STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

TED STARR,

Respondent.

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) Case No. 04-2641

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RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing in this proceeding on November 26, 2004, in St. Petersburg, Florida, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Ted J. Starr, Esquire

8181 U.S. 19 North

Pinellas Park, Florida 33781 STATEMENT OF THE ISSUE

The issue is whether Respondent operated two contiguous four-unit buildings as an unlicensed public lodging

establishment in violation of Subsection 509.241(1), Florida Statutes (2003).

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondents, Ted and Marlene Starr, on December 1, 2003. Respondents timely requested an administrative hearing, and Petitioner referred the matter to DOAH to conduct the hearing.

At the hearing, the parties jointly requested the ALJ to delete Mrs. Marlene Starr as a party. The ALJ granted the request and amended the style of case, nunc pro tunc, to include Mr. Ted Starr as the sole respondent in this proceeding.

Petitioner did not present the testimony of any witnesses, but submitted six exhibits for admission into evidence.

Respondent testified and submitted three exhibits for admission into evidence. Each party made separate requests for official recognition.

The identity of the witnesses and exhibits and the rulings regarding each are set forth in the one-volume Transcript of the hearing filed on November 29, 2004. Petitioner and Respondent timely filed their respective proposed recommended orders (PROs) on December 7 and 13, 2004.

FINDINGS OF FACT

1. The parties stipulated to most of the facts in this case. The disputed issues of fact involve issues of whether the

   two four-unit buildings comprise a single complex of buildings that Respondent operates as a single entity. With this exception, the parties submitted the case to the ALJ as an issue of law.

2. Petitioner is the state agency responsible for regulating public lodging establishments defined in Subsection 509.013(4), Florida Statutes (2003). Respondent owns and operates two four-unit buildings located, respectively, at 11220 and 11240 Third Street East, Treasure Island, Florida 33706.

3. Petitioner inspected each building on July 2 and October 16, 2003, and found that Respondent had not licensed either building as a public lodging establishment. Respondent has never licensed either building as a public lodging establishment.

4. The two four-unit buildings are located on contiguous lots that are not separated by a highway. However, the evidence is less than clear and convincing that the two buildings comprise a single complex of buildings within the meaning of Subsection 509.013(7), Florida Statutes (2003). The buildings are not situated on the same tract or plot of land. Each parcel of land on which a building is located is a separate lot bearing a separate street address, a separate legal description, and a separate survey. Each lot is separately titled to Respondent and his wife under a separate warranty deed acquired in separate

   transactions. Respondent is legally entitled to transfer each lot independently without first severing or subdividing one lot from the other. Each lot secures a separate mortgage for which the lender, in the event of default, may foreclose without foreclosing against the other lot otherwise encumbering the other lot.

5. Respondent does not operate the two buildings under one business name within the meaning of Subsection 509.013(7), Florida Statutes (2003). Respondent does not operate the two buildings under any business name. Neither building bears a name, and Respondent does not manage the two buildings from a single rental management office. Respondent operates each building pursuant to a separate occupational license for each building.

6. The two buildings do not comprise a public lodging establishment within the meaning of Subsection 509.013(4)(a), Florida Statutes (2003). For reasons previously stated, the evidence is less than clear and convincing that the two buildings comprise a single complex of buildings. In addition, Petitioner failed to submit any evidence that Respondent either rents to any guest for a period that is less than 30 days or advertises to the public that the eight units are regularly rented to guests. Rather, the only relevant evidence shows that

   Respondent rents to guests for one year or more and does not advertise the rental units in any manner.

7. The two four-unit buildings satisfy the requirements of an express exclusion in Subsection 509.013(4)(b)3., Florida Statutes (2003). Each building is an establishment that rents four units or less. Petitioner submitted no evidence that Respondent either advertises the units for rent to guests or that Respondent regularly rents the units to transients defined in Subsections 509.013(10) and (11), Florida Statutes (2003). The only relevant evidence shows that Respondent does not advertise the units and does not rent to transients.

   CONCLUSIONS OF LAW

   
   

8. DOAH has in personam jurisdiction over the parties to this proceeding. DOAH provided adequate notice of the administrative proceeding.

9. Neither DOAH nor the referring agency has jurisdiction over the subject matter of this proceeding. The statutory authority for the agency to act is limited by Subsection 509.032(1), Florida Statutes (2003), in relevant part, to public lodging establishments. For reasons stated in the findings of fact, the two four-unit buildings do not satisfy the definition of a public lodging establishment and are expressly excluded from the statutory definition.

10. Petitioner proposes, in relevant part, to impose administrative fines against Respondent for the failure to license the two four-unit buildings. A proceeding that seeks to impose an administrative fine is penal in nature. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

11. In a penal proceeding, Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any proposed penalty. § 120.57(1)(h), Fla. Stat. (2003); Osborne Stern, 670 So. 2d at 935. Petitioner did not satisfy its burden of proof.

12. The requirement for competent and substantial evidence takes on vigorous implications in a disciplinary proceeding that are not present in other proceedings. Robinson v. Florida Board of Dentistry, Department of Professional Regulation, 447 So. 2d 930, 932 (Fla. 3d DCA 1984). In order for such evidence to be clear and convincing:

    The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

13. Petitioner seeks disciplinary action against Respondent based on statutory requirements such as a "single complex of buildings," "operated under one business name," and "situated on the same tract or plot of land." The terms of such disciplinary statutes must be construed strictly in favor of Respondent and against the imposition of discipline. State ex

rel. Jordan v. Pattishall, 99 Fla. 296, 126 So. 147 (Fla. 1930); Ocampo v. Department of Health, 806 So. 2d 633 (Fla. 1st DCA 2002); Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923 (Fla. 1st DCA 1977).

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a final order finding that the two four-unit buildings do not comprise a public lodging establishment and dismissing the Administrative Complaint for lack of jurisdiction.

DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida.

S

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 22nd day of December, 2004.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Ted J. Starr, Esquire 8181 U.S. 19 North

Pinellas Park, Florida 33781

Leon Biegalski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

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: 04-002641

Orders for Case No: 04-002641