STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SONNY WADE BERDEAUX, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4311

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

) VIRGIL BERDEAUX, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0516

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this cause on January 9, 1986, in Tampa, Florida before Diane A. Grubbs a hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioners: Martin Errol Rice, Esquire

Post Office Box 588

St. Petersburg, Florida 33731

For Respondent: John R. Griffin, Esquire

Department of Insurance 413-B Larson Building

Tallahassee, Florida 32301 ISSUES

(1) Whether Sonny Wade Berdeaux should be licensed as a Dealer in Liquefied Petroleum Gas; and (2) Whether Virgil Berdeaux should be licensed as a Dealer in Appliances and Equipment for Use of Liquefied Petroleum Gas.

BACKGROUND

By letter dated October 8, 1984, the Department of Insurance (Department) denied Mr. Sonny Wade Berdeaux's application for licensure as a Dealer in Liquefied Petroleum Gas. On the same date the Department denied Virgil

Berdeaux's application for licensure as a Dealer in Appliances and Equipment for Use of Liquefied Petroleum Gas. Both letters denying licensure referred to the final order revoking the licenses of Son-Mar Propane, Inc. (Son-Mar), pointed out that the new operations would be conducted on the same premises with the same personnel as Son-Mar and concluded that the applications were "seeking licensure for essentially the same entity that has only recently had it liquefied petroleum gas licenses revoked." Each Berdeaux filed a request for an administrative hearing and the Department referred both matters to the Division of Administrative Hearings for further proceedings. The causes were consolidated due to the common factual and legal issues.

Prior to hearing the Department moved to dismiss the petitions on the grounds that the issues in the case had been rendered moot by the sale of the petitioners' LP gas business. A hearing by telephone conference call was held on the motion and ruling on the motion was deferred until after the formal hearing due to factual matters which had to be resolved. A ruling on the motion is included in this recommended order.

At the hearing, the petitioners presented the testimony of Sonny Wade Berdeaux and Virgil Berdeaux. Petitioners' exhibits 1-5 were admitted into evidence. The Department presented the testimony of John Weipert and Dennis Silverman. Respondent's exhibits 1-4 were admitted into evidence. The deposition of David Rodgers, respondent's exhibit number 5, was accepted as a late filed exhibit.

Petitioners and respondent filed proposed recommended orders, and a ruling on each proposed finding of fact has been made in the appendix to this order.

FINDINGS OF FACT

1. Prior to July 10, 1984, Son-Mar Propane, Inc. (Son-Mar) was licensed by the Department as a dealer in liquefied petroleum gas, in appliances and in equipment for use of such gas and installation. Virgil Berdeaux was the president of Son-Mar and he and his wife were the sole stockholders. Virgil Berdeaux passed the competency exam which qualified Son-Mar for licensure.

   Sonny Wade Berdeaux Virgil Berdeaux's son, was the manager of Son-Mar. Son- Mar's business address and place of operation was 16034 U.S. Highway 19 North in Hudson, Florida. Virgil Berdeaux and his wife owned the property located at that address and leased it to Son-Mar. A propane pumping station and a building was located on the property at 16034 U.S. Highway 19. The building housed a pawn shop and supply store for mobile home and RV equipment. Son-Mar operated the pumping station and the stores. It also installed tanks and delivered gas to customers. 1/

   
   

2. On July 10, 1984, a final order was entered by the Department which ordered "[t]hat any and all of [Son-Mar's] licenses issued by the State Fire Marshal Division of Liquefied Petroleum Gas and eligibility to hold said licenses are hereby revoked." The revocation of Son-Mar's licenses was due to its violation of certain safety standards and rules. Specifically, it was found that an employee of Son-Mar, Mr. John Delham, filled a cylinder that had not been recertified, that he lay it horizontally in the customer's van, and that he failed to secure the tank in the van. While the van was still parked at Son-Mar an explosion occurred which destroyed the van and killed its occupant.

   
   

3. On July 19, 1984, nine days after Son-Mar's licenses were revoked, Virgil Berdeaux submitted an application for licensure as a dealer in appliances and equipment for use of liquefied petroleum gas, listing the business address

   as 16034 U.S. Highway 19, Hudson, Florida, and listing the business name as Son- Mar Pawn Shop. On August 3, 1984, twenty-four days after the revocation of Son- Mar's licenses, Sonny Wade Berdeaux submitted an application for licensure as a dealer in liquefied petroleum gas, listing the business address as 16034 U.S. Highway 19, Hudson, Florida.

   
   

4. The Department issues several different types of liquefied petroleum gas licenses. A Type 06, Class 02 license, known as a 602 license, is issued to a dealer in appliances and equipment for use of liquefied petroleum gas. The 602 license allows the holder to sell propane appliances and equipment, such as stoves, heaters, and gas grills but it does not permit the holder to install appliances or sell propane gas. A competency examination is not required for this type of license, and there is no inspection of the place of business prior to issuance of the license. Virgil Berdeaux applied for a 602 license. He completed the application and submitted the required fee. The application listed W. C. Johnson, Virgil Berdeaux's son-in-law, as the manager of the business. Bill Johnson had run the pawn shop for Son-Mar.

   
   

5. Sonny Wade Berdeaux applied for a Type 06, Class 04 license known as 604 license, which is issued to a dealer in liquefied petroleum gas. This type of license permits the holder to pump liquefied petroleum gas for sale to the public. An applicant for this type of license must pass a competency test and file a surety bond or certificate of insurance. Further, if the licensee has a dispensing station, an inspection of the business location must be performed to ensure that it is in compliance with all safety regulations. Sonny Wade Berdeaux passed the competency examination, filed a certificate of insurance, and submitted the proper fee.

   
   

6. Son-Mar held a Type 06, Class 01 license (a 601 license) as a dealer in liquefied petroleum gas, in appliances and in equipment for use of such gas and installation. A 601 license permits the holder to pump liquefied petroleum gas for sale to the public, to sell appliances and equipment for use of liquefied petroleum gas, and to install such appliances and equipment. In essence, it is a combination of a 602 license, a 604 license, and a license to install equipment.

   
   

7. Both Sonny Wade Berdeaux and Virgil Berdeaux received letters dated October 8, 1984, which informed them that their applications for licensure had been denied. Both letters referred to the revocation of Son-Mar's licenses and pointed out that the applicants would be operating on the same premises and employing the same staff as Son-Mar. Both letters concluded as follows:

   
   

   Thus, it would appear that your application is seeking licensure for essentially the same entity that has only recently had its liquefied petroleum gas licenses revoked.

   Therefore, in the interest of public safety, this Bureau cannot permit an Order of Revocation to be obviated by a mere procedural reapplication in your name.

   
   

8. The applications for licensure both list the business address as 16034

   U.S. Highway 19 in Hudson, Florida. At the time of application Virgil Berdeaux owned that property and Sonny Wade Berdeaux had leased the pumping station. However, on July 1, 1985, the property at 16034 U.S. Highway 19 was sold. The pumping station was moved out along with the inventory that remained in the pawn

   shop. Neither Virgil Berdeaux or Sonny Wader Berdeaux retained any interest in the property, and at this time neither could operate a business at that location.

   
   

9. Although there was testimony concerning the manner in which the business would have been operated and controlled had licensure been granted at the time of applications there was no testimony indicating where or how the business would now be operated. There was no attempt to amend either application to reflect a current business address, and the certificate of insurance entered into evidence lists 16034 U.S. Highway 19, Hudson, Florida, as the location covered. 2/

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Section 527.02, Florida Statutes, requires that any person engaged in business as a dealer in liquefied petroleum gas or as a dealer in appliances and equipment for use of such gas be licensed. The section further provides that "[e]ach business location of a person having multiple locations shall be separately licensed and must meet the requirements of this section." (e.s.) Section 527.061, Florida Statutes, provides:

    
    

    The department may inspect, at any reasonable hours any facility, building, system, equipment, or premises where liquefied petroleum gas or equipment there for is offered for sale, stored, being repaired or installed to determine if there is a violation of this chapter or of any rules of the department.

    
    

    It is clear from the statutory scheme of Chapter 527 that it is not just the person who is licensed, it is the person at a specified location.

    
    

12. At the time of application the petitioners had a business location which was specified on their applications. However, circumstances changed prior to the hearing. The business location was sold. Neither petitioner amended his application to specify a new business locations and at the time of hearing neither party had a business location. A person without a specified business location cannot he licensed.

    
    

13. Respondent moves to dismiss this matter on the grounds that the substantive issues have been rendered moot by the sale of the petitioners' property. Petitioners respond by contending, among other things, that they are seeking "review of the denial of said license[s] based upon the facts and circumstances existing at the time of the Department's denial of same". Petitioners misperceived the function of a Section 120.57 hearing. The purpose of a Section 120.57 hearing is to formulate final agency action, not to review action taken earlier and preliminarily. McDonald v. Department of Banking and Finance, 346 S0.2d (Fla. 1st DCA 1977). Circumstances as they exist at the time of the hearing must be considered, not circumstances as they once existed. Thus, the question of whether petitioners would have been entitled to licensure under the circumstances existing at the time of application is a moot question.

However, the motion to dismiss is denied because the question of petitioners entitlement to licensure is not moot. The evidence presented simply proved that petitioners could not be licensed under the circumstances now existing.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law; it is RECOMMENDED that a Final Order be entered denying petitioners' applications

for licensure.

DONE and ENTERED this 21st day of May, 1986, in Tallahassee, Florida.

DIANE A. GRUBBS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1986.

ENDNOTES

1/ Although Son-Mar had trucks for delivery, ninety-eight percent of Son-Mar's sales were through the pumping station. Son-Mar maintained a 30,000 gallon storage tank located about two acres behind the property on Highway 19 (see R.Ex. #1), and most of Son-Mar's deliveries were to the pumping station from the storage tank. The pumping station has a 1,200 gallon capacity container.

2/ The insurance coverage had expired by the time of hearing.

APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 84-4311, 85-0516

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings On Proposed Findings of Fact Submitted by the Petitioner

1. Accepted in paragraphs 1 and 6.

2.-3. Accepted generally in paragraph 4 except as to posting of insurance bond which finding is rejected as not supported by the evidence.

4.-5. Accepted generally in paragraphs 5 and 8, size of tank corrected to conform to the evidence in footnote 1.

6. Rejected as irrelevant except subparagraph 6 accepted in paragraph 1.

Rulings On Proposed Findings of Fact Submitted by the Respondent

1. Accepted in paragraph 3.

2. Accepted except as to date in paragraph 3.

3. Accepted in paragraphs 3 and 8. 4.-8. Accepted in paragraph 1.

1. Accepted generally in paragraph 2.

2. Accepted in paragraph 8.

3. Accept that location of a dealer in LP gas is inspected prior to issuance of a license in paragraph 5, however, reject that location of a dealer in appliances and equipment is usually inspected prior to licensure in paragraph 4 based on testimony of Mr. Weipert.

4. Accepted in paragraph 8.

COPIES FURNISHED:

John R. Griffin, Esquire Department of Insurance 413-8 Larson Building

Tallahassee, Florida 32301

Martin Errol Rice, Esquire Post Office Box 588

St. Petersburg, Florida 33731

William Gunter Commissioner

Department of Insurance & Treasurer The Capitol - Plaza Level Tallahassee Florida 32301

Docket for Case No: 84-004311

Orders for Case No: 84-004311