STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2565

) PYROTECHNICS INTERNATIONAL, INC. ) and ADRIAN S. MARIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on November 2, 1982, in the Hillsborough County Courthouse, Tampa, Florida. The issue for determination at the hearing was whether respondents are properly subject to the Cease and Desist Order of the State Fire Marshal dated August 23, 1982.

APPEARANCES

For Petitioner: Gabriel Mazzeo

Department of Insurance 413-B Larson Building

Tallahassee, Florida 32301

For Respondents: Anthony J. LaSpada

Barnett Bank Building

1000 North Ashley Drive, Suite 500

Tampa, Florida 33602 INTRODUCTION

By Cease and Desist Order dated August 23, 1982, respondents were ordered to stop selling, offering for sale or giving in Florida any fire extinguisher which does not comply with Chapter 633, Florida Statutes, and the rules and regulations of the State Fire Marshal. Respondents timely requested a hearing and the undersigned was designated as the Hearing Officer.

At the hearing, the petitioner presented the testimony of Basil M. Alagood with the Office of State Fire Marshal, and petitioner's Exhibits 1 through 6 were received into evidence. Respondents presented the testimony of Adrian S. Marin, the Chairman of Pyrotechnics International, Inc. and Director of Marketing for Sargom Company, and Dr. Glyn Miller, the Technical Director of Sargom, Ltd. Respondents' Exhibits A through L were received into evidence.

Though afforded the opportunity to do so, neither party submitted proposed findings of fact or proposed conclusions of law subsequent to the hearing.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. The respondent Pyrotechnics International, Inc. is a corporation organized and existing under the laws of Florida, and respondent Adrian S. Marin is its Chairman. Respondent Pyrotechnics serves as a marketing agent for Sargom Company Ltd. in London, England, which manufactures fire fighting equipment and exports fire extinguishers and other equipment to respondents for distribution in the United States. Respondents desire to construct and operate their own manufacturing plant in Tampa, Florida.

   
   

2. In August of 1981, The Sargom Company Ltd. began the process of obtaining a listing with and approval by Underwriters' Laboratories, Inc. for its fire extinguishers. As of the date of the administrative hearing in this matter, Underwriters' Laboratories was still in the process of investigating and testing Sargom's products.

   
   

3. On or about October 26, 1982, respondent Adrian S. Marin applied to Applied Research Laboratories of Florida, Inc. for investigation, listing and follow-up service for its fire extinguishers.

   
   

4. Respondents, in connection with Sargom, have expended funds amounting to approximately $60,000 in an effort to obtain approval and listing of its products from Underwriters' Laboratories and Applied Research Laboratories of Florida. As of the date of the hearing, respondents had not yet obtained such approval or listing.

   
   

5. Respondents have sold and/or distributed fire extinguishers in Florida. The extinguishers sold and/or distributed did not carry an Underwriters' Laboratories, Inc. or manufacturer's serial number permanently affixed to the extinguisher shell. Respondents have recently devised a label which contains a serial number and date of manufacture. If permitted to sell and/or distribute their product in Florida, respondents intend to place a self-destructive label on a metallic plate to be permanently affixed to the canister.

   
   

   CONCLUSIONS OF LAW

   
   

6. The respondents have been charged with engaging in activities which violate Section 633.083(2), Florida Statutes, and Rule 4A-3.09(29), Florida Administrative Code, and have been ordered to cease and desist from selling, offering for sale or giving in Florida any fire extinguisher which does not comply with the statute and rule cited above. The statute makes it unlawful to sell, offer for sale or give in this State any fire extinguisher which has not first been tested and is currently approved or listed by Underwriters' Laboratories, Inc. (UL), Factory Mutual Laboratories, Inc. or other nationally recognized testing laboratory and carries a UL or manufacturer's serial number. Such number must be permanently stamped on the manufacturer's identification or instruction plate or on a separate plate permanently affixed to the extinguisher shell. Section 633.083(2), Florida Statutes. Rule 4A-3.09(29), Florida Administrative Code, provides a definition of a "nationally recognized testing laboratory." There was no evidence of a competent nature in this proceeding that any such firm (other than Underwriters' Laboratories which had not yet completed their investigation or testing of respondents' product) had approved or listed respondents' fire extinguishers. Consequently, respondents have violated the provisions of Section 633.083(2), Florida Statutes, and are not

permitted to sell, offer for sale or give their product in Florida. Should respondents receive approval or a listing from UL or other nationally recognized testing laboratory, they may then seek from the petitioner a lifting of the Cease and Desist Order. A mere application for UL approval does not justify the temporary lifting of the Cease and Desist Order pending such final approval.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Cease and Desist Order be entered prohibiting respondents from selling, offering for sale or giving fire extinguishers in Florida until such time as respondents demonstrate that their fire extinguishers have been approved or listed by a nationally recognized testing laboratory and that the serial number is permanently stamped or affixed to the extinguisher shell.

Respectfully submitted and entered this 24th day of January, 1983, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983.

COPIES FURNISHED:

Honorable Bill Gunter State Fire Marshal The Capitol

Tallahassee, Florida 32301

Gabriel Mazzeo, Esquire Department of Insurance 413-B Larson Building

Tallahassee, Florida 32301

Anthony J. LaSpada, Esquire Barnett Bank Building

Suite 500

1000 North Ashley Drive Tampa, Florida 33602

Docket for Case No: 82-002565

Orders for Case No: 82-002565