STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1936

)

RALPH J. HAMM, )

d/b/a W.F.P. COMPANY, INC. )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held pursuant to notice by Stephen F. Dean, Administrative Law Judge of the Division of Administrative Hearings, in Jacksonville, Florida, on March 18,1997.

APPEARANCES

For Petitioner: Marc S. Nash, Esquire and

Heidi Hughes, Esquire Division of Legal Services Department of Insurance and

State Fire Marshall 612 Larson Building

Tallahassee, Florida 32399-0300

For Respondent: M. Lee Fagan, Esquire

Helwig Fagan, P.A.

One San Jose Place, Suite 31 Jacksonville, Florida 32257

STATEMENT OF THE ISSUES

Whether the Respondent should have his fire sprinkler contractor license disciplined for violations of the statutes and rules as alleged by the Petitioner’s Second Administrative Complaint, and

Whether, if the Petitioner does not prove the allegations against the Respondent, the Respondent should recover his attorney’s fees and costs.

PRELIMINARY STATEMENT

On March 25, 1996, the Petitioner filed its original administrative complaint against the Respondent alleging numerous violations of code and statute while installing a wet sprinkler system at Tomoka Correctional Facility. The case was referred to the Division of Administrative Hearings on April 25, 1996.

On May 10, 1996, the Respondent filed a Motion to Dismiss

1. Company, Inc. as a party. On the same day, the case was set for hearing on August 14, 1996. On May 31, Petitioner filed a motion to amend the administrative complaint, which was granted, and on June 18, 1996, the Petitioner filed a motion for continuance, which was granted, and the hearing was rescheduled for September 20, 1996. Petitioner filed its First Amended Administrative Complaint on June 27, 1996, and on August 2, 1996, Petitioner filed its second motion for a continuance. This motion was granted and the case rescheduled for January 21, 1997. On December 26, 1996, Petitioner filed a motion to amend its First Amended Administrative Complaint, which after argument by the parties, was granted and the hearing rescheduled for March 18, 1997.

   Discovery was completed in early 1997, and the Respondent filed its response to the Second Amended Administrative Complaint

   on March 13, 1997. The hearing was held on March 18, 1997. The Respondent’s motion to dismiss W.F.P. Company, Inc. was granted at hearing after being argued by both parties.

   At the hearing, the Petitioner presented the testimony of Roger McDaniel, Victor Higgs, and John Mezzapella, and entered the deposition testimony of Gary West, Foy Hamm, and Charles Daimler into the record. The Petitioner’s exhibits 1,3- 5,6D,6E,6F,6Q,6R,7-18, 19A,19B, and 20-23 were received into the record at hearing. In addition, Petitioner introduced exhibits 1-3 in the Deposition of Gary West; exhibit 1 in the Deposition of Foy Hamm, and exhibits 1 and 2 of the Deposition of Charles

   Daimler. Two exhibits were identified and marked in Respondent’s case, neither of which was received into evidence.

   The record was held open at the conclusion of the hearing to permit the filing of deposition testimony. Because of delays in preparation of prehearing depositions, the parties’ post hearing briefs were delayed. By agreement of the parties, the parties filed their proposed findings on April 24, 1997, which were read and considered.

   FINDINGS OF FACT

   
   

   1. The Department of Insurance and State Fire Marshall is charged with the licensure and regulation of fire protection system contractors.

   2. Ralph Hamm is now and was at all times relative to this case a certified fire protection system contractor holding

      certificate number 437539000188. Ralph Hamm is the president of

      
      

      W.F.P. Company, Inc. (WFP). As the certified contractor, he is responsible for the work done by the company. The Petitioner may discipline his license for violation of the code and statutes; however, the Petitioner does not license and has no jurisdiction over the company.

   3. The Department of Correction (DOC) let bids to install fire sprinkler systems in several of its facilities. WFP won several of these bids. These bids called for the design and installation of the systems based upon drawings of the facilities provided by DOC. The drawings accompanying the bid for Tomoka Correctional Institution (Tomoka) were incorrect, showing a structure similar to the Marion Correctional Institution, a job on which WFP had been the successful bidder.

   4. Tomoka’s maintenance and construction superintendent upon seeing the drawings prior to the receipt of bids, advised DOC’s project manager of the discrepancy in the drawings. The project manager acknowledged the problem, but advised that the bid would be published. It was the superintendent’s understanding that the contractor that won the bid would be permitted to build the system to fit the actual structure, and thereafter the work memorialized in “as built” drawings.

   5. This process was misleading to a bidder who accepted the drawings as accurate knowing that the Department had several prototype building designs which it replicated at its

      institutions based upon the nature of the facilities and topography.

   6. WFP, which had already designed a system for an identical building, could anticipate reusing its previous design, saving design costs, and presenting a lower bid. WFP won the contract.

   7. The record reveals that during the course of construction at Tomoka additional changes were made to include sprinkling rooms not originally indicated as being protected, altering the height of the pipes, changing the nature of the sprinkler heads from standard to institutional, and from hanging down (pendent) to being upright.

   8. NFPA 13, 1991 Edition, (NFPA) was the standard for the installation of the Tomoka sprinkler system. The bid for the Tomoka job called for all labor, materials, supervision equipment, services equipment, design and installation to comply with NFPA 13.

   9. In October 1995, Mr. Victor Higgs, a fire safety inspector with the State Fire Marshall’s Office (SFMO) with experience in general fire safety inspections, inspected Dorm B and Dorm E on the Tomoka job at the request of WFP during construction. Following his inspection, Higgs wrote a report finding essentially the same conditions in both dorms.

   10. Higgs found that the sprinkler installation was not in accordance with the on-hand drawings which had been approved by

       the SFMO; that hydraulic requirements for the systems as installed had not been recalculated; that there were no test certificates for the hydrostatic pressure of the above ground or below ground piping; that there was no indication of the type of sprinkler head to be used in the halls; and that smoke barriers had not been re-established where the pipes penetrated walls between areas.

   11. Of the observations made by Higgs, only the failure to re-establish the smoke barriers constituted a life threatening hazard prior to the conclusion of the job. The other conditions may have indicated an incomplete system, but did not increase the threat of fire. His other findings related to and were the result of having to do large portions of the job by change order.

   12. Higgs notified Ralph Hamm of his findings in October 1995.

   13. Subsequently, a conflict arose between the SFMO and WFP about the metal clamps being used by WFP to hold the pipe up against the ceilings and walls of the job. The personnel of the SFM advised WFP that the clamps were not to NFPA standard. The NFPA lists a number of approved clamps which a contractor may use or the contractor may use a clamp that has been tested and shown to hold five times the weight of the pipe with water in it plus

       250 pounds.

       
       

   14. WFP asserted that the clamps it was using met the latter standard, but the SFM personnel wanted evidence of the

       testing. WFP wrote several letters regarding the clamps, but did not provide evidence of testing until after the administrative complaint was filed. In the meantime, WFP had replaced all of the clamps with a clamp listed in the NFPA, a Grinnel 262 pipe clamp, prior to the final approval of the job by the SFM.

   15. The test of the clamp originally used was conducted in accord with the standards provided to WFP’s engineer by Underwriter’s Laboratories, and showed that the clamp originally used met the strength requirements of the NFPA. A video of the test conducted by Foy Hamm was made and reviewed which shows the clamp holding a weight exceeding the NFPA standard.

   16. A conflict appears in the deposition testimony of WFP’s engineer, Gary West, regarding whether the clamp tested was the one originally used or the Grinnel 262. Foy Hamm, who conducted the test, testified that the clamp tested was the clamp WFP had originally used, and was not a Grinnel 262. The video was reviewed, and the clamp appears to be identical to those introduced at hearing and identified as clamps originally used by WFP.

   17. The test establishes that the original clamps met the NFPA standard when they were installed.

   18. Mezzapella, a fire safety inspector from SFMO, testified about as-built drawings, and stated that they had not approved by the SFMO. According to Mezzapella, as-built drawings

       are prepared by a contractor, approved by the SFMO and delivered to an owner who maintains them as a historical record.

   19. Gary West also testified about the procedure for approving as-built drawings of a job and re-certification of the drawings after changes have been made. The as-builts are not approved by the SFMO. Upon completion of the construction phase of the job, the as-built drawings are reviewed by the engineer, who makes new calculations as necessary, recommendations as necessary, and certifies the plans.

   20. Another of the alleged violations committed by WFP was failing to provide for drains in sections of the pipe installed that were lower than rest of the pipe. This condition resulted from DOC’s request that the height of the pipe be raised in the halls to prevent inmates from grabbing the pipes and swinging on them. As a result, in other places, such as the dayroom where the pipe had to be run under a major structural element of the building, the lower run of pipe would trap water.

   21. The NFPA provides that if more than five gallons of water can be trapped in such a low area, a drain must be provided; however, a pendent head may serve as such a drain.

   22. Ralph Hamm, the Respondent, drained the water in the dayroom area that was trapped, and it contained less than five gallons.

       CONCLUSIONS OF LAW

       
       

   23. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, pursuant to Chapter 633 and Section 120.57(1), Florida Statutes (Supp. 1996).

   24. The burden of proof in this case is on the Petitioner to show that the Respondent, Ralph Hamm, committed the violations alleged in the Second Amended Administrative Complaint by clear and convincing evidence.

   25. The Petitioner’s three count Second Amended Administrative Complaint alleges that Ralph Hamm violated Sections 633.085(3), 633.539(1), 633.539(2), 633.547(2)(a), 633.547(2)(g), Florida Statutes.

   26. Section 633.085(3), Florida Statutes, provides that all new construction or renovation of state owned or leased space shall comply with the uniform fire safety standards of the SFM.

   27. Section 633.539(1)(c), Florida Statutes, provides that fire safety equipment shall be installed in accordance with the standards of the NFPA and specifications of the manufacturer.

   28. Section 633.539(2), Florida Statutes, provides that fire safety equipment will be inspected, serviced, and maintained in accordance with the manufacturer’s procedures and the standards of the NFPA.

   29. Section 633.547(2)(a), Florida Statutes, provides that violation of any provision of Chapter 633, supra, is grounds for discipline.

   30. Section 633.547(2)(g), Florida Statutes, provides that improperly servicing, repairing, testing, or inspecting a fire protection, standpipe, or underground main water supply system is grounds for discipline.

   31. Section 633.065(3), Florida Statutes, provides that fire safety equipment shall be installed in accordance with the applicable standards of the NFPA.

   32. Rule 4A-46.035(1)(f), Florida Administrative Code, adopts NFPA as the standard for installation of fire sprinkler systems.

   33. The first count of the administrative complaint alleges that on January 17, 1996 the SFMO inspected the job and found that:

       1. The clamps used did not meet NFPA standards;

       2. Sprinkler heads that were exposed to damage were not protected;

       3. A supply of extra sprinkler heads and appropriate wrench were not on site;

       4. Fittings were not installed to permit drainage of the entire system;

       5. The work done was not consistent with the plans approved by the SFMO.

   34. The second count of the second administrative complaint alleged that on June 19, 1996 the SFMO inspected the job and found that:

       1. The plans reflected a double fire department connector; however, a single

          connector had been installed;

       2. The fire department connectors were at an inconvenient angle and restricted the attachment of a fire hose;

       3. The hangers used in the reception area of both dormitories were not U.L. listed or able to support the sprinkler piping; and

       4. The Contractors Material Test Certificate for the above ground and under ground piping was not completed properly.

   35. The third count of the second administrative complaint alleged that the SFMO inspected the job on July 17, 1996 and found that:

       1. The existing fire department connections are at an inconvenient angle and restricted attachment of a fire hose;

       2. The supply of extra sprinkler heads was not consistent with other sprinkler heads used throughout the dormitories;

       3. The sprinkler heads used throughout the building had temperature ratings which did not adhere to the NFPA; and

       4. The Contractors Material Test Certificate for the above ground and under ground piping were not completed properly.

   36. All three counts alleged specific reoccurring violations. These violations will be discussed beginning with those relating to the work not being consistent with the plans. The contract awarded to WFP pursuant to the bid process called for WFP to design and install a fire sprinkler system for a building shown in the plans accompanying the invitation to bid.

   37. These plans, as DOC was aware, did not accurately depict the build at Tomoka Correctional Institution. WFP was to do two things: design a sprinkler system for the building

       depicted in the plans and install a sprinkler system in the building at Tomoka Correctional System.

   38. The first task was easy because WFP had already designed a sprinkler system for a building identical to the one depicted in the plans provided with the invitation to bid. The second task was more difficult because the building at Tomoka was similar to, but not identical to the one depicted in the plans accompanying the invitation to bid.

   39. WFP did exactly what the bid called for, and designed and had approved by the SFMO a sprinkler system for the building depicted in the plans accompanying the bid. WFP then installed the fire sprinkler system in the building at Tomoka modifying the system as required to accomplish that part of the job. The plans for the job bid were on the site. Modifications to the plans were ultimately shown as “as-built” modifications to the approved plans prepared for the bid. These as-built drawings were re- certified by an engineer. While this is unusual, it is entirely consistent with what DOC did on this project.

   40. Section 6-1 of NFPA provides that plans shall be submitted and approved to the authority having jurisdiction before any equipment is installed or remodeled. Deviation for approved plans will require permission of the authority having jurisdiction.

   41. The Petitioner argues that the Respondent was obligated to have the plans “re-approved” before commencing construction;

       however, that is not a requirement of Section 6-1.1, which requires only that “permission” is required for deviations. No rule clarifying this provision has been cited. The SFMO is required to inspect the installation during construction. This process constitutes the approval of the as-built project and granting permission for the deviations.

   42. It also was suggested by Petitioner that the job, regardless of stage of completion, must be compliance with NFPA at all times, and that it is potentially life threatening to the building’s occupants if it is not. This argument and the testimony upon which it is based is rejected as not being credible. Before all the pipes and sprinkler heads are installed, the system cannot contain water under pressure and is not a workable system. A system under construction is not required to be in compliance with the NFPA at all times. The work on the system must comply with the applicable standards of the code; however, this is not the same as the system being in compliance at all times. Further, during construction, but prior to completion of a sprinkler system, there is no fire protection benefit from a system. Therefore, certain of the deficiencies that existed prior to completion of the system are no more life threatening than an unprotected building. Conversely, violations of the general fire safety codes during construction may create life-threatening dangers, and these codes must be adhered to

       during construction. There was one such violation regarding smoke barriers; however, it was corrected and not repeated.

   43. Another alleged reoccurring violation related to the clamps used by WFP to support the schedule 40 pipe used in the system. The clamps used originally were not one of the types specified in NFPA; however, there is an exception to the provisions of Section 2-6.1 which provides that hangers certified by a registered professional engineer to meet specific NFPA specifications shall be acceptable. The specifications which must be met are that the hangers support five times the weight of the water-filled pipe plus 250 pounds at the point of piping support, that the points of support be adequate to support the sprinkler system, and that the hangers be ferrous. The exception also provides that “Detailed calculations shall be submitted, when required by the reviewing authority, showing stresses developed both in the hangers and piping and the safety factors allowed.” This provision has not be clarified or amplified by the rules.

   44. The record reveals that ferrous hangers were substituted by WFP for a hanger listed in NFPA, and their use was called into question by the inspectors from the office of the SFM. SFMO requested data on "stress developed in hangers and piping and the safety factors allowed." In the correspondence that followed, WFP provided information to the SFM on the specifications of the Grinnel 262 hanger. Presumably as an

       approved hanger, the specifications on the Grinnel 262 would accurately state the “stresses developed in hangers and piping and the safety factors allowed.” WFP attempted to comply with the SFMO’s request; however, the on-going conflict over the specifications of the original hangers could not be resolved, and WFP replaced them with the Grinnel 262 hanger. The Grinnel 262 hangers were used on the job when it was approved.

   45. When the administrative complaint was filed citing the use of the hangers as not being within specifications, the Respondent had his professional engineer find out from Underwriter’s Laboratories the method it used in certifying hangers, and these methods were used by Foy Hamm to test one of the original hangers. The results of this test were recorded on videotape. The test reveals that hanger tested met the criteria stated in the NFPA. A conflict arose about which hanger was being tested. Based upon the testimony and evidence in the record, the hanger tested by Foy Hamm was the type originally used on the job.

   46. The allegations that the original clamp did not meet specifications were not proven. Contrary to the argument of Petitioner, once the specifications of the clamp were put at issue by the administrative complaint, the Respondent had the right to show that the clamps met specifications from the outset.

   47. Ralph Hamm admitted that he did not leave sprinkler heads and a wrench for them on the job until after it was

       completed. He explained that these items were frequently taken if left on the job prior to acceptance by the owner. The NFPA is not specific regarding when this requirement is imposed; however the requirement is only applicable to a completed job because, prior to the job’s approval and acceptance, it is not an approved fire safety system requiring maintenance. Prior to approval of the system, extra heads of the correct type were provided together with an appropriate wrench. There was no violation.

   48. Regarding the allegation that drains were not installed to drain areas of the system that trapped water, the test performed by Ralph Hamm showed that less than five gallons of water was trapped in the system, and therefore, the exception provided in the NFPA was applicable. There was no violation.

   49. Evidence was presented that pipe runs in the hallways were not straight. While there does not appear to be a specific allegation related to this identified in the administrative complaint, a review of the provisions of the NFPA relating to pipe does not reveal any requirement that the pipe runs be straight. The most applicable provision, 2-3.6 Pipe Bending, provides that “Schedule 40 steel pipe . . . shall be permitted when bends are made with no kinks, ripples, distortions, reductions in diameter, or any noticeable deviations from round.” There is no evidence that the pipe in question had kinks, ripples, distortions, reductions in diameter, or deviations from the round. There was no violation.

   50. The system designed by WFP required only one fire department hose connection. DOC asked that a double connector be installed. The location of the connectors, which could not be easily changed, did not permit convenient access to both of the inlet valves. WFP installed the connectors in such a manner that access to one of the valves was easy and convenient and access to the other was blocked.

   51. The SFMO determined upon inspection that the plans indicated a double connector, and that both valves would have to be accessible. WFP turned the connector in such a manner that both valves were accessible and this was approved as being within the letter of the law.

   52. This allegation also relates to Section 6-1.1, regarding SFMO approval of deviations from approved plans. WFP designed the system for a one-valve connector. It originally installed a one-valve connector, but DOC wanted a two-valve connector. This was installed after the fact, in an area in which both valves could not be accessed easily. WFP elected to put the valve in so that one of the two valves was very accessible. In doing this, WFP was providing what the owner wanted and meeting the rule’s requirement for accessibility. The SFMO required a difficult solution that reduced the accessibility to one of the valves, but permitted access to the other valve.

       In a situation in which only one valve was necessary, the

       positioning of the valve is a matter of choice, and WFP did not violate the intent of the rule.

   53. The correct sprinkler heads for sidewall installation had not been used; sprinkler heads of the proper temperature designation had not been used in the boiler rooms; and paper work for the material test certifications had not been properly completed. All of these deficiencies relating to the sprinkler heads were corrected and the appropriate sprinkler heads and guards installed in accordance with the plans and specifications prior to the job’s approval by the SFMO. However, the failure to install the correct heads was a violation of NFPA, and properly cited by the SFMO.

   54. The Petitioner did not provide evidence of the nature of the errors contained in the material test certification papers. Petitioner’s witnesses merely cited their reports finding that there were errors, but did not clarify the nature and extent of the errors. A review of the correspondence file reveals that the errors related to the write up of the failed pressurization tests. These error ultimately were corrected by the Respondent.

   55. In summary, the correspondence file that was introduced into evidence is the most informative portion of the evidence in this case. It reveals the real concern of the SFMO, which was the failure of the Respondent to move the project forward and correcting deficiencies while not creating additional

       deficiencies. This raised real concerns about the ability of the Respondent to manage the job. Unfortunately, this was not developed in the presentation at hearing which progressed in much the same manner and pace as the actual dispute. The record, as a whole, reveals that there were many problems on this job, some of which were not the result of decision by DOC to use the wrong plans in the bid. Rather than focusing on the management failures and the lack of competence of the Respondent, the dispute centered on the plans and the clamps.

   56. If the SFMO asserted that Section 6-1.1 required prior permission in the form of approved amended plans prior to installation of the system, the job should have been ordered halted until approved plans were obtained. Similarly, the Respondent should have been directed in writing to provide the engineer’s testing on the substituted clamps by a given date, or to use an approved clamp.

   57. The real life threatening fire safety issues such as the failure to restore the smoke barriers were not addressed in the administrative complaint; however, this serious condition reported by the inspectors did not reoccur and presumably was corrected.

   58. Given the development of the case, it appears DOC when it ran into a problem which it created, it sought and obtained the assistance of the SFMO to force the contractor to complete work on the job which, if the plans were not approved, should

       have been halted. The nature of many of the cited violations sustain this image because, although some of the deficiencies are substantive, all of them would have been brought into focus by an injunction halting work until an approved plan was obtained.

       Only the internal correspondence file reveals the underlying concern of the various inspectors about the competence of the Respondent and negate the appearance created by the overt findings in the various reports that one state agency was helping out another state agency.

   59. The Respondent violated provisions relating to the failure to use the correct sprinkler heads which are violations of NFPA, and Section 633.539(1)(c), Florida Statutes, on more than one occasion. The violations relating to using the wrong sprinkler heads is clearly a violation which was not the result of the wrong plans and is unlike having spare sprinkler heads.

   60. The Respondent requested attorneys fees. Although the Petitioner did not prove all the allegations, the Petitioner did show several substantive violations, as stated above. The motion for attorneys' fees is denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED:

That the Department enter a final order finding that the

Respondent violated Section 633.539(1)(c), Florida Statutes, and fine the Respondent $1,000 for each of the three reported violations proven plus cost not to exceed $1,000. Further, that the Respondent be required to attend continuing education courses on the NFPA, and be placed on probation for one year from the date of the completion of said courses. And, further Respondent is not entitled to attorney's fees and costs.

DONE and ENTERED this 6th day of June, 1997, in Tallahassee, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1997.

COPIES FURNISHED:

Marc S. Nash, Esquire Department of Insurance 612 Larson Building

Tallahassee, FL 32399-0333

M. Lee Fagan, Esquire Suite 31

One San Joe Place Jacksonville, FL 32257

Bill Nelson, State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, FL 32399-0300

Daniel Y. Sumner, General Counsel Department of Insurance

The Capitol, LL-26 Tallahassee, FL 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-001936

Orders for Case No: 96-001936