STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1817

)

NORMAN J. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned cause on June 5, 1991.

APPEARANCES

For Petitioner: Lisa S. Santucci, Esquire

Department of Insurance and Treasurer

412 Larson Building

Tallahassee, Florida 32399-0300

For Respondent: Zala L. Forizs, Esquire

Blasingam, Forizs & Smiljanich, P.A.

P.O. Box 1259

St. Petersburg, Florida 33731 STATEMENT OF THE ISSUE

Whether Respondent's license as an Installer A-Installation, Service and Repair of LP Gas Appliances and Equipment should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.

PRELIMINARY STATEMENT

By an administrative complaint dated March 8, 1991 and filed with the Division of Administrative Hearings on March 22, 1991, the Petitioner, Department of Insurance and Treasurer (Department) seeks to revoke, suspend or otherwise discipline the Respondent's license as an Installer A-Installation, Service and Repair of LP Gas Appliances and Equipment. As grounds therefor, it is alleged that the Respondent turned on the gas service at the premises of Steven and Debra Fernaays in St. Petersburg, Florida without checking for leakage or performing the gas system pressure test in violation of NFPS 54- 4.2.1, and NFPA 54.4.2.2, 1988 edition duly adopted in Rule 4B-1, Florida Administrative Code, pursuant to Chapter 527, Florida Statutes. The Respondent filed an Answer to Administrative Complaint and Request For Formal Proceeding to Contest Action by Department of Insurance, and this proceeding ensued.

At the hearing the Department presented the testimony of Edgar Martin.

Department's composite exhibit 1 was received into evidence. Respondent testified on his own behalf and presented the testimony of Roger L. Owens. Respondent's exhibits 1 and 2 were received into evidence.

A transcript of this proceeding was filed with the Division of Administrative Hearings on June 25, 1991. By motion unopposed by the Department, the Respondent requested additional time to submit proposed findings of fact and conclusions of law. By order, the parties were granted additional time, and the time constraints imposed by Rule 28-5.402, Florida Administrative Code, were waived in accordance with Rule 22I-6.031(2), Florida Administrative Code. The parties timely filed their proposed findings of facts and conclusions of law under the extended time frame. A ruling on each proposed finding of fact has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times material to this proceeding, the Respondent was licensed as an Installer A-Installation, Service and Repair of LP Gas Appliances and Equipment in the state of Florida.

   
   

2. At all times material to this proceeding, Respondent was an Independent Contractor working for Peoples Gas Systems, Inc. (Peoples Gas) pursuant to an Agreement For Contracted Work dated April 16, 1990, executed by the Respondent and Peoples Gas on May 9, 1990. Under this agreement the work to be performed by the Respondent, among other things, was to turn on gas for customers of Peoples Gas using procedures found in Peoples Gas Safe Job Procedure Manual.

   
   

3. On January 31, 1991 in accordance with the above referenced agreement, and pursuant to a written work order from Peoples Gas, Respondent proceeded to the residence of Steven J. and Debra J. Fernaays, Jr. located at 4336 20th Street, St. Petersburg, Florida for the purpose of conducting a Liquefied Petroleum Gas (LP Gas) service which consisted of turning the gas on at the residence. The gas had been turned off by Peoples Gas in August 1990 at the request of the previous owners.

   
   

4. Upon arriving at the Fernaays' residence at 2:15 p.m. the Respondent:

   (a) determined what gas appliances were in the home; (b) determined that all gas valves to the stove burners and oven were closed and that the stove had no pilot lights (stove had electronic ignition); (c) determined that the gas valve to the water heater was closed; (d) determined that the main valve on the outside tank was closed (at this point it was discovered that there was no test-tee located in back of the regulator for use in performing the manometer test); (e) loosened the nut on the first coupling to the rear of the regulator to remove the bonnet (a bonnet is a plug-like device used to prevent gas from escaping a tank after a "turn-off"). There was no bonnet in place so the nut was retightened on the coupling; (f) turned on the gas by opening the main valve and heard the system "lock-up", but did not hear the regulator "singing" (which indicates that the system is filled with gas and there are no noticeable gas leaks in the system);

   (g) attempted to light the burners on the stove but could not because there was no gas getting to the stove, so the stove burners were turned off and the main valve at the tank was turned off; (h) followed the gas line from the tank

   checking each coupling until the bonnet was located and removed, retightened all couplings that had been loosened; (i) turned the gas back on at the tank, heard the system "lock-up" but did not hear the regulator singing. Checked all couplings around the tank, those on the lines going to the house and inside the house up to the water heater for leaks with soapy water but no leaks were found;

   (j) lit the pilot light and main burner on water heater and found the flame height and color to be normal which indicated proper gas pressure at water heater; (k) checked the balance of fittings inside the house that were visible for leaks with soapy water but found no leaks; (l) lit all stove burners and oven and found flame height and color to be normal which indicated proper gas pressure at the stove; (m) advised Debra Fernaays, who was present in the house during the "turn-on", that the control knob on the oven valve was missing and that she should not use oven until it was replaced. Also, brought Debra Fernaays' attention to the odor of the gas that had escaped while purging the lines of air so she could recognize the odor of the gas in the event of a leak and; (n) went outside to write ticket. After clearing nose of gas odor came back in the house to make a "sniff-test" but did not detect any odor of gas. The Respondent then left the Fernaays' residence at approximately 3:00 p.m.

   
   

5. Within a few minutes (4-5) of leaving the Fernaays' residence, Respondent contacted Peoples Gas to advise the service department that he had not performed the water manometer test on the gas system at the Fernaays residence because there was no test tee. Respondent was placed on hold and because the telephone was not covered and there was a hard rain, he hung-up. Respondent then proceeded to find another telephone out of the rain which took approximately 20-30 minutes. This time Respondent was put through to Robert Louth, Service Manager Supervisor thereupon Respondent explained what he had done to check the gas system at the Fernaays but had not performed the water manometer test because of the missing test-tee, and asked for instructions. Louth advised Respondent that the matter would be taken care of the next morning.

   
   

6. The telephone conversation between Louth and Respondent occurred at approximately 3:30 p.m. on January 31, 1991 and at approximately 6:30 p.m. that same day the Fernaays' residence was destroyed by an explosion as a result of gas leaking from the system and being ignited. The Fernaays were in the home at the time of the explosion and both suffered burns to their bodies as a result of the explosion.

   
   

7. The Respondent always carried two manometers in his service truck and had those manometers with him when he arrived at the Fernaays' residence on January 31, 1991 but because the type work Respondent had contracted for with Peoples Gas did not require him to carry extra fittings, such as a test tee, he did not have a test tee with him on that day.

   
   

8. This was the first instance that Respondent could remember where he did not perform a manometer test in connection with numerous turn-ons for Peoples Gas.

   
   

9. The procedures used by the Respondent in turning on the gas at the Fernaays's residence on January 31, 1991 was in accordance with the Peoples Gas Safe Job Procedural Manual.

   
   

10. The method used by the Respondent to check for gas leaks in the Fernaays' gas system is not as accurate as the manometer test for testing a gas system for gas leaks, particularly where small or minor leaks are concerned. However, the Respondent's method is an acceptable and appropriate method that is

    acceptable within the industry just as the test described in Appendix D, b.(2), Suggested Method For Checking Leakage, of NFPA No. 54, 1988 edition adopted by Rule 4B-1.001, Florida Administrative Code, and incorporated by reference in Rule 4B-1.023, Florida Administrative Code, which is also not as accurate as the manometer test described in Appendix D, b.(1), NFPA No. 54, 1988 edition where there may be small or minor leaks but it is a suggested method under the rule for checking gas leakage.

    
    

11. During the evening of January 31, 1991 after the explosion and again during the day of February 1, 1991, Martin Brett employed by the Department as an LP Gas Inspector, several employees from Peoples Gas (Department has filed an Administrative Complaint against Peoples Gas in this matter) and Bill Buckley, owner S.E.A., Inc. were involved in rummaging through the debris at the site of the Fernaays' residence and extracting the different parts of Fernaays' gas system, particularly the piping, which was ultimately delivered to the S.E.A. warehouse by either S.E.A. or Peoples Gas. After delivery of the pipe to the

    S.E.A. warehouse, S.E.A. attempted to reconstruct the configuration of the pipe lines as they existed before the explosion. Under this reconstructed configuration there was a gas pipe line of approximately 1/2 inch in diameter that terminated in either the closet or in the ceiling of the area around the closet that was not capped. It was the Department's contention, based on the reconstructed configuration, that this pipe was uncapped at the time of turn-on by Respondent and that it was the gas leaking from this uncapped line that eventually ignited and destroyed the Fernaays' home.

    
    

12. There was insufficient evidence to show that Brett or anyone from the Department exercised any control over the removal, transporting, storing or reconstruction of the configuration of the pipe.

    
    

13. Neither Bill Buckley as an individual or as the owner of S.E.A. nor the employees of Peoples Gas were working for the Department in regard to removing, transporting, storing or reconstructing the pipe.

    
    

14. None of the employees of Peoples Gas, Bill Buckley or Martin Brett testified at the hearing in regard to the removal, transporting, storing or reconstructing the pipe. The only witness called by the Department to testify was Edgar Lee Martin, Jr., employed by the Department as an LP Gas Inspector/Supervisor, who did not become involved in the investigation until February 5, 1991, which was after the removal, transporting, storing and reconstruction of the pipe had been completed.

    
    

15. Martin relied solely on what he heard from Brett and Buckley in reaching the conclusion that there was an uncapped gas line pipe in the Fernaays' gas system on January 31, 1991 at the time of the turn-on, and it was gas leaking from the uncapped pipe that ignited and destroyed the Fernaays' home.

    
    

16. Roger Owens, the Respondent's expert witness in the area of analysis of explosions caused by gas, opined that assuming there was a "lock-up" of the system and no singing of the regulator after the "lock-up" at the time Respondent turned on the gas at the Fernaays on January 31, 1991 and that the flames were of proper height when the stove burners and water heater were lit, there could not have been such a significant leak (open pipe 1/2 inch diameter) at the time of the turn-on by Respondents as alleged by the Department.

    
    

17. There was insufficient evidence to show that the configuration of the gas lines as reconstructed by S.E.A., Inc. was of the same configuration as

    existed in the Fernaays' gas system on January 31, 1991 at the time Respondent turned on the gas at the Fernaays' residence. Likewise, there was insufficient evidence to show that there were any fittings within the gas line configuration as existed in the Fernaays gas system on January 31, 1991 that Respondent failed to check for leaks.

    
    

18. There was insufficient evidence to show that there was an open fitting in the Fernaays' gas system at the time Respondent turned on the gas on January 31, 1991 as indicated by the reconstructed configuration of the gas lines by S.E.A., and as alleged by the Department. The uncontroverted testimony of Respondent that when he turned the gas on for the second and last time he heard the system "lock-up", and although close enough to hear the regulator "sing", did not hear the regulator sing is credible. This testimony along with the testimony of Roger Owens supports the position that there was no leaks in the system at the time Respondent turned the gas on at the Fernaays' residence on January 31, 1991, and specifically no open fitting of approximately 1/2 inch in diameter in the system as alleged by the Department.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

20. Section 527.13, Florida Statutes empowers the Department to impose an administrative fine or suspend or revoke the license of any person who violates any provision of Chapter 527, Florida Statutes, or any rule adopted pursuant thereto or a cease and desist order. Likewise, Section 527.14, Florida Statutes, empowers the Department to revoke or suspend the license of any person licensed under the provision of Section 527.02., Florida Statutes, for violating any provision of Chapter 527, Florida Statutes, or any rule adopted pursuant thereto or a cease and desist order.

    
    

21. The Administrative Complaint charges the Respondent with violating the provisions Sections 4.2.1, 4.2.2 and 4.2.3 of NFPA No. 54, 1988 edition, and Section 1.6.1 of NFPA No. 58, 1989 edition, adopted by Rule 4B-1.001, Florida Administrative Code, and incorporated by reference in Rule 4B-1.023, Florida Administrative Code, which provides as follows:

    
    

    1. System and Equipment Check.

       1. Before Turning Gas On: Before gas is introduced into a system of new gas piping, or back into an existing system after being shut off, the entire system shall be checked to determine that there are no open fittings or ends and that all manual valves at outlets on equipment are closed and all unused valves at outlets are closed and plugged or capped.

       2. Check for Leakage: Immediately after turning on the gas, the piping system shall be checked to ascertain that no gas is escaping. (See Appendix D for suggested method.)

       3. Placing Equipment in Operation: Gas utilization equipment may be placed in operation after the piping system has been

    tested and determined to be free of leakage and purged in accordance with 4.3.2.

    
    

22. Rule 4B-1.029, (1)(a) and (b), Florida Administrative Code, provides as follows:

    
    

    1. All licensed suppliers of LP gas shall:

       1. Identify those accounts where stationary, company-owned tanks with a 100 gallon or more container capacity have been inactive for a period of 12 months, and within

          60 days, initiate appropriate container abandonment procedures pursuant to Section 3-2.3.8(h) of NFPA 58. Alternatively, licensed suppliers may provide for the safe removal of the container or containers, install a suitable mechanical device that prevents the system from being activated or

          have a pressure leak safety check pursuant to Appendix D of NFPA 54 performed every 12 months. The supplier shall provide reasonable notice to the customer prior to initiating such procedures. (e.s.)

       2. In the event an account is reactivated, the supplier shall perform an appropriate pressure leak safety check. Each supplier shall maintain records of such inactive accounts suitable for inspection by the Department. (e.s.)

       
       

23. In disciplinary proceedings, the burden is upon the regulation agency to establish facts upon which its allegations of misconduct are based by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 293 (Fla. 1987). The Department has failed to sustain its burden of proof in regard to the charges made in the administrative complaint. First, the manometer test is only one of two tests suggested in Appendix D to NFPA No. 54, 1988 edition for use in checking gas leakage in a gas system not using a meter that is being reactivated after a period of inactivity. Section 4.2.2., NFPA No. 54, 1988 edition, does not mandate or require, only suggests that a manometer test be performed to determine if there is gas leakage in a gas system that is being activated after a period of inactivity; nor does that section preclude any other appropriate test that is acceptable within the industry being used in checking for gas leakage in a gas system that is being activated after a period of inactivity. Secondly, unlike Rule 4B-1.029(1)(a), Florida Administrative Code where a limited number of alternative methods are allowed for handling tanks after the system has been inactive for a period of 12 months, Rule 4B-1.029(1)(b), Florida Administrative Code, requires only that an appropriate pressure leak safety test be performed when the system is reactivated, and does not prescribe any specific test, such as a manometer test, be performed at that time. The facts in this case clearly establishes that Respondent did not violate Section 4.2.1, 4.2.2 or 4.2.3, NFPA No. 54, 1988 edition, or Section 1.61, NFPA No. 58, 1989 edition, or Rule 4B-1.029, Florida Administrative Code or Chapter 527, Florida Statutes.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, it

is

RECOMMENDED:

That the Department enter a Final Order dismissing the administrative

complaint against the Respondent, Norman J. Smith.

DONE and ENTERED this 26th day of August, 1991, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1991.

APPENDIX TO RECOMMENDED ORDER

The following contributes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

Rulings on Proposed Finding of Fact Submitted by the Petitioner

1. Adopted in Finding of Fact 1.

   
   

2. Adopted in substance in Finding of Fact 3.

   
   

3. Other than that the Respondent did not perform a manometer test which is adopted in Findings of Fact 5 and 8, proposed finding of fact 3 is rejected as not being supported by substantial competent evidence in the record.

   
   

4. Adopted in Findings of Fact 4 and 8.

   
   

5. Adopted in substance in Finding of Fact 6 except for that portion concerning an "uncapped pipe" which is rejected as not being supported by substantial competent evidence is the record.

   
   

6. Not stated as a finding of fact but what the expert witness testified to, however, see Findings of Fact 4, 10 and 17.

   
   

7. Rejected as not being supported by substantial competent evidence in the record.

Rulings on Proposed Finding of Fact Submitted by the Respondent

Respondent's proposed finding of fact are set out in unnumbered paragraphs which shall be referred in this Appendix as numbers 1 through 19.

1. Covered in the Preliminary Statement, otherwise unnecessary as it goes to the credibility of the witness rather than being a finding of fact.

   
   

2. - 6. Adopted in substance in Findings of Fact 11, 12, 13, 14 and 15.

7. - 8. More of an argument than a finding of fact, otherwise subordinate, or unnecessary, or not material or relevant.

1. Adopted in substance in Findings of Fact 3, 7 and 8.

   
   

2. - 15. Adopted in substance in Finding of Fact 4.

16. - 17. Adopted in substance in Finding of Fact 5.

1. Not stated as a finding of fact by what Martin testified to, otherwise unnecessary or subordinate or not material or relevant.

   
   

2. Adopted in Finding of Fact 4.

COPIES FURNISHED:

Lisa S. Santucci, Esquire Department of Insurance and

Treasurer

412 Larson Building Tallahassee, FL 32399-0300

Zala L. Forizs, Esquire

Blasingam, Forizs & Smiljanich, P.A.

P.O. Box 1259

St. Petersburg, FL 33731

Tom Gallagher, State Treasurer and

Insurance Commissioner Department of Insurance and

Treasurer

The Capitol, Plaza Level Tallahassee, FL 32399-0300

Bill O'Neil, General Counsel Department of Insurance and

Treasurer

The Capitol, Plaza Level Tallahassee, FL 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 91-001817

Orders for Case No: 91-001817