STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-3825

)

MILTON C. FADER t/a FADER )

ROOMING HOUSE, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case in Fort Lauderdale on February 29, 1984. The issue is whether petitioner, Department of Business Regulation, Division of Hotels and Restaurants (the "Division"), should discipline respondent, Milton C. Rader ("Rader"), trading as Rader Rooming House (the "Rooming House"), for alleged violations of various Division rules.

APPEARANCES

For Petitioner: Thomas L. Barnhart, Esquire

Tallahassee, Florida

For Respondent: John E. Baker, Esquire

Belle Glade, Florida

At the hearing, Mr. Arnold L. Pergament testified for the Division. Rader and his maintenance supervisor, Tommy Williams, testified for Rader. The Division's Composite Exhibit 1, consisting of 18 inspection reports covering the period from February 27, 1981, through November 16, 1983, was received in evidence.

FINDINGS OF FACT 1/

1. The Rooming House.

   
   

   1. Rader Rooming House is a two-story rooming house for men, located at

      417 West Avenue A in Belle Glade, Florida. It has two bathrooms, with showers, on each floor. The tenants are agricultural workers who generally have little respect for the property or concern for maintenance and cleanliness of the property. At all times pertinent, Rader has held the Division's license control number 60-11-H for Rader's Rooming House.

      
      

   2. Rader employs Tommy Williams as a maintenance supervisor for the Rooming House and several other Rader properties not the subject of this proceeding. Williams routinely checks the Rooming House premises every other day for cleanliness and maintenance. In addition, he responds to specific

      complaints or problems as they are brought to his attention. However, actual maintenance work is performed primarily by maintenance assistants whom Williams hires. It is difficult for Williams to maintain good help; many maintenance assistants quit shortly after Williams has an opportunity to give them necessary on-the-job training.

      
      

   3. Rader also employs a landlady for the Rooming House. It is the landlady's responsibility to daily clean the bathrooms, sweep the halls, and clean the yard. Williams' maintenance assistants are instructed to check the landlady's work daily.

      
      

   4. Whenever a tenant moves, Rader has Williams clean the vacated room and get it ready for the next occupant. During 1983, the turnover of tenants at the Rooming House was greater than normal.

      
      

2. Fire Extinguishers.

   
   

   1. The Division charged that the fire extinguishers at the Rooming House were not maintained and that the glass on the first floor fire extinguisher box was broken.

      
      

   2. The fire extinguishers at the Rooming House are of he dry chemical type with a dial pressure indicator. They were purchased new in April, 1981. They bore no inspection tag at the time of routine inspections on June 25, 1981; October 5, 1981; and January 8, 1982, but Rader was not cited for a violation in the first two inspection reports and was cited for a minor violation in the third report.

      
      

   3. The fire extinguishers were inspected in May, 1982, and at least since the Division's annual inspection on July 6, 1982, have had maintenance tags reflecting the May 1982 inspection.

      
      

   4. On July 5, 1983, Rader was cited for having failed to have an annual inspection performed on the fire extinguishers. A reinspection on August 15, 1983, resulted in an inspection report certifying that previous violations had been corrected. But Inspector Pergament testified at final hearing that he intended to certify only that the alleged violations other than the alleged fire extinguisher violation had been corrected.

      
      

   5. As of October 24, 1983, Rader had not yet had maintenance inspections performed on the fire extinguishers. But by November 16, 1983, this had been done, and the fire extinguishers were tagged accordingly.

      
      

   6. Throughout the time period from July 6, 1983, through November 16, 1983, the pressure dial indicator on the fire extinguishers indicated that they were sufficiently pressure loaded and charged. No recharging was necessary at any time relevant to this proceeding.

      
      

   7. The glass panel on the first floor fire extinguisher box was not broken until after October 17, 1983. The box hangs in the middle of the first floor hallway wall. It is not recessed. The broken panel was on the side of the box opposite the wall on which the box hangs.

      
      

   8. Rader was first cited for the broken glass panel in the first floor fire extinguisher box when Pergament made an inspection on October 24, 1983. The broken glass panel was replaced by the time of the next inspection on November 16, 1983.

3. Cleanliness and State of Repair of Walls and Doors in Common Areas.

   
   

   1. Inspector Pergament first cited Rader for the need to repaint the front exterior of the Rooming House on April 4, 1983. (Interior hallway walls and doors also needed to be cleaned and painted and were specifically cited in a July 5, 1983 inspection report.) Also at that time, some screening was torn and/or missing. Those conditions persisted through reinspections on July 5, 1983, and August 1, 1983. Throughout this time, the Rooming House was no dirtier or in greater need of repair than other similar facilities in the Belle Glade area serving transient agricultural workers. Also, Rader was cooperative in working with Inspector Pergament to find a more lasting solution to these problems and made a genuine effort to solve them.

      
      

   2. Between August 1, 1983, and August 15, 1983, Rader had the sheetrock in the hallways replaced and repainted the walls and ceilings of the hallways and other surfaces as Pergament had indicated was necessary. Therefore, Pergament's August 15, 1983, inspection report indicated that all previously cited violations had been satisfactorily corrected. At the hearing, he explained that he had meant all previously cited violations other than the absence of maintenance tags on the fire extinguishers.

      
      

   3. By the time Pergament reinspected on October 3, 1983, the walls of the hallways and other areas again were dirty from the tenants' abuse, and Pergament again cited Rader for uncleanliness of those areas and their need for cleaning and repainting. This was not done as of Pergament's October 17 or October 24, 1983, inspections, but was done by Pergament's November 16, 1983, inspection.

      
      

4. Maintenance of Bathrooms.

   
   

   1. The Division has cited Rader for allegedly failing to maintain the public toilets at the Rooming House in sanitary condition, failing to keep them painted, and failing to designate them as either for men or for women.

      
      

   2. Rader was first cited for the need to repaint and repair the shower enclosures and wall of the four hall bathrooms in the Rooming House ads a result of Pergament's April 4, 1983, inspection. As previously mentioned, these bathrooms serve as the tenants' wash, shower, and bathroom facilities. The condition of these facilities was not unlike the condition of most other comparable rooming houses in the Belle Glade area serving transient agricultural workers. Nonetheless, Rader was very cooperative in working with Pergament to find a solution to the problem and made a genuine effort to solve the problem. Rader first had these facilities cleaned and repainted with a water-based paint which washed out. Rader then had each bathroom dried with alcohol for a day, then waterproofed the next day, and finally painted with white enamel the third day. The bathrooms were treated sequentially in this fashion. Since the bathrooms still got grimy relatively quickly, Rader later went through the same process, finishing with blue enamel.

      
      

   3. When Pergament inspected on July 5, 1983, and August 1, 1983, Rader's repainting had not yet begun, or the first repainting with white water-based paint had already washed out, since re-painting was still indicated at the time of those inspections. But by the time of the August 15, 1983, inspection, a repainting had been concluded and was still satisfactory to Pergament, who indicated that the violations had been corrected.

   4. By the time Pergament inspected again, on October 3, 1983, the conditions of the bathrooms had again deteriorated, and he again cited Rader for this. The condition was not yet corrected at the time of Pergament's October 17, 1983, reinspection. But by the time of Pergament's final inspection on November 16, 1983, the repainting process was complete and Pergament was satisfied.

      
      

   5. As for the designation of the bathrooms, this alleged violation was not cited until Pergament's October 17, 1983, inspection. And at the final hearing, there was no evidence that men and women resided at the Rooming House. Signs designating that one of the bathrooms was for men and the other for women on each floor were not in place by the time of Pergament's October 24, 1983, inspection but were in place by the time of his November 16, 1983, inspection.

      
      

5. Cleanliness of Premises.

   
   

   1. The Division has alleged that Rader failed to keep the premises clean and free of trash and rubbish. However, Pergament's October 3, 1933, inspection indicated that the cleanliness/drainage and garbage and refuse at the Rooming House were "OK." Rader also passed inspection in this area on October 17, 1983. In fact, Pergament's first citation in this area was as a result of his October 24, 1983, inspection. At that time, there was some discarded clothing and shoes in the hallway and trash had been accumulated under the back of the Rooming House. There was no evidence as to how long those items had been there.

      
      

   2. By the time of Pergament's reinspection on November 16, 1983, the premises had been satisfactorily cleaned up.

      
      

6. The Division's Enforcement Procedures.

1. Inspector Pergament requested a notice to show cause in his report of his October 24, 1983, inspection. The Notice to Show Cause was issued on October 28, 1983, alleging the violations that came on for final hearing in this case. The Notice to Show Cause also gave notice of an informal conference scheduled for November 17, 1983. The Notice of Informal Conference stated:

   
   

   [The informal conference is] to determine if you desire a full and formal administrative hearing or if you wish to stipulate to the charges. At that time, you may present any mitigating circumstances which may exist and you will have an opportunity to show that you have complied with all lawful requirements for the retention of your license.

   
   

2. In accordance with routine Division procedures, Pergament reinspected the Rooming House on the day before the informal conference and determined that all alleged violations had been corrected. Nonetheless, the Division proceeded with the informal conference for the purposes of accepting a stipulation from Rader and assessing a minimum civil penalty of $100, designed to cover the costs of the informal conference. If the informal conference had been canceled when the Division learned that all alleged violations had been corrected, there would he no costs to recover.

   
   

3. At the informal conference, contrary to the Notice of Informal Conference, Rader was not given a clear opportunity to present mitigating

   circumstances or to show that he had complied with all lawful requirements. He therefore invoked his right to a formal administrative proceeding in order to do so.

   
   

   CONCLUSIONS OF LAW

   
   

4. Section 509.261, Florida Statutes (1983), provides, in pertinent part:

   
   

   1. The division may suspend or revoke the license of any public lodging establishment or public food service establishment that has operated or is operating in violation of any of the provisions of this chapter or the rules of the division; such public lodging establishment shall remain closed while its license is suspended or revoked.

   2. In lieu of the suspension or revocation of licenses, the division may impose fines against licensees for such violations. No fine so imposed shall exceed

      $500 for each offense, and all amounts collected shall be deposited with the Treasurer to the credit of the Hotel and Restaurant Trust Fund.

      
      

      In this case, the Division alleges violations of certain rules.

      
      

5. The Division's first charge alleges a violation of Rule 7C-1.04(1), Florida Administrative Code. In pertinent part, Rule 7C-1.04(1) provides:

   
   

   Fire Extinguisher Servicing:

   The following types of extinguishers must be recharged once every year or when used The following types of extinguishers must

   be subject to a complete maintenance inspection of every six (6) months or recharged when necessary: . . . .

   A standard State approved service tag must be attached to each extinguisher and a person 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. (emphasis added.)

   
   

   The Division's rule does not require a complete maintenance inspection of pressurized, dry chemical type extinguishers (like those at Rader Rooming House) so long as the fire extinguishers are recharged when necessary. In this case, Rader's fire extinguishers were fully charged, and Rader was not in violation of the rule.

6. The Division's second charge alleges a violation of Rule 7C-1.03(1), Florida Administrative Code, which provides:

   
   

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

      
      

      Technically, Rader violated this provision and took quite some time to correct the violations. However, Rader had some valid excuses for the delay: (1) it is difficult to maintain a staff of trained maintenance assistants in the area where Rader Rooming House is located; (2) Rader's staff was kept unusually busy cleaning rooms vacated by tenants due to unusually high turnover in 1983; and

      1. the transient agricultural workers who reside at the Rooming House have little respect for the premises, making it difficult to keep the premises clean and maintained. In addition, while Rader's response was slow, he was cooperative and made a genuine effort to resolve the problems which resulted in these violations.

         
         

7. The Division's third charge alleged a violation of Rules 7C-2.02(1) and (2); and 7C-3.01(2), (3)(a) and (b). The scope of Rules 7C-2.02(1) and (2) includes the "use and occupancy, location, [and] maintenance . . . of every building or structure or any appurtenances connected or attached to such buildings or structures." However, Rules 7C-2.02(1) and (2) apply only to hotels, motels, and apartments, not to Rader's rooming house.

   
   

8. Rule 7C-2.02(3) applies to rooming houses like Rader's Rooming House. The Division did not charge Rader with a violation of that rule, but it alleged the conduct violative of the rule, and misidentification of the rule number did not prejudice Rader. See Fahrzad v. Department of Professional Regulation, 443 So. 2d 373 (Fla. 1st DCA 1993).

   
   

9. Rule 7C-2.02(3) provides, in pertinent part: "On each floor where sleeping accommodations are provided, there shall be at least one water closet for each sex . . . ." The Division did not establish that there is more than one sex in residence at Rader's Rooming House. Therefore, the evidence does not sustain a violation of the rule.

   
   

10. Rules 7C-3.01(2), (3)(a) and (b) provide:

    
    

    1. Public Restrooms.--There shall he installed public restrooms for each sex, properly designated and easily accessible to guests. Individual towels and metal or approved type container for used towels shall be furnished, or an adequate mechanical dryer shall be provided. They shall be maintained in a clean and sanitary condition.

    2. Guest Bathrooms.

    1. There shall be one properly ventilated and complete public bathroom for each sex on every floor for every fifteen

       (15) guests rooming on that floor not having access to private or connecting bathrooms. At least ten (10) foot candles of light shall be provided in each public bathroom. Public bathrooms shall have hot and cold running

       water, open front toilet seats and shower enclosures. The walls, ceilings and floors shall be kept in good condition.

    2. Private and connecting bathrooms shall provide at least ten (10) foot candles of light, hot and cold running water, open front toilet seats, and shower enclosures. The walls, ceilings and floors shall be kept in good condition.

    
    

    Of the above provisions, paragraph (3) applies; paragraph (2) does not. There was no proof of a violation of paragraph (3) because there was no proof that both men and women resided at the Rooming House.

    
    

11. Finally, the Division charged a violation of Rules 7C- 1.03(5) and (7) for alleged failure to keen the premises clean and free of trash and rubbish. Rules 7C-1.03(5) and (7) provide:

(5) Outside garbage receptacles shall be of adequate or nonabsorbent material, clean, water-tight and kept covered at all times with a tight-fitting cover. One such receptacle is required for each unit having cooking facilities.

* * *

(7) Premises, yards, alleys, etc., shall be kept clean, free of debris and properly drained.

There was no evidence concerning the adequacy of outside garbage receptacles, so no violation of paragraph (5) was proved. The evidence proved a technical violation of paragraph (7) on one occasion in that trash and rubbish had been accumulated beneath the Rooming House. The presence of discarded clothing and shoes in the hallway at the time of the October 24, 1983, inspection did not prove a violation of paragraph (7) because there was no proof as to how long those items had been there.

RECOMMENDATION

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

That the Division assess against Fader t/a Fader's Rooming House an administrative fine in the amount of $100.00.

DONE and ORDERED this 30th day of March, 1984, in Tallahassee, Florida.

J. LAWRENCE JOHNSON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-3575

FILED with the Clerk of the Division of Administrative Hearings this 30th day of March, 1984.

ENDNOTE

1/ Each of the parties' proposed findings of fact have been considered, and to the extent inconsistent with these Findings of Fact, rejected as either not supported by competent substantial evidence, contrary to the greater weight of the evidence, or irrelevant.

COPIES FURNISHED:

Thomas L. Barnhart, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

John E. Baker, Esquire

257 Southeast Avenue E Belle Glade, Florida 33430

Gary Rutledge Secretary

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

Sherman S. Winn Director

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

Docket for Case No: 83-003825

Orders for Case No: 83-003825