STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH M. TOTH, )

)

Petitioner, )

)

vs. ) Case No. 00-0532

)

DEPARTMENT OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference with the parties appearing from Fort Lauderdale, Florida, on May 10, 2000, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph M. Toth, pro se

2420 Hayes Street

Hollywood, Florida 33020

For Respondent: Elenita Gomez, Esquire

Department of Insurance Division of Legal Services

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399-0333 STATEMENT OF THE ISSUE

Whether the Petitioner's application for a Class 09 04 permit should be approved.

PRELIMINARY STATEMENT

This case began on October 15, 1999, when the Respondent, the Department of Insurance (Department), issued a letter that determined the Petitioner's application for a Class 09 04 permit would be denied. The letter outlined the basis for the denial and cited the statutory authority for the proposed action.

Thereafter, the Petitioner, Joseph M. Toth, timely challenged the denial of his request and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on January 31, 2000.

At the hearing, the Respondent presented testimony from Terry M. Hawkins, a safety program manager for the Department of Insurance; Charles Brian Parks, an employee with the office of the Division of the State Fire Marshal, Bureau of Fire Prevention; and Michael Patrick Olon, an investigator with the Bureau of Fire and Arson Investigations. The Respondent's Exhibits numbered 1 through 15 were admitted into evidence. The Petitioner did not present evidence in support of the application.

The Transcript of the proceeding was filed on June 20, 2000.

The Respondent's Proposed Recommended Order, filed on June 29, 2000, has been considered in the preparation of this Recommended Order. The Petitioner did not file a proposed order.

FINDINGS OF FACT

1. On or about August 16, 1999, the Petitioner, Joseph M. Toth, executed an application for a Class 09 04 permit. The application represented that the Petitioner had previously possessed a permit, number 788995000196, and worked for a company identified as Fire Tech Equipment (Fire Tech).

2. A review of the agency's record determined Fire Tech did not possess a valid license subsequent to December 31, 1998. Any work performed by that company subsequent to that time would have been without proper authorization from the Department.

3. All companies in the business of servicing, repairing, recharging, testing, marking, inspecting, or installing any fire extinguisher or pre-engineered system in this state must possess a valid license.

4. All individuals employed by a licensed business must hold a valid permit in order to perform such work.

5. The Petitioner was the only "Joe" employed by Fire Tech subsequent to December 31, 1998.

6. An individual using the Petitioner's expired permit number (and who was identified as "Joe") performed activities requiring licensure for Fire Tech subsequent to December 31, 1998.

7. It is an individual's responsibility to ascertain the status of a permit and to timely renew. The Department does not

   question the expiration of permits if the holder does not timely renew it.

8. As a former permit holder (and the former qualifier for a licensed business) the Petitioner knew or should have known his responsibilities regarding permit renewal.

9. It is undisputed that Fire Tech continued to perform activities requiring licensure after December 31, 1998, and that the Petitioner was employed by the company.

10. A pending criminal investigation of Fire Tech's unlicensed activities encompasses at least eighty (80) instances of jobs performed without proper authorization. Further, some of the jobs were performed so inexpertly that the client incurred additional expenses in order to correct the work.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

12. As an applicant, the Petitioner bears the general burden of proving entitlement to a Class 09 04 Permit. Florida Dept. of Trans. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). Petitioner must show by a preponderance of the evidence that he meets all of the relevant statutory criteria to satisfy this burden.

13. Section 633.061(1), Florida Statutes, provides in part:

    1. It is unlawful for any organization or individual to engage in the business of servicing, repairing, recharging, testing, marking, inspecting, installing, or hydrotesting any fire extinguisher or preengineered system in this state except in conformity with the provisions of this chapter. Each organization or individual that engages in such activity must possess a valid and subsisting license issued by the State Fire Marshal. All fire extinguishers and preengineered systems required by statute or by rule must be serviced by an organization or individual licensed under the provisions of this chapter. The licensee is legally qualified to act for the business organization in all matters connected with its business, and the licensee must supervise all activities undertaken by such business organization. Each licensee shall maintain a specific business location.

14. The Department has a reasonable basis upon which to conclude that the Petitioner performed unlicensed work subsequent to December 31, 1998. Moreover, the Petitioner (in the notarized application) acknowledged that he was employed by the unlicensed Fire Tech.

15. Section 633.162, Florida Statutes, provides:

    
    

    1. The violation of any provision of this chapter or any rule adopted and promulgated pursuant hereto or the failure or refusal to comply with any notice or order to correct a violation or any cease and desist order by any person who possesses a license or permit issued pursuant to s. 633.061 is cause for denial, nonrenewal, revocation, or suspension of such license or permit by the State Fire Marshal after such officer has determined that the person is guilty of such violation.

       * * *

       1. In addition to the grounds set forth in subsection (1), it is cause for denial, nonrenewal, revocation, or suspension of a license or permit by the State Fire Marshal if she or he determines that the licensee or permittee has:

          
          

          1. Rendered inoperative a fire extinguisher or preengineered system required by statute or by rule, except during such time as the extinguisher or preengineered system is being inspected, serviced, repaired, hydrotested, or recharged, or except pursuant to court order.

             
             

          2. Falsified any record required to be maintained by this chapter or rules adopted pursuant hereto.

             
             

          3. Improperly serviced, recharged, repaired, hydrotested, tested, or inspected a fire extinguisher or preengineered system.

             
             

          4. While holding a permit or license, allowed another person to use the permit number or license number, or used a license number or permit number other than her or his valid license number or permit number.

       
       

       * * *

       
       

       1. Made a material misstatement, misrepresentation, or committed a fraud in obtaining or attempting to obtain a license or permit.

          
          

       2. Failed to notify the State Fire Marshal, in writing, within 30 days after a change of residence, principal business address, or name.

       
       

16. In this case the Department has demonstrated a valid basis for the denial of the permit application. Such demonstration coupled with the Petitioner's failure to establish compliance with the criteria for licensure, support the

conclusion that the Petitioner's application for a Class 09 04 permit must be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order denying the Petitioner's permit application.

DONE AND ENTERED this 31st day of July, 2000, in Tallahassee, Leon County, Florida.

J. D. Parrish Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2000.

COPIES FURNISHED:

Elenita Gomez, Esquire Department of Insurance Division of Legal Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

Joseph M. Toth 2420 Hayes Street

Hollywood, Florida 33020

Honorable Bill Nelson

State Treasurer and Insurance Commissioner Department of Insurance

The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300

Daniel Y. Sumner, General Counsel Department of Insurance

The Capitol, Plaza Level 26 Tallahassee, Florida 32399-0307

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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 00-000532

Orders for Case No: 00-000532