vs. ) CASE NO. 87-4484
Respondent. )
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 16, 1987, in Ocala, Florida.
For Petitioner: Lynne A. Quimby, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
The Petitioner, the Department of Business Regulation, Division of Hotels and Restaurants, issued an Emergency Order of Suspension and a Notice to Show Cause on October 12, 1987, requiring the Respondent, Harshada Nagda, d/b/a Egret Motel, to cease operation of the Egret Motel. This action was based upon allegations that an immediate, serious and continuing danger to public health existed at the Egret hotel.
Pursuant to the Notice to Show Cause, the Respondent was given the option of requesting an emergency hearing scheduled to commence at 10:30 a.m. on Friday, October 16, 1987, or requesting a hearing to be scheduled at a later date and for which at least 14 days notice would be given. The Emergency Order of Suspension and the Notice to Show Cause were served on the Respondent on October 13, 1987. The Respondent timely selected the option of requesting the emergency hearing scheduled for October 16, 1987.
At the final hearing, the Petitioner presented the testimony of Nathan Grossman, M.D., Jeffrey B. Bowen, William B. Dickson, Robert Wade Varnadore and David Lee Townsend. The Petitioner also offered 8 exhibits which were accepted into evidence.
The Respondent testified on her own behalf. The Respondent offered no exhibits.
The parties were given 10 days from the date of the final hearing to file proposed recommended orders. Only the Petitioner filed a proposed recommended order. A ruling on each proposed finding of fact contained in the Petitioner's proposed Recommended Order has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
Whether the Respondent's license for the Egret Motel should be suspended or revoked and whether a fine should be imposed upon the Respondent?
At all times relevant to these proceedings Harshada Nagda has been the holder of license 52-69H, a license for a public lodging establishment known as the Egret Motel (hereinafter referred to as the "Egret").
The Egret is located at 300 S.W. 18th Street, Ocala, Marion County, Florida.
There are five septic tanks on the property where the Egret is located. Three of those septic tanks have not created any problems during the period of time at issue in this proceeding.
As early as September 10, 1986, problems with two of the septic tanks and the waste disposal system of the Egret have bean experienced.
As a result of the problems with the Egret's waste disposal system, an Official Notice to Abate a Sanitary Nuisance was issued by the Marion County Public Health Unit on May 6, 1987. This Notice was hand delivered to the Manager of the Egret. The following violation was reported on the Notice: "An inspection on 9/10/86, 2/11/87, 5/5/87 disclosed the discharge of untreated or improperly treated human waste onto the ground surface."
On June 8, 1987, the Respondent signed the following letter to Mr. David L. Townsend, Environmental Health Director, Marion County Public Health Unit:
This letter shall serve as consent order that I will keep the existing septic tank system and drain field pumped and maintained until, [sic] January 1, 1988, by which time the existing buildings will be torn down and the new buildings will be hooked up to the City of Ocala Sewer System.
On October 5, 1987, the Marion County Public Health Unit received a complaint from a neighbor of the Egret about the sewage system.
On October 5, 1987, Robert Wade Varnadore, an Environmental Health Supervisor of the Marion County Public Health Unit, and William B. Dickson, an Environmental Health Specialist with the Petitioner, inspected the Egret property. They discovered raw, untreated sewage leaking onto the surface of the grounds of the Egret in three different places. The sewage from these locations ran along the surface of the Egret property toward the back of the property.
The ground around the leaks and the run off was saturated with effluent (human liquid waste), there was fecal material (human solid waste) and tissue paper in standing effluent and a bad odor permeated the area. The conditions were similar to those found on October 13, 1987, as described further, infra.
Mr. Dickson completed a Public Lodging Inspection Record on October 5, 1987, at the end of the inspection and gave it to Lenora Cox, who signed the Record as manager of the Egret. The Record reported a "Major" problem with "sewerage or disposal system" and indicated the following: "Failure to maintain an adequate and approved sewage disposal system as evidence [sic] by failing septic systems leaking raw sewage to the surface of the ground."
Mr. Varnadore reported the condition of the Egret on October 5, 1987, to Mr. Townsend and recommended that action be taken to close the Egret. Mr. Townsend and Mr. Varnadore then met with Nathan Grossman, M.D., Marion County Health Director. Dr. Grossman was informed of the present condition of the Egret and the history of the problem. Based upon this report, Dr. Grossman condemned the property by letter dated October 5, 1987, "as an imminent threat to the health, safety and welfare of the public."
On October 8, 1987, Mr. Dickson returned to the Egret and conducted an inspection. Mr. Dickson completed a Public Lodging Inspection Record. A copy of the Record was given to Al Cox, who signed the Record as "manager" of the Egret. Mr. Dickson noted the following -major" problems in the following general categories at the Egret: Electrical deficiencies, proper locking devices, building repair/painting; toilet/lavatory facilities, household furnishings, plumbing, ventilation, garbage and refuse, sewerage or disposal system, room rates posted and smoke detector. The specific problems discovered by Mr. Dickson were noted on a sheet of paper which has been accepted into evidence as exhibit 4. Mr. Dickson's description of the specific problems at the Egret in exhibit 4 is hereby adopted as a correct characterization of problems existing at the Egret.
Among the problems existing at the Egret on October 8, 1987, was the failing sewerage at the same locations noted during the October 5, 1937, inspection of the Egret.
As a result of the inspection on October 8, 1987, Mr. Dickson requested an emergency order closing the Egret.
On October 13, 1987, Mr. Varnadore, Mr. Dickson and Mr. Townsend went to the Egret and served an Emergency Order of Suspension and a Notice to Show Cause.
The Emergency Order of Suspension orders the suspension of the Respondent's license until the Order is lifted or a Final Order is issued pursuant to the Notice to Show Cause. The Emergency Order also ordered the Respondent to cease and desist from the sale or rental of lodging units at the Egret.
The Notice to Show Cause notified the Respondent that the Petitioner may assess a civil penalty against her or suspend or revoke her license with the Petitioner based upon the condemnation by the Marion County Public Health Unit of the Egret, the condition of the sewage system of the Egret on October 3, 1987, and other problems noted by Mr. Dickson as a result of his October 8, 1987, inspection. The Notice to Show Cause also notified the Respondent that, if she wished to contest the charges against her, she could inform the Petitioner that she intended to attend an emergency hearing scheduled to commence on October 16, 1987, or she would be given at least fourteen days notice of a final hearing to be conducted at a later date in accordance with Section 120.57(1), Florida Statutes.
At the time that the Emergency Order of Suspension and the Notice to Show Cause were served, nine pictures were taken on the property of the Egret reflecting the condition of part of the Egret's sewage system. The conditions reflected in the pictures are representative of the conditions in existence on October 5, 1987. Sewage was found to be leaking to the surface in at least three locations. There were exposed and broken pipes connecting the sewage system to the Egret, standing effluent and saturated ground, floating tissue paper and fecal matter.
If a hotel has raw sewage on the ground and people are on the property, those people are in danger. Anyone coming into contact with human waste can contract hepatitis, a liver disease, or any number of other diseases.
Although the Respondent indicated that the problem with the sewage system had been corrected, the weight of the evidence fails to support such a finding of fact. The Respondent indicated that she believed that the problem discovered with the sewage system in October had been caused by excessive rain and roots clogging the system. She indicated that the roots had now been cleared. Removing roots, however, will not stop broken pipes from leaking and the evidence failed to support a conclusion that the system will not fail again when it rains or otherwise.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1986 Supp.).
Section 509.261, Florida Statutes (1985), provides the Petitioner with the following authority:
The division may suspend or revoke the license of any public lodging 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.
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,...
(3)(a) No license shall be suspended under this section for a period of more than
12 months....
(4) The division may suspend or revoke the license of any public lodging establishment. when:
(b) Such establishment has been condemned by the local health authority for failure to meet sanitation standards or the premises have been condemned by the local authority because the premises are unsafe and unfit for human occupancy.
The Respondent's license was suspended by Emergency Order of Suspension pursuant to Section 509.261(4)(b), Florida Statutes (1985), quoted above. The Petitioner now seeks a suspension pursuant to Section 509.261(1), Florida Statutes (1985), for certain alleged violations of statute and rule and a fine pursuant to Section 509.261(2), Florida Statutes (1985), for certain other alleged violations.
In its proposed recommended order, the Petitioner has argued that several of the problems found to exist at the Egret constitute violations of statutes and rule for which suspension of the Respondent's license is warranted under Section 509.261(1), Florida Statutes (1985). The first problem alleged in the Emergency Order of Suspension and Notice to Show Cause is the allegation that the drainfield or septic tank system of the Egret had failed. The Petitioner contends that this is a violation of Sections 509.221(1) and 386.041(1)(b), Florida Statutes, and Rules 7C-3.00l(1) and 10D-6.046, Florida Administrative Code. The evidence proved that the sewage treatment system at the Egret has failed.
The failure of the Respondent's sewage system constitutes a violation of Rule 7C-3.0O1(1), Florida Administrative Code, which provides:
All plumbing shall be properly installed and kept in good repair and plumbing and drainage shall be connected to lawful sewerage or adequate disposal system.
The Respondent's sewage system was not maintained in compliance with this rule of the Petitioner. The severity of this violation of the Petitioner's rules alone is sufficient to justify suspension of the Respondent's license.
The failure of the sewage treatment system, however, does not constitute a violation of Sections 509.221(1) or 386.041(1)(b), Florida Statutes, or Rule 1OD-6.046, Florida Administrative Code, for purposes of suspending the Respondent's license under Section 509.261(1), Florida Statutes (1985). Section 509.261(1), gives the Petitioner suspension authority if the licensee has violated "this chapter [Chapter 509] or the rules of the division.
. . ." Section 386.041(1)(b), Florida Statutes (1985), is not a part of Chapter 509, Florida Statutes. Additionally, Section 386.041(1)(b), merely defines nuisances injurious to health for purposes of the Department of Health and Rehabilitative Services' authority to seek removal of such nuisances. Rule 10D- 6.046, Florida Administrative Code, is likewise not a part of the "rules of the
division... Finally, Section 509.221(1), Florida Statutes (1985), cannot be relied upon in this proceeding as grounds for the suspension of the Respondent's license because the Petitioner failed to prove that Respondent was ever given notice as required by that Section.
The Petitioner has also alleged the following violations of its rules and Chapter 509, Florida Statutes, warrant suspension of the Respondent's license:
Failure to maintain electrical wiring in good repair in units, in violation of Rule
7C-1.004(4), FAC.
Failure to install a bolt, chain, or built in locking device on outside doors, in violation of Section 509.211(1), F.S. and Rule 7C-1.004(7), FAC.
Failure to maintain plumbing, inclusive of, but not limited to, the tubs lavatories and toilets in good repair, in violation of Section 509.221(2), F.S. and Rule 7C- 3.001(1), FAC.
Failure to maintain furnishings in good or clean condition, in violation of Section 509.221(5), F.S. and Rule 7C-3.001(9), FAC.
g. Failure to maintain outside garbage dumpster closed at all times when not in use, in violation of Rule 7C-3.001(12), FAC.
i. Failure to maintain smoke detectors in good working condition in units, in violation of Section 509.215(1) and (4), F.S.
The evidence presented in this proceeding proved that the Respondent has committed the acts which formed the bases of the alleged violations quoted, supra. All of these violations except the "[f]ailure to maintain outside garbage dumpster closed at all times when not in use" also constitute violations of the Petitioner's rules and/or provisions of Chapter 509, Florida Statutes, as alleged by the Petitioner. The violations of these rules and provisions of Chapter 509, Florida Statutes, when taken as a whole, are sufficient to warrant suspension of the Respondent's license.
The Respondent's failure to keep the garbage dumpster closed is not a violation of Rule 7C-3.001(12), Florida Administrative Code. Rule 7C-3. 001 (12)
, Florida Administrative Code, provides the following:
Trash receptacles shall be of leakproof non-absorbent material. The lid must be tight-fitting.
This Rule does not require that the lid of trash receptacles be kept on at all times. Instead, it sets out the requirements for the material which must be used for trash receptacles and the design of the lid.
In addition to seeking suspension of the Respondent's license, the Petitioner seeks the imposition of a $500.00 fine pursuant to Section 509.261(2), Florida Statutes (1985), based upon the following alleged violations:
b. Failure to maintain walls in clean condition, in violation of Rule 7C-1.003(1), FAC.
f. Failure to properly ventilate bathrooms, in violation of Section 509.221(2), F.S.
h. Failure to post current rates in all units, which coincide with those on file with the Division, in violation of Section 509.201(1), F.S. and Rule 7C-3.002(1) and (2), FAC.
Rule 7C-1. 003 (1) , Florida Administrative Code, requires the following:
Roofs, walls, ceilings, floors, stairs, steps, windows, transoms, shelves,
fixtures, etc., shall be kept in good repair, clean and painted where applicable.
The evidence proved that the Respondent failed to keep the walls of two units (numbers 20 and 38) painted. The extent of this violation was not, however, proved by the Petitioner.
Section 509.221(2), Florida Statutes (1985), requires, in pertinent part, the following:
Each public lodging establishment .
shall be properly. . . ventilated and shall be operated with strict regard to the health, comfort, and safety of the guests. . . such proper ventiliation or cooling shall be construed to mean at least one door and one window in each room.
The evidence proved that the Respondent failed to properly ventilate the bathroom in four units (numbers 1, 6, 11 and 12). Those bathrooms each had one window but it was inoperable.
Section 509.201(1), Florida Statutes (1985), and Rule 7C-3.002(1) and (2), Florida Administrative Code, require that the Respondent post the rental rates of units in the units and that the posted rates coincide with the rates filed with the Petitioner. The evidence proved that the Respondent violated these provisions. The extent of the violation was not, however, adequately proved by the Petitioner.
Although the Petitioner proved that the alleged violations had been committed by the Respondent, the Petitioner failed to prove that these violations warrant the imposition of the maximum fine of $500.00 for each violation.
RECOMMENDED that the Respondent's license number 52-69H be suspended for a period of 12 months for violating Sections 509.211(1) and 509.215(1), Florida Statutes (1986 Supp.), Section 509.221(2) and (5), Florida Statutes (1985), and Rules 7C-1.004 (4) and (7), and 7C-3.00l(1) and (9), Florida Administrative Code. It is further
RECOMMENDED that a total fine of $500.00 be imposed on the Respondent for violating Sections 509.201(1), and 509.221(2), Florida Statutes (1985), and Rules 7C-1.003(1), and 7C-3.002(i) and (2), Florida Administrative Code.
DONE and ENTERED this 4th, day of November, 1987, in Tallahassee, Florida.
LARRY J. SARTIN
Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4484
The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
7. 17.
8. Irrelevant.
9. 17.
30 units." Although Dr. Grossman was asked about a 30 unit facility he specifically indicated that his conclusion about the Egret had nothing to do with the size of the facility.
14. 5.
15. 6.
16. 3 and 19.
17-19. Irrelevant.
Van B. Poole, Secretary The Johns Building
R. Hugh Snow, Director
Division of Hotels and Restaurants Department of Business Regulation The Johns Building
Lynne A. Quimby, Esquire Department of Business Regulation The Johns Building
