STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2427

)

LINCOLN FIELD LTD., d/b/a )

LINCOLN FIELD APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on July 24, 1981. The parties were represented by counsel:

APPEARANCES

For Petitioner: Janice G. Scott, Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Harold Zinn, Esquire and

Samuel Burstyn, Esquire

3050 Biscayne Boulevard, Eighth Floor Miami, Florida 33137

By notice to show cause dated November 10, 1980, petitioner alleged that, on October 23, 1980, respondent was in violation of various provisions of Chapter 509, Florida Statutes (1979), and rules promulgated thereunder, in haec verba:

1. 7C-1.04(1)--Failure to provide and recharge fire extinguishers in buildings:

   
   

   a) 2001-66 St. h) 2051-65 St.

   b) 2051-66 St. i) 2050-65 St.

   c) 2050-66 St. j) 2000-65 St.

   d) 6540-20 Ave. k) 6440-20 Ave.

   e) 2020-66 St. l) 6401-20 Ave.

   f) 6540-20 Ave. m) 2050-64 St.

   g) 2021-65 St.

   
   

2. 7C-1.04(4)--Failure to repair elec- tric wires on 2051-65 St. by apt. #3.

3. 509.221(2); 7C-1.04(3)--Failure to

provide public lights for premises. 2021

N.W. 65 St. (Most lights are broken).

4. 7C-1.03(1); 7C-1.04(7)--Failure to

secure door to 6380-20 Ave. in apt. #4.

1. 7C-1.03(1)--Failure to keep build- ing in good repair:

   1. a) 2030-68 St. secure vacant apts.

      1. Paint exterior walls.

   2. a) 2000-68 St. secure vacant apts.

      1. Repair door to Apt. #6.

   3. a) 2030-67 St. secure vacant apts.

   4. a) 2021-66 St. secure vacant apts.

      1. Paint exterior walls of building.

   5. a) Repair broken window on second floor South at 2050-66 St.

   6. a) 2020-66 St. secure vacant apts.

      1. Repair broken window to apt. #1.

   7. a) 6540-20 Ave. secure vacant apts.

   8. Repair window in apt. #7 and clean paint exterior walls at 2050-65 St.

   9. a) 2000-65 St. secure vacant apts.

      1. Secure apt where fire was.

      2. Repair window in apt. #8.

      3. Repair window arms in apt. #5. and #8.

      4. Repair kitchen cabinet in apt. #6.

      5. Replace door to bedroom in apt. #6.

   10. a) 6440-20 Ave. secure vacant apts.

   11. a) 6401-20 Ave. secure vacant apts.

       1. Repair door in apt. #6.

   12. a) 2051-64 St. secure vacant apts.

       1. Seal hole in rear of building.

   13. a) 2050-64 St. secure vacant apts.

       1. Seal hole in rear of building and repair rotten eveas [sic] at building 2051-64 St.

   14. a) Repair broken window in apt. #4 at 2021-63 St.

       
       

2. 7C-3.01(1)--Failure to repair water

   leak in vacant apts at 2030-68 St. and 2000-68 St.

   1. 2031-67 St. repair water leak on west side.

   2. 2000-65 St. repair plumbing (shower) and kitchen area in apt. #6.

   
   

3. 7C-1.03(3)--Failure to repair screen in apt. #4 at 2051-65 St.

a) Failure to repair screen in apt. #3 at 2050-65 St.

When this case was called for hearing, the parties stipulated that every violation alleged by petitioner did in fact occur; and stipulated that testimony adduced by respondent in Division of Hotels and Restaurants v. Lincoln Field,

Ltd., No. 80-2428, should be considered as if adduced in the present case. Those stipulations are the basis for the following

FINDINGS OF FACT

1. Respondent holds license No. 23-7743-H covering all the premises mentioned in the notice to show cause in the present case, and held this license on October 23, 1980. (Stipulation on the record (P. 11) in Case No. 80-2428)

   
   

2. On October 23, 1980, each violation alleged in the notice to show cause did in fact occur.

   
   

3. Respondent employs a full-time staff averaging eight to nine persons, who are responsible for maintenance at Lincoln Fields. Respondent's payroll expenditures for maintenance are somewhere around $75,000 to $80,000 a year. Maintenance supplies cost a like amount. In addition, an independent contractor who does painting is paid $11,000 or $12,000 annually, and an exterminator is paid about $15,000 a year. No money has been extracted by any owner or respondent from the operating revenues of the apartment complex for several years. The owners are holding on in hopes that HUD will finance a renovation. Jeffrey Harris, Jr., who is the maintenance foreman of Lincoln Field Apartments, gets anything he needs from management to repair and maintain the premises. Sharon Marie Fleming is the office manager and bookkeeper for respondent. She was asked to correct the deficiencies noted by Mr. Brown on his October visit to the apartment complex. She made work orders to accomplish this and gave them to the foreman. She bought approximately 46 new fire extinguishers and caused other extinguishers to be reserviced. She paid for the 46 fire extinguishers in November with a check. Respondent's Exhibit No. 1. These fire extinguishers replaced 46 missing fire extinguishers. (R. 100) On April 13, 1981, respondent purchased an additional 41 fire extinguishers. No fire extinguishers were purchased between September 1, 1977, and November, 1980. Respondent has begun putting fire extinguishers inside apartments in an effort to prevent theft. Ordinarily leaky faucets are fixed on the same day Ms. Fleming's office receives a complaint, or on the following day.

   
   

4. Exterminators come every Monday to exterminate pests in part of the apartment complex. They spray each apartment once a month and have agreed to spray in between times, as needed. Respondent would incur no additional expense if a tenant should request extermination between monthly visits. Before the extermination contract that existed at the time of hearing was entered into, respondent had contracted with the other exterminators and its own personnel exterminated at one time. In January of 1981, respondent contracted with the current exterminator, because their previous exterminator had not eliminated the rat problem. The grounds people cut the grass once as week.

   
   

5. One company that worked on the sewage lines broke holes in the line in order to gain access. Since then, respondent's maintenance crew has installed regular "clean-outs" in the pipes and "straightened them out." People were stealing the metal screw-in-caps that fit into the pipe, so respondent started using caps made of PVC, which is much less valuable than brass.

   
   

6. Tenants "stealing" electricity sometimes results in exposed wires. After exposed electrical wiring in a meter room had been corrected, respondent's employees built new meter room doors, bought new locks, and locked the doors. Broken windows became so commonplace ("not just the tenants, everybody comes in and breaks the windows" R. 111) that respondent began replacing windowpanes with a plastic that does not break. Painters paint every day, grounds people work

   full time on the grounds. Some tenants had left appliances in stairwells. Respondent caused these to be cleared out by threatening those tenants with eviction.

   
   

   CONCLUSIONS OF LAW

   
   

7. Respondent conceded that it violated Section 509.221(2), Florida Statutes (1979), which requires that public lodging establishments be properly lighted, as well as the following provisions of rules promulgated by petitioner:

   
   

   1. Roofs, walls, ceilings, floors, stairs, steps, windows, transoms, shelves, fixtures, etc., shall be kept in good re- pair, clean and painted where applicable.

      * * *

      (3) Insects, vermin, rodents, ter- mites, etc., shall be kept exterminated. Rule 7C-1.03, Florida Administrative Code.

      (1) Fire Extinguishers (required for Class A fires--ordinary combustibles)-- There shall be one of the following types of fire extinguishers for each 3000 square feet or less of floor space on each floor and the maximum travel distance to the nearest fire extinguisher shall not exceed

      75 feet:

      1. 2 1/2 gallon soda acid fire extin- guisher

      2. 2 1/2 gallon pressurized water fire extinguisher

      3. 2 1/2 gallon pressurized anti- freeze fire extinguisher

      4. 2 1/2 gallon cartridge operated water fire extinguisher

      5. 2 1/2 gallon cartridge operated anti-freeze fire extinguisher

      6. 2 1/2 gallon foam fire extinguisher

      7. 4 lb. to 10 lb. ABC fire extin- guisher (with minimum rating of 2A-10BC)

      
      

      Note: Two of any of the above sizes

      of ABC extinguishers with 1A-10BC rating, may be used in place of one ABC with 2A-10BC rating.

      
      

      Fire extinguishers (required for Class

      B--Flammable Liquids-- grease, oil, etc. and Class C fires--Electrical)--In addition to the above (except when ABC extinguishers

      are used) there shall be a minimum of one

      5 lb. dry chemical extinguisher on each floor for each 100 feet of travel distance or less. Extinguisher must be placed so the minimum travel distance to the nearest

      5 lb. dry chemical extinguisher is not over

      50 feet.

      * * *

      In the event it is determined by the Direc- tor that it is impossible for a lodging establishment to maintain fire extinguishers in a public hallway or near the head of the stairs without repeated replacement because of vandalism and theft, thereby resulting

      in an undue burden of expense and hardship on the operator of the establishment, then pursuant to an order of the Director, the establisment [sic] shall maintain one ABC extinguisher of at least 2.75 lb. with a minimum rating of 1A-10BC in each apartment or room.

      
      

      Fire Extinguisher Installation: Extinguishers having a gross weight not exceeding 40 pounds shall be installed so that the top of the extinguisher is not more

      that five feet above the floor. Extinguishers having a gross weight greater than 40 pounds (except wheeled types) shall be so installed that the top of the extinguisher is not more than 3-1/2 feet above the floor. All extin- guishers shall be accessible to all tenants

      at all times.

      
      

      Fire Extinguisher Servicing:

      The following types of extinguishers

      must be recharged once every year or when used:

      Soda acid extinguishers Foam extinguishers

      
      

      Cartridge operated water extinguishers (weigh cartridge, check for internal corro- sion, change water, clean all parts)

      
      

      Cartridge opearted [sic] anti-freeze extinguisher (check anti-freeze, clean all parts)

      
      

      The following types of extinguishers must

      be subject to a complete maintenance inspec- tion of every six (6) months or recharged when necessary:

      Pressurized water extinguishers Pressurized anti-freeze extinguishers

      Pressurized dry chemical type extinguishers Carbon dioxide extinguishers

      Cartridge dry chemical extinguishers

      A standard State approved service tag must be attached to each extinguisher and per- son holding a valid State permit issued by the State Fire Marshal shall recharge or inspect the extinguisher and shall prepare the tag to include the information required

      by rule 5A-21.41 of the State Fire Marshal's rules.

      
      

      Fire Hose Maintenance:

      Inspections should be made every six

      1. months to assure that the hose is in proper position on the racks and that all of the equipment is place and in good condition. The hose should be removed and re-racked at least annually and new gaskets

         installed in the couplings, both at the hose valves and at the nozzles if necessary.

         Where couplings are polished, care should be taken to see that polish used does not touch fabric of hose.

         * * *

         1. Halls, closets, stairways, entrances, exists--Halls closets and stairways shall be kept free from obstructions and fire hazards. Halls, entrances and stairways must be clean, ventilated and well-lighted day and night

            and hall and stair runners kept in good con- dition. Handrails shall be installed on all stairways and guard rails around all porches and steps. Adequate means of exists from dining area and kitchen. All exit doors

            must swing outward and be equipped with auto- matic self-closing hardware. Exists shall

            be clearly marked with approved exit lights.

         2. Electrical wiring--To prevent fire or injury, defective electric wiring shall

      be replaced and wiring shall be kept in good repair. No extension cords shall be used.

      Only wall switch or approved pull cord is permitted in bathrooms. Sufficient electri- cal outlets shall be provided. Rule 7C-1.04, Florida Administrative Code.

      (1) Plumbing and drainage--All plumb- ing shall be properly installed and kept in good repair and plumbing and drainage shall be connected to lawful sewerage or adequate disposal system. Rule 7C-3.01, Florida Administrative Code.

      
      

      These conceded violations occurred on October 23, 1980.

      
      

8. Petitioner is authorized to "suspend or revoke the license of any public lodging establishment . . . that has operated . . . in violation of any of the provisions of . . . chapter [509] or the rules of the division." Section 509.261(1), Florida Statutes (1979); "In lieu of the suspension or revocation of licenses, [petitioner] may impose fines . . .[not to] exceed $500 for each offense." Section 509.261(2), Florida Statutes (1979). Because of respondent's substantial, if in some respects belated, efforts to meet its statutory and rule obligations, neither revocation nor suspension is appropriate in the present case.

RECOMMENDATION

It is accordingly, RECOMMENDED:

That petitioner impose a fine against respondent in the amount of three thousand, five hundred dollars ($3,500).

DONE AND ENTERED this 21st day of September, 1981, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1981.

COPIES FURNISHED:

Janice G. Scott, Esquire 725 South Bronough Street Tallahassee, Florida 32301

Harold Zinn, Esquire, and Samuel Burstyn, Esquire Eighth Floor

3050 Biscayne Boulevard

Miami, Florida 33137

R. B. Burroughs, Jr., Secretary Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 80-002427

Orders for Case No: 80-002427