Director’s Decision on Appeal of a County Agricultural Commissioner’s Decision (City of Antioch Parks and Recreation, Docket Number 210)

The Director’s decision on City of Antioch Parks and Recreation appeal of the $5,000 civil penalty levied by the Contra Costa County Agricultural Commissioner (CAC) is enclosed. The Director affirmed the Contra Costa CAC’s action and penalty, and his decision became final on August 9, 2017.

The Contra Costa CAC found the City of Antioch Parks and Recreation in violation of Food and Agricultural Code (FAC), section 12973 by allowing persons to be in a swimming pool when the chlorine level was above 4 ppm.

The City of Antioch appealed the Hearing Officer’s decision on the theory that the California Department of Public Health and the local Environmental Health Departments have exclusive authority to enforce safety standards for public swimming pools. And conversely, that Contra Costa CAC does not. The City also argued that there exists a conflict of law between Health & Safety Code, California Code of Regulations (CCR), and FAC regarding pesticides and safety of public pools.

The Director determined that the Commissioner’s decision was supported by substantial evidence and that CAC have the authority to investigate and enforce FAC section 12973 against public swimming pools. Further, FAC section 12973 does not conflict with 22CCR section 65529, as the City can comply with the directions on the label and section 65529 concurrently.

There are many instances where an individual, business, or other entity must comply with more than one set of laws and regulations, and more than one jurisdiction of authority. But unless there is a statement of exclusivity in the applicable Code then we are left to assume the legislative intent is for them all to apply simultaneously.

Please make this information available to your staff as a reference in preparing and processing cases. If you have any questions, please contact the Enforcement Branch Liaison assigned to your county.

Sincerely,