STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1483

)

LINN BAZEMORE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held before the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, on August 4, 1981, In Miami, Florida.

APPEARANCES

For Petitioner: Morton Laitner, Esquire

1350 Northwest 14th Street Miami, Florida 33125

For Respondent: Linn Bazemore in pro se

1959 Southwest 27th Avenue Miami, Florida 33145

BACKGROUND

By Administrative Complaint dated April 17, 1981, the Petitioner, Department of Health and Rehabilitative Services, has charged that Respondent, Linn Bazemore, violated Sections 86.01, 386.041(1)(e) , and 386.041(1)(f) , Florida Statutes (1979) , for which an administrative fine should be imposed pursuant to Section 381.112, Florida Statutes (Supp. 1950). Specifically, it is contended that Respondent "permitted, maintained, kept, or caused the following conditions" at a four-unit dwelling located at 37 N.M. 60th Street, Miami , Florida: (1) inadequate garbage disposal containers, (2) exposed garbage scattered around the ground, (3) accumulation of rubbish which serves as shelter and protection for rats, (4) holes in walls of the housing, especially in bathrooms and kitchens, (5, interior infestation of rats throughout ha entire building and grounds, (6) numerous faucets which continue to leak, and (7) overall conditions by which the health and lives of individuals are threatened or impaired and which may directly or indirectly cause disease.

Respondent disputed the allegations of fact in the complaint and requested a formal hearing pursuant to Section 120.57(1) Florida Statutes. On June 2, 1981, Respondent referred the matter to the Division of Administrative Hearings and requested that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated July 6, 1981, the final bearing was set for August 4, 1981, in Miami, Florida.

At the final bearing Petitioner presented the testimony of Richard Strait, David T. Dean and John Capers and offered Petitioner's Exhibit 1-14, each of which was received into evidence. Respondent testified on his own behalf.

The parties were given the opportunity to file proposed findings of fact and conclusions of law; however, they waived their right to do so.

The issue herein is whether Respondent should be assessed a civil penalty for maintaining unsanitary conditions at a four unit dwelling that he owns in Miami, Florida.

Based upon all the evidence, the following facts are determined:

FINDINGS OF FACT

1. At all times relevant hereto, Respondent, Linn Bazemore, owned a four- unit dwelling located at 37 N.W. 60th Street, Miami, Florida. The units were rented by Haitian refugees who bad recently come to the United States, and included a number of children.

   
   

2. On or about February 26, 1981, inspectors employed by Petitioner, Department of Health and Rehabilitative Services, visited the property in question. The exterior inspection revealed no garbage cans on the premises; exposed garbage was also observed in the yard. On the inside of the building they found plumbing defects, holes in the walls and ceilings, rub marks from rodents and rat holes in various parts of the structure. (Petitioner's Exhibit 1).

   
   

3. A second inspection of the premises "as made by Inspector Dean on March 6, 1981. At that time essentially the same conditions were found as were present on the previous visit. A letter was written by certified mail to Respondent that date ordering him within 15 days to "provide sufficient approved garbage containers, remove all trash and rubbish from property, provide for extermination of rodent infestation, and provide for effective rat proofing of property." (Petitioner's Exhibit 3). Respondent acknowledged receiving the letter (Petitioner's Exhibit 4). A formal administrative complaint was Aft issued by Petitioner on April 17, 1981. Thereafter, Respondent requested a formal hearing to dispute the charges.

   
   

4. Subsequent inspections of the property were made by Department inspectors on March 18, March 24, April 2, April 7, May 28, June 4 and August 3, 1981. On the first six visits the inspectors found that the same types of conditions as were found on February 26 were still present. ( Petitioner's Exhibits 5, 6, 7, 8, 9 and 13). On the August 3 visit, the inspector acknowledged that approximately 60 percent of the holes in the walls and ceiling had been closed, but still found an accumulation of exposed garbage in the front yard, and lumber stacked in the rear. Additional unsanitary conditions such as rub marks, holes in the wall and rat droppings were also found. (Petitioner's Exhibits 10 and 12).

   
   

5. Respondent owns a number of rental properties in Dade County. He is a registered real estate broker whose income is derived solely from property management. He is currently attempting to sell the property at 37 N.W. 60th Street.

6. The property lies in an area whose residents are primarily refugees and from the lower-income strata. It is also plagued by a high rate of crime. The tenant in Bazemore a units are Haitian refugees who de not speak English. Both parties acknowledge that the refugees are unfamiliar with sanitary practices of the United States, end are difficult communicate with due to the language barrier and their lack of education. Bazemore testified that attempts to teach the tenants conventional sanitary practices for dumping garbage and trash and bow to maintain the premises had been unsuccessful. He also stated that a constant turnover of tenants exacerbated the problems, and that many of the exterior violations were caused by neighbors who dumped rash and garbage on his property.

   
   

7. Respondent has spent approximately $9,000 for repairs to the structure since receiving the Department's letter of March 6, 1981, including $6,000 for plumbing repairs alone.

   
   

8. Because of the large number of properties that it must inspect, the Department does not contact a property owner personally. Instead, such contact is limited to mail. However, Respondent met with a Department inspector on his own volition in April, 1981, in an effort to resolve the problem. He obtained an oral assurance that an extension of time would be granted to make necessary repairs, but this agreement was subsequently rescinded by the Department.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Section 120.57(1), Florida Statutes.

10. Section 386.01, Florida Statutes, provides in part that: A sanitary nuisance is the commission of any act,

    by an individual. . or the keeping, maintaining, propagation, existence, or permission of anything, by an individual. . .by which the health or

    lives ofindividuals, may be threatened or impaired, or by which or through which, directly or indirectly, disease may be caused.

    
    

11. Section 386.041(1), Florida Statutes, enumerates the conditions which shall constitute prima facie evidence of maintaining a nuisance injurious to health. As is pertinent herein, they include:

    
    

    (1)(e) The creation, maintenance, or causing of any condition capable of breeding flies, mosquitoes, or other arthropods capable of transmitting diseases, directly or indirectly to humans.

    (1)(f) Any ether rendition determined to be a sanitary nuisance as defined in s. 386. 1.

    
    

12. Without so stating specifically, the Department has charged that Respondent has violated Section 386.041(1)(a), supra, by having "inadequate garbage disposal containers" and exposed garbage scattered about the ground": and that this in turn has created a condition capable of breeding flies that are able to transmit diseases to humans. It has also charged that Respondent has maintained the following conditions on the property which constitute a sanitary nuisance in violation of section 386.041(1)(f), supra: (1) accumulation of rubbish which serves as shelter and protection for rats, (2) holes in the walls

    of the structure, (3) interior infestation of rats throughout the building and grounds, (4) leaky faucets and (5) "overall conditions" that threaten or impair the health and lives of individuals or by which disease may be caused.

    Petitioner accordingly seeks the imposition of a civil fine in the amount of

    $500 pursuant to the provisions of Section 381.112, Florida Statutes (Supp. 1980)

    
    

13. The evidence clearly discloses that the conditions enumerated above existed on a continuing basis, although in varying degrees of severity, from February, 1981, through August 3, 1981, and that such conditions constituted nuisances injurious to the health within the meaning of Section 386.01, supra. Despite a warning from the Department mailed on March 6, 1981, to correct such conditions, Respondent has still not fully complied with the standards prescribed by the Department. Accordingly, the imposition of a fine herein is warranted.

    
    

14. In determining the appropriate amount of fine to be imposed, some consideration oust be given to the environment under which Respondent must operate, and the circumstances that make full compliance with the law a most difficult task. The apartment building houses Haitian refugees who bee no knowledge of sanitary standards in the community and who, because of language and educational barriers, are difficult to control and teach. The area is plagued by crime and inhabited by persons from within the lower-income strata. At the same time, Respondent has expended a considerable sum of money to correct the conditions, although with only limited success. Because of the futility of the situation he is currently attempting to sell the property. under these circumstances, the undersigned concludes a $200 fine is appropriate.

RECOMMENDATION

NOW THEREFORE, in consideration of the above findings of fact and conclusions of law, it is

RECOMMENDED that Respondent be found guilty of the charges as set forth in the Administrative Complaint dated April 17, 1981, and that a $200 fine be imposed pursuant to Section 381.112, Florida Statutes.

DONE and ENTERED this 10th day of August, 1981, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 10th day of August, 1981.

COPIES FURNISHED:

Morton Laitner, Esquire 1350 N. W. 14th Street Miami, Florida 33125

Linn Bazemore

1959 S. W. 27th Avenue Miami, Florida 33145

Docket for Case No: 81-001483

Orders for Case No: 81-001483