vs. ) CASE NO. 82-2671
Respondent. )
Pursuant to notice, an administrative hearing was held before ARNOLD H. POLLOCK, Hearing Officer with the Division of Administrative Hearings, at 9:00 a.m., February 22, 1983, in Cocoa Beach, Florida. The issue for determination at the hearing was whether the City's permit to operate a public swimming pool at the City recreation complex should be suspended or revoked because of the City's failure to comply with various provisions of Florida Statutes and Rules of the Department of Health and Rehabilitative Services relative to the operation of public pools.
For Petitioner: Robert P. Daniti, Esquire
For Respondent: William E. Weller, Esquire
By Administrative Complaint dated September 7, 1982, the Petitioner charges the Respondent with operation of its municipal swimming pool in violation of Florida Statutes and the Rules of the Department of Health and Rehabilitative Services in particular. On or about September 21, 1982, Respondent answered the complaint admitting it is licensed to operate the pool by the Petitioners, and its jurisdiction over the Respondent and pool. Respondent, for all intents and purposes denies the remaining allegations and further alleges that the only basis for revocation of the pool license is the existence of unsanitary, unclean, or dangerous conditions at the pool.
In support of the allegations, Petitioner introduced the testimony of Thomas P. Donigan, Loran Coffman, and Richard Hammerstrom, and Petitioner's Exhibits 1 through 22. Respondent introduced the testimony of Raymur Murray,
Dennis Hart, Bob Scott, Charles Billias, and Gary Hummel, and Respondent's Exhibits A through C.
The City of Cocoa Beach, Florida, was issued operating permit Number 5- 42-67, by the Florida State Board of Health on February 21, 1967, to operate a municipal swimming pool at the City recreation complex with a pool bathing capacity of 200 persons per hour and a pool bathing load of 800 persons.
Chapters 10D-5 and 17-22 of the Florida Administrative Code establish health, safety, and sanitation standards for public swimming pools.
The perimeter overflow gutter system for the pool in question is out of level and only partially operable. This condition has existed and has been known to exist by all concerned parties for many years prior to the dates in issue in this cause. The deep end of the pool has floated up approximately eight inches and the water level does not enter the overflow gutter at this point or at any other point except at the shallow end of the pool.
An effectively operating overflow gutter system is necessary to permit effective removal of surface contamination such as body or suntan oil, debris, leaves, bugs, sputum, and the like which are not removed by the bottom drain system. All of these contaminants contain bacteria and since most people swim on the surface in this unfiltered water, the cleanliness at this level is important to insure proper sanitation. If the surface water is not filtered, there is little protection afforded by chemicals added.
On April 9, 1981, Mr. Thomas Donigan, an Environmental Engineer for Brevard County, 1/ forwarded to the City of Cocoa Beach, a letter indicating that previously identified deficiencies in the gutter system had not been corrected, along with notification of other discrepancies in the pool complex which constituted violations of existing standards. When the City replied, admitting to the improper gutter system, but requesting reconsideration of the Petitioner's time limit stated for an affirmative proposal by the City, a more thorough inspection was conducted by Mr. Donigan and Mr. Loran Coffman, Regional Engineer for the Licensure and Certification Office of Petitioner, which revealed at least eleven substantial deficiencies, 2/ in addition to the gutter problem, all of which were brought to the attention of the City Manager by letter on June 8, 1981. This letter also advises the City to keep the pool closed to the public until these ancillary deficiencies could be corrected and the corrections confirmed. It also established a get-well date of January 1, 1982, for the gutter problem and advised of the right to an administrative hearing.
Mr. Donigan continued his inspections; and in August, 1981, he reported to HRS that some of the deficiencies previously cited had been corrected but some had not, including the inlet fixture and the stain. For some reason, not further explained, notwithstanding the direction to keep the pool closed, the pool was opened for public use that season, and in July, 1981, the City voted to remove all pool charges for the rest of that season. However, in August, 1981, the City did submit plans for modification of the scum gutter, but they were not acceptable and were returned disapproved, to the City. Finally, on October 7, 1981, appropriate plans to correct the gutter problem were approved by Mr. Donigan and returned to the City for accomplishment.
An inspection of the pool in April, 1982, by Mr. Coffman and Mr. Donigan revealed several previously identified discrepancies as still uncorrected and the gutter problem still existing. In May, 1982, another inspection by Mr. Coffman showing not only no improvement but apparently some deterioration in the pool operating condition. On July 27, 1982, the Director of the Office of Licensure and Certification, HRS, by letter to the City Manager informed the City of the results of that inspection and requesting, by August 16, 1982, a statement of the City's position and plans with regard to correcting the gutter system and the remaining problems. The City Manager responded by letter dated August 13, 1982, and indicated that all of the ancillary deficiencies except the stains had been "taken care of" and that to drain the pool to get the stains out would be too costly. The issue of the gutters was completely ignored and the City indicated that in its opinion, the pool was safe for public use. Notwithstanding Mr. Johnson's allegations that those problems except the stain had been "taken care of", a later inspection by Mr. Donigan, in the company of the City Recreation Director, showed that only one had been corrected.
The stains on the pool walls cannot be definitely attributed to any particular cause at this time; however, one strong possibility is a long- standing low pH level in the pool that would cause a precipitation of iron from the pipes. In addition, the stain can prevent dirt in the pool from being observed and removed. It was argued that the stain might also hinder someone from being able to see a patron in distress in the pool. The importance of pH is that improper pH level reduces the effectiveness of the chlorine residual in the pool water, and the missing inlet covers in the pool bottom are hazardous in that a foot, hand, or finger may become stuck in them, thereby keeping the individual beneath the water. The depth markers being missing is also a hazard when it comes to people diving into the pool from the edge. Vacuum breakers on the hose bibbs at the pool deck area prevent contamination of the public water system by back siphonage of water from the pool or deck area.
City witnesses, while admitting that the gutter system is incorrect as it exists, indicated that the prevailing wind flow from the out-of-the-water deep end of the pool to the properly working shallow end tended to mitigate the effect of the gutter deficiency on water quality. The City conducted daily tests of water quality at its own laboratory at the Water Treatment Plant. These continuing tests failed to reveal any improper or dangerous condition in the water, but, admittedly, this laboratory is not certified for tests of this kind; however, in addition to these tests, the pool manager monitored the chlorine and pH levels on a daily basis during the winter and every hour during the summer, and when chemical levels need adjusting, he adds as required.
Further, the County Health Department checks water quality twice a week when the pool is operational. Several reports from the County of high coliform bacteria counts were subsequently determined to have been in error, and there has never been a high count from the City laboratory. In the eight years of operation by the current manager, the only illness complaints attributable to swimming in the pool were several ear infections, which are common at any swimming facility.
Other rebuttal evidence related to the vacuum breakers which are in every outlet to the pool water. Most significant is the estimate which the City gives for repair of the gutter system and which the City is apparently unwilling to undertake. Repair costs would be approximately $60,000.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1981).
The Department of Health and Rehabilitative Services has jurisdiction over the Respondent and the subject public swimming pool [Section 514.02, Florida Statutes (1981)], and any permit granted by the Department of HRS shall be revokable or subject to suspension at any time, if it shall determine as a fact that the public pool is being conducted in a manner unsanitary, unclean, or dangerous to public health or safety. (Section 514.05) The governing words in this section are "unsanitary," "unclean," and "dangerous to public health or safety."
Rule 10D-5.67(7)(a), Florida Administrative Code, states:
The lip of the gutter shall be uniformly level and the bottom of the gutter shall be level or accordance with Section 10D-5.74(1), (3) and
(4) not exceed ten (10) feet for two (2) inch drains nor fifteen (15) feet for two and
one-half (2 1/2) inch drains.
Both parties hereto agree that neither the lip of the gutter at the Cocoa Beach pool nor the bottom thereof are level over most of the surface. This condition has existed for a substantial period of time. The City is and has been aware of the condition and that the condition places it in violation of the rule, and though acceptable corrective plans were submitted by the City and approved by HRS, the City has steadfastly refused to correct the situation, citing cost as the major consideration. Cost is, in fact, a consideration, but not the governing consideration, and there is no question the City is in violation of the rule.
Rule 10D-5.69(5), Florida Administrative Code, states:
Inlets - The number of pool inlets shall be adequate to handle the recirculated flow and prevent dead spots. All inlets shall be adjustable and the minimum number of inlets shall be based on one (1) for each twenty (20) feet or fraction thereof of pool (gutter line) perimeter. Pools in excess of thirty (30) feet in width require floor inlets spaced not greater than twenty (20) feet apart and not greater than ten (10) feet from a pool wall.
Floor inlets shall be installed flush with the pool floor.
As late as May 28, 1982, an inspection of this pool revealed one inlet was completely missing and two others were non-functional. If an inlet is missing or inoperable, obviously the area it was supposed to provide for is uncovered, and it cannot be considered as adjustable as provided for in the rule.
Accordingly, Petitioner has shown a violation of this rule.
Rule 10D-5.67(3)(b), Florida Administrative Code, states:
Minimum four (4) inch high permanent depth markings (with color contrasting to the background) shall be located on both the inside and outside risers of the curbing on both sides of the pool at the shallow end, slope break, deep end wall, and deep point, and shall be legible from inside the pool and also from the pool deck.
As of May 28, 1982, some of the depth markers were missing. There was no evidence presented by Respondent to show they had been replaced, so one may conclude they are still missing. Also, since the rule specifically provides for placement and specific points both inside and outside the pool, and an issue was made of the fact that some were missing, it can be inferred that those missing are some of those required. Consequently, the evidence shows Respondent to be in violation of the rule.
Rule 10D-5.68(2), Florida Administrative Code, states:
To avoid a cross-connection, an atmospheric break shall be provided in each pool water supply line that is connected to a municipal or other public water supply. Vacuum breakers shall be installed on all hose bibbs as required by Section 10D-9.31(4)(a) and (e), Florida Administrative Code.
This rule appears to require an atmospheric break in each pool water supply line (emphasis mine) that is connected to the public water supply. The vacuum breakers missing are from deck water hoses, not pool supply lines. While there is, undoubtedly, some requirement that a breaker be on any line which connects to a public water supply, i.e. garden lines, outside house lines, sprinkler lines, etc., that is not required by this particular rule, allegedly violated here, which refers to pool water supply lines. The evidence shows that such pool water supply line has a bibb attached. Therefore, this rule is not presently being violated.
Rule 10D-5.68(5), Florida Administrative Code, states:
Cleanliness - The pool and pool deck shall be kept free from sediment, visible dirt, and algae. Pools shall be refinished when the pool wall and floor surfaces cannot be maintained in a safe and sanitary condition.
All parties agree that the walls and bottom are stained and that the only way to correct the problem is to resurface the pool. That is exactly what is envisioned and required by the rule, and ample time of nonpool use exists during the closed months to do this. Further, the expense is not so great as to be a burden on the Respondent. Clearly, then, this situation is a violation of the rule.
The allegations contained in Paragraph 4 of the Administrative Complaint, to the effect that pool water did not meet the bacteriological water quality standards for public swimming pools, in violation of Rules 10D-5.68(3) and 17-22.104(1)(d), Florida Administrative Code, on April 12, July 12, and August 16, 1982, have not been proven.
Once violations of the rules are established, as to a large degree they have been here, the next question is what effect this has on the Respondent. Petitioner asserts that proof of violation alone is sufficient to invoke the penalty allowed by the statute. It alleges that a violation of a rule promulgated under the enabling statute, which rule is not successfully challenged, must be presumed to bring into play the operative word of the statute permitting sanction, and that there is no need for a showing of actual injury in order to bring the sanctions into play. Here, as was stated before, the test is a finding that, as a matter of fact, the public pool is unsanitary, unclean, or a danger to public health or safety.
Petitioner also asserts that the City's laboratory at the Water Treatment Plant is uncertified and, as a result, the water tests done by that facility have no probative value. I am not satisfied that position is supportable, but there is no need to resolve that point here. Evidence showed that in addition to the daily city tests, the county ran water tests on a twice weekly basis when the pool was open for use and not once was there a provable incident of substandard water; and, thankfully, there is no evidence that any individual has ever been made sick by swimming in that pool.
However, the fact that a tragedy has not yet happened does not, of itself, establish that the pool is truly sanitary, clean, or safe. In fact, the pool condition, while not now unsanitary, and while not now unclean, is, nonetheless, in many particulars, unsafe. The rules promulgated by the Department of HRS were designed to protect the public from the more readily possible dangers involved in the operation of public swimming pools that experience has shown to exist. These rules are not arbitrary, capricious, or without reason. It is incumbent upon permittees to abide by these rules enacted in the public interest. Difficulty in compliance or cost of compliance are not recognizable reasons for noncompliance.
Here, there is a clear showing, especially with regard to the gutters 3/ and the missing inlets 4/ of a potential substantial hazard to the swimming public that cannot be ignored or indefinitely deferred because of a substantial cost of compliance. The gutters, especially, have been shown to have a definite relationship to water purity and the apparent cavalier attitude of the City in ignoring the problem will not make it go away. It is time to face the problem and resolve it. The gutters, the inlets, the stain--all are symptoms of an ageing and decaying facility which must be maintained in a proper fashion to insure on a continuing basis that there is no unsanitary, unclean, or dangerous situation confronting the public users of the pool.
The Petitioner has submitted a Proposed Recommended Order which includes proposed findings of fact and conclusions of law which have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That Respondent's permit to operate a public swimming pool be suspended for a period of one year, or until the identified deficiencies are corrected.
RECOMMENDED this 21st day of March, 1983, in Tallahassee, Florida.
ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1983.
1/ Under currently existing law, certain counties, of which Brevard County is one, are delegated authority and responsibility by the State to manage public pool operations for the county.
2/ These are: (1) Most of the bottom inlet fixtures are missing. The open water return lines to the floor of the pool constitute a safety hazard. (2) The two handrails are missing. This presents a safety hazard, especially for older pool patrons. (3) Flow meters are not provided on the return lines from the two 840 gpm recirculation pumps. (4) There are no vacuum gauges for the two banks of DE filters. (5) There are no DE feeders installed. (6) There are no platform scales for weighing chlorine cylinders. (7) There is no restraining chain on the gas chlorine cylinder mounted for use. The gas mask is not operative with the canister tape removed. (8) Some of the depth markers are missing. (9) The main drain grate is damaged. (10) There are no vacuum breakers on hose bibbs. (11) The pool bottom and walls are badly stained.
3/ The City cannot rely on the caprice of a prevailing wind to provide necessary and continuing assistance to a handicapped facility in doing the job it is required to do.
4/ Evidence indicated this cover is no longer made.
Robert P. Daniti, Esquire
William E. Weller, Esquire Post Office Box 1255
Mr. David Pingree Secretary
