STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2697

) J & D MELVIN, d/b/a THE ISLANDER, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on February 23, 1982, in Cocoa Beach, Florida.

APPEARANCES

For Petitioner: Daniel J. Bosanko, Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondents: Douglas S. Melvin and

Janice Melvin, in pro per 4300 Ocean Beach Boulevard Cocoa Beach, Florida 32931

By Notice to Show Cause issued on September 17, 1981, the Respondents were charged with the violation of various statutory provisions of the Public Lodging and Public Food Service Establishments Act, Chapter 509, Florida Statutes, and rules promulgated thereunder. Specifically, the Petitioner alleges that the following conditions found to exist on September 10, 1981, in The Islander, a motel owned by the Respondents, violated the requirements of the Florida Administrative Code set forth below:

1. Expired service tags attached to fire extinguishers, in violation of Section

   7C-1.04(1), F.A.C.

2. Paint peeling off the walls in the bath- room of room 217, in violation of Section

   7C-1.03(1), F.A.C.

3. Dirty and torn bed cover in room 217, in violation of Section 7C-3.01(6), F.A.C.

4. Torn and dirty carpet in room 217, in violation of Section 7C-3.01(9), F.A.C.

5. Maximum room rates as filed were not posted in room 217, as required by Section 7C-3.02(2), F.A.C.

The Petitioner seeks to discipline the Respondents pursuant to Section 509.261, Florida Statutes, and presented the testimony of its sanitarian and inspector of fire extinguisher devices, together with 3 exhibits which were received in evidence, for this purpose. Each of the Respondents testified in their own behalf, and introduced one exhibit which was received in evidence.

FINDINGS OF FACT

1. The Respondents, Douglas S. Melvin and Janice Melvin, operate a motel under the name The Islander at 4300 Ocean Beach Boulevard, Cocoa Beach, Florida. This motel is licensed by the Florida Division of Hotels and Restaurants under license number 15-182H.

   
   

2. In answer to the complaint of a guest, Wesley A. Blom went to The Islander motel to inspect it on September 10, 1981. The complaining guest was not present, but the complaint related in part to the lack of cleanliness of room 217.

   
   

3. Wesley A. Blom is a state qualified and certified sanitarian and inspector of fire extinguisher devices. He has had nine years experience in such work with the State of Florida. When Wesley A. Blom inspected The Islander on September 10, 1981, its owners, Douglas S. Melvin and Janice Melvin, were not present. During this inspection Wesley A. Blom was shown room 217 by motel personnel, and he inspected the motel generally for compliance with all applicable Florida Statutes and rules relating to safety, sanitation, and maintenance of public lodgings.

   
   

4. During the September 10, 1981, inspection of The Islander motel, Wesley

   1. Blom observed the following conditions:

      
      

      1. The fire extinguishers available to the public and occupants of The Islander were

         of the soda-acid type, requiring periodic service checks and recharging to remain in safe, reliable, and useable condition.

         These fire extinguishers did not have un- expired service tags, as required, but

         the service tags affixed showed that these fire extinguishers had been last inspected and recharged more than one year previously.

      2. Paint was peeling on the walls of the bathroom in room 217.

      3. The bed cover on the bed in room number

         217 was torn and stained in several places with tar residue.

      4. The floor In room 217 was dirty, and trash was scattered about the floor of this room. At the time when the dirt and trash was discovered on the floor in room 217, the bed had been made up, indicating that

         the room had been serviced by the motel staff.

      5. No room rate notice of any kind was posted in room 217.

5. On September 30, 1981, Wesley A. Blom returned to The Islander motel to determine whether the conditions observed there on September 10, 1981, had changed or been corrected. He did not reinspect room 217 at this time because it was occupied, but the fire extinguishers available at The Islander motel had not been serviced or recharged since February of 1979, as evidenced by their expired State Fire Marshal service tags.

   
   

6. On February 22, 1982, Wesley A. Blom again returned to The Islander motel to determine if the conditions discovered on September 10, 1981, had been corrected or changed. He was not able to inspect room number 217 because it was occupied, but he did observe that previously available soda-acid fire extinguishers were no longer present. The only fire extinguishers available at The Islander motel on this occasion were different models of an undetermined type which were located in the lobby of the motel. This lobby is more than 100 feet from many of the rooms of the motel.

   
   

7. The Respondents contend in their own behalf that room 217 had not been made up, and was not ready for occupancy when it was inspected; that the bed cover with the tar on it was being cleaned by the maid, and was not finished when inspected; that the carpet was not dirty, but simply had not been vacuumed when it was inspected; that rate sheets are usually posted, but the one in room

   217 had been missing and was found in another room; and that a maintenance man responsible for painting the rooms was fired for using inferior paint which might have peeled off. However, both the Respondents were in Michigan on September 10, 1981, when the first inspection took place; thus, without testimony from motel personnel who were present at the time, the testimony of the Respondents is not of sufficient quality to support a finding of fact. The expired date on the fire extinguishers is admitted.

   
   

   CONCLUSIONS OF LAW

8. Section 509.201(1), Florida Statutes, provides in pertinent part: "In each public lodging establishment

   renting by the day or week there shall be

   posted in a plainly legible fashion, in a conspicuous place in each rental unit, the rates at which each such unit is rented.

   Such posting shall show the maximum amount charged for occupancy per person; the amount charged for extra conveniences, more complete accommodations, or additional furnishings; and the dates during the year when such charges prevail."

9. Section 509.221, Florida Statutes, provides in part: "(2) Each public lodging establishment

   ... shall be operated with strict regard to

   the health, comfort, and safety of the guests.

   * * *

   1. All bedding, including mattresses, quills, blankets, pillows, sheets and comforters, used in any public lodging establishment shall be thoroughly aired, disinfected, and kept clean. No bedding,

   including mattresses, quilts, blankets, pillows, sheets, or comforters, shall be used which is worn out or unfit for further use."

10. Section 509.261, Florida Statutes, provides in part: "(1) The division may suspend or revoke

    the license of any public lodging establish-

    ment or public food service establishment that has operated or is operating in vio- lation of any of the provisions of this chapter or the rules of the division; such public lodging establishment or public food service establishment shall remain closed while its license is suspended or revoked.

    
    

    (2) In lieu of the suspension or revoca- tion of licenses, the division may impose fines against licensees for such violations. No fine so imposed shall exceed $500 for each offense

11. Rule 7C-1.03(1), Florida Administrative Code, provides in part: "(1) Roofs, walls,... shall be kept in good

    repair, clean and painted..."

12. Rule 7C-1.04(1), Florida Administrative Code, provides in part: "(1) Fire extinguishers...There shall be one

    of the following types of fire extinguishers

    . . . on each floor and the maximum travel distance to the nearest fire extinguisher shall not exceed 75 feet:

    1. 2 gallon soda-acid fire extinguisher...

       
       

       The following types of fire extinguishers must be recharged once every year or when used:

       Soda-acid extinguishers...

       A standard State approved service tag must be attached to each extinguisher and a person holding a valid State permit issued by the State Fire Marshal shall recharge or inspect the extinguisher and shall prepare the tag to include the information required by rule

       5A-21.41 of the State Fire Marshal's rules."

       
       

13. Chapter 7C-3, Florida Administrative Code, Public Lodging Establishments, provides in part:

    
    

    7C-3.01 Sanitation.--

    * * *

    "(6) Mattresses, bedding, linens, etc.-

    Clean and comfortable mattresses and... clean blankets shall be provided....

    * * *

    (9) Furniture, upholstery, etc.-...all rugs arid floor coverings must he kept clean and

    in good condition free from holes and rips..."

    
    

    7C-3.02 Room rates, posting and advertising.-- "(2) Posting. The rates posted in each room and filed with the Directors shall be the actual maximum rates charged during any given rate period and shall not be a fictitious rate. Such posting of rates shall be on the form provided by the Director...".

    
    

14. The Respondents are found guilty of violating Section 509.221(2), Florida Statutes, and Rule 7C-1.04(1), Florida Administrative Code, by not, as of September 10, 1981, having had the fire extinguishers at The Islander recharged within one year of the last such charging, and by not having these fire extinguishers tagged with non-expired State Fire Marshal approved tags. The Respondents had not remedied this violation by September 30, 1981, and by February 22, 1982, all fire extinguishers at The Islander had been moved to the lobby so that they were not within 75 feet of all rooms as required.

    
    

15. The Respondents are found guilty of violating Section 7C-1.03(1), Florida Administrative Code, by allowing the paint in room 217 of The Islander motel to reach a state of disrepair to the extent of peeling on the walls of the bathroom.

    
    

16. The Respondents are found guilty of violating Section 509.221(6), Florida Statutes, and Rule 7C-3.01(6), Florida Administrative Code, by using a stained and torn blanket covering on the bed in room 217 of The Islander motel.

    
    

17. The Respondents are found guilty of violating Section 7C-3.01(9), Florida Administrative Code, by, on September 10, 1981, failing to have the floor coverings in room 217 of The Islander motel clean after the room had been serviced by motel staff.

    
    

18. The Respondents are found guilty of violating Section 509.201, Florida Statutes, and Rule 7C-3.02(2), Florida Administrative Code, by not having room rates posted in room number 217 of The Islander motel on September 10, 1981.

    
    

19. Pursuant to Section 509.261, Florida Statutes, the Respondents are subject to suspension or revocation of their Division of Hotels and Restaurants license for each of the above five violations. Alternatively, this statute permits the Division of Hotels and Restaurants to assess a fine up to $500 for each of these violations in lieu of license suspension or revocation.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner enter a Final Order finding the Respondents

guilty of violating Section 509.221(2) and (6), and 509.201, Florida Statutes, and Sections 7C-1.04(1), 1.03(1), 3.01 and 3.02, Florida Administrative Code. And it is further

RECOMMENDED that the Final Order of the Petitioner suspend license number 15-182H held by Douglas S. Melvin and Janice Melvin, authorizing them to operate The Islander motel, for a period of one year from the date of the Final Order, and that The Islander motel be closed pursuant to this suspension for one year. And it is further

RECOMMENDED that the Final Order of the Petitioner provide that the suspension period of one year may be lifted upon a satisfactory demonstration to the Petitioner that approved fire extinguishers are maintained on the premises of The Islander motel in accordance with all applicable laws. And it is further

RECOMMENDED that, in addition to the foregoing, the Final Order of the Petitioner assess an administrative fine of $200 for each of the four violations not relating to fire extinguishers, as enumerated above, for a total fine of

$800 payable no later than 30 days after the date of the Final Order.

THIS RECOMMENDED ORDER entered on this the 24th day of March, 1982, in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Department of Administration Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1982.

COPIES FURNISHED:

Daniel J. Bosanko, Esquire 725 South Bronough Street Tallahassee, Florida 32301

Douglas S. Melvin and Janice Melvin

4300 Ocean Beach Boulevard Cocoa Beach, Florida 32931

Docket for Case No: 81-002697

Orders for Case No: 81-002697