Owner of swimming pool allegedly linked to illness sues the state for inaction

Custom Fitness of Cedar Rapids is now engaged in two lawsuits related to government oversight of its swimming pool. (Photo via Google Earth)

An Iowa company accused of endangering the public health is now suing the state over an alleged three-year refusal to review its plans for swimming pool repairs.

Custom Fitness, which is owned by Jason Bailey and Whole Health Natural Foods LLC, is suing the Iowa Department of Inspections, Appeals and Licensing in Polk County District Court. Also named as a defendant is Linn County, which is currently suing Custom Fitness over the company’s alleged refusal to comply with orders that the pool remain closed to protect the public health.

Court records indicate that in March 2015, Custom Fitness, which currently has about 1,800 members, acquired an existing fitness club and swimming pool located on Wilson Avenue in Cedar Rapids.

In October 2020, Linn County and the Iowa Department of Public Health inspected the pool and spa and identified deficiencies that placed the company out of compliance with state regulations. The inspectors took the position that Custom Fitness’ replacement of a broken water heater and replacement of broken filters constituted “reconstruction” of the pool. That determination, in turn, required Custom Fitness to bring the 1980s-era pool into compliance with new regulatory requirements.

In January 2021, IDPH issued a notice stating that unless the deficiencies were corrected, the pool would be closed. Custom Fitness engaged a pool architect who prepared drawings and plans for bringing the pool and spa into compliance with state standards and allegedly submitted those plans to IDPH in March 2021.

Last year, the administrative responsibility for regulating pools and spas was transferred from IDPH to DIAL as part of the governor’s reorganization of state government. Today, the lawsuit alleges, the state has yet to review Custom Fitness’ plans or act on its three-year-old permit application.

Lawsuit: No action taken in 1,200 days

“Custom Fitness has been waiting since 2021 for the state to review the submitted drawings, plans and permit applications,” the lawsuit states. “Custom Fitness can take no further action to address the deficiencies identified in October 2020 without approval of its drawings and issuance of a permit by the state.”

The company adds that it paid the state a fee for the review work to be completed. As a result of the state’s inaction, the lawsuit claims, the pool has remained closed and Custom Fitness has lost more than four dozen members.

The lawsuit alleges DIAL and Linn County “will not participate in the process of approving the necessary corrective action” and that their “obstinate behavior for three years” has violated the company’s rights.

“Despite requests in 2024 for the state to process Custom Fitness’s March 2021 plan and permit application, DIAL refuses to do so,” the lawsuit claims, accusing the agency of “actively interfering” with the company’s efforts to comply with the 2020 orders from IDPH.

The company also claims that the county and state have placed it in a Catch-22 situation, with the county refusing to accept pool-water samples from Custom Fitness, while the state refuses to review Custom Fitness’ plans due to the lack of water samples.

The state and county, the lawsuit claims, “are actively and intentionally interfering” with the company’s efforts to remedy the situation and reopen its pool.

“Custom Fitness’s application of March 2021 has been languishing at the state for more than 1,200 days,” the company alleges, adding that the Iowa Administrative Code references a 15-day pre-reconstruction permit application standard.

The company is now seeking a court declaration that the replacement of electric water heaters and filters do not constitute “reconstruction” that would require a permit. It is also seeking compensation for any financial losses the company has incurred as well as any punitive damages that are allowed.

Linn County and DIAL has yet to file a response to the lawsuit and did not immediately respond to requests for comment. No trial date has been set.

Separate case heads toward trial

In a separate but related case, Linn County is suing Custom Fitness over its alleged defiance of orders to keep the pool closed.

In that lawsuit, filed in 2022, the county alleges Custom Fitness never submitted a corrective action plan after the deficiencies were cited in 2020. In addition, the county alleges that in March 2021, it posted notices at Custom Fitness notifying the public that pool was closed, but that someone removed the signs and the pool was reopened without state or county authorization.

The county filed the lawsuit shortly after a case of legionellosis, also known as legionnaire’s disease, was identified in Linn County. The individual who was sickened had attended swim classes at Custom Fitness and had to be hospitalized, the county alleges.

In December 2023, as part of its lawsuit, the county sought a court injunction against Custom Fitness that would prohibit any further use of the pool. At that time, the county alleged the company’s “pool and spa continue to be used” in defiance of public health orders, citing online advertisements to that effect.

The injunction was issued in February of this year. A trial in the case is scheduled for Dec. 17, 2024.