Product Approval POC

Minutes
June 24, 2007
8:30 am – 12:00 pm

June 24, 2007
8:30 am – 12:00 pm
Don Shula Hotel
7601 Miami Lakes Drive,
Miami Lakes, Florida

Product Approval POC Attendees: Ed Carson - Chair, Herminio Gonzalez, Nan Dean, Do Kim, Chris Schulte. Staff present were Mo Madani, Joe Bigelow

There was a quorum present.

1.  The minutes for the May 6th POC meeting were approved with amendments; The amendments were to change spelling of Chris Schulte, and Herminio Gonzalez.  The agenda was approved as submitted.

2.  Update on prototype building program.
A.  The POC was provided with a close-out letter as required by the contract.  In it contained lessons learned and a summary of the activities of the administrator.
B: Discussion regarding Rule 9B-74 to repeal the rule:  Staffed informed the POC that the department did not receive a responsive response to the request for proposal (RFP) soliciting a new administrator to the program.  Therefore it is the POC’s consensus that Rule 9B-74 be amended to repeal it.

Committee action:  The POC voted to repeal Rule 9B-74 at this time.

3.  Product Approval Program Staff Report
(A).  Product Approval and Entities Statistics Report.
Staff provided the committee a statistical report, including products and entities approved to date.

(B) Schedule of penalties for validation entities:  Staff provided the POC with specific language for inclusion into Rule 9B-72.  After the POC had the opportunity to review the proposed language, the POC recommended that the Commission incorporate the language in the Rule.

Committee action:  The POC voted to forward the attached schedule of penalties for inclusion to Rule 9B-72.  Also the

(C). Rule for recognizing equivalent product standards:  Staff informed the POC that the provisions for these items were already included in the Rule.

(D) Rule Development matrix for June 26th meeting:  Staff provided the POC with the status and the final matrix of Rule 9B-72 for information.

4. Discussion of Declaratory Statement: The committee discussed and provided recommendation on the following request for the following Declaratory Statement:

DCA07-DEC-085 by Walter A TIllit, Jr., Tilteco, Inc.

Committee action:  The POC deferred consideration of the declaratory statement until the next meeting and this is to allow the petitioner to provide specific facts and circumstances needed to consider the request.

5.  Jesus Gonzales Discussion and Staff Letter

The Committee reviewed the draft letter and based on comments of interested groups the committee directed the stakeholders to work with staff to come up with another draft for consideration at the June meeting.

Committee action:  After reviewing the draft letter and hearing comments from the attendees on the issue, the POC voted to recommend to the Commission that a workgroup consisting of all concerned parties be convened in order reach consensus on the issue at hand.

6. A&A Report

(A) Review product approval and entity applications.
The committee reviewed and provided recommendation on product applications provided by A&A.  See attached report.

(B).  A&A provided a report with recommendations on nine entities for consideration as follows:

1.  TST 6679, Air-Ins Inc.  - (Product Testing Laboratory) - Approved

2. TST 1577, Certified Testing Laboratories - (Product Testing Laboratory)- Approved

3. TST 1633, Exterior Research and Design LLC, dba Trinity/ERD Washington – –(Product Testing Laboratory)- Approved

4.  QUA 1680, PFS Corporation –(Product Quality Assurance Entity) - Approved

5.  VAL 4121, PFS Corporation –(Product Validation Entity) - Approved

6.  TST 1679, PFS Corporation –(Product Testing Laboratory) – Approved

7. TST 2508, Momentum Technologies–(Product Testing Laboratory) – Approved

8. VAL 1843, Architectural Testing, –(Product Validation Entity) – Approved

9. TST1509, Intertek Testing Services NA Ltd. –(Product Testing Laboratory) – Approved

10.  TST 1558, Architectural Testing, Inc–(Product Testing Laboratory) – Approved

11.  CER 1498, American Architectural Manufacturers Association–(Product Certification Agency) – Approved

12.  QUA 1789, National Accreditation and Management Institute–(Product Quality Assurance Agency) – Approved

7. Public Comment:  Nelson Kraschel spoke to the POC regarding the inactivity of work being done regarding exterior doors.  He suggested to the POC that a meeting be convened to define criteria for installation instructions for doors, and limitation of use versus installation.  He also expressed concern of the value of using a Certification agency compliance method.
Staff mentioned that there will be some delay in payments and that they will send out a letter to inform interested groups that the system could be down until the 11th.

8. Adjourned at 1:40 P.M.

________________________________________________________________________

Action needed by the Commission:

1.  Action:  It was agreed that the program be put into a temporary status and be brought back if interest in the program increases.  To temporarily suspend the program would require a change to Rule 9B-74.

2. Action on the following entities

1.  TST 6679, Air-Ins Inc.  - (Product Testing Laboratory) - Approved

2. TST 1577, Certified Testing Laboratories - (Product Testing Laboratory)- Approved

3. TST 1633, Exterior Researchand Design LLC, dba Trinity/ERD Washington – –(Product Testing Laboratory)- Approved

4.  QUA 1680, PFS Corporation –(Product Quality Assurance Entity) - Approved

5.  VAL 4121, PFS Corporation –(Product Validation Entity) - Approved

6.  TST 1679, PFS Corporation –(Product Testing Laboratory) – Approved

7. TST 2508, Momentum Technologies–(Product Testing Laboratory) – Approved

8. VAL 1843, Architectural Testing, –(Product Validation Entity) – Approved

9. TST1509, Intertek Testing Services NA Ltd. –(Product Testing Laboratory) – Approved

10.  TST 1558, Architectural Testing, Inc–(Product Testing Laboratory) – Approved

11.  CER 1498, American Architectural Manufacturers Association–(Product Certification Agency) – Approved

12.  QUA 1789, National Accreditation and Management Institute–(Product Quality Assurance Agency) – Approved

3.  Action on products reviewed for approval, conditional approval, deferral, and denial be approved.

4.   POC recommendation for incorporation of forms into Rule and disciplinary action

9B-72.130 (3)(a)
9B-72.130 (3)(b)
9B-72.130 (3)(c)
9B-72.130 (3)(d)

553.  Grounds for Discipline; penalties; enforcement.--

(1)   For purposes of this section, ‘entity’ refers to product evaluation entities, product validation entities, testing laboratories, certification agencies, quality assurance agencies, accreditation bodies, product manufacturers or owner of a proprietary system or method of construction or its designee.

(2) The commission may take action against any person or entity approved, certified, to perform functions in connection with product approval, that is found guilty of any of the following acts:

(a)       Obtaining an approval by fraud or misrepresentation.

(b)       Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to product approval.

(c)       Violating any provision of chapter 553 or Florida Building Code.

(d)            Failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the commission.

(e)             Committing an act of fraud or deceit relating to product approval.

(f)             Committing incompetency or misconduct relating to product approval.

(g)            Building incompetency or misconduct relating to product approval.

(h)            Committing gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property.

(i)              Knowingly making or filing a false report or record, willfully failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing, or inducing another person to impede or obstruct such filing.  Such reports or records include only those that are prepared in the capacity of product approval.

(3)      Penalties may be any or all of the following:  place on probation, reprimand, or deny the issuance or renewal of approval, recall of approved products, require financial restitution to a consumer for financial harm directly related to a violation of a provision of this part, impose an administrative fine not to exceed $5,000 per violation, require continuing education, or assess costs associated with investigation and prosecution.

(4)      In recommending penalties in any proposed recommended order, the department shall follow the penalty guidelines established by the commission by rule.  The department shall advise the administrative law judge of the appropriate penalty, including mitigating and aggravating circumstances, and the specific rule citation.

(5)      The commission may not reinstate a suspended approval until it is satisfied the entity has complied with all the terms and conditions set forth in the final order.

(6)      The commission may assess interest or penalties on all fines imposed under this chapter which has not been paid by the due date established by rule or final order.  The provisions of chapter 120 do not apply to such assessment.  Interest rates to be imposed shall be established by rule and shall not be usurious.

(7)      The commission shall not issue or renew an approval that has been assessed a fine, interest, or other costs associated with investigation and prosecution, or has been ordered to pay restitution, until such fines, interest, or costs associated with investigation or prosecution or restitution are paid in full or until all terms and conditions of the final order have been satisfied.

(8)   (a) Arbitration.  Notwithstanding the provisions of chapter 120 and 553, upon receipt of a legally sufficient consumer complaint alleging a violation of this part, the department may provide by rule for binding arbitration between the complainant and the approved, certified, or licensed individual or entity, provided the following exists:

1.     There is evidence the complainant has suffered or is likely to suffer monetary damages resulting from the violation of this part;

2.     The entity does not have a history of repeated or similar violations;

3.     Reasonable grounds exist to believe the public interest will be better served by arbitration than by disciplinary action; and

4.     The complainant and entity has not previously entered into private arbitration, and no civil court action based on the same transaction has been filed.

(b)   The entity and complainant may consent in writing to binding arbitration within 15 days following notification of this process by the department.  The department may suspend all action in the matter for 45 days when notice of consent to binding arbitration is received by the department.  If the arbitration process is successfully concluded within the 60-day period, the department may close the case file with a notation of the disposition and the entity’s record shall reflect only that a complaint was filed and resolved through arbitration.

(c)    Where a complaint meets the criteria for arbitration set forth in paragraph (a) and the damages at issue are less than $2,500, the department shall refer the complaint for mandatory arbitration.

(d)   The arbitrator’s order shall become a final order of the commission if not challenged by either party within 30 days after filing.  The commission’s review of the arbitrator’s order shall operate in the manner of the review of recommended orders pursuant to s.120.57(1) and shall not be a de novo review.

5.     There is evidence the complainant has suffered or is likely to suffer monetary damages resulting from the violation of this part;

6.     The entity does not have a history of repeated or similar violations;

7.     Reasonable grounds exist to believe the public interest will be better served by arbitration than by disciplinary action; and

8.     The complainant and entity has not previously entered into private arbitration, and no civil court action based on the same transaction has been filed.

(b)  The entity and complainant may consent in writing to binding arbitration within 15 days following notification of this process by the department.  The department may suspend all action in the matter for 45 days when notice of consent to binding arbitration is received by the department.  If the arbitration process is successfully concluded within the 60-day period, the department may close the case file with a notation of the disposition and the entity=s record shall reflect only that a complaint was filed and resolved through arbitration.

(c)   Where a complaint meets the criteria for arbitration set forth in paragraph (a) and the damages at issue are less than $2,500, the department shall refer the complaint for mandatory arbitration.

(d)  The arbitrator’s order shall become a final order of the commission if not challenged by either party within 30 days after filing.  The commission’s review of the arbitrator’s order shall operate in the manner of the review of recommended orders pursuant to s.120.57(1) and shall not be a de novo review.

553.  Disciplinary Proceedings--

(1)  Disciplinary proceedings for the commission shall be within the jurisdiction of the department.

(a)  The department shall cause to be investigated any complaint that is filed before it if the complaint is in writing, signed by the complainant, and legally sufficient. A complaint is legally sufficient if it contains ultimate facts that show that a violation of this or of any rule adopted by the department or the commission has occurred. In order to determine legal sufficiency, the department may require supporting information or documentation. The department may investigate, and the commission may take appropriate final action on, a complaint even though the original complainant withdraws it or otherwise indicates a desire not to cause the complaint to be investigated or prosecuted to completion. The department may investigate an anonymous complaint if the complaint is in writing and is legally sufficient, if the alleged violation of law or rules is substantial, and if the department has reason to believe, after preliminary inquiry, that the violations alleged in the complaint are true. The department may investigate a complaint made by a confidential informant if the complaint is legally sufficient, if the alleged violation of law or rule is substantial, and if the department has reason to believe, after preliminary inquiry, that the allegations of the complainant are true. The department may initiate an investigation if it has reasonable cause to believe that an approved, certified, or licensed entity has violated a Florida statute, a rule of the department, or a rule of the commission.

(b)  When an investigation of any subject is undertaken, the department shall promptly furnish to the subject or the subject's attorney a copy of the complaint or document that resulted in the initiation of the investigation. The subject may submit a written response to the information contained in such complaint or document within 20 days after service to the subject of the complaint or document. The subject's written response shall be considered by the probable cause panel. The right to respond does not prohibit the issuance of a summary emergency order if necessary to protect the public. However, if the secretary, or the secretary's designee, and the chair of the commission or the chair of its probable cause panel agree in writing that such notification would be detrimental to the investigation, the department may withhold notification. The department may conduct an investigation without notification to any subject if the act under investigation is a criminal offense.

(2) The department shall allocate sufficient and adequately trained staff to expeditiously and thoroughly determine legal sufficiency and investigate all legally sufficient complaints. When its investigation is complete and legally sufficient, the department shall prepare and submit to the probable cause panel of the appropriate regulatory board the investigative report of the department. The report shall contain the investigative findings and the recommendations of the department concerning the existence of probable cause. At any time after legal sufficiency is found, the department may dismiss any case, or any part thereof, if the department determines that there is insufficient evidence to support the prosecution of allegations contained therein. The department shall provide a detailed report to the probable cause panel prior to dismissal of any case or part thereof, and to the subject of the complaint after dismissal of any case or part thereof, under this section. For cases dismissed prior to a finding of probable cause, such report is confidential and exempt from s. 119.07(1). The probable cause panel shall have access, upon request, to the investigative files pertaining to a case prior to dismissal of such case.

(3)(a)  As an alternative to the provisions of subsections (1) and (2), when a complaint is received, the department may provide an approved entity with a notice of noncompliance for an initial offense of a minor violation. A violation is a minor violation if it does not demonstrate a serious inability to practice the profession, result in economic or physical harm to a person, or adversely affect the public health, safety, or welfare or create a significant threat of such harm. The commission shall establish by rule those violations which are minor violations under this provision. Failure to take action in correcting the violation within 15 days after notice may result in the institution of regular disciplinary proceedings.

(b)  The department may issue a notice of noncompliance for an initial offense of a minor violation, notwithstanding the commission’s failure to designate a particular minor violation by rule as provided in paragraph (a).

(4)The determination as to whether probable cause exists shall be made by majority vote of a probable cause panel of the commission.  The commission shall provide by rule that the determination of probable cause shall be made by a panel of its members.  The commission may provide by rule for multiple probable cause panels composed of at least two members. The commission may provide by rule that one member of the panel or panels may be a former commission member. The length of term or repetition of service of any such former commission member on a probable cause panel may vary according to the direction of the commission when authorized by commission rule. Any probable cause panel must include a present commission member. All proceedings of the panel are exempt from s. 286.011 until 10 days after probable cause has been found to exist by the panel or until the subject of the investigation waives his or her privilege of confidentiality. The probable cause panel may make a reasonable request, and upon such request the department shall provide such additional investigative information as is necessary to the determination of probable cause. A request for additional investigative information shall be made within 15 days from the date of receipt by the probable cause panel of the investigative report of the department. The probable cause panel shall make its determination of probable cause within 30 days after receipt by it of the final investigative report of the department. The secretary may grant extensions of the 15-day and the 30-day time limits. In lieu of a finding of probable cause, the probable cause panel may issue a letter of guidance to the subject. If, within the 30-day time limit, as may be extended, the probable cause panel does not make a determination regarding the existence of probable cause or does not issue a letter of guidance in lieu of a finding of probable cause, the probable cause panel must make a determination regarding the existence of probable cause within 10 days after the expiration of the time limit. If the probable cause panel finds that probable cause exists, it shall direct the department to file a formal complaint against the approved entity. The department shall follow the directions of the probable cause panel regarding the filing of a formal complaint. If directed to do so, the department shall file a formal complaint against the subject of the investigation and prosecute that complaint pursuant to chapter 120. However, the department may decide not to prosecute the complaint if it finds that probable cause had been improvidently found by the panel. In such cases, the department shall refer the matter to the commission. The commission may then file a formal complaint and prosecute the complaint pursuant to chapter 120. The department shall also refer to the commission any investigation or disciplinary proceeding not before the Division of Administrative Hearings pursuant to chapter 120.

(5)  A formal hearing before an administrative law judge from the Division of Administrative Hearings shall be held pursuant to chapter 120 if there are any disputed issues of material fact. The administrative law judge shall issue a recommended order pursuant to chapter 120. If any party raises an issue of disputed fact during an informal hearing, the hearing shall be terminated and a formal hearing pursuant to chapter 120 shall be held.

(6)  The commission, with those members of the panel, if any, who reviewed the investigation pursuant to subsection (4) being excused, shall determine and issue the final order in each disciplinary case. Such order shall constitute final agency action. Any consent order or agreed settlement shall be subject to the approval of the department.

(7)  The department shall have standing to seek judicial review of any final order of the commission, pursuant to s. 120.68.

(8)  The department shall periodically notify the person who filed the complaint of the status of the investigation, whether probable cause has been found, and the status of any civil action or administrative proceeding or appeal.

(9)  The complaint and all information obtained pursuant to the investigation by the department are confidential and exempt from s. 119.07(1) until 10 days after probable cause has been found to exist by the probable cause panel or until the subject of the investigation waives his or her privilege of confidentiality, whichever occurs first. Upon completion of the investigation and pursuant to a written request by the subject, the department shall provide the subject an opportunity to inspect the investigative file or, at the subject's expense, forward to the subject a copy of the investigative file. The subject may file a written response to the information contained in the investigative file. Such response must be filed within 20 days, unless an extension of time has been granted by the department. This subsection does not prohibit the department from providing such information to any law enforcement agency or to any other regulatory agency. A privilege against civil liability is hereby granted to any complainant or any witness with regard to information furnished with respect to any investigation or proceeding pursuant to this section, unless the complainant or witness acted in bad faith or with malice in providing such information.