Findings Of Fact Petitioner, the Department of Legal Affairs ("Petitioner"), is the enforcing authority of Florida's Deceptive and Unfair Trade Practices Act. Beginning in 1974, and until its involuntary dissolution in approximately May, 1980, Respondent, Gold Key Pools, Inc., was engaged in the business of manufacturing, selling, and installing fiberglass swimming pools to the consuming public. To induce the public to enter into written contracts for the purchase of these pools, Respondent, Gold Key Pools, Inc., disseminated promotional brochures and "fact sheets" which contained representations as to the quality, nature, durability, and characteristics of its pools. Specifically, the following representations in promoting the swimming pools were made: That the pools were constructed with fiberglass and inert materials that never deteriorate; That the pools are resistant to cracking, leaking, and erosion, as well as fading mildew, rotting, rust, shattering, breaking or tearing apart; That the color in the pools is permanently molded and resists fading and never requires painting; That each pool was factory made to perfection from a perfect mold; That the pools are stain-resistant and virtually maintenance free; That the pools' high quality, one piece construction contained no seams, guaranteeing that the pools would never leak; That no need would ever exist to replaster or repair cracks or holes in the pools; That the non-porous surface of the swimming pools would stay bright and beautiful; and No professional maintenance service would ever be needed on the pool During the course of its active conduct of business, Gold Key Pools, Inc., manufactured and installed approximately 3,000 pools in the State of Florida. Sometime in 1975, it came to the attention of officials of Gold Key Pools, Inc., that problems existed concerning the jel coat which had been applied over the fiberglass shell of the pool. Problems associated with the jel coat manifested themselves by the development of "blisters" on the pools' surface, and the actual cracking of the jel coat surface itself in some instances. Problems associated with the jel coat did not affect the structural integrity of the fiberglass pool shell. However, in response to these problems, Gold Key Pools, Inc., inserted a provision in its 25-year warranty providing that the jel coat portion of the pools was not warranted. However, as far as can be determined from this record, the following specific warranty is contained in Gold Key Pools, Inc.'s standard form contract: During the course of its active conduct of business, Gold Key Pools, Inc., manufactured and installed approximately 3,000 pools in the State of Florida. Sometime in 1975, it came to the attention of officials of Gold Key Pools, Inc., that problems existed con- cerning the jel coat which had been applied over the fiberglass shell of the pool. Problems associated with the jel coat manifested themselves by the development of "blisters" on the pools' surface, and the actual cracking of the jel coat surface itself in some instances. Problems associated with the jel coat did not affect the structural integrity of the fiberglass pool shell. However, in response to these problems, Gold Key Pools, Inc., inserted a provision in its 25-year warranty providing that the jel coat portion of the pools was not warranted. However, as far as can be determined from this record, the following specific warranty is contained in Gold Key Pools, Inc.'s standard form contract: The contractor warrants that all material used in completing the installation con- tracted herein will be new and that all work will be done in a workmanlike manner; that if any substantial defect occurs in workmanship, it will be remedied without cost to the owner if written notice is given the contractor within one year after pool completion, provided pool and equip- ment have been maintained in accordance with the recommendations of the contractor; and further provided that such defect is not the result of an act of God or the sub-soil or strata of the ground or the water table or circumstances beyond the control of the contractor. . . . In addition, Gold Key Pools, Inc., also made the following warranty on its pools: Gold Key Pools, Inc. warrants that all Gold Key Pools, Inc. fiberglass pool shells shall perform in a satisfactory manner with normal usage and proper care and will not rip, rust, or tear apart under normal conditions for a period of 25 years from the date of installation. This warranty shall apply only when the pool is installed by an authorized Gold Key Dealer, in accordance with our installation instructions, or by the homeowner with our supervision as per installation procedures. Within 1 year of original purchase, the factory or an authorized factory service center will repair or replace for the original purchaser any part of the fiberglass pool shell which is defective, at no costs to the original purchaser. After one year, but within 25 years of date of purchase the factory or an authorized service center will repair for the original purchaser any part of the pool shell which is defective, but the cost of Labor will be borne by the original purchaser. . . . On or about October 12, 1977, Gold Key Pools, Inc., entered into a contract for the installation of a pool and pool decking with Donald F. Planasch. Within three months after the pool was installed, the purchaser began to experience problems including cracking of the decking and hairline cracks in the pool, with consequent water loss. Gold Key attempted repairs on eight to ten occasions, but was unsuccessful. Gold Key stopped responding to complaints from the purchase in early May of 1979. On or about July 29, 1978, Gold Key entered into a contract with Edward Simmon for the installation of a pool and deck. Almost immediately after installation of the pool, the purchaser began to experience problems which included cracking of the pool shell. Gold Key attempted repairs on two or three occasions, each of which was unsuccessful. The purchaser subsequently effected repairs to the pool with another contractor. In August of 1977, Gold Key entered into a contract to install a pool and concreted decking with Mr. and Mrs. Stanley Rickert. Soon after the pool and decking were installed, the Rickerts began to experience the cracking in the concrete decking area immediately surrounding the pool. Gold Key was notified of the problem, but never effectively repaired the deck. On or about April 20, 1979, Gold Key entered into a contract with James March to install a pool on his property. Within six to eight months from the installation of the pool, cracks and holes developed in the surface of the pool. Gold Key was notified of these defects, but no repairs were ever attempted by Gold Key. On August 23, 1979, Gold Key entered into a contract with Terry Rose for the installation of a pool and decking. Shortly after installation, the purchaser experienced problems with the development of holes in the surface of the pool, some of which were almost one-inch deep, and cracks in the decking. Although Gold Key was advised of these problems, no repairs were made to them. On or about July 9, 1975, Gold Key entered into a contract for the installation of a pool on the property of Charles Young. Within one year of the installation of the pool, the purchaser experienced cracks in the surface of the pool, with consequent leakage of water from the pool. Despite having received notification, Gold Key never sent anyone to examine the problems with the pool. At all times material hereto, Respondent, Arnold F. Morris, was a shareholder, president and director of Gold Key Pools, Inc. Respondent, John Perez, was the secretary of the corporation from 1975 until his resignation in 1980. Respondent Perez was never a shareholder of Gold Key, and had no responsibility over sales, marketing, or the preparation of contracts related to sales of pools. No evidence of record in this proceeding establishes that any pool purchaser ever spoke to either Respondents Morris or Perez prior to the purchase of their pools. Sometime in 1979, Gold Key Pools, Inc., experienced a serious fire, which destroyed its manufacturing capacity. From the standpoint of manufacturing, Gold Key Pools, Inc., essentially went out of business shortly thereafter. However, Gold Key Pools did maintain a service force of employees to service pools which it had already sold for sometime after the fire. In approximately May, 1980, Gold Key Pools, Inc., ceased doing business at all. At the time it ceased doing business, Gold Key Pools, Inc., for all intents and purposes had no assets.
Findings Of Fact At all times material to the pending Administrative Complaint, Respondent was a registered pool contractor licensed by the State of Florida, having been issued license number RP 0029202. (Petitioner's First Request for Admissions, Item 2: Pet. Exh. C) On or about December 5, 1984, Respondent, d/b/a Miller Pools, contracted with Terry Kilpatrick to construct a pool at the Kilpatrick residence. (Pet. Exh. B; T. 9-10) The contract provided for a contract price of $10,963 for the construction of the pool and $1600 for the installation of fencing. (Pet. Exh. B; T. 10) Under the provisions of the contract and pursuant to the agreement of the parties, Respondent was responsible for all aspects of the pool construction and Kilpatrick was responsible for the installation of the fencing. (Pet. Exh. B; T. 10-11) As part of the contract, Respondent gave Kilpatrick a one-year warranty on the construction of the pool. (T. 19-20) The Kilpatrick residence was located in Putnam County, Florida, within the jurisdiction of the Putnam County Building and Zoning Department. (Pet. Exh. B; T. 37) In December 1984, the 1982 Standard Swimming Pool Code was in effect in Putnam County, having been adopted by county ordinance. (Pet. Exh. E, F; T. 40- 42) The Standard Swimming Pool Code in effect in Putnam County in December 1984 required that a building permit be obtained before the commencement of construction of a swimming pool at a residence in the county. (Pet. Exh. E; T. 42) Respondent obtained the necessary building permit for the Kilpatrick pool job. (Pet. Exh. D; T. 42) The Standard Swimming Pool Code in effect in Putnam County in December 1984 also required that certain inspections be done during the course of the construction of a swimming pool. (Pet. Exh. E; T. 43) Among the required inspections was an electrical inspection and a final inspection. (Pet. Exh. E; T. 44-45) It was the responsibility of Respondent as contractor to request the Putnam County Building and Zoning Department to conduct the necessary inspections of the pool. (Pet. Exh. E; T. 44) The purpose of requiring the various pool inspections, including the electrical and the final, was to make certain that the pool had been constructed and was operating correctly and safely. (T. 45) Respondent was aware that certain inspections were required by local law. On three occasions, December 19, 1984, January 7, 1985 and January 10, 1985, inspections were performed on the Kilpatrick pool at Respondent's request. (Pet. Exh. D; T. 23, 43) Respondent did not make arrangements for the electrical or final inspections to be performed on the Kilpatrick pool. (Pet. Exh. D; T. 23, 43-44) During the construction of the Kilpatrick pool, Respondent was at the job site infrequently. (T. 12-16, 18, 19, 22) Almost immediately after the pool construction was completed, Kilpatrick began to experience problems with the pool, problems which included pitting of the marcite finish, leaks in the tiled area of the pool, and chipping of the brick and coping. (T. 24-35) The problems experienced by Kilpatrick were problems related to the construction of the pool and were covered by the one-year warranty on the pool given to Kilpatrick by Respondent. (T. 19-20) Respondent failed to take any action to correct the problems until after Kilpatrick had contacted the Putnam County Building and Zoning Department and the Department of Professional Regulation to complain about the problems with the pool. (T. 25-28, 35-36, 46-50) As of the date of the hearing in this case, Kilpatrick continued to experience problems with the pool leaking around the tile. (T. 31-31, 34) By Final Order, dated March 17, 1986, in Department of Professional Regulation Case No. 0059028, the Construction Industry Licensing Board imposed an administrative fine of $1000 and suspended Respondent's registered pool contractor's license for five years as a result of Respondent's default in a disciplinary case in which Respondent had been charged with failure to supervise a swimming pool construction project and/or performing said construction in a grossly negligent and/or incompetent manner. (Pet. Exh. C)
Recommendation Having found the Respondent guilty of violating Subsections 489.129(1)(d) and (m), Florida Statutes, it is recommended that Respondent be fined $1000, and that his license be suspended for an additional year after the suspension imposed by the Construction Industry Licensing Board in its Final Order, dated March 17, 1986, in Department of Professional Regulation Case No. 0059028. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1987. COPIES FURNISHED: David R. Terry, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Jimmy G. Miller 706 Southeast 35 Avenue Ocala, Florida 32671 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The basic issue in this case is whether the Petitioner is entitled to a variance from some of the requirements of Rule 10D-5.097, Florida Administrative Code, regarding public swimming pools. At the hearing, both parties presented the testimony of witnesses and offered exhibits. Following the hearing a transcript was filed on March 3, 1989, and the parties were allowed until March 23, 1989, within which to file their proposed recommended orders. Both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. All proposed findings of fact submitted by all parties are specifically addressed in the appendix to this recommended order.
Findings Of Fact Based on the stipulations of the parties and on the evidence received at the final hearing, I make the following findings of fact. The Petitioner submitted an application for a swimming pool operating permit to the Respondent. The Respondent denied the Petitioner's request for an operating permit, whereupon the Petitioner requested a variance from the Public Swimming and Bathing Facilities Advisory Review Board. The Board recommended favorable action on the request for variance, but by letter of July 29, 1988, the Petitioner was advised that the Respondent intended to deny the request for variance. The Petitioner's request for formal hearing followed. The Petitioner operates a public swimming pool in Grassy Key, Florida. The Petitioner has never obtained a permit to operate the pool from the Respondent. The floor and walls of the Petitioner's pool are covered with glazed tile. There is no evidence that the glazed tile on the floor and walls of the Petitioner's pool is anything other than ordinary glazed tile. The coefficient of friction for wet glazed tile is normally between .2 and .25. Approximately twenty-one percent of the surfaces of the floor and walls of the Petitioner's pool consists of grout. The grout is located between the tiles. The top surface of the grout is lower than the top surface of the tiles. The tiles covering the vast majority of the floor and walls of Petitioner's pool are medium blue to dark blue and black in color. Specifically, the tiles are not white or light pastel in color. The tiles covering the vast majority of the floor and walls of the Petitioner's pool reflect less light than would be reflected if they were white or light pastel in color. The more light present in a pool, the greater the ability to detect objects in the pool. A decrease in the amount of light in a pool increases the risk of objects in the pool not being detected. Light colors in pools also facilitate the ability to maintain proper sanitation. An epoxy coating could be placed on the floor and walls of the Petitioner's pool for approximately $1,500.00. Such a coating would improve the safety of the pool by making the pool surfaces more slip resistant. By reason of the glazed tile surface, the Petitioner's pool is a safety hazard to the public. It is not difficult to see people on the bottom of the Petitioner's pool during day or night operation, even though the pool is dark in color and does not have the characteristic of reflecting, rather than absorbing light. Objects on the bottom of the pool are visible from the pool deck. The color of the pool does not appear to be a significant safety hazard. The water clarity in Petitioner's pool is well above average. The color of the pool does not appear to cause any depth perception different from the depth perception problems inherent in any pool of water. Department inspection reports for the period 1981 through 1988 reveal no problems with cleaning the pool, reveal no findings of algae at all, and indicate that the operator of the pool has done a good job of maintaining the pool. The pool has been in continuous operation for over eight years and there have not been any accidents resulting from use of the pool.
Recommendation For all of the foregoing reasons, it is recommended that that Department of Health and Rehabilitative Services enter a final order in this case denying the Petitioner a variance from the "slip resistant" surface requirement of Rule 10D- 5.097(1), Florida Administrative Code, and granting the Petitioner a variance from the requirement of that rule that the pool floor and walls be "white or light pastel in color." DONE AND ENTERED this 15th day of May, 1989, at Tallahassee, Florida. MICHAEL M. PARRISH 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 15th day of May, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4561 The following are my specific rulings on all of the proposed findings of fact submitted by all parties. Findings proposed by Petitioner Paragraphs 1, 2, and 3: Rejected as not supported by persuasive competent substantial evidence. The Petitioner's expert testimony regarding the coefficient of friction of the tiles in question is not persuasive and has not been used as a basis for fact-finding in this case. The measurements made by the Petitioner's expert deviate dramatically from the measurements one would expect. There is no persuasive record basis to explain the deviation. The proffered suggestion that the amount of grout affected the measurements is not persuasive, because it is unlikely that the testing equipment came in contact with the grout, inasmuch as the surface of the grout is typically below the surface of the tiles. Paragraph 4: Accepted. Paragraph 5: Rejected as not supported by persuasive competent substantial evidence. (See discussion of Paragraphs 1, 2, and 3, above.) Paragraph 6: First clause (through the word "tiles") is accepted in substance. The remainder is rejected as not supported by persuasive competent substantial evidence. Paragraphs 7 through 20: Accepted in substance. Findings proposed by Respondent Paragraphs 1 through 6: Accepted. Paragraphs 7 through 9: Accepted in substance, but with numerous subordinate and unnecessary details omitted. Paragraph 10: First sentence rejected as subordinate and unnecessary details. Second sentence rejected as constituting argument rather than proposed findings of fact. Paragraphs 11 and 12: Accepted. Paragraph 13: Rejected as not completely accurate; the tiles in the subject pool reflect less light than is reflected by a white or pastel colored pool. Paragraph 14: Rejected as irrelevant, because even though the proposed statement is true, algae detection has not been a problem in the subject pool. Paragraph 15: Rejected as constituting subordinate and unnecessary details. Paragraph 16: Rejected for same reason as rejection of Paragraph 14. Paragraph 17: Rejected as being somewhat of an over statement. The subject pool is, however, less safe than a pool that complies with all of the applicable rule criteria. Paragraph 18: Rejected as not supported by persuasive competent substantial evidence. Although the Respondent's expert testified to the opinion proposed in this paragraph, I have not made any finding based on that opinion testimony, because the basis for the opinion is essentially unexplained in the record and appears to be more of a "feeling" than a "fact." Further, other evidence in the record indicates that depth perception in swimming pools is affected by a number of variables other than pool color. Paragraph 19: Rejected as irrelevant, as well as for the reasons discussed immediately above. Paragraph 20: Rejected as subordinate and unnecessary details. Paragraphs 21 through 23: Accepted in substance. Paragraph 24: Rejected as subordinate and unnecessary details. Paragraph 25: First sentence rejected as contrary to the greater weight of the evidence. The remainder of this paragraph is rejected as unnecessary repetition of previously proposed facts. COPIES FURNISHED: Mark A. Hruska, Esquire Vernis & Bowling, P.A. Post Office Drawer 529 Islamorada, Florida 33036 Morton Laitner, Esquire 401 North West 2nd Avenue Suite 5424 Miami, Florida 33128 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard 7 Tallahassee, Florida 32399-0700
Findings Of Fact The parties stipulated that Petitioner's Exhibit number 1, which is the Florida Construction Industry Licensing Board official records as they relate to Millard P. Hill, Jr., should be received into evidence. The parties noted further that there is little dispute as to facts, however, the Respondent contends that there is no diversion of funds based on the facts of this case. On June 10, Respondent advised Petitioner that he wished to qualify Master Pools, a corporation which he had applied to Petitioner to qualify as the name under which his pool contracting would be done to reflect the name H. B. Patten, Inc. as the name under which said contracting would be done. Petitioner changed its records to show this change. On July 12, Respondent entered into a contract with Manuel and Anna Bueno for a pool to be built at 6960 Northwest 4th Place, Margate, Florida, for a sum of $5,665. See Petitioner's Exhibit number 2 received into evidence and made a part hereof by reference. Anna Bueno testified that a hole was dug and tar paper and steel bars were erected in the hole and the work was abandoned thereafter. Prior to abandonment, the Bueno's paid approximately $4,100 to Patten Pools. To complete the construction, the Bueno's used Hallmark Pools to finish the pool which required an additional sum of approximately $5,000. As can be seen, this is approximately $3,300 over and above the contract price. The evidence also reveals that Patten Pools, Inc., through Millard P. Hill, applied for and obtained a permit for the construction of the pool for the Bueno's on August 5. See Petitioner's Exhibit number 3, received into evidence and made a part hereof by reference. On April 24, Mr. and Mrs. Edward Eskie entered a contract with Respondent for the erection of a swimming pool on their property located at 1525 Southeast 14th Court, Deerfield Beach, Florida for $6,786.00. See Petitioner's Exhibit number 4 received in evidence and made a part hereof by reference. Mr. Eskie testified that the excavation for the pool began on May 20, and on June 2 gunite services were complete. On July 9, he received a letter from Crockett- Bradley, Inc. a gunite subcontractor, indicating that it was filing a lien for $1,312 against the Eskie's property for services performed. The building permit for the Eskie project was obtained by Respondent on June 10. See Petitioner's Exhibit number 7 incorporated herein by reference. Edward Eskie paid Respondent approximately $4,778 and $1,312 was paid to Crockett-Bradley, Inc. to satisfy the lien which was placed against their property. The Eskie's completed their pool by payment of an amount in excess of $4,000 to another pool contracting firm. Prior to completing the pool and after the Respondent abandoned the project, Edward Eskie made numerous attempts to contract Respondent by phone to no avail. On June 27, Respondent entered a contract with Orlando Gonzalez for a pool to be built at his residence located at 353 Northwest 22nd Street, Boca Raton, Florida for $9,000.00. See Petitioner's Exhibit number 8 which was received and made a part hereof by reference. Orlando Gonzalez paid Respondent $3,600 through his bank toward the contract price. For that payment, Respondent dug a hole and the project was abandoned. After work was abandoned, Gonzalez made repeated attempts to contact Respondent to no avail. To complete the project, he paid another contractor approximately $6,000. On April 18, Respondent entered into a contract with Howard and Sheila Siclari for a pool to be built at their home located at 7812 Northwest 67th Avenue, Tamarac, Florida, for the sum of $4,280. To commence the construction, Respondent obtained a building permit on June 18, 1975. See Petitioner's Exhibits number 9 and number 10 received in evidence and made a part hereof by reference. The Siclari's paid Respondent $3,456.75. Thereafter they completed the work which cost them an additional $2,500 and they did most of the work themselves. James T. Anglen, a pool salesman for Patten Pools testified that he was initially employed by Master Pools until June, 1975. A reference to Petitioner's Exhibit number 1 indicates that Master Pools registered as Brian Sales Corporation as the first entity that Respondent registered with Petitioner on January 1, 1974. He was a superintendent of Patten Pools in June, 1975 when he commenced employment with Patten. He acknowledged that he received money from the Bueno's which was transmitted to Patten Pools. He also acknowledged that the Bueno's were probably hurt most of all the complaining parties in this case. Respondent discovered that its cash flow was short approximately $40,000 to $50,000 and that that amount in checks were floating with insufficient funds to cover them. He commenced efforts to try to straighten out the firms cash flow and that for a while the bank worked along with him. Anglen also acknowledged the abandonment of the Gonzalez project. He further acknowledged that monies received from projects were used to cover deficiencies on other projects to continue Respondent's operations.
The Issue The issue presented is whether Petitioner's application for a variance at the Sunrise Civic Center wading pool should be granted.
Findings Of Fact 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. 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. 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. 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. 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. 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. 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.
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
Findings Of Fact The Warwick Condominium Association, Inc., operates a swimming pool at its condominium located at 5100 DuPont Boulevard, Fort Lauderdale, Florida. The swimming pool is licensed as a commercial swimming pool, and it has satisfactorily passed the inspections conducted by Respondent over the past two years. The Warwick pool has a perimeter gutter system which meets Respondent's regulations. The Condominium Association plans to renovate the pool. The renovation plans, which must be approved by Respondent, involve changing the pool from the approved gutter system to a recessed automatic surface skimmer system. The pool dimensions are approximately 25' x 46', and the pool surface water area is approximately 1,035 square feet. Respondent's rules prohibit the use of recessed automatic surface skimmers for pools larger than 800 square feet and for pools wider than 20'. Therefore, Petitioner's proposed modifications to the pool do not meet existing rule requirements for commercial pools. The pool renovation plans were not approved by Respondent since the plans do not meet the standards set by the Department's rules. Petitioner submitted its proposed plans to the independent Public Swimming and Bathing Facilities Advisory Review Board, and that Board recommended to the Department that Petitioner's request for a variance from the Department's rules be granted. The Department denied Petitioner's request for a variance. There is no evidence that the Department considered the Advisory Review Board's recommendation to approve a variance, and there is no evidence as to what standards the Department has used in approving variances, if any variances have been approved. The location of the Warwick pool is unique and causes the Warwick to experience extraordinary problems in maintaining the cleanliness of the pool. The Warwick pool is located adjacent to the Intracoastal Waterway and a bascule bridge crossing the Waterway. The pool receives an extraordinary amount of highway soot and dirt due to its location next to the elevated highway and bridge. Additionally, grease and oils from boats idling next to the swimming pool waiting for the bridge to open are deposited on the surface of the Warwick swimming pool. Swimming pools at nearby condominiums are not located directly on the Waterway. They are located either on the roofs of those condominium buildings or on the other side of those buildings away from the Waterway. Accordingly, the location of the Warwick pool is unusual. A prevailing southeast wind blows across the Waterway and across the Warwick pool. It then hits the wall of the condominium building and reverses its direction. It creates a great deal of turbulence on the surface water of the pool, pushing the water and the debris on the surface of the water to the south wall of the pool which is located at the pool's deep end. The dirt, debris, grease, and oil deposited by the vehicular and boat traffic accumulate at, and adhere to, the south wall of the pool at the deep end. Cleaning the tile at the south end of the pool requires constant effort. The accumulation of grease and oil at the deep end of the swimming pool is unusual. The perimeter gutter at the deep end of the Warwick pool is slightly higher than the gutters around the other three sides of the pool. Accordingly, the surface water does not overflow the gutter at the deep end except when there are a number of bathers in the pool, thereby altering the water level and creating additional turbulence. At such times and during heavy rains, the gutters flood, and the debris and grease are carried back into the pool where they come in contact with bathers. There is no guarantee that attempting to lower the level of the south gutter will make the perimeter gutter system ideally level. The condominium manager and one of the condominium owners, each of whom have substantial expertise and experience in constructing and operating swimming pools, have determined that the unique problems of the Warwick pool can be resolved by the installation of recessed automatic surface skimmers at the south end of the pool. All witnesses in this proceeding agree that proper skimmer location is determined by the prevailing wind. The amount of surface water removed is the same for both the perimeter gutter system and the recessed automatic surface skimmer system. The accessibility to debris is greater with a gutter system than with the skimmer system since the skimmer system collects debris and retains it in baskets which are then manually emptied. There are greater losses of water with the gutter system than with the skimmer system. Department employees visited the Warwick pool on one occasion for approximately 45 minutes. They placed the gutter system into operation and found that it was working. They testified that the Warwick's system is operational and therefore should simply be improved. The Warwick's witnesses agreed that the system is operational but have shown that the system does not operate properly based upon their extended familiarity with that particular swimming pool. The opinion of the experts with extended experience with the Warwick pool has been given more weight than those who visited the pool on one occasion for less than-one hour, particularly since the Department's witnesses admitted that the conditions at the Warwick during their site visit were not the normal conditions. Although the Department's witnesses clearly have a preference for gutter systems over recessed skimmer systems, no evidence was offered to show that the skimmer system (allowed by the Department in smaller swimming pools) would pose a threat to the health or safety of the bathing public should a variance be granted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT: A Final Order be entered approving Petitioner's request for a variance. DONE and RECOMMENDED this 9th day of February, 1989, at Tallahassee, Florida. LINDA M. RIGOT 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 day 9th day of February, 1989. APPENDIX TO RECOMMENDED ORDER D0AH CASE NO. 88-3045 Petitioner's proposed findings of fact numbered 1 4, 5, 7-14, 16, and 17 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed finding of fact numbered 6 has been rejected as being subordinate to the issues under consideration herein. Petitioner's proposed findings of fact numbered 3 and 15 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. Respondent's proposed findings of fact numbered 1-3 and 9 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4- 6, 10, and 11 have been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 7 and 8 have been rejected as being contrary to the evidence presented herein. Respondent's proposed finding of fact numbered 12 has been rejected as being irrelevant to the issues under consideration herein. COPIES FURNISHED: Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Lois J. Minetti, Manager Warwick Condominium Association, Inc. 5100 DuPont Boulevard Fort Lauderdale, Florida 33308 Martha F. Barrera, Esquire Department of Health and Rehabilitative Services 2421 Southwest Sixth Avenue Fort Lauderdale, Florida 33315
Findings Of Fact Respondent is the holder of currently active General Contractor's license No. RG-0023888. On January 18, 1977, Norwood W. Hope (hereinafter "Developer") entered into a contract with Respondent for the construction of a commercial swimming pool. Respondent was to have been paid the amount of $43,346.40 under the contract for construction of the pool. The contract amount was to be paid pursuant to a five-stage draw schedule as follows: 1. Framing and steel draw paid $10,836.60 2. Gunite draw paid 10,836.60 3. Mancite draw 7,224.40 4. Equipment set draw 7,224.40 5. Final approval draw 7,224.40 Respondent made application for an Alachua County building permit for the swimming pool project on February 23, 1977. The permit application was approved on February 25, 1977, and a building permit was issued. Thereafter, the project received Alachua County approval on a temporary power pole inspection on June 1, 1977. An interim inspection of the property was made by Alachua County officials on November 7, 1977, with no deficiencies noted. A final inspection on the electrical work on the project was made, with satisfactory results, on November 8, 1977. The Alachua County Building Code, by incorporation of the 1973 Southern Standard Building Code, 1974 Revision, provides, in part, as follows: 108.2--INSPECTIONS REQUIRED The Building Official shall inspect or cause to be inspected at various intervals all construction or work for which a permit is required, and a final inspection shall be made of every building or structure upon completion, prior to the issuance of the Certificate of Occupancy, as required in Section 109. * * * (c) The Building Official upon notifica- tion from the permit holder or his agent shall make the following inspections of buildings and such other inspections as may be necessary, and shall either approve that portion of the construction as completed or shall notify the permit bolder or his agent wherein the same fails to comply with the law: * * * Final Inspection: To be made after the building is completed and ready for occupancy. (Emphasis added). The contract entered into on January 18, 1977 between the Developer and Respondent called for Respondent to construct the swimming pool according to the plans and specifications admitted into evidence as Petitioner's Exhibit No. 1. Associated construction, including construction of concrete pool decking, a pumphouse and a fence surrounding the swimming pool site were either completed by the Developer or by other sub contractors. By invoice dated October 12, 1977, Respondent requested a final draw on the project in the amount of 87,000, which, if paid, would have left only $224.40 unpaid under the contract. This draw request indicated that a balance due for extra time and materials would be billed ". . . upon acceptance of total pool." (Respondent's Exhibit No. 4). On October 25, 1977, the Developer paid $6,000 of the $7,000 requested to be paid by Respondent's invoice of October 12, 1977. The Developer contested Respondent's expressed intention to bill for additional time and material, asserting that the Developer had not approved any additional sums for extras. In remitting the $6,000 payment to Respondent, the Developer indicated that "[t]his leaves a balance on our account of $1,224.40, which will be paid upon checking out the pool." (Respondent's Exhibit No. 2). (Emphasis added.) An invoice for back charges on the swimming pool project in the amount of $274 was forwarded to the Developer by Respondent by invoice dated November 8, 1977. In addition, on November 8, 1977, Respondent also invoiced the Developer for a final draw on the project in the amount of $1,224.40. At some time after notification from the Developer's representatives that tile targets in the racing lanes of the pool were improperly located, Respondent returned to the job site after November 9, 1977 to relocate the targets. Respondent performed this work as a result of a written request from the Developer dated November 9, 1977. Respondent completed primary construction of the pool prior to submission of the final draw request of October 12, 1977. At that time, back- filling around the exterior of the pool structure preparatory to the pouring of the concrete pool decking had not been completed. Although by October 12, 1977, Respondent had removed much of the excess dirt and debris from around the edges of the pool. There were still areas of exposed piping which would, in due course, be covered with back-fill and tamped by the decking subcontractor. Respondent did not attempt to back-fill or tamp any areas around the pool's piping system. At some time subsequent to October 12, 1977, which date is not clearly reflected in this record, a separate sub- contractor completed back-filling work around the pool, and poured the concrete decking. Neither the Developer nor his subcontractor advised Respondent that the back-filling had been accomplished and that the deck was to be poured. Prior to October 12, 1977, Respondent "pressure tested" the pool's piping system, and determined that the pool would hold water at a level above its scum gutters. The results of this testing indicated that, at least as of October 12, 1977, there was no leakage from the pool. Standard practice in the pool construction industry dictates that a minimum of three pressure tests be made of a pool's piping system during the course of construction. The first of these tests should occur immediately after installation of the pipes, and a second test should be performed immediately before final back-filling to cover the pipe system. A final pressure test should be conducted after tamping of the fill and prior to the pouring of concrete for the pool deck. The obvious purpose of this system of pressure testing is to discover any water leaks before concrete pool decking is poured to avoid having to cut out sections of the concrete in order to locate leaks. Because the Developer and his subcontractor failed to notify Respondent of further work being done on the pool. Respondent was unable to perform a pressure test either after back-filling was completed, after the back- fill had been tamped and before the concrete deck was poured. By letter dated January 17, 1978, Respondent was furnished by the Developer with a "punch list" indicating several areas of deficiency that needed to be corrected in the pool. In that letter the Developer requested that Respondent complete the necessary work within seven days. The Developer forwarded a second letter to Respondent dated February 23, 1978 advising Respondent that the punch list items had not been corrected, and urging Respondent to complete the work described in the punch list as soon as possible. From receipt of the punch list in January of 1978 through the middle of March, 1978 Respondent had workers on the job intermittently making the corrections indicated in the punch list. Respondent satisfactorily corrected fifteen of the eighteen items listed as defective n the punch list. Some of the items were repaired by other subcontractors. Respondent had difficulty obtaining some items of equipment, which he was required to back-order. When the back-ordered equipment was slow in arriving, the Developer opted to obtain these items from a source other than Respondent. Respondent replaced a defective pump associated with the pool construction at some time subsequent to January 18, 1977. The last work performed by Respondent on the pool project occurred some time between March 10 and March 16, 1978. At no time thereafter was Respondent ever advised by the Developer that any work performed under the contract was either unsatisfactory or incomplete. The pool received a final State of Florida, Department of Health and Rehabilitative Services inspection on July 13, 1978, at which time all necessary permits for operation of the pool under applicable regulations were issued. Respondent at no time requested that Alachua County officials come to the job site to conduct the necessary final inspection of the project, nor did he advise the Developer of the necessity to do so. At some time during 1979, subsequent to the completion of the swimming pool project, the Developer discovered that the pool was losing water at a rate of approximately 2,100 gallons per day. During this period, the water level inside the pool would drop to a level equal to the piping running around the exterior of the pool shell and under the pool decking. When the Developer was unable to ascertain the cause of the leak, an outside subcontractor was hired to check the pool. This sub- contractor performed pressure tests on the pool's piping system in an attempt to determine whether the leakage was occurring through the pipes. These tests apparently showed no leakage through the piping system. The Developer then caused the concrete decking around the edge of the pool to be removed in order to more closely inspect the interior piping. At this point it was discovered that there existed flaws and breaks in the neoprene piping surrounding the exterior shell of the pool. After repairs to the damaged piping, the pool decking was repoured and there has been no subsequent leakage problem in the pool. The Developer incurred expenses in the amount of $2,288 in removing the decking around the pool and repairing the neoprene piping. Because of the fact that several subcontractors in addition to Respondent worked in the pool area during construction of the pool project, it is impossible on the basis of this record to determine the cause of the damage to the neoprene piping. Respondent's testimony is uncontroverted that pressure testing performed prior to the conclusion of primary work on the pool in October of 1977 showed no leakage through the pool's piping system. Further, at the conclusion of the primary work in October, 1977, much of the pool's piping system was left exposed and could have been damaged either by the Developer's own workers or by employees of other subcontractors in the course of back- filling and tamping fill material preparatory to pouring concrete decking. The Developer's failure to advise Respondent of the schedule for back-filling, tamping and pouring of concrete deprived Respondent of an opportunity to properly pressure test the piping system at appropriate stages of construction. Respondent has submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not incorporated in this Recommended Order, they have been rejected as being either irrelevant to the subject matter of this proceeding or as not having been supported by the evidence.
The Issue Whether the Petitioner's products, the Transfer Tier and the Easy Ladder, should be approved for use in public swimming pools throughout the State of Florida?
Findings Of Fact The Petitioner manufactures the products under review in this case: the Transfer Tier and the Easy Ladder (hereinafter referred to as the "Products"). The Products are designed and intended for use by the aged and disabled in entering and exiting swimming pools. The Easy Ladder is intended to be used by people who are able to walk but have difficulty in using a traditional swimming pool vertical ladder. The Transfer Tier is intended for use by people with more disabling handicaps. The Products are intended to be used as portable devices which are not left in the swimming pool. There is nothing to prevent purchasers of the Products, however, from leaving the Products in a swimming pool for extended periods of time. Although designed for use by the aged and disabled, either Product can be used by anyone in the same manner that steps are used. By letter dated May 7, 1986, the Petitioner requested a review of the Products by the Respondent and approval of the Products for use in Florida public swimming pools. The Respondent reviewed the Products and determined that both Products failed to meet the requirements of the Respondent's Rules. The Products are made of fiberglass. When placed in a swimming pool there are areas of the swimming pool and parts of the Products which cannot be seen. Therefore, algae and sediment in the pool can go undetected. Although the Products are intended to be used as portable devices, they can be left in the pool. Additionally, although all areas of the Products are accessible so that algae formation can be prevented, the Products would have to be removed from the pool in order to gain access. The Products are not designed to be installed as a part of a swimming pool. The front edge intersections and the treads and risers of the steps of the Products do not have contrasting colored stripes on the risers of the steps at least two inches wide. The handrails on the Products are not anchored in the pool deck or the bottom step. There are no nationally recognized standards for the Products. The Products are within limits of sound engineering practice. The metallic handrails of the Products and the metallic legs of the Transfer Tier are not to be bonded to other metallic parts of the swimming pool with copper wire no smaller than No. 8 wire. These metallic parts of the Products will be touching the side and bottom of the swimming pool. The metallic parts are not fixed to the swimming pool. They are also not separated from the pool by a permanent barrier. The Transfer Tier is not designed to fit completely flush with the swimming pool wall and floor. Additionally, either Product, if not properly placed in a swimming pool will not fit completely flush with the swimming pool floor. Therefore, the Products will not preclude entanglement or obstruction which could result in the submerged entrapment of bathers. By letter dated May 30, 1986, the Petitioner was informed by the Respondent that the Products failed to comply with the Respondent's Rules. By letter dated July 2, 1986, the Petitioner requested a formal hearing to contest the denial of the Petitioner's application and requested a review of the Respondent's decision by the Public Swimming and Bathing Facilities Advisory Review Board. The Public Swimming and Bathing Facilities Advisory Review Board unanimously approved the Respondent's decision. There is a need in Florida for the type of products proposed by the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying approval of the Products for use in public swimming pools in the State of Florida. DONE and ORDERED this 24th day of August, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3999 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Deficiency No. 1 3 and 7. Deficiency Nos. 2 & 3 Irrelevant or not supported by the weight of the evidence. See 4 and 9. Deficiency No. 4 11. Deficiency No. 5 12. Deficiency No. 6 Not supported by the weight of the evidence. The Respondent's Proposed Findings of Fact 1 Hereby accepted. 2 2. 3 5. 4 6. 4a Not supported by the weight of the evidence. 4b 9. 4c 10. 4d Not supported by the weight of the evidence. 4e The first sentence is accepted in 12. The conclusion of law of the second sentence is not supported by the weight of the evidence. 4f 13. 5 14. 6 15. 7 16. 8 Not supported by the weight of the evidence. 9. Irrelevant. 10 The first sentence is accepted in 17. The rest of the paragraph is irrelevant. COPIES FURNISHED: Mr. Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Michael O. Mathis, Esquire Senior Staff Attorney Office of Licensure and Certification Department of Health and Rehabilitative Services 2727 Mahan Drive Tallahassee, Florida 32308 Frances Daly President and Marketing Director Triad Technologies, Inc. 4000 Galster Road East Syracuse, New York 13057
