STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 80-140

)

MICHAEL COHEN, t/a )

CAPRICORN APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a hearing officer with the Division of Administrative Hearings. The hearing was held on March 12, 1980, in the State Office Building, 1350 Northwest 12th Avenue, Miami, Florida.

APPEARANCES

For Petitioner: Harold F.X. Purnell, Jr., Esquire

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

For Respondent: Malcolm B. Wiseheart, Jr., Esquire

Suite 402, Security Trust Building 700 Brickell Avenue

Miami, Florida 33131 ISSUE

1. Whether or not the Respondent on September 24, 1979, was guilty of failing to keep his building located at 13251 Northeast Memorial Highway, North Miami, Florida, in a serviceable condition in that he allowed roof leaks to exist in apartments 3 and 9, in violation of Rule 7C-1.03(1), Florida Administrative Code.

   
   

2. Whether or not the Respondent on September 24, 1979, was guilty of failing to repair plumbing in the aforementioned apartments 3 and 9, in violation of Rule 7C-3.01(1), Florida Administrative Code.

   
   

3. Whether or not the Respondent on September 24, 1979, was guilty of failing to keep the outside public areas of the aforementioned apartment building free of weeds and overgrown bushes in violation of Rule 7C-1.03(7), Florida Administrative Code.

(The above cited issues are statements of the allegations found in various counts of the Notice to Show Cause/Administrative Complaint filed against the Respondent by the Petitioner. There were two additional counts, namely, Count II and Count IV to the Notice to Show Cause/Administrative Complaint; however, these items were dismissed by the Petitioner during the course of the hearing and this dismissal was unopposed.)

FINDINGS OF FACT

1. This case is presented for consideration on the basis of a Notice to Show Cause/Administrative Complaint filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Hotels and Restaurants, against Michael Cohen, trading as Capricorn Apartments, Respondent. In fact, the 13251 Corporation, Inc., trades as Capricorn Apartments and is licensed by the Petitioner for the apartment business located at 13251 Northeast Memorial Highway, North Miami, Florida. That corporation was also the owner of the apartment building in September and October, 1979, and it is the licensee listed with the Petitioner. The license control number is 23-08555H. Michael Cohen, the named Respondent, is the President of the 13251 Corporation, Inc.

   
   

2. On September 24, 1979, Inspector John D. McKinnon, an employee for the Petitioner, went to the Respondent's apartment building at 13251 Northeast Memorial Highway, North Miami, Florida, for purposes of conducting a premises inspection. In apartment 3, one of the units in the apartment complex, he found that the tenant had removed a panel on the wall and placed a bucket there for purposes of catching water that was periodically leaking into the apartment. There was no evidence at this point of any active leak, nevertheless the stains on the wall showed that the leak problem did exist. The source of the water leak was never determined, leaving open the possibility that it could have been caused by some problem created by the tenants living on the second floor above apartment 3 or by a roof leak, or other source for which the owner is responsible. There was an additional problem in apartment 3 where plumbing under one of the sinks was leaking and a catch bucket had been placed to collect the water.

   
   

3. There was a problem in apartment 9, which is also located on the first floor. In that apartment newspaper had been placed on the floor to catch water which was coming in from the ceiling. Again, the origins of that water were never discovered, whether it was the fault of some second floor tenant above apartment 9 or a roof leak, or other source for which the owner is responsible.

   
   

4. An examination of the grounds adjacent to the apartment building revealed tall bushes and weeds and a number of bottles, cans and pieces of paper.

   
   

5. This inspection by McKinnon was a "call back" inspection which followed an earlier inspection of September 11, 1979, that earlier inspection revealing the same deficiencies.

   
   

   CONCLUSIONS OF LAW

   
   

6. It is recommended that the style of this action be corrected to read, "State of Florida, Department of Business Regulation Division of Hotels and Restaurants, Petitioner vs. 13251 Corporation, Inc., t/a Capricorn Apartments, Respondent: and for the purpose of this Recommended Order the style is so corrected.

7. The Division of Administrative Hearings has jurisdiction over the subject matter and those parties reflected in the corrected style set forth in paragraph 1 of these Conclusions of Law.

   
   

8. The Petitioner by filing its Composite Exhibit No. 1, which was admitted into evidence, has requested that official notice and recognition be taken of Rules 7C-1.03 and 7C-3.G1, Florida Administrative Code, and that request is granted.

   
   

9. By Count I of the Notice to Show Cause/Administrative Complaint, Petitioner has accused the owner of the Capricorn Apartments with failing to keep the building in a serviceable condition, in that apartments 3 and 9 had roof leaks, in violation of Rule 7C-1.03(1), Florida Administrative Code. That provision reads:

   
   

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

      
      

      A review of the facts related in this Recommended Order points out that there is insufficient proof to establish any roof leaks related to the named apartments or to establish that any other items which require maintenance under the terms and conditions of Rule 7C-1.03(1) , Florida Administrative Code, had not been so maintained. Therefore, it is recommended that Count 1 be dismissed.

      
      

10. Count III to the Notice to Show Cause/Administrative Complaint alleges that the owner failed to repair plumbing in apartments 3 and 9, in violation of Rule 7C-3.01(1), Florida Administrative Code. That provision states:

    
    

    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 on adequate disposal system.

       
       

       The facts of the case establish that the plumbing in apartment 3 was not kept in good repair, in violation of the said Rule and the Respondent is subject to the penalties set forth in Section 509.261, Florida Statutes.

       
       

11. Count V to the Notice to Show Cause/Administrative Complaint accuses the owner with a failure to keep the outside public areas of the apartment complex free of weeds and overgrown bushes, in violation of Rule 7C-1.03(7), Florida Administrative Code. That provision states:

(7) Premises, yards, alleys, etc. shall be

kept clean, free of debris and properly drained.

The facts reveal that there were inordinately tall weeds and bushes on the grounds and for this reason, the yard was not kept clean as contemplated by the subject Rule and the Respondent is in violation and subject to the penalties set forth in Section 509.261, Florida Statutes.

RECOMMENDATION

It is RECOMMENDED that the Respondent, 13251 Corporation, Inc., holder of license No. 23-5555t to trade as Capricorn Apartments at 13251 Northeast

Memorial Highway, North Miami, Florida, he fined in the amount of Fifty Dollars ($50.00) for the violation established through Count III and in a similar amount for the violation established in Count V. (In keeping with the opportunity to submit Proposed Findings of Fact, Conclusions of Law and a Recommendation, the Respondent has submitted its proposal. Its proposal has been reviewed in preparing the Recommended Order and to the extent that it is not inconsistent with the Recommended Order, it has been utilized. To the extent that it is inconsistent, it is hereby rejected.)

DONE AND ENTERED this 1st day of April, 1980, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Harold F.X. Purnell, Jr., Esquire General Counsel

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

Malcolm B. Wiseheart, Jr., Esquire Suite 402, Security Trust Building 700 Brickell Avenue

Miami, Florida 33131

Docket for Case No: 80-000140

Orders for Case No: 80-000140