How many lifeguards are needed at the Smithville Municipal Swimming Pool?
City aldermen thought they settled the issue last month, but may revisit it again at the next meeting on Monday, June 18.
Mayor Taft Hendrixson said state regulations show that for a public swimming pool the size of Smithville's, only a maximum of three lifeguards are needed on duty, any time the pool is open for public use.
During the May 21 city council meeting, the aldermen voted 3 to 0 to set the pay of the lifeguards at minimum wage of $7.25 per hour for this season and to fund a maximum of three lifeguards at fifty eight hours per week for thirteen weeks. Alderman Steve White "passed" citing a conflict since his daughter works as a lifeguard at the pool and Alderman Gayla Hendrix was absent. Mayor Hendrixson said the cost would be about $20,000 for lifeguards this season, a little more than last year.
But during Monday night's meeting, June 4, Alderman White said he misunderstood the action of the council, apparently thinking that three lifeguards would be the minimum, not the maximum, that the city could have working during pool operation. "I kinda had a misunderstanding," said White. "It says (in the minutes of the meeting) the pay would be $7.25 and having a maximum of three lifeguards. I don't feel like that three is no where near enough to cover that pool. I took it as minimum," he said.
Mayor Hendrixson said his recommendation was based on state regulations. " I've got the state regulations here. On our size pool, which we have about 7,800 square feet in our pool. State regulations say we need three lifeguards for that size pool. If you've got one to twenty five swimmers, it says you need one (lifeguard). If you've got twenty six to fifty swimmers, it says you need two. And over 51, it says you need three. It's a Type-A pool and that's where its open to the public and we have about 7,800 square feet in that pool. But its whatever you (aldermen) want to do," he said.
(CLICK THE FOLLOWING LINK TO READ TENNESSEE REGULATIONS ON PUBLIC SWIMMING POOLS)
"It also goes on to say that lifeguards shall observe from the lifeguard chair, except during instructional activities or during life saving or emergency type situations involving swimmers," said Mayor Hendrixson. " We've got three chairs. If you have extra lifeguards and they are not in a chair, I don't know what you would do there if something happened," he said.
"McMinnville has a 20,000 square foot pool and they have seven, and sometimes eight lifeguards," added Mayor Hendrixson.
"That's the way I understood it," said Alderman Shawn Jacobs. "That's all that's required (three lifeguards maximum) for a pool of our size," he said.
Still, Alderman White was not persuaded. " That's way too few lifeguards to watch that big of an area. You've got two diving boards. You've got the deep area. You've got the slides which is another issue. I think they have always had five plus (lifeguards) in the year's past. I just think that would be a liability on the city. That's my opinion," said Alderman White.
"If we're meeting the state regs I don't see how it could be a liability," said Alderman Jacobs. " I certainly don't want to put any swimmers at risk. I am not saying that. I certainly don't want to put anybody at risk or cause a hazard. Should we compromise and say a maximum of four," asked Jacobs?
City Attorney Vester Parsley said meeting the state requirements (maximum of three lifeguards) is sufficient." As long as we're meeting the state regulations, you could always be sued for anything. You could still get sued with ten lifeguards over there. Liability is always going to be there. If we meet state regulations then that's all that's required," said Parsley.
In 2010, three lifeguards were on duty at the pool under a previous tenant but Tony Poss, the tenant now, said in May, 2011 during a city council meeting that three is not enough. At that time, he asked for the city to fund at least four lifeguards at the pool. "In my opinion we can't operate this pool with three lifeguards. We can but it is not safe. We need a minimum of four," said Poss. State health department officials also recommend more than three lifeguards, according to Poss.
But can the city legally place a cap on the number of lifeguards Poss feels like he needs? According to Poss' lease, "The tenant (Poss) shall be responsible for the operation of the Smithville Swimming Pool, to include the hiring of certified lifeguards, however the landlord (City) shall pay their salaries during all hours of operation". The lease apparently does not limit how many lifeguards Poss can employ.
The lease also provides that the city be responsible for costs associated with the swimming pool. "
The tenant (Poss) shall be responsible for providing all water to the facility, except the landlord (City) agrees to provide all water, chemicals, and all other costs associated with the swimming pool. The landlord (City) will be responsible for all fees and charges associated with the operation of the swimming pool," according to the lease.
Poss apparently used lifeguards to help get the pool ready to open May 19, since city workers apparently couldn't or wouldn't do it, and Poss wanted the city to pay the lifeguards for their work. But since the pool had not yet opened, the city balked on paying. The pay dispute has apparently since been resolved but Mayor Hendrixson said Monday night there is a limit to how far the city can go with Poss. "The way I see that, we (city) are paying for all the utilities. We're paying for the water that goes in there. We're paying for all the pool expenses and chemicals. We're paying for all the lifeguards. We've done other work for him over there. He (Poss) is leasing the property. I don't know see how we would be obligated to keep it (property) clean for him," he said.
"I don't know if you can consider cleaning the pool an operational expense, " said Alderman Jacobs. "We've got to draw a line somewhere. Obviously, the lease has some holes in it. We had to rush it through because we were trying to get the pool open last year at the least expense to the city," he said.
Mayor Hendrixson added "And you've got to remember that the tenant (Poss) is getting all the revenue," he said.
"All prior tenants have always paid the lifeguards themselves out of pool revenue, " said Alderman Gayla Hendrix. I wasn't here the night you approved it, but apparently you have approved to pay for three (lifeguards) per day. Anything over and above that, I don't see why the tenant can't pay that," she said.
Alderman White said "But we did pay these hours last year (for more than three lifeguards) and that was at the beginning of the lease," he said. "That would be a good case, in my opinion, for his (Poss) attorney," said White.
Alderman Danny Washer said "we (city) have a contract and whatever it says, I think we need to go by the contract," he said.
Mayor Hendrixson replied, "It says we'll pay all expenses with the pool but keeping the place clean, since he is getting all the revenue, I wouldn't think that is our expense. We lease the hangar at the airport to a man but he doesn't ask us to keep his hangar clean," said Mayor Hendrixson.
"As long as we're not breaking the contract," said Alderman Washer.
"I think we're in compliance", said City Attorney Parsley.
"That's my only concern", said Alderman Washer. "This contract was made last year and I think we need to abide by it no matter how it falls," he added.