STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ) HOTELS AND RESTAURANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1727

)

ROBERT J. GROVER, TRUSTEE, ) t/a THE FLORENCE APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held on Wednesday, September 2, 1976, at 9:30 A.M., before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings at 7880 Northwest 36th Street, Miami, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Division of Beverage The Johns Building 725 Bronough Street

Tallahassee, Florida 32304

For Respondent: George A. Frix, Owner

365 Northeast 125th Street North Miami, Florida 33161

ISSUES

1. Whether or not upon inspection conducted by the Petitioner on February 26, 1976, the Respondent failed to have installed exit lights, signs, and globes for the first and second floors, in violation of Section 509.211(2), Florida Statutes and Rule 7C-1.04(3), Florida Administrative Code.

   
   

2. Whether or not upon inspection conducted by the Petitioner on February 26, 1976, the Respondent failed to provide a handrail installation from the second to the first floor in violation of Rule 7C-1.03(1), Florida Administrative Code.

FINDINGS OF FACT

1. The Respondent now holds, and on February 26, 1976, held license no. 23-893H, with the State of Florida, Department of Business Regulation, Division of Hotels and Restaurants.

   
   

2. An inspection conducted by inspectors for the Petitioner on February 26, 1976, done at the Florence Apartments, 710 Northeast 127th Street, North

   Miami, Florida, revealed globe lights in the areas of the exits of the first and second floors. These lights were white in color and did not indicate by writing that the areas illuminated were in fact exits. There were no other signs or apparatuses indicating the areas as exits.

   
   

3. Inspection on that same day, to wit, February 26, 1976, and in the same location revealed that the rear stairwell within the subject building, within the first and second floors of the building, did not have a handrail presently installed on that rear stairway as called for in Rule 7C-1.03(1), Florida Administrative Code. There had been a handrail there before, but it was removed prior to the inspection. The rear stairs were flanked on one side by a full wall running from the floor to the ceiling, and by a parallel waist high wall opposite the full wall, which may be described as a banister. This banister wall was approximately 4" thick, running the length of the stairs, with a flat surface atop the banister. The flat surface spoken of does not serve the function of a handrail.

   
   

4. The subject building was constructed prior to January 1, 1970 and is an apartment house within the meaning of Chapter 509,F.S.

   
   

   CONCLUSIONS OF LAW

   
   

5. The operative sections of the Florida Statutes and the Florida Administrative Code possibly pertaining to count number one state the following:

   
   

   Section 509.211, Florida Statutes, Safety regulations -

   1. As used in this section the term "public lodging establishment" shall not be construed to mean apartment houses, town- houses, or cooperative or condominium apart- ment building which are subject to regula- tions as provided in s. 509.2111.

      
      

   2. Every public lodging or public food service establishment shall have signs dis- played in all hallways indicating all fire excapes, stairways and exits.

      
      

      1. Section 509.2111, Florida Statutes, Safety regulations for apartment houses, townhouses, and cooperative or condominium apartment buildings -

         1. With respect to the construction of apartment houses, townhouses, and coopera- tive or condominiums apartment buildings, in those areas of the state which have local or district building codes and inspection re- quirements which are substantially consis- tent with, or more stringent than, the Southern Standard Building Code, as amended, or the South Florida Building Code when applicable, if the plans and specifications for such building or buildings have been prepared by, and reflect the seal of, a Florida registered architect or a Florida registered professional engineer and such

            architect or engineer has certified that the plans comply with the local or district building codes then the plans and specifi- cations shall be submitted to the supervising architect of the Division of Hotels and Restaurants only for his verification, except when such building or buildings will be built in an area which is subject to local or dis- trict building codes and inspection require- ments as set forth herein and that inspec- tions are made as required by the building code, which fact shall then be endorsed on the plans and specifications by the super- vising architect. When the division deter- mines that a county or municipality provides for satisfactory inspection and approval of plans and specifications it may use such approval in lieu of approval by the super- vising architect of the division. When such county or municipal approval is used in lieu of division approval, the fees charged by the division for such inspection shall be waived.

            
            

      2. Rule 7C-1.04, Florida Administrative Code, Safety Requirements - The following general requirements and standards shall be met by all public lodging and food service establishments:

      (3) Halls, closets, stairways, entrances, exits - Halls closets and stairways shall be kept free from obstructions and fire hazards. Halls, entrances and stairways must be clean, ventilated and well-lighted day and night and hall and stair runners kept in good condition. Handrails shall be installed on all stairways and guard rails

      around all porches and steps. Adequate means of exits from dining area and kitchen. All exit doors must swing outward and be equipped with automatic self-closing hardware. Exits shall be clearly marked with approved exit lights.

      
      

6. A reading of Section 509.211(1), F.S., indicates the meaning to be given the term "public lodging establishment," and that meaning excludes consideration of apartment houses as covered by Section 509.2111, Florida Statutes. Therefore, Section 509.211(2), Florida Statutes, and Rule 7C-1.04(3), Florida Administrative Code, which speak to the requirements for exits, do not have application to apartment houses such as that of the Respondent. The requirements for compliance with safety regulations for apartment houses are as set forth in Section 509.2111, Florida Statutes, if there is to be any requirements of compliance. Because Section 509.2111, Florida Statutes was not enacted until 1970 and the building of the Respondent was constructed prior to 1970, neither Section 509.211(2), Florida Statutes, Rule 7C-1.04(3), Florida Administrative Code nor Section 509.2111, Florida Statutes, would have application to the Respondent. Therefore, the allegation in count one (1) is not established.

7. It is concluded as a matter of law, that the Respondent in failing to maintain the handrails which had been installed in the rear stairwell of the building, as described in the findings of fact, is in violation of the requirements of Rule 7C-1.03, Florida Administrative Code, that it keep the stairs etc. in good repair, and is thereby subject to the penalties as set forth in Section 509.261, Florida Statutes.

   
   

   RECOMMENDATION

   
   

8. It is recommended that a fine in the amount of $100.00 be imposed in lieu of suspension or revocation, for the violation as established in count two

1. of the complaint.

DONE and ENTERED THIS 8th day of October, 1976, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

George A. Frix Owner

365 Northeast 125th Street North Miami, Florida 33161

Charles F. Tunnicliff, Esquire Division of Beverage

The Johns Building 725 Bronough Street

Tallahassee, Florida 32304

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF HOTELS AND RESTAURANTS

STATE OF FLORIDA, DIVISION OF HOTELS AND RESTAURANTS,

Petitioner,

vs. CASE NO. 76-1727

FILE NO. 23-893H

ROBERT J. GROVER, TRUSTEE, t/a THE FLORENCE APARTMENTS,

Respondent.

/

FINAL ORDER

Pursuant to notice a hearing was held on Wednesday, September 2, 1976, at 9:30 a.m., before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings at 7880 Northwest 36th Street, Miami, Florida.

APPEARANCES

Charles F. Tunnicliff, Esquire Division Of Hotels and Restaurants Johns Building

725 South Bronough Street Tallahassee, Florida 32304

Appearing on behalf of the Petitioner

George A. Frix Owner

365 Northeast 125th Street North Miami, Florida 33161

Appearing on behalf of the Respondent

ISSUES

1. Whether or not upon inspection conducted by the Petitioner on February 26, 1976, the Respondent failed to have installed exit lights, signs, and globes for the first and second floors, in violation of Section 509.211(2), Florida Statutes and Rule 7C-1.04(3), Florida Administrative Code.

   
   

2. Whether or not upon inspection conducted by the Petitioner on February 26, 1976, the Respondent failed 1, 1970 and is an apartment house within the meaning of Chapter 509 Florida Statutes. The Respondent raised a question as to the sufficiency of the Notice, as to the allegations of violations of section 509.211, Florida Statutes. The contention was that section 509.211 excluded apartment houses from the requirements of its provisions.

CONCLUSIONS OF LAW

1. The operative sections of the Florida Statutes and the Florida Administrative Code possibly pertaining to count number one state the following:

   
   

   Section 509.211, Florida Statutes, Safety regulations -

   1. As used in this section the term "public lodging establishment" shall not be construed to mean apartment houses, townhouses, or cooperative or condominium apartment building which are subject to regulations as provided in section 509.2111.

      
      

   2. Every public lodging or public food service establishment shall have signs dis- played in all hallways indicating all fire escapes, stairways and exits.

      
      

      Section 509.2111, Florida Statutes, Safety regulations for apartment houses, townhouses, and cooperative or condominium apartment buildings -

      (1) With respect to the construction of apartment houses, townhouses, and cooperative or condominium apartment buildings, in those areas of the state which have local or dis- trict building codes and inspection require- ments which are substantially consistent with, or more stringent than, the Southern Standard Building Code, as amended, or the South Florida Building Code when applicable, if the plans and specifications for such building or buildings have been prepared by, and reflect the seal of, a Florida registered architect or a Florida registered profes- sional engineer and such architect or engi- neer has certified that the plans comply with the local or district building codes then the plans and specifications shall be submitted to the supervising architect of the Division of Hotels and Restaurants only for his verification, except when such building or buildings will be built in an area which is subject to local or district building codes and inspection requirements as set forth herein and that inspections are made as re- quired by the building code, which fact shall then be endorsed on the plans and specifications it may use such approval in lieu of approval by the supervising architect of the Division. When such county or munici- pal approval is used in lieu of Division approval, the fees charged by the Division for such inspection shall be waived.

      Rule 7C-1.04, Florida Administrative Code, Safety Requirements - The following general requirements and standards shall be met by

      all public lodging and food service establish- ments:

      (3) Halls, closets, stairways, entrances, exits - Halls closets and stairways shall be kept free from obstructions and fire hazards. Halls, entrances and stairways must be clean, ventilated and well lighted day and night and hall and stair runners kept in good condi- tion. Handrails shall be installed on all stairways and guard rails around all porches and steps. Adequate means of exits from dining area and kitchen. All exit doors must swing outward and be equipped with automatic self-closing hardware. Exits shall be clearly marked with approved exit lights.

      
      

2. Section 509.211, sets out in eleven further subsections various guidelines for both construction of public lodging establishments and safety regulations providing for the maintenance of existing establishments. Subsection (2) of 509.211 provides the following safety regulation guidelines:

   
   

   509.211(2) - Every public lodging or public food service establishment shall have signs displayed in all hallways indicating all fire escapes, stairways and exits.

   
   

3. Section 509.2111 of the Florida Statutes entitled "Safety Regulations for Apartment Houses, Townhouses, and Cooperative or Condominium Apartment Buildings" applies to the construction of these buildings, as the first sentence in subsection (1) indicates. There is no reference within section 509.2111 relating to the maintaining of safe premises after construction nor are there any provisions for displaying signs indicating fire escapes, stairways, and exits and the like.

   
   

4. To conclude that apartment houses, townhouses, and cooperative or condominium apartments do not have to maintain adequate safety regulations after construction is an untenable position. That such a conclusion could be reached upon a cursory reading of section 509.211 is admittedly arguable. For that section seems to conclude apartment houses, townhouses, and cooperative or condominium apartments from the scope of its jurisdiction upon first reading.

   To so conclude, however, would mean that those establishments need not maintain the requisite safety regulations that all other public lodging establishments are required to maintain. A more logical construction and the one best in keeping with the intent of the Legislature is that section 509.211 simply excludes apartment houses, townhouses, and cooperative or condominium apartment buildings from its authority only in those instances in which those structures are encompassed within section 509.2111. If, however, section 509.2111 does not cover all the areas that section 509.211 encompasses, then apartment houses, townhouses, and cooperative or condominium apartment buildings would be encompassed within section 509.211. This is the evident intent of the Legislature and the clear meaning of the language since section509.2111 refers only to the construction of apartment houses, townhouses, and cooperative or condominium apartment buildings, whereas section 509.211 refers both to

   construction and continuing maintenance of safety features following construction.

   
   

5. This, then, is the correct construction to be made of section 509.211 and the obvious intent of the Legislature. Any other construction would lead to an absurd result; that apartment houses and the like need not have adequate lighting (509.211[2][7]) fire escapes (509.211[6]), fire extinguishers (509.211[8]) and so on. Such construction leading to an absurd result should not be adopted when the statute considered in its entirety is fairly subject to another interpretation that will aid in accomplishing the legislative intent. Miami v. Romfh, 63 So. 440 (1913)

   
   

6. Finally, one more note of statutory construction. It has been suggested to the Division at various times that buildings constructed prior to the effective enactment of Section 509 or any subsection therein is not, or should not be applicable to such an establishment. This position is extremely tenuous and borders on the absurd. When a statute is expressed in general terms and in words of the present tense, it is generally construable to apply not only to things and conditions existing at the time of its passage, but will be given perspective effect and made to apply to such as come into existence thereafter. State v. Miami, 134 So. 609 (1931). In an opinion issued by the Attorney General on December 5, 1953, the following appears:

   
   

   "It has been repeatedly held that the posses- sion and enjoyment of all rights are subject to the police power and that persons or property are subject to restraints and burdens necessary to secure the comfort, health, welfare, safety and prosperity of the people."

   
   

   "In all Am. Jur. page 1200, in a statement supported by extensive authorities, it is stated that: "There can, in the nature of things, be no vested right in an existing law which precludes its change or repeal,

   nor vested right in the omission to legislate on a particular subject. In no case is there an implied promise on the part of the state to protect its citizens against incidental injury occasioned by changes in the law.

   Every citizen in making his arrangements in reliance on the continued existence of laws takes on himself the risk of their being changed, and the state incurs no responsi- bility in consequence of the change proving injurious to his private interests." "In Taylor v. Trianon Amusement Co., 200 So.

   912, 146 Fla., 447, it was said that: 'It cannot be denied that property rights are protected by the fundamental law but the courts in the protection of these constitu- tional rights of property have never held that the use thereof cannot be regulated under the police power."

   Opinion of the Attorney General 053-321.

7. Chapter 509, Florida Statutes, applies to all existing public lodging establishments and food service establishments in the State of Florida. It would be a broad stretch of the imagination to conclude that any establishments constructed before the effective enactment of Chapter 509 would, therefore, not fall within the purview of its authority. Chapter 509 is aimed at securing the public welfare and insuring the habitability and safe operation of such establishments, whenever and wherever they were built.

   
   

8. The Notice to Show Cause is therefore not deficient in alleging violations of Section 509.211. The Notice adequately conferred jurisdiction upon the Division to prosecute.

   
   

9. It is therefore the finding of the Director that the charges alleged in Count I of the Notice to Show Cause have indeed been violated; that section 509.211(2) and Rule 7C-1.04(3), FAC have been violated.

   
   

10. It is concluded as a matter of law, that the Respondent in failing to maintain the handrails which had been installed in the rear stairwell of the building, as described in the findings of fact, is in violation of the requirements of Rule 7C-1.03, Florida Administrative Code, that it keep the stairs, etc. in good repair, and is thereby subject to the penalties as set forth in Section 509.261, Florida Statutes.

ORDER

It is, therefore, Ordered that a fine in the amount of $50.00 be imposed in lieu of suspension or revocation for the violation as established in counts one and two of the Complaint.

DONE AND ORDERED this 8th day of November, 1976, in Tallahassee, Florida.

Anthony Ninos Director

Division of Hotels and Restaurants Johns Building

725 South Bronough Street Tallahassee, Florida 32304

You have the right to appeal this Order to the Board of Business Regulation by filing Notice of Appeal with the Executive Director, Department of Business Regulation, 219 Johns Building, Tallahassee, Florida, within 20 (twenty) days from the date of this Order.

Pursuant to Rule 7-1.22, Department of Business Regulation Appellate Rules, you must enclose a check or money order made payable to the Department of Business Regulation for $25.00 as a filing fee.

Docket for Case No: 76-001727

Orders for Case No: 76-001727