Findings Of Fact On July 17, 1981, Petitioner, Lora Henderson, filed a household application for cooling assistance under the Low Income Energy Assistance Program with Respondent, Department of Health and Rehabilitative Services. Petitioner resides in Santa Rosa County, Florida, which is part of the North Cooling Climatic Region for purpose of determining the level of assistance to be given claimants. Although the application required that applicant furnish a Medical Certification for Cooling Form, she initially failed to do so. On the same date, the Department requested the claimant furnish the omitted information no later than July 30, 1981, in order to void denial of the application. Because the Department's records indicated she did not meet the July 30 deadline, her application was denied on August 24, 1981. Applicant's household includes herself and one other person. Their total monthly countable income in July, 1981, was $265.87 which falls within acceptable income limitations prescribed by the Department. Except for the omitted form, applicant was otherwise qualified to receive $143 in cooling assistance benefits. Petitioner visited the office of Dr. Rufus Thames in Milton on the afternoon of July 29, 1981, to obtain the necessary certification on the medical form. Her visit was confirmed by a copy of the patient's medical records introduced as Petitioner's Exhibit 1. Henderson then claimed she carried the form that same afternoon in the presence of her daughter to Ken Horton, a Department caseworker employed on a temporary basis at its Milton office. Horton's position was eliminated on July 31, 1981, and he is no longer employed by the Department. He was not present at the final hearing to either confirm or deny Henderson's claim. If indeed the form was actually filed, it was done so on a timely basis; however, it was either lost or misplaced and never reached Henderson's permanent file. There was no testimony concerning the findings of the doctor relative to any "life-threatening" medical conditions that Henderson might have. After Henderson's file was transmitted from Milton to Pensacola, a review of the application indicated that it contained no medical form. For that reason, the application was denied. Respondent could neither confirm or deny Petitioner's purported filing of the form. Although the Department processed approximately 3,500 similar applications in a four-county area, including 300 in Milton alone, its Energy Program Specialist recalled only one of those being temporarily misplaced, and no documents being lost.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner, Lora Henderson, be given thirty days from date of this order to file a Form 137 with a designated Department employee at its Milton office. If such form indicates eligibility, her application should be granted and she be given $143 in cooling assistance benefits; otherwise the application should be denied. DONE and ENTERED this 3rd day of December, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1981. COPIES FURNISHED: Mark K. Haydu, Esquire Post Office Box 1551 Pensacola, Florida 32597 Jon W. Searcy, Esquire Department of HRS 160 Governmental Center Pensacola, Florida 32522 Mrs. Lora Henderson Post Office Box 51 Bagdad, Florida 32530
The Issue Whether Petitioner is eligible for additional low income energy assistance under Section 409.508, Florida Statutes (1980), Home Energy Assistance Program; Rule 10 CER 80-11, Low Income Energy Assistance Program, amended by Rule 10 CER 81-4, Florida Administrative Code.
Findings Of Fact Petitioner Edna Griffin requested a hearing on April 2, 1981. After the required informal conference with a supervisor in Respondent Department Petitioner requested a formal hearing. On January 6, 1981 Griffin, a white female, filed a Household Application for low income energy assistance. No one in her household is a migrant or migrant farm worker, and no one else applied for the low income energy assistance. She lives alone in Bell, Florida, receives food stamps and receives a bill for the use of wood for heating purposes. Petitioner was issued a check in the amount of $47.00 to assist her in paying her heating costs for the month of January. The action was taken by Respondent within 45 days of Petitioner's application, and she as promptly paid low income energy assistance benefits. Petitioner, who is 90 years old, did not dispute the evidence presented by Respondent, the facts of her residence or income, or the type of fuel used but stated that her house is old and wood is expensive and her primary source of heat, although he uses other types of fuel at times. She had expected a larger heck since others, who had more money than she, had received more benefits under the program. Respondent's witness produced the signed application of Petitioner, a map of the State of Florida depicting four (4) climatic regions and a chart for determining the amount of low income energy assistance heating payments for each of the four (4) regions based on monthly income of the applicant and the type of fuel used for fully vulnerable and partially vulnerable households. The amount of 547.00 was the correct amount according to he chart under the facts provided by Petitioner.
Recommendation Based on the foregoing findings of Fact and Conclusions of Law the Hearing Officer recommends that a final order be entered approving the amount of Low Income Energy Assistance Program benefits allocated to Petitioner Edna Griffin. DONE and ORDERED this 11th day of June, 1981, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND 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 11th day of June, 1981. COPIES FURNISHED: Edna Griffin Route 1, Box 140 Bell, Florida 32619 Joseph E. Hodges, Esquire Department of HRS 2002 NW 13th Street Oak Park Executive Square Gainesville, Florida 32601 Alvin J. Taylor, Secretary Attn: Susan B. Kirkland, Esquire Department of HRS Building One, Room 406 323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issues in this case are whether Respondent, Synergy International, Inc. (Respondent or Synergy), should be fined and required to take correction actions based on charges in the Notice of Violation, Orders for Corrective Action, and Administrative Penalties Assessment, DEP OGC File 09-0140 (NOV).
Findings Of Fact Since at least April 30, 2007, Respondent has operated a lighting supply company at 6060 29th Street East, Bradenton, Florida. (Despite Respondent's stipulation to this fact, Respondent presented evidence that the correct mailing address of its business actually is on 28th Street East.) Spent florescent bulbs are universal waste lamps as defined at Rule 62-737.400(5)(b)1. and universal waste as defined at 40 CFR Section 273.9. Respondent has never registered with DEP as a transporter of universal waste bulbs or notified DEP that it was transporting universal waste. Respondent has never accumulated 5,000 kilograms or more of universal waste at one time, nor has Respondent ever treated, disposed of, or recycled universal waste at its facility. DEP inspected Respondent's facility on July 16 and August 6, 2008. On the first inspection, DEP informed Respondent's owner, Matthew Gregg, that the purpose of the inspection was to see if Respondent was following the laws governing spent fluorescent lamps. The inspectors say Mr. Gregg told them that, when Synergy sells fluorescent lamps, its installers bring the spent lamps back to Respondent's premises and that sometimes customers bring spent lamps to Respondent's premises. The inspectors say they asked Mr. Gregg where Respondent stored the spent lamps, and he showed them Respondent's storeroom. They also say they asked Mr. Gregg how long the spent bulbs had been in the storeroom, and he told them "a couple of months." They say he told them that Respondent was in the process of obtaining equipment to recycle the mercury in the spent bulbs. In the storeroom were shelves with cardboard boxes of fluorescent and other lamps and bulbs and other product. The inspectors say Mr. Gregg told him that the spent fluorescent lamps were kept in the boxes on the shelves, some of which were labeled "hazardous waste." From their vantage, the inspectors did not see any labels on any of the boxes saying "Spent Mercury- Containing Lamps for Recycling," "Universal Waste Mercury Lamps," "Waste Mercury Lamps," or "Used Mercury Lamps." They did not turn the boxes around on the shelves and did not look at all surfaces of the boxes. There was no evidence that they told Mr. Gregg they considered the boxes not to be properly labeled. The inspectors also observed fluorescent lamps, including four broken lamps, in a flimsy plastic bag that was torn. They told Mr. Gregg that the broken lamps had to be cleaned up and put in a proper container, not just in a flimsy plastic bag, and properly labeled. In response, Mr. Gregg had an employee who was present working in the storeroom clean up the broken lamps and put them in a proper container. It is not clear from the evidence how the container was labeled. Mr. Gregg contends that the evidence did not prove how long the lamps were in the plastic bag prior to the inspection, or when the four lamps were broken, and that it is possible the storeroom worker was in the process of filling an order while the inspection was ongoing. But it is telling that neither Mr. Gregg nor the storeroom worker mentioned this to the inspectors at the time, as Mr. Gregg himself concedes. For this reason, it is found that the storeroom worker was not in the process of filling an order while the inspection was ongoing, but rather that the plastic bag with the four broken lamps had been there for an extended but unknown period of time prior to the inspection. The inspectors did not see any labels saying "Spent Mercury-Containing Lamps for Recycling," "Universal Waste Mercury Lamps," "Waste Mercury Lamps," or "Used Mercury Lamps" on the premises that day. They did, however, see the following label in the office area: FLUORESCENT LAMP RECYCLE PACKCALL FOR PICK-UP 877-220-5483 WARNING: THIS BOX CONTAINS MERCURY Hg HAZARDOUS MATERIALS On the second inspection, DEP just drove through the parking lot and around to the back of Respondent's premises. They saw the contents of the storeroom on the pavement behind the building. An employee of Respondent (the same employee who cleaned up the broken lamp on the first inspection), told them that the storeroom contents had been removed to allow Synergy to clean out the storeroom that day. The inspectors observed fluorescent lamps standing in and sticking out of the top of boxes on the pavement. Some of them appeared to be spent lamps; some did not appear to be spent lamps. Some of the lamps, both apparently spent and apparently unspent, were "green-tip" lamps, a type of Phillips-brand fluorescent lamp made with less than 0.2 mg per liter (mg/L) of mercury, as measured by the Toxicity Characteristic Leaching Procedure (TCLP), which is the "universal waste" threshold. There also are other brands of fluorescent lamps that have a TCLP of less than 0.2 mg/L of mercury. The inspectors could not determine whether particular florescent lamps observed during their "drive-by" inspection had been made with a TCLP of more than or less than 0.2 mg/L of mercury. They did not inspect further or ask any questions about the lamps they saw. It is possible that DEP's inspectors failed to obtain and preserve independent evidence of the TCLP values of the particular florescent lamps being stored at Respondent's facility because they were lulled by Mr. Gregg's initial statements. After Synergy received a warning letter from DEP, Mr. Gregg has maintained that DEP's inspectors misunderstood him during the first inspection. He contends that he did not admit to transporting spent fluorescent lamps and storing them. He contends that, when he told DEP's inspectors that Respondent transports and stores lamps, he meant non-fluorescent lamps and new fluorescent lamps that are stored on the premises and transported to customers. DEP contends that Respondent's more recent position is a fabrication. In response to Mr. Gregg's testimony, DEP called James Jones, who was an installer for Synergy from May to October 2007.3 Mr. Jones testified that Mr. Gregg instructed him and other Synergy installers to transport spent bulbs to Respondent's premises. He testified that he followed those instructions, including on a job in 2007 when he replaced approximately 800-1,000 florescent lamps at a Sav-a-Lot store in Naples. According to Mr. Jones, some of the lamps replaced and brought back to Synergy were so old that the stamped brand logo was worn off. The former installer's testimony conflicted not only with Mr. Gregg's but also with the affidavits of another installer and of an employee of Synergy. The DEP witness attacked the credibility of Mr. Gregg and the affiants, accusing them of bias. However, it is clear that the witness acknowledged, agreed to, and signed Synergy's written policy prohibiting installers from accepting spent lamps from customers. If Mr. Jones was telling the truth, Mr. Gregg and Synergy condoned the violation of the written policy. At the hearing, DEP's expert, Mr. Dregne, testified that at least some of the florescent lamps in Synergy's storeroom on July 16 and outside the storeroom on August 6, 2008, probably met the TCLP threshold for regulation because, based on Mr. Gregg's initial statements to the DEP inspectors and the testimony of former installer, they were a random mix of lamps being taken out of service in July 2008. The length of time a florescent lamp lasts depends on use and other factors. The lamps can last for ten years or more. For about ten years, florescent lamps falling below the TCLP threshold for regulation have been manufactured in the United States. Not all lamps now manufactured in the United States fall below the TCLP threshold for regulation. (Lamps manufactured outside the United States generally do not fall below the TCLP threshold for regulation, but they generally are not sold in the United States.) Based on a preponderance of all the evidence, it is found that Respondent's position since receiving a warning letter from DEP has been a fabrication in that Mr. Gregg actually and truthfully made the statements in Findings 6-7, supra, and that at least some of florescent bulbs in Synergy's storeroom on July 16 and outside the storeroom on August 6, 2008, probably had been made with a TCLP of more than 0.2 mg/L of mercury. Mr. Gregg testified that fluorescent lamps on the premises in plastic bags and any other containers unsuitable for spent fluorescent lamps were not spent lamps but were defective new lamps that were kept in Respondent's storeroom for purposes of processing warranty claims. Mr. Gregg's testimony was consistent with Synergy's written policy (also acknowledged, agreed to, and signed by DEP's witness) that "[d]efective product is to be kept on hand until credit is issued or manufacturer requests return of product." However, it is not relevant whether the florescent lamps were spent or defective new lamps. See Conclusions 20 and 22, infra.
Findings Of Fact Petitioner was born on March 14, 1960. At the time of this hearing he was 22 years old. Petitioner moved to Florida from Arkansas in March, 1981, and subsequently applied for and was issued a State certificate as a general contractor in February, 1982. While in Arkansas, Petitioner obtained a license as a master electrician (Exhibit 1) and his company, American Enterprise Electric, was licensed as an electrical contractor (Exhibit 2). The electrical contractors' license was obtained without examination, as Petitioner was doing electrical contracting when the Arkansas licensing law was passed in 1979. Petitioner started working for his father, a general contractor in Arkansas, at an early age and was doing electrical work in his early teens. He took over the electrical end of his father's contracts, prepared bids, supervised, and did most of the electrical wiring on several apartment buildings, office buildings, and single family residences through his late teens. In 1978 Petitioner started his own business as an electrical contractor in Arkansas. He subsequently added air conditioning and electronics work. Operating as Allgood Electric, Petitioner did the electrical work on residences, apartment buildings and office buildings in which others were the general contractor. In his application, Exhibit 4, Petitioner dates 3/30/78 as the start of his electrical contracting company. The last job reported on Exhibit 4 is dated 9/1/80, shortly before Petitioner moved to Florida. From 3/7/78 through 9/1/80 Petitioner lists on Exhibit 4 a total electrical contractor dollar value of $60,000 with two of these jobs accounting for $35,000. Petitioner holds no local license as an electrician or electrical contractor. No evidence was presented of the electrical contracting done by his company in Florida, although he testified he has a qualifying agent to allow his company to do electrical contracting.
Findings Of Fact On July 17, 1981, Petitioner, Epharim Perry, filed a household application for cooling assistance under the Low Income Energy Assistance Program with Respondent, Department of Health and Rehabilitative Services. Petitioner resides in Madison County, Florida, which is a part of the North Cooling Climatic Region for purposes of determining the level of assistance to be given claimants. Although the application required that applicant furnish a Medical Certification for Cooling Form, he failed to do so. On July 28, 1981, the Department requested the claimant furnish the omitted information in order to complete his application. Because he failed to comply with this request, the application was ultimately denied on August 28, 1981. Applicant is the only member of his household. His total monthly countable income is 8258 which falls within acceptable income limitations prescribed by the Department. Except for the omitted Form, applicant was otherwise qualified to receive $143 in cooling assistance benefits.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Petitioner, Epharim Perry, be DENIED. DONE and ENTERED this 28th day of October, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER 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 28th day of October, 1981. COPIES FURNISHED: Mr. Epharim Perry Hill Top Apartments, #1003 Madison, Florida 32340 John L. Pearce, Esquire 2639 North Monroe Street - Suite 200A Tallahassee, Florida 32303
Findings Of Fact On June 20, 1981, Petitioner, Laverne A. Nolte, filed a household application for cooling assistance under the Low Income Energy Assistance Program with Respondent, Department of Health and Rehabilitative Services. Petitioner resides in Dade County, Florida, which is a part of the South Cooling Climatic Region for purposes of determining the level of assistance to be given claimants. Respondent reviewed Petitioner's application, and because she receives government assistance for electricity in the private housing project where she resides, determined that Petitioner lives in a household that is partially vulnerable to the rising cost of cooling energy. This means a governmental entity is partially responsible for paying a portion of her energy bill. According to Department regulations, Nolte was entitled to only $75 in energy assistance, and a check was issued to her for that amount. Applicant is the only member of her household. Her total monthly countable income is $238 which falls within acceptable income limitations prescribed by the Department. Except for living in a partially vulnerable household, Nolte was otherwise qualified to receive $290 in total cooling assistance benefits. Petitioner acknowledged that when her application was filed, she received $12 per month in governmental assistance to offset in part her electric bill. This was subsequently increased to $25 per month in July, 1981. However, she contends this aid is minimal in relation to her actual utility bill, and that it is unfair to cut her cooling assistance benefits to $75 for receiving such a small amount of aid.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the request of Petitioner, Laverne A. Nolte, for additional cooling assistance be DENIED. DONE AND ENTERED this 29th day of January, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 29th day of January, 1982. COPIES FURNISHED: Laverne A. Nolte 1301 Northwest Seventh Street, #212 Miami, Florida 33125 Leonard Helfand, Esquire Suite 1040 401 Northwest Second Avenue Miami, Florida 33128
Findings Of Fact The findings of fact set out in paragraph 1 of the Recommended Order are based upon Hearing Officer's exhibit 1 and FPC exhibits 6, 7, and 8. The findings of fact set out in paragraph 2 are based upon a stipulation of the parties which is recorded in the transcript of the formal hearing, Volume III, pp. 181-182. The findings of fact set out in paragraph 3 are based upon the testimony of the witnesses Schaefer and Guillet; and upon Hearing Officer's exhibit 1 and FPC exhibits 1 through 8, and 69. The findings of fact set out in paragraph 4 are based upon the testimony of the witnesses Greene, Schaefer, and Conner; and upon Hearing Officer's exhibit 1, and FPC exhibits 1, 5, 14, 47, and 48. The findings of fact set out in paragraph 5 are based upon the testimony of the witnesses Greene and Conner; and upon Hearing Officer's exhibit 1, and FPC exhibits 1, 5, 47, 48, and 49. The findings of fact set out in paragraph 6 are based upon the testimony of the witnesses Schaefer, Greene, Conner, and Voigts; and upon Hearing Officer's exhibit 1 and FPC exhibits 1, 5, 12, 35 through 45, 59, and 61. The findings of fact set out in paragraph 7 are based upon the testimony of the witness Conner; and upon Hearing Officer's exhibit 1, and FPC exhibits 14,35, and 39 through 43. The findings of fact set out in paragraph 8 are based upon the testimony of the witnesses Schaefer, Greene, Marin, Voigts, Guillet, Harp, Lokey, Gilmartin, and Watson; upon the testimony of public witnesses Wagoner, Velden, and Dykes; and upon Hearing Officer's exhibit 1 and FPC exhibits 1, 5, 14, 16, 22, 27, 28, 32 through 34, 39 through 43, 45, 46, 52, 61, and Public exhibit 1. The findings of fact set out in paragraph 9 are based upon the testimony of the witnesses Schaefer, Greene, Marin, Voigts, Guillet, Harp, Lokey, Gilmartin, and Watson; upon the testimony of public witnesses Wagoner, Velden, and Dykes; and upon Hearing Officer's exhibit 1 and FPC exhibits 1, 5, 14, 16, 22, 27, 28, 32 through 34, 39 through 43, 45, 46, 52, 61, and Public exhibit 1. The findings of fact set out in paragraph 10 are based upon the testimony of the witnesses Marin, Brown, Guillet, Lokey, Gilmartin and Watson; and upon Hearing Officer's exhibit 1 and FPC exhibit 16. The findings of fact set out in paragraph 11 are based upon the testimony of the witnesses Brown, Cartensen, and Miller; and upon FPC exhibits 49, 50, 51, and 65. The findings of fact set out in paragraph 12 are based upon the testimony of the witness Brown. The findings of fact set out in paragraph 13 are based upon the testimony of the witnesses Brown and Harp; and upon FPC exhibit 52. The findings of fact set out in paragraph 14 are based upon the testimony of the witness Conner. The findings of fact set out in paragraph 15 are based upon the testimony of the witness Miller; and upon FPC exhibits 51 and 65. The findings of fact set out in paragraph 16 are based upon the testimony of the witness Schaefer; and upon FPC exhibits 9, 10, 11, and 69. The findings of fact set out in paragraph 17 are based upon the testimony of the witness Koszulinski and Guillet; and upon Hearing Officer's exhibit 1, and FPC exhibits 70 through 73. ENTERED THIS 2nd day of June, 1982, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 2nd day of June, 1982.
Findings Of Fact Petitioner, Nina L. Simpson, filed an application for low income home energy assistance with respondent, Department of Health and Rehabilitative Services (HRS), on December 10, 1983. The application reflected that Simpson lives with her husband and seven children and had a mailing address at Post Office Box 232, Lehigh Acres, Florida. She used a mailing address instead of her street address (Balfour Terrace, Sunnybrook Farms) because she lived in a distant unincorporated area somewhere between Lehigh Acres and Fort Myers, and her mail was frequently misplaced until she took a post office box. The application was received by HRS on December 13, 1983. The application was later reviewed by an unidentified HRS worker who found the application complete except for the fact that Simpson gave a mailing address instead of her street address. Accordingly, the worker mailed Simpson an HRS SES 2009 Form apparently around January 12, 1984 requesting the following additional information: I need your residence address. Please call us at the office as soon as possible or send me back this letter with the information. The request also stated that the information had to be filed no later than January 26, 1984, or the application would be denied. Simpson never received the request for information. She attributed this to an apparent mix-up in the mail or an error on the part of HRS since she received during this time Medicaid notices for two other individuals sent to her by error from the local HRS office. Had she received the request, she would have promptly supplied the information. The only correspondence she received from HRS was a notice of denial mailed to her on February 8, 1984. That prompted the instant proceeding. Except for the failure to give a street address on her application, Simpson was qualified to receive a $97 home energy assistance payment. Although Simpson was entitled to an interview with an HRS supervisor prior to the formal hearing as required by Rule 10C-29.17(4), Florida Administrative Code, in an effort to amicably resolve this matter, she was not afforded such an interview.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Nina L. Simpson for low income home energy assistance be GRANTED. DONE and ENTERED this 3rd day of August, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER 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 3rd day of August, 1984. COPIES FURNISHED: Mr. David H. Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 Nina Simpson P.O. Box 232 Lehigh Acres, Florida 33936 Anthony N. Deluccia, Jr., Esquire P.O. Box 06085 Fort Myers, Florida 33906
The Issue The issue in this case is whether Kenneth Tuch is liable to Florida Power and Light Company for receipt of unmeasured electric energy and if so, what amount is due?
Findings Of Fact Kenneth Tuch resides alone at 1924 N.E. 25th Street, Ft. Lauderdale, Florida. He receives his electric current from Florida Power and Light Company. In June of 1985, an employee of American Cable Company went to Mr. Tuch's home to investigate a complaint about the quality of cable television reception at the Tuch residence. The employee noticed that the air conditioning was on in the Tuch residence while he was investigating the complaint. When following the cable lines outside the home, he noticed the electric meter was not operating. He provided this information to Florida Power and Light which sent two employees to the Tuch residence on June 20, 1985. They found the air conditioning and swimming pool pump were on, but the electric meter disk did not turn. The meter seal was opened and the meter was removed from its socket, and photographed. The photographs demonstrate that the potential clip of the meter was open. The potential clip is used when testing a meter. When it is open no registration of electric current is made. The meter was originally placed at the Tuch residence in 1960. The potential clip could not have been open then, for it never would have registered any electric consumption were that the case. The potential clip would not have fallen into the open position on its own. There was tampering with the potential clip because a screw in the slot in the center of the clip had been tightened to keep the clip in the open position. In addition, the picture of the potential clip and the screws (FP&L Exhibit 5) show wear and tear on the screw. Marks on the area around the screw slot in the center of the potential clip show that the clip has been slid back and forth. These facts prove a deliberate attempt to divert unmeasured electricity. The meter seal consists of a wire bail of a horseshoe shape which fits into a rectangular base body approximately 1 and 1/4 inches by 3/4 inch by 1/8 inch. The seal removed from Tuch's meter bears the inscription on one side "77 FP&LS" and on the other side, the numbers "0379126". The condition of the seal was such that by tugging on the wire bail, it would loosen from the body of the seal, and open, but the bail could be replaced into the seal body giving the impression on casual observation that the seal was intact. While the inscription on the seal indicates that it is a genuine Florida Power and Light seal, it is not in the condition in which seals are originally placed. It is not possible to open the wire bail of a seal and thereby gain access to the meter canopy without tampering with the seal. The billings for consumption of electricity at the Tuch residence show an erratic pattern of monthly electric consumption during the period for which Florida Power and Light has records available, January 1982 through June 1986. For the years 1982 through 1984, Mr. Tuch was billed for an average of 11,022.33 kilowatts per year. On June 20, 1985, the meter at the Tuch residence was replaced with a new meter which was locked in place. Readings were taken from the new meter on June 21, June 27, July 2 and July 9. During those 19 days, 1,063 kilowatts had been consumed for an average use of 55.9 kilowatts per day. This equals 1,677 kilowatts for a 30 day period. An average percentage of use chart was introduced into evidence as the basis for distributing the total yearly kilowatt consumption based upon seasonal variations in consumption. According to the chart 9.8 percent of the total kilowatts used by Florida Power and Light customers in 1985 were consumed in the July billing period. That being so, the total estimated annual usage given a July bill of 1,677 kilowatts would be 17,112 kilowatts. The total additional billing on that basis for 1982, 1983, 1984 and 1985 (through the date of the discovery of the tampering) would be $1,829.57. A potential problem with this methodology for determining annual usage is that it extrapolates a bill for a one year period based on readings taken over only 19 days. As a check on the method Florida Power and Light also placed in evidence the readings for approximately six months actual usage after replacement of the meter which had been tampered with. Mr. Tuch used 7,865 kilowatts during the 172 day period from June 20 through December 31, 1985. This was an average use of 45.72 kilowatts per day. When multiplied by 365 days the estimated yearly usage is 16,690 kilowatts. This results in a billing $17.52 lower than the extrapolation and shows the reasonableness of using the 19 day period to project annual usage. The electric meter removed from Mr. Tuch's residence was tested, but due to its age was then destroyed. Florida Power and Light rendered its additional bill two months later. Mr. Tuch therefore did not have the opportunity to inspect or test the meter. Florida Power and Light tested the meter appropriately before it was destroyed and it was accurately registering current flow when the potential clip was closed. If this case involved questions about the accuracy of the registration on the meter which had been removed, Mr. Tuch's inability to test the meter would have seriously impaired the fairness of this proceeding. The testimony and photographic evidence, which is accepted, is that the potential clip was open, and thus the meter would register no use of current at all. Essentially the meter had been turned on and off. This tampering caused the underregistration, not inaccuracy of the meter's measurement ability. In this case, the inability to test the old meter did not prejudice Mr. Tuch. Florida Power and Light is not entitled to recover $157. 88 in investigative costs. The witness proffered to testify about investigative costs was listed in interrogatories as a witness on matters of corporate policy. See Notice of Serving Answers to Interrogatories filed April 21, 1986. While it may be corporate policy to bill those who divert current for investigative charges, the exhibit purporting to set out the costs incurred in the Tuch investigation was admitted to show the corporate form for recording charges. No evidence of the charges in this specific case was admitted (Transcript 196-97). 1/
Recommendation It is RECOMMENDED that a final order be entered by the Public Service Commission requiring Kenneth Tuch to pay Florida Power and Light $1,829.57 for current diverted. If such payment is not made, electric service to Mr. Tuch's residence at 1924 N.E. 25th Street, Ft. Lauderdale, Florida, should be discontinued. DONE AND ORDERED this 29th day of January, 1987, in Tallahassee, Florida WILLIAM R. DORSEY, JR. 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 29th day of January, 1987.
Findings Of Fact The Respondent, Florida Department of Health and Rehabilitative Services, is an agency of the State of Florida charged with the responsibility, inter alia, for setting and enforcing health and safety standards for hospitals located within the state. In furtherance of this function, the Department has adopted rules set out Chapter 10D-28, Florida Administrative Code. Among these rules are provisions which set standards for hospital construction which are designed to assure the fire and electrical safety of patients, staff and visitors to hospitals. The Department enforces its rules by licensing or certifying hospitals which comply with them, and by refusing licensure or certification to those which do not. The Department's Rule 10D-28.79, Florida Administrative Code, relates to codes and standards for the physical plant of new and existing hospitals. The rule does not set out code provisions, but rather adopts various construction and life safety codes by reference. Rule 10D-28.79(5) provides in pertinent part: The following codes and regulations are herein adopted by the licensing agency [the Department], and it shall be the responsibility of the sponsor [licensed hospitals] to consult such codes for compliance with all matters not specifically set forth in this chapter. Standard Building Code, 1976 edition, Group I, Institutional Occupancy. National Fire Protection Association No. 101, Life Safety Code 1973 Edition; Appendix B of this Code adopts several other NFPA standards, which shall be met . . . This rule became effective on January 1, 1977. Copies of the codes that were adopted by reference did not accompany the rules as the were filed with the Office of the Secretary of State. The Life Safety Code is a publication of the National Fire Protection Association (NFPA). Appendix B to the Code, which is referenced in the Department's Rule 10D-28.79(5)(b) is titled "Referenced Publications" and provides in part as 7 follows: The following publications are referenced by this Life Safety Code and thereby comprise a part of the requirements or recommendations to the extent called for by the Code or Appendix A, respectively. The Appendix goes on to list more than fifty publications, including the 1971 National Electric Code, which is another publication of the National Fire Protection Association. The crux of this proceeding is a single paragraph of this publication. Paragraph 517-51(a) sets an electrical performance standard to be met in hospital areas where "electrically susceptible patients" are housed. The paragraph provides: In electrically susceptible patient areas the maximum 60-hertz alternating-current potential difference between any two conducting surfaces within thee reach of a patient, or those persons touching the patient, shall not exceed five millivolts measured across 500 ohms under normal operating conditions or in case of any probable failure. The Department has interpreted its Rule 10D-28.79(5)(b) as adopting as performance standards the provisions of all of the codes set out in Appendix B of the 1973 Life Safety Code, including the 1971 National Electric Code, and paragraph 517-51 thereof. There are conflicting provisions in the various Life Safety and Electrical Codes that the Department has adopted, and contends that it has adopted through its adoption of Appendix B of the 1973 Life Safety Code. The Department resolves these conflicts by requiring hospitals to develop solutions which will meet the provisions of all of the codes. The provisions of paragraph 517-51(a) of the 1971 National Electric Code are considerably more strict than similar provisions set out in later editions of the National Electric Code, including the 1975, 1978 and 1981 Codes. The Department contends that hospitals must comport with the most strict of these requirements, i.e. the ones set out in paragraph 517-51(a) of the 1971 Code. The Petitioner Memorial Hospital of Jacksonville is an accredited, licensed hospital in the State of Florida. Memorial Hospital is presently in the process of constructing a three million dollar renovation, including a renovation to its critical care unit. In order to comply with the provisions of paragraph 517-51(a) of the 1971 National Electric Code, Memorial Hospital would need to expend approximately $55,000 that would not need to be expended in order to comply with provisions of other codes. Memorial Hospital has requested a variance from the Department from the requirement of complying with this provision. The Petitioner St. Vincent's Medical Center is an accredited, licensed hospital located in Jacksonville, Florida. St. Vincent's Medical Center is currently involved in a project to renovate and add space to its existing facilities, including a thirty-two bed critical care unit. In order to comply with the provisions of paragraph 517-51(a) of the 1971 National Electric Code, St. Vincent's would be forced to expend from $75,000 to $80,000 which would not be necessary in order to comply with the provisions of other codes. St. Vincent's Medical Center has requested a variance from the requirements of that provision from the Department. Halifax Hospital Medical Center is an accredited, licensed hospital located in Daytona Beach, Florida. Halifax Hospital has been advised that it would be required to comply with the provisions of paragraph 517-51(a) of the 1971 National Electric Code in renovating and expanding its critical care unit. While the precise cost of complying with the provision cannot be determined, it is evident that Halifax Hospital would be required to expend more money to comply with the provision than would be required to comply with other provisions. The Petitioner Shands Teaching Hospital and Clinics, Inc., is an accredited, licensed hospital located in Gainesville, Florida. Shands Hospital is presently in the process of expanding and renovating its facility, including its critical care unit. Shands Hospital has been advised by the Department that it would need to comply with the provisions of paragraph 517-51(a) of the 1971 National Electric Code in connection with the critical care unit. The cost of complying with this provision would be approximately $140,000 over the cost of complying with other provisions. No evidence was presented with respect to the Petitioner Variety Children's Hospital. The Department's interpretation of its Rule 10D-28.79 as having adopted by reference the performance standard set out at paragraph 517-51(a) of the 1971 National Electric Code is in error. While the Department's rule references Appendix B to the 1973 Life Safety Code, it provides only that that Appendix adopts several other standards which must be met. While the Appendix references the 1971 National Electric Code, it adopts only the provisions of the 1971 National Electric Code and the other referenced publications to the extent that they are otherwise adopted in the 1973 Code or Appendix A thereto. Paragraph 517-51(a) of the 1971 Code is not referenced in Appendix A to the 1973 Life Safety Code, nor in any other pertinent place. The Department has, albeit erroneously, interpreted its rules as adopting paragraph 517-51(a) of the 1971 National Electric Code. This interpretation is being uniformly applied by the Department, and therefore itself constitutes a rule. The interpretation has not itself been adopted as a rule other than through the provisions of Rule 10D-28.79. The 1971 National Electric Code was not filed with the Office of the Secretary of State when Rule 10D-28.79 was filed, and is not generally available. It has been replaced by subsequent editions of the National Electric Code and is no longer generally available to members of the public at large. The effect of the Department's interpretation of its rules as adopting the standard set out in paragraph 517-51(a) is to require hospitals to install "isolated power sources" in critical care units. The standard by its terms applies to areas of a hospital where electrically susceptible patients are housed. Such patients are housed in operating rooms, rooms where highly flammable anesthetics are used, and in critical care units. Other standards adopted by the Department expressly require installation of isolated power sources in operating rooms and in rooms where flammable anesthetics are used. The fact that these are "wet" areas and areas where flammable materials are kept justifies those requirements. These conditions do not apply to critical care units. The electrically susceptible patients who are housed in critical care units are patients who have catheters inserted into their bodies, and extensions from the catheters protruding outside their bodies. The most common such patient is a patient with a pacemaker attached to his or her heart. With such patients an electrical device outside the body is connected through a catheter into a vein, and eventually to an area close to or actually at the heart. These patients are electrically susceptible because low levels of electrical current that might flow through the catheter could kill the patient. A power source of less than 100 millivolts if attached to the catheter in such a way that current could flow through the catheter could have the effect of fibrillating a patient's heart and killing him. This is much less power than would do any damage to a person under normal conditions, and considerably less voltage than would commonly result from short circuits or other malfunctions in equipment powered by conventionally grounded power sources. The amount of voltage that would be available given a fault or short circuit condition can be reduced through use of isolated power systems. Such a system includes a transformer which provides a demarcation between the incoming or primary power line, which is conventionally grounded, and the outgoing or secondary line. The secondary line is isolated from ground, neither wire being connected to ground. The secondary line runs into circuit breakers then to receptacles about the room. All of this equipment is installed in an electrical box. A monitor or gauge is installed on the face of the box. The monitor visually displays the extent of degradation of the secondary line, i.e. , whether the secondary line has become grounded. By observing the monitor, it is possible to avoid grounding a patient so that electrical currents cannot pass through the patient. The Department maintains that the 1971 Code standard can be met only through installation of isolated power sources. Under some fault circumstances this is correct, and, no other practical technology exists to meet the standard under any fault circumstances. Imposition of the standard set out at paragraph 517-51(a) of the 1971 National Electric Code is arbitrary and unreasonable. In the first place, no known technology can meet the standard. Even an isolated power system will meet the standard only in the case of line-to-ground faults. In cases where ground is lost, the isolated power system will not stay within the standard. The Department's action in requiring hospitals to install line isolation monitors thus meets the standard only under one fault circumstance, and it is not the one that most commonly occurs. Even as to those faults for which the line isolation monitor will accomplish the meeting of the 1971 standard, there is no valid reason for requiring their installation. The goal of protecting an electrically susceptible patient from electrocution can be easily and reliably accomplished by protecting the catheter from contact with electrical power sources. Basically, in order to create an electrical incident, or a shock, one part of a person's body has to touch some metal, another part has to touch some metal, and some current has to flow. This can be broken down into eight steps that would need to occur for a patient to be shocked: First, a power source or power line has to run close to the patient. Second, the line has to be exposed and touch metal. Third, the metal has to become live. Fourth, the metal must become ungrounded. Fifth, the patient has to touch the metal directly or through some conductive path. Sixth, a second conductive surface (more metal) has to be available. Seventh, the patient has to touch it. Eighth, the current has to be at a level that will cause harm. If any of these things does not happen, there will not be a shock. During the 1960's and early 1970's, the fact that very low levels of electrical current could cause fibrillation of the heart was not understood. This fact has been understood now for some time, and hospitals have looked to avoid placing patients in circumstances where the eight steps can occur. Looking at the problem in this manner allows hospitals to focus on what factors can easily be eliminated. Current practice is not to ground things which do not have to be grounded. It had previously been the practice to ground all of the metal around the patient, creating a "bathtub" effect. The line isolation monitor serves to eliminate the eighth of these steps by, in at least one fault circumstance, allowing only very low levels of current to flow. The other steps can be more easily eliminated. One means of accomplishing that is to isolate the power source to the catheter. Thus, battery powered equipment is now typically used, rather than equipment that attaches directly to the main power source. Furthermore, catheters protruding from a patient's body are now insulated, and critical care unit personnel are instructed not to touch them unless they are wearing rubber gloves. The taking of these steps eliminates the possibility for electrocution of an electrically susceptible patient through low voltage currents (microshock). There have been no documented deaths of patients through such microshock anywhere in the world since 1972. Even in that instance, which occurred in the United Kingdom, the accident did not happen in a critical care unit, but rather in an operating unit. The circumstances of the incident were that a hospital had been callously negligent in allowing its equipment to be modified so that inadequate switches were attached to an operating table and open current lines were exposed. Blood from a patient flowed to the open lines, and electrocution resulted. This incident bears no relevance to the instant rule. In the first place, it occurred in an operating room, where isolated power systems are properly required. In the second place, the hospital staff was incredibly negligent about its procedures and equipment. In addition to the fact that isolated power systems no longer accomplish any valid purpose in preventing microshock, there are disadvantages to their use. These disadvantages include: (1) Line isolation monitors limit the amount of power that is available at bedside in critical care units. There is a need for considerable available power at bedside, and line isolation monitors limit available power, and can contribute to power interruptions. (2) A component is added to the power distribution system so that an additional point of failure exists. (3) The isolation system is installed at the head of beds in a critical care unit, thus interfering with the possibility of putting other equipment in that place. (4) Isolated power systems with their transformers and monitors can produce an annoying hum. (5) Isolated power systems give off heat. (6) Line isolation monitors which go with isolated power systems can cause interference with other devices, such as electroencephalograms and electrocardiograms. (7) Several models of isolated power systems, including those required under the 1971 National Electric Code, require special electrical receptacles, thus limiting the use of various appliances in a critical care unit. (8) Personnel have to be trained as to the nuances of isolated power systems, and as to the meaning of readings on the monitor. (9) Isolated power systems can give personnel a false security and cause carelessness in preventing the factors which could cause and electrical current to flow through a catheter. Except for electrically susceptible patients as described herein, there is no reason to require installation of isolated power sources in critical care units. Petitioners have contended that other regulations of the Department which relate to the setting of fire protection standards in hospitals constitute invalid exercises of delegated legislative authority. No evidence was presented as to how these standards specifically affect any of the Petitioners. No evidence was presented to establish that any of the Petitioners are in any way injured or adversely affected by the rules.
