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HomeMy WebLinkAbout2014 Sep 03 - Letter from Gargiulo/Rudnick LLP to BOH ��. � ■ 1 Gargiulo /Rudnick,��P Bono� �a,<�otl Attwneys at Law One Washingron Mall,;th Ploor 766 Falmouth Rtl..Umt A-6 Boston.MA 02108 Mashpee,MA 02649 www.grglaw.com ww��.grolaw.com t677 742 3833 t 508 477 6400 f 617 523 7834 f 508 477 0455 EtlwaM R.Gargiulo er9�9rglaw.com Capa September 3,2014 �����d��° SEP 0 3 2014 Tanya Daigneault, Chairperson HEALTH DEPT. Town of Yarmouth Boazd of Health 1146 Route 28 South Yarmouth, MA 02664 BY FEDERAL EXPRESS Re: Board of Health Hearina Sentember 8 2014 re: Travis Hosaitalitv. Inc. d/b/a Bavside Resort Deaz Ms. Daigneault: I have been retained by the insurer of Travis Hospitality,Inc. d/b/a Bayside Resort to represent the interests of Bayside Resort at a show cause heazing before the Board of Health scheduled for September 8, 2014 arising out of an issue of non- compliance with the Town of Yarmouth Regulations regazding public and semi-public pools, effective 1982. At the outset, Bayside Resort wishes to express its sincere condolences to the family of the girls who were seriously injured at the Bayside Pool on August 20, 2014. As you know, one of the girls is now deceased and her sister is hopefully continuing to recover from her injuries. Bayside extends its thoughts and prayers to the affected family, to the First responders involved in rescues efforts, and to all those who have been affected by this tragic event. Next, Bayside Resort has cooperated fully with all investigative authoriries following the incident of August 20, 2014,including but not lunited to the Town of Yarmouth Board of Health,the Massachusetts Department of Public Health,Town of Yarmouth Police Department and the Town of Yarmouth Fire Department. Bayside has a long history of being a responsible member of the business community in the Town of Yarmouth and kias historically worked closely with the Town of Yarmouth to insure compliance with all local and state regulations to make sure that Bayside Resort is a high- quality, safe and desirable destination for its guests to stay. Bayside prides itself on being a good neighbor within the Town of Yarmouth business community. Bayside has not had any prior history of drowning or neaz drowning incidents in its pools and has not had any PiARItBAY51DE ItESORT HOTELUILK Lme w Bo+rE of Hnhh(Firoq IG0901 E« September 3, 2014 Page 2 of 10 history of failure to comply with applicable rules and regulations. Indeed, the indoor pool where the incident occurred was inspected by the Yarmouth Boazd of Health in the morning of the incident at issue with all aspects of the pool passing inspection with the exception of the whirlpool spa which required ba]ancing of chlorine. With regard to subsequent remedial measures taken by Bayside Resort to ensure compliance going forward Bayside Resort notes,in summary, the following: 1. Bayside now has 17 employees who aze CPR,First Aid and Water Safety certified (although Town of Yarmouth Regulations only require 2 certified employees); 2. Bayside has developed a formal protocol to ensure that there is always at least one CPR, First Aid and Water Safety certified individual on the premises notwithstanding the possibility of schedule swaps or sick cails by employees; 3. Bayside has developed a formal protocol to alert Bayside to up-coming expiration of CPR, First Aid and Water Safery certifications in a manner which will permit timely re-certification; and 4. Bayside has made all possible improvements requested by the Town of Yarmouth Board of Health and/or the State Boazd of Health with respect to the pool azeas. With regard to the September 8, 2014 hearing,Bayside Resort respectfully suggests that due to the on-going and active nature of the investigation into the incident of August 20, 2014,that a show-cause heazing on the issue of any potential penalties to Bayside Resort flowing from the incident is premature. Media Reports indicate that the matter is being investigated by the Yarmouth Police, State Police, Baznstable County Sherriffs Office and the Baznstable District Attorney's O�ce. As such,we can reasonably expect that the investigation will yield a report and other factual information that would be of assistance to The Boazd of Health and to Bayside Resort in this matter. As referenced in Bruce Murphy's letter dated 8/25/2014 to Bayside Resort,at issue in this heazing is the question of whether any action should be taken with regazd to Bayside Resort's indoor swimming pool license including suspension,revocation and other conditions being placed on the license. In order to evaluate the appropriateness of penalues against Bayside Resort, all parties need a more complete understanding of what occurred, and why it occurred, beyond the information presently available. To require the Boazd to make a decision based on incomplete information places the Boazd and Bayside Resort in an untenable position where it cannot fully and fairly evaluate the facts and circumstances at issue. By way of example only,no police investigation has been released at this time and there are numerous facts that are not available to the Boazd which would necessarily beaz on the question of whether any sanction is appropriate. Bayside Resort respectfully suggests for the Boazd to render any decision on potential penalties presently,would be arbitrary and capricious and would prevent all parties from putting forth facts that aze central to the analysis. Gargiulo/Rudnidc.lLP Attorneys at Law 2 September 3, 2014 Page 3 of]0 In requesting a continuance,Bayside is also mindful that an analysis of what happened and why it happened, necessitates a discussion of facts surrounding the incident which might be perceived as critical to the affected family who is grieving the loss of a daughter. Requiring a hearing to go forward at this stage requires Bayside Resort to comment on all the facts that are relevant to the issue of compliance with the Yarmouth Regulations and mitigating facts and information which go to the heart of the question of whether any sanction is appropriate. To the extent that the Board determines that a hearing on the merits must go forwazd, Bayside responds as follows based on currently available and presently incomplete information: The Commonwealth of Massachusetts Resulatorv Scheme As you may be aware,the Commonwealth of Massachusetts regulations regazding lifeguards provides, in pertinent part, as follows: "(1)The operator shall provide one or more lifeguazds 16 years of age or older if the Board of Health determines that they are necessary for the safe use of the swirnming or ��adingpool. . . " ]OS C.M.R. 435.23 (emphasis added). The State Regulations further provide, in pertinent part: "(2) If no lifeguazds aze required by the Boazd of Health, a warning sign shall be posted in a conspicuous location and shall state: "WARNING-NO LIFEGUARD ON DUTY" in easy to read, legible letters which are at least four inches (ten cm)high. In addition, there shall be signs which aze readily visible stating "CHILDREN LTNDER AGE 16 SHOULD NOT USE SWIMMING POOL WITHOUT AN ADULT IN ATT'ENDANCE" . . . 105 C.M.R. 435.23. The Town of Yarmouth Re¢ulatorv Scheme Adult Suaervision: Children Under 14 The Town of Yazmouth Boazd of Health has elected not to require lifeguards in pools in the Town of Yazmouth and, instead, has adopted a model dependent upon parental supervision(and not lifeguard supervision)to assure safety in the town's hotel pools. In 1982,the Town of Yarmouth enacted Regulations for public and semi-public swimming pools. In enacting these local regulations,the Town of Yannouth Boazd of Health determined that lifeguards were not"necessary for the safe use of the swimming or wading pool. . . " 105 C.M.R. 435.23. The Town of Yarmouth regulations state, in pertinent part: "D. Children under the age of 14 and any non-swimmer must be accompanied by an adult swimmer within the pool azea." Gergiulo/Rud�idc.lLP Anomeys at Law 3 September 3, 2014 Page 4 of 10 Thus, as a matter of law,the first line of safety and defense against drowning and near-drowning incidents in the Town of Yarmouth is adult supervision. As with the use of any pool, not just hotel pools, there must be active adult supervision for it to be an effective measure against potential drowning. Yarmouth CPR/First Aid Certification Requirement The Town of Yarmouth Regulations also require that"Two or more staff members of each establishment shall be required to have the following certifications from a Boazd of Health Approved Agency, and shall require that one staff niember be available on the premises during pool operating hours. . . . ." The required coutses are CPR, Standazd First Aid and Basic Water Safety. Compliance with Yarmouth Pool ReQulations Bayside Resort has admitted that as of the time of the incident that it did not have a staff person on the premises who was currently CPR, First Aid and Water Safety certified. This occurred due to a scheduling oversight flowing from an employee shift swap. Although there was no person with a current CPR, First Aid and Water Safety certification; it is not true that Bayside Resort had no staff on the premises at the time of the incident who had been trained in CPR and/or First Aid. It is our information that front desk employee,Holly Poor,had certifications in both CPR and First Aid which had expired as of the date of occurrence. Ms. Poor actually assisted in the rescue efforts in the pool azea on 8/20/2014. Addirionally,Ms. Rema Rowe, of the housekeeping department,was also previously certified in both CPR and First Aid, was on the presuses. Ms. Rowe had obtained certifications while enrolled in a nursing program. Thus,there were trained persons on the premises, although concededly without current certificarions in CPR and First Aid. As it related to the Town of Yazmouth regulations requiring Bayside to have one certified person on the premises at any tune the pool is open, it is important to note that the regulations do not require the certified employee to be in the pool azea, or even near the pool azea. The regularions merely require that a person with certifications be"on the [hotel]premise during pool operating hours." In the event of a cardiac emergency,the regulations do not require that the certified staff person perform CPR. It is entirely possible that in the event of a cardiac emergency,that there might be a doctor, nurse, police officer or EMT on the hotel premises as a guest who might initiate the uutial CPR response. Similazly, it is entirely possible that other guests who might be certified(or formerly certified) in CPR,might begin an emergency CPR response. Finally, it is equally possible that someone un-trained in CPR might begin the response. In the circumstances of an emergency, it is not reasonable or proper to expect a certified hotel employee to interrupt emergency resuscitation efforts in order to ascertain the credentials of the person rendering CPR and/or to determine whether they as a certified CPR provider, might be the more qualified service-provider on the premises. Gargiulo/Rudnidc,LLP � Attwneys at Law 4 September 3,2014 Page 5 of 10 CPR Performed on Girls Our preliminary information is that immediately upon their rescue from the pool, CPR was started on each of the girls. On information and belief, a good-Samaritan hotel guest who was present in the pool area performed CPR, along with a person believed to be a member of the girls' fami(y. The CPR was continued until first responders from the Town of Yarmouth arrived on the scene and took over CPR efforts. Media reports have indicated that the two individuals who performed CPR were "un-trained." Based on limited information available, we have been unable to verify whether either of these individuals was CPR trained and, thus, at this juncture and without more information,we cannot agree that the CPR providers who assisted the girls were"untrained." We also cannot agree that the outcome would have been improved for either of these unfortunate girls in the event that Bayside Resort had someone with a current certification on duty. For example,if Ms. Holly Poor,who was on duty and was assisting in the emergency efforts had a current(as opposed to expired) CPR certification,there is no factual basis to believe that the medical outcome for either of the girls would be different. The Bavside Resort Indoor Pool at Issue Prominently placed in the Bayside Resort Indoor Pool azea is a lazge sign captioned"POOL RULES." There aze 14 pool rules posted which include: 9. "NO CHILDREN SHOULD BE IN THE POOL WITHOUT SUPERVISION." Also prominently placed in the indoor pool at Bayside is another lazge sign, including bright red-lettering. This sign states: WARNING NO LIFEGUARD ON DUTY Children under the age of 14 should not use pool without an adult in attendance. Thus, Bayside Resort was fully compliant with both the local and state regulations in alerting the public to the fact that no lifeguazd was on duty and that adult supervision was required. The Aueust 20,2014 Occurrence We have very licnited information on what occurred on the date in question. We know that the family at issue checked into the Bayside Resort at approximately 5:13 p.m. The family booked 2 rooms with each room appazently occupied by four(4) people: two Gargiulo/Rudnidc,LLP Attomeys ai taw 5 September 3, 2014 Page 6 of 10 adults and 2 children. The records reflect that one room had children ages 7 and 10. The second room had children ages 9 and 12. The event was noted to have occuned at approximately 7:30 p.m. when first responders were notified via 91 I calls that individuals had been pulled from the pool. It is our understanding that hotel front desk employee, Leonard Phillips, called 911 upon observing a fully clothed man dive into the pool and another man almost simultaneously placing an unconscious child on the pool deck. Media reports have indicated that the 4 children were in the caze of one, adult male, relative at the time of the occurrence. We know that from the cleaz postings present in the pool area,that the adult present with the 4 children was on notice that there was no lifeguard on duty. Thus, direct and active supervision of the children ages 7, 9, 10 and 12 was essentiat. It is noteworthy that all of the children were under the age of 14 and, therefore, under the Town of Yarmouth Regulations,they could only be permitted in the pool with an adult, swimmer in attendance. None of the children were capab(e of supervising one another, or babysitting one another, for the purposes of pool safety. We do not have information about the capacity of the children to swim independently and whether they had the benefit of swimming lessons or other significant swimming experience or water safety instruction prior to the date of loss. We do not have information about whether the adult reviewed the pool rules with the children andlor enforced the pool rules with the four(4) children in his care. These rules include the posted rules of"NO RUNNING,BOISTEROUS OR OTHER ROUGH PLAY." There were also several postings of"NO DNING"on the pool deck,both in words and in symbols. We do not know whether any rough play may have been a factor in the occurrence. T'he depth of the pool was cieazly posted on the pool deck in vazious places. The deepest ended was clearly mazked as "8 ft" The shaliow end was cleazly mazked as"3 ft" We do not know whether any diving may have been a factor in the occurrence. Additionally,there was a string of buoys across the center of the pool separating the deep end from the shailow end. It is unknown whether the supervising adult placed any restrictions on the children's use of the deep end of the pool or permitted them to swim in azeas well over their heads. Our preliminary information is that the two girls were found in the deep(8 foot) end of the pool. The supervising adult was appazently alerted to this fact by others in the pool azea. Our preliminary informarion is that the supervising adult was not, in fact, observing the pool or activities in the pooL It is our information that the supervising adult was not the first individual in the pool to attempt a rescue. There aze indications that the guis may have been submerged in the deep end of the pool for a significant period of time prior to any rescue efforts. There aze indications that either the 7 or 10 year old boy made statements after the event, suggesting that he was awaze of the presence of the two Gargiulo/Rudnick.LlP . Attomeys at Law 6 September 3, 2014 Page 7 of 10 girls at the bottom of the pool, but believed it to be part of a game and, thus, he did not summon help. Thus,based on preliminary available informarion, it appeazs that a failure in adult supervision as required by the Town of Yazmouth Board of Health Regulations was the primary factor in the occurrence. As stated, we do not know,at this time, what caused the initial incident involving two young girls: Were both girls unable to swim in the deep end of the pool and went down simultaneously and un-noticed? Did one of the girls suffer a medical episode witt� the other attempting unsuccessfully to rescue the other? Did one girl dive and suffer and injury with the second girl unsuccessfully attempting a rescue? We do not know at this time what caused this tragic incident and this is all pure speculation at this stage of the investigation. Board of Health Reeulations re: Condition of Pool What we do know,at this time, based on the investigation by the Town of Yarmouth Boazd of Health and the Massachusetts Department of Public Health is that there were appazently no physical conditions of the pool that caused or contributed to the occurrence. For example,there is no evidence that there was murky water that obstructed views of any swimmers in dish�ess. To the contraty,the indoor pool passed well- established a visibility test,known as the Secchi Disk,which was determined to be "clearly visible" from the requisite distances. There is no evidence that the girls became entangled in any pool equipment, or that there was any malfunction of the pool equipment in any way that caused the occurrence. Although certain conditions were identified by the Department of Public Health, they aze conditions that are ancillary to the occurrence and not contributory to the occurrence. These conditions were also conditions that were not recorded as of the pool inspection by the Yarmouth Boazd of Health earlier in the day. For example,the 3tate found a skimmer basket was damaged;they recommended flaps to cover the 2 skimmers, the whirlpool spa thermometer was found to be misplaced,the emergency shut-off for the whirl pool spa was not labelled adequately, certain chemical handling equipment was recommended for personnel handling chlorine and other pool chemicals. In the filter room,the state recommended labelling the direction of certain pipes;they recommended secondary containment of pool chemicals in the event of a spill; and they recommended a light shield to be placed in this room. With regazd to those items relating to chemical handling and safety, it is noteworthy that Bayside Resort undergoes an annual HazMat Inspection by the Town of Yarmouth and that such conditions had not previously been identified as a concem or a violation. Vir¢inia Graeme Baker Pool& Sna Safetv Act Compliance The Department of Public Health recommended that Bayside determine whether any of its drain covers which were compliant with the Virginia Graeme Baker Pool & Gargiulo/Rudnick,LLP Attorneys at Law 7 September 3, 2014 Page 8 of I0 Spa Safety Act had been recalled, whether they had"expired"and required placement or whether they remained complaint with the Act. Bayside has provided the information to the Yarmouth Boazd of Health establishing that the drain covers aze not expired or recalled and remain compliant with the act. Obstructed Walkwav Upon inspection after the incident,the Department of Public Health required that certain lounge chairs be removed from the deck azea neaz the 8 foot end of the pool. Its report found that the placement of the lounge chairs violated 105 CMR 435.13(1). This regulation provides: "Walkways shall be continuous around the pool with a minimum width of four feet of unobstructed cleaz distance including a curb at the pool edge, if such a curb is used. . . °' Reportedly,there was a distance of something slightly less than four feet from the end of the lounge chairs to the pool edge. These chairs were moved forthwith upon request by the o€ficials. Although the lounge chairs had been in that location for many yeazs, no pdor notice of improper placement had been received by Bayside. Communication Device There is no evidence that any party attempted, unsuccessfully,to use the emergency phone in the pool azea to summon help. To the contrary,the evidence is that while the girls were being removed from the pool, the front desk called, 91 l. On information and belief, several 911 calls were made simultaneously as events unfolded. The exact times of the 91 I calls is not known at this moment, but would be recorded. Notwithstanding the fact that the emergency phone system appazently did not play a role in the events at issue,the Department of public Health did find that there was an "insufficient emergency communication system" as required by 105 CMR 435.25 (2). In the"Observations and Recommendations"section at the end of the report,the state authoriTy found: "The Department recommends that the emergency communication system at the indoor swimming pool and spa,as well as the outdoor swimming pool be prominently identified." The regularion provides, in pertinent part: (2) an emergency communication system which at a minimum would allow convenient, immediate and toll-free communication with emergency medical services, local police, state police,and the local fire department must be in good working order at available at each pool. The telephone numbers of the emergency medical services, local police, state police and fire department, as well as any instructions necessary to operate the communication system, shall be posted in a conspicuous place near the communication device or station. The location of the emergency communicarions device must be in an azea that is unlocked an available to both the staff and the public at all times. Dargiulo!Rudnick.LLP Anomeys at Law 8 r � . , , ' September 3, 2014 Page 9 of 10 105 C.M.R. 435.25 (2). As a result, Bayside Resort has replaced the phone to a requested red-colored phone and has added recommended signage. It is noteworthy that there were no problems communicated regazding the then-existing emergency phone system or signage as of the Boazd of Health Inspection on the morning of the occurrence. Pool Door The indoor pool area is equipped with three(3) doors. One is the major door that guests enter into the pool azea from the hotel. The second door goes from the pool azea to the front desk azea. The third is a door that goes from the pool azea into an exterior parking lot azea. The door was equipped with a lock that required a key to open the door. Prior to the date of incident, the door had always been equipped with the same locking mechanism. The Town of Yarmouth Boazd of Health,which conducts regulaz inspections of Bayside,never questioned the locking system. Upon request of the Town after the incident, a new door and locking mechanism was installed. Remedial Measures Staffine Bayside Resort has implemented a new scheduling system that is designed to prevent an inadvertent failure to have certified personnel on duty at any time the pool is open. Scheduling witl now be conducted by Manager Corby Schilling with specific reference to a list of certified personnel to ensure that the requisite certified person is on staff at all required times. Likewise,shift swaps will have to be approved and monitored by the manager on duty to ensure compliance. In the event of a sick call by a certified employee, if there is no other certified employee on duty,the pool will be temporarily closed on a voluntary basis until a certified person can be brought on duty. Exniration of Certifications Bayside Resort has developed a computer program which is managed by the H.R. Deparlment/Comptroller(Cazol Lovejoy). The computer program has included in it, expiration dates for all employee safety certifications. There is an automatic"pop-up" feahue which will alert Bayside Resort one month before any expiration date. This feature will be checked on at least a weekly basis. Upon receiving a notice of impending expiraGon, Ms. Lovejoy will notify the affected employee, schedule a certificarion class and secure the employee's attendance at the class. Bayside has always paid for the safety classes for its employees and has paid for the employee's time to attend these classes and will continue to do so going forwazd. There aze now 17 properly certified personnel. This represents approximately 50%of Bayside Resort's year-round, fu(1 time staff. Typical staffing generally has 7-8 people per shift. Thus, from a statistical standpoint, Bayside Resort will be able to have the requisite number of staff on duty at all times. Gargiulo/Rudnick LLP Anorneys at Law 9 r I . � September 3, 2014 Page 10 of 10 ' Conclusiou Bayside Resort respectfully requests that upon evaluation of ali available circumstances including but not limited to its long history of cooperation and compliance with state and local regulations;the inadvertent nature of the scheduling error that gave rise to non-compiiance with the Yazmouth Regulation;the fact that Bayside Resort has taken subsequent remedial measures to avoid any similaz,future failings; and the fact that compliance with the regulation would not have prevented the tragedy at issue; and the fact that matters identified by the State Department of Health and Local Boazd of Health have been corrected and were not, in any event,contributory to the occurrence. Bayside respectfully requests that no action be taken against its pool license. Very truly yours, � � ,'' '';r�. i9 �j,� ; , �� � � � ��.�� ���c- Edwazd R. G�giulo ERG/mlk cc: Hillazd Boskey, M.D., Vice Chair Boazd of Health(By Federal Express) Mary Craig, Clerk,Boazd of Health(By Federal Express) Evelyn P. Hayes, Member Boazd of Health(By Federal Express) Hillazd Boskey,M.D., Member Boazd of Health(By Federal Express) Bruce G. Murphy, Director of Health(By Email bmurohv@,yarmouth.ma.us& Federal Express) Rod Srozenski, Bayside Resort(by email) Gerald Schwager(by email) Gargiulo/Rudnfck LLP . Attomeys at Law 1�