The Issue The issues are: (1) whether Respondent properly scored Petitioner's retake of the Practical Examination for Firefighter Retention; and (2) whether Petitioner's application for firefighter recertification was properly denied.
Findings Of Fact Petitioner has worked in the fire service for almost 28 years. During that time, Petitioner served as the assistant fire marshal and the fire marshal for the City of Orlando. After Petitioner retired from the City of Orlando, he served as fire chief, building official, and code enforcer officer of Eatonville, Florida. After more than a three-year time period of not working as a firefighter or in the fire service field, Petitioner accepted a job as fire marshal in Hillsborough County, Florida. Although there is no legal requirement that a fire marshal be certified as a firefighter, a condition of Petitioner's employment with Hillsborough County was that he be recertified as a firefighter. In Florida, a firefighter retains his firefighter certification if he remains an active firefighter with an organized fire department. However, a firefighter who has not been active for a period of three years must successfully complete the Retention Examination in order to retain his certification. The Retention Examination is the practical portion of the examination given to new applicants. Because Petitioner has not been an active firefighter for the past three years, in order to be recertified as a firefighter, he was required to successfully complete the Retention Examination. The Retention Examination consists of the following four parts: Self-Contained Breathing Apparatus ("SCBA"), Hose Operations, Ladder Operations, and Fireground Skills. To pass the Retention Examination, a candidate must achieve a score of at least 70 percent on each part. Petitioner applied for and took the Retention Examination that was given on May 16, 2007. He successfully completed the Fireground Skills part, but did not earn a passing score on the SCBA, the Hose Operations, and the Ladder Operations parts.2/ Petitioner applied for and took the September 13, 2007, Retention Examination re-test. During this re-test, Petitioner took only the SCBA, the Hose Operations, and the Ladder Operations parts, the ones that he had not successfully completed in May 2007. Petitioner passed the Hose Operations part of the Retention Examination re-test, but did not successfully complete the SCBA and the Ladder Operations parts, because he did not complete those components within the maximum allotted time. Each part of the Retention Examination has certain elements or skills that are graded. The SCBA and the Ladder Operations parts of the Retention Examination are each comprised of eleven skills or steps that the examinee must complete within the specified time. Ten of the 11 skills or steps for each part of the Retention Examination are assigned a point value of ten.3/ The other skill (the 11th skill or step) under each part is designated as a "mandatory step" for which the examinee is awarded a score of either "pass" or "fail".4/ Under the scoring system described in paragraph 10, an examinee receives ten points for each of the ten skills he successfully completes and a passing score for the one skill designated as mandatory. The SCBA and Ladder Operations parts of the Retention Examination have an established maximum time allotted for the examinee to complete a minimum of 70 percent of the skills. The time requirements are a mandatory criterion/requirement. In order to successfully complete the Retention Examination, an individual must not only complete a minimum of 70 percent of the ten skills or steps for each part, but he must also successfully complete the two mandatory criteria for that part. If an examinee completes a minimum of 70 percent of the skills in a particular part, but fails to do so within the maximum allotted time specified for that part, he has not met the mandatory time requirement and, thus, is not awarded any points for that part. The Division established the minimum time requirements for completing the various parts of the practical examination for firefighters after consulting the NFPA standards and soliciting input from fire departments, fire chiefs, and other individuals in firefighter profession. Among the factors that were considered in establishing the minimum time frames were the nature of fires (i.e., how quickly they spread) and the need for firefighters to perform their job duties both safely and quickly. The Division uses these time requirements in testing the 3,500 to 3,800 firefighters a year that go through the testing process. On the September 13, 2007, re-test, Petitioner exceeded the maximum time allotted for the SCBA and the Ladder Operations parts. The maximum time allotted for completion of the SCBA part of the Retention Examination is one minute and 45 seconds. Petitioner's completion time on the September 2007 Retention Examination re-test was three minutes and ten seconds. The maximum time allotted on the Ladder Operations part of the Retention Examination is two minutes and 45 seconds. Petitioner's completion time on the September 2007 Retention Examination re-test was three minutes and ten seconds. Because Petitioner failed to complete a minimum of 70 percent of the skills in the SCBA and the Ladder Operations parts of the Retention Examination within the maximum time allotted, the Bureau properly awarded him no points. Therefore, Petitioner did not earn a passing score on the Retention Examination re-test. As a result of Petitioner's failing to pass the Retention Examination, his Firefighter Certificate of Compliance No. 3381 expired as of September 13, 2007. The Division's Bureau of Fire Standards and Training ("Bureau of Standards") employs field representatives to administer the Retention Examination to examinees in accordance with the applicable rules and procedures. Philip D. Oxendine is and has been a field representative with the Bureau of Standards for four years. As a field representative, Mr. Oxendine administers and scores the minimum standards examination for firefighters, including the Retention Examination. Prior to being employed as a field representative, Petitioner worked as a firefighter for 27 years, having retired as a lieutenant. He also has ten years of experience as an instructor in the fire science division of the then South Technical Institution in Palm Beach County, Florida. Mr. Oxendine administered and scored the three parts of the Retention Examination re-test that Petitioner took on September 13, 2007, in accordance with the Division's procedures. All examinees at the September 17, 2007, Retention Examination re-test location, were assigned a number. In an effort to avoid bias, throughout the testing process, examinees' assigned numbers were used instead of their names. On the day of the Retention Examination re-test, Petitioner was assigned a number by which he was identified. When Mr. Oxendine administered and scored Petitioner's re-test, he did not know Petitioner's name or anything about him. Prior to Petitioner's starting the Retention Examination re-test, Mr. Oxendine took Petitioner and other examinees to each station and told them what they had to do at that station. Mr. Oxendine also told the examinees, including Petitioner, how each part of the Retention Examination would be graded.5/ Mr. Oxendine's usual practice is to instruct examinees to touch the apparatus when they are ready for time to begin on a particular part of the examination. He also gives specific instructions to the examinees regarding how they should indicate that they have completed each part. Once an examinee touches the apparatus and says he is ready to begin, Mr. Oxendine starts the stop watch. Mr. Oxendine instructed the examinees to indicate that they had completed the SCBA part by standing up and clapping their hands. The examinees were told that the Ladder Operations part was considered completed when they were behind the ladder and holding it and when they announced that the ladder was ready to be climbed. Mr. Oxendine used the procedures described in paragraph 30 in timing Petitioner on the three parts of the Retention Examination re-test. Mr. Oxendine timed Petitioner's performance on each part of the Retention Examination re-test using a stop watch. This is the method that Mr. Oxendine was trained to use when timing the examinees' performances on the practical portion of the examination. An individual is allowed to re-take the Retention Examination one time. If the person does not pass the re-test, he must repeat the Firefighter Minimum Recruit Training Program before he is eligible to re-take the Retention Examination. See § 633.352, Fla. Stat., and Fla. Admin. Code R. 69A-37.0527. As noted above, Petitioner did not pass the SCBA and the Ladder Operations parts of the Retention Examination re- test. Therefore, before he is eligible to re-take that examination, he must repeat the Firefighter Minimum Recruit Training Program. Petitioner failed to establish that he was entitled to a passing grade for his performance on the Retention Examination re-test. The greater weight of the credible evidence established that Petitioner's performance on the Retention Examination re-test was appropriately and fairly graded.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Petitioner's application to retain his certification as a firefighter in the State of Florida. DONE AND ENTERED this 20th day of May, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 20th day of May, 2008.
Findings Of Fact The parties agreed that the City of Winter Park or the City Commission was the Public Employer as defined by Chapter 477, Florida Statutes. The Public Employees Relations Commission's file contains the affidavit of Pat Hill attesting to the fact that the Winter Park Professional Fire Fighters Local #1598 was a duly registered employee organization as of the date of hearing. This affidavit was executed on May 2, 1975. The Petition recites that recognition of Petitioner was requested on January 16, 1975. The Public Employer has not responded to the request for recognition. The Winter Park Fire Department is composed of full-time and volunteer fire fighters. The Petitioner seeks to represent only full-time fire fighters, of which there are approximately 38, and would seek to represent all fire fighters in the Department except the chief. The Winter Park Fire Department is composed of the chief, fire inspector (fire marshall), three captains, three lieutenants, one mechanic, various engineers and fire fighters. There are two fire stations, Station 1 and Station 2, each station having three shifts. Station 1 is commanded by a captain and Station 2 is commanded by a lieutenant who reports to the captain who also is the shift commander. It should be noted, however, that the captain would not respond to a fire in Station 2's area, therefore, generally, a lieutenant would not work on a fire scene for the captain. Each shift has approximately eleven men, including the captain and lieutenant, assigned, and there are approximately 6-5 at Station 1 and 4-5 at Station 2. The Mechanic is a fully qualified fire fighter and the Chief feels that this dual capability makes him more valuable to the Department. The Fire Inspector (Fire Marshall) is a special staff officer who inspects building plans for compliance with fire safety codes, assist in operational planning, and directs the activities of fire safety inspectors assigned to him. The Deputy Chief acts as the second in command of the Department, assistant to the Fire Chief, and coordinates and directly supervises the shift captains. He would respond to any fire alarm in Area 1 or 2 which was other than a minor fire, and command the fire scene, except those to which the Chief responded. It was apparent that the Fire Chief was the major policy maker, but the Deputy Chief was the "detail man" charged with developing and executing major polices determined by the Chief. The Deputy Chief prepared the Standing Operating Procedures (SOP's), letters of change to the SOP's, and other letters of direction received from the Chief. Although the Chief would consult with the Deputy Chief on budgetary, personnel, and planning matters, the Chief retained the authority to determine policy. The Deputy Chief was authorized to exercise his discretion in implementing these polices particularly those related to personnel; assignments, transfers, and approval of leaves. The Mechanic is assigned to maintain and repair all the department's trucks and pumps. The Chief testified that the Mechanic had and needed knowledge of regular gasoline engines, diesel engines, and pumps. The Chief further testified that the Mechanic's position was held by a man who had been an engineer with the Department, who had the requisite skills, and the Chief had promoted him to provide him additional compensation in order that he would take the job. The Mechanic spends almost all of his 40-hour week in the performance of mechanic's duties, but as a qualified fire fighter he is qualified to perform fire fighting duties if necessary. In actuality the Mechanic does not fight fires, but has the capability if required. The Mechanic schedules his own work and reports to the Deputy Chief. He is on call when not on duty. He is assisted as required by other firemen if additional physical strength is necessary to perform a specific task. The status of the current mechanic is apparently in flux, and the Chief has referred to a study committee of firemen and officers the problem of to what rank and seniority the individual should revert. The Mechanic is not required to be a fire fighter. It was apparent from the Chief's testimony regarding various major policy decisions that he consulted with fire department personnel who would be effected by a proposed policy either by means of a group meeting, study committee or similar decision making process. Such input was obtained from personnel not so much on the basis of rank in the Department but rather on the issue involved and who it affected. The Chief was dependent upon his special staff members, i.e., the Deputy Chief and Fire Marshall, for special plans and operational advice, however, the pattern for decision making did not restrict input solely to officer personnel. The company officers provide budgetary information by preparing lists of their stations' and shifts' projected equipment, consumable, and capital outlay needs in the upcoming fiscal year. Based upon this data the Chief and Deputy Chief prepare the budget for submission to the City Manager. Items requested by company officers are reviewed by the Chief and Deputy Chief and are generally approved if they are not too expensive and appear to be justifiable. The Chief indicated that he gave careful consideration to such requests, pointing out an expensive hose dryer purchased at the request of Station 2's officers and a coffee maker needed and requested by Lt. Legarde, the latter being a direct authorization purchase from current funding. The company officers were responsible for the assignment of duties of subordinate personnel at their station on their shift both on equipment and station work details. Because of the limited numbers of personnel assigned at the stations, the company officers participated in clean up details including the handling of the light clean up duties. The company officers had only limited authority to grant leaves. Company officers would not have authority to suspend personnel except under those circumstances in which the individual would pose a hazard to himself and others such as an employee reporting to work drunk. Disciplinary cases would be referred through the Deputy Chief to the Chief for final action with appeal rights to the civil service board. The authority to grant regular leave similarly would necessitate approval by the Deputy Chief. The company officers forward the request to the Deputy Chief and explain the basis for the request. According to the testimony, officers would not generally present a recommendation regarding approval to the Deputy Chief. Company officers do have authority to grant temporary exchanges of duty although this would be reported as a courtesy to the Deputy Chief. Company officers do evaluate personnel and these evaluations would be a considerable but not determinative factor in promotion. It would be one of several things which a panel of fire officers from surrounding communities would consider in evaluating an employee's eligibility for promotion. The Chief indicated that although by law he could select from the several highest individuals recommended, he had established a policy that he would promote the highest recommended. Merit increases were authorized and dependent upon evaluations, however, because of nonavailability of funds, merit increases had not been paid for some time and no one could foresee their payment. The relationship of company officers on the table of organization would indicate that the Lieutenant at Station 2 was subordinate to the Captain at Station 1. However the Captain is more closely under the supervision of the Deputy Chief. The conduit for information is through the chain of command, however, any person who was not present or otherwise reasonably available would be skipped.
The Issue The issue is whether Respondent properly denied Petitioner's application for certification as a firesafety inspector.
Findings Of Fact Petitioner is an applicant for certification as a firesafety inspector. In order to be certified, Petitioner was required to successfully complete the Firesafety Inspector Training Course and pass a firesafety inspector certification examination. Petitioner successfully completed his required coursework at the Florida State Fire College and Daytona State College. To pass the written examination, an applicant must achieve a score of at least 70 percent. Petitioner took the exam the first time and did not receive a passing score. After a month or so, Petitioner took a "retest." He received a score of 68 on the retest, which is below the minimum passing score of 70. By letter dated October 11, 2011, Respondent notified Petitioner that he did not receive a passing grade on the retest. The notice also informed Petitioner that because he failed both the initial and retake examinations, it would be necessary for him to repeat the Inspection Training Program before any additional testing can be allowed. The notice further informed Petitioner that if he enrolled in another training program, he would have to submit a new application. Petitioner submitted a letter which was received by the Department on September 27, 2011, in which he raised concerns about the quality of instruction he received at Florida State Fire College. Petitioner asserted that in two classes he took, the instructors had not taught the class before. He also asserted that the books used for class were not always the books used for testing, and that he believed that some of the state inspector test questions were irrelevant to how or what he would need to know in performing an actual inspection. Attached to this letter were five questions which had been marked as being answered incorrectly on the examination. Petitioner's letter and attachments were treated as a request for administrative hearing, which was forwarded to the Division of Administrative Hearings, which resulted in this proceeding. Marshall Shoop took classes with Petitioner at the Florida State Fire College. It was also Mr. Shoop's understanding that at least one instructor had never taught the class before. Karl Thompson is the Standard Supervisor for the Bureau of Fire Standards and Training. At hearing, Mr. Thompson reviewed each question offered by Petitioner and the answer Petitioner thought to be correct. Mr. Thompson concluded that Petitioner answered each of the five questions incorrectly. Mr. Thompson explained that the firesafety test is a secure document and, pursuant to a contract with a third party, persons who take the test and later review their incorrect answers are not allowed to write down the questions or copy anything from the test. The test must remain secure so that it is not compromised. The test questions and answers are not in evidence. Petitioner has been shadowing a part-time fire inspector for the City of Flagler Beach. Martin Roberts is the Fire Chief for the City of Flagler Beach. Chief Roberts would feel comfortable with Petitioner taking on the role of fire inspector despite Petitioner's grades on the fire safety inspector certification examination. While attending Daytona State College, Petitioner earned an "A" in a building construction course and a "B+" in a course in "construction codes and materials rating."
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a final order denying Petitioner's application for certification as a Firesafety Inspector, and permitting Petitioner to repeat the required coursework before retaking the Firesafety Inspector certification examination. DONE AND ENTERED this 16th day of February, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 16th day of February, 2012.
Findings Of Fact At all times material hereto, Francis Edward Neuzil, Jr. (Respondent), was certified as a firefighter and firesafety inspector in the State of Florida, holding certificates 7360 and FI-39965, respectively. Respondent's firefighter certification was issued on or about February 22, 1979, and his firesafety inspector certification was issued on or about January 9, 1985. On or about December 20, 1991, Respondent was charged by Information with one count of grand theft in the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, in Case No. 91-23492CF10. On or about May 11, 1992, Respondent plead nolo contendere to grand theft for violating Subsection 812.014(1)(a), Florida Statutes, a third degree felony. Adjudication was withheld, and Respondent was placed on 18 months probation with special conditions of 50 hours of community service and no consumption of drugs or alcohol. On or about January 14, 1993, the court terminated Respondent's probation, approximately 10 months prior to the scheduled time for his probation to end. The incident which led to Respondent's felony charge occurred on or about December 7 or 8, 1991, at a Sam's store in Broward County after 11:00 p.m. A sprinkler system was being installed and was sufficiently completed for inspection by a firesafety inspector. Respondent went to Sam's store acting in the capacity of a firesafety inspector. Originally, he had estimated that only 10 minutes would be needed to accomplish his task--check the water gauges--but the sprinkler installers were behind schedule and it took approximately an hour. Prior to arriving at Sam's, Respondent had consumed approximately 10 beers. While waiting to perform the inspection, Respondent, who was not in uniform, walked around in the store, consuming an unknown quantity of beers that he had brought into the store with him. Respondent was observed by an electrical worker and several of Sam's employees who either saw him drinking beer or smelled the alcohol on his person and who either knew who he was or were told by other workers or employees who he was. These same individuals witnessed Respondent take several items to the rear entrance--through which everyone working that night or morning was coming and going--and out of the store. Respondent did not attempt to conceal the items. None of the individuals questioned Respondent about the items or stopped him. However, one employee contacted a Sam's manager who was present. They discovered store items were missing, went to Respondent's vehicle which was parked at the rear entrance, as was everyone else's vehicle, and saw the items inside his vehicle. Law enforcement was called, and Respondent was arrested. All the people who saw Respondent at Sam's store believe that he was intoxicated. Respondent has little or no recollection of the incident, and what he does recall is vague. He does not recall taking the items, all of which were items that he had seen before in Sam's and wanted for the Boy Scouts with whom he volunteers. However, he does recall picking up a light bulb and an electrical cord with no ends to it. As a result of the incident, Respondent was suspended by the Fire Chief of the City of Miramar and has not acted in the capacity as a firesafety inspector since December 1991. Even though Respondent pled nolo contendere to the felony charge of grand theft, mitigating circumstances exist, both at the time of the incident and subsequent thereto. Medically, Respondent is diagnosed as an alcoholic, having the disease alcoholism. During the incident, he suffered an alcoholic blackout and, as a result, has little or no recollection of taking the items. Furthermore, Respondent was incapable of forming the requisite intent to steal the items. Additionally, immediately after the incident, he sought treatment and checked himself into a rehabilitation center. Respondent is now a recovering alcoholic. He regularly attends meetings of Alcoholics Anonymous and is monitored by a sponsor who is also a professional firefighter (10 years) and a recovering alcoholic (approximately six years). Further, since January 1992, Respondent has been receiving medical assistance with his alcoholism. Even though he needs to remain in a recovery program, he does not pose a threat to his profession. 1/ Moreover, during Respondent's career as a firefighter (almost 15 years) and firesafety inspector (almost nine years), his certifications have never been disciplined and he has been actively participating in his community. Through his community involvement, Respondent established the City of Miramar's Fire Prevention Bureau and raised money to fund the Bureau. Additionally, he has received many job-related commendations and service recognitions and he has volunteered extensively to work with service organizations, such as the Boy Scouts. Petitioner's consistent policy is to not consider mitigating factors in disciplinary action against a firesafety inspector's certification. In matters involving a plea of nolo contendere, the consistent policy is that an applicant for firesafety inspector will not be issued a certification and that, if the individual has been issued a certification, Petitioner will seek revocation of the certification, regardless of mitigating circumstances. Petitioner is not seeking to discipline Respondent's certification as a firefighter since his certification, by statute [Section 633.351(2), Florida Statutes], was revoked until termination of his probation which occurred on January 14, 1993.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order: Suspending Respondent's certification as a firesafety inspector for a period of two years, retroactive to May 11, 1992, the date of Respondent's plea of nolo contendere. Reinstating Respondent's certification at the conclusion of the suspension and thereafter, for a period of one year, placing Respondent's certification on probation under whatever terms and conditions that Petitioner deems just and appropriate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of December 1993. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December 1993.
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.
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.
Recommendation 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
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the administrative complaint dated July 23, 1992; and, if so, what penalty should be imposed.
Findings Of Fact The Respondent filed an application for fire safety inspector certification on or about March 4, 1992. One of the questions on the application for fire safety inspector certification posed the following: Have you ever been convicted of a felony, or a misdemeanor involving moral turpitude? Respondent answered the foregoing question by marking the space before "NO." On or about March 8, 1989, Respondent was charged by information issued through the State Attorney's Office in Lake County, Florida, with aggravated assault. Aggravated assault is a felony. On or about June 2, 1989, the information referenced above was amended but continued to allege aggravated assault. On June 8, 1989, the Respondent entered a plea of nolo contendere to the offense of aggravated assault and was placed on probation for a period of three years. Adjudication of guilt was withheld at that time. Subsequently, the Respondent was discharged from probation and the proceedings in the criminal case were terminated. Respondent had completed his probation at the time his application for certification as a firesafety inspector was made. Respondent is currently certified as a firesafety inspector, certificate number FI-66318. Additionally, Respondent is employed as a firefighter with the Reedy Creek Fire Department. Subsequent to the receipt of Respondent's application for certification, the Department requested information from the Florida Department of Law Enforcement and the Federal Bureau of Investigation regarding Respondent's criminal record. The information received from those sources led to the discovery of the facts addressed in paragraphs 3, 4, 5, and 6 above and the initiation of these proceedings.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Insurance and Treasurer enter a final order revoking Respondent's certification as a firesafety inspector. DONE AND RECOMMENDED this 27th day of January, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4921 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 11 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: None submitted. COPIES FURNISHED: Joseph Egan, Jr. EGAN, LEV & SIWICA, P.A. Post Office Box 2231 Orlando, Florida 32802 Daniel T. Gross Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
