& A.B.C. FIRE EXTINGUISHER ) MAINTENANCE & RICARDO CABRERA, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, Joyous D. Parrish, held a formal hearing in the above-styled case on October 8, 1996, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Joe Demember, Esquire
Division of Legal Services 612 Larson Building
Tallahassee, Florida 32399-0300
For Respondent: Ricardo Cabrera, pro se
3340 South Lake Drive Miami, Florida 33155
STATEMENT OF THE ISSUE
The central issue in this case is whether Respondents committed the violations alleged in the amended administrative complaint, and, if so, what penalty should be imposed.
PRELIMINARY STATEMENT
This case began on July 2, 1996, when the Department of Insurance and Treasurer (Department) issued an administrative complaint against the Respondents. The Respondents disputed the factual allegations on July 20, 1996, and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.
Thereafter, Petitioner's motion for leave to file an amended administrative complaint was granted. The amended administrative complaint filed on August 7, 1996 stands as the charging document in this cause.
Such complaint alleged Respondent, Ricardo Cabrera, had allowed an unqualified person to service, recharge, repair, test, or inspect fire extinguishers and had failed to supervise all activities undertaken by such
person. Further, the amended complaint alleged that such activity occurred while Respondent was on probation in violation of the conditions of same.
At the hearing, the Department presented the testimony of Terry Barrow, the safety program manager with the Department's regulatory licensing and statistics section; and Charles Brian Parks, an investigator with the Fire Marshal's Office. The Department's exhibit marked for identification as Petitioner's composite exhibit 1 was admitted into evidence. Respondent testified in his own behalf and presented the testimony of Carlos Javier Gonzalez-Clavell.
The transcript of the proceeding was filed on November 4, 1996. The parties filed proposed recommended orders, however, Respondent's was not timely. Petitioner's motion to strike the untimely proposed order is denied.
FINDINGS OF FACT
The Petitioner is the state agency charged with the responsibility of regulating fire extinguisher dealers.
Respondent, Ricardo Cabrera, holds a fire extinguisher permit class 03 license (No. 109176000192) and is the qualifier for the company, B.C. & A.B.C. Fire Extinguisher Maintenance (license No. 702193000190 - Fire Extinguisher Dealer Class "C").
At all times material to the amended administrative complaint, Carlos Javier Gonzalez-Clavell was employed by Respondent but was not licensed or permitted to service fire extinguishers.
In August, 1995, Respondents were placed on probation for a period of two (2) years.
A special condition of Respondents' probation required Ricardo Cabrera to supervise all activities undertaken by the company to insure its employees complied with all regulations.
In response to a complaint unrelated to the quality of Respondent's work performance, Ms. Barrow directed an investigation of the Respondent's business premises. Mr. Parks was assigned the investigation of whether Respondents were employing unlicensed workers to perform servicing or recharge of fire extinguishers.
On January 29, 1996, Mr. Parks went to Respondent's place of business and observed someone loading a vehicle with fire extinguisher equipment and supplies. He also observed the male near a tank which he presumed was nitrogen. He assumed the person was recharging a fire extinguisher. During the described activity Respondent was not in sight.
The person described in paragraph 7 later identified himself as Carlos Javier Gonzalez-Clavell. The vehicle being loaded belonged to Mr. Clavell.
Respondent was on the business premises at all times noted above. He was out of view but supervising Mr. Clavell's activities.
Mr. Clavell did not recharge fire extinguishers and was not permitted to perform license activities.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Petitioner bears the burden of proof to establish, by clear and convincing evidence, the allegations of this case. It has failed to meet that burden.
In Inquiry Concerning Davey, 645 So.2d 398 (Fla. 1994) the court addressed the clear and convincing evidence standard and held at 404:
...There must be more than a 'preponderance of the evidence,' but the proof need not be ' beyond and to the exclusion of a reasonable doubt.'
This intermediate level of proof entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.
[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. [Citations omitted]
In this case Petitioner has established that Respondents were on probation during the time of the investigation. While Mr. Clavell was unlicensed and employed by the company at that time he was not permitted to perform license activities. Mr. Cabrera's explanation of the events occurring on January 29, 1996 (the only date in issue) have been accepted. Thus, Petitioner has failed to establish, by clear and convincing evidence, the allegations.
