The Issue The issue to be resolved in this proceeding concern whether the Petitioner Gary L. Neal, is qualified by virtue of experience, training and education, in accordance with the provisions of Section 633.521, Florida Statutes, to sit for the Fire Protection Systems Contractor V examination for licensing.
Findings Of Fact The Petitioner Gary L. Neal seeks to take a written examination for purposes of ultimate licensure as a "Fire Protections Systems Contractor V." The Contractor V license enables a license holder to install underground water mains that are connected to a fire protection system, such as a sprinkler system. The Petitioner presently holds a Certified Plumber's License in the State of Florida and has been so licensed since March 11, 1981. He also holds a Master Plumber's License for the State of Georgia. Prior to the creation of a separate license for installation of underground water mains connected to Fire Protection Systems, the Contractor V license for which the Petitioner seeks to be examined, installation of these water mains was performed by certified plumbing contractors, including the Petitioner, and by underground utility contractors. Underground water mains installed for potable water and fire protection systems were once one and the same, before Fire Code changes mandated that these be separate lines. Even after the creation of the Contractor V license, local code enforcers took the position that plumbers and underground utility contractors could perform this work, so long as they did so under the supervision and control of Fire Protection Contractors, which practice continued until 1996. The Petitioner established that, as a Certified Plumbing Contractor since 1981, he has installed underground water mains for many years, including water mains connected to fire protection systems, as well as those connected to potable water systems. His testimony was corroborated by the sworn deposition testimony of persons who have supervised his work. See Exhibits 43, 44 and 45, in evidence. The trenching, excavation and pipe assembly skills required for installing underground water mains are the same whether the water main is used for Fire Protection Systems or used for potable water. The only substantive difference is the materials used and the testing procedures. For water mains connected to Fire Protection Systems, materials and testing are controlled by the National Fire Protection Association Code (NFPA), as adopted by the State of Florida. Knowledge of that fire code is tested on the Contractor V examination, which the Petitioner seeks to take. All other aspects of installing underground water mains, whether for use by Fire Protection Systems or for potable water, are governed by the National Plumbing Code, which applies to the work of Certified Plumbing Contractors such as the Petitioner, Certified underground utility contractors and Fire Protection Contractor V contractors. Both Florida and Georgia allow persons holding plumbers licenses to install underground utilities, work that may also be performed by underground utility and excavation contractors in Florida. Both Florida and Georgia require plumbing contractors to take continuing education courses in subjects that include the installation of underground utilities and excavation. In Florida these courses include NFPA Code material. The Petitioner demonstrated, through un-rebutted evidence that he has satisfied the continuing education requirements (annually) of both Florida and Georgia through taking formal classroom education courses in subjects that have included course work in trenching, excavation and installation of underground water mains. These classes have included course work in the National Fire Protection Association Code governing the installation of components of fire protection systems. Prior to obtaining his Certified Plumber's License in 1981, the Petitioner was employed by various underground utility and excavation contractors, including Junger Utilities, as well as certified plumbing contractors who performed underground utility and excavation contracting. The Petitioner's experience included excavation for and installation of underground water mains. The Petitioner's experience with these companies was established by his un-refuted sworn testimony since these companies are no longer in existence and could not have a representative to testify or supply letter documentation. The Petitioner has established a total experience of more than 28 years in the installation of underground water mains and other underground utilities, including the installation of water mains connected to fire protection systems. This was established through the un-rebutted testimony of the Petitioner and corroborated by the deposition testimony of witnesses Thomas M. Brown, Dale R. Cowie and Jimmy Patrick Riley. This experience was gained both as an employee of companies performing underground utilities work and through directly contracting for such work by virtue of holding a license that authorized him to contract for underground utilities work. (Certified Plumber's License). The Petitioner is employed by Professional Plumbing of NWF, Inc., as President, Chief Executive Officer, as well as qualifying agent. Professional Plumbing of NWF, Inc., the Petitioner's own corporation, is a company that, because of the Petitioner's certified plumbers license, is authorized to perform and does perform trenching, excavation and installation of underground water mains as part of its underground utilities work. The Petitioner has been employed in that position since 1987. The Petitioner's 28 years of experience in performing layout, design, excavation and underground pipe assembly has included, without limitation, the same work for which he seeks to sit for an examination; i.e., the installation of the underground components of Fire Protection Systems. The fact that the Petitioner has successfully performed not only closely related work involving installation of underground water mains, but has successfully performed and completed the very same work for which he seeks to be licensed (by virtue of his Certified Plumber's License) is relevant to the issue of whether he has demonstrated sufficient education and experience to qualify him to sit for the Contractor V examination. During the Petitioner's 28 years in his profession he has worked as a laborer, a foreman, a project superintendent and a qualifying agent for a company (Professional Plumbing of NWF, Inc.) that installs underground water mains. His experience has included layout, design, financial administration and project management for underground utilities work. The Petitioner, by virtue of being a State Certified Plumber, has gained experience in "laying-out, fabricating, installing, inspecting, altering, repairing, or servicing fire protection systems" for purposes of qualifying for the "highest level" or scope of fire protection systems license, the Contractor I license. Although such experience is not a prerequisite to qualify for the lowest level or scope of fire protection license, the Contractor V license which the Petitioner seeks; the fact that the Department recognizes by Rule 4A-46.010, Florida Administrative Code, that the Petitioner, as a plumber, gains such experience is relevant to whether the Petitioner is qualified to sit for the Contractor V examination. The Department has conceded that a Contract I License is a "higher license" or higher or broader scope of license than that of a Contractor V, the license which the Petitioner seeks. The Department also concedes that a Contractor I, without holding a separate Contractor V license, may nonetheless perform every aspect of the work that may be performed by a Contractor V. Thus a Contractor V's license is a "lesser included" license to that of a Contractor I or a Contractor II. Similarly, it has been established that an underground utility and excavation contractor's license is a "lesser included" license to that of a Certified Plumbing Contractor, as a Certified Plumbing Contractor can perform all aspects of underground utilities and excavations that may also be performed by the holder of that "lesser" license. The minutes of the Construction Industry Licensing Board in evidence, together with the associated letter in evidence, establishes that that Agency, which is charged with the jurisdiction of regulating licensure and practice of both Certified Plumbing Contractors and underground utility and excavation contractors, interprets the latter license as being a lesser included license to that of Certified Plumbing Contractor and that a Certified Plumbing Contractor can perform all aspects of underground utility and excavation contracting. See Petitioner's Exhibits 3, 4, 36, 37, 38 and 42, in evidence. The Department's witness at hearing conceded that the Petitioner's more than 20 years of experience as a Certified Plumbing Contractor was the "equivalent of" the experience that would be gained from "working for" an underground utility contractor for four years. Given that concession, and in determining whether the Petitioner qualifies by the combination of education and experience method contained in the statute relating to qualification for the Contractor V examination, it must be determined whether the "education" he has attained is equal to that he would have gained in the "employment of" a Certified Underground Utilities Contractor." In this regard, given his acknowledged 28 years of experience, the Department acknowledged that the amount of education that the Petitioner would need to demonstrate would be minimal. The Respondent has also acknowledged that the "education" that the Petitioner must show to sit for the Contractor V examination would be the type of education the Petitioner would have gained by working for an underground utility contractor for four years. It was established that the type of education that could be expected from working for an underground utility contractor for four years would not be college education or necessarily formal classroom education but rather acquiring that body of knowledge required to install underground utilities including water mains through education on the job and through continuing education courses. Even if it were assumed that the Petitioner's Certified Plumbing Contractor's license is not at least "equal to" that of an underground utility and excavation contractor's license, which therefore would automatically qualify the Petitioner to sit for the examination, the Petitioner amply demonstrated at hearing that he had obtained the same body of knowledge, i.e., "education," at a minimum, that he would have obtained by virtue of being employed for four years by a company holding the "lesser included" license, i.e., the underground utility and excavation contractor's license. The Petitioner established that he acquired the "equivalent to" education through on-the-job training during more than 28 years in the business of installing and supervising the installation of underground utilities, as well as through attending more than 100 hours of formal classroom education in subjects that taught the skills required for the bidding, estimating, layout, design and performance of underground utilities work. The Petitioner established this education through his sworn testimony, as well as documentary evidence. He introduced into evidence, supplemented by his sworn testimony, all of the documentation of these courses within his possession and control. These continuing education courses are not graded, therefore, there could be no "transcripts." Although not specifically required by the governing statute, Chapter 633, the Petitioner demonstrated that his formal classroom education includes some 53 hours of instruction in the National Fire Protection Association Code governing fire protection contractors. He demonstrated that he has obtained formal classroom instruction in courses teaching the skills required for the performance of underground utilities work. In fact it was established that Certified Plumbing Contractors such as the Petitioner and Certified Underground Utility and Excavation Contractors, such as Lee Brown, who testified for the Petitioner, often take the same continuing education courses, in the same subject, due to the overlap in their scope of work. These courses are typically taught by industry professionals who know their subjects, rather than by local colleges. In fact, the Petitioner has more than 100 hours of classroom education on subjects including course material in the NFPA Codes, as well as technical issues relating to the installation of underground utilities.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Respondent Agency allowing the Petitioner to sit for the Contractor V examination. It is further, RECOMMENDED that if the Petitioner seeks to pursue a claim for attorney's fees and costs on the basis that the Respondent Agency's position was not substantially justified, that a proper petition within the time constraints of Section 57.111, Florida Statutes, must be filed, which has not been accomplished, since no final order has yet been entered in this matter. Thus the purported claim for attorney's fees and costs cannot be addressed at this time. DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 20th day of December, 2002. COPIES FURNISHED: Edward M. Fleming, Esquire McDonald, Fleming, Moorhead, Ferguson Green & Smith, LLP 4300 Bayou Boulevard Suite 13 Pensacola, Florida 32503-2671 Elenita Gomez, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue Whether petitioner should take disciplinary action against respondent for the reason alleged in the administrative complaint?
Findings Of Fact Respondent acknowledges the accuracy of the allegations in the first seven paragraphs of the administrative complaint, including the allegation that he holds a certified residential contractor's license, No. CR C027268. He has been licensed in Florida continuously since October of 1983. Petitioner's Exhibit No. 1. On August 14, 1986, respondent Stratton, doing business as Stratton Construction Company, executed a written contract with Aaron Lee and Valerie Patrice Cobb to renovate their home at 5017 Pearl Street in Jacksonville, Florida. He had actually begun work nine days earlier. The contract contemplated installation of a pier under an unsupported sill end, replacement of 17 windows and two doors, hanging a screen door and a storm door, shortening and capping the chimney, adding a roof over the front stoop, reshingling the entire roof, painting the outside of the house, and putting hose bibbs in the front and the rear of the house. In addition, the contract called for extensive work inside the house, replacement of sheetrock, installation of insulation, congoleum, carpeting, paneling, cabinets, new kitchen and bedroom appliances, a new central heating system, and numerous other improvements and repairs. The contract price totalled $18,600, including $2,071 for a utility room. ("Remove back porch and drop flooring to allow enough height to construct 8 foot by 8 foot utility room ... inside walls unfinished ...") Petitioner's Exhibit No. 1. Exclusive of plumbing, electrical, heating, and the utility room, the value of the repairs and renovations exceeded $200.00. As "Stratton Const." respondent contracted with Williams Plumbing Co., Inc. (Williams) on September 8, 1986, to re-pipe, install a working machine drain and furnish a water closet. Respondent's Exhibit No. 3. Respondent or Williams on his behalf obtained a plumbing permit from the City of Jacksonville, No. 25997, at or about the time Williams began work, but Williams "left town" (T.43) before the project was inspected by the City. On October 2, 1986, respondent contracted with Wayne Conn Plumbing (Conn) to do additional plumbing work. In order to obtain a plumbing permit for the additional work, respondent cancelled the first permit. (T.34) The same day he signed the contract with Conn, respondent obtained a second plumbing permit, No. 28215. Respondent's Exhibit No. 1. Conn finished the plumbing work, and it passed inspection by the City. Earlier, on September 5, 1986, respondent or a subcontractor obtained a City permit authorizing electrical work at 5017 Pearl Street. On October 8, 1986, respondent or a subcontractor obtained a mechanical permit for the house's new heating system. In due course, the work authorized by these permits passed City inspections. Petitioner's Exhibit No. 7. Before he began work on the Cobb's house, Mr. Stratton had only built new homes in Florida. He was unaware of any requirement to obtain a permit to effect repairs to the interior of a house other than those he did in fact obtain. He was aware, however, of the need to secure a building permit for construction of the utility room, involving, as it did, alterations to the foundation. Nevertheless, he only applied for this permit on June 11, 1987, long after the work had been completed, and after he had become embroiled in a dispute with the Cobbs. Jacksonville's Building Code, Part 4, makes it unlawful to begin work to contract, enlarge, alter, repair, move, remove or demolish a building or structure, or a part thereof ... without having first filed an application with and obtained a permit therefor from the Building official, except that, for general maintenance or repairs, not involving replacement of components specifically requiring permits, which do not change the occupancy or affect the electrical, plumbing or mechanical systems, the value of which does not exceed two hundred dollars ... no permit shall be required ... Petitioner's Exhibit No. 4, p. 5. In beginning work without a permit to remove the back porch or to replace it with a utility room or to effect general repairs the value of which exceeded two hundred dollars, respondent violated applicable provisions of a local building code. The evidence suggested that the requirement that contractors obtain permits to effect general repairs with a value in excess of two hundred dollars is more honored in the breach than in the observance. In fact, respondent testified that somebody told him no permit is needed "if you don't change the size of the building," (T.46) i.e., alter the foundation. The Building Code also calls for mandatory inspections of foundations and framing as they are completed, but a building inspector testified that inspection of pre-formed concrete piers like those on which the utility room stands would have been foregone. Because the addition stood on (new) piers and because its interior walls remained unfinished, it was possible for the City to inspect both the foundation and the framing, even after the work was finished. John Carlton Sturdevant, a field inspector for Jacksonville's Building and Zoning Department, saw nothing wrong with the framing, nor was there evidence of any problem with the foundation.
The Issue The issues are whether Respondents have violated various statutes and rules governing persons licensed to install and service fire extinguishers and fire suppression systems and, if so, what penalties Petitioner should impose.
Findings Of Fact General Respondents hold Class A and C licenses as fire extinguisher dealers, Class D licenses as pre-engineered systems dealers, Class 01 licenses as fire extinguisher permittees, and Class 04 licenses as pre-engineered systems permittees. Respondent Todd Jacobs (Jacobs) is the qualifier for Respondent National Fire and Safety Corporation (NFS). NFS has been in the fire-safety business for about 15 years. Jacobs received his first permit about ten years ago. Neither Respondent has been disciplined prior to the suspension of all of their licenses and permits effective May 15, 1997, for the incidents described below. The suspension has remained continuously in effect through the present. Pre-engineered systems are custom installations of fire-suppression systems. These pressurized systems, which are activated by heat-sensitive fusible links and small cylinders known as cartridges, feature large metal cylinders that supply the powder through pipes to specific hazard areas. Pre-engineered systems must be installed in accordance with pretested limitations and configurations. Petitioner has cited various violations of the standards of the National Fire Protection Association. As noted in the conclusions of law, violation of these standards, which are incorporated into the rules, provide the basis for discipline. The relevant standards of the National Fire Protection Association are divided into two sections: one governs persons dealing with fire extinguishers and the other governs persons dealing with pre-engineered systems. National Fire Protection Association 10 is titled, “Standard for Portable Fire Extinguishers.” National Fire Protection Association 10, Standard 1-3 defines a “portable fire extinguisher” as a “portable device carried on wheels and operated by hand containing an extinguishing agent that can be expelled under pressure for the purpose of suppressing or extinguishing a fire.” National Fire Protection Association 10 applies to fire extinguishers, not pre-engineered systems. National Fire Protection Association 10, Chapter 4 governs the inspection, maintenance, and recharging of fire extinguishers. National Fire Protection Association 10, Standard 4-1.4 provides that “[m]aintenance, servicing, and recharging” of fire extinguishers shall be performed by trained persons “having available the appropriate servicing manual(s), the proper types of tools, recharge materials, lubricants, and manufacturer’s recommended replacement parts or parts specifically listed for use in the fire extinguisher.” National Fire Protection Association 10, Standard 4-5.1.2 requires that persons recharging a fire extinguisher shall follow the “recommendations of the manufacturer.” National Fire Protection Association 10, Standard 4-5.3.1 requires that persons recharging fire extinguishers use “[o]nly those agents specified on the nameplate or agents proven to have equal chemical composition, physical characteristics, and fire extinguishing capabilities ” National Fire Protection Association 10, Standard 4-5.3.2 prohibits persons recharging fire extinguishers from mixing “[m]ultipurpose dry chemicals” with “alkaline-based dry chemicals.” National Fire Protection Association 10, Chapter 5 governs the hydrostatic testing of fire extinguishers. Table 5-2 provides that the longest hydrostatic test interval for fire extinguishers is 12 years. National Fire Protection Association 10, Standard 5-1.2 provides that the hydrostatic testing of fire extinguishers shall be performed by trained persons “having available suitable testing equipment, facilities, and appropriate servicing manual(s).” National Fire Protection Association 10, Standard 5-5.1.1 requires that persons hydrostatically testing fire extinguishers first conduct an internal examination of the cylinder. National Fire Protection Association 10, Standard 5-5.1.2 requires that persons hydrostatically testing fire extinguishers do so in accordance with the “procedures specified in the pamphlet Methods for Hydrostatic Testing of Compressed Gas Cylinders (CGA C-1), published by the Compressed Gas Association.” National Fire Protection Association 10, Standard 5-5.2 provides that the testing procedures for low-pressure cylinders, shells, and hose assemblies are detailed in Appendix A. Appendix A contains detailed material, but, according to a prefatory statement, “[t]his Appendix is not part of the requirements of this National Fire Protection Association document but is included for informational purposes only.” National Fire Protection Association 17 is titled, “Standard for Dry Chemical Extinguishing Systems.” National Fire Protection Association 17, Standard 1-4 defines “pre- engineered systems,” in part, as [t]hose having predetermined flow rates, nozzle pressures, and quantities of dry chemical [with] specific pipe size, maximum and minimum pipe lengths, flexible hose specifications, number of fittings and number and types of nozzles prescribed by a testing laboratory.” National Fire Protection Association 17 applies to pre- engineered systems, not fire extinguishers. National Fire Protection Association 17, Standard 1-4 defines “inspection” as a “’quick’ check to give reasonable assurance that the extinguishing system is fully charged and operable.” The definition adds that this is done by “seeing that the system is in place, that it has not been activated or tampered with, and that there is no obvious physical damage or condition to prevent operation.” National Fire Protection Association 17, Standard 3-8.3.1 requires that the dry chemical container and expellant gas assemblies of a pre-engineered system shall be located “so as not to be subjected to severe weather conditions or to mechanical, chemical, or other damage.” National Fire Protection Association 17, Standard 3-9.1 provides that, for pre-engineered systems, the “pipings and fittings shall be installed in accordance with good commercial practices.” National Fire Protection Association 17, Chapter 9 governs the inspection, maintenance, and recharging of pre- engineered systems. National Fire Protection Association 17, Standard 9-1.1 provides that, when dry chemical pressure containers are not attached to piping or hand hose lines, the discharge outlet shall have a protective diffusing safety cap to protect persons from recoil and high-flow discharge in case of accidental activation. The caps shall also be used on empty National Fire Protection Association 17, Standard 9- 1.4 provides that “[a]ll dry chemical extinguishing systems shall be inspected in accordance with the owner’s manual and maintained and recharged in accordance with the manufacturer’s listed installation and maintenance manual and service bulletins.” National Fire Protection Association 17, Standard 9-3.2 provides that “[f]ixed temperature-sensing elements of the fusible metal allow type shall be replaced at least annually from the date of installation. They shall be destroyed when removed.” National Fire Protection Association 17, Standard 9-3.2.1 provides that the “year of manufacture and date of installation of the fixed temperature-sensing element shall be marked on the system inspection tag[,]” and the “tag shall be signed or initialed by the installer.” National Fire Protection Association 17, Standard 9-4.2 provides that “[s]ystems shall be recharged in accordance with the manufacturer’s listed installation and maintenance manual.” National Fire Protection Association 17, Standard 9-5 requires that trained persons hydrostatically testing pre- engineered systems have “available suitable testing equipment, facilities, and an appropriate service manual(s).” This standard requires hydrostatic testing at 12-year intervals for the dry chemical container, auxiliary pressure containers (unless less than two inches in outside diameter and two feet in length or unless they bear the DOT stamp, “3E”), and hose assemblies. National Fire Protection Association 17, Standard 9-5.1 requires that persons hydrostatically testing pre- engineered systems subject the tested components of hydrostatic test pressure equal to the marked factory test pressure or the test pressure specified in the manufacturer’s listed installation and maintenance manual. This test prohibits any leakage, rupture, or movement of hose couplings and requires test procedures in accordance with the manufacturer’s detailed written hydrostatic test instructions.” National Fire Protection Association 17, Standard 9-5.2 requires that persons hydrostatically testing pre- engineered systems remove and discard the dry chemical agent from the containers prior to the test. Page Field (Counts I and II) In March 1997, Rick Clontz, a Lee County employee, asked Roland Taylor, an NFS employee, to service components of the fire-safety system at the Lee County Hazardous Materials Facility at Page Field in Fort Myers. This fire-safety system protects an area at which Lee County stores corrosive, flammable, and poisonous materials. Initially, Mr. Taylor removed three ten-pound ABC fire extinguishers. These are small portable cylinders, whose “ABC” designation refers to their ability to suppress a broad range of fires. According to the National Fire Protection Association standards, Class A fires involve “ordinary combustible materials, such as wood, cloth, paper, rubber, and many plastics.” Class B fires involve “flammable liquids, oils greases, tars, oil-based paints, lacquers, and flammable gases.” Class C fires involve “energized electrical equipment . . . .” On April 1, 1997, Mr. Taylor returned the three 10- pound ABC fire extinguishers. Later inspection revealed that Mr. Taylor had properly removed and discarded the ABC powder from each cylinder, but he had refilled only one of the three cylinders entirely with ABC powder. He erroneously filled the other two cylinders with mixtures of 75 percent and 50 percent BC powder. The improper filling of two of the fire extinguishers at the Page Field Hazardous Materials Facility threatened the public health, safety, and welfare. Meeting Mr. Taylor at the Page Field facility when Mr. Taylor returned the three small cylinders, Mr. Clontz asked him to remove the 50-pound Ansul SPA 50 cylinder and hydrostatically test it. Mr. Taylor noted that the cylinder was not yet due for this test, but quoted a price to which Mr. Clontz agreed, and Mr. Taylor disconnected the cylinder from the pre-engineered system and transported it from the site. Hydrostatic testing is a hydraulic interior pressurization test that measures ductility, which is the ability of cylinder walls to expand and contract. The purpose of hydrostatic testing is to determine the suitability of a cylinder for continued service. Hydrostatic testing requires the tester to release the pressure and empty the contents of a cylinder. Using specialized equipment, the tester then fills the cylinder with water, pressurizing it to twice the service pressure or, for the systems cylinders involved in this case, 1000 pounds per square inch. Cylinder failure from the loss of structural integrity can result in a dangerous rupture, possibly causing an improperly bracketed cylinder to launch like an unguided missile. A cylinder that passes its hydrostatic test does not have to be retested for 12 years. Three days later, Mr. Taylor returned the Ansul cylinder with a tag stamped to show the date on which NFS had hydrostatically tested the cylinder. Mr. Taylor reconnected it to the pre-engineered system, changing the three fusible links. However, Mr. Taylor did not tighten the actuation piping wrench-tight, as required by the manufacturer’s specification. Instead, Mr. Taylor left the actuation piping sufficiently loose that it might cause a failure of the pre- engineered system to activate. As Respondents conceded, the loose actuation piping threatened the public health, safety, and welfare. Finished with his work, Mr. Taylor gave Mr. Clontz a receipt, but no diagram or report, as Mr. Clontz usually received after such service. Consistent with the work requested by Lee County, the receipt stated that NFS had hydrostatically tested and recharged the three ten-pound and one 50-pound cylinders. However, NFS had not hydrostatically tested the 50- pound Ansul SPA 50 cylinder. NFS had not even changed the powder in the cylinder. Jacobs was personally aware of these facts and personally authorized the deceitful stamping of the tag to show a hydrostatic testing. The fraudulent misrepresentation concerning the hydrostatic testing of the Ansul SPA 50 cylinder threatened the public health, safety, and welfare. Additionally, NFS had replaced the three fusible links with three other fusible links. Petitioner failed to prove that there are material differences between the two types of links so as to justify discipline. There are two differences between the links. First, NFS used Globe links rather than Ansul links. However, Ansul links are manufactured by Globe. The Ansul expert testified that Ansul subjects the links to an additional inspection. However, the record does not reveal whether Globe does not also subject its brand-name links to another inspection that it does not perform for the links that it manufactures for Ansul. The Ansul expert did not testify as to the defect rate resulting from the Ansul inspection or any difference between the performance of the “two” links. On this record, then, there is no demonstrated difference in the two brand-named fusible links. The second difference is that NFS installed an ML link rather than the newer K link currently in use. Ansul approved the ML link in the Ansul SPA 50 pre-engineered system until five years ago. At that time, Ansul authorized use of the older ML link until dealer inventories were depleted. Even assuming that the K link represents a safety advance, compared to the ML link, Ansul’s gradual introduction of the new link precludes a finding that the difference was material, unless one were to assume that Ansul disregarded public safety when authorizing the gradual introduction of the new link. Respondents conceded that they did not have a copy of the Ansul SPA 50 manual when they serviced the Ansul SPA 50 system. They have since obtained the manual. Petitioner failed to show that the failure to have the manual threatened the public health, safety, or welfare. Respondents conceded that they did not produce the inspection form for the system. They had provided such a form previously. Petitioner failed to show that the failure to produce an inspection form threatened the public health, safety, or welfare. At the hearing, Petitioner agreed not to pursue the claim against Respondents regarding the LT10R cartridge. Petitioner effectively conceded that Respondents were not required to hydrostatically test the cartridge because it is exempt from such testing. Petitioner evidently elected not to pursue the recharging issue for other reasons. Mobile Service Units (Counts III-V The service truck operated by Mark Thackeray did not have a conductivity tester, certified scales, or proper manuals. The conductivity tester ensures that the braiding is intact on carbon dioxide hoses. The certified scales ensures that the cylinder is filled with the proper amount of dry chemical. The manuals ensure that the person servicing a pre- engineered system understands all of its components and how it works. Additionally, one cylinder in the truck had a drill bit instead of a safety pin installed in the head of the bottle. Petitioner also proved that the fire extinguisher and pre-engineered system tags bore the Naples and Fort Myers addresses for NFS. As noted below, the Fort Myers location was inactive, used only for storage and drop-offs and not for shop work or retail sales activity. For several years, Petitioner’s representatives knew that the tags bore both addresses and knew that the Fort Myers location was inactive, but never objected to Respondents’ practice. The only violation involving Mr. Thackeray’s truck that threatened the public health, safety, or welfare was the failure to have certified scales. The service truck operated by Ward Read lacked an operational inspection light, six-inch vise, and proper manuals. Additionally, Mr. Read’s truck had tags with the Fort Myers and Naples addresses for NFS. However, none of these violations involving Mr. Read’s truck threatened the public health, safety, or welfare. Petitioner failed to prove that Mr. Read’s truck lacked leak testing equipment. The truck had a bottle of Leak Tech with which to detect leaks in fire extinguishers. The truck also had a cable-crimping tool. The truck lacked a Kidde tool, but Petitioner failed to prove that Mr. Read installed Kidde systems off this truck or that the crimping tool present on the truck could not service adequately Kidde installations. The service truck operated by Donald Zelmanski lacked an inspection light, a six-inch vise, certified scales, leak-testing equipment, and proper manuals. Mr. Zelmanski’s truck contained tags with the Fort Myers and Naples addresses. The only violation that threatened the public health, safety, or welfare was the failure to have certified scales. Naples and Fort Myers Facilities (Counts VI-VII) The NFS Naples facility lacked operational hydrostatic test equipment on April 9, 1997. Respondents claim that they were having the equipment upgraded and calibrated at the time of the inspection. Ordinarily, this defense might be creditable, but not in this case. While the hydrostatic test equipment was out of service, NFS accepted the Page Field cylinder for hydrostatic testing and returned it to service, fraudulently representing that the cylinder had been hydrotested. This is precisely the practice against which the requirement of operational testing equipment is designed to protect. The Naples facility also lacked certified gauges for low-pressure testing. Respondents claim that the equipment upgrade described in the preceding paragraph would allow them to test high- and low-pressure cylinders on the same machine. However, due to Respondents’ fraudulent handling of the Page Field cylinder during the equipment downtime, this defense is unavailing. The Naples facility lacked an adapter to allow Respondents to recharge an Ansul SPA 50 cylinder. Jacobs drove the Page Field cylinder to St. Petersburg to have the cylinder recharged by a competitor that had such an adapter. However, the requirement that a facility have an adapter reduces the risk that a licensee will ignore its professional responsibilities and simply return a cylinder to service without first discharging it and performing a visual internal inspection. Respondents’ failure to discharge their other professional responsibilities underscores the materiality of the requirement that they keep an adapter for the Ansul SPA 50 that they elected to accept for service. Respondents kept tags at the Naples facility with tags containing addresses of the Naples and Fort Myers facilities. At the time of the inspection, Respondents also lacked documentation for two of eight scales, including a scale in 1/4-pound increments. Jacobs’ claim that they sent the two uncertified scales for servicing immediately after the inspection does not obviate the fact that, at the time of the inspection, they were available for use and in disrepair. Respondents failed to include serial numbers of serviced fire extinguishers on the relevant invoices. Respondents also failed to include the necessary permit number on inspection forms. Respondent falsely represented that they had hydrotested the Page Field Ansul SPA 50 cylinder at the Naples facility when they had not done so. Respondents stored cylinder bottles without safety caps in place. Petitioner failed to prove that Respondents did not post DOT certification near the hydrostatic testing equipment or that they stocked nitrogen cylinders without an acceptable blow-out disk in place. The blow-out disks were not Ansul brand, but Petitioner failed to prove that the disks were not UL listed or the substantial equivalent of Ansul disks. Respondents concede that the Fort Myers location lacked the items alleged by Petitioner. However, the Fort Myers location is inactive and serves merely as a drop-off or storage facility. All shop work and retail sales activities occur at the Naples location. At the time of the April 1997 inspection, Respondents surrendered the license for the inactive Fort Myers location. Other Jobs (Counts VIII-XI) Respondents installed a pre-engineered system at the SunTrust Bank in Naples. The cylinder is in the bank vault, which it is designed to protect. Petitioner charged that Respondents improperly located the cylinder in the hazard area, but Petitioner did not discuss the fact that the cylinder at Page Field was in the hazard area. Obviously, the corrosive effect of the hazardous materials at Page Field represents a greater risk to the cylinder than the corrosive effect of money and other valuables in the vault at the SunTrust. Additionally, some language in the Ansul manual cautions not to locate the cylinder in the hazard area, but only if the hazard is corrosive. Respondents replaced the fusible links at SunTrust annually. However, they failed to record the year of manufacture of the fusible links on the system tag when last servicing the system in October 1996. There is no evidence as to whether Respondents had suitable Ansul manuals and adapters when it serviced the system at that time. Respondents installed a pre-engineered system at the VFW Post in Naples. In doing so, their employee, who also misfilled the three fire extinguishers at Page Field, left the end-pipe-to-nozzle loose, so as to risk a loss of pressure in case of fire. This condition threatened the public health, safety, and welfare. Although Respondents fired this employee shortly after discovering his poor performance, this action does not eliminate the safety violations for which he, and they, are responsible. Petitioner also proved that Respondents located the 260 nozzle over the griddle in the wrong location. This condition threatened the public health, safety, and welfare because the system might not extinguish a fire on the griddle. Petitioner failed to prove that Respondents located the 230 nozzle in the wrong location. The Ansul manual allows this nozzle to be located anywhere along or within the perimeter of the fryer, if aimed to the center of the fryer. The 230 nozzle was so located and aimed. Respondents installed two pre-engineered systems at Mozzarella’s Café in Naples. In the course of this job, Respondents committed several violations governing documentation. Respondents improperly combined two pre- engineered systems on one inspection report, failed to include in the inspection report references to the manufacturer’s drawings and page numbers, failed to list in the inspection report a second gas valve on the front hood of one system, and failed to include in the inspection report Respondents’ permit number. However, Petitioner failed to prove that Respondents failed to list in the inspection report the type of fusible links in each hood. Respondents serviced a pre-engineered system at Kwan’s Express in Fort Myers in December 1996. Respondents failed to list in the inspection report the degree and types of fusible links installed and a reference to the drawing and page number in the manufacturer’s manual. However, Respondents listed in the inspection report the model number of the system. Red Lobster (Count XII) Several months after Petitioner had suspended Respondents’ licenses and permits, counsel for both parties negotiated a settlement agreement. Under the agreement, Petitioner would immediately lift the suspension. Jacobs and his general manager, Judson Schroyer, learned that Respondents’ counsel had received an unsigned, final draft settlement agreement on Monday, August 18, 1997. The settlement conditions were acceptable to Respondents, and Jacobs knew that Respondents’ counsel had signed the agreement and faxed it back to Petitioner’s counsel for execution by Petitioner’s representative. On August 18, the general manager of the Red Lobster in Naples called NFS and spoke with Jacobs. The general manager described a job involving the installation of a new oven, which would necessitate the relocation of other kitchen equipment a few feet. Thinking that the settlement agreement would be fully executed by then, Jacobs agreed to visit the general manager at the site the following morning. The next morning, Jacobs and Mr. Schroyer met the general manager at the Red Lobster. Giving the general manager NFS business cards with their names, Jacobs and Mr. Schroyer briefly examined the pre-engineered system in the kitchen, as the three men walked through the kitchen, and assured the general manager that there would be no problem doing the work in the short timeframe that the customer required. The purpose of the visit was much more for marketing than it was for preparation for the relatively simple job that the general manager envisioned. Shortly after leaving the Red Lobster, Mr. Schroyer realized that Respondents might not have their licenses and permits reinstated in time to do the job. He conveyed this concern to his supervisor, Jacobs, who spoke with Respondents’ counsel on the evening of August 19 and learned that they could not do the job. Jacobs instructed Mr. Schroyer to call another company in Fort Myers, FireMaster, to which Respondents had referred work during their suspension. Mr. Schroyer called a representative of FireMaster, and he agreed to perform the work. FireMaster assigned the job to Ward Read, who, as is authorized by Petitioner, held a dual permit, which means that he was permitted to work for two licensed dealers. One was NFS, and the other was FireMaster. Mr. Read reported to the Red Lobster in the predawn hours of August 21, as requested by the general manager of Red Lobster. Because his FireMaster truck had insufficient supplies, Mr. Read used an NFS truck, the equipment tags, inspection report, and invoice all bore the name of FireMaster.
Recommendation It is RECOMMENDED that the State Fire Marshal enter a final order suspending the licenses and permits of both Respondents for two years, commencing from the effective date of the earlier emergency order of suspension. DONE AND ENTERED this 12th day of December, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1997. COPIES FURNISHED: Attorney Mechele R. McBride Attorney Richard Grumberg Department of Insurance and Treasurer 200 East Gaines Street Tallahassee, Florida 32399-0333 Mark H. Muller Quarles & Brady, P.A. 4501 North Tamiami Trail Naples, Florida 34103 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact The Department of Insurance and Treasurer (Department), Petitioner/Respondent herein, is the state agency responsible for the regulation, management and certification of fire protection systems contractors. In furtherance of its duties as regulator, the Department filed an Administrative Complaint against Respondent/Petitioner Gardner calling into question conduct by Gardner as a Contractor IV and issued a letter denying him certification as a Contractor II based upon that conduct. On May 18, 1988, Gardner initially applied for certification as a Contractor II. Gardner requested, and was scheduled to take the Contractor II examination for certification on July 11, 1988, however, he never completed that examination. This was evidenced by a blank examination and answer sheet which had been prepared for and assigned to him. Further evidence of Gardner having failed to sit for the Contractor II examination is a confirmation letter from him explaining that he failed to appear at the examination. Gardner was offered a second opportunity to take the examination for a Contractor II certificate whereupon he replied that he would like to sit for the September 19, 1988 examination or the October 10, 1988 exam. Gardner was unable to sit for the September 19, 1988 examination as he failed to qualify under the Department's applicable two-week prior notice rule which was referenced in the letter of inquiry sent to him asking of the dates that he was available to sit for the exam. Gardner was never rescheduled to take the Contractor II examination during October and he opted, instead, to be examined for Contractor IV credentials. During August 1988, Gardner applied for certification as a Contractor IV and he sat for that exam on October 10, 1988. The Department issued Gardner his license as a Contractor IV on January 12, 1989. From that date to the present time, he has been continuously licensed as a Contractor IV. Gardner has not submitted any renewal fee or form for licensure for any class other than Class IV. Starting in 1988, Gardner, or agents on his behalf, began altering certificates of competency issued by the Department and presented them to various local building agencies, including the Cities of St. Petersburg and Gulfport, indicating that he was licensed as a Contractor II. One altered certificate submitted by Gardner indicating Contractor II licensure status carried an issue date of July 1, 1988, a date prior to the time when Gardner was scheduled to sit for his first examination for a Contractor II, i.e., July 11, 1988. Additionally, the license number shown on that altered certificate carried the control number associated with the contractor licensure of Ronald Cox, a witness who testified in this proceeding. Other indicia of the fact that that certificate was altered is that the print (font) of Gardner's name and address information was different from the other print on that certificate. That fact is significant since the Department has never used more than one certificate printer which has only one font. This procedure of printing certificates has been uniform during the entire nine-year life of the Department's computerized licensing program. Gardner was able to obtain permits based on the altered certificates that he submitted to the City of St. Petersburg. Some of the permits that he obtained as a result of that altered certificate were of the type work that only a Contractor II could legally perform as the work was of a commercial nature in buildings occupied by the public at large. Other instances of Gardner altering certificates of competency issued to him was one certificate with the initial date of August 8, 1989, which was a renewal certificate of competency showing licensure as a Contractor IV. The type and class code was "7-18" which correlated with that of a renewal for a Contractor IV with a document control number shown as FM00208. The language shown on the certificate identified the limited activities which could be performed by a Contractor IV. However, the certificate that Gardner presented to various governmental officials upon request, which certificate was altered, indicated the exact same information as above including document control number, type and class code, but included language which explained the type of activities attributed to Contractor II certification. Gardner also showed a similar altered exhibit to the Department's special investigator, P. Gruda, during his investigation of Respondent. From 1988 to the present, Gardner has been engaged solely in installing fire protection systems in commercial-type establishments. Some of his commercial activities included bidding on the installation of commercial sprinkler systems at the Gulfport Casino, a 15,000 square foot ballroom dance hall in Gulfport, Florida, and the Sir Speedy Printing building in Clearwater, Florida, on January 23, 1991. Gardner bid on a project for installation of a fire-sprinkler system at the Casino building in Gulfport, Florida, which included submitting a check on August 23, 1991, for the bid. Gardner was the low bidder, however, he did not receive the contract award because Gulfport City officials checked his licensure status and was able to determine that he was not licensed by the Department as a Contractor II, a requirement for all bidders. 1/ Throughout the process, Gardner was able to furnish original documentation associated with Contractor IV certifications dating back to 1988. Likewise, throughout the Department's investigations, Gardner was only able to provide copies, which were obviously altered, designating him certified as a Contractor II. On February 5, 1991, Gardner submitted an original application for licensure as a Contractor II. That application included materials and fees consistent with an original application. Gardner made no indication to the Department that he was previously licensed as a Contractor II. Gardner's application for certification as a Contractor II was denied by the Department by letter dated March 27, 1991 citing his involvement with construction activities without proper license by the Department. Given the facts and circumstances found herein, the Department's denial was proper.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended: The Department of Insurance and Treasurer issue a final order revoking Respondent/Petitioner's license as a Fire Protection Systems Contractor IV. Enter a final order denying Respondent/Petitioner's application for certification as a Contractor II. RECOMMENDED in Tallahassee, Leon County, Florida, this 30th day of July 1992. 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 30th day of July 1992.
Findings Of Fact At all times, material to this case, Petitioner has been licensed by the Department to operate an adult congregate living facility (ACLF) which is located at 6200 West Fairfield Drive, Pensacola, Florida, and is known as the Warrington House. Francis Cooper is the sole shareholder and operator of the Warrington House. Prior to 1984, the Warrington House was known as the Heritage House and was owned by a Mr. Mitchell. Sometime in 1984, Mr. Mitchell was criminally charged with elderly abuse on his residents and the Heritage House went into receivership. Another branch of HRS who was represented by Esther Ward, asked Ms. Francis Cooper to take over the facility. HRS was apparently well satisfied with Ms. Cooper's qualifications in running an ACLF since she had another such facility. When Ms. Cooper took over the Heritage House the electrical power to the facility was about to be turned off. Only by Ms. Cooper's pleading with Gulf Power was that circumstance forestalled. There were only thirteen (13) patients at the facility out of the sixteen (16) that were supposed to have been there. Three (3) of the patients had been mysteriously removed during the night. The residents that were at the house could not identify themselves and very few resident records were at the facility. The building was infested with roaches, there was raw sewage in the yard and the sewage system was completely blocked to the extent that sewage came up through the showers when a toilet was flushed. There was urine in every carpet. None of the appliances in the house worked. There were no air conditioners, fans or plastic dishes. The floors were in bad shape. In fact, Ms. Cooper fell through two of the bathroom floors. When Ms. Cooper questioned HRS representatives about the appalling conditions of the facility, she received no responsive answer. After Ms. Cooper had taken over the facility, she discovered that Mr. Mitchell had absconded with three months advance rent from the residents. Ms. Cooper, therefore, had to operate the premises for three months without income from the residents that were there. She used her own money. Ms. Cooper started with the air conditioning, flooring and carpeting. All these items were replaced. The bathrooms were tiled and additional bathrooms were added. She put in a $6,000.00 sewage system, a lift station and paid $1,000.00 to hook the building onto city sewage. She also brought in an exterminator to get rid of the bugs. All of this took place over a period of two years wherein Ms. Cooper worked diligently to bring the building up to "snuff." In fact, in the time since she has had the facility she has accomplished wonders in improving conditions at the house. These conditions clearly did not appear overnight, but over several years and were apparently overlooked by Respondent until the crisis with Mr. Mitchell had occurred. Ms. Cooper went into the house with the understanding that the corporation would eventually build another facility and close what had become the Warrington House. The reason for the new construction was that the current building, regardless of the amount of repair, was still an old building not worth maintaining and which was allowed to deteriorate badly prior to her stewardship. However, due to a falling out with her brother, who was then a co- shareholder of the corporation, Ms. Cooper was unable to complete her plans for moving the residents of the Warrington House to a new facility. She continues to attempt to obtain financing to build a new facility. At least once a year, HRS does a full survey on a ACLF like the Warrington House. A full survey is simply an inspection of the property in order to determine the degree of compliance with HRS rules and regulations. Upon completing the inspection, the inspector goes through an exit briefing with the ACLF's management. During the exit briefing, the inspector will go over any deficiencies he or she has discovered and attempt to establish mutually agreeable correction dates. The inspector also explains that these time periods are the best estimates that they can come up with at that point to allow a reasonable amount of time for the required corrections to be made. If any problems should arise, the inspector requests that the manager communicate with his or her office and ask for an extension. Extensions are not always forthcoming. After the full survey inspection is done, a follow-up visit is normally scheduled to determine whether the earlier cited deficiencies have been corrected. If, after the follow-up survey there are items that are still not corrected, the inspector will explain to the person in charge that they are subject to administrative action and that he or she will report he facility's noncompliance to his or her office. Whether or not administrative action is taken is determined at a level above the inspector. However, it appears that the customary practice of the office is to pursue an administrative fine for any noncompliance after the correction date has been passed. After the first follow-up survey has been made it depends on the particular factual situation whether or not further follow-up surveys are made until compliance is achieved. If there are efforts being made to correct the problems further follow-up surveys will be made. If not, further follow-up surveys may not be made. In this case, James Temkin, an HRS Fire Protection Specialist, performed a full survey fire safety inspection on the Warrington House on September 24, 1986. During that survey, he cited 11 deficiencies. Various compliance dates were established for the deficiencies. A follow-up survey was conducted by Mr. Temkin on January 14, 1987. During that survey, he noted that 6 of the previously cited deficiencies had not been corrected. He recommended administrative action on all the uncorrected deficiencies. The six remaining uncorrected deficiencies were as follows: No up to date fire plan and the July 7th fire drills were not documented; No fire alarm test since July 1986 and fire alarm zones were not shown on the actuator panel; Smoke detectors not working in four (4) rooms; Exit sign lights burned out at the front and center exits, emergency lights not working at the front, rear and upstairs exit halls; Sleeping rooms had hollow core doors; and There was no documentation of fire safety on the wood paneling and tile ceilings on the first and second floors. All other deficiencies cited during the September 24, 1986 full survey were corrected. As to the alleged deficiencies contained in the latter half of (b) and (c)-(f) above, none appear at any point in HRS' rules governing ACLF's. Supposedly, these deficiencies are cited in the NFPA life safety code, which is incorporated by reference in the Fire Marshal's rule on ACLF's, Rule 4A-40, Florida Administrative Code. The 1984 version of Rule 4A-40, Florida Administrative Code is incorporated by reference in HRS' rule, Rule 10A-5, Florida Administrative Code. Both HRS' rule and the Fire Marshal's rule are contained in the Florida Administrative Code. However, the 1984 version of NFPA is nowhere to be found in the Administrative Code. The current Fire Marshal's rule adopts portions of the 1985 NFPA life safety code. However, the HRS' rule adopts the 1984 version of the Fire Marshal's rule. No showing was made by Respondent as to what the 1984 version of the NFPA code contained. The HRS inspector's testimony regarding a particular deficiency's inclusion in the NFPA cannot be relied on since both inspectors apparently used the 1985 version of the NFPA which is not the 1984 version included in HRS's rule. Without proof of the contents of the NFPA, HRS has failed to prove any deficiencies for which it may take administrative actions. As to the other deficiencies, attempts to comply were in fact made by the Warrington House. The facility's personnel in fact thought they had complied with HRS' desires based upon previous inspections. However, for one reason or another, these attempts were rejected by the HRS inspector and the deficiency was cited again, but because of another reason. The lack of an up- to-date fire plan (cited in (a) above) was met by the Warrington House when they obtained a fire plan prior to the established correction date from another arm of HRS responsible for devising such plans. However, upon the January 14th follow-up inspection, the plan obtained from HRS by Petitioner was considered insufficient in that it did not outline staff responsibilities during a fire. The same thing occurred with the lack of fire alarm tests, cited in the latter part of (a) and the first part of (b) above. The Warrington House obtained the testing document and test from another branch of HRS responsible for such testing. However, the inspector at the follow up survey did not deem his own agency's testing documents sufficient since it did not show a different type sending unit was being tested at least once a year. 1/ These are simply not repeat deficiencies since in each instance the earlier grievance had been met and it was another grievance which cropped up. On July 9, 1987, a second follow-up survey to the Temkin September 24, 1986, full survey was performed by O.B. Walton, an HRS fire safety inspector. The evidence was not clear as to any remaining uncorrected deficiencies, if any, he found. Therefore, Respondent failed to establish any repetitive deficiencies as a result of the July 9 follow-up survey. Apparently, however, Mr. Walton, did perform another full survey on July 9, 1987. Several additional deficiencies were cited by him. A follow-up visit was conducted by Mr. Walton on October 23, 1987. Four alleged deficiencies remained uncorrected as follows: Ceiling not repaired in hot water heater closet, i.e. not taped; Kitchen fire door latch was jammed open so it would not latch, but it would stay closed; Plug by hot water heater had no cover; No documentation that drapes were fire retardant. Again, none of the above alleged deficiencies appear in HRS' rules or in the fire marshal's rule and a reasonable person could not glean from any of the other provisions contained in HRS' rules that the above conditions might be included in these provisions. The lack of clarity or uniformity in interpretation of HRS' rules is especially born out in this case since two different inspectors while inspecting the same building cited different deficiencies under their respective interpretation of the rules. When the experts differ it is difficult to see how a reasonable lay person could even begin to know or understand the contents of HRS or the Fire Marshal's rules. This lack is especially true since the relevant contents of the 1984 NFPA life safety code are not contained in the Florida Administrative Code and were not demonstrated by HRS. HRS, therefore, failed to prove any repeat deficiencies from the October 23, 1987 follow-up survey. A third fire safety follow-up visit was conducted by Pat Reid, a human services program analyst, on January 21, 1988. She has no expertise or license to perform fire safety inspections. She found all of the earlier cited uncorrected deficiencies corrected except for the documentation on the drapes. That alleged deficiency was partially corrected since Petitioner was replacing the drapery with metal blinds. However, as indicated earlier the lack of documentation for fire retardant drapes was not proven to be a violation by Respondent. Ms. Reid had previously conducted a full survey of Petitioner on August 17 and 18, 1987 in her area of expertise operation and general maintenance of an ACLF. Several deficiencies were cited and correction dates were established. Ms. Reid conducted a follow-up survey to the August 17 and 18 full survey on October 23, 1987. The following alleged deficiencies had not been corrected: Facility staff do not have documentation of being free of communicable diseases; The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease; Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom; Faucet of first floor bathroom is loose; Carpeting in first floor resident room (#7) is badly stained; Three vinyl chairs in dining room have tears, exposing foam padding; Second floor bathroom faucet nearest exit does not clearly distinguish between hot and cold water taps. As to the alleged deficiency contained in (a) above, the regulations do not contain a requirement that any documentation be kept regarding staff members being free of communicable disease. The regulations only require that the facility administrator assure that staff is free of communicable disease. The evidence showed that Petitioner had in fact assured that the staff was free of communicable disease. Therefore, no violation occurred. The alleged deficiency cited in (b) above does constitute a violation of Rules 10-5.081(1)(b), (2)(a)4.d., and (2)(b), Florida Administrative Code. However, in this instance, there are several mitigating circumstances. Foremost is the fact that Petitioner attempted on several occasions to obtain this information from another arm of HRS who had M. B. under its care prior to his admission to Petitioner's facility and had actually failed to complete M. B.'s Health Assessment form properly. Petitioner received many assurances from HRS that it would obtain and forward the information. HRS failed to do so. Moreover, after several years of M. B. living at the Warrington House and after several years of HRS care prior to his admission, common sense would dictate that M. B. is free of communicable diseases. Petitioner has in fact received confirmation of that fact from an examining physician who certified M. B. free of communicable diseases. 2/ As to (c) above, the evidence showed that the windows were only cracked and not broken. No evidence was presented as to the severity of the cracks. Cracked windows are not included in Rule 10A-5.022(a), Florida Administrative Code, which only addresses broken window panes. Moreover, cracked windows without proof of the severity of the cracks is not sufficient evidence of the lack of good repair or other hazardous conditions similar to those listed in Rule 10A-5.022(a), Florida Administrative Code. The Rule requires proof of the hazardous nature of such a condition. Cracked windows are not hazardous in and of themselves and no showing was made that these cracked panes constituted a hazard. Nor do cracked window panes standing alone constitute a violation of Rule 10A-5.022(d). The rule requires evidence that such cracked panes are unreasonably unattractive and no showing was made that the cracks were unreasonably unattractive. Likewise, the missing shower tile in (d) above fails to constitute a violation of Rule 10A-5.022(a) since the deficiency is not listed, and no showing was made that the missing tile constituted a hazardous condition. Similarly, the missing tile, by itself, does not constitute a violation under Rule 10A-5.022(d) since no showing was made that the missing tile was unreasonably unattractive. The same failure of proof occurs with the alleged deficiencies listed in (e), (f), (g), (h) and (i). See Rules 10A-5.022(c), (e) and (i). The alleged deficiency cited in (j) above does constitute a violation of 10A-5.023(9)(e). However, the violation was not repeated after October 1, 1987, the effective date of Section 400.414(2)(d), Florida Statutes. Ms. Reid conducted a second follow-up survey to the August 17 and 18 full survey when she performed the fire safety follow-up on January 21, 1988. All previously cited deficiencies had been corrected except for: Facility staff do not have documentation of being free of communicable diseases. The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable diseases. The following maintenance problems exist: broken or cracked window panes in windows of second floor exit door, both first floor bathrooms and resident room identified as W. S. A third follow-up was conducted by Ms. Reid on April 15, 1988. All the previously cited deficiencies had been corrected except for: The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease. Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom. All of the alleged deficiencies cited in the January 21, 1988 follow- up and the April 15, 1988 follow-up survey were carried forward from the alleged deficiencies discussed above, cited in the October 23, 1987 follow-up survey. The same findings are made as to the alleged deficiencies which were carried forward. Only the physical health assessment of M. B. was cited by Respondent and shown to be a repeated deficiency since the information was not obtained by the established correction dates occurring after October 1, 1987. By the date of the hearing all the above alleged deficiencies had been corrected. Respondent notified Petitioner that it proposed to deny renewal of Petitioner's license to operate the Warrington House on December 23, 1987. The basis for the denial was Section 400.414(1) and (2)(d) which states: 400.414 Denial, revocation, or suspension of license; imposition of administrative fine; grounds. The department may deny, revoke or suspend a license or impose an administrative fine in the manner provided in chapter 120. Any of the following actions by a facility or its employee shall be grounds for action by the department against a licensee: * * * (d) Multiple and repeated violations of this part or of minimum standards or rules adopted pursuant to this part. The language of Subsection (d) was added to Section 400.414 F.S. on October 1, 1987. Prior to that date Respondent had no authority to take punitive action against the license of an ACLF licensee for multiple and repeated violations of Respondent's statutes and rules. The only action Respondent could take against a facility for such violations was in the form of a civil fine the amount of which could be raised if the violation was repetitive. Section 400.426, Florida Statutes. No multiple violations were shown by the evidence through the April 15, 1988 follow-up survey. More importantly, however, no multiple violations were shown by Respondent after October 1, 1987, the effective date of the statutory language at issue in this case. No showing was made by Respondent as to any legislative intent that the statute operate retrospectively. The statute operates only prospectively. Therefore, any alleged deficiencies cited prior to October 1, 1987 are irrelevant for purposes of imposing the punishment contemplated under Section 400.414, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services renew Petitioner's license. DONE and ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1988.
The Issue Petitioner, Danny Rhoda, has applied for eligibility to take the competency examination for licensing as a fire protection system Contractor IV. The issue in this proceeding is whether Mr. Rhoda’s application should be approved.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED that the Department of Insurance enter its Final Order denying Danny D. Rhoda’s application for eligibility to take the Contractor IV licensing examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of January, 1997. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1997. COPIES FURNISHED: Danny D. Rhoda Post Office Box 232 Fruitland Park, Florida 34731 Lisa S. Santucci, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Daniel Y. Sumner, Esquire General Counsel Department of Insurance & Treasurer The Capitol, LL-26 Tallahassee, Florida 32399-0300 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-3000
The Issue Whether Respondent committed the acts alleged in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of contractors in the State of Florida pursuant to Section 20.42 and Chapters 455 and 489, Florida Statutes. Respondent does business under the name South Florida Construction Group. At no time relevant to this proceeding has Respondent or his business entity been registered or certified to perform electrical contracting or any other contracting in the State of Florida. Respondent holds only an occupational license from the City of North Miami. The residence owned by the homeowners (the subject property) sustained roof damage as a result of Hurricane Wilma in October 2005. The homeowners planned to replace their damaged roof after their insurance claim had been processed. In the interim, temporary repairs were made to the roof by a roofing contractor the homeowners located through a local Home Depot, Inc., store. This roofing contractor was identified only as the Home Depot roofing contractor. The homeowners were dissatisfied with the work of the Home Depot roofing contractor. In early August 2006, Mrs. Ugokwe mentioned at a beauty salon that the Home Depot roofing contractor had failed to prevent her roof from leaking. Shortly thereafter, Respondent learned of the homeowners’ dissatisfaction with the Home Depot roofing contractor. On August 9, 2006, Respondent visited the subject property and told the homeowners that he was a general contractor. Respondent gave them his business card that contained Respondent’s name, address, telephone number, and fax number. In addition, the business card contained the name “South Florida Construction Group” underneath which were the words “State Certified General Contractors” and the following license number “CGC 1510133.” The business card advertised the following services: “Home Improvement & Repairs, New Building Construction, Residential & Commercial Pools, Asphalt Paving & Sealcoating [sic], Site Development & Drainage, and Notary Public Service.” The homeowners believed Respondent to be a licensed general contractor. Respondent and the homeowners discussed Respondent performing work on the damaged roof, including placing blue tarp on the roof (the tarp work) to prevent further leaks until the re-roofing could be completed. They also discussed the subsequent re-roofing of the property. Respondent estimated that the re-roofing would be between $30,000.00 and $33,000.00. After inspecting the subject property, Respondent told the homeowners, among other things, that an electrical connection to a pump on their drain field needed to be repaired. Respondent testified that the electrical connection had been damaged when he backed his truck up while attempting to remove some debris from the subject property. At the meeting on August 9, 2006, Respondent and the homeowners agreed that Respondent would perform the tarp work. On August 11, 2006, the homeowners paid Respondent a down- payment of $50.00 cash for the tarp work. On August 12, 2006, Respondent’s crew completed the tarp work. On August 13, 2006, the homeowners paid Respondent the sum of $659.28 for the balance of the materials and labor for the tarp work. The total amount paid for the tarp work was $709.28. On August 13, 2006, after he received payment for the tarp work, Respondent produced a building permit application, which he had Mrs. Ogokwe sign in blank. Respondent explained that he had not finished his proposal for the complete re- roofing and that he wanted her to execute a blank permit to expedite the permitting process. On August 14, 2006, Respondent presented a signed permit application to the building department of Miami-Dade County, Florida, pertaining to the re-roofing of the subject property. Ms. Ugowke’s signature had been notarized. When Respondent presented the permit application to the building department, the contractor’s name was listed as F L Construction, Inc. The qualifying contractor’s name was listed as being Charles Lennox with the contracting licensing number CGC 1510133. That was the same number listed on Respondent’s business card. The value of the work was listed as being $6,200.00. On the morning of August 15, 2006, Respondent returned to the subject property with a person Respondent told the homeowners was an electrician. Mrs. Ugokwe asked Respondent how much the repair of the electrical connection would cost before the purported electrician started to work. Respondent told her not to worry since he would add the cost of the electrical work to the cost of re-roofing the subject property. The electrical repair had been made by the time Mrs. Ugokwe returned to the subject property after work that evening. On August 16, 2006, Respondent informed the homeowners that he had secured a building permit and that he had his proposal for the re-roofing. On August 17, 2006, Respondent delivered a package to the homeowners that contained his proposal and the building permit. Respondent’s proposal for the re-roofing was in the total amount of $39,672.92. The homeowners considered this proposal to be unacceptable. On the building permit Respondent gave to the homeowners, the name of the contractor (F L Construction, Inc.) had been covered with white-out and the name South Florida Construction Group had been inserted as the name of the contractor. The building permit was not otherwise altered. On August 19, 2006, Respondent presented the homeowners with a revised contract for the total price of $33,000.00. Mrs. Ugowke confronted Respondent about the discrepancy between the revised proposal ($33,000.00) and the value of the work reflected on the building permit ($6,200.00). Mrs. Ugowke also confronted Respondent about the white-out on the building permit. The homeowners refused to sign the second proposal. Respondent became angry and demanded immediate payment of $750.00 for the repair of the drain field electrical connection. Mrs. Ugokwe counter-offered to pay $150.00, a sum she believed to be fair after her husband priced the cost of the materials used in the repair. Respondent refused to take the counter-offer. By invoices dated August 22 and September 4, 2006, Respondent billed the homeowners for work that included the electrical work. Each invoice was on South Florida Construction Group’s form invoice. Each invoice reflected the general contractor’s license number CGC 1510133, which is Mr. Lennox’s number. Both invoices included a charge of $1,209.28 for installation of “new blue top, nails and labor” although the homeowners had already paid Respondent $709.28 for the same job. The homeowners refused to pay the invoices. Respondent sued them and placed a lien on the subject property in the amount of $3,839.82. In his claim of lien, Respondent affirmed under oath that he furnished the following services to the homeowners: re-roofing, electrical, and repairs. Respondent’s civil suit was dismissed on the merits. Even after that action, Respondent refused the homeowners’ request to remove the lien from their property. On September 15, 2006, Mr. Lennox sent all his sub- contractors a letter asking them to immediately stop using his contractor license number without his express permission. Respondent signed the bottom of the letter acknowledging receipt thereof, even though Respondent was not a sub-contractor. Respondent’s business primarily consists of finding customers for contractors. He deals with a customer, but has a contractor, such as Mr. Lennox, perform the work Respondent’s company has contracted to do. Had the contract with the homeowners in this proceeding gone through, Respondent intended to obtain payment from them, by having F L Construction, Inc., do the actual work. Petitioner has incurred investigative costs in the amount of $277.52. This figure excludes any costs associated with attorney’s time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a final order that finds Respondent guilty of having violated Section 489.531(1), Florida Statutes (2006). It is further RECOMMENDED that Respondent impose an administrative fine against Respondent in the amount of $1,000.00 and assess investigative costs against Respondent in the amount of $277.52. DONE AND ENTERED this 4th day of April, 2008, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 4th day of April, 2008.
The Issue The issue in the case is whether the application filed by Thomas Edwards Dalton (Petitioner) to take the examination for certification as a plumbing plans examiner should be approved.
Findings Of Fact The Petitioner is seeking to become a state-certified plumbing plans examiner. The Respondent is the state agency charged with responsibility for certification of plumbing plans inspectors. On December 12, 2013, the Petitioner submitted to the Respondent his application to take the examination for the certification sought. As required by rule, the Petitioner also submitted an “Affidavit of Work Experience” setting forth a statement of work experience presumably relevant to his application. The affidavit form requires that it be “completed by an architect, engineer, contractor or building code administrator, who has personal knowledge of the application’s experience” for the relevant period. The Petitioner wrote the narrative of his experience contained within the affidavit dated December 8, 2013. The affidavit was signed by a person identified as Anthony Applebeck, a building code administrator in Altamonte Springs, Florida. Generally, an “Application Review Committee” (ARC) comprised of three building code enforcement specialists reviews applications and affidavits submitted to the Respondent. In this case, two members of the ARC independently reviewed the Petitioner’s submission and determined that additional information related to the Petitioner’s work experience was required. In an email dated December 17, 2013, the Respondent advised the Petitioner that additional information was required. The letter stated as follows: The Affidavit of Work Experience that was submitted with your application is missing detailed hands-on plumbing experience. Please complete the enclosed Affidavit of Work Experience and submit it to the department. The person completing the work affidavit should be specific when explaining your duties and actual hands-on experience. The ARC’s determination that the Petitioner’s Affidavit of Work Experience was insufficient was correct. The affidavit lacked a detailed explanation of the Petitioner’s work experience, specifically as to “hands-on” plumbing involvement. The Petitioner failed to submit the supplemental work experience affidavit requested by the Respondent. In an email dated December 18, 2013, the Petitioner requested that the ARC reconsider his original submitted affidavit. On February 18, 2014, the Respondent issued a Notice of Intent to Deny the Petitioner’s application based on the failure to submit sufficient information to establish that the Petitioner has the experience required for the certification sought. By letter dated February 28, 2014, the Petitioner challenged the proposed denial of his application and requested an administrative hearing. The evidence presented at the hearing by the Petitioner was insufficient to establish that the Petitioner meets the requirements to take the examination for certification as a plumbing plans examiner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application to take the examination for certification as a plumbing plans examiner be denied. DONE AND ENTERED this 16th day of December, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2014. COPIES FURNISHED: Thomas Edward Dalton 906 Delta Court Altamonte Springs, Florida 32714 (eServed) Robert Antonie Milne, Esquire Office of The Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 (eServed) J. Layne Smith, General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed) Robin Barineau, Executive Director Division of Professions Building Code Administrators and Inspectors Board Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed)
