STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 97-5184

)

THOMAS C. BIRKHEAD, d/b/a )

CENTURY CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this case was heard by the Division of Administrative Hearings, through its Administrative Law Judge David M. Maloney. Final hearing commenced April 2, 1998, and continued on April 3, 1998, in Viera, Florida. As part of the hearing, the testimony of Dorothy Joyce, Director of the Division of Hotels and Restaurants, was taken by telephone conference call on April 21, 1998. The hearing concluded on June 30, 1998, in Viera.

APPEARANCES

For Petitioner: Scott R. Fransen

Chief Assistant General Counsel Daniel Biggins, Attorney Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

For Respondent: Thomas C. Birkhead, pro se

Century Center

1615 North Atlantic Avenue Cocoa Beach, Florida 32931

STATEMENT OF THE ISSUES

Whether the Division of Hotels and Restaurants has authority to charge Respondent with the violations alleged in Particulars 1, 2, and 4 of a Notice to Show Cause issued in this case on August 4, 1997? If so, whether on June 12, 1997, Respondent was in violation of those particulars? Finally, whether the Division's Order of Emergency Suspension issued to Respondent on June 13, 1997, should be sustained?

PRELIMINARY STATEMENT

On November 5, 1997, The Division of Administrative Hearings received a letter dated November 4 from Nancy C. Waller, Deputy General Counsel at the Department of Business and Professional Regulation. The letter made reference to DBPR Case No. 04-97-208 and DABT License No. 15-04110-H, and a case styled, Department of Business and Professional Regulation, Division of Hotels and Restaurants vs. Thomas C. Birkhead.

Attached to the letter were a Notice to Show Cause (the "1993 Notice to Show Cause") issued by the Division of Hotels and Restaurants on November 12, 1993, in Case No. 04-93-241 and a Request for Hearing from Respondent with regard to Case No. 04- 97-208.1 Administrative Law Judge Mary Clark was designated to conduct the proceeding and final hearing was set for February 2, 1998. At the joint request of the parties, final hearing was reset for April 2, 1998. In the meantime, the undersigned was designated to conduct the proceeding in place of Judge Clark.

As noticed, final hearing was conducted on April 2 and 3, 1998, in Viera, Florida. The hearing was continued until

June 30, 1998. In the interim, the testimony of Dorothy Joyce, Director of the Division of Administrative Hearings, was taken by telephone conference on April 21, 1998.

At final hearing, Petitioner presented as part of its case- in-chief the testimony of Mark Fischer, Fire Marshal for the City of Cocoa Beach; Clifford Warwick, Derrick Fritts, Daniel O'Nell, and Chet Cole. Petitioner offered thirteen exhibits, Petitioner's Exhibit Nos. 1-13, all of which were admitted into evidence.

Respondent presented the testimony of John Pfister, Jack Moline, Ralph Villers, Raymond Melvin, Walter C. Bowman, and Director Joyce. Respondent also testified in his own behalf. Respondent's Exhibit Nos. 1 through 11 and 13 through 15 were offered and admitted into evidence. Respondent's Exhibit No. 12, represented to be an affidavit but not signed under oath, was offered but ruled inadmissible.

In rebuttal, Petitioner presented the testimony of Michael McCaughin and Kendall Burkett. At the close of hearing, of the twelve "particulars" in the 1997 Notice to Show Cause charging Respondent with various violations, the Division dismissed all but three: those numbered 1, 2 and 4.

The rebuttal testimony was taken on June 30. A court reporter was not present at the June 30 portion of the hearing

but the testimony was videotaped. The videotaped testimony was transcribed later by a court reporter and filed on July 24, 1998, with the Division of Administrative Hearings. The transcript of Director Joyce's testimony was filed with DOAH on May 13, 1998, and the transcripts of the portions of the hearing conducted April 2 and April 3, 1998, were filed April 28 and April 22,

1998, respectively.

Proposed recommended orders on the three remaining particulars were received by both parties in a timely manner on August 13, 1998.

FINDINGS OF FACT

1. The Parties

   
   

   1. The Division of Hotels and Restaurants in the Department of Business and Professional Regulation (the "Division") is the state agency responsible for licensing and regulating public lodging establishments in the State of Florida. Among its general duties are to "carry out all of the provisions of [Chapter 509, Florida Statutes] and all other applicable laws and rules relating to the inspection or regulation of public lodging establishments . . . for the purpose of safeguarding the public health, safety and welfare." Section 509.032(1), Florida Statutes.

   2. Thomas C. Birkhead, until sometime shortly after June 13, 1997, was the holder of license number 15-04110 H, a license issued by the Division. The license authorized

      Mr. Birkhead to operate at 1615 North Atlantic Avenue in Cocoa Beach, Florida, a public lodging establishment classified as a nontransient rooming house. [Originally licensed as a "transient rooming house, Class H-5, the classification was changed to "non- transient rooming house, Class H-10, on November 22, 1993. (Petitioner's Exhibit No. 13, paragraph 3.f.) Although the Division did not favor the record with a copy of Mr. Birkhead's latest license, the evidence established that the license in existence at all times material to the charges in this proceeding was for a "non-transient" public lodging establishment.] Since the establishment was known as Century Center, the license was issued to Mr. Birkhead "d/b/a Century Center." (Petitioner's No. 3, pg. 1 of 5.) Mr. Birkhead was served an Order of Emergency Suspension (the "Emergency Order") on June 13, 1997, which had the effect of closing Century Center. Less than two months later, Mr. Birkhead was served a notice to show cause dated August 4, 1997. The notice was in the same case in which the emergency order had been issued the June before. In the meantime, Mr. Birkhead voluntarily surrendered the license.

      Sometime after the surrender of his license and the commencement of final hearing in this case, the time for renewing the license (had it not been surrendered) expired. Of course, having surrendered the license, Mr. Birkhead has made no attempt to renew it.

2. Four Years Earlier

   1. Four years, more or less, before Mr. Birkhead surrendered his license, Mr. Birkhead was served (on November 16, 1993, to be precise) the 1993 Notice to Show Cause in the Division's Case No. 04-93-241. The notice alleged that on October 19, 1993, the licensee2 was in violation of "Florida Statute 509 and/or the Rules of the Division of Hotels and Restaurants, Florida Administrative Code," (Respondent's No. 4) in three particulars:

      1. NFPA 101(91) 17-3.6.2 Each guest room door that opens into an interior corridor shall have a fire protection rating of at least 20 minutes.

         VIOLATION: Failure to provide fire rated door and guest room opening into an interior corridor, ie., guest doors are residential type, hollow core doors.

         
         

      2. NFPA 101(91) 17-3.6.3 Each guest room door that opens into an interior corridor shall be self-closing. . .

         
         

         VIOLATION: Failure to provide self-closing doors or self-closing hardware on guest doors opening into an interior corridor.

         
         

      3. NFPA 101(91) 17.2.2.3 Stair shall comply with NPFA 101.5-2.2 NFPA 101(91) 5-2.2 Stairs NFPA 101(91) 5-2.2.4.1 Guards. Means of egress such as stairs, landings, balconies, corridors, passageways . . . more than 30 inches above floor or grade. Below shall be provided with guards to prevent falls over the open side.

         
         

         NFPA 101(91) 5-2.2.4.6(c) Open guards shall have intermediate rails or an ornamental pattern such that a sphere 4 inches (10.1 cm) in diameter cannot pass through an opening.

         
         

         VIOLATION: Failure to provide rail guards of such construction to prohibit the passage of a 4 inch sphere.

         (Respondent's Exhibit No. 4.)

         
         

      4. Within a week of the service of the 1993 Notice to Show Cause, Frederick N. Fluty, a management review specialist with the Department of Business and Professional Regulation, wrote in a memorandum internal to the Department that "[a]fter reviewing this case and talking to the State Fire Marshal's office, I have concluded that we do not have a case." Respondent's Exhibit

         No. 3.

      5. With regard to the first two of the particulars,

         
         

         Mr. Fluty drew his conclusion on the basis that they applied to transient establishments. Although Century Center was licensed as a transient establishment at the time, Mr. Fluty wrote in the memorandum, "[t]his is a non transient apartment house that is licensed as a transient, as evidenced by [a] statement from Kendall Burkett and the inspector." Id.

      6. With regard to the third particular concerning the guardrails, Mr. Fluty concluded that an exception from the "4 [inch] sphere" requirement for "existing open guards," id., applied to the cited guard rails at Century Center.

      7. At the time of Mr. Fluty's memorandum, Kendall Burkett was a Sanitation and Safety Supervisor whose office was in Orlando. Mr. Burkett was assigned to the Division's District IV, the district that includes Cocoa Beach and the location of Century Center. Mr. Burkett disagreed with Mr. Fluty's assessment of the case against the Century Center.

      8. To that end, on November 29, 1993, Mr. Burkett submitted a memorandum through his supervisors, Chet Cole, Sanitation and Safety Administrator and Bobby Bickley, Acting Bureau Chief, to Don Conn, Acting Director of the Division. In the memorandum, Mr. Burkett agreed that he had indicated to Mr. Fluty that although licensed as a transient rooming house, the occupancy of Century Center was, in fact, non-transient. But Mr. Kendall asserted that, "I indicated to Mr. Fluty that the requirements

         for the three cited violations were the same regardless of transient/nontransient occupancy classification." Petitioner's Exhibit No. 13.

      9. Mr. Burkett, moreover, in the memorandum, pointed out that Mr. Fluty's request for dismissal of two of the particulars was his perception that the codes did not apply because the lodging was nontransient. Yet, this request "ignored the Life Safety Code requirement for rooming houses. NFPA 101(91) 20-1.1. identifies rooming houses as either '. . . transient or permanent basis . . .' and further instructs that 'If sleeping accommodations for more than 16 people are provided, the occupancy should be classified as a hotel.'" Id.

      10. With regard to the third particular as to the guard rails, Mr. Burkett challenged Mr. Fluty's assessment. "Mr. Fluty was unaware of, or ignored the provisions of Life Safety Code NFPA 101(91) 1-7.4 entitled Changes of Occupancy, in this case a change from business to hotel occupancy. Further, Mr. Fluty apparently assumes (wrongly) that enterprises may switch from one occupancy to another without regard to any change in life safety requirements based on prior approvals of original occupancy."

          Id.

          
          

      11. In the portion of the memorandum under the heading, "DISCUSSION", Mr. Burkett wrapped up his arguments for proceeding against Century Center as follows:

          Mr. Fluty, by referring to the establishment as 'nontransient' infers (wrongly) that the

          requirements for fire rated doors and self closures on doors opening into an interior corridor, and the requirements for balcony railing guards, differ for transient and nontransient lodging establishment [sic]. Apparently Mr. Fluty is unaware of, or has ignored the provisions of NFPA 101 (91) 18-

          3.6.2 & 19-3.6.1 & 1803.6.3 & 19-3.6.2 & 18-

          2.2.3.2 & 19-2.2.3.1 wherein the requirements for nontransient establishments are defined as exactly the same as those for transient establishments.

          
          

          (Petitioner's Exhibit No. 13).

          
          

      12. Despite Supervisor Burkett's best efforts, the case on the 1993 Notice to Show Cause "did not proceed." (Tr. 29).

          Mr. Burkett did not have an explanation for why the case was dropped. Respondent's understanding was that the 1993 notice to show cause was dismissed.

      13. In the ensuing years, Mr. Birkhead made no changes to Century Center material to this proceeding. For most of those years, the Division did not take action against Mr. Birkhead on the basis of the violations alleged in the 1993 Notice to Show Cause to have existed on October 19, 1993.

      14. In mid-1997, the Division's attitude changed. In June and August of that year, the Division issued an Order of Emergency Suspension and served a second notice to show cause on Mr. Birkhead respectively, for violations at Century Center in Division Case No. 04-97-208. In sum and substance, all three of the particulars dismissed by the Division in 1993, are contained in the Emergency Order and the 1997 Notice to Show Cause, the charging documents in this case, Division Case No. 04-97-208.

3. The Charging Documents in Case No. 04-97-208

   
   

   1. The Emergency Order

      
      

      1. The Order of Emergency Suspension served June 13, 1997, found as facts that "continued operation of [Century Center] presents a severe and immediate threat to public health, safety or welfare . . . [and] [i]mmediate closure . . . is the only method by which the Division can act to protect the public health, safety or welfare." (Petitioner's Exhibit No. 3, p. 2 of 5.)

      2. A lodging inspection report attached to the order listed the following, among others, as "critical violations" requiring closure of the facility:

         There is no fire alarm system in the 2 story bldg with all interior egress.

         
         

         There are currently Battery powered smoke detectors in each room, no log is being kept, & units inspected were not operating.

         
         

         Each room with interior egress only, does not have a secondary means of egress for each room[.] Window in the rooms are approx 1 ft x 2 1/2 ft & only open approx 30 [degrees].

         
         

         Internal corridors have no fire integrity. The minimum must be a 1 hour rating. A/C units have transfer grills penetrating the corridors these must be removed.

         
         

         There is not emergency lighting in the entire building (with all interior egress).

         Emergency lighting is required.

         
         

         Petitioner's Exhibit No. 3, Exhibit A, pages 2 and 3 of 5. The Comments Sheet of Exhibit A to the Order of Emergency Suspension concluded, "[t]his facility is deemed unsafe & must comply with

         all local Fire and Building Codes prior to having the license reinstated."

      3. Although paragraph 7., of the Emergency Order promised service of a Notice to Show Cause "with the service of this [o]rder," (Petitioner's No. 3, pg. 4 of 5) it was not until August 4, 1997, that there was issued in Case No. 04-97-208, a Notice to Show Cause (the "1997 Notice to Show Cause.")

   2. The 1997 Notice to Show Cause

1. The 1997 Notice to Show Cause (NTSC) contained twelve particulars of violations. In light of these particulars,

   Mr. Birkhead was instructed to show cause why his license should not be suspended or revoked or "have an administrative fine assessed." (Petitioner's Exhibit No. 7.)

2. Following the Division's dismissal at the close of the hearing of nine of the particulars (those numbered 3 and 4-12) three particulars, (numbered 1, 2, and 4), remain viable and require findings of fact in this order:

   *1. *01-5 NFPA 10, 4-4.1

   Extinguisher shall be subjected to maintenance, not more than one year apart . . .

   
   

   *2 *04-5 NFPA 101, 19-3,4,4,1 & 633.025(11)FS

   Non-transient lodging establishments: Each non-transient lodging establishment shall be protected by the installation of single station smoke detectors powered by the building electrical supply installed in such a way as to provide a clear signaling to the sleeping areas. Battery powered smoke detectors are permitted in those establishments that are three stories or less

   in height with direct access to the outside, from each living unit.

   
   

   *4 *06-5 NFPA 101, 17-3.6.2

   Each guest room that opens onto an interior corridor shall have a fire protection rating of at least 20 minutes.

   
   

   [and]

   
   

   *06-6 NFPA 101, 17-3.6.3

   Each guest room door that opens onto an interior corridor shall be self-closing and shall meet the requirements of NFPA 17-3.6.2.

   
   

   (Petitioner's Exhibit No. 7.)

   
   

3. The notice alleges that each of these three particulars recite violations which existed when the premises were subject to a routine inspection by Inspector Derrick B. Fritts. Finished on June 13, 1997, the inspection began on the day before, June 12, 1997.

   d. June 12, 1997

   
   

4. On June 12, 1997, Derrick Benjamin Fritts had been an inspector with the Division for approximately 2 and 1/2 to 3 months. Century Center was not the first inspection of a public lodging establishment conducted by Inspector Fritts. Nonetheless, at the time, Fritts was clearly a "new inspector." (Tr. 77-78.)

5. "Century Center is to be inspected twice a year via its normal inspection frequency." (Tr. 78.) Inspector Fritts, therefore, was conducting the inspection because it "[j]ust came up on [his] account." Id.

6. When he arrived at the premises, Fritts was able to obtain access to the interior through the back, at the building's second story entrance. As he conducted the inspection, Inspector Fritts noticed numerous violations. The comment sheet attached to the inspection report cites 24 violations ranging from beer bottles in the stairwells to fire and building code violations which posed a "severe and immediate threat to the tenants housed in [the] establishment." Petitioner's No. 4, Comments Sheet,

   1. 5 of 5.

      
      

7. Among the violations found by Inspector Fritts were the ones contained in Particulars 1, 2 and 4 of the 1997 Notice to Show Cause. First, as charged in Particular 1, a portable fire extinguisher on the second floor had a service tag bearing a date beyond its one-year service date. Second, as charged in Particular 2, the smoke detector in Room 214 did not work when tested. (The 1997 Notice mistakenly listed the room number as 24.) Furthermore, it was battery powered and not connected to the building's electrical supply. Third, as charged in Particular 4, the guest room doors that opened onto interior corridors were not self-closing.

8. Inspector Fritts was unable to determine whether the same doors cited for not being self-closing were in violation for not having a fire protection rating of at least 20 minutes, the second charge contained in Particular 4. (That charge, however, was confirmed to the inspector by the Cocoa Beach Fire Marshal

   when he informed him that the doors were not "fire-rated doors.") (Tr. 84.)

9. In view of the severity of the problems, particularly those related to fire hazard, Inspector Fritts requested the assistance of the Cocoa Beach Fire and Building Departments. The inspection was continued, moreover, to the next day because Inspector Fritts recommended that Century Center be closed. As a matter of policy, his supervisor was called in to verify the need for closure. His visit, too, occurred the next day.

   1. The Next Day

      
      

10. On June 13, 1997, Daniel R. O'Nell, an employee of the Division and a supervisor for Brevard, Indian River and St. Lucie Counties, visited Century Center in order to verify that closure of the facility, as recommended by Inspector Fritts, was justified.

11. Mr. O'Nell observed and verified that the violations for which Mr. Fritts had recommended closure did, in fact, exist. He also determined that the violations were critical to public health and safety.

12. In addition to observing the problems with the fire extinguisher, the smoke detectors and the non-self closing nature of the doors, Supervisor O'Nell sought the consultation and advice of the local fire marshal particularly with regard to the fire-rating of the doors.

13. Mark Fischer is, and in June of 1997 was, the fire marshal for the City of Cocoa Beach. After assisting Inspector Fritts on June 12, 1997, at the Century Center, Fire Marshal Fischer requested a follow-up visit on the thirteenth with

    Mr. Birkhead, "to do a complete inspection and research a little bit more about the building, the use, [and] the code requirements". (Tr. 40.)

14. Characterizing the Century Center on June 12 as a "hotel," the fire marshal had found a number of serious problems including the stairwell's lack of a one-hour fire rating, and lack of emergency lighting and a proper fire alarm system. He had determined therefore on June 12 that Century Center, "is unsafe to operate as a hotel per Life Safety Code." (Petitioner's Exhibit No. 1.)

15. In the time between his June 12 visit and the June 13 "call-back," the Fire Marshal was unable to conclude that the Century Center was classified by the City of Cocoa Beach as a hotel. He therefore researched the Life Safety Code "based on the license that [Mr. Birkhead] had from the State, which was for twenty-five units . . . and . . . applied the Life Safety Code to that, which met the requirement for hotel because it was more than sixteen units."

16. In addition to confirming that the doors did not have a twenty-minute fire safety rating, Fire Marshal Fischer concluded that whether a hotel or a rooming house, Century Center was

    "unsafe for human habitation as a public lodging." (Petitioner's Exhibit No. 2.) He, moreover, requested "strongly . . . that this establishment be closed immediately as an immediate threat to the safety of the occupants or public." Id.

17. In his testimony, Fire Marshal Fischer supported his view of immediate threat to public safety posed by Century Center. He did so, in part, by providing physical descriptions of parts of the Century Center building.

    1. Century Center: a Building at Risk

       
       

18. The Century Center building was purchased by

    
    

    Mr. Birkhead in 1992. Originally used as commercial offices, it was converted to a roominghouse with all the units for guests on the second floor of the two-story building. Although Mr.

    Birkhead has never allowed sixteen or more of its rooming units to be occupied at any one time (in fact, the absolute maximum that could ever be used as rental units for public lodging is twelve), the building is licensed for 25 units. All twelve of the units that can be used, some of which have more than one bed, are furnished. In the two years prior to service of the emergency order in this case, more than half of the guests were occupants of Century Center for less than 30 days. Whether the establishment should be classified as transient or non-transient, however, it is licensed as a non-transient rooming house. (See Finding of Fact No. 2, above.)

19. The interior partitions of the two-story building are "wood frame, drywall construction," (Tr. 390), with plaster, the floors, "concrete slab construction." Id. The cavity spaces within the walls, that is between the studs, are used as "plenum for return, to return and supply air," (Tr. 391) for the air conditioning system. The Fire Marshal referred to the building's structure and support systems as "unprotected construction," (Tr.

    63) because of the building's potential to become an inferno quickly following a fire (even if small) anywhere in the building.

20. For example, if a fire were to break out on the first floor, because the building is unprotected, (Tr. 63) smoke and flame would be pushed into the hallway. "[F]ire naturally travels up and out [so, a fire] will push [smoke and flame] into the hallway, into the corridor . . . . [s]ome [smoke and flame will] penetrate through the [ceiling] which will allow [the fire] to go into the rooms on the second floor." (Tr. 63, 64.)

21. The potential for conflagration is complicated by the central air conditioning system.

    The air conditioning system appears to be common for the floor. There are penetrations through the sleeping rooms into the hallway. I believe the hallway works as a return plenum. [The a/c system] is . . . common

    . . . for the building. Each room [in other words] does not have [its] own air conditioning unit.

    (Tr. 64.) Fire on the first floor, therefore, would not only push up and out, breaking into the second floor but it would

    sweep through the air conditioning's ducts and the plenum inside the walls. It would be pumped through the entire building, moreover, by the fan in the air pump. The entire building would be quickly engulfed in flame leaving little time to react to an alarm.

22. The speed with which the building would burn is not the only nor the main problem for an occupant of a room in the event of a fire. The building's central danger posed to occupants in the case of fire was described by Fire Marshal Fischer at hearing:

    1. he most critical issue is there is only one way in and out of a unit. The windows on the wall are not operable. They are not egress windows. They are not something that somebody can use as an alternative exit to get out of the building. Every other issue in this situation or in this case relates to that because th[e] lack of that protection forces the [occupants] to use the corridor to exit, which is not a rated corridor; it's not protected. It can result in a delay of notification of the occupants. Therein is the fire alarm issue.

       
       

       The code does allow certain exceptions, but most of those relate to a sprinklered building. This building doesn’t have fire sprinklers. So from a residential standpoint

       -- and I don't care whether it's a hotel or a single-family residence, the building is lacking in those basic safety items that

       
       

       (Tr. 50.)

       would make it occupiable for sleeping purposes.

       
       

       1. The Emergency Closure

          
          

23. At all times material to this case, Dorothy W. Joyce was Director of the Division of Hotels and Restaurants. When she received word that Cocoa Beach fire officials believed that there was an immediate threat to public safety posed by the Century Center's lack of fire protection, she asked that fire department put the opinion in writing.

24. A letter from the fire department was faxed to Director Joyce stating that the facility posed an immediate danger. Assured that there was, in fact, an immediate danger to public safety posed by the facility and that Division procedures for issuing an emergency order of closing had been followed, Director Joyce ordered that the facility be closed. The Order of Emergency Suspension was served the evening of the same day Director Joyce gave to her subordinates the order to close the facility: June 13, 1997.

    1. Aftermath of the Closure

    
    

25. Mr. Birkhead ceased operating upon receipt of the emergency order. The Division posted signs on the property that stated the building was closed. Mr. Birkhead requested removal of the signs and was told by Division employees that they could only be removed upon surrender of his license. In turn, he surrendered the license.

26. Once a public lodging establishment is closed by the Division, "the law requires us to go back within 24 hours and do an additional inspection to determine if those violations have been corrected and if the facility is in a condition to be reopened." (Testimony of Director Joyce, Tr. 34.) If an establishment is not allowed to reopen as the result of the Division's re-inspection, then at any time that an owner requests a re-inspection, one will be conducted by the Division as soon as it has an inspector free to do it.

27. In this case, the position of the Division on any re- opening3 is that Century Center cannot reopen until the Fire Marshal for the City of Cocoa Beach indicates that the dangers posed by the building in case of fire have been remedied. The position of the Division was succinctly stated by Supervisor O'Nell in response to a question from Mr. Birkhead at hearing:

    1. here's no way we're going to reinstate your license without the city fire marshal giving the blessing that you have complied with all lodging requirements in that building.

       
       

       We made our closure based on the city fire marshal. Why would we reopen [Century Center] without his approval.

       
       

       (Tr. 129.)

       
       

28. For his part, Mr. Birkhead answered Mr. O'Nell's criticism with testimony of what he had done to bring the facility into compliance. Soon after the closing, Mr. Birkhead wrote at least six letters to the City Fire Marshal to find out

    what he needed to do to the building in order to receive approval for re-opening. Within a week of either the first such letter or the closing, Mr. Birkhead was furnished by the fire marshal with a "list of write ups." (Tr. 328.) But his other letters went unanswered.

29. Mr. Birkhead believed the City Manager told the Fire Marshal that no one from the City should deal with Mr. Birkhead but the City Attorney. When Mr. Birkhead contacted the City Attorney by letter or personally, the City Attorney complained of being "in this loop." (Tr. 331.) Mr. Birkhead's attorney wrote a letter to the City Attorney asking that he deal directly with Mr. Birkhead. The result of this communication tangle was summed by Mr. Birkhead,

    But the City still would not do it. They wouldn't talk to me. They wouldn't return my phone calls or they wouldn't take my letters, or they wouldn't return my letters if I sent them through their City Attorney.

    
    

    (Tr. 331, 332.)

    
    

30. It is Mr. Birkhead's belief that the City will not communicate with him because it wants to obtain, by purchase or condemnation, the site of Century Center for use as a fire house or police station. He further postulates that as long as the property is not in use, it is devalued from its "true" worth, that is, its value when operating.

31. The City, therefore, in his view, will not render any assistance to him for bringing the building into compliance with

    fire codes because it is in the City's financial interest not to do so.

32. Century Center remains closed to this day.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction

       
       

33. Whether the Division of Administrative Hearings has jurisdiction in this case is problematic since both the Emergency Order and the Notice to Show Cause which initiated the proceeding were directed at a license when, in fact, there is not a license at stake in the proceeding.

34. Mr. Birkhead has moved to dismiss the proceeding. The Division of Hotels and Restaurants counters that it would accede to dismissal but points out that Mr. Birkhead requested the hearing and his request would have to be withdrawn before it would be proper for Mr. Birkhead, as the petitioner, to move to dismiss. Mr. Birkhead has refused to do so until the Division rescinds its order of emergency suspension and retracts the 1997 notice to show cause.

35. The Division attempts to dispel this standoff by reference to Section 509.241(1), Florida Statutes, which states, in pertinent part, "If any license expires while administrative charges are pending against the license, the proceedings against the license shall continue to conclusion as if the license were still in effect." The parties agree that Mr. Birkhead's license was in existence at the time the emergency order was served, that is on June 13, 1998.4

36. In its proposed recommended order, the Division also points out that Section 509.261, Florida Statutes, confers certain powers upon the division with regard to public lodging establishments "operating without a license." As has been made abundantly clear in this proceeding, however, Mr. Birkhead has not operated since he surrendered his license. Section 509.261(1), Florida Statues, further states:

    Any public lodging establishment . . . that has operated . . . in violation of this chapter or in violation of the rules of the division, . . . may be subject by the division to:

    
    

    1. Fines not to exceed $1,000 per offense;

       
       

    2. Mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program; and,

       
       

    3. The suspension, revocation, or refusal of a license issued pursuant to this chapter.

    
    

    There is no license to suspend or revoke at this point, given its surrender. Mr. Birkhead is not seeking issuance of a license so that any refusal to issue one is not pending at present. That leaves only two results left to be reached: a fine or mandatory attendance at an educational program. The Division has not suggested that Mr. Birkhead attend an educational program.

    Indeed, its proposed recommended order asks only that Mr. Birkhead, for violation of Particulars 1, 2, and 4 of the 1997 Notice to Show Cause, be fined $250 for each violation.

37. Despite the lack of a license at this point, the case is not moot since the Division of Hotels and Restaurants seeks to

    fine Mr. Birkhead for operating Century Center in violation of Chapter 509 and/or the rules of the Division. There is, therefore, a case or controversy pursuant to Section 509.261(1), Florida Statutes.

38. Furthermore, this proceeding was initiated by the Emergency Order of Suspension on June 13, 1998, a time when Mr. Birkhead's license was still in existence. Mr. Birkhead would not have surrendered his license had the emergency order not been issued and had the Division not posted closed signs on the premises. The Division of Administrative Hearings, therefore, has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.57 and 509.241, Florida Statutes, to determine two matters: first, should Mr. Birkhead be fined for the violations alleged in the 1997 Notice to Show Cause; and, second, should the Order of Emergency Suspension be Sustained.

    1. Applicable Law

       
       

39. There is no question that Century Center was operated as a "public lodging establishment," as that term is defined in Section 509.013(4)(a), Florida Statutes:

    [A]ny group of units, dwelling, building, or group of buildings within a single complex of buildings, which is rented to guests more than three times in a calendar year for periods of less than 30 days or 1 calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented to guests

    Nor is there any doubt despite the Fire Marshal's initial treatment of the establishment as a hotel, that Century Center, when it was operated by Mr. Birkhead, as Mr. Burkett suggested in his 1993 memorandum, met the definition of roominghouse found in Chapter 509, Florida Statutes:

    A roominghouse is any public lodging establishment that may not be classified as a hotel, motel, resort condominium, nontransient apartment, bed and breakfast inn, or transient apartment under this section. A roominghouse includes, but is not limited to, a boardinghouse.

    
    

    Section 509.242(1)(f), Florida Statutes. What is not entirely clear from the record, however, is whether Century Center was a transient or non-transient public lodging establishment. The issue is important because the classification as transient or non-transient is critical to whether the Division has authority to bring the charges remaining after dismissal of Particulars 3 and 5 through 12 in the 1997 NTSC: Particulars 1, 2, and 4.

    1. The Division's Authority with Regard to Firesafety

       
       

40. The Division's direct authority with regard to firesafety in the public lodging establishment law, Chapter 509, Florida Statutes, is found in Section 509.215, Florida Statutes. But that provision applies only to buildings "of three stories or more," or buildings "over 75 feet in height that ha[ve] direct access from the guest area to exterior means of egress," Paragraphs (a) and (b), respectively, of Section 509.215(1), Florida Statutes. The Century Center is only two stories and it

    does not have direct access from the guest area to an exterior means of egress. None of the other provisions in Section 509.215 operate so as to make the "direct" Chapter 509 firesafety authority of the Division applicable to this case.

41. The Division does have other authority and responsibilities, however, with regard to firesafety via a cross- reference to Chapter 633, Florida Statutes, the enactment of the legislature pertaining to firesafety in general in the State of Florida. First, Section 509.211, Florida Statutes, obligates the Division to notify the local fire authority or the State Fire Marshal "of any major violation of a rule adopted under chapter 633 which relates to public lodging establishments . . .". Subsection (2) of Section 509.211, Florida Statutes. It also empowers the Division to "impose administrative sanctions for violations of these rules pursuant to s. 509.261 . . .". Id.

42. The rules which apply to public lodging establishments "adopted under Chapter 633," refer to the uniform firesafety standards established by the Department of Insurance. (The Department of Insurance is responsible for developing such standards because the head of the department is designated as the State Fire Marshal, Section 633.01(1), Florida Statutes.)5 In Section 633.022, Florida Statutes, the legislature determined that "to protect the public health, safety and welfare it is necessary to provide for firesafety standards governing the

    construction and utilization of certain buildings and structures."

43. These rules are found in Chapter 4A-43, Florida Administrative Code, entitled "Uniform Fire Safety Standards for Transient Public Lodging Establishments." (e.s.) The denomination of the chapter as standards for "Transient" establishments is in keeping with the statute. Among those listed in Section 633.022(1) as building 8 for which the department is mandated to establish such standards are "transient public lodging establishments." Section 633.022(1)(b), Florida Statutes. Conspicuously absent (in the context of this case) from the list of buildings and structures required to be subject to the Department of Insurance and State Fire Marshal's Uniform Firesafety Standards are non-transient public lodging establishments. As applicable to transient establishments, Chapter 4A-43 adopts the Standards of the National Fire Protection Association. Rule 4A-43.017, Florida Administrative Code. (These standards were admitted into the record as a late exhibit filed by the Division after a post-hearing telephone conference with the parties.)

44. In contrast to standards applicable to transient establishments, authority for adopting firesafety standards applicable to non-transient public lodging establishments is found in Section 633.025, Florida Statutes. With the exception of minimum firesafety standards adopted pursuant to Section

    394.879, Florida Statutes, (not at issue here)6, the Department of Insurance is prohibited from adopting minimum firesafety standards.7 See Section 633.01(1), Florida Statutes. Minimum standards are left to the authority of local government: "Each municipality, county, and special district with firesafety responsibilities shall adopt minimum firesafety standard which shall operate in conjunction with the state minimum building code

    . . .". Section 633.025(1), Florida Statutes.

    
    

45. But the minimum standards adopted by local government are not "rules" as defined by Section 120.52(15), Florida Statutes, (that is, "agency statement[s] of general applicability") unless the local government meets the definition of "agency" found in Section 120.52(1)(c), Florida Statutes:

    Each other unit of government in the state, including counties and municipalities, to the extent they are expressly made subject to this act by general or special law or existing judicial decisions.

    
    

46. In this case, it was shown that the City of Cocoa Beach in Section 9-1 of its municipal code, adopted as part of its Fire Prevention Code "those certain codes known as the 1994 Standard Fire Prevention Code, promulgated by the Southern Building code Congress International, Inc., National Fire Protection Association, National Fire Codes,. . .". Petitioner's Exhibit No. 8. Included among the portions of the adopted fire code is "the NFPA 101, Life Safety Code, 1994 edition." Id. But no proof was offered that the City of Cocoa Beach is "expressly made

    subject to [the Administrative Procedure Act]." Section 120.52(1)(c), Florida Statutes. The minimum standards cited in the Particulars 2 and 4 of the 1997 Notice to Show Cause, that is, NFPA 101 provisions, therefore are not rules. Other than authority to impose administrative sanctions for a "major violation of a rule adopted under chapter 633 which relates to public lodging establishments," Section 509.211(2), Florida Statutes, the Division does not have authority to sanction for violations of other, non-rule adopted, standards. Thus, it is critical to determine whether the Century Center was operated as a transient facility, (in which case uniform standards adopted as rules by the Department of Insurance, come into play,) or as a non-transient facility, (in which case minimum standards adopted by the City of Cocoa Beach may be applicable, but which the Division has no authority to enforce.)

    1. Transient or Non-transient?

       
       

47. Whether the establishment should be classified as transient or non-transient was hotly contested by the parties. "'Transient establishment' means any public lodging establishment that is rented or leased to guest by an operator whose intention is that such guests' occupancy will be temporary." Section 509.013(10), Florida Statutes. No evidence was adduced as to Mr. Birkhead's intention with relation to his guests' occupancy except for Mr. Birkhead's testimony, enforced through argument at every opportunity throughout the proceeding, that the Century

    Center was a non-transient establishment. The Division countered with evidence that 53 of the center's 92 guests over the two years immediately preceding its closure were transients, that is guests who stayed less than 30 days. On the other hand, although a copy of the surrendered license was not introduced into evidence, other documents indicated that the license in effect at the time of the alleged violations was for a non-transient rooming house. If this classification was incorrect, the Division had plenty of time to rectify the classification after it became aware of the issue in 1993, the year Mr. Burkett reclassified the establishment from H-5, that is, a transient rooming house to H-10, a non-transient rooming house. It did not do so. For almost four years, the Division allowed Mr. Birkhead to operate under a license for an establishment classifying it as a non-transient facility.

48. In light of this history, the Division is estopped from now claiming that Mr. Birkhead's facility is a transient facility.

49. Since Century Center was licensed as a non-transient roominghouse, the Division has no authority to charge Mr. Birkhead with a violation of a provision of NFPA 10, one of the uniform firesafety standards adopted by the Department of Insurance pursuant to Section 633.022, Florida Statutes, because Section 633.022 applies only to transient public lodging establishments. Furthermore, Rule 4A-43.003, Florida

    Administrative Code, makes clear that the scope of the uniform rules includes only transient public lodging establishments as defined and "licensed by the Department of Business and Professional Regulation under Chapter 509, Florida Statutes,

    . . .". Mr. Birkhead is not licensed under Chapter 509 any longer. Thus part 1 in the 1997 NTSC must be dismissed. The reverse is true of NFPA 101 provisions, that is, minimum firesafety standards adopted by the City of Cocoa Beach. They are applicable to the Century Center, but they are not rules. The Division has no authority of which this Administrative Law Judge has been made aware to enforce non-rule standards adopted by local government under authority of Chapter 633, Florida Statutes. Thus particulars 2 and 4 must be dismissed.

50. Such an explanation solves the mystery of why the 1993 NTSC "did not proceed" against Mr. Birkhead. The notice to show cause (in all likelihood) was not prosecuted because Mr. Burkett changed the classification of Mr. Birkhead's license to that of a non-transient roominghouse. Once the establishment was classified as non-transient, the Division lost its authority to proceed against the license for any violations of minimum firesafety standards and therefore dropped its case against Mr. Birkhead based on the 1993 Notice to Show Cause.

51. At bottom, there is quite simply no authority cited by the Division of Hotels and Restaurants in this case to sustain its case on the basis of the 1997 Notice to Show Cause. The

    Division, therefore, may not fine Mr. Birkhead for violations charged in the 1997 Notice to Show Cause.

    1. The Emergency Order

    
    

52. The situation is quite different with regard to the Order of Emergency Suspension. Section 509.261(6)(b) provides that "[t]he division may fine, suspend, or revoke the license of any public lodging establishment . . . when . . . the premises have been determined by the division or local authority to be unsafe . . . for human occupancy." Acting in concert, the Division and the Fire Marshal of the City of Cocoa Beach determined that the Century Center in June of 1998, was not safe for human occupancy. The record in this case is replete with evidence that the Century Center was, indeed, not safe for human occupancy. In the case of a fire, the center would go up in flames quickly. Little opportunity would be left for its guests to escape through the only means of egress: out the door of their room into an interior corridor. Such an escape route is in the direction precisely opposite of a route guests would need to take in the event of fire, that is, from their rooms immediately to the outside. In simple terms, the guests at Century Center, if ever it were to erupt in flames, would find themselves trapped with no way to go but "out of the frying pan, into the fire," as unsafe a situation, from the point of view of fire safety, as can be imagined.

53. The Order of Emergency Suspension did not take any action against Mr. Birkhead other than to suspend his license. His license was not revoked, he was not put on notice that he could be fined. Given that Mr. Birkhead has surrendered his license, there is nothing else the Division can do to him in this case. Nonetheless, the Division has proven by clear and convincing evidence that its order of emergency suspension was justifiably issued. The Emergency Order should be sustained.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

1. That the 1997 Notice to Show Cause be DISMISSED; and,

   
   

2. That the Order of Emergency Suspension be SUSTAINED. DONE AND ENTERED this 1st day of October, 1998, in

Tallahassee, Leon County, Florida.

DAVID M. MALONEY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1998.

ENDNOTES

1 The 1993 Notice to Show Cause was submitted by mistake. The mistake was corrected during hearing when the Division introduced into evidence its Order of Emergency Suspension (Petitioner's Exhibit No. 3) and another Notice to Show Cause (Petitioner's

Exhibit No. 7) both part of Division of Hotels and Restaurants Case no. 04-97-208, the case which initiated this proceeding.

2 Bidder's Inc., trading as Century Center. Apparently, this licensee was the predecessor to Thomas C. Birkhead d/b/a Century Center. Mr. Birkhead must have been the principal shareholder of Bidder's Inc., or its Chief Executive Officer. It is assumed in this order that the previous licensee and the present licensee are alter egos since both parties appeared to litigate this case with such an understanding.

3 Of course, since Mr. Birkhead has surrendered his license, the premises are no longer licensed as any type of public lodging establishment.

4 Whether Mr. Birkhead's license was in existence at the time the 1997 Notice to Show Cause was issued, that is, in August of 1997, is not clear from this record. Mr. Birkhead testified that he surrendered his license some time after June 13, 1997, but did not give a date. A copy of Mr. Birkhead's surrendered, expired license was not introduced into evidence.

5 "The State Fire Marshal shall make and promulgate all rules necessary to implement the provision of [Chapter 633] which grant powers in impose duties on the State Fire Marshal and to effectuate and enforcement of such powers and duties." Section 633.01(1), Florida Statutes.

6 The provision governs crisis stabilization units and residential treatment facilities set up under "The Community Alcohol, Drug Abuse and Mental Health Services Act," Chapter 394, Part IV, Florida Statutes.

7 "[T]he Department shall not adopt minimum firesafety standards, except to the extent required by Section 394.879. Section 633.01(1), Florida Statutes.

COPIES FURNISHED:

Scott Fransen, Esquire

Division of Hotels and Restaurants Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Thomas C. Birkhead

1615 North Atlantic Avenue

Cocoa Beach, Florida 32931

Dorothy W. Joyce, Director Division of Hotels and Restaurant Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-005184

Orders for Case No: 97-005184