STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF HOTELS AND RESTAURANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2429

) MILTON RADER, d/b/a RADER ROOMING ) HOUSE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings by its duly-designated Hearing Officer, Robert T. Benton, II, on April 13, 1981.

APPEARANCES

For Petitioner: Mary Jo M. Gallay, Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Milton Rader, in propria persona.

By notice to show cause dated November 5, 1980, Petitioner alleges, in haec verba:

1. Violation of Rule 7C-1.04(1), Fire extinguishers are not ad[e]quately provided as required.

   
   

2. Violation of Rule 7C-1.04(3), Public areas (toilets) are not ad[e]quately illuminated.

   
   

3. Violation of Rule 7C-1.03(1), & Violation of Section 509.221(8), Florida Statutes, Broken windows; torn & missing screening; noted in public toilets.

   
   

4. Violation of Rule 7C-2.02(1)(d)(2)(c),

   Inadequate supply of hot water to sinks & showers.

   
   

5. Violation of Section 509.221(2), Florida Statutes, Unacceptable hand rail on 2 story building stairways.

6. Violation of Rule 7C-1.[0]3(5),(7), Grounds around and under building littered with trash and garbage.

FINDINGS OF FACT

1. Arnold J. Pergament, an employee of Petitioner for almost 20 years, has been inspecting rooming houses licensed by Petitioner in Belle Glade for almost all of that time. For many years, he has inspected Rader's Rooming House at 657 Southwest Avenue E in Belle Glade, which consists of two buildings owned by Respondent, to whom Petitioner has issued license No. 60-00737H, covering the premises. A two-storied stucco-on-wood building contains six to eight separately rented rooms and a frame building with a single story is divided into about a dozen units. Their exterior walls are weather-beaten and deteriorated; there is evidence of wood rot.

   
   

2. On August 13, 1980, Mr. Pergament, in conducting a routine inspection, found only two fire extinguishers, not the three he testified were required for Respondent's premises. There was no fire extinguisher on the ground floor of the stucco-on-wood building. There were no light bulbs in at least some of the public bathrooms; in all, there were four bathrooms, one per building for each sex. The bathrooms needed cleaning and some had torn or missing screens. Trash and garbage had accumulated under the buildings and on the grounds. A stair railing consisted of a pipe supported by dangerously infrequent uprights. All these items and more Mr. Pergament noted on a public lodging inspection record. Petitioner's Exhibit No. 1. After marking it to indicate that it was a warning, he personally delivered a carbon copy of the inspection record to Respondent at his office. On the form, Respondent was advised that minor violations in the operation of his establishment were to be corrected by October 13, 1980. Petitioner's Exhibit No. 1.

   
   

3. Mr. Pergament returned to Rader's Rooming House on October 15, 1980 to find trash and garbage, including broken glass, on the grounds and under the buildings, an unaltered stair railing, and no fire extinguisher on the ground floor of the stucco building. In the bathroom, light bulbs were missing, windows were broken, screens were torn and missing; and no hot water was available in the sinks or showers. He noted these matters in a contemporaneous reinspection report, Petitioner's Exhibit No. 2, a copy of which was mailed to Respondent. On November 25, 1980, Mr. Pergament returned and reinspected. A hall was being painted but the matters specified in Petitioner's Exhibit No. 2 were substantially unchanged.

   
   

4. On the morning of the final hearing, Mr. Pergament and James R. Gallagher inspected Rader's Rooming House and found a new stair railing that Mr. Pergament testified was satisfactory. A third fire extinguisher had been installed. Although it lacked an "approved" tag, it had a tag with a date on it. There was hot water. Fluorescent light bulbs in the bathroom were missing and bathroom windows were broken. The ground were littered with trash of apparently recent origin.

   
   

5. Johnny Marchane Lewis is one of four men who regularly work for respondent, who owns other rental property in addition to Rader's Rooming House. Mr. Lewis replaced some windows and screens last summer at Rader's Rooming House, again two months later, and again in March of 1981. The week before the final hearing, he discovered a missing screen, which he replaced, but no other problems with screens or broken windows.

6. On the Saturday before the final hearing, Tommy Lee Williams, another of Respondent's employees, cleared the grounds at Rader's Rooming House, but he testified that garbage might still remain under the buildings. Five months previously, Respondent's men had cleared under the buildings. Somebody rakes "the yard" every other day. Mr. Williams fixed the hot water heater twice, once by replacing the heating element and once by replacing a switch. Although he does not live there, Mr. Williams visits Rader's Rooming House more than once a week.

   
   

7. Mr. Pergament testified that he had never had a problem with Respondent's trying to make repairs to any of his properties, and Respondent testified that he tried to make all repairs promptly and would have been more prompt about seeing to the stair railing, except that he misunderstood which railing was meant in Petitioner's Exhibit No. 1. As Respondent conceded, there was no reasonable basis for his misunderstanding, but he did take steps to remedy the situation when he understood the problem.

   
   

   CONCLUSIONS OF LAW

   
   

8. Petitioner is empowered to "suspend or revoke the license of any public lodging establishment . . . that has operated or is operating in violation of any of the provisions of . . . chapter [509] or the rules of the division." Section 509.261(1), Florida Statutes (1979). In lieu of suspension or revocation, petitioner "may impose fines against licenses for such violations .

   . . [not to] exceed $500 for each offense." Section 509.261(2), Florida Statutes (1979).

   
   

9. In the present case, Petitioner demonstrated that Respondent operated Rader's Rooming House in violation of Rule 7C-1.03(7), Florida Administrative Code, which requires that licensed premises "yards, alleys, etc., shall be kept clean, free of debris and properly drained." There was no showing, however, that outside garbage receptacles were inadequate in violation of Rule 7C- 1.03(5), Florida Administrative Code. While the evidence reveals efforts by Respondent to keep the grounds clean, the efforts have been inadequate.

   
   

10. The evidence showed that the handrailing on the stairway was unsafe, and Respondent did not really contest this at the hearing. He was not clear from the evidence whether the handrail was mounted securely enough to give support to a person ascending or descending the stairs, but Mr. Pergament's testimony that the intervals between uprights were a hazard was uncontraverted. The law requires that public lodging establishments "be operated with strict regard to the health, comfort, and safety of the guests." Section 509.221(2), Florida Statutes (1979). See also Rule 7C-1.04(3), Florida Administrative Code.

    
    

11. Petitioner's rules require that all "fixtures, except water closets shall have both hot and cold water." Rule 7C-2.02(1)(d), (2)(c), and (3)(d), Florida Administrative Code. The fact that a hot water heater fails and is repaired does not, in itself, constitute a violation of these rule provisions. The evidence established nothing more.

    
    

12. The evidence showed recurring problems with windows and screens in at least some of the bathrooms, and only sporadic efforts to repair them. The operator of a public lodging establishment is required to "keep all flies out of such establishment." Section 509.221(8), Florida Statutes (1979). Windows are to "be kept in good repair." Rule 7C-1.03(1), Florida Administrative Code.

13. Failure to illuminate public toilets does not constitute a violation of Rule 7C-1.04(3), Florida Administrative Code, which pertains to halls, closets, stairways, entrances, and exits, but not to bathrooms. Fire extinguishers are required "for each 3,000 square feet or less of floor space on each floor." Rule 7C-1.04(1), Florida Administrative Code.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That Petitioner impose a fine against Respondent in the amount of $100.00. DONE and ENTERED this 12th day of May, 1981, in Tallahassee, Florida.

COPIES FURNISHED:

Mary Jo M. Gallay, Esquire 725 South Bronough Street Tallahassee, FL 32301

Milton Rader

Rader's Rooming House 657 Southwest Avenue E Belle Glade, FL 33430

Norman J. Hayes

538 State Office Building 1350 Northwest 12th Avenue Miami, FL 33136

Lewis Reif

Robert Hayes Gore Building Room 104

201 West Broward Boulevard Fort Lauderdale, FL 33301

ROBERT T. BENTON, II, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1981.

Docket for Case No: 80-002429

Orders for Case No: 80-002429