STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 01-3012

)

PALM HOTEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge ("ALJ") Daniel Manry conducted the administrative hearing in this proceeding on October 16, 2001, in Sarasota, Florida, on behalf of the Division of Administrative Hearings ("DOAH").

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Michael Diffley, President

Palm Hotel, Inc. 3409 Prudence Drive

Sarasota, Florida 34235

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated Florida Administrative Code Rules 61C-1.004(6) and (10) and 61C-3.001(7): by failing to maintain a path of egress unobstructed; by failing to maintain the plumbing system in good repair; by failing to maintain all building structural

components, attachments, and fixtures in good repair and clean and free of obstructions; and, if so, what penalties, if any, should be imposed pursuant to Section 509.261(1), Florida Statutes (2001). (All chapter and section references are to Florida Statutes (2001) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on February 14 2001. Respondent timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of one witness and submitted eight exhibits for admission in evidence. Respondent called no witnesses and submitted no exhibits for admission in evidence.

Respondent moved to dismiss the Administrative Complaint on the ground that the named Respondent, Palm Hotel, is not a proper party and that Petitioner failed to serve an indispensable party, Palm Hotel, Inc. The ALJ reserved ruling on the motion and instructed each party to provide the undersigned with supporting case law for their respective positions. Neither party provided supporting legal authority for its respective position. The motion is denied.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the Transcript of the hearing filed on November 5, 2001. Petitioner timely filed

its Proposed Recommended Order ("PRO") on November 16, 2001. Respondent timely filed its PRO on November 29, 2001.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating and inspecting public food service establishments defined in Section 509.013(5). Respondent is a public food service establishment located at 3409 Prudence Drive, Sarasota, Florida 34235 (the "licensed premises").

2. Petitioner conducted follow-up inspections of the licensed premises on: November 12 and 19, 1999, August 3 and September 8, 2000; and February 8, 2001. Each inspection revealed several failures to correct deficiencies in the initial inspections.

3. Respondent failed to correct blocked exits in the licensed premises. A chair at the rear exit blocked egress from the second level to the ground. A cabinet in the hallway for the air conditioning unit blocked the pathway to the top of the stairs. Blocked exits are critical violations because exits are essential to life safety.

4. Water leaked from the hand sink. Leaking water can precipitate mold, wood rot, and building repair.

5. Ceiling tiles were missing in the hallway. Ceiling tiles are components of fire safety and must be maintained in good repair.

6. The side unit of the hall was soiled with cobwebs and dust. An accumulation of the personal belongings obstructed ingress and egress.

7. The yard outside the licensed premises was littered with cans, bottles, bedding, bed frames, and a battery from an automobile. The accumulation of personal belongings is a fire hazard. Respondent failed to keep the licensed premises and surrounding areas clean and in good condition.

   CONCLUSIONS OF LAW

8. DOAH has jurisdiction over the subject matter and parties. The parties received adequate notice of the administrative hearing.

9. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Action and the reasonableness of any penalty to be imposed. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). Petitioner satisfied its burden of proof.

10. Rule 61C-1.004(6) requires Respondent to keep all building structural components, attachments, and fixtures in good repair, clean, and free of debris and flammables. Rule 61C-1.004(10) requires Respondent to maintain all means of access free of obstructions and fire hazards in a manner that permits unobstructed travel at all times. The rule requires Respondent to keep halls, entrances, and exits in good condition. Rule 61C-3.001(7) requires Respondent to keep yards, alleys, driveways, sidewalks, and other exterior portions of the licensed premises clean and free of debris, properly maintained, and mowed. Petitioner showed by clear and convincing evidence that Respondent violated relevant

portions of each of the foregoing rules.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Rules 61C-1.004(6) and (10) and 61C-3.001(7) and imposing a fine of $1,400.

DONE AND ENTERED this 8th day of January, 2002, in Tallahassee, Leon County, Florida.

______________________________ DANIEL MANRY

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2002.

COPIES FURNISHED:

Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Charles F. Tunnicliff, Esquire Assistant General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Michael Diffley, President Palm Hotel, Inc.

3409 Prudence Drive

Sarasota, Florida 34235

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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 01-003012

Orders for Case No: 01-003012