DECLARATORY STATEMENT. THIS CAUSE came on for consideration upon the Petition for Declaratory

Transcription

1 TOM GALLAGHER THE TREASURER OF THE STATE OF FLORIDA DEPARTMENT OF INSURANCE In re the Matter of Jesse F. Green III and the Florida Association of Plumbing, Heating, and Cooling Contractors Case No.: SP Petition for Declaratory Statement to The Florida Department of Insurance / DECLARATORY STATEMENT THIS CAUSE came on for consideration upon the Petition for Declaratory Statement received on April 4, 2002, by the Department of Insurance, hereinafter referred to as the Department, from Jesse F. Green III and the Florida Association of Plumbing, Heating, and Cooling Contractors, hereinafter referred to as Petitioner. Upon consideration thereof, and being duly advised, the Insurance Commissioner, as State Fire Marshal, finds as follows: 1. The Insurance Commissioner, as State Fire Marshal, has jurisdiction over the subject matter and the parties to this matter. 2. This Declaratory Statement is premised upon the assertions of fact set forth in the Petition for Declaratory Statement. Any modification to those assertions of fact could alter the conclusions set forth in this Declaratory Statement. None of the assertions of fact are admitted by the Department as being true and Petitioner s question is being answered purely as a hypothetical

2 one. If any of the facts asserted by the Petitioner are untrue or materially incomplete, the conclusions of this Declaratory Statement could be significantly different. 3. The Petition for Declaratory Statement contains various legal assertions, conclusions, and arguments. Those assertions, conclusions, and arguments are not adopted by the Department and are not used as legal premises or authority for the conclusions of this Declaratory Statement. The legal assertions, conclusions, and arguments are considered only to illustrate the manner in which Petitioner may be an affected person entitled to have the Department issue this Declaratory Statement. 4. Petitioner asserts that the fire marshals throughout the state have been notifying water purveyors that the testing and repair of backflow assemblies and the fire mains attached thereto by plumbing contractors is not acceptable and is in violation of state statute. 5. Petitioner s position is that: A. Both Petitioners, Jesse F. Green and the Florida Association of Plumbing, Heating and Cooling Contractors are adversely affected by the current interpretations of Florida law by the fire marshals. B. The plumbing contractor s scope of work per the Florida statutes and rules makes the licensed plumbing contractor responsible for the potability of the water systems, including the backflow prevention assemblies. C. The plumbing contractor is the only contractor per Florida statute who is tested, trained, and certified to handle potable water systems, public and private. D. The backflow assemblies are the devices stopping the non-potable water of the fire mains from entering the potable system. 2

3 E. The fire sprinkler contractor is not certified to handle potable water under his scope of work according to Chapter 633, Florida Statutes. F. The fire sprinkler contractor s responsibility begins at the number 2 gate valve of the backflow assembly, as each assembly is certified by the manufacturer, which includes the gate valves. G. Only a plumbing contractor or underground utility contractor can perform the installation of the backflow assemblies with plans signed and sealed by a design professional. H. The fire marshals have violated the laws and rules by issuing an opinion beyond their authority. 6 Petitioner requests the Department to render a Declaratory Statement stating that the installation of the fire sprinkler system begins after the backflow assembly and separation of the potable water system from the fire sprinkler system. 7. The installation, repair, maintenance, and testing of a fire sprinkler system must begin at the point of service for the sprinkler system. The complete system begins at the point-of-service as defined in Section (16), Florida Statutes, and ends at the most remote head inside the facility. Section 4A , Florida Statutes. 8. The point of service is now designated by Section (18), Florida Statutes. 9. Section (18), Florida Statutes, states: Point-of-service means the point at which the underground piping for a sprinkler system using water as the extinguishing agent becomes used exclusively for the sprinkler system. 3

4 10. Section (18), Florida Statutes, is clear and unambiguous; therefore, there is no need to utilize or resort to rules of statutory construction in its interpretation The point of service is the point at which the underground piping becomes used exclusively for the sprinkler system. 12. There is one point, and one point alone, at which the underground piping becomes used for no other purpose than the fire sprinkler system, and thus is used exclusively for the sprinkler system. 13. That point is not necessarily the point at which the underground water supply becomes used exclusively for the sprinkler system. 14. 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. 15. Anyone performing any kind of work, including installation, maintenance, testing, and repair of the water line after the point of service designated by Section (18), Florida Statutes, must be certified as a Fire Protection Contractor I, a Fire Protection Contractor II, or a Fire Protection 1 Legislative intent must be derived primarily from the words expressed in the statute. If the language of the statute is clear and unambiguous, courts enforce the law according to its terms and there is no need to resort to rules of statutory construction. "Even where a court is convinced that the Legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity." Florida Department Of Revenue v. Florida Municipal Power Agency, et al, 789 So.2d 320 (Fla. 2001) citing Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla. 1992) (quoting Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693, (1918)). 4

5 Contractor V, pursuant to Section , Florida Statutes, and Rule Chapter 4A-46, Florida Administrative Code. NOW, THEREFORE, in specific response to your questions, it is the position of the Division of State Fire Marshal that: The fire sprinkler system begins at the point of service as defined by Section (18), Florida Statutes, which states: Point-ofservice means the point at which the underground piping for a sprinkler system using water as the extinguishing agent becomes used exclusively for the sprinkler system. Anyone performing any kind of work on such sprinkler system, including installation, testing, maintenance, or repair, must be a certified Fire Protection Contractor I, a certified Fire Protection Contractor II, or a certified Fire Protection Contractor V, pursuant to Section , Florida Statutes. NOTICE OF RIGHTS Any party to these proceedings adversely affected by this Declaratory Statement is entitled to seek review of this Declaratory Statement pursuant to Section , Florida Statutes, and rule 9.110, Florida Rules of Appellate Procedure, because pursuant to Section , Florida Statutes, a Declaratory Statement constitutes final agency action and is therefore subject to judicial review pursuant to Section , Florida Statutes. Review proceedings must be instituted by filing a petition or notice of appeal with the General Counsel, 5

6 acting as the agency clerk, at 612 Larson Building, Tallahassee, Florida, and a copy of the same with the appropriate district court of appeal, within thirty days of rendition of this Declaratory Statement. ENTERED at Tallahassee, Leon County, Florida, this day of, GREG GAY Deputy Commissioner, Treasurer and State Fire Marshal Copies furnished to: Richard Watson, Attorney Representing Petitioner PO Box Tallahassee, Florida Gabriel Mazzeo, Attorney Division of State Fire Marshal 200 East Gaines Street Tallahassee, Florida