08-005447 Department Of Financial Services vs. Backflow Division Of Systems Groups, Inc. And Robert H. Richey, Sr., Individually And As President Of Backflow Division Of Systems Groups, Inc. Status: Closed Recommended Order on Thursday, February 26, 2009.

Summary: Respondents should cease and desist from inspecting backflow prevention devices until certified to do so.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 08-5447

)

BACKFLOW DIVISION OF SYSTEMS GROUPS, INC. AND ROBERT H. )

RICHEY, SR., INDIVIDUALLY AND )

AS PRESIDENT OF BACKFLOW )

DIVISION OF SYSTEMS GROUPS, )

INC., )

)

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on January 5, 2009, in Tallahassee, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Robert H. Richey, Sr., pro se

Backflow Division of Systems Group, Inc.

4803 34th Street West

Bradenton, Florida 34210

For Respondent: Regina M. Keenan, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issue in this case is whether Respondents illegally or

improperly conducted testing of backflow prevention devices on

fire line assemblies, and, if so, whether Petitioner should

issue a Cease and Desist Order.

PRELIMINARY STATEMENT

On September 17, 2009, Petitioner, Department of Financial

Services ("Department"), issued a Notice of Intent to Issue

Cease and Desist Order (the "Notice"). The Notice set forth

various allegations of improper actions by Respondents, Backflow

Division of Systems Groups, Inc., and Robert H. Richey, Sr.

(hereinafter referred to jointly as "Respondents"). Respondents

timely filed an Election of Rights seeking a formal

administrative hearing. Respondents' request was forwarded to

the Division of Administrative Hearings ("DOAH") on October 28,

2008. At the final hearing, Petitioner called two witnesses:

Casia Sinco, safety program manager for the Department's Bureau

of Fire Prevention; and Chuck Spall, fire protection specialist

for the Bureau of Fire Prevention. Respondents called one

witness, Robert H. Richey, Sr. The parties stipulated to

admission of all five of the Department's exhibits (pre-marked

A through E) and all five of Respondents' exhibits (also

pre-marked A through E). Each of the exhibits was received into

evidence.

Prior to commencement of the final hearing, the parties

stipulated to certain enumerated allegations from the Notice.

Those allegations will be set forth in the Findings of Fact

below.

Official Recognition is taken of the following:

Declaratory Statement issued by the insurance commissioner, as

state fire marshall, on August 2, 2002, in Case No. 60893-02-SP;

and Sections 633.541 and 633.021, Florida Statutes. 1

The parties advised the undersigned that a transcript would

be ordered of the final hearing. They were given ten days from

the date the transcript was filed at DOAH to submit proposed

recommended orders. The Transcript of the hearing was filed on

January 26, 2009. Each party submitted a Proposed Recommended

Order, and they were given due consideration in the preparation

of this Recommended Order.

FINDINGS OF FACT

1. The Department, through its chief financial officer,

who also acts as the state fire marshall, is the state agency

responsible for, inter alia , the certification, licensing and

monitoring of persons who engage in the business of layout,

fabrication, installations, inspection, alteration, repair, or

service of fire protection systems (other than pre-engineered

systems).

2. Respondents 2 are licensed by the Florida Department of

Business and Professional Regulation ("DBPR") as a certified

plumbing contractor, License No. CFC054896-00012. Respondents

are not certified by the Department to engage in the business of

layout, fabrication, installations, inspection, alteration,

repair, or service of fire protection systems (other than pre-

engineered systems). As of the date of the final hearing,

Respondents had not filed an application to be so certified.

3. On or about June 29, 2006, Respondents conducted the

annual Backflow Prevention Assembly Test inspection and

maintenance on a backflow prevention device installed on a fire

sprinkler fire line located at the University Park Country Club

Clubhouse, 7651 and 7671 The Park Boulevard, University Park,

Florida. The University Park Country Club Clubhouse is located

within the Southern Manatee Fire and Rescue District.

4. After performing the test at the University Park

Country Club, Respondents issued a Backflow Prevention Assembly

Test and Maintenance Report, and a copy was sent to the Manatee

County Cross Connection Control Coordinator. At the conclusion

of the test, Respondents determined the backflow device to be

operating appropriately and placed an inspection tag on the

device.

5. On or about September 4, 2006, Respondents conducted

the annual test on a backflow prevention device installed on a

fire sprinkler fire line located at the Chiquita Banana

Warehouse, 4610 18th Street East, Bradenton, Florida 34203. The

warehouse is also located within the Southern Manatee Fire

Rescue District.

6. After performing the test, Respondents issued a

Backflow Prevention Assembly Test and Maintenance Report. This

report was also forwarded to the Manatee County Cross Connection

Control coordinator. Respondents also placed an inspection tag

on the backflow prevention device.

7. On or about September 4, 2006, Respondents conducted

the annual Backflow Prevention Assembly Test inspection and

maintenance on a device located at the Manatee County Rural

Health Services Treatment Center, 1515 26th Avenue East,

Bradenton, Florida 34208. This center is also located within

the Southern Manatee Fire Rescue District.

8. Upon completion of the test, Respondents placed an

inspection tag on the device and forwarded a Backflow Prevention

Assembly Test and Maintenance Report to the Manatee County Cross

Connection Control coordinator.

9. On or about September 6, 2006, Respondents conducted

the annual test on a backflow prevention device located at Sam's

Warehouse Club, 5300 30th Street East, Bradenton, Florida 34203.

The Sam's Warehouse Club is also located within the Southern

Manatee Fire Rescue District.

10. Upon completion of the test at Sam's Warehouse Club,

Respondents placed an inspection tag on the device and forwarded

a Backflow Prevention Assembly Test and Maintenance Report to

the Manatee County Cross Connection Control coordinator.

11. The backflow prevention devices inspected by

Respondents are tied into domestic water lines which provide

water to the surrounding community. It is imperative to keep

the domestic water as clean and pure as possible. Backflow

prevention devices serve the purpose of keeping contaminated or

unclean water from re-entering the domestic water lines. It is

extremely important that all backflow prevention devices be

inspected and maintained on a regular basis.

12. Testing of backflow prevention devices on designated

fire lines (i.e., those lines connecting the domestic water line

to a sprinkler system or other fire prevention system) is done

by entities which have received a certification from the

Department.

13. The Department requires certified individuals to carry

liability insurance coverage. The purpose of such coverage is

to ensure that there will be money to correct any mistakes made

by the certified inspectors. If a backflow system fails, the

Department will immediately inspect to determine if the

certified contractor made a mistake. If so, the contractor and

his insurer will be required to pay for all damages and

corrective action needed. The Department does not have any

authority over plumbing contractors who have not been certified

by the Department.

14. Respondents routinely perform inspections and

maintenance on backflow prevention devices. Respondents do not,

in their own estimation, perform inspections on fire protection

systems . Respondents maintain that fire protection systems

start at a point just beyond the backflow prevention devices.

15. Respondents are not certified by the Department to

perform inspections and maintenance on fire protection systems.

However, based on a letter from the Office of the Attorney

General to Ruth Tirado, executive director of the Florida

Association of Plumbing, Heating and Cooling Contractors,

Respondents believe they are authorized to inspect backflow

prevention devices that exist on a fire sprinkler line. The

letter, dated February 3, 2004, states in pertinent part:

Re: Your inquiry regarding back flow

prevention presented to the Construction

Industry Licensing Board at the meeting of

January 15, 2004.

* * *

After review, and based upon the

documentation presented, the Construction

Industry Licensing Board has determined that

back flow prevention is within the scope of

work of a plumbing contractor.

Please keep in mind that this opinion is

based solely on the facts set forth in your

letter and is not intended to be an opinion

of general applicability. Furthermore, the

Board has not conducted an independent

factual investigation to determine whether

other relevant facts do or may exist or

whether the facts set forth in your letter

may be governed by laws or rules other than

Chapter 489, Part I, Florida Statutes and

61G4, Florida Administrative Code.

16. It is clear the attorney general letter does seem to

place backflow prevention within the "scope of work" of a

plumbing contractor. However, there is no way to determine

whether the opinion included any limitations, restrictions, or

caveats, since the underlying letter it addresses was not placed

into evidence. Nor is there any distinction in the letter

concerning backflow prevention devices that are part of a fire

sprinkler line.

17. In October 2006, Henry Sheffield, deputy fire chief

for the East Manatee Fire Rescue District, initiated a complaint

against three plumbers relating to "fire line backflow

preventers." A DBPR Uniform Complaint Form addressing one of

the plumbers (a Mr. Jackson) indicates an alleged violation of

Subsection 489.105(3), Florida Statutes. That statutory section

deals with the scope of work for various kinds of contractors.

A DBPR Uniform Complaint Form alleging violation of Section

633.021, Florida Statutes, is attached to the complaint form,

but the DBPR Uniform Complaint Form does not indicate whether it

relates to Mr. Jackson or one of the other plumbers. Also,

admitted into evidence is a DBPR letter indicating dismissal of

the complaint by one of the three plumbers (Mr. Wolf) relating

to alleged violations of Chapter 489, Florida Statutes.

18. The complaints against the three plumbers in 2006 may

or may not be related to the same issues facing Respondents, but

there is no way to connect them based upon the evidence

presented at final hearing.

19. The Department interprets Florida Administrative Code

Rule 69A-46.040(2) to mean that the "point of service" for

purposes of fire line backflow prevention to be the domestic

water line where the fire line is tied in. That is, once there

is a tie-in to the domestic water line, the Department has

jurisdiction. This interpretation is reasonable and is based on

the Department's experience over a number of years.

20. Respondents maintain that the point of service begins

immediately after the backflow prevention device. Therefore,

they believe any work done on the backflow prevention device can

be performed by a licensed plumbing contractor whether they have

Department certification or not. This interpretation is not

supported by the evidence presented.

21. Respondents did not intentionally violate any

provision of Chapter 633, Florida Statutes. All work performed

by Respondents was done under the apparent authority given them

by a state agency, the Construction Industry Licensing Board.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes.

23. The Department, who is asserting the affirmative of

the issue in this case, has the burden of proof. Ferris v

Turlington , 510 So. 2d 292 (Fla. 1987).

24. Section 633.541, Florida Statutes, states in pertinent

part:

(1) It is unlawful for any organization or

individual to engage in the business of

layout, fabrication, installation,

inspection, alteration, repair, or service

of a fire protection system, other than a

preengineered system, act in the capacity of

a fire protection contractor, or advertise

itself as being a fire protection contractor

without having been duly certified and

holding a valid and existing certificate,

except as hereinafter provided. . . .

25. Florida Administrative Code Rule 69A-46.040(2) states:

The complete system begins at the point-of-

service as defined in Section 633.021(16),

F.S., and ends at the most remote head

inside the facility.

26. Subsection 633.021(19), Florida Statutes, defines the

point of service referred to in the above-cited Florida

Administrative Code Rule. The section states:

"Point of service" means the point at which

the underground piping for a fire protection

system as defined in this section using

water as the extinguishing agent becomes

used exclusively for the fire protection

system.

27. Subsection 633.021(9), Florida Statutes, defines fire

protection system.

A "fire protection system" is a system

individually designed to protect the

interior or exterior of a specific building,

structure, or other special hazard from

fire. Such systems include, but are not

limited to, water sprinkler systems, water

spray systems, foam-water sprinkler systems,

foam-water spray systems, CO2 systems, foam

extinguishing systems, dry chemical systems,

and Halon and other chemical systems used

for fire protection use. Such systems also

include any overhead and underground fire

mains, fire hydrant and hydrant mains,

standpipes and hoses connected to sprinkler

systems, sprinkler tank heaters, air lines,

thermal systems used in connection with fire

sprinkler systems, and tanks and pumps

connected to fire sprinkler systems.

28. The Department interprets the above-referenced

statutory and rule language that any time a domestic water line

is tied into for the purpose of running a water line to a fire

protection system, such tie-in and any connections to it are

part of the fire protection system. Thus, the backflow

prevention device that ultimately leads to a sprinkler system

is, by Department definition, part of the fire protection

system. As such, only certified contractors are authorized to

inspect, maintain, repair or otherwise alter such a system.

29. Agencies of the state have broad discretion in the

interpretation of statutes and rules they administer. See ,

e.g. , Natelson v. Department of Insurance , 454 So. 2d 31, 32

(Fla. 1st DCA 1984), citing Pan American World Airways, Inc. v.

Florida Public Service Commission and Florida Power and Light

Company , 427 So. 2d 716, 719 (Fla. 1983).

30. The Department's interpretation is further supported

by a Declaratory Statement issued in Department of Insurance

Case Number 60893-02-SP, wherein the state fire marshall opined

that: "There is one point, and one point alone, at which the

underground piping becomes . . . 'used exclusively for the

sprinkler system'[;] That point is not necessarily the point at

which the underground water supply becomes used exclusively for

the sprinkler system[; and] If the underground piping becomes

used exclusively for the fire sprinkler system before the point

at which the backflow prevention device has been installed, then

that is the point of service."

31. In effect, the fire marshall found that once a water

supply pipe has been tapped into for the purpose of directing

water toward a fire prevention device, the point of service had

been established. This comports with the Department's

interpretation.

32. That being the case, the Department correctly holds

that only a certified contractor may provide maintenance and

inspection on backflow prevention devices that lead to a fire

sprinkler system. The Department has met its burden of proof in

this matter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Petitioner,

Department of Financial Services, ordering Respondents, Backflow

Division of Systems Groups, Inc., and Robert H. Richey, Sr., to

cease and desist from performing inspections and maintenance of

backflow prevention devices on fire protection systems until

such time that Respondents obtain the required certification to

do so.

DONE AND ENTERED this 26th day of February, 2009, in

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of February, 2009.

ENDNOTES

1/ Unless otherwise stated herein, all references to Florida

Statutes shall be to the 2007 version.

2/ Respondent Robert H. Richey, Sr. (also known as R. Shag

Richey), is the president, treasurer, secretary and registered

agent of Respondent Backflow Division of Systems Groups, Inc.

COPIES FURNISHED :

Honorable Alex Sink

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

Daniel Sumner, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

Regina M. Keenan, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399

Robert H. Richey, Sr.

Backflow Division of Systems Group, Inc.

4803 34th Street West

Bradenton, Florida 34210

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.