were admitted in evidence.
The transcript was filed on December 23, 1987. The parties timely filed proposed findings of fact and conclusions of law with the most recent filing being on January 27, 1988. All proposed findings of fact and conclusions of law have been considered. A ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.
James Dular is the owner and President of Tamtech Pool Builders.
During the month of January, 1987, Dular was contacted by Felix A. Beukenkamp, President of Shalimar Development Corporation, to construct a pool for Blue Pine Village, a subdivision in Okaloosa County, Florida.
Dular contacted Kathy Rogers, Regional Engineer for HRS, in January, 1987, to determine whether or not he could construct a swimming pool using skimmers on a pool that was 1,600 square feet in size.
State engineers routinely offer oral consultation concerning swimming pool construction prior to submission of plans.
Dular was instructed by Rogers during the January contacts that he would not be able to construct a swimming pool as he had orally described it without obtaining a variance.
Rogers sent Dular a copy of the recommended guidelines for requesting a variance and a list of people serving on the advisory board.
During February, 1987, Dular retained Allison Levy to design two sets of swimming pool plans, one for a roll-out gutter pool and another for a skimmer pool.
Levy was aware that the skimmer pool did not comply with the State regulations and advised Dular.
Since Dular did not expect the skimmer pool plan to be accepted, by letter dated March 18, 1987, he requested a variance.
March 27, 1987, the Public Health and Engineering Services of the Office of Licensure and Certification (PHES/OLC) received the variance request. Dular had not submitted construction plans for any pool prior to submitting his variance request, which was very unusual.
Levy submitted two sets of blueprints to Dular, one for a roll-out gutter pool and one for a skimmer pool.
April 2, 1987, PHES/OLC received blueprints from Dular for a skimmer pool. The project was assigned submittal number W-21-87.
April 8, 1987, PHES/OLC received blueprints from Dular for a gutter pool. The project was assigned submittal number W-23-87.
By letter dated April 15, 1987, the PHES/OLC noticed Levy, as agent for Dular, that skimmer pool plan number W-21-87 would be held in abeyance pending receipt of corrective materials.
By letter dated April 18, 1987, PHES/OLC noticed Levy that the gutter pool plan number W-23-87 would be held in abeyance pending receipt of corrective materials.
Dular assumed that the skimmer pool plan would not be approved and therefore did not thereafter request Levy to resubmit the skimmer pool plan.
May 7, 1987, Levy submitted revised gutter pool plans under number W- 23-87.
By letter dated May 13, 1987, PHES/OLC noticed Levy that the first set of revised gutter pool plans would be held in abeyance pending receipt of corrective materials.
May 28, 1987, Levy submitted a second set of revised gutter pool plans under submittal number W-23-87.
By letter dated June 2, 1987, PHES/OLC noticed Levy that the second set of revised gutter pool plans under submittal number W-23-87 were APPROVED.
The approved set of gutter pool plans was given approval number SP- 11868.
Levy was contacted by Rogers, requesting Levy to resubmit skimmer pool plans with the necessary corrections in order to allow HRS to submit the corrected plans to the Advisory Review Board, so that the only item to be considered by the Advisory Review Board was whether or not skimmers should be allowed in an oversized pool.
June 11, 1987, Levy resubmitted the first set of revised skimmer pool plans under submittal number W-21-87.
June 17, 1987, Dular obtained a building permit using gutter pool plan approval number SP-11868.
By letter dated June 18, 1987, PHES/OLC noticed Mr. Beukenkamp, developer of Blue Pine Village subdivision, that the first set of revised skimmer pool plans under submittal number W-21-87 was DENIED.
Mr. Beukenkamp was noticed due to the fact that he had signed on the application for construction of the pool as the owner's representative.
The basis for denial was stated as:
The pool water surface area exceeds
the maximum allowable 800 square feet for the recessed automatic skimmer installations in that the specified pool water surface area is
1,625 square feet. This is a violation of Section 10D- 5.097(7)(b), Florida Administrative Code.
The pool width exceeds the maximum allowable width of 20 feet for the recessed automatic skimmer installations in that the greatest width is 48 feet when measured perpendicular to a tangent to the wall. This is a violation of Section 10D- 5.097(7)(b), Florida Administrative Code.
June 23, 1987, the Florida Advisory Review Board met and recommended approval of Dular's variance request.
Dular was advised by various Board members that the Board's recommendation was only advisory and that HRS had final authority and that he would be noticed within 30 days as to the HRS decision.
Dular was advised by the Guidelines for Requesting Variance Recommendations that the Board's decision was advisory in nature and was not final authorization for him to begin construction of the pool.
By the end of June, 1987, prior to receiving the HRS final decision, Dular had begun construction on the pool.
Dular began construction of the pool utilizing a Building Permit issued pursuant to approval number SP-11868 of gutter pool plans. Dular knew the SP number had been issued for the gutter pool.
Dular had been building pools in Florida for over 9 years and knew or should have known that he could not construct a skimmer pool utilizing a valid permit issued pursuant to an approved set of gutter pool plans.
By letter dated July 16, 1987, PHES/OLC of HRS noticed Dular that the Advisory Review Board's recommendation had been turned down and that approval of the first set of revised skimmer pool plans under submittal number W-21-87 was DENIED.
The skimmer pool blueprints reflect that the pool would be 1,625 square feet; and its dimensions would be 20 feet in length by 48 feet in width.
The maximum allowable square footage in a skimmer pool pursuant to Rule 10D-5.097(7)(b), Florida Administrative Code, is 800 square feet. The proposed square footage of the pool is over twice the maximum allowable square footage.
The maximum allowable width in a skimmer pool pursuant to Rule 10D- 5.097(7)(b), Florida Administrative Code, is 20 feet. This pool had a width of
48 feet which is over twice the maximum allowable width.
The HRS decision to DENY the variance is based on the fact that these are significant deviations from the rules and could subject the public to a health and safety risk.
The pool does satisfy Rule 10D-5.097(7)(b)1b, Florida Administrative Code, which requires, if skimmers are otherwise permitted, that there be one skimmer per every 450 square feet of pool water surface area.
Bacteria floats on surface water and can be out of the reach of chlorine which is necessary to kill infectious bacteria.
The public health goal is to lower the chloroform count by getting surface water material into the filtration system where it can be disinfected.
Gutter pools are far superior in moving surface water in comparison to skimmer pools.
A gutter pool operating at 50 percent capacity is more effective than a skimmer pool.
A recent test showed that a gutter pool removed surface material 3 times as quickly as a skimmer pool. In the test, the skimmer pool never removed all of the surface material.
Skimmer pools are very temperamental due to the fact that they are wind dependent and prone to malicious tampering.
The major obstacle to an effective gutter pool is an adequate water level which can be controlled by a water overflow system.
The pool in issue cannot be considered two separate pools because it is one body of water, and there is one circulation and filtration system.
While the pool at issue operated from August to November, 1987, and showed no apparent inadequate filtration, no bacterial testing was performed and it cannot be known whether the skimmers adequately clean and filter the water.
The pool, as constructed, is sound from an engineering standpoint and is constructed and designed within the limits of sound engineering practice.
The pool in issue is not designed to be a special purpose pool.
Beukenkamp, Vice President of the construction company which hired Dular to build the pool, did not intend to place restrictions on the use of the pool. He intended that it would be a recreational pool with a variety of uses including gatherings and social events. He assumed that it would be used by young families and children and teenagers.
There was no lifeguard on duty to supervise special activities.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
Pursuant to Section 514.025, Florida Statutes, the Department of Health and Rehabilitative Services is authorized to review plans and issue permits for public swimming pools and bathing places. Section 514.03, Florida Statutes, provides:
It is unlawful for any person or public body to construct, develop, or modify any public swimming pool or bathing place without a valid construction plans approval from the department.
HRS has promulgated rules in regard to public swimming pool construction. As relevant to this case, those rules provide:
10D-5.097(7)(b) Recessed Automatic Surface Skimmers--Recessed automatic surface skimmers are allowed in lieu of perimeter overflow gutters provided the pool water surface area
does not exceed 800 square feet and the width of the pool is not over 20 feet when measured perpendicular to a tangent to the pool walls.
10D-5.091(24) "Special purpose pool"--A public pool used exclusively for a specific
supervised purpose only including but not limited to springboard or platform diving training, SCUBA diving instruction, and aquatic programs for handicapped individuals and kindergarten children.
10D-5.115(1) General--Special purpose pool projects may deviate from the requirements of other sections of these rules provided the design and construction are within the limits of sound engineering practice. Deviations must be needed to accommodate the special purpose of the pool, and all other aspects of the pool shall comply with the requirements of this Rule, and with applicable Rules of this Chapter, including Rules 10D-5.091 through
10D-5.111, and Rules 10D-5.116 through 10D-
5.119. . . .
Finally, Section 514.028, Florida Statutes, creates an advisory review board, which recommends agency action on variance requests. This is the only reference to variance requests, but does seem to contemplate that persons who wish to construct a public swimming pool, that does not conform to the statutes and rules, may request a variance therefrom.
Herein, Tamtech is seeking a variance from the requirements of Rule 10D-5.097(7)(b). The burden is on the party seeking the variance and the standard is a preponderance of the evidence. Tamtech has failed to carry its burden. Rule 10D- 5.097(7)(b) is explicit. Here, Tamtech's pool exceeds the allowable 800 square feet for use of a recessed automatic surface skimmer filtration system, because this pool has a water surface area of 1625 square feet. This is more than twice the allowable surface area and must be considered a substantial deviation from the rule.
Additionally, Tamtech's pool exceeds the maximum allowable width of 20 feet for the use of a recessed automatic surface skimmer filtration system, because thins pool is 48 feet wide when measured perpendicular to a tangent to the walls. This is almost 2 1/2 times the allowable width and must be considered a substantial deviation from the rule.
Tamtech has shown no reason why it should not be required to meet the standards set forth in this rule. The issue here is not whether the rule is reasonable, because this is not a rule challenge. The rule exists and a strict standard must be applied in granting deviations from the rule. Here the deviations are substantial and Tamtech offered no proof to justify entitlement to such deviations.
Tamtech also hopes to be relieved of the necessity of meeting the rule standards by seeking to be classified as a special purpose pool. However, again Tamtech failed to meet its burden. The evidence was clear that this pool is to serve all the residents of a residential development. The pool was designed to provide recreational opportunities to all the residents and is not to be used
