STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND )

TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6551

) POLK FIRE EXTINGUISHER SERVICE, )

INC., (Ira Devon Canady, Owner), )

)

Respondent, )

) DEPARTMENT OF INSURANCE AND )

TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0023

)

FLOYD E. NICKS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell held a formal hearing in these consolidated cases on May 19, 1993 in Lakeland, Florida.

APPEARANCES

For Petitioner: Daniel T. Gross, Esquire

Division of Legal Services

Department of Insurance and Treasurer 612 Larson Building

Tallahassee, Florida 32399-0300

For Respondent Ira Devon Canady, Owner

Polk Fire Polk Fire Extinguisher Service, Inc. Extinguisher Post Office Box 384

Service, Inc.: Lakeland, Florida 33801

For Respondent Floyd E. Nicks, pro se Floyd E. Nicks: 1137 Carlton

Lake Wales, Florida 33853

STATEMENT OF THE ISSUES

Whether or not Respondents improperly serviced portable fire extinguishers and pre-engineered fire suppression systems as specifically alleged in the administrative complaints filed herein on October 8 and November 4, 1992.

PRELIMINARY STATEMENT

On or about October 8, 1992, the Petitioner, Department of Insurance and Treasurer, filed administrative complaints against Respondent, Polk Fire Extinguisher Service, Inc. and its owner Ira Devon Canady as licensee/permittee, alleging that Respondents Canady, Polk and Floyd E. Nicks, improperly serviced portable fire extinguishers and pre-engineered fire suppression systems (systems). Both Respondents requested a formal hearing pursuant to Section 120.57(1), Florida Statutes and the cases were consolidated by order of the undersigned on February 16, 1993. On April 14, 1993, Petitioner filed a motion for leave to amend the administrative complaint filed against Respondent Polk which motion was granted by the undersigned on May 19, 1993.

Petitioner introduced 17 exhibits which were received in evidence at the hearing.

Petitioner presented the testimony of Phillip J. Gruda, an investigator in Petitioner's fire marshall's office and Respondents Ira Devon Canady and Floyd Nicks testified on their own behalf.

Petitioner filed a proposed recommended order which was considered in preparation of this recommended order. Likewise, Respondents submitted written responses which is in the form of closing argument in support of their respective positions. Proposed findings of fact which are not incorporated herein are the subject of specific rulings in an appendix.

FINDINGS OF FACT

1. During times material herein, Respondent Polk Fire Extinguisher Service, Inc. and its owner, Ira Devon Canady, was a licensed dealer for portable extinguishers and pre-engineered systems for fire protection and prevention.

   
   

2. During times material hereto, Respondent Floyd E. Nicks, was a permittee for the servicing of portable extinguishers and pre-engineered systems.

   
   

3. On or about January 29, 1992, Respondent Polk caused its licensed permittee, James G. Boykin, an employee under Respondent Polk's direct supervision and control, to service a pre-engineered fire suppression system at the Highway 27 truck stop in Lake Wales, Florida. On March 14, 1992, a fire started in the kitchen area of the truck stop.

   
   

4. On March 17, 1992, Investigator Phillip J. Gruda, an employee in the fire sprinkler industry in excess of 26 years, was summoned to investigate the fire which occurred in the restaurant (kitchen area) of the truck stop wherein the fire suppression system failed to function as designed.

   
   

5. Investigator Gruda immediately initiated his investigation. He noted that a fire started in the kitchen. The fire origin was in the area of the range hood which became completely engulfed in flames and the suppression system

   did not activate. The fire suppression system which was installed in the hood of the oven utilizes a fusible link which melts when exposed to intense heat. The melted link sets off an ignitor which lets the fire retardant powder from the system extinguish the fire. An examination of the system revealed that the control head was twisted and the cable which connects the fusible link and the remote pull station was twisted preventing the system from discharging.

   Investigator Gruda also discovered that the cable had dislodged from the pulley extending from the control head which further prevented the system from firing.

   
   

6. On approximately January 29, 1992, Respondent Polk used its agent/permittee, Boykin, to also service two portable extinguishers at the truck stop in Lake Wales.

   
   

7. Permittee Boykin failed to perform the required six-year maintenance on portable fire extinguisher No. 873430; failed to discover that the gauge on said extinguisher indicated it had discharged; failed to discover that the extinguisher had leaked and to remove the old label from the extinguisher; failed to perform the hydrostatic test on the extinguisher and placed an incorrect serial number on the service tag. Also, Boykin did not leak test the extinguisher.

   
   

8. The above-referenced extinguisher failed to discharge during the fire on March 14, 1992 at the truck stop.

   
   

9. On or about December 19, 1990, Respondent Polk caused its agent/permittee, Floyd E. Nicks, an employee under Respondent Polk's direct supervision and control, to service a pre-engineered system at the truck stop in Lake Wales.

   
   

10. Respondent Nicks was dispatched to perform a six-year service maintenance on the system and at Respondent Polk's direction, used a generic BC powder instead of the required safety first specified powder thereby invalidating the underwriter's laboratory (UL) listing.

    
    

11. During December, 1990, Respondent Nicks also failed to perform the required hydrostatic test for cylinder No. 24991 which was part of the pre- engineered system at the truck stop.

    
    

12. Respondent, by its agent and employee Boykin, during December, 1991, serviced a pre-engineered system at the Lone Palm Country Club in Lakeland.

    
    

13. Agent Boykin failed to properly service the system and investigations by Gruda subsequently revealed the following violations:

    
    

    1. S-4 Venturi was missing over the char- broiler appliance tee.

    2. Incorrect duct nozzles and plenum nozzles.

    3. Six elbows were used to connect the yoke instead of the specified five.

    4. The pipeline limits did not meet specifi- cation.

    5. The system was not piped in accordance with the manufacturer's instructions.

    6. The duct nozzle was not centered.

    7. The filters were not baffled and "range guard" corner pulleys were used instead of "safety first" as specified.

       Based on these violations, the gas charbroiler was not properly protected by the fire suppression system.

       
       

14. On or about July 31, 1991, the parties entered a consent order against Respondent Polk wherein Respondent was placed on probation for one year.

    
    

15. One condition of probation set forth in the Consent Order was that Respondent Polk would strictly adhere to all provisions of Chapter 633, Florida Statutes and rules and regulations promulgated thereunder.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Chapters 120 and 633, Florida Statutes.

    
    

17. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

18. The authority of the Petitioner is derived from Chapter 633, Florida Statutes and rules and regulations promulgated thereunder.

    
    

19. Respondents, as licensees, are subject to the disciplinary guides of Chapter 633, Florida Statutes. Respondent Polk, as the employer and licensee of employees Boykin and Nicks, are responsible for all activities of its business and/or its employees and agents including Boykin and Nicks.

    
    

20. Respondent Polk failed to assure that its employees Boykin and Nicks properly serviced the fire suppression systems at the Highway 27 truck stop in Lake Wales and the Lone Palm Country Club in Lakeland. Specifically, Respondent Polk's employees Boykin and Nicks failed to properly inspect, service and maintain the pre-engineered fire suppression systems rendering them inoperative to extinguish fires; and the system did not function as it was designed. Respondent Polk's employees improperly serviced, recharged, repaired, tested, and inspected the fire extinguisher and the fire suppression systems at the truck stop. Respondent, by its employees and agents, failed to inspect the pre- engineered system as required on a six month basis.

    
    

21. Likewise, Respondent's agents and employees failed to use the proper powder to test the systems and the dry chemical extinguishing systems were not subject to a hydrostatic pressure test at a minimum of twelve year intervals as required (NFPA 17, Section 2-12, 1985 Edition, duly adopted in Rule 4A-21, Florida Administrative Code.

    
    

22. Respondent's servicing of the portable fire extinguishers by its employee James G. Boykin at the truck stop involved the following statutory and rule violations:

    
    

    1. Service tags failed to fully comply with the provisions of Rule 4A-21.241, Florida Administrative Code.

    2. Record tags for hydrostatic tests failed to fully comply with the provisions of Rule 4A-21.245, Florida Administrative Code.

    3. Portable fire extinguishers were not hydrostatically tested in accordance with the

       requirements of the Department of Transportation (adopted by Rule 4A-21.247, Florida Adminis- trative Code).

    4. Failed to leak test either by following the manufacturer's recommendation or by totally immersing the extinguisher in water, either vertically or horizontally. (Rule 4A-21.249, Florida Administrative Code).

    5. Portable fire extinguishers were not listed and labelled nor did they meet or exceed the requirements of fire test standards

       and appropriate performance standards. (NFPA 10,

       Section 1-4.3, 1988 Edition, adopted pursuant to Rule 4A-21, Florida Administrative Code).

    6. Failed to maintain portable extinguishers in a fully charged and operable condition and kept in their designated places at all times when they were not being used. (NFPA 10, Section 1-6.2, 1988 Edition, adopted pursuant to Rule 4A-21, Florida Administrative Code).

    
    

23. Respondent Polk's agents utilization of a generic powder was unauthorized since the type of dry chemical used in the pre-engineered system shall not be changed unless proved to be changeable by a testing laboratory, recommended by the manufacturer of the equipment, and approved by the authority having jurisdiction. (NFPA 17, Section 2-1, 1985 Edition, duly adopted in Rule 4A-21, Florida Administrative Code). Finally based on Respondent Polk's probationary status during the period when the subject violations occurred, Respondent Polk also violated Section 633.162(1), Florida Statutes. As such, Petitioner was authorized to seek revocation of Respondents' licenses for the above-referenced violations. Petitioner has established, by clear and convincing evidence, that Respondent Polk Fire Extinguisher Service, Inc. and its owner, Ira Devon Canady, and Respondent, Floyd E. Nicks, have violated the above-referenced statutory and rule sections listed hereinabove.

RECOMMENDATION

Based on the foregoing findings of facts and conclusions of law, it is RECOMMENDED that:

Petitioner enter a final order revoking the licenses and permits of Respondents Polk Fire Extinguisher Service, Inc., Ira Devon Canady and Floyd E. Nicks.

RECOMMENDED this 2nd day of August, 1993, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1993.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-6551 and 92-0023

Ruling on Petitioner's proposed findings of fact. Paragraph 8, rejected as being a conclusion.

COPIES FURNISHED:

Tom Gallagher,

State Treasurer and Insurance Commissioner Department of Insurance and Treasurer

The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

Bill O'Neill, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Daniel T. Gross, Esquire Division of Legal Services

Department of Insurance and Treasurer 612 Larson Building

Tallahassee, Florida 32399-0300

Ira Devon Canady, Owner

Polk Fire Extinguisher Services, Inc. Post Office Box 384

Lakeland, Florida 33801

Floyd E. Nicks, pro se 1137 Carlton

Lake Wales, Florida 33853

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 92-006551

Orders for Case No: 92-006551