STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-3159

) MARGARET D. EVANS, d/b/a EVANS ) ROOMING HOUSE, )

)

Respondent. )

)

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 June 1, 1982, in Miami, Florida. The parties requested time within which to submit proposed findings of fact and conclusions of law, and 20 days after the hearing was allotted for this purpose. The time for the issuance of this Recommended Order was extended to July 21, 1982. The Petitioner's proposed findings and conclusions were timely filed, and these have been adopted.

Nothing has been submitted by or on behalf of the Respondent.

APPEARANCES

For Petitioner: Daniel J. Bosanko, Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Margaret D. Evans, in pro per.

1374 West Flagler Street Miami, Florida 33135

By Notice to Show Cause, as amended on April 29, 1982, the Respondent was charged with ten separate violations of the Public Lodging and Public Food Service Establishments Act, Chapter 509, Florida Statutes, and various rules promulgated thereunder. In general, these alleged violations relate to the condition of the premises in a rooming house owned by the Respondent, including the wiring, plumbing, heating system, walls, windows, doors and ceilings, lack of screens, garbage cans and fire extinguishers, and unclean conditions.

The Petitioner seeks to discipline the Respondent pursuant to Section 509.261, Florida Statutes, and presented the testimony of its sanitary inspector and its supervisor of sanitarians, together with three exhibits which were received in evidence, for this purpose. The Respondent testified in her own behalf.

FINDINGS OF FACT

1. The Evans Rooming House is owned and operated by the Respondent, Margaret D. Evans, who holds license number 23-4776-H issued by the Division of Hotels and Restaurants. This establishment consists of 17 units subject to rental as living space. On March 13, 1981, Mrs. Teresa Iglesias, an experienced sanitarian employed by the Petitioner, made a routine inspection of these premises.

   
   

2. The following conditions existed in the Evans Rooming House on March 13, 1981:

   
   

   1. There were no fire extinguishers on the third floor.

   2. The hallway doors were not kept closed. These doors did not have operational automatic closing devices.

   3. There was a garbage can on the exit stairway.

   4. The plumbing and hot water boiler on the third floor were damaged and leak- ing. The water from this leakage was standing on the floor in the boiler room and was leaking to lower floors.

   5. There was a hole in the wall by the second floor exit.

   6. The door to the electrical meter room had been damaged.

   7. The third floor had been damaged by fire. The ceiling in one of the rooms on this floor had a large hole in it, the plaster residue therefrom lying on the floor. A strong odor was present on the third floor.

   8. At least four of the windows of the Evans Rooming House did not have screens.

   9. In addition to the garbage can on the stairway there were only two other garbage cans for use of the building residents. These were overflowing with trash and garbage. Rodents were evident around the trash containers.

   10. The premises were not clean. Dirt and trash were in the hallways, in the meter room, in the bathrooms, on the entire third floor, and in the garbage can area adjoining the building.

1. On July 30, 1981, Mrs. Iglesias again inspected the Evans Rooming House. The same conditions found there on March 13, 1981, were still in existence. On October 26, 1981, Mrs. Iglesias returned to the Evans Rooming House and again found the same conditions as existed there on March 13, 1981, with the exception that the third floor plumbing and hot water boiler had been repaired.

2. On June 1, 1982, prior to the hour of the final hearing in this case, Mr. Harry Kennedy, Supervisor of Sanitarians for the Petitioner, re-inspected the Evans Rooming House and determined that of the conditions found there by Mrs. Iglesias on March 13, 1981, and previously listed above as items 1 through 10, the following were still in existence:

   
   

   1. There were no fire extinguishers on the third floor.

   2. At least four of the windows of the Evans Rooming House did not have screens.

   3. There were only two or three garbage cans for the entire building, and these remained overflowing with trash and garbage.

   4. The hallways, the third-floor, and the garbage can area adjoining the building were unclean. Dirt and trash here observed in each of these areas.

      
      

   5. In her own behalf, the Respondent contends that as of the date of the final hearing on June 1, 1982, all of the conditions charged as violations had been corrected, with the exception of the missing screens. Nevertheless, there is sufficient competent evidence to support a finding that the four conditions found by Mr. Kennedy existed on June 1, 1982, rather than only the one admitted by the Respondent.

      
      

      CONCLUSIONS OF LAW

      
      

   6. The conditions existing in the Evans Rooming House on March 13, 1981, four of which remained on June 1, 1982, are violations of the following Florida Statutes and provisions of the Florida Administrative Code:

      
      

   7. Rule 7C-1.4 Florida Administrative Code, which provides that:

      
      

      The following general requirements shall

      be met by all public lodging . . . estab- lishments:

      
      

      1. There shall be . . . fire extin- guishers . . . on each floor . . .

         
         

         Thus, the lack of fire extinguishers on the third floor of the Evans Rooming House is a violation of this Rule.

         
         

   8. Rule 7C-1.04(3), Florida Administrative Code, which provides that:

      
      

      (3) . . . All exits doors must swing outward and be equipped with automatic self-closing hardware . . .

      
      

      The lack of operational door closing devices keeping the hallway doors closed is a violation of this requirement.

      
      

   9. The garbage can obstructing the exit stairway is a further violation of Rule 7C-1.04(3), Florida Administrative Code, which states:

      (3) . . . Halls, closets, and stair- ways shall be kept free from obstruc- tions and hazards . .

      
      

   10. The damaged and leaking hot water boiler on the third floor is a violation of Rule 7C-3.01, Florida Administrative Code, which provides:

       
       

       1. Plumbing and drainage - all plumb- ing shall be properly installed and kept in good repair . . .

          
          

   11. The damaged door to the electrical meter room and the hole in the wall by the second floor exit are violations of Rule 7C-1.03(1), Florida Administrative Code, which requires that:

       
       

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

       
       

   12. The fire damage, collapsed ceiling, and strong odor on the third floor are further violations of Rule 7C-1.03(1), Florida Administrative Code, as set out in item 5. above.

       
       

   13. The missing screens from four of the rooming house windows are a violation of Section 509.221(8), Florida Statutes, which requires, that:

       
       

       The operator of any public lodging establishment . shall keep all flies out of such establishment.

       
       

       The Evans Rooming House utilized screening in its rooms for such purposes.

       
       

   14. The availability of only two garbage cans for use by building residents (in addition to the one obstructing the exit stairway), and the resulting overflow of trash and the presence of rodents, is a violation of Section 509.221(2), Florida Statutes, which requires in part that:

       
       

       (2) Each public lodging establishment shall be operated with strict regard

       to the health, comfort and safety of the guests . . .

       
       

   15. The generally unclean condition of the entire premises is a violation of Rule 7C-1.03(1) and (7), Florida Administrative Code, which states in part that:

       
       

       1. . . . floors, stairs, steps shall be kept . . . clean . . .

          
          

          (7) Premises, yards, alleys, etc. shall be kept clean, free of debris . . . .

   16. The above conditions 1 through 7 and 9 are also violations of Section 509.221(2), Florida Statutes, which requires in part that:

       
       

       (2) Each public lodging establishment shall be operated with strict regard

       to the health, comfort and safety of the guests . . .

       
       

       Moreover, these violations are aggravated by their continuation over a substantial period of time, although only four remained on June 1, 1982.

       
       

   17. Section 509.261, Florida Statutes, authorizes the assessment of a civil penalty or license suspension for violation of the provisions of Chapter 509, Florida Statutes, as follows:

       
       

       1. The division may suspend or revoke the license of any public lodging estab- lishment or public food service establish- ment that has operated or is operating in violation 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, and all amounts collected shall be deposited with the Treasurer to

the credit of the Hotel and Restaurant Trust Fund.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent, Margaret D. Evans, d/b/a Evans Rooming

House, be assessed a civil penalty of $100 for each of the ten violations charged, except for the four violations which were uncorrected as of June 1, 1982, for which the Respondent should be assessed a penalty of $200 each. The total of these penalties is $1,400.00. The Respondent should be required to make this total payment within 30 days from the date of the Final Order; and if not paid within such period, license number 23-4776-H held by the Respondent should be suspended for a period of twelve (12) months.

THIS RECOMMENDED ORDER entered on this 14th day of July, 1982, in Tallahassee, Florida.

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 14th day of July, 1982.

COPIES FURNISHED:

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

Ms. Margaret D. Evans 1374 West Flagler Street Miami, Florida 33135

Sherman S. Winn, Director Division of Hotels and

Restaurants

725 South Bronough Street Tallahassee, Florida 32301

Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 81-003159

Orders for Case No: 81-003159