STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-3156

)

ERNEST SCHLEUSENER d/b/a )

PINEWOOD INTERNATIONAL )

APARTMENTS, )

)

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 January 19, 1983, in Fort Lauderdale, Florida. The parties were afforded leave through February 22,, 1983, to submit proposed memoranda supportive of their respective positions. Said memoranda was received and considered by the undersigned in preparation of this Recommended Order. The parties waived the thirty-day time requirement that a recommended order be submitted herein following the close of the hearing. 1/

APPEARANCES

For Petitioner: Daniel J. Bosanko, Esquire

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

For Respondent: Alan S. Fishman, Esquire

Scherer, Fishman & Carlton

2734 East Oakland Park Boulevard Ft. Lauderdale, Florida 33306

ISSUE

The issue involved herein is whether or not the Respondent 2/ is guilty of violations set forth hereinafter in detail as stated in the Second Amended Notice to Show Cause filed by Petitioner herein. If so, the secondary issue is what penalty, if any, should be assessed for such violations.

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant:

FINDINGS OF FACT

1. Robert C. Beiter, Sr. is the trustee and legal owner of the subject premises.

   
   

2. On July 24, 1981, Petitioner, through its sanitarian, Richard Bragg, made an inspection of the subject premises situated at 610 Northwest Seventh Avenue, Pompano Beach, Florida. The premises is a public lodging establishment and is licensed by the Division of Hotels and Restaurants under license no. 16-

   345 OH. During the inspection by Mr. Bragg, the following was observed:

   
   

   1. Fire extinguishers were overdue for

      service as indicated by the pressure gauges thereon or by the lack of service tags. Additionally, fire extinguishers were not kept or maintained on each floor at minimum distances of 75 feet apart.

   2. The general condition of the building revealed that paint was peeling from the walls, windows and doors were broken, the roof was leaking and there were missing window screens.

   3. The premises needed extermination for reaches and rodents.

   4. Public lighting in the stairways and walkways were not properly maintained in that the light fixtures were either not working or bulbs were missing.

   5. Covers were missing from various electrical outlets.

   6. Outside garbage dumpsters were not of sufficient size and placement for the 62 units in the premises, all of which had kitchen and cooking facilities. (See Petitioner's Exhibit No. 1)

   
   

3. Inspector Bragg made a second inspection of the subject premises in early September, 1981, and found no compliance with the previous inspections as cited in the July 24, 1981 report. A third visit was made by Mr. Bragg on October 28, 1981, and he found the premises in the same condition with the exception that the public lighting in the stairways was operable and found to be in compliance. Subsequent visits were made by Mr. Bragg on November 17, 1981, and approximately one year later on December 13, 1982, at which time he found the same conditions existed as his original inspection on July 24, 1981, with the exception that some painting had been done. (Petitioner's Exhibits 2, 3, 4 and 5).

   
   

   Respondent's Position

   
   

4. Respondent submitted extensive documentary evidence to the effect that substantial monies had been expended to repair or otherwise maintain the subject premises. Most of the documents submitted were for bills subsequent to the Petitioner's initial inspection on July 24, 1981. An observation of the hills submitted indicate that repairs were made to windows, screens, plumbing and roofing.

5. Harry A. Wright served as the office manager charged with the management of the subject property during 1981. Fire extinguishers on the subject premises are routinely inspected and replaced on an annual basis. Mr. Wright concedes that there are leaks in several of the units on the premises. However, a number of problems relating to the plumbing on the premises are caused by the high water pressure which forces leaks in the apartments.

   
   

6. Tenants relay their problems to the management by a telephone call to the management company. The dumpsters on the premises are emptied twice per week. The Respondent uses a maintenance crew to place heavy items in the dumpster on the premises. Respondent acknowledges and admits to a problem with the outside lighting, citing as cause, tenants breaking the bulbs or pilferage of lighting fixtures for their apartments. Respondent has made efforts to correct the most pressing problems initially, and efforts are ongoing to correct the remaining problems. (Testimony of Harry A. Wright).

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes (1981).

   
   

8. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

9. The subject premises is a public lodging establishment and has been issued license No. 16-3450H.

   
   

10. Section 509.261, Florida Statutes (1981) provides that the Division of Hotels and Restaurants may revoke or suspend the license of a public lodging establishment up to twelve (12) months, or impose a fine of up to five hundred dollars for each violation of Chapter 509 or the rules of the Division.

    
    

11. Rule 7C-1.04(1), Florida Administrative Code, requires that fire extinguishers be placed at least every 75 feet apart on each floor of a public lodging establishment. Such fire extinguishers must be of an approved type and must be inspected at least once a year, or six months, depending on the type used. Extinguishers must be recharged after use, or when necessary and evidence thereof must be reflected on service tags attached to the fire extinguishers giving evidence of such inspections. Evidence herein reveals that the fire extinguishers were not placed in the proper and necessary locations on the premises during the various times of inspections noted herein. Further, evidence reveals that the fire extinguishers that were present had not been recharged after use, and did not bear the required evidence of inspection.

    Based on the evidence adduced herein, Respondent violated Rule 7C-1.04(1), Florida Administrative Code.

    
    

12. Rule 7C-1.03(1), Florida Administrative Code, requires that roofs, walls, ceilings, floors, stairs and windows of a public lodging establishment be kept in good repair and painted. Evidence adduced herein reveals that the subject premises were in severe need of painting and numerous other problems existed, including a leaking roof, broken and missing screens, windows and doors, as well as holes in certain walls. Based thereon, Respondent violated Rule 7C-1.03(1), Florida Administrative Code.

13. Rule 7C-1.03(3), Florida Administrative Code, requires that insects and vermin be kept exterminated in public lodging establishments. While the Respondent submitted evidence of providing routine extermination service, inspections by Petitioner subsequent to July 24, 1951, reveal ,that rodents and roaches still infested the subject premises and Respondent thereby violated Rule 7C-1.03(3), Florida Administrative Code.

    
    

14. Rule 7C-1.04(3), Florida Administrative Code, requires that halls and walkways be kept well lighted in public lodging establishments. Respondent, based on the evidence adduced herein, violated this requirement by failing to maintain working light bulbs in said halls and walkways.

    
    

15. Rule 7C-1.04(4), Florida Administrative Code, requires that electrical wiring in public lodging establishments be kept in good repair in order to prevent fire and injury. Respondent, by failing to keep covers on the various electrical fixtures on the subject premises, violated Rule 7C-1.04(4), Florida Administrative Code.

    
    

16. Rule 7C-1.03(5), Florida Administrative Code, requires that each kitchen unit in a public lodging establishment be provided with an outside garbage container. Evidence introduced herein reveals that the Respondent failed to provide the adequate number of garbage containers for the subject premises and that condition continued in each succeeding inspection made by Mr. Bragg following his initial inspection on July 24, 1981. By such conduct, Respondent violated the provisions of Rule 7C-1.03(5), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent be assessed a civil penalty of $100 each for the six conditions found herein to be violations of the rules of the Division of Hotels and Restaurants. The total of these fines, $600, shall be paid within thirty (30) days of the date of the Petitioner's Final Order with funds made payable to the Treasurer of the State of Florida for credit to the Hotel and Restaurant Trust Fund. It is further RECOMMENDED that if said fine is not paid within such period, the Division of Hotels and Restaurants' license No. 16-34 SOB for the Pinewood International Apartments located at 610 Northeast Seventh Avenue, Pompano Beach, Florida, be suspended for twelve (12) months, or until reinstated for good cause shown by the Division of Hotels and Restaurants. 3/

RECOMMENDED this 14th day of July, 1983, in Tallahassee, Florida.

JAMES E. BRADWELL, 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 14th day of July, 1983.

ENDNOTES

1/ To the extent that the proposed findings, etc. are not incorporated in this Recommended Order, said proposed findings were deemed either irrelevant, immaterial or not otherwise supported by record evidence.

2/ Robert Beiter is the trustee of the subject premises.

3/ Respondent's evidence reflecting that numerous monies had been expended by the Respondent to maintain and otherwise remedy the violations reflected herein was considered by the undersigned in mitigation of the alleged violations.

COPIES FURNISHED:

Daniel J. Bosanko, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Alan S. Fishman, Esquire Scherer, Fishman & Carlton 2734 E. Oakland Park Blvd.

Ft. Lauderdale, Florida 33306

Mr. Sherman S. Winn Director

Division of Hotels & Restaurants 725 South Bronough Street Tallahassee, Florida 32301

Mr. Gary R. Rutledge Secretary

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

Docket for Case No: 81-003156

Orders for Case No: 81-003156