Findings Of Fact Respondent holds license No. 23-7743-H covering all the premises mentioned in the notice to show cause in the present case, and held this license on October 23, 1980. (Stipulation on the record (P. 11) in Case No. 80-2428) On October 23, 1980, each violation alleged in the notice to show cause did in fact occur. Respondent employs a full-time staff averaging eight to nine persons, who are responsible for maintenance at Lincoln Fields. Respondent's payroll expenditures for maintenance are somewhere around $75,000 to $80,000 a year. Maintenance supplies cost a like amount. In addition, an independent contractor who does painting is paid $11,000 or $12,000 annually, and an exterminator is paid about $15,000 a year. No money has been extracted by any owner or respondent from the operating revenues of the apartment complex for several years. The owners are holding on in hopes that HUD will finance a renovation. Jeffrey Harris, Jr., who is the maintenance foreman of Lincoln Field Apartments, gets anything he needs from management to repair and maintain the premises. Sharon Marie Fleming is the office manager and bookkeeper for respondent. She was asked to correct the deficiencies noted by Mr. Brown on his October visit to the apartment complex. She made work orders to accomplish this and gave them to the foreman. She bought approximately 46 new fire extinguishers and caused other extinguishers to be reserviced. She paid for the 46 fire extinguishers in November with a check. Respondent's Exhibit No. 1. These fire extinguishers replaced 46 missing fire extinguishers. (R. 100) On April 13, 1981, respondent purchased an additional 41 fire extinguishers. No fire extinguishers were purchased between September 1, 1977, and November, 1980. Respondent has begun putting fire extinguishers inside apartments in an effort to prevent theft. Ordinarily leaky faucets are fixed on the same day Ms. Fleming's office receives a complaint, or on the following day. Exterminators come every Monday to exterminate pests in part of the apartment complex. They spray each apartment once a month and have agreed to spray in between times, as needed. Respondent would incur no additional expense if a tenant should request extermination between monthly visits. Before the extermination contract that existed at the time of hearing was entered into, respondent had contracted with the other exterminators and its own personnel exterminated at one time. In January of 1981, respondent contracted with the current exterminator, because their previous exterminator had not eliminated the rat problem. The grounds people cut the grass once as week. One company that worked on the sewage lines broke holes in the line in order to gain access. Since then, respondent's maintenance crew has installed regular "clean-outs" in the pipes and "straightened them out." People were stealing the metal screw-in-caps that fit into the pipe, so respondent started using caps made of PVC, which is much less valuable than brass. Tenants "stealing" electricity sometimes results in exposed wires. After exposed electrical wiring in a meter room had been corrected, respondent's employees built new meter room doors, bought new locks, and locked the doors. Broken windows became so commonplace ("not just the tenants, everybody comes in and breaks the windows" R. 111) that respondent began replacing windowpanes with a plastic that does not break. Painters paint every day, grounds people work full time on the grounds. Some tenants had left appliances in stairwells. Respondent caused these to be cleared out by threatening those tenants with eviction.
Recommendation It is accordingly, RECOMMENDED: That petitioner impose a fine against respondent in the amount of three thousand, five hundred dollars ($3,500). DONE AND ENTERED this 21st day of September, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1981. COPIES FURNISHED: Janice G. Scott, Esquire 725 South Bronough Street Tallahassee, Florida 32301 Harold Zinn, Esquire, and Samuel Burstyn, Esquire Eighth Floor 3050 Biscayne Boulevard Miami, Florida 33137 R. B. Burroughs, Jr., Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
The Issue Does Petitioner owe Respondent sales tax for customer charges associated with the inspection/recertification of fire extinguishers, which activities were reported on invoices involving charges for parts, maintenance, recharge of fire extinguishers, provision of new fire extinguishers, pick-up and delivery, and maintenance, where the latter categories of activities included the payment of sales tax?
Findings Of Fact Petitioner does business in northeast Florida. Principally it inspects fire extinguishers at customer locations that must undergo inspection on an annual basis in accordance with Chapter 633, Florida Statutes. Petitioner also sells and services fire extinguishers to and for its customers. When performing an inspection, Petitioner's employee removes the fire extinguisher from its location, makes sure the powder in the fire extinguisher floats, checks the pressure gauge, makes sure that the pressure is acceptable in the extinguisher and examines the hose attached to the fire extinguisher; if these items are in good operating order the fire extinguisher is returned to its location and certified as operable for the upcoming period. The certification is evidenced by a tag placed on the fire extinguisher. That tag reflects a serial number, the name of the person who inspected and certified the extinguisher as acceptable, the permit number for the certifying person, and the kind of fire extinguisher that is under inspection. Beyond that point, if someone wishes to verify the status of the fire extinguisher that has been found acceptable, the tag evidences that acceptability. For the basic inspection, Petitioner charges its customers a fee depending on the number of fire extinguishers that are being inspected at a given location. If there is a problem with one of the fire extinguishers that has been inspected, Petitioner's employee will tell the customer the nature of the service that needs to be performed to assure that the fire extinguisher is in proper operating condition. In the event that a fire extinguisher has a problem which the customer wishes fixed, that fire extinguisher is removed from the customer's location and brought back to Petitioner's facility to be repaired. When the defective fire extinguisher is removed, an operable substitute fire extinguisher is provided to the customer pending repairs to the defective fire extinguisher. In effecting repairs, the customer is charged the cost of tangible items involved with the repair and for labor costs associated with the repair. The records which Petitioner maintained in the period in question in this case, reflect charges for the inspections of customer fire extinguishers and other activities and charges but not in the detail that has been set forth in the preceding paragraphs. The records are sales invoices. The invoices produced at the hearing are a fair representation of the experience associated with all invoices under question. In this case, Respondent intends to impose sales tax, penalties, and interest and an affiliated tax charge referred to as the Chartered Transit Systems Assessment, in relation to those items invoiced under the categories fire extinguisher inspected/fire extinguisher recertification/automatic fire extinguishing system inspected. These descriptions all refer to the process of fire extinguisher inspection. The invoices that are examples of this process show that sales tax and the associated charter tax have been collected for those other charges made by the Petitioner to its customers. Petitioner sought the advice of a CPA in establishing the manner in which its invoices reflect the collection of sales tax. This advice was sought through Mr. Schaefer. The audit period for which the Respondent has assessed additional tax, penalties, and interest is November 1, 1989 through October 31, 1994. The intent to impose tax penalties and interest resulted from an audit performed by the Respondent on Petitioner's business. An audit report was rendered on October 2, 1995; Petitioner objected to the findings in that audit report. Respondent affirmed the assessment in a Notice of Decision dated July 22, 1996. Petitioner sought reconsideration of that notice of decision. Respondent again upheld the assessment through its Notice of Reconsideration dated April 18, 1997. On June 19, 1997, Petitioner petitioned for formal hearing to contest the decision to impose the tax penalties and interest. The sample invoices by their terms state the following: FIRE DEFENSE CENTERS Invoice 3919 Morton Street 49217 JACKSONVILLE, FLORIDA 32217 (904) 731-0244 DATE ORDER NO 4/12/91 1613804 BR TO: Ramada Inn 6237 Arlington Expressway prices per contract Jacksonville, Fl 32211 Quantity Description Unit Price Total 24 Fire extinguisher inspected 65.00 2 5 lb. abc maintenance 20.00 3 Fire extinguisher inspected-unserviceable 9.00 3 5 lb. abc new fire extinguisher 114.00 2 10 lb. abc maintenance 28.00 2 Valve repair 10.40 1 Handle repair 3.95 1 Syphon tube 3.10 3 O rings 2.70 7 Pick up and delivery 8.00 After 15 days pay $282.09 264.15 QUADRUPLICATE Thank You Tax on 199.15 12.94 277.09 FIRE DEFENSE CENTERS Invoice 3919 Morton Street 49210 JACKSONVILLE, FLORIDA 32217 (904) 731-0244 DATE ORDER NO 4/12/91 1148265 JW TO: Clark Trailer Sales Serv. Mgr Linden Beane 5201 W. Beaver St prices per contract Jacksonville, Fl 32236 Quantity Description Unit Price Total 10 Fire extinguisher recertification 42.00 1 10 lb. abc hydrotest and recharge 38.00 1 Pick up and delivery 80.00 Tax on 38.00 2.47 82.47 After 15 days pay $87.47. QUADRUPLICATE Thank You FIRE DEFENSE CENTERS Invoice 3919 Morton Street JACKSONVILLE, FLORIDA (904) 731-0244 32217 49208 DATE ORDER NO TO: 4/12/91 1851144 JW Walmart 6767 103 rd St Jacksonville, Fl 32216 annual inspection prices per contract Quantity Description Unit Price Total 25 Fire extinguisher recertification 75.00 4 5 lb. abc maint 40.00 2 5 lb. abc recharge 20.00 2 Valve repair 8.90 3 Locking pin 6.00 1 Syphon tube 3.10 2 O ring 1.85 6 Pick up and delivery 8.00 After 15 days pay $173.56 162.85 Tax on 87.85 5.71 168.56 QUADRUPLICATE Thank You FIRE DEFENSE CENTERS Invoice 3919 Morton Street 49203 JACKSONVILLE, FLORIDA 32217 (904) 731-0244 DATE ORDER NO 4/12/91 1592203 EF TO: Poultry Health Service 5695 Stuart Ave prices per contract Jacksonville, Fl 32205 Quantity Description Unit Price Total 20 Fire extinguisher inspected 65.00 1 Fire extinguisher inspected-unserviceable 3.00 1 5 lb. abc maintenance 10.00 1 5 lb. abc recharge 10.00 1 2 3/4 lb. abc complete maintenance 8.00 New 10 lb. abc fire extinguisher 58.00 Valve repair 8.90 Syphon tube 3.10 O ring 2.45 4 Pick up and delivery 8.00 1 Fire extinguisher installed 7.50 183.95 Tax on 118.95 7.73 191.68 After 15 days pay $ 196.98 QUADRUPLICATE Thank you FIRE DEFENSE CENTERS Invoice 3919 Morton Street 49202 JACKSONVILLE, FLORIDA 32217 (904) 731-0244 DATE ORDER NO 4/12/91 1363891 PV TO: Holiday Inn 14670 Duval Rd (I 95 & Airport) Dan Zuhowski Jacksonville, Fl 32218 741-4404 Quantity Description Unit Price Total 4 30 lb. automatic fire extinguishing 225.00 system inspected 1 10 lb. automatic fire extinguishing system inspection 1-hood 1 10 lb. automatic fire extinguishing 50.00 system inspected 2-hood 11 Fusible links 93.50 2 10 lb. abc maintenance F/X's 24.00 418.40 Tax on 143.40 9.32 427.72 After 15 days pay $436.30 QUADRUPLICATE Thank You 10 lb. CO2 maintenance 12.00 O rings 1.90 Pick up and delivery 12.00 Standing alone, the invoices do not sufficiently distinguish which, if any, of the fire extinguishers being inspected are receiving other attention, or whether the invoices refer to an entirely different set of fire extinguishers than those that had been inspected. The distinctions described in prior paragraphs between the inspection process and other business pursuits have been based upon extrinsic evidence, outside the invoices, as offered by Louis Schaefer, Petitioner's owner. More specifically, Mr. Schaefer's description of invoice 49217 concerning the entries on that document is extrinsic evidence concerning the meaning of that invoice. Again without the extrinsic evidence one cannot reasonably ascertain the relationship, if any, between the fire extinguishers inspected and other activities involving fire extinguishers for which charges were made on the invoice. Moreover, without extrinsic evidence one cannot ascertain the number of fire extinguishers for which Petitioner has replaced or repaired parts, performed other forms of maintenance, etc., aside from the inspection. The invoice alone does not make clear which of the fire extinguishers described in the inspection line received no tangible personal property which was incorporated or attached to a repaired item, as opposed to those that may have had tangible personal property incorporated into or attached to a fire extinguisher that had been inspected. The same problem exists with other sample invoices. Related to invoice 49217, Mr. Schaefer points out that twenty-four fire extinguishers were inspected at a charge of $65.00. Two five-pound fire extinguishers needed maintenance. That maintenance was the recharge of the two five-pound fire extinguishers at the cost of $20.00. Three fire extinguishers were found to be unserviceable following the inspection. For the determination of the unservicability the customer was charged $9.00. The next line refers to the provision of three five-pound abc new fire extinguishers. The charge for the new fire extinguishers was $114.00. Mr. Schaefer explained that the new fire extinguishers were sold to the customer to replace the unserviceable fire extinguishers. Two fire extinguishers needed valve repairs. The invoice shows a $10.40 charge for the valve repairs. One of the fire extinguishers had a bent handle that had to be replaced. The charge on the invoice for the handle repair was $3.95. One fire extinguisher had a siphon tube repair. The invoice reflects that the charge for that repair was $3.10. Three O rings were replaced for a charge to the customer of $2.70. Mr. Schaefer explains that seven fire extinguishers were picked up and delivered for a cost of $8.00 that was in relation to removal, repairing, and returning fire extinguishers and hanging them back in place at the customer's business. Mr. Schaefer pointed out what can be ascertained by a mathematical exercise, that is, that all charges, with the exception of the $65.00 for inspecting twenty-four fire extinguishers, had sales tax imposed as part of the charges. That tax is in relation to the $199.15 for items other than inspection of the fire extinguishers. The total of the tax is $12.94. Mr. Schaefer explained that the inspection process itself involved an estimate of whether the fire extinguisher was serviceable and whether it met the date codes required. Further, in relation to invoice 49217, Mr. Schaefer explained the total number of fire extinguishers that received some service or were replaced. The two five-pound abc maintenance for $20.00 referred to two of the twenty-four inspected. The three fire extinguishers inspected unserviceable and the three five-pound abc new fire extinguishers refers to the removal of three fire extinguishers and replacement of those three fire extinguishers with new ones. The total of the two five-pound maintained and the three replaced brings the count to a subtotal of five fire extinguishers of the twenty-four inspected. The reference to two ten-pound abc maintenance brings the total to seven fire extinguishers repaired or replaced. The two valve repairs, the handle repair, and the O rings described in the invoice, according to Mr. Schaefer, were in relation to the two five-pound abc maintenance and the two ten-pound abc maintenance mentioned earlier in the invoice. The seven pick-up and delivery refers to three fire extinguishers that had to be replaced as unserviceable by the provision of new fire extinguishers and four fire extinguishers that could be repaired and returned to the customer by Mr. Schaefer's explanation. Therefore, seven of the twenty-four fire extinguishers inspected needed to be repaired or replaced. In summary, without Mr. Schaefer's explanation one can not reasonably discern the meaning of invoice 49217, whether the fire extinguishers inspected were part of the fire extinguishers repaired or replaced, and beyond that consideration how many fire extinguishers were repaired and replaced.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered upholding of sales tax, penalty, and interest, and related Chartered Transit System Assessment of tax, penalty, and interest for the audit period November 1, 1989, through October 31, 1994. DONE AND ENTERED this 3rd day of August, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1998. COPIES FURNISHED: Eric J. Taylor, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 William B. McMenamy, Esquire Donahoo, Donahoo, and Ball, P.A. 50 North Laura Street, Suite 2925 Jacksonville, Florida 32202 Marie A. Mattox, Esquire Mattox and Hood, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Linda Lettera, General Counsel Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue Whether or not Respondents improperly serviced portable fire extinguishers and pre-engineered fire suppression systems as specifically alleged in the administrative complaints filed herein on October 8 and November 4, 1992.
Findings Of Fact During times material herein, Respondent Polk Fire Extinguisher Service, Inc. and its owner, Ira Devon Canady, was a licensed dealer for portable extinguishers and pre-engineered systems for fire protection and prevention. During times material hereto, Respondent Floyd E. Nicks, was a permittee for the servicing of portable extinguishers and pre-engineered systems. On or about January 29, 1992, Respondent Polk caused its licensed permittee, James G. Boykin, an employee under Respondent Polk's direct supervision and control, to service a pre-engineered fire suppression system at the Highway 27 truck stop in Lake Wales, Florida. On March 14, 1992, a fire started in the kitchen area of the truck stop. On March 17, 1992, Investigator Phillip J. Gruda, an employee in the fire sprinkler industry in excess of 26 years, was summoned to investigate the fire which occurred in the restaurant (kitchen area) of the truck stop wherein the fire suppression system failed to function as designed. Investigator Gruda immediately initiated his investigation. He noted that a fire started in the kitchen. The fire origin was in the area of the range hood which became completely engulfed in flames and the suppression system did not activate. The fire suppression system which was installed in the hood of the oven utilizes a fusible link which melts when exposed to intense heat. The melted link sets off an ignitor which lets the fire retardant powder from the system extinguish the fire. An examination of the system revealed that the control head was twisted and the cable which connects the fusible link and the remote pull station was twisted preventing the system from discharging. Investigator Gruda also discovered that the cable had dislodged from the pulley extending from the control head which further prevented the system from firing. On approximately January 29, 1992, Respondent Polk used its agent/permittee, Boykin, to also service two portable extinguishers at the truck stop in Lake Wales. Permittee Boykin failed to perform the required six-year maintenance on portable fire extinguisher No. 873430; failed to discover that the gauge on said extinguisher indicated it had discharged; failed to discover that the extinguisher had leaked and to remove the old label from the extinguisher; failed to perform the hydrostatic test on the extinguisher and placed an incorrect serial number on the service tag. Also, Boykin did not leak test the extinguisher. The above-referenced extinguisher failed to discharge during the fire on March 14, 1992 at the truck stop. On or about December 19, 1990, Respondent Polk caused its agent/permittee, Floyd E. Nicks, an employee under Respondent Polk's direct supervision and control, to service a pre-engineered system at the truck stop in Lake Wales. Respondent Nicks was dispatched to perform a six-year service maintenance on the system and at Respondent Polk's direction, used a generic BC powder instead of the required safety first specified powder thereby invalidating the underwriter's laboratory (UL) listing. During December, 1990, Respondent Nicks also failed to perform the required hydrostatic test for cylinder No. 24991 which was part of the pre- engineered system at the truck stop. Respondent, by its agent and employee Boykin, during December, 1991, serviced a pre-engineered system at the Lone Palm Country Club in Lakeland. Agent Boykin failed to properly service the system and investigations by Gruda subsequently revealed the following violations: S-4 Venturi was missing over the char- broiler appliance tee. Incorrect duct nozzles and plenum nozzles. Six elbows were used to connect the yoke instead of the specified five. The pipeline limits did not meet specifi- cation. The system was not piped in accordance with the manufacturer's instructions. The duct nozzle was not centered. The filters were not baffled and "range guard" corner pulleys were used instead of "safety first" as specified. Based on these violations, the gas charbroiler was not properly protected by the fire suppression system. On or about July 31, 1991, the parties entered a consent order against Respondent Polk wherein Respondent was placed on probation for one year. One condition of probation set forth in the Consent Order was that Respondent Polk would strictly adhere to all provisions of Chapter 633, Florida Statutes and rules and regulations promulgated thereunder.
Recommendation Based on the foregoing findings of facts and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order revoking the licenses and permits of Respondents Polk Fire Extinguisher Service, Inc., Ira Devon Canady and Floyd E. Nicks. RECOMMENDED this 2nd day of August, 1993, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-6551 and 92-0023 Ruling on Petitioner's proposed findings of fact. Paragraph 8, rejected as being a conclusion. COPIES FURNISHED: Tom Gallagher, State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Bill O'Neill, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Daniel T. Gross, Esquire Division of Legal Services Department of Insurance and Treasurer 612 Larson Building Tallahassee, Florida 32399-0300 Ira Devon Canady, Owner Polk Fire Extinguisher Services, Inc. Post Office Box 384 Lakeland, Florida 33801 Floyd E. Nicks, pro se 1137 Carlton Lake Wales, Florida 33853
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The respondent Pyrotechnics International, Inc. is a corporation organized and existing under the laws of Florida, and respondent Adrian S. Marin is its Chairman. Respondent Pyrotechnics serves as a marketing agent for Sargom Company Ltd. in London, England, which manufactures fire fighting equipment and exports fire extinguishers and other equipment to respondents for distribution in the United States. Respondents desire to construct and operate their own manufacturing plant in Tampa, Florida. In August of 1981, The Sargom Company Ltd. began the process of obtaining a listing with and approval by Underwriters' Laboratories, Inc. for its fire extinguishers. As of the date of the administrative hearing in this matter, Underwriters' Laboratories was still in the process of investigating and testing Sargom's products. On or about October 26, 1982, respondent Adrian S. Marin applied to Applied Research Laboratories of Florida, Inc. for investigation, listing and follow-up service for its fire extinguishers. Respondents, in connection with Sargom, have expended funds amounting to approximately $60,000 in an effort to obtain approval and listing of its products from Underwriters' Laboratories and Applied Research Laboratories of Florida. As of the date of the hearing, respondents had not yet obtained such approval or listing. Respondents have sold and/or distributed fire extinguishers in Florida. The extinguishers sold and/or distributed did not carry an Underwriters' Laboratories, Inc. or manufacturer's serial number permanently affixed to the extinguisher shell. Respondents have recently devised a label which contains a serial number and date of manufacture. If permitted to sell and/or distribute their product in Florida, respondents intend to place a self-destructive label on a metallic plate to be permanently affixed to the canister.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Cease and Desist Order be entered prohibiting respondents from selling, offering for sale or giving fire extinguishers in Florida until such time as respondents demonstrate that their fire extinguishers have been approved or listed by a nationally recognized testing laboratory and that the serial number is permanently stamped or affixed to the extinguisher shell. Respectfully submitted and entered this 24th day of January, 1983, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983. COPIES FURNISHED: Honorable Bill Gunter State Fire Marshal The Capitol Tallahassee, Florida 32301 Gabriel Mazzeo, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 Anthony J. LaSpada, Esquire Barnett Bank Building Suite 500 1000 North Ashley Drive Tampa, Florida 33602
