Suit challenges pool safety law

The act, which goes into effect Sunday, requires specific safety measures. But pool builders sue, saying the rules are vague.

By JOUNICE L. NEALY

© St. Petersburg Times, published September 29, 2000

A North Florida circuit judge is scheduled to hear arguments today in a legal battle over a swimming pool safety law set to take effect Sunday.

Pensacola Pools East Inc. is suing Gov. Jeb Bush, the state government and Leon County, claiming that the law is vague and would trigger arbitrary and inconsistent enforcement. The company is seeking an injunction to prevent the law from going into effect. The hearing will be in Tallahassee.

The Preston de Ibern/McKenzie Merriam Residential Swimming Pool Act requires that new swimming pool, spa or hot tub owners get one of several safety devices.

It was proposed to reduce the chance of drowning, especially among children and the elderly. In fact, the barrier must be far enough from the pool so that if a child or frail elderly person penetrates the barrier, he or she won't fall in.

"Forty percent of the drownings that take place occur because a child wanders into a neighbor's pool. If you have an attractive nuisance, you need to fix it," state Rep. Debbie Wasserman Schultz, D-Weston, said at a news conference Thursday in Tallahassee. She blasted the company's attempt to delay the new law.

"I believe they fear they might sell one less pool because it might add to the cost," she said.

Pool contractors and building officials last week said that the law was vague and was a web of Catch-22s.

"We do have to seek that delay because people will be in technical violation of it in just a few days," said Jon Bednerik, executive director of National Spa & Pool Institute, Florida affiliation. The institute is not a party in the legal action but says that the lawsuit represents its position.

The law requires the state Department of Health to distribute a publication with information about drowning prevention. After Sunday, pool builders technically would violate the law if they signed a contract without giving the customer the publication.

According to the lawsuit, there is no such publication ready.

State Department of Health officials declined to comment because of the pending litigation.

Also, the law says that pools must have one of the safety features to receive a certificate of completion, yet the customer did not have this requirement at the time the contract was signed with the pool builder, according to the lawsuit.

The suit also claims that the law imposes building requirements based on physical abilities of "young children" and "medically frail elderly people," as opposed to numerical measurements of distance and height.

"This (law) would have better been placed in building code language," Bednerik said.

Attorneys representing Pensacola Pools did not return messages left Thursday.

But Wasserman Schultz said that Florida pool builders never publicly opposed her bill in its entirety, only on technical points. The law provides several options, which are not expensive, she said.

"The alarm that is one of the choices is $4.95 at Home Depot," said Wasserman Schultz. "If you are charging $20,000 for a pool, I think you can probably absorb $4.95."

With her at the news conference was Palm Harbor resident Carole de Ibern, mother of a 10-year-old boy for whom the law is partly named. While visiting a co-worker of his mother in 1995, the boy fell in the pool and nearly drowned. Preston is now brain damaged and in a wheelchair as a result.

"All we want to do is save kids' lives. I can't believe there would be people opposed to this. I'm absolutely appalled," Mrs. de Ibern said. "It's very unfortunate a pool company would put the lives of children at risk to cover their backsides."

- Times staff writer Lucy Morgan contributed to this report, which also contains information from Times wires.

Pool rules

The law requires that all new residential swimming pools, spas or hot tubs in Florida have one of four safety measures:

A 4-foot-high barrier surrounding all sides of the pool.

An approved pool cover.

Self-closing and self-latching devices on all entrances to the pool area.

An alarm that sounds as loud as a smoke alarm on all doors and window entrances to the pool area.

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