The Issue Whether or not Respondents improperly serviced portable fire extinguishers and pre-engineered fire suppression systems as specifically alleged in the administrative complaints filed herein on October 8 and November 4, 1992.
Findings Of Fact During times material herein, Respondent Polk Fire Extinguisher Service, Inc. and its owner, Ira Devon Canady, was a licensed dealer for portable extinguishers and pre-engineered systems for fire protection and prevention. During times material hereto, Respondent Floyd E. Nicks, was a permittee for the servicing of portable extinguishers and pre-engineered systems. On or about January 29, 1992, Respondent Polk caused its licensed permittee, James G. Boykin, an employee under Respondent Polk's direct supervision and control, to service a pre-engineered fire suppression system at the Highway 27 truck stop in Lake Wales, Florida. On March 14, 1992, a fire started in the kitchen area of the truck stop. On March 17, 1992, Investigator Phillip J. Gruda, an employee in the fire sprinkler industry in excess of 26 years, was summoned to investigate the fire which occurred in the restaurant (kitchen area) of the truck stop wherein the fire suppression system failed to function as designed. Investigator Gruda immediately initiated his investigation. He noted that a fire started in the kitchen. The fire origin was in the area of the range hood which became completely engulfed in flames and the suppression system did not activate. The fire suppression system which was installed in the hood of the oven utilizes a fusible link which melts when exposed to intense heat. The melted link sets off an ignitor which lets the fire retardant powder from the system extinguish the fire. An examination of the system revealed that the control head was twisted and the cable which connects the fusible link and the remote pull station was twisted preventing the system from discharging. Investigator Gruda also discovered that the cable had dislodged from the pulley extending from the control head which further prevented the system from firing. On approximately January 29, 1992, Respondent Polk used its agent/permittee, Boykin, to also service two portable extinguishers at the truck stop in Lake Wales. Permittee Boykin failed to perform the required six-year maintenance on portable fire extinguisher No. 873430; failed to discover that the gauge on said extinguisher indicated it had discharged; failed to discover that the extinguisher had leaked and to remove the old label from the extinguisher; failed to perform the hydrostatic test on the extinguisher and placed an incorrect serial number on the service tag. Also, Boykin did not leak test the extinguisher. The above-referenced extinguisher failed to discharge during the fire on March 14, 1992 at the truck stop. On or about December 19, 1990, Respondent Polk caused its agent/permittee, Floyd E. Nicks, an employee under Respondent Polk's direct supervision and control, to service a pre-engineered system at the truck stop in Lake Wales. Respondent Nicks was dispatched to perform a six-year service maintenance on the system and at Respondent Polk's direction, used a generic BC powder instead of the required safety first specified powder thereby invalidating the underwriter's laboratory (UL) listing. During December, 1990, Respondent Nicks also failed to perform the required hydrostatic test for cylinder No. 24991 which was part of the pre- engineered system at the truck stop. Respondent, by its agent and employee Boykin, during December, 1991, serviced a pre-engineered system at the Lone Palm Country Club in Lakeland. Agent Boykin failed to properly service the system and investigations by Gruda subsequently revealed the following violations: S-4 Venturi was missing over the char- broiler appliance tee. Incorrect duct nozzles and plenum nozzles. Six elbows were used to connect the yoke instead of the specified five. The pipeline limits did not meet specifi- cation. The system was not piped in accordance with the manufacturer's instructions. The duct nozzle was not centered. The filters were not baffled and "range guard" corner pulleys were used instead of "safety first" as specified. Based on these violations, the gas charbroiler was not properly protected by the fire suppression system. On or about July 31, 1991, the parties entered a consent order against Respondent Polk wherein Respondent was placed on probation for one year. One condition of probation set forth in the Consent Order was that Respondent Polk would strictly adhere to all provisions of Chapter 633, Florida Statutes and rules and regulations promulgated thereunder.
Recommendation Based on the foregoing findings of facts and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order revoking the licenses and permits of Respondents Polk Fire Extinguisher Service, Inc., Ira Devon Canady and Floyd E. Nicks. RECOMMENDED this 2nd day of August, 1993, in Tallahassee, Florida. JAMES E. BRADWELL 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 2nd day of August, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-6551 and 92-0023 Ruling on Petitioner's proposed findings of fact. Paragraph 8, rejected as being a conclusion. COPIES FURNISHED: Tom Gallagher, State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Bill O'Neill, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Daniel T. Gross, Esquire Division of Legal Services Department of Insurance and Treasurer 612 Larson Building Tallahassee, Florida 32399-0300 Ira Devon Canady, Owner Polk Fire Extinguisher Services, Inc. Post Office Box 384 Lakeland, Florida 33801 Floyd E. Nicks, pro se 1137 Carlton Lake Wales, Florida 33853
Findings Of Fact Respondent holds license No. 23-7743-H covering all the premises mentioned in the notice to show cause in the present case, and held this license on October 23, 1980. (Stipulation on the record (P. 11) in Case No. 80-2428) On October 23, 1980, each violation alleged in the notice to show cause did in fact occur. Respondent employs a full-time staff averaging eight to nine persons, who are responsible for maintenance at Lincoln Fields. Respondent's payroll expenditures for maintenance are somewhere around $75,000 to $80,000 a year. Maintenance supplies cost a like amount. In addition, an independent contractor who does painting is paid $11,000 or $12,000 annually, and an exterminator is paid about $15,000 a year. No money has been extracted by any owner or respondent from the operating revenues of the apartment complex for several years. The owners are holding on in hopes that HUD will finance a renovation. Jeffrey Harris, Jr., who is the maintenance foreman of Lincoln Field Apartments, gets anything he needs from management to repair and maintain the premises. Sharon Marie Fleming is the office manager and bookkeeper for respondent. She was asked to correct the deficiencies noted by Mr. Brown on his October visit to the apartment complex. She made work orders to accomplish this and gave them to the foreman. She bought approximately 46 new fire extinguishers and caused other extinguishers to be reserviced. She paid for the 46 fire extinguishers in November with a check. Respondent's Exhibit No. 1. These fire extinguishers replaced 46 missing fire extinguishers. (R. 100) On April 13, 1981, respondent purchased an additional 41 fire extinguishers. No fire extinguishers were purchased between September 1, 1977, and November, 1980. Respondent has begun putting fire extinguishers inside apartments in an effort to prevent theft. Ordinarily leaky faucets are fixed on the same day Ms. Fleming's office receives a complaint, or on the following day. Exterminators come every Monday to exterminate pests in part of the apartment complex. They spray each apartment once a month and have agreed to spray in between times, as needed. Respondent would incur no additional expense if a tenant should request extermination between monthly visits. Before the extermination contract that existed at the time of hearing was entered into, respondent had contracted with the other exterminators and its own personnel exterminated at one time. In January of 1981, respondent contracted with the current exterminator, because their previous exterminator had not eliminated the rat problem. The grounds people cut the grass once as week. One company that worked on the sewage lines broke holes in the line in order to gain access. Since then, respondent's maintenance crew has installed regular "clean-outs" in the pipes and "straightened them out." People were stealing the metal screw-in-caps that fit into the pipe, so respondent started using caps made of PVC, which is much less valuable than brass. Tenants "stealing" electricity sometimes results in exposed wires. After exposed electrical wiring in a meter room had been corrected, respondent's employees built new meter room doors, bought new locks, and locked the doors. Broken windows became so commonplace ("not just the tenants, everybody comes in and breaks the windows" R. 111) that respondent began replacing windowpanes with a plastic that does not break. Painters paint every day, grounds people work full time on the grounds. Some tenants had left appliances in stairwells. Respondent caused these to be cleared out by threatening those tenants with eviction.
Recommendation It is accordingly, RECOMMENDED: That petitioner impose a fine against respondent in the amount of three thousand, five hundred dollars ($3,500). DONE AND ENTERED this 21st day of September, 1981, in Tallahassee, Florida. 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 21st day of September, 1981. COPIES FURNISHED: Janice G. Scott, Esquire 725 South Bronough Street Tallahassee, Florida 32301 Harold Zinn, Esquire, and Samuel Burstyn, Esquire Eighth Floor 3050 Biscayne Boulevard Miami, Florida 33137 R. B. Burroughs, Jr., Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The respondent Pyrotechnics International, Inc. is a corporation organized and existing under the laws of Florida, and respondent Adrian S. Marin is its Chairman. Respondent Pyrotechnics serves as a marketing agent for Sargom Company Ltd. in London, England, which manufactures fire fighting equipment and exports fire extinguishers and other equipment to respondents for distribution in the United States. Respondents desire to construct and operate their own manufacturing plant in Tampa, Florida. In August of 1981, The Sargom Company Ltd. began the process of obtaining a listing with and approval by Underwriters' Laboratories, Inc. for its fire extinguishers. As of the date of the administrative hearing in this matter, Underwriters' Laboratories was still in the process of investigating and testing Sargom's products. On or about October 26, 1982, respondent Adrian S. Marin applied to Applied Research Laboratories of Florida, Inc. for investigation, listing and follow-up service for its fire extinguishers. Respondents, in connection with Sargom, have expended funds amounting to approximately $60,000 in an effort to obtain approval and listing of its products from Underwriters' Laboratories and Applied Research Laboratories of Florida. As of the date of the hearing, respondents had not yet obtained such approval or listing. Respondents have sold and/or distributed fire extinguishers in Florida. The extinguishers sold and/or distributed did not carry an Underwriters' Laboratories, Inc. or manufacturer's serial number permanently affixed to the extinguisher shell. Respondents have recently devised a label which contains a serial number and date of manufacture. If permitted to sell and/or distribute their product in Florida, respondents intend to place a self-destructive label on a metallic plate to be permanently affixed to the canister.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Cease and Desist Order be entered prohibiting respondents from selling, offering for sale or giving fire extinguishers in Florida until such time as respondents demonstrate that their fire extinguishers have been approved or listed by a nationally recognized testing laboratory and that the serial number is permanently stamped or affixed to the extinguisher shell. Respectfully submitted and entered this 24th day of January, 1983, 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 24th day of January, 1983. COPIES FURNISHED: Honorable Bill Gunter State Fire Marshal The Capitol Tallahassee, Florida 32301 Gabriel Mazzeo, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 Anthony J. LaSpada, Esquire Barnett Bank Building Suite 500 1000 North Ashley Drive Tampa, Florida 33602
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.
