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 issue in this case is whether Petitioner is entitled to a passing grade on his examination for certification as an electrical contractor.
Findings Of Fact Petitioner took the electrical and alarm system contractor examination in January, 1989. Petitioner failed the examination. Petitioner timely challenged one question of relevance. The question that Petitioner challenges is question 34. If he were to receive a passing grade on this question or if the question were discarded, Petitioner would pass the examination. The challenged question is: All cut ends of rigid nonmetallic conduits shall be inside and outside to remove rough edges. trimmed reamed shaped sanded Petitioner answered "(B)." The answer for which Respondent gave credit is "(A)." The National Electrical Code describes the finishing processes for rigid nonmetallic conduit and rigid metal conduit as follows: Section 347-5. Trimming. All cut ends shall be trimmed inside and outside to remove rough edges. Section 346-7(a). Reamed. All cut ends of conduits shall be reamed or otherwise finished to remove rough edges. The National Electrical Code also uses the phrase "reamed or otherwise finished" with respect to intermediate metal conduit and electrical metallic tubing. Sections 345-8 and 348- 11. The first article of the National Electrical Code is devoted to definitions. Under Article 100, the scope of the definitions article is explained as follows: Scope. Only definitions of terms peculiar to and essential to the proper use of this Code are included. In general, only those terms used in two or more articles are defined in Article 100. . . . Part A of this article contains definitions intended to apply wherever the terms are used throughout this Coded. . . Article 100 contains no definition of "trim" or "ream," although the term "ream" is used in two or more articles: namely, Articles 345, 346, and 348. The term "ream" is the word commonly used in the relevant industry to describe the process by which a person eliminates the rough edges on the cut end of a rigid; nonmetallic conduit. The term "ream" is so used by, among others, practicing professional electrical and alarm system contractors. The term "ream" is also so used by manufacturers of "conduit reamers," which are packaged and labelled under that name. These "conduit reamers" are obviously designed for use with PVC and other rigid nonmetallic conduit. By contrast, the term "trim" is rarely used to describe this deburring process.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation enter a Final Order assigning Petitioner a passing grade on the January, 1989, electrical and alarm systems contractor' s examination. ENTERED this 26th day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE, Hearing Officer Division of Administrative Hearings The DeSoto 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26 day of February, 1990. COPIES FURNISHED: Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Robert S. Hayes 437 W. Vine Street Kissimmee, FL 34741 Jack L. McRay, Senior Attorney Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Pat Ard, Executive Director Electrical Contractors Licensing Board Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent William C. Widner has been with the City of Clearwater Fire Department for 21 years. For the past ten years, he has been assigned to Engine 48 as a fire lieutenant. His record is free from any type of disciplinary action. When a call is received concerning a medical emergency, it is proper to dispatch both a rescue unit and a fire engine to the scene. The standard operating procedure for emergency calls for fire vehicles is that the time to clear the station should not exceed 45 seconds. If there are questions concerning the dispatch, the officer in charge is to contact the dispatcher while in route to the scene of the emergency and make inquiry at that time. Also, a lieutenant, by himself, cannot change, modify or refuse to respond to a dispatch. Only a captain or the dispatcher can change the required response, or, another unit can announce that they are closer to the scene and will respond. The average response time between dispatch and arrival at the scene is four minutes. When a dispatch is given, a grid number for the destination is announced. All fire engines are equipped with map books demonstrating the location of the scene in relationship to the grid number given. On August 5, 1985, at approximately 2050 hours, the Clearwater Police Department Communications Center received an emergency call reporting a subject having a heart attack at 2720 Morningside Drive. Safety Harbor Rescue 52 and an ambulance were dispatched by telephone. At approximately 2055 hours, Engine 48 was radio dispatched to 2720 Morningside Drive. Respondent advised by radio that Engine 48 was responding to the call. Approximately 22 seconds after receiving the dispatch and 14 seconds after initially responding to the dispatch, respondent Widner telephoned the dispatcher and advised him that 2720 Morningside Drive was Engine 49's territory. Respondent did offer to go, however. The dispatcher stated that "this was a screwed up mess," but advised respondent that the computer recommended Engine 48. Respondent replied that he should go if Engine 49 was out. After further conversation, the dispatcher stated, "it made sense to me that 49 would go but it said 48." When respondent inquired as to who was to go, the dispatcher said "Oh hell, I might as well page somebody else." This conversation between the respondent and the dispatcher lasted 43 seconds and concluded 1 minute, 9 seconds from the end of the original dispatch. The dispatcher then radio-dispatched Engine 49 to 2720 Morningside Drive. Engine 49 advised that it was responding at approximately 2057 hours, 38 seconds, or two minutes, 22 seconds after the original dispatch was given to Engine 48. After speaking with the dispatcher, respondent and his superior officer, Captain Evans, checked the map for the 2720 Morningside Drive address. Upon learning that that address was, indeed, within Engine 48's territory, respondent and his crew immediately got in the truck and left the station. Captain Evans notified the dispatcher at 2059 hours that Engine 48 was responding to the call. When respondent arrived at the scene, Engine 49 and the rescue unit were already there. He attempted to radio in his arrival as soon as he got there, but the air waves were busy. He announced his arrival on his portable unit as he was walking up to the house. The evidence does not conclusively establish the exact time that respondent's arrival on the scene was reported to the dispatcher. Engine 49 did report its arrival before Engine 48's arrival was reported. Based upon the totality of the evidence, it is found that between 7 1/2 and 8 1/4 minutes elapsed between the time of the original dispatch to Engine 48 and the time of Engine 48's arrival at the scene. There are two Morningside Drives in the City of Clearwater. The residence located at 2720 Morningside Drive is within Engine 48's response zone, and is located 2.1 miles from Engine 48 and 3.0 miles from Engine 49. The other Morningside Drive is located in Morningside Estates and is within the response zone of Engine 49. When respondent first received the dispatch, he thought the address was located within the Morningside Estates subdivision. Upon leaving the station, an immediate right or left turn is required, dependent upon which Morningside Drive is being sought. Respondent's Captain Evans immediately conducted a fact finding session upon respondent's return to the station, and determined that respondent had failed to follow a direct order. A follow-up interview was conducted. It was determined that, upon receiving the initial dispatch, respondent should have proceeded directly to the engine and looked at the grid map, should have cleared the station within 45 seconds in accordance with standard operating procedures, should have reached the scene within 4 to 4.5 minutes and that, due to respondent's phone conversation with the dispatcher, two fire engines were sent on a call that required only one engine. Based upon those findings, the Fire Department concluded that respondent's productivity, workmanship, and efficiency with regard to the emergency response were not up to required standards for performance, and a two-day suspension was requested. The request for a two-day suspension was referred to the Affirmative Action Office, which conducts a fairness review of proposed disciplinary action and makes a recommendation to the City Manager, who takes final disciplinary action. After interviewing respondent concerning the August 5th incident, the Affirmative Action Office initially concluded that a two-day suspension was very harsh under the circumstances and recommended a letter of reprimand instead. Thereafter, Assistant Fire Chief Meyer contacted the Affirmative Action Office and provided the investigator with further information. The investigator was informed by Assistant Chief Meyer that respondent had been at that station for 10 years and should have been familiar with the addresses within his territory. He further advised her that the computer system utilized to determine which station should receive a particular call had been in effect for two years and discrepancies had been corrected. Meyer informed the investigator that lieutenants had been instructed not to argue with the dispatcher, to immediately respond to a call and that the proper response time in this instance should have been 4 minutes. This information from Meyer caused the Affirmative Action Office to amend its recommendation for disciplinary action to a suspension for 11.2 hours. The City Manager followed that recommendation and gave Notice of Suspension in accordance therewith. The Notice listed the three charges referenced in the Introduction as grounds for the disciplinary action taken, and established the date and time for the suspension to occur. In a separately related incident occurring in 1983, Lieutenant Handura with the City of Clearwater Fire Department received a letter of reprimand for not responding to a dispatch. In that incident, Handura was dispatched but, because he had a tour group of school children at his station and knew that a rescue unit had also been dispatched, he called the rescue unit and determined that he was not needed. He thereupon called the dispatcher and advised him that the rescue unit was responding to the call and that he would not respond.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent's appeal be dismissed and that a Final Order be entered confirming the disciplinary action of an 11.2 hour suspension, without pay. Respectfully submitted and entered this 30th of July 1986, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July 1986. APPENDIX (CASE NO. 86-0236) The proposed findings of fact submitted by the parties have been carefully considered and are accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner 11. Partially rejected as being argumentative as opposed to a factual finding. Respondent 3-5. While these findings are partially correct, they are an incomplete recitation of the events which transpired. 6. Rejected; See Paragraph 5 in Findings of Fact. 7 and 8. Rejected as a legal conclusion as opposed to a factual finding. COPIES FURNISHED: Miles A. Lance Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 33518-4748 Stuart M. Rosenblum, P.A. 220 South Garden Avenue Clearwater, Florida 33516 City Manager City of Clearwater Post Office Box 4748 Clearwater, Florida 33518-4748 Civil Service Board City of Clearwater Post Office Box 4748 Clearwater, Florida 33518-4748
Findings Of Fact Petitioner was an unsuccessful candidate for the January, 1989, alarm systems contractors' I examination (the "examination"). The examination was multiple choice, and a minimum score of 75 was required to pass the examination. After reevaluation, Petitioner received a grade of 74 on the examination. Petitioner challenged question 70 at the formal hearing. Credit for a correct answer to question 70 would result in Petitioner receiving a passing grade on the examination. Question number 70 contained four possible answers. Pursuant to the Candidate Information Booklet, only one answer was correct. The Candidate Information Booklet advised Petitioner that the questions were designed so that a person with "the necessary background knowledge of electrical contracting will find it easy to select the correct answer." Finally, the References for State of Florida Alarm System Contractor I stated that "Some of the questions will be based on field experience and knowledge of trade practices. . ." Question 70 was one of three questions which referred to a single diagram. The diagram contained eight items. Four of those items were labeled and four were not labeled. The labeled items were: a "Battery"; a closed "Contact"; an open "Switch"; and a "Re1ay" The items that were not labeled were: two horizontally parallel lines; a vertical coil; and an open contact.1/ The two questions not challenged by Petitioner referred to the labeled closed "Contact" and the "Battery". The text of question 70 referred to "the relay" (sic). The text of question 70 asked whether "the relay" was: (a) normally open; (b) normally closed; (c) de-energized; or (d) normally open and de- energized. Petitioner selected (c) as the correct answer. Respondent considered (d) to be the correct answer. The uncontroverted evidence established that "the relay" referred to in the text of question 70 was de- energized. The only disputed issue of fact was whether "the relay" referred to in the text of question 70 was normally open. The uncontroverted evidence further established that the essential parts of a relay include a coil, one normally open contact, and one normally closed contact. A contact may be normally open or normally closed depending on the design of the alarm system. The normal state of a contact is its de- energized state. The language in question 70 was misleading and ambiguous based on the evidence in this proceeding. Question 70 asked whether "the relay" was normally open or normally closed, not whether a given contact was normally open or normally closed. The evidence established that a "contact" is either normally open or normally closed. No evidence established that a "relay" may be normally open or normally closed. The diagram was misleading and ambiguous to the extent it applied to question 70. The diagram contained the essential parts of a relay, i.e., a coil, one normally open contact, and one normally closed contact. The coil and labeled closed "Contact" were connected in a circuit with the items shown as the "Battery" and the "Switch". The un-labeled open contact and the item shown as the "Relay" were separated from the coil by approximately 1/4 inch. A determination could not be made as to whether "the relay" referred to in the text of question 70 was de-energized without reference to the item shown as the "Switch" in the diagram. The "Switch" was open but was not connected in the same circuit with the item shown in the diagram as the "Relay". Petitioner correctly assumed that "the relay" referred to in the text of question 70 was de-energized because the "Switch" shown in the diagram was open. Even though not connected in the same circuit with the item shown as the "Relay" in the diagram, the "Switch" was electronically associated with "the relay" referred to in the text of question 70. The uncontroverted evidence established the correctness of this assumption by Petitioner. 2/ Petitioner reasonably assumed that "the relay" referred to in the text of question 70 was comprised of the coil, the un-labeled open contact, and the labeled closed "Contact" in the diagram. Since "the relay" referred to in the text of question 70, like other relays, had to include both a normally closed contact and a normally open contact, it was impossible for Petitioner to decide whether "the relay" referred to in the text of question 70 was either normally open or normally closed. The only certain answer for Petitioner was that "the relay" referred to in the text of question 70 was de-energized. Respondent established that the answer it considered to be the correct answer to question 70 was reasonable. However, Respondent failed to refute the preponderance of evidence that Petitioner's answer to question 70 /3 was also reasonable under the circumstances. Respondent established that the portion of the diagram that included the item shown as the "Relay" was separated from the portion of the diagram that included the items shown as the open "Switch", the "Battery", and closed "Contact". The two portions of the diagram were not physically connected, were not part of the same circuit, and were separated by a space of approximately 1/4 inch in a diagram that was approximately 4 inches long. The two portions of the diagram were referred to by the terms of the examination as a single diagram because the single diagram was to be used in answering questions 68, 69, and 70. It was reasonable for Respondent to assume that when question 70 asked whether "the relay" was normally open or normally closed it was to be interpreted as asking whether "the relay contact" was normally open or normally closed. Respondent attempted to establish the unreasonableness of Petitioner's answer with conflicting evidence. For the purpose of determining whether "the relay" referred to in the text of question 70 was de-energized, Respondent defined "the relay" by reference to the portion of the diagram that was disconnected from the item shown in the diagram as the "Relay". For the purpose of determining whether "the relay" referred to in the text of question 70 was normally open or normally closed, however, Respondent defined "the relay" referred to in the text of question 70 by reference to only that portion of the diagram shown as the "Relay". Respondent admitted during the formal hearing and in its written explanation for the answer to question 70 that "[t]he relay as shown is de- energized because the switch is open." (emphasis added) Thus, Respondent admitted that a determination of whether "the relay" referred to in the text of question 70 was de-energized was to be made by reference to a portion of the diagram that was not physically connected to the item shown in the diagram as the "Relay". However, Respondent's expert witness insisted during direct and cross examination that a determination of whether "the relay" referred to in the text of question 70 was normally open or normally closed was to be made by disregarding that portion of the diagram that included the coil, the "Switch", and the labeled closed "Contact". Nothing in the instructions for questions 68-70 suggested the limited use of the diagram suggested by Respondent for the purpose of determining whether "the relay" referred to in the text of question 70 was normally open or normally closed. Instead, the instructions stated that "the next 3 questions (68- 70) refer to the following diagram." If Respondent intended for question 70 to refer to only that portion of the diagram shown as the "Relay" it would have been reasonable for Respondent to arrange question 70 and the portion of the diagram shown as the "Relay" in separate diagrams. Respondent's written explanation of the answer to question 70 was inconsistent with Respondent's suggested answer to question 70. Question 70 asks whether "the relay" is normally open or normally closed. Respondent's written explanation states that "the relay contacts are normally open." (emphasis added) Later in its written explanation, Respondent stated that "the relay [is] closed" and that "its normally closed contacts [are kept] open against spring pressure...". For the same reasons, Respondent's written explanation of the answer to the question was internally inconsistent. The evidence presented by Respondent was inconsistent with Respondent's written explanation of the suggested answer to question 70. For the purpose of determining whether "the relay" referred to in question 70 was normally open or normally closed, Respondent's expert witness insisted during his testimony that "the relay" excluded that part of the diagram that included the coil. In its written explanation, however, Respondent stated that the "normally closed intrusion contacts are connected to the coil of the sensitive relay." (emphasis added) Further, Respondent's expert repeatedly testified that the labeled closed "Contact" in the diagram could be an intrusion contact but need not be any particular kind of contact. In Respondent's written explanation, however, the closed contacts were specifically identified as "intrusion contacts." The language in question 70 and the diagram used to answer question 70 were misleading and ambiguous. The language in question 70 and the diagram permit more than one reasonable interpretation. Both Petitioner's answer to question 70 and Respondent's answer to question 70 were reasonable under the circumstances.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner's request for a re-grade of his January, 1989, alarm systems contractors I examination be GRANTED; Petitioner be given full credit for question 70; Petitioner be deemed to have passed the examination; and Petitioner be deemed qualified for registration as an alarm system contractor. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of April 1990. DANIEL MANRY, 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 16th day of April 1990.
