STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF BUSINESS REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 79-949

)

MELVIN STEWART, t/a )

DEPAR MOTEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on August 9, 1979, and February 14, 1980, in Miami, Florida.

APPEARANCES

For Petitioner: Mary Jo M. Gallay, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Steven Jugo, Esquire

Suite 220, Biscayne Building

19 West Flagler Street Miami, Florida 33130

ISSUE

The issue posed for decision herein is whether or not the Respondent, Melvin Stewart, t/a Depar Motel, has engaged in acts and/or conduct, as more particularly set forth in the Notice to Show Cause filed herein, which warrants the Petitioner's proposed sanctions of suspending or revoking the Respondent's license to operate a motel or the assessment of a civil penalty.

FINDINGS OF FACT

Based upon my observation of the witness and his demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found.

1. Melvin Stewart, trading as the Depar Motel, is licensed by the Petitioner and holds license control No. 23-13405H. The Depar Motel is situated at 301 Northwest 62nd Street, Miami, Florida, and is of concrete block and

   stucco construction. The motel has approximately sixty-three (63) rooms plus a bar and lounge.

   
   

2. Rogers Brown is an inspector employed by the Petitioner since approximately 1976. During his tenure, there has been a brief hiatus in his employment during which time he was on leave with the Department of Health and Rehabilitative Services, State of Florida. During the course of his employment, Inspector Brown made a routine inspection of the Depar Hotel on February 7, 1979, and noted that the Depar Motel was not being properly maintained, for reasons set forth hereinafter for which the Respondent, Melvin Stewart, was cited as violating Chapter 509, Florida Statutes, and Rule Chapters 7C-1 and 7C- 3, Florida Administrative Code.

   
   

3. Without reciting herein the numerous alleged violations set forth in the Notice to Show Cause /1 or reciting in toto inspector Brown's testimony, the following is a brief summary of the conditions he found at the Depar Motel during his inspection on February 7, 1979.

   
   

4. Inspector Brown found that the fire extinguishers at the Depar Motel were located at travel distances of more than seventy-five (75) feet apart. He found inadequate electrical wiring in several rooms, in that electrical wires were burned and exposed, air conditioning wires were exposed in several apartments, electrical shaving receptacles were exposed, electrical wall sockets did not have adequate cover plates and several rooms had no sockets in the bedrooms and bathrooms. (Apartments 33, 51, 10 and 19.) Inspector Brown found several apartment doors with improper locking devices; were poorly sealed; had loose door frames and broken jalousies in the doors and windows. (Apartments 13, 7, 15, 17, 27, 30, 32, 33, 34, 39, 40, 52 and 55.) He also found several rooms which had holes in the bathrooms and living room walls. (Apartments 7, 8, 16, 17, 18, 19, 24, 33, 39, 49, 52, 55, 57 and 59.) Inspector Brown also found several apartments which had inoperable jalousie windows and doors. (Apartments 4, 5, 11, 15, 24, 32, 33, 34, 37, 38, 39, 52, 57 and 60.) Inspector Brown found several rooms with clogged plumbing drains and he observed standing water in several plumbing fixtures, (Apartments 7 and 4.) He also found leaking faucets and hot water handles missing in several apartments. (Apartments 4, 16, 40, 52, 55 and 59.)

   
   

5. Inspector Brown also found that several apartments lacked screen windows and that the screen windows in several apartments were torn. (Apartments 1, 4, 8, 10, 12, 15, 28, 29, 32, 34, 40, 51 and 60,) He also observed rodent droppings and roaches in several apartments. (TR. 70-73.)

   
   

6. Inspector Brown found weeds, trash and debris outside the building. He noted that several apartments had soiled mattresses and in others the mattresses had no covers. (Apartments 4, 6, 30, 32 and 33.)

   
   

7. Finally, Inspector Brown testified that the Respondent did not have on file with the Division a form No. 208, which is required of all licensees. 2/ Chapter 7C-3.02, Florida Administrative Code.

   
   

8. The Respondent did not offer any witnesses to refute the charges set forth herein in the Notice to Show Cause or to counter the credited testimony of Inspector Rogers Brown.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

   
   

10. The authority of the Petitioner is derived from Chapter 509, Florida Statutes, and Rules Chapters 7C-1 and 7C-3, Florida Administrative Code.

    Chapter 7C-1.04(1) Florida Administrative Code, provides in pertinent part that public lodgings shall have fire extinguishers and the maximum travel distance to the nearest fire extinguisher shall not exceed seventy-five (75) feet.

    Subparagraph (4) of the above-cited provision provides in pertinent part that electrical wiring shall be kept in good repair and defective wiring shall be replaced. Sufficient electrical outlets shall be provided such that no extension cords shall be used. Subparagraph (7) of the cited section provides that transient-type rental units shall be equipped with a bolt, chain or built in locking device on all outside and connecting doors to prevent doors from being opened by regular guest room keys.

    
    

11. Chapter 7C-1.03(1), Florida Administrative Code, provides that walls, ceilings, windows and fixtures shall be kept in good repair, clean and painted where applicable. Subparagraph (3) of the cited section provides that insects, vermin, rodents, termites, etc. shall be kept exterminated. Chapter 7C-1.03(7), Florida Administrative Code provides that the premises, yards, alleys, etc. shall be kept clean, free of debris and properly drained. Chapter 7C-3.02(1), Florida Administrative Code, provides that the licensee is charged with filing with the Division Director form No. 208, which lists the total number of rooms and the rates charged for each, showing both the single and double rates.

    
    

12. Competent and substantial evidence was offered to establish that the Respondent maintained its licensed premises in a manner violative of Chapter 509, Florida Statutes, and Rules 7C-1 and 7C-3, Florida Administrative Code, as set forth in the paragraph next above and as cited in the Notice to Show Cause filed herein.

    
    

    RECOMMENDATION

    
    

13. Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED:

    
    

14. Upon issuance of the Division of Hotels and Restaurants' Final Order herein, the Respondent's license be suspended for a period of one (1) year with the suspension held in abeyance for a period of thirty (30) days, during which time the Respondent be allowed an opportunity to correct the deficiencies cited in the Notice to Show Cause filed herein. In the event that Respondent fails to correct the deficiencies as set forth in the referenced notice during the allowable period, Petitioner shall be authorized to immediately suspend Respondent's license for a period of one (1) year without the necessity for further hearing. Section 509.261(3)(a), Florida Statutes.

RECOMMENDED this 7th day of April, 1980, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

ENDNOTES

1/ The Notice to Show Cause alleged that twenty-two (22) violations existed at the licensed premises on February 7, 1979. A copy of the notice is attached.

2/ In making the above Findings of Fact, the undersigned noted and considered Inspector Brown's testimony on cross-examination wherein there were minor inconsistencies pointed out in the details of the violations as cited in the Notice to Show Cause. However, an examination of the entire transcript reveals that Inspector Brown's testimony is, in the main, consistent and for that reason, it is therefore credited to the extent set forth herein.

COPIES FURNISHED:

Mary Jo M. Gallay, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Steven Jugo, Esquire

Suite 220, Biscayne Building

19 West Flagler Street Miami, Florida 33130

Anthony Ninos, Director

Division of Hotels and Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 79-000949

Orders for Case No: 79-000949