The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the licenses of two public lodging establishments and against an individual alleged to have operated a public lodging establishment without a license, on the basis of allegations set forth in three separate Administrative Complaints.
Findings Of Fact At all times material hereto, the Respondent Fountain View Hotel (Fountain View) was a public lodging establishment, license number 60-00163-H, located at 5617 44th Street, West Palm Beach, Florida. Lawrence Joseph Vavala (Inspector Vavala) was at all material times employed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants, as a Sanitation and Safety Specialist (Inspector). Catherine Driscoll (Supervisor Driscoll) was at all material times employed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants, as a Sanitation and Safety Supervisor. On April 17, 2000, Inspector Vavala inspected the Fountain View and found numerous violations of public lodging service rules, all of which he marked on his lodging service inspection report of April 17, 2000. On April 17, 2000, when Inspector Vavala performed an inspection on Fountain View, he observed that the smoke detectors were inoperable in Apartments 3 and 4 in the front building. This violation is a critical violation because it endangers the life and safety of individuals living in the public lodging establishment. On April 17, 2000, during his inspection of the premises, Inspector Vavala observed that there were no portable fire extinguishers installed in the back building on either landing on either floor. Further, there was no fire extinguisher on the first floor, bottom landing, in the front building. In public lodging establishments, fire extinguishers are required to be within 75 feet of potential fire hazards. There was a fire extinguisher in the hallway on the second floor, but it had not been inspected since September 1994. Fire extinguishers are required to be inspected annually. These violations are critical in that they endanger the lives and safety of individuals residing in the public lodging establishment. On April 17, 2000, during his inspection of the premises, Inspector Vavala observed evidence of rodent droppings in the water heater room on the south side of the building and cockroaches in the kitchen cabinets of Apartment 4. These are critical violations in that disease is spread in this manner which endangers the health and safety of individuals residing in the public lodging establishment. During his inspection of the premises, Inspector Vavala observed electrical wiring in disrepair in Apartments 3 and 4. Wires were hung through a window out to the back porch, simply hanging by cord and socket. These are critical violations in that someone could be injured by the wiring. Further, in being exposed to the outside elements, it could cause shortage and fire. These are critical violations in that they endanger the safety and lives of individuals residing in the public lodging establishment. On April 17, 2000, during his inspection of the premises, Inspector Vavala observed that the cooking stove was inoperable in Apartment 4 and the air conditioning units were inoperable in Apartments 3 and 4. This is a critical violation because tenants may bring in propane or charcoal stoves to prepare food which would be a fire hazard and could endanger the safety and lives of individuals residing in the public lodging establishment. Inspector Vavala also observed that the air conditioning units were inoperable in Apartments 3 and 4. On April 17, 2000, during his inspection of the premises, Inspector Vavala observed the locks were inoperable on the kitchen door to the outside stairway in Apartment 3. This is a critical violation in that if the door could not be locked, an intruder could enter the premises and take property or physically harm an individual inside the apartment. On April 17, 2000, during his inspection of the premises, Inspector Vavala observed a broken window at the front door of the front apartment; the ceiling on top of the stairwell in the front of the building had a hole through the roof; a hole was in the stucco on the west side of the front building; a window was in disrepair on the west side of the front building; windows were boarded up on the west side of the building; stucco was missing on the south side of the front building; a window was broken on the lower floor of the front building on the south side; a window was in disrepair, and one window was broken on the lower floor of the front building on the east side; stucco was cracked on the north side of the exterior wall of the back building; the door frame was rotting at Apartment 6 in the back building; a window was broken on the north side of the back building at Apartment 6; there were holes in the wall and ceiling of the water heater room on the south side of the back building; a window was broken on the south side of the back building on the second floor; and the cross face on the west side of the front building and on the east side of the front building was not enclosed. Further, he observed excessive debris outside apartments around the building, a broken soda machine on the north side of the back building was falling over, and the refrigeration units in it could contaminate the ground water; he observed a rusting LP gas tank from a barbecue which, when left outside, will rust through the tank and release the gas in the air, which would endanger the health and welfare of persons in the area; there were cars lying around and the oil from those could contaminate the ground water. On April 17, 2000, in Apartment 4, Inspector Vavala observed kitchen cabinets in disrepair; tile was chipped, broken, and missing on the kitchen floor; there was a hole in the wall of the living area; the window operating assembly was in disrepair allowing the windows to either remain in a stuck open or stuck closed position; the clamps no longer worked on the window; the wood framing around a window air conditioner was rotting and had a hole below it; the plaster was cracked and chipping in the bathroom; there was a hole in the wall above the tub in the shower stall; a hole was in the wall behind the toilet in the bathroom; and the carpet was stained and unclean in the living area. The poor condition of the kitchen cabinets, the holes in the wall of the living room and bathroom, and the broken, chipped and missing tile could harbor rodents and bugs and nesting vermin. The rotting frame and hole in the wall underneath could allow the air conditioner, which was located on the second floor, to fall and endanger lives of persons beneath the window. Further, the hole in the wall allowed pests and vermin to enter the apartment. The window operating assembly which would not allow the windows to open was dangerous should there be a fire or other disaster blocking other exits to the apartment. The window operating assembly, which would not allow the windows to close, allows the outside elements to enter the apartment during inclement weather causing further deterioration to the apartments and personal belongings of tenants. The cracked and chipped plaster in the bathroom would not allow adequate cleaning which contributes to poor sanitation. The dirty carpet in the living area could be harboring insects, mold and mildew. The violations observed in Apartment 4 affect the health and safety of its tenants. On April 17, 2000, in Apartment 3, Inspector Vavala observed the ceiling stained in the back bedroom, reflecting leaking water damage; the ceiling plaster cracked in the back bedroom; broken and missing tiles in the kitchen, exposing plywood; kitchen cabinets that were in disrepair; an inoperative assembly in a shower stall window; all the window operating assemblies in the middle bedroom in disrepair; a closet door in disrepair in the middle bedroom; a sink was falling off the wall in the bathroom; there was a hole in the wall under the toilet in the bathroom; and backflow prevention was not provided on exterior hose bins. The violations observed in Apartment 4 endangered the health and safety of its tenants. On April 17, 2000, Inspector Vavala observed that the establishment was operating without a new license in 1998, 1999, and 2000. On May 2, 2000, an Administrative Complaint was issued against the Respondent Fountain View Hotel which was docketed as Case No. 2-00-185 before the Division of Hotels and Restaurants, and as Case No. 00-2949 before the Division of Administrative Hearings. On April 8, 1999, one year prior to the violations enumerated in paragraphs 5 through 15 above, Supervisor Driscoll and Inspector Paul Landmann, inspected the same Fountain View Hotel described above. Numerous violations observed during the April 8, 1999, inspection were still not corrected on April 17, 2000. On February 23, 2000, Supervisor Driscoll made a follow-up inspection of the same Fountain View and found numerous violations of public lodging service rules, all of which she marked on the lodging service inspection report of February 23, 2000. On April 8, 1999, the Petitioner issued an Administrative Complaint against Respondent Joseph Sansalone d/b/a Fountain View Hotel (Sansalone) which was docketed as Case No. 2-99-79 before the Division of Hotels and Restaurants, and as Case No. 00-3040 before the Division of Administrative Hearings. At all times material hereto, Respondent Lamplighter Hotel & Apartments (Lamplighter) was a public lodging establishment, license number 60-00167-H, located at 433 40th Street, West Palm Beach, Florida. On April 17, 2000, during his inspection of the Lamplighter, Inspector Vavala, observed that there were no fire extinguishers located anywhere on the premises. This violation is a critical violation because it endangers the life and safety of individuals living in the public lodging establishment. On April 17, 2000, during his inspection of the Lamplighter, Inspector Vavala observed rodent droppings in an upstairs apartment in the back building and in the storage shed adjacent to the back building. This is a critical violation in that disease is spread in this manner which endangers the health and safety of individuals residing in the public lodging establishment. On April 17, 2000, during his inspection of the Lamplighter, Inspector Vavala observed that there was no cover on the wall socket at the top of the stairs in the front building, and that cover plates were missing on the electrical sockets on the outside receptacle on the outside of the front area. This violation is critical because the health and safety of children are endangered because children could stick their fingers in the outlets and be electrocuted. Further Inspector Vavala observed a soda machine plugged into an outlet on the outside which was exposed to the elements, which could also be a potential danger to the health and welfare of persons in the vicinity. On April 17, 2000, during his inspection of the Lamplighter, Inspector Vavala observed that the stairway in the rear of the building and the back building on the east side was in disrepair. These are critical violations because it would not be safe to evacuate the rear building from the stairwells, in case of fire or other emergency. On April 17, 2000, during his inspection of the Lamplighter, Inspector Vavala observed windows broken on the first and second floors of the front building on the south side; broken windows on the first and second floor of the front building on the east side; a broken window on the lower floor of the front building on the north side; a broken window on the door to the downstairs apartment in the back building; and a broken window on the east side of the back building on the second floor. These are violations because there is sharp glass exposed and no protection from the outside against vermin or the elements. He also observed stucco falling off the exterior wall of the front building on the north side; doors falling off the storage shed at the back of the building, adjacent to the living establishment, which harbored vermin; and a hole in the roof of the storage shed attached to the back of the building. The crawl space under the front building on the south side and under the front building on the north side was not enclosed; screens were ripped on the north side of the front building on the first floor and on the west side of the front building, which would allow insects to enter the establishment. On April 17, 2000, during his inspection, Inspector Vavala observed a second floor hurricane shutter broken in the down position. This broken shutter would not allow evacuation through the window in case of fire or other emergency. On April 17, 2000, during his inspection, Inspector Vavala observed a door missing at the upstairs apartment on the back building, and the ceiling was falling in the kitchen and family room in an upstairs back apartment. The apartment appeared to be unoccupied; however, it would endanger the health and welfare of the tenants if it was occupied. Further, the missing door would allow children playing in the area to enter the apartment where the ceiling is falling, which could result in serious injury to a child. On April 17, 2000, during his inspection, Inspector Vavala observed an excessive amount of debris in and around the premises, including a refrigerator in an unused condition that still had the door attached which could be a hazard to children that lived in the establishment. On April 17, 2000, during his inspection, Inspector Vavala observed inoperable kitchen appliances located in the upstairs back building. These are critical violations because individuals may bring in propane or charcoal stoves to prepare food which would be a fire hazard and could endanger the safety and lives of individuals residing in the public lodging establishment. On April 17, 2000, during his inspection, Inspector Vavala observed that lighting was not provided in the hallway staircase in the front building. This is a critical violation because the unlighted area endangers the health and safety of tenants of the establishment. On April 17, 2000, Inspector Vavala also observed that the establishment was operating without a new license in 1998, 1999, and 2000. On May 2, 2000, the Division issued an Administrative Complaint against Respondent, Lamplighter Hotel & Apartments, which was docketed as Case No. 2-00-186 before the Division of Hotels and Restaurants, and as Case No. 00-2950 before the Division of Administrative Hearings. The Lamplighter Hotel & Apartments, located at 433 40th Street, West Palm Beach, Florida, and the Fountain View Hotel, located at 516 44th Street, West Palm Beach, Florida, are owned by Americorp Mortgage Co., Inc., whose president is Joseph D. Sansalone.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Division of Hotels and Restaurants issue a final order to the following effect: Concluding that the Respondent Fountain View Hotel is guilty of the violations observed during the inspection of its premises on April 17, 2000, as described in the foregoing Findings of Fact and Conclusions of Law, and imposing a penalty on the Respondent Fountain View Hotel consisting of an administrative fine in the amount of $5,000.00 and the revocation of its license. Concluding that the Respondent Lamplighter Hotel & Apartments is guilty of the violations observed during the inspection of its premises on April 17, 2000, as described in the foregoing Findings of Fact and Conclusions of Law, and imposing a penalty on the Respondent Lamplighter Hotel & Apartments consisting of an administrative fine in the amount of $5,000.00 and the revocation of its license. Concluding that the Respondent Joseph Sansalone is guilty of operating a public lodging establishment at the premises of the Fountain View Hotel during April of 1999 without a then-current license for that establishment, and imposing a penalty on the Respondent Joseph Sansalone consisting of an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 18th day of January, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 18th day of January, 2001.
The Issue Whether Respondent Indiana House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 4A-48.003, 61C- 1.004(9)(b), 61C-1.004(11), and 61C-3.001(5), Florida Administrative Code, and, if so, what penalty should be imposed. Whether Respondent Illinois House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 61C-1.004(5) and 4A-48.003, Florida Administrative Code, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the operation of hotel establishments pursuant to Section 210.165 and Chapter 509, Florida Statutes. Respondents, at all times material to these proceedings, have been licensed or otherwise subject to the Department's jurisdiction. The last known business address of Indiana House is 1114 Indiana Avenue, St. Cloud, Florida. The last known business address of Illinois House is 820 Illinois Avenue, St. Cloud, Florida. Both Indiana House and Illinois House are transient rooming houses. The tenants pay rent for the rooms they occupy. On January 26, 2001, an inspector for the Department inspected the Indiana House and noted numerous deficiencies, including a lack of a fire alarm system. The inspector returned to Indiana House on May 1, 2001, but was unable to get into the building. She made a call-back inspection on May 22, 2001, and found that certain violations had not been corrected, including the lack of a fire alarm system. On June 5, 2001, the inspector returned to Indiana House. No fire alarm panel had been installed, and the owner, Thomas Griffin, did not have keys to the property so the inspector did not have access to the building. On February 12 and 18, 2002, an inspector for the Department inspected the Indiana House and found the following deficiencies: (1) a gang plug was being used in a bedroom, (2) wires were dangling from a fan light, (3) the air conditioner faceplate was missing, exposing the filters and coils, and (4) no service tag was on the fire extinguisher. A gang plug is an adapter that is put into the electrical outlet on a wall so that more than one electrical plug can be used with that outlet. The gang plug found at Indiana House on the February 12 and 18, 2002, inspections would allow the use of six electrical plugs at one time. On January 26, 2001, an inspector from the Department inspected Illinois House and found that there was no fire alarm system. Another inspection was made on May 1, 2001, and it was noted that the outside door was locked. A call-back inspection was made on May 22, 2001, and no fire alarm had been installed. On June 5, 2001, a call-back inspection was made. The owner of the property stated that he did not have keys to the building; thus, the inspector could not access the premises. The owner advised at the time of the inspection on June 5, 2001, that no fire alarm system had been installed. On February 18, 2002, an inspector for the Department inspected Illinois House and found that none of the bedrooms had smoke detectors. On February 25, 2002, a call-back inspection was made, and a battery operated smoke detector in a bedroom did not work when tested. The Department considers a critical violation to be one that is an immediate health hazard. The failure to have a fire alarm system is a critical violation because the buildings are transient rooming houses and most of the people residing in the buildings at any given time will be strangers to one another. If a fire occurs, the consistent and reliable means of notifying the tenants would be through the use of a fire alarm system. The failure of the smoke detector to work is also a critical violation. If a fire occurs, an inoperable smoke detector will not warn the tenant, and, since no fire alarm has been installed, it is likely that the tenant may not have sufficient warning in time to escape from the fire. Both Illinois House and Indiana House have applied to the Homeless Service Network for a grant to make renovations to the buildings to bring them up to whatever code is necessary in order for the properties to be used as transient housing. When the money becomes available, it is anticipated that the renovations will be made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Indiana House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 4A-48.003, 61C- 1.004(9)(b), 61C-1.004(11), and 61C-3.001(5), Florida Administrative Code. Imposing a $2,500 fine on Indiana House and requiring the owner of Indiana House to attend a Hospitality Education Program. Finding that Illinois House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 4A-48.003 and 61C- 1.004(5), Florida Administrative Code. Imposing a $1,500 fine on Illinois House and requiring the owner of Illinois House to attend a Hospitality Education Program. DONE AND ENTERED this 27th day of September, 2002, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND 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 27th day of September, 2002. COPIES FURNISHED: Thomas Griffin Indiana House 1221 12th Street St. Cloud, Florida 34769 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
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 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 Whether Respondent's renewal facilities licensure application for a group home contained a falsified fire inspection report, as alleged in the Administrative Complaint; and, if so, what is the appropriate penalty?
Findings Of Fact APD is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, residential habitation centers, and comprehensive transitional education programs pursuant to sections 20.197 and 393.067, Florida Statutes. Rivero is an applicant for renewed licensure of a group home facility in Dania Beach, Florida. At all times material to the Administrative Complaint, Yitzhak Rivero was a corporate officer of Rivero. Mr. Rivero, was a psychiatrist in Cuba treating patients with mental and intellectual disabilities before he moved to the United States and became a citizen. He became a licensed mental health counselor, and for the past ten years has operated group homes in an effort to serve disabled persons, owning as many as seven group homes, employing 30 people at one time, and currently owning and operating three licensed group homes. On June 20, 2019, Sally Vazquez, then administrator for Rivero, submitted a license renewal application on behalf of Rivero’s Dania Beach group home to APD by hand delivering it to APD employee Patricia White, who was on the premises. On that same day, fire inspectors were also at the Dania Beach property to conduct an inspection. Prior to submitting the renewal application and supporting documents to APD on June 20, 2019, Ms. Vazquez prepared the application and compiled or prepared the supporting documents in the renewal application. The handwriting on pages 1 through 11 of the renewal application is that of Ms. Vazquez. Ms. Vazquez is listed as backup manager supervisor for Rivero on page 7 of the renewal application. After Ms. Vazquez prepared the renewal application and compiled the supporting documents, Mr. Rivero, as the group home owner, did a brief review of the application and supporting documents before he signed it. Before he signed it, Mr. Rivero identified nothing unusual in the application packet. When Mr. Rivero signed the attestation on the renewal application, which read, “Under penalty of perjury…all information contained in and submitted with application is true and accurate to the best of my knowledge,” he believed that the information in the application and supporting documents was true and correct. Unbeknownst to Mr. Rivero, the renewal application contained a document purporting to be a fire inspection report dated May 1, 2019, that was falsified. Mr. Rivero did not know the fire inspection was false when he reviewed the renewal application and signed it on June 7, 2019, or when Ms. Vazquez submitted it to APD on behalf of Rivero on June 20, 2019. In fact, the only email or communication Mr. Rivero received about the Dania Beach group home in regard to fire safety was a June 20, 2019, email sent by Fire Inspector Braun at 12:49 p.m., stating it was “From: Broward Sheriff’s Office Fire Rescue,” identified by the subject, “Inspection Report,” which contained an attachment related to the Dania Beach home from “Broward Sheriff’s Office Fire Rescue” bearing the agency’s logo that stated: “An annual fire inspection of your occupancy revealed no violations at the time of this inspection. Thank you for your commitment to maintaining a fire safe occupancy.” On August 21, 2019, when asked in an email from APD representative Kimberly Carty to provide the fire inspection report for Rivero, Mr. Rivero forwarded the email he had received from the Broward Sheriff’s Office Fire Rescue indicating no violations, the only fire inspection report for this home he had ever received, and the only fire inspection report regarding this property of which he was aware. On August 23, 2019, Ms. Carty sent Mr. Rivero a fire inspection report showing violations noted from the June 20, 2019, fire safety inspection of the Dania Beach group home. The report notes six, of what fire safety inspector Craig Braun described as less serious, non “critical-life” violations. Rivero was given 30 days to correct the violations.1 The day after he was sent the full fire inspection report for the Rivero Dania Beach group home, Mr. Rivero corrected the “easily corrected,” relatively minor violations in approximately three hours. Mr. Rivero then contacted the fire department to re-inspect the facility. When no fire inspector came to re-inspect for over a month, on September 30, 2019, Mr. Rivero sent an email to Mr. Zipoli, the fire inspector who had signed the inspection report showing the minor violations. Nevertheless, the fire department has never re-inspected the facility. Fire Prevention Officers Braun and Zipoli testified unequivocally and without contradiction that the document Mr. Rivero forwarded to APD’s Kimberly Carty on August 23, 2019 (the document indicating, “An annual fire inspection of your occupancy revealed no violations at the time of this inspection”), was a genuine and authentic document. Further, Officer Braun indicated that on June 20, 2019, he was Officer Zipoli’s supervisor, and that on that date Officer Braun and Zipoli “went together to inspect the Rivero Group Home.” “[U]sually…just [one] fire safety inspector goes,” and it was “not the norm” for two fire safety inspectors to go together. In this unusual situation, Fire Safety Inspector Zipoli wrote the report of the June 20, 2019, inspection, and Fire Safety Inspector Braun “wrote a report,” a separate report, indicating that he “assisted him [Zipoli] on another 1 These violations included: front and rear door of the group home (two doors) had a key lock instead of a “simple thumb turn or something that does not require special knowledge”; a fire alarm needed to be updated with its annual fire inspection from a private contractor; a fire extinguisher needed to be mounted on its mounting on the wall instead of placed on the ground beneath the mounting; the fire extinguisher needed to have its annual certification updated for 2019; the smoke detector located in the kitchen needed to be moved to a different location. form.” It was this other form that Officer Braun completed--this fire safety “Inspection Assist” for--that was emailed to Mr. Rivero on June 20, 2019. It was this form that stated, “[a]n annual fire inspection of your occupancy revealed no violations at the time of this inspection.” Officers Braun and Zipoli confirmed that the Broward Sheriff’s electronic streamline system “had a ‘glitch,’” “a default problem at that time,” the period including June 20, 2019, that caused the “template of an assist” ( i.e., an Inspection Assist form) to generate the statement indicating, “[a]n annual fire inspection of your occupancy revealed no violations at the time of this inspection,” and the system gave fire safety inspectors no option or ability to remove this statement. When APD’s Kimberly Carty requested that Mr. Rivero send the most recent fire inspection report for the Rivero Dania Beach group home, Mr. Rivero forwarded to Ms. Carty the document he received on June 20, 2019, from Broward Sheriff’s Office Fire Rescue without altering or changing the document in any way. The first time Mr. Rivero was notified that the fire inspection report submitted with the renewal application at issue here was false was when he received the Administrative Complaint in this case on October 23, 2019. In addition to the June 20, 2019, document Mr. Rivero received from Broward Sheriff’s Office Fire Rescue that indicated “no violations,” and the fire inspection report indicating six violations that was sent to Mr. Rivero by APD on August 23, 2019, this case involves a document dated May 1, 2019, purporting to be a Broward Sheriff’s Office Fire Rescue fire inspection that was fabricated (“the false fire inspection report”). The false fire inspection report was submitted to APD by Ms. Vazquez during APD’s June 20, 2019, inspection of the Rivero’s Dania Beach group home. At the time she submitted the application with the false fire inspection report, Ms. Vazquez had worked for Rivero for at least six years, and for at least two years as an administrator for between four and seven group homes. At the time she submitted the application at issue in this case to APD, Ms. Vazquez had prepared more than 20 APD renewal applications for Mr. Rivero’s group homes. In short, Ms. Vazquez was a “trusted employee,” whom Mr. Rivero relied on to accurately prepare applications and the documents submitted with the applications, and to handle the inspections conducted by APD. After Mr. Rivero learned, by receiving the Administrative Complaint in this case on October 23, 2019, that an altered or falsified document had been submitted as a fire inspection report with Rivero’s Dania Beach group home’s annual renewal application to APD, he conducted an investigation to determine how it had happened. When Mr. Rivero determined Ms. Vazquez was to blame for the false fire inspection report being submitted with the application, he fired her. The evidence presented indicates Ms. Vazquez created and submitted the falsified fire inspection report in violation of her job duties and professional obligations, and without the knowledge or consent of Mr. Rivero or Rivero.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons With Disabilities enter a final order dismissing the Administrative Complaint filed against Respondent. DONE AND ENTERED this 17th day of April, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 17th day of April, 2020. COPIES FURNISHED: Sean Michael Ellsworth, Esquire Ellsworth Law Firm, P.A. 1000 5th Street, Suite 223 Miami Beach, Florida 33139 (eServed) Trevor S. Suter, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Anthony Vitale, Esquire The Health Law Offices of Anthony C. Vitale, P.A. 2333 Brickell Avenue, Suite A-1 Miami, Florida 33129 (eServed) Daniel Ferrante, Esquire Health Law Offices Of Anthony C. Vitale, P.A. 2333 Brickell Avenue, Suite A-1 Miami, Florida 33129 (eServed) Danielle Thompson Senior Attorney/Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 309 Tallahassee, Florida 32399-0950 (eServed) Francis Carbone, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
