06/03/2016 14:43 FAX

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SUPREME COURT
STATE OF NEW YORK COUNTY OF ONTARIO

ROSELAND WAKE PARK LLC,

PETIJ ION

s3(4-,

lndexNo,:

Petitioner,
vs.
NEW YORK STATE DEPARTMENT OF HEALTH,
MCHOIAS i. RICH, in his capacity as District Director
of the New York State Departrneffl of Health, and
HOWARD A. flICKER, M.D., J.D., in his Capacity as
Commissioner of the New York Slate Department of health,

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Respondents.

Petitioner ROSELAND WAKE PARK IJLC, ibr its Petitiofra (Petition), by its attorneys,
Knauf Shaw LLP, alleges as follows:
INTRODUCTION
1.

Petitioner brings this proceeding pursuant to CPLR Ahicle 78 and section 3001, and

other legal authorities to seek, inter cilia, (1) annulment as illegal, arbitrary and/or capricious the
determination (the 2016 Bathing Beach Determination, annexcd as Exhibit A), dated July 1, 2016,
by respondent Nicholas .1. Rich (the Deputy Director), in his capacity as Deputy Director of
respondent New York State Department of Health (NYSDOB), that the AquaGlide (the
AquaGlide) attraction at petitioners Roseland Wake Park facility is a bathingbeaeh pursuant to 10
N.Y.C.R.R. 6-22(a) (a Bathing Beach) and, therefore, subject to thcrequirements of 10 N.Y.C.RR.
Subpart 6-2 (the Bathing Beach Regulations); (2) a declaration that respondents air estopped from
making the Bathing Beach Determination; and (3) a declaration that the AquaGlidc is not a Bathing
Beach.

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2.

The 2016 Bathing Beach Determination is illegal, arbitrary, capricious, and an abuse of

discretion because the AquaGlide does not meet the definition of 4 Bathing Beach, and thus the
Bathing Beach Determination should be annulled and declared illegal, null, and void.
3.

Additionally, respondents are estopped from making tha Bathing Beach Determination

because, in 2014, and again after the AquaGlide was installed in 2015, respondents determined (the
Project Determinations) that the AquaGlide was not a Bathing Beach, and petitionerjustiflably relied
on such determination in order to make significant investments in the AquaGlide and enter into
contracts for use of the AquaGlide.
PARTIES
4.

Petitioner Roseland Wake Park LLC is a New York [limited liability company with

offices located at 5662 Route 64, Canandaigua, New York 14424,

Codny of Ontario and State of New

York.
5.

Petitioner owns and operates the Roseland Wake Park (the Park), a premier New

York State family recreational facility located in the City of Canandaigua (the City).
Upon information and belief, respondent Deputy Direbtor maintains an office at 624
Prc-Emption Road, Geneva, New York 14456 in the County of Ontario land State ofNew York.
7.

Upon information and belief; respondents NYSDOII and Howard A. Zucker, M.D.,

iD,, in his capacity as the Commissioner of the NYSDOH, maintaid offices at Empire State Plaza,
Corning Tower, Albany, New York 12237, County of Albany and StateS ofNew York
8.

The Bathing Beach Determination has and will dlitctl impact petitioner by causing it

to incur substantial unnecssaiy costs in complying with the Batbirg Beach Regulations and lost
revenue by causing petitioner to cancel group contracts for use of the AquaGlide and reduced
2

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attendance at the Park.

THE PARK AND TIlE AQUAGLIUF
9.

After extensive marketing studies, planning, and engagement with federal, State, and

local agencies, the Park opened in 2015 as a premier Western NeW York attraction that has been
prominently marketed a part of the State of New Yorks 1 Love New York tourism campaign
because of its unique lhmily experience.
10.

The Park consists of three primary attractions each designed to work in concert 4th

the other, The primary attraction is the Cable Wakeboarding System within a private lake in the City.
Like water skiing with a boat or suriboarding, riders, referred to as Wakeboarders, are pulled by a
high-tech pulley system. The pulley system picks up cables from the starting dock and pulls riders in a
circle amund the lake, where riders can utilize the ramps and rails on thd sides of the lake to try tricks.
II.

the second attraction, the AquaGlide, is ancillary to the Cable Wakeboarding System,

but essential for the success of the Park. and is intended for those family members who arc either
waiting to use the cable system, or do not want to use the cable system.
12.

The AquaGlide essentially consists of an inflatable jungle gym, obstrle course, anti

climbing center on water that provides a place where those who accompany the wakeboarders can
enjoy themselves. See http:llwww.roselandwakepark.com/.
13.

The third attraction is a large party room within the btiilding in the Park. In concert

with the wakeboard system and AquaGlide, the party room attracts large group fhnctions and is a
substantial pan of the attendance at the Park.

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THE PROJECF DETERMINATIONS

14.

In 2014, prior to the installation of any of the attraetiohs, representatives of petitioner

engaged numerous governmental departments and agencies, either dire4aly or through lead agencies, to
review the project (the Project) to develop the Park. These agencies included the City of
Canandaigus, County of Ontario, New York State Department of Environmental Conservation, the
U.S. Army Corps of Engineers, New York State Department of Labor, and NYSDOII (collectively, the

Agencies).
IS.

Petitioner was provided guidance and/or pennitting appbcations for the various

proposed activities and improvements.

Each of the Agencies was advised, either directly fiDm

petitioner or through lead agencies, of the proposed important components of the overall development.
16.

Shortly beibre commencing construction of the AquaGlide around June 2015, Daniel

Fuller, petitioners Project manager, reviewed the Project plans for the AquaGlide with Katherine
Morse of the Geneva office of NYSDOH to verify that the Park, including the AquaGlide, would not
fall within the jurisdiction of NYSDOJI.
17.

Among other details, Ms. Morse was specifically advised that during the operation of

the AquaGlide all users of the AquaGlide would be required to use United Stales Coast Guard (USCG)
Type 3 life jackets.
18.

Additionally, signage throughout the Park specifically prohibits swimming.

19.

Ms. Morse verbally indicated to Mr. Fuller that the AquaGlide would not fall within

NYSDOH jurisdiction because it did not meet the definition of a J34thing Beach since swimming,
wading, and diving are incidental to the use of the AquaGlide, the use f USGA Type 3 life jackets in
the context of the location, depth of water (greater than six feet), and configuration of the AquaGlide.
4

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Ms. Morse suggested that petitioner train the lifeguards to a higher le*l, and Mr. Fuller agreed to do
so.
20.

Upon information and belief; Ms. Morse was authorized by NYSIX)H to provide a

jurisdictional determination regarding the regulatory trealment of the AquaGlide under the Bathing
Beach Regulations.
21.

Once again, around July 2011 shortly following installation of the AquaGlide, Ms.

Morse again reviewnd the AquaGlide opcmtion and again indicated that NYSDOH did not have
jurisdiction over the AquaGlide.
22.

Anrnnd August 2015, Padrick Toy, also with the Geneva office of NYSDOI-I, visited

the Roseland Wake Park while he was visiting the adjacent Roseland Water Park (which is under
NYSDOH jurisdiction). Mr. Thy reiterated during this visit that NYSDOH did not have jurisdiction
over the Roseland Wake Park including the AquaGlide. Mr. Toy pmiieeded to provide some genera]
technical advice regarding the Roseland Wake Park.
23.

Thus, in 2014 and 2015, NYSDOII representatives conducted ati examination of the

AquaGlide and reached a reasoned decision in making the Project Determinations that the device did
not fall within NYSDOH jurisdiction as a Bathing Beach.
24.

In reliance on these Projeci Determinations, petitioner executed its business plan and

constructed the Project. The Park opened in July 2015. and operated thtoughout the summer and early
fall, until it closed for the season in late October 2015.
TilE 2016 BATHING BEACH DETERMINATION
25.

The Park reopened as planned at the start of the season Ia May 2016.

26.

Despite petitioners efforts engaging NYSDOH in Project planning and obtaining the
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Project Determinations, the Deputy Director, with little notice and without even visiting the Park,
issued the 2016 Bathing Beach Determination on Friday, July I, 2016 (see Exhibit A).
27.

The 2016 Bathing Beach Determination provided notice that NYSDOH now

concluded that the Aquaolide was a Bathing Beach and requited a Bathing Beach permit
compliant with the Bathing Beach Regulations.
28.

The configuration and operation of the AquaGlide is unchanged from that presented to

NYSDOIT prior to its installation in 2014 and 2015 and following its installation in 2015, Since it
opened in 20)5, each and every user of the AquaGlide was required to use USGA Type 3 life jackets
and has been supervised by highly trained life guards.

During this period, not a single incident

occurred involving the AquaGlide

29

Therefore, NYSDOFI cannot base the 2016 Bathing Beach Determination on changes

to the configuration or operation of the AquaGlide.

30.

NYSDOHs stated basis for concluding the AquaGlide was a Bathing Beach was

that the swimming and wading activities associated with the use of the AquaGlide. ,.meet the
definition of a [Bathing Beach] even though, as with the wakeboarding feature (which is not:
regulated as a Bathing Beach), swimming and wading are merely tangential to the use of the
AquaGlide.
31.
July

th
4

While the 2016 Bathing Beach Determination (issued on the Friday before the

holiday) indicated that petitioner was not required to cloke the AquaGlide operation,

NYSDOI-1 gave petitioner only until the next business day, July 5, 2016, to submit a Bathing
Beach permit application and to be prepared for a NYSDOH inspection for compliance with the
Bathing Beach Regulations.

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32.

To obtain a Bathing Beach permit. an applicant is required to submit construction

plans and engineering reports from a licensed professional engideer (see JO NYCRR 6-2.8)
demonstrating conformance to the Bathing Beach design standards of 10 NYCRR 6-2.19 for
such issues as sanitary surveys, beach configurations, electrical asscssments, bathhouse design,
and safety facilities.
33.

Even if it was appropriate to regulate the AquaGlide as a Bathing Beach (which it

is not), it was trnally unrealistic for petitioner to engage a licensed professional engineer to
develop and submit an approvable Bathing Beach permit application over the

of July holiday

weekend.
34.

Additionally, subjecting the AquaGlide to Bathing Beach Regulations would cause

petitioner to incur substantial, unnecessary costs to comply with the Eathing Beach Regulations that
would make the AquaGlidc uneconomicalincluding a substantial coats for lifeguard staff and water
quality monitoringand would provide no improvement to health and safety from the use of the
AquaGtide.
35.

Petitioner was therefore forced to shut down the AcjuaGlide because of the 2016

Bathing Beach Determination.

36.

During the late fall, winter and early spring of 2016, petitioner entered into conlmcls

for more than 30 large group bookings (the Group Bookings) between July 5, 2016 and the end of
the 2016 season in reliance on the Project Determinations that the AquaGlide xas not a Bathing Beach.
37.

Because the AquaGiide has been shut down bechuse of the Bathing Beach

Delamination, the Group Bookings have been cancelled at a substantial loss in income to petitioner.
38.

Further, general attendance at the Park has been reduced due to loss of the AquaGlide.

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PROCEDURAL ISSUES
While petitioners attorney submitted a protest to the Bathing Beach Determination on

39.

July 18, 2016, a copy of which is annexed as Exhibit B, respondents have failed to reverse or mothiS
the Bathing Beach Determination.
40,

Petitioner has no available administrative remedies,

41.

Petitioner has made no previous application for the relief sought in this Petition.

42.

Petitioner has no adequate remedy at law.

43.

Ontario County is designated as the venue of this pro teding on the basis of: (1) the

real property that is the subject of this proceeding is located in Ontario County; (2) the location of
petitioners office in Ontario County; and (3) the location of the office of the Deputy Director in
Ontario County.
AS AND FOR A flRST CAUSEOF ACTION tO ANNUL
TIlE 2016 BATHING BEACH DETERMI?4ATION,
PETONER ALLEGES AS FOLLOWS:
44.

Petitioner repeats and realleges the allegations of paragraphs 1 thmugh 43 of this

Petition, as if set forth in this paragraph at length.

45.

The 2016 Bathing Beach Determination that the AquaGlide is a Bathing Beach has no

basis in fact or law.

46.

Public Health Law 201(lXm) authorizes NYSDOH lb

supervise and regulate the

sanitary aspects of camps, hotels, boarding houses, public eating and drinking establishments,
swhnming pools, bathing establishments and other businesses and acfiviies affecting public health.
47.

Pursuant to this statutory authorization, NYSDOH has n mulgated the Bathing Beach

Regulations at 10 NYCRR Subpart 6-2,

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It) NYCRR 6-2.2(a) defines a Bathing Beach as a hithing place, together with any

48.

buildings and appurtenances, and the water and land areas used in connection therewith, at a pond, lake,
stream or other body of fresh or salt water which is usedfor bathing or swimming with the express or
implied permission or consent of the owner or lessee of the premises or which is operated lbr a fee or
any other consideration or which is openly advertised as aplacejr bathing or swimming lemphasis

Bathing is defined as to become partially or totally immexsed in water and shall

49.

include swimming wading and diving, but shall exclude fishing, scuba diving and surlboaaling. 6
NYCRR 6-2.2(d) [emphasis addedi.
Ibe operative term in defining a Bathing Beach under the regulations is that it is used

50.

for bathing or swimming, where bathing shall include swimming, wading arid diving.
As presented to NYSDOI I during Proiect planning, swimming or wading are incidental

51.
to

the

use

of

the

AquaGlide,

as

with

the

wakeboarding

feature.

See

hrtp:/Iwww.roselandwakepark.com/aquaglide/.
52.

Diving is not an element of the use of the AquaGlide at all.

53.

Signage prohibiting swimming is present throughout the Park.

54.

Additionally, the Bathing Beach Regulations exclude certain activities fiom the

definition of a Bathing Beach, including fishing, scuba diving, and surfloarding.

55.

As with the AquaGlide, swimming and wading are iticidental to surfboarding since

surfers must totally immerse themselves in the water to get out into the lake or ocean to enable them to
catch a wave. Yet surfboarding is exempt thini the applicability of the lathing Beach Regulations.
56.

The Bathing Beach Regulations therefore contemplate that certain activities with
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incidental contact with a body of water do not thereby create NYSDOH regulated swimming or
bathing activity.
57.

This interpretation is consistent with the statute, which authorizes regulation of

bathing establishments. Public I Icalth Law 201(1 Xm).

58.

Therefore, since the AquaGlide is not used for bathing dr swimming, it is net a Bathing

Beach, and the 2016 Bathing Beach Determination is arbitrary and capriEious.
59.

In addition, the 2016 Bathing Beach Determination F is inconsistent with previous

decisionmaking by NYSDOI I, since the Project Determinations eonclu&ed that the AquaGlide was not
a Bathing Beach, and there have been no changes to the AquaGlide eon4umtion or operation.
60.

Therefore, the 2016 Bathing Beach Determination hou1d be annulled as illegal,

arbitrary and capricious, and the Court should declare that the AquaGlid is not a Bathing Beach.
AS AND FOR A SECOND CAUSE OF ACTION FOR
EQUITABLE ESTOPPEL PETITiONER ALLEGES AS FOLLOWS:
61.

Petitioner repeats and realleges the allegations of paragkaphs 1 through 60 of this

Petition, as if set forth in this paragraph at length.

62.

In the Project Determinations, respondents macle[ a clear and unambiguous

determination that the AquaGlide was not a Bathing Beach, and thereibre not subject to the Bathing
Beach Regulations,
63.

Petitioner reasonably relied on the Project Determinations in assessing its business

plans and investing in the construction and operation ofthe AquaGlide.

64.

The 2016 Bathing Beach Determination has caused petitioner to sustain and would

continue to sustain an ongoing injury because it relied on the Project Determinations to construct and
staff the Part and also to make the Gmup Bookings, xthich have beencancefled because of the 2016
10

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Bathing Beach Determination, and lbr the. planning costs for lifcguiwd staffing, which would
substantially increase as a result of the 2016 Bathing Beach Determination.
65.

By concluding in the Prnject Determinations that the AquaGlide was not a Bathing

Beach. but then one year later concluding that the AquaGlide was a Bathing Beach. with

rio

changes

either to the law or the configuration or operation of the AquaGlide, respondents acted or comported
itself wrongfully or negligently, causing petitioner to be a victim of bureaucratic confusion and
deficiencies.
66.

Petitioner was entitled to rely on the Project Determinations of respondenLs to

determine the costs for constructng and operating the AquaGlide, which induced petitioner to construct
and market the Park and purchase and install the AquaGlide based

this reliance to petitioners

detriment.
67.

Respondents should therefore be estopped from enforcing the 2016 Bathing Beach

Determination, and the Court should declare that the AquaGlide is not a hathing Beach.
WHEREFORE, petitioner respectfully requests that this Courvgrant an Order and Judgment,

pursuant to CPLR Article 78 and section 3001: (1) vacating, annulling and declaring illegal, invalid,
null and/or void the 2016 Bathing Beach Determination; (2) declaring that respondents are estopped
from maldng the 2016 Bathing Beach Determinati

and (3) declaring that the AquaGlide is not a

Bathing Beach; and (4) granting such other and further relief as this Court deems just and proper,
including petitioners costs and disbursements..
Dated: Rochester, New York
August

1,2016

KNAUF SHAW LLP

Attorneys for Petitioner
Man 3. Knauf Es., and
Dwight E. Kanvuck, Esq, of Counsel
II

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08. 0),2016 14:47 VAX

1400 (mssmads Building

2 State Street
Rochester, New York 14614
Tel: (585) 546-8430
KENYON & KENYON
Attorneys for Petitioner
William It Kenyon, Esq... of Counsel
11 North Street
Corporate Square
Canandaigua, New York 14424
Tel: (585) 394-2068

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08 032016 14:47 FA%

VERIFICATION

STATE OF NEW YORK)

COUNTY OF ONTARIO) ss.:
DAVID CLEMENTS, being duly sworn, deposes and says thatj I am the managing member of
petitioner Roseland Wake Park LLC. I have wad the annexed tition, d know its contents. It is true
on and belief; and as
to my own knowledge, except as to the matters stated to be c ed upo inf
to such matters I believe theni to be

Sworn to before me this

1st dayof August. 2016

blic
DWICIff L KANVUCK
State at tin York
NOTARY ptIC,
96
02JCA62150
No.
Count?
Qijabtied In Monroe
Exprfl nnnwnber 21,20

ComflhlSSO

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08/03/2010 14:4? lAX

flIORK
COOflUNffY.

Department
of Health
HOWARD A. ZUCKER, M.D., .3.0.
Commissioner

ANDREW M. CLJOMO
Governor

SALLY DRESLJN, u.s., R.N.

Executive Deputy Commissioner

July 1, 2018
Re:

Dave Ciernents
250 Eastern Boulevard
Canandalgua, NY 14424

BAThING 5EACHS
Roseland We Plc AnuaGlide
(Permit to Operate)
Canandaigua (C) Ontario County

Dear Mr. Clements:

inflatable
This letter will confirm our recent telephone conversations regarding the AquaGlide
Close
your
to
required
not
are
you
and
that
attraction at your Roseland Wake Parl facility
AquaGlide operation.
AquaGlide
As discussed, the swimming and wading actMtles associated with the use of the
6-2.2(a) ci
In
Section
stated
as
beach
bathing
a
of
definition
the
meet
attraction at your business
retrain operational,
To
Beaches).
(Bathing
Code
NYS
Sanitary
of
the
NYCRR)
8-2(10
Subpart
ment of Subpart 5-2
the AquaGlide attraction must be In compliance with all applicable require
at all times ft Is operating.
Ol&. A
2
S
The Department Is requesting you apply for a bathing beach permit by July
Park AquaGlide
representative from this office will conduct an inspection of the Roseland Wake
complete the
please
meantime,
the
in
compliance,
verify
Code
to
2016
5,
July
on Tuesday,
and Notice of
enclosed application for a permit to operate a bathing beach, safety plan checklist,
attraction.
AquaGlide
your
intent, if you wish to continue operating
.pov with any questions.
Please feel free to contact me at (315) 789-3030 or at pedohealthny

Very Truly Yours,

Nicholas J. Rich
District Director

PtPAflaEcHESW.ecft Monftodns P,ogramIRoH4and Wfl.

Pafl Aqu.Gflde O7OI2O1#4co

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GENEVA DIStRICT OFFICE 524 Pte.Emptod bad. Geneva, NY 18454 315.78*4030

Cmpke Stale Plaza. Coaiflq Thwe,

Mmny,

NY 12237 lheathnygov

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2016

O2l023

14:48 \\

KENYON & KENYON

Attorneys and Counselors at [Sw
Corporate Square
II North Street
Canandaigua, New York 14424
(585) 394-2068 Fax: (585) 394-5227
Edward C. Tcnyon
RusskenonandkenyonIaw.com

William R. Kenyon
billkenyonandkenvonlaw.eom

July 18, 2016

New York State
Department of Health
624 Pre-Emption Road
Geneva, NY 14456
Ann:

Nicholas J. Rich
District Director

Re:

Roseland Wake Park Aqua Glide

Dear Mr. Rich:

We are in receipt of your letter dated July 1, 2016 regarding the Aqua Glide floating attraction at Roseland
Wake Park. Your letter of July 1, 2016 concludes that the activities associated with [the use of the Aqua Glide
meet the definition of a bathing beach in I ONYCRR 6-2.2 (a). We respectfully disagree.
The principal function of the Aqua Glide is essentially a jungle gym on water. The Aqua Glide is an inflatable
obstacle course and climbing center. Swimming and wading activities are mere tangential to the primary
flmction of the device. As defined in the Code, a bathing beach means a place which is openly advertised as a
place for bathing or swimming. Signage throughout Roseland Water Park specificaily prohibits swimming.
Swimming is not the essential element of the Aqua Glide. Swimming is the essential activity of a bathing beach
or facility. The Code recognizes that partial or complete emersion in the water may[ be part of the activity but
does not necessarily fully define that activity. The Code exempts certain activity froa the definition of bathing.
A scuba diver actually is totally irmnersed in the water as an integral part of the actNity. Yet scuba diving is
excluded from the applicability of the code. The word scuba is actually an acronyni for the words: self
contained underwater breathing apparatus. The very word scuba defines the activity as total emersion in the
water. Surfers must totally immerse themselves in the water to get out into the lake hr ocean to enable them to
catch a wave. Yet suriboarding is exempt from the applicability of the Code. Fly fihing and surf casting
frequently require the fisherman to partially immerse into the lake, stream or ether body of water. Yet fishing is
exempt from the applicability of the Codc. The Code clearly contemplates that certain ancillary contact with a
body of water does not thereby create swimming or bathing activity as regulated by the Code. The same is true
of the Aqua Glide. Swimming is only an incidental element of the activity. Surfingnd scuba diving require
total and continuous partial or complete emersion yet both activities are exempt. Th Aqua Glide should also be
exempt. Previously, representatives of the DOH agreed.

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[022:023

in
The installation of the Aqua Glide, as with the other attractions at Roseland Wake Park was completed 2015
following thorough due diligence by the developer throughout 2014 and early 2015. Prior to the installation of
any of the attractions, representatives of Roseland Wake Park LLC contacted numerus governmental
a,
departments and agencies to discuss the project. These agencies included the City otCanandaigu County of
State
New
York
Engineers,
of
Corps
Army
Ontario, Department of Environmental Conservation, the US
and/or
guidance
provided
agency
Department of Labor and New York State Department of Health. Each
d
permitting applications for the various proposed activities and improvements. Each bf the agencies was advise
er
to
togeth
work
to
of the proposed 3 important components of the overall development. The 3 components had
ensure success of the operation. The first element is the cable wake board operation. The cable wake board
operation has 2 separate mechanical operations that teach wake boarding and then offer families the wake
boarding experience. The second activity is the Aqua Glide floating Adventure Park. It provides patrons a
yet on the
floating obstacle course on the surface of the water to enable friends and family menibers who are not
All
g
systems.
buildin
arid
walkway
dock,
the
cable system an enjoyable activity. The last component is
may enjoy.
components work together to provide an integrated and safe outdoor activity that all family members
and
Prior to the installation of the Aqua Glide, representatives of the Department of Health were specifically
Aqua
about
the
asked
were
ftull advised of the structure and its uses, features, and flnictions. Specific questions
of
Aqua
the
Glide and what regulations, if any, applied. The developers were advised that the configuration
The
beach.
bathing
a
of
criteria
the
not
meet
did
itself
obstacle
Glide, the depth of the water and the inflatable
location,
the
of
eontext
in
the
jackets
life
type
3
USGA
developers were specifically advised that the use of
ction. During the
depth of water and configuration of the Aqua Glide exempt the devise from DOH jurisdi
to use USGA
required
were
Aqua
Glide
the
of
operation of the Aqua Glide at Roseland Wake Part all users
es
representativ
DOH
ft.
6
exceeds
points
type 3 lifejackets. Moreover, because the depth of the water at all
on
advised
specifically
ere
developers
suggested that the developers train the lifeguards to a higher level, The
the
to
subject
was
not
device
more than one occasion by individuals from the Department of Health that the
Department of Health
regulations of the Department of Health. Only after receiving assurances from the
to
installation of
representatives that the device was not regulated by the DOH, did the developers prdceed the
that the
the inflatable surface device. Following installation of the attraction, DOH again as4ured developers
DOll
DOll didnt have jurisdiction. Clearly, this was an indepth examination of the devie4 by the
jurisdiction.
DOll
within
not
is
device
the
that
representatives and clearly demonstrates a reasoned decision
with the others. The
Each of the components was designed and located within the Wake Park to work in concert
specifically
was
Glide
Aqua
the
and
layout and placement of the cable system, the walkways andbuildings,
marketing
training,
and
staffing
engineered for optimal performance and overalj synergy. The business plan,
the
including
and site work were all based on input from all of the contacted governmental agencies,
r and early fall, until
Department of Health. The park opened in July 2015, and operated throughout the summe
relied
it closed in late October 2015. Marketing activities during the late fall, winter and cirly spring of 2016
was not subject
upon the approvals in 2015, including the Department of Health assurances that the )qua Glide
to the jurisdiction of the Department of Health.
who elect not to
Research has revealed that a properly fimctioning wake park must include attractions for those
those who are
entertain
ad
attract
to
use the cable system. Group functions require the use of the Aqua Glide
jungle
inflatable
The
system.
cable
either waiting to use the cable system, or those who do not want to use the
while
themselves
enjoy
s
gym provides a place where the young and old who accompany the wakeboarder can
either waiting to ride the cable system or while others enjoy the cable system.
sly involved marketing the
During the winter months, the marketing of the Wake Park necessarily and obviou
of great interest is
Aqua Glide. Numerous pre-sold packages were entered into for the 2016 season. What is
its
in
1 Love New York
endy
Glide
proinin
Aqua
that the State of New York uses Roseland Wake Past and its
experience.
family
unique
a
campaign. The State of New York recognizes Roseland Wake Park as

023/023

03/03/2016 14:40 FAX

On two occasions, film crews from the State have extensively recorded the unique thurism opportunities at
Roseland Wake Park. Millions of people now recognize the breadth of activities aiailable at Roseland Wake
Park including Aqua Glide.
The correspondence dated July I, 2016 offered the opportunity to apply for a permit. It is curious that your
letter stated that the Aqua Glide could continue to operate, but that in order to remain operational, the Aqua
Glide must be in compliance with all applicable requirements of 1ONYCRR Subpart 6-2. Further, the letter
dated July 1, 2016 required that an application be filed by July 5, 2016. These requirements are in stark conflict
with previously expressed Department of Health statements that the Aqua Glide is not within the jurisdiction of
the Department of Health. Given the extremely short window (from July Ito July 5), Roseland Water Park
LLC has not applied for a permit that it does not think is required. Applying for a permit would acknowledge
that the Department of Health has jurisdiction. Applying for a permit would acknowledge that the activities
related to the Aqua Glide fall within the definitions in IONYCRR Subpart 6-2(2)(a). Applying for a permit and
the commencement of the permit review period would extend the process beyond the summer months.
The economic impact of this action by the Department of Health cannot be overstated. Marketing efforts during
the winter resulted in more than 30 group bookings that included the Aqua Glide. flecause of the actions of the
Department of Health, people who have admittedly never visited the site, the Aqua Glide has been shut down
and events were cancelled,
We urge you to immediately revisit the question of whether the Aqua Glide is a Bathing Beach. Clearly, the
Aqua Glide was integrated into the Wake Park after the Department of Health reprebeniatives concluded that the
floating inflatable jungle gym was not a Bathing Beach. Clearly, the decision by the Department of Health
representatives in 2014 and 2015 caused the developers of Roseland Wake Park to iheorporate the attraction in
the Park. Clearly the costs associated with the purchase and installation of the Aqua Glide were made in
reliance on the decision of the Department of Health representatives in 2014 and 2015 that the Department of
Health did not have jurisdiction over the Aqua Glide. Clearly, the marketing efforts including the Aqua Glide
were based upon the detrimental reliance on the 2014 and 2015 decisions of Department of Health
representatives.
Every effort was made to ascertain what regulations were/are applicable. Once the Department of Health
representatives rendered their opinions, prudent businessmen, in reliance on their decisions, executed their
business plan.
The dramatic reversal by the Department of Health has and will continue to have a significant adverse economic
impact on New York tourism.
The Aqua Glide was put into operation in July 2015. Since that time thousands of patrons have visited the wake
park and taken advantage of all of the attractions available including the Aqua Glidd. During that time each and
every user of the Aqua Glide was required to use the USGA type 3 life jacket During that period, all activity
was under the supervision of highly trained life guards. During that period not one single incident involved the
Aqua Glide.
We urge you to immediately revise your July 1, 2016 letter to issue a new letter in cnformity with previously
issued opinions: the Department of Health has no jurisdiction over the Aqua Glide,
Thank you for your prompt attention to this matter.