The Issue Whether Petitioner meets the criteria to sit for the Alarm Contractor I licensure examination.
Findings Of Fact The Electrical Contractor's Licensing Board is the agency of the State of Florida responsible for licensing alarm system contractors. Section 489.505, Florida Statutes, contains the following definitions pertaining to this proceeding: As used in this part: "Alarm system" means any electrical device or combination of electrical devices used to detect a situation which causes an alarm in the event of a burglary, fire, robbery, medical emergency, or equipment failure. "Alarm system contractor" means a person whose business includes the execution of contracts requiring the ability, experience, science, knowledge, and skill to lay out, fabricate, install, maintain, alter, repair, monitor, inspect, replace, or service alarm systems for compensation, including, but not limited to, all types of alarm systems for all purposes. "Alarm system contractor I" means an alarm system contractor whose business includes all types of alarm systems for all purposes. . . . Petitioner applied to sit for the alarm system contractor I examination pursuant to the provisions of Section 489.511(2)(a)3.c., Florida Statutes, which provides that a person can sit for the licensure examination if that person: c. Has, within the 12 years immediately preceding the filing of the application, at least 6 years of comprehensive training, technical education, or broad experience associated with an electrical or alarm system installation or servicing endeavor; or Rule 61G6-5.003(1)(c)2., Florida Administrative Code, provides, in pertinent part, as follows: Any person desiring to take the certification examination must establish that he or she meets eligibility requirements according to one of the following criteria: * * * (c) Has, within 12 years immediately preceding the filing of the application, at least 6 years of comprehensive training, technical education, or broad experience associated with an electrical or an alarm system installation or servicing endeavor. The experience required must include: * * * 2. For an alarm contractor I, at least 40% of work that is in fire alarm systems. By letter dated June 16, 1998, Respondent denied Petitioner's application on the ground that the application failed to demonstrate compliance with Rule 61G6-5.003(1)(c)2., Florida Administrative Code. At all times pertinent to this proceeding, Petitioner worked full-time for Florida Power and Light in the capacity of a connect and disconnect man. Petitioner described this position as installing electric meters or disconnecting electric meters when there has been an initiation, change, or termination of service. Petitioner's employment with Florida Power and Light does not require him to work directly with any type of alarm system. The application form provided by Respondent required Petitioner to submit a representative list of his experience. He was to provide a detailed description of the work performed, the job location and address, the general contractor's name, and the name and telephone number of the contractor who pulled the permit. Petitioner provided information pertaining to five jobs in his application and at the formal hearing. Petitioner claimed to have worked on the burglar and fire alarm system during the construction of the First Baptist Church of Brownsville, 4600 Northwest 23rd Avenue, Miami, Florida, between March 29, 1997, and February 9, 1998. Petitioner claimed that he designed the fire alarm system and drew the plans for that system on the blueprint that was used for the construction of the building. Petitioner also claimed to have participated in the installation of the fire and burglar alarm systems. Petitioner testified that the alarm system had 99 devices and was a Fire Light 5210 U.D. system. Petitioner testified that he kept a computer generated time ticket for each job. These computer records were not offered into evidence. Petitioner testified that he spent approximately 2300 hours on the job involving the church. 1/ The second job identified by Petitioner was a joint project with West Kendall Electric for the installation of a NAPCO 2600 model fire alarm system in a residence between March and October 1993. Petitioner estimated that he spent approximately twenty hours on this job. The third job identified by Petitioner was the installation of a residential fire alarm system, security system, burglar alarm system, intercom system, television antenna system, and telephone system at a residence located at 199905 Southwest 135th Avenue, Miami, Florida. The dates of the job were between December 19, 1990, and July 15, 1991. The fire and burglar alarm system was a NAPCO 2600 model. Petitioner did not estimate the amount of time he expended on that job. The fourth job identified by Petitioner was the installation of a NAPCO 3000 model system at 14911 Southwest 144th Terrace, Miami, Florida. Petitioner described this system as an industrial fire and burglar alarm panel with automation and approximately 35 sensors. The dates of the job were between January 6, 1995, and October 20, 1996. Petitioner testified that he expended approximately 90 hours on this project, with forty to forty-five percent of the job being devoted to the fire alarm system. The fifth job identified by Petitioner was the installation of a NAPCO 2600 model fire and burglar alarm system at 14460 Southwest 152nd Court, Miami, Florida. This was another joint project with West Kendall Electric. Petitioner estimated that he expended 80 hours on that job with forty to forty-five percent of the job being devoted to the fire alarm system. This job lasted between December 14, 1993, and March 27, 1994. Petitioner testified that he spent 2,358 hours on the five jobs he identified. He also stated that he had devoted 1,414 of those hours to burglar alarm systems, "according to the ratio." 2/ Petitioner testified that he had been a member of the National Fire Protection Association since 1994. There are no standards for admission to that association, other than the payment of a membership fee. Petitioner has attended various fire alarm seminars over the years sponsored either by system manufactures or associations, such as the National Fire Protection Association. He attended a seminar consisting of 16 hours sponsored by the National Fire Protection Association in May of 1994. He attended an alarm installers seminar sponsored by a manufacturer in February 1990 consisting of 24 hours over a three-day period. He attended another seminar sponsored by a manufacturer for eight hours on October 29, 1992. Petitioner attended a fire alarm training seminar on May 19, 1998.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order that denies Petitioner's application to sit for the certification examination. DONE AND ENTERED this 4th day of January, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1999.
The Issue This dispute concerns the interpretation of the contract for the construction of the new capitol complex for the State of Florida in Tallahassee. The Respondent, J. A. Jones Construction Company, is the general contractor. Honeywell, Inc. and Electric Machinery Company, Inc. are Intervenors and subcontractors on the job. At the heart of this dispute is the question of whether certain items were included in the base bid or should be considered to be part of an alternate to the base bid which was not accepted by the owner, Department of General Services. Specifically, the parties differ over the interpretation of Schedule 16707 of the base bid which involves certain fire and security installations and Contract Alternate No. 7 which was not accepted by General Services. The Respondents and Intervenors maintain that Schedule 16707 should be considered to be part of Alternate No. 7 and no longer part of the base bid. The Department of General Services, on the other hand, maintains that Alternate No. 7 did not and could not be interpreted to exclude any part of Schedule 16707 and that Jones and the subcontractors are responsible for installing said work and receiving no extra compensation for it. Schedule 16707 of the base contract specifications consists of 16 pages dealing with requirements for installation of the new capitol's sophisticated fire and security control and monitoring system. Alternate No. 7 is found on Schedule 01102-P4 and is entitled Alternate No. 7; ADD CCTV AND SECURITY ITEMS. It states in part: "Under Alternate No. 7 add the following work to the Building Monitoring System for Fire and Security: (c) All remote door locks, actuators, annunciators and alarms for the remote door locks for the Governor's suite specified in Section 16707, Paragraph 16707-03f) and scheduled in Paragraph 16707-05." The specifications of the contract provided that the base bid would include the entire, completed project except for work included in the alternates. alternate No. 7 was not accepted by the Department of General Services after the bids were opened and the question now remains as to how much work the general contractor is responsible to provide under the base bid. Since Alternate No. 7 is excluded from the project, the contractor is not responsible to provide items described in that schedule, without extra compensation. Honeywell, Inc., through its employees, submitted a bid to the Electric Machinery Company, Inc. consisting mostly of a bid on the equipment it would provide under the contract specifications and Electric Machinery Company used that bid to submit a bid to Jones who bid as a general contractor to provide installation of the required components for the Capitol Complex Phase II. Jones used that information and estimate to prepare and submit a bid for the entire Capitol Complex. That bid was submitted on the assumption and interpretation, after studying the entire contract specifications including the alternates, that the base bid consisted of the fire management system and that Alternate No. 7 encompassed the security system. The contractors did not interpret the base bid to include items in the security system as it was their interpretation such work would be performed only if Alternate No. 7 was accepted. On the other hand, the Department of General Services states that the fair interpretation of Alternate No. 7 restricts itself not to the entire complex, but only to the Governor's suite. The Department of General Services maintains that Alternate No. 7 cannot be considered to be misleading or ambiguous to anyone experienced in bidding on complex construction projects and that the fair reading of the specifications in Alternate No. 7 and Schedule 16707 requires the contractor to furnish items in the security system under their responsibilities in the base contract. Further, the Department of General Services maintains that under the contract J. A. Jones and the subcontractors had a responsibility to get an interpretation from the architect over any items they now maintain to be ambiguous and that the failure to do so absolves the Department of General Services from any obligation to pay on a quantum meruit basis. The contractors when preparing their bid submittals did not consider Alternate No. 7 to be ambiguous at any time, but interpreted it in the manner described above. When it became apparent there was a difference of interpretation over what was included in the base bid, the question was submitted to the architect (Reynolds, Smith and Hills) who responded by letter on November 12, 1975 (Honeywell Exhibit No. 3) stating that Alternate No. 7 only excluded remote locking devices for the Governor's suite and gates, gate sensors and remote gate locks specifically referred to in the Alternates And Basis of Bids section. Although the central issue during this hearing was the interpretation of these specifications, testimony was taken and argument presented over a period of four days. The contractors presented evidence which tends to show that they acted consistently with their claim that their base bid never included items which are part of the building security system. For example, the contractors submitted shop drawings for door frames to the architect for approval and these show drawings did not have cutouts which would be required for the installation of the security devices. The architect approved the shop drawings and failed to mention the lack of cutouts for these devices. Likewise, the electrical wiring riser diagram submitted by the contractors for approval did not show installation of wiring for the security system. The contractors maintain that this indicates that even the architects did not consider the building security subsystem to be part of the base bid until the issue was put before it for resolution under the contract which required an architect's decision before going to hearing. No weight can be given to the architect's denial of relief in this case, particularly since the dispute is about specifications drawn up by the architect. On the other hand, the Department of General services maintains that the above examples are minor events which are not conclusive of anything. The Department of General Services points out several items in other parts of the contract specifications which can be interpreted as consistent with their interpretation of Alternate No. 7. The only real issue to be determined in this matter is whether Alternate No. 7, above quoted, is ambiguous. If it is, then the contractors may have established a right to recovery. If not, they have no valid basis for a price adjustment. After carefully reviewing and evaluating the evidence and testimony at the hearing it is the conclusion of this Hearing Officer that alternate No. 7 is ambiguous. Ambiguity is generally considered to be the use of words which are susceptible of more than one meaning. From a fair reading of Alternate No. 7 it is impossible to tell whether it relates only to the Governor's suite or the entire complex. Although the architect and its agents express no difficulties in understanding Alternate No. 7 and although it was their intention to apply said alternate to the Governor's suite, it is susceptible to more than one interpretation. The work in question is presently being performed and the parties have agreed that any price adjustment will be determined by the eventual outcome of this proceeding. In this case the specifications and contract were drawn up by the architect-engineer, Edward Durell Stone and Reynolds, Smith and Hills, working with the Department of General Services. Their relationship with the Department of General Services was one of agent-principal so that their acts or omissions will bind the Department of General Services. The wording of Alternate No. 7 had been interpreted differently by the owner and the contractors. Both interpretations appear to be reasonable in light of the ambiguous wording of this specifications. No evidence was presented at this hearing to demonstrate with any degree of certainty that either interpretation is faulty or rest upon an obvious error. In this type situation the law is abundantly clear that the contract specifications will be interpreted against the draftor and in favor of the contractor. WPC Enterprises, Inc. United States, 232 F. 2d 874 (1963) Ct. C1. (1964). As stated above, the Department of General Services, it architects, and engineers intended Alternate No. 7 to be applied only to the Governor's suite, however, they did not adequately convey this meaning to the contractors and because of this ambiguity the contract must be interpreted in a fashion least favorable to them. See American Agrinomics Corp. v. Ross, 309 So.2d 584, Tanner v. Equitable Life Ins. Co. of Washington, D.C., 303 So.2d 352. The Department of General Services does not differ as to the possible applicability of the above rules of contract interpretation, however, it maintains that because of other contract provisions such rules of law do not apply in this case. Specifically, the Department refers to Article 4.1 of the contract entitled Instructions To Bidders. This contract section contains an express warning to bidders that they have a legal duty to read the bidding documents carefully and inquire in writing of the architect at least seven days before bids are received for the interpretation or correction of any ambiguity, inconsistency or error in the specifications. The Department of General Services cites authority for the proposition that the above contract clause has imposed a duty upon the contractors to have ambiguities clarified before they submitted their bids. Failing to do so they are now barred to present a claim based on a claim of ambiguity. "A prime purpose of these contractual provisions relating to ambiguities and discrepancies is to enable potential contractors (as well as the Government) to clarify the contract's meaning before the die is cast. The bidder who is on notice of an incipient problem, but neglects to solve it as he is directed to do by this form of contractual preventive-hygiene, cannot rely on the principle that ambiguities in contracts written by the Government are held against the drafter (e.g. Peter Kiewit Sons Co. v. United States, 109 Ct. C1. 390, 418 (1957). Even more, the bidder in such a case is under an affirmative obligation... We hold that (when a contractor) is presented with an obvious omission, inconsistency, or discrepancy of signifi- cance, he must consult the Government's representative if he intends to bridge the crevasse in his own favor ..." Beacon Construction Company of Massachusetts v. The United States, 314 F. 2d 501 (U.S. Ct. C1. 1963). This Hearing Officer finds that the above quote of authority is an accurate interpretation of the applicable law, however, there was no evidence which was presented at this hearing indicating the contractors had any questions regarding the interpretations of Alternate No. 7 at the time they submitted their bid. It is the opinion of this Hearing Officer that the Department of General Services cannot avail itself of the provisions of article 4.1 of the contract unless there was some evidence at this hearing which would indicate the contractors were aware of the ambiguity at the time they prepared their bid and failed to get a written interpretation from the architect. The evidence in this case clearly indicates that the owner-architect and the contractors proceeded under different interpretations of Alternate No. 7 and were unaware of the other party's position until it became apparent by the work being performed that there was a disagreement among the parties. In the absence of the contractor being aware of a problem and not seeking to solve it, the Department of General Services cannot use Article 4.1 of the contract to hold themselves harmless for defects in its draftsmanship. Were it otherwise the Department could avoid liability for every disagreement involving contract interpretation by using such clause as a blanket defense. Such a result would put bidders at their peril every time a contract became subject to a varying interpretation.
Conclusions It is therefore concluded that the clause in question, Alternate No. 7 is ambiguous and that the contractors were not unreasonable in interpreting it so as to exclude items in the building security subsystem found in Schedule 16707. The ambiguity should be resolved against the owner as it has not demonstrated knowledge or such neglect on the part of the contractors to avail itself of Article 4.1 of the contract. It is therefore RECOMMENDED the contractor be compensated on a quantum meruit basis for the work being performed under dispute. DONE and ENTERED this 20th day of December, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bernard S. McLendon, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, FL 32304 Robert R. Feagin, III, Esquire Holland & Knight P. O. Drawer 810 Tallahassee, Florida 32302 Patrick G. Emmanuel, Esquire Holsberry, Emmanuel, Sheppard & Condon P. O. Drawer 1271 Pensacola, Florida William J. Terry, Esquire 2713 First Financial Tower Tampa, Florida 33602
The Issue The issues are whether Respondent violated Section 471.033(1)(g), Florida Statutes (2003), by negligence in the practice of engineering, and whether Respondent violated Sections 471.023 and 471.033(1)(a), Florida Statutes (2003), by practicing engineering through a business organization that did not, nor does it currently have, a Certificate of Authorization.
Findings Of Fact Mr. Maples is a licensed professional engineer in the State of Florida. He holds license no. PE 10214, and he practices engineering in the Panama City, Florida, area. During all times pertinent Mr. Maples held an active license and practiced pursuant to it. FEMC is charged with providing administrative, investigative, and prosecutorial services to the Board of Professional Engineers pursuant to Section 471.038, Florida Statutes. The Board of Professional Engineers exists pursuant to Section 471.007 and is authorized to discipline engineers under its authority by Section 455.225. During times pertinent, Mr. Maples provided engineering drawings to Chris Thomas (Mr. Thomas), who owned Panhandle Fire Protection, Inc. (Panhandle) of Lynn Haven, Florida. Mr. Maples maintained his engineering supplies in Mr. Thomas's office. Mr. Maples did most of his engineering work in his home in Lynn Haven, Florida. During times pertinent, Panhandle was his only client. Count One At a time prior to January 27, 2004, Panhandle entered into an agreement with Bill Grimsley (Mr. Grimsley or Owner). Mr. Grimsley was building a 22-story building in Panama City Beach, Florida, which was to be named Treasure Island Condominiums (the Condominiums). The agreement contemplated that Panhandle would address the fire suppression needs of the Condominiums. In order to address the fire suppression needs of the Condominiums a fire protection plan using water sprinklers was required. The fire protection plan that was ultimately developed and submitted for permitting, FEMC's Exhibit No. 5, provided for the installation of more than 49 sprinklers. Although it is difficult to determine exactly how many sprinklers were to be utilized, the number was in excess of 1000. The Condominiums included residential areas and garage areas. The residential areas were to be provided with a "wet" sprinkler system and the garage areas were to be provided with a "dry" sprinkler system. A "wet" system employs pipes which always have water in them. A "dry" system has no water until it is activated during a fire. A "dry" system is used where freezing might be a hazard. Thus the garage, which was not designed to be heated, had a dry system. Mr. Thomas drafted a sprinkler system for the Condominiums using shop drawings of the Condominiums provided to him by the Owner. Mr. Maples reviewed and corrected Mr. Thomas's work. Thereafter, he sealed the drawings that were FEMC's Exhibit No. 1 on January 27, 2004. Mr. Maples did not intend for these drawings to be the complete and final drawings for this project. They were for the use of the Owner. These drawings formed the basis of FEMC's complaint of negligence in the practice of engineering with regard to Mr. Maples. Mr. Thomas, or his employees, made certain calculations, based on the drawings which set forth the schematic of the sprinkler systems. Drawings are the source documents for calculations. The calculations provide information about the system, including pipe diameter and length, and water pressures at various points. FEMC's Exhibit No. 2 are calculations which were signed by Mr. Maples, but were not sealed by him. These calculations are dated May 21, 2004. The calculations that are FEMC's Exhibit No. 2 are in two parts. One part addresses the wet system for the residential areas and the other part addresses the dry system for the garage areas. It was not proved by clear and convincing evidence that the calculations that are FEMC's Exhibit No. 2 correspond to FEMC's Exhibit No. 1, although they were clearly prepared for some iteration of the fire protection plan for the Condominiums. The probability is high that FEMC's Exhibit No. 2 was prepared for an iteration of drawings prepared subsequent to FEMC's Exhibit No. 1. For instance, Petitioner's Exhibit No. 1 reflects a six-inch pipe under a walkway leading to a standpipe on the first page. On Petitioner's Exhibit No. 5, a later iteration of the plans, the pipe is shown as a four-inch pipe, and Petitioner's Exhibit No. 2 shows calculations for a four- inch pipe. The absence of calculations that are specific to the operative plans, FEMC's Exhibit No. 1, means that there is no record adequate for finding facts to support Count One. FEMC's Exhibit No. 1 was never submitted to the authority having jurisdiction, the Bay County Building Official. FEMC's Exhibit No. 1 was not prepared with the intent that it was to be submitted to the authority having jurisdiction. FEMC did not prove by clear and convincing evidence that FEMC's Exhibit No. 1 was a fire protection system engineering document as defined in Florida Administrative Code Chapter 61G15-32. This fact was admitted in FEMC's Proposed Recommended Order. Accordingly, because the allegations of negligence in the Administrative Complaint are limited to violations of Florida Administrative Code Chapter 61G15-32, addressing fire protection system engineering documents, the specific allegations of Count One suggesting Mr. Maples failed to comply with Florida Administrative Code Rule 61G15-32.003 and National Fire Protection Association 13 (NFPA 13), and the specific allegations suggesting Mr. Maples failed to comply with Florida Administrative Code Rule 61G15-32.004, were not proven. Count Two Count Two of the Administrative Complaint alleges at paragraph 11, that "the fire protection documents prepared for the Treasure Island Condominium contain a title block for Panhandle Fire Protection, with a designer, Chris Thomas. Respondent signed and sealed the documents but no title block reflects a separate address for him." As noted above, the document dated January 27, 2004, to which the quoted paragraph refers, is admittedly not a fire protection engineering document. Count Two of the Administrative Complaint further alleges at paragraph 12, that, "Respondent signed a letter on the stationery of Panhandle Fire Protection, Inc., dated July 7, 2004, listing his capacity as 'Engineer,' in response to the notice of investigation of a complaint about the Treasure Island Condominium." This letter was a mere inquiry to the Florida Board of Professional Engineers and correctly noted that the complaint was based on an owner review set of plans rather than the permitted ones. The signers of the letter, Mr. Maples and Mr. Thomas, were both concerned about the allegations that had been made against them. This letter provides, at most, a scintilla of evidence that Mr. Maples was practicing engineering through a business entity that does not have a Certificate of Authorization. Panhandle has not been issued a Certificate of Authorization by the Board. Mr. Thomas does not use any title that refers to himself as an engineer, including any title described by Section 471.031. He is a self-taught "sprinkler man," who has been in the business for 25 years. The license held by Mr. Thomas, "Contractor II," was issued pursuant to Section 633.021, and permits him to design fire protection systems using 49 or fewer sprinkler heads. Panhandle was engaged in the business of designing, as well as building the sprinkler system for the Condominiums, and the design had many more than 49 heads. Panhandle was practicing engineering as defined by Section 471.005(7). Specifically, Panhandle was practicing fire protection engineering. Mr. Maples was not an employee of Panhandle. Rather, he was paid for each individual job that he did for Panhandle. Mr. Maples has worked for Mr. Thomas for several years and has participated in the production of over one hundred sets of fire protection plans. Mr. Maples was practicing engineering through a corporation that had no Certificate of Authorization.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the allegations under Count One be dismissed, that Mr. Maples be determined to be guilty of the allegation in Count Two, that he be reprimanded, and that he be placed on probation for two years. DONE AND ENTERED this 31st day of March, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2006. COPIES FURNISHED: Bruce A. Campbell, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Alvin L. Peters, Esquire Peters & Scoon 25 East 8th Street Panama City, Florida 32401 Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway, Suite 200 Tallahassee, Florida 32303-5267 Doug Sunshine, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 2507 Callaway Road Tallahassee, Florida 32303-5267 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Petitioner Agency for Health Care Administration properly assigned conditional license status to Respondent, Westminster Woods on Julington Creek, based upon its determination that Respondent had violated Florida Administrative Code, Rule 59A-4.130, and 42 CFR Section 483.70 via Florida Administrative Code Rule 59A-4.1288, due to the presence of two wide-spread Class I deficiencies cited at the most recent annual licensure survey of January 27-29, 2003. Whether Petitioner Agency for Health Care Administration properly assessed a $30,000.00 fine against Respondent for violating 42 CFR Section 483.70 via Florida Administrative Code Rule 59A-4.1288, as well as Florida Administrative Code Rule 59A-4.130, due to the presence of two wide-spread Class I deficiencies at the most recent annual survey on January 27-29, 2003. Whether the Agency for Health Care Administration is entitled to $6,000.00 in costs related to the investigation and prosecution of this case(s), pursuant to Section 400.121(10), Florida Statutes.
Findings Of Fact Pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code (2002), AHCA is the regulatory authority responsible for licensure of skilled nursing facilities and for enforcement of all applicable statutes and rules governing skilled nursing facilities, of which Respondent Westminster Woods at Julington Creek is one. On January 27-29, 2003, AHCA conducted an annual licensure and re-certification survey of Respondent's facility. As a result of that survey, the facility was cited for two Class I deficiencies related to failure of the facility's fire alarm system. Each of these deficiencies was cited upon the same underlying facts. AHCA represented that one was cited as a Federal "tag" and the other was cited as a State "tag." In the Administrative Complaints, AHCA alleged, in a single Count, two separate Class I deficiencies. Respondent is a 60-bed skilled nursing facility located in Jacksonville, Florida. Respondent houses more of the "older- old" or "elderly-elderly" residents than the average skilled nursing facility. Respondent is a second floor facility with two stairwells that provide direct outside egress from the facility and that can be used as fire exits. During the January 27-29, 2003, survey, the facility housed 58 residents. Respondent's 58 residents on those dates were fairly dependent in terms of their physical capabilities. More than one-half of them were over the age of 85, and a couple of the residents were over 100 years old. Only one of the residents on January 27-29, 2003, was independently ambulatory. The remainder of the residents were incapable of independent ambulation. One of the residents was bed-ridden. Thirty-eight residents required extensive assistance in transferring or ambulating. The remainder of the resident population required assistive devices such as canes or walkers to transfer or ambulate. Due to their age, physical condition, and inability to engage in self preservation, these residents were extremely vulnerable in the event of a fire. The survey team arrived at the facility at 6:00 a.m. on January 27, 2003. At around 8:00 a.m., the facility's maintenance supervisor, John Doran, conducted his usual rounds of the facility. Mr. Doran personally checks the fire alarm panel twice daily, and did so that morning. The panel has three lights: A green light which means that the panel is working; a yellow light which means a mechanical failure has occurred; and a red light which signifies an alarm. Mr. Doran noted that no light was on. The fire doors, which close automatically if the alarm is activated, were still open. Except for the absence of any alarm panel light, everything seemed to be normal. Therefore, on the morning of January 27, 2003, Mr. Doran believed that there was a problem with the fire alarm panel, not the fire alarm system. In addition to Mr. Doran's twice-daily checks, Respondent's alarm system is monitored by an outside monitoring company which is supposed to call the facility if any problem is detected with its fire alarm system. The monitoring company did not call, which also suggested that the system itself was not malfunctioning, but merely that a light was out on the alarm panel. Nonetheless, Mr. Doran called his secretary, who contacted "W. W. Gay," the contract repair company for the system, and asked that a technician come to the facility. Thinking there was no immediate danger, but only that there was a problem with the alarm panel lights, and believing that everything that could be done up to that point had been done, Mr. Doran did not mention the alarm panel/system to surveyor Patricia McIntire, R.N., when she interviewed him about hot water temperatures around 10:00 a.m. on January 27, 2003. W. W. Gay's technician arrived at the facility about 10:30 a.m. and began trouble shooting the fire alarm system. The first technician could not find the problem, so he called for a second technician. During the course of January 27, 2003, three technicians arrived at Respondent's facility and worked on the panel, in full view of staff and surveyors who were in and around the nurses' station. During the entire period that the fire alarm panel was not working, which ultimately amounted to at least three days, a large number of staff and other responsible people were around the resident areas. The January 27, 2003, morning shift had a minimum of 17 staff members directly assigned, with others coming and going from the unit. In all, there were around 25 people circulating in the nursing home during the day shift. After the surveyors had left, the evening shift had nine staff members assigned to the unit, with additional staff overlapping from the day shift. The night shift had six assigned staff members, plus "Ron," Respondent's security man, who was assigned to a fire watch, beginning late on the afternoon of January 27, 2003. (See Finding of Fact 32.) On Tuesday, January 28, 2003, there were 20 staff people directly assigned to the unit on the day shift. Counting the AHCA surveyors and ancillary staff, there were approximately 27 people on the floor. The evening shift had nine specifically assigned staff members, with others overlapping. The night shift had at least six staff members. On Wednesday, January 29, 2003, the numbers were similar. During the course of January 27, 2003, Mr. Doran did not tell Respondent's administrators, Don Wilson or Mike Sweeney, about the problem with the fire alarm panel because he thought the fire alarm panel problem was being resolved by the W. W. Gay technicians and because both administrators were very busy with the AHCA survey. Around 4:00 p.m., January 27, 2003, Mr. Doran found out that the problem with the fire panel was more serious than he had earlier thought. The AHCA surveyors had already left the facility. Mr. Doran went to Mr. Sweeney and Mr. Wilson. He told them at that time that W. W. Gay's third technician had told him that it would be the next morning before the fire alarm/system panel could be repaired. Mr. Sweeney and Mr. Wilson advised Mr. Doran that the situation was unacceptable. They instructed Mr. Doran to call W. W. Gay and tell that company to return and fix the panel immediately. Mr. Doran made the phone call, but as it ultimately turned out, the fire panel could not be fixed that night because a part had to be ordered. The facility had in-place a three-tiered system of evacuation in case of fire. First, residents in the room where the fire is located and those in the two adjoining rooms would be moved to safety. Second, if the fire continued to spread, all residents on the side of the fire doors where the fire was located would be moved to the other side of the doors and the fire doors closed. Third, and only if the fire were still not contained, would the residents be moved out of the building through the stairwells. The control panel of the fire alarm system is the "brains" of the facility's fire safety system. It has a direct connection to the local fire department and provides the fire department with direct, immediate notification if there is a fire in the facility. It provides immediate notification to the residents and staff of the facility through the sounding of bells, chimes, strobes, etc., of the existence of an emergency. It operates the smoke detectors. It automatically shuts down the air conditioning unit to prevent the spread of carbon monoxide, smoke, and fumes throughout the facility, and it automatically locks and unlocks the fire doors. It is the transfer of smoke and toxic gases generated during a fire which is the most common cause of casualty. The continued operation of the air conditioning system during a fire could make the lateral transfer of residents to another compartment on the same floor (tiers one and two of the facility's fire safety plan) ineffective because the continued operation of the air conditioning system could still transfer gases and smoke throughout the facility. However, in this case, although the facility's air conditioning system does move air, smoke being carried throughout the building was unlikely, since the intakes were located in common areas where smoke would be detected by staff. Fire drills are held by Respondent at least monthly. Staff is trained to respond to fires by Scott Fogg, a facility employee who has 23 years' United States Navy experience in training to fight fires, watching for fires, and fighting fires. Mr. Fogg has personally fought over 30 fires. He orients each new employee for at least one and one-half to two hours. He also does annual training of staff. Part of the training provided by Mr. Fogg consists of going step by step through the facility's fire plan. The plan includes contacting the fire department. Once the charge nurse knows of a fire, it is her responsibility to call "911." The facility's plan requires that the charge nurse notify the fire department, regardless of whether or not the alarm system is functioning.1/ The facility's fire plan is kept at several locations, including in the possession of the charge nurse and at the nurses' station. Every individual who goes through orientation also receives a copy. There is a sprinkling system for the entire facility. The sprinkling system is not dependent on the alarm system functioning. Each resident's room has at least two sprinklers, and some rooms have three sprinklers. The bathrooms inside the residents' rooms have an additional sprinkler. The dining room, halls, common area, and stairwells have sprinklers. There are fire extinguishers located at each corner of the building and fire hoses on the walls. Mr. Fogg evaluates the monthly fire drills. If he notes a problem, he writes it up and does follow-up training. The building is made of concrete, and nonflammable paint is used. Smoking is not permitted in the facility building. Staff are required to smoke in a designated smoking area behind another building. Residents are not allowed to keep combustible materials in their rooms. The kitchen and laundry are located in another building. Evacuation routes are posted throughout the building. Upon learning at approximately 4:00 p.m. January 27, 2003, that the fire alarm/system could not be fixed that night, Messrs. Wilson and Sweeney instructed Mr. Doran to institute a one-hour fire watch. A fire watch involves dedicating an individual to go around the building at stated intervals (in this case, hourly) looking for potential fire, smoke, or fire risk. Mr. Sweeney is the facility's Executive Director. He is also a licensed nursing home administrator. Based on his 25 years of experience in health care and his knowledge of the properties of the facility's physical plant, he thought a one- hour fire watch was reasonable and appropriate. Mr. Wilson, the facility's Health Services Administrator, concurred. Respondent's security man, Ron, was instructed to perform the hourly fire watch. Mr. Doran walked Ron around the area and told him to use his eyes, ears, touch, and sense of smell to look for any signs of fire. Ron carried a cell phone so that he could quickly communicate with Messrs. Doran, Wilson, Sweeney, or the fire department, if necessary. There is no evidence that Ron failed in his instructed duties for an hourly fire watch. Most of the survey team returned about 7:00 a. m., on January 28, 2003. At approximately 8:30 a.m., another team member, Nicholas Linardi, AHCA's Life Safety Inspector, arrived at the facility for the first time. Mr. Doran met with Mr. Linardi in the administrative conference room at around 9:00 a.m. There is no dispute that the first order of business was Mr. Linardi's review of all of the facility's service and safety logs. Mr. Fogg was also present at that time. After this point, there are significant differences among the witnesses' respective testimonies as to the chronology of events and the time span involved. However, having weighed the credibility of the respective witnesses, it is found that no later than their arrival on the second floor skilled nursing unit at approximately 9:30 a.m., January 28, 2003, Mr. Doran told Mr. Linardi that there was a problem with the fire alarm panel/system. How clear Mr. Doran was in this first explanation of the extent of the problem or how much or how little of Mr. Doran's explanation Mr. Linardi appreciated at that time is not clear from the record, but Mr. Linardi inquired concerning what the facility was doing about solving the problem, and Mr. Doran told him. Mr. Linardi requested that Mr. Doran call W. W. Gay again. Mr. Linardi did not require that the facility shut off the air-conditioning, pending repair of the fire alarm system. He did not offer any immediate suggestions as to additional actions the facility staff should take to protect its residents. He did not state that the facility should increase the frequency of the fire watch. There also is no clear evidence that he told anyone at that time that the facility must notify the local fire department that the panel/system was inoperative. Mr. Linardi's testimony was clear that when he is on a facility's premises, he is one of the appropriate persons or entities to whom AHCA expects the facility will report a fire alarm/system malfunction, but he was also adamant that rigid enforcement of "tags and fire standards," means that the facility is required to report any malfunction to the local fire authority, in this case, to the St. Johns County Fire Department. It is Mr. Linardi's practice to issue a survey citation, regardless of the reason a fire alarm is out of commission. The rest of AHCA's survey team first became aware of the extent of the problem with the fire alarm system at approximately 2:45 p.m., on January 28, 2003, when Mr. Linardi conducted a fire drill in the facility for purposes of AHCA’s survey. During the fire drill, it became evident to the AHCA survey team that the alarm did not sound and the fire doors did not automatically close. During the fire drill, staff members had to yell out information to alert other staff members that there was a fire drill and to identify the location of the "pretend" fire. If the fire alarm system is working, it automatically closes the correct doors. If it is not working, staff members do not know which doors to close until told where the fire or pretend fire is, but during the fire drill, it took facility staff only four and one-half minutes to realize that the correct fire doors had not closed and to go to the north corridor to manually shut them. In general terms, Mr. Linardi felt that an incipient fire can start and be transferred throughout a facility within four minutes. He did not specifically discuss Respondent's facility. No one testified to what the response time should have been if an alarm had sounded. Beyond what could at most have been a half-minute response delay due to the absence of a functioning alarm, AHCA apparently found no fault with the staff's response to, and conduct of, the fire drill. Mr. Linardi was, in fact, complimentary of the results. After the fire drill on January 28, 2003, Mr. Linardi personally called W. W. Gay and verified that the part necessary to fix the panel/system was on order. Still later in the afternoon, Mr. Linardi notified the St. Johns Fire Marshal that Respondent's fire alarm system was not in service. The St. Johns Fire Marshal directed that the facility institute a 15-minute fire watch. Respondent immediately instituted the 15-minute fire watch on January 28, 2003. Mr. Linardi testified that he was concerned that the Fire Marshal's assigned fire watch frequency of 15 minutes was too liberal and that a fire watch perhaps should have been instituted at even shorter intervals, but since the regulations presume that the local authority shall set the protocol for fire watches, he said nothing. There was some surveyor commentary to the effect that laundry carts "stored" in Respondent's hallway near one of the exits to the stairs violated survey criteria and aggravated danger to residents, but Mr. Linardi conceded that laundry carts could legitimately be rolled through hallways as linen goods were transported in them from the linen closet to each resident's room. It was his opinion such carts should have been parked in residents' rooms for any extended period of time. No accurate measurements of acceptable time or unacceptable time that these carts remained in the hallways was advanced by any witness, so this survey criticism is not indicative of a citable flaw. A chair was found on the landing at the top of one of the two exit stairwells. The landing and stairwell are large. The chair was not blocking the door leading onto the second floor landing from the skilled nursing unit. The chair's location would not have prevented an ambulatory person or a person on a cane, assisted by another, from descending via the stairs. The only obstruction the chair might have represented would have been if a patient had to be carried on a stretcher or litter and the stretcher or litter had to be turned by two people on the landing. Mr. Linardi commented that actual egress was not at issue, but because survey criteria specifically prohibit furniture or any other object from being there, the chair's presence on the landing was still a citable offense. Renovations were ongoing in the facility during this period, and construction workers had temporarily stored some of the construction materials that they were using in the bottom recess of an exit stairwell. These supplies were stored without permission or knowledge of facility staff. The bottom of the stairwell is a large open area, 22 feet long by 10 feet wide. Most of the construction materials were stored beneath the stairs and were not blocking either a step down from the stairs or access to the outside exit door. However, one piece of flat molding protruded in front of the exit door, and had the potential of impeding egress. Although there was testimony that this molding could have been easily stepped over, the photographs make clear that this item could have impeded the speed of an evacuation of the above-described frail, elderly and non-ambulatory population if an evacuation had been necessary. There is no persuasive evidence that a hinge on any exit door prevented its being opened or that any exit door was otherwise unreachable or otherwise out of commission. During the 15-minute fire watch on the third day of the survey, January 29, 2003, Ron (See Findings of Fact 13, 32, and 42) found a tray on top of the juice machine in the beverage area of the facility’s dining room and removed it. This area is within three feet of a sprinkler head and within six feet of a fire extinguisher. The juice machine has thermal overload protection to prevent electricity going to the motor if the motor gets hot. In short, if the motor gets hot, the machine cuts off. When the surveyors arrived on that date, a number of residents and staff members were in the dining room. The surveyors noted an odor similar to that of a burning motor in the vicinity of the juice machine. At that time, the tray had already been found and removed as part of the 15-minute fire watch. When a motor overheats, the smell lingers for a long time. There is no evidence that the incident did more than produce an unpleasant odor. AHCA gave Respondent a written mandated correction date of February 6, 2003, but before the survey team finally exited on January 29, 2003, the facility had changed the fire watch to every 15 minutes and had advised that the fire alarm system would be operational on January 30, 2003. Therefore, AHCA removed the "immediate jeopardy" classification on January 29, 2003, prior to the end of the survey, when it determined that fire watches were being conducted every 15 minutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of, it is RECOMMENDED that the Agency for Health Care Administration enter a final order Finding Respondent guilty of a single, isolated Class III deficiency, fining Respondent $1,000.00 therefore, and removing Respondent's conditional licensure status; and Remanding to the Division of Administrative Hearings the issue of the amount of any costs related to the investigation and prosecution of these cases, pursuant to Section 400.121(10), in the event the parties cannot stipulate to those costs. DONE AND ENTERED this 13th day of November, 2003, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November 2003.
The Issue 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 Whether or not Respondents improperly serviced portable fire extinguishers and pre-engineered fire suppression systems as specifically alleged in the administrative complaints filed herein on October 8 and November 4, 1992.
Findings Of Fact During times material herein, Respondent Polk Fire Extinguisher Service, Inc. and its owner, Ira Devon Canady, was a licensed dealer for portable extinguishers and pre-engineered systems for fire protection and prevention. During times material hereto, Respondent Floyd E. Nicks, was a permittee for the servicing of portable extinguishers and pre-engineered systems. On or about January 29, 1992, Respondent Polk caused its licensed permittee, James G. Boykin, an employee under Respondent Polk's direct supervision and control, to service a pre-engineered fire suppression system at the Highway 27 truck stop in Lake Wales, Florida. On March 14, 1992, a fire started in the kitchen area of the truck stop. On March 17, 1992, Investigator Phillip J. Gruda, an employee in the fire sprinkler industry in excess of 26 years, was summoned to investigate the fire which occurred in the restaurant (kitchen area) of the truck stop wherein the fire suppression system failed to function as designed. Investigator Gruda immediately initiated his investigation. He noted that a fire started in the kitchen. The fire origin was in the area of the range hood which became completely engulfed in flames and the suppression system did not activate. The fire suppression system which was installed in the hood of the oven utilizes a fusible link which melts when exposed to intense heat. The melted link sets off an ignitor which lets the fire retardant powder from the system extinguish the fire. An examination of the system revealed that the control head was twisted and the cable which connects the fusible link and the remote pull station was twisted preventing the system from discharging. Investigator Gruda also discovered that the cable had dislodged from the pulley extending from the control head which further prevented the system from firing. On approximately January 29, 1992, Respondent Polk used its agent/permittee, Boykin, to also service two portable extinguishers at the truck stop in Lake Wales. Permittee Boykin failed to perform the required six-year maintenance on portable fire extinguisher No. 873430; failed to discover that the gauge on said extinguisher indicated it had discharged; failed to discover that the extinguisher had leaked and to remove the old label from the extinguisher; failed to perform the hydrostatic test on the extinguisher and placed an incorrect serial number on the service tag. Also, Boykin did not leak test the extinguisher. The above-referenced extinguisher failed to discharge during the fire on March 14, 1992 at the truck stop. On or about December 19, 1990, Respondent Polk caused its agent/permittee, Floyd E. Nicks, an employee under Respondent Polk's direct supervision and control, to service a pre-engineered system at the truck stop in Lake Wales. Respondent Nicks was dispatched to perform a six-year service maintenance on the system and at Respondent Polk's direction, used a generic BC powder instead of the required safety first specified powder thereby invalidating the underwriter's laboratory (UL) listing. During December, 1990, Respondent Nicks also failed to perform the required hydrostatic test for cylinder No. 24991 which was part of the pre- engineered system at the truck stop. Respondent, by its agent and employee Boykin, during December, 1991, serviced a pre-engineered system at the Lone Palm Country Club in Lakeland. Agent Boykin failed to properly service the system and investigations by Gruda subsequently revealed the following violations: S-4 Venturi was missing over the char- broiler appliance tee. Incorrect duct nozzles and plenum nozzles. Six elbows were used to connect the yoke instead of the specified five. The pipeline limits did not meet specifi- cation. The system was not piped in accordance with the manufacturer's instructions. The duct nozzle was not centered. The filters were not baffled and "range guard" corner pulleys were used instead of "safety first" as specified. Based on these violations, the gas charbroiler was not properly protected by the fire suppression system. On or about July 31, 1991, the parties entered a consent order against Respondent Polk wherein Respondent was placed on probation for one year. One condition of probation set forth in the Consent Order was that Respondent Polk would strictly adhere to all provisions of Chapter 633, Florida Statutes and rules and regulations promulgated thereunder.
Recommendation Based on the foregoing findings of facts and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order revoking the licenses and permits of Respondents Polk Fire Extinguisher Service, Inc., Ira Devon Canady and Floyd E. Nicks. RECOMMENDED this 2nd day of August, 1993, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-6551 and 92-0023 Ruling on Petitioner's proposed findings of fact. Paragraph 8, rejected as being a conclusion. COPIES FURNISHED: Tom Gallagher, State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Bill O'Neill, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Daniel T. Gross, Esquire Division of Legal Services Department of Insurance and Treasurer 612 Larson Building Tallahassee, Florida 32399-0300 Ira Devon Canady, Owner Polk Fire Extinguisher Services, Inc. Post Office Box 384 Lakeland, Florida 33801 Floyd E. Nicks, pro se 1137 Carlton Lake Wales, Florida 33853
The Issue The issue whether Respondent violated subsections 489.533(1)(m)3., and/or 489.533(1)(f), Florida Statutes (2010),1 as alleged in the Administrative Complaint, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the Electrical Contractors Licensing Board within the Department of Business and Professional Regulation (Petitioner or DBPR). At all times material to the allegations in the Amended Administrative Complaint, Respondent, Steven Scott Clark, was a certified alarm systems contractor one, holding Electrical Contractor's Licensing Board's License Number EF1255. As a licensed contractor, Clark was the person who possessed the required skills, knowledge, and experience to be responsible for an alarm systems business or, in other words, to serve as its qualifying agent.2 Clark was the qualifying agent for E.A.S. Industries (E.A.S.), d/b/a A.B. Fire Systems (A.B. Systems). On January 23, 2006, A.B. Fire Equipment, Inc., (A.B. Equipment) submitted a proposal, signed on its behalf by Dick Sorbye, for work on fire alarm equipment at Crosswinds Apartment at 1300 N. Ocean Boulevard in Pompano Beach (Crosswinds). None of the three license numbers listed on the proposal is the same as Clark's. A.B. Equipment is not a licensed or qualified alarm contractor. Below the name of A.B. Equipment, which is checked on the proposal form, is the name of "A.B. Fire Systems/ALARM DIVISION" which is, in fact, the same company as A.B. Systems. The proposal for a total contract cost of $6,610.00, included the following language: We hereby propose to furnish the material necessary for completion of the following: Repair wiring short and replace the following devices. 9 weather proof horn strobes @ $95.00 ea. -- $855.00 A horn strobe is the small red rectangular-shaped, wall-mounted device which emits the siren sound and flashes a strobe light when a fire alarm is triggered. Because A.B. Equipment is not a licensed fire alarm contractor, it subcontracted with A.B. Systems, based on a verbal agreement, to perform work at Crosswinds. Employees of A.B. Systems wear shirts identifying them as employees of "A.B. Fire Systems." Crosswinds is located within 500 feet of the ocean and, because of that, regularly experiences substantial salt corrosion of metal. Horn strobes have metal parts and must be replaced regularly due to corrosion. As required in the proposal, half of the total contract cost or $3,305.00 was paid by Crosswind's representative on January 24, 2006, to A.B. Equipment. The receipt from A.B. Equipment with the same date has the name of A.B. Systems on the form and Respondent's license number next to that name. On January 31, 2006, Crosswinds issued a check for $1,650.00 to A.B. Equipment. The back of the first check was stamped for deposit in the account of E.A.S., the parent company of A.B. Systems. Another check designated "final payment" in the amount of $1,655.00 was dated February 8, 2006, but it was not deposited until March 9, 2006. That check was apparently held up by the then-president of the Crosswinds Board, Patricia Abujar, who questioned the need for an inspection of the alarm system by the fire department. Once the check was tendered, it was deposited, as directed by hand-written instructions on the back of the check, in the same account number as that for E.A.S. On February 28, 2006, Crosswinds received an invoice that had three license numbers on it, including Clark's. The invoice from A.B. Equipment was for an additional $704.90 for replacement of wires, a conduit, and the panel that was damaged by a shortage. The damage was caused by a construction company that was simultaneously making repairs at Crosswinds. Crosswinds had sustained substantial damage from Hurricane Wilma in October 2005. On February 28, 2006, Crosswinds also received an invoice from A.B. Equipment for one additional corroded horn strobe for $95.00 plus $5.70 for the sales tax. The invoice was identical to the one for damage by the construction company and also included Clark's license number. On March 15 and 18, 2006, respectively, Clark and Oakley Blevins, who was then the Crosswinds Board president, signed a City of Pompano Beach Building Permit Application for an after-the-fact permit for the replacement of a fire alarm panel at Crosswinds. Until the panel had to be replaced, no permit had been required. On the line on the form for the name of the contractor, "A. B. Fire Systems, Inc." was crossed out and the name "E.A.S. IND." was written. The application was not accepted by the building department until October or November 2006. The City delayed receipt of applications and issuance of permits because it was inundated after the hurricane. In the meantime, on October 6, 2006, Clark returned to Crosswinds in response to a service call. At the time, he replaced a corroded horn strobe, as he had done on an ongoing basis since beginning work at Crosswinds in 2004. Clark had a disagreement with Blevins, apparently over who from A.B. Systems would be providing service to Crosswinds in the future and over where a worker parked a company truck. Clark never returned to the site. A City of Pompano Beach document dated November 20, 2006, entitled "Plan Review Corrections Report," was transmitted by facsimile from A.B. Systems to Crosswinds' representative on December 14, 2006. Having last had a fire alarm inspection in February 2006, Crosswinds received a proposal dated February 19, 2007, from another company, Bass Fire & Security Systems, Inc. (Bass), to "trouble shoot and repair fire alarm system short program, test and certify" for $340.00. The work by Bass would qualify as the annual inspection for 2007. On March 30, 2007, Bass billed Crosswinds $726.05 for replacement of an outdoor horn strobe. In addition to trip and labor charges, there was also a charge for a mini-monitor module, a device used to identify each "pull station" that will cause a shortage if it becomes defective. Crosswinds paid Bass for its inspection work and subsequent repairs in a single check in the amount of $1,086.45 on April 10, 2007. Bass, on April 6, 2007, offered to "replace (seven) [corroded] weatherproof horn strobe units @ $89.00 ea[ch], [with] installation labor and misc[ellaneous] hardware" for a quoted total cost of $1156.00 plus tax. For that, Crosswinds paid Bass $1225.36 on April 23, 2007. On May 27, 2008, Crosswinds was inspected by a City fire inspector who noted on his report that it was an inspection of a new fire alarm system and that "A.B. Fire System is unlicenses [sic] contractor" and "Note ESA Industries Inc. will be the only person on jobsite to complete the test." On June 5, 2008, Crosswinds received anther quote from Bass to "make necessary repairs for fire dept. final inspection" for a total of $1905.00 plus tax. The quote included a "change of contractor fee [for the] (Pompano Beach Building Department)" and installation of a horn strobe on the first floor breezeway. Clark was still listed with the City as the only authorized alarm systems contractor at Crosswinds. Following City-mandated procedures, then-president of the Crosswind Board, Cheryl Deats, notified Clark by certified letter of a change of contractors in June 2008. She received no response from Clark. Deats testified that she believes that Clark's company, A.B. Systems performed work incompetently or negligently prior to having obtained a permit, causing financial harm to Crosswinds in the amount of $2,311.81 (1,086.45 plus 1,225.36) that it had to pay Bass to make repairs before time for the next inspection. Other than Deats' assumption that the work done by Bass was the result of Clark's company's negligence or incompetence, there is no evidence to support that finding. In fact, the evidence tends to support a finding that work done in March and April 2007, more than a year after Clark's work, was necessitated by corrosion due to the proximity of Crosswinds to the ocean. There is no evidence that the Crosswinds' Board was deceived and not aware that Clark was the subcontractor working on the fire alarm system. Regardless of whether they knew the name of his parent company, E.A.S., at least two previous Board presidents had direct interactions with him and saw his employees wearing shirts identifying A.B. Systems.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Electrical Contractors Licensing Board enter a Final Order dismissing the Amended Administrative Complaint filed on June 3, 2010, against Steven Scott Clark, d/b/a E.A.S. Industries, Inc., d/b/a A.B. Fire Systems. DONE AND ENTERED this 4th day of January, 2011, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 4th day of January, 2011.
The Issue Whether Petitioner is entitled to additional credit for his answer to Item 264 on the "Principles and Practice" part of the October 1993 Fire Protection Engineer Examination.
Findings Of Fact Petitioner applied for licensure as a Fire Protection Engineer with Respondent, the state agency responsible for the licensure of Fire Protection Engineers in Florida. Petitioner was required to successfully complete an examination administered by the Respondent to become licensed as a Fire Protection Engineer. Petitioner sat for the licensing examination for Fire Protection Engineer administered by Respondent on October 29 and 30, 1993. A score of 70 is required to pass the "Principles and Practice" part of the licensure examination. Petitioner received a score of 66.30 on that part of the examination, which is a failing grade. Item 264 is a question for which a completely correct answer would have been awarded 10 points. Item 264 contained a diagram of a building and required the applicants to properly space heat or smoke detectors in the building and to justify the type of detection device used in a particular area. Petitioner was awarded a total of four points for his partially correct answer to Item 264. Petitioner would have passed the "Principles and Practice" portion of the examination had he been awarded eight or more points for his answer to Item 264. At Petitioner's request, his response to Item 264 was regraded by the National Council of Examiners for Engineering and Surveying (NCEES), a consulting firm utilized by Respondent to develop and score licensure examinations. When Petitioner's response to the exam was initially scored, he received a score of 4 points. The regrading of the examination did not change that score. The report prepared by NCEES in conjunction with the regrading of Petitioner's answer to Item 264 stated the following 1/ in explaining the score awarded for Petitioner's answer: The examinee did not reference the NFPA 72 A, D, and E standards 2/ to answer the question. The lounge area requires heat detectors rather than smoke detectors. The smoke detectors would be sending false alarms and they would be disconnected to stop the alarms. The heat detectors would be more reliable. The examinee's solution did not show detectors in the corridor, locker room, and boiler room; all of which are required. The examinee's solution did not space the detectors according to NFPA 72. According to the NCEES approved scoring plan, the examinee's solution demonstrates less than minimum competence (score of 4 points). Pursuant to the scoring standards that have been adopted, a score of four represents a borderline unqualified response, which is explained as being: Applicant has failed to demonstrate adequate knowledge in one or more categories. For example, approach may be correct but the solution is unreasonable. Significant constraints may have been overlooked. Solution is unacceptable, but marginally so. Petitioner's answer to Item 264 failed to properly space detectors in his answer, failed to place detectors in the corridor, locker room, and boiler room, and incorrectly placed smoke detectors in the lounge area instead of heat detectors. Petitioner did not establish that the standards used to score the examination were arbitrary, capricious, or devoid of logic. Petitioner did not establish that the application of those scoring standards to Petitioner's response to Item 264 was arbitrary, capricious, or devoid of logic. Item 264 is a reliable and valid test item. Respondent established that Petitioner's response to Item 264 was fairly graded. Petitioner is not entitled to additional credit for his response to Item 264.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order that adopts the findings of fact and the conclusions of law contained herein and which DENIES Petitioner's challenge to the scoring of his answer to Item 264 of the October 1993 Fire Protection Engineer Examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of November 1994. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November 1994.
