STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,

Petitioner,

vs.

CAMBRIDGE COURT APARTMENTS,

Respondent.

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) Case No. 02-2280

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RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings, on September 10, 2002, in Daytona Beach, Florida. The appearances were as

follows:

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Milton Rampersad, pro se

4096 Clock Tower Drive

Port Orange, Florida 32119

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether violations of Section 509.032, Florida Statutes, and Rule 61C-1.004(5), Florida Administrative Code, as well as Chapter 4A-3, Florida Administrative Code, had been committed by the Respondent in terms of two specific safety violations allegedly occurring at the Respondent's lodging establishment.

PRELIMINARY STATEMENT

This cause arose upon the filing of an Administrative Complaint dated November 16, 2001, by the Petitioner, Department of Business and Professional Regulation (Petitioner), alleging that the Respondent, Cambridge Court Apartments (Respondent), had violated Section 509.032, Florida Statutes; Chapter 4A-3, Florida Administrative Code; and Rule 61C-1.004(5), Florida Administrative Code, by failing to maintain portable fire extinguishers in a fully charged and operable condition and by failing to have all building structural components, attachments, and fixtures in good repair because of a balcony railing being loose near Apartment Number Four in the Respondent's establishment.

Upon the Respondent's requesting a formal hearing, the cause came on for hearing on the above-referenced date. The Petitioner presented the testimony of inspectors Ann Johnson and Gary Reed and exhibits numbered one through five, which were

admitted into evidence. The Respondent presented the testimony of Milton Rampersad, the owner of the establishment in question. Upon concluding the proceeding, the Respondent elected to have it transcribed and the parties were given the opportunity to submit proposed recommended orders. The Petitioner submitted a timely Proposed Recommended Order which has been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida charged, in pertinent part, with regulating the operation of hotel or lodging establishments in accordance with Section 20.165, Florida Statutes, and Chapter 509, Florida Statutes. The Respondent, at all times material hereto, has been licensed or otherwise subject to the Petitioner's jurisdiction.

2. On September 28, 2001, and again on October 16, 2001, an inspector of the Division of Hotels and Restaurants (Division) inspected the Respondent's lodging premises. The Division inspector noted certain deficiencies at her first inspection and that those deficiencies where still outstanding and uncorrected at the end of her second inspection at that location.

3. In light of the deficiencies noted at both inspections, the Division issued its Administrative Complaint on November 16, 2001, alleging that the fire extinguisher near Apartment Number

   One was in the "re-charge zone," meaning that it was inoperable on September 28, 2001, and was missing on October 16, 2001. The Complaint also charged that the balcony railing near Apartment Number Four was loose and, therefore, in an unsafe condition in violation of Rule 61C-1.004(5) and (6), Florida Administrative Code. In response, the Respondent testified that he does not live on the premises and that, although the fire extinguisher deficiency has occurred repeatedly, it is because children who are present on the premises keep discharging it. He testified that whenever it has been discharged he, or his maintenance man, immediately has it recharged by the Daytona Fire and Safety Company. Mr. Rampersad also testified that he did everything in his power to bring the railing up to proper code requirements by re-drilling holes and re-anchoring the railing in concrete. He contends that an "inspection supervisor" observed the railing and opined that it had been brought up to code, but there is no direct evidence of that observation. He established that, as of the time of the hearing, all necessary repairs to the railing had been made and that the fire extinguisher was charged and fully operable. He testified that at the time the fire extinguisher was missing upon the re-inspection date, found above, that it was at the service company being recharged.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

5. Section 509.261(1), Florida Statutes, provides that any public lodging establishment or public food service establishment that has operated or is operating in violation of Chapter 509, Florida Statutes, or the rules promulgated hereunder, is subject to fines not to exceed $1,000.00 per offense; mandatory attendance at an educational program sponsored by the Hospitality Education Program of the Petitioner; and a suspension, revocation, or refusal of a license. The National Fire Protection Association Life Safety Code (NFPA) has been incorporated by reference in Chapter 4A-3, Florida Administrative Code, "Fire Prevention, General Provisions" and Rule 61C-1.004(5) and (6), Florida Administrative Code. In that regard, NFPA Code Provision

   10,1-6.2, incorporated by reference in the above-rule provision, requires that portable fire extinguishers be maintained in a fully charged and operable condition and kept in their designated places at all times when they are not being used.

   Rule 61C-1.004(6), Florida Administrative Code, requires that "all building structural components, attachments, and fixtures shall be kept in good repair "

6. In the context of the above regulatory authority, the evidence was unrefuted that the fire extinguisher near Apartment Number One was in the "re-charge zone" and, therefore, inoperable on both September 28, 2001, and on October 16, 2001, on this last date, by being missing from the establishment. It is also established that the balcony railing was loose near Apartment Number Four. In mitigation of these unrefuted deficiencies, the Respondent established that he has made strenuous efforts to ensure that his establishment is in compliance with all of the relevant safety regulations and that all the deficiencies were corrected prior to the date of hearing.

7. Mr. Rampersad testified that a building inspector supervisor inspected the repaired railing and opined that it was up to code. There is no clear and substantial evidence as to when such an inspector supervisor may have made that observation. The evidence is unrefuted, however, that on the above inspection and re-inspection dates that the railing was not in compliance with the above authority and, thus, posed a safety hazard. It is also true that Mr. Rampersad has been charged in the past for failing to keep the fire extinguisher charged and knew of the deficiencies regarding the fire extinguisher and that it was not present and operative at the time of the second inspection.

8. In summary, it is determined that the deficiencies charged have been proven by clear and convincing evidence. It is also true in mitigation of the violations that the Respondent has made diligent efforts to render his establishment to be in compliance with the relevant safety rules. It has been established by the Respondent that the deficiencies have been cured as of the date of the hearing or at some undetermined point before that date. Consequently, a reduction in the penalty requested by the Petitioner is warranted.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED:

1. That a final order be entered by the Department of Business and Professional Regulation, imposing a fine in the amount of $750.00;

2. That the Respondent's license be suspended for six months, but with the suspension held in abeyance contingent upon timely payment of the administrative fine being received upon a schedule agreed to between the Respondent and the Director of the Division of Hotels and Restaurants. The failure to continue

   to make timely payments of the fine amount should result in imposition of the suspension of the Respondent's license; and

3. That the Respondent be required to attend a Hospitality Education Program class under the auspices of the Petitioner within 60 days of the date of the final order herein and to provide satisfactory proof thereof to the Division of Hotels and Restaurants.

DONE AND ENTERED this 8th day of January, 2003, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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, 2003.

COPIES FURNISHED:

Milton Rampersad

1201 Kennedy Road, Apartment 19 Daytona Beach, Florida 32117

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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

Professional Regulation 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: 02-002280

Orders for Case No: 02-002280