health and Rehabilitative Services on the grounds that the pool failed to meet the requirements of Rule 100-5.50, Florida Administrative Code. In order to place the parties in their proper positions, the Respondent, Fairways, was determined

to be the movant party and its cross-petition considered to be the petition. The ultimate issue presented is whether the subject pool meets the requirements of Rule 100-5.50 and its use should be approved.

PRELIMINARY RULINGS

Fairways collaterally attacks the manner of application of the rule by the Department to its pool, asserting that the manner of application of the rule constitutes an unpromulgated rule. Fairways also alleges in its proposed findings that Rule 100-5.50 is an invalid exercise of validly delegated legislative authority, and that the Department is estopped to assert the pool fails to comply with Rule 100-5.50 because of a failure to communicate properly the conditional approval of construction of the pool. The allegations that the Department's application of Rule 100-5.50 constitutes an unpromulgated rule and that Rule 100-5.50 is invalid are raised for the first time in Fairways' proposed findings. The original petition (cross-petition) makes no allegation that Rule 100-5.50 is invalid, and makes no allegation that the manner of measurement is an invalidly promulgated rule. These allegations would not be properly raised within the context of a Section 120.57(1), Florida Statutes, proceeding. Although invalidity of the rules on constitutional grounds is preserved in the record for appellate review, the nature of the allegations in this instance are not grounded in a constitutional challenge. Having failed to raise these issues in their pleadings under the appropriate provision of Chapter 120, Florida Statutes, these attacks will not be considered in determining the issue presented in this proceeding.

FINDINGS OF FACT

1. Respondent is a six-building complex containing 13 condominium units, each building being situated on a separate lot circumscribed by property lines outlining the property within the exclusive possession and control of the occupants of the condominiums. The pool in question is located upon jointly held property and is not intended to be and has not been open for use by the public or persons other than the occupants of the condominiums and their guests.

   
   

2. On April 2, 1979, Fairways submitted a site plan (Joint Exhibit number

   4) to Petitioner at the Manatee County Health Department. The site plan showed the proposed location of the pool in relation to the condominium buildings. Approval of these plans by the Department was necessary in order for a construction permit to be issued for the pool.

   
   

3. By a letter dated May 30, 1979 (Joint Exhibit number 2), Mr. O. P. Randle, Jr., Engineer for the Department, granted approval for the pool plans with the condition that "Wet facilities shall be provided within two hundred

   (200) feet of the pool."

   
   

4. Between April 4 and May 30, 1979, Ms. Rosemary Wiley, Engineering Technician with the Department, orally informed Fairways' "project engineer" that several units were more than 200 feet from the proposed pool and that wet facilities would be required. During this period, Wiley also informed Fairways' pool contractor of the same condition and requirements.

   
   

5. A construction permit for the pool was secured by Fairways' pool contractor on June 4, 1979. Construction of the pool began during the first week of June, 1979, and was substantially finished by July 5, 1979.

6. Shortly after June 17, 1979, Fairways contacted the Department's local pollution control director, who visited Fairways and measured the distance between the water's edge of the pool and the farthest building. The method of measurement employed by the Health Department was to measure the shortest distance between the edge of the pool and the structure of the building.

   
   

7. The method of measurement used by the Department has been in use 16 years and evolved because measurement from the pool to the actual sanitary facility located within a building is impractical.

   
   

8. The only building which was not within 200 feet of the water's edge of the pool was Building 6, containing two dwelling units, which was 241 feet from the edge of the pool. Part of Building 5 is more than 200 feet from the edge of the pool; however, its closest edge is within 200 feet of the pool, meeting the requirement for wet facilities.

   
   

9. The only toilets and lavatories constructed at this site are those contained in the individual condominium units. These facilities are not open to use by the public or other condominium owners.

   
   

10. By letter dated June 23, 1979, the local pollution director, at the request of the Health Officer, requested from the Chief of Public Health Engineering Services an interpretation of the method of measuring the 200 feet provided in Rule 100-5.50. The request of the Health Officer was precipitated by a request for section interpretation by Fairways' agent. The request dealt specifically with what was required to be within the 200-foot radius of the pool.

    
    

11. The interpretation of the Chief of Public Health Engineering Services was contained in his letter dated July 5, 1979, addressed to the District VI pollution control director. This interpretation advised that the building's edge must touch or fall within a 200-foot radius of the pool. This letter also advised that the Department had no power to consider or grant variances or exceptions to the rules. The information contained in this interpretation was communicated to Fairways' agent.

    
    

12. Other proposed findings of fact presented by the Petitioner and Respondent are specifically rejected.

    
    

    CONCLUSIONS OF LAW

    
    

13. Rules 10D-5.31 and 10D5.32, Florida Administrative Code, provide for the classification of pools. Rule 10D-5.32(4), supra1 specifically exempts private pools from Chapter 10D-5, Florida Administrative Code. However, Rule 10D-5.13(4) exempts cooperative housing or joint tenancy of three or more dwelling units from the definition of a "private pool. The pool in question is a pool subject to regulation since it is held jointly by the owners of 13 dwelling units.

    
    

14. The facts show that Fairways applied for and received approval to build a public pool. Approval for construction of this pool was granted on the condition that wet facilities be provided within 200 feet of this pool. This approval had to occur before construction commenced and be communicated to the pool contractor in order for the contractor to draw the construction permit from the appropriate authority. Therefore, approval and the condition for approval were communicated to the pool contractor, and also communicated to other representatives of Fairways. Fairways or its agents were on notice of the

    condition requiring wet facilities within 200 feet of the pool prior to commencing construction. There is no basis for estopping the Department of Health and Rehabilitative Services from application of its rules to this pool.

    
    

15. The facts show that Building 6 containing two of the dwelling units falls outside a 200-foot radius from the pool. The remaining units fall within a 200-foot radius to include one unit, Building 5, which lies partially outside the 200-foot radius. All measurements were taken from the closest point of the pool's water's edge to the closest point of the structure containing the wet facilities. Testimony was received that this manner of measurement evolved as the most practical means of applying Rule 100-5.50 and has been used in applying the rule for many years. Testimony was also received that 10D-5.50 is based upon the recognized need to provide facilities for waste elimination close enough to a pool to encourage use of these facilities. The Department's witnesses testified that the effectiveness of this rule is demonstrated by the low rate of communicable disease traceable to the use of pools in our state. Although one can argue that public health might be better served by reduction of the distance to 150 feet, or that there would be no appreciable detriment to the public health if the distance were increased to 250 feet, that is not the standard or test to be used in determining the reasonableness of a rule. The test is whether the rule as enacted is reasonably related to the purposes of the enabling legislation and is not arbitrary or capricious (1 Fla. Jur 2d, Administrative Law, Section 56). Clearly, the distance selected is related to the relative convenience of the facilities and the availability of wet facilities directly related to the protection of the public health. Section 514.02, Florida Statutes, provides in pertinent part that the Department may make and enforce such rules as it shall deem proper pertaining to the supervision of swimming pools. Rule 100-5.50 is clearly authorized.

    
    

16. The Department's application of Rule 100-5.50, or more aptly the means of measuring the distance of 200 feet provided in the rule, is not unreasonable. The means the Department uses to measure this distance comports with and is implicit in the plain meaning of the rule. The measurement of the 200-foot distance from the closest water's edge of the pool to the closest edge of the structure containing the wet facilities enhances application of the rule, making it simple for the Department and the public to determine compliance with the rule.

    
    

17. There is no stated authority in the rules to grant any variance to the existing rules. The statutes grant authority to the Department to adopt rules to carry into effect the provisions of Chapter 415, Florida Statutes. The authority to enact rules carries with it the authority to provide exceptions and variances. However, the authority that permits the agency to adopt an exception or provide a variance is also the authority not to provide an exception or variance. This is a matter of administrative or executive discretion on the part of the agency head,

    
    

18. The applicant has the burden to show that it is entitled to the permit for use of its pool. It has failed to show that it meets the criteria for issuance of a permit by failing to show its compliance with the conditions imposed by the Department in granting the permit for construction of the pool.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department deny the application of the applicant for a permit of use.

DONE and ORDERED this 6th day of February, 1980, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Amelia Park, Esquire Department of HRS

W. T. Edwards Facility

4000 West Buffalo Avenue, 4th Floor Tampa, Florida 33614

Janice Sorter, Esquire Department of HRS

W. T. Edwards Facility

4000 West Buffalo Avenue, 4th Floor Tampa, Florida 33614

David Paul Montgomery, Esquire 2103 Manatee Avenue, West Bradenton, Florida 33505

Docket for Case No: 79-001925

Orders for Case No: 79-001925