NEW ORLEANS (WVUE) - After a year-long FOX 8 Defenders investigation, the New Orleans City Council created a law to fill in dangerous swimming pools. But this week, despite that new ordinance, a city department head told FOX 8 he can’t enforce it.
A longtime blighted Lakeview pool at the center of our FOX 8 Defenders reports over the last year prompted City Council members to adopt the new law. That same week in October, workers drained that pool, cleaned it and built a wooden deck on top of it. In September, a City Code Enforcement hearing officer fined the vacant property owner, Frances Musacchia, and ordered the city to fill the pool.
“We requested the authority to fill the pool if the conditions hadn’t been abated. In our eyes, we don’t believe that the pool violation exists anymore,” said City of New Orleans Code Enforcement Director Albert “Snapper” Poche. He explained that Mayor Latoya Cantrell even got involved, reaching out to the blighted property owner,
Next door neighbor Brigette Starr voiced her concern with the blighted property owner’s choice for abatement at an Oct. 18 City Council meeting.
“If the city considers this an acceptable action, I can guarantee you that this wooden deck will sit there for years, take in rainwater, develop all kinds of bacteria and mold underneath, become a luxurious habitat to even more rodents than we already deal with,” she said.
Starr has lived next door to the stagnant pool for years, and the FOX 8 Defenders has laid out her concerns in a series of reports since November 2017.
“The homeowner has rights, and we respect that, but we should not have to live next to that disgusting pool, period,” Starr said in July.
The FOX 8 Defenders have tracked the Vicksburg Street pool’s history through Code Enforcement, which includes several of the same violations and judgments over several years.
“We have probably put more effort into pursuing this property than likely any property in the history of Code Enforcement,” Poche said at a Council Governmental Affairs Committee meeting in September.
Yet neighbors have long complained that the years of hearings and fines haven’t worked in this case.
In the past, neighbors say the owner paid thousands of dollars in fines on the day of a sheriff’s sale. That meant the city got paid, and the owner got to keep her home. But before now, the violations didn’t get fixed, and the neighbors were left starting all over again, forced to call the city’s 311 line and open a new case.
“Clearly, fines alone don’t work. It is the fine plus the abatement has to happen,” explained Councilman Joe Giarrusso. In July, Giarrusso vowed to tighten Code Enforcement rules and brought the issue before the City Council’s Governmental Affairs Committee, and eventually, the full City Council.
“It’s the furthest we’ve come in 11 years in this process,” concerned Lakeview homeowner Connie Uddo told FOX 8.
The pool and crumbling brick wall around it with a gaping hole in it captured attention.
“If a child does walk through and dies, is that then an emergency situation after the child is dead? Then do we have the ability to go in and fill up the pool?” Councilwoman Kristin Gisleson Palmer asked City Code Enforcement officials in September.
City Deputy CAO Chad Dyer told the Council committee that the city attorney’s opinion is that conditions around the pool didn’t constitute an emergency.
“The party that would be injured by this particular hazard would have to go onto the person’s private property to even interact with the hazard. Therefore it’s a bit different from what we use as an imminent danger of collapse where you as pedestrian can be on a public right of way and a building falls upon you,” Dyer said.
Council President Jason Williams called that “a terrible analogy,” citing that drownings are the fifth leading cause of unintentional death and even more perilous among kids.
“As a lawyer, I respect all the laws that exist on property rights, but at no point in time should property rights ever trump human life,” Williams said.
Ultimately, Giarrusso proposed an amendment to the City Code, clarifying what constitutes an emergency when it comes to unsafe swimming pools, and the full Council unanimously supported the measure.
The new law says, “any pool that fails to comply with the fencing and filtration requirements...shall be deemed to be an emergency to the health, safety and welfare of the public, permitting immediate remediation of the pool to prevent injury...The city...may enter upon the premises or lot to immediately fill-in any pool found to be in noncompliance.”
"If we prevent the death of one child, this ordinance is completely worth it," Giarrusso said the day the ordinance passed.
Just last week on Oct. 23, Mayor Cantrell approved the ordinance. However, when the FOX 8 Defenders sat down with the head of Code Enforcement this week, he said he couldn’t enforce it.
“We could not ignore the Constitutional requirement to notice the property owners. That requirement still exists. The United States Constitution did not change, so based upon our interpretation of the new ordinance as well, we can’t, and will not unilaterally immediately call any un-maintained pool an emergency,” Poche said.
The Council adopted the ordinance so that moving forward, there’s no discretion over what constitutes an emergency when it comes to blighted pools.
“I think it’s really important that you understand that there is a question right? In other words, the City Council can’t tell me to make every pool an emergency and ignore the Constitution, which is at a higher level than the City Council, right?” Poche said.
“It’s an incorrect interpretation of what the law is, and what they’re empowered to do...and the mayor signed it. So it’s become the law. Now, if a judge says something differently, that’s for the judicial branch to determine,” Giarrusso said in response to Poche’s comments.
We found a New Orleans East pool that fits the definition of an emergency right now based on the new law. From the street, the vacant lot is so overgrown, you can’t really tell there’s a dangerous pool on it, but from the air, it’s clear there’s an unsafe pool on the lot.
Neighbors said the lot has been vacant since Katrina, and that a yard sign warning people of the abandoned pool just went up along with the barricades that now surround the pool.
“They just did that in the month of October, early October," a neighbor told us.
In October, we asked the city for a list of addresses of unsafe swimming pools. Next week, the FOX 8 Defenders will show you where those blighted pools are located and take a closer look at some of the worst offenders.