STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SWIMMING POOL AND SPA OF LARRY FORD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4240

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to Notice on February 24, 1993, in the above- styled case by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, in Mary Ester, Florida.

APPEARANCES

For Petitioner: Charles Wade, Esquire

468 North Main Street Post Office Box 785 Crestview, Florida 34536

For Respondent: Frank C. Bozeman, III, Esquire

HRS District 1 Legal Office Post Office Box 8420 Pensacola, Florida 32505-8420

STATEMENT OF THE ISSUE

The issue is whether the swimming pool permit no. 46-181-84 and spa permit no. 46-241-87 for Fords Gym and Health Spa should be revoked pursuant to Florida Administrative Code Chapter 10D-5 and Chapter 514, Florida Statutes.

PRELIMINARY STATEMENT

On May 26, 1992, the Deputy District Administrator, Charles W. Bates, of the Department of Health and Rehabilitative Services notified Mr. Larry Ford by letter that Ford's swimming pool permit and spa permit were revoked immediately upon receipt of said letter. This letter set out specific violations of the Florida Administrative Code and Florida Statutes which Ford was alleged to have repeatedly violated. On June 9, 1992, Mr. Larry Ford through his counsel requested a formal hearing on the Department's revocation of his pool and spa licenses. The Department referred the case to the Division of Administrative Hearings on July 9, 1992. On July 24, 1992, counsel for Mr. Ford advised that he would not be available for hearing until after August 13, 1992. This case was thereafter duly noticed for hearing on February 24, 1993, and was heard as noticed by the undersigned to whom the case was transferred immediately prior to the hearing.

At the hearing, the Department of Health and Rehabilitative Services presented evidence in support of its decision to close Ford's spa and pool. Mr. Larry Ford testified concerning the actions that he had taken to maintain the pool and spa and the difficulties which he had encountered. The Department entered into evidence several documentary exhibits relating to their inspections of their facilities, and Mr. Ford introduced pictures of the facilities.

Both parties filed proposed findings which were read and considered.

Appendix A states which of the findings were adopted, and which were rejected and why.

FINDINGS OF FACT

1. Larry Ford owns and operated a swimming pool and a spa (whirlpool) in Fort Walton Beach, Florida. On May 10, 1988, and September 29, 1988, Mr. Ford's pool and spa were inspected and found to be in violation of Florida law. It was necessary to close the pool and spa on both of these occasions because there were several violations pertaining to the chlorine level and ph level, and also required equipment was disconnected or inoperable.

   
   

2. Mr. Ford's pool was inspected on September 27, 1990, and the inspector found the chlorine and the ph feeder were disconnected. Also on September 27, 1990, the spa chlorine was below adequate level and the temperature was too high. The chlorinator and ph feeder were disconnected. The spa was closed based on these violations.

   
   

3. On November 30, 1990, the spa was found to have inadequate chlorine and the chlorinator was disconnected. Due to these violations the spa was closed.

   
   

4. On March 13, 1991, violations were found in the spa. The chlorine feeder was disconnected, the chlorine was low, the ph was below the adequate level and the ph feeder was disconnected. The spa was then closed.

   
   

5. On April 11, 1991, the pool was inspected based on a complaint and found to have several violations of the Florida Administrative Code to include water level too high, no depth markers, broken scum gutter, inoperable underwater lights, missing "no diving" signs, and toilet seats without open fronts. On January 14, 1992, the spa was closed because of no chlorine and the chlorinator and the ph feeder were disconnected.

   
   

6. Mr. Ford's pool and spa were closed again on March 2, 1992, due to violations. The facilities were reinspected on March 5, 1992, and remained closed because the violations had not been corrected. These violations included:

   
   

   1. No chlorine in the pool

   2. PH level was low.

   3. Automatic chlorinator and automatic ph feeder were not connected.

      
      

7. On March 19, 1992, the HRS investigator was denied access to the pool and spa during an inspection visit. When the pool and spa were inspected on March 24, 1992, both the pool and the spa contained several violations to include no safety line in the pool, disconnected chlorinator and ph feeder; missing depth markers were missing, missing "no diving" signs, water level was too high, and the drinking fountain was clogged.

8. On May 20, 1992, the HRS inspector was denied access to the pool and spa for a routine inspection.

   
   

9. HRS, Okaloosa County Public Health Unit, had closed Mr. Fords pool in August 1991. Mr. Ford instructed an employee to pull down the signs in which HRS had posted to close the pool and he further allowed clients into the pool during the time that it was closed.

   
   

10. During 1991, Mr. Ford did not utilize a chlorine or ph feeder as required by the Florida Administrative Code and instructed employees to hand feed the pool, bypassing the feeder system.

    
    

11. On April 1, and April 2, 1992, Mr. Ford allowed clients to use the pool. During this time HRS had closed the pool due to violations.

    
    

12. During the months of January and February, 1992, Mr. Ford's engineer drafted proposed modifications for the swimming pool filtering system and replacement of the chlorinator. According to Mr. Ford this work was completed; however, HRS never received notice of completion of the modification from the pool engineer as required by the Florida Administrative Code. As a result the pool was never inspected by HRS after the modifications were made and recertified.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties presented herein, pursuant to Section 120.57, Florida Statutes.

    
    

14. The Department of Health and Rehabilitative Services regulates pools and spas pursuant to Chapter 514, Florida Statutes. The Department charges that Mr. Larry Ford had numerous violations of its regulations concerning swimming pools and spas (whirlpool baths). However, more importantly, the Department showed Mr. Ford had obtained permission to have the pool and spa re-engineered to improve chlorination and filtration of the water. Mr. Ford's testimony confirmed this. Following the conclusion of the work, the engineer who had designed and installed the system failed to notify the Department of Health and Rehabilitative Services, and have the system reinspected. As a result of the failure of the engineer to certify the system, the Department has been unable to recertify the pool and spa.

    
    

15. The Hearing Officer inquired how the Department dealt with situations in which the pool engineer refused to certify the pool because of disagreements with the owner. In such cases, the owner may hire another engineer to inspect and certify the work. Because the pool was not recertified by the Department, the pool and spa are not in compliance with various provisions of Chapter 10D-5, Florida Administrative Code.

    
    

16. Mr. Ford had demonstrated over time an inability to work cooperatively with the Department of Health and Rehabilitative Services. If Mr. Ford engages another engineer to finish the pool, the Department will be in a position to reinspect and certify the pool or advise Mr. Ford of the deficiencies which must be corrected. However, at this time it appears that this inability is resulted in the Department taking the only action available to it, that is to close his pool and spa which he had failed to have recertified.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED:

That the Department of Health and Rehabilitative Services revoke pool permit No. 46-181-84 and spa permit no. 46-241-87.

DONE and ENTERED this 26th day of April, 1993, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1993.

APPENDIX A

Both the parties filed proposed findings which were read and considered.

The following states which of the proposed findings were adopted, and which were rejected and why:

Petitioner's Findings: Proposed Order:

Paragraph 1-12 Paragraph 1-12

Respondent's Findings: Proposed Order:

Unnumbered Paragraphs in Rejected as

the Findings of Fact Arguement.

COPIES FURNISHED:

Charles Wade, Esquire

468 North Main Street Post Office Box 785 Crestview, Florida 34536

Frank C. Bozeman, III, Esquire HRS District 1 Legal Office Post Office Box 8420 Pensacola, FL 32505-8420

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

John Slye, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-004240

Orders for Case No: 92-004240