The Issue Whether Petitioner was legally justified in issuing a conditional license rating to Respondent.
Findings Of Fact AHCA is the state agency responsible for licensing and regulating nursing homes in Florida. Respondent Berkshire is a licensed nursing home located in North Miami, Florida. On April 2, 2002, AHCA conducted a survey of Berkshire and identified the violations which give rise to this proceeding. Specifically, at the time of the survey, several magnetic door locks--the record does not reveal precisely how many, although the parties agree that the number was no less than three and no more than seven out of a total of fifteen fire exit doors--did not immediately unlock upon activation of the fire alarm system. The purpose of the door locks is to prevent cognitively impaired residents from wandering away from the facility. When the magnetic lock system is working properly, the doors unlock immediately upon activation of the fire alarm. In response to the AHCA survey finding, Berkshire immediately summoned an alarm system repair person. On April 2, this individual was located somewhere in Florida's Panhandle. He left north Florida and proceeded immediately to Berkshire. The repairman determined that two wires and a circuit were reversed, most likely due to an error by Berkshire's on- site maintenance director. By the next day, April 3, the problem had been corrected and all door locks were deactivating simultaneously with the activation of the fire alarm system. Based upon the April 2 survey, AHCA issued a conditional license to Berkshire effective April 5, 2002, and imposed an administrative fine of $12,500. AHCA also placed the facility on a six-month survey cycle and assessed a survey fee of $6,000. These penalties, particularly the conditional license status, have a substantial adverse impact upon the reputation and the business interests of a nursing home. AHCA's decision to impose a conditional license status was predicated upon the opinion of its inspectors that the mechanical failure identified in the survey was, in fact, likely to cause serious injury, harm, impairment or death to a resident receiving care in the facility, and must therefore be deemed a Class I deficiency which warrants, as a matter of law, the penalties imposed. At the time of the survey, Berkshire had no history of fires, had passed its most recent annual inspection by the local fire marshal, and had a sprinkler system and fire extinguishers throughout the facility. The survey itself revealed no fire hazards. AHCA cites no statute, rule, or case which supports its view that the mechanical problem identified constitutes a Class I deficiency. Instead, it offers opinion testimony that as a result of this problem, residents were in danger on the date of the survey. That opinion testimony is based solely upon speculation. For example, AHCA's life safety inspector who participated in the survey said, ". . . we always look at, inspect the facilities under a worst case scenario type situation. In the event of a fire, we could have a situation we would have residents where the fire alarm system would activate and we would have residents attempting to exit the building. They would find that those doors, affected doors, would not be openable. They would not be able to exit the building. " In fact, the evidence established that the ability of residents to vacate the building in a safe and timely manner in the event of a fire, or fire drill, was not significantly impacted on April 2 by the mechanical problem identified. The automatic unlock feature which was not operating on less than half of Berkshire's fire exit doors is just one part of Berkshire's fire safety plan. State and federal law and Berkshire's own operating procedures provide that staff be given detailed training regarding what to do in the event of a fire; fire safety plans must be approved by the local fire marshal, and most include back up plans for system failures which can reasonably be anticipated. With reference to each of the door locks identified in the April 2 survey, the evidence established that each of these doors could be opened manually, and that there was an adequate number of able bodied staff members who could open each of the doors as may be necessary had a real fire or a fire drill occurred on April 2. Berkshire's fire safety procedures provide that when the fire alarm activates, an announcement is made over the public address system to inform all present of the fire's location. Depending upon the fire's location, staff members will respond in various appropriate ways. Within each department, various individuals are assigned to perform various functions, including, most importantly, assuring that each resident is safely escorted from the building and protected while outside. State law requires monthly tests of the fire alarm system, but Berkshire exceeds this standard with weekly tests. Fire drills are conducted for staff members who work on all three shifts, and staff are trained in evacuating residents in a manner appropriate to their individual circumstance. No matter where one is located in the building, there are multiple means of egress, and each exit door has multiple means by which it can be opened in a timely manner in the event of fire or other emergency. Monthly unannounced fire drills are conducted at Berkshire on all three shifts in an effort to ensure that staff can safely and quickly evacuate residents should the need arise. There is no evidence that staff could not have done so had a fire or fire drill occurred on April 2. Thus, AHCA's finding that the mechanical problem which existed on April 2 and which was remedied by April 3 posed a likelihood of serious injury, impairment, or death to residents in Berkshire's care is not supported by any competent evidence.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED that AHCA issue a final order dismissing the Administrative Complaints in these cases. DONE AND ENTERED this 26th day of March, 2003, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2003. COPIES FURNISHED: Nelson Rodney, Esquire Agency for Health Care Administration 8355 Northwest 53rd Street Miami, Florida 33166 R. Davis Thomas, Jr. Qualified Representative Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
The Issue Whether Respondent Indiana House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 4A-48.003, 61C- 1.004(9)(b), 61C-1.004(11), and 61C-3.001(5), Florida Administrative Code, and, if so, what penalty should be imposed. Whether Respondent Illinois House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 61C-1.004(5) and 4A-48.003, Florida Administrative Code, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the operation of hotel establishments pursuant to Section 210.165 and Chapter 509, Florida Statutes. Respondents, at all times material to these proceedings, have been licensed or otherwise subject to the Department's jurisdiction. The last known business address of Indiana House is 1114 Indiana Avenue, St. Cloud, Florida. The last known business address of Illinois House is 820 Illinois Avenue, St. Cloud, Florida. Both Indiana House and Illinois House are transient rooming houses. The tenants pay rent for the rooms they occupy. On January 26, 2001, an inspector for the Department inspected the Indiana House and noted numerous deficiencies, including a lack of a fire alarm system. The inspector returned to Indiana House on May 1, 2001, but was unable to get into the building. She made a call-back inspection on May 22, 2001, and found that certain violations had not been corrected, including the lack of a fire alarm system. On June 5, 2001, the inspector returned to Indiana House. No fire alarm panel had been installed, and the owner, Thomas Griffin, did not have keys to the property so the inspector did not have access to the building. On February 12 and 18, 2002, an inspector for the Department inspected the Indiana House and found the following deficiencies: (1) a gang plug was being used in a bedroom, (2) wires were dangling from a fan light, (3) the air conditioner faceplate was missing, exposing the filters and coils, and (4) no service tag was on the fire extinguisher. A gang plug is an adapter that is put into the electrical outlet on a wall so that more than one electrical plug can be used with that outlet. The gang plug found at Indiana House on the February 12 and 18, 2002, inspections would allow the use of six electrical plugs at one time. On January 26, 2001, an inspector from the Department inspected Illinois House and found that there was no fire alarm system. Another inspection was made on May 1, 2001, and it was noted that the outside door was locked. A call-back inspection was made on May 22, 2001, and no fire alarm had been installed. On June 5, 2001, a call-back inspection was made. The owner of the property stated that he did not have keys to the building; thus, the inspector could not access the premises. The owner advised at the time of the inspection on June 5, 2001, that no fire alarm system had been installed. On February 18, 2002, an inspector for the Department inspected Illinois House and found that none of the bedrooms had smoke detectors. On February 25, 2002, a call-back inspection was made, and a battery operated smoke detector in a bedroom did not work when tested. The Department considers a critical violation to be one that is an immediate health hazard. The failure to have a fire alarm system is a critical violation because the buildings are transient rooming houses and most of the people residing in the buildings at any given time will be strangers to one another. If a fire occurs, the consistent and reliable means of notifying the tenants would be through the use of a fire alarm system. The failure of the smoke detector to work is also a critical violation. If a fire occurs, an inoperable smoke detector will not warn the tenant, and, since no fire alarm has been installed, it is likely that the tenant may not have sufficient warning in time to escape from the fire. Both Illinois House and Indiana House have applied to the Homeless Service Network for a grant to make renovations to the buildings to bring them up to whatever code is necessary in order for the properties to be used as transient housing. When the money becomes available, it is anticipated that the renovations will be made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Indiana House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 4A-48.003, 61C- 1.004(9)(b), 61C-1.004(11), and 61C-3.001(5), Florida Administrative Code. Imposing a $2,500 fine on Indiana House and requiring the owner of Indiana House to attend a Hospitality Education Program. Finding that Illinois House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 4A-48.003 and 61C- 1.004(5), Florida Administrative Code. Imposing a $1,500 fine on Illinois House and requiring the owner of Illinois House to attend a Hospitality Education Program. DONE AND ENTERED this 27th day of September, 2002, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2002. COPIES FURNISHED: Thomas Griffin Indiana House 1221 12th Street St. Cloud, Florida 34769 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Petitioner sat for the Alarm System Contractor 1 licensure examination on July 12, 1991. The examination includes questions pertaining to both fire and burglar alarm systems and is considered to be the most difficult of the alarm system examinations. Petitioner received a score of 74 on the licensure examination, but the minimum passing score was 75. There were 100 questions on the examination, and each question was worth one point. Petitioner timely challenged several questions on the examination. At the formal hearing scheduled for this proceeding, Petitioner abandoned all challenges except his challenges to Question 64 and Question 75. Each challenged question is a multiple choice question with four possible answers. The candidates are instructed to select the best answer to the question from the four possible answers. Question 64 requires the candidate to identify the entity that is responsible for responding to "trouble on" a police-connected burglar alarm system. Because the phrase "trouble on" an alarm system is used in the industry to mean that the system is not functioning properly, the question requires the candidate to identify the entity responsible for repairing malfunctions on the alarm system. The parties agree that the installing company is the entity responsible for repairing malfunctions on a police-connected burglar alarm system. While agreeing that the installing company is responsible for repairing malfunctions on the system, Petitioner contends that the best answer to the question is the "police department". A signal generated by a police-connected burglar alarm system is received by a central station. Most systems employ two signals, one to signify an intrusion and the other to signify a malfunction. When a signal is received by the central station, an effort is made to contact the property owner prior to calling the police department. If the property owner cannot be located by telephone, the fact that a signal was received is usually relayed to the police department. Petitioner argues that the police department is the best answer because it is the first of the entities given as possible answers that is contacted after a signal, whether the signal is caused by a malfunction or by an intrusion, is received by the central station. Petitioner's contention that "police department" is the best response to the question is rejected. While a malfunction may be discovered as a result of one or more false signals that are relayed to the police department by the central station, the police department bears no responsibility for correcting malfunctions that occur on the system. The greater weight of the evidence establishes that the best answer to the question is the "installing company". Petitioner failed to give the best answer to Question 64. Consequently, it is concluded that Petitioner was properly awarded no credit for his answer to Question 64. Petitioner's assertion that Question 64 is vague or ambiguous because the stem of the question does not state the type of "trouble" that was on the system is rejected. The phrase "trouble on" an alarm system has a definite meaning in the alarm system industry. The use of this phrase within the context of an examination question is not impermissibly vague or ambiguous. Question 75 asks the candidate which of the following three devices performs essentially the same function in an alarm system: "exit/entry delay relays", "delay loops", and "shunt locks". The four possible answers consist of possible combinations of the three types of devices. Respondent asserts that the best answer to the question is that all three devices perform essentially the same function, to-wit, allowing entry and exit from premises without setting off the alarm. Petitioner asserts that the best answer is the one which offers the combination of "exit/entry delay relays" and "delay loops" since those two devices have a delay feature, which automatically rearms the system after a delay. Shunt locks typically do not have a delay feature (a delay feature can be incorporated into a shunt lock device if the owner desires) and are not widely used in new installations because of advances in technology. A shunt lock is usually rearmed manually, but so are some delay relay devices. All three devices can be disarmed to allow entry and exit and thereafter rearmed. While the rearming is automatic with some of the devices, the greater weight of the evidence established that all three devices performed "essentially the same function" and that, consequently, the answer to the question selected by Respondent is the best answer. Petitioner failed to give the best answer to Question 75. Consequently, it is concluded that Petitioner was properly awarded no credit for his answer to Question 75.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which denies Petitioner's challenges to Questions 64 and 75 of the Alarm System Contractor 1 licensure examination administered July 12, 1991. DONE AND ORDERED this 3rd day of November, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 3rd day of November, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-0212 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1, 2, and 4 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in part by the Recommended Order. The proposed findings of fact in paragraph 3 are rejected in part as being unnecessary to the conclusions reached for the reasons discussed in the findings of fact portion of the Recommended Order. The proposed findings of fact in paragraphs 5 and 6 are adopted in part and are rejected since the greater weight of the evidence, including the expert testimony of Respondent's witness, established that the primary function of all three devices is to disarm the system to permit entry and exit from the premises. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made. The proposed findings of fact submitted on behalf of the Respondent are adopted in material part by the Recommended Order. COPIES FURNISHED: Daniel O'Brien, Executive Director Department of Professional Regulation/Electrical Contractors' Licensing Board 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Vytas J. Urba, Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Daniel Guerrieri, Esquire 950 South Miami Avenue Miami, Florida 33130
The Issue The issues are whether Respondents have violated various statutes and rules governing persons licensed to install and service fire extinguishers and fire suppression systems and, if so, what penalties Petitioner should impose.
Findings Of Fact General Respondents hold Class A and C licenses as fire extinguisher dealers, Class D licenses as pre-engineered systems dealers, Class 01 licenses as fire extinguisher permittees, and Class 04 licenses as pre-engineered systems permittees. Respondent Todd Jacobs (Jacobs) is the qualifier for Respondent National Fire and Safety Corporation (NFS). NFS has been in the fire-safety business for about 15 years. Jacobs received his first permit about ten years ago. Neither Respondent has been disciplined prior to the suspension of all of their licenses and permits effective May 15, 1997, for the incidents described below. The suspension has remained continuously in effect through the present. Pre-engineered systems are custom installations of fire-suppression systems. These pressurized systems, which are activated by heat-sensitive fusible links and small cylinders known as cartridges, feature large metal cylinders that supply the powder through pipes to specific hazard areas. Pre-engineered systems must be installed in accordance with pretested limitations and configurations. Petitioner has cited various violations of the standards of the National Fire Protection Association. As noted in the conclusions of law, violation of these standards, which are incorporated into the rules, provide the basis for discipline. The relevant standards of the National Fire Protection Association are divided into two sections: one governs persons dealing with fire extinguishers and the other governs persons dealing with pre-engineered systems. National Fire Protection Association 10 is titled, “Standard for Portable Fire Extinguishers.” National Fire Protection Association 10, Standard 1-3 defines a “portable fire extinguisher” as a “portable device carried on wheels and operated by hand containing an extinguishing agent that can be expelled under pressure for the purpose of suppressing or extinguishing a fire.” National Fire Protection Association 10 applies to fire extinguishers, not pre-engineered systems. National Fire Protection Association 10, Chapter 4 governs the inspection, maintenance, and recharging of fire extinguishers. National Fire Protection Association 10, Standard 4-1.4 provides that “[m]aintenance, servicing, and recharging” of fire extinguishers shall be performed by trained persons “having available the appropriate servicing manual(s), the proper types of tools, recharge materials, lubricants, and manufacturer’s recommended replacement parts or parts specifically listed for use in the fire extinguisher.” National Fire Protection Association 10, Standard 4-5.1.2 requires that persons recharging a fire extinguisher shall follow the “recommendations of the manufacturer.” National Fire Protection Association 10, Standard 4-5.3.1 requires that persons recharging fire extinguishers use “[o]nly those agents specified on the nameplate or agents proven to have equal chemical composition, physical characteristics, and fire extinguishing capabilities ” National Fire Protection Association 10, Standard 4-5.3.2 prohibits persons recharging fire extinguishers from mixing “[m]ultipurpose dry chemicals” with “alkaline-based dry chemicals.” National Fire Protection Association 10, Chapter 5 governs the hydrostatic testing of fire extinguishers. Table 5-2 provides that the longest hydrostatic test interval for fire extinguishers is 12 years. National Fire Protection Association 10, Standard 5-1.2 provides that the hydrostatic testing of fire extinguishers shall be performed by trained persons “having available suitable testing equipment, facilities, and appropriate servicing manual(s).” National Fire Protection Association 10, Standard 5-5.1.1 requires that persons hydrostatically testing fire extinguishers first conduct an internal examination of the cylinder. National Fire Protection Association 10, Standard 5-5.1.2 requires that persons hydrostatically testing fire extinguishers do so in accordance with the “procedures specified in the pamphlet Methods for Hydrostatic Testing of Compressed Gas Cylinders (CGA C-1), published by the Compressed Gas Association.” National Fire Protection Association 10, Standard 5-5.2 provides that the testing procedures for low-pressure cylinders, shells, and hose assemblies are detailed in Appendix A. Appendix A contains detailed material, but, according to a prefatory statement, “[t]his Appendix is not part of the requirements of this National Fire Protection Association document but is included for informational purposes only.” National Fire Protection Association 17 is titled, “Standard for Dry Chemical Extinguishing Systems.” National Fire Protection Association 17, Standard 1-4 defines “pre- engineered systems,” in part, as [t]hose having predetermined flow rates, nozzle pressures, and quantities of dry chemical [with] specific pipe size, maximum and minimum pipe lengths, flexible hose specifications, number of fittings and number and types of nozzles prescribed by a testing laboratory.” National Fire Protection Association 17 applies to pre- engineered systems, not fire extinguishers. National Fire Protection Association 17, Standard 1-4 defines “inspection” as a “’quick’ check to give reasonable assurance that the extinguishing system is fully charged and operable.” The definition adds that this is done by “seeing that the system is in place, that it has not been activated or tampered with, and that there is no obvious physical damage or condition to prevent operation.” National Fire Protection Association 17, Standard 3-8.3.1 requires that the dry chemical container and expellant gas assemblies of a pre-engineered system shall be located “so as not to be subjected to severe weather conditions or to mechanical, chemical, or other damage.” National Fire Protection Association 17, Standard 3-9.1 provides that, for pre-engineered systems, the “pipings and fittings shall be installed in accordance with good commercial practices.” National Fire Protection Association 17, Chapter 9 governs the inspection, maintenance, and recharging of pre- engineered systems. National Fire Protection Association 17, Standard 9-1.1 provides that, when dry chemical pressure containers are not attached to piping or hand hose lines, the discharge outlet shall have a protective diffusing safety cap to protect persons from recoil and high-flow discharge in case of accidental activation. The caps shall also be used on empty National Fire Protection Association 17, Standard 9- 1.4 provides that “[a]ll dry chemical extinguishing systems shall be inspected in accordance with the owner’s manual and maintained and recharged in accordance with the manufacturer’s listed installation and maintenance manual and service bulletins.” National Fire Protection Association 17, Standard 9-3.2 provides that “[f]ixed temperature-sensing elements of the fusible metal allow type shall be replaced at least annually from the date of installation. They shall be destroyed when removed.” National Fire Protection Association 17, Standard 9-3.2.1 provides that the “year of manufacture and date of installation of the fixed temperature-sensing element shall be marked on the system inspection tag[,]” and the “tag shall be signed or initialed by the installer.” National Fire Protection Association 17, Standard 9-4.2 provides that “[s]ystems shall be recharged in accordance with the manufacturer’s listed installation and maintenance manual.” National Fire Protection Association 17, Standard 9-5 requires that trained persons hydrostatically testing pre- engineered systems have “available suitable testing equipment, facilities, and an appropriate service manual(s).” This standard requires hydrostatic testing at 12-year intervals for the dry chemical container, auxiliary pressure containers (unless less than two inches in outside diameter and two feet in length or unless they bear the DOT stamp, “3E”), and hose assemblies. National Fire Protection Association 17, Standard 9-5.1 requires that persons hydrostatically testing pre- engineered systems subject the tested components of hydrostatic test pressure equal to the marked factory test pressure or the test pressure specified in the manufacturer’s listed installation and maintenance manual. This test prohibits any leakage, rupture, or movement of hose couplings and requires test procedures in accordance with the manufacturer’s detailed written hydrostatic test instructions.” National Fire Protection Association 17, Standard 9-5.2 requires that persons hydrostatically testing pre- engineered systems remove and discard the dry chemical agent from the containers prior to the test. Page Field (Counts I and II) In March 1997, Rick Clontz, a Lee County employee, asked Roland Taylor, an NFS employee, to service components of the fire-safety system at the Lee County Hazardous Materials Facility at Page Field in Fort Myers. This fire-safety system protects an area at which Lee County stores corrosive, flammable, and poisonous materials. Initially, Mr. Taylor removed three ten-pound ABC fire extinguishers. These are small portable cylinders, whose “ABC” designation refers to their ability to suppress a broad range of fires. According to the National Fire Protection Association standards, Class A fires involve “ordinary combustible materials, such as wood, cloth, paper, rubber, and many plastics.” Class B fires involve “flammable liquids, oils greases, tars, oil-based paints, lacquers, and flammable gases.” Class C fires involve “energized electrical equipment . . . .” On April 1, 1997, Mr. Taylor returned the three 10- pound ABC fire extinguishers. Later inspection revealed that Mr. Taylor had properly removed and discarded the ABC powder from each cylinder, but he had refilled only one of the three cylinders entirely with ABC powder. He erroneously filled the other two cylinders with mixtures of 75 percent and 50 percent BC powder. The improper filling of two of the fire extinguishers at the Page Field Hazardous Materials Facility threatened the public health, safety, and welfare. Meeting Mr. Taylor at the Page Field facility when Mr. Taylor returned the three small cylinders, Mr. Clontz asked him to remove the 50-pound Ansul SPA 50 cylinder and hydrostatically test it. Mr. Taylor noted that the cylinder was not yet due for this test, but quoted a price to which Mr. Clontz agreed, and Mr. Taylor disconnected the cylinder from the pre-engineered system and transported it from the site. Hydrostatic testing is a hydraulic interior pressurization test that measures ductility, which is the ability of cylinder walls to expand and contract. The purpose of hydrostatic testing is to determine the suitability of a cylinder for continued service. Hydrostatic testing requires the tester to release the pressure and empty the contents of a cylinder. Using specialized equipment, the tester then fills the cylinder with water, pressurizing it to twice the service pressure or, for the systems cylinders involved in this case, 1000 pounds per square inch. Cylinder failure from the loss of structural integrity can result in a dangerous rupture, possibly causing an improperly bracketed cylinder to launch like an unguided missile. A cylinder that passes its hydrostatic test does not have to be retested for 12 years. Three days later, Mr. Taylor returned the Ansul cylinder with a tag stamped to show the date on which NFS had hydrostatically tested the cylinder. Mr. Taylor reconnected it to the pre-engineered system, changing the three fusible links. However, Mr. Taylor did not tighten the actuation piping wrench-tight, as required by the manufacturer’s specification. Instead, Mr. Taylor left the actuation piping sufficiently loose that it might cause a failure of the pre- engineered system to activate. As Respondents conceded, the loose actuation piping threatened the public health, safety, and welfare. Finished with his work, Mr. Taylor gave Mr. Clontz a receipt, but no diagram or report, as Mr. Clontz usually received after such service. Consistent with the work requested by Lee County, the receipt stated that NFS had hydrostatically tested and recharged the three ten-pound and one 50-pound cylinders. However, NFS had not hydrostatically tested the 50- pound Ansul SPA 50 cylinder. NFS had not even changed the powder in the cylinder. Jacobs was personally aware of these facts and personally authorized the deceitful stamping of the tag to show a hydrostatic testing. The fraudulent misrepresentation concerning the hydrostatic testing of the Ansul SPA 50 cylinder threatened the public health, safety, and welfare. Additionally, NFS had replaced the three fusible links with three other fusible links. Petitioner failed to prove that there are material differences between the two types of links so as to justify discipline. There are two differences between the links. First, NFS used Globe links rather than Ansul links. However, Ansul links are manufactured by Globe. The Ansul expert testified that Ansul subjects the links to an additional inspection. However, the record does not reveal whether Globe does not also subject its brand-name links to another inspection that it does not perform for the links that it manufactures for Ansul. The Ansul expert did not testify as to the defect rate resulting from the Ansul inspection or any difference between the performance of the “two” links. On this record, then, there is no demonstrated difference in the two brand-named fusible links. The second difference is that NFS installed an ML link rather than the newer K link currently in use. Ansul approved the ML link in the Ansul SPA 50 pre-engineered system until five years ago. At that time, Ansul authorized use of the older ML link until dealer inventories were depleted. Even assuming that the K link represents a safety advance, compared to the ML link, Ansul’s gradual introduction of the new link precludes a finding that the difference was material, unless one were to assume that Ansul disregarded public safety when authorizing the gradual introduction of the new link. Respondents conceded that they did not have a copy of the Ansul SPA 50 manual when they serviced the Ansul SPA 50 system. They have since obtained the manual. Petitioner failed to show that the failure to have the manual threatened the public health, safety, or welfare. Respondents conceded that they did not produce the inspection form for the system. They had provided such a form previously. Petitioner failed to show that the failure to produce an inspection form threatened the public health, safety, or welfare. At the hearing, Petitioner agreed not to pursue the claim against Respondents regarding the LT10R cartridge. Petitioner effectively conceded that Respondents were not required to hydrostatically test the cartridge because it is exempt from such testing. Petitioner evidently elected not to pursue the recharging issue for other reasons. Mobile Service Units (Counts III-V The service truck operated by Mark Thackeray did not have a conductivity tester, certified scales, or proper manuals. The conductivity tester ensures that the braiding is intact on carbon dioxide hoses. The certified scales ensures that the cylinder is filled with the proper amount of dry chemical. The manuals ensure that the person servicing a pre- engineered system understands all of its components and how it works. Additionally, one cylinder in the truck had a drill bit instead of a safety pin installed in the head of the bottle. Petitioner also proved that the fire extinguisher and pre-engineered system tags bore the Naples and Fort Myers addresses for NFS. As noted below, the Fort Myers location was inactive, used only for storage and drop-offs and not for shop work or retail sales activity. For several years, Petitioner’s representatives knew that the tags bore both addresses and knew that the Fort Myers location was inactive, but never objected to Respondents’ practice. The only violation involving Mr. Thackeray’s truck that threatened the public health, safety, or welfare was the failure to have certified scales. The service truck operated by Ward Read lacked an operational inspection light, six-inch vise, and proper manuals. Additionally, Mr. Read’s truck had tags with the Fort Myers and Naples addresses for NFS. However, none of these violations involving Mr. Read’s truck threatened the public health, safety, or welfare. Petitioner failed to prove that Mr. Read’s truck lacked leak testing equipment. The truck had a bottle of Leak Tech with which to detect leaks in fire extinguishers. The truck also had a cable-crimping tool. The truck lacked a Kidde tool, but Petitioner failed to prove that Mr. Read installed Kidde systems off this truck or that the crimping tool present on the truck could not service adequately Kidde installations. The service truck operated by Donald Zelmanski lacked an inspection light, a six-inch vise, certified scales, leak-testing equipment, and proper manuals. Mr. Zelmanski’s truck contained tags with the Fort Myers and Naples addresses. The only violation that threatened the public health, safety, or welfare was the failure to have certified scales. Naples and Fort Myers Facilities (Counts VI-VII) The NFS Naples facility lacked operational hydrostatic test equipment on April 9, 1997. Respondents claim that they were having the equipment upgraded and calibrated at the time of the inspection. Ordinarily, this defense might be creditable, but not in this case. While the hydrostatic test equipment was out of service, NFS accepted the Page Field cylinder for hydrostatic testing and returned it to service, fraudulently representing that the cylinder had been hydrotested. This is precisely the practice against which the requirement of operational testing equipment is designed to protect. The Naples facility also lacked certified gauges for low-pressure testing. Respondents claim that the equipment upgrade described in the preceding paragraph would allow them to test high- and low-pressure cylinders on the same machine. However, due to Respondents’ fraudulent handling of the Page Field cylinder during the equipment downtime, this defense is unavailing. The Naples facility lacked an adapter to allow Respondents to recharge an Ansul SPA 50 cylinder. Jacobs drove the Page Field cylinder to St. Petersburg to have the cylinder recharged by a competitor that had such an adapter. However, the requirement that a facility have an adapter reduces the risk that a licensee will ignore its professional responsibilities and simply return a cylinder to service without first discharging it and performing a visual internal inspection. Respondents’ failure to discharge their other professional responsibilities underscores the materiality of the requirement that they keep an adapter for the Ansul SPA 50 that they elected to accept for service. Respondents kept tags at the Naples facility with tags containing addresses of the Naples and Fort Myers facilities. At the time of the inspection, Respondents also lacked documentation for two of eight scales, including a scale in 1/4-pound increments. Jacobs’ claim that they sent the two uncertified scales for servicing immediately after the inspection does not obviate the fact that, at the time of the inspection, they were available for use and in disrepair. Respondents failed to include serial numbers of serviced fire extinguishers on the relevant invoices. Respondents also failed to include the necessary permit number on inspection forms. Respondent falsely represented that they had hydrotested the Page Field Ansul SPA 50 cylinder at the Naples facility when they had not done so. Respondents stored cylinder bottles without safety caps in place. Petitioner failed to prove that Respondents did not post DOT certification near the hydrostatic testing equipment or that they stocked nitrogen cylinders without an acceptable blow-out disk in place. The blow-out disks were not Ansul brand, but Petitioner failed to prove that the disks were not UL listed or the substantial equivalent of Ansul disks. Respondents concede that the Fort Myers location lacked the items alleged by Petitioner. However, the Fort Myers location is inactive and serves merely as a drop-off or storage facility. All shop work and retail sales activities occur at the Naples location. At the time of the April 1997 inspection, Respondents surrendered the license for the inactive Fort Myers location. Other Jobs (Counts VIII-XI) Respondents installed a pre-engineered system at the SunTrust Bank in Naples. The cylinder is in the bank vault, which it is designed to protect. Petitioner charged that Respondents improperly located the cylinder in the hazard area, but Petitioner did not discuss the fact that the cylinder at Page Field was in the hazard area. Obviously, the corrosive effect of the hazardous materials at Page Field represents a greater risk to the cylinder than the corrosive effect of money and other valuables in the vault at the SunTrust. Additionally, some language in the Ansul manual cautions not to locate the cylinder in the hazard area, but only if the hazard is corrosive. Respondents replaced the fusible links at SunTrust annually. However, they failed to record the year of manufacture of the fusible links on the system tag when last servicing the system in October 1996. There is no evidence as to whether Respondents had suitable Ansul manuals and adapters when it serviced the system at that time. Respondents installed a pre-engineered system at the VFW Post in Naples. In doing so, their employee, who also misfilled the three fire extinguishers at Page Field, left the end-pipe-to-nozzle loose, so as to risk a loss of pressure in case of fire. This condition threatened the public health, safety, and welfare. Although Respondents fired this employee shortly after discovering his poor performance, this action does not eliminate the safety violations for which he, and they, are responsible. Petitioner also proved that Respondents located the 260 nozzle over the griddle in the wrong location. This condition threatened the public health, safety, and welfare because the system might not extinguish a fire on the griddle. Petitioner failed to prove that Respondents located the 230 nozzle in the wrong location. The Ansul manual allows this nozzle to be located anywhere along or within the perimeter of the fryer, if aimed to the center of the fryer. The 230 nozzle was so located and aimed. Respondents installed two pre-engineered systems at Mozzarella’s Café in Naples. In the course of this job, Respondents committed several violations governing documentation. Respondents improperly combined two pre- engineered systems on one inspection report, failed to include in the inspection report references to the manufacturer’s drawings and page numbers, failed to list in the inspection report a second gas valve on the front hood of one system, and failed to include in the inspection report Respondents’ permit number. However, Petitioner failed to prove that Respondents failed to list in the inspection report the type of fusible links in each hood. Respondents serviced a pre-engineered system at Kwan’s Express in Fort Myers in December 1996. Respondents failed to list in the inspection report the degree and types of fusible links installed and a reference to the drawing and page number in the manufacturer’s manual. However, Respondents listed in the inspection report the model number of the system. Red Lobster (Count XII) Several months after Petitioner had suspended Respondents’ licenses and permits, counsel for both parties negotiated a settlement agreement. Under the agreement, Petitioner would immediately lift the suspension. Jacobs and his general manager, Judson Schroyer, learned that Respondents’ counsel had received an unsigned, final draft settlement agreement on Monday, August 18, 1997. The settlement conditions were acceptable to Respondents, and Jacobs knew that Respondents’ counsel had signed the agreement and faxed it back to Petitioner’s counsel for execution by Petitioner’s representative. On August 18, the general manager of the Red Lobster in Naples called NFS and spoke with Jacobs. The general manager described a job involving the installation of a new oven, which would necessitate the relocation of other kitchen equipment a few feet. Thinking that the settlement agreement would be fully executed by then, Jacobs agreed to visit the general manager at the site the following morning. The next morning, Jacobs and Mr. Schroyer met the general manager at the Red Lobster. Giving the general manager NFS business cards with their names, Jacobs and Mr. Schroyer briefly examined the pre-engineered system in the kitchen, as the three men walked through the kitchen, and assured the general manager that there would be no problem doing the work in the short timeframe that the customer required. The purpose of the visit was much more for marketing than it was for preparation for the relatively simple job that the general manager envisioned. Shortly after leaving the Red Lobster, Mr. Schroyer realized that Respondents might not have their licenses and permits reinstated in time to do the job. He conveyed this concern to his supervisor, Jacobs, who spoke with Respondents’ counsel on the evening of August 19 and learned that they could not do the job. Jacobs instructed Mr. Schroyer to call another company in Fort Myers, FireMaster, to which Respondents had referred work during their suspension. Mr. Schroyer called a representative of FireMaster, and he agreed to perform the work. FireMaster assigned the job to Ward Read, who, as is authorized by Petitioner, held a dual permit, which means that he was permitted to work for two licensed dealers. One was NFS, and the other was FireMaster. Mr. Read reported to the Red Lobster in the predawn hours of August 21, as requested by the general manager of Red Lobster. Because his FireMaster truck had insufficient supplies, Mr. Read used an NFS truck, the equipment tags, inspection report, and invoice all bore the name of FireMaster.
Recommendation It is RECOMMENDED that the State Fire Marshal enter a final order suspending the licenses and permits of both Respondents for two years, commencing from the effective date of the earlier emergency order of suspension. DONE AND ENTERED this 12th day of December, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1997. COPIES FURNISHED: Attorney Mechele R. McBride Attorney Richard Grumberg Department of Insurance and Treasurer 200 East Gaines Street Tallahassee, Florida 32399-0333 Mark H. Muller Quarles & Brady, P.A. 4501 North Tamiami Trail Naples, Florida 34103 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether the Respondent should receive a passing grade on the Alarm Systems I Contractor Examination administered January 30, 1998.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Electrical Contractors' Licensing Board, is the state agency responsible for licensing and regulating electrical contractors, including alarm systems contractors, in the State of Florida. Sections 489.511, .515, and .533, Florida Statutes (1997). Mr. Perez sat for the Alarm Systems I Contractor Examination on January 30, 1998. He disputes the Department's determination that the answers he gave to questions 21, 58, and 59 are incorrect. These three questions are objective, multiple- choice questions, and the examination candidate is to choose the correct answer from among four possible answers. According to the Department, the correct answer to question 21 is "A"; Mr. Perez chose answer "C." Question 21 is clear and unambiguous, and the correct answer was included among the choices provided. The correct answer is found in the Specifications for Plans which, together with a set of blueprints, was provided to the examination candidates with the examination booklet. On the back of the Specifications for Plans, the examination candidates were told that the document was to be used with the examination for licensure. Several of the questions on the examination were based on information contained in the specifications and blueprints. Although the examination candidates had not seen the specifications and blueprints prior to the examination, the requirement that the candidates use these documents in answering questions on the examination is not unfair. The Department could have had the legitimate purpose of testing the candidates' ability to read blueprints and specifications. Mr. Perez should not receive credit for his answer to question 21 because, according to the information contained in the specifications, the answer he gave is not the correct answer. According to the Department, the correct answer to question 58 is "C"; Mr. Perez chose answer "A." Question 58 is clear and unambiguous, and the correct answer was included among the choices provided. The correct answer can be derived from information found in the reference material Mr. Perez was permitted to use while he was taking the examination. Although the correct answer could not be found in the reference material word-for-word, it was not unfair for the Department to expect the examination candidates to use the information provided to calculate the correct answer to the question. Mr. Perez should not receive credit for his answer to question 58 because the answer he gave is not the correct answer. According to the Department, the correct answer to question 59 is "D"; Mr. Perez chose answer "A." Question 59 is clear and unambiguous, and the correct answer was included among the choices provided. The correct answer can be derived from both text and a schematic found in the reference material Mr. Perez was permitted to use while he was taking the examination. Although the correct answer could not be found in the reference material word-for-word, it was not unfair for the Department to expect the examination candidates to derive the correct answer from the information available in the materials. Mr. Perez should not receive credit for his answer to question 59 because the answer he gave is not the correct answer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Electrical Contractors' Licensing Board, enter a final order dismissing Juan Carlos Perez's petition challenging the subject examination questions. DONE AND ENTERED this 27th day of April, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1999. COPIES FURNISHED: Illa Jones, Executive Director Electrical Contractors' Licensing Board Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-1007 R. Beth Atchinson, Esquire Department of Business and Professional Rgulations 1940 North Monroe Street Tallahassee, Florida 32300-1007 William Woodyard, General Counsel Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-1007 Juan Carlos Perez 7451 Southwest 161st Place Miami, Florida 33193
