STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 78-1901

) CONTROL NO. 23-2425H ST. JOHN MARITIME CORP., t/a )

CHANTICLEER APTS., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on December 1, 1978, in Miami, Florida.

APPEARANCES

For Petitioner: Mary Jo M. Gallay, Esquire

Staff Attorney

725 Bronough Street

Tallahassee, Florida 32304

For Respondent: Evelyn Framer

c/o Chanticleer Apartments 1681 Bay Road

Miami Beach, Florida 33139

By Notice to Show Cause dated 9/27/78 the Division of Hotels and Restaurants, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Chanticleer Apartments, Respondent. As grounds therefor it is alleged that Respondent violated various rules promulgated by Petitioner in failing to repair a leaking air conditioner over apartment No. 27, failing to repair refrigerators in apartments No. 3 and No. 28, failing to correct poor water drainage around building, and failing to remove enamel paint from outside steps.

One witness was called by Petitioner and one witness testified on behalf of Respondent.

FINDINGS OF FACT

1. Chanticleer Apartments contain 38 units and have been issued license number 23-2425H by the Division of Hotels and Restaurants.

2. An inspector from Petitioner's Miami office, in response to complaints from tenants, inspected the Chanticleer Apartments on July 14, 1978, immediately following a heavy rainfall.

   
   

3. It was noted that the air conditioner over the door of apartment No. 27 was dripping onto the sidewalk below.

   
   

4. It was also noted that refrigerators in apartments No. 3 and No. 28 were dripping. When queried from whence the drip was coming, the inspector did not know or remember. Nor did he know if the refrigerator was dripping because it needed defrosting.

   
   

5. Outside steps had recently been painted with enamel paint which was slippery when wet.

   
   

6. Following the heavy rain that had recently fallen, there were puddles on the sidewalk in one or two places and a puddle on the paved area between the parking lot and the apartments.

   
   

7. Testifying on behalf of Respondent, the manager of the apartments stated that a defective refrigerator in apartment No. 3 had been replaced when she was advised it was bad but that older refrigerators were not frost free and unless the tenants defrosted them, ice formed around the coils would melt and drip.

   
   

8. Between the time of the inspection and this hearing, the error perpetrated by the enamel paint on the steps had been corrected with a non-skid paint applied to the steps.

   
   

9. With respect to the puddling of water, this witness stated an additional baffle had been installed on the roof to divert water away from the paved areas. She also stated that a project had been underway for some time to replace all drains on wall-mounted air conditioners and this project was continuing.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.

11. Respondent is charged with violating rules which provide as follows: 7C-1.03(1) Roofs, walls, ceilings, floors,

    stairs, steps, windows, transoms, shelves,

    fixtures, etc. shall be kept in good repair, clean and painted where applicable.

    
    

    7C-1.03(7) Premises, yards, alleys, etc.

    shall be kept clean, free of debris and properly drained.

    
    

    7C-1.04(5) The heating and ventilating system shall be kept in good repair or be installed to maintain minimum of 68 degrees temperature

    throughout the building; except that same shall not apply to the land areas lying south of 26 degrees, 20 minutes North (26 20'N). Fireproof

    shields must be used around and under stoves and boiler room must be enclosed with fireproof walls, fireproof ceiling and metal covered doors.

    
    

    7C-1.04(6)(j) Gas refrigerators must be installed at least two (2) inches from the rear wall and with at least twelve (12) inches clearance above the top.

    
    

12. Failure to repair dripping air conditioners was charged as a violation of 7C-1.04(5) above quoted. No evidence was presented that the air conditioners were not capable of maintaining 68 degree temperature. The inference of the testimony regarding these air conditioners was that the drip created a hazardous condition by making the walkways slippery. However, this does not appear to be the type violation intended by Rule 7C-1.04(5).

    
    

13. No evidence was presented that the refrigerators alleged to be dripping in apartments No. 3 and No. 27 were gas refrigerators or that they were installed with less clearance than required by Rule 7C-1.04(6)(j).

    
    

14. It was apparent that Respondent's manager is making a bona fide attempt to maintain the Chanticleer Apartments in compliance with the requirements of the statutes and regulations. The enamelled slippery steps were corrected as soon as it was brought to Respondent's attention. Bona fide efforts are being made to improve the drainage but even after the ultimate in drainage has been accomplished, it would not be surprising to find puddles on a sidewalk immediately following a heavy downpour.

    
    

15. From the foregoing, it is concluded that no evidence was submitted that Respondent violated 7C-1.04(5) and (6)(j) as alleged. The violation of Rule 7C-1.03 was corrected when the error in using enamel paint became known to Respondent.

    
    

16. In view of the bona fide efforts of Respondent to improve the drainage conditions, the evidence will not support a finding of guilty of violation of Rule 7C-1.03(7). It is, therefore,

RECOMMENDED that the charges be dismissed and the case closed.

DONE and ENTERED this 19th day of December, 1978, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Mary Jo M. Gallay, Esquire Staff Attorney

725 Bronough Street

Tallahassee, Florida 32304

Evelyn Framer

c/o Chanticleer Apartments 1681 Bay Road

Miami Beach, Florida 33139

Docket for Case No: 78-001901

Orders for Case No: 78-001901