STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF INSURANCE, )
)
Petitioner, )
)
vs. ) Case No. 01-4524
)
A FIRE PREVENTION COMPANY )
and HECTOR CABRERA, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on March 11, 2002, by video teleconference, with the parties appearing in Fort Lauderdale, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in
Tallahassee, Florida.
APPEARANCES
For Petitioner: Elenita Gomez, Esquire
Department of Insurance Division of Legal Services
200 East Gaines Street 612 Larson Building
Tallahassee, Florida 32399-0333
For Respondent: Edgar Belaval, Esquire
Edgar Belaval, P.A.
10265 Southwest 77th Court Pinecrest, Florida 33156
STATEMENT OF THE ISSUE
Whether the Respondent committed the violations alleged in the Administrative Complaint dated October 22, 2001, and, if so, the penalty that should be imposed.
PRELIMINARY STATEMENT
In an Administrative Complaint dated October 22, 2001, the Treasurer and Insurance Commissioner, acting as the State Fire Marshall, charged A Fire Prevention Company and Hector Cabrera with having violated or being accountable under
Sections 633.061(1) and (9), 633.065(1)(c) and (2), 633.071(1),
and 633.162(1) and (4)(a), (c), (e) and (f), Florida Statutes, and Rules 4A-21.242, .302, and .304(1) and (2), Florida Administrative Code. The State Fire Marshall based the charges on factual allegations relating to Mr. Cabrera's inspections and maintenance of a fire protection system that, three months after a semi-annual inspection, failed to extinguish a fire in the area it was intended to protect. The Department listed in the Administrative Complaint a number of standards of the National Fire Protection Association ("NFPA") and installation and maintenance specifications of the manufacturer of the fire system and alleged that Mr. Cabrera did not perform his inspections and maintenance of the system in accordance with the NFPA standards and the manufacturer's specifications.
Mr. Cabrera timely disputed the material facts alleged in the Administrative Complaint and requested an administrative hearing. The State Fire Marshall transmitted the matter to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant to notice, the final hearing was held on March 11, 2002.
At the hearing, the Department presented the testimony of Dennis Kerr and John Gioseffi, who were qualified as expert witnesses, and Charles Brian Parks, a fire protection specialist employed by the State Fire Marshall's Office. Petitioner's Exhibits 1 through 18 were offered and received into evidence.
Mr. Cabrera testified in his own behalf and offered no exhibits into evidence. At the State Fire Marshall's request and without objection, official recognition was taken of Chapter 633, Florida Statutes; Rule Chapter 4A-21, Florida Administrative Code; and the Kidde HDR 25DC Manual.1
The two-volume transcript of the proceedings was filed with the Division of Administrative Hearings on March 28, 2002. On April 8, 2002, Mr. Cabrera filed a motion requesting an extension of time within which to file his Proposed Recommended Order. The motion was granted in an order entered April 9, 2002, and the parties timely filed proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
The Office of the State Fire Marshall is the governmental entity responsible for regulating fire safety in Florida, including the installation, maintenance, and inspection of fire protection systems. Section 633.01, Florida Statutes (2000).
Mr. Cabrera is currently licensed by the State Fire Marshall as a Class C and D fire equipment dealer (Class 0703 and 0704) and as a fire extinguisher and preengineered systems permittee (Class 0903 and 0904).2 At the times material to this proceeding, Mr. Cabrera was issued preengineered systems permit number 435249000198.
At the times material to this proceeding, Mr. Cabrera was the qualifier for A Fire Prevention Company, was authorized to act for the business organization in all matters connected with the business, and was required to supervise all activities undertaken by A Fire Prevention Company.
A Fire Prevention Company has been in business since 1998. Prior to this time, a company referred to as "South Florida Fire" employed Mr. Cabrera.
Mr. Cabrera currently holds, and, at the times material to this proceeding, held jointly with A Fire Prevention Company, a certificate qualifying A Fire Prevention Company to engage in business as a fire equipment dealer. At the times material to this proceeding, A Fire Prevention Company and Mr. Cabrera engaged in the business of servicing, repairing, recharging, testing, inspecting, and installing fire extinguishers and preengineered fire suppression systems.
At the times material to this proceeding, Banner Beef and Seafood operated an industrial food processing facility in Miami, Florida. In the facility, meat and seafood moved through an industrial deep fat fryer on a conveyor belt and were then frozen, packaged, and sold for resale. An oil-heating unit, located in an alcove off the room containing the deep fryer, was attached to but separate from the deep fryer, and hot oil moved from the oil-heating unit through a filter into the deep fryer. The oil-heating unit held 200 gallons of oil, which was heated to 460 degrees Fahrenheit before flowing into the deep fryer. The oil-heating unit was made of stainless steel, with a stainless steel lid.
The oil-heating unit was protected by a Kidde Sentinel HDR 25DC, DOT E-7042-360-K, Serial #33996, ("Kidde HDR 25DC") preengineered dry chemical fire protection system.
On June 19, 2000, approximately three months after Mr. Cabrera performed a semi-annual inspection and maintenance of the Kidde HDR 25DC system, a fire originating in the oil- heating unit destroyed much of the Banner Beef facility.
The Kidde HDR 25DC system was probably installed at Banner Beef in or around 1981. Mr. Cabrera was not involved in the installation of the system, but he began inspecting and maintaining the system approximately ten years before the fire. He occasionally performed the semi-annual inspection and maintenance of the Banner Beef system when he was employed by South Florida Fire, and he performed all of the semi-annual inspections and maintenance subsequent to March or July 1998, after he left South Florida Fire and established A Fire Prevention Company.
Mr. Cabrera completed an inspection report and an invoice each time he inspected the Kidde HDR 25DC system. Mr. Cabrera was, however, able to produce to the State Fire Marshall only an invoice for a semi-annual inspection on
October 5, 1998; an invoice and "Range Hood Inspection Report" for a semi-annual inspection on April 12, 1999; an invoice and "Range Hood Inspection Report" for a semi-annual inspection on September 27, 1999; and an invoice for a "semi-annual inspection and maintenance" on March 15, 2000.
The Kidde HDR 25DC is a preengineered system, which means that components manufactured by Kidde were put together into a system designed to protect against a particular hazard. Kidde publishes a manual, bulletins, and memoranda that specify how the Kidde HDR 25DC system is to be installed, serviced, repaired, maintained, tested, and inspected.
The Kidde HDR 25DC system was submitted to the Underwriters Laboratory ("UL") for testing. The system was found to be effective and to operate as specified, and the system and the manual for the system received UL approval. Once the system and manual received UL approval, the components of the system could not be changed except in accordance with the UL listing and the approved manufacturer's specifications.
The Kidde HDR 25DC system uses a dry chemical as a fire suppressant. The NFPA Standard 17 contains requirements for the installation, maintenance, operation, and care of dry chemical fire suppression systems.
The Kidde HDR 25DC system is approved by the UL to protect commercial cooking installations, specifically hoods, ducts, and cooking appliances. Cooking appliances are classified into two categories in the manufacturer's specifications, surface appliances and broilers; deep fryers are considered surface appliances.
Commercial cooking installations are used in food preparation areas of restaurants. The oil-heating unit and deep fryer used by Banner Beef are considered industrial appliances because they were designed to process a high volume of food to be sold for resale rather than to be consumed on the premises.
The Kidde HDR 25DC system was composed of several components, including a cylinder containing dry chemical fire suppressant under 360 pounds of pressure; a valve assembly attached to the cylinder; a manual release mechanism; an elbow mounting bracket that connected the cylinder to discharge piping; a nozzle attached to the discharge piping through which the dry chemical fire suppressant would be discharged on the hazard protected by the system; a fusible link designed to melt at a specified temperature; a control head, with a control head cover, that was attached to the cylinder valve assembly; cables running from the fusible link to the control head; electrical metal tubing protecting the cables; and corner pulleys that allowed the cables to change direction at a 90-degree angle. The Kidde HDR 25DC system was designed so that, when the fusible link melted, the cables would release, causing the system to actuate and discharge the dry chemical fire suppressant.
Banner Beef's 200-gallon oil-heating unit protected by the Kidde HDR 25DC system was located in an alcove opening off of a larger room that housed the deep fryer. The cylinder
containing the dry chemical fire suppressant was mounted on the outside wall of oil-heating unit, at the far end of the alcove, only a few inches away from oil that was maintained at 460 degrees Fahrenheit when the oil-heating unit was in operation. The oil-heating unit was turned off at the end of each workday, and the cylinder was regularly exposed to a cycle of high temperatures when the unit was in operation and cooler temperatures when it was not. Because it was attached to the hazard it was intended to protect, the cylinder would be exposed to any fire that originated in the oil-heating unit, and, in fact, the exterior of the cylinder at Banner Beef was damaged by the fire and covered in grease when it was inspected after the fire.
NFPA Standard 17-8, Section 3-8.3, 1994 edition,3 specifies that "[t]he dry chemical container and expellant gas shall be located near the hazard or hazards protected, but not where they will be exposed to a fire or explosion in those areas." NFPA Standard 17-8, Section 3-8.3.1, provides that "[t]he dry chemical container and expellant gas assemblies shall be located so as not to be subjected to severe weather conditions or to mechanical, chemical, or other damage." The location of the cylinder at Banner Beef was not consistent with these NFPA requirements.
A manual release handle, or manual pull station, is used to manually actuate the Kidde HDR 25DC system. At Banner Beef, the manual release handle was located on the far end of the oil-heating unit, at the top of the dry chemical cylinder and next to the controls used to operate the oil-heating unit. The means of exiting the alcove containing the oil-heating unit was through the room containing the deep fryer, although Banner Beef advised Mr. Cabrera that someone was always standing at the controls of the oil-heating unit whenever the unit was in operation.
NFPA Standard 17-8 provides in pertinent part: 3-7 Operation and Control of Systems
3-7.1 Methods of Actuation. Systems shall be provided with both automatic and manual means of operation.
3-7.1.1 Operation of any manual actuator shall be all that is required to bring about the full operation of the system. At least one manual actuator shall be provided for each system.
* * *
3-7.1.3 At least one manual actuator shall be located no more than 5 ft (1.5 m) above the floor and shall be convenient and easily accessible at all times, including the time of fire.
Although only one manual actuator was required, the location of the manual release handle was not consistent with NFPA
Standard 17-8, Section 3-7.1.3.
The date of manufacture was stamped into the metal of the cylinder containing the dry chemical fire suppressant. The system's serial number and a United States Department of Transportation exemption code, DOT-7042, were also stamped into the metal of the cylinder. The Kidde Guidelines for Hydrostatic Retest & Qualification of Kidde Models HDR, IND, WHDR, and DRS- 700 System Cylinders provides that "[d]ry chemical and wet chemical agents, when super-pressurized with nitrogen, are classified as hazardous materials and must be shipped in DOT approved cylinders (containers). The United States Department of Transportation has jurisdiction during cylinder manufacturer, testing, marking, retest and shipment."
According to the information contained in the Guidelines, Kidde cylinders manufactured under the DOT E-7042 exemption must be hydrostatically tested, using "the water jacket volumetric expansion method or the direct expansion method," at least every 12 years by a retester authorized by the United States Department of Transportation. According to the Guidelines, after the hydrostatic retest, the federal Department of Transportation requires that the cylinder must be stamped, "'plainly and permanently,'" with a marking that includes the date of the retest and the designation "3AL"; such a stamp is usually imprinted into the metal of the cylinder. The Guidelines include a warning, identified as such and set off
from the rest of the text, that provides: "Use of pressure sensitive hydrostatic test labels, in lieu of stamping the cylinder, DOES NOT comply with the DOT requirements." (Emphasis in original.)
Because the cylinder installed with the Kidde HDR 25DC system at Banner Beef was manufactured in 1981, the cylinder should have been hydrostatically tested in 1993. The cylinder did not, however, bear a permanent stamp with the "3AL" designation and the date of a hydrostatic test. Mr. Cabrera nonetheless reported on the Range Hood System Report dated April 12, 1999, that the system had been hydrostatically tested in April 1998, and he reported on the Range Hood System Report dated September 27, 1999, that the system had been hydrostatically tested and recharged in 1998. Mr. Cabrera obtained this information from labels carrying the name of South Florida Fire that were affixed to the outside of the cylinder; a few remnants of the labels remained on the outside of the cylinder after the fire. Pursuant to the federal DOT requirements and the manufacturer's specifications, Mr. Cabrera could not rely on these labels as proof that the cylinder had been subjected to hydrostatic testing.
An examination of the cylinder after the fire revealed that the outlet valve on the cylinder and the elbow mounting bracket attached to the valve were completely blocked by a
caked, rock-hard white substance, and the area around the cylinder's relief valve was also coated with white powder. In addition, there were chunks of hardened white powder loose in the discharge piping that connected the cylinder to the nozzle inside the oil-heating unit, although the discharge piping was not blocked. The white powder was identified as dry chemical fire suppressant, which had discharged from the cylinder but had not been discharged through the nozzle into the oil-heating unit because of the complete blockage of the valve outlet and elbow mounting bracket. Finally, there was a residue of what appeared to be grease in the discharge piping connected to the elbow mounting bracket.
The manufacturer's specifications require that, at the semi-annual inspection of the Kidde HDR 25DC system, the person providing the maintenance should "[c]heck the discharge piping for obstructions. Remove cylinder and valve. Blow out piping with clean dry air or nitrogen." Mr. Cabrera blew out the piping with nitrogen to clear obstructions each time he performed a semi-annual inspection of the Banner Beef system. The discharge piping was clear when he completed the semi-annual inspection and maintenance on March 15, 2000.
In the Banner Beef system, approximately six inches of discharge piping ran from the elbow mounting bracket through the exterior wall of the oil-heating unit, where it emerged just
above the level of the oil when the oil-heating unit was full. The discharge nozzle for the system was attached to a portion of the pipe that extended a few inches into the oil-heating unit, where it would be exposed to grease splatter.
The male coupling on the discharge nozzle should have threaded into a female coupling in the pipe. However, the inside of the pipe was not threaded to receive the nozzle, and it appeared that the person installing the system had "screwed" the nozzle into a smooth pipe. Because the seal was not tight, grease had accumulated on the threads of the nozzle, and the nozzle might have blown off if the system had actually discharged.
There are four nozzle configurations available for the Kidde HDR 25DC system, two of which are relevant to this proceeding: The SP-2 nozzle is designed to protect the plenum4 and exhaust duct of a commercial cooking installation; the SW-2 nozzle is designed to protect surface cooking appliances. One SP-2 nozzle was used with the Kidde HDR 25DC system at Banner Beef, which was inconsistent with NFPA Standard 17-6, Section 2- 3.1, which requires that "[d]ischarge nozzles shall be listed for their intended use," and with the manufacturer's specifications for the system. First, there is no recognized nozzle configuration for the system using only one SP-2 nozzle. Second, the SP-2 nozzle was not appropriate for the Banner Beef
system: Deep fryers are classified in the manufacturer's specifications as surface appliances, and the proper nozzle was the SW-2 nozzle. The discharge pattern of the SP-2 nozzle is horizontal, and, had the dry chemical fire suppressant actually been discharged through the nozzle into the oil-heating unit, the dry chemical would have blown across the surface of the hot grease; the SW-2 nozzle is designed to be installed above the appliance, so that its discharge pattern is vertical, with the spray distributed over the surface of the oil.
Protective grease covers are required by the manufacturer's specifications and by NFPA Standard 17-6, Section 2-3.1.4, which provides: "Discharge nozzles shall be provided with blowoff caps or other suitable devices or material to prevent the entrance of moisture or other environmental materials into the piping. The protective device shall blow off, open, or blow out upon agent discharge." When Mr. Cabrera inspected the Banner Beef system in March 2000, a grease cover protected the discharge nozzle, but, after the fire, no grease cover for the nozzle could be located. In addition, an examination of the nozzle and discharge piping after the fire revealed grease build-up on the inside of the nozzle and in the discharge piping. Protective nozzle covers are easily lost; Mr. Cabrera had advised Banner Beef to call him if they needed a replacement cover, but he was never asked for a replacement
cover. To the best of Mr. Cabrera's recollection, there was always a grease cover on the nozzle whenever he conducted his inspections of the system.
A fusible link is designed to melt at a specific temperature, releasing cables that run from the fusible link to a control head attached to the dry chemical cylinder; this is the means by which the system is actuated. The fusible link of the Kidde HDR 25DC system at Banner Beef was located in the duct venting the oil-heating unit to the roof. The invoice for the September 27, 1999, semi-annual inspection at Banner Beef reflects that Mr. Cabrera replaced the 500-degree fusible link in the Kidde HDR 25DC system. He used the 500-degree link because the oil-heating unit heated the oil to 460 degrees Fahrenheit.
The manufacturer's specifications provide that "[t]he fusible link assembly . . . is used to detect excessive temperatures in the area above cooking appliances and in the duct. The actuation temperature is 360ºF (182ºC). For higher temperatures use a 500ºF quartzoid bulb, or fusible link." The manufacturer's specifications also provide:
The exposure temperature is the maximum temperature to which a fusible link may be exposed for any period of time, no matter how short. After reaching the exposure temperature, the link will eventually release even though it may never reach the rating temperature.
WARNING: To avoid accidental system discharge, a temperature survey must be made of all locations where the fusible link will be installed. Links must have an exposure temperature rating above the maximum peak survey temperature. The maximum exposure temperature for any fusible link is 300ºF. If the peak survey temperature is above
300º F, use a quartzoid bulb link.
(Emphasis in original.) Only two fusible links were available for the Kidde HDR 25DC system, a fusible link with a rating temperature of 350 degrees Fahrenheit and a maximum exposure temperature of 300 degrees Fahrenheit and a quartzoid bulb, also referred to as a fusible link, with a rating temperature of
500 degrees Fahrenheit and a maximum exposure temperature of
475 degrees Fahrenheit.
The exposure temperature at the location of the fusible link is not known, but the convected heat in the duct over the oil-heating unit, where the fusible link was installed, would not have reached the 460-degree temperature of the oil. However, the fusible link was installed only six inches above the maximum level of the oil in the oil-heating unit, and, had the 350-degree fusible link been used, it would have continually actuated the system.
Pursuant to the manufacturer's specifications, the fusible link on the system should have been mounted using Kidde fusible-link brackets. The fusible link installed on the Banner
Beef system was housed in a welded metal bracket fabricated by whoever installed the system.
The fusible link is connected to the system's control head by a system of cables. The manufacturer's specifications require that the fusible link be attached to the cables using Kidde cable crimps crimped with a Kidde crimping tool.
Mr. Cabrera did not use either a Kidde cable crimp or a Kidde crimping tool when he installed the new fusible link on the Banner Beef system during the September 27, 1999, inspection.
The manufacturer's specifications require that the cables connecting the control head to the fusible link be "housed and protected by 1/2-inch electrical metal tubing." The portion of the cable running on the outside of the oil-heating unit, from the control head mounted near the cylinder into the exterior wall of the oil-heating unit was housed in electrical metal tubing; that portion of the cable running inside the oil- heating unit, from the fusible link to the exterior wall of the oil-heating unit, was not housed in electrical metal tubing but was left bare.
According to the manufacturer's specification, all cable in the Kidde HDR 25DC system must run either horizontally or vertically. Consequently, corner pulleys are used to make 90-degree changes in direction. Three corner pulleys were used in the Banner Beef system; one was manufactured by Kidde, but
two were manufactured by Pyro-Chem. In addition, the first corner pulley was clogged with grease, indicating that the system was not properly maintained.
The cables leading from the fusible link are attached to a control head, and the system actuates when the fusible link melts and the cables are released. A cover plate protects the control head, and is attached to the control head with five screws. Kidde Field Memo #84-8, provides as follows:
When installing the cover plate on any preengineered system control head, remember to install all five cover screws. The fifth screw that attaches to the hex post just above the local manual release handle is important for the stability of the cover plate when operating the handle. Leaving out the fifth screw could cause movement of the cover plate and render the local manual release handle inoperative. . . .
Three of the five screw holes on the control head cover plate recovered from Banner Beef were covered with grease; only two of the five screw holes were clean. This indicates that the cover plate was attached to the control head by only two screws at the time of the fire.
Mr. Cabrera did not note any discrepancies or deficiencies in the Kidde HDR 25DC system installed at Banner Beef in the inspection reports that he completed after his April 12, 1999, and September 27, 1999, inspections, which were the only reports provided to the State Fire Marshall and
introduced into evidence at the final hearing. In these two reports, Mr. Cabrera checked the "Yes" boxes for the following items, among others:
All appliances properly covered w/ correct nozzles
System installed in accordance w/ MFG UL listing
Inspect cylinder and mount Clean nozzles
Check fuse links and clean
Piping and conduit securely bracketed System operational & seals in place Clean cylinder and mount
Mr. Cabrera signed the two reports, thereby certifying that "[o]n this date, the above system was tested and inspected in accordance with procedures of the presently adopted editions of NFPA Standard 17, 17A, 96 and the manufacturer's manual and was operated according to these procedures with results indicated above."
The licensure files maintained by the State Fire Marshall for A Fire Prevention Company indicated that the company's insurance policy with Frontier Insurance Company expired on March 25, 2000. Mr. Cabrera testified, however, that the company did have insurance at the time of the fire, and this testimony is unrefuted.
Summary
The State Fire Marshall's expert witnesses disagreed as to whether the system could have controlled the fire had it functioned properly. They each conceded, however, that all components of the system functioned perfectly and actuated the system. They attributed the sole cause of the system's failure to the blockage in the valve outlet and elbow mounting bracket that prevented the dry chemical fire suppressant from discharging out of the cylinder. The State Fire Marshall's experts and Mr. Cabrera agreed that the cause of the blockage was dry chemical in the cylinder valve assembly and elbow mounting bracket that had hardened into a rock-hard substance.
All of the State Fire Marshall's experts and
Mr. Cabrera agreed that the chemical hardened as a result of its coming into contact with a significant amount of moisture and/or grease. No one, however, provided a satisfactory explanation of the time within which the chemical would have hardened after it came into contact with the moisture and/or grease. In
Mr. Cabrera's opinion, the blockage was caused when grease and/or moisture entered the system at the time of the fire and caused the dry chemical to immediately harden.
On the other hand, the State Fire Marshall's expert witnesses opined that the moisture and/or grease causing the blockage of the cylinder valve outlet and elbow mounting bracket
did not necessarily accumulate in the system over an extended period of time but, rather, could have been introduced into the system all at once. They also agreed that the dry chemical would harden gradually over time and that the blockage was probably present at the time Mr. Cabrera performed the
March 2000 inspection. However, none of the State Fire Marshall's experts provided a persuasive basis to support a finding that the blockage had been present in the system at the time Mr. Cabrera inspected the system in March 2000, and the evidence is, therefore, insufficient to establish with the requisite degree of certainty that Mr. Cabrera should have discovered the blockage when he performed the inspection and maintenance in March 2000.
The evidence presented by the State Fire Marshall is likewise not sufficient to establish that Mr. Cabrera deviated from the requirements of the manufacturer's specifications by installing a 500-degree fusible link in the system in September 1999.
The evidence presented by the State Fire Marshall is, however, sufficient to establish clearly and convincingly that the Kidde HDR 25DC preengineered fire protection system installed at Banner Beef was not designed to protect an industrial oil-heating unit containing approximately 200 gallons of hot oil, that the system was not installed in accordance with
the manufacturer's specifications, that the system contained parts that were not manufactured by Kidde, that the system was not properly maintained with respect to the build-up of grease in and around the discharge nozzle and in the corner pulleys, and that Mr. Cabrera did not use the appropriate crimp and crimping tool when he replaced the fusible link in
September 1997.
The evidence presented by the State Fire Marshall is also sufficient to establish clearly and convincingly that Mr. Cabrera did not provide the State Fire Marshall with proof
of insurance subsequent to March 25, 2000, although the evidence is insufficient to establish that he did not, in fact, have insurance coverage subsequent to that time.
Finally, the evidence presented by the State Fire Marshall is sufficient to establish with the requisite degree of certainty that the reports Mr. Cabrera prepared following his semi-annual inspections in April and September 1999 did not accurately reflect the condition of the system and did not include a statement of the system's deficiencies. In addition, Mr. Cabrera's failure to provide the State Fire Marshall with copies of the inspection reports for the semi-annual inspections he performed on the Kidde HDR 25DC system at Banner Beef for the three years prior to the fire supports the inference that he failed to retain copies of the inspection reports in his
records. However, Mr. Cabrera's testimony that he always prepared the necessary reports is uncontroverted.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2001).
In its Administrative Complaint, the Department seeks to impose penalties against Mr. Cabrera that include suspension or revocation of his license. Therefore, it has the burden of proving by clear and convincing evidence that Mr. Cabrera committed the violations alleged in the Administrative Complaint. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
In Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), the court explained:
[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact
the firm belief of conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
See also Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting).
Section 633.061, Florida Statutes (2000), provides in pertinent part:
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. . . . A licensee is limited to a specific type of work performed depending upon the class of license held. Licenses and license fees are required for the following:
* * *
Class C $150
To service, recharge, repair, install, or inspect all types of fire extinguishers, except recharging carbon dioxide units, and to conduct hydrostatic tests on all types of fire extinguishers, except carbon dioxide units.
Class D $200
To service, repair, recharge, hydrotest, install, or inspect all types of preengineered fire extinguishing systems.
* * *
Each individual actually performing the work of servicing, recharging, repairing, hydrotesting, installing, testing, or inspecting fire extinguishers or preengineered systems must possess a valid and subsisting permit issued by the State Fire Marshal. Permittees are limited as to specific type of work performed dependent upon the class of permit held which shall be a class allowing work no more extensive than the class of license held by the licensee under whom the permittee is working. Permits and fees therefor are required for the following:
* * * (c) Class 3 ....... $90
Servicing, recharging, repairing, installing, or inspecting all types of fire extinguishers, except recharging carbon dioxide units, and conducting hydrostatic tests on all types of fire extinguishers, except carbon dioxide units.
(d) Class 4 $120
Servicing, repairing, hydrotesting, recharging, installing, or inspecting all types of preengineered fire extinguishing systems.
Mr. Cabrera and A Fire Prevention Company had the licenses and permits necessary to inspect and maintain the Kidde HDR 25DC system installed at Banner Beef.
The Kidde HDR 25DC system installed at Banner Beef was a preengineered system, which is defined in Section 633.021(19), Florida Statutes (2000), as follows:
A "preengineered system" is a fire suppression system which:
Uses any of a variety of extinguishing agents.
Is designed to protect specific hazards.
Must be installed according to pretested limitations and configurations specified by the manufacturer and applicable National Fire Protection Association (NFPA) standards.
Must be installed using components specified by the manufacturer or components that are listed as equal parts by a nationally recognized testing laboratory such as Underwriters Laboratories, Inc., or Factory Mutual Laboratories, Inc.
Must be listed by a nationally recognized testing laboratory.
Preengineered systems may incorporate special nozzles, flow rates, methods of application, pressurization levels, and quantities of agents designed by the manufacturer for specific hazards.
Section 633.061(9), Florida Statutes (2000), provides:
All fire extinguishers and preengineered systems that are required by statute or by rule must be serviced, recharged, repaired, hydrotested, tested, inspected, and installed in compliance with this chapter and with the rules adopted by the State Fire Marshal. The State Fire Marshal may adopt
by rule the standards of the National Fire Protection Association and of other reputable national organizations
Relevant to this proceeding, the State Fire Marshall adopted and incorporated NFPA Standard 17, the Standard for Dry Chemical Extinguishing Systems, in Rule 4A-21.302(3), Florida Administrative Code.
Section 633.065, Florida Statutes (2000), provides in pertinent part:
The requirements for installation of fire extinguishers and preengineered systems are as follows:
* * *
(c) Equipment shall be installed in accordance with the applicable standards of the National Fire Protection Association and the manufacturer's drawings and specifications.
* * *
Equipment shall be inspected, serviced, and maintained in accordance with the manufacturer's maintenance procedures and with the applicable National Fire Protection Association standards.
Section 633.071, Florida Statutes (2000), provides in pertinent part:
The State Fire Marshal shall adopt by rule specifications as to the size, shape, color, and information and data contained thereon of service tags to be attached to all fire extinguishers and preengineered systems required by statute or by rule, whether they be portable, stationary, or on
wheels when they are placed in service, installed, serviced, repaired, tested, recharged, or inspected. Preengineered
systems may be tagged only after a system has been inspected, serviced, installed, repaired, tested, recharged, and hydrotested in compliance with this chapter, the standards of the National Fire Protection Association, and the manufacturer's specifications, and after a report, as specified by rule, has been completed in detail, indicating any and all deficiencies or deviations from the manufacturer's specifications and the standards of the National Fire Protection Association.
A copy of the inspection report shall be provided to the owner at the time of inspection, and, if a system is found to be in violation of this chapter, the manufacturer's specifications, or the standards of the National Fire Protection Association, a copy shall be forwarded to the state or local authority having jurisdiction within 30 days from the date of service.
Rule 4A-21.304, Florida Administrative Code, provides:
All preengineered systems are to be inspected in accordance with the standards adopted in 4A-21.302.
Whenever a preengineered system is installed, inspected, repaired, maintained or otherwise serviced, the permittee shall complete an inspection report containing, at a minimum, the information in paragraphs (a) through (o), in this subsection. One copy shall be signed by and delivered to the owner or the representative of the owner of the facility in which the system was installed. The other copy shall be retained in the fire equipment dealer's files for a period of not less than three years after the last inspection.
location of system; business name of facility, street address, city, state, zip
code, phone number, and name of the owner or manager;
whether the report is for an annual inspection; semi-annual inspection; a recharge; a new installation; or a renovation;
where the system is located in the facility;
type of system; name of manufacturer; model number; size of bottles;
method, style and degree of actuation;
reference to drawing number or page number, and date of the manufacturer's manual;
date of last hydrostatic test;
date of last recharge;
serial number;
whether fuel shut off is gas or electric and the size;
a drawing of a new installation; a first inspection; or whenever changes are made. The drawing shall include the following as a minimum:
Size of the hood, plenum, and ducts.
Sizes, types and locations of cooking appliances.
Positions of all nozzles, identification of nozzles, their distances from the hazards that they protect.
Positions of all detectors.
Diagram of the entire piping installation.
responses to the following questions:
were the inspection and maintenance performed in accordance with the presently adopted editions of NFPA (indicate standard(s) used)? ("No" answers require an explanation)
Was the system tagged in accordance with Rule 4A-21.303? ("No" answers require an explanation)
Were the inspection and maintenance performed in accordance with the manufacturer's manual and the manufacturer's specifications? ("No" answers require an explanation)
a comments section to allow for explanations if necessary;
a statement that the permittee certifies that he personally inspected the system and found the conditions to be as indicated on the report;
the permittee's name, signature and permit number; the date and time of inspection; and the customer's signature.
Section 633.162, Florida Statutes (2000), provides in pertinent part:
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. An order of suspension shall state the period of time of such suspension, which period may not be in excess of 2 years from the date of such order. An order of revocation may be entered for a period not exceeding 5 years. Such orders shall effect suspension or revocation of all licenses or permits then held by the person, and during such period of time no license or permit shall be issued to such person. . . .
* * *
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:
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.
* * *
(c) Improperly serviced, recharged, repaired, hydrotested, tested, or inspected a fire extinguisher or preengineered system.
* * *
Failed to provide proof of insurance to the State Fire Marshal or failed to maintain in force the insurance coverage required by s. 633.061.
Failed to obtain, retain, or maintain one or more of the qualifications for a license or permit as specified in this chapter.
Based on the findings of fact herein, the State Fire Marshall has proven by clear and convincing evidence that
Mr. Cabrera and A Fire Prevention Company violated
Sections 633.061(9), 633.065(1)(c), 633.065(2), and 633.071(1),
Florida Statutes (2000), as well as Rules 4A-21.302 and 4A- 21.304(1), Florida Administrative Code, because Mr. Cabrera failed to maintain the Kidde HDR 25DC system in accordance with NFPA Standard 17 and the manufacturer's specifications incorporated in the system's UL listing, specifically by failing to use a Kidde crimp and crimping tool when he replaced the system's fusible link and by failing to remove grease build-up around the nozzle and in one corner pulley.
Based on the findings of fact herein, the State Fire Marshall has proven by clear and convincing evidence that
Mr. Cabrera and A Fire Prevention Company violated
Section 633.071(1), Florida Statutes (2000), as well as Rule 4A- 21.304(2), Florida Administrative Code, because the inspection reports prepared by Mr. Cabrera for the April 12, 1999, and September 27, 1999, semi-annual inspections of the Kidde
HDR 25DC system installed at Banner Beef were inaccurate in the following respects: Mr. Cabrera represented that a hydrostatic test had been performed on the cylinder when, in fact, the cylinder was not marked pursuant to the requirements of the United States Department of Transportation and the manufacturer's specifications; Mr. Cabrera certified that the proper nozzle was used to protect the oil-heating unit; and
Mr. Cabrera certified that the system was installed in accordance with the manufacturer's UL listing. In addition, Mr. Cabrera did not include in the comments section a description of the numerous ways in which the system's installation and components deviated from the manufacturer's specifications and the requirements of the NFPA Standard 17.
Based on the findings of fact herein, the State Fire Marshall has proven by clear and convincing evidence that
Mr. Cabrera and A Fire Prevention Company violated
Section 633.071(1), Florida Statutes (2000), as well as Rule 4A-
21.304(2), Florida Administrative Code, because Mr. Cabrera was unable to produce from his files copies of the reports of the inspections he performed of the Kidde HDR 25DC system at Banner Beef for the three years prior to the June 19, 2000, fire.
Based on the findings of fact herein, the State Fire Marshall has proven by clear and convincing evidence that
Mr. Cabrera and A Fire Prevention Company violated Section 633.162(4)(c), Florida Statutes (2000), because
Mr. Cabrera improperly serviced the Kidde HDR 25DC system by using a crimp and crimping tool that did not conform to the manufacturer's specifications when he replaced the fusible link.
Based on the findings of fact herein, the State Fire Marshall has proven by clear and convincing evidence that
Mr. Cabrera and A Fire Prevention Company violated Section 633.162(4)(e), Florida Statutes (2000), because
Mr. Cabrera failed to provide proof of insurance to the State Fire Marshall after his policy expired on March 25, 2000. The State Fire Marshall failed to prove by clear and convincing evidence that Mr. Cabrera and A Fire Prevention Company did not have insurance in force subsequent to March 25, 2000.
Based on the findings of fact herein, the State Fire Marshall failed to prove by clear and convincing evidence that Mr. Cabrera and A Fire Prevention Company violated
Section 633.162(4)(a) or (f), Florida Statutes (2000).5
Pursuant to Section 633.162(1) and (4), Florida Statutes (2000), the State Fire Marshall may suspend or revoke the licenses and permits of Mr. Cabrera and A Fire Prevention Company for the time periods set forth in Section 633.162(1). Pursuant to Section 633.163(1), Florida Statutes (2000), the State Fire Marshall may, in his discretion, impose an administrative fine in lieu of the suspension or revocation of the licenses and permits of Mr. Cabrera and A Fire Prevention Company. The State Fire Marshall failed to prove by clear and convincing evidence that the blockage preventing the dry chemical from discharging into the oil-heating unit resulted from Mr. Cabrera's errors or omissions. Therefore, under the circumstances of this case and because Mr. Cabrera and A Fire Prevention Company have never before been cited for a violation of Chapter 633, Florida Statutes, the suspension of the licenses and permits of Mr. Cabrera and A Fire Prevention Company for a period of two years would be appropriate.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Fire Marshall enter a final order:
Finding Hector Cabrera and A Fire Prevention Company guilty of having violated Sections 633.061(9), 633.065(1)(c), 633.065(2), 633.071(1), and 633.162(4)(c) and (e), Florida
Statutes (2000), as well as Rules 4A-21.302 and 4A-21.304(1) and (2), Florida Administrative Code; and
Suspending the licenses and permits of Hector Cabrera and A Fire Prevention Company for a period of two years, pursuant to Section 633.162(1) and (4), Florida Statutes (2000).
DONE AND ENTERED this 25th day of June, 2002, in Tallahassee, Leon County, Florida.
PATRICIA HART MALONO
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 25th day of June, 2002.
ENDNOTES
1/ The entire Kidde HDR 25DC Manual was not provided by the State Fire Marshall; rather, excerpts from the manual were placed into evidence as Petitioner's Exhibit 12.
2/ A Class C license authorizes the holder to "service, recharge, repair, install, or inspect all types of fire extinguishers, except recharging carbon dioxide units, and to conduct hydrostatic tests on all types of fire extinguishers, except carbon dioxide units"; a Class D license holder is authorized to "service, repair, recharge, hydrotest, install, or inspect all types of preengineered fire extinguishing systems.
3/ All references to NFPA Standard 17 are to the 1994 edition.
4/ The plenum is that area of a hood installed over a cooking appliance, above the filters.
5/ In addition to the statutes and rules cited herein, the State Fire Marshall also alleged in the Administrative Complaint that Mr. Cabrera and A Fire Prevention Company violated or were accountable under Rules 4A-21.203 and .242, Florida Administrative Code. Rule 4A-21.203 requires that portable fire extinguishers be installed, inspected, maintained, and recharged in accordance with NFPA Standard 10; this rule is, therefore, irrelevant to the issues in this case. Rule 4A-21.242 requires that hydrostatic tests be conducted in accordance with the procedures set out in NFPA Standard 10; this standard was not introduced into evidence by the State Fire Marshall, and Petitioner's Exhibit 12, the Kidde Guidelines for Hydrostatic Retest and Qualification of Kidde Models HDR, IND, WHDR, & KRS- 700 System Cylinders, were relied upon for the standards under which the cylinder in the Kidde HDR 25DC system at Banner Beef should have been hydrotested.
COPIES FURNISHED:
Elenita Gomez, Esquire Department of Insurance Division of Legal Services
200 East Gaines Street 612 Larson Building
Tallahassee, Florida 32399-0333
Edgar Belaval, Esquire Edgar Belaval, P.A.
10265 Southwest 77th Court Pinecrest, Florida 33156
The Honorable Tom Gallagher
State Treasurer/Insurance Commissioner The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300
Mark Casteel, General Counsel Department of Insurance
The Capitol, Lower 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.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 06, 2002 | Agency Final Order | |
| Jun. 25, 2002 | Recommended Order | Fire equipment dealer violated Sections 635.061(9); 633.065(1)(c) and (2); 633.071(1); and 633.162(4)(c) and (e), Florida Statutes; and Rules 4A-21.302 and .304(1) and (2), Florida Administrative Code. License should be suspended for two years. |
