STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 78-228

) ABE SCHONFELD, t/a ROSE GARDEN ) APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings, at 359 State Office Building, 1350 N.W. 12th Avenue, Miami, Florida, at 1:00 p.m., March 22, 1978.

APPEARANCES

For Petitioner: Lawrence D. Winson, Esquire

Department of Business Regulation 725 South Bronough

Johns Building

Tallahassee, Florida 32304

NOTE: Although the agent for the Respondent authorized to receive service for the Respondent, to-wit, Bonded Rental Agency of 4150 N.W. 7th Avenue, Miami, Florida, received the Notice of Hearing as shown by Composite Exhibit by the Petitioner No. 1; the Respondent did not attend the hearing. The agent for the Respondent in the person of Art Green of the Bonded Rental Agency informed the Petitioner before the hearing that the Respondent would not be in attendance at the hearing.

ISSUES

1. Whether or not the Respondent, Abe Schonfeld, who trades as Rose Garden Apartments, failed to remove an abandoned refrigerator from the porch of that apartment building on the third floor, in violation of Rule 7C-1.04(3) and Rule 7C-3.01(11), Florida Administrative Code.

   
   

2. Whether or not the Respondent, Abe Schonfeld, who trades as Rose Garden Apartments, failed to maintain painting on the outside of the building and failed to keep the windows and doors in good condition on the apartments 20, 23, 19, 18, 15, 30, 28, 35 and 27 in the building 430, in violation of Rule 7C- 1.03(1), Florida Administrative Code, and in violation of Rule 7C-1.03(3), Florida Administrative Code and Section 509.221(6), Florida Statutes.

3. Whether or not the Respondent, Abe Schonfeld, who trades as Rose Garden Apartments, failed to maintain the premises in a condition which is free of debris, in violation of Rule 7C-1.03 (7), Florida Administrative Code.

All the above alleged violations were noted in an inspection which occurred on March 25, 1977.

FINDINGS OF FACT

1. The Respondent, Abe Schonfeld, is the holder of license No. 23-919H. This license is held to do business as the Rose Garden Apartments located at 420 and 430 N.W. 9th Street, Miami, Florida. The license is held with the State of Florida, Department of Business Regulation, Division of Hotels and Restaurants. Abe Schonfeld also held this license on March 25, 1977.

   
   

2. On March 25, 1977, Leon Burrows, an Inspector I with the Petitioner, went to the licensed address, the Rose Garden Apartments. The purpose of his visit was to conduct an inspection of the premises. While at the premises, he discovered an abandoned refrigerator on the third floor porch in one of the apartment buildings of the complex. This refrigerator still had the doors attached. These doors were not secured or fastened as required by Dade County Ordinance. This presented a safety hazard for the children in the neighborhood. His inspection also revealed that the outside of the buildings which are involved in the complex need painting. In addition, windows and doors in certain apartments in building number 430 were not in good condition. Specifically, those windows and doors were flaking and need painting, presenting problems with leaks. These observations were made in the apartments no. 20, 23, 19, 18, 15, 30, 28, 35 and 27 of building 430.

   
   

3. Inspector Burrows also noted evidence of roaches in the apartment buildings, indicating that the proper extermination of pests was not being conducted by the apartment owner.

   
   

4. Finally, Inspector Burrows noted that there was a great amount of debris around the area of the apartments to include abandoned furniture, various kinds of garbage and broken glass in the parking lot area. All these things constituted a danger to the public.

   
   

5. The overall impression which Inspector Burrows had of the two buildings which constitute the licensed premises, was that the buildings were unfit for human habitation.

   
   

6. A recent visit shortly before the hearing was made by Inspector Burrows and he found the buildings to be vacant and it is his understanding that the buildings are to be demolished by Dade County, Florida, but to the conditions that are prevalent.

   
   

7. For the act of failing to remove the abandoned refrigerator from the porch on the third floor, the Respondent has been charged with violations of Rules 7C-1.04(3), and Rule 7C-3.01(11), Florida Administrative Code. Those provisions read respectively:

   
   

   Rule 7C-1.04 Safety Requirements.

   
   

   (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. Ade- quate means of exits from dining area and kitchen. All exit doors must swing out- ward and be equipped with automatic self- closing hardware. Exits shall be clearly marked with approved exit lights.

   
   

   Rule 7C-3.01 Sanitation.

   
   

   (11) Exit doors shall be automatic closing, opening outward.

   
   

8. A reading of these two provisions leads to the conclusion that neither of the provisions pertain to the problem of failing to remove the abandoned refrigerator from the porch of the apartment building; therefore, there has been no violation of the two requirements.

   
   

9. For failing to maintain the painting on the outside of the buildings and failing to maintain the windows and doors in good condition on building 430, the Respondent has been charged with a violation of Rule 7C-1.03(1), Florida Administrative Code, which states:

   
   

   1. Roofs, walls, ceilings, floors, stairs, steps, windows, transoms, shelves, fixtures, etc., shall be kept in good repair, clean and painted where applicable.

      
      

      The facts in this cause show that the Respondent has failed to meet the requirements of that conditions of the Florida Administrative Code and is therefore in violation.

      
      

10. The next substantive allegation of the notice to show cause pertains to failure to exterminate roaches and rats in the apartment buildings. There was no testimony pertaining to any extermination problem of the rodents and consequently that element of the allegation has not been proven. The specific violations alleged to have occurred because of the failure to exterminate the roaches are made under Rule 7C-1.03(3), Florida Administrative Code, and Section 509.221(6), Florida Statutes. Rule 7C-1.03(3), Florida Administrative Code reads as follows:

    
    

    (3) Insects, vermin, rodents, termites, etc., shall be kept exterminated.

    
    

    Failure to exterminate the roaches in the building constitutes a violation of that provision.

    
    

11. Likewise the problem with the roaches and the lack of their extermination is a violation of Section 509.221(6), Florida Statutes, which in its latter provision states that "any room in any such establishment (apartment building) infested with vermin or bedbugs shall be fumigated, disinfected, and renovated until said vermin or bedbugs are exterminated."

12. The final substantive charge in the notice to show cause was an allegation that the premises was not free from debris. That allegation was made under the terms of Rule 7C-1.03(7), Florida Administrative Code, which says that "premises, yards, alleys, etc., shall be kept clean, free of debris and properly drained." The testimony in this case establishes that the Respondent did not meet that obligation.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction in this cause.

    
    

14. The Notice of Hearing in this matter is found to be sufficient.

    
    

15. It is concluded as a matter of law, that the Petitioner has failed to provide that the Respondent is guilty of violations of Rule 7C-1.04(3) and Rule 7C-3.01(11), Florida Administrative Code, due to his allowing the abandoned refrigerator to remain on the porch of the third floor of the building.

    
    

16. It is concluded as a matter of law, that the Respondent has violated Rule 7C-1.03(1), Florida Administrative Code, for failing to maintain painting on the outside of the buildings in good condition and failing to keep the windows and doors in the aforementioned apartments in good condition, said apartments being located in building 430; therefore, the Respondent is subject to the penalties found in Section 509.261, Florida Statutes.

    
    

17. It is concluded that the Respondent has violated Rule 7C-1.03(3), Florida Administrative Code, and Section 509.221(6), Florida Statutes, for failing to maintain the extermination of the roaches in the apartment buildings, the Respondent is therefore subject to the penalties of Section 509.261, Florida Statutes.

    
    

18. It is concluded as a matter of law, that the Respondent has violated Rule 7C-1.03(7), Florida Administrative Code, for failing to maintain the premises in the condition which is free of debris, and Respondent is therefore subject to the penalties of Section 509.261, Florida Statutes.

RECOMMENDATION

It is recommended that the license No. 23-9197H held by Abe Schonfeld t/a Rose Garden Apartments at 420 and 430 N.W. 9th Street, Miami, Florida, be revoked.

DONE and ENTERED this 12th day of April, 1978, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Lawrence D. Winson, Esquire Department of Business Regulation 725 South Bronough Street

Johns Building

Tallahassee, Florida 32304

Abe Schonfeld

Rose Garden Apartments

420 - 430 Northwest 9th Street Miami, Florida

Art Green

Bonded Rental Agency 4150 N.W. 7th Avenue Miami, Florida 33127

Docket for Case No: 78-000228

Orders for Case No: 78-000228