The Issue Whether Petitioner Agency for Health Care Administration properly assigned conditional license status to Respondent, Westminster Woods on Julington Creek, based upon its determination that Respondent had violated Florida Administrative Code, Rule 59A-4.130, and 42 CFR Section 483.70 via Florida Administrative Code Rule 59A-4.1288, due to the presence of two wide-spread Class I deficiencies cited at the most recent annual licensure survey of January 27-29, 2003. Whether Petitioner Agency for Health Care Administration properly assessed a $30,000.00 fine against Respondent for violating 42 CFR Section 483.70 via Florida Administrative Code Rule 59A-4.1288, as well as Florida Administrative Code Rule 59A-4.130, due to the presence of two wide-spread Class I deficiencies at the most recent annual survey on January 27-29, 2003. Whether the Agency for Health Care Administration is entitled to $6,000.00 in costs related to the investigation and prosecution of this case(s), pursuant to Section 400.121(10), Florida Statutes.
Findings Of Fact Pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code (2002), AHCA is the regulatory authority responsible for licensure of skilled nursing facilities and for enforcement of all applicable statutes and rules governing skilled nursing facilities, of which Respondent Westminster Woods at Julington Creek is one. On January 27-29, 2003, AHCA conducted an annual licensure and re-certification survey of Respondent's facility. As a result of that survey, the facility was cited for two Class I deficiencies related to failure of the facility's fire alarm system. Each of these deficiencies was cited upon the same underlying facts. AHCA represented that one was cited as a Federal "tag" and the other was cited as a State "tag." In the Administrative Complaints, AHCA alleged, in a single Count, two separate Class I deficiencies. Respondent is a 60-bed skilled nursing facility located in Jacksonville, Florida. Respondent houses more of the "older- old" or "elderly-elderly" residents than the average skilled nursing facility. Respondent is a second floor facility with two stairwells that provide direct outside egress from the facility and that can be used as fire exits. During the January 27-29, 2003, survey, the facility housed 58 residents. Respondent's 58 residents on those dates were fairly dependent in terms of their physical capabilities. More than one-half of them were over the age of 85, and a couple of the residents were over 100 years old. Only one of the residents on January 27-29, 2003, was independently ambulatory. The remainder of the residents were incapable of independent ambulation. One of the residents was bed-ridden. Thirty-eight residents required extensive assistance in transferring or ambulating. The remainder of the resident population required assistive devices such as canes or walkers to transfer or ambulate. Due to their age, physical condition, and inability to engage in self preservation, these residents were extremely vulnerable in the event of a fire. The survey team arrived at the facility at 6:00 a.m. on January 27, 2003. At around 8:00 a.m., the facility's maintenance supervisor, John Doran, conducted his usual rounds of the facility. Mr. Doran personally checks the fire alarm panel twice daily, and did so that morning. The panel has three lights: A green light which means that the panel is working; a yellow light which means a mechanical failure has occurred; and a red light which signifies an alarm. Mr. Doran noted that no light was on. The fire doors, which close automatically if the alarm is activated, were still open. Except for the absence of any alarm panel light, everything seemed to be normal. Therefore, on the morning of January 27, 2003, Mr. Doran believed that there was a problem with the fire alarm panel, not the fire alarm system. In addition to Mr. Doran's twice-daily checks, Respondent's alarm system is monitored by an outside monitoring company which is supposed to call the facility if any problem is detected with its fire alarm system. The monitoring company did not call, which also suggested that the system itself was not malfunctioning, but merely that a light was out on the alarm panel. Nonetheless, Mr. Doran called his secretary, who contacted "W. W. Gay," the contract repair company for the system, and asked that a technician come to the facility. Thinking there was no immediate danger, but only that there was a problem with the alarm panel lights, and believing that everything that could be done up to that point had been done, Mr. Doran did not mention the alarm panel/system to surveyor Patricia McIntire, R.N., when she interviewed him about hot water temperatures around 10:00 a.m. on January 27, 2003. W. W. Gay's technician arrived at the facility about 10:30 a.m. and began trouble shooting the fire alarm system. The first technician could not find the problem, so he called for a second technician. During the course of January 27, 2003, three technicians arrived at Respondent's facility and worked on the panel, in full view of staff and surveyors who were in and around the nurses' station. During the entire period that the fire alarm panel was not working, which ultimately amounted to at least three days, a large number of staff and other responsible people were around the resident areas. The January 27, 2003, morning shift had a minimum of 17 staff members directly assigned, with others coming and going from the unit. In all, there were around 25 people circulating in the nursing home during the day shift. After the surveyors had left, the evening shift had nine staff members assigned to the unit, with additional staff overlapping from the day shift. The night shift had six assigned staff members, plus "Ron," Respondent's security man, who was assigned to a fire watch, beginning late on the afternoon of January 27, 2003. (See Finding of Fact 32.) On Tuesday, January 28, 2003, there were 20 staff people directly assigned to the unit on the day shift. Counting the AHCA surveyors and ancillary staff, there were approximately 27 people on the floor. The evening shift had nine specifically assigned staff members, with others overlapping. The night shift had at least six staff members. On Wednesday, January 29, 2003, the numbers were similar. During the course of January 27, 2003, Mr. Doran did not tell Respondent's administrators, Don Wilson or Mike Sweeney, about the problem with the fire alarm panel because he thought the fire alarm panel problem was being resolved by the W. W. Gay technicians and because both administrators were very busy with the AHCA survey. Around 4:00 p.m., January 27, 2003, Mr. Doran found out that the problem with the fire panel was more serious than he had earlier thought. The AHCA surveyors had already left the facility. Mr. Doran went to Mr. Sweeney and Mr. Wilson. He told them at that time that W. W. Gay's third technician had told him that it would be the next morning before the fire alarm/system panel could be repaired. Mr. Sweeney and Mr. Wilson advised Mr. Doran that the situation was unacceptable. They instructed Mr. Doran to call W. W. Gay and tell that company to return and fix the panel immediately. Mr. Doran made the phone call, but as it ultimately turned out, the fire panel could not be fixed that night because a part had to be ordered. The facility had in-place a three-tiered system of evacuation in case of fire. First, residents in the room where the fire is located and those in the two adjoining rooms would be moved to safety. Second, if the fire continued to spread, all residents on the side of the fire doors where the fire was located would be moved to the other side of the doors and the fire doors closed. Third, and only if the fire were still not contained, would the residents be moved out of the building through the stairwells. The control panel of the fire alarm system is the "brains" of the facility's fire safety system. It has a direct connection to the local fire department and provides the fire department with direct, immediate notification if there is a fire in the facility. It provides immediate notification to the residents and staff of the facility through the sounding of bells, chimes, strobes, etc., of the existence of an emergency. It operates the smoke detectors. It automatically shuts down the air conditioning unit to prevent the spread of carbon monoxide, smoke, and fumes throughout the facility, and it automatically locks and unlocks the fire doors. It is the transfer of smoke and toxic gases generated during a fire which is the most common cause of casualty. The continued operation of the air conditioning system during a fire could make the lateral transfer of residents to another compartment on the same floor (tiers one and two of the facility's fire safety plan) ineffective because the continued operation of the air conditioning system could still transfer gases and smoke throughout the facility. However, in this case, although the facility's air conditioning system does move air, smoke being carried throughout the building was unlikely, since the intakes were located in common areas where smoke would be detected by staff. Fire drills are held by Respondent at least monthly. Staff is trained to respond to fires by Scott Fogg, a facility employee who has 23 years' United States Navy experience in training to fight fires, watching for fires, and fighting fires. Mr. Fogg has personally fought over 30 fires. He orients each new employee for at least one and one-half to two hours. He also does annual training of staff. Part of the training provided by Mr. Fogg consists of going step by step through the facility's fire plan. The plan includes contacting the fire department. Once the charge nurse knows of a fire, it is her responsibility to call "911." The facility's plan requires that the charge nurse notify the fire department, regardless of whether or not the alarm system is functioning.1/ The facility's fire plan is kept at several locations, including in the possession of the charge nurse and at the nurses' station. Every individual who goes through orientation also receives a copy. There is a sprinkling system for the entire facility. The sprinkling system is not dependent on the alarm system functioning. Each resident's room has at least two sprinklers, and some rooms have three sprinklers. The bathrooms inside the residents' rooms have an additional sprinkler. The dining room, halls, common area, and stairwells have sprinklers. There are fire extinguishers located at each corner of the building and fire hoses on the walls. Mr. Fogg evaluates the monthly fire drills. If he notes a problem, he writes it up and does follow-up training. The building is made of concrete, and nonflammable paint is used. Smoking is not permitted in the facility building. Staff are required to smoke in a designated smoking area behind another building. Residents are not allowed to keep combustible materials in their rooms. The kitchen and laundry are located in another building. Evacuation routes are posted throughout the building. Upon learning at approximately 4:00 p.m. January 27, 2003, that the fire alarm/system could not be fixed that night, Messrs. Wilson and Sweeney instructed Mr. Doran to institute a one-hour fire watch. A fire watch involves dedicating an individual to go around the building at stated intervals (in this case, hourly) looking for potential fire, smoke, or fire risk. Mr. Sweeney is the facility's Executive Director. He is also a licensed nursing home administrator. Based on his 25 years of experience in health care and his knowledge of the properties of the facility's physical plant, he thought a one- hour fire watch was reasonable and appropriate. Mr. Wilson, the facility's Health Services Administrator, concurred. Respondent's security man, Ron, was instructed to perform the hourly fire watch. Mr. Doran walked Ron around the area and told him to use his eyes, ears, touch, and sense of smell to look for any signs of fire. Ron carried a cell phone so that he could quickly communicate with Messrs. Doran, Wilson, Sweeney, or the fire department, if necessary. There is no evidence that Ron failed in his instructed duties for an hourly fire watch. Most of the survey team returned about 7:00 a. m., on January 28, 2003. At approximately 8:30 a.m., another team member, Nicholas Linardi, AHCA's Life Safety Inspector, arrived at the facility for the first time. Mr. Doran met with Mr. Linardi in the administrative conference room at around 9:00 a.m. There is no dispute that the first order of business was Mr. Linardi's review of all of the facility's service and safety logs. Mr. Fogg was also present at that time. After this point, there are significant differences among the witnesses' respective testimonies as to the chronology of events and the time span involved. However, having weighed the credibility of the respective witnesses, it is found that no later than their arrival on the second floor skilled nursing unit at approximately 9:30 a.m., January 28, 2003, Mr. Doran told Mr. Linardi that there was a problem with the fire alarm panel/system. How clear Mr. Doran was in this first explanation of the extent of the problem or how much or how little of Mr. Doran's explanation Mr. Linardi appreciated at that time is not clear from the record, but Mr. Linardi inquired concerning what the facility was doing about solving the problem, and Mr. Doran told him. Mr. Linardi requested that Mr. Doran call W. W. Gay again. Mr. Linardi did not require that the facility shut off the air-conditioning, pending repair of the fire alarm system. He did not offer any immediate suggestions as to additional actions the facility staff should take to protect its residents. He did not state that the facility should increase the frequency of the fire watch. There also is no clear evidence that he told anyone at that time that the facility must notify the local fire department that the panel/system was inoperative. Mr. Linardi's testimony was clear that when he is on a facility's premises, he is one of the appropriate persons or entities to whom AHCA expects the facility will report a fire alarm/system malfunction, but he was also adamant that rigid enforcement of "tags and fire standards," means that the facility is required to report any malfunction to the local fire authority, in this case, to the St. Johns County Fire Department. It is Mr. Linardi's practice to issue a survey citation, regardless of the reason a fire alarm is out of commission. The rest of AHCA's survey team first became aware of the extent of the problem with the fire alarm system at approximately 2:45 p.m., on January 28, 2003, when Mr. Linardi conducted a fire drill in the facility for purposes of AHCA’s survey. During the fire drill, it became evident to the AHCA survey team that the alarm did not sound and the fire doors did not automatically close. During the fire drill, staff members had to yell out information to alert other staff members that there was a fire drill and to identify the location of the "pretend" fire. If the fire alarm system is working, it automatically closes the correct doors. If it is not working, staff members do not know which doors to close until told where the fire or pretend fire is, but during the fire drill, it took facility staff only four and one-half minutes to realize that the correct fire doors had not closed and to go to the north corridor to manually shut them. In general terms, Mr. Linardi felt that an incipient fire can start and be transferred throughout a facility within four minutes. He did not specifically discuss Respondent's facility. No one testified to what the response time should have been if an alarm had sounded. Beyond what could at most have been a half-minute response delay due to the absence of a functioning alarm, AHCA apparently found no fault with the staff's response to, and conduct of, the fire drill. Mr. Linardi was, in fact, complimentary of the results. After the fire drill on January 28, 2003, Mr. Linardi personally called W. W. Gay and verified that the part necessary to fix the panel/system was on order. Still later in the afternoon, Mr. Linardi notified the St. Johns Fire Marshal that Respondent's fire alarm system was not in service. The St. Johns Fire Marshal directed that the facility institute a 15-minute fire watch. Respondent immediately instituted the 15-minute fire watch on January 28, 2003. Mr. Linardi testified that he was concerned that the Fire Marshal's assigned fire watch frequency of 15 minutes was too liberal and that a fire watch perhaps should have been instituted at even shorter intervals, but since the regulations presume that the local authority shall set the protocol for fire watches, he said nothing. There was some surveyor commentary to the effect that laundry carts "stored" in Respondent's hallway near one of the exits to the stairs violated survey criteria and aggravated danger to residents, but Mr. Linardi conceded that laundry carts could legitimately be rolled through hallways as linen goods were transported in them from the linen closet to each resident's room. It was his opinion such carts should have been parked in residents' rooms for any extended period of time. No accurate measurements of acceptable time or unacceptable time that these carts remained in the hallways was advanced by any witness, so this survey criticism is not indicative of a citable flaw. A chair was found on the landing at the top of one of the two exit stairwells. The landing and stairwell are large. The chair was not blocking the door leading onto the second floor landing from the skilled nursing unit. The chair's location would not have prevented an ambulatory person or a person on a cane, assisted by another, from descending via the stairs. The only obstruction the chair might have represented would have been if a patient had to be carried on a stretcher or litter and the stretcher or litter had to be turned by two people on the landing. Mr. Linardi commented that actual egress was not at issue, but because survey criteria specifically prohibit furniture or any other object from being there, the chair's presence on the landing was still a citable offense. Renovations were ongoing in the facility during this period, and construction workers had temporarily stored some of the construction materials that they were using in the bottom recess of an exit stairwell. These supplies were stored without permission or knowledge of facility staff. The bottom of the stairwell is a large open area, 22 feet long by 10 feet wide. Most of the construction materials were stored beneath the stairs and were not blocking either a step down from the stairs or access to the outside exit door. However, one piece of flat molding protruded in front of the exit door, and had the potential of impeding egress. Although there was testimony that this molding could have been easily stepped over, the photographs make clear that this item could have impeded the speed of an evacuation of the above-described frail, elderly and non-ambulatory population if an evacuation had been necessary. There is no persuasive evidence that a hinge on any exit door prevented its being opened or that any exit door was otherwise unreachable or otherwise out of commission. During the 15-minute fire watch on the third day of the survey, January 29, 2003, Ron (See Findings of Fact 13, 32, and 42) found a tray on top of the juice machine in the beverage area of the facility’s dining room and removed it. This area is within three feet of a sprinkler head and within six feet of a fire extinguisher. The juice machine has thermal overload protection to prevent electricity going to the motor if the motor gets hot. In short, if the motor gets hot, the machine cuts off. When the surveyors arrived on that date, a number of residents and staff members were in the dining room. The surveyors noted an odor similar to that of a burning motor in the vicinity of the juice machine. At that time, the tray had already been found and removed as part of the 15-minute fire watch. When a motor overheats, the smell lingers for a long time. There is no evidence that the incident did more than produce an unpleasant odor. AHCA gave Respondent a written mandated correction date of February 6, 2003, but before the survey team finally exited on January 29, 2003, the facility had changed the fire watch to every 15 minutes and had advised that the fire alarm system would be operational on January 30, 2003. Therefore, AHCA removed the "immediate jeopardy" classification on January 29, 2003, prior to the end of the survey, when it determined that fire watches were being conducted every 15 minutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of, it is RECOMMENDED that the Agency for Health Care Administration enter a final order Finding Respondent guilty of a single, isolated Class III deficiency, fining Respondent $1,000.00 therefore, and removing Respondent's conditional licensure status; and Remanding to the Division of Administrative Hearings the issue of the amount of any costs related to the investigation and prosecution of these cases, pursuant to Section 400.121(10), in the event the parties cannot stipulate to those costs. DONE AND ENTERED this 13th day of November, 2003, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November 2003.
The Issue The issue is whether the Petitioner, Eugene Boatright, is entitled to licensure as an alarm systems contractor by virtue of a passing grade on the January 26, 1989, examination.
Findings Of Fact Eugene Boatright was an unsuccessful candidate for the alarm systems contractor's licensure examination given on January 26, 1989. Mr. Boatright made a score of 74. A score of 75 was required for licensure. Each correct answer had a grade value of one point. Mr. Boatright originally challenged the answers to questions 22, 95 and At the formal hearing he abandoned his challenge to question 22. Question 95 dealt with standards for the installation, maintenance and use of Remote Station Protective signaling devices. The reference was to N.F.P.A. Chapter 72C, Section 1-3.1. Mr. Boatright contended that telephone exchange was a correct answer. DPR contended that telephone exchange was incorrect because all telephone exchanges do not have personnel on duty at all times trained to receive alarm signals. The reference section contains an exception which states: Exception: Where such an agency is unwilling to receive alarm signals, the authority having jurisdiction shall be permitted to accept another location with personnel on duty at all times trained to receive the alarm and immediately transmit it to the fire department. While a telephone exchange may, under the circumstances set forth in the exception, receive alarm signals, telephone exchange is not a correct answer to question 95. The instructions on the examination specifically advised the candidates that they were to use the general rule and were only to use the exception where it was directly indicated in the question. Question 99 invovled the mounting requirements for all installed fire warning equipment. The reference sections asserted by DPR were N.F.P.A. Chapter 75-1.1.2 and 1.1.3 and Chapter 74-4.1. Chapter 75 refers to "Installation." Chapter 74 refers to "Equipment Performance." Question 99 contains three possible answers: All installed household fire warning equipment shall be mounted so as to be supported independently of its attachment wires. so jaring [sic] or vibration will not cause accidental operation. so that the failure of any non- reliable or short-life component, which renders the detector inoperative shall be readily apparent without the need for a test. Mr. Boatright contends that the correct answer does not include part III of the answer. DPR contends that this portion of the answer is correct and refers to Chapter 74 on equipment performance to support its position. Chapter 75-1.1.2 and 1.1.3, in the chapter relating to installation, states: 5-1.1.2 All devices shall be so located and mounted that accidental operation will not be cause by jarring or vibration. 5-1.1.3 All installed household fire warning equipment shall be mounted so as to be supported independently of its attachment to wires. [Emphasis supplied]. Chapter 74-1, in the chapter relating to equipment performance, states: General. The failure of any nonreliable [sic] or short-life component which renders the detector inoperative shall be readily apparent to the occupant of the living unit without the need for test. Chapter 74-1 is only peripherally related to mounting and relates primarily to performance of the equipment. Question 99 is ambiguous and the answer given by Mr. Boatright is a correct answer. Mr. Boatright is entitled to one additional point on his examination and he therefore should have received a passing grade of 75 on the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order granting the examination challenge of Eugene Boatright and awarding one additional point to the score achieved by Mr. Boatright on the January 26, 1989, examination. DONE and ENTERED this 12th day of January, 1990, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO 89-5207 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Eugene Boatright Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(5); 10(10 & 11); 12(14 & 15); 18(17; and 19(18). Proposed findings of fact 2-6, 8, 11, and 13-17 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 7 is unnecessary. Proposed finding of fact 9 is unsupported by the competent, substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation, Construction Industry Licensing Board Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1 & 2); 2(4); and 3(3). Proposed findings of fact 4 and 5 are unnecessary. Proposed findings of fact 6 and 7 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Alfred C. Scott Attorney at Law 125 North Market Street Jacksonville, FL 32202 E. Harper Field Deputy General Counsel Department of Professional Regulation Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth D. Easley General Counsel Department of Professional Regulation Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202
The Issue Whether Petitioner is entitled to licensure as a certified electrical contractor pursuant to the provisions of Section 489.514, Florida Statutes.
Findings Of Fact At all times material hereto, Petitioner, William Davidson Schaefer (Petitioner), was a licensed electrical contractor, having been issued License No. ER-0008163. This license, issued to Petitioner after he fulfilled the competency requirements of the Pinellas County Construction Licensing Board, allows him to practice electrical contracting in Pinellas County, Florida. To meet the competency requirements of the Pinellas County Construction Licensing Board necessary to obtain an electrical contracting license, Petitioner had to successfully complete a written examination. In 1981, when Petitioner received his license, the test required by the Pinellas County Construction Licensing Board was administered by Construction Exams, Inc., the sole test provider for Pinellas County. Petitioner took the Electrical Contractor's Examination administered by Construction Exams, Inc. on June 26, 1981, and earned a passing score of 86.5%. Petitioner has practiced electrical contracting in Pinellas County since 1981 and has been sole owner of Lester Electric, Inc., an electrical contracting company, since 1983. Petitioner's license is active and in good standing. Moreover, during the time that Petitioner has practiced electrical contracting, he has not been the subject of any complaints filed with, or discipline imposed by, the Pinellas County Construction Licensing Board. On or about May 8, 2000, Petitioner applied to the Electrical Contractors' Board (Board) for certification as an electrical contractor pursuant to the "grandfathering" provisions of Section 489.514, Florida Statutes. On or about May 26, 2000, the Board denied Petitioner's application for certification as an electrical contractor because he did not provide information upon which the Board could determine that the examination administered by Construction Exams, Inc. is substantially similar to the state examination. The exam administered by Construction Exams, Inc. contained a technical section and a general business section. However, Petitioner does not recall if the examination included a section or questions on safety. On the Examination Verification Form submitted to the Board as part of Petitioner's application, the Pinellas County Construction Licensing Board verified that the examination taken by Petitioner in 1981 included a technical section and a general business section. However, in response to a question on the form asking if the examination had included "fire alarm questions," the Pinellas County Construction Licensing Board marked the response, "Not sure." The company, Construction Exams, Inc., that administered the examination that Petitioner took in 1981 is no longer in business. Petitioner sought to obtain a copy of the examination from the Pinellas County Construction Licensing Board, but learned that the local board did not have a copy of the examination. Except for the time he was taking the examination, Petitioner never had nor has he been able to obtain a copy of the examination from any source. Although Petitioner does not recall if the examination that he took in 1981 included questions on safety and/or fire alarms, he was able to obtain information about some of the areas covered on the examination. Based on the document Petitioner was able to obtain, it appears that the examination he took included questions relative to the mechanics' lien law, workers' compensation law, first aid, OSHA regulations, federal tax law and the national electrical code. The state's Certified Electrical Contractor Exam includes a technical section, a general business section, and a safety section. The examination consists of 150 multiple choice questions, is an open-book test, and includes both a morning session and an afternoon session. Given that Petitioner took the examination more than 20 years ago, it is understandable that he can not recall all the questions and/or sections that were covered on the examination, and that he was unable to obtain a copy of the examination from any source. However, without a copy of the examination or other documents which sufficiently detail the contents of the examination Petitioner took in 1981, it is impossible to determine if that examination is substantially similar to the state examination. Petitioner failed to provide the Board with any information upon which it could make a determination that the examination he took is substantially similar to the state examination required for certification as an electrical contractor.
Recommendation Base on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Board enter a final order denying Petitioner's application for licensure as a certified electrical contractor. DONE AND ENTERED this 31st day of January, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2002. COPIES FURNISHED: Robert C. Decker, Esquire Decker Beeler, P.A. 25 Second Street, North, Suite 320 St. Petersburg, Florida 33701 Barbara R. Edwards Assistant General Counsel Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Anthony B. Spivey, Executive Director Electrical Contractors Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue At issue in this proceeding is whether Respondent, Department of Management Services (“DMS"), acted contrary to the agency's governing statutes, rules or policies, or the bid specifications in its proposed decision to award the contract for Invitation to Bid No. MSFM-13002020 (the "ITB") to Intervenor Future Computer Systems, LLC ("FCS").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of the proceeding, the following findings of fact are made: Jere Lahey, the procurement officer and contract manager for the Jacksonville office of DMS? Division of Real Estate Development and Management, coordinated with Stuart Piccolo, an engineering specialist in the same office, to develop the ITB specifications for the replacement of four existing Edwards fire alarm panels in four buildings at the Mary L. Singleton Regional Service Center in Jacksonville. The panels, which have been installed in the buildings since their construction approximately 20 years ago, have become obsolete for maintenance purposes. Lacking funding to replace the entire fire alarm system, DMS decided to replace the main control panel in each of the four buildings, retrofitting the systems to work with the updated controls. Mr. Lahey testified that he and Mr. Piccolo decided that the specifications should be for a design-build project. The General Scope of work identified in the ITB was as follows: Replace existing Edwards Systems Technology IRC-3 fire alarm panels in four different campus buildings with Edwards Systems Technology EST-3 panels including minor upgrades defined in Design Criteria Documentation. It is understood in the industry that the EST-3 product can only be installed, programmed and operated by a company that is certified by the manufacturer, Edwards. Mr. Lahey identified three EST-certified companies in the Jacksonville area. He testified that DMS relied on Edwards? certification process in the belief that Edwards would not certify a company that lacked the ability to install its products. On September 4, 2013, DMS released the ITB to the three EST certified companies in the Jacksonville area: Jacksonville Sound, FCS, and Milton J. Wood Fire Protection, Inc. (“Wood”).2/ The ITB listed a construction estimate of $100,000.00. Jacksonville Sound and FCS submitted bids on the project. Wood withdrew from the solicitation prior to the bid opening, citing a conflict. DMS opened the bids on October 23, 2013, and found both bids responsive to the criteria set forth in the ITB. The ITB specified that DMS would make a single award to the low bidder. FCS was the low bidder, with a bid of $29,980.00. Jacksonville Sound?s bid was $36,855.00. The ITB provided that “Bids must be submitted in full in accordance with the requirements of the Contract Documents consisting of Technical and Non Technical Design Criteria Specifications.” The referenced Design Criteria Specifications were titled, “Design/Build Bid Scope for Replacement of „Like Kind Equipment?-- Replace Fire Alarm Main Panels in Four Campus Buildings.” The specifications consisted of seven pages of written technical and non-technical specifications, four pages of schematic drawings of the buildings, and one page explaining the criminal background checks required of contractors and their employees. The technical specifications contained 27 paragraphs, of which only one, paragraph 7, is directly at issue in this proceeding. Paragraph 7 provided: Contractors provided with Invitations to Bid have been chosen due to their years in the industry and having a partnered relationship with Edwards Systems Technology. Contractor, upon request, shall provide evidence to support 5 years [sic] experience with performing retrofits with the specific product line as mentioned in the “Summary.” There was no section titled “Summary” in the specifications. However, there was no dispute that the “specific product line” in question was the Edwards EST-3 fire alarm panels that were discussed in the General Scope of work. See Finding of Fact 2, supra. DMS did not request that the bidders provide evidence regarding their experience with performing retrofits with the EST-3 product line. Neither bidder submitted information regarding its experience with performing retrofits with the EST- 3 product line. The issue raised by Jacksonville Sound in its formal written protest is whether the second sentence of paragraph 7 required the contracting entity to have been an EST-certified company for five years at the time of bid submission, or whether it was sufficient for the company to have been EST-certified for fewer than five years provided that the company employees actually performing the work on the project have five years? experience with performing retrofits with the EST-3 product line. EST is a controlled line, meaning that Edwards contracts with specific companies to represent the product as “strategic partners” with Edwards. Strategic partners are fully authorized by the manufacturer to sell, install, program and maintain Edwards? products, including the EST-3 product line. An Edwards strategic partner must have its technicians trained and certified in the different systems manufactured by Edwards. To install an EST system, a technician must be certified in that specific product line. Only certified technicians have the ability, via Edwards? proprietary software, to program the installed EST-3 control panel. It is undisputed that Jacksonville Sound has been an Edwards strategic partner for more than five years. It is also undisputed that FCS was a strategic partner at the time it submitted its bid, but that it had been certified for only three and one-half years. It is further undisputed that FCS currently employs individuals who have the requisite five years? experience performing retrofits with the Edwards EST-3 product line. In fact, one of those employees, Randy Kight, gained the bulk of his EST-3 experience as an employee of Jacksonville Sound before moving to FCS. Jacksonville Sound contends that the second sentence of paragraph 7 requires the company bidding on the project to have five years? experience in retrofitting the EST-3 product line. In order to have such experience, the company would necessarily have to have been an Edwards “strategic partner” for those five years. Under this reading of the ITB, FCS would be considered nonresponsive because it lacks the requisite five years as an Edwards strategic partner. DMS and FCS contend that the second sentence of paragraph 7 is directed at the employees who will actually be working on the EST-3 panels at the job site, and that the length of time a bidder has been a strategic partner is immaterial provided the bidder will be a strategic partner during the life of the contract. To support its contention, Jacksonville Sound observes that paragraph 7 references only the “contractor.” Jacksonville Sound points out that various other provisions of the ITB distinguish between the contractor and “employees,” “subcontractor employees,” “workers,” and “individuals who will be performing the work.” Jacksonville Sound argues that had DMS intended for the second sentence of paragraph 7 to apply to employees rather than the company, it would have made the distinction found in other provisions of the ITB. Mr. Piccolo, the author of the non-technical specifications, testified at the hearing. While conceding that the second sentence of paragraph 7 might have been drafted more clearly, he testified: By that statement, I kind of wanted to ensure that any individual that was working on the job site had the confidence and the knowledge to be able to perform these retrofits just because of — of the Duval County Courthouse, you know. And I hate to use that as an example because it?s a sore thumb for a lot of people. But I wanted to make sure that the job went smooth. And if there were any difficulties or trials or tribulations that we could, you know, step back a second and see that the individual that you placed on the property, how much experience does he actually have dealing with this type of work? He could have come from the security systems side, he could have come from the fire alarm side . . . . * * * Like I say, if there?s an observation that an individual doesn?t portray himself as being competent to perform the duties or the expectations of delivery, then obviously you would step back a second and say: What are the qualifications of this individual? Was he cutting the grass before he came over here? Supporting Mr. Piccolo?s interpretation is the fact that the disputed sentence contains the term, “upon request.” Before sending out the ITB, DMS was already aware of the status of the three selected companies as “strategic partners” of Edwards. This was the key piece of information that permitted a company to submit a bid on the project at all. It was immaterial to DMS whether a company had been a strategic partner for one year, three years, or ten years, because DMS was relying on the certification provided by Edwards that its strategic partners were qualified to install, program and maintain the EST-3 panels regardless of their seniority. “Upon request” indicates that DMS was reserving the right to inquire into the experience of the individuals performing the work on-site, should the need arise. This provision informed the bidders that any employee performing the work is required to have a minimum of five years of experience in retrofitting the EST-3 product line. Jacksonville Sound is unable to point to any material benefit that would accrue to DMS by virtue of its selected vendor having been an Edwards strategic partner for five years or more, as opposed to three and one-half years. The record evidence indicates that all strategic partners have the same rights and duties under their agreements with Edwards, without reference to how long they have been strategic partners. The basis for award of this bid was the lowest price. DMS did not investigate the number of years a company had been a strategic partner of Edwards or the qualifications of the personnel who would perform the on-site work. The ITB?s “upon request” provision anticipates that DMS will deal with any personnel problems as they arise during the winning bidder?s performance of the contract. By submitting their bids in response to the ITB, Jacksonville Sound and FCS made firm commitments to staffing the project in accordance with DMS? requirements. Both bidders represented that they currently employ technicians who meet the standards set forth in the ITB. If that situation changes during contract performance, the winning bidder will be responsible for securing replacement personnel who satisfy the terms of the contract. In any procurement, there is always a remote potential that the winning vendor will breach or default. DMS' contract provides remedies for such defaults. In summary, it is found that the bids of both Jacksonville Sound and FCS met the requirements of the ITB generally, and of paragraph 7 of the ITB?s technical specifications in particular. The reading of paragraph 7 urged by Jacksonville Sound was not unreasonable, but could not be said to add any performance assurances to the contract beyond the given fact that all of the bidders were required to be Edwards-certified strategic partners. DMS? reading of paragraph 7 made practical sense and gave the agency additional assurance that the personnel who work on the project will have at least five years? experience in retrofitting the specified product line.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Department of Management Services enter a final order dismissing Jacksonville Sound and Communications, Inc.?s formal written protest and awarding the contract for Invitation to Bid No. MSFM-13002020 to Future Computer Systems, LLC. DONE AND ENTERED this 24th day of February, 2014, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2014.
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, Respondent, Donald J. Jernigan, possessed Florida Electrical Contractor's License No. ER0007589. Kenneth L. Smith is a general contractor in Lakeland, Florida. Respondent worked for him on occasion as a subcontractor in the electrical area. In early March 1983, Smith hired Respondent to do some electrical work on a duplex he owned which had been damaged by fire. At the time, the apartment was under contract for sale, and Mr. Smith had until April 1, 1983, to fix it up for transfer. Mr. Smith emphasizes that he had an express understanding with Respondent that all work had to be done by April 1, 1983, or he would lose the sale. Respondent, in a late-filed exhibit, presented a letter from William S. Chambers, III, a real estate agent who was involved in the proposed sale of the property in question. Mr. Chambers acknowledges that the sale was not consummated but, while not detailing the actual reason for the sale falling through, contends that at no time was the fact that the repairs were not completed given or used as a reason for the failure of the sale to go through by either party. This does not alter the fact that Mr. Smith requested that the repairs be completed by April 1, 1983. Smith called Respondent several times prior to April 1 to insure that the electrical work was done on time. At a point late in the sequence of events, he understood that the dry wall was due to be installed and the required electrical inspection had not been accomplished. When he pointed this out, Respondent told him to go ahead and hang the dry wall, as the City could inspect from up in the ceiling. Mr. Smith did this based on the representation of the Respondent; and when the final inspection was done, the inspector would not pass the property because preliminary inspection had not been accomplished. He indicated that a different electrical contractor would have to examine the work and certify that it was done properly before it could be passed without pulling out all the dry wall for a visual inspection. At this point, Mr. Smith hired Lamar Smith of Southeastern Electric to accomplish this inspection and discharged the Respondent. When Lamar Smith arrived at the apartment and turned on the power, the only things that worked in the entire apartment were the dishwasher, the disposal, and two kitchen receptacles. In the course of his inspection, he found that several home runs were left out (several feeder lines were not present) ; numerous junction boxes in the attic were not made up properly (wires were left out and not put in the boxes as required); no junction boxes in the attic were grounded; some breakers were left out in the master panel; and the door bell did not work. According to Mr. Smith, at first glance from the inside of the apartment, the electrical work looked as though it were complete; but in reality, all the rough-in had not been accomplished, and it took him two days to do the work properly. According to Mr. Meeks, the electrical inspector for the City of Lakeland and the individual who wrote the permit for this particular work, Respondent called in for the rough-in inspection on March 31, 1983. When Meeks went out to the property to conduct the inspection, he found that the dry wall was already in and he could not accomplish it. Meeks told Respondent at that time he would have to either remove the dry wall or have another registered electrician certify the wiring before they would permit that work to continue. When an apartment or any property is damaged by fire, a permit is required to rewire the damaged premises for power. This permit is required by Lakeland City Ordinance. Meeks also indicated that if a remodeling job required added wiring without tearing out the wall, the inspectors would inspect by going into the attic and crawlways if possible. However, if they were called to inspect the area that was previously open for inspection and was improperly closed in prior to inspection, they would not go up into the attic or into the crawlways to accomplish the inspection. That is policy of the Inspectors' Office. In that regard, according to Harold G. Brooks, a city permit inspector who inspected the property in question immediately after the fire to see if power in the unburned area could be turned on, the majority of damage to the burned area was in the kitchen ceiling and in the hall. This description is consistent with that of Mr. Ken Smith, the owner, who indicated that the dry wall was required in the kitchen and dining room. For some reason, the dry wall was also replaced on the living room ceiling and the back room ceiling. Respondent contends that he was trying to do this job as quickly as possible consistent with the work load he had at the time. He agrees that it was in early March when he agreed to take on the job. He looked at the house the day after it burned and presented a proposal for repairs that afternoon or the next day. He started work on the project right away and stayed on the project from the time he started work up until the inspection problem. Respondent does not recall Mr. Smith setting any deadline for completion, only a need to finish the job as quickly as possible. Mr. Jernigan admits he did not request a roof end inspection when the basic wiring was completed before dry wall. He states that this house is the type of house that may have had boxes already installed that could not be found. He does not feel that it was his responsibility to give authority to cover up the walls or the ceiling and that that decision was made by Mr. Smith, the owner. The work that he did, he contends, could have been checked through the attic shuttle, and he claims he would have corrected any deficiencies found. He further claims he was never given an opportunity to remove the dry wall for inspection prior to the final inspection and the requirement to have another electrician certify the work. Whatever the delay, it was occasioned by Respondent's failure to get the roof end inspection performed. According to Ordinance No. 2304 of the City of Lakeland, Florida, a master electrician (Respondent was a master electrician), shall request any required inspections. By Subsection (2), an inspection is required prior to wiring being concealed, and failure to timely request such an inspection constitutes a violation of the City Code. This inspection was not requested by Respondent as required by the ordinance. At a special meeting of the Building Code Board of Examiners for the City of Lakeland, Florida, held on April 25, 1983, a complaint against Respondent was considered. Respondent was charged by the electrical inspectors with negligence, incompetence, or misconduct in the doing of electrical work and a willful and deliberate disregard in violation of the City's Electrical Code. On May 24, 1983, the Chairman of the Board, on behalf of the Board, entered an Order finding that the Respondent was guilty of negligence in the performance of electrical work and willful and deliberate disregard in violation of the City of Lakeland Electrical Code. The Board went on to suspend for 90 days the Respondent's Certificate of Competency issued by the City of Lakeland and required that he pass an appropriate examination at the end of the 90-day period prior to receiving a new Certificate of Competency.
The Issue Whether Petitioner was legally justified in issuing a conditional license rating to Respondent.
Findings Of Fact AHCA is the state agency responsible for licensing and regulating nursing homes in Florida. Respondent Berkshire is a licensed nursing home located in North Miami, Florida. On April 2, 2002, AHCA conducted a survey of Berkshire and identified the violations which give rise to this proceeding. Specifically, at the time of the survey, several magnetic door locks--the record does not reveal precisely how many, although the parties agree that the number was no less than three and no more than seven out of a total of fifteen fire exit doors--did not immediately unlock upon activation of the fire alarm system. The purpose of the door locks is to prevent cognitively impaired residents from wandering away from the facility. When the magnetic lock system is working properly, the doors unlock immediately upon activation of the fire alarm. In response to the AHCA survey finding, Berkshire immediately summoned an alarm system repair person. On April 2, this individual was located somewhere in Florida's Panhandle. He left north Florida and proceeded immediately to Berkshire. The repairman determined that two wires and a circuit were reversed, most likely due to an error by Berkshire's on- site maintenance director. By the next day, April 3, the problem had been corrected and all door locks were deactivating simultaneously with the activation of the fire alarm system. Based upon the April 2 survey, AHCA issued a conditional license to Berkshire effective April 5, 2002, and imposed an administrative fine of $12,500. AHCA also placed the facility on a six-month survey cycle and assessed a survey fee of $6,000. These penalties, particularly the conditional license status, have a substantial adverse impact upon the reputation and the business interests of a nursing home. AHCA's decision to impose a conditional license status was predicated upon the opinion of its inspectors that the mechanical failure identified in the survey was, in fact, likely to cause serious injury, harm, impairment or death to a resident receiving care in the facility, and must therefore be deemed a Class I deficiency which warrants, as a matter of law, the penalties imposed. At the time of the survey, Berkshire had no history of fires, had passed its most recent annual inspection by the local fire marshal, and had a sprinkler system and fire extinguishers throughout the facility. The survey itself revealed no fire hazards. AHCA cites no statute, rule, or case which supports its view that the mechanical problem identified constitutes a Class I deficiency. Instead, it offers opinion testimony that as a result of this problem, residents were in danger on the date of the survey. That opinion testimony is based solely upon speculation. For example, AHCA's life safety inspector who participated in the survey said, ". . . we always look at, inspect the facilities under a worst case scenario type situation. In the event of a fire, we could have a situation we would have residents where the fire alarm system would activate and we would have residents attempting to exit the building. They would find that those doors, affected doors, would not be openable. They would not be able to exit the building. " In fact, the evidence established that the ability of residents to vacate the building in a safe and timely manner in the event of a fire, or fire drill, was not significantly impacted on April 2 by the mechanical problem identified. The automatic unlock feature which was not operating on less than half of Berkshire's fire exit doors is just one part of Berkshire's fire safety plan. State and federal law and Berkshire's own operating procedures provide that staff be given detailed training regarding what to do in the event of a fire; fire safety plans must be approved by the local fire marshal, and most include back up plans for system failures which can reasonably be anticipated. With reference to each of the door locks identified in the April 2 survey, the evidence established that each of these doors could be opened manually, and that there was an adequate number of able bodied staff members who could open each of the doors as may be necessary had a real fire or a fire drill occurred on April 2. Berkshire's fire safety procedures provide that when the fire alarm activates, an announcement is made over the public address system to inform all present of the fire's location. Depending upon the fire's location, staff members will respond in various appropriate ways. Within each department, various individuals are assigned to perform various functions, including, most importantly, assuring that each resident is safely escorted from the building and protected while outside. State law requires monthly tests of the fire alarm system, but Berkshire exceeds this standard with weekly tests. Fire drills are conducted for staff members who work on all three shifts, and staff are trained in evacuating residents in a manner appropriate to their individual circumstance. No matter where one is located in the building, there are multiple means of egress, and each exit door has multiple means by which it can be opened in a timely manner in the event of fire or other emergency. Monthly unannounced fire drills are conducted at Berkshire on all three shifts in an effort to ensure that staff can safely and quickly evacuate residents should the need arise. There is no evidence that staff could not have done so had a fire or fire drill occurred on April 2. Thus, AHCA's finding that the mechanical problem which existed on April 2 and which was remedied by April 3 posed a likelihood of serious injury, impairment, or death to residents in Berkshire's care is not supported by any competent evidence.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED that AHCA issue a final order dismissing the Administrative Complaints in these cases. DONE AND ENTERED this 26th day of March, 2003, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2003. COPIES FURNISHED: Nelson Rodney, Esquire Agency for Health Care Administration 8355 Northwest 53rd Street Miami, Florida 33166 R. Davis Thomas, Jr. Qualified Representative Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
