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
The Issue Whether Petitioner was legally justified in issuing a conditional license rating to Respondent.
Findings Of Fact AHCA is the state agency responsible for licensing and regulating nursing homes in Florida. Respondent Berkshire is a licensed nursing home located in North Miami, Florida. On April 2, 2002, AHCA conducted a survey of Berkshire and identified the violations which give rise to this proceeding. Specifically, at the time of the survey, several magnetic door locks--the record does not reveal precisely how many, although the parties agree that the number was no less than three and no more than seven out of a total of fifteen fire exit doors--did not immediately unlock upon activation of the fire alarm system. The purpose of the door locks is to prevent cognitively impaired residents from wandering away from the facility. When the magnetic lock system is working properly, the doors unlock immediately upon activation of the fire alarm. In response to the AHCA survey finding, Berkshire immediately summoned an alarm system repair person. On April 2, this individual was located somewhere in Florida's Panhandle. He left north Florida and proceeded immediately to Berkshire. The repairman determined that two wires and a circuit were reversed, most likely due to an error by Berkshire's on- site maintenance director. By the next day, April 3, the problem had been corrected and all door locks were deactivating simultaneously with the activation of the fire alarm system. Based upon the April 2 survey, AHCA issued a conditional license to Berkshire effective April 5, 2002, and imposed an administrative fine of $12,500. AHCA also placed the facility on a six-month survey cycle and assessed a survey fee of $6,000. These penalties, particularly the conditional license status, have a substantial adverse impact upon the reputation and the business interests of a nursing home. AHCA's decision to impose a conditional license status was predicated upon the opinion of its inspectors that the mechanical failure identified in the survey was, in fact, likely to cause serious injury, harm, impairment or death to a resident receiving care in the facility, and must therefore be deemed a Class I deficiency which warrants, as a matter of law, the penalties imposed. At the time of the survey, Berkshire had no history of fires, had passed its most recent annual inspection by the local fire marshal, and had a sprinkler system and fire extinguishers throughout the facility. The survey itself revealed no fire hazards. AHCA cites no statute, rule, or case which supports its view that the mechanical problem identified constitutes a Class I deficiency. Instead, it offers opinion testimony that as a result of this problem, residents were in danger on the date of the survey. That opinion testimony is based solely upon speculation. For example, AHCA's life safety inspector who participated in the survey said, ". . . we always look at, inspect the facilities under a worst case scenario type situation. In the event of a fire, we could have a situation we would have residents where the fire alarm system would activate and we would have residents attempting to exit the building. They would find that those doors, affected doors, would not be openable. They would not be able to exit the building. " In fact, the evidence established that the ability of residents to vacate the building in a safe and timely manner in the event of a fire, or fire drill, was not significantly impacted on April 2 by the mechanical problem identified. The automatic unlock feature which was not operating on less than half of Berkshire's fire exit doors is just one part of Berkshire's fire safety plan. State and federal law and Berkshire's own operating procedures provide that staff be given detailed training regarding what to do in the event of a fire; fire safety plans must be approved by the local fire marshal, and most include back up plans for system failures which can reasonably be anticipated. With reference to each of the door locks identified in the April 2 survey, the evidence established that each of these doors could be opened manually, and that there was an adequate number of able bodied staff members who could open each of the doors as may be necessary had a real fire or a fire drill occurred on April 2. Berkshire's fire safety procedures provide that when the fire alarm activates, an announcement is made over the public address system to inform all present of the fire's location. Depending upon the fire's location, staff members will respond in various appropriate ways. Within each department, various individuals are assigned to perform various functions, including, most importantly, assuring that each resident is safely escorted from the building and protected while outside. State law requires monthly tests of the fire alarm system, but Berkshire exceeds this standard with weekly tests. Fire drills are conducted for staff members who work on all three shifts, and staff are trained in evacuating residents in a manner appropriate to their individual circumstance. No matter where one is located in the building, there are multiple means of egress, and each exit door has multiple means by which it can be opened in a timely manner in the event of fire or other emergency. Monthly unannounced fire drills are conducted at Berkshire on all three shifts in an effort to ensure that staff can safely and quickly evacuate residents should the need arise. There is no evidence that staff could not have done so had a fire or fire drill occurred on April 2. Thus, AHCA's finding that the mechanical problem which existed on April 2 and which was remedied by April 3 posed a likelihood of serious injury, impairment, or death to residents in Berkshire's care is not supported by any competent evidence.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED that AHCA issue a final order dismissing the Administrative Complaints in these cases. DONE AND ENTERED this 26th day of March, 2003, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2003. COPIES FURNISHED: Nelson Rodney, Esquire Agency for Health Care Administration 8355 Northwest 53rd Street Miami, Florida 33166 R. Davis Thomas, Jr. Qualified Representative Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
The Issue The Administrative Complaint alleges that Respondent violated certain provisions of Chapter 509, Florida Statutes, and Chapter 61-C, Florida Administrative Code, regarding the absence of required equipment, equipment not operative, and failure to post required signs for public information. Specifically, Respondent, after notice of specific violations and lapse of the allotted time to correct those violations, Respondent failed to do so.
Findings Of Fact On or about February 29, 2000, an employee of the Agency, Kenneth Phillips, supervised inspector trainee, Rick Decker, who performed the initial inspection of Respondent's establishment. A copy of the Public Lodging Inspection Report, citing specific violations noted in or about the establishment was prepared, and each violation was fully explained to Virgie Fowler. A copy of the inspection report was given to Mr. Fowler. Kenneth Phillips advised Mr. Fowler that a call-back re-inspection for correction of cited violations would be made on or about March 13, 2000. On or about March 13, 2000, inspectors Kenneth Phillips and Rick Decker undertook a call-back re-inspection. Previously cited violations not corrected were observed by both inspectors, and entries were made in their re-inspection report, which constituted the Administrative Complaint herein filed. The Agency is charged with the regulation of public lodging establishments and public food service establishments, pursuant to authority granted by Chapter 509, Section 509.032, Florida Statutes. Respondent, Gardenville Motel, is holder of State of Florida License No. 39-01017-H, with a last-known business address of 11549 US Highway 41, Gibsonton, Florida 33534-5210. Respondent is owned and operated by Virgie Fowler.1 Gardenville Motel has a total of 16 non-sequentially numbered rooms available to rent. The Division of Hotels and Restaurants has employed for four years Kenneth Phillips as a Sanitation and Safety Specialist. His primary duties are the inspection of hotels, restaurants, apartment complexes, and mobile vehicles, for the purpose of ascertaining licensees' compliance with safety and sanitation requirements provided by Chapter 509, Florida Statutes. Mr. Phillips has a four-year college degree in criminal justice and a two-year degree in environmental technology. He is a certified special fire inspector and receives ongoing training in food safety and inspection criteria. On or about February 29, 2000, Mr. Phillips and Rick Decker conducted an inspection of the Gardenville Motel (hereinafter "Motel"), following a consumer's complaint of not being satisfied with the conditions of his motel room and management's delay in refunding his money. Rick Decker recorded the results of their initial inspection in a "Food Service Inspection Report," under the supervision and direction of Kenneth Phillips. The Report noted 25 safety and sanitation violations. The Report contained the notification: "Warning: Violations in the operations of your establishment must be corrected by: Date: 2/13/00. Time: 8:00". The date for re-inspection was a scrivener's error. The corrected date is "3/13/00."2 On the day of the inspection, a copy of the report was provided to the owner/manager, Virgie Fowler, who acknowledged receipt, by his signature at the bottom of the report. Kenneth Phillips and Rick Decker discussed with Mr. Fowler, each cited violation contained in the report including the 15-day period before re-inspection for compliance (i.e. correct date of 3/13/00). On March 13, 2000, Mr. Phillips and Mr. Decker, conducted their re-inspection of the Motel to determine whether violations cited on February 29, 2000, were corrected. The two inspectors found eight uncorrected violations. A "Callback/Re- inspection Report" noting the uncorrected violations was completed. A copy of the Callback/Re-inspection Report was signed by and provided to Richard Mercurio, who signed the report as "Manager."3 Critical violations, noted on the initial report by an asterisk to the left of the cited violations, are considered dangerous. Critical violations present a risk to the personal health and safety of guests entering or staying at the motel. Respondent had three critical violations that were not corrected at the time of re-inspection. Violations cited were: no smoke detectors in Rooms 7 and 9; the smoke detectors in Room 5 were inoperative; no fire extinguishers in Rooms 20, 21, 22, 23, 24, 25, and 26; lack of hot water in Rooms 7 and 9; electrical wire exposure in Room 9; and current license not displayed nor available upon request. There was excessive trash in the rear of the premises. Every hotel, motel, and other public rental establishment is required by rule to post room rental rate cards in each room. The report cited Respondent for not posting a room rental rate charge card in each room offered for rent. At the time of the re-inspection Respondent had not corrected three critical violations and one non-critical violation. Respondent did not appear at the final hearing to present mitigating circumstances.
Recommendation It is recommended that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing a fine in the amount of $1,000 per critical violation per day beginning on March 13, 2000, forward until each of the three critical violations has been corrected. It is recommended that the Board impose a separate and additional fine in the amount of $500 per non-critical violation per day from beginning on March 13, 2000, forward until the one non-critical violation has been corrected. It is recommended that the Board suspend License No. 39- 0107-H until full compliance with all sanctions herein imposed is made. Finally, it is recommended that the Board impose upon Virgie Fowler, owner of the motel, the requirement to attend, at personal expense, an appropriate Education program to be designated by the Hospitality Educational program director prior to renewal or reinstatement of license No. 39-01017-H. DONE AND ENTERED this 25th day of January, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 25th day of January, 2001.
The Issue Respondent's alleged violations of safety regulations, as set forth in Notice and Order to Show Cause, dated May 14, 1980. At the commencement of the hearing, the Hearing Officer granted Petitioner's Motion for Leave to Amend its complaint to substitute Baron Fun Frite's Castle, Inc. as Respondent in this proceeding, and to replace references to Charles Amara as an individual to Charles Amara as an officer of Baron Fun Frite's Castle, Inc.
Findings Of Fact Respondent Baron Fun Frite's Castle, Inc. is a Florida corporation which operates an amusement business at 1100 Main Street, Daytona Beach, Florida. The business is conducted in a two-story building owned by Amara Hotel, Inc. Charles R. Amara is the president of both corporations. The facility is operated as a "fun house" where customers pay an admission to walk through the premises in a period of ten to twenty minutes. There is approximately 1,000 square feet of space in the building with three exits, including an outside fire exit on the south side. The walls and ceilings of the interior of the building consist of sheetrock over which has been sprayed a polyurethane foam material manufactured by Chemetics Systems, Inc., with a tradename of CSI-9l52 Spray. The foam material is coated with an intumescent latex paint coating manufactured by United Paint Manufacturing, Inc. with a tradename of Thermogard. Although the building can accommodate between 50 to 55 persons in the period of one hour, it has never been occupied by more than 43 customers within that period in the past. (Testimony of Nelson, Amara, Stipulation, Respondent's Exhibit 1) On March 4, 1980, Petitioner's Regional State Fire Protection Specialist John R. Nelson inspected Respondent's premises pursuant to a request of the fire department of the City of Daytona Beach. Nelson determined that the building was a "place of assembly" which conferred jurisdiction under Petitioner's rules to enforce fire regulations, based on the building's occupant load of 150 persons as assigned by the City of Daytona Beach. A number of alleged deficiencies were discovered as to which Respondent was advised in a letter from Nelson dated March 10, 1980. The letter and accompanying inspection report required that corrective action be taken by April 7, 1980. Although the letter stated that the items noted were in violation of "Florida Statutes and/or the State Fire Marshal's Rules and Regulations," and that specific references would be provided upon request, neither the letter or the report specified statutes or rules alleged to have been violated. On May 5, 1980, Nelson conducted a re-inspection and found that three violations had not been corrected. Thereafter, on May 14, 1980, Petitioner filed its Notice and Order to Show Cause which constitutes the complaint in this proceeding. On June 11, 1980, Respondent requested a hearing under Chapter 120, Florida Statutes. (Testimony of Nelson, Case Pleadings, Petitioner's Exhibit 1) The rear fire stairs of Respondent's facility on the exterior of the building provide headroom at a landing of six feet two inches. Petitioner's inspector found that such clearance was insufficient under pertinent regulations and could block the exit during an emergency, thereby creating a possibility of crowd panic and consequent danger to public safety. The stairs presently extend out from the building over property owned by the City of Daytona Beach and therefore was the subject of a variance from the City Fire Code when constructed. Although there are two other exits from the building, the rear fire stairs are required in order that the maximum travel from any point inside the building to an exit will net exceed 150 feet. (Testimony of Nelson, Amara, Petitioner's Exhibit 1) The inspection also disclosed that the maintenance and air conditioning rooms of the building had openings in the walls and ceiling which would allow smoke, fire, and toxic gases to spread in the event of a fire. These consisted of openings in duct work and electrical outlets. Respondent testified at the hearing that the openings have been covered since the date of re-inspection. (Testimony of Nelson, Amara, Petitioner's Exhibit 1) The urethane foam product on the walls and ceilings of Respondent' s building is recommended for use by the manufacturer whenever maximum insulation and flammable standards are required. It is safe when used as a "sandwich" material between the interior and exterior materials such as gypsum board or fir wood material. However, if it is exposed on the surface, it is highly flammable and combustible, and subject to rapid vertical spread of fire. At certain temperatures, hydrogen cyanide and carbon monoxide gases would be released. Intumescent paint such as Thermogard will not provide a 15 minute thermal barrier because the foam material will expand and swell when afire and the flame will cause an expansion which in turn causes the paint covering to pop off. The foam material can be adequately protected by spraying with a cement plaster material which will form a hard surface to prevent the formation of gas. At the time the foam material was placed on the interior of the building, it was inspected and approved by the City of Daytona Beach as meeting its existing fire code. The existence of the polyurethane foam material was the subject of one of the violations of applicable law found by Petitioner during its inspection of the premises in March 1980. (Testimony of Nelson, Hogan, Folsom, Petitioner's Exhibit 1, Respondent's Exhibit 1, Respondent's Exhibit 2)
Recommendation That Petitioner issue an order to Respondent directing that it cease and desist within 30 days from continued violation of Section 6-2.1.3 of the National Fire Protection Association No. 101 Life Safety Code (1976) , pursuant to Rule 4A-27.13, Florida Administrative Code and Section 633.161, Florida Statutes. DONE and ENTERED this 18th day of September, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Daniel Y. Sumner, Esquire Office of Treasurer and Insurance Commissioner 428-A Larson Building Tallahassee, Florida 32301 Richard R. Cook, Esquire 213 Silver Beach Avenue Daytona Beach, Florida 32018
