The Issue Did the Respondent commit the offenses alleged in the Administrative Complaint Following Emergency Closure and, if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of licensing and regulating public lodging establishments. At all times pertinent to this proceeding, Respondent was a licensed public lodging establishment as that term is defined in Section 509.013(4)(a), Florida Statutes, license number 38-00194-H, located at 1720 US Highway 27, Avon Park, Florida. At all times pertinent to this proceeding, Richard Barnhart was employed by the Department as a Sanitation and Safety Specialist. At all times pertinent to this proceeding, Ed Madden was employed by the Department as a Sanitation and Safety Supervisor. On March 10, 2000, Barnhart performed a routine inspection of Respondent's public lodging establishment (Litto's Apartments) and observed two safety violations which were classified as violations of critical concern. A violation classified as of critical concern is required to be corrected immediately. The safety violations observed by Barnhart were: (a) fire extinguisher missing on north side of Units 1 an 2 which resulted in some of the apartments located in Units 1 and 2 not having a fire extinguisher available within a maximum distance of 75 feet; and (b) no smoke detectors in apartments 1, 3, and 8. On March 10, 2000, Barnhart prepared a Lodging Inspection Report advising Respondent of, among other things, the safety violations that had to be corrected by March 18, 2000. Eugene Riggs, Respondent's Apartment Manager, acknowledged receipt of the inspection report listing the violations and the date for correction of the violations of critical concern. On March 21, 2000, Barnhart performed a Call Back/Re- Inspection of Litto's Apartments and observed the same safety violations that were observed on March 10, 2000. On March 21, 2000, Barnhart prepared a Call Back/Re- Inspection Report advising Respondent that the violations observed on March 10, 2000, had not been corrected. This report advised Respondent that the report should be considered a warning and that Respondent would be issued a Notice to Show Cause why sanctions should not be assessed against Respondent's license. Eugene Riggs acknowledged receipt of a copy of the Call Back/Re-Inspection Report. During a routine inspection conducted on March 21, 2000, Barnhart observed that: (a) the apartments' water supply was less than 75 feet from a septic tank and drain field, a sanitation violation of critical concern not observed on March 10, 2000; (b) there was raw sewage in an open septic tank on the premises, a sanitation violation of critical concern not observed on March 10, 2000; and (c) a septic tank had been disconnected resulting in raw sewage being dumped on the ground, a sanitation violation of critical concern not observed on March 10, 2000. Barnhart prepared a Lodging Inspection Report listing the violations observed during his routine inspection on March 21, 2000. Eugene Riggs acknowledged receipt of a copy of this report which, among other things, advised Respondent of the deadline of March 28, 2000, for correcting the additional violations observed on March 21, 2000, and the deadline of March 21, 2000, for correcting the violation observed on March 10, 2000, and not corrected by March 21, 2000. On March 28, 2000, Barnhart performed a Call Back/Re-Inspection of Litto's Apartments and observed that the violations observed on March 10, 2000, and March 21, 2000, had not been corrected. Barnhart prepared a Call Back/Re- Inspection Report on March 28, 2000, advising Respondent that the violations had not been corrected and that a Notice to Show Cause why sanctions should not be assessed against Respondent's license would be issued. On April 7, 2000, Barnhart and Supervisor Madden conducted a joint routine inspection of Litto's Apartments and observed that the violations of March 10, 2000, March 21, 2000, and March 28, 2000, had not been corrected. On April 7, 2000, a Lodging inspection Report was prepared advising Respondent that the violations noted on March 10, 2000, March 21, 2000, and March 28, 2000, had not been corrected. Based on the testimony of Richard Barnhart and Ed Madden, whose testimonies I find to be credible, there is sufficient evidence to show that: (a) a fire extinguisher was missing from the north side of the Units 1 and 2 which resulted in some of the apartments in Units 1 an 2 not having a fire extinguisher available within a maximum distance of 75 feet at the time of the inspection on March 10, 2000, and no fire extinguisher had been installed on the north side of Units 1 and 2 at time of the inspection on April 7, 2000, or during the intervening time; (b) smoke detectors were not installed in apartments 1, 3, and 8 at the time of the inspections on March 10, 2000, and smoke detector had not been installed in apartments 1, 3, and 8 at the time of the inspection on April 7, 2000, or during the intervening time; (c) at the time of the March 21, 2000, inspection, there was raw sewage in an open septic tank and sewage on the ground due to a septic tank blowout which had not been corrected at the time of the inspection on April 7, 2000, or during the intervening time; and (d) the water supply was located less than 75 feet from septic tank and drain field at the time of the inspection on March 21, 2000, which had not been corrected at the time of the inspection on April 7, 2000, or during the intervening time. Respondent's failure to have sufficient fire extinguishers properly located on its premises and Respondent's failure to correct this violation resulted in a significant threat to the public safety and welfare in that the residents were not properly protected from the danger of fire. Respondent's failure to provide smoke detectors in all of the apartments resulted in a significant threat to the public safety and welfare in that the residents were not being properly protected from the danger of fire. Respondent's failure to correct the contaminated water supply, correct the situation concerning the raw sewage being dumped on the ground, and to correct the situation where raw sewage was being left in an open septic tank resulted in a significant threat to the public health, safety, and welfare in that not only were the tenants being subjected to those unsanitary conditions but the general public as well. An Order of Emergency Suspension of License and Closure was issued by Respondent and signed by Gary Tillman, District Administrator, having been delegated this authority by the Director of Hotels and Restaurants. The Order of Emergency Suspension of License and Closure is dated March 7, 2000. However, this appears to be scrivener's error in that the order alleges violation that are alleged to have occurred on March 10, 21, 28, 2000, and April 7, 2000. Also, the Certificate of Service is dated April 7, 2000. The Order of Emergency Suspension of License and Closure was still in effect on December 18, 2000, the date of the hearing.
Recommendation Having considered the serious nature of the offenses committed by the Respondent, that Respondent is presently under an Order of Emergency Suspension of License and Closure for these same offenses, and that the Department is requesting that only an administrative fine be imposed against Respondent, it is recommended that the Department enter a final order finding that Respondent committed the offenses alleged in the Administrative Complaint Following Emergency Closure and imposing an administrative fine of $1,200.00 as requested by the Department. DONE AND ENTERED this 15th of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2001. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Division of Hotels and Restaurant Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Litto's Apartments 1720 U.S. Highway 27 Avon Park, Florida 33825-9589 Ahmed Anjuman 1720 U.S. Highway 27 Avon Park, Florida 32825-9589 Susan R. McKinney, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent Emerald Plaza West, Inc., holds license No. 23-12623-H, issued by petitioner. Miami Garden West Apartments consists of 31 or 38 (T. 79) apartments in several buildings located on Northwest 183rd Street in Miami, Florida. E.J. Catogas, president of Emerald Plaza West, Inc., was also president of the general contracting firm that built the complex in 1973. Two years or so before the hearing, Emerald Plaza West, Inc., became the owner of Miami Garden West Apartments as a result of a foreclosure action. By the time of the hearing, the apartments had been sold and belonged to Nicky Limited, but respondent Emerald Plaza West, Inc., continued to manage the property under contract to the new owner. On April 11, 1980, Rogers Brown, an investigator in petitioner's employ, visited Miami Garden West Apartments. He found less fire extinguishers than the required two per building, and, of the fire extinguishers he found, some were in need of recharging. He discovered a refrigerator in need of repair in apartment No. 2 at 2250 Northwest 183rd Street, two toilets near the swimming pool in need of repair, and several screens in need of replacement, namely, screens on the east and west sides of apartment No. 2 in building 18257; on the east side of apartment No. 3 and in the kitchen of the same apartment', and on the east and rear sides of apartment No. 1 in building No. 18257; front and rear screens were missing in building 18255, and on the front and north sides of apartments Nos. 2 and 3 of building 18251. The inspector also found roaches and rodents on the premises. An employee of respondent lives two blocks from the apartment complex and helps with the repairs but is unable to speak English. Since he was unwilling to sign Inspector Brown's inspection report, Mr. Brown caused the report to be mailed to respondent, certified mail. Mr. Catogas refused the letter, however. Rogers Brown personally furnished E.J. Catogas copies of inspection reports on November 19, 1980. 1/ On May 15, 1980, personal service of the report had been effected on the wife of the employee who lived nearby. When Rogers Brown again inspected Miami Garden West Apartments, on June 9, 1980, he found some buildings still lacking fire extinguishers altogether, and found no fire extinguisher that was not out of date. There were only three or four fire extinguishers in the entire complex, and each needed recharging. Without contradiction, Mr. Catogas testified that the fire extinguishers are sometimes stolen. According to the same witness, the apartments are located in a fairly nice neighborhood and all the fire extinguishers were in place and operable on September 3, 1981. Petitioner's Mr. Brown found all the fire extinguishers in good order when he inspected on April 29, 1981. He had advised respondent that some of the fire extinguishers were in need of recharging on February 19, 1981. When Mr. Brown inspected on June 9, 1980, the roof on the southeast side of apartment No. 2 in the building at 2250 183rd Street leaked. Water was also leaking through a windowsill, and the refrigerator was not working in that apartment. At the time, apartment No. 2 at 2250 Northwest 183rd Street was occupied by Fannie Lindsey, whose maiden name was Fannie Hogan. During one period, her toilets overflowed, two to three times a week, for a reason she did not understand. Ms. Lindsey brought a lawsuit against respondent seeking changes in the conditions in her apartment. On December 26, 1980, Mr. Catogas or his lawyer wrote Ms. Lindsey's lawyer that the repairs sought had been effected. At the time of the hearing, the roof had been repaired, but the refrigerator still did not work. Mr. Catogas explained that he had adopted a policy, on advice of counsel, of effecting emergency repairs only in the Lindsey apartment. The door was off the pump room for the swimming pool and the laundry room also lacked a door, on June 9, 1980. There was a wet spot in the ceiling of the laundry room and holes in the sheet-rock lining the walls. One of the plates in the drop ceiling in apartment No. 4, building No. 18257, was broken, and the baseboard required repair. The outside toilets near the pool were inoperable. The plumbing has since been repaired, but residents do not have access to these toilets because the doors have been locked since the repairs were effected. No screens were to be found on the east side of apartment No. 2 at building No. 18257, on the east and rear sides of apartment No. 1 in the same building, and at the kitchen window and on the east side of apartment No. 3, also in building No. 18257. The front and north screens were missing at apartments Nos. 2 and 3 in building 18251 and front and rear screens were missing in building No. 18255. There were roaches and rat droppings in some of the apartments Inspector Brown visited on June 9, 1980. At some point, an employee of respondent began exterminating pests at the complex. Chemicals (some diazo compound) and equipment are kept on the grounds. Rogers Brown returned to Miami Garden West Apartments on August 16, 1980, on February 19, 1981, and on February 23, 1981. On his most recent visit, he once again found roaches and evidence of rodents; missing screens on the front and rear of building No. 18255; and that the drop ceiling in apartment No. 4, building No. 18257 remained unrepaired. According to Mr. Catogas, this has since been fixed. Mr. Brown also noted the still unmet need for repair to the baseboard in the living room of apartment No. 4 in building No. 18257. Respondent makes repairs from time to time and regularly exterminates the premises. Petitioner filed a proposed order which has been considered in the drafting of the foregoing findings of fact and substantially adopted, in substance. Proposed findings that have not been adopted have been rejected as inconsistent with or unsupported by the evidence or as irrelevant to the controversy.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner assess a civil penalty against respondent in the amount of $2,500. DONE AND ENTERED this 14th day of January, 1982, 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 14th day of January, 1982.
The Issue The central issue in this case is whether Respondents committed the violations alleged in the amended administrative complaint, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating fire extinguisher dealers. Respondent, Ricardo Cabrera, holds a fire extinguisher permit class 03 license (No. 109176000192) and is the qualifier for the company, B.C. & A.B.C. Fire Extinguisher Maintenance (license No. 702193000190 - Fire Extinguisher Dealer Class "C"). At all times material to the amended administrative complaint, Carlos Javier Gonzalez-Clavell was employed by Respondent but was not licensed or permitted to service fire extinguishers. In August, 1995, Respondents were placed on probation for a period of two (2) years. A special condition of Respondents' probation required Ricardo Cabrera to supervise all activities undertaken by the company to insure its employees complied with all regulations. In response to a complaint unrelated to the quality of Respondent's work performance, Ms. Barrow directed an investigation of the Respondent's business premises. Mr. Parks was assigned the investigation of whether Respondents were employing unlicensed workers to perform servicing or recharge of fire extinguishers. On January 29, 1996, Mr. Parks went to Respondent's place of business and observed someone loading a vehicle with fire extinguisher equipment and supplies. He also observed the male near a tank which he presumed was nitrogen. He assumed the person was recharging a fire extinguisher. During the described activity Respondent was not in sight. The person described in paragraph 7 later identified himself as Carlos Javier Gonzalez-Clavell. The vehicle being loaded belonged to Mr. Clavell. Respondent was on the business premises at all times noted above. He was out of view but supervising Mr. Clavell's activities. Mr. Clavell did not recharge fire extinguishers and was not permitted to perform license activities.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Insurance and Treasurer enter a final order dismissing the amended administrative complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of February, 1997. JOYOUS D. PARRISH 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 5th day of February, 1997. COPIES FURNISHED: Joe Demember, Esquire Division of Legal Services 512 Larson Building Tallahassee, Florida 32399-0300 Ricardo Cabrera 3340 South Lake Drive Miami, Florida 33155 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Daniel Y. Sumner General Counsel Department of Insurance and Treasurer The Capitol, LL-26 Tallahassee, Florida 32399-0300
Findings Of Fact Official recognition is taken of the contents of the file in DOAH case number 86-3477 and the following facts from that file: On July 31, 1986, the Respondent denied the renewal of the Petitioner's license for an adult congregate living facility at the Clinton Crest Retirement Hotel, and advised him of his right to a formal administrative hearing as to relicensure. On August 8, 1986, the Respondent amended its basis for the proposed denial of licensure, alleging that on April 11, 1986, May 14, 1986, and July 18, 1986, Petitioner did not have a fixed fire extinguisher at the cooking appliance, did not have a three compartment sink or other approved system in use for the purpose of proper sanitation of kitchen utensils, and did not have a week's supply of non-perishable food based upon the number of weekly meals the facility had contracted to serve, and alleging that these were violations of specified statutes and rules. It further alleged that the fire extinguisher and the three compartment sink had remained uncorrected since June 20, 1985. The amended notice of proposed agency action cited the following provisions as the basis for the fire extinguisher requirement: sections 400.414 and 400.441, Fla. Stat., rules 10A-5.23(15)(a) and 4A-40.05, Fla. Admin. Code, and NFPA (National Fire Protection Association) 101, section 7-7.3 and NFPA 96. On August 11, 1986, the Petitioner requested a formal administrative hearing to contest the proposed denial of licensure. One year later, on August 14, 1987, the Respondent granted a renewal of license to the Petitioner. The Petitioner filed a motion for summary final order based upon issuance of the license. No response was filed by the Respondent. The Hearing Officer entered an order to the Respondent to show cause and to require a response. The Respondent filed a voluntary dismissal. The Petitioner moved to strike the voluntary dismissal, noting that he had requested the hearing, and requested attorneys' fees. The Respondent's response characterized the voluntary dismissal as a motion to dismiss for mootness, agreeing that the license had been issued. The Hearing Officer entered a recommended order recommending dismissal due to mootness, and noting that a request for attorneys' fees pursuant to section 57.111, Fla. Stat. (1987) would result in a final order and thus must originate with a separate petition to the Division of Administrative Hearings. The Respondent entered a final order dismissing the Petitioner's request for hearing as moot. The Petitioner then filed the instant petition for attorneys' fees and costs with the Division of Administrative Hearings. On June 20, 1985, Petitioner's facility was inspected. Two of the three violations set forth in the amended basis for denial of relicensure of August 8, 1986, were cited in the inspection report on June 20, 1985, and were reported as having not been corrected in a reinspection on September 26, 1985. P. Ex. 5. Those were the fire extinguisher issue and the three compartment sink issue. In the June 20, 1985, inspection report, the Respondent classified the three compartment sink violation as a class III violation, and required the violation to be corrected at the end of two months. The Respondent classified the fire extinguisher violation also as a class III violation, and required it to be corrected in three months. R. Ex. 5. An earlier administrative complaint had been filed against the Petitioner's facility on January 2, 1986. One of the allegations in that complaint was failure to have a fixed fire extinguisher at the kitchen stove. The Department classified this violation in the administrative complaint as a class III violation. The Petitioner entered into a stipulation in that administrative action paying, in part, a fine for this allegation of a fire code violation, and agreeing that if the deficiency was not corrected in thirty days, the result would be further administrative action, which might include "revocation proceedings." The stipulation did not clearly provide that failure to correct the violation would result in revocation of the license. The stipulation became embodied in the final order of the Respondent on March 19, 1986. R. Ex., 6. On April 11, 1986, and on May 14, 1986, the facility was inspected. Among other citations, the facility was cited for not have enough nonperishables to feed the 7 persons then living at the facility for a week, for not having a three compartment sink, and for not having a fire extinguisher over the cooking appliance. All three were classified as class III violations. R. Ex. 8. On reinspection on July 18, 1986, these items were still not corrected. In DOAH case number 86-3477, the Respondent admitted to requests for admissions that the three compartment sink issue and the non-perishable food issue were corrected by the date of the request for admissions, November 26, 1986. Thus, when that case closed, the only pending issue was the fire extinguisher over the stove. Based upon the testimony of James F. Schroeder, the Respondent's expert witness with respect to fire safety, the denial of relicensure in the letter of August 8, 1986, was primarily based upon the issue of fire extinguisher over the stove. The Petitioner's kitchen is small, approximately 6 to 8 feet in width and 10 to 12 feet in length. The stove is a residential electric stave having four burners. By design and construction, it is a domestic stove rather than what typically is thought of as a "commercial" stove. The stove is used commercially to prepare meals for residents of the adult congregate living facility for a fee. The stove is not located below a normal ceiling parallel with the floor, but is located under a lower slanted ceiling. The ceiling is only 4 to 6 feet above the front of the stove, and slants to within a few feet of the back of the stove. The ceiling is combustible, and a fire in the ceiling would spread to the rest of the adult congregate living facility unless extinguished by the automatic sprinkler system. The stove is near a window which could feed a stove fire with oxygen. The building is a wood frame building, and is highly susceptible to fire. There was a portable fire extinguisher at the stove. Additionally, the Petitioner installed fire sprinklers throughout the building at a cost of over $4,000. The automatic fire sprinklers were installed by the Petitioner to comply with the stipulated settlement dated March 19, 1986, and were installed after May 20, 1986. P. Ex. 3. The Petitioner thought he had been told by the Respondent that by installing the fire sprinkler system, he would satisfy the requirement that the stove have an automatic fire extinguisher. The fire sprinkler system that is installed included one in the kitchen, but the sprinkler in the kitchen is not located over the stove. R. Ex. 2. The kitchen fire sprinkler, which may be effective to impede a general fire in the kitchen, is not effective to smother a stove fire at the stove. Moreover, the one automatic sprinkler in the kitchen ceiling is not the same as an extinguisher at the stove because the stove fire extinguisher must have a manual operation capability as well as automatic capability, and must operate to shut off current to the stove in the event of fire. The lack of a fire extinguisher and hood at the stove poses a potential threat to the physical safety of the residents at the Petitioner's facility. The expert testimony presented was not sufficient to conclude as a matter of fact that the lack of a fire extinguisher and hood at the stove presents an imminent danger to residents or a substantial probability that death or serious physical injury would result there from, or that the lack of this equipment is a direct threat to the physical safety of the residents. The expert testimony was consistent with the classification by the Respondent of this violation as a class III violation. Petitioner's facility is licensed for 14 residents. On May 15, 1986, the Petitioner wrote to the Respondent asking that his license be reduced to 12 when it was reissued so that he would have time to obtain a three compartment sink. The Petitioner was having difficulty locating such a sink to purchase. The Petitioner intended to apply for a license for 14 residents when he had installed the sink. The Petitioner made this offer to the Respondent again in his letter of August 6, 1986, P. Ex. 4, and a letter from his attorney, P. Ex. 5, dated September 26, 1986. It was stipulated by the parties that rules 4A-40.05 and 4A-40.10, as embodied in R. Ex. 3, were applicable to the Petitioner on August 8, 1986. Conclusions of law 14 through 17 concern the contents of certain rules and provisions of the National Fire Protection Association (NFPA) standards, and are adopted as findings of fact. The Petitioner is the sole proprietor of the unincorporated business known as the Clinton Crest Retirement Hotel, which is the licensee in this case. The Petitioner is and was domiciled in the State of Florida, his principal office is and was in the State of Florida, he has not employed more than 25 full-time employees, and his net worth is not more than $2 million, including both personal and business investments. If attorneys' fees and costs are to be awarded in this proceeding, the unrebutted evidence justifies an award of $4,697.75 as reasonable attorneys' fees and $62.50 as reasonable costs.
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
