STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OFFICE OF TREASURER, INSURANCE ) COMMISSIONER, STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1093

) CHARLES R. AMARA d/b/a BARON FUN ) FRITE'S CASTLE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Daytona Beach, Florida, on August 27, 1980, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Daniel Y. Sumner, Esquire

Office of Treasurer and Insurance Commissioner 428-A Larson Building

Tallahassee, Florida 32301

For Respondent: Richard R. Cook, Esquire

213 Silver Beach Avenue Daytona Beach, Florida 32018

ISSUE

Respondent's alleged violations of safety regulations, as set forth in Notice and Order to Show Cause, dated May 14, 1980.

At the commencement of the hearing, the Hearing Officer granted Petitioner's Motion for Leave to Amend its complaint to substitute Baron Fun Frite's Castle, Inc. as Respondent in this proceeding, and to replace references to Charles Amara as an individual to Charles Amara as an officer of Baron Fun Frite's Castle, Inc.

FINDINGS OF FACT

1. Respondent Baron Fun Frite's Castle, Inc. is a Florida corporation which operates an amusement business at 1100 Main Street, Daytona Beach, Florida. The business is conducted in a two-story building owned by Amara Hotel, Inc. Charles R. Amara is the president of both corporations. The facility is operated as a "fun house" where customers pay an admission to walk through the premises in a period of ten to twenty minutes. There is approximately 1,000 square feet of space in the building with three exits,

   including an outside fire exit on the south side. The walls and ceilings of the interior of the building consist of sheetrock over which has been sprayed a polyurethane foam material manufactured by Chemetics Systems, Inc., with a tradename of CSI-9l52 Spray. The foam material is coated with an intumescent latex paint coating manufactured by United Paint Manufacturing, Inc. with a tradename of Thermogard. Although the building can accommodate between 50 to 55 persons in the period of one hour, it has never been occupied by more than 43 customers within that period in the past. (Testimony of Nelson, Amara, Stipulation, Respondent's Exhibit 1)

   
   

2. On March 4, 1980, Petitioner's Regional State Fire Protection Specialist John R. Nelson inspected Respondent's premises pursuant to a request of the fire department of the City of Daytona Beach. Nelson determined that the building was a "place of assembly" which conferred jurisdiction under Petitioner's rules to enforce fire regulations, based on the building's occupant load of 150 persons as assigned by the City of Daytona Beach. A number of alleged deficiencies were discovered as to which Respondent was advised in a letter from Nelson dated March 10, 1980. The letter and accompanying inspection report required that corrective action be taken by April 7, 1980. Although the letter stated that the items noted were in violation of "Florida Statutes and/or the State Fire Marshal's Rules and Regulations," and that specific references would be provided upon request, neither the letter or the report specified statutes or rules alleged to have been violated. On May 5, 1980, Nelson conducted a re-inspection and found that three violations had not been corrected. Thereafter, on May 14, 1980, Petitioner filed its Notice and Order to Show Cause which constitutes the complaint in this proceeding. On June 11, 1980, Respondent requested a hearing under Chapter 120, Florida Statutes. (Testimony of Nelson, Case Pleadings, Petitioner's Exhibit 1)

   
   

3. The rear fire stairs of Respondent's facility on the exterior of the building provide headroom at a landing of six feet two inches. Petitioner's inspector found that such clearance was insufficient under pertinent regulations and could block the exit during an emergency, thereby creating a possibility of crowd panic and consequent danger to public safety. The stairs presently extend out from the building over property owned by the City of Daytona Beach and therefore was the subject of a variance from the City Fire Code when constructed. Although there are two other exits from the building, the rear fire stairs are required in order that the maximum travel from any point inside the building to an exit will net exceed 150 feet. (Testimony of Nelson, Amara, Petitioner's Exhibit 1)

   
   

4. The inspection also disclosed that the maintenance and air conditioning rooms of the building had openings in the walls and ceiling which would allow smoke, fire, and toxic gases to spread in the event of a fire. These consisted of openings in duct work and electrical outlets. Respondent testified at the hearing that the openings have been covered since the date of re-inspection. (Testimony of Nelson, Amara, Petitioner's Exhibit 1)

   
   

5. The urethane foam product on the walls and ceilings of Respondent' s building is recommended for use by the manufacturer whenever maximum insulation and flammable standards are required. It is safe when used as a "sandwich" material between the interior and exterior materials such as gypsum board or fir wood material. However, if it is exposed on the surface, it is highly flammable and combustible, and subject to rapid vertical spread of fire. At certain temperatures, hydrogen cyanide and carbon monoxide gases would be released. Intumescent paint such as Thermogard will not provide a 15 minute thermal barrier because the foam material will expand and swell when afire and the flame

   will cause an expansion which in turn causes the paint covering to pop off. The foam material can be adequately protected by spraying with a cement plaster material which will form a hard surface to prevent the formation of gas. At the time the foam material was placed on the interior of the building, it was inspected and approved by the City of Daytona Beach as meeting its existing fire code. The existence of the polyurethane foam material was the subject of one of the violations of applicable law found by Petitioner during its inspection of the premises in March 1980. (Testimony of Nelson, Hogan, Folsom, Petitioner's Exhibit 1, Respondent's Exhibit 1, Respondent's Exhibit 2)

   
   

   CONCLUSIONS OF LAW

   
   

6. Petitioner seeks to issue a Cease and Desist Order against Respondent under Section 633.161, Florida Statutes, for three alleged violations of its Rule 4A-27.13, Florida Administrative Code, which adopts by reference the standards of the National Fire Protection Association (NFPA) No. 101, Life Safety Code (1976). Section 633.05(1), F.E., requires Petitioner to promulgate rules for the prevention of fires, regulation of fire escapes and adequacy of exits. Respondent contests Petitioner's jurisdiction under Chapter 4A-27 which contains rules governing fire prevention at "places of assembly." Rule 4A- 27.01(2) defines "places of assembly" as a room or space used for assembly as defined in the NFPA Life Safety Code and states that such places "shall include but are not limited to, all buildings or portions of buildings used for gathering together 50 or more persons for such purposes as deliberation, worship, entertainment, dining, amusement, or awaiting transportation." The rule simply quotes the definition used in Section 8-1.2 of the Life Safety Code. Respondent contends that since its premises have never been used by 50 or more persons at one time, it is not included within the regulatory definition. However, Respondent conceded at the hearing that the building could accommodate

   50 to 55 persons in a period of one hour. Further, the Fire Safety Code in Section 8-1.5.1 establishes an occupant load permitted in any assembly building by dividing the net floor space by a specified number of square feet per occupant in various types of buildings. It is considered that Respondent's establishment falls most closely within the type of building described in Section 8.1.5.1(b) as an exhibit room "which permits 15 square feet per person. Since the establishment contains approximately 1,000 square feet, the occupant load would be at least 50 persons. In addition, it has been assigned an occupant load of 150 persons by the City. Accordingly, it is considered that the building qualifies as a place of assembly under the jurisdiction of Petitioner.

   
   

7. Section 633.081, F.S., provides that whenever the State Fire Marshal or his agents, as a result of an inspection, find that a building within their jurisdiction is especially liable to fire, lacks sufficient fire escapes, or contains combustible or explosive matter or flammable conditions dangerous to the safety of life or property, they may order the same removed or remedied within a reasonable length of time.

   
   

8. Count 1 of Petitioner's Notice and Order to Show Cause alleges that Respondent's structure does not meet the Class A or B interior finish requirements for a place of public assembly under Section 6-2.1.3 of the Life Safety Code. That provision prohibits the use of cellular or foam plastic materials as an interior finish except on the basis of fire tests substantiating that their combustibility characteristics are sufficient for the use intended during actual fire conditions or when used for trim. "Interior finish" is defined in Section 6-2.1.1 as the exposed interior surfaces of buildings such as walls and ceilings. Neither of these exceptions apply in this case because fire

   tests were not established by Respondent nor was the material used only for trim. The evidence establishes that the interior walls and ceilings of Respondent's building are covered by the prohibited foam material and are not adequately protected by the intumescent paint which was placed over the foam.

   It is therefore concluded that Respondent is in violation of the specified rule.

   
   

9. The second count alleges that the rear fire escape stairs of Respondent's building do not comply with the requirements of Section 5.2.2.1.2 of the Life Safety Code. However, this provision governs the classifications and minimum dimensions of interior stairs and does not purport to govern exterior stairs such as the ones in question. Although the required dimensions may be the same as to exterior stairs, there has been no showing by Petitioner that such is the case. It therefore must be concluded that Petitioner has failed to establish a violation of the specified regulatory provision.

   
   

10. Petitioner`s third count states that Respondent has violated Section 6-5 and 6-6 of the Life Safety Code in that there are openings in the ceilings and walls of the maintenance and air conditioning rooms which do not provide proper fire resisting protection. The specific provisions of those sections alleged to have been violated have not been cited by Petitioner. Respondent does not dispute the prior existence of these violations, but has corrected the same. No countervailing evidence was presented end therefore it is concluded that no further need exists for corrective action.

    
    

11. Post-hearing submissions by counsel for the parties have been fully considered and those portions thereof that have not been adopted herein are considered to be either unnecessary, irrelevant, or unwarranted in fact or law.

RECOMMENDATION

That Petitioner issue an order to Respondent directing that it cease and desist within 30 days from continued violation of Section 6-2.1.3 of the National Fire Protection Association No. 101 Life Safety Code (1976) , pursuant to Rule 4A-27.13, Florida Administrative Code and Section 633.161, Florida Statutes.

DONE and ENTERED this 18th day of September, 1980, in Tallahassee,

Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

COPIES FURNISHED:

Daniel Y. Sumner, Esquire Office of Treasurer and

Insurance Commissioner 428-A Larson Building Tallahassee, Florida 32301

Richard R. Cook, Esquire

213 Silver Beach Avenue Daytona Beach, Florida 32018

Docket for Case No: 80-001093

Orders for Case No: 80-001093