vs. ) CASE NO. 83-2890
Respondent. )
This matter came on for hearing before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on May 3, 1984. The Division of Administrative Hearings received the transcript of proceedings on May 31, 1984. The parties are represented by counsel:
By first amended administrative complaint petitioner alleges that respondent Son-Mar Propane, Inc., "at all times pertinent . . . operating under license #0156030178 as a Dealer in Liquefied Petroleum Gas. . . ," conducts business in Hudson, Florida on State Road 19; that "on or about March 17, 1983, Raymond and Loretta Towse" came to respondent to get a propane cylinder tank filled; that an employee of respondent "filled Raymond and Loretta Towses' propane cylinder tank and placed the cylinder tank in a horizontal position in the Towses' motor vehicle in violation of NFPA Number 58, Section 6116, 1979 Edition, adopted by Section 4B-1.01, Rules of the Department of Insurance, and Section 527.08, Florida Statutes"; that an employee of respondent "failed to securely fasten said tank in a position to minimize the possibility of movement, in violation of NFPA Number 58, Section 6115, 1979 [e]dition, adopted by Section 4E-1.01, Rules of the Department of Insurance and Section 527.08, Florida Statutes"; that "said propane cylinder tank #23860, manufactured in January, 1959, had not been recertified as required by NFPA Number 58, Section B-213-C, 1979 Edition, adopted by Section 4B-1.01, Rules of the Department of Insurance, and Section 527.08, Florida Statutes"; and that ignition "of propane gas from said tank resulted in an explosion and fire in the Towses' motor vehicle which resulted in the death of Loretta Towse."
Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Respondent's proposed findings of fact and conclusions of law and petitioner's proposed recommended order have been considered in preparation of the following findings of fact. Proposed findings of fact have been adopted for the most part, in substance, but they have been rejected when not supported by the weight of the evidence, immaterial, cumulative or subordinate.
At all pertinent times respondent Son-Mar Propane, Inc. operated as a liquefied petroleum gas dealer under license No. 0156030178 issued by petitioner.
Liquefied petroleum gas is stored under pressure. A gallon of the liquid expands to 270 gallons of vapor, at normal temperatures and pressures. Because it is so much denser, the liquid occupies the bottom of any space in which both liquid and vapor are confined. If a storage tank stands upright, and the valve is open or there is a leak at or near the valve (by far the most common place for leaks), vapor will escape. But, if the cylinder is on its side, the top-mounted valve is low enough that liquid can escape, immediately to expand as vapor to 270 times its volume as liquid. More fuel increases the risk of fire. The agent of ignition is unknown in the present case.
SAINT PATRICK'S DAY 1983
Raymond Towse is not a well man; fourteen surgical operations have taken their toll; and Loretta Towse was arthritic. On March 17, 1983, Mr. and Mrs. Towse discovered that there was no propane to cook breakfast with, so they put the empty tank into their customized, 1975 Dodge Tradesman 200 van. The tank, big enough to hold 239 pounds of water, stands 49 1/4 inches tall. Curtis Howard Jones, Jr., the next door neighbor who owned the tank and had made a loan of it to the Towses, regularly helped the Towses lift the tank, which weighed 71 pounds empty, into the van.
After getting something to eat at K-Mart, Mr. and Mrs. Towse drove to respondent's place of business. On their way inside, Mr. Towse asked John Dahlem to fill the cylinder tank with propane. Mr. Dahlem, who can handle these tanks single-handedly, even when they are full, retrieved the tank from the van, filled it with liquefied petroleum gas, and replaced the filled tank in the van. Only he and Mrs. Towse witnessed this replacement and she is no longer alive. Mrs. Towse went inside to look at a stereo cassette recorder they were considering purchasing, then returned to the van without it.
She climbed into the front seat on the passenger's side. Later she left the front seat of the van and moved, inside the vehicle, toward the cylinder tank. She may have heard gas escaping or seen liquid leaking. She may actually have reached the tank and turned the valve perhaps, inadvertently, the wrong way. When the explosion occurred, the tank lay horizontally across the bottom of the van, leaving only the carpet underneath to tell the color of the whole before the conflagration. A moan then a sigh, as Mrs. Towse breathed her last, followed the whoosh of the exploding fire, gasping for oxygen. The windshield and the skylight popped out. The frame buckled.
The Pasco County Fire Service arrived at two o'clock and put the fire out. The tank was red hot. The valve lacked a half turn being closed. Forty- nine and a half pounds of liquefied petroleum gas had escaped to be consumed by the fire. Full, the tank had weighed 171 pounds.
NO RECERTIFICATION
The propane cylinder tank involved was manufactured in January of 1959. Mr. Dahlem filled this tank, No. 23860, with propane at least four times in the last three and a half years. It had never been recertified, even though "NFPA requires recertification 12 years after date of manufacture" (T. 41) and periodically thereafter. Recertification contemplates at least a visual inspection for rust, dents and gouges in the cylinder, and soaping the welds and valve to determine whether there are any leaks. If the cylinder passes the test, "they mark it `E' for external, then the month and the year that they do the inspection. It's stamped right in the top of the cylinder." (T. 41)
NOT SECURED VERTICALLY
The Towses' neighbor, Mr. Jones, who used to help lay the tank on its side in the van, also saw it lying on its side, ready for unloading, after having been filled and driven back, on at least three occasions. The tank was too tall to be made to stand upright in the van, Mr. Jones believed. Whether the tank is too tall in fact was unclear from the evidence. Measurements of the van after the fire suggest there would not have been room enough, but the fire caused buckling of the van's roof and maybe other changes. Measurement of another Dodge van with different customizing suggest that there may have been room enough to stand the tank vertically, after all, perhaps with as much as an inch clearance.
The burn patterns leave no doubt that the cylinder lay on its side during the fire. The bottom of the tank, which has a diameter of 16 to 18 inches, was almost flush with the side of the van; the likelihood that the cylinder simply fell over is very small. Mr. Dahlem testified that, although the empty tank arrived lying down, he stood the tank upright in the van, after he filled it, but his testimony that he left the tank in a vertical position has not been credited. There is no dispute that he did not say anything to the Towses about securing it on March 17, 1983.
DAHLEM ACTED FOR CORPORATION
John Dahlem is the brother-in-law of one of the principals of Son-Mar, Inc. He has worked there for three and a half years. He cuts the grass, pumps gas and works on trucks in addition to filling propane tanks.
Before he filled propane tanks himself, Mr. Dahlem watched it being done many times over a period of a year and a half. This was evidently the extent of his training. (T. 143-144) Mr. Dahlem testified that he had been instructed to check for certification but had failed to do so on the four occasions he refilled the tank the Towses used. At one time, but not on the day of Mrs. Towse's death, he did use soapy water to check for a leak, and discussed replacing part of the tank with the Towses:
I had checked that tank previous when I . . . on the shroud because he had an option then. He could
either have a standard valve put in, which
would have been cheaper, because he
would have bought just the cap; he wouldn't have needed the shroud. (T. 138-139).
Mr. Berdeaux and Mr. Johnson, respondent's principals, told Mr. Dahlem he need not secure propane tanks he filled and placed in people's conveyances. "They had to tie the tank off themselves. . . I didn't have to tie it off. No, sir." (T. 143)
STANDARDS
The National Fire Protection Association publishes safety standards which include the following:
6115. Containers and their appurtenances shall be determined to be leak-free before being loaded into vehicles. Containers shall be loaded into vehicles with sub stantially flat floors or equipped with suitable racks for holding containers.
Containers shall be securely fastened in position to minimize the possibility of movement, tipping over or physical damage.
6116. Containers having an individual water capacity exceeding 200 pounds shall be transported with the relief valves of containers in direct communication with the vapor space.
* * *
B-212. All containers, including those apparently undamaged, must be periodically requalified for continued service. The first requalification for a new cylinder is required within 12 years after the date of manufacture. Subsequent requalifications are required within the periods specified under the requalification method used.
B-213. DOT regulations permit three alternative methods of requalification
for most commonly used LP-Gas specification containers (see DOT regulations for permissible requalification methods for specific cylinder specifications). Two use hydrostatic testing, and the third uses a carefully made and duly recorded visual examination by a competent person. In the case of the two hydrostatic test methods, only test results are recorded but a careful visual
examination of each container is also required. DOT regulations cite in detail the data to be recorded for the hydrostatic test methods,
the observations to be made during the recorded visual examination method, and the
marking of containers to indicate the requalification date and the method used. The three methods are outlined as follows:
The water jacket type hydrostatic test may be used to requalify containers for 12 years before the next requalification is due. A pressure of twice the marked service pressure is applied, using a water jacket (or the equivalent) so that the total expansion of the container during the application of
the test pressure can be observed and recorded for comparison with the permanent expansion of the container after depressurization. The following disposition is made of containers tested in this manner:
Containers which pass the retest, and the visual examination required with it (see
B-213), are marked with the date and year of the test (Example: "6-70", indicating requalification by the water jacket test method in June 1970) and may be placed back in service.
Containers which leak, or for which the permanent expansion exceeds 10 percent of the total expansion (12 percent for Specification 4-E aluminum cylinders) shall be rejected. If rejected for leakage, containers may be repaired in accordance with B-220.
The simple hydrostatic test may be used to requalify containers for 7 years before the
next requalification is due. A pressure of twice the marked service pressure is applied but no provision is made for measuring total and permanent expansion during the test outlined in B-213(a) above. The container is carefully observed while under the test pressure for leaks; undue swelling or bulging indicating weaknesses. The following disposition is made of containers tested in this manner:
Containers which pass the test, and the visual examination required with it (see B-213) are marked with the date and year of the
retest followed by an "S" (Example: "8-715", indicating requalification by the simple hydrostatic test method in August 1971), and may be placed back in service.
Containers developing leaks or showing undue swelling or bulging shall be rejected. If rejected for leaks, containers may be repaired in accordance with B-220.
The recorded visual examination may be used to requalify containers for 5 years before the next requalification is due provided the container has been used
exclusively for LP-Gas commercially free from corroding components. Inspection is to be
made by a competent person, using as a guide Compressed Gas Association "Standards for the Visual Inspection of Compressed Gas Cylinders" (CGA Pamphlet C06, 1975), and recording the inspection results as required by DOT regulations. (Note: Reference to NLPGA Safety Bulletin Recommended Procedures for Visual Inspection and Requalification of ICC Cylinders in LP-Gas Service is also recommended). The following disposition is
to be made of containers inspected in this manner:
Containers which pass the visual examination are marked with the date and year of the examination followed by an "E" (Example: "7-70E," indicating requalification by the recorded visual examination method in July 1970), and may be placed back in service.
Containers which leak, show serious denting or gouging, or excessive corrosion shall either be scrapped or repaired in accordance with B-220.
Petitioner's Exhibit No. 1, NFPA No. 58 (1979 ed.).
These provisions are adopted by reference in Rule 4B-1.01, Florida Administrative Code.
CONCLUSIONS OF LAW
Any licensee like respondent who violates any provision of Chapter 527, Florida Statutes (1983), "or any rule adopted pursuant thereto" is subject to license revocation or suspension, pursuant to Section 527.14, Florida Statutes (1983), and/or administrative fine or a cease and desist order, pursuant to Section 527.12, Florida Statutes (1983). Rule violations are also proscribed by Section 527.08, Florida Statutes (1983), which makes rule violations second degree misdemeanor. The rule petitioner relies on in the present case provides only that the standards of the National Fire Protection Association "are hereby adopted." Rule 4B-101, Florida Administrative Code.
In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, even in the absence of a recommendation of revocation, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are established at a hearing. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1979). License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980).
At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed the acts alleged in the
administrative complaint. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970).
Mr. Dahlem admitted that he did not check the tank for leaks with soapy water before he placed it into the van on March 17, 1983. This was a violation of the requirement that "[c]ontainers and their appurtenances shall be determined to be leak-free before being loaded into vehicles," but this particular misconduct was not alleged. The allegations were that Mr. Dahlem filled a cylinder that had not been recertified, that he lay it horizontally in the Towses' van and that he failed to secure the tank in the van. Respondent does not contend that it is otherwise than fully responsible for the acts of its agent and employee John Dahlem.
Mr. Dahlem conceded that he did not fasten or secure the tank in the van after he filled it. Respondent's position is that the rule requirement does not specify that the dealer secure the tank or when he must do it. Although the rule could undoubtedly be clearer on these points, a fair reading requires the conclusion that the rule is not satisfied by a licensee or his agent who, when he puts a tank in a customer's vehicle, fails to secure the tank and fails to mention to a person he knows will be transporting the tank that it needs to be made secure.
Respondent concedes Mr. Dahlem's failure to recertify the tank but argues that "Section B-213-C . . . does not mandate such inspections." The requirement that containers "be periodically requalified for continued service" appears in Section B-212, which was not pleaded in the amended administrative complaint. It came into evidence, however, with the understanding that "whether
. . . [it was] applicable or not . . . depends on what is shown in the testimony." (T. 6) The testimony showed that tank No. 23860 saw "continued service" more than a decade after it should have been recertified.
The evidence showed clearly and convincingly that Mr. Dahlem put the cylinder in horizontally, even though the evidence did not establish this beyond every reasonable doubt. It is just possible that Mrs. Towse lay the tank down herself, but it is extremely unlikely. It is even less likely that, in a stationary van, the tank fell so as almost to abut the van wall, and did so in time to cover the carpet before the explosion. Respondent contends that the requirement is that cylinders "be transported with the relief valves of containers in direct communication with the vapor space" not that they be loaded in that fashion. But transportation for purposes of this requirement should be viewed more broadly, to include movement from the point at which the tank was filled.
That petitioner revoke respondent's license No. 0156030178.
DONE and ENTERED this 29th day of June, 1984, in Tallahassee, Florida.
ROBERT T. BENTON II
Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1984.
Dennis Silverman, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301
Leslie King O'Neal, Esquire Markel, McDonough & O'Neal Post Office Drawer 1991 Orlando, Florida 32802
