STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF HOTELS ) AND RESTAURANTS, STATE OF )

FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1189

)

EDWARD W. AND VIRGINIA ) HENDERSON, d/b/a PORT-OF-CALL, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Tallahassee, Florida, on September 29, 1977, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Lawrence C. Winson, Esquire

Department of Business Regulation The Johns Building, Suite 210

725 South Bronough Street Tallahassee, Florida

For Respondent: John W. Meshad, Esquire

100 South Washington Boulevard Sarasota, Florida 33577

ISSUE PRESENTED

Whether Respondents' Division of Hotel and Restaurants' license should be suspended or revoked, or a civil penalty assessed for alleged violation of Division Rule 7C-4.01(5)(c) and Florida Statute s. 509.221, as set forth in Notice to Show Cause issued by the Petitioner.

FINDINGS OF FACT

1. On April 19, 1977, Johnny Bell, inspector for petitioner's Division of Hotels and Restaurants, received notification from the Health Department of Sarasota County that respondents' place of business, Port-of-Call, resort apartments located at Longboat Key, Florida, was not connected to the sewerage system of Longboat Key. Bell inspected respondents' premises and discovered that a septic tank system was in use at the Port-of-Call. He informed respondents that they must connect to an "approved" sewerage system within sixty

   (60) days. On June 20, 1977, Bell returned to the premises and found that no action had been taken to connect to the Longboat Key system. Respondent Edward

   W. Henderson informed him that he should not have to go on such a system because his septic tanks were adequate and functioning properly. Bell did not examine the septic tanks or ascertain if they were, in fact, in proper condition and operating satisfactorily. He proceeded to issue a Notice to Show Cause as to why respondents' license No. 68-606H should not have a civil penalty assessed against it or be suspended or revoked. The stated cause for such intended action was as follows:

   
   

   "Division Rule 7C-4.01(5)(c) ; Florida Statutes

   509.221 -- Failure to have sewage system hooked into public sewerage system."

   
   

   The Notice to Show Cause also informed respondents of their right to an Administrative Hearing under Chapter 120, Florida Statutes. Respondents thereafter requested such a hearing. There is no food operation at the Port-of- Call. (Testimony of Bell, Exhibit 1)

   
   

   CONCLUSIONS OF LAW

   
   

2. The statutory provision under which petitioner seeks to take action against respondents' license reads pertinently as follows:

   
   

   "509.221 Sanitary Regulation.--

   
   

   1. In all cities, towns, and villages, where a system of waterworks is maintained for public use, every public lodging establishment and every public food service establishment therein operated shall, within 60 days after a receipt of notice from the division, be equipped with suitable toilets for the accommodation of its guests, and such toilets shall be connected by proper plumbing to an approved sewerage system and means of flushing such toilets with the water of said system in such manner as to

      prevent sewer gas or effluvia from arising therefrom .

      . . . (Emphasis supplied)

      
      

3. Petitioner, in addition to the foregoing statutory provision, cited Rule 7C-4.01(5)(c), Florida Administrative Code, as authority for its proposed action. This rule, which provides that sewage shall be disposed of in a public sewerage system or other approved sewerage system in accordance with the provisions of Chapter 28-6-- Rules of the Florida Air and Water Pollution Control Commission, is inapplicable to the situation at hand since Chapter 7C-4 deals only with public food service establishments. Respondents' place of business does not serve food.

   
   

4. Petitioner's only rule that concerns sewage disposal with respect to public lodging establishments such as that of respondents, is Rule 7C-3.01, which provides as follows:

   
   

   "7C-3.01 Sanitation.

   
   

   1. Plumbing and drainage -- All plumbing shall be properly installed and kept in good repair and plumbing and drainage shall be connected to lawful sewerage or adequate disposal system. (Emphasis Supplied)

5. Thus, Rule 7C-3.01(1) permits connection to any disposal system which is "adequate." There was no showing by petitioner that respondents' septic tank system is inadequate or does not function properly. It might be that the aforesaid rule conflicts with the statute which speaks of an approved sewerage system. However, under the circumstances, with the extant rule, there is no basis for imposing a penalty against respondents on the grounds stated in the Notice to Show Cause.

RECOMMENDATION

That the charges against respondents be dismissed.

Done and Entered this 10th day of October, 1977, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Lawrence C. Winson, Esquire Department of Business Regulation The Johns Building, Suite 210

725 South Bronough Street Tallahassee, Florida 32304

John W. Meshad, Esquire

100 South Washington Boulevard Sarasota, Florida 33577

Docket for Case No: 77-001189

Orders for Case No: 77-001189