New Mexico Administrative Code
Title 7 - HEALTH
Chapter 18 - AQUATIC VENUES
Part 1 - PUBLIC AQUATIC VENUES: GENERAL PROVISIONS
Section 7.18.1.22 - VARIANCE

Universal Citation: 7 NM Admin Code 7.18.1.22

Current through Register Vol. 35, No. 18, September 24, 2024

A. The department may grant a variance from the design and construction or operation and maintenance provisions of the aquatic venue rules through written permission for the use of alternative measures that will provide public health and safety protection that is equal to or greater than the protections provided in the aquatic venue rules. No variances shall be granted for procedural requirements, such as submitting construction or operating permit applications, including paying fees, obtaining construction or operating permits, operator certifications, or requesting a hearing.

B. Specific variance requests shall be made by the owner or the owner's designated agent. Designated agents shall provide written documentation signed by the owner that they are representing the owner regarding the specific variance application. All variance applications shall be signed by the owner and upon change of ownership or transfer of property, the new owner or their designated agent must re-apply for the variance.

C. It is the applicant's responsibility to provide all necessary information to support the request for a variance.

D. Any person applying for a variance from any provision of the aquatic venue rules shall do so by filing a written application with the department. Applications shall:

(1) be made on forms obtained from the department;

(2) remit applicable fee by check or money order made payable to the "water recreation facilities fund;"

(3) state the applicant's name and mailing address;

(4) state the date of the application;

(5) state the provision or provisions of this regulation for which the variance is sought;

(6) state in detail the extent to which the applicant wishes to vary from the provision or provisions;

(7) state the period of time for which the variance is sought;

(8) state why the applicant believes the variance is justified;

(9) be accompanied by any relevant documents or material which the applicant believes would support the application for a variance; and

(10) contain other relevant information the department may request.

E. Within 20 working days following receipt of a completed variance application, the department shall grant the variance, grant the variance subject to conditions, or deny the variance. The action taken by the department shall be by written order, a copy of which shall be sent to the applicant. The order shall:

(1) state the applicant's name and address;

(2) state the date the order is made;

(3) describe the location of the public aquatic venue; and

(4) state the department's decision and its reasons.

F. If a variance is granted, the order will state the effective period of time and any conditions that apply.

G. All variances shall be reviewed at the time of the annual operating permit inspection to determine whether all variance conditions have been met. If conditions of the variance have not been met, an operating permit shall not be issued.

H. Petitioners who are dissatisfied with the department's decision may request a hearing from the department secretary.

(1) The request shall be made in writing to the department secretary within 15 calendar days after notice of the department's decision has been received by the petitioner.

(2) Unless a request has been received within the 15 calendar day period, the department's decision shall be final.

(3) If a request has been received within the 15 calendar day period, the department secretary or his/her designated representative shall hold a hearing within 15 working days after the receipt of the request.

I. The department shall notify the petitioner by certified mail of the date, time and place of the hearing.

J. In the hearing, the burden of proof shall be upon the petitioner.

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