STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF SUNRISE,

Petitioner,

vs.

DEPARTMENT OF HEALTH,

Respondent.

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) Case No. 05-2944

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RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on January 4, 2006, by video teleconference with sites in Lauderdale Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Manuel Synalovski

Synalovski Gutierrez Romanik Architects, Inc.

3950 North 46th Avenue Hollywood, Florida 33021

For Respondent: Judith C. Elfont, Esquire

Department of Health

2421-A Southwest Sixth Avenue

Fort Lauderdale, Florida 33315-2613

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's application for a variance at the Sunrise Civic Center wading pool should be granted.

PRELIMINARY STATEMENT

By letter dated July 25, 2005, Respondent Department of Health advised Petitioner City of Sunrise that its request for a variance from the required wading pool deck size was denied, and the City timely requested an administrative hearing regarding that determination. Thereafter, this cause was transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Manuel Synalovski, AIA, president of Synalovski Gutierrez Romanik Architects, Inc., the architects in charge of the project which is the subject of this proceeding, represented Petitioner City of Sunrise in this proceeding. He submitted a letter from the City authorizing his company to represent the City in its request for a variance and filed the petition in this cause.

Petitioner City of Sunrise presented the testimony of Manuel Synalovski. Respondent Department of Health presented the testimony of Patricia Riley and Robert F. Pryor.

Additionally, the City's Exhibit numbered 1 and the Department's Exhibits lettered A-E were admitted in evidence.

Both parties submitted proposed recommended orders after the conclusion of the final hearing in this cause. Those documents have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. In conjunction with the City of Sunrise constructing its multi-purpose swimming pool at its Civic Center,

   Patricia Riley, an employee of the Broward County Health Department, made a site inspection on January 5, 2005. While she was conducting her inspection, she noticed that the fence between the swimming pool which was under construction and the existing wading pool had been removed and apparently was being replaced.

2. She noticed that two columns for the new fence were large, and they encroached on the required ten-foot deck perimeter around the existing wading pool although the fence itself did not. She told Manuel Synalovski, who was present, to seek a variance for the columns, since she considered that the encroachment was a minor deviation or construction error.

3. Synalovski applied for a variance for the deviation.

   
   

   The variance was approved by the Advisory Review Board for Swimming Pools and Bathing Places on March 9, 2005, and then by Respondent Department of Health on March 28, 2005.

4. On June 16, 2005, Riley again went to inspect the swimming pool. While doing so, she noticed that there were two planters near the wading pool. Each planter was surrounded by an approximately-square concrete curb approximately six inches high. A palm tree had been planted in the center of each of the two planters. Each of the two planters extended into the required ten-foot deck perimeter around the wading pool. However, the palm trees themselves are ten feet from the pool, and the deck extends for 60-70 feet beyond the planters.

5. On June 24, 2005, Synalovski filed another application for a variance relating to the two planters. The Broward County Health Department recommended that that variance be approved because the planters should not create a hazard for the users of the wading pool which would be operated by the City under lifeguard supervision but that the City should be fined $500 for the obstructions because it was the second request for a variance related to the wading pool.

6. The Advisory Review Board for Swimming Pools and Bathing Places thereafter recommended denial because the failure to provide a ten-foot-wide deck around 50 percent of the wading pool might have a negative impact on the health and safety of pool patrons. The Department of Health advised the City in a letter dated July 25, 2005, that it concurred with the recommendation of the Advisory Review Board.

7. The construction plans for the multi-purpose swimming pool reflected the existing wading pool, contained notes referring to planters, and showed boxes where the planters would be placed. Similarly, the drawing submitted with the first variance application showed the planters at the existing wading pool. Similarly, aerial photos taken before the first application for variance was filed showed the planters in place at the existing wading pool.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat.

9. Chapter 514, Florida Statutes, regulates public swimming and bathing facilities. Section 514.0115(5) authorizes the Department to grant variances from any rule promulgated to implement that Chapter.

10. Florida Administrative Code Rule 64E-9.009(7) provides, in part, that: "Wading pools shall have a minimum 10 foot wide deck around at least 50 percent of their perimeter with the remainder of the perimeter deck being at least four feet wide." Since the planters encroach on that required deck area, the City requested a variance pursuant to Section 514.0115(5), Florida Statutes.

11. Florida Administrative Code Rule 64E-9.016(2) implements Section 514.0115(5) and provides, in part, as

    follows:

    
    

    A variance from requirements of these rules may be requested by the pool owner or their [sic] representative to relieve or prevent hardship only in cases involving deviations from the rule, when it is shown that the hardship was not caused intentionally by the action of the applicant, where no reasonable alternative exists and the health and safety of the pool patrons is not at risk.

    
    

    The Department argues that the variance at issue in this proceeding should be denied because the three criteria for granting a variance are not met. The Department's argument is not persuasive.

12. The Department argues that a reasonable alternative exists, i.e., removing the palm trees, leveling the planters, and re-finishing the deck. Although no evidence was offered as to the cost or difficulty of doing so, the Department's suggested alternative does appear reasonable per se although not as reasonable in context.

13. The Department argues that the hardship was intentionally caused because it is hard work to put in a planter. If the intentional test in the Rule is interpreted to mean that if it is there, it was intentional, then no after-the- fact variance could ever be granted. It is more likely that the Department interprets that provision to mean that a statutory or

    rule requirement for the design or construction of a public swimming and bathing facility has been intentionally ignored. The testimony from the architect in charge of the project reveals that he knew of the deck-size requirement and believed that since the deck extended 60-70 feet beyond the two planters, the minimum deck-size requirements had been met. He noted that the Rule does not define how the ten-foot deck is measured.

    Accordingly, there is no evidence that the Rule was intentionally ignored.

14. The Department asserts that the health and safety of the pool patrons is at risk although the Advisory Review Board's conclusion, adopted by the Department, was not specific to the variance request at issue but merely concluded that a failure to provide the required deck space might be harmful. The Department's general assertion is not persuasive and is contradicted by the City's assertion that removal of the planters would not make the deck safer.

15. More persuasive is the analysis of the local reviewing authority, the Broward County Health Department official, that the variance should be approved because the wading pool was operated under lifeguard supervision and that the obstructions should not create a hazard for the users of the pool. Further, no evidence was offered as to why the fence columns encroaching

    on the required deck width would not create a risk but that the two planters would.

16. The further recommendation of the Broward County Health Department that a fine be imposed in the amount of $500 because the variance sought in this proceeding was the second variance requested for the wading pool is a reasonable recommendation. See § 514.05(3)(c), Fla. Stat. Further, although in its Proposed Recommended Order the Department recommends that the variance be denied, it also recommends that a $500 fine be imposed. In its proposed recommended order, the City agrees that a fine is appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entering granting the variance and imposing a $500 fine to be paid by a date certain.

DONE AND ENTERED this 7th day of February, 2006, in Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2006.

COPIES FURNISHED:

Manuel Synalovski

Synalovski Gutierrez Romanik Architects, Inc.

3950 North 46th Avenue Hollywood, Florida 33021

Judith C. Elfont, Esquire Department of Health

2421-A Southwest Sixth Avenue

Fort Lauderdale, Florida 33315-2613

Dr. John O. Agwunobi, Secretary Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Timothy M. Cerio, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 05-002944

Orders for Case No: 05-002944