STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, ) Case No. 03-2409

)

vs. )

)

GALILEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on September 16, 2003, with connecting sites in West Palm Beach and Tallahassee, Florida, before

Errol H. Powell, 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: Barnett Guthartz, pro se Galilee

4685 Haverhill Road

West Palm Beach, Florida 33417

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what action should be taken.

PRELIMINARY STATEMENT

On or about February 13, 2003, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Department) filed an Amended Administrative Complaint against Galilee. The Department charged Galilee with violating Chapter 509, Florida Statutes, and/or the rules of the Department, as follows: violating Florida Administrative Code Rule 61C-1.004(5) by failing to have a portable fire extinguisher in Building 10, 13; violating National Fire Protection Association (NFPA) Life Safety Code 25,1-8.2 by failing to have available a current report of the annual inspection for the fire sprinkler systems; and violating Food Code Rule 5-204.12 by failing to have a backflow device on the exterior hose bib.

Galilee disputed the allegations of fact in the Amended Administrative Complaint and requested a hearing. This matter was referred to the Division of Administrative Hearings on July 1, 2003.

At the hearing, the Department presented the testimony of one witness and entered three exhibits (Petitioner's Exhibits numbered 1-3) into evidence. Galilee presented the testimony of

its owner and entered no exhibits into evidence. Additionally, official recognition was taken of Florida Administrative Code Rule 61C-1.004(5); NFPA Life Safety Codes 25, 1-8.2, 4.5.7, and 4.6.1.2; and Food Code Rule 5-204.12.

A transcript of the hearing was ordered. At the parties' request, the time for filing post-hearing submissions was set for ten days following the filing of the transcript. The Transcript, consisting of one volume, was filed on October 8, 2003. The Department timely filed its post-hearing submission, which was considered in the preparation of this Recommended Order. Galilee did not file a post-hearing submission.

All citations are to Florida Statutes (2003) unless otherwise indicated.

FINDINGS OF FACT

1. At all times material hereto, Galilee was licensed by the Department.

2. Galilee's last known address is 4685 Haverhill Road, West Palm Beach, Florida. Galilee is a lodging establishment, consisting of rental apartments. It was originally constructed in 1995 as an assisted living facility but, as a business decision, the owner subsequently converted it to rental apartments.

3. The Department's inspector inspected the outside of Galilee on December 18, 2002, and again on January 17, 2003. The

   inspector found deficiencies at the first inspection, and at the second inspection three deficiencies remained uncorrected. The uncorrected deficiencies were (1) the current report of the annual inspection for the fire sprinkler system was not available; (2) fire extinguishers failed to have state certification tags affixed; and (3) no backflow prevention device on the exterior hose connection to the apartment building.

4. The failure to have available the current report of the annual inspection for the fire sprinkler system was a critical violation. The deficiency was classified as a critical violation because the annual report is the only way that an inspector can ascertain that the fire sprinkler system is operational. The inspector requested the current annual report at the first visit but it was not available.

5. The failure of the fire extinguishers to have state certification tags affixed was a critical violation. The deficiency was classified as a critical violation because the state certified tag verifies that an extinguisher is in proper working order and is being properly maintained.

6. The failure to have a backflow prevention device on the exterior hose connection to the apartment building was not a critical violation. The backflow prevention device stops negative water pressure.

7. At the first inspection, the inspector explained the violations to the owner and gave him a 30-day warning to have the violations corrected, advising the owner that she would return on January 17, 2003, for a follow-up inspection. The violations were not corrected at the follow-up inspection 30 days later.

8. The evidence shows that all the violations were corrected within a month to a month and a half after the second inspection. Galilee provided mitigating circumstances for the violations not being corrected at the time of the second inspection.

9. As to the deficiency regarding availability of the current report of the annual inspection for the fire sprinkler system, Galilee has a current report dated February 27, 2003. Also, Galilee suggests that the inspector did not request the report. The undersigned finds the inspector's testimony credible that she requested the report.

10. Further, the evidence shows that Galilee confused the requested report with the report of the fire department's inspection. The inspector testified, and her testimony is found credible, that the report of the annual inspection for the fire sprinkler system is generated by a private company, not the fire department, because the fire department does not perform the inspection required for the requested report.

11. As to the deficiency regarding tagging of the fire extinguishers, Galilee's owner purchased fire extinguishers from Home Depot and was not aware that the extinguishers were required to be tagged at the time of the first inspection. Subsequent to the second inspection, the fire extinguishers were tagged by the AAC United Fire and Safety Department, with which Galilee has a contract to inspect the fire extinguishers.

12. As to the deficiency regarding backflow prevention device, it too was corrected subsequent to the second inspection.

13. Furthermore, even though the deficiencies were corrected subsequent to the second inspection, Galilee began the process to correct the deficiencies after the first inspection. Galilee was not ignoring the deficiencies. The deficiencies were not timely corrected because Galilee's owner was attempting to obtain, whom he considered, the proper people to perform the tasks involved and have the tasks performed at a reasonable expense.

14. No evidence of prior disciplinary action being taken against Galilee by the Department was presented.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Sections 120.569 and 120.57(1).

16. License revocation proceedings and proceedings involving the levying of administrative fines are penal in nature. The burden of proof is on the Department to establish by clear and convincing evidence the truthfulness of the allegations in the Amended Administrative Complaint. Department of Banking and Finance, Division of Securities and Investor Protection v.

    Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

17. A licensee is charged with knowing the practice act that governs his/her license. Wallen v. Florida Department of

    Professional Regulation, Division of Real Estate, 568 So. 2d 975 (Fla. 3d DCA 1990).

18. NFPA Life Safety Code 25, 1-8.2, Standard for the Inspection, Testing and Maintenance of Water-Based Fire Protection Systems, provides that "Records shall be maintained by the owner for a period of one year after the next inspection, test or maintenance."

19. Florida Administrative Code Rule 61C-1.004(5), General Sanitation and Safety Requirements, provides the general requirements and standards to be met by all public lodging and public food service establishments and provides that "All fire safety, protection and prevention equipment must be installed, approved, maintained and used in accordance with Chapter 509, F.S., and the National Fire Protection Association Life Safety

    Code Chapter 101, as adopted by the Division of State Fire Marshall in Chapter 4A-3, F.A.C."

20. Food Code Rule 5-204.12, Backflow Prevention Device, Location, provides that "A backflow prevention device shall be located so that it may be serviced and maintained."

21. NFPA Life Safety Code 4.5.7 provides "Whenever or wherever any device, equipment, system, condition, arrangement, level of protection, or any feature is required for compliance with the provisions of this code, such device, equipment, system, condition, arrangement, level of protection, or other feature shall thereafter be maintained unless the code exempts such maintenance."

22. NFPA Life Safety Code 4.6.1.2 provides "Any requirements that are essential for the safety of building occupants and that are not specifically provided for by this code shall be determined by the AHJ.[1]"

23. The Department demonstrated by clear and convincing evidence that Respondent violated NFPA Life Safety Code 25,

    1-8.2. and Food Code Rule 5-204.12.

    
    

24. However, a question arises as to whether Galilee committed a violation of Florida Administrative Code Rule 61C- 1.004(5), as charged. The Amended Administrative Complaint charged Galilee with the failure to have portable fire extinguishers in Building 10, 13, not the failure to have fire

    extinguishers tagged. The inspection report provides that Galilee failed to have fire extinguishers tagged. At hearing, the testimony and the evidence presented by the parties addressed the failure to have fire extinguishers tagged, not the failure to have portable fire extinguishers. A perusal of Florida Administrative Code Rule 61C-1.004(5) and the Amended Administrative Complaint shows that both the cited violation and the violation presented at hearing fall within the said Rule. No evidence was presented that the parties agreed that the Amended Administrative Complaint would be further amended to reflect the violation of the failure to have fire extinguishers tagged or agreed that the failure to have fire extinguishers tagged would be litigated.

25. Matters not charged in the Amended Administrative Complaint cannot be considered as a violation. Chrysler v. Department of Professional Regulation, 627 So. 2d 31 (Fla. 1st DCA 1993); Klein v. Department of Business and Professional Regulation, 625 So. 2d 1237 (Fla. 2d DCA 1993). Consequently, the Department failed to show by clear and convincing evidence that Galilee violated Florida Administrative Code Rule 61C- 1.004(5).

26. As to penalty, Section 509.261 provides in pertinent part:

    1. Any public lodging establishment or public food service establishment that has operated or is operating in violation of this chapter or the rules of the division, operating without a license, or operating with a suspended or revoked license 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.

       
       

27. The Department suggests the imposition of the maximum administrative fine per offense; and, if installment payments are permitted, the suspension of Galilee's license until receipt of the first payment and the suspension of Galilee's license at the occurrence of any untimely payment until the payment is made.

    The undersigned is persuaded that, under the circumstances of this matter, the Department's suggestion of an administrative fine is reasonable. Only the amount of the administrative fine is in question.

28. One of the violations established by the Department was a critical violation. The evidence presented by the Department and in mitigation by Galilee does not persuade the undersigned that less than the maximum fine is appropriate.

29. The other violation established by the Department was not a critical violation. The evidence presented by the Department and in mitigation by Galilee does not persuade the undersigned that the maximum fine is appropriate.

RECOMMENDATION

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

RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order:

1. Finding that Galilee violated NFPA Life Safety Code 25, 1-8.2 and Food Code Rule 5-204.12.

2. Dismissing the violation of Florida Administrative Code Rule 61C-1.004(5).

3. Imposing an administrative fine of $1,500.00, payable under terms and conditions deemed appropriate.

S

DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida.

____ ERROL H. POWELL

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 31st day of October, 2003.

ENDNOTE

1/ No evidence was presented as to what the acronym "AHJ" references.

COPIES FURNISHED:

Barnett Guthartz Galilee

4685 Haverhill Road

West Palm Beach, Florida 33417

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Nancy Campiglia, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

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

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 03-002409

Orders for Case No: 03-002409