STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

CLARK APARTMENT & ROOMS,

Respondent.

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) Case No. 03-3821

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RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing by video teleconferencing between Jacksonville, and Tallahassee, Florida, was held before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings, on December 17, 2003.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Jimmie Lee Clark, Jr.

Clark Apartment & Rooms 9762 Bayview Avenue

Jacksonville, Florida 32208

STATEMENT OF THE ISSUE

Whether Respondent is guilty of violating Sections 509.221(1) and (7) and 509.032, Florida Statutes, and Florida Administrative Code Rules 61C-1.004(5), (6), and (13), 61C- 3.001(2), as set out in the Administrative Complaint dated March 24, 2003.

PRELIMINARY STATEMENT

This cause arose by an Administrative Complaint dated March 24, 2003. Respondent timely requested a disputed-fact hearing. The cause was referred to the Division of Administrative Hearings on or about October 16, 2003.

On October 24, 2003, the case was scheduled for hearing on December 17, 2003.

In the absence of Administrative Law Judge Stephen F. Dean, Administrative Law Judge Ella Jane P. Davis presided at the disputed-fact hearing. Petitioner presented the oral testimony of John Edward Phelan and David Jackson Fulton and had three exhibits admitted in evidence.1/ Respondent presented the oral testimony of Jack McGee, Charles Musselwhite, Reginald Carter, and Jimmie Lee Clark, Jr. Respondent's Exhibit 1 was not admitted in evidence, but was viewed as a demonstrative exhibit. Respondent represented that he had served Otis Lykes with a witness subpoena and that Mr. Lykes had not appeared at the hearing.

The hearing was continued to allow Respondent to prove-up service upon Mr. Lykes. Respondent ultimately provided a valid return of service upon Mr. Lykes, and an Order was entered to enable Respondent to enforce that subpoena in circuit court for Mr. Lykes' testimony at the remainder of the hearing re- scheduled for April 30, 2004. On April 15, 2004, Respondent admitted an inability to follow-through on enforcement of the subpoena. Accordingly, by an Order entered April 21, 2004, the record was closed2/ and a post-hearing schedule was established. An Order modifying that schedule was entered on May 6, 2004. On May 28, 2004, the Transcript was filed.

Only Petitioner timely filed a Proposed Recommended Order.3/ It has been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department of Business and Professional Regulation, Division of Hotels and Restaurants (DHR) is the State Agency charged with regulating the operation of hotel establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes.

2. At all times material hereto, Respondent has been licensed by DHR or otherwise subject to DHR's jurisdiction, pursuant to issued License No. 26-00783.

3. Respondent's last known business address is Clark Apartment and Rooms, 9762 Bayview Avenue, Jacksonville, Florida 32208.

4. On February 3, 2003, and again on March 10, 2003, a DHR sanitation and safety specialist, John Phelan, inspected Respondent's premises. On February 3, 2003, the initial inspection, Mr. Phelan was accompanied by his superior,

David Futlon. At the February 3, 2003, initial inspection, the following deficiencies were observed by both inspectors and noted for Respondent by Mr. Phelan: No proof was observed that the smoke detectors were interconnected as required by law and as stated by management. The door of a gas oven was held in place by a garden spade. Live roaches were on the floor and climbing the walls around the oven. The inspectors observed a stained mattress and a missing mattress pad on the bed in room

1. They also observed that the second floor bathroom was out- of-order, and that shower curtains and shower stalls were dirty with soap scum.

   1. On March 10, 2003, Mr. Phelan returned to Respondent's premises by himself and noted that the foregoing problems/violations remained.

   2. According to both inspectors, the most serious violation was that there was no documentation that the smoke detectors were interconnected. This is a critical violation because it could present a potential fire hazard. The next violation that was found to be critical was that there was "a garden spade holding the oven door closed." This was seen as a

      violation because of the potential for fire. Next down the urgent and critical scale was the presence of live roaches around the oven. The absence of a mattress pad on room 17's mattress and the stain on the mattress were of somewhat less concern. However, these bedding problems are violations because they pose a sanitary issue. The next-ranked violation was that the second floor bathroom was out-of-order. The bathroom also presented a lesser sanitary issue, which was that the shower curtain and shower stall were dirty with soap scum.

   3. Based on the foregoing uncorrected deficiencies, Mr. Phelan caused an administrative complaint to be issued against Respondent on March 24, 2003, alleging Respondent's violation of Chapter 509, Florida Statutes, and/or the administrative rules promulgated thereunder.

   4. Although it was demonstrated at hearing that Mr. Clark, Respondent's principal, had been attempting, between the two inspections, to fix the originally-cited deficiencies, and although some progress at renovation had been made, most problems had not been fully addressed as of the date of the follow-up inspection on March 10, 2003.

   5. The credible evidence and testimony as a whole show that Mr. Phelan had recognized that a gas heater which had been cited at the initial inspection had been disconnected by the date of the second inspection and that it was no longer in use

      at the time of the second inspection. Therefore, the gas heater had been crossed off the notification to Respondent by

      Mr. Phelan and had not been cited as a violation in the administrative complaint. The stove also had been disconnected prior to the re-inspection. The gas heater and gas stove were disconnected at the same time, so propping the stove door open or closed with a spade had no significance with regard to fire hazard. Like the heater, the stove should have been removed from the premises as a safety precaution, but because Mr. Phelan did not know that the stove had been disconnected when he made his re-inspection, it was cited and included in the administrative complaint.

   6. The reason the disconnected stove was still present on the premises was because Respondent was fumigating for roaches by setting off "roach bombs" inside it. The fumigation of the roaches in an area where all other exit holes for them were intentionally sealed had resulted in some dead roaches, but many live roaches had fled into the kitchen in the vicinity of the stove. The live roaches were observed by all the witnesses who saw the kitchen on or about the re-inspection date.

   7. The testimony of several witnesses was credible that the upstairs bathroom's sink and tub had been repaired prior to the re-inspection. Mr. Musselwhite recalled credibly that he had screwed the faucet handles back on the tub between the two

      inspections. However, the testimony of Mr. Musselwhite that he was using the tub and sink upstairs at the time of the re- inspection is not credible. The greater weight of the credible evidence is that the tub and sink upstairs might have been repaired, but they were not actually in working order at the time of the March 10, 2003, re-inspection, because the water had not yet been turned back on.

   8. The evidence is clear that plaster board had been installed in the shower by the date of the re-inspection and that this was done to deal with the prior notice concerning discoloration. A dispute among the witnesses as to whether the discoloration on the old shower walls was soap scum, discoloration by scum removers, or mildew cannot be resolved. However, it was proven that, despite several changes of shower curtains between the two inspections, the shower curtains present on the re-inspection date remained covered with soap scum and/or mildew.

   9. Respondent admitted that the lack of a mattress pad on the mattress in room 17 on the date of re-inspection was an oversight. It was proven that a mattress from a first floor room had been moved upstairs to room 17. In the opinion of Respondent's witnesses, this constituted, a "new" mattress which was not stained. In this situation, Mr. Phelan's observation of the mattress stain is more credible.

   10. On his first inspection, Mr. Phelan told Mr. Clark that in the absence of other documentation, Mr. Clark needed to have the State Fire Marshall inspect Respondent's smoke detectors, in order to provide documentation that they were interconnected. By "interconnectedness" the parties meant that if one smoke detector sounded, then all of the smoke detectors throughout the hotel should also sound. Mr. McGee and Mr. Clark testified that between the two inspections the issue of the smoke detectors had been "looked into" with employees of Home Depot and at the local fire department. Mr. Clark stated that he had contacted the Jacksonville Fire Department, which would not give him any documentation, but its employees agreed to come and inspect his smoke detectors. Mr. Clark testified convincingly that he had purchased and installed smoke detectors from the Home Depot which did not provide written documentation of interconnectedness but which could be tested for interconnectedness by pushing their buttons. He maintained that if the inspector had punched the button on any single smoke detector on the re-inspection date, the interconnectedness of all the smoke detectors would have been demonstrated by their all "going off" at once. The inspectors did not punch the smoke detectors' buttons during the two inspections because they could not reach the buttons, as they had no ladders. Respondent was written-up by DHR on both occasions because written

       documentation of interconnectedness was not provided and because interconnectedness was not otherwise demonstrated. In other words, Respondent provided neither papers showing interconnectedness nor a physical demonstration of interconnectedness during the second inspection.

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.

   12. Herein, the duty to go forward and the burden of proof by clear and convincing evidence is upon Petitioner Agency. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1997).

   13. Section 509.261(1), Florida Statutes, provides as follows:

       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.

   14. Florida Administrative Code Rule 61C-1.004(5) provides that:

       All fire safety, protection and prevention equipment must be installed, approved, maintained, and used in accordance with Chapter 509, Florida Statutes, and the National Fire Protection Association Life Safety Code Chapter 101, as adopted by the Division of State Fire Marshall in Chapter 4A-3, Florida Administrative Code.

       
       

       A technical violation of this rule was proven with regard to Respondent's smoke detectors.

   15. The violation of Florida Administrative Code Rule 61C- 1.004(13) charged by holding a gas oven door in place with a spade, was not proven because the stove was disconnected. Although the stove also should have been removed from the premises, this element of the offense does not track the rule cited, and to hold Respondent liable due to the disconnected oven and not the disconnected heater is unjust and illogical.

   16. Florida Administrative Code Rule 61C-3.001(2) requires that clean mattress and bed springs, mattress pads, clean pillows and pillow slips, clean bed sheets and sufficient clean blankets shall be provided for each sleeping accommodation. The violation of Florida Administrative Code Rule 61C-3.001(2), which was charged by a stained mattress and a missing mattress pad on the bed in room 17, was proven.

   17. The violation of Section 509.221(1), Florida Statutes, concerning the second floor bathroom being out-of-order was proven, because the statute requires a supply of potable water and none was provided.

   18. Section 509.221(7), Florida Statutes, requires that the operator of any establishment licensed under this chapter shall take effective measures to protect the establishment against the entrance and the breeding on the premises of all vermin, and that any room in such establishment infested with such vermin shall be fumigated, disinfected, renovated, or other corrective action taken until the vermin are exterminated. The observation of a roach infestation which was only partially dissipated after five weeks and three fumigation bombs was proven. Therefore, the violation was also proven.

   19. Florida Administrative Code Rule 61C-1.004(6) provides that "all buildings structural components, attachments and fixtures shall be kept in good repair, clean and free of obstruction." This is the violation that was charged via shower curtains and shower stalls covered with soap scum. If the discoloration occurred by scum cleanser on the shower walls, it was purely aesthetic. However, mildew or soap scum on the shower curtains was proven. This is a sanitary consideration which does not matter as between soap scum or mildew. The minimal elements of the charge have been proven.

   20. Petitioner seeks to have Respondent pay an administrative penalty in the amount of $3,500.00 and to require that Respondent shall also attend a Hospitality Education Program class.

   21. Petitioner previously entered into a Stipulation and Consent Order in 2001, involving a fine, post-settlement inspection, and hospitality educational program. Because all or some of the charges herein have been proven, this former Stipulation and Consent Order may be considered in assigning a penalty. This Stipulation and Consent Order dealt with some of the same violations charged in the instant case, but the circumstances of those 2001 violations varied considerably from the circumstances charged in the instant case.

   22. DHR has cited the undersigned to no penalty guidelines, but upon clear and convincing evidence of only five of the six violations charged, with no aggravation or mitigation, and in light of Respondent's efforts to comply with the initial inspection, the penalties sought by Petitioner seem excessive.

RECOMMENDATION

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

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

1. Finding Respondent guilty of violating Sections 509.221(1) and (7), Florida Statutes, and Florida Administrative Code Rules 61C-1.004(5) and (6), and 61C-3.001(2), and not guilty of violating Florida Administrative Code Rule 61C- 1.004(13);

2. Ordering Respondent to pay an administrative penalty in the amount of $2,500.00, due and payable to the Department of Business and Professional Regulation, Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399, within 30 days of the final order;

3. Requiring Respondent to attend a Hospitality Education Program class within 60 days of the date of the final order and provide proof thereof to the Department of Business and Professional Regulation Division of Hotels and Restaurants; and

4. Requiring that Respondent pass a re-inspection of its premises within the same 60 days set out in (3), above.

DONE AND ENTERED this 14th day of July, 2004, in Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

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 14th day of July, 2004.

ENDNOTES

1/ Exhibit P-4 was admitted only for purposes of aggravation/mitigation of penalty if all, or some, of the charges of the administrative complaint were proven.

2/ Petitioner had already presented limited rebuttal on December 17, 2003.

3/ Unfortunately, this document merges proposed findings of fact, elements of procedure and proposed conclusions of law in a manner contrary to the Model Rules and overall does not follow the current format of recommended orders.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

and Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Jimmie Lee Clark, Jr. Clark Apartment & Rooms 9762 Bayview Avenue

Jacksonville, Florida 32208

Leon Biegalski, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2022

Geoff Luebkemann, Director Division of Hotel And Restaurants Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2022

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: 03-003821

Orders for Case No: 03-003821