The Issue Whether Permit No. DO19-101251 issued to Mr. Vail on July 11, 1985 to construct and operate an on-site wastewater treatment and disposal system should be revoked?
Findings Of Fact Mr. Vail is the owner and operator of a business called the St. George Inn and Restaurant (hereinafter referred to as the "Inn"). The Inn is located at the southeast corner of the intersection of Franklin Boulevard and Pine Avenue on St. George Island, Florida. In May of 1984 Mr. Vail spoke with an employee of the Department of Health and Rehabilitative Services about obtaining a permit to construct a septic tank on his property for use by the Inn for the treatment and disposal of wastewater. Mr. Vail was instructed to submit a design of the septic tank for approval. Mr. Vail contracted with McNeill Septic Tank Company for the design and construction of the septic tank. The evidence failed to prove when Mr. Vail applied with the Department of Health and Rehabilitative Services for a permit. As of March, 1985, however, Mr. Vail had not received approval or disapproval of his application from the Department of Health and Rehabilitative Services. Mr. Vail, therefore, went to the Governor's office to seek help in getting a response. Shortly after contacting the Governor's office, the Department of Health and Rehabilitative Services informed Mr. Vail that he needed to obtain a permit from the Department and not from the Department of Health and Rehabilitative Services. On or about March 18, 1985, Mr. Vail filed an Application to Operate/Construct Industrial Wastewater Treatment and Disposal Systems (hereinafter referred to as the "Application"), with the Department. The Application was prepared by Brown and Associates Civil Engineers and Land Surveyors, Inc., Mr. Vail's engineering consultant. The Application was certified by Benjamin E. Brown, Professional Engineer. Mr. Vail signed the Application as "owner" and indicated that he was aware of the contents of the Application. In the Application, "St. George Inn Restaurant" is listed as the "Source Name." Under Part II, A of the Application, the applicant is asked to "[d]escribe the nature and extent of the project." In response to this request, the following answer was given: This project will provide a sewage disposal system for a one hundred and fifty (150) seat restaurant on St. George Island. Sizing of the septic tank system is based on 50 GPD/seat and secondary treatment will be provided by the design proposed. Under Part III, A of the Application, the applicant is asked to provide the following information and the following answers were given: Type of Industry Restaurant . . . . 3. Raw Materials and Chemicals Used Food preparation only. Normal Operation 12 hrs/day 7 days/week . . . . If operation is seasonal, explain This restaurant will be used the most during the summer months which corresponds with ocean/beach recreation & the tourist trade. Nowhere in the Application is it indicated that the permit applied for involved anything other than a restaurant. The Application gives no information from which the Department could have known that the proposed wastewater treatment and disposal system would handle waste from guest rooms or an apartment. In the Application Mr. Vail sought approval of a permit to construct and operate a wastewater treatment and disposal system to serve a 150 seat restaurant. In the Application Mr. Vail sought a permit for a system which was to have a design flow of 7,500 gallons per day based on 50 gallons, per seat, per day water usage. An employee of the Department wrote a memorandum dated May 5, 1985, recommending approval of the Application. The Department determined, however, that the size of the property on which the Inn was to be located was not large enough for the drain field necessary to accommodate a 150 seat restaurant. Therefore, Mr. Brown modified the proposed system and resubmitted application data indicating that a 108 seat restaurant would be constructed. The design flow of the new proposal was 2,160 gallons per day based on 20 gallons per seat per day. Mr. Brown had requested that the Department approve a system based upon the newly submitted design flow. The Department and Mr. Brown both agreed that this design flow was adequate; that it was reasonable to anticipate and provide for the treatment and disposal of a maximum of 2,160 gallons per day design flow. The effect of reducing the design flow and the number of seats was to allow a shortened drain field which could be accommodated by the size of the property the Inn was to be located on. On June 27, 1985, Mr. Vail arranged for a notice to be published in the Apalachicola Times. That notice provided, in pertinent part, the following: State of Florida Department of Environmental Regulation Notice of Proposed Agency Action on Permit Application The department gives notice of its intent to issue a permit to Jack Vail to construct a restaurant and on-site wastewater treatment and disposal system [sic] at Franklin Boulevard and Pine Avenue, St. George Island. The treatment consists of grease trap, septic tank, and sand filter followed by disposal into a drainfield. The project meets applicable standards and will not impair the designated use of the underlying ground water. There is no anticipated impact on surface waters or air quality. . . . . This notice was sent to Mr. Vail by the Department and he made arrangements for it to be published. Nowhere in the notice is it indicated that the system to be approved by the Department is for anything other than a restaurant. On July 11, 1985, less than four months after the Application was filed with the Department, the Department issued Permit Number DO19-101251 (hereinafter referred to as the "Permit"). In the cover letter sent with the Permit the Department indicated that the Permit allowed Mr. Vail "to construct and operate a 2,160 gallon per day, on-site wastewater treatment and disposal system serving St. George Inn Restaurant. . . ." The Department also indicates in the Permit that it is for the "St. George Inn Restaurant." The Permit also provides, in pertinent part, the following with regard to the purpose of the Permit: The above named applicant, hereinafter called Permittee, is hereby authorized to perform the work or operate the facility shown on the application and approved drawing(s), plans, and other documents attached hereto or on file with the department and made a part hereof and specifically described as follows: Construct and operate a 108 seat restaurant with an on-site wastewater treatment and disposal system. Wastewater flows shall be a maximum of 2,160 gallons per day generated by domestic facilities and kitchen wastes . . . Construction shall be in accordance with application dated March 18, 1985 and additional information submitted April 29, 1985, specifications and other supporting documents prepared by Brown and Associates and certified by Benjamin E. Brown, P.E. and submitted to the Department on June 5, June 17, and June 20, 1985. The Permit also contains the following "General Condition" number 2 and "Specific Condition" number 15: . . . . 2. This permit is valid only for the specific processes and operations applied for and indicated in the approved drawings and exhibits. Any unauthorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit may constitute grounds for revocation and enforcement action by the department. . . . . 15. The Department shall be notified and prior approval shall be obtained of any changes or revisions made during construction. . . . . The Permit provides the following with regard to the effect of the conditions of the Permit: The terms, conditions, requirements, limitations, and restrictions set forth herein are "Permit Conditions", and as such are binding upon the permittee and enforceable pursuant to the authority of sections 403.161, 403.727, or 403.859 through 403.861, Florida Statutes. The permittee is hereby placed on notice that the Department will review this permit periodically and may initiate enforcement action for any violation of the "Permit Conditions" by the permittee . . . . During the week after the Permit was issued, Mr. Vail obtained a building permit from Franklin County for the construction of the "inn." In February, 1986, after construction of the Inn had begun, Department inspectors went to the construction site of the Inn. The Permit authorized this inspection and other inspections carried out by the Department. The Department determined that the Inn being constructed by Mr. Vail included a restaurant, an apartment on the third floor of the Inn with two bathrooms, and eight guest rooms on the second floor, each containing a bathroom. This was the first time that the Department knew that Mr. Vail's facility was to include guest rooms and living quarters in addition to containing a 108 seat restaurant. In March of 1986, the Department sent a warning letter to Mr. Vail notifying him of the violation of the General Conditions of his Permit: the use of the approved system for the treatment and disposal of wastewater from the ten bathrooms in the guest rooms and the two bathrooms in the apartment in addition to the 108 seat restaurant. On April 1, 1986, Department personnel met with Mr. Vail and Mr. Brown. The Department reminded Mr. Vail and Mr. Brown that the Permit requested and approved by the Department was for a 108 seat restaurant only. The Department had not authorized a system which was to be used for a 108 seat restaurant and ten additional bathrooms. Pursuant to General Condition 14, the Department informed Mr. Vail that it needed an engineer's evaluation of the ability of the system which had been approved to handle the additional flow which could be expected from the additional ten bathrooms. By letter dated April 1, 1986, the Department memorialized the meeting and indicated that Mr. Vail could operate a 100 seat restaurant and the apartment during the interim. By letter dated May 8, 1986, Mr. Brown asked for additional time to submit the evaluation requested by the Department. The Department approved this request by letter dated May 14, 1986. By letter dated May 16, 1986, Mr. Brown submitted an engineering evaluation which proposed modifications to the approved system to handle the additional ten bathrooms. By letter dated June 13, 1986, the Department indicated that the evaluation was generally acceptable" but requested additional information. In January, 1987, before the additional information was submitted, Mr. Brown died in an airplane accident. No evidence was presented to explain why the information requested by the Department in June of 1986 had not been submitted before January, 1987. In March, 1987, the Department inspected Mr. Vail's facility again. In April, 1987, the Department informed Mr. Vail that the Department would take action to revoke the Permit. Before the Administrative Complaint was issued, the Department requested that certain information be provided on behalf of Mr. Vail by an engineer in an effort to resolve the dispute. Mr. Vail did not, however, obtain the services of an engineer. Instead, Mr. Vail sent the Department information purporting to show the amount of water which had been used at the Inn. That information failed to prove the ability of the system that the Department had approved to handle the maximum wastewater which could be expected from maximum use of the 108 seat restaurant and ten additional bathrooms. At best, the information submitted by Mr. Vail is partial proof that the system is capable of handling the wastewater that has been generated at the Inn for the period of time for which the information relates. No competent substantial proof has been submitted to indicate that the system is capable of handling the maximum wastewater flows which may be experienced or even that the system is adequately handling the current flow. All that has been proved is that there is no apparent problem with the system in handling the current flow. In September, 1987, the Department issued the Administrative Complaint. Pursuant to this Complaint, the Department has sought the revocation of the Permit and prescribed certain orders for corrective action. No application has been submitted by or on behalf of Mr. Vail to the Department to construct and operate a wastewater treatment facility designed to accommodate the sewage flows which may be generated by the Inn as it has been constructed. Although the Department of Health and Rehabilitative Services and other agencies were aware that the Inn includes a restaurant and guest rooms, the Department was never so informed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a Final Order requiring that Mr. Vail comply with all of the corrective orders, except Paragraph 18, contained in the Administrative Complaint. DONE and ORDERED this 11th day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NUMBER 87-4242 The parties have submitted proposed findings of fact. It has been noted below which Proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 Conclusion of law. 2 1. 3 6. 4 10. 5 12 and 13. 6 14. 7 15. 8 18. 9 19. 10 20. 11-12 16. 13 21. 14 23. 15 24. 16 25. 17 26. 18-19 27. 20 28. 21 29 22 Hereby accepted. Mr. Vail's Proposed Findings of Fact 1A 15. Not supported by the weight of the evidence and irrelevant. Hearsay and irrelevant. Although technically true, this is not the issue in this case. The evidence did not prove that the system "can in actuality handle three times the amount permitted." Not supported by the weight of the evidence and irrelevant. 2A Not supported be the weight of the evidence. Exhibit 6 indicates that the Department was aware that the Inn included "hotel rooms" but not the number. Irrelevant. The evidence did not prove that the Department was aware of the scope of the project. Not supported by the weight of the evidence. 3A Irrelevant. Not supported by the weight of the evidence and irrelevant. Even if this were true, the fact remains that the Department was unaware that the Inn included guest rooms or an apartment. Irrelevant. 4A-B Irrelevant. 5A-B Irrelevant. 6A 2-4. B 5. 6 and 11. Not supported by the weight of the evidence. See 12. 13 and 15. Not supported by the weight of the evidence and irrelevant. Not supported by the weight of the evidence. 7A-C Not supported by the weight of the evidence and irrelevant. 8A-D Not supported by the weight of the evidence and irrelevant. 9A-B Not supported by the weight of the evidence and irrelevant. 10-12 Not supported by the weight of the evidence and irrelevant. COPIES FURNISHED: Richard L. Windsor, Esquire State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mr. John Vail St. George Inn Post Office Box 222 St. George Island, Florida 32328 Dale Twachtmann, Secretary State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether Respondent, a professional engineer, committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a professional engineer in the State of Florida, holding license number 0857461. The two types of fire sprinkler systems involved in this matter are a tree type system and a loop system. In a tree type system, water travels to the sprinkler head from the main pipe and through the pipes that branch off from the main line to the head so that the sprinkler heads are served by one pipe. A looped system is more sophisticated and makes more efficient use of the principles of hydraulics. In a looped system, as the name suggests, the main line is looped so that sprinkler heads in the remote areas are served by more than one pipe. The internal diameter of the pipes to be used for a tree system can be determined through either the "pipe sizing method" or through the use of hydraulic calculations. The pipe sizing method essentially determines the internal diameter of the pipe by counting the number of sprinkler heads to be served by the various pipes and by making reference to a sizing schedule. The internal diameter of the pipes to be used for a looped system can be determined only through the use of hydraulic calculations. Hydraulic calculations employ the use of formulas which may be calculated manually or by computer. The vast majority of hydraulic calculations are performed by computer. Among the data that must be inputted in performing hydraulic calculations are the correct lengths of the pipes. Plans for fire sprinkler systems are required to be signed and sealed by a professional engineer. No special training or experience is required for a professional engineer to be qualified to sign and seal such plans. THE BLUFF SQUARE PROJECT The Bluff Square project is a commercial center located in the Town of Jupiter, Florida. Pertinent to this proceeding, a portion of that commercial center was to be remodeled so that a restaurant could occupy the demised premises. Wiggington Fire Sprinklers, Inc. (Wiggington), a contracting firm specializing in the sale and installation of fire sprinkler systems, contracted to install the fire sprinkler system for the new restaurant. On November 15, 1988, Jerry Morris, a sales representative for Wiggington drew a set of plans for a fire sprinkler system for the area of the Bluff Square project that was to be occupied by the restaurant. Mr. Morris had approximately ten years of experience in designing fire sprinkler systems, but he could not sign and seal the plans because he was not a professional engineer. Wiggington hired Respondent as a consulting engineer to review the plans and to sign and seal them. Respondent, whose office was six miles from Wiggington's office, did not directly assist or supervise Mr. Morris during the time Mr. Morris was drafting the fire sprinkler system for the Bluff Square project. After Mr. Morris completed the plans, he submitted the plans to Respondent for his review and for any changes that Respondent deemed appropriate. Mr. Morris considered that his work was subject to Respondent's ultimate direction and supervision, and he would have made any changes recommended by Respondent. Mr. Morris followed Wiggington's standard procedure in preparing and completing the plans and thereafter securing the review of the plans by a professional engineer prior to the professional engineer signing and sealing the plans. There was no persuasive showing in this case that acceptable engineering practices required that Respondent provide over the shoulder supervision while Mr. Morris was preparing drafts of the sprinkler system. These plans were described as being a relative simple tree type system layout by Henry Gaggstatter, a witness for Petitioner who was accepted as an expert witness in the field of professional engineering as it pertains to fire sprinkler systems. Although Mr. Gaggstatter was of the opinion that such over the shoulder supervision is required, this opinion is rejected as being contrary to the greater weight of the evidence. There was no evidence as to the amount of time Respondent expended in the review of these plans, other than that Respondent signed and sealed the plans on November 15, 1988, the day that the plans had been submitted to him by Mr. Morris. Respondent signed and sealed the plans that had been submitted to him by Mr. Morris without making any substantial changes. Mr. Gaggstatter was unaware of the steps Respondent followed in his review, and it is clear that his testimony was based, in part, on projects of considerable more complexity than that involved in the Bluff Square Project. After the plans for the Bluff Square project were signed and sealed by Respondent, they were submitted for review to the Town of Jupiter, Florida, on November 15, 1988. The Town of Jupiter did not have a fire inspector and had contracted with the Palm Beach County Fire Department (PBCFD) to review these type plans. On December 2, 1988, a reviewer for the PBCFD reviewed and approved the plans. Thereafter, a fire inspector for PBCFD inspected the premises where the sprinkler system was to be installed and observed that the contractor had dropped soffits as part of the remodeling of the premises for the restaurant that was to take occupancy. These soffits were not reflected on the plans that Respondent had signed and sealed. Thereafter, Michael Manning, a reviewer for PBCFD visited the premises and determined that the soffits would obstruct the discharge of water from the sprinkler heads in proximity to the soffits, resulting in the impairment of the system. After this determination was made, the plans signed and sealed by Respondent on November 15, 1988, were rejected by the Town of Jupiter. Mr. Manning contacted Mr. Morris and advised that he would require the submission of revised plans. The revisions required by Mr. Manning included the addition of sprinkler heads in the walk-in cooler, the addition of sprinkler heads in the areas obstructed by the soffits, and the submission of hydraulic calculations, to include hydraulic reference points, to verify that the designed system could accommodate the additional sprinkler heads. Jeff Gant, a designer at Wiggington, revised the plans to comply with the requests made by Mr. Manning. The revised plans were signed and sealed by Robert Weinstein, another professional engineer employed by Wiggington, and approved by PBCFD on December 13, 1988. The plans signed and sealed by Respondent for the Buff Square were acceptable except for the problem caused by the addition of the soffits. There was no evidence that Respondent knew, or should have known, that soffits had been added during the remodeling of that portion of the Bluff Square project. The addition of the sprinkler heads in the walk-in cooler was required by Mr. Manning and incorporated in the revised plan without question by Wiggington. The record does not establish, however, that Respondent was negligent in failing to include the sprinkler heads in the walk-in cooler on the initial plan since sprinkler heads in a walk-in cooler are required by some plan reviewers, but not others. THE OLDHAM PROJECT Farmer & Irwin Corporation, a mechanical contracting firm that has a division devoted to fire sprinkler systems, contracted to design and construct a fire sprinkler system for a project located in the Town of Jupiter, Florida, referred to as the Oldham project. Frank Harper is the Fire Protection Project Manager at Farmer & Irwin, and has held this position for the past ten years. Mr. Harper has an associate degree in structural design, has two years of formal training in architectural design, and has completed various courses in fire sprinkler design and product calculations. Mr. Harper prepared the plans and did the computer generated calculations for the Oldham project fire sprinkler system without the assistance of Respondent. Respondent has worked for Farmer & Irwin for approximately fifteen years as a consulting engineer. Among Respondent's duties was the review of fire sprinkler plans prepared by the staff of Farmer & Irwin to determine that the plans comport with pertinent codes and engineering principles. Respondent does not typically do the initial design work or the initial calculations for a system. The proposed final draft of the plans and the calculations are typically prepared by the staff of Farmer & Irwin and submitted to Respondent's review either at Respondent's office or at the Farmer & Irwin offices. Consistent with the usual practice, Mr. Harper submitted the Oldham project plans, including the supporting calculations, to Respondent for his review. Respondent signed and sealed the Oldham project plans on March 27, 1989, without making any revisions in either the plans or the calculations. There was no persuasive showing in this case that acceptable engineering practices required that Respondent provide over the shoulder supervision while Mr. Harper was preparing drafts of the sprinkler system. These plans were described as being a relative simple loop system layout by Mr. Gaggstatter. Although Mr. Gaggstatter was of the opinion that such over the shoulder supervision is required, this opinion is rejected as being contrary to the greater weight of the evidence. There was no evidence as to the amount of time Respondent expended in the review of these plans. Mr. Gaggstatter was unaware of the steps Respondent followed in his review, and it is clear that his testimony was based, in part, on projects of considerable more complexity than that involved in the Oldham Project. The Oldham project plans were submitted to the Town of Jupiter for review on March 29, 1989, and were subsequently reviewed by Michael Manning. Mr. Manning discovered in his review that a significant error had been made in the hydraulic calculations. The hydraulic calculations were based on erroneous data, which occurred either as the result of an error made by Mr. Harper while inputting data or as a result of an error made by the computer in processing the data. The hydraulic calculations were performed based on the erroneous data that the distance between node points 27 and 28 (pipe No. 27) was 3.3 feet and on the erroneous data that the distance between node points 25 and 30 (pipe No. 30) was 3.3 feet. The correct distance between node points 27 and 28 was approximately 330 feet and, consequently, the length of the pipe No. 27 was required to be approximately 330 feet in length instead of 3.3 feet in length. Additionally the correct distance between node points 25 and 30 was approximately 330 feet and the length of pipe No. 30 was required to be approximately 330 feet in length instead of 3.3 feet in length. The distances between these node points and the lengths of these pipes were accurately reflected by the plans. The computation, using the erroneous data, resulted in the design of the system using pipe with an internal diameter of two and one half inches. The computation, using the correct length for pipes No. 27 and 30 revealed that the system required the use of pipe with an internal diameter of three inches. There was a conflict in the evidence as to whether Respondent was negligent in failing to detect the error that was contained in the hydraulic calculations. For the reasons discussed in the Conclusions of Law portion of this Recommended Order, it is concluded that it is unnecessary to resolve this conflict. 1/ After detecting the error, Mr. Manning talked by telephone with Mr. Harper about the error. The initial plans were revised by Mr. Harper using three inch pipe instead of 2 1/2 inch pipe. On April 3, 1989, Respondent reviewed the revised plans and signed and sealed them. The revised plans were thereafter submitted to the Town of Jupiter and approved. The system would not have performed to its capability had 2 1/2 inch pipe been used. The allegations pertinent to Respondent's negligence relating to the Oldham project are found in Count Two, paragraphs 7 - 9, of the Administrative Complaint as follows: On or about March 27, 1989 and April 3, 1989, Respondent signed and sealed a set of fire sprinkler plans for a project known as Oldham located at Commerce Lane, Pennock Park. Said plans were negligent in that they contained pipe lengths which were insufficient. Based on the foregoing, Respondent violated Section 471.033(1)(g), Florida Statutes, by displaying negligence in the practice of engineering. The pipe lengths reflected on the plans for the Oldham project were appropriate. However, the internal diameter of the pipes were undersized because the lengths of two of the pipes were erroneously inputted in computing the hydraulic requirements for the system. Mr. Gaggstatter was of the opinion, based on his review of the project plans for the Bluff Square project and of the Oldham project, that Respondent does not have sufficient experience or education to design a fire sprinkler system. No special training or experienced is required for a professional engineer to review, sign, and seal fire sprinkler systems. Respondent, as a professional engineer, possesses the necessary license to perform such work and he has done such work for at least fifteen years. The opinion of Mr. Gaggstatter is, in this regard, rejected as being contrary to the greater weight of the evidence. On July 16, 1990, a Final Order was entered in Petitioner's Case Nos. 0077912 & 007892 which placed Respondent on probation for a period of one year pursuant to the terms and conditions of a Settlement Stipulation entered into by the parties in settlement of those two cases. There is no allegation that the acts alleged in this proceeding would constitute a violation of the terms of that probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses all counts of the Administrative Complaint that was filed against Respondent in this proceeding. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of August, 1991. 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 22nd day of August, 1991.
Findings Of Fact Arnold J. Pergament, an employee of Petitioner for almost 20 years, has been inspecting rooming houses licensed by Petitioner in Belle Glade for almost all of that time. For many years, he has inspected Rader's Rooming House at 657 Southwest Avenue E in Belle Glade, which consists of two buildings owned by Respondent, to whom Petitioner has issued license No. 60-00737H, covering the premises. A two-storied stucco-on-wood building contains six to eight separately rented rooms and a frame building with a single story is divided into about a dozen units. Their exterior walls are weather-beaten and deteriorated; there is evidence of wood rot. On August 13, 1980, Mr. Pergament, in conducting a routine inspection, found only two fire extinguishers, not the three he testified were required for Respondent's premises. There was no fire extinguisher on the ground floor of the stucco-on-wood building. There were no light bulbs in at least some of the public bathrooms; in all, there were four bathrooms, one per building for each sex. The bathrooms needed cleaning and some had torn or missing screens. Trash and garbage had accumulated under the buildings and on the grounds. A stair railing consisted of a pipe supported by dangerously infrequent uprights. All these items and more Mr. Pergament noted on a public lodging inspection record. Petitioner's Exhibit No. 1. After marking it to indicate that it was a warning, he personally delivered a carbon copy of the inspection record to Respondent at his office. On the form, Respondent was advised that minor violations in the operation of his establishment were to be corrected by October 13, 1980. Petitioner's Exhibit No. 1. Mr. Pergament returned to Rader's Rooming House on October 15, 1980 to find trash and garbage, including broken glass, on the grounds and under the buildings, an unaltered stair railing, and no fire extinguisher on the ground floor of the stucco building. In the bathroom, light bulbs were missing, windows were broken, screens were torn and missing; and no hot water was available in the sinks or showers. He noted these matters in a contemporaneous reinspection report, Petitioner's Exhibit No. 2, a copy of which was mailed to Respondent. On November 25, 1980, Mr. Pergament returned and reinspected. A hall was being painted but the matters specified in Petitioner's Exhibit No. 2 were substantially unchanged. On the morning of the final hearing, Mr. Pergament and James R. Gallagher inspected Rader's Rooming House and found a new stair railing that Mr. Pergament testified was satisfactory. A third fire extinguisher had been installed. Although it lacked an "approved" tag, it had a tag with a date on it. There was hot water. Fluorescent light bulbs in the bathroom were missing and bathroom windows were broken. The ground were littered with trash of apparently recent origin. Johnny Marchane Lewis is one of four men who regularly work for respondent, who owns other rental property in addition to Rader's Rooming House. Mr. Lewis replaced some windows and screens last summer at Rader's Rooming House, again two months later, and again in March of 1981. The week before the final hearing, he discovered a missing screen, which he replaced, but no other problems with screens or broken windows. On the Saturday before the final hearing, Tommy Lee Williams, another of Respondent's employees, cleared the grounds at Rader's Rooming House, but he testified that garbage might still remain under the buildings. Five months previously, Respondent's men had cleared under the buildings. Somebody rakes "the yard" every other day. Mr. Williams fixed the hot water heater twice, once by replacing the heating element and once by replacing a switch. Although he does not live there, Mr. Williams visits Rader's Rooming House more than once a week. Mr. Pergament testified that he had never had a problem with Respondent's trying to make repairs to any of his properties, and Respondent testified that he tried to make all repairs promptly and would have been more prompt about seeing to the stair railing, except that he misunderstood which railing was meant in Petitioner's Exhibit No. 1. As Respondent conceded, there was no reasonable basis for his misunderstanding, but he did take steps to remedy the situation when he understood the problem.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner impose a fine against Respondent in the amount of $100.00. DONE and ENTERED this 12th day of May, 1981, in Tallahassee, Florida. COPIES FURNISHED: Mary Jo M. Gallay, Esquire 725 South Bronough Street Tallahassee, FL 32301 Milton Rader Rader's Rooming House 657 Southwest Avenue E Belle Glade, FL 33430 Norman J. Hayes 538 State Office Building 1350 Northwest 12th Avenue Miami, FL 33136 Lewis Reif Robert Hayes Gore Building Room 104 201 West Broward Boulevard Fort Lauderdale, FL 33301 ROBERT T. BENTON, II, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1981.
The Issue The issue involved herein is whether or not the Respondent 2/ is guilty of violations set forth hereinafter in detail as stated in the Second Amended Notice to Show Cause filed by Petitioner herein. If so, the secondary issue is what penalty, if any, should be assessed for such violations. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant:
Findings Of Fact Robert C. Beiter, Sr. is the trustee and legal owner of the subject premises. On July 24, 1981, Petitioner, through its sanitarian, Richard Bragg, made an inspection of the subject premises situated at 610 Northwest Seventh Avenue, Pompano Beach, Florida. The premises is a public lodging establishment and is licensed by the Division of Hotels and Restaurants under license no. 16- 345 OH. During the inspection by Mr. Bragg, the following was observed: Fire extinguishers were overdue for service as indicated by the pressure gauges thereon or by the lack of service tags. Additionally, fire extinguishers were not kept or maintained on each floor at minimum distances of 75 feet apart. The general condition of the building revealed that paint was peeling from the walls, windows and doors were broken, the roof was leaking and there were missing window screens. The premises needed extermination for reaches and rodents. Public lighting in the stairways and walkways were not properly maintained in that the light fixtures were either not working or bulbs were missing. Covers were missing from various electrical outlets. Outside garbage dumpsters were not of sufficient size and placement for the 62 units in the premises, all of which had kitchen and cooking facilities. (See Petitioner's Exhibit No. 1) Inspector Bragg made a second inspection of the subject premises in early September, 1981, and found no compliance with the previous inspections as cited in the July 24, 1981 report. A third visit was made by Mr. Bragg on October 28, 1981, and he found the premises in the same condition with the exception that the public lighting in the stairways was operable and found to be in compliance. Subsequent visits were made by Mr. Bragg on November 17, 1981, and approximately one year later on December 13, 1982, at which time he found the same conditions existed as his original inspection on July 24, 1981, with the exception that some painting had been done. (Petitioner's Exhibits 2, 3, 4 and 5). Respondent's Position Respondent submitted extensive documentary evidence to the effect that substantial monies had been expended to repair or otherwise maintain the subject premises. Most of the documents submitted were for bills subsequent to the Petitioner's initial inspection on July 24, 1981. An observation of the hills submitted indicate that repairs were made to windows, screens, plumbing and roofing. Harry A. Wright served as the office manager charged with the management of the subject property during 1981. Fire extinguishers on the subject premises are routinely inspected and replaced on an annual basis. Mr. Wright concedes that there are leaks in several of the units on the premises. However, a number of problems relating to the plumbing on the premises are caused by the high water pressure which forces leaks in the apartments. Tenants relay their problems to the management by a telephone call to the management company. The dumpsters on the premises are emptied twice per week. The Respondent uses a maintenance crew to place heavy items in the dumpster on the premises. Respondent acknowledges and admits to a problem with the outside lighting, citing as cause, tenants breaking the bulbs or pilferage of lighting fixtures for their apartments. Respondent has made efforts to correct the most pressing problems initially, and efforts are ongoing to correct the remaining problems. (Testimony of Harry A. Wright).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent be assessed a civil penalty of $100 each for the six conditions found herein to be violations of the rules of the Division of Hotels and Restaurants. The total of these fines, $600, shall be paid within thirty (30) days of the date of the Petitioner's Final Order with funds made payable to the Treasurer of the State of Florida for credit to the Hotel and Restaurant Trust Fund. It is further RECOMMENDED that if said fine is not paid within such period, the Division of Hotels and Restaurants' license No. 16-34 SOB for the Pinewood International Apartments located at 610 Northeast Seventh Avenue, Pompano Beach, Florida, be suspended for twelve (12) months, or until reinstated for good cause shown by the Division of Hotels and Restaurants. 3/ RECOMMENDED this 14th day of July, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1983.
Findings Of Fact The Respondent, Mary Anne Shiell, is a licensed real estate salesman holding license No. 0044116. The Petitioner, the Department of Professional Regulation, Board of Real Estate, is an agency of the State of Florida, having jurisdiction over licensing and the regulation of licensure status of real estate salesmen. This dispute arose out of a business transaction involving the showing by the Respondent and others of a piece of residential real property to the complaining witnesses, William G. and Geraldine Fellows (son and mother). On March 6, 1979, the Respondent, Juanda Marsh and Skip Mark were employed as real estate salesmen by Mannix, Inc. On that day Juanda Marsh, while attempting to find residential property listings, became aware of a home owned by Paul E. Phipps and his wife which was for sale. After talking to the owners of the house, Mr. and Mrs. Phipps, Ms. Marsh went back to the Mannix realty office where she spoke to the Respondent and advised the Respondent of the Phippses' home being for sale. Ms. Marsh then met the complaining witnesses, the Fellowses, and took them to meet Mr. Phipps at the home in question. This was late in the afternoon of March 6, 1979, and the electricity had been turned off in the home. Mr. Phipps was then in the process of wallpapering and painting the dwelling, which he used as rental property. After leaving the home that evening, the complainants decided to offer the Phippses $37,000 for the property. The complainants and Ms. Marsh prepared the contract, which was executed that evening by the complainants. The sellers executed the contract the following day, and the transaction was closed March 15, 1979. The complainants did not take possession of the premises until sometime in April of 1979. On March 6, 1979, when the complainants first viewed the premises, the Respondent, Marsh, Mark, as well as Phipps, the seller, were present. The complainant addressed the group of people generally, asking what kind of condition the roof was in. All concerned looked toward Mr. Phipps; he nodded his head, assenting that the roof was in good condition. There was a general agreement that the house appeared to be in good condition. Neither the Respondent nor Ms. Marsh nor Skip Mark had any additional knowledge regarding the condition of the house other than that which they saw that day in the presence of the complainants. All were seeing it for the first time. The Respondent did not give any assurance to the complainants that the roof was in good condition; she relied, as did all present, on the assurance given by Mr. Phipps at the time. Immediately prior to the drafting of the contract on that evening, the complainants were advised by the Respondent that if an "as is" clause were placed in the contract it might induce the seller to accept the lower offer which the complainants had in mind, and the complainants agreed. Accordingly, Ms. Marsh inserted in the contract the "as is" clause on the face of the contract, meaning that the purchasers, the Fellowses, would buy the property in the condition it was in at the time for the price they were offering and which, ultimately, the owner accepted. Prior to the closing of the transaction, the Fellowses called the Respondent by telephone to ascertain that all checks had been made pursuant to the Buyer Protection Plan and the Respondent advised that she thought everything was in good working condition, but she would attempt to inspect the premises to ascertain for sure if all equipment and appliances were working. The Respondent attempted to make an inspection of the premises a day or two before closing and there was no electricity or water turned on so that the various appliances could not be tested. She informed the complainants of this, but they said they could not afford to have the utilities turned on. The Respondent then called Mr. Phipps and explained the situation to him. She asked if he was in a position to tell the complainants what condition everything was in and he told her that so far as he knew the only thing in the house that might not function properly was the dishwasher. Mr. Phipps told the Respondent that the air conditioner functioned properly and indeed the vents were in the walls or ceiling and appeared to be in order. The Respondent looked in the oven door of the range in the kitchen and the oven element appeared to be in good condition, although it was impossible to test it because the utilities were not on. The Respondent removed the kitchen range elements and visually inspected them. Again, no electricity was available to test them after this fact had been disclosed to the complainants. Upon taking possession of the property in April, 1979, the complainants discovered certain defects consisting of: a leaky roof; duct work missing from the air conditioning system; the oven was inoperable; the range had several inoperative elements; the plumbing in the toilets leaked; the hot water heater was inoperable; and the disposal was not connected. Witness Ralph Porch inspected the air conditioning system and found that no duct work existed in the hall ceiling to connect the air conditioning system to the mechanical unit. He did not try to turn on the air conditioner. He did recall seeing the air supply grills and stated that the only way one could find out that there were no ducts in place was to climb up in the attic and look; that it was not a defect observable from the normal living areas of the house. The Respondent, in addition to inspecting the kitchen appliances, inspected but saw no evidence of a mineral deposit or other symptoms of leaks around the toilets. Mr. Phipps had represented that the hot water heater was not very old and so the Respondent had no reason to believe that the hot water heater was inoperable. She looked beneath the sink to examine the garbage disposal and did not notice any pipes or electrical wiring absent. The complainants maintained that the Respondent represented to them that the electricity had been turned on for one day and that all the appliances had been checked out and were in working order. The Hearing Officer finds this testimony not credible inasmuch as the Respondent testified that she had never made such a representation, but rather had visually inspected them to the best of her ability with no electricity available to actually test the functioning of the appliances, which testimony was corroborated by the testimony of Bernice Shackleford from the Orlando Utilities Commission, who established that the electricity was turned off March 5, 1979, the day before the property was first shown to the Fellowses and to the Respondent. Ms. Shackleford also testified that the utilities were inactive continuously until April 20, 1979, long after the closing and long after the alleged inspection of the appliances took place. The undersigned thus finds that the Respondent never represented to the Fellowses that the electricity had been turned on for a day, nor that she had thus tested the appliances and found them all in working order. The Respondent did not make any statement to the effect that the roof did or did not leak. A reasonable inspection of the residence would not disclose that the air conditioning vents or air supply grills were not connected by ducts to the mechanical portion of the air conditioning system. Subsequent to their taking possession of the house and initially complaining to the Respondent and Mannix, Inc., concerning the defects in the dwelling, the complainants filed a civil action regarding their complaints. The complainants sued the Phippses, who were the sellers; Juanda Marsh; Mannix, Inc.; the Respondent; and Electronic Realty Associates, Inc. Although the complainants denied settlement of the case, in their testimony in the instant proceeding, the civil litigation was in fact dismissed by their attorney (see Notice of Voluntary Dismissal; Respondent's Exhibit A). In that civil action, only Juanda Marsh and Skip Mark were alleged to have made false representations to the complainants. In summary, the Respondent was not shown to have had any knowledge regarding the condition of the premises which she failed to reveal to the complainants and sometime after the controversy arose, the Respondent offered, on behalf of Mannix, Inc., to purchase the property back from the complainants for what they had paid for it, but this offer was rejected.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore, RECOMMENDED that the Administrative Complaint filed herein against Mary Anne Shiell be dismissed. DONE AND ENTERED this 29th day of July, 1982, at Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 29th day of July, 1982. COPIES FURNISHED: Joseph Doherty, Esquire 3220 Chelsea Street Orlando, Florida 32803 Charles N. Prather, Esquire 17 South Lake Avenue, Suite 103 Orlando, Florida 32801 Frederick H. Wilsen, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues are (1) whether engaging in air conditioning contracting regulated by the Florida Electrical Contractors Licensing Board pursuant to Section 489.500 et seq. Part II, Florida Statutes, constitutes exceeding the scope of one's license as an electrical contractor, (2) whether performing air conditioning contracting in the name of "Dixon's Heating and Air Conditioning" constitutes operating in a name other than the name his electrical contracting license is issued in, contrary to Subsection 489.533(1)(l), and (3) whether Respondent willfully violated the building codes by venting the heater improperly, failing to get a permit and get work inspected.
Findings Of Fact Notice of hearing was given to Respondent at Route 2, Box 595, Yulee, Florida 32097. Arnold Dixon is and has been at all times material to this case a registered electrical contractor, license number ER0004417. (Pet. Ex. 1 & 2) He has maintained his address of record as Route 2, Box 595, Yulee, Florida 32097. (T-Pg. 6) He has held such license since 1976. (Pet. Ex. 1 & 2) Arnold Dixon does not hold a license, a state registration or certification to engage in contracting as a heating or air conditioning contractor. (Pet. Ex. 4 & 6) Arnold Dixon does hold a Nassau County Occupational License as an electrical contractor and as a heating and air conditioning contractor. No check of local records was conducted to see if he had a local license as an air conditioning contractor. (T-Pg. 22) On or about June 1985, the Respondent's company, Dixon's Heating and Air Conditioning, contracted to install an air conditioning and heating unit at the home of John Williams for a contract price of $1985. (Pet. Ex. 5 and T-Pgs. 10 & 11) The work on this contract was done by David Everett, who negotiated the contract. The Respondent's company, Dixon's Heating and Air Conditioning, did not obtain a permit to perform the work at the Williams' residence. Inspections on the Williams' job were not called for by Dixon's Heating and Air Conditioning. Permits and inspections were required by the applicable building code. (T-Pgs. 25 & 26) Entering into a contract to perform air conditioning and heating work and performing such work is air conditioning contracting, which is regulated under Part I, Chapter 489, Florida Statutes. After installation by Dixon's Hearing and Air Conditioning, the Williams' heating system generated carbon monoxide when operating because there was insufficient fresh air being provided to the unit. Because the air intake was in a closet which restricted the air supply to the hot air handling system, the air handling unit sucked fumes from the exhaust side of the unit back through the unit's combustion chamber and circulated it through the house. The longer the unit ran, the more debris was trapped in the louvered door of the closet and the more combustion gases were pulled through the combustion chamber and distributed through the house by the air handling unit. (T-Pg. 34) According to the manufacturer's representative, the hot air return is required to be ducted into the unit. In this case, the return air was pulled from inside a closet which had louvered doors. No duct was used and this installation was not in accordance with the manufacturer's instructions. Although the unit as installed was unsafe and had the potential to kill, no evidence was received that failure to install the unit in accordance with the manufacturer's instructions was a violation of local building code. (T-Pgs. 34- 38) Dixon's Heating and Air Conditioning did not hold itself out to be and was not engaged in electrical contracting in fulfilling the Williams' contract. Dixon's Heating and Air Conditioning did hold itself out to be an air conditioning contractor and the work performed in fulfilling the Williams' contract was air conditioning contracting.
