STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case Nos. 02-1986

) 02-1987

INDIANA HOUSE, )

)

Respondent. )

________________________________) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case Nos. 02-2014

) 02-2015

ILLINOIS HOUSE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 31, 2002, in St. Cloud, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Robert Hafer

1221 12th Street

St. Cloud, Florida 34769 STATEMENT OF THE ISSUES

1. Whether Respondent Indiana House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 4A-48.003, 61C- 1.004(9)(b), 61C-1.004(11), and 61C-3.001(5), Florida Administrative Code, and, if so, what penalty should be imposed.

2. Whether Respondent Illinois House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 61C-1.004(5) and 4A-48.003, Florida Administrative Code, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On June 18, 2001, Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants (Department), issued an Administrative Complaint against Indiana House, alleging that Indiana House had violated Subsection 509.32(2)(b), Florida Statutes, and Rule 4A-48.003, Florida Administrative Code. Thomas J. Griffin, on behalf of Indiana House, requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings (DOAH) on May 15, 2002. The case was assigned DOAH Case No.

02-1986.

On March 13, 2002, the Department issued an Administrative Complaint against Indiana House, alleging that Indiana House had violated Rules 61C-1.004(9)(b), 61C- 1.004(11), and 61C-3.001(5), Florida Administrative Code.

Thomas J. Griffin, on behalf of Indiana House, requested an administrative hearing, and the case was forwarded to DOAH on May 15, 2002. The case was assigned DOAH Case No. 02-1987.

On March 13, 2002, the Department filed an Administrative Complaint against Illinois House, alleging that Illinois House had violated Rule 61C-1.004(5), Florida Administrative Code.

Thomas J. Griffin, on behalf of Illinois House, requested an administrative hearing, and the case was forwarded to DOAH on May 17, 2002. The case was assigned DOAH Case No. 02-2014.

On June 18, 2001, the Department filed an Administrative Complaint against Illinois House, alleging that Illinois House had violated Subsection 509.032(2)(b), Florida Statutes, and Rule 4A-48.003, Florida Administrative Code. Thomas J. Griffin, on behalf of Illinois House, requested an administrative hearing, and the case was forwarded to DOAH on May 17, 2002. The case was assigned DOAH Case No. 02-2015.

By Order dated May 29, 2002, the cases were consolidated for final hearing.

At the final hearing, Robert Hafer appeared on behalf of the Respondents, stating that Thomas Griffin, who owned the

properties at issue, had a family emergency and could not be present at the hearing. Mr. Hafer is employed by Mr. Griffin as House Manager for Indiana House and Illinois House. He represented that Mr. Griffin had given him permission to appear on behalf of Indiana House and Illinois House at the final hearing.

At the final hearing, Petitioner called Mary Katherine Creason and Joellen Beakman as its witnesses. Petitioner's Composite Exhibits 1 through 4 were admitted in evidence.

Mr. Hafer testified on behalf of Respondents. No exhibits were requested to be admitted on behalf of Respondents.

A one-volume Transcript of the final hearing was filed on September 9, 2002. Petitioner filed Petitioner's Proposed Recommended Order on September 16, 2002. Respondents did not file a proposed recommended order.

FINDINGS OF FACT

1. The Department is the state agency charged with regulating the operation of hotel establishments pursuant to Section 210.165 and Chapter 509, Florida Statutes.

2. Respondents, at all times material to these proceedings, have been licensed or otherwise subject to the Department's jurisdiction.

3. The last known business address of Indiana House is 1114 Indiana Avenue, St. Cloud, Florida. The last known

   business address of Illinois House is 820 Illinois Avenue, St. Cloud, Florida. Both Indiana House and Illinois House are transient rooming houses. The tenants pay rent for the rooms they occupy.

4. On January 26, 2001, an inspector for the Department inspected the Indiana House and noted numerous deficiencies, including a lack of a fire alarm system. The inspector returned to Indiana House on May 1, 2001, but was unable to get into the building. She made a call-back inspection on May 22, 2001, and found that certain violations had not been corrected, including the lack of a fire alarm system. On June 5, 2001, the inspector returned to Indiana House. No fire alarm panel had been installed, and the owner, Thomas Griffin, did not have keys to the property so the inspector did not have access to the building.

5. On February 12 and 18, 2002, an inspector for the Department inspected the Indiana House and found the following deficiencies: (1) a gang plug was being used in a bedroom,

   (2) wires were dangling from a fan light, (3) the air conditioner faceplate was missing, exposing the filters and coils, and (4) no service tag was on the fire extinguisher.

6. A gang plug is an adapter that is put into the electrical outlet on a wall so that more than one electrical plug can be used with that outlet. The gang plug found at

   Indiana House on the February 12 and 18, 2002, inspections would allow the use of six electrical plugs at one time.

7. On January 26, 2001, an inspector from the Department inspected Illinois House and found that there was no fire alarm system. Another inspection was made on May 1, 2001, and it was noted that the outside door was locked. A call-back inspection was made on May 22, 2001, and no fire alarm had been installed. On June 5, 2001, a call-back inspection was made. The owner of the property stated that he did not have keys to the building; thus, the inspector could not access the premises. The owner advised at the time of the inspection on June 5, 2001, that no fire alarm system had been installed.

8. On February 18, 2002, an inspector for the Department inspected Illinois House and found that none of the bedrooms had smoke detectors. On February 25, 2002, a call-back inspection was made, and a battery operated smoke detector in a bedroom did not work when tested.

9. The Department considers a critical violation to be one that is an immediate health hazard. The failure to have a fire alarm system is a critical violation because the buildings are transient rooming houses and most of the people residing in the buildings at any given time will be strangers to one another. If a fire occurs, the consistent and reliable

   means of notifying the tenants would be through the use of a fire alarm system.

10. The failure of the smoke detector to work is also a critical violation. If a fire occurs, an inoperable smoke detector will not warn the tenant, and, since no fire alarm has been installed, it is likely that the tenant may not have sufficient warning in time to escape from the fire.

11. Both Illinois House and Indiana House have applied to the Homeless Service Network for a grant to make renovations to the buildings to bring them up to whatever code is necessary in order for the properties to be used as transient housing. When the money becomes available, it is anticipated that the renovations will be made.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.569 and 120.57, Florida Statutes.

13. The Department has alleged that Indiana House and Illinois House are in violation of Rule 4A-48.003, Florida Administrative Code, which provides:

    The appropriate standards for the installation, maintenance, alteration, repair, monitoring, inspection, replacement, testing, or servicing of fire alarm systems shall be those standards

    adopted pursuant to Rule 4A-3.012(1), Florida Administrative Code.

    
    

14. Rule 61C-1.004(5), Florida Administrative Code, requires that all fire safety, prevention and protection equipment in public lodging establishments must be installed in accordance with the National Fire Protection Association Life Safety Code as adopted by Chapter 4A-3, Florida Administrative Code.

15. Obviously, neither Indiana House nor Illinois House has a fire alarm system installed in accordance with Chapter 4A-3, Florida Administrative Code, because they have no fire alarm system installed.

16. The Department has alleged that Indiana House and Illinois House violated Subsection 509.032(2)(b), Florida Statutes, which provides:

    1. For purposes of performing required inspections of this chapter, the division has the right to entry and access to public lodging establishments and public food establishments at any reasonable time.

       
       

17. By failing to have keys to the buildings, the owner was unable to unlock the doors and, thereby, denied the inspector entry and access to the buildings in violation of Subsection 509.032(2)(b), Florida Statutes.

18. The Department alleged that Indiana House was in violation of Rule 61C-1.004(9)(b), Florida Administrative

    Code, which provides that all public lodging establishments must have:

    1. A standard state approved service tag shall 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 4A-21.041, FAC.

       
       

19. The Department has established that Indiana House did not have a service tag on a fire extinguisher in violation of Rule 61C-1.004(9)(b), Florida Administrative Code.

20. The Department alleged that Indiana House was in violation of Rule 61C-1.004(11), Florida Administrative Code, which provides that all public lodging establishments must comply with the following:

    (11) Electrical wiring -- To prevent fire or injury, defective electrical wiring shall be replaced and wiring shall be kept in good repair. No extension cords shall be used except during cleaning, maintenance and other temporary activities. Only a wall switch or approved pull cord shall be permitted in bathrooms. In accordance with the provisions of NFPA 70, the National Electrical Code, as adopted by the Division of State Fire Marshal in Chapter 4A-3, FAC, Uniform Fire Safety Rules and Standards, sufficient electrical outlets shall be provided.

    
    

21. The Department has established Indiana House violated Rule 61C-1.004(11), Florida Administrative Code, by

    using a gang plug in a bedroom and by having wires dangling from a fan light.

22. The Department alleges that Indiana House violated Rule 61C-3.001(5), Florida Administrative Code, which provides that public lodging establishments must meet the following standard:

    (5) Furniture, upholstery, etc. -- Furniture, upholstery, draperies, shades, venetian doors, blinds, and other provided furnishings in lobbies, lounges, parlors and bedrooms shall be kept clean, and be renovated or replaced as needed. All rugs and floor coverings must be kept clean and in good condition, free from holes and rips. Non-perforated metal, plastic, or plastic lined wastebaskets shall be provided for all bedrooms.

    
    

23. The Department has established that Indiana House violated Rule 61C-3.001(5), Florida Administrative Code, by having an air conditioner with its faceplate missing, exposing filters and coils.

24. The Department has established that Illinois House violated Rule 61C-1.004(5), Florida Administrative Code, by having in a bedroom a battery operated smoke detector which did not work when tested.

25. Section 509.261(1), Florida Statutes, provides that any public lodging establishment that has operated or is operating in violation of Chapter 509, Florida Statutes, or the rules promulgated thereunder, is subject to fines not to

exceed $1,000 per offense; mandatory attendance at an educational program sponsored by the Hospitality Education Program; and the suspension, revocation or refusal of a license.

RECOMMENDATION

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

RECOMMENDED that a final order be entered:

1. Finding that Indiana House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 4A-48.003, 61C- 1.004(9)(b), 61C-1.004(11), and 61C-3.001(5), Florida Administrative Code.

2. Imposing a $2,500 fine on Indiana House and requiring the owner of Indiana House to attend a Hospitality Education Program.

3. Finding that Illinois House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 4A-48.003 and 61C- 1.004(5), Florida Administrative Code.

4. Imposing a $1,500 fine on Illinois House and requiring the owner of Illinois House to attend a Hospitality Education Program.

DONE AND ENTERED this 27th day of September, 2002, in Tallahassee, Leon County, Florida.

___________________________________ SUSAN B. KIRKLAND

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 27th day of September, 2002.

COPIES FURNISHED:

Thomas Griffin Indiana House 1221 12th Street

St. Cloud, Florida 34769

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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 32399-2202

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: 02-001986

Orders for Case No: 02-001986