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
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 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. 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. 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. 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.
The Issue The legal issues raised and the status of the parties in this cause are seemingly complex due to the manner in which the case was presented on the initial pleadings to the Division of Administrative Hearings. At bearing, it was determined that Fairways was seeking approval of a permit for use of its swimming pool. This application had been denied by the Department of Health and Rehabilitative Services on the grounds that the pool failed to meet the requirements of Rule 100-5.50, Florida Administrative Code. In order to place the parties in their proper positions, the Respondent, Fairways, was determined to be the movant party and its cross-petition considered to be the petition. The ultimate issue presented is whether the subject pool meets the requirements of Rule 100-5.50 and its use should be approved. PRELIMINARY RULINGS Fairways collaterally attacks the manner of application of the rule by the Department to its pool, asserting that the manner of application of the rule constitutes an unpromulgated rule. Fairways also alleges in its proposed findings that Rule 100-5.50 is an invalid exercise of validly delegated legislative authority, and that the Department is estopped to assert the pool fails to comply with Rule 100-5.50 because of a failure to communicate properly the conditional approval of construction of the pool. The allegations that the Department's application of Rule 100-5.50 constitutes an unpromulgated rule and that Rule 100-5.50 is invalid are raised for the first time in Fairways' proposed findings. The original petition (cross-petition) makes no allegation that Rule 100-5.50 is invalid, and makes no allegation that the manner of measurement is an invalidly promulgated rule. These allegations would not be properly raised within the context of a Section 120.57(1), Florida Statutes, proceeding. Although invalidity of the rules on constitutional grounds is preserved in the record for appellate review, the nature of the allegations in this instance are not grounded in a constitutional challenge. Having failed to raise these issues in their pleadings under the appropriate provision of Chapter 120, Florida Statutes, these attacks will not be considered in determining the issue presented in this proceeding.
Findings Of Fact Respondent is a six-building complex containing 13 condominium units, each building being situated on a separate lot circumscribed by property lines outlining the property within the exclusive possession and control of the occupants of the condominiums. The pool in question is located upon jointly held property and is not intended to be and has not been open for use by the public or persons other than the occupants of the condominiums and their guests. On April 2, 1979, Fairways submitted a site plan (Joint Exhibit number 4) to Petitioner at the Manatee County Health Department. The site plan showed the proposed location of the pool in relation to the condominium buildings. Approval of these plans by the Department was necessary in order for a construction permit to be issued for the pool. By a letter dated May 30, 1979 (Joint Exhibit number 2), Mr. O. P. Randle, Jr., Engineer for the Department, granted approval for the pool plans with the condition that "Wet facilities shall be provided within two hundred (200) feet of the pool." Between April 4 and May 30, 1979, Ms. Rosemary Wiley, Engineering Technician with the Department, orally informed Fairways' "project engineer" that several units were more than 200 feet from the proposed pool and that wet facilities would be required. During this period, Wiley also informed Fairways' pool contractor of the same condition and requirements. A construction permit for the pool was secured by Fairways' pool contractor on June 4, 1979. Construction of the pool began during the first week of June, 1979, and was substantially finished by July 5, 1979. Shortly after June 17, 1979, Fairways contacted the Department's local pollution control director, who visited Fairways and measured the distance between the water's edge of the pool and the farthest building. The method of measurement employed by the Health Department was to measure the shortest distance between the edge of the pool and the structure of the building. The method of measurement used by the Department has been in use 16 years and evolved because measurement from the pool to the actual sanitary facility located within a building is impractical. The only building which was not within 200 feet of the water's edge of the pool was Building 6, containing two dwelling units, which was 241 feet from the edge of the pool. Part of Building 5 is more than 200 feet from the edge of the pool; however, its closest edge is within 200 feet of the pool, meeting the requirement for wet facilities. The only toilets and lavatories constructed at this site are those contained in the individual condominium units. These facilities are not open to use by the public or other condominium owners. By letter dated June 23, 1979, the local pollution director, at the request of the Health Officer, requested from the Chief of Public Health Engineering Services an interpretation of the method of measuring the 200 feet provided in Rule 100-5.50. The request of the Health Officer was precipitated by a request for section interpretation by Fairways' agent. The request dealt specifically with what was required to be within the 200-foot radius of the pool. The interpretation of the Chief of Public Health Engineering Services was contained in his letter dated July 5, 1979, addressed to the District VI pollution control director. This interpretation advised that the building's edge must touch or fall within a 200-foot radius of the pool. This letter also advised that the Department had no power to consider or grant variances or exceptions to the rules. The information contained in this interpretation was communicated to Fairways' agent. Other proposed findings of fact presented by the Petitioner and Respondent are specifically rejected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department deny the application of the applicant for a permit of use. DONE and ORDERED this 6th day of February, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Amelia Park, Esquire Department of HRS W. T. Edwards Facility 4000 West Buffalo Avenue, 4th Floor Tampa, Florida 33614 Janice Sorter, Esquire Department of HRS W. T. Edwards Facility 4000 West Buffalo Avenue, 4th Floor Tampa, Florida 33614 David Paul Montgomery, Esquire 2103 Manatee Avenue, West Bradenton, Florida 33505
Findings Of Fact The City of Cocoa Beach, Florida, was issued operating permit Number 5- 42-67, by the Florida State Board of Health on February 21, 1967, to operate a municipal swimming pool at the City recreation complex with a pool bathing capacity of 200 persons per hour and a pool bathing load of 800 persons. Chapters 10D-5 and 17-22 of the Florida Administrative Code establish health, safety, and sanitation standards for public swimming pools. The perimeter overflow gutter system for the pool in question is out of level and only partially operable. This condition has existed and has been known to exist by all concerned parties for many years prior to the dates in issue in this cause. The deep end of the pool has floated up approximately eight inches and the water level does not enter the overflow gutter at this point or at any other point except at the shallow end of the pool. An effectively operating overflow gutter system is necessary to permit effective removal of surface contamination such as body or suntan oil, debris, leaves, bugs, sputum, and the like which are not removed by the bottom drain system. All of these contaminants contain bacteria and since most people swim on the surface in this unfiltered water, the cleanliness at this level is important to insure proper sanitation. If the surface water is not filtered, there is little protection afforded by chemicals added. On April 9, 1981, Mr. Thomas Donigan, an Environmental Engineer for Brevard County, 1/ forwarded to the City of Cocoa Beach, a letter indicating that previously identified deficiencies in the gutter system had not been corrected, along with notification of other discrepancies in the pool complex which constituted violations of existing standards. When the City replied, admitting to the improper gutter system, but requesting reconsideration of the Petitioner's time limit stated for an affirmative proposal by the City, a more thorough inspection was conducted by Mr. Donigan and Mr. Loran Coffman, Regional Engineer for the Licensure and Certification Office of Petitioner, which revealed at least eleven substantial deficiencies, 2/ in addition to the gutter problem, all of which were brought to the attention of the City Manager by letter on June 8, 1981. This letter also advises the City to keep the pool closed to the public until these ancillary deficiencies could be corrected and the corrections confirmed. It also established a get-well date of January 1, 1982, for the gutter problem and advised of the right to an administrative hearing. Mr. Donigan continued his inspections; and in August, 1981, he reported to HRS that some of the deficiencies previously cited had been corrected but some had not, including the inlet fixture and the stain. For some reason, not further explained, notwithstanding the direction to keep the pool closed, the pool was opened for public use that season, and in July, 1981, the City voted to remove all pool charges for the rest of that season. However, in August, 1981, the City did submit plans for modification of the scum gutter, but they were not acceptable and were returned disapproved, to the City. Finally, on October 7, 1981, appropriate plans to correct the gutter problem were approved by Mr. Donigan and returned to the City for accomplishment. An inspection of the pool in April, 1982, by Mr. Coffman and Mr. Donigan revealed several previously identified discrepancies as still uncorrected and the gutter problem still existing. In May, 1982, another inspection by Mr. Coffman showing not only no improvement but apparently some deterioration in the pool operating condition. On July 27, 1982, the Director of the Office of Licensure and Certification, HRS, by letter to the City Manager informed the City of the results of that inspection and requesting, by August 16, 1982, a statement of the City's position and plans with regard to correcting the gutter system and the remaining problems. The City Manager responded by letter dated August 13, 1982, and indicated that all of the ancillary deficiencies except the stains had been "taken care of" and that to drain the pool to get the stains out would be too costly. The issue of the gutters was completely ignored and the City indicated that in its opinion, the pool was safe for public use. Notwithstanding Mr. Johnson's allegations that those problems except the stain had been "taken care of", a later inspection by Mr. Donigan, in the company of the City Recreation Director, showed that only one had been corrected. The stains on the pool walls cannot be definitely attributed to any particular cause at this time; however, one strong possibility is a long- standing low pH level in the pool that would cause a precipitation of iron from the pipes. In addition, the stain can prevent dirt in the pool from being observed and removed. It was argued that the stain might also hinder someone from being able to see a patron in distress in the pool. The importance of pH is that improper pH level reduces the effectiveness of the chlorine residual in the pool water, and the missing inlet covers in the pool bottom are hazardous in that a foot, hand, or finger may become stuck in them, thereby keeping the individual beneath the water. The depth markers being missing is also a hazard when it comes to people diving into the pool from the edge. Vacuum breakers on the hose bibbs at the pool deck area prevent contamination of the public water system by back siphonage of water from the pool or deck area. City witnesses, while admitting that the gutter system is incorrect as it exists, indicated that the prevailing wind flow from the out-of-the-water deep end of the pool to the properly working shallow end tended to mitigate the effect of the gutter deficiency on water quality. The City conducted daily tests of water quality at its own laboratory at the Water Treatment Plant. These continuing tests failed to reveal any improper or dangerous condition in the water, but, admittedly, this laboratory is not certified for tests of this kind; however, in addition to these tests, the pool manager monitored the chlorine and pH levels on a daily basis during the winter and every hour during the summer, and when chemical levels need adjusting, he adds as required. Further, the County Health Department checks water quality twice a week when the pool is operational. Several reports from the County of high coliform bacteria counts were subsequently determined to have been in error, and there has never been a high count from the City laboratory. In the eight years of operation by the current manager, the only illness complaints attributable to swimming in the pool were several ear infections, which are common at any swimming facility. Other rebuttal evidence related to the vacuum breakers which are in every outlet to the pool water. Most significant is the estimate which the City gives for repair of the gutter system and which the City is apparently unwilling to undertake. Repair costs would be approximately $60,000.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's permit to operate a public swimming pool be suspended for a period of one year, or until the identified deficiencies are corrected. RECOMMENDED this 21st day of March, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 21st day of March, 1983.
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 On August 1, 1980, Copper Door II, Inc., entered into a contract with Lang Aquatech Pools to construct a swimming pool for $22,338. Lang began construction, but Copper Door did not maintain the payment schedule called for in the contract, whereupon Lang terminated work on the pool. The parties later reached an agreement that upon payment of $5,000 by Copper Door to Lang work would recommence. After payment by Copper Door of the $5,000, little if any work was performed by Lang toward completion of the pool. Copper Door took over construction and subcontracted the remainder of the work on the pool. The pool was opened to the public by Copper Door and cited by the Department of Health and Rehabilitative Services for failure to have an operating permit in violation of Rule 10D-5.65, Florida Administrative Code. Copper Door has been unable to obtain an operating permit because of its inability to complete an application for an operating permit. The Department's application form for an operating permit (Hearing Officer's Exhibit No. 1) requires execution of a certificate by the pool's engineer and contractor. Because of the aforementioned financial dispute, neither Lang nor its engineer would sign the form. The form requires that both the pool contractor and engineer be registered or certified with the state. The pool was designed by an engineer registered in the State of Florida. Further, the design of the pool was approved by the Department prior to commencement of construction. Work completed by Copper Door after abandonment of construction by Lang included the application of concrete to the inside of the pool, pouring of the decking, installation of a water circulating pump, and a portion of the electrical work. All other work was done by Lang. The pool performs properly and in accordance with other public pools granted operating permits by the Department. The pool was subject to inspection by local building officials. These officials were responsible for ensuring that construction was in accord with plans approved by the Department and local building codes. The Department does not inspect pools during construction. The Department looks instead to the certificate of the contractor and engineer to ensure that a pool meets applicable requirements. The Department's application form has not been adopted by rule or as a rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Health and Rehabilitative Services accept the application of Copper Door II, Inc., upon execution of the contractor's certificate by Copper Door as owner. Copper Door must keep the pool closed until its application is approved. DONE and ORDERED this 18th day of February, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1982. COPIES FURNISHED: William W. Chastain, Esquire 412 Madison Street, Suite 1207 Post Office Box 222 Tampa, Florida 33601 Donald R. Odom, Esquire Department of Health and Rehabilitative Services 2255 East Bay Drive Post Office Box 5046 Clearwater, Florida 33518 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
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
The Issue The issues are: (1) Whether the pool at issue is a special purpose pool, and (2) Whether Petitioner is entitled to a variance to use recessed automatic surface skimmers in the pool at issue.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order denying the variance request of Tamtech Pool Builders and denying special purpose pool status for the pool built by Tamtech Pool Builders. DONE AND ENTERED this 10th day of February, 1988 in Tallahassee, Leon County, Florida. DIANE K. KIESLING 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 10th day of February, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-4443 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Tamtech Pool Builders Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 6(49) and 9(39). Proposed findings of fact 1, 4, and 7 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 2, 5, and 12 are rejected as being unsupported by the competent, substantial evidence. Proposed findings of fact 3, 10, and 11 are rejected as being irrelevant. Proposed finding of fact 8 is rejected as being irrelevant because this action is not a rule challenge proceeding. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Health and Rehabilitative Services Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-3(1-3); 5-7(4-6); 9-11(7-9); 12(9); 13(10); 14-34 (10-30); 36-43(31-38); 46-53(40-47); and 56-58(50-52). Proposed findings of fact 4, 8, 44, 45, and 55 are rejected as being irrelevant or unnecessary. 3 . Proposed finding of fact 54 is rejected as being unsupported by the competent, substantial evidence. 4. Proposed finding of fact 35 is subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Margaret Smithson HRS District I Legal Counsel 160 Governmental Center P. O. Box 12836 Pensacola Florida 32576 Mark E. Walker Attorney-At-Law 723 N. Eglin Pkwy., Suite 2 Ft. Walton Beach, Florida 3254 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
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
