STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE

OF ADMINISTRATIVE HEARINGS

COUNTY OF GUILFORD 05 EHR 1161

_____________________________________________________________________________

GEORGE A. JENKINS, JR. )

d/b/a LAKE JUNO PARK, INC., )

PETITIONER, )

)

vs. ) DECISION

)

N. C. DEPARTMENT OF )

ENVIRONMENTAL HEALTH, )

RESPONDENT. )

______________________________________________________________________________

On August 29, 2006, Administrative Law Judge Melissa Owens Lassiter heard this contested case in High Point, North Carolina. On September 12, 2006, the parties’ attorneys filed their respective closing arguments with the Office of Administrative Hearings.

On September 18, 2006, Petitioner filed a memorandum, and affidavit from Mildred Staley, asking the undersigned to consider such additional evidence and argument. On September 27, 2006, the undersigned granted Respondent’s Motion to Exclude Petitioner’s September 18, 2006 filing. On October 31, 2006, November 2, 2006, and November 27, 2006, Petitioner filed additional arguments with the Office of Administrative Hearings, and asked the undersigned to consider additional evidence and argument. The undersigned did not consider Petitioner’s additional letters in making the decision in this case as such letters were not part of the record. N.C. Gen. Stat. § 150B-29(b).

On December 6, 2006, the undersigned issued an Order ruling that Respondent properly rejected Petitioner’s plan to convert the bumper pool into a wading pool, and requested Respondent submit a proposed Decision. On January 8, 2007, Respondent filed a proposed Decision with the Office of Administrative Hearings.

APPEARANCES

For Petitioner: William B. Trevorrow

Attorney at Law

221 Commerce Place, Suite A

Greensboro, NC 27401

For Respondent: Judith Tillman

North Carolina Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

EXHIBITS

For Petitioner: 1 through 9

For Respondent: 1 and 2

ISSUE

Whether Respondent properly rejected Petitioner’s plan to convert a former bumper-boat pool to a wading pool under N.C. Gen. Stat. §§ 130A-280 et seq. and 15A NCAC 18A .2500?

FINDINGS OF FACT

1. Public swimming pools in North Carolina are governed by N.C. Gen. Stat. §§130A-280 et seq. and 15A NCAC 18A .2500 (public swimming pools). These laws and rules require that public swimming pools comply with standards for the protection of the public’s safety.

2. Petitioner owns Lake Juno Park in Guilford County. As part of Lake Juno Park, Mr. Jenkins operated the pool that is the subject of this case for some 20 to 30 years as a bumper-boat pool.

3. Guilford County Department of Public Health is an agent of Respondent who enforces N.C. Gen. Stat. § 130A-280 et seq and 15A NCAC 18A .2500 et seq. in that county. (N.C. Gen. Stat. § 130A-4).

4. Mr. David Foust is a swimming pool inspector and supervisor in the Guilford County Department of Public Health, and an authorized agent of Respondent. At hearing, Mr. Foust was qualified as an expert witness for Respondent in swimming pool operation and regulation.

5. Mr. Floyd Thomas is also a swimming pool inspector for the Guilford County Department of Public Health, and an authorized agent of Respondent. At hearing, Mr. Thomas was qualified as an expert witness for Respondent in swimming pool operation and regulation.

6. Mr. Philip M. Brower is an engineer with Tritech Civil Environmental, PC. While Mr. Brower has reviewed plans for two pools in the past few years, he has never designed a swimming pool.

7. Mr. Foust inspected Petitioner’s bumper boat pool approximately 10 years ago. A couple of years ago, Foust observed the pool again, and did not notice any changes to the pool or the adjacent water slide. In recent years, Mr. Foust had visited Petitioner’s pool many times and talked with Petitioner about what improvements Petitioner needed to make to convert the bumper-boat pool to a public swimming pool or wading pool.

8. In 2003, Petitioner began making changes to the former bumper-boat pool at Lake Juno Park. Yet, Petitioner failed to submit his plans, as required in 15A N.C.A.C. 18A .2509, for approval by the Guilford County Department of Public Health before making changes to the pool.

9. In a letter dated June 22, 2004, Mr. Foust advised Petitioner of the requirements for converting the bumper-boat pool to a public swimming pool. The first sentence of that letter stated:

Per our conversations during the summer of 2003[,] and on our recent visits during the 2004 pool season, there seems to be some communication problems concerning the conversion of the bumper boat pool (a non-regulated pool) to a water slide/wading pool (both regulated pools).

. . .

Since the bumper boat pool was exempt and never permitted, converting this pool to a wading/water slide type pool would now have to meet all the design and construction requirements found in rule .2509, .2512-.2534, as well as all other standards found in 15A N.C.A.C. 18A .2500. I have included another copy of the current rule with this letter to help with these requirements.

(Resp Exh 1)

10. In his June 22, 2004 letter, Foust explained to Petitioner that the most difficult item to complete would be the requirements of 15A N.C.A.C. 18A .2509 (a) and (e). That rule required an approved architectural plan and a signed engineer’s letter stating that the bumper-boat pool meets the current rule. Foust further explained that:

Since your wading/water slide type pool does not meet the current standards found in 15A NCAC 17A .2500, Guilford County cannot permit this pool or allow this pool to operate. You may operate this pool as a bumper boat pool if the water slide is removed.

(Resp Exh 1)

11. Inspector Floyd Thomas also visited Petitioner’s pool many times in recent years and talked with Petitioner about what improvements and/or changes Petitioner would need to make to convert the bumper-boat pool to a public swimming pool.

12. During visits with Mr. Foust and Mr. Thomas, Petitioner repeatedly asked what the first step was to convert his bumper-boat pool into a public swimming pool. Both Mr. Foust and Mr. Thomas repeatedly and consistently told Petitioner he would need to submit a plan prepared by a professional engineer or architect to comply with 15A N.C.A.C.18A .2509. Foust and Thomas referred Petitioner to that rule. That rule states:

For public swimming pools which are constructed or remodeled on or after May 1, 1991, plans and specifications shall be prepared by a registered professional engineer or registered architect and shall be approved by the Department prior to construction.

13. Despite Foust and Thomas’ recommendations, Petitioner repeatedly made modifications to his pool without getting prior plan approval from Guilford County Department of Public Health.

14. In April 2005, Petitioner asked Phil Brower to draft a drawing of the former bumper boat pool in order to document the condition of the pool. Brower drafted a drawing of the former bumper-boat pool and gave it to Petitioner. Petitioner did not ask Brower to upgrade the pool.

15. On or about April 26, 2005, Petitioner applied for approval with Respondent to convert his former bumper-boat pool to a public swimming pool by submitting Brower’s drawing to Guilford County Department of Public Health.

16. A preponderance of the evidence showed that Mr. Brower’s drawing was not a proposal submitted “prior to construction,” as required in 15A N.C.A.C. 18A .2509.

17. By letter dated May 17, 2005, Mr. Foust “disapproved” the drawing prepared by Mr. Brower, and submitted by Petitioner, because it did not meet all the requirements in 15A N.C.A.C. 18 .2500. Foust further advised Petitioner that:

This pool cannot be approved as built for any regulated pool in North Carolina. If you would refer to our letter from June 22, 2004, a Bumper Boat pool is not a regulated pool in North Carolina and this body of water could operate as a non-regulated pool. Since the bumper boat pool does not meet the rules found in 15A NCAC 18A .2500, Guilford County cannot permit this pool or allow this pool to operate as a wading pool.

(Resp Exh 2)

18. Foust found numerous problems with Petitioner’s April 29, 2005 wading pool plan, including insufficient T-drains, insufficient skimmers, and problems with the pump and filter area. (Foust testimony) However, in his May 17, 2005 letter to Petitioner, Foust failed to give Petitioner the specific basis upon which it was disapproving Petitioner’s wading pool plan. In addition, Respondent failed to give Petitioner any notice of his appeal rights of Respondent’s decision, including the time frame by which he could appeal Respondent’s decision, and to whom such appeal should be mailed and/or filed.

19. Subsequently, the Guilford County Health Department sent a copy of their prior correspondence to Petitioner, to Mr. Phil Brower. By letter dated March 13, 2006, Brower advised Petitioner of the many issues before Petitioner, and gave Petitioner a copy of the current pool standards relevant to wading pools. Brower then advised Petitioner what deficiencies the subject pool had, and what construction Petitioner needed in order to convert the bumper-boat pool to a wading pool. (Pet Exhs 3 and 6)

20. On May 26, 2006, during the discovery phase of this case, Respondent provided Petitioner with a detailed list of the reasons it disapproved Petitioner’s April 26, 2005 wading pool plan. This was the first time Respondent had provided Petitioner with the specific basis for its disapproval of Petitioner’s wading pool plan.

21. Lucian Warren has been a concrete contractor since 1959. Approximately 25-30 years ago, Mr. Warren poured a concrete bottom in the subject pool at Petitioner’s Lake Juno Park. Mr. Warren indicated that Petitioner told him the pool would be a wading pool. But Mr. Warren had not visited Lake June Park since the day he poured concrete. Warren could not recall the specific date he poured concrete for the subject pool.

22. Sometime between March and May 2006, Freida Edmundson observed the installation of T-drains of the subject pool. The T-drains shown in Petitioner’s Exhibit No. 9 accurately depict the T-drains she observed. Ms. Edmundson painted the middle part of the pool bottom, and knew that Petitioner also installed new filters, pumps, and an automatic chlorinator in the subject pool in 2006. Ms. Edmunson has been employed at Lake Juno Park for approximately four years, and thus, possessed no knowledge of the subject pool’s usage in the 1970’s.

(a) At hearing, Edmundson opined that there was miscommunication between the Health Department and Petitioner regarding the required improvements for the “wading pool.” She acknowledged that it was hard to make Petitioner understand certain required procedures because of his hearing problem.

(b) When Respondent denied Petitioner’s permit request and pool plan, Floyd Thomas advised Petitioner of the appeal process. (Edmundson)

23. North Carolina laws and rules describe significantly different water quality requirements for a bumper-boat pool, in which people have only incidental contact with the water, and a public swimming pool, in which people are immersed in the water.

24. A preponderance of the evidence at hearing showed that Petitioner’s bumper-boat pool lacked a sufficient number of inlets pursuant to 15A N.C.A.C. 18A .2518. Having a sufficient number of inlets in a public swimming pool is important to distribute disinfected water evenly throughout the pool and to ensure proper circulation of the water. (Foust and Thomas testimony)

25. A preponderance of the evidence at hearing showed that Petitioner’s bumper-boat pool also lacked a sufficient number of skimmers pursuant to the requirements in 15A N.C.A.C.18A .2518. Skimmers play a primary role in cleaning spittle and other contamination off the surface of the pool water and help ensure proper circulation of the water. (Foust and Thomas testimony)

26. Both skimmers and inlets can become substantial hazards if not properly installed.

27. In order to disinfect the subject pool, Petitioner placed chlorine tablets in the skimmers in the subject pool. Petitioner’s actions were improper because such placement could expose the public directly to the chlorine tablets. Specifically, direct exposure to chlorine tablets could cause severe burns. (Foust and Thomas)

28. Properly installed T-drains are particularly critical to prevent suction injuries in swimming pools. It is standard practice in swimming pool operations for the local Health Department to be notified and for a member of the Health Department pool inspection staff to be present to observe the installation of adequate, properly constructed T-drains.

29. Pursuant to 15A N.C.A.C. 18A .2518, the maximum flow velocity for Petitioner’s pool is ten feet per second on inlets or returns, and six feet per second on main drains and skimmers, which create suction.

30. The preponderance of the evidence showed that the size of pipes installed at the former bumper-boat pool were too small for the amount of water circulated through the pool. If the number of inlets and skimmers and the size of the piping are not all coordinated and correct, they can increase the risk of injury to the public.

31. 15A N.C.A.C. 18A .2534 requires a separate, enclosed chemical storage room. The evidence at hearing established that Petitioner stored chemicals for the pool in an open “lean-to” type shed that was easily accessible to the public, thereby creating a dangerous risk of public exposure to the chemicals.

32. At hearing, Petitioner argued that he was entitled to an exemption from the requirements of N.C. Gen. Stat. § 130A-282(b), because Petitioner built and used the subject pool as a children’s wading pool before the adoption of any state or local regulatory rules regarding design, construction, and operation of public swimming pools. Petitioner argued that he still qualifies for this exemption, even though he used the pool as a bumper boat pool the past several years.

33. However, Petitioner failed to present sufficient evidence, other than his own testimony, that the subject pool was used as a children’s wading pool in the early 1970’s. While Mr. Warren had poured concrete for the pool many years ago, he had not observed how the pool was used. Ms. Edmundson had only been an employee for Petitioner for four years, and thus, had no knowledge about the pool’s prior usage.

34. In contrast, Respondent indicated that Petitioner had always referred to the pool as a former bumper-boat pool. Mr. Foust’s investigation regarding the pool’s status indicated that the bumper boat pool had not been used for anything other than a bumper boat pool for thirty-plus years. The preponderance of the evidence, as noted above, showed that the subject pool did not comply with the required pool regulations. Petitioner failed to present any evidence refuting the deficiencies found by Respondent and as noted in the above Findings of Fact.

35. Petitioner also argued that Respondent’s May 17, 2005 letter was inadequate notice of the basis for Respondent’s denial of a permit, and thus, constituted a denial of due process. The preponderance of the evidence showed, and Respondent’s counsel acknowledged at hearing, that Respondent’s May 17, 2005 letter did not contain the specific basis for Respondent’s denial/disapproval of Petitioner’s pool plan and request for a permit for his pool. While Foust advised Petitioner, in that letter, that his plan did not comply with Respondent’s requirements in 15A NCAC 18A .2500, and that Petitioner’s pool could be approved as built for any regulated pool, Foust did not specify which requirements that the bumper boat pool did not meet. Neither did the May 17, 2005 properly advise Petitioner of his appeal rights.

36. The preponderance of evidence showed that Foust and Thomas had discussed the pool’s deficiencies with Petitioner on many occasions, and had referred Petitioner to the relevant rules. In addition, Mr. Thomas verbally advised Petitioner of his right to appeal Respondent’s decision.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction of this contested case pursuant to Chapters 130A and 150B of the North Carolina General Statutes.

2. Respondent has the authority to regulate public swimming pools pursuant to N.C. Gen. Stat. §§ 130A–4, 130A-5, and 130A-29; Gen. Stat. §§ 130A– 280 et seq; and 15A N.C.A.C. 18A .2500 et seq.

3. N.C. Gen. Stat. § 150B-1 et seq requires that an agency provide a person the appropriate notice of the reasons for an agency’s action, and the appropriate notice of that person’s appeal rights from such agency decision.

4. In this case, Respondent denied Petitioner procedural due process when it failed to give Petitioner appropriate notice of the basis for its denial of a permit, and failed to give Petitioner his appeal rights.

5. However, Respondent's failure to provide adequate notice of the reasons for its decision, does not automatically entitle Petitioner to a reversal of the Respondent’s determination. In order to claim any relief based on a violation of the internal appeal procedures, Petitioner must show that there was a substantial chance, there would have been a different result in his case if the established internal procedures had been followed. Farlow v. North Carolina State Board of Chiropractic Examiners, 76 N.C.App. 202, 208, 332 S.E.2d 696, 700, disc. rev. denied, 314 N.C. 664, 336 S.E.2d 621 (1985).

6. In this case, Petitioner failed to show that there was substantial chance there would have been a different result in this case, if Respondent had listed the specific requirements upon which Respondent based its May 17, 2005 denial, and if Respondent had listed Petitioner’s appeal rights in such letter.

(a) First, Petitioner failed to present sufficient evidence supporting his contention that his former bumper boat pool was used previously as a wading pool. Ms. Edmundson had only been Petitioner’s employee for four years, and showed no knowledge of the pool’s operation or usage in 1972. While Mr. Warren poured concrete for the pool some 25-30 years ago, he did not possess any knowledge of the pool’s operation or usage in the 1970’s. As such, Petitioner failed to show his pool should have been “grandfathered” as an exemption to the pool statutes and regulations.

(b) Second, Petitioner failed to present any expert testimony refuting Respondent’s evidence that Petitioner had not submitted an approvable plan for a pubic swimming pool.

(c) Third, Petitioner timely filed a contested case petition with the Office of Administrative Hearings appealing Respondent’s decision, and with his attorney’s assistance, properly followed the procedures of the Office of Administrative Hearings.

7. N.C. Gen. Stat. § 130A-282(b) provides:

Public swimming pools constructed or remodeled prior to May 1, 1993, that do not meet specific design and construction requirements of the rules for public swimming pools adopted by the Commission[,] shall not be required to comply with design and construction requirements other than requirements related to the abatement of suction hazards. Public swimming pools constructed or remodeled prior to May 1, 1993, shall comply with all other rules for public swimming pools adopted by the Commission.

8. 15A N.C.A.C. 18A .2509(a) states in part:

For public swimming pools which are constructed or remodeled on or after May 1, 1991, plans and specifications shall be prepared by a registered professional engineer or registered architect and shall be approved by the Department prior to construction.

9. Rule 15A N.C.A.C. 18A .2509(e) states in part:

Prior to issuance of the operation permit, the owner shall submit to the local health department a statement signed by a registered architect, or a registered engineer stating that construction is complete and in accordance with approved plans and specifications and approved modifications.

10. Petitioner failed to show by a preponderance of the evidence that the subject pool is subject to the exception set out in N.C. Gen. Stat. § 130A-282(b).

11. The preponderance of the evidence also showed that Petitioner’s April 26, 2006 application did not comply with 15A N.C.A.C. 18A .2509. Respondent’s unrefuted expert testimony in this case established that the Petitioner has never submitted an approvable plan for a public swimming pool.

(a) Petitioner failed to present “plans and specifications shall be prepared by a registered professional engineer or registered architect and shall be approved by the Department prior to construction” as required by Rule 15A N.C.A.C. 18A .2509(a). Petitioner failed to comply with the requirement in Rule 15A N.C.A.C. 18A .2509 (e) that an applicant must submit, “a statement signed by a registered architect or a registered engineer stating that construction is complete and in accordance with approved plans and specifications and approved modifications.”

(b) Petitioner failed to refute that there were an insufficient number of inlets or skimmers in the subject pool as required by 15A N.C.A.C. 18A .2518. The evidence showed that Petitioner improperly placed chlorine tablets in the pool’s skimmers to disinfect the pool thereby creating a potentially serious exposure of the public to those tablets. Petitioner failed to show sufficient, properly constructed T-drains at the subject pool. Petitioner used piping too small for the amount of water circulated through the pool, and he improperly stored chemicals in an lean-to type shed, easily accessible to the public in violation of 15A N.C.A.C. 18A .2534. Respondent’s unrefuted evidence in this case shows that the subject pool would pose extreme dangers to the public health and safety.

12. Respondent did not exceed its authority or jurisdiction or otherwise substantially prejudice Petitioner’s rights when it denied Petitioner’s application for a permit for a public swimming pool, and disapproved Petitioner’s plan to convert Petitioner’s former bumper boat pool to a public swimming pool.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby determines that Respondent’s denial of Petitioner’s public swimming pool permit application should be AFFIRMED.

ORDER AND NOTICE

The North Carolina Department of Environment and Natural Resources will make the Final Decision in this contested case. N.C. Gen. Stat. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.

Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in this case, it is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the Final Decision. N.C. Gen. Stat. 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.

This 16th day of February, 2007.

Melissa Owens Lassiter

Administrative Law Judge

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