STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF HOTELS AND RESTAURANTS, ) DEPARTMENT OF BUSINESS REGULATION, ) STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1453

)

R. C. WEIT d/b/a R. C. APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, on December 5, 1978, at Miami, Florida, before the undersigned Hearing Officer.

APPEARANCES

For the Petitioner: Mary Jo Gallay, Esquire

Staff Attorney

Department of Business Regulation Johns Building

Tallahassee, Florida 32304 For the Respondent: None

ISSUE PRESENTED

Whether Respondent's license number 23-3483H should be suspended or revoked, or a civil penalty assessed for alleged violation of Section 509.221(3)(7)(8), F.S. Rule 7C-1.03(1), (5), and (7) , F.A.C., as set forth in

Notice to Show Cause, dated June 5, 1978.

Respondent did not appear at the hearing nor did any representative in his behalf. He had received an order of the Hearing Officer continuing the hearing from November 22, 1978 to December 5, 1978 which was issued on November 17, 1978. In a post-hearing letter to the Hearing Officer, dated December 6, 1978, Respondent stated that he knew the hearing was set for December 5 but misfiled the date of hearing, and requested another hearing. He was advised by the Hearing Officer, by letter of December 7, 1978, that such a rehearing would be precluded pursuant to Rule 28-5.25(9), Florida Administrative Code. In view of the fact that Respondent did not appear at the hearing after being properly notified, the hearing was conducted as an uncontested proceeding, pursuant to Rule 28-5.25(5), Florida Administrative Code.

FINDINGS OF FACT

1. Respondent holds license control number 23-3483H issued by Petitioner pursuant to Chapter 509, Florida Statutes, for apartments located at 1040 Lenox

   Avenue, Miami Beach, Florida. Respondent has been so licensed during the year 1978. (Testimony of Gelber, Exhibit 2)

   
   

2. On May 9, 1978, Sidney Gelber, Petitioner's sanitation and maintenance inspector, visited the premises of Respondent's apartments on a routine inspection. The apartments consisted of two separate buildings, one behind the other, each containing four units. Gelber observed broker tiles on the steps at the main entrance to the rear building. He found much trash and debris, including junked auto parts and glass jalousies at the rear of the grounds where the tenants utilized a laundry line and disposed of garbage. In the garbage area, cans were uncovered, dirty, and flies and bugs were observed. He saw a large open vent on the south side of the front building with no screen, and the screen of the rear door of the front building was torn. (Testimony of Gelber)

   
   

3. A warning notice which set forth the deficiencies found as a result of the inspection was sent to Respondent which he received on May 15. The notice provided that such minor violations must be corrected by May 19, 1978. On May 23, the inspector revisited the premises and found that Respondent had not complied with the notice by correcting the deficiencies. On June 5, 1978, Petitioner sent Respondent a Notice to Show Cause why disciplinary action should not be taken against him for the cited violations. Respondent thereupon requested a hearing in the matter. (Testimony of Gelber, Exhibit 1)

   
   

4. The inspector testified at the hearing that the broken tiles, open vents, debris, and torn screens constituted a hazardous condition. Respondent had received notice of prior similar violations on October 11, 1977, which he subsequently remedied. (Testimony of Gelber)

   
   

   CONCLUSIONS OF LAW

   
   

5. Petitioner's Notice to Show Cause alleges violations of subsections 509.221(3)(7)(8), Florida Statutes, for Respondent's failure to repair the rear torn screen door and open building vents. None of the cited statutory provisions are applicable to the violations discovered by Petitioner's inspector. Subsection 3 deals with adequate ventilation of sleeping rooms in public lodging establishments. Subsection 7 requires food service establishments to keep all outside door, windows and other openings screened. Subsection 8 requires both public lodging establishments and public food service establishments to keep all flies out of the place of business. The evidence fails to show that any of the above provisions were violated.

   
   

6. Petitioner further alleges that Respondent violated Rule 7C-1.103(1) by failure to repair building tiles, Rule 7C-1.03(5) by failure to maintain garbage area in clean condition, and Rule 7C-1.03(7) by failing to maintain premises in a clean condition free of debris and junk. Those rules of the Petitioner are applicable to the instant situation in that subparagraph (1) requires steps to be kept in good repair, subparagraph (5) requires outside garbage receptacles to be clean, water tight and kept covered at all times, and subparagraph (7) requires that premises and yards be kept clean and free of debris. It is therefore concluded that violations of the departmental rules have been established.

   
   

7. In view of the minor nature of the violations, it is considered that suspension or revocation of Respondent's license is not warranted, but that an administrative fine, as authorized by Section 509.261(2), Florida Statutes, in the amount of $250.00 is an adequate and appropriate penalty.

RECOMMENDATION

That an administrative fine in the amount of $250.00 be imposed against Respondent for violation of Rule 7C-1.103(1), 7C-1.03(5), and 7C-1.03(7), Florida Administrative Code, under the authority of Section 509.261(2), Florida Statutes.

DONE and ENTERED this 21st day of December, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Mary Jo Gallay, Esquire Staff Attorney

Department of Business Regulation 725 South Bronough

Tallahassee, Florida 32304

R. C. Weit

775 NE 79th Street, Suite B Miami, Florida 33138

Docket for Case No: 78-001453

Orders for Case No: 78-001453