STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-020

) (H&R NO. 26-1943-H)

EUGENE T. CALLAHAN, t/a )

CALLAHAN APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER

PURSUANT TO NOTICE, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a hearing in this case on March 16, 1981, in Jacksonville, Florida.

APPEARANCES

For Petitioner: James N. Watson, Jr., Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Eugene T. Callahan, in pro per

7528 Arlington Expressway

Apartment No. 1318

Jacksonville, Florida 32211

The Respondent requested an administrative hearing on the Petitioner's Notice to Show Cause issued on November 18, 1980. Nine separate violations of the general and safety requirements of Chapter 7C-1, Florida Administrative Code, were alleged. The Respondent does not contest the existence of the deficiencies on the date of the Divisions first inspection, but he contends that most of them have been repaired or otherwise remedied, in mitigation.

The Petitioner presented one witness, the Division's inspector. The Respondent testified in his own behalf. Sixteen exhibits were received in evidence in support of the Petitioner's show cause notice. The parties requested 14 days after the hearing to submit proposed findings of fact and conclusions of law, and this time was extended to April 13, 1981, upon the III waiver of the time constraint for filing of a Recommended Order. Proposed findings submitted by the Petitioner have been adopted. None were filed by the Respondent.

FINDINGS OF FACT

1. The Callahan Apartments, owned by Eugene T. Callahan, are located at 41 East Fourth Street in Jacksonville, Florida. These apartments are licensed by

   the Division of Hotels and Restaurants under license number 26-01943H. Eugene

   T. Callahan was licensed on September 15, 1980, the date of the Division's initial inspection, and was 50 licensed through March 16, 1981, the date of the hearing in this case.

   
   

2. On September 15, 1980, the Division's inspector made the initial inspection of the premises located at 41 and 51 East Fourth Street, and found the following violations of Sections 7C-1.03 and 7C-1.04, Florida Administrative Code:

   
   

   1. Failure to provide fire extinguishers for Building 41 and 51 (Rule 7C-1.04)

   2. Failure to provide adequate number of electrical outlets in each of the rental rooms (Rule 7C- 1.04);

   3. Failure to provide or install proper exit lights (Rule 7C-1.04);

   4. Failure to maintain walls and ceilings through- out Buildings 41 and 51 (Rule 7C-1.03);

   5. Failure to repair bathroom floor of Apartment

      3 in Building 51 (Rule 7C-1.03);

   6. Failure to repair bathroom wall of Apartment

      2 of Building 51 (Rule 7C-1.03);

   7. Failure to repair or replace stoves in Apartments

      1 and 4 of Building 51 (Rule 7C-1.03);

   8. Failure to repair or replace refrigerator in Apartment 4 of Building 41 (Rule 7C-1.03);

   9. Failure to close all holes leading to outside to keep out vermin (Rule 7C-1.03).

      
      

3. A call-back inspection of Buildings 41 and 51 was made on October 23, 1980, to check on the progress of the Respondent in correcting the above violations. On this date all violations still existed, and Mr. Callahan was given until November 14, 1980, to make the necessary corrections. Subsequent inspections were conducted on November 18 and December 10, 1980, on which dates the corrections had not been made and the violations continued to exist. In the morning of the date of the hearing, March 16, 1981, a final inspection was conducted; the only violation corrected by Mr. Callahan was the placing of approved fire extinguishers in both Building 41 and Building 51. Photographs were taken by the inspector showing the conditions charged as violations in the show cause notice on the date of the initial inspection and at the time of the last inspection just prior to the hearing.

   
   

4. Mr. Callahan asserts that he has corrected all of the violations that existed on September 15, 1980, except the electrical outlets (listed above as violation b) . Nevertheless, the photographs which had been taken by the inspector and were received in evidence, demonstrate the continued existence of the violations on the hearing date. Thus, the Respondent's testimony has been discounted.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Hotels and Restaurants of the Department of Business Regulation is required to carry out the provisions of Chapter 509, Florida Statutes, which authorizes regulation of public lodging establishments, in order to safeguard the health, safety and welfare of the public. Section 509.032(2)(a), Florida Statutes, requires the Division to make at least four

   inspections each year of public lodging establishments. Section 509.032(3), Florida Statutes, empowers the Division to adopt rules to carry out the provisions of Chapter 509.

   
   

6. Pursuant to this statutory authority, the Division of Hotels and Restaurants has adopted Rule 7C-1.03 and Rule 7C-1.04, Florida Administrative Code. Subsection 1 of Rule 7C-1.03 requires "roofs, walls, ceilings, floors, stairs, steps, windows, transoms, shelves, fixtures, etc., [to bed kept in good repair, clean and painted..." The conditions listed as d through i above are violations of this Rule.

   
   

7. Subsection 1 of Rule 7C-1.04 requires fire extinguishers. Subsection 3 of this rule requires that exits be clearly marked with approved exit lights. Subsection 4 of this Rule requires that a sufficient number of electrical outlets be provided. The conditions listed as a through above are violations of Rule 7C-1.04, Florida Administrative Code.

   
   

8. Section 509.261, Florida Statutes, authorizes the Division to suspend or revoke the license of any public lodging establishment that operates in violation of Chapter 509 and the rules of the Division, or in lieu thereof, to impose a fine not exceeding $500 for each offense. A total of nine separate offenses existed initially on September 15, 1980. Eight of these violations continued to exist five months later; on March 16, 1981.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent, Eugene T. Callahan, pay a civil penalty in

the amount of $1,000. The Respondent may elect to expend the amount of this

penalty to correct the above-cited violations rather than pay the amount directly to the Division. If the Respondent should elect the second method, he shall submit to the Division valid receipts and work orders showing the measures taken to correct the above-cited violations, totaling an amount of at least

$1,000.00. Regardless of the method chosen by the Respondent to pay the civil penalty Recommended, he shall have 60 days from the date of the Final Order in which to correct all of the above-cited violations.. If this is not done within

60 days, it is

RECOMMENDED that the Respondent's license be suspended until such time as the violations are corrected.

THIS RECOMMENDED ORDER entered on this 16th day of April, 1981.

WILLIAM B. THOMAS, 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 16th day of April, 1981.

COPIES FURNISHED:

James N. Watson, Jr., Esquire 725 South Bronough Street Tallahassee, Florida 32301

Eugene T. Callahan

7528 Arlington Expressway

Apartment No. 1318

Jacksonville, Florida 32211

Docket for Case No: 81-000020

Orders for Case No: 81-000020