A hearing was held pursuant to notice, on November 14, 2006, by Barbara J. Staros, assigned Administrative Law Judge of the Division of Administrative Hearings, via video teleconference in Pensacola and Tallahassee, Florida.
For Petitioner: Charles F. Tunnicliff, Esquire
Whether Respondent committed the violations set forth in the Administrative Complaints and, if so, what penalty should
be imposed.
Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, filed five Administrative Complaints alleging that Respondent had violated the laws regulating the operation of public food and lodging establishments. The Administrative Complaints charged Respondent with several violations of the provisions of Chapter 509, Florida Statutes, or the applicable rules governing the operation of public food and lodging establishments.
Respondent disputed the allegations in the Administrative Complaints and petitioned for a formal administrative hearing. Three of the cases were referred to the Division of Administrative Hearings on or about September 1, 2006, and two of the cases were referred on or about September 25, 2006.
Petitioner filed an unopposed Motion to Consolidate all five of the related cases. An Order of Consolidation was issued on October 6, 2006, consolidating Case numbers 06-3292,
06-3293, 06-3294, 06-3698, and 06-3699.
At hearing, Petitioner presented testimony of one witness, Russell Crowley. Official recognition was requested of Sections 509.032(6) and 509.221(7), Florida Statutes; and pertinent provisions of the United States Department of
Agriculture's Food Code, the National Fire Protection Association Life Safety Code and Chapter 61C, Florida Administrative Code. The request was granted. Petitioner's Exhibits numbered 1-14 were admitted into evidence.
Respondent presented the testimony of Wesley Perdue, Vicki Perdue and Fannie Finkley, owner of the subject House of Love. Respondent's Exhibit numbered one was admitted into evidence.
A Transcript consisting of one volume was filed on November 28, 2006. Petitioner and Respondent timely filed a Proposed Recommended Order and a post-hearing submission, respectively, which have been considered in the preparation of this Recommended Order.
Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is a state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes.
Respondent is a rooming house located in Pensacola, Florida. At all times material to the allegations of the Administrative Complaint, Respondent held license numbers 2705932 for food service and 2705800 for operation of a rooming house issued by the Division.
Russell Crowley is a Senior Sanitation and Safety Specialist employed by the Division. Mr. Phelan has a two- year degree in environmental technology. He has been employed by the Division for eight years. Prior to working for the Division, he was in the Air Force, Public Health Service, for
26 years. He also received training in laws and rules regarding public food service and lodging, and is a certified special fire inspector.
Case Nos. 06-3292, and 06-3293
On February 28, 2006, Mr. Crowley conducted an inspection of Respondent's premises and issued a food service inspection report and a lodging service inspection report while on the premises. Harrison Anderson an employee of Respondent, signed for the inspection reports.
During the February 28, 2006 inspection, Mr. Crowley observed six food service violations and four lodging violations and issued a warning that the violations must be corrected by March 28, 2006.
Mr. Crowley conducted a call-back inspection on March 29, 2006, during which he observed that four of the violations noted on February 28, 2006 had not been corrected.
At the time of the first inspection, Mr. Crowley observed that the fire extinguishers were out of date. During the call-back inspection, he again found the fire
extinguishers to be out of date, in that they had last been inspected in April 2005. This is a critical violation because if a fire extinguisher is not inspected to be sure it is in proper working condition, it could malfunction causing a fire safety hazard.
During the original inspection, Mr. Crowley also observed that the stove hood in the kitchen was not cleaned.
This was listed as a violation because it is a vermin control issue. This is a critical violation because grease buildup in the stove hood system can cause a fire. This violation had not been corrected at the time of the call-back inspection.
During the original inspection, Mr. Crowley observed that the hood suppression system in the kitchen was out of date. This had not been corrected at the time of the call- back inspection. Hood suppression systems should be inspected every six months. This is a critical violation because the hood suppression system is how grease fires are put out.
Mr. Crowley also observed an accumulation of food debris on the kitchen floor and under the stove and refrigerator. This had not been corrected at the time of the call-back inspection.
Another violation that Mr. Crowley found that had not been corrected is that the manager lacked proof of a food
manager certification. This is a critical violation because a food manager who has received training in proper food handling procedures must be on the premises. Mr. Crowley gave Respondent a time extension of 60 days to correct this violation.
Additionally, Mr. Crowley gave a 60-day time extension for a related violation, in that there was no proof of employee training in proper food handling procedures.
A lodging violation that had not been corrected between inspections is that the central heat and air conditioning was inoperable. Mr. Crowley observed space heaters in some but not all rooms. The central air system was still inoperable on the call-back inspection and there were only four space heaters for 15 rooms.
On June 6, 2006, Mr. Crowley made a call-back inspection of Respondent's facility and found that there still was no proof of anyone having received food manager training and no proof of employee training.
Case No. 06-3294
During the March 29, 2006, call-back inspection of Respondent's facility, Mr. Crowley observed that no room rate schedule was filed with the Division and that no room rate was posted in each room or unit. He wrote an inspection report
finding these two lodging violations, issuing a warning about these two violations, and notifying Respondent that the violations needed to be corrected by April 29, 2006.
Mr. Crowley went back to Respondent's facility on May 5, 2006, and found that these violations had not been corrected at the time of the call-back inspection. His call- back re-inspection report noted that the owner stated that she sent the room rate schedule to the Division for filing, but that when he called to verify this, there was no record of Respondent's room rate schedule with the Division. In any event, the room rate schedule was not posted.
Case Nos. 06-3698 and 06-3699
On April 11, 2006, Mr. Crowley again inspected Respondent's facility. As a result of this inspection, he wrote a lodging inspection report on which he noted nine violations. He noted on the inspection report a call-back date of April 12, 2006.
On April 12, 2006, he returned to Respondent's facility to make a joint inspection with an inspector from another agency, the Agency for Health Care Administration.
As a result of the April 12, 2006, inspection, he found two violations that had not been corrected: he observed an insufficient number of fire extinguishers and observed 10 live gnats in a resident's room. He also gave a 30-day time
extension for the seven other violations found, indicating a call-back date of May 13, 2006.
During the April 12, 2006 inspection, Mr. Crowley also observed an expired fire sprinkler inspection tag, indicating it had been last inspected on April 11, 2005. The inspection report again shows a call-back date of May 13, 2006.
Mr. Crowley made a call-back inspection of Respondent's facility on June 6, 2006, and found two violations that had not been corrected from the April 2006 inspections: the smoke detector in the common area was not working and there was rotted wood in the restroom. The smoke detector not working is a critical violation; the rotted wood in the bathroom is not. Mr. Crowley did note in his report that the air conditioning/heating system was now working.
On May 15, 2006, Mr. Crowley made a call back inspection and found that the fire sprinkler had still not been inspected since April 2005. This is a critical violation.
Mitigation
Ms. Finkley offered mitigating circumstances regarding some of the deficiencies noted by Mr. Crowley.
Regarding the allegation that no food service manager had a certification, Ms. Finkley asserts that before
the house was licensed to be a rooming house, it was an assisted living facility. She and others who had previously worked there had received training and were not aware they needed additional training when the facility became a rooming house. Further, Ms. Finkley took the training class on July 17, 2006.
Regarding the allegation that the stove hood had a grease buildup, Ms. Finkley asserted that she did have the hood cleaned, and showed the inspector the receipt for the cleaning. Mr. Crowley disputes this and insists that had he been shown the receipt, he would have given her credit for having it. Mr. Crowley's testimony in this regard is more persuasive and accepted.
Ms. Finkley explained that the house and floor are very old. Therefore, she feels that it was more the condition of the floor as opposed to uncleanliness. In any event, she has installed a new floor since Mr. Crowley's inspections.
Regarding the room rates, Ms. Finkley insists that she mailed the room rates to the Division. It was returned to her from the Division within a couple of days after
Mr. Crowley was there, and she then posted it. Her assertion in this regard is accepted as credible.
Regarding the allegations about the fire extinguishers, Ms. Finkley asserted that she had taken two
fire extinguishers to be inspected and tagged the day
Mr. Crowley made his reinspection. According to Ms. Finkley, Mr. Crowley was still in the yard of the facility when she returned with the fire extinguishers and attempted to show them to Mr. Crowley. This apparently happened after he had written his report, as Mr. Crowley recalls passing her in the driveway as he was leaving. Her assertion in this regard is accepted as credible.
Regarding the allegation about the smoke detector, Ms. Finkley asserts that it was brand new and had just been installed that day (the day of Mr. Crowley's inspection) by the maintenance man. She was not present during the inspection but retuned to the facility that day and found the smoke detector to be working. Her testimony in this regard is accepted as credible.
Regarding the sprinkler system, the utility company was working on the road outside the facility and had cut the water line to the facility due to work being done on the day the inspector inspected the system. This is corroborated by Wesley Perdue's testimony and is accepted as credible. Again, this correction to the cited violation was made after the callback inspection.
Wesley and Vicki Perdue lease the facility to Ms. Finkley and perform maintenance on the facility.
Regarding the allegation about the rotten wood in the bathroom, they remodeled the entire bathroom including putting in new walls, a new commode, and a new vanity with a new sink. The Perdues also installed the new kitchen floor. According to Mr. Perdue, they repaired many things that were written up by Mr. Crowley after he had cited Ms. Finkley for the deficiencies, and he believes that the repairs were completed during the call-back time frame of Mr. Crowley's inspection reports. While Mr. Perdue believes this, the weight of the evidence is that repairs were not completed before Mr.
Crowley's reinspection.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case, Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.
The Division is the state agency charged with regulating public food service and lodging establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes.
Pursuant to Section 509.261(1), Florida Statutes, the Division may impose penalties for violations of Chapter 509, Florida Statutes, including an administrative fine of no more than $1,000 for each separate offense, attendance at
personal expense at an educational program sponsored by the Hospitality Education Program, and the suspension or revocation of Respondent's license.
Because the Division seeks the imposition of an administrative penalty, which is a penal sanction, the Division has the burden of proving by clear and convincing evidence the specific allegations in the Administrative Complaints. See, e.g., Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).
Through the Administrative Complaints, Respondent is alleged to have violated Florida Administrative Code Rule 61C- 1.004, which reads in pertinent part:
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 and Safety Code Chapter 101, as adopted by the Division of State Fire Marshall in Chapter 4A-3, F.A.C.
All building structural components, attachments and fixtures shall be kept in good repair, clean and free of obstructions.
(12) Heating and ventilation- The heating and ventilation system shall be kept in good repair or be installed to maintain a minimum of 68 degrees Fahrenheit throughout the building. . . .
In each violation cited under these subsections, the Division proved that violations existed at the time of the call-back
inspections. Ms. Finkley did, however, establish proof that she made genuine attempts to fix these deficiencies.
Through the Administrative Complaints, Respondent is alleged to have violated Florida Administrative Code Rule 61C- 3.002, which requires that the rates to be charged for each room in every public lodging establishment be filed with the Division. While there was no room rate schedule posted at the time of the inspection, Ms. Finkley posted the room rate schedule after receiving it back from the Division.
Through the Administrative Complaints, Respondent is alleged to have violated National Fire Protection Association Life Safety Code 96, 11.4.12, which requires that when a vent cleaning service is used, a certificate showing the date of inspection or cleaning shall be maintained on the premises. The Division has met its burden of proving that this violation occurred.
Through the Administrative Complaint, Respondent is alleged to have violated National Fire Protection Association Life Safety Code 96, 11.2.1, which reads in pertinent part:
An inspection and servicing of the fire- extinguishing system and listed exhaust hoods containing a constant or fire- actuated water system shall be made at least every 6 months by properly trained and qualified persons.
Equipment and utensils shall be designated and constructed to be durable and to retain
their characteristic qualities under normal use conditions.
The Division has met its burden of proving this violation occurred.
Through the Administrative Complaints, Respondent is alleged to have violated the National Fire Protection Association Life Safety Code 10, 4-4.1, which requires that fire extinguishers be subjected to maintenance not more than one year apart. The Division proved that this violation occurred.
Through the Administrative Complaint, Respondent is alleged to have violated the National Fire Protection Association Life Safety Code Rule 10, 6.3.1, which reads in pertinent part:
Frequency. Fire extinguishers shall be subjected to maintenance at intervals of not more than 1 year, at the time of hydrostatic test, or when specifically indicated by an inspection or electronic notification.
The Division has met its burden of proving that this violation has occurred. Respondent established that she attempted to have the sprinkler system inspected and tagged but the water supply was cut off. Again, this was after the call-back inspection report was written.
In its Proposed Recommended Order, the Department recommends the imposition of a $12,000 fine, that Respondent serve a two-month suspension during which time they cannot accept rent, that Respondent not accept tenants who require assistance pursuant to the Agency for Health Care Administration Rules, and be required to attend an educational program sponsored by the Hospitality Education Program.
The Division cites to no authority to support its desire to require Respondent to not accept tenants who require assistance pursuant to the Agency for Health Care Administration rules. Moreover, while the Division clearly has statutory authority to place Respondent under suspension, the Division cites to no specific authority to require that no rent be accepted during any period of suspension. No evidence was presented as to whether or not residents can live in the facility during a period of suspension.
As to the proposed fine, Respondent presented significant mitigation evidence establishing that, albeit after being cited for violations by Mr. Crowley, Respondent went to significant effort and expense to correct the cited deficiencies. Accordingly, the proposed fine is excessive.
Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
That the Division enter a final order that imposes an administrative penalty in the amount of $3,000, places Respondent under probation for a period of two months after issuance of the Final Order, and requires Respondent to attend a Hospitality Education Program.
DONE AND ENTERED this 28th day of December, 2006, in Tallahassee, Leon County, Florida.
BARBARA J. STAROS
Charles F. Tunnicliff, Esquire Department of Business and
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.
