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Date of Issue: March 17, 2005

Sandpile could be safety hazard as 'attractive nuisance'

That pile of dredged sand behind the baseball field in Holmes Beach could be a safety hazard, particularly for young kids playing on it, according to Holmes Beach resident Joan Graham.

She should know. She lost a young son in a sandpile accident many years ago and, according to Graham, the sandpile and accompanying pond is "an accident waiting to happen."

Her son drowned when he fell into a pool at a construction site where the contractor had failed to install a child-proof fence around the project. The contractor was charged and convicted in the incident, but Graham has never recovered emotionally.

"Frankly, I'm shocked by the laxness of our community overseers. This dredging site is an accident waiting to happen," she said.

Marge Soeffker of Holmes Beach agrees.

"I've been by there many times on weekends and seen young kids playing inside the fence," she said. "It's a wonder something hasn't happened already."

The sand in some locations is nearly 30 feet high and the project is surrounded somewhat by a 4-foot-high plastic fence that is easily removed, she said.

Soeffker was driving on Flotilla Drive one evening last week around 8 p.m. when she observed three young children inside the fence playing on the sand.

"One child was probably no more than 6, while the other two were maybe 9 or 10," she said.

Soeffker was concerned, knowing that Graham had lost a son in a sandpile accident.

"I called to them and told them it was very dangerous. They were running at the top and that sand is soft. They could easily have fallen into the water," she said.

Following the incident, Soeffker called Holmes Beach Mayor Carol Whitmore to express her concern.

Whitmore said she has written to project manager Randy Williams of Energy Resources Inc. to increase the netting and provide more safety.

"I told them I didn't think [the fence] was sturdy enough to keep kids out and the height should also be increased," the mayor said.

According to Whitmore, Williams said his company had done a number of these sandpile and water-sediment pond projects and they were "comfortable with what they've done."

The mayor has alerted Holmes Beach police to patrol the area on nights and weekends and warn off anyone playing inside the fence, but she's still worried.

"I'm concerned it's a city liability. I know we've brought it to their attention, so it's basically their responsibility to fix it," Whitmore noted, "but it's still on city property."

Williams referred all questions on the Holmes Beach project to Paul Reinhardt of Energy Resource Inc. in Missouri, where the company headquarters is located.

Reinhardt said he was also very concerned about safety at the project, but contended that the orange safety fence met liability requirements.

"The sand isn't really a liability. I don't think a kid would get hurt if he fell off the sand. My major concern is if they fell into the sediment pond," even though it's only 3 feet deep at the most, he said.

The safety issue is the same as that of a child playing alongside a canal, he observed. "Do canals have a safety fence? That bright orange fence tells people this is not a playground."

True enough, but those playing on the sandpile aren't "people," but little kids, said Soeffker. And many times after hours and on weekends when work crews are gone, she's seen the fence pulled down in places. In addition, some of the sand has spilled over onto Flotilla Drive, creating a driving hazard, she said.

"We could put up a chain-link fence around the site, but that would inhibit the work," Reinhardt added.

And federal law doesn't require such a fence, said Gary Grove of the U.S. Occupational Health and Safety Administration.

Grove said his office had received a complaint of an unsafe condition at the site, but was not investigating further because OSHA only deals with occupational safety issues, not public safety hazards.

However, noted Grove, there is a doctrine called "attractive nuisance" which the city and contractor might want to be aware of.

The "attractive nuisance" doctrine is like a swimming pool without a fence, he noted. It's attractive to kids, but also dangerous because they might fall in.

Holmes Beach City Commissioner Roger Lutz, an attorney, said the sand needs to be moved "within a reasonable amount of time. Either spread it out or haul it away."

As an attorney, Lutz is well aware of the "attractive nuisance" doctrine, and said if an accident happens at the sandpile, both the contractor and the city could face liability.

"I am concerned about that sandpile. We can't let it stay there," he concluded.

According to Florida statute 768.075, liability could apply to the property owner and contractor under the "attractive nuisance" doctrine, even if youngsters were trespassing on the site.

What could be more attractive to a kid than water and a sandpile to climb on, suggested Soeffker?

Whitmore said that if efforts to haul the sand to renourish the Palma Sola Causeway fail (see separate story), or if no one else will take the sand, she'll have Energy Resource move the sand to the county landfill.

Some sand has already been trucked to DeSoto Park and the City of Anna Maria used some for the bayfront beach near the city pier.