Findings Of Fact On April 17, 1987, petitioner, Gary L. Waldron, filed an application for a certificate of competency with respondent, Department of Insurance and Treasurer (Department). If granted, Waldron would be authorized to take an examination for a certificate of competency as a fire protection system contractor II. After reviewing the application the Department issued a letter on May 5, 1987 advising Waldron that his application had been denied on the ground he lacked the necessary "four years proven experience in the employment of a contractor, or educational equivalent thereto, or a combination thereof." The letter of denial prompted this proceeding. The Department has regulatory jurisdiction over contractors who install fire protection systems. Before engaging in such activities, a person must obtain a certificate of competency from the Department. For regulatory purposes, and depending on the nature of the work, there are four classes of contractors, those being Contractors I, II, III and IV. In this case, Waldron desires certification as a Contractor II. This would authorize him to "lay out, fabricate, install, inspect, alter, repair and service" certain types of fire protection systems, except those that are preengineered. To be eligible for licensure, Waldron must possess "four years proven experience in the employment of a contractor or educational equivalent thereto or a combination thereof." By rule, the agency has provided that such experience may be gained only with a contractor certified as a Contractor I, II, III or IV. This is consistent with its interpretation of the statute as explicated by the chief of the bureau of explosives and fire equipment. Waldron owns a contracting firm, Waldron's, Incorporated, in Fort Lauderdale, and is licensed as a mechanical contractor. Over the last ten years or so, he has installed a number of non-preengineered fire protection systems for various major oil companies at Port Everglades (in Broward County). The Port is one of the largest petroleum storage areas in the Southeast. It is undisputed that the systems installed by Waldron are the types that would ordinarily be installed by a Contractor II. Such systems met the fire safety standards at Port Everglades, which equalled or exceeded relevant state standards adopted by the Department. This was confirmed by the chief of fire and security at Port Everglades and corroborated by petitioner's composite exhibit 1, which documents a variety of jobs completed by Waldron in recent years. In early 1987 Waldron learned that a certificate of competency was required to do the work he had previously been performing. This resulted in Waldron filing his application. Although the application and other evidence of record establish that Waldron has had many years of experience in installing the type of system typically installed by a Contractor II, none was obtained "in the employment of a (licensed) contractor." Further, he does not possess the alternative educational equivalent prescribed by Department rules. Therefore, he is not eligible at this time to take examination for licensure as a Contractor II.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's application to take the examination for licensure as a Contractor II be DENIED. DONE AND ORDERED this 13th day of October, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1987.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated October 22, 2001, and, if so, the penalty that should be imposed.
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 Office of the State Fire Marshall is the governmental entity responsible for regulating fire safety in Florida, including the installation, maintenance, and inspection of fire protection systems. Section 633.01, Florida Statutes (2000). Mr. Cabrera is currently licensed by the State Fire Marshall as a Class C and D fire equipment dealer (Class 0703 and 0704) and as a fire extinguisher and preengineered systems permittee (Class 0903 and 0904).2 At the times material to this proceeding, Mr. Cabrera was issued preengineered systems permit number 435249000198. At the times material to this proceeding, Mr. Cabrera was the qualifier for A Fire Prevention Company, was authorized to act for the business organization in all matters connected with the business, and was required to supervise all activities undertaken by A Fire Prevention Company. A Fire Prevention Company has been in business since 1998. Prior to this time, a company referred to as "South Florida Fire" employed Mr. Cabrera. Mr. Cabrera currently holds, and, at the times material to this proceeding, held jointly with A Fire Prevention Company, a certificate qualifying A Fire Prevention Company to engage in business as a fire equipment dealer. At the times material to this proceeding, A Fire Prevention Company and Mr. Cabrera engaged in the business of servicing, repairing, recharging, testing, inspecting, and installing fire extinguishers and preengineered fire suppression systems. At the times material to this proceeding, Banner Beef and Seafood operated an industrial food processing facility in Miami, Florida. In the facility, meat and seafood moved through an industrial deep fat fryer on a conveyor belt and were then frozen, packaged, and sold for resale. An oil-heating unit, located in an alcove off the room containing the deep fryer, was attached to but separate from the deep fryer, and hot oil moved from the oil-heating unit through a filter into the deep fryer. The oil-heating unit held 200 gallons of oil, which was heated to 460 degrees Fahrenheit before flowing into the deep fryer. The oil-heating unit was made of stainless steel, with a stainless steel lid. The oil-heating unit was protected by a Kidde Sentinel HDR 25DC, DOT E-7042-360-K, Serial #33996, ("Kidde HDR 25DC") preengineered dry chemical fire protection system. On June 19, 2000, approximately three months after Mr. Cabrera performed a semi-annual inspection and maintenance of the Kidde HDR 25DC system, a fire originating in the oil- heating unit destroyed much of the Banner Beef facility. The Kidde HDR 25DC system was probably installed at Banner Beef in or around 1981. Mr. Cabrera was not involved in the installation of the system, but he began inspecting and maintaining the system approximately ten years before the fire. He occasionally performed the semi-annual inspection and maintenance of the Banner Beef system when he was employed by South Florida Fire, and he performed all of the semi-annual inspections and maintenance subsequent to March or July 1998, after he left South Florida Fire and established A Fire Prevention Company. Mr. Cabrera completed an inspection report and an invoice each time he inspected the Kidde HDR 25DC system. Mr. Cabrera was, however, able to produce to the State Fire Marshall only an invoice for a semi-annual inspection on October 5, 1998; an invoice and "Range Hood Inspection Report" for a semi-annual inspection on April 12, 1999; an invoice and "Range Hood Inspection Report" for a semi-annual inspection on September 27, 1999; and an invoice for a "semi-annual inspection and maintenance" on March 15, 2000. The Kidde HDR 25DC is a preengineered system, which means that components manufactured by Kidde were put together into a system designed to protect against a particular hazard. Kidde publishes a manual, bulletins, and memoranda that specify how the Kidde HDR 25DC system is to be installed, serviced, repaired, maintained, tested, and inspected. The Kidde HDR 25DC system was submitted to the Underwriters Laboratory ("UL") for testing. The system was found to be effective and to operate as specified, and the system and the manual for the system received UL approval. Once the system and manual received UL approval, the components of the system could not be changed except in accordance with the UL listing and the approved manufacturer's specifications. The Kidde HDR 25DC system uses a dry chemical as a fire suppressant. The NFPA Standard 17 contains requirements for the installation, maintenance, operation, and care of dry chemical fire suppression systems. The Kidde HDR 25DC system is approved by the UL to protect commercial cooking installations, specifically hoods, ducts, and cooking appliances. Cooking appliances are classified into two categories in the manufacturer's specifications, surface appliances and broilers; deep fryers are considered surface appliances. Commercial cooking installations are used in food preparation areas of restaurants. The oil-heating unit and deep fryer used by Banner Beef are considered industrial appliances because they were designed to process a high volume of food to be sold for resale rather than to be consumed on the premises. The Kidde HDR 25DC system was composed of several components, including a cylinder containing dry chemical fire suppressant under 360 pounds of pressure; a valve assembly attached to the cylinder; a manual release mechanism; an elbow mounting bracket that connected the cylinder to discharge piping; a nozzle attached to the discharge piping through which the dry chemical fire suppressant would be discharged on the hazard protected by the system; a fusible link designed to melt at a specified temperature; a control head, with a control head cover, that was attached to the cylinder valve assembly; cables running from the fusible link to the control head; electrical metal tubing protecting the cables; and corner pulleys that allowed the cables to change direction at a 90-degree angle. The Kidde HDR 25DC system was designed so that, when the fusible link melted, the cables would release, causing the system to actuate and discharge the dry chemical fire suppressant. Banner Beef's 200-gallon oil-heating unit protected by the Kidde HDR 25DC system was located in an alcove opening off of a larger room that housed the deep fryer. The cylinder containing the dry chemical fire suppressant was mounted on the outside wall of oil-heating unit, at the far end of the alcove, only a few inches away from oil that was maintained at 460 degrees Fahrenheit when the oil-heating unit was in operation. The oil-heating unit was turned off at the end of each workday, and the cylinder was regularly exposed to a cycle of high temperatures when the unit was in operation and cooler temperatures when it was not. Because it was attached to the hazard it was intended to protect, the cylinder would be exposed to any fire that originated in the oil-heating unit, and, in fact, the exterior of the cylinder at Banner Beef was damaged by the fire and covered in grease when it was inspected after the fire. NFPA Standard 17-8, Section 3-8.3, 1994 edition,3 specifies that "[t]he dry chemical container and expellant gas shall be located near the hazard or hazards protected, but not where they will be exposed to a fire or explosion in those areas." NFPA Standard 17-8, Section 3-8.3.1, provides that "[t]he dry chemical container and expellant gas assemblies shall be located so as not to be subjected to severe weather conditions or to mechanical, chemical, or other damage." The location of the cylinder at Banner Beef was not consistent with these NFPA requirements. A manual release handle, or manual pull station, is used to manually actuate the Kidde HDR 25DC system. At Banner Beef, the manual release handle was located on the far end of the oil-heating unit, at the top of the dry chemical cylinder and next to the controls used to operate the oil-heating unit. The means of exiting the alcove containing the oil-heating unit was through the room containing the deep fryer, although Banner Beef advised Mr. Cabrera that someone was always standing at the controls of the oil-heating unit whenever the unit was in operation. NFPA Standard 17-8 provides in pertinent part: 3-7 Operation and Control of Systems 3-7.1 Methods of Actuation. Systems shall be provided with both automatic and manual means of operation. 3-7.1.1 Operation of any manual actuator shall be all that is required to bring about the full operation of the system. At least one manual actuator shall be provided for each system. * * * 3-7.1.3 At least one manual actuator shall be located no more than 5 ft (1.5 m) above the floor and shall be convenient and easily accessible at all times, including the time of fire. Although only one manual actuator was required, the location of the manual release handle was not consistent with NFPA Standard 17-8, Section 3-7.1.3. The date of manufacture was stamped into the metal of the cylinder containing the dry chemical fire suppressant. The system's serial number and a United States Department of Transportation exemption code, DOT-7042, were also stamped into the metal of the cylinder. The Kidde Guidelines for Hydrostatic Retest & Qualification of Kidde Models HDR, IND, WHDR, and DRS- 700 System Cylinders provides that "[d]ry chemical and wet chemical agents, when super-pressurized with nitrogen, are classified as hazardous materials and must be shipped in DOT approved cylinders (containers). The United States Department of Transportation has jurisdiction during cylinder manufacturer, testing, marking, retest and shipment." According to the information contained in the Guidelines, Kidde cylinders manufactured under the DOT E-7042 exemption must be hydrostatically tested, using "the water jacket volumetric expansion method or the direct expansion method," at least every 12 years by a retester authorized by the United States Department of Transportation. According to the Guidelines, after the hydrostatic retest, the federal Department of Transportation requires that the cylinder must be stamped, "'plainly and permanently,'" with a marking that includes the date of the retest and the designation "3AL"; such a stamp is usually imprinted into the metal of the cylinder. The Guidelines include a warning, identified as such and set off from the rest of the text, that provides: "Use of pressure sensitive hydrostatic test labels, in lieu of stamping the cylinder, DOES NOT comply with the DOT requirements." (Emphasis in original.) Because the cylinder installed with the Kidde HDR 25DC system at Banner Beef was manufactured in 1981, the cylinder should have been hydrostatically tested in 1993. The cylinder did not, however, bear a permanent stamp with the "3AL" designation and the date of a hydrostatic test. Mr. Cabrera nonetheless reported on the Range Hood System Report dated April 12, 1999, that the system had been hydrostatically tested in April 1998, and he reported on the Range Hood System Report dated September 27, 1999, that the system had been hydrostatically tested and recharged in 1998. Mr. Cabrera obtained this information from labels carrying the name of South Florida Fire that were affixed to the outside of the cylinder; a few remnants of the labels remained on the outside of the cylinder after the fire. Pursuant to the federal DOT requirements and the manufacturer's specifications, Mr. Cabrera could not rely on these labels as proof that the cylinder had been subjected to hydrostatic testing. An examination of the cylinder after the fire revealed that the outlet valve on the cylinder and the elbow mounting bracket attached to the valve were completely blocked by a caked, rock-hard white substance, and the area around the cylinder's relief valve was also coated with white powder. In addition, there were chunks of hardened white powder loose in the discharge piping that connected the cylinder to the nozzle inside the oil-heating unit, although the discharge piping was not blocked. The white powder was identified as dry chemical fire suppressant, which had discharged from the cylinder but had not been discharged through the nozzle into the oil-heating unit because of the complete blockage of the valve outlet and elbow mounting bracket. Finally, there was a residue of what appeared to be grease in the discharge piping connected to the elbow mounting bracket. The manufacturer's specifications require that, at the semi-annual inspection of the Kidde HDR 25DC system, the person providing the maintenance should "[c]heck the discharge piping for obstructions. Remove cylinder and valve. Blow out piping with clean dry air or nitrogen." Mr. Cabrera blew out the piping with nitrogen to clear obstructions each time he performed a semi-annual inspection of the Banner Beef system. The discharge piping was clear when he completed the semi-annual inspection and maintenance on March 15, 2000. In the Banner Beef system, approximately six inches of discharge piping ran from the elbow mounting bracket through the exterior wall of the oil-heating unit, where it emerged just above the level of the oil when the oil-heating unit was full. The discharge nozzle for the system was attached to a portion of the pipe that extended a few inches into the oil-heating unit, where it would be exposed to grease splatter. The male coupling on the discharge nozzle should have threaded into a female coupling in the pipe. However, the inside of the pipe was not threaded to receive the nozzle, and it appeared that the person installing the system had "screwed" the nozzle into a smooth pipe. Because the seal was not tight, grease had accumulated on the threads of the nozzle, and the nozzle might have blown off if the system had actually discharged. There are four nozzle configurations available for the Kidde HDR 25DC system, two of which are relevant to this proceeding: The SP-2 nozzle is designed to protect the plenum4 and exhaust duct of a commercial cooking installation; the SW-2 nozzle is designed to protect surface cooking appliances. One SP-2 nozzle was used with the Kidde HDR 25DC system at Banner Beef, which was inconsistent with NFPA Standard 17-6, Section 2- 3.1, which requires that "[d]ischarge nozzles shall be listed for their intended use," and with the manufacturer's specifications for the system. First, there is no recognized nozzle configuration for the system using only one SP-2 nozzle. Second, the SP-2 nozzle was not appropriate for the Banner Beef system: Deep fryers are classified in the manufacturer's specifications as surface appliances, and the proper nozzle was the SW-2 nozzle. The discharge pattern of the SP-2 nozzle is horizontal, and, had the dry chemical fire suppressant actually been discharged through the nozzle into the oil-heating unit, the dry chemical would have blown across the surface of the hot grease; the SW-2 nozzle is designed to be installed above the appliance, so that its discharge pattern is vertical, with the spray distributed over the surface of the oil. Protective grease covers are required by the manufacturer's specifications and by NFPA Standard 17-6, Section 2-3.1.4, which provides: "Discharge nozzles shall be provided with blowoff caps or other suitable devices or material to prevent the entrance of moisture or other environmental materials into the piping. The protective device shall blow off, open, or blow out upon agent discharge." When Mr. Cabrera inspected the Banner Beef system in March 2000, a grease cover protected the discharge nozzle, but, after the fire, no grease cover for the nozzle could be located. In addition, an examination of the nozzle and discharge piping after the fire revealed grease build-up on the inside of the nozzle and in the discharge piping. Protective nozzle covers are easily lost; Mr. Cabrera had advised Banner Beef to call him if they needed a replacement cover, but he was never asked for a replacement cover. To the best of Mr. Cabrera's recollection, there was always a grease cover on the nozzle whenever he conducted his inspections of the system. A fusible link is designed to melt at a specific temperature, releasing cables that run from the fusible link to a control head attached to the dry chemical cylinder; this is the means by which the system is actuated. The fusible link of the Kidde HDR 25DC system at Banner Beef was located in the duct venting the oil-heating unit to the roof. The invoice for the September 27, 1999, semi-annual inspection at Banner Beef reflects that Mr. Cabrera replaced the 500-degree fusible link in the Kidde HDR 25DC system. He used the 500-degree link because the oil-heating unit heated the oil to 460 degrees Fahrenheit. The manufacturer's specifications provide that "[t]he fusible link assembly . . . is used to detect excessive temperatures in the area above cooking appliances and in the duct. The actuation temperature is 360ºF (182ºC). For higher temperatures use a 500ºF quartzoid bulb, or fusible link." The manufacturer's specifications also provide: The exposure temperature is the maximum temperature to which a fusible link may be exposed for any period of time, no matter how short. After reaching the exposure temperature, the link will eventually release even though it may never reach the rating temperature. WARNING: To avoid accidental system discharge, a temperature survey must be made of all locations where the fusible link will be installed. Links must have an exposure temperature rating above the maximum peak survey temperature. The maximum exposure temperature for any fusible link is 300ºF. If the peak survey temperature is above 300º F, use a quartzoid bulb link. (Emphasis in original.) Only two fusible links were available for the Kidde HDR 25DC system, a fusible link with a rating temperature of 350 degrees Fahrenheit and a maximum exposure temperature of 300 degrees Fahrenheit and a quartzoid bulb, also referred to as a fusible link, with a rating temperature of 500 degrees Fahrenheit and a maximum exposure temperature of 475 degrees Fahrenheit. The exposure temperature at the location of the fusible link is not known, but the convected heat in the duct over the oil-heating unit, where the fusible link was installed, would not have reached the 460-degree temperature of the oil. However, the fusible link was installed only six inches above the maximum level of the oil in the oil-heating unit, and, had the 350-degree fusible link been used, it would have continually actuated the system. Pursuant to the manufacturer's specifications, the fusible link on the system should have been mounted using Kidde fusible-link brackets. The fusible link installed on the Banner Beef system was housed in a welded metal bracket fabricated by whoever installed the system. The fusible link is connected to the system's control head by a system of cables. The manufacturer's specifications require that the fusible link be attached to the cables using Kidde cable crimps crimped with a Kidde crimping tool. Mr. Cabrera did not use either a Kidde cable crimp or a Kidde crimping tool when he installed the new fusible link on the Banner Beef system during the September 27, 1999, inspection. The manufacturer's specifications require that the cables connecting the control head to the fusible link be "housed and protected by 1/2-inch electrical metal tubing." The portion of the cable running on the outside of the oil-heating unit, from the control head mounted near the cylinder into the exterior wall of the oil-heating unit was housed in electrical metal tubing; that portion of the cable running inside the oil- heating unit, from the fusible link to the exterior wall of the oil-heating unit, was not housed in electrical metal tubing but was left bare. According to the manufacturer's specification, all cable in the Kidde HDR 25DC system must run either horizontally or vertically. Consequently, corner pulleys are used to make 90-degree changes in direction. Three corner pulleys were used in the Banner Beef system; one was manufactured by Kidde, but two were manufactured by Pyro-Chem. In addition, the first corner pulley was clogged with grease, indicating that the system was not properly maintained. The cables leading from the fusible link are attached to a control head, and the system actuates when the fusible link melts and the cables are released. A cover plate protects the control head, and is attached to the control head with five screws. Kidde Field Memo #84-8, provides as follows: When installing the cover plate on any preengineered system control head, remember to install all five cover screws. The fifth screw that attaches to the hex post just above the local manual release handle is important for the stability of the cover plate when operating the handle. Leaving out the fifth screw could cause movement of the cover plate and render the local manual release handle inoperative. . . . Three of the five screw holes on the control head cover plate recovered from Banner Beef were covered with grease; only two of the five screw holes were clean. This indicates that the cover plate was attached to the control head by only two screws at the time of the fire. Mr. Cabrera did not note any discrepancies or deficiencies in the Kidde HDR 25DC system installed at Banner Beef in the inspection reports that he completed after his April 12, 1999, and September 27, 1999, inspections, which were the only reports provided to the State Fire Marshall and introduced into evidence at the final hearing. In these two reports, Mr. Cabrera checked the "Yes" boxes for the following items, among others: All appliances properly covered w/ correct nozzles System installed in accordance w/ MFG UL listing Inspect cylinder and mount Clean nozzles Check fuse links and clean Piping and conduit securely bracketed System operational & seals in place Clean cylinder and mount Mr. Cabrera signed the two reports, thereby certifying that "[o]n this date, the above system was tested and inspected in accordance with procedures of the presently adopted editions of NFPA Standard 17, 17A, 96 and the manufacturer's manual and was operated according to these procedures with results indicated above." The licensure files maintained by the State Fire Marshall for A Fire Prevention Company indicated that the company's insurance policy with Frontier Insurance Company expired on March 25, 2000. Mr. Cabrera testified, however, that the company did have insurance at the time of the fire, and this testimony is unrefuted. Summary The State Fire Marshall's expert witnesses disagreed as to whether the system could have controlled the fire had it functioned properly. They each conceded, however, that all components of the system functioned perfectly and actuated the system. They attributed the sole cause of the system's failure to the blockage in the valve outlet and elbow mounting bracket that prevented the dry chemical fire suppressant from discharging out of the cylinder. The State Fire Marshall's experts and Mr. Cabrera agreed that the cause of the blockage was dry chemical in the cylinder valve assembly and elbow mounting bracket that had hardened into a rock-hard substance. All of the State Fire Marshall's experts and Mr. Cabrera agreed that the chemical hardened as a result of its coming into contact with a significant amount of moisture and/or grease. No one, however, provided a satisfactory explanation of the time within which the chemical would have hardened after it came into contact with the moisture and/or grease. In Mr. Cabrera's opinion, the blockage was caused when grease and/or moisture entered the system at the time of the fire and caused the dry chemical to immediately harden. On the other hand, the State Fire Marshall's expert witnesses opined that the moisture and/or grease causing the blockage of the cylinder valve outlet and elbow mounting bracket did not necessarily accumulate in the system over an extended period of time but, rather, could have been introduced into the system all at once. They also agreed that the dry chemical would harden gradually over time and that the blockage was probably present at the time Mr. Cabrera performed the March 2000 inspection. However, none of the State Fire Marshall's experts provided a persuasive basis to support a finding that the blockage had been present in the system at the time Mr. Cabrera inspected the system in March 2000, and the evidence is, therefore, insufficient to establish with the requisite degree of certainty that Mr. Cabrera should have discovered the blockage when he performed the inspection and maintenance in March 2000. The evidence presented by the State Fire Marshall is likewise not sufficient to establish that Mr. Cabrera deviated from the requirements of the manufacturer's specifications by installing a 500-degree fusible link in the system in September 1999. The evidence presented by the State Fire Marshall is, however, sufficient to establish clearly and convincingly that the Kidde HDR 25DC preengineered fire protection system installed at Banner Beef was not designed to protect an industrial oil-heating unit containing approximately 200 gallons of hot oil, that the system was not installed in accordance with the manufacturer's specifications, that the system contained parts that were not manufactured by Kidde, that the system was not properly maintained with respect to the build-up of grease in and around the discharge nozzle and in the corner pulleys, and that Mr. Cabrera did not use the appropriate crimp and crimping tool when he replaced the fusible link in September 1997. The evidence presented by the State Fire Marshall is also sufficient to establish clearly and convincingly that Mr. Cabrera did not provide the State Fire Marshall with proof of insurance subsequent to March 25, 2000, although the evidence is insufficient to establish that he did not, in fact, have insurance coverage subsequent to that time. Finally, the evidence presented by the State Fire Marshall is sufficient to establish with the requisite degree of certainty that the reports Mr. Cabrera prepared following his semi-annual inspections in April and September 1999 did not accurately reflect the condition of the system and did not include a statement of the system's deficiencies. In addition, Mr. Cabrera's failure to provide the State Fire Marshall with copies of the inspection reports for the semi-annual inspections he performed on the Kidde HDR 25DC system at Banner Beef for the three years prior to the fire supports the inference that he failed to retain copies of the inspection reports in his records. However, Mr. Cabrera's testimony that he always prepared the necessary reports is uncontroverted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Fire Marshall enter a final order: Finding Hector Cabrera and A Fire Prevention Company guilty of having violated Sections 633.061(9), 633.065(1)(c), 633.065(2), 633.071(1), and 633.162(4)(c) and (e), Florida Statutes (2000), as well as Rules 4A-21.302 and 4A-21.304(1) and (2), Florida Administrative Code; and Suspending the licenses and permits of Hector Cabrera and A Fire Prevention Company for a period of two years, pursuant to Section 633.162(1) and (4), Florida Statutes (2000). DONE AND ENTERED this 25th day of June, 2002, 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 25th day of June, 2002.
The Issue The issue for determination is whether the application for an initial license to operate an Adult Family Care Home ("AFCH") should be denied because the applicant submitted fraudulent or inaccurate information in the application.
Findings Of Fact Petitioner is owned by Ms. Marvell Lawton, R.N. (the "applicant"). On June 3, 1996, the applicant applied for a license to operate an AFCH at 550 East Division Street, Deland, Florida (the "facility"). Respondent is the state agency responsible for licensing AFCHs. Respondent requires several documents to be submitted with the application including: a Florida Department of Health and Rehabilitative Services ("HRS") Community Residential Homes Sponsor Certification Form (the "HRS Form"); a statement by the local zoning office that the facility is properly zoned (the "zoning approval"); and a fire inspection report. The applicant altered the HRS Form, the zoning approval, and the fire inspection report to indicate that the facility was approved for a maximum capacity of five residents. Respondent initially denied the license application solely on the basis of the fire inspection report. However, the basis of denial was amended to include the HRS Form and the zoning approval pursuant to an order entered by Judge Stephen F. Dean on October 16, 1996. By letter dated July 11, 1996, Respondent notified the applicant that her application was denied. The letter stated, in relevant part, that the specific basis for denial was: . . . Submission of fraudulent or inaccurate information to the agency. The fire safety inspection report submitted with the application package was altered to indicate approval for five residents when the fire marshal's office had only approved three residents. The local fire marshal's office has verified that the original approval was for three residents because Ms. Lawton did not want to install a manual alarm system which is required for four or five residents. Submission of fraudulent or inaccurate information to the agency is grounds for denial of the AFCH application, s. 400.619(11)(e),F.S. On April 2, 1996, the applicant obtained a fire inspection report from the City of Deland Fire Department (the "Fire Department"). The fire inspection report limited the maximum capacity of the facility to three residents because the applicant did not have the manual alarm system required for four or five residents and did not wish to install such a system. The applicant altered the fire inspection report that she submitted with her application. She changed the number "3" to a "5" so that the fire inspection report appeared to approve the facility for a maximum capacity of five residents. As part of its review of the application, Respondent attempted to verify the fire inspection report included in the application by calling the Fire Department. When the Fire Department did not verify that the maximum capacity was five residents, Respondent obtained a copy of the original fire inspection report from the Fire Department. On March 22, 1996, the applicant obtained a zoning approval from the City of DeLand stating that the maximum capacity of the facility is three residents. The applicant added the phrase "to 5" after the number "3" in the zoning approval so that the zoning approval authorized a maximum capacity of "3 to 5" residents. On June 3, 1996, the applicant submitted the HRS Form to Respondent. The applicant amended the portion of the HRS Form requiring a designation of capacity for facilities with six or fewer residents as well as that for facilities with 7-14 residents. The latter category does not apply to Petitioner. The applicant did not submit fraudulent information to Respondent. The applicant did not intend to defraud Respondent. She misunderstood the application process. The facility has space for only three residents. It is physically impossible to house more than three residents in the facility. The applicant would have gained nothing from an authorized capacity of more than three residents. The applicant's refusal to add the manual alarm system required for four or five residents is consistent with the facility's limit of three residents. The applicant assumed that Respondent's minimum license category is for a license of 1-5 residents. The applicant altered the HRS Form, the zoning approval, and the fire inspection report under the mistaken belief that the capacity designation in each document should conform to the maximum capacity in Respondent's license category. In the HRS Form, the applicant even altered the licensed capacity for facilities with 7-14 residents. The applicant mistakenly submitted inaccurate information to Respondent within the meaning of Section 400.619(11)(e), Florida Statutes.1 The maximum licensed capacity of the facility must be consistent with fire safety requirements for the welfare of the residents. The licensed capacity of the facility must also conform to applicable zoning laws.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and thereinGRANT a license to operate an AFCH for three residents. RECOMMENDED this 21st day of February, 1997, in Tallahassee, Florida. DANIEL MANRY 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 21st day of February, 1997.
Findings Of Fact Respondent, Hugenna D. Outar, operates a twelve-bed adult congregate living facility (ACLF) under the name of Moorehead House Retirement Center at 1405 Northeast Eighth Street, Homestead, Florida. The facility is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), and as such, is subject to that agency's regulatory jurisdiction. Outar serves as administrator of the facility. On or about August 15, 1987, Paul Grassi, an HRS fire inspector, conducted a routine annual inspection of respondent's facility. The purpose of the inspection was to determine if the facility was in compliance with the fire safety requirements of Chapter 10A-5, Florida Administrative Code (1987). The inspec- tion was made in the presence of Outar's mother since Outar was not at the facility that day. Grassi requested documentation showing that all facility fire alarms and smoke detectors had been checked by facility personnel on a quarterly basis. Also, he requested documentation to evidence that all employees had been given monthly training in procedures to be followed in the event of a fire. The former set of records is required by Department of Insurance Rule 4A-40.017, which has been adopted by reference by HRS. The latter requirement is imposed by Rule 10A-5.023(15)(b) and pertains to ACLF's having thirteen or more licensed beds. Because Outar's mother did not know where such documentation was kept, she was unable to comply with Grassi's request. Next, Grassi observed that Room D had a "pocket type" door with no hinges. According to Grassi, a state fire marshal regulation prohibits the use of this type of door in a resident's room and requires instead that a resident's room located by an exit have a door mounted on a hinge that swings outwardly to the corridor. The Classification of Deficiencies refers to the regulation imposing this requirement as "L.S.C. 85, 17-3.6.2" but the regulation itself is not of record or officially noticed. Finally, Grassi observed two residents' rooms with no door closures. According to Grassi, such closures are required on all residents' rooms, pursuant to a state fire marshal regulation, for the purpose of containing and confining a fire in the event of a fire in a room. The regulation was not identified at hearing nor made a part of the record but is referred to in the Classification of Deficiencies as "N.F.P.A. 101-85, 17.3.6.3." After noting these violations, Grassi explained them to the mother and gave her a brief explanation as to how they might be corrected. Each of the three deficiencies were categorized as Class III deficiencies. By letter dated September 24, 1987, HRS advised Outar in writing of the nature of the violations. Although the letter was not prepared until September 24, it instructed Outar to correct the deficiencies by September 14, 1987, or ten days earlier. Attached to the letter was a copy of the Classification of Deficiencies which identified the deficiencies, their class and the date by which they had to be corrected. On October 29, 1987 Grassi made a follow-up survey of respondent's facility. Since Outar was not at the facility that day, the survey was conducted in the presence of Outar's mother. Grassi found none of the deficiencies had been corrected. Accordingly, Outar was sent a letter by HRS on November 6, 1987 advising her that a second follow-up visit would be made. On December 14, 1987 Grassi returned for a third visit. This time Outar was present. Again, Grassi found none of the deficiencies corrected to his satisfaction. However, he conceded that the documentation pertaining to monthly fire drills and quarterly checks of fire alarms and smoke detectors was available for inspection but maintained it was unsatisfactory because all reports were identical and did not vary from month to month. He reasoned that this was contrary to the "intent" of the rule. During the inspection, Outar requested specific advice as to how to comply with the door regulations for which she had been cited. After receiving advice, these changes were made, and her doors now meet all fire safety requirements. Outar operates a small facility with only twelve beds. She pointed out that she had difficulty in installing closures on the two doors in question since two residents used walkers and had placed door "jams" on the doors to give them easy access through the doorway. As to the other door violation, the building was purchased with an archway leading into Room D which made it difficult to install a door mounted on hinges. Outar attempted to comply with Grassi's instructions but her carpenter was unable to make the necessary changes until Outar received specific advice from Grassi on December 14. Finally, Outar stated that the fire drill documentation was available for inspection on August 15 and October 29 but her mother did not know where it was. Outar did not learn it was filled out improperly until she personally spoke with Grassi on his third visit. She now has satisfactory records.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint filed against respondent be dismissed with prejudice. DONE AND ORDERED this 30th day of September, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1988.
The Issue The issue is whether Respondent has violated various provisions governing public lodging establishments and, if so, what penalty should be imposed.
Findings Of Fact Respondent operates a public lodging establishment known as First Street Apartments at 220 South First Street in Immokalee. The license to operate this establishment, which is number 21-00721-H, expired December 1, 1997. However, Petitioner has allowed Respondent to continue to operate under this license until the resolution of pending proceedings against the license. First Street Apartments comprise 84 residential units in buildings not greater than three stories. At the time of the inspection, about 60 units were occupied. The buildings were constructed in 1963, and Respondent acquired the property in 1984. The controlling owner of Respondent was formerly a professional football player, and he formed Respondent to acquire First Street Apartments while still playing football. He has since retired, and he assumed direct responsibility for managing the property in 1994. First Street Apartments generate a net cash flow of $25,000 to $35,000 annually. Respondent has no formal policy setting the frequency of inspections of apartment units. However, the weekend prior to the hearing, Respondent's owner and his family moved into one of the apartments. Petitioner’s inspector conducted inspections of First Street Apartments on July 30 and August 19, 1997. The July inspection resulted in the issuance of a warning for 38 violations. The inspector allowed Respondent 30 days to correct these violations. The findings below describe the conditions at First Street Apartments on August 19, when Petitioner’s inspector and a local fire inspector returned to the site for the reinspection. As to the first alleged violation, apartments 30, 32, 40, and 79 lacked smoke detectors. As to the second alleged violation, apartment 31 had a smoke detector, but it was inoperative. As to the third alleged violation, an undetermined number of apartments had hasps affixed to the outside doors, so as to permit them to be latched. Most if not all of these hasps were affixed to the screen door. Most but not all of these hasps were unlocked. There is no evidence that any hasps were locked with occupants inside. The evidence suggests that tenants used the hasps to secure the contents of their premises while they were gone. However, the evidence does not establish that all of these hasps were attached to the doors and doorframe so securely as to present more than a momentary impediment to someone from the inside or outside trying to force the hasp open without unlocking it. The doorframes appear to have secured so many hasps that the wood is pitted and incapable of securing the hasp against much force. The clear appearance of numerous screwholes in the doors and doorframes supports Respondent’s contention that its representatives have frequently removed the hasps, only to find them reaffixed a short time later. As to the fourth alleged violation, one of the apartments had uninsulated wiring, unprotected by conduit, running from the ceiling to a water heater. This uninsulated wiring ran within eight feet of the floor. The proximity of this exposed wiring to the water in the water heater rendered this violation especially hazardous. However, Petitioner failed to prove its allegation of a broken electrical socket with a hot plate plugged into it. As to the fifth alleged violation, occupants of apartments 31, 32, and 33 used extension cords for other than intermittent purposes, such as cleaning, maintenance, or other temporary activities. These more ongoing, permanent uses included cooking and playing radios and televisions. As to the sixth alleged violation, there was no public lighting in the alley between the north building and a fenced area to the next property. However, Respondent or Lee County has since added more exterior lighting, and the record does not permit a finding as to the effect of the former condition. As to the seventh alleged violation, Respondent conceded that Respondent did not provide heat at the time of the inspections. As to the eighth alleged violation, the original design of the guardrail along the balcony contains openings greater than four inches. To remedy this hazardous situation, Respondent or a prior owner placed chain-link fence behind the guardrail, so as to reduce the openings to the size of the openings in the chain- link fence. The chain-link fence may have been missing on the west side of the building, but this fact does not emerge clearly from the record. There is some evidence that the chain-link fence elsewhere had loosened from the guardrail, but the evidence fails to establish the extent to which any separation had occurred and the extent to which such separation presented a hazard to persons falling between the openings in the guardrails and then between the guardrails and the chain-link fence. Respondent has since repaired the guardrails, in any event. As to the ninth alleged violation, apartments 30 and 32 had broken windows, torn screens, and a broken faucet in the kitchen sink repaired with duct tape; apartments 30 and 31 had leaky ceilings with structural damage and falling plaster; walls were pulling away from the ceiling; the south building had exposed interior beams; exterior areas had structural damage with worn concrete revealing the metal foundation; the exterior wall of the southeast end of the building had a 15-foot crack; and the concrete pillar supporting the second-floor landing on the northeast side of the building was worn and cracked. As to the tenth alleged violation, apartment 32 had a rotten shower wall and leaky toilet, and apartment 31 had an inoperative shower. As to the eleventh alleged violation, there were roaches and flies around the premises, but there is no evidence of "noxious small animals or parasitic insects, such as lice, fleas, worms, rats, or mice." As the administrative law judge advised at the hearing, he took official notice of this dictionary definition of "vermin" taken from a Funk and Wagnall's Dictionary present in the courthouse at which the hearing took place. As to the twelfth alleged violation, there was a car seat under a stairwell and about a dozen five-gallon plastic pails. However, the tenants stored these items, on a temporary basis, for their work. They remove car seats to increase the passenger-carrying capacity of their motor vehicles, and they use the pails while picking fruits and vegetables. As to the thirteenth alleged violation, there was no concrete pad under one of the two dumpsters. As to the fourteenth alleged violation, a dumpster lid remained open for the entire 1.5-hour inspection. As to the fifteenth alleged violation, a broken sewer line had leaked a pool of gray water, and a sewer cap was missing from the sewer line as it left a residential unit. In sum, Petitioner proved the following violations, with critical violations marked with an asterisk: 1*, 2*, 4* (unprotected wiring, but no broken socket), 5*, 7*, 9, 10 (except for water leaking from under the sinks) 13, 14, and 15*. By Ordinance No. 92-72, the Collier County Commission adopted National Fire Protection Association Life Safety Code 101, Life Safety Code, effective October 21, 1992. NFPA 5-2.2.4.6(c) provides: "Open guards shall have intermediate rails or an ornamental pattern such that a sphere 4 in. (10.1 cm) in diameter cannot pass through any opening." NFPA 19-3.4.4.1 provides: Approved single station or multiple station smoke detectors continuously powered from the building electrical system shall be installed in accordance with 7-6.2.9 in every living unit within the apartment building regardless of the number of stories or number of apartments. When activated, the detector shall initiate an alarm that is audible in the sleeping rooms of that unit. This individual unit detector shall be in addition to any sprinkler system or other detection system that may be installed in the building. Section 5-402.14, 1995 Food Code, as adopted by the Food and Drug Administration, Public Health Service, United States Department of Health and Human Services (Food Code), provides: "Sewage shall be conveyed to the point of disposal through an approved sanitary sewage system or other system, including use of sewage transport vehicles, waste retention tanks, pumps, pipes, hoses, and connections that are constructed, maintained, and operated according to law." Section 5-501.11, Food Code, provides: "If located within the food establishment, a storage area for refuse, recyclables, and returnables shall meet the requirements specified under Parts 6-1 and 6-2." Section 5-501.12, Food Code, provides: "An outdoor storage surface for refuse, recyclables, and returnables shall be constructed of nonabsorbent material such as concrete or asphalt and shall be smooth, durable and sloped to drain." Section 5-501.113(B), Food Code, provides: "Cardboard or other packaging material that does not contain food residues and that is awaiting regularly scheduled delivery to a recycling or disposal site may be stored outside without being in a covered receptacle if it is stored so that it does not create a rodent harborage problem." Section 5-501.114(B), Food Code, provides: "Equipment and receptacles for refuse, recyclables, and returnables shall be kept covered . . . [w]ith tight-fitting lids or doors if kept outside the food establishment."
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order imposing an administrative fine against Respondent in the amount of $2750 and requiring Respondent's controlling owner to undergo additional education. DONE AND ENTERED this 8th day of December, 1998, 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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1998. COPIES FURNISHED: Daniel R. Biggins Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 D. Nathan Hoskins Peck & Peck First Union Building, Suite 103 5801 Pelican Bay Boulevard Naples, Florida 34108 Dorothy W. Joyce, Director Division of Hotels and Restaurant Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Agency for Health Care Administration has jurisdiction to prosecute the violations allegedly committed by Respondent? Whether the prosecution is time-barred? Whether Respondent actually committed the alleged violations? If so, what penalty should be imposed?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The facility that is the subject of the instant Administrative Complaint (hereinafter referred to as "Sunrise") is an intermediate care facility for the mentally retarded located in Dade County, Florida. It is housed in a one-story, split-level building. The two levels of the home are connected by stairs. At all times material to the instant case, Sunrise had a manual fire alarm system (with one manual fire alarm pull station on each level of the home) and a smoke detection system. Harry Fallon is a Fire Protection Specialist with the Agency. In his capacity as a Fire Protection Specialist, he surveys facilities such as the one which is the subject of the instant Administrative Complaint to determine compliance with applicable fire safety, protection and prevention requirements. He performed similar duties in 1990 as an employee of the Department. On September 12, 1990, Fallon conducted a survey of Sunrise. Of the two fire alarm pull stations in the building, only one was operational. This was noted in the written "statement of deficiencies" that Fallon prepared following the survey. Respondent devised a plan of correction to correct this deficiency. The plan, which provided that Respondent would repair the non-operational pull station and, on a monthly basis, monitor both pull stations in the building, was approved by the Department. The Department advised Respondent that the failure to take the corrective action described in the plan "may result in administrative action against your facility." Respondent fully complied with the plan of correction. Notwithstanding that Respondent had the non-operational pull station promptly repaired and thereafter monitored the pull station's operation in accordance with the Department-approved plan of correction, when Fallon returned to the facility on December 7, 1990, and tested the pull station, it did not function properly. 1/ Unlike the pull station, the facility's smoke detection system was fully operational at the time of Fallon's December 7, 1990, return visit, as it had been during his previous inspection on September 12, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Agency enter a final order dismissing the instant Administrative Complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of April, 1993. STUART M. LERNER 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 15th day of April, 1993.
The Issue The issues are whether Respondent violated Section 471.033(1)(g), Florida Statutes (2003), by negligence in the practice of engineering, and whether Respondent violated Sections 471.023 and 471.033(1)(a), Florida Statutes (2003), by practicing engineering through a business organization that did not, nor does it currently have, a Certificate of Authorization.
Findings Of Fact Mr. Maples is a licensed professional engineer in the State of Florida. He holds license no. PE 10214, and he practices engineering in the Panama City, Florida, area. During all times pertinent Mr. Maples held an active license and practiced pursuant to it. FEMC is charged with providing administrative, investigative, and prosecutorial services to the Board of Professional Engineers pursuant to Section 471.038, Florida Statutes. The Board of Professional Engineers exists pursuant to Section 471.007 and is authorized to discipline engineers under its authority by Section 455.225. During times pertinent, Mr. Maples provided engineering drawings to Chris Thomas (Mr. Thomas), who owned Panhandle Fire Protection, Inc. (Panhandle) of Lynn Haven, Florida. Mr. Maples maintained his engineering supplies in Mr. Thomas's office. Mr. Maples did most of his engineering work in his home in Lynn Haven, Florida. During times pertinent, Panhandle was his only client. Count One At a time prior to January 27, 2004, Panhandle entered into an agreement with Bill Grimsley (Mr. Grimsley or Owner). Mr. Grimsley was building a 22-story building in Panama City Beach, Florida, which was to be named Treasure Island Condominiums (the Condominiums). The agreement contemplated that Panhandle would address the fire suppression needs of the Condominiums. In order to address the fire suppression needs of the Condominiums a fire protection plan using water sprinklers was required. The fire protection plan that was ultimately developed and submitted for permitting, FEMC's Exhibit No. 5, provided for the installation of more than 49 sprinklers. Although it is difficult to determine exactly how many sprinklers were to be utilized, the number was in excess of 1000. The Condominiums included residential areas and garage areas. The residential areas were to be provided with a "wet" sprinkler system and the garage areas were to be provided with a "dry" sprinkler system. A "wet" system employs pipes which always have water in them. A "dry" system has no water until it is activated during a fire. A "dry" system is used where freezing might be a hazard. Thus the garage, which was not designed to be heated, had a dry system. Mr. Thomas drafted a sprinkler system for the Condominiums using shop drawings of the Condominiums provided to him by the Owner. Mr. Maples reviewed and corrected Mr. Thomas's work. Thereafter, he sealed the drawings that were FEMC's Exhibit No. 1 on January 27, 2004. Mr. Maples did not intend for these drawings to be the complete and final drawings for this project. They were for the use of the Owner. These drawings formed the basis of FEMC's complaint of negligence in the practice of engineering with regard to Mr. Maples. Mr. Thomas, or his employees, made certain calculations, based on the drawings which set forth the schematic of the sprinkler systems. Drawings are the source documents for calculations. The calculations provide information about the system, including pipe diameter and length, and water pressures at various points. FEMC's Exhibit No. 2 are calculations which were signed by Mr. Maples, but were not sealed by him. These calculations are dated May 21, 2004. The calculations that are FEMC's Exhibit No. 2 are in two parts. One part addresses the wet system for the residential areas and the other part addresses the dry system for the garage areas. It was not proved by clear and convincing evidence that the calculations that are FEMC's Exhibit No. 2 correspond to FEMC's Exhibit No. 1, although they were clearly prepared for some iteration of the fire protection plan for the Condominiums. The probability is high that FEMC's Exhibit No. 2 was prepared for an iteration of drawings prepared subsequent to FEMC's Exhibit No. 1. For instance, Petitioner's Exhibit No. 1 reflects a six-inch pipe under a walkway leading to a standpipe on the first page. On Petitioner's Exhibit No. 5, a later iteration of the plans, the pipe is shown as a four-inch pipe, and Petitioner's Exhibit No. 2 shows calculations for a four- inch pipe. The absence of calculations that are specific to the operative plans, FEMC's Exhibit No. 1, means that there is no record adequate for finding facts to support Count One. FEMC's Exhibit No. 1 was never submitted to the authority having jurisdiction, the Bay County Building Official. FEMC's Exhibit No. 1 was not prepared with the intent that it was to be submitted to the authority having jurisdiction. FEMC did not prove by clear and convincing evidence that FEMC's Exhibit No. 1 was a fire protection system engineering document as defined in Florida Administrative Code Chapter 61G15-32. This fact was admitted in FEMC's Proposed Recommended Order. Accordingly, because the allegations of negligence in the Administrative Complaint are limited to violations of Florida Administrative Code Chapter 61G15-32, addressing fire protection system engineering documents, the specific allegations of Count One suggesting Mr. Maples failed to comply with Florida Administrative Code Rule 61G15-32.003 and National Fire Protection Association 13 (NFPA 13), and the specific allegations suggesting Mr. Maples failed to comply with Florida Administrative Code Rule 61G15-32.004, were not proven. Count Two Count Two of the Administrative Complaint alleges at paragraph 11, that "the fire protection documents prepared for the Treasure Island Condominium contain a title block for Panhandle Fire Protection, with a designer, Chris Thomas. Respondent signed and sealed the documents but no title block reflects a separate address for him." As noted above, the document dated January 27, 2004, to which the quoted paragraph refers, is admittedly not a fire protection engineering document. Count Two of the Administrative Complaint further alleges at paragraph 12, that, "Respondent signed a letter on the stationery of Panhandle Fire Protection, Inc., dated July 7, 2004, listing his capacity as 'Engineer,' in response to the notice of investigation of a complaint about the Treasure Island Condominium." This letter was a mere inquiry to the Florida Board of Professional Engineers and correctly noted that the complaint was based on an owner review set of plans rather than the permitted ones. The signers of the letter, Mr. Maples and Mr. Thomas, were both concerned about the allegations that had been made against them. This letter provides, at most, a scintilla of evidence that Mr. Maples was practicing engineering through a business entity that does not have a Certificate of Authorization. Panhandle has not been issued a Certificate of Authorization by the Board. Mr. Thomas does not use any title that refers to himself as an engineer, including any title described by Section 471.031. He is a self-taught "sprinkler man," who has been in the business for 25 years. The license held by Mr. Thomas, "Contractor II," was issued pursuant to Section 633.021, and permits him to design fire protection systems using 49 or fewer sprinkler heads. Panhandle was engaged in the business of designing, as well as building the sprinkler system for the Condominiums, and the design had many more than 49 heads. Panhandle was practicing engineering as defined by Section 471.005(7). Specifically, Panhandle was practicing fire protection engineering. Mr. Maples was not an employee of Panhandle. Rather, he was paid for each individual job that he did for Panhandle. Mr. Maples has worked for Mr. Thomas for several years and has participated in the production of over one hundred sets of fire protection plans. Mr. Maples was practicing engineering through a corporation that had no Certificate of Authorization.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the allegations under Count One be dismissed, that Mr. Maples be determined to be guilty of the allegation in Count Two, that he be reprimanded, and that he be placed on probation for two years. DONE AND ENTERED this 31st day of March, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 31st day of March, 2006. COPIES FURNISHED: Bruce A. Campbell, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Alvin L. Peters, Esquire Peters & Scoon 25 East 8th Street Panama City, Florida 32401 Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway, Suite 200 Tallahassee, Florida 32303-5267 Doug Sunshine, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 2507 Callaway Road Tallahassee, Florida 32303-5267 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The legal issue in this case is whether Respondent, as prime engineer of record for the owner, was negligent in the practice of engineering because he drafted performance specifications for a specialty contractor to hire an experienced wet sprinkler fire system engineer, who would, as the delegated engineer to the prime engineer, design, sign and seal a wet sprinkler fire system to be submitted to the prime engineer for his final approval.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, the documentary evidence received in evidence, the parties' stipulations of facts, and the entire record complied herein, the following relevant and material facts are found: Petitioner is charged with regulating the practice of engineering. See Chapters 455 and 471, Florida Statutes. Petitioner, in this case, is also charged with providing administrative, investigative, and prosecutorial services to the Board. See Section 471.038(3), Florida Statutes. Respondent is and has been at all times material hereto a licensed professional engineer in the State of Florida. He was first licensed in Florida in 1984, and his license number is 35071. His areas of engineering discipline include mechanical, electrical, and chemical engineering. Based upon his qualification and knowledge in the discipline of chemical engineering, Mr. Newton routinely designed dry fire systems which are traditionally used in construction of school projects. Mr. Newton is also licensed in Georgia, South Carolina, Texas, and Louisiana. In the 18 years Mr. Newton has been licensed as a professional engineer, this proceeding is the only disciplinary action taken against his license. Mr. Newton's professional affiliations include American Arbitration Association, where he acts as an arbitrator involving construction disputes. Mr. Newton provides engineering and related services as principal engineer and president through Engineering Matrix, a St. Petersburg-based engineering company he formed in 1985. Engineering Matrix regularly employs approximately 30 persons, consisting of engineers and technical support staff. The number of employees may increase up to 35 or more persons when business demands additional services. Approximately 40 percent of Engineering Matrix's past and present work is education-related and/or school projects from elementary and middle schools up to and including the university level. At the time of this proceeding, Engineering Matrix had at least 10 to 15 school projects on their boards, about half of which are new schools, all located within the area of Sarasota, Manatee, and Pinellas Counties. The Manatee County School Board (Owner) let for bid two elementary school construction projects. The Owner selected a Design Team consisting of architects, Allen Architects, Inc. (Allen Architects); a prime engineer, Engineering Matrix, Inc. (Engineering Matrix); and two construction managers, Creative Contractors for Ballard Elementary School and Willis A. Smith Construction, Inc., for Samoset Elementary School. Engineering Matrix, as the project's prime professional engineer, was responsible for all matters relating to electrical, mechanical, and fire protection engineering issues. At some undetermined point in time during finalization of the design phase of the projects, the Owner changed from the original proposed dry fire system to a wet sprinkler fire system. The Owner's design change resulted in Respondent's proposal that Engineering Matrix, his company, could accommodate the change for additional compensation over and above the contract price. The Owner rejected Respondent's proposal. As the prime engineer for the projects, Mr. Newton prepared performance specifications for a non-engineering specialty contractor to hire an experienced wet sprinkler fire system engineer. At the time Mr. Newton prepared the performance specifications, the identification of the wet sprinkler fire system engineer was not known. The performance specifications directed the wet sprinkler fire system engineer to design the wet sprinkler fire system documents. He would sign and seal the design documents and submit them to Mr. Newton for review and ultimate approval. Two fire protection specialty contractors were hired. James Curtis, P.E., was hired and designed the system for the Ballard Elementary School project. Frank B. Williams, P.E., was hired and designed the system for the Samoset Elementary School project. Each engineer signed, sealed, and submitted his respective designs to Mr. Newton for his review and approval. Both approved wet sprinkler fire systems were permitted by Manatee County's building department, approved by the county's fire marshal's office, installed and thereafter passed inspection. There is no evidence of record that a complaint was made regarding the wet sprinkler fire systems installed on these two projects. During or near the completion of the school wet sprinkler fire system construction, a disappointed bidder filed a complaint with the Board. As a result of the complaint, the Board mailed to Mr. Newton a letter of inquiry to which Mr. Newton made a written reply. Mr. Newton and Mr. Allen have worked together professionally on construction projects for over 15 years beginning in 1985. As a consequence, they have developed a comfortable and confident professional working relationship. Based upon their long relationship and their past successes, they will often seek the other's availability when projects are posted for bidding. Allen Architects, by and through Mr. Allen, was in direct contract privy with the Owner, so also were the construction managers, Creative Contractors of Clearwater, Florida, for Ballard Elementary School and Willis A. Smith Construction, Inc., for Samoset Elementary School. The Owner determined that a wet sprinkler fire system would be more economical than a dry fire system and directed Allen Architects to incorporate a design change. The original design plans included a dry fire system which Mr. Newton expected he would design as he had on other school projects.2 At this point in the design process, as the prime engineer and engineer of record for mechanical and electrical matters, Mr. Newton prepared performance specifications requirements for approval of a wet sprinkler fire system engineer. This 12-page document included requirements that the system conform to Sections 13 and 14 of the National Fire Protection Association (NFPA) standards.3 Mr. Newton's testimony reflects his sincere and professional efforts to comply with the design change and with his understanding, past experience, and interpretation of the spirit of his professional obligations as prime engineer for the project. Mr. Newton's performance specifications required that the specialty contractor provide a complete, approved wet sprinkler fire system, designed by a contractor who currently possessed five years of continuous experience, and that shop drawings, hydraulic calculations, etc., be signed and sealed by a Florida registered engineer and submitted to Mr. Newton for his final approval before construction. In Section B of his performance specifications document, Mr. Newton included the following: "Pursuant to FS 471.033(2) and Rules 61G15-30 and 32, the Fire Protection Contractor shall be required to provide detailed fire protection construct drawings to be signed and sealed by a Florida Registered Fire Protection System Design Engineer acting as the delegated Engineer to the Prime Engineer as part of this scope." This section of the performance specifications is the subject of the Board's Administrative Complaint. In accordance with Mr. Newton's performance specifications, signed and sealed wet sprinkler fire system designs were prepared. One system was prepared by Creative Construction and one system was prepared by Willis A. Smith Construction, Inc. Both systems were submitted to Engineering Matrix, approved, and installed in Ballard and Samoset Elementary Schools. Mr. Curtis and Mr. Williams, experienced professional engineers in wet sprinkler fire systems, testified without contradiction, that the language employed by Mr. Newton in Section B herein above regarding the wet sprinkler fire system specifications is common in the industry regarding construction and engineering practices in the local Manatee-Sarasota areas. Neither Mr. Curtis nor Mr. Williams experienced difficulty or confusion in understanding his engineering tasks. The Board's expert, Mr. Galvez, found no deficiency in the wet sprinkler fire system engineering for either the Ballard Elementary School project or the Samoset Elementary School project. This fact confirms the reasonable assumption that two experienced engineers understood the written communication from Mr. Newton without the benefit of face-to-face communication with him prior to their designing the wet sprinkler fire system for these two projects. All witnesses agreed that there are three traditional and accepted industry methods engineers have used on projects: the design approach in which the engineer of record prepares the plans and specifications, provides those documents to a contractor who prepares shop drawings that are then sent back to the engineer of record for compliance specification review and approval, and if approved, documents are provided to the construction engineer for installation; (2) the performance approach in which the engineer of record prepares a set of complete, clear and sufficient criteria and provides those criteria to a contractor who prepares shop drawings that are returned to the engineer of record for compliance specifications review and approval, and if approved, then returned for construction installation; and (3) the design-build approach in which a company, possessing a certification of authorization to provide engineering services via a contracted professional engineer, its employees/consultants, provides both design and installation of engineering projects for the company. The witnesses further agree that none of the three approaches, however, are mandated by Florida Statutes or by administrative rule. Significant is the fact that the parties agree there are no reported cases that have held that an engineer of record cannot delegate fire protection engineering design entirely to a fire protection engineer or fire protection engineering company. Equally as significant is the fact that the parties agree that no reported case has held that an engineer of record cannot delegate any entire subset of a project to another engineer licensed in the delegated subset area of engineering. The effect of this significance is that it compels the Board to establish an accepted, recognized, and enforceable industry standard and prove that Mr. Newton's conduct violated that standard. Mr. Newton chose not to use the traditional design approach, the performance approach, or the design-build approach. He required the specialty contractor to seek and hire only a registered engineer, with specific experience in the engineering discipline of wet sprinkler fire systems. The selected engineer was required to design a wet sprinkler fire system. Mr. Newton's method of delegating the engineering responsibility to design a wet sprinkler fire system for his approval as the prime engineer resulted in a wet sprinkler fire system that was completed, installed, inspected, and found without fault at both the Ballard and the Samoset Elementary School projects. From design to completion, Mr. Newton was the prime engineer for the projects. In that capacity, Mr. Newton had responsible charge for the wet sprinkler fire system from its design to its installation. First, the design was required to be drafted only by an experienced wet sprinkler fire system engineer who would sign and seal his professional work product. Mr. Newton retained sole authority to review, suggest change, and, finally, approve the work product of the engineer of record prior to construction. The evidence of record reflects that at no time during the design to approval and construction process of these two projects was Mr. Newton not in responsible charge for the wet sprinkler fire system by maintaining final engineering authority. Petitioner's expert, Mr. Galvez, a licensed engineer since 1983, has extensive experience in fire protection as an employee of a professional engineering company, Schirmer Engineering, in Miami, Florida, and his professional industry experience has been restricted to the South Florida area. He is a member of the National Fire Protection Association; the American Society of Heating, Refrigeration, and Air Conditioning; Society of Fire Protection Engineers; and the American Society of Mechanical Engineers. Mr. Galvez, however, is not certified by examination in the sub-discipline of fire protection engineering. He has never delegated a wet sprinkler fire system to another engineer, but has had the discipline continuously delegated to him by his employer. In Mr. Galvez's opinion, Mr. Newton's written performance criteria to the specialty contractor to hire an experienced wet sprinkler fire system engineer to design, sign and seal plans did not provide enough direction in the field of delegated engineering because it was an improper delegation of engineering obligation and responsibility. Mr. Galvez opined that Mr. Newton improperly delegated the design responsibility to a non-engineering contractor. Second, in writing the performance specifications, Mr. Newton made himself the "single point of contact," a standard established by the National Society of Professional Engineers. According to Mr. Galvez, following Mr. Newton's "single point of contact" position as a result of writing the performance specifications, the moment Mr. Newton inserted the non-engineering specialty contractor between himself and the design engineer in the performance specifications, he violated the National Society of Professional Engineers' "single point of contact" standard. Mr. Galvez's opinion, however, is nullified by his acknowledgment and admission that the "single point of contact" standard enacted by the National Society of Professional Engineers does not govern Mr. Newton's professional engineering conduct in Florida. Mr. Galvez's second opinion of a "delusional standard"4 violated by Mr. Newton suffers a similar fate as his first "single point of contact" opinion standard. Mr. Galvez further opined that the method employed by Mr. Newton, delegation from himself to (1) a contractor, (2) who would hire an engineer to design, sign and seal, and (3) return to the contractor to (4) return to Newton for his review and approval, was a "delusional" delegation of the "single point of contact" engineering responsibility of the prime engineer of record for these projects. Again, Mr. Galvez's standard of "delusional" delegation is not found in the Florida Statutes nor in the Florida Administrative Code nor has it been accepted, adopted, and reported as an engineering standard by a Florida court. The record contains no evidence of any recognized professional engineering organization in Florida that recognized a standard of "delusional" delegation by a professional engineer. There was no evidence presented at the hearing which would suggest Mr. Newton acted on a false belief, in spite of invalidating evidence to the contrary in drafting the performance specifications. Viewed most favorably, the Board, by the presentation of the opinion testimony of Mr. Galvez regarding "standards" for the delegation of engineering design responsibilities from one engineer to another engineer, has failed to establish by clear and convincing evidence that Mr. Newton was guilty of negligence as alleged by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Board of Professional Engineers enter a final order finding Respondent, Stanley P. Newton, P.E., not guilty of negligence in the practice of engineering as alleged in the Administrative Complaint filed in this cause. DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2002.
