STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF INSURANCE AND ) TREASURER, )
)
Petitioner, )
)
vs. ) Case No. 97-2921
) NATIONAL FIRE AND SAFETY ) CORPORATION and TODD JACOBS, )
as qualifier, )
)
Respondents. )
)
RECOMMENDED ORDER
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Myers, Florida, on September 16 and 17, 1997.
APPEARANCES
For Petitioner: Attorney Mechele R. McBride
Attorney Richard Grumberg
Department of Insurance and Treasurer
200 East Gaines Street Tallahassee, Florida 32399-0333
For Respondents: Mark H. Muller
Quarles & Brady, P.A. 4501 North Tamiami Trail Naples, Florida 34103
STATEMENT OF THE ISSUE
The issues are whether Respondents have violated various statutes and rules governing persons licensed to install and service fire extinguishers and fire suppression systems and, if so, what penalties Petitioner should impose.
PRELIMINARY STATEMENT
By Emergency Order of Suspension issued May 15, 1997, Petitioner suspended all of Respondents’ licenses and permits. The suspension has remained in effect continuously since that date.
By Administrative Complaint filed June 3, 1997, as amended by the First Amended Administrative Complaint served August 22, 1997, Petitioner alleged that Respondents are currently licensed as dealers and permittees of fire extinguishers and fire suppression systems. Petitioner has alleged 99 violations by Respondents. For ease of reference, this recommended order assigns a number to each alleged violation.
Count I of the Administrative Complaint alleges that, on April 4, 1997, Respondent National Fire and Safety Corporation returned to service an Ansul SPA 50 system cylinder to the Lee County Hazardous Materials Facility at Page Field in Fort Myers. Count I alleges that Respondent National Fire and Safety Corporation failed to tighten the actuation piping; failed to hydrostatically test and recharge the cartridge from the system cylinder; installed the incorrect detection links; failed to test the system cylinder emptied of powder to determine if the cylinder had been properly filled or the powder needed to be replaced; failed to hydrostatically test
and recharge the Ansul SPA 50 system despite invoicing the customer for this work; lacked a service manual for the Ansul SPA 50 system; and lacked an inspection report for the Ansul SPA 50 system allegedly serviced.
Count I alleges that Respondents thus violated Section 633.061(1), Florida Statutes, which prohibits Respondents from engaging in the business of servicing, repairing, recharging, testing, marketing, inspecting, or installing fire extinguishers or pre-engineered systems except as provided by Chapter 633, Florida Statutes (Violation Number 1); Section 633.065(1)(b), Florida Statutes, which requires that Respondents supply equipment listed by a nationally recognized testing laboratory (Violation Number 2); Section 633.065(1)(c), Florida Statutes, which requires that Respondents install equipment in accordance with the applicable standards of the National Fire Protection Association and the drawings and specifications of the manufacturer (Violation Number 3); Section 633.065(2), Florida Statutes, which requires that Respondents inspect, service, and maintain equipment in accordance with the manufacturer’s maintenance procedures and the National Fire Protection Association standards (Violation Number 4); and Section 633.065(2), Florida Statutes, Rule 4A-21, Florida Administrative Code, and National Fire Protection Association Standards 10 and 17, 1994, with respect to National Fire
Protection Association Standard 10, 5-1.2, which requires that persons performing hydrostatic testing be trained in pressure testing procedures and safeguards and have available suitable testing equipment, facilities, and service manuals (Violation Number 5); National Fire Protection Association Standard 10,
5-5.1, which requires a visual inspection prior to each hydrostatic test (Violation Number 6); National Fire Protection Association Standard 10, 5-5.1.2, which requires hydrostatic testing in accordance with the procedures specified in Methods for Hydrostatic Testing of Compressed Gas Cylinders (CGA C-1) (Violation Number 7); National Fire Protection Association Standard 17, 9-5.2, which requires the discarding of dry chemical agent removed from a cylinder prior to hydrostatic testing (Violation Number 8); National Fire Protection Association Standard 17, 9-4.2, which requires that systems be recharged in accordance with the manufacturer’s listed installation and maintenance manual (Violation Number 9); and National Fire Protection Association Standard 17, 3- 9.1, which requires that piping and fittings be installed in accordance with good commercial practices (Violation Number 10).
Count II alleges that, on April 4, 1997, Petitioner inspected three ten-pound ABC fire extinguishers, which Respondents had serviced and returned to Page Field.
Allegedly, Respondents erroneously filled one tank with BC
powder, left one tank 75 percent filled with caked BC powder, and failed to fill the third tank in accordance with the manufacturer’s requirements.
Count II alleges that Respondents thus violated Section 633.061(1), Florida Statutes (Violation Number 11); Section 633.065(1)(c), Florida Statutes (Violation Number 12); Section 633.065(2), Florida Statutes (Violation 13); Section 633.065(2), Florida Statutes, Rule 4A-21, Florida Administrative Code, and National Fire Protection Association Standards 10 and 17, 1994, with respect to National Fire Protection Association Standard 10, 5-1.2 (Violation Number 14); National Fire Protection Association Standard 10, 5-5.2, Appendix A, which provides the testing procedures for low pressure cylinders and shells and hose assemblies (Violation Number 15); National Fire Protection Association Standard 10, 4-5.3.2, which prohibits the mixture of multipurpose dry chemicals with alkaline-based dry chemicals (Violation Number 16); National Fire Protection Association Standard 10, 4-1.4, which requires that persons servicing and recharging fire extinguishers and cylinders do so in accordance with manuals and have proper tools (Violation Number 17); National Fire Protection Association Standard 10, 4-5.3.1, which requires that persons use proper chemical agents in fire extinguishers (Violation Number 18); National Fire Protection Association Standard 10, 4-5.1.2, which requires that persons recharging
fire extinguishers and cylinders do so in accordance with the manufacturer’s specifications (Violation Number 19); National Fire Protection Association Standard 17, 9-5.2 (Violation Number 20); and National Fire Protection Association Standard 17, 9-4.2 (Violation Number 21).
Count III alleges that, on April 9, 1997, Petitioner inspected Respondents’ mobile service unit operated by Mark Thackeray. Count III alleges that the mobile unit lacked a conductivity tester, proper tags for servicing equipment, certified scales for weighing cartridges, manuals for fire extinguishers and systems serviced and installed, and a safety pin in one cylinder (which had an unauthorized drill bit in place of a safety pin).
Count III alleges that Respondents thus violated Rule 4A- 21.102(11)(b)5, Florida Administrative Code, which adopts the requirement of National Fire Protection Association Standard
10 that Class A, B, and C licensees possess conductivity tester and tags (Violation Number 22); Rule 4A- 21.102(11)(b)10, Florida Administrative Code, which requires that Class A, B, C, and D licensees possess record tags, service tags, hydrostatic test tags, six-year maintenance tags, and internal tags (Violation Number 23); Rule 4A- 21.102(11)(b)11, Florida Administrative Code, which requires that Class A, B, C, and D licensees possess scales capable of weighing carbon dioxide cartridges in 1/4-ounce increments and
tested or certified annually for accuracy (Violation Number 24); Rule 4A-21.102(11)(b)12, Florida Administrative Code, which requires that Class A, B, C, and D licensees possess accurate weighing scales for extinguisher inspection and filling and requires that the scales be tested or certified annually for accuracy by a service agency defined in Chapter 5F-4, Florida Administrative Code (Violation Number 25); Rule 4A-21.102(11)(b)19, Florida Administrative Code, which requires that Class D licensees possess scales capable of weighing in 1/2-pound increments with a minimum of 150 pounds for chemical recharging and requires that the scales be tested or certified annually by a service agency as defined in Chapter 5F-4, Florida Administrative Code (Violation Number 26); Rule 4A-21.102(11)(b)24, Florida Administrative Code, which requires that Class A, B, C, and D licensees possess installation, maintenance, and recharge manuals for extinguisher systems being serviced and installed (Violation Number 27); Rule 4A-21.102(11)(b) 26 and 27, Florida Administrative Code, which requires that Class A, B, C, and D licensees possess manuals as required by National Fire Protection Association Standard 10 (“as adopted in Rule 4A- 21.202, [Florida Administrative Code], [National Fire Protection Association Standard] 96 as adopted in [Rule] 4A- 21.302, [Florida Administrative Code], CGA c-6, C-6.1 CFR 49, Parts 100-177, and 29 for Class ‘A’ only CGC C-1; [National
Fire Protection Association Standards] 12, 12A, 12B, 34, 17,
17A, 96, 2001, CFR Parts 100-177 and 29, as adopted in section 4A-21.302, [Florida Administrative Code]” [sic]) (Violation Number 28); and Section 633.065(2), Florida Statutes, Rule 4A- 21, Florida Administrative Code, and National Fire Protection Association Standards 10 and 17, 1994, with respect to National Fire Protection Association Standard 17, 9-1.4, which requires that persons inspect all dry chemical extinguishing systems in accordance with the owner’s manual and maintain and recharge these systems in accordance with the listed installation and maintenance manual and service bulletins of the manufacturer (Violation Number 29).
Count IV alleges that, on April 9, 1997, Petitioner inspected Respondents’ mobile service unit operated by Orville Read. Count IV alleges that the mobile unit lacked an operational inspection light, proper tags, a vise of at least six inches, installed leak-testing equipment, “the” cable crimping tool, and any technical or installation manuals.
Count IV alleges that Respondents thus violated Rule 4A- 21.102(11)(b)5, Florida Administrative Code (Violation Number 30); Rule 4A-21.102(11)(b)8, Florida Administrative Code, which requires that Class A, B, C, and D licensees possess an inspection light (Violation Number 31); Rule 4A- 21.102(11)(b)10, Florida Administrative Code (Violation Number 32); Rule 4A-21.102(11)(b)11, Florida Administrative Code,
(Violation Number 33); Rule 4A-21.102(11)(b)12, Florida Administrative Code (Violation Number 34); Rule 4A- 21.102(11)(b)13, Florida Administrative Code, which requires that Class A, B, C, and D licensees possess a minimum six-inch vise (Violation Number 35); Rule 4A-21.102(11)(b)19, Florida Administrative Code (Violation Number 36); Rule 4A- 21.102(11)(b)24, Florida Administrative Code (Violation Number 37); Rule 4A-21.102(11)(b)26 and 27, Florida Administrative Code (Violation Number 38); Rule 4A-21.102(11)(b)15, Florida Administrative Code, which requires that Class A, B, C, and D licensees possess facilities to test pressurized extinguishers for leaks (Violation Number 39); and Rule 4A-21.102(11)(b)20, Florida Administrative Code, which requires that Class D licensees possess a cable crimping tool.
Count V alleges that, on April 9, 1997, Petitioner inspected Respondents’ mobile service unit operated by Donald Zelmanski. Count V alleges that the mobile unit lacked an operational inspection light, proper tags, a vise, certified scales, installed leak-testing equipment, and installation or technical manuals.
Count V alleges that Respondents thus violated Rule 4A- 21.102(11)(b)5, Florida Administrative Code (Violation Number 41); Rule 4A-21.102(11)(b)8, Florida Administrative Code (Violation Number 42); Rule 4A-21.102(11)(b)10, Florida Administrative Code (Violation Number 43); Rule 4A-
21.102(11)(b)11, Florida Administrative Code (Violation Number 44); Rule 4A-21.102(11)(b)12, Florida Administrative Code (Violation Number 45); Rule 4A-21.102(11)(b)13, Florida Administrative Code (Violation Number 46); Rule 4A- 21.102(11)(b)15, Florida Administrative Code (Violation Number 47); Rule 4A-21.102(11)[b]19, Florida Administrative Code (Violation Number 48); Rule 4A-21.102(11)(b)20, Florida Administrative Code (Violation Number 49); Rule 4A- 21.102(11)(b)24, Florida Administrative Code (Violation Number 50); and Rule 4A-21.102(11)(b)26 and 27 (Violation Number 51).
Count VI alleges that Petitioner inspected Respondents’ Naples facility. Count VI alleges that the facility lacked operational hydrostatic testing equipment, DOT certification posted on or near the hydrostatic testing equipment, equipment required to service and refill an SPA 50 cylinder, certified gauges used for low-pressure testing, proper tags for servicing equipment, documentation that the scales were certified or tested for accuracy, properly completed inspection reports, and properly completed low-pressure testing records (UL listed numbers erroneously replaced serial numbers). Count VI also alleges that Respondents falsely certified that a cylinder had been successfully retested when no test had been done, stored cylinder bottles without safety caps in place, stocked numerous nitrogen cartridges without the Ansul blow-out disk in place, prepared invoices not
identifying the serial numbers of the serviced extinguishers, and prepared system inspection reports not containing the drawing reference and page number from the manufacturer’s manual, permit number, and signature of the owner or manager.
Count VI alleges that Respondents thus violated Rule 4A- 21.102(11)(b)1, Florida Administrative Code, which requires that Class A licensees possess adequate hydrostatic testing equipment for high-pressure testing and calibrating of cylinders, as well as DOT certification posted at or near the equipment (Violation Number 52); Rule 4A-21.102(11)(b)6, Florida Administrative Code, which requires that Class A, B, C, and D licensees possess a drying method for high- and low- pressure cylinders, so as to the meet the guidelines of National Fire Protection Association Standard 10 (Violation Number 53); Rule 4A-21.102(11)(b)9, Florida Administrative Code, which requires that Class A, B, C, and D licensees possess a low-pressure test apparatus with single or dual gauges that are certified annually as accurate (Violation Number 54); Rule 4A-21.102(11)(b)10, Florida Administrative Code (Violation Number 55); Rule 4A-21.102(11)(b)11, Florida Administrative Code (Violation Number 56); Rule 4A- 21.102(11)(b)12, Florida Administrative Code (Violation Number 57); Rule 4A-21.102(11)(b)17, Florida Administrative Code, which requires that Class A, B, C, and D licensees possess adapters, fittings, and sufficient tools and equipment to
service and recharge properly all extinguishers and pre- engineered systems serviced and recharged (Violation Number 58); Rule 4A-21.102(11)[b]19, Florida Administrative Code (Violation Number 59); Rule 4A-21.102(11))(b)26 and 27, Florida Administrative Code (Violation Number 60); Rule 4A- 21.215, Florida Administrative Code, which requires that invoices include the dealer’s license number (which shall be the number displayed on the tags attached to serviced extinguishers), the serial number of each serviced fire extinguisher, and the parts replaced and services performed (Violation Number 61); Rule 4A-21.304(2), Florida Administrative Code, which requires that a permittee installing, inspecting, repairing, maintaining, or servicing a pre-engineered system prepare an inspection report with one copy signed by the owner or owner’s representative and the other copy retained by the dealer (Violation Number 62); and Section 633.065(2), Florida Statutes, Chapter 4A-21, Florida Administrative Code, and National Fire Protection Association Standards 10 and 17, 1994, with respect to National Fire Protection Association Standard 17, 9-1.1, which requires the installation of a protective diffusing cap, as provided by manufacturers, to all dry chemical pressure containers not attached to piping or hand hose lines (Violation Number 63).
Count VII alleges that Petitioner inspected Respondents’ Fort Myers facility. Count VII alleges that the facility
lacked a conductivity tester and tags; a drying method for high- and low-pressure cylinders, so as to meet the guidelines of National Fire Protection Association Standard 10; proper wrenches with nonserrated jaws or a hydraulic or electric valve-puller; an inspection light; a low-pressure test apparatus with single or dual gauges certified for accuracy; proper tags for servicing equipment; certified scales for weighing equipment when serviced; a supply of properly stored dry chemicals for all extinguishers and systems serviced; nitrogen with a regulator and indicator; adapters, fittings, and sufficient tools and equipment for proper servicing and recharging of all extinguishers and pre-engineered systems being serviced and recharged; a safety cage for hydrostatic testing of low-pressure cylinders; the installation, maintenance, and recharge manuals for extinguishers and systems serviced or installed; a closed recovery system for reusing dry chemical; a closed recovery system for removing and recharging halon, as required by National Fire Protection Association Standard 10; and properly kept and printed invoices.
Count VII alleges that Respondents thus violated Rule 4A- 21.102(11)(b)5, Florida Administrative Code (Violation Number 64); Rule 4A-21.102(11)(b)6, Florida Administrative Code (Violation Number 65); Rule 4A-21.102(11)(b)7, Florida Administrative Code, which requires that Class A, B, C, and D
licensees possess proper wrenches with nonserrated jaws or hydraulic or electric valve-pullers (Violation Number 66); Rule 4A-21.102(11)(b)8, Florida Administrative Code (Violation Number 67); Rule 4A-21.102(11)(b)9, Florida Administrative Code (Violation Number 68); Rule 4A-21.102(11)(b)10, Florida Administrative Code (Violation Number 69); Rule 4A- 21.102(11)(b)11, Florida Administrative Code (Violation Number 70); Rule 4A-21.102(11)(b)12, Florida Administrative Code (Violation Number 71); Rule 4A-21.102(11)(b)14, Florida Administrative Code, which requires that Class A, B, C, and D licensees store properly a supply of dry chemicals for all extinguishers and systems serviced (Violation Number 72); Rule 4A-21.102(11)(b)16, Florida Administrative Code, which requires that Class A, B, C, and D licensees possess nitrogen with a regulator rated at 500-1500 pounds per square inch and a second gauge to monitor the accuracy of the indicating gauge (Violation Number 73); Rule 4A-21.102(11)(b)17, Florida Administrative Code (Violation Number 74); Rule 4A- 21.102(11)(b)18, Florida Administrative Code, which requires that Class A, B, C, or D licensees possess a safety cage for hydrostatic testing of low-pressure cylinders (Violation Number 75); Rule 4A-21.102(11)(b)19, Florida Administrative Code (Violation Number 76); Rule 4A-21.102(11)(b)24, Florida Administrative Code (Violation Number 77); Rule 4A- 21.102(11)(b)25, Florida Administrative Code, which requires
that Class A, B, C, or D licensees possess a closed recovery system for reusing dry chemical (Violation Number 78); Rule 4A-21.102(11)(b)26 and 27, Florida Administrative Code (Violation Number 79); Rule 4A-21.102(11)(b)28, Florida Administrative Code, which requires that Class A, B, C, and D
licensees possess a closed recovery system for the removal and recharge of halon as required by National Fire Protection Association Standard 10 (Violation Number 80); and Rule 4A- 21.102(11)(b)29, Florida Administrative Code, which requires that Class A, B, C, and D licensees possess properly kept and printed invoices (Violation Number 81).
Count VIII alleges that, on April 10, 1997, Petitioner inspected a pre-engineered system installed and serviced by Respondents at a SunTrust Bank in Naples. Count VIII alleges that Respondents tagged the Ansul SPA 50 system as hydrostatically tested by Respondents in October 1995 and serviced by them in October 1996. Count VIII alleges that Respondents installed the cylinder and expellant gas cartridge in the hazard area, so as to expose the system to fire or explosion. Count VIII alleges that Respondents failed to replace the fusible links annually, record on the tag the year that the links were manufactured, and possess adequate testing equipment (test adapters) and manuals for installing and servicing the system.
Count VIII alleges that Respondents thus violated Section 633.061(1), Florida Statutes (Violation Number 82); Section 633.065(1)(c), Florida Statutes (Violation Number 83); Section 633.065(2), Florida Statutes (Violation Number 84); and Section 633.065(2), Florida Statutes, Chapter 4A-21, Florida Administrative Code, and National Fire Protection Association Standards 10 and 17, 1994, with respect to National Fire Protection Association Standard 10, 5-1.2 (Violation Number 85); National Fire Protection Association Standard 10, 5-5.1 (Violation Number 86); National Fire Protection Association Standard 17, 3-8.3.1, which prohibits the installation of dry chemical containers and expellant gas assemblies where they will be exposed to fire or explosion in the hazard areas (Violation Number 87); National Fire Protection Association Standard 17, 9-3.2, which requires the annual replacement of fixed-temperature sensing fusible metal alloy links (Violation Number 88); National Fire Protection Association Standard 17, 9-3.2.1, which requires that the installer initial or sign the tag and write on the tag the year of manufacture and date of installation of the fixed-temperature sensing element (Violation Number 89); National Fire Protection Association Standard 17, 9-5, which requires that hydrostatic testing be performed by persons trained in pressure-testing procedures and safeguards and having available suitable testing equipment, facilities, and service manuals (Violation Number
90); and National Fire Protection Association Standard 17,
9-5.1, which prohibits leakage or movement of hose couplings, requires that all test procedures comply with the manufacturer’s detailed, written hydrostatic test instructions, and requires that all persons subject dry chemical containers, auxiliary pressure containers, and hose assemblies to hydrostatic test pressure equal to the marked factory test pressure of the test pressure specified in the manufacturer’s listed installation and maintenance manual (Violation Number 91).
Count IX alleges that, on April 10, 1997, Petitioner inspected a pre-engineered system installed and serviced by Respondents at a VFW Post in Naples in February 1997. Count IX alleges that Respondents failed to tighten the piping and fittings, as required by the manufacturer’s specifications, so that the end-pipe-drop-to-nozzle was loose; failed to position the 260 nozzle two inches inside the cooking surface perimeter and aim the 260 nozzle at the center of the cooking area; and failed to position the 230 nozzle anywhere along or within the perimeter of the maximum hazard area and angle the nozzle tip to the center of the single fryer.
Count IX alleges that Respondents thus violated Section 633.061(1), Florida Statutes (Violation Number 92); Section 633.065(1)(c), Florida Statutes (Violation Number 93); and Section 633.065(2), Florida Statutes (Violation Number 94).
Count X alleges that, on April 10, 1997, Petitioner examined the inspection report for two pre-engineered systems installed and serviced by Respondents at Mozzarella's Café in Fort Myers. Count X alleges that Respondents completed only one inspection report instead of one report for each of the two systems serviced; failed to include in the inspection report references to drawings and page numbers; failed to list in the inspection report the other gas valve on the front hood of the system; failed to list in the inspection report the type of links in each hood; and failed to include the permittee’s permit number in the inspection report.
Count X alleges that Respondents thus violated Rule 4A- 21.304(2), which requires that a permittee installing, inspecting, repairing, maintaining, or servicing a pre- engineered system complete an inspection report, one copy of which must be signed and delivered to the owner or owner’s representative and the other copy of which must be retained in the dealer’s files (Violation Number 95).
Count XI alleges that, on April 10, 1997, Petitioner examined the inspection report for a pre-engineered system serviced by Respondents in the cooking hood at Kwan’s Express in Fort Myers in December 1996. Count XI alleges that Respondents failed to list “the inspection report degree and type of links installed,” failed to include in the inspection report the reference drawing and page number from the
manufacturer manual, and failed to list the model of the system in the inspection report.
Count XI alleges that Respondents thus violated Rule 4A- 21.304(2), Florida Administrative Code (Violation Number 96).
Count XII alleges that, on August 19, 1997, Respondents visited a Red Lobster restaurant in Naples and spoke to the general manager. Count XII alleges that Respondent Todd Jacobs told the general manager that Respondent National Fire and Safety Corporation could perform a renovation and semi- annual servicing of Red Lobster’s pre-engineered system.
Respondent Todd Jacobs then allegedly inspected the system.
Count XII alleges that, on August 21, 1997, Ward Read, a permittee of Respondent National Fire and Safety Corporation, appeared at the Red Lobster and said he was affiliated with Respondent National Fire and Safety Corporation. Mr. Read allegedly renovated and serviced Red Lobster’s pre-engineered system.
Count XII alleges that, in connection with the Red Lobster pre-engineered system, Respondents solicited business, inspected the system, scheduled service, and directed their permittee to renovate and service the system--all while Respondents’ licenses and permits had been suspended by Petitioner.
Count XII alleges that Respondents thus violated Section 633.061, Florida Statutes (Violation Number 97); Section
633.065(1)(a), Florida Statutes, which requires that fire equipment dealers hold licenses under Section 633.061, Florida Statutes (Violation Number 98); and Section 633.162(1), Florida Statutes, which prohibits the violation of any provision of Chapter 633, Florida Statutes, or the rules adopted pursuant to these statutes (Violation Number 99).
At the hearing, Respondents stipulated to the violations alleged in Count II (Violation Numbers 11-21) and that these violations threatened the health, safety, and welfare to the public.
At the hearing, Petitioner called six witnesses and offered into evidence 18 exhibits. Respondent called four witnesses and offered into evidence 35 exhibits. All exhibits were admitted.
The court reporter filed the transcript on September 26, 1997.
FINDINGS OF FACT
General
Respondents hold Class A and C licenses as fire extinguisher dealers, Class D licenses as pre-engineered systems dealers, Class 01 licenses as fire extinguisher permittees, and Class 04 licenses as pre-engineered systems permittees. Respondent Todd Jacobs (Jacobs) is the qualifier for Respondent National Fire and Safety Corporation (NFS).
NFS has been in the fire-safety business for about 15 years. Jacobs received his first permit about ten years ago. Neither Respondent has been disciplined prior to the suspension of all of their licenses and permits effective
May 15, 1997, for the incidents described below. The suspension has remained continuously in effect through the present.
Pre-engineered systems are custom installations of fire-suppression systems. These pressurized systems, which are activated by heat-sensitive fusible links and small cylinders known as cartridges, feature large metal cylinders that supply the powder through pipes to specific hazard areas. Pre-engineered systems must be installed in accordance with pretested limitations and configurations.
Petitioner has cited various violations of the standards of the National Fire Protection Association. As noted in the conclusions of law, violation of these standards, which are incorporated into the rules, provide the basis for discipline. The relevant standards of the National Fire Protection Association are divided into two sections: one governs persons dealing with fire extinguishers and the other governs persons dealing with pre-engineered systems.
National Fire Protection Association 10 is titled, “Standard for Portable Fire Extinguishers.” National Fire Protection Association 10, Standard 1-3 defines a “portable
fire extinguisher” as a “portable device carried on wheels and operated by hand containing an extinguishing agent that can be expelled under pressure for the purpose of suppressing or extinguishing a fire.” National Fire Protection Association
10 applies to fire extinguishers, not pre-engineered systems.
National Fire Protection Association 10, Chapter 4 governs the inspection, maintenance, and recharging of fire extinguishers. National Fire Protection Association 10, Standard 4-1.4 provides that “[m]aintenance, servicing, and recharging” of fire extinguishers shall be performed by trained persons “having available the appropriate servicing manual(s), the proper types of tools, recharge materials, lubricants, and manufacturer’s recommended replacement parts or parts specifically listed for use in the fire extinguisher.”
National Fire Protection Association 10, Standard
4-5.1.2 requires that persons recharging a fire extinguisher shall follow the “recommendations of the manufacturer.”
National Fire Protection Association 10, Standard 4-5.3.1 requires that persons recharging fire extinguishers
use “[o]nly those agents specified on the nameplate or agents proven to have equal chemical composition, physical characteristics, and fire extinguishing capabilities ”
National Fire Protection Association 10, Standard
4-5.3.2 prohibits persons recharging fire extinguishers from
mixing “[m]ultipurpose dry chemicals” with “alkaline-based dry chemicals.”
National Fire Protection Association 10, Chapter 5 governs the hydrostatic testing of fire extinguishers. Table 5-2 provides that the longest hydrostatic test interval for fire extinguishers is 12 years. National Fire Protection Association 10, Standard 5-1.2 provides that the hydrostatic testing of fire extinguishers shall be performed by trained persons “having available suitable testing equipment, facilities, and appropriate servicing manual(s).”
National Fire Protection Association 10, Standard 5-5.1.1 requires that persons hydrostatically testing fire extinguishers first conduct an internal examination of the cylinder.
National Fire Protection Association 10, Standard 5-5.1.2 requires that persons hydrostatically testing fire extinguishers do so in accordance with the “procedures specified in the pamphlet Methods for Hydrostatic Testing of Compressed Gas Cylinders (CGA C-1), published by the Compressed Gas Association.”
National Fire Protection Association 10, Standard 5-5.2 provides that the testing procedures for low-pressure cylinders, shells, and hose assemblies are detailed in Appendix A. Appendix A contains detailed material, but, according to a prefatory statement, “[t]his Appendix is not
part of the requirements of this National Fire Protection Association document but is included for informational purposes only.”
National Fire Protection Association 17 is titled, “Standard for Dry Chemical Extinguishing Systems.” National Fire Protection Association 17, Standard 1-4 defines “pre- engineered systems,” in part, as [t]hose having predetermined flow rates, nozzle pressures, and quantities of dry chemical [with] specific pipe size, maximum and minimum pipe lengths, flexible hose specifications, number of fittings and number and types of nozzles prescribed by a testing laboratory.” National Fire Protection Association 17 applies to pre- engineered systems, not fire extinguishers.
National Fire Protection Association 17, Standard 1-4 defines “inspection” as a “’quick’ check to give reasonable assurance that the extinguishing system is fully
charged and operable.” The definition adds that this is done by “seeing that the system is in place, that it has not been activated or tampered with, and that there is no obvious physical damage or condition to prevent operation.”
National Fire Protection Association 17, Standard
3-8.3.1 requires that the dry chemical container and expellant gas assemblies of a pre-engineered system shall be located “so as not to be subjected to severe weather conditions or to mechanical, chemical, or other damage.”
National Fire Protection Association 17, Standard
3-9.1 provides that, for pre-engineered systems, the “pipings and fittings shall be installed in accordance with good commercial practices.”
National Fire Protection Association 17, Chapter 9 governs the inspection, maintenance, and recharging of pre- engineered systems. National Fire Protection Association 17, Standard 9-1.1 provides that, when dry chemical pressure containers are not attached to piping or hand hose lines, the discharge outlet shall have a protective diffusing safety cap to protect persons from recoil and high-flow discharge in case of accidental activation. The caps shall also be used on empty
National Fire Protection Association 17, Standard 9-
1.4 provides that “[a]ll dry chemical extinguishing systems shall be inspected in accordance with the owner’s manual and maintained and recharged in accordance with the manufacturer’s listed installation and maintenance manual and service bulletins.”
National Fire Protection Association 17, Standard 9-3.2 provides that “[f]ixed temperature-sensing elements of the fusible metal allow type shall be replaced at least annually from the date of installation. They shall be destroyed when removed.”
National Fire Protection Association 17, Standard 9-3.2.1 provides that the “year of manufacture and date of
installation of the fixed temperature-sensing element shall be marked on the system inspection tag[,]” and the “tag shall be signed or initialed by the installer.”
National Fire Protection Association 17, Standard 9-4.2 provides that “[s]ystems shall be recharged in accordance with the manufacturer’s listed installation and maintenance manual.”
National Fire Protection Association 17, Standard
9-5 requires that trained persons hydrostatically testing pre- engineered systems have “available suitable testing equipment, facilities, and an appropriate service manual(s).” This standard requires hydrostatic testing at 12-year intervals for the dry chemical container, auxiliary pressure containers (unless less than two inches in outside diameter and two feet in length or unless they bear the DOT stamp, “3E”), and hose assemblies.
National Fire Protection Association 17, Standard 9-5.1 requires that persons hydrostatically testing pre- engineered systems subject the tested components of hydrostatic test pressure equal to the marked factory test
pressure or the test pressure specified in the manufacturer’s listed installation and maintenance manual. This test prohibits any leakage, rupture, or movement of hose couplings
and requires test procedures in accordance with the manufacturer’s detailed written hydrostatic test instructions.”
National Fire Protection Association 17, Standard 9-5.2 requires that persons hydrostatically testing pre- engineered systems remove and discard the dry chemical agent from the containers prior to the test.
Page Field (Counts I and II)
In March 1997, Rick Clontz, a Lee County employee, asked Roland Taylor, an NFS employee, to service components of the fire-safety system at the Lee County Hazardous Materials Facility at Page Field in Fort Myers. This fire-safety system protects an area at which Lee County stores corrosive, flammable, and poisonous materials.
Initially, Mr. Taylor removed three ten-pound ABC fire extinguishers. These are small portable cylinders, whose “ABC” designation refers to their ability to suppress a broad range of fires.
According to the National Fire Protection Association standards, Class A fires involve “ordinary combustible materials, such as wood, cloth, paper, rubber, and many plastics.” Class B fires involve “flammable liquids, oils greases, tars, oil-based paints, lacquers, and flammable gases.” Class C fires involve “energized electrical equipment
. . . .”
On April 1, 1997, Mr. Taylor returned the three 10- pound ABC fire extinguishers. Later inspection revealed that Mr. Taylor had properly removed and discarded the ABC powder from each cylinder, but he had refilled only one of the three cylinders entirely with ABC powder. He erroneously filled the other two cylinders with mixtures of 75 percent and 50 percent BC powder.
The improper filling of two of the fire extinguishers at the Page Field Hazardous Materials Facility threatened the public health, safety, and welfare.
Meeting Mr. Taylor at the Page Field facility when Mr. Taylor returned the three small cylinders, Mr. Clontz asked him to remove the 50-pound Ansul SPA 50 cylinder and hydrostatically test it. Mr. Taylor noted that the cylinder was not yet due for this test, but quoted a price to which Mr. Clontz agreed, and Mr. Taylor disconnected the cylinder from the pre-engineered system and transported it from the site.
Hydrostatic testing is a hydraulic interior pressurization test that measures ductility, which is the ability of cylinder walls to expand and contract. The purpose of hydrostatic testing is to determine the suitability of a cylinder for continued service.
Hydrostatic testing requires the tester to release the pressure and empty the contents of a cylinder. Using specialized equipment, the tester then fills the cylinder with
water, pressurizing it to twice the service pressure or, for the systems cylinders involved in this case, 1000 pounds per square inch.
Cylinder failure from the loss of structural integrity can result in a dangerous rupture, possibly causing an improperly bracketed cylinder to launch like an unguided missile. A cylinder that passes its hydrostatic test does not have to be retested for 12 years.
Three days later, Mr. Taylor returned the Ansul cylinder with a tag stamped to show the date on which NFS had hydrostatically tested the cylinder. Mr. Taylor reconnected it to the pre-engineered system, changing the three fusible links.
However, Mr. Taylor did not tighten the actuation piping wrench-tight, as required by the manufacturer’s specification. Instead, Mr. Taylor left the actuation piping sufficiently loose that it might cause a failure of the pre- engineered system to activate. As Respondents conceded, the loose actuation piping threatened the public health, safety, and welfare.
Finished with his work, Mr. Taylor gave Mr. Clontz a receipt, but no diagram or report, as Mr. Clontz usually received after such service. Consistent with the work requested by Lee County, the receipt stated that NFS had
hydrostatically tested and recharged the three ten-pound and one 50-pound cylinders.
However, NFS had not hydrostatically tested the 50- pound Ansul SPA 50 cylinder. NFS had not even changed the powder in the cylinder. Jacobs was personally aware of these facts and personally authorized the deceitful stamping of the tag to show a hydrostatic testing. The fraudulent misrepresentation concerning the hydrostatic testing of the Ansul SPA 50 cylinder threatened the public health, safety, and welfare.
Additionally, NFS had replaced the three fusible links with three other fusible links. Petitioner failed to prove that there are material differences between the two types of links so as to justify discipline.
There are two differences between the links. First, NFS used Globe links rather than Ansul links. However, Ansul links are manufactured by Globe. The Ansul expert testified that Ansul subjects the links to an additional inspection. However, the record does not reveal whether Globe does not also subject its brand-name links to another inspection that it does not perform for the links that it manufactures for Ansul. The Ansul expert did not testify as to the defect rate resulting from the Ansul inspection or any difference between the performance of the “two” links. On this record, then,
there is no demonstrated difference in the two brand-named fusible links.
The second difference is that NFS installed an ML link rather than the newer K link currently in use. Ansul approved the ML link in the Ansul SPA 50 pre-engineered system until five years ago. At that time, Ansul authorized use of the older ML link until dealer inventories were depleted.
Even assuming that the K link represents a safety advance, compared to the ML link, Ansul’s gradual introduction of the new link precludes a finding that the difference was material, unless one were to assume that Ansul disregarded public safety when authorizing the gradual introduction of the new link.
Respondents conceded that they did not have a copy of the Ansul SPA 50 manual when they serviced the Ansul SPA 50 system. They have since obtained the manual. Petitioner failed to show that the failure to have the manual threatened the public health, safety, or welfare.
Respondents conceded that they did not produce the inspection form for the system. They had provided such a form previously. Petitioner failed to show that the failure to produce an inspection form threatened the public health, safety, or welfare.
At the hearing, Petitioner agreed not to pursue the claim against Respondents regarding the LT10R cartridge. Petitioner effectively conceded that Respondents were not
required to hydrostatically test the cartridge because it is exempt from such testing. Petitioner evidently elected not to pursue the recharging issue for other reasons.
Mobile Service Units (Counts III-V
The service truck operated by Mark Thackeray did not have a conductivity tester, certified scales, or proper manuals. The conductivity tester ensures that the braiding is intact on carbon dioxide hoses. The certified scales ensures that the cylinder is filled with the proper amount of dry chemical. The manuals ensure that the person servicing a pre- engineered system understands all of its components and how it works. Additionally, one cylinder in the truck had a drill bit instead of a safety pin installed in the head of the bottle.
Petitioner also proved that the fire extinguisher and pre-engineered system tags bore the Naples and Fort Myers addresses for NFS. As noted below, the Fort Myers location was inactive, used only for storage and drop-offs and not for shop work or retail sales activity. For several years, Petitioner’s representatives knew that the tags bore both addresses and knew that the Fort Myers location was inactive, but never objected to Respondents’ practice.
The only violation involving Mr. Thackeray’s truck that threatened the public health, safety, or welfare was the failure to have certified scales.
The service truck operated by Ward Read lacked an operational inspection light, six-inch vise, and proper manuals. Additionally, Mr. Read’s truck had tags with the Fort Myers and Naples addresses for NFS. However, none of these violations involving Mr. Read’s truck threatened the public health, safety, or welfare.
Petitioner failed to prove that Mr. Read’s truck lacked leak testing equipment. The truck had a bottle of Leak Tech with which to detect leaks in fire extinguishers. The truck also had a cable-crimping tool. The truck lacked a Kidde tool, but Petitioner failed to prove that Mr. Read installed Kidde systems off this truck or that the crimping tool present on the truck could not service adequately Kidde installations.
The service truck operated by Donald Zelmanski lacked an inspection light, a six-inch vise, certified scales, leak-testing equipment, and proper manuals. Mr. Zelmanski’s truck contained tags with the Fort Myers and Naples addresses. The only violation that threatened the public health, safety, or welfare was the failure to have certified scales.
Naples and Fort Myers Facilities (Counts VI-VII)
The NFS Naples facility lacked operational hydrostatic test equipment on April 9, 1997. Respondents claim that they were having the equipment upgraded and calibrated at the time of the inspection. Ordinarily, this
defense might be creditable, but not in this case. While the hydrostatic test equipment was out of service, NFS accepted the Page Field cylinder for hydrostatic testing and returned it to service, fraudulently representing that the cylinder had been hydrotested. This is precisely the practice against which the requirement of operational testing equipment is designed to protect.
The Naples facility also lacked certified gauges for low-pressure testing. Respondents claim that the equipment upgrade described in the preceding paragraph would allow them to test high- and low-pressure cylinders on the same machine. However, due to Respondents’ fraudulent handling of the Page Field cylinder during the equipment downtime, this defense is unavailing.
The Naples facility lacked an adapter to allow Respondents to recharge an Ansul SPA 50 cylinder. Jacobs drove the Page Field cylinder to St. Petersburg to have the cylinder recharged by a competitor that had such an adapter. However, the requirement that a facility have an adapter reduces the risk that a licensee will ignore its professional responsibilities and simply return a cylinder to service without first discharging it and performing a visual internal inspection. Respondents’ failure to discharge their other professional responsibilities underscores the materiality of
the requirement that they keep an adapter for the Ansul SPA 50 that they elected to accept for service.
Respondents kept tags at the Naples facility with tags containing addresses of the Naples and Fort Myers facilities. At the time of the inspection, Respondents also lacked documentation for two of eight scales, including a scale in 1/4-pound increments. Jacobs’ claim that they sent the two uncertified scales for servicing immediately after the inspection does not obviate the fact that, at the time of the inspection, they were available for use and in disrepair.
Respondents failed to include serial numbers of serviced fire extinguishers on the relevant invoices. Respondents also failed to include the necessary permit number on inspection forms.
Respondent falsely represented that they had hydrotested the Page Field Ansul SPA 50 cylinder at the Naples facility when they had not done so. Respondents stored cylinder bottles without safety caps in place.
Petitioner failed to prove that Respondents did not post DOT certification near the hydrostatic testing equipment or that they stocked nitrogen cylinders without an acceptable blow-out disk in place. The blow-out disks were not Ansul brand, but Petitioner failed to prove that the disks were not UL listed or the substantial equivalent of Ansul disks.
Respondents concede that the Fort Myers location lacked the items alleged by Petitioner. However, the Fort Myers location is inactive and serves merely as a drop-off or storage facility. All shop work and retail sales activities occur at the Naples location. At the time of the April 1997 inspection, Respondents surrendered the license for the inactive Fort Myers location.
Other Jobs (Counts VIII-XI)
Respondents installed a pre-engineered system at the SunTrust Bank in Naples. The cylinder is in the bank vault, which it is designed to protect. Petitioner charged that Respondents improperly located the cylinder in the hazard area, but Petitioner did not discuss the fact that the cylinder at Page Field was in the hazard area. Obviously, the corrosive effect of the hazardous materials at Page Field represents a greater risk to the cylinder than the corrosive effect of money and other valuables in the vault at the SunTrust. Additionally, some language in the Ansul manual cautions not to locate the cylinder in the hazard area, but only if the hazard is corrosive.
Respondents replaced the fusible links at SunTrust annually. However, they failed to record the year of manufacture of the fusible links on the system tag when last servicing the system in October 1996. There is no evidence as
to whether Respondents had suitable Ansul manuals and adapters when it serviced the system at that time.
Respondents installed a pre-engineered system at the VFW Post in Naples. In doing so, their employee, who also misfilled the three fire extinguishers at Page Field, left the end-pipe-to-nozzle loose, so as to risk a loss of pressure in case of fire. This condition threatened the public health, safety, and welfare. Although Respondents fired this employee shortly after discovering his poor performance, this action does not eliminate the safety violations for which he, and they, are responsible.
Petitioner also proved that Respondents located the
260 nozzle over the griddle in the wrong location. This condition threatened the public health, safety, and welfare because the system might not extinguish a fire on the griddle.
Petitioner failed to prove that Respondents located the 230 nozzle in the wrong location. The Ansul manual allows this nozzle to be located anywhere along or within the perimeter of the fryer, if aimed to the center of the fryer. The 230 nozzle was so located and aimed.
Respondents installed two pre-engineered systems at Mozzarella’s Café in Naples. In the course of this job, Respondents committed several violations governing documentation. Respondents improperly combined two pre- engineered systems on one inspection report, failed to include
in the inspection report references to the manufacturer’s drawings and page numbers, failed to list in the inspection report a second gas valve on the front hood of one system, and failed to include in the inspection report Respondents’ permit number. However, Petitioner failed to prove that Respondents failed to list in the inspection report the type of fusible links in each hood.
Respondents serviced a pre-engineered system at Kwan’s Express in Fort Myers in December 1996. Respondents failed to list in the inspection report the degree and types of fusible links installed and a reference to the drawing and page number in the manufacturer’s manual. However, Respondents listed in the inspection report the model number of the system.
Red Lobster (Count XII)
Several months after Petitioner had suspended Respondents’ licenses and permits, counsel for both parties negotiated a settlement agreement. Under the agreement, Petitioner would immediately lift the suspension.
Jacobs and his general manager, Judson Schroyer, learned that Respondents’ counsel had received an unsigned, final draft settlement agreement on Monday, August 18, 1997. The settlement conditions were acceptable to Respondents, and Jacobs knew that Respondents’ counsel had signed the agreement
and faxed it back to Petitioner’s counsel for execution by Petitioner’s representative.
On August 18, the general manager of the Red Lobster in Naples called NFS and spoke with Jacobs. The general manager described a job involving the installation of a new oven, which would necessitate the relocation of other kitchen equipment a few feet. Thinking that the settlement agreement would be fully executed by then, Jacobs agreed to visit the general manager at the site the following morning.
The next morning, Jacobs and Mr. Schroyer met the general manager at the Red Lobster. Giving the general manager NFS business cards with their names, Jacobs and Mr. Schroyer briefly examined the pre-engineered system in the kitchen, as the three men walked through the kitchen, and assured the general manager that there would be no problem doing the work in the short timeframe that the customer required. The purpose of the visit was much more for marketing than it was for preparation for the relatively simple job that the general manager envisioned.
Shortly after leaving the Red Lobster, Mr. Schroyer realized that Respondents might not have their licenses and permits reinstated in time to do the job. He conveyed this concern to his supervisor, Jacobs, who spoke with Respondents’ counsel on the evening of August 19 and learned that they could not do the job. Jacobs instructed Mr. Schroyer to call
another company in Fort Myers, FireMaster, to which Respondents had referred work during their suspension.
Mr. Schroyer called a representative of FireMaster, and he agreed to perform the work. FireMaster assigned the job to Ward Read, who, as is authorized by Petitioner, held a dual permit, which means that he was permitted to work for two licensed dealers. One was NFS, and the other was FireMaster.
Mr. Read reported to the Red Lobster in the predawn hours of August 21, as requested by the general manager of Red Lobster. Because his FireMaster truck had insufficient supplies, Mr. Read used an NFS truck, the equipment tags, inspection report, and invoice all bore the name of FireMaster.
CONCLUSIONS OF LAW
General
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)
Section 633.061(1) provides that it is
unlawful for any organization or individual to engage in the business of servicing, repairing, recharging, testing, marking, inspecting, or installing any fire extinguisher or pre-engineered system in this state except in conformity with the provisions of this chapter. Each organization or individual engaging in
such activity must possess a valid and subsisting license issued by the State Fire Marshall. . . . The licensee shall be legally qualified to act for the business organization in all matters connected with its business, and he will supervise all activities undertaken by such business organization. A further requirement, in the case of multiple locations where such servicing or recharging is taking place, is that each licensee who maintains more than one place of business where actual work is carried on must possess an additional license, as herein set forth, for each location.
. . .
Section 633.061(2) provides that “[e]ach individual actually performing the work of servicing, recharging, repairing, installing, testing, or inspecting fire extinguishers or pre-engineered systems must possess a valid and subsisting permit issued by the State Fire Marshall.”
Section 633.061(9) provides that all persons must service, recharge, repair, test, inspect, and install all fire extinguishers and pre-engineered systems in compliance with Chapter 633, Florida Statutes, and the rules promulgated by the State Fire Marshall, including the standards of the National Fire Protection Association.
Section 633.065(1)(b) provides that persons shall “suppl[y]” equipment listed by a nationally recognized testing laboratory. Section 633.065(1)(b) provides that persons shall “install. . .” equipment in accordance with the “applicable standards of the National Fire Protection Association and the
manufacturer’s drawings and specifications.” Section 633.065(2) provides that persons shall “inspect. . ., service. . ., and maintain. . .” equipment in accordance with the manufacturer’s maintenance procedures and the applicable National Fire Protection Association’s standards.
Section 633.162(1) provides that the State Fire Marshall may revoke or suspend a license or permit for the violation of any provision of Chapter 633, Florida Statutes; the rules promulgated under Chapter 633, Florida Statutes; or any order to correct a violation or cease and desist order. Section 633.162(1) limits an order of suspension to a period of two years and an order of revocation to a period of five years.
Section 633.162(2)(b) and (c) provides that the State Fire Marshall may revoke or suspend a license or permit if the licensee or permittee has “[f]alsified any record required to be maintained by this chapter or rules adopted pursuant thereto” or “[I]mproperly serviced, recharged, repaired, tested, or inspected a fire extinguisher or preengineered system.”
Section 633.163(1) authorizes the State Fire Marshall, in its discretion in the case of a first offense, to substitute for revocation or suspension the imposition of an administrative fine of not more than $1000 per violation and
$10,000 per proceeding.
Section 633.167 authorizes the State Fire Marshall, in cases in which a fine is authorized, to place the licensee or permittee on probation for a period of not more than two years.
Rule 4A-21.101 provides that it is “unlawful for any organization or individual to engage in the business of installing, testing, recharging, repairing or inspecting portable fire extinguishers and pre-engineered systems” except as provided in Chapter 633, Florida Statutes. Rule 4A-21.101 provides that all organizations engaging in such business must have a license and all individuals performing the actual work must have a permit.
Rule 4A-21.102(1) requires that “[e]ach licensee shall maintain a specific business location. . .” and “[a] separate application and license are required for each business location.” The rule adds that any advertising of services involving fire extinguishers or pre-engineered systems “shall indicate that the premises, business, room, shop, store or establishment in or upon which it appears or to which it refers are a separate business location.”
Rule 4A-21.102(11)(a) requires that “[e]ach licensed business location shall be required to possess . . . the equipment listed below in accordance with the class of license requested.”
Rule 4A-21.102(11)(b) provides, in relevant part, as follows (applicable to all license classes except as noted in parentheses):
Adequate hydrostatic test equipment for high pressure testing and calibrated cylinder. DOT certification letter posted on or near the test apparatus. (A)
Conductivity tester and tags as required by National Fire Protection Association 10, 1994 Edition. (A, B, C)
Drying method for high and low pressure cylinders, meeting the guidelines of National Fire Protection Association 10, 1994 Edition.
Proper wrenches with non-serrated jaws or valve puller, hydraulic or electric.
Adequate inspection light.
Low pressure rest apparatus with dual gauges or single gauge certified accurate annually. (Dealer must provide evidence of certification during inspection.)
All record tags, service, hydrotest,
6 year maintenance, internal, etc. as required by rule chapter 4A-21.
Scales with divisions of not more than 1/4 ounce for weighing CO2 cartridges. Must be certified annually or tested for accuracy annually by a service agency as defined in Chapter 5F-4, Fla. Admin. Code.
Accurate weighing scales for extinguisher inspection and filling. Must be certified annually or tested for accuracy annually by a service agency as defined in Chapter 5F-4, Fla. Admin. Code.
Vise, 6 inch minimum (chain or bench).
Supply of dry chemicals in proper storage for all extinguishers and systems being serviced.
Facilities for leak testing of pressurized extinguishers.
Nitrogen with regulator and indicator. Regulator not to exceed 1500 psi--minimum 500 psi. The indicating gauge for the regulator shall have a second gauge of the same type and range for the purpose of monitoring accuracy.
Adapters, fittings and sufficient tools and equipment for properly servicing and/or recharging all extinguishers and pre-engineered systems being serviced and recharged.
Safety cage for hydrostatic testing of low pressure cylinders.
Scales with divisions of not more than 1/2 pound and minimum 150 pounds for weighing chemical recharging. Must be certified annually or tested for accuracy annually by a service agency as defined in Chapter 5F-4, Fla. Admin. Code. (D)
Cable crimping tool (where required). (D)
Installation, maintenance and recharge manuals for extinguishers and systems being serviced and installed.
Closed recovery system for reusing dry chemical.
National Fire Protection Association
10 as adopted in 4A-21.202, National Fire Protection Association 96 as adopted in 4A-21.302, CGA C-6, C-6.1 CFR 49, Parts 100-177, and 29 for Class “A” only CGC
C-1. (A, B, C)
National Fire Protection Association 12, 12A, 12B, 34, 17, 17A, 96, 2001, CFR
Parts 100-177, and 29, as adopted in Section 4A-21.302. (D)
Closed recovery system for removal and recharge of halon as required in National Fire Protection Association 10, 1994 Edition.
Invoices properly kept and printed.
Rule 4A-21.202 adopts National Fire Protection Association 10, but it was repealed in October 1993. However, Section 633.065(2) adopts the standards of the National Fire Protection Association. Rule 4A-21.302 adopts National Fire Protection Association 17. Rule 4A-21.304(2) requires that the inspection report include various information, including the system's model number and reference to the drawing number and page number in the manufacturer's manual.
Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Page Field (Counts I and II)
Petitioner failed to prove Violation Numbers 1, 2, and 3. Violation Numbers 2 and 3 involve the fusible links, which have been discussed above.
Violation Number 1 alleges only that Respondents violated Chapter 633, Florida Statutes. Without more, this alleged violation of law does not inform Respondents or the
administrative law judge of the nature of the alleged violation. Petitioner does not discuss Violation Number 1 in any detail in its proposed recommended order.
Violation Number 4 is a little more specific, requiring that Respondents inspect, service, and maintain equipment in accordance with the manufacturer’s procedures and National Fire Protection Association standards. However, this allegation is sufficient given the magnitude of the failure to perform the hydrostatic testing of the large cylinder at Page Field and Respondents’ admission that they did not do the test.
Violation Numbers 5-7 are specific, but apply only to fire extinguishers, not to pre-engineered systems, such as the Ansul SPA 50 that is the subject of Count I.
Petitioner proved Violation Number 8. Respondents did not remove the dry chemical agent from the Ansul SPA 50. Their defense concerning the temporary unavailability of their hydrostatic testing machine does not explain why they did not bother at least to change the powder.
Petitioner proved Violation Numbers 9 and 10. Respondents did not recharge the Ansul SPA 50 in accordance with the manufacturer’s instructions, nor did they install the piping in accordance with good commercial practices--i.e., wrench tight.
Petitioner alleged 11 separate violations for the misfilling of two of the three ten-pound ABC fire extinguishers at Page Field. There was inconclusive evidence of caked powder in at least one fire extinguisher. Again, in this case, Petitioner pleaded violations (Violation Numbers 20 and 21) of inapplicable National Fire Protection Association standards--here, National Fire Protection Association 17, which applies to pre-engineered systems, not fire extinguishers.
In any event, for the two misfilled fire extinguishers, Petitioner proved Violation Numbers 16, which cites the National Fire Protection Association standard prohibiting the mixing of dry chemicals, and 18, which cites the National Fire Protection Association standard requiring the use of proper chemical agents.
Mobile Service Units (Counts III-V)
Petitioner proved Violation Number 22 due to the absence of the conductivity tester on Mr. Thackeray’s truck. This requirement does not apply to a Class D license, though.
Petitioner failed to prove Violation Number 23. The truck had tags with Naples and Fort Myers addresses. It may be improper to list an address on a tag when the licensee does not maintain an active business at that location. However, the rule cited by Petitioner requires the tags required by Chapter 4A-21. Petitioner never cited in its charging
pleading or proposed recommended order the specific rule within Chapter 4A-21 concerning addresses. A reference generally to Chapter 4A-21 is too broad to inform Respondents or the administrative law judge of the specific provision of law allegedly violated by Respondents’ inclusion of two addresses on the tags.
Petitioner proved Violation Number 24 due to the absence of certified scales on Mr. Thackeray’s truck for weighing cartridges. Violation Number 25 appears to cover the same omission, and Petitioner did not allege the absence of other scales on this truck, so Petitioner failed to prove Violation Numbers 25 and 26.
Petitioner proved Violation Number 27 due to the absence of service manuals in Mr. Thackeray’s truck.
Violation Number 28 is vague and unintelligible. This alleged violation tracks the language of two rules, part of which are unreadable due to scrambled grammar. Also, this alleged violation incorporates National Fire Protection Association 10 and 17 in their entirety, which is tantamount to alleging no more than that a specific act or omission violates the law.
Violation Number 29 does not appear to relate to any facts proved as to Mr. Thackeray’s truck. A discussion of these allegations by Petitioner in its proposed recommended order would have been helpful.
Petitioner proved Violation Numbers 31, 35, and 37 due to the absence in Mr. Read’s truck of, respectively, an inspection light, a six-inch vise, and proper manuals.
Petitioner failed to prove Violation Number 30 because Petitioner never alleged that Mr. Read’s truck lacked a conductivity tester. Petitioner only alleged in the conclusory legal section of Count IV that Respondents violated the rules regarding a conductivity tester in Mr. Read’s truck. Petitioner properly divided each Count into two sections. In the first, Petitioner alleged factual acts and omissions; in the second, Petitioner alleged that these acts and omissions violated various statutes and rules. The second section is solely for the purpose of summarizing the law violated, not for introducing new factual allegations--otherwise, the readability of the charging pleading would be lost, as would be Respondents’ procedural due process rights.
Petitioner failed to prove Violation Number 32 because the truck had tags, and the rule does not specify anything about addresses. Petitioner failed to prove Violation Numbers 33, 34, and 36 because Petitioner never alleged that Mr. Read’s truck lacked scales; Petitioner only alleged in the conclusory legal section of Count IV that Respondents violated the rules requiring scales in Mr. Read’s truck. Violation 38 is vague and unintelligible. Petitioner also failed to prove Violation Numbers 39 and 40 regarding,
respectively, leak-detection facilities and cable-crimping tools.
Petitioner proved Violation Numbers 42, 44, 46, 47, and 50 regarding the absence from Mr. Zelmanski’s truck of, respectively, an inspection light, scales for weighing cartridges, a six-inch vise, leak-testing facilities, and proper manuals.
Petitioner failed to prove Violation Number 41 because Petitioner never alleged that Mr. Zelmanski’s truck lacked a conductivity tester; Petitioner only alleged in the conclusory legal section of Count V that Respondents violated the rules regarding a conductivity tester in Mr. Zelmanski’s truck. Petitioner failed to prove Violation Number 43 because the truck had tags, and the rule does not specify anything about addresses. Petitioner failed to prove Violation Numbers
45 and 48 because Petitioner never alleged that Mr. Zelmanski’s truck lacked these larger scales; Petitioner only alleged in the conclusory legal section of Count V that Respondents violated the rules requiring such scales in Mr. Zelmanski’s truck. Petitioner failed to prove Violation Number 49 because Petitioner never alleged that Mr. Zelmanski’s truck lacked a cable-crimping tool; Petitioner only alleged in the conclusory legal section of Count V that Respondents violated the rule regarding a cable-crimping tool. Violations Number 51 is vague and unintelligible.
Naples and Fort Myers Facilities (Counts VI and VII)
Petitioner proved Violation Numbers 52, 54, and 61 concerning, respectively, missing hydrotesting equipment, certified low-pressure testing equipment, and fire extinguisher serial numbers on invoices.
As to Violation Numbers 56, 57, and 59, which concern the scales, Petitioner has proved Violation Numbers 56 and 57. Two scales were broken and uncertified. Petitioner proved that one of the scales was divided into 1/4-pound increments, which establishes Violation Number 56. The other broken and uncertified scale constitutes Violation Number 57. Petitioner did not prove Violation Number 59.
For the reasons previously stated, Petitioner failed to prove Violation Number 55, which involves the dual addresses on the tags, and Violation Number 60, which is vague and unintelligible. Petitioner failed to prove Violation Number 62 because the charging pleading mentions the inspection report only in the conclusory allegations of law, not in the allegations of fact. Petitioner failed to prove Violation Number 63 because it failed to show that the diffusing caps in place were unsatisfactory. Petitioner failed to prove Violation Numbers 53 and 58 because there are no unproven factual allegations corresponding to these allegations of legal violations.
Petitioner failed to prove Violations 64-81, which concern the inactive Fort Myers location. Section 633.061(1) imposes the requirement of a license only for separate places of business “where actual work is carried on.” No work took place at the Fort Myers location, so the license for that location was not necessary and it would be unproductive to require compliance with the licensing laws at this location.
Other Jobs (Counts VIII-XI)
As to the SunTrust Bank site, Petitioner proved Violation Number 89 due to the failure to record the year of manufacture of the fusible links on the system tag.
Petitioner failed to prove the remaining allegations concerning the SunTrust site because Petitioner failed to prove the alleged facts underlying these violations (Violation Numbers 87, 88, and 90) or alleged violations of laws for which there were no underlying allegations of fact (Violation Numbers 82-86 and 91).
As to the VFW Post site, Petitioner proved only Violation Number 93, which cites the statute requiring the installation of equipment in accordance with the manufacturer’s specifications. Respondents did not install the 260 nozzle correctly.
Petitioner did not prove Violation Number 94, which cites the statute requiring the maintenance of equipment in accordance with the manufacturer’s specifications. There is
no evidence that the loosened end-pipe-to-nozzle was the result of improper installation or maintenance.
Petitioner did not prove Violation Number 92, which cites the general licensing statute. It is entirely unclear what, if any, information that Petitioner was trying to convey when it cited this statute in connection with the VFW site.
As to the Mozzarella’s Café site, Petitioner failed to prove the sole alleged violation: Violation Number 95. Violation Number 95 requires the completion of an inspection report, with one copy to the owner and one copy retained by the dealer. The proof goes to deficiencies in the inspection report, but not to the completion of one or its delivery to the owner or retention by Respondents.
As to the Kwan’s Express site, Petitioner proved Violation Number 96, which cites Rule 4A-21.304(2). Rule 4A- 21.304(2)(a) requires that the tag display the "business name of the facility [and its] street address." Any one of the four separate deficiencies in the inspection report constitutes an adequate basis for this conclusion.
Red Lobster (Count XII)
Petitioner proved that, while all licenses and permits were under suspension, Respondents engaged in regulated business by soliciting Red Lobster’s business and arranging for the work to be performed by a third party, with whom Red Lobster had no contact prior to the commencement of
actual work on August 21. Their brief observation of the pre- engineered system did not amount to an actual inspection, even if the statutory definition of this term is broader than the National Fire Protection Association definition. However, the solicitation of Red Lobster and arrangement with FireMaster constituted engaging in the business of servicing. It is enough that an unlicensed person solicits regulated business; the unlicensed person may not defend such a charge by showing that, though he tried to obtain such business, he was never successful. This unlicensed activity establishes Violation Number 97, 98, or 99--all of which essentially allege that Respondents committed acts requiring a license while their licenses were under suspension.
The brief visual examination of the pre-engineered system at the Red Lobster did not constitute an inspection, as this term is defined in National Fire Protection Association
Jacobs’ walk-by did not rise even to the level of a “quick check” as he did not examine the entire system. With or without the National Fire Protection Association definition, an inspection implies something more intensive than the glance that Jacobs cast in the direction of the system when he visited the Red Lobster, primarily for the purpose of ensuring that NFS would get the job.
However, Section 633.061(1) prohibits unlicensed persons from “engag[ing] in the business” of various
activities--namely, “servicing, repairing, recharging, testing, marking, inspecting, or installing” fire extinguishers or pre-engineered systems. Engaging in the business includes getting the business through the acts of solicitation that necessarily precede the actual work of servicing, repairing, recharging, testing, marking, inspecting, or installing fire-safety systems. In this case, Respondents engaged in substantial contacts with a customer in trying to get the regulated business and then in assigning the business that it successfully acquired to a third party previously unknown to the customer.
It is difficult to assess the magnitude of the 25 violations proved in this case. The most prominent violations involve the large cylinder at Page Field. NFS and Jacobs personally fraudulently failed to hydrotest the large cylinder before returning it to service with a tag indicating that the hydrotest had taken place. Respondents also did not service this system correctly in other respects, such as in failing to remove the dry chemical and failing to secure the actuation piping. Given the hazardous materials present at this location, Respondents’ failures represent a startling departure from the requirements of law.
The violations involving the misfilling of the two fire extinguishers at Page Field are also serious, although less so than the violations involving the Page Field pre-
engineered system. The violations at the Naples facility regarding the absence of equipment are an adjunct to the violations in the preceding paragraph. The remaining allegations concerning the Naples facility and the three mobile units and the violations involving the SunTrust, VFW, and Kwan’s undermine confidence in Respondents’ operations, but are clearly less serious than the already-discussed violations.
However, another serious violation is Respondents’ failure to comply with the suspension order entered against them. Anticipating full execution and delivery of the settlement agreement, Respondents engaged in the regulated business, before Petitioner had formally lifted the suspensions. Evidently due to Mr. Schroyer’s scruples, Respondents did not perform the actual work, but their casual disregard of the formality of licensure inspires little confidence in their resolve to comply in the future with the laws governing their profession.
It is
RECOMMENDED that the State Fire Marshal enter a final order suspending the licenses and permits of both Respondents for two years, commencing from the effective date of the earlier emergency order of suspension.
DONE AND ENTERED this 12th day of December, 1997, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1997.
COPIES FURNISHED:
Attorney Mechele R. McBride Attorney Richard Grumberg
Department of Insurance and Treasurer
200 East Gaines Street Tallahassee, Florida 32399-0333
Mark H. Muller Quarles & Brady, P.A.
4501 North Tamiami Trail Naples, Florida 34103
Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
Bill Nelson
State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11
Tallahassee, Florida 32399-0300
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this recommended order. Any
exceptions to this recommended order must be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Jan. 13, 1998 | (Respondent) Response to Motion to Strike Exceptions Filed By Petitioner (filed via facsimile). |
| Jan. 12, 1998 | Respondents` Response to Exceptions Filed by Petitioner filed. |
| Jan. 02, 1998 | Respondent`s Motion to Strike Exceptions Filed by Petitioner (filed via facsimile). |
| Dec. 12, 1997 | Recommended Order sent out. CASE CLOSED. Hearing held 09/16-17/97. |
| Nov. 14, 1997 | Letter to Judge Meale from Mark Muller (PRO on disk) filed. |
| Oct. 03, 1997 | Petitioner`s Proposed Recommended Order filed. |
| Oct. 03, 1997 | (Respondents) Recommended Order filed. |
| Sep. 26, 1997 | Transcript of Proceedings (Dated 8/28/97); Transcript of Proceedings (Dated 8/29/97); Transcript of Proceedings (Dated 9/16/97); Transcript of Proceedings (Dated 9/17/97) filed. |
| Sep. 16, 1997 | CASE STATUS: Hearing Held. |
| Sep. 12, 1997 | (From M. Muller) Answer and Affirmative Defenses to Amended Administrative Complaint filed. |
| Sep. 11, 1997 | (Respondents) (2) Notice of Taking Telephonic Deposition filed. |
| Sep. 09, 1997 | Order Denying Motion for Protective Order sent out. |
| Sep. 09, 1997 | Order Granting Motion for Leave to Amend Administrative Complaint sent out. |
| Sep. 02, 1997 | Respondents` Certificate of Service of Answers to Interrogatories; Respondents` Motion for Protective Order; Respondent`s Response to Petitioner`s Request for Production of Documents; Petitioner`s Response to Request for Admissions filed. |
| Aug. 22, 1997 | (Petitioner) Motion for Leave to Amend Administrative Complaint filed. |
| Aug. 07, 1997 | (From R. Grumberg) Notice of Appearance filed. |
| Aug. 06, 1997 | Amended Notice of Hearing sent out. (hearing set for Sept. 16-17, 1997; 9:00am; Naples) |
| Jul. 31, 1997 | Petitioner`s Expedited Motion Requesting Additional Time for Final Hearing filed. |
| Jul. 25, 1997 | Petitioner`s Notice of Service of Petitioner`s First Set of Interrogatories to Respondent filed. |
| Jul. 17, 1997 | Notice of Hearing sent out. (hearing set for 9/17/97; 9:00am; Naples) |
| Jul. 09, 1997 | Joint Response to Initial Order filed. |
| Jul. 09, 1997 | (Respondents) Request for Production of Documents; Respondent`s Notice of Service of First Set of Expert Interrogatories to Petitioner; Respondent`s First Set of Expert Interrogatories to Petitioner filed. |
| Jun. 30, 1997 | Initial Order issued. |
| Jun. 24, 1997 | Answer and Affirmative Defenses; Agency Referral letter; Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 12, 1997 | Recommended Order | Recommend two-year suspension for fire extinguisher dealer's failure to hydrostat a cylinder, failure to cease regulated business while under suspension, and other violations. |
