Thank you for your understanding and patience while we are working through this matter. We are as excited as most of you are to hear the Front Pool will be open while we navigate this issue.
Below is the full details of the issue.
On May 15, 2017, the Northern Kentucky Health Department inspector, Justin Hancock, visited the Hempsteade front pool and issued an inspection form, citing four violations: (1) item 6—facility maintenance violation involving leaves and debris present in gutters; (2) item 11—equipment room & treatment system violation involving the equipment room’s need of organization; (3) item 34—bath houses & attendant structures violation involving lack of soap in the restrooms; and (4) item 36—safety violation involving the emergency telephone not working. On this inspection form, there is no mention of a violation related to the pool’s lack of a lifeguard. He also noted that the items marked must be corrected prior to opening. Subsequent to May 15, 2017 he visited Hempsteade again and noted that all of the aforementioned violations had been remedied except for the phone issue. Subsequent to this second visit, Hempsteade remedied the phone issue.
On May 25, 2017, he visited Hempsteade for a third time, but on this occasion he refused to enter the facility. He then verbally informed the facility manager that the pool would not be approved to open because its water surface area of 2,550 square feet requires a lifeguard present. This was the first time in the pool’s 27-year history that Hempsteade has been told a lifeguard was required because of the water surface area. No lifeguard has ever been required before, and it is Hempsteade HOA's (and several attorneys the HOA has spoken with) position that Kentucky’s administrative regulations do not require one.
On June 1, 2017 he issued a letter justifying his decision to close the Hempsteade front pool. He cited to Section 13 of the Kentucky Public Swimming and Bathing Facilities Regulation, which begins “If lifeguards are required...” What his letter fails to state is that lifeguards are only required when the facility allows bathers sixteen years of age or under to enter the facility area without a responsible person seventeen years of age or older present. Specifically, 902 KAR 10:120 Section 13(2) states:
A link to the full text of the regulation can be found here: http://www.lrc.state.ky.us/Kar/902/010/120.htm
If the facility allows such persons to swim without supervision, then the requirements of Section 13(2)(c) and Section 14(1), cited in his letter, are triggered. This means that if a facility allows bathers under sixteen without a responsible person, a lifeguard is required and must meet the requirements of Section 13(2)(c). Included is the requirement that an elevated lifeguard chair must be provided if the facility has more than 2,000 square feet of water surface area.
Hempsteade is not a facility that allows bathers sixteen years of age or under to enter the facility area without a responsible person seventeen years of age or older present. In fact it is the policy of Hempsteade that bathers sixteen and under are prohibited from entering the facility area without a responsible person seventeen years of age or older present, and Hempsteade posts the rule that no person may enter the facility area alone or swim alone. As such, there is no requirement that Hempsteade provide a lifeguard pursuant to 902 KAR 10:120 Section 13(2)(a). This interpretation is not only the opinion of Hempsteade, it is supported by the plain language of the Kentucky Administrative Regulations and the actions of the prior inspectors over the last 27 years. Thus, Hempsteade’s permit should not have been denied, and the Hempsteade front pool should be allowed to open for the 2017 season as all of the cited violations have been remedied.
An additional issue is that pursuant to 902 KAR 10:120 Section 20(5) in instances of purported violation of the Administrative Regulation, the cabinet shall serve the pool owner with a written notice specifying the violation in question and offer a reasonable opportunity to cure. If the owner fails to comply with the written notice, the owner shall be notified in writing that the facility shall be closed at the end of 10 days following service of the notice unless a written request for hearing is filed within 10 days.
The Hempsteade pool was shut down without written notice from May 25th through June 1st, and was shut down following written notice but without a chance to cure from June 1st forward. The facility should not have been ordered to close unless and until 10 days have passed since the issuance of a second written notice is sent, assuming non-compliance.
Even IF this is an appropriate interpretation of the rule, the health department has set a precedent by not enforcing it in the past 27 years that may have caused people to buy houses in Hempsteade due to low dues partly due to not having to pay for lifeguards. Paying for lifeguards or paying to reconstruct the pool will cause an unexpected financial burden on residents and may even lower their home values.
Furthermore, it appears this interpretation of the rule is more restrictive than other states. Many other states allow for large pools without lifeguards. Drownings are extremely rare in neighborhood/hotel pools without a lifeguard so the risk is not high enough to require lifeguards for a pool this size.
It is Hempsteade’ position the actions of the prior inspectors over the last 27 years was not an oversight or Hempsteade getting “lucky”. We believe there is some other reason for the sudden requirement of a lifeguard.
The pool inspector’s chain of command is as follows:
Justin Hancock (pool inspector) > Laura Strevels (Environmental Health Manager) > Steve Divine (Director of Environmental Health and Safety) > Lynne Saddler (District Director of Health) > Hiram Polk (Commissioner of Kentucky Department for Public Health) > Secretary Vickie Yates (Cabinet for Health and Family Services) > Governor Bevin.