STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF HOTELS AND )

RESTAURANTS, DEPARTMENT OF ) BUSINESS REGULATION, STATE OF ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1454

) YANKS CONSTRUCTION COMPANY, ) JACK YANKS, PRESIDENT, )

)

Respondent. )

)

RECOMMENDED ORDER

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

APPEARANCES

For the Petitioner: Mary Jo Gallay

Staff Attorney

Department of Business Regulation 725 South Bronough Street

Johns Building

Tallahassee, Florida 32304 For the Respondent: None

ISSUE PRESENTED

Whether a civil fine should be imposed against Respondent for alleged violation of Section 399.06(2), F.S., as set forth in the Notice to Show Cause, dated February 16, 1978.

The Respondent was furnished Notice of Hearing by the Hearing Officer on September 6, 1978, with date of hearing

scheduled for November 13, 1978. Upon Petitioner's Motion for Continuance, the hearing was continued until November 22, 1978. Upon a further request for continuance based on injuries received by Respondent, the hearing was again continued until December 5, 1978, and the order continuing the hearing, dated November 17, 1978, was furnished to the Respondent. By his letter of November 29, 1978, Respondent acknowledged receipt of the said order. Neither Respondent nor any representative on his behalf appeared at the hearing and, accordingly, pursuant to Rule 28-5.25(5), the hearing was conducted as an uncontested proceeding.

FINDINGS OF FACT

1. In the early part of 1977, Samuel Eldon, owner and operator of the All State Elevator Company, Miami, Florida, contracted with Respondent Yanks Construction Company to furnish and install two elevators at an apartment building under construction at 677 NE 24th Street, Miami, Florida. Eldon obtained a city permit to install the two elevators and began work on the job about March, 1977. By July, 1977, installation of the elevators was essentially complete. (Testimony of Eldon)

   
   

2. On July 25, 1977, Eugene S. Walters, elevator inspector for the City of Miami, went to the construction site to inspect the elevators for safety, possible fire hazards, and condition of the equipment. This inspection was for the purpose of determining if a construction permit for a period of thirty days should be granted in order to make the elevators available for use of contractor personnel. Walters found a number of deficiencies in the installation and other deficiencies which required correction on the part of Respondent. Since the elevators were not in a satisfactory condition for use, Walters gave the deficiency "punch list" to Respondent and Eldon for corrective action. Additionally, Eldon disconnected some wires to prevent operation of the elevators. On this date Eldon observed that the elevators were being operated by unknown individuals. At this time, Respondent agreed to perform the necessary work in order that the elevators would pass inspection. (Testimony of Walters, Eldon)

   
   

3. On September 5, 1977, Eldon asked for a reinspection. When Walters arrived at the building, he observed that the elevators were in use by construction personnel. He noted that the deficiencies had not been

   remedied and therefore shut off the elevator switches to prevent them from operating. On October 11, he again went to the site, accompanied by state elevator inspector Ray L. Cline. They posted warning notices in both elevator cars, pulled the main line switch and sealed the elevators with a state seal. On October 17, the inspectors found that the seals had been broken and observed the elevators being operated by tenants of the building. The deficiencies still had not been corrected by Respondent. On November 11, 1977, Respondent was again told of the remaining work necessary to place the elevators in an operable state. (Testimony of Walters, Cline)

   
   

4. By letter of January 6, 1978, the Miami Building and Zoning Inspection Department informed Respondent again of the unfinished items and pointed out that one of the elevators had been seen in use by various individuals. Respondent advised by letter of January 11 to the building department that one of the elevators had been inspected and approved for construction use and would be operated only by authorized personnel, and that the other elevator would be locked out of service when the job was not in progress at the end of each workday. Finally, certificates were issued on February 6, 1975, for full use of the elevators after passing the required inspection. (Testimony of Walters, Exhibits 1-2)

   
   

   CONCLUSIONS OF LAW

   
   

5. Petitioner's "Notice to Show Cause" alleges that between approximately July 25 and October 20, 1977, Respondent permitted operation of an elevator in violation of Section 399.06(2), Florida Statutes. Petitioner seeks to impose a fine against Respondent pursuant to Section 399.11(2), Florida Statutes. Section 399.06(2) provides that if any elevator is found to be dangerous to life and property, or is being operated without an operating certificate, an inspector may require the owner to discontinue the, operation. It also requires the inspector to place a notice to that effect on or in such elevator. The notice must designate and describe the alteration or other change necessary to be made to insure its safety and the time allowed for such alteration or change. Section

   399.11 provides as follows:

   399.11 Penalties.--

   1. Whoever violates any of the provisions of this chapter, or the rules and regulations of the division, as herein provided for, or who shall fail or neglect to pay the fees herein provided for, shall be guilty of a misdemeanor of the second degree, punishable as provided in s.775.082 or s. 775.083.

      
      

   2. Whoever continues to operate his ele- vator or other lifting or lowering apparatus, after notice to discontinue its use as set forth in subsection (2) of s. 399.06, shall be likewise fined $25 for each day the said elevator or lifting or lowering apparatus has been operated after the service of the said notice, in addition to the fines above set forth.

      
      

   3. All fines collected under this chapter shall be forwarded to the division, which shall pay the same into the State Treasury to the credit of the division.

      
      

   4. Whoever commences the erection, removal to a different location, or alteration of any elevator for which a permit is required by s.

   399.05 of this chapter without having obtained from the division a permit therefor shall pay to the division a civil penalty of $50 in addition to the fee specified for such

   permit. (Emphasis Supplied)

   
   

6. The evidence clearly shows that Respondent's elevators were operated at various times between July and October, 1977, after inspectors had informed the Respondent to discontinue such operation and had placed notice to that effect in the elevators. Accordingly, Respondent as the owner was, during that period, in violation of Section 399.06(2), F.S.

   
   

7. The sole remaining question for determination is whether Section 399.11(2) authorizes Petitioner to impose a fine against the Respondent without recourse to judicial proceedings. Petitioner points to Section 399.10 which provides that it is its duty to enforce the provisions of Chapter 399, and therefore contends that it is within its

   jurisdiction to initiate and pursue administrative action, including the collection of fines against those who violate Chapter 399. In support of this contention, Petitioner claims that the prior notice requirement of subsection 399.11(2) must reasonably be interpreted as administrative notice which serves to initiate administrative action by its personnel. In the opinion of this Hearing Officer, Petitioner's contentions are not meritorious.

   
   

8. Article I, Section 18 of the Florida Constitution provides that "No administrative agency shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law." It is therefore clear that unless expressly authorized by statute, penalties such as fines cannot be imposed through administrative proceedings. The statutes of Florida abound with instances whereby such express authorization has been granted by the legislature. In fact, Section 509.261(2) authorizes this Petitioner to impose an administrative fine against public lodging or public food service establishment licensees in lieu of suspension or revocation of licenses. However, no such express authority for administrative imposition of monetary penalties can be found in reviewing Section

399.11. First, it should be noted that subsection 399.11(1) makes it a misdemeanor for anyone to violate the provisions of Chapter 399 or rules and regulations of Petitioner provided for in such chapter. A close examination of subsection (2) reveals the intent of the legislature that the $25 per day fine authorized therein for operating elevators after notice to discontinue such use constitutes an additional criminal penalty incident to a sentence imposed for violation of subsection (1) in a judicial proceeding. The words "shall be likewise fined" and "in addition to the fines above set forth" contained in subsection (2) show that continuing violations simply authorize a court to impose additional fines. Also, subsection (3) states that all fines collected must be "forwarded to the division." This language obviously indicates that the fines referred to in subsections (1) and

(2) will be collected by some agency or tribunal other than the Division of Hotels and Restaurants. Further, subsection (4) authorizes the imposition of "a civil penalty" which shall be paid "to the division" for erecting an elevator without a permit. The quoted language of this provision distinguishes a "civil penalty" from a "fine" and requires a violator to pay such penalty directly to Petitioner. Such a penalty might well be imposed through

administrative proceedings. It is concluded, however, that Petitioner has not been expressly authorized by statute to administratively impose the fine provided for in subsection 399.11(2).

RECOMMENDATION

That this administrative proceeding against Respondent be dismissed.

DONE and ENTERED this 2nd day of January, 1979, in Tallahassee, Florida.

Hearings

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative

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

COPIES FURNISHED:

Mary Jo Gallay Staff Attorney

Department of Business Regulation

725 South Bronough Street Johns Building

Tallahassee, Florida 32304

Yanks Construction Company 1835 NW 20th Street

Miami, Florida 33142

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AGENCY FINAL ORDER

===========================================================

DEPARTMENT OF BUSINESS REGULATION STATE OF FLORIDA

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

Petitioner,

vs. CASE NO. 78-1454

YANKS CONSTRUCTION COMPANY,

Respondent.

/

FINAL ORDER

This Order is entered by the Division of Hotels and Restaurants pursuant to Section 120.59, Florida Statutes, following a Recommended Order entered on January 24, 1979, in Tallahassee, Florida, by Hearing Officer Thomas C. Oldham, of the Division of Administrative Hearings. After a review of the entire record, the agency modifies the Recommended Order`s Findings of Fact to include additional findings. At the hearing, there was adduced uncontroverted competent substantial evidence to support the additional findings of fact. Furthermore, the agency rejects the Recommended Order's Conclusions of Law, with the explanation below.

FINDINGS OF FACT

1. The Agency adopts the following, findings appearing in the Recommended Order:

   
   

   In the early part of 1977, Samuel Eldon, owner and operator of the All State Elevator Company, Miami, Florida, contracted with

   Respondent Yanks Construction Company to furnish and install two elevators at an apartment building under construction at 677 N.E. 24th Street, Miami, Florida.

   Eldon obtained a city permit to install the two elevators and began work on the job about March, 1977. By July, 1977, install- ation of the elevators was essentially com- plete. (Testimony of Eldon)

   
   

   On July 25, 1977, Eugene S. Walters, elevator inspector for the City of Miami, went to the construction site to inspect the elevators for safety, possible fire hazards, and condition of the equipment. This inspection was for the purpose of determining if a construction permit for a period of thirty days should be granted in order to make the elevators available for use of contractor personnel. Walters found a number of deficiencies in the in- stallation and other deficiencies which required correction or the part of Re-

   spondent. Since the elevators were not in a satisfactory condition for use, Walters gave the deficiency "punch list" to Re- spondent and Eldon for corrective action.

   Additionally, Eldon disconnected some

   wires to prevent operation of the elevators. On this date Eldon observed that the ele- vators were being operated by unknown indi- viduals. At this time, Respondent agreed

   to perform the necessary work in order that the elevators would pass inspection. (Testimony of Walters, Eldon)

   
   

   On September 5, 1977, Eldon asked for a re- inspection. When Walters arrived at the building, he observed that the elevators were in use by construction personnel. He noted that the deficiencies had not been remedied, and therefore shut off the ele- vator switches to prevent them from opera- ting. On October 11, he again went to the site, accompanied by state elevator in- spector Ray L. Cline. They posted warning notices in both elevator cars, pulled the

   main line switch and sealed the elevators with a state seal. On October 17, the in- spectors found that the seals had been broken and observed the elevators being operated by tenants of the building. The deficiencies still had not been corrected by Respondent. On November 11, 1977, Re- spondent was again told of the remaining work necessary to place the elevators in an operable state. (Testimony of Walters, Cline)

   
   

   By letter of January 6, 1978, the Miami Building and Zoning Inspection Department informed Respondent again of the unfinished items and pointed out that one of the ele- vators had been seen in use by various in- dividuals. Respondent advised by letter of January 11 to the building department that one of the elevators had been inspected and approved for construction use and would be operated only by authorized personnel, and that the other elevator would be locked

   out of service when the job was not in pro- gress at the end of each workday. Finally, certificates were issued on February 6, 1978, for full use of the elevators after passing the required inspection. (Testimony of Walters, Exhibits 1-2)

   
   

2. The following findings not contained in the Recommended Order are added by the Agency:

   
   

   Respondent, Jack Yanks Construction Company, was the owner of the 667 Condo, located

   at 677 N.E. 24 Street, Miami, Florida, at all times pertinent to this action. (Testimony of Mr. Walters, T-13)

   
   

   Two elevators were located at the construc- tion site. (Testimony of Mr. Walters,

   T-13) Both were seen running when un- inspected (Testimony of Mr. Cline, T-29, and Mr. Walters, T-13-14

   On July 25, 1977, both elevators were seen to have been in use. (Testimony of Mr.

   Eldon, T-34) On October 11, 1977, both elevators were seen to have been in use. (Testimony of Mr. Walters, T-13, testimony of Mr. Cline, T-29) - In August of 1977, - both elevators were seen to have been running. (Testimony of Mr. Cline, T-23)

   
   

   On at least one other occasion, Mr. Walters viewed both elevators in operation from a viewpoint across from the construction site. (Testimony of Mr. Walters, T-14).

   
   

   CONCLUSIONS OF LAW

   
   

3. Petitioner accepts the Hearing Officer's conclusion, that Respondent, as the owner, was during the periods alleged in the Notice to Show Cause in violation of Section 399.06(2), Fla. Stat. (1977).

   
   

4. The Agency rejects the remainder of the Conclusions set forth in the Recommended Order and makes the following Conclusions of Law.

   
   

5. Section 399.11, Fla. Stat. (1977), entitled "Penalties", permits the imposition of a criminal penalty upon those found to be in violation of the Provisions of Chapter 399, Fla. Stat. Additionally, Section 399.11(2), Fla. Stat. (1977), permits the imposition of a fine of $25 a day upon an owner improperly operating an elevator, after notice from the Division to cease such operation. That fine is described in the statute as an addition to the fines allowed under subsection 1 of the statute, setting forth a maximum second degree misdemeanor punishment. Additionally, the Division, under Section 399.11(4), Fla. Stat. (1977), is permitted to obtain a civil penalty in the amount of $50 when the construction or alteration of an elevator is undertaken without having obtained a permit as required under Section 399.05, Fla. Stat. (1977). Chapter 399, Fla. Stat. (1977) clearly authorizes the imposition of civil penalties by the Division of Hotels and Restaurants through administrative proceedings. Section 399.10, Fla. Stat. (1977), charges the Division of Hotels and Restaurants with the duty of enforcing the provisions of Chapter 399. Such enforcement can only be carried out through administrative action. Additionally, an express

   grant of power to make regulations pertaining to inspections made by the Division is contained in Section 399.08, Fla. Stat. (1977). The exercise of administrative powers is clearly contemplated in that section.

   
   

6. It is well recognized that administrative agencies may possess implied as well as expressed powers. Peoples Gas System, Inc. v. City Gas Co., 167 So.2d 577 (3 DCA, Fla. 1964) aff'd. 182 5o.2d 429 (Fla. 1965), Williams v. Florida Real Estate Commission, 232 So.2d,239, (4 DCA Fla. 1970). Therefore, the lack of an express reference to an administrative action or penalty In Section 399.11(2) does not render the Division unable to impose the penalty permitted therein. Petitioner Division has statutory authority to administratively impose the fine provided for in subsection 399.11(2).

   
   

7. Respondent improperly operated two elevators on at least six occasions, in violation of Chapter 399, Fla. Stat. (1977) Under Chapter 399, the agency has authority to take disciplinary action against this licensee in the form of civil penalties.

ORDER

It Is therefore ordered that a civil penalty hereby is imposed against the Respondent, Jack Yank Construction Company, in the amount of Three Hundred ($300) Dollars.

DONE AND ORDERED this 22nd day of March, 1979.

Restaurants Regulation

ANTHONY NINOS, DIRECTOR

Division of Hotels and Department of Business

725 South Bronough Street Tallahassee, Florida 32304

(904) 488-1133

Docket for Case No: 78-001454

Orders for Case No: 78-001454