HENRICO COUNTY, Va. (WRIC) — SwimRVA has filed a petition appealing the Virginia Department of Education's (VDOE) finding that the nonprofit was not exempt from child day program licensure when 9-year-old King Overton drowned at SwimRVA-North in June. In a petition for appeal filed on Sept. 2 and exclusively obtained by 8News, Greater Richmond Aquatics Partnership, doing business as SwimRVA, called the VDOE's decision "erroneous and arbitrary." The nonprofit argues that the state incorrectly interpreted Virginia law and made a decision that "seriously damages SwimRVA's reputation." Overton's drowning on June 15 prompted questions about whether SwimRVA should've been licensed and therefore required to comply with staff-to-child ratios when Overton was pulled unresponsive from a pool during his first day at the Henrico swim camp. SwimRVA has maintained that it qualifies for exemptions to operate without a license. On July 20, VDOE found that the SwimRVA-North facility “does not meet an exemption to licensure” as outlined in the Code of Virginia based on three main potential exemptions: SwimRVA wasn’t a “single focus” instructional program, instead offering a “range of activities.” The VDOE learned that only one and a half hours a day are dedicated to swimming at SwimRVA’s summer camps, while all other activities are out-of-water. SwimRVA also allows kids to attend for more than 25 days in a three-month period. This means SwimRVA could not be exempt from licensure under Virginia Code 22.1-289.030(A)(1). SwimRVA allowed children ages 6 and older to attend for more than 12 hours per week during the summer while participating in activities outside of competitions, performances and exhibitions. This means SwimRVA could not be exempt from licensure under Virginia Code 22.1-289.030(A)(2). SwimRVA failed to meet the VDOE’s standards about staff training and qualifications, as well as its standards about staff background checks. This means SwimRVA cannot be exempt from licensure under Virginia Code 22.1-289.030(B)(11). SwimRVA's appeal challenges the state's findings on the "single focus exemption" and "12-hour activity exemption." In its appeal, SwimRVA argues that it qualifies for the "single focus exemption" because the camps’ sole purpose is to teach children to swim. The nonprofit says its out-of-water activities, such as kickball and human bowling, are designed to help campers build strength as swimmers and should therefore qualify its camps as a single-focus instructional experience. SwimRVA also argues that it qualifies for the "12-hour activity exemption" because campers spend up to 10 hours swimming each week, while the remaining time is devoted to out-of-water activities that prepare them for a talent show or the "Swim Olympics" competition at the end of the week. The nonprofit contends those activities should not count toward the hours of swim instruction activities. "There is no law to support the VDOE's position as to why out-of-water activities leading to a talent show or Swim Olympics do not fall within Virginia Code § 22.1-289.030(A)(2)'s exclusion of related competitions, performances, and exhibitions," the appeal states. On July 29, the nonprofit submitted a compliance plan outlining changes intended to allow it to operate as a child day center under a licensing exemption. The VDOE approved the nonprofit to operate under an exemption on Aug. 4. Despite that approval, SwimRVA is asking a judge to rule that it was always exempt from licensure and to require the department to cover its legal expenses. The nonprofit argues that the department’s decision caused serious harm to its reputation and operations. "This public decision seriously damages SwimRVA's reputation in the greater Richmond community and SwimRVA's ability to continue to operate its swim camps," the appeal states. The appeal does not name Overton at all, although his death prompted the state’s investigation into the facility. His family has filed a wrongful death lawsuit against the swim school for over $100 million. The lawsuit says the employees at SwimRVA-North knew King didn’t know how to swim, yet left him in an unstructured “free swim” with only one lifeguard watching the entire pool. For all of our coverage on the 9-year-old boy’s death at SwimRVA, click here. ...read more read less