97-004534 Wayne Dean And Radon Win, Inc. vs. Department Of Health Status: Closed Recommended Order on Thursday, March 5, 1998.

Summary: Based upon violations of the regulatory statute and rules, Petitioners were not entitled to the grant of certification when reapplying for licensure after their certificates had expired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WAYNE DEAN and RADON WIN, INC., )

)

Petitioners, )

)

vs. ) Case No. 97-4534

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on December 8, 1997, a formal

hearing was held in this case. Authority for conducting the

hearing is set forth in Sections 120.569 and 120.57(1), Florida

Statutes. The hearing location was the offices of the Division

of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee,

Florida. The hearing was conducted by Charles C. Adams,

Administrative Law Judge.

APPEARANCES

For Petitioner: Wayne Dean, pro se

1713 East Silver Springs Boulevard

Ocala, Florida 34478

Radon Win, Inc.

Wayne Dean, President

Post Office Box 4257

Ocala Florida 34478

For Respondent: Patricia A. Matthews, Esquire

Department of Health

Office of the General Counsel

Building 6, Room 102B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

STATEMENT OF THE ISSUES

Is Wayne Dean (Dean) entitled to a radon mitigation

specialist certificate issued by the Department of Health (the

Department)? Is Radon Win, Inc. (Radon Win) entitled to a radon

mitigation business certificate issued by the Department?

PRELIMINARY STATEMENT

On August 28, 1997, the Department notified Mr. Dean t hat

his Radon mitigation specialist certificate, RO228, and the radon

business mitigation certificate held by Radon Win, RB0251, were

not being renewed. The authority for the decision to deny

renewal was reported as Sections 404.056 and 404.162, Florida

Statutes and Chapter 64E-5, Florida Administrative Code. As

grounds for denying the renewal, the Department referred to

alleged activities by the Petitioners in which the Petitioners

installed radon mitigation systems after the expiration dates of

the aforementioned certificates. In addition, the stated grounds

for denying the renewal related to the alleged failure by the

Petitioners to meet installation requirements of the Florida

Standard for Mitigation of Radon in Existing Buildings,

associated with projects installed after the expiration dates of

the certificates and a project installed during the effective

date of the pre-existing certificates. Petitioners contested the

decision to deny renewal of the certificates. On October 1,

1997, the Division of Administrative Hearings received the case

from the Department. The case was then assigned for purposes

of resolving disputes of fact existing between the parties

concerning the preliminary decision to deny renewal of the

certificates as described. The hearing that was conducted on

December 8, 1997, was for purposes of the resolution of fact

disputes and legal disputes between the parties.

At hearing Mr. Dean testified in his own behalf and as a

witness for Radon Win. Petitioners' Exhibits 1-5, 15, and 20

were admitted. Petitioners' Exhibits 6-14 and 16-18 were denied

admission. Ruling was reserved on the admissibility of

Petitioners' Exhibit 19. That exhibit has been admitted. The

Department presented the witnesses, William E. Reineking and

Walter Klein. The Department's Exhibits A, B, F, G, H, I, J, L,

M, N, O, and P were admitted. The Department's request to take

official recognition of the Florida Standard for Mitigation of

Radon in Existing Buildings, dated June 1, 1994, as adopted and

incorporated by Rule 64E-5.1207, Florida Administrative Code; the

General Statement of Policy and Procedures for Radon Enforcement

Actions dated January 1993, adopted and incorporated in Rule 64E-

5.1201, Florida Administrative Code; Section 553.06, Florida

Statutes; Rule 9B-3.048, Florida Administrative Code; Chapter

404, Florida Statutes; and Rule 64E-5.12, Florida Administrative

Code was granted. Responses to requests for admissions

propounded from the Department to the Petitioners were accepted.

To the extent that the responses admit those facts propounded,

those admissions are available for fact finding.

A hearing transcript was filed on January 7, 1998.

Subsequently, Petitioners filed a statement of the issues,

findings of fact, and a recommended disposition in this case.

The Department filed a proposed recommended order which included

a statement of the issues, preliminary statement, findings of

fact, conclusions of law, and a recommended disposition. Those

submissions by the parties have been considered in preparing the

recommended order.

FINDINGS OF FACT

1. Radon gas is a radioactive gas that has been

demonstrated to cause lung cancer and is a Class A carcinogen.

It is odorless and colorless. Once the particles within the gas

are inhaled, they are retained in the lung and irradiate lung

tissue. Its health effects are not immediately manifested.

Exposure over a long period of time increases the risk for

contracting lung cancer.

2. Mr. Dean had been issued certificate number RO228 to act

as a radon mitigation specialist. That certificate was issued by

the Department. The certificate was effective from January 1,

1996, through December 31, 1996.

3. Mr. Dean is the President of Radon Win.

4. Radon Win had been issued certificate number RB0251 to

act as a radon mitigation business. The Department issued the

certificate. The period of that certificate was from January 10,

1996 through January 9, 1997.

5. Radon mitigation specialist certificates and Radon

mitigation business certificates expire annually pursuant to

Section 404.056, Florida Statutes, as reflected in the

certificates held by Mr. Dean and Radon Win that have been

described.

6. Ordinarily the Department notifies certificate holders

of the need to renew the certificates. Notification occurs once

prior to the expiration date of the certificates. Another

occasion for notification follows the month in which it expired

and a third occasion for notification occurs if the certificate

holders have not responded before the issuance of the third

notice.

7. More specifically, on March 3, 1997, the Department gave

Mr. Dean notice to this effect:

THIS IS A THIRD AND FINAL NOTICE. FAILURE TO

RESPOND TO THIS NOTICE MAY INITIATE

ENFORCEMENT ACTION.

Performing radon services with an expired

certification is a violation of the

requirements of Florida Control of Radiation

Hazards Regulations, Chapter 10D-91, Florida

Administrative Code (F.A.C.).

Department records show that you have not

paid your annual radon certification renewal

for the period January 01, 97 to January 01,

98 or notified this office of your intention

to no longer provide radon measurement or

mitigation services for financial or other

remuneration.

In accordance with the authority contained in

section 404.056, Florida Statutes, you are

hereby notified that if you are performing

radon services after the expiration of your

certificate, the department intends to impose

an administrative fine of $250 against Wayne

P. Dean, Jr., certification number RO228, for

violation of the radon certification renewal

requirements of section 10D-91.1304, F.A.C.

You are further notified that you have thirty

(30) days from the receipt of this notice in

which to respond. If you are performing

radon services you must remit the

certification fee in the amount of $200.

Otherwise, please provide written notice of

your intention to no longer provide radon

measurement or mitigation services for

financial or other remuneration. If the

department finds cause to issue an

administrative complaint, you will be

afforded the right to an administrative

hearing.

8. In reference to the March 3, 1997 letter from Norman M.

Gilly, Health Physicist Manager, Bureau of Environmental

Toxicology, Radon and Indoor Air Quality within the Department,

addressed to Mr. Dean, the reference to Rule 10D-91.1304, Florida

Administrative Code, should correctly have been made to Rule 64E-

5.1203, Florida Administrative Code. The latter rule was in

effect when the correspondence was dated.

9. On March 12, 1997, Mr. Dean wrote a check to the

Department for $600 which was intended to defray the cost of

renewing the two certificates that have been described and a

radon measurement specialist certification, certificate number

R1121 related to the Radon Win business. The latter certificate

is not at issue in this case in that the Radon measurement

specialist certificate has been issued. The check in the amount

of $600 was received by the Department on March 18, 1997.

10. Mr. Dean communicated with the Department on March 26,

1997, to advise that the $600 check might not be honored by the

bank, in that there were insufficient funds in the bank account

on which the check was drawn to cover the amount of the check.

11. On April 28, 1997, Mr. Dean spoke with Walter G. Klein

by telephone. Mr. Klein was and is with the Office of

Environmental Toxicology Radon and Indoor Air Quality, part of

the Department. His present position is as an Environmental

Specialist III. While conversing, Mr. Klein asked Mr. Dean if

Mr. Dean had spoken with his bank to see if the $600 check for

payment of the renewal of the certificates had cleared. Mr. Dean

responded that the check had not cleared and indicated his belief

that the check had "bounced." This refers to the fact that the

check had been dishonored by the bank. Mr. Dean then told Mr.

Klein that Mr. Dean would try to collect enough money to send a

money order to pay for the three certificates.

12. On May 13, 1997, Janet M. Cooksey, Administrative

Assistant II-C, Bureau of Radiation Control within the Department

wrote to Radon Win, to the person concerned within that firm, to

advise that the March 12, 1997 check to pay for the three

certificates had been dishonored. That correspondence indicated

that the concerned person at Radon Win had thirty days from the

notice in the letter to tender payment in the full amount for the

dishonored check plus a $30 service charge to address the

dishonored check. According to the letter, the failure to pay

$600 plus the $30 service charge would promote the possibility

that the Department might surrender the dishonored check to the

State Attorney for filing a criminal and/or civil action. This

notice to Radon Win indicated that the further payment should be

by cashier's check, money order, or, if personally delivered, by

cash. The notice indicated the person and the place for return

of the $630 in payment and listed the name of an individual who

could be consulted concerning any questions about the notice.

13. Subsequently, the Petitioners and the Department made

an arrangement for Petitioners to submit a cashier's check in the

amount of $880 which covered the renewal of the three

certificates in the amount of $600; a $30 service charge for the

dishonored check; and a level II administrative fine in the

amount of $250, corresponding to the amount reflected in the

March 3, 1997 letter from the Department to Mr. Dean concerning

the penalty for performing radon mitigation services after Mr.

Dean's radon mitigation specialist certificate had expired. The

cashier's check was drawn on May 29, 1997, and received by the

Department on May 30, 1997. Under the circumstances Ms. Cooksey

returned the dishonored $600 check written on March 12, 1997, to

Radon Win. The letter transmitting the dishonored check was

written on June 9, 1997.

14. On June 17, 1997, Mr. Klein wrote to Mr. Dean to

advise, among other matters, that with the receipt of the $880

check on May 30, 1997, the renewal applications for the three

certificates was considered complete as of May 30, 1997. The

June 17, 1997 correspondence also indicated that other matters of

concern that had been set forth in correspondence from Mr. Klein

to Mr. Dean dated May 29, 1997, had been corrected. This

May 29, 1997 letter stated grounds for denying renewal of

the three certificates held by Petitioners. Nonetheless, the

June 17, 1997 correspondence indicated that the Department

continued to be concerned that Radon Win had installed previously

unmentioned mitigation systems after certificates expired. The

June 17, 1997 correspondence advised that the Department intended

to inspect additional installations for compliance with Florida's

mitigation installation standards before, what the correspondence

described, as the deadline for issuing the renewal. This is read

to mean before issuing or denying the three certificates sought

by Petitioners.

15. On August 28, 1997, the Department wrote to Mr. Dean to

advise him concerning the decision to grant the radon measurement

specialist certification (certificate number R1121); to deny

Mr. Dean his radon mitigation specialist certificate, RO228, and

to deny Radon Win its radon mitigation business certificate,

RB0251. The specific grounds for denial were stated as:

1. Wayne Dean and/or Radon Win, Inc.

installed radon mitigation systems at the

locations identified in a), b) and c) below,

after the expiration dates of mitigation

certificates RO228 and Radon Win, Inc.'s

mitigation business certificate, RB0251.

This determination is made under sections

404.056, and 404.162, Florida Statutes, and

the rules promulgated thereunder, chapter

64E-5, Florida Administrative Code and

constitute level II administrative violations

as identified in the department's 'General

Statement of Policies and Procedures for

Radon Enforcement Actions.'

a . On or about May 30, 1997, Wayne Dean

and/or Radon Win, Inc. installed a radon

mitigation system at 13465 N.E. 44th Court,

Sparr, Florida.

b . On or about May 21, 1997, Wayne Dean

and/or Radon Win, Inc. installed a radon

mitigation system at 8435 N.W. 43rd Lane,

Ocala, Florida.

c . On or about July 15, 1997, Wayne Dean

and/or Radon Win, inc. installed a radon

mitigation system at 4909 Buck Lake Road,

Tallahassee, Florida.

2. The radon mitigation systems identified

in a), b) and c) below, installed by Wayne

Dean and/or Radon Win, Inc., failed to meet

all of the installation requirements of the

Florida Standard for Mitigation of Radon in

Existing Buildings. This standard is adopted

and incorporated by reference by rule 64E-

5.1207, Florida Administrative Code.

Therefore, each failure to comply is a

violation of rule 64E-5.1207 and, constitutes

a level II administrative violation as

identified in the departments 'General

Statement of Policies and Procedures for

Radon Enforcement Actions.'

a . In December 1995, Wayne Dean and/or Radon

Win, Inc. completed installation of

approximately 124 radon mitigation systems at

Doral Pointe Apartments, whose offices are at

4630 N.W. 97th Court, Miami, Florida while in

possession of a valid certificate. These

mitigation systems do not have a 'soil gas

system' labels or system monitoring devices

to automatically indicate system failure to

the system occupants, as required by sections

602.3, 4, 602.2, and 502.3 of the Florida

Standard for Mitigation of Radon in Existing

Buildings.

b . The radon mitigation system installed on

or about May 30, 1997, by Wayne Dean and/or

Radon Win, Inc. at 13465 N.E. 44th Court,

Sparr, Florida lacked the required spacing of

'soil gas system' labels and lacked proper

system sealing, as required by sections

602.3.1 amid section 602.3.4 of the Florida

Standard for Mitigation of Radon in Existing

Buildings.

c . The radon mitigation system installed on

or about May 21, 1997, by Wayne Dean and/or

Radon Win, Inc. at 8435 N.W. 43rd Lane,

Ocala, Florida lacked system monitoring

devices to automatically indicate system

failure to the system occupants, contained

unapproved vent piping material and did not

gasket a 'crawlspace' door as required by

section 502.3, 602.3.1, and 404.3 of the

Florida Standard for Mitigation of Radon in

Existing Buildings.

16. Dr. Kaiss Al-Ahmady, an employee of the Department, in

a conversation held with Mr. Dean at Mr. Dean's office, reminded

Mr. Dean not to install radon mitigation systems without a

license. This conversation took place on March 20, 1997.

17. After sending the $600 on March 12, 1997, Mr. Dean

advised Mr. Klein that he was installing a radon mitigation

system at 8435 Northwest 43rd Lane, Ocala, Florida.

18. On or about May 1 997, Petitioners installed a radon

mitigation system at 8435 Northwest 43rd Lane, Ocala, Florida.

19. Mr. Klein had been advised by the owner of the

residence in Sparr, Florida, which is the subject of this case,

that Mr. Dean was going to install a radon mitigation system at

that residence. Mr. Klein knew of the progress of the job and

was aware when the system had been completely installed.

20. On or about May 30, 1997, Petitioners installed a radon

mitigation system at 13465 Northeast 44th Court, Sparr, Florida.

21. On or about June 1997, Petitioners installed a radon

mitigation system at 4909 Buck Lake Road, Tallahassee, Florida.

22. In December 1995, while in possession of valid

certificates issued by the Department, Petitioner's completed the

installation of approximately 124 radon mitigation systems at

Doral Pointe Apartments at 4630 Northwest 97th Court, Miami,

Florida.

23. In July 1997, Mr. Klein performed an inspection of the

radon mitigation systems installed by Petitioners at the Doral

Pointe Apartments, 4630 Northwest 97th Court, Miami, Florida.

The inspection revealed that the systems were missing labels

contemplated by the Florida Standard for Mitigation of Radon in

Existing Buildings, effective: June 1, 1994 (the Florida

Standard). In particular that requirement is set forth in

Section 602.3.4. of the Florida Standards. In addition, the

inspection revealed that the mitigation system lacked a system

monitoring device as called for by Sections 502.3 and 602.2, of

the Florida Standard.

24. Mr. Klein performed an inspection of the radon

mitigation system installed by Petitioners at 13465 Northeast

44th Court, Sparr, Florida. This inspection was performed on

June 12, 1997. The labeling for the "soil gas system" was

deficient, in that the labels were more than three feet apart.

The problem with labeling was in contravention of Section

602.3.4, of the Florida Standard.

25. On July 3, 1997, Mr. Klein inspected the radon

mitigation system which Petitioners had installed at 8435

Northwest 43rd Lane, Ocala, Florida. The radon mitigation system

that had been installed at the Ocala address was not a soil

depressurization system as addressed in Chapter 6 of the Florida

Standard. The system which Petitioners had installed at the

Ocala address was not a mitigation system referred to as "crawl

space depressurization." The Ocala radon mitigation system that

Mr. Klein inspected did not have a system monitoring device

called for in Section 502.3, of the Florida Standard.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties in this case

in accordance with Section 120.57(1), Florida Statutes.

27. Section 440.56(3)(a), Florida Statutes, creates the

authority for the Department to certify the Petitioners as a

radon mitigation specialist and a radon mitigation business,

respectively.

28. Section 440.56(3)(f), Florida Statutes, creates the

authority for the Department to charge and collect fees for the

certification and annual recertification of Petitioners. The

renewal of the certificates is a ministerial function.

29. Section 440.56(3)(g), Florida Statutes, creates the

authority for the Department to deny uncertified persons or

entities a certificate. It further creates the authority for the

Department to suspend, revoke, or fine a certificate holder for

the violation of any provision of Section 404.056, Florida

Statutes, and any rule promulgated pursuant to that section.

30. Section 404.162, Florida Statutes, create s additional

authority for the Department to modify, suspend, or revoke a

license or registration or impose an administrative fine of

certificate holders (such as Petitioners) based upon a violation

of the provisions of Chapter 404, Florida Statutes, rules

promulgated in accordance with Section 404.162, Florida Statutes,

or terms or conditions of a license or registration that is

issued by the Department. Section 404.162, Florida Statutes,

creates the further opportunity for the Department to deny a

license or registration to an unlicensed or unregistered person

or entity. Finally, Section 404.162, Florida Statutes, gives

guidance concerning the amount of fine to be levied for a

violation of disciplinary provisions contemplated by that

section.

31. Rule 64E-5.1203(3), Florida Administrative Code, sets

forth criteria for certification where it states:

(3) No certificate shall be approved unless

the applicant demonstrates to the department

that the following conditions are met:

(a) The applicant has not been found to be

in violation of Chapter 404, F.S., or this

part, and has not be decertified;

(b) The applicant has filed an accurate and

complete application with the application fee

describing compliance with the relevant

certification requirements.

32. In pertinent part, Rule 64E-5.1203(4), Florida

Administrative Code, identifies the appropriate conduct for a

certificate holder during the pendency of his, her, or its

certification where it states:

(4) Requirements for continued certification

shall include the following conditions:

(a) The certified person shall conduct his

activities as described in the approved

certification and shall remain in compliance

with Chapter 404, F.S., and this part. . . .

33. Rule 64E-5.1203(6), Florida Administrative Code

identifies the effective period of a certificate and the

consequences of the untimely renewal of a certificate where it

states:

(6) A certification will be valid for 1

year following the date of issuance. If

renewal is requested more that 90 days

after an expired certification, a new

application must be submitted for

recertification. . . .

34. Rule 64E-5.1203(7), Florida Administrative Code, sets

forth the amount of fee to be paid and when read in context of

Rule 64E-5.1203(6), Florida Administrative Code, and the

expectation in Section 404.056(3)(f), Florida Statutes, that the

certificate renewal is ministerial, certificates will be annually

renewed unless untimely sought. In that instance, a new

application for certificate must be made in accordance with the

statutory and rules requirements incumbent upon persons or

entities seeking an initial certificate.

35. Rule 64E-5.1207(11), Florida Administrative Code,

requires that the installation of radon mitigation systems be in

accordance with the Florida Standard and Chapter 9B-53, Florida

Administrative Code, which includes Rule 9B-3.048, Florida

Administrative Code, pertaining to the State Minimum Plumbing

Code.

36. Neither Mr. Dean nor Radon Win renewed their annual

certificates expiring on December 31, 1996, and January 9, 1997,

respectively, within the time contemplated by Section

404.056(3)(f), Florida Statutes, and Rule 64E-5.1203(6), Florida

Administrative Code.

37. As envisioned by Rule 64E-5.1203(6), Florida

Administrative Code, within ninety days of the date of expiration

of the radon mitigation specialist certificate and radon

mitigation business certificate, Petitioners requested renewal of

the certificates by paying the fees through a check written by

Mr. Dean on March 12, 1997, but that check was dishonored for

insufficient funds. The fees in support of the renewal requests

were subsequently paid on May 29, 1997, beyond the ninety-day

grace period for attaining renewal of the certificates by the

payment of fees. This means that Petitioners' requests to be

certified for the future must be made upon the submission for

recertification, a process that brings into play Rule 64E-

5.1203(3), Florida Administrative Code, which is applicable to

persons re-applying for certification, as well as persons

applying for certification in the first instance. This allows

the Department the opportunity to consider the requests by

Petitioners on the merits, in accordance with Rule 64E-5.1203(3),

Florida Administrative Code, in the same manner as an original

applicant for certification. Communications by Department

personnel with Mr. Dean concerning the payment of the annual fees

for renewal of the certificates, and awareness that Petitioners

were performing radon mitigation services with expired

certificates did not estop the Department from enforcing Rule

64E-5.1203(6), Florida Administrative Code, in the expectation

that persons who do not request renewal within ninety days after

expiration of a certificate must submit a new application before

being re-certified. Mr. Dean was not misled to his detriment and

the detriment of Radon Win concerning the process of renewal of

the certificates. Mr. Dean presented a check that was

insufficient to meet the obligation for payment of the renewal

fees and the consequences of that choice controls the outcome in

the attempt to extend his activities and that of Radon Win, not

the Department's interest in obtaining the necessary fees, be

those fees in support of a renewal or in support of a new

application by the respective Petitioners.

38. The re-application for the certificates was complete on

May 30, 1997, when the Department received the fees supporting

the application by the Petitioners. The Department timely

responded to that re-application by its notice of intent to deny

issued on August 28, 1997. See Section 120.60, Florida Statutes.

39. The effect of the August 28, 1997 notice provided to

the Petitioners in relation to the radon mitigation specialist

certificate and radon mitigation business certificate, was to

state the grounds for denying the new applications to be

certified. The reasons for denial fell into two categories:

first, the performance of radon mitigation work at a time that

the certificates held by the Petitioners were not active; and

second, based upon substandard performance in the provision of

radon mitigation services, some services performed at a time that

the certificates were not active and some work done under the

authority of active certificates.

40. The first category of denial is premised upon the mere

act of performing services without the benefit of certificates.

The second category for denying the re-application for

certificates is in relation to the actual performance of the

mitigation services.

41. Concerning the first category, the March 3, 1997

correspondence from the Department to Mr. Dean alerted Mr. Dean

to the possibility that the Department might impose a fine of

$250 against Mr. Dean in association with his radon mitigation

specialist certificate if he was performing services as a radon

mitigation specialist beyond the expiration date of this

certificate number RO228, which expired on December 31, 1996.

(The record does not reflect a similar warning being given to

Radon Win for conducting business under the radon mitigation

business certificate RB0251 beyond the expiration date of that

certificate which was January 9, 1997.)

42. Mr. Dean did perform the work of a radon mitigation

specialist beyond the expiration date of his certificate. The

work was in relation to the jobs performed at 13465 Northeast

44th Court, Sparr, Florida; 8435 Northwest 43rd Lane, Ocala,

Florida; and 4909 Buck Lake Road, Tallahassee, Florida.

43. As contemplated by the March 3, 1997 correspondence an

administrative fine was imposed in the amount of $250, which was

paid by Mr. Dean on May 29, 1997, and received by the Department

on May 30, 1997, as acknowledged in the correspondence of June

17, 1997, directed to Mr. Dean. This arrangement for the payment

of a level II administrative fine by Mr. Dean satisfies the

concerns expressed in the August 28, 1997 letter of denial of the

new applications by the Petitioners in association with the first

category for denying the certificates at issue.

44. When Mr. Dean paid the $250 administrative fine, this

set aside the impediment to the grant of new certificates in

association with the performance of any radon mitigation services

without a certificate whenever they may have been discovered by

the Department. This conclusion is reached in recognition that

the Department had made its choice concerning the treatment of

that conduct and accepted the payment of the administrative fine

to satisfy its concerns about the conduct.

45. In relation to the installation of a radon mitigation

system at 4630 Northwest 19th Court, Miami, Florida, the radon

mitigation systems that were installed were subject to the

requirements set forth in Chapters 5 and 6 within the Florida

Standard. The systems failed to provide the system monitoring

device called for by Sections 502.3 and 602.2,

within the Florida Standard. Those Sections state:

502.3 System Monitoring Device Any

engineered system must have a mechanism

installed to automatically indicate failure

of the system to building occupants, which

shall be either a visual device conveniently

visible to building occupants, or a device

that produces a minimum 60 db audible signal.

* * *

602.2 System Monitoring Device The soil

depressurization system shall include a

system monitoring device which shall be

either a visual device, conveniently visible

to building occupants, or a device that

produces a minimum 60 db audible signal,

activated by the loss of pressure or flow in

the vent pipe.

Moreover, the Miami, Florida, project, performed in December 1995

under existing certificates held by the Petitioners, did not have

the necessary labels for the "Soil Gas System." The requirement

for labeling is set forth in Sections 602.3.4, of the Florida

Standard. That labeling requirement states:

602.3.4 Labeling All exposed components of

the soil depressurization system shall be

labeled "Soil Gas System" to prevent

accidental damage or misuse. Labels shall be

on a yellow band, two inches wide and spaced

three feet apart on all components.

46. T he project that was performed by the Petitioners at

13465 Northeast 44th Court, Sparr, Florida, failed to meet the

spacing requirements for labels in the "Soil Gas System" called

for by Section 602.3.4, within the Florida Standard. In relation

to the Sparr project, performed at a time when Petitioners'

certificates had expired, reference is made in the notice of

denial of the applications for new certificates to Section

602.3.1, within the Florida Standard. That section states:

602.3.1 Material Piping material shall

be of any type approved by locally adopted

codes for plumbing vents.

Specifically, the Department claims that there were leaks in the

pipes and that the pipes in the system were not sealed

appropriately. Section 602.3.1, refers to piping material, and

the need to utilize piping material that has been approved by

locally adopted codes for plumbing vents. That provision does

not speak in terms of the installation of those pipes and the

performance of the pipes as part of the system. Therefore, it

has not been shown that the Petitioners have violated Section

602.3.1.

47. Petitioners installed a radon mitigation system at 8435

Northwest 43rd Lane, Ocala, Florida, at a time when the

certificates were expired. The system failed to have the

monitoring devices called for by Section 502.3, of the Florida

Standard applicable to all radon mitigation systems. The system

that was installed was not subject to the requirements for soil

depressurization systems at Chapter 6 within the Florida

Standards. Consequently, the allegation that the system

contained unapproved vent piping material in contravention of

Section 602.3.1, within the Florida Standard is inapplicable and

does not form the basis for denying the request by the

Petitioners to be provided certificates through the re-

application process. Likewise, reference to Section 404.3,

within the Florida Standard does not pertain to the system that

was installed for the Ocala project, such that the failure to

gasket a "crawlspace" door would promote grounds for denying

Petitioners' certificates under the re-application process.

Section 404.3, relates to a radon mitigation system called

"crawlspace depressurization," a system unlike the system

installed in Ocala by the Petitioners. Section 404.3, states:

404.3 Doors When a door is located in

a wall between a crawlspace and the

conditioned space, it shall be fully

weatherstripped or gasketed.

48. Consideration of the grounds for denying the

certificates based upon the installation of the several systems

that are mentioned in the denial letter has been made upon the

preponderance of the evidence. The Department must have shown by

the preponderance of the evidence that these allegations are true

to warrant denial of the applications. See Department of Banking

and Finance v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996).

To the extent that the allegations concerning substandard

performance in the provision of the services in those projects

has been proven, that proof was not only made by a preponderance

of evidence, it was made by clear and convincing evidence.

49. Sufficient reasons exist to deny the grant of new

certificates to the Petitioners.

RECOMMENDATION

Based upon the facts found and the conclusions of law

reached, it is

RECOMMENDED:

That a Final Order be entered which denies the request by

the Petitioners to be granted a radon mitigation specialist

certificate and a radon mitigation business certificate for

Mr. Dean and Radon Win, respectively.

DONE AND ENTERED thi s 5th day of March, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of March , 1998.

COPIES FURNISHED:

Wayne Dean

1713 East Silver Springs Boulevard

Ocala, Florida 34478

Radon Win, Inc.

Wayne Dean, President

Post Office Box 4257

Ocala, Florida 34478

Wayne Dean and Radon Win, Inc.

4255 Northeast 36th Avenue

Ocala, Florida 34479

Patricia Matthews, Esquire

Department of Health

Building 6 Room 102

Tallahassee, Florida 32399-0700

Angela T. Hall, Agency Clerk

Department of Health

Building 6

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Pete Peterson, Esquire

Department of Health

Building 6, Room 102-E

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.