STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COPPER DOOR II, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 81-2321

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on November 19, 1981, in St. Petersburg, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This proceeding was initiated by a notice of violation contained in a letter to Respondent from Petitioner dated July 28, 1981, alleging that Respondent used its swimming pool without an operating permit as required by Rule 100-5.65, Florida Administrative Code. No transcript of these proceedings has been provided, and no briefs or proposed findings of fact have been filed.

APPEARANCES

For Petitioner: William W. Chastain, Esquire

412 Madison Street, Suite 1207 Post Office Box 222

Tampa, Florida 33601

For Respondent: Donald R. Odom, Esquire

Department of Health and Rehabilitative Services

2255 East Bay Drive Post Office Box 5046

Clearwater, Florida 33518 PRELIMINARY STATEMENT

Copper Door II, Inc. (Copper Door), is a private nonprofit club. It contracted with Lang Aquatech Pools (Lang) to construct a public swimming pool subject to regulation by the Department of Health and Rehabilitative Services.

During construction, Copper Door encountered financial problems and fell behind in paying for the pool. An agreement was reached under which Lang agreed to finish the pool upon receipt of a payment of $5,000. Copper Door made the required payment, but Lang did not finish the pool. Thereafter, Copper Door made alternative arrangements to have the pool finished. Work on the job was performed under building permits issued by the local jurisdiction and was subject to the inspection of local officials.

Copper Door opened its pool to the public and was cited by the Department for violation of Rule 100-5.65, Florida Administrative Code. The Department has refused to issue a permit because the application form for an operating permit requires the signature of the engineer and the contractor, both of whom have refused to execute the documents. Therefore, the issue in this case is not only whether Copper Door violated the Department's rule, but also whether the Department properly refused to issue a permit to Copper Door.

FINDINGS OF FACT

1. On August 1, 1980, Copper Door II, Inc., entered into a contract with Lang Aquatech Pools to construct a swimming pool for $22,338.

   
   

2. Lang began construction, but Copper Door did not maintain the payment schedule called for in the contract, whereupon Lang terminated work on the pool.

   
   

3. The parties later reached an agreement that upon payment of $5,000 by Copper Door to Lang work would recommence.

   
   

4. After payment by Copper Door of the $5,000, little if any work was performed by Lang toward completion of the pool.

   
   

5. Copper Door took over construction and subcontracted the remainder of the work on the pool.

   
   

6. The pool was opened to the public by Copper Door and cited by the Department of Health and Rehabilitative Services for failure to have an operating permit in violation of Rule 10D-5.65, Florida Administrative Code.

   
   

7. Copper Door has been unable to obtain an operating permit because of its inability to complete an application for an operating permit. The Department's application form for an operating permit (Hearing Officer's Exhibit No. 1) requires execution of a certificate by the pool's engineer and contractor. Because of the aforementioned financial dispute, neither Lang nor its engineer would sign the form. The form requires that both the pool contractor and engineer be registered or certified with the state.

   
   

8. The pool was designed by an engineer registered in the State of Florida. Further, the design of the pool was approved by the Department prior to commencement of construction.

   
   

9. Work completed by Copper Door after abandonment of construction by Lang included the application of concrete to the inside of the pool, pouring of the decking, installation of a water circulating pump, and a portion of the electrical work. All other work was done by Lang.

   
   

10. The pool performs properly and in accordance with other public pools granted operating permits by the Department.

    
    

11. The pool was subject to inspection by local building officials. These officials were responsible for ensuring that construction was in accord with plans approved by the Department and local building codes.

    
    

12. The Department does not inspect pools during construction. The Department looks instead to the certificate of the contractor and engineer to ensure that a pool meets applicable requirements.

13. The Department's application form has not been adopted by rule or as a rule.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction in this matter and of the parties thereto pursuant to Section 120.57, Florida Statutes.

    
    

15. Section 514.03(1)(a), Florida Statutes, provides:

    
    

    1. Any person, institution, municipality, or county desiring to construct, develop, add to, or modify any public swimming pool or bathing place within the state shall file application for permit with the department, on application forms provided by the department, and shall accompany such application with:

       1. Engineering drawings, specifications, descriptions, and detailed

          maps of the structure, its appurtenances and its intended operation.

          
          

16. Section 513.031(1)(a), Florida Statutes, provides:

    
    

    1. Any person, institution, municipality, or county desiring to operate any public swimming pool or bathing place within the state shall file application for permit with the department, on application forms provided by the department, and shall accompany such application with:

       1. Descriptions of the structure, its appurtenances, and its operation.

          
          

17. The Department has adopted Rule 10D-5.64(5), Florida Administrative Code, which provides as follows:

    
    

    All drawings, specifications, and data, including basis for sizing of the pool, required with the application shall be prepared by an engineer, or engineers, licensed in the State of Florida under provisions of Chapter 471 of the Florida Statutes, and shall fulfill the requirements of Section 471.30, Florida Statutes.

    
    

18. The Department has also adopted Rule 10D-5.65(4), Florida Administrative Code, which requires execution of an appropriate certification from the pool's owner, the design engineer, the contractor and the Department engineer. The contractor's certificate and engineer's certificate are identical and provide:

    I certify that to the best of my knowledge and belief, the construction and equipment installation as indicated in this application has been completed and installed in conformation with the approved plans and specifications.

    
    

19. The Department has refused to accept Petitioner's application for an operating permit because the engineer's and contractor's certificates were not executed. The original contractor and his engineer refused to sign the application because of a financial dispute with the owner.

    
    

20. The pool was finished by the owner. There is no legal prohibition against an owner doing such work, nor is there any legal requirement that the contractor be licensed or registered. The certificate on the Department's application form sought the contractor's registration or certification number, but no statute or rule requires such construction to be performed by a licensed or registered contractor.

    
    

21. Rule 10D-5.65(4), Florida Administrative Code, requires that the design engineer execute an appropriate certification on the application form for an operating permit. The form of the certificate is the same as that required of the contractor, quoted above. The facts show that the construction permit was issued which required that the plans as drawn by the design engineer be approved by the Department. At this point there are no questions about the adequacy of the design, and the certificate does not relate to the design aspects of the pool. The certificate addresses whether the pool was built as designed.

    
    

22. The facts reveal that the design engineer and the contractor have refused to execute the certificate as a result of their disassociation with the project due to a contract dispute. The rules make no provision for alternative means of establishing that the pool has been properly constructed. In practice, such an alternative method must be implied, because there are many circumstances in which the engineer could be unable or unwilling to execute the certificate. Under such conditions the owner cannot be deprived of the use of his pool by a rule adopted to protect the public health solely by virtue of the engineer's inability or unwillingness to execute the application form.

    
    

23. The facts reveal that the pool in question was subject to local building codes and inspection by local officials. The rule also requires a final inspection by the Department's engineer and execution by the Department's engineer of a certificate which provides:

    
    

    I hereby certify that an inspection of this pool has been made and the foregoing information is correct to the best of my knowledge and belief.

    
    

24. Documentation that the pool was inspected and approved by local building officials can establish whether the pool was built in accordance with the plans. The Department's inspector is qualified to examine the equipment and its installation to check whether it is in accord with the plans. If necessary, the Department's inspector may check flow rates, chemical levels, etc. to

determine if the pool is operating according to the Department's requirements. The documentary evidence of the approval by local building officials together with the findings of the Department's engineer can establish whether the pool was built as designed. That is the objective of the rules, and collateral proof of the facts may be substituted for the engineer's certificate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Health and Rehabilitative Services accept the application of Copper Door II, Inc., upon execution of the contractor's certificate by Copper Door as owner. Copper Door must keep the pool closed until its application is approved.

DONE and ORDERED this 18th day of February, 1982, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1982.

COPIES FURNISHED:

William W. Chastain, Esquire

412 Madison Street, Suite 1207 Post Office Box 222

Tampa, Florida 33601

Donald R. Odom, Esquire Department of Health and

Rehabilitative Services 2255 East Bay Drive

Post Office Box 5046 Clearwater, Florida 33518

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 81-002321

Orders for Case No: 81-002321