STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD A. HOWARTH, as Owner ) of BIRDSONG MOTEL, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4060

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal evidentiary hearing was held in this case on January 23, 1985 in Clearwater, Florida before Donald D. Conn, Hearing Officer with the Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Bonnie Newton, Esquire

8992 Seminole Boulevard

Seminole, Florida 33542

For Respondent: Carol Wind, Esquire

Department of Health and Rehabilitative Services

2255 East Bay Drive Clearwater, Florida 33546

At the final hearing no exhibits were offered into evidence. Petitioner called two witnesses and also testified himself, and Respondent called two witnesses.

FINDINGS OF FACT

1. Richard A. Howarth, Petitioner, owns Birdsong Motel located at 12928 Seminole Boulevard, Largo, Florida, and has applied to Respondent for a public swimming pool operating permit. An inspection on September 14, 1984 by representatives of Respondent indicated the pool does not meet the minimum width requirement set forth in Rule 10D-5.67(2), F.A.C.

   
   

2. Petitioner contracted with Aquamarine Pool Co., Inc., for the construction of a public swimming pool at Birdsong Motel. The President of Aquamarine Pool, Mr. Trevor A. Jones, admitted that a mistake was made in constructing the pool such that it is only fourteen (14) feet, two (2) inches wide. There is no factual dispute that the pool is fourteen feet, two inches wide although petitioner contracted for a public swimming pool that would meet all state and local health requirements. The pool was designed and engineered properly but the mistake occurred in construction of the concrete pool.

3. The ten inch shortage of width of Petitioner's pool represents a 5 1/2 percent error in the minimum width required by Respondent for public swimming pools. Minimum width requirements are a safety feature to avoid injury resulting from jumping into a pool from one side and striking the opposite side of the pool.

   
   

4. The parties have submitted proposed findings of fact pursuant to Section 120.57(1)(b)4, F.S. In making the above findings of fact, Petitioner's proposed findings of fact 1, 2 and 3, and Respondent's proposed findings 1, 2, 3, 4, 5, 6, 9 and 10 are specifically approved. The remaining proposed findings of fact submitted by the parties have been rejected as subordinate, cumulative, immaterial, unnecessary or not based upon competent, substantial evidence.

   
   

   CONCLUSIONS OF LAW

   
   

5. In implementing its statutory responsibility to protect the public health and safety regarding the operation of public swimming pools, the Respondent adopted Rule 10D-5.67(2), F.A.C., which required a fifteen (15) foot width for public swimming pools. Section 514.02, F.S. Rule 10D-5.67 was repealed on October 23, 1984 but was in effect when Petitioner applied for and when Respondent acted on his permit application in September, 1984. Rule 10D- 5.97(2)(b), F.A.C. replaced former Rule 10D-5.67 and is similar in pertinent part to the former rule in that it also contains the fifteen (15) foot width requirement.

   
   

6. Minimum width requirements for public swimming pools are a reasonable means of insuring the public's safety since they reduce the likelihood of injury which might be caused by jumping from one side of a pool and striking the other. In enacting the fifteen (15) foot width requirement the Respondent has set forth its policy determination that a width of less than fifteen (15) feet will not protect the public health and safety. The administrative interpretation of an agency's own statutory responsibilities must be given great weight unless rules adopted to carry out those statutory duties are clearly erroneous or contrary to law. Daniel v. State Turnpike Authority, 213 So.2d 585 (Fla. 1968); Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984).

   
   

7. Section 514.031(4), F.S., requires Respondent to deny an operating permit for a public swimming pool when it is, or may reasonably be expected to become, unsafe. The obvious and admitted failure of Petitioner's pool to meet the fifteen (15) foot width requirement set forth in former Rule 10D-5.67(2), and current Rule 10D-5.97(2)(b), presents a condition which may reasonably be expected to become unsafe if the pool is put into operation since it does not provide the minimum width which Respondent has found necessary to protect the public health and safety. An error of 5 1/2 percent is a significant failure to meet the requirement of a rule enacted to protect the public health and safety.

   
   

8. There is no provision in Chapter 514, F.S. or Chapter 10D-5, F.A.C. that would be applicable to the facts of this case which would allow a variance or exception to the width requirement for public swimming pools.

RECOMMENDED ORDER

For the foregoing reasons, it is recommended that Petitioner's application for a public swimming pool operating permit be DENIED.

DONE and ORDERED this 20th day of February, 1985, in Tallahassee, Florida.

DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1985.

COPIES FURNISHED:

Bonnie Newton, Esquire 8992 Seminole Boulevard

Seminole, Florida 33542

Carol Wind, Esquire Department of Health and

Rehabilitative Services 2255 East Bay Drive Clearwater, Florida 33546

David Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 84-004060

Orders for Case No: 84-004060