STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 79-591

) (23-140H) PRICE AND KAPLAN, INC. t/a )

PERSHING HOTEL, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Miami, Florida, on June 7, 1979, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Francis Bayley, Staff Attorney

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Meyer Kaplan

226 Northeast 1st Avenue Miami, Florida

ISSUE PRESENTED

Whether Respondent violated Chapter 509, F.S., and Chapter 7C, F.A.C., as stated in the Notice to Show Cause, filed March 13, 1979.

Meyer Kaplan, treasurer of Respondent corporation, appeared in behalf of the firm and was permitted to represent its interests during the course of the hearing.

FINDINGS OF FACT

1. Respondent Price and Kaplan, Inc. operate the Pershing Hotel located at

   226 Northeast 1st Avenue, Miami, Florida, under license No. 23-140H issued by Petitioner. (Testimony of Diaz)

   
   

2. On May 17, 1978, Petitioner's inspector, Orlando Diaz, inspected Respondent's premises and determined that there were apparent violations of Chapter 509, Florida Statutes and Chapter 7C, Florida Administrative Code, as follows:

   1. Paint was peeling on walls of room 204; a five inch hole existed in the wall next to the wash bowl in room 202; walls of public restroom and garbage closet on second floor are deteriorated and require repair; walls in room 301 need paint; walls in room 303, bedroom and bath, require plaster repair; walls in room 304 need paint and shower room ceiling requires repair, as well as toilet tank lid; walls in room 319, bedroom and shower room, need paint and repair, and venetian blinds are in bad condition and need repair; holes in wall in area near floor of room 316 need repair and toilet tank lid needs to be replaced; walls in public restrooms on third floor have decaying walls which need repair; walls in room 405 are in bad condition and need repair; walls in ceiling and bedroom and bathroom of room 412 are in need of repair; window and screens in room 414 need to be replaced and repaired as well as walls which need paint; walls in room 402 need repair; peeling paint on walls of room 401, bath, need repair; walls of bathroom in room 517 are in need of repair; walls of fifth floor public bathroom need repair and replacement of toilet tank lid; walls in garbage closet on fifth floor need repair; walls and ceiling in room 611 and screen and windows need repair; walls of room 605 have peeling paint and need repair; walls in room 603 need paint and screen repaired; walls in bedroom and bath of room 506 need paint and repair; room 205 has peeling paint and needs repair, and hand-washing bowl is extremely dirty; walls, ceiling, floors, and windows in storage room next to room 100 need repair; floor of linen room needs repair; walls, ceilings and windows of room 100 need repair. (Rule 7C-1.03(1))

      
      

   2. Furniture needs repair as follows: box spring broken and torn in room 505; chair upholstery open in room 506 and 614; legs of box springs missing in room 517; box springs torn and soiled in room 401; mattress and linen soiled and torn and no bed pads in room 412. (Rule 7C-3.01(6)(7)(9))

      
      

   3. Rodent droppings and infestation of roaches observed on the premises. (Rule 7C-1.03(3))

      
      

   4. Accumulation of garbage and trash on north and south side of building. (Rule 7C-1.03(7))

      
      

   5. Faucets in bathroom of room 603 need repair. (Rule 7C-3.01(1))

      
      

   6. Railing on rear fire stairway is loose and not anchored securely, and fire door on second floor is of a louver type and not solid. (Rule 7C- 1.04(3))

      
      

3. On July 25, 1978, inspector Diaz made a reinspection of the premises and found violations still existing. He therefore advised Respondent by letter of the necessary repairs to be made. On November 15, 1978, Diaz returned, accompanied by inspector Roger Brown. They found that a high percentage of the violations still had not been eliminated. On January 9, 1979, they again inspected the premises and found several violations still existing, particularly regarding trash in the exterior areas, and the loose fire stair railing. Further, a spot check of rooms 100, 405 and 414 revealed that required repairs had not been made, and that roaches were still evident on the premises. On June 6, 1979, inspector Brown found that trash and debris still existed in the outside alleys and rear of the building, that the garbage closet on the fifth floor had not been repaired. He further found that stairway railings on the fire stairs and third floor front stairs were not secure, and that walls and ceilings of rooms 100, 400, 405, and 516 still required repair. No bed pads were present in some twenty rooms that were spot checked and there was no doorknob on the door to room 104. (Testimony of Diaz, Brown)

4. Meyer Kaplan, treasurer of Respondent corporation, testified that some seventy or eighty of the rooms in the hotel had been painted and plastered, but that water leaks from deteriorated piping continuously required breaking walls in order to effect repairs. He stated that the Pershing Hotel was an old building with a poor plumbing system which repeatedly required maintenance. He further stated that the hotel had a carpenter present every day to make repairs, but that the hotel guests are destructive in nature, who become drunk and ruin mattresses and throw rubbish out of the windows. He stated that the rear railing had been repaired but that it was continually used improperly by guests which caused it to become loose again. Kaplan attributed some of the trash around the exterior of the premises to other adjacent hotels. (Testimony of Kaplan)

   
   

   CONCLUSIONS OF LAW

   
   

5. Petitioner seeks to suspend or revoke Respondent's public lodging establishment license or to assess a civil penalty against it for violations of Chapter 7C, Florida Administrative Code. The evidence establishes that Respondent committed numerous violations of Petitioner's rules as heretofore found in the following respects:

   
   

   1. Walls, ceilings, floors, stairs, windows, and fixtures were not kept in good repair, clean and painted in violation of Rule 7C-1.03(1).

      
      

   2. Roaches have not been kept exterminated in violation of Rule 7C-

      1.03(3).

      
      

   3. Premises, yards, and alleys have not been kept clean and free of

      debris in violation of Rule 7C-1.03(7).

      
      

   4. Plumbing has not been kept in good repair in violation of Rule 7C-

      3.01(1).

      
      

   5. Worn and badly soiled mattresses have not been replaced and

      mattress pads and comfortable bed springs have not been provided in violation of Rule 7C-3.01(6)

      
      

   6. Furniture and venitian blinds have not been renovated or replaced as needed in violation of Rule 7C-3.01(9).

      
      

      Although other violations of Petitioner's rules were revealed by inspection, they were not alleged in the Notice to Show Cause issued to Respondent and cannot be considered.

      
      

6. It it the duty of Petitioner to safeguard the public health, safety and welfare with respect to licensed public lodging establishments. After five inspections of the Pershing Hotel during the past year, Respondent still is not in compliance with many of the general, sanitation, and safety requirements established by rules of the Division of Hotels and Restaurants. It is recognized that the nature of Respondent's clientele and the age of the building pose continuous maintenance problems and that Respondent has made some effort to comply with regulatory requirements. It is obvious, however, that this effort has been insufficient to result in proper maintenance of the lodging establishment. It is therefore concluded that a reasonable period of license suspension is warranted for the past and present violations, and to afford Respondent an opportunity to attempt to rehabilitate the premises in order that it will reach state standards upon reinspection. It is concluded that a sixty-

day period should be sufficient for this purpose. To permit Respondent to continue operating its hotel under the present conditions would constitute a hazard to the safety, health, and welfare of the public.

RECOMMENDATION

That Petitioner suspend Respondent's license to operate the public lodging establishment located at 226 Northeast 1st Avenue, Miami, Florida, for a period of sixty (60) days from the date of the Final Order issued herein.

DONE and ENTERED this 22nd day of June, 1979, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Francis Bayley Staff Attorney

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Meyer Kaplan

226 Northeast 1st Avenue Miami, Florida

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MOTION TO MODIFY FINAL ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs. CASE NO. 79-591

PRICE AND KAPLAN, INC., t/a PERSHING HOTEL,

Respondent.

/

MOTION TO MODIFY FINAL ORDER

Petitioner, Division of Hotels and Restaurants, by and through its undersigned counsel, hereby moves for the entry of an Order reducing the penalty heretofore entered in the above-captioned case and as grounds therefore would asert the following matters which have occurred subsequent to the entry of the Final Order.

1. That the Final Order previously entered by the Division on July 18, 1979, required that Respondent's license be suspended for a period of 60 days and that Respondent correct all of the deficiencies noted in the Final Order.

   
   

2. That to date, Respondent has not corrected all of said violations.

   
   

3. That there is a purchaser willing to acquire the property from Respondent which purchaser is willing and able to promptly effectuate all the necessary corrections to make the premises in compliance with Chapter 509, Florida Statutes.

   
   

4. That the requirement of a 60-day suspension imposed at this time, best serve the interests of the Petitioner are since the new purchaser should be given sufficient and reasonable time to bring said premises into compliance with Chapter 509, Florida Statutes.

   
   

5. That the Division pursuant to Florida Statutes 509.261, has the power to impose a $500 fine for each offense in lieu of the suspension or revocation of a license.

   
   

6. That in lieu of a 60-day suspension, given the substantial number of offenses found against the Respondent, a fine of $3,000 would be just, equitable and proper.

7. That because the sale of said property is eminent and because effectuation of such sale would be in the best interest of the public since it would expedite completion of the repairs necessary to bring the facility into compliance with Chapter 509, Florida Statutes, a prompt disposition of this Motion is requested.

Wherefore, it is respectfully prayed that the Final Order in this matter be modified to reduce the penalty heretofore imposed from a 60-day suspension of Respondent's license to a fine imposed upon Respondent in the amount of $3,000.

Respectfully submitted,

HAROLD F.X. PURNELL

General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent by U.S. Mail to: MARSHALL G. IVES, ESQUIRE, 9215 S.W. 144 Street, Miami, Florida 33158 this 13th day of March, 1980.

HAROLD F.X. PURNELL

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MODIFIED AGENCY FINAL ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs. CASE NO. 79-591

PRICE AND KAPLAN, INC., t/a PERSHING HOTEL,

Respondent.

/

MODIFIED FINAL ORDER

This cause came upon Motion of the Petitioner to reduce the penalty of a 60-day suspension heretofore imposed in the Final Order entered in this matter on July 18, 1979 and it appearing that a reduction in said penalty is just and is in furtherance of the public welfare, it is thereupon

ORDERED AND ADJUDGED:

That the Final Order heretofore entered in this matter on July 18, 1979 is modified by withdrawing the suspension for a period of 60 days of Respondent's license and imposing in lieu thereof, a fine of $3,000 pursuant to Florida Statute 509.261(2).

DONE AND ORDERED this 13th day of March, 1980.

ANTHONY NIOS, DIRECTOR

Division of Hotels & Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

COPIES FURNISHED:

Harold F.X. Purnell General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Marshall G. Ives, Esquire 9215 S.W. 144 Street

Maimi, Florida 33158

Docket for Case No: 79-000591

Orders for Case No: 79-000591