Judges: DIANE A. GRUBBS
Agency: Department of Business and Professional Regulation
Latest Update: Apr. 30, 1986
Summary: Whether respondent's license should be disciplined for the violations alleged in the Notice to Show Cause.Respondent was fined because of his failure to display license in conspicuous place, fire extinguisher had no service tag, and plumbing was not in good repair.
85-4314.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF HOTELS AND RESTAURANTS, )
)
Petitioner, )
)
vs. ) Case No. 85-4314
)
ASHER S.A. PADEH, )
D/b/a LANDON APARTMENTS, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing in this cause was held on March 5, 1986, in Miami, Florida, before Diane A. Grubbs, a hearing officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Thomas A. Klein, Esquire
Staff Attorney
Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Asher S. A. Padeh
832 Lincoln Road
Miami Beach, Florida 33139 and
c/o Ladon Apartments 2217 Normandy Drive
Miami Beach, Forida 33139 ISSUE
Whether respondent's license should be disciplined for the violations alleged in the Notice to Show Cause.
BACKGROUND
By Notice of Show Cause dated November l, 1985, petitioner charged respondent with several violations of Chapter 509 and the rules of the Division of Hotels and Restaurants.
Respondent filed a request for cancellation of the informal conference that had been scheduled, stating that the violations had been corrected. The request was treated as a request for a formal hearing pursuant to sections 120.57(1), Florida Statutes. The matter was referred to the Division of Administrative Hearings for further proceedings on December 17, 1985.
At the hearing, petitioner presented the testimony of three witnesses, and petitioner's Exhibits 1-7 were admitted into evidence. Respondent presented the testimony of two witnesses.
Petitioner timely filed proposed findings of fact and conclusions of law, and a ruling on each of petitioner's proposed findings of fact has been made in the appendix to this order. The respondent did not file proposed findings of fact or conclusions of law.
FINDINGS OF FACT
The respondent; Dr. Asher S.A. Padeh d/b/a Ladon Apartments, currently operates under license number 23-5073H. The Ladon Apartments is located at 2217 Normandy Drive, Miami Beach, Florida.
On September 16, 1985, the petitioner conducted an inspection of the Ladon Apartments. At this time the following conditions were noted: (a) there was no proof that the fire extinguishers had been serviced the tags were missing (b) the clean out plug in the rear of the apartments had been removed to alleviate indoor plumbing problems, and effluent was all around the area (3) a refrigerator was located outside the apartments
(4) the state operational license had not been posted.
As a result of the inspection, Dr. Padeh was sent a notice which stated, "WARNING Minor and/or major violations in the operation of your establishment must be corrected by 10 days from notice." The notice explained what had to be done to remedy the situation.
On October 7, 1985, petitioner conducted a call back inspection of the premises. None of the violations had been corrected. However, there was no evidence presented to show
that this inspection occurred after ten days from receipt of the notice. Although Dr. Padeh received the notice sometime in late September or early October, insufficient evidence was presented to find that respondent received it ten days before the inspection of October 7, 1985.
On or about November 1; 1985, petitioner issued a Notice to Show Cause which alleged that respondent was in violation of various statutes and rules based on the conditions noted on September 16, 1985, which remained uncorrected on October 7, 1985. An informal hearing was scheduled for November 19, 1985. 1/
On November 9, 1985, Dr. Padeh completed the Request for Hearing form attached to the Notice to Show Cause. Under the statement "Disputed issues of fact", Dr. Padeh referred to the four violations alleged stating, "They have all been corrected since."
On November 15, 1985, another inspection of the apartments revealed that the only condition that had been corrected was that the refrigerator had been removed from the premises.
On February 17, 1986, petitioner conducted another inspection, due to the impending hearing in this cause, and found that all of the problems had been corrected.
Mr. Delgado, the manager of the Ladon apartments, testified that he tried to fix everything as soon as possible after being informed of the violations. He explained that the clean out plug had to be replaced several times because the tenents would remove it everytime it was replaced. As of the date of the hearing, the clean out plug had been permanently affixed. The fire extinguishers always had been properly serviced, but the tags had been removed or had blown away. The tags are now taped on and the extinguishers are protected from the wind. The refrigerator outside the building had been taken out of an apartment, and its door had been removed. The city had been called to pick it up, but it took the city a couple of weeks before they came and removed it. The state license is now posted over the mailboxes.
Although Mr. Delgado explained why the problems existed and what he had ultimately done to correct them, there was no evidence presented that would explain or justify respondent's failure to have all the violations corrected prior to the November inspection.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
The Division of Hotels and Restaurants of the Department of Business Regulation (Division) has the duty to carry out the provisions of Chapter 509 and all other laws relating to the inspection or regulation of public lodging establishments. Section 509.032, Florida Statutes. The
Division may suspend or revoke the License of any public lodging establishment that has violated any of the provisions of Chapter
509 or rules of Division or, in lieu of suspension or revocation, may impose fines against the licensee not to exceed
$500 for each offense. Section 509.261(1) and (2), Florida Statutes.
Rule 7C-1.02(1), Florida Administrative Code, requires that the license of a public lodging establishment be displayed in a conspicuous place. Rule 7C-1.04(1), Florida Administrative Code, provides that a state approved service tag must be attached to each fire extinguisher. Rule 7C-3.01(1), Florida Administrative Code, requires all plumbing to be kept in good repair and all drainage to be "connected to lawful sewerage or adequate disposal system." Respondent was operating in violation of these rules on September 16, 1985, and had not corrected these violations by the time of the inspection on November 15, 1986, despite respondent's assertion that all violations had been corrected.
Rule 7C-1.03(7), Florida Administrative Code, provides that "[p]remises, yards, alleys, etc. shall be kept clean, free of debris, and properly drained." Keeping an unused refrigerator on the premises for several weeks is a violation of the rule's requirement that the premises and yards be kept free of debris. However, by the terms of the notice issued as a result of the September 16th inspection, respondent was given ten days from receipt of the notice to correct this violation. The refrigerator had been removed at the time of the November 15th inspection, and there was insufficient evidence presented to conclude that the refrigerator had not been removed within ten days of receipt of the initial notice. Therefore, respondent should not be penalized for this violation.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is
RECOMMENDED that a Final Order be entered finding that respondent violated rules 7C-1.02(1), 7C-1.04(l)and 7C-3.0l(l), Florida Administrative Code, and assessing a fine of $200 for each of the violations, for a total amount of $600.
DONE and ENTERED this 30th day of April, 1986, in Tallahassee, Florida.
DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1986.
ENDNOTE
1/ The informal conference never took place. When a request for a formal hearing is received five days before an informal conference is scheduled, the informal conference is cancelled. Dr. Padeh's "Request for Cancellation of Conference" was treated as a request for a formal hearing.
COPIES FURNISHED:
Thomas A. Klein, Esquire Staff Attorney
Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, Florida 32301
Asher S.A. Padeh 832 Lincoln Road
Miami Beach, Florida 33139 and
c/o Ladon Apartments 2217 Normandy Drive
Miami Beach, Florida 33139
James Kearney, Secretary Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, Florida 32301
R. Hugh Snow, Director
Division of Hotels and Restaurants Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, Florida 32301
APPENDIX
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
Rulings On Proposed Findings of Fact Submitted by the Petitioner 1.-2. Accepted in paragraphs 1-2.
Accepted in paragraphs 4 and 7.
Accepted in paragraph 5, except as to the date issued.
First sentence accepted in paragraph 8, remainder accepted generally in paragraph 10.I
Docket for Case No: 85-004314
Orders for Case No: 85-004314
| Issue Date |
Document |
Summary |
|
Apr. 30, 1986 |
Recommended Order
|
Respondent was fined because of his failure to display license in conspicuous place, fire extinguisher had no service tag, and plumbing was not in good repair.
|
