STATE OF FLORIDA
FLORIDA BUILDING COMMISSION
DEPARTMENT OF COMMUNITY AFFAIRS,
Petitioner,
vs. DCA Case No. DCA06-BC-142
FLORIDA POWDER COATING AND
SHUTTERS, INC.,
Respondent.
_________________________________/
ADMINISTRATIVE COMPLAINT
State of Florida , Department of Community Affairs, files this Administrative Complaint against FLORIDA POWDER COATING AND SHUTTERS, INC., (“Respondent”) and alleges:
1. The Florida Building Commission is charged with the responsibility and duty to determine the types of building products requiring approval for local or statewide use and to provide for the evaluation and approval of such products, devices, and methods of construction for statewide use, in accordance with Sections 553.842(1),(6), Florida Statutes, and the rules promulgated pursuant thereto.
2. The Petitioner is statutorily responsible for the implementation of the decisions of the Commission and providing administrative and support services to that end.
3. The Respondent is a corporation who has identified Harris Berman, 7848 South Federal Highway, Hypoluxo, Florida 33462 as its registered agent for service of process and who identified Florida Powder Coating and Shutters, Inc., 854 North Dixie, Lantana, Florida 33462 as the point of contact regarding the subject product.
4. At all times material hereto, Respondent was and is the manufacturer of a product, specifically, shutters.
5. The Respondent sought product approval by the Commission pursuant to Rule 9B-72, Florida Administrative Code, under the category of shutters in two separate applications and, on each application, identified Warren W. Schaefer as both the evaluating engineer for the evaluation report offered in support of the application and validator of the application for approval.
6. Warren W. Schaefer, is a professional engineer authorized to practice in the State of Florida and is not otherwise approved as a validation or evaluation entity. With regard to each application, Warren W. Schaefer certified to the Commission that he had no financial interest in any other entity involved in the approval process.
7. On March 3, 2004, the Florida Building Commission approved the Respondent's products which were assigned the Product Approval Numbers FL1588 and FL 1701.
8. The Commission ordered that its administrator for the program investigate this matter and the Respondent has failed to respond to repeated inquiries.
9 Rule 9B-72.110, F.A.C., states, in pertinent parts:
A certification of independence shall be provided by a Florida registered architect or professional engineer as applicable or by an officer of the entity, agency or laboratory who is responsible for operation of said entity, agency or laboratory that attests to the following:
. . .
(4) The Florida registered architect or professional engineer performing an evaluation does not have, nor will acquire, a financial interest in any other entity involved in the approval process of the product.
10. A validation entity is another entity involved in the approval process of the product.
11. Rule 9B-72.160(1)(a), Florida Administrative Code, provides, in pertinent part:
Any product approval shall be revoked or suspended for any of the following reasons:
6. Determination that the product was approved based on misrepresentations in the application for approval.
7. Failure of the manufacturer to cooperate with a Commission ordered investigation.
12. The approval of Respondent's products, FL 1588 and FL 1701, was based on misrepresentation in the application for approval, specifically, that Warren W. Schaefer served as evaluator with no financial interest in other entities involved in the approval process including the application's validation entity when Mr. Schaefer served in both capacities with regard to each application.
13. The Respondent, a manufacturer, has failed to cooperate with a Commission ordered investigation, specifically having failed to respond to inquiries by the Commission as to circumstances giving rise hereto.
WHEREFORE, Petitioner respectfully requests the Florida Building Commission to issue a Final Order finding the Respondent in violation of the above referenced statutes and rules, and revoking the Respondent's status' as an approved product, Florida State Product Approval FL1588 and FL 1701.
SIGNED this ________ day of _______________________, 2006.
______________________________
James Leigh Richmond
Assistant General Counsel
Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee , Florida 32399
(850) 922-1675
Fla. Bar ID # 0912440
NOTICE TO RESPONDENT
PLEASE BE ADVISED that mediation under Section 120.573, Florida Statutes, is not available for administrative disputes involving this type of agency action.
PLEASE BE FURTHER ADVISED that pursuant to this Administrative Complaint you may request, within the time proscribed, a hearing to be conducted in this matter in accordance with Sections 120.569 and 120.57, Florida Statutes; that you have the right, at your option and expense, to be represented by counsel or other qualified representative in this matter; and that you have the right, at your option and expense, to take testimony, to call and cross-examine witnesses, and to have subpoena and subpoena duces tecum issued on you behalf if a formal hearing is requested.
PLEASE BE FURTHER ADVISED that if you do not file a responsive pleading with the Petitioner within twenty one (21) days of receipt of this Administrative Complaint, your right to a hearing will be deemed waived and a Final Order will be entered which may result in the suspension or revocation of your status as an approved building product.
Copies via certified mail to:
Harris Berman
7848 South Federal Highway
Hypoluxo , Florida 33462
Florida Powder Coating and Shutters, Inc.
854 North Dixie
Lantana , Florida 33462