DEC REQUEST DS 2018-025 STAFF ANALYSIS

 

ISSUE: DS 2018-025. Petitioner seeks a Declaratory Statement on an interpretation of Section 454.1.6.1, Sanitary facilities, of the Florida Building Code 6th Edition (2017) Building.

Petitioner seeks clarification of the following question:

 

Whether the exception to the requirement for poolside sanitary facilities in Section 454.1.6.1 of the Florida Building Code (“FBC or Code”) applies to the hotel described above?

 

Situation:

 

Petitioner is a professional design engineer ("P.E.") who has been in business for over 45 years and has been responsible for the design of hundreds of commercial swimming pools throughout the State of Florida.  Accordingly, Petitioner is considering a project that involves the construction of a public pool at a Florida hotel.  All living units within the hotel would be within a 200-foot horizontal radius of the nearest water's edge of the pool.  Some living units are more than three stories in height but are all accessible by elevator.  Each living unit is equipped with private sanitary facilities. Moreover, the pool would be for only those individuals who are currently residing at the hotel or who are otherwise guests of those residing at the hotel. The pool would not be for use by the general public.

 

Description:

Petitioner respectfully believes that the answer to the question outlined above is "Yes."

Pursuant to Section 454.1.6.1 of the FBC, public swimming pools of specified bathing loads require that poolside sanitary facilities (i.e., restrooms) be built within 200 feet walking distance of the nearest water's edge. However, within the same section, an exception is carved out for public swimming pools that serve a "designated group of residential dwelling units and not the general public ... if all living units are within a 200-foot (60 960 mm) horizontal radius of the nearest water's edge, are not over three stories in height unless serviced by an elevator, and are each equipped with private sanitary facilities." In other words, when the exception applies, poolside restrooms are not needed because as with most, if not all hotels, only those individuals who are currently residing at the facility (or guests of same) are permitted to use the facility's swimming pool (as opposed to the general public), and therefore, every authorized individual would be provided with what the Code considers sufficient and adequate access to a sanitary facility.

Petitioner is seeking a declaratory statement as to the above-described pool because the language provided for in the subject exception has the potential to be misleading or confusing; specifically, the undefined phrase "residential dwelling units." The phrase "residential dwelling units," as it is used in the exception, is nothing more than surplus language. Because Section 454.1 governs only the requirements pertaining to public pools, the sub-Section 454.1.6.1, and the exception contained therein, can only apply to public pools.  In contrast, Section 454.2   applies specifically to private/residential pools. In fact, the definition of "public pool" itself not only disavows the placement of such a pool on "the grounds of a private residence," but explicitly includes pools operated by hotels and motels.  Therefore, the phrase "residential dwelling units" is superfluous language that, if it were to be applied literally, would render the exception null and void as it could never be applied to a public pool. This would clearly undermine the intent of the exception altogether.

For reference: When the ambiguity of a statute is in question, the first step in determining the Legislature's intent is to look to the plain language employed. However, if language in a statute is unclear, then the rules of statutory construction govern. Therefore, superfluous language may be interpreted as such by employing the statutory canon that provides that "literal interpretation need not be given the language used when to do so would lead to an unreasonable conclusion or defeat legislative intent or result in a manifest incongruity." Once the intent is determined, the statute may then be read as a whole to properly construe its effect."

As further evidence that the word "residential," as it appears in the exception, is nothing more than superfluous language, it should be noted that the term "residential dwelling unit" does not appear elsewhere within Chapter 4 of the FBC (nor has the Petitioner discovered it elsewhere in the Code), and the standalone word "residential" is only defined in Section 454.2, which applies specifically to residential/private pools. The standalone term "residential" does not even appear in the FBC’s general "Definitions" chapter - Section 202. Additionally, the fact that the subsection immediately following Section 454.1.6.1 only refers to "dwelling units," with absolutely no mention of "residential dwelling units," further demonstrates that the use of "residential" in the exception is nothing more than surplus verbiage. See Section 454.1.6.1.1, FBC (providing the requirements for sanitary facility fixtures at public swimming pools).

Last, a nearby subsection of the Code governing public pools explicitly provides that "dwelling units" can include both hotel rooms and motel rooms. See Section 454.1.3.1.9 (governing the minimum requirements for the barrier for a public pool). Under the canons of statutory interpretation, the meaning of terms within the same statute should be interpreted similarly unless legislative history, intent, or purpose suggests otherwise.

For the foregoing reasons, the Petitioner contends that the exception outlined in   Section 454.1.6.1 should apply to the subject pool in question.

Florida Building Code 6th Edition (2017) Building

 

CHAPTER 2 DEFINITIONS

 

MULTISTORY UNIT. A dwelling unit or sleeping unit with habitable space located on more than one story.

 

HABITABLE SPACE.  A space in a building for living, sleeping, eating or cooking. Bathrooms, toilet rooms, closets, halls, screen enclosures, sunroom Categories I, II, III and IV as defined in Section 2002.6, storage or utility spaces and similar areas are not considered habitable spaces.

 

SLEEPING UNIT. A room or space in which people sleep, which can also include permanent provisions for living, eating, and either sanitation or kitchen facilities but not both.

Such rooms and spaces that are also part of a dwelling unit are not sleeping units.

 

Florida Building Code 6th Edition (2017) Residential

 

CHAPTER 2 DEFINITIONS

 

[RB] DWELLING UNIT. A single unit providing complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation.

 

CHAPTER 3 USE AND OCCUPANCY CLASSIFICATION

 

SECTION 310

RESIDENTIAL GROUP R

310.1 Residential Group R. Residential Group R includes, among others, the use of a building or structure, or a portion thereof, for sleeping purposes when not classified as an Institutional

Group I or when not regulated by the Florida Building Code, Residential.

310.2 Definitions. The following terms are defined in Chapter 2:

BOARDING HOUSE.

CONGREGATE LIVING FACILITIES.

DORMITORY.

GROUP HOME.

GUEST ROOM.

LODGING HOUSE.

PERSONAL CARE SERVICE.

TRANSIENT.

 

310.3 Residential Group R-1. Residential Group R-1 occupancies containing sleeping units where the occupants are primarily transient in nature, including:

Boarding houses (transient) with more than 10 occupants Congregate living facilities (transient) with more than 10 occupants

Hotels (transient)

Motels (transient)

 

310.4 Residential Group R-2. Residential Group R-2 occupancies containing sleeping units or more than two dwelling units where the occupants are primarily permanent in nature,

including:

 

Apartment houses

Boarding houses (nontransient) with more than 16

occupants

Congregate living facilities (nontransient) with more

than 16 occupants

Convents

Dormitories

Fraternities and sororities

Hotels (nontransient)

Live/work units

Monasteries

Motels (nontransient)

Vacation timeshare properties

 

310.5 Residential Group R-3. Residential Group R-3 occupancies where the occupants are primarily permanent in nature and not classified as Group R-1, R-2, R-4 or I, including:

 

Buildings that do not contain more than two dwelling units

Boarding houses (nontransient) with 16 or fewer occupants

Boarding houses (transient) with 10 or fewer occupants

Care facilities that provide accommodations for five or

fewer persons receiving care

Congregate living facilities (nontransient) with 16 or

fewer occupants

Congregate living facilities (transient) with 10 or fewer

 

CHAPTER 4: Special Detailed Requirements based on Use and Occupancy

SECTION 454.1 Public swimming pools and bathing places 

454.1 Public swimming pools and bathing places.

Public swimming pools and bathing places shall comply with the design and construction standards of this section.

Exceptions:

1.      1.A portable pool used exclusively for providing swimming lessons or related instruction in support of an established educational program sponsored or provided by a school district may not be regulated as a public pool. Such pool shall be regulated as a private swimming pool under Section 454.2.

2.      2.A temporary pool may not be regulated as a public pool. Such pool shall be regulated as a private swimming pool under Section 454.2.

Note: Other administrative and programmatic provisions apply. See Department of Health (DOH) Rule 64E-9, Florida Administrative Code and Chapter 514, Florida Statutes. The

regulation and enforcement of the initial and annual operation permit for public pools are preempted to the DOH. The construction permit holder is responsible for obtaining an operation

permit issued by DOH, as a public swimming pool shall not be put into operation without an inspection and operation permit issued from the DOH. DOH may grant variances from

the provisions of the Florida Building Code specifically pertaining to public swimming pools and bathing places as authorized by Section 514.0115, Florida Statutes. Building officials shall recognize and enforce variance orders issued by the Department of Health pursuant to Section

514.0115(5), Florida Statutes including any conditions attached to the granting of the variance.

 

 

A “public swimming pool” or “public pool”

means a watertight structure of concrete, masonry, or other approved materials which is located either indoors or outdoors, used for bathing or swimming by humans, and filled with a filtered and disinfected water supply, together with buildings, appurtenances, and equipment used in connection therewith.  A public swimming pool or public pool shall mean a conventional pool, spa-type pool, wading pool, special purpose pool, interactive water feature or water recreation attraction, to which admission may be gained with or without payment of a fee and includes, but is not limited to, pools operated by or serving camps, churches, cities, counties, day care centers, group home facilities for eight or more clients, health spas, institutions, parks, state agencies, schools, subdivisions, or the cooperative living-type projects of five or more living units, such as apartments, boardinghouses, hotels, mobile home parks, motels, recreational vehicle parks, and townhouses.  The term does not include a swimming pool located on the grounds of a private residence.

454.1.6  Plumbing systems.

454.1.6.1 Sanitary facilities.

Swimming pools with a bathing load of 20 persons or less may utilize a unisex restroom.  Pools with bathing loads of 40 persons or less may utilize two unisex restrooms or meet the requirements of Table 454.1.6.1.  Unisex restrooms shall meet all the requirements for materials, drainage and signage as indicated in Sections 454.1.6.1.1 through 454.1.6.1.4. Each shall include a water closet, a diaper change table, a urinal and a lavatory. Pools with a bathing load larger than 40 persons shall provide separate sanitary facilities labeled for each sex. The entry doors of all restrooms shall be located within a 200-foot (60 960 mm) walking distance of the nearest water’s edge of each pool served by the facilities.

Exception: Where a swimming pool serves only a designated group of residential dwelling units and not the general public, poolside sanitary facilities are not required if all living units are within a 200-foot (60 960 mm) horizontal radius of the nearest water’s edge, are not over three stories in height unless serviced by an elevator, and are each equipped with private sanitary facilities.

TABLE 454.1.6.1

PUBLIC SWIMMING POOL—REQUIRED FIXTURE COUNT

SIZE OF POOL(square feet)

MEN’S RESTROOM

WOMEN’SRESTROOM

Urinals

WC

Lavatory

WC

Lavatory

0 – 2,500

1

1

1

1

1

2,501 – 5,000

2

1

1

5

1

5,001 – 7,500

2

2

2

6

2

7,501 – 10,000

3

2

3

8

3

For SI: 1 square foot = 0.0929 m2.

454.1.3.1.9 All public pools shall be surrounded by a minimum 48 inch (1219 mm) high fence or other approved substantial barrier. The fence shall be continuous around the perimeter of the pool area that is not otherwise blocked or obstructed by adjacent buildings or structures and shall adjoin with itself or abut to the adjacent members.  Access through the barrier or fence from dwelling units, such as homes, apartments, motel rooms and hotel rooms, shall be

through self-closing, self-latching lockable gates of 48 inch (1219 mm) minimal height from the floor or ground with the latch located a minimum of 54 inches (1372 mm) from the bottom of the gate or at least 3 inches (76 mm) below the top of the gate on the pool side. If the self-closing, self-latching gate is also self-locking and is operated by a key lock, electronic opener or integral combination lock, then the operable parts of such locks or openers shall be 34 inches minimum (864 mm) and 48 inches maximum (1219 mm) above the finished floor or ground.

Doored access points from public rooms such as lobbies or club houses need not be through gates if the door(s) meet the same self-closing, self-latching requirements as a gate. Gates shall open outward away from the pool area. A latched, lockable gate shall be placed in the fence within 10 feet (3048 mm) of the closest point between the pool and the equipment area for service access. …

 

Rule 64E-9.006 Construction Plan approval Standards - As existed in 2009 (Department of Health (DOH))

 

64E-9.002 Definitions

 

(12) “Living Unit” – Room(s) or spaces capable of being occupied by an individual or group for temporary or permanent lodging purposes.  This includes motel and hotel rooms, apartment units, boarding and individual units in multiple unit housing complexes.

 

(24) “Public Swimming Pool” or “Public Pool” – See Section 514.011(2), F.S.

 

Section (1)(f)(4) states “Poolside sanitary facilities are not required if all living units are within a 200 foot horizontal radius of the nearest water’s edge, are not over three stories in height, until serviced by an elevator, and are each equipped with private sanitary facilities” 

 

Florida Statutes - 514

 

514.011 Definitions.—As used in this chapter:

 

(2) “Public swimming pool” or “public pool” means a watertight structure of concrete, masonry, or other approved materials which is located either indoors or outdoors, used for bathing or swimming by humans, and filled with a filtered and disinfected water supply, together with buildings, appurtenances, and equipment used in connection therewith. A public swimming pool or public pool shall mean a conventional pool, spa-type pool, wading pool, special purpose pool, or water recreation attraction, to which admission may be gained with or without payment of a fee and includes, but is not limited to, pools operated by or serving camps, churches, cities, counties, day care centers, group home facilities for eight or more clients, health spas, institutions, parks, state agencies, schools, subdivisions, or the cooperative living-type projects of five or more living units, such as apartments, boardinghouses, hotels, mobile home parks, motels, recreational vehicle parks, and townhouses.

 

Staff Analysis

 

Question:

Would the exception to the requirement for poolside sanitary facilities in Section 454.1.6.1 of the Florida Building Code (“FBC or Code”) apply to the hotel described? 

 

Answer:

Option #1/Petitioner:   Petitioner respectfully believes that the answer to the question outlined above is "Yes."

Option #2/Staff:  The answer is “Yes.” As per Section 454.1, definition of “Public swimming pools” [which clarify that the term “living units” includes projects such as hotels] and Section 454.1.3.1.9 [which clarify that the term “dwelling units” includes units such as motel rooms and hotel rooms] of the 6th Edition (2017), Florida Building Code, Building, the exception to the requirement of poolside sanitary facilities of Section 454.1.6.1 would apply to the project in question.