STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1363

) ERNEST SCHLEUSENER d/b/a PINEWOOD ) INTERNATIONAL APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on January 19, 1983, in Fort Lauderdale, Florida. The Parties were afforded leave, through February 22, 1983, to submit proposed memoranda supportive of their respective positions. Said memoranda was received and considered by the undersigned in preparation of this Recommended Order. The parties waived the thirty-day time requirement that a recommended order be submitted herein following the close of the hearing. 1/

APPEARANCES

For Petitioner: Daniel J. Bosanko, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Alan S. Fishman, Esquire

Scherer, Fishman & Carlton

2734 East Oakland Park Boulevard Ft. Lauderdale, Florida 33306

ISSUE

The issue involved herein is whether or not the Respondent 2/ guilty of violations set forth hereinafter in detail as stated in the Second Amended Notice to Show Cause filed by Petitioner herein. If so, the secondary issue is what penalty, if any, should be assessed for such violations.

Based upon my observation of the witnesses and their demeanor while testifying, documentary-evidence received and the entire record compiled herein, I hereby make the following relevant:

FINDINGS OF FACT

1. Robert C. Beiter, Sr. is the trustee and legal owner of the subject premises.

   
   

2. On July 24, 1981, Petitioner, through its sanitarian, Richard Bragg, made an inspection of the subject premises situated at 715 Northwest Sixth Avenue, Pompano Beach, Florida. The premises is a public lodging establishment and is licensed by the Division of Hotels and Restaurants under license No. 16- 5268H. During the inspection by Mr. Bragg, the following violations were observed:

   
   

   1. Fire extinguishers were overdue for service as indicated by the pressure gauges thereon and/or by the lack of service tags thereon.

   2. The general condition of the building was run down, paint was peeling

      from the walls, windows and doors were broken, the roof was leaking, and window screens were missing.

   3. A severe infestation of rodents and roaches existed on the premises.

   4. Papers and assorted trash were located around the building.

   5. There were no outside garbage containers furnished for the building, which contains six apartment units with kitchen/cooking facilities in each apartment.

   6. Stairways and walkways were not well lighted and the handrails on the stairways and walkways were loose.

   7. Electrical fixtures did not all have covers and were not all in working order.

   8. Plumbing fixtures in several apartments were leaking. (Testimony of Richard Bragg, an inspector employed by the Petitioner for approxi- mately 14 years and who has approximately 25 years in the hotel/restaurant business.)

      
      

3. Mr. Bragg made subsequent inspections of these premises in September and October, 1981, and the same conditions were in existence, except that an outside garbage container had been provided.

   
   

4. A subsequent inspection of the premises was made by Mr. Bragg on November 11, 1981, and the original conditions existed, except for the provision of the garbage container. On December 12, 1982, Mr. Bragg found no evidence of correction of the remaining problems since his November 11, 1981 inspection. Finally, on February 18, 1982, Mr. Bragg observed all of the original cited problems as existed on July 24, 1981, except for those relating to furnishing a garbage container. Mr. Bragg was unable to check the condition of the plumbing and the electrical fixtures due to the lack of access to the apartments on February 18, 1982.

   
   

5. Respondent tendered extensive documentary evidence consisting of receipts for various repairs made to the subject premises, including plumbing, roofing, window and screen repairs; extermination for pest control and trash

   services. Respondent's agent, Harry A. Wright, had the fire extinguishers inspected and replaced on an annual basis. All of the documentary evidence submitted respecting expenditures were for repairs subsequent to the date of Mr. Bragg's initial inspection on July 24, 1981.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes (1981).

   
   

7. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

8. The subject premises is a public lodging establishment and is licensed as such pursuant to Chapter 509, Florida Statutes (1981).

   
   

9. Section 509.261, Florida Statutes (1981) provides that the Division of Hotels and Restaurants may revoke or suspend the license of a public lodging establishment up to twelve (12) months or impose a fine of up to $500 for each violation of Chapter 509 or the rules of the Division.

   
   

10. Rule 7C-1.04(1), Florida Administrative Code, requires that fire extinguishers be inspected at least once a year, or six months, depending on the type used, and that they be recharged when used or when necessary. This rule also requires that a standard State service tag be attached to fire extinguishers giving evidence of such inspection. The evidence adduced herein established that the fire extinguishers had not been recharged after use and that they did not bear the required evidence of inspection. Based thereon, it is concluded that Respondent violated Rule 7C-1.04(1), Florida Administrative Code.

    
    

11. Rule 7C-1.03(1), Florida Administrative Code, requires that roofs, walls, ceilings, floors, stairs and windows of a public lodging establishment be kept in good repair and painted. Evidence adduced herein esablished that the premises were in heed of painting and evidenced numerous other problems, including a leaking roof and broken or missing windows, screens and doors.

    Based thereon, it is concluded that Respondent violated Rule 7C-1.03(1), Florida Administrative Code.

    
    

12. Rule 7C-1.03(3), Florida Administrative Code, requires that insects and vermin be kept exterminated in public lodging establishments. Evidence adduced herein reveals that Respondent failed to keep the subject public lodging establishment exterminated as is required, and thereby violated Rule 7C-1.03(3), Florida Administrative Code. In this regard, evidence of routine extermination service in and of itself does not suffice to relieve the Respondent of its responsibility.

    
    

13. Rule 7C-1.03(7) , Florida Administrative Code, requires that the premises of a licensed public lodging establishment be kept free of trash and debris. Respondent, by failing to keep its grounds immediately surrounding the public lodging establishment free of trash and debris, violated Rule 7C-1.03(7), Florida Administrative Code.

    
    

14. Rule 7C-1.03(5), Florida Administrative Code, requires that each kitchen unit in a public lodging establishment be provided with a garbage container. Respondent, by failing to provide such container for each kitchen

    unit in the subject premises as set forth and defined in Rule 7C-1.03(5), Florida Administrative Code, violated that rule.

    
    

15. Rule 7C-1.04(3), Florida Administrative Code, requires that hallways and stairways be kept well lighted and have installed handrails in public lodging establishments. Respondent, by failing to maintain lighting fixtures and by allowing handrails to remain loose, violated Rule 7C-1.04(3), Florida Administrative Code.

    
    

16. Rule 7C-1.04(4), Florida Administrative Code, requires that electric wiring in public lodging establishments be kept in good repair in order to prevent fire and injury. Respondent, by failing to provide covers on various electrical fixtures on the subject premises, violated Rule 7C-1.04(4), Florida Administrative Code.

    
    

17. Rule 7C-3.01(1), Florida Administrative Code, requires that all plumbing in public lodging establishments he kept in good repair. Respondent, by failing to properly maintain its plumbing, viz leaks, amounts to a violation of Rule 7C-3.01(1) Florida Administrative Code. 3/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Respondent be assessed a civil penalty of $100 for each of the eight conditions for the subject premises found herein to be violations of the rules of the Division of Hotels and Restaurants, with the exception that it is RECOMMENDED that the Respondent only be assessed a civil penalty of $50 for the violation found above relating to outside garbage containers due to the effective and corrective action taken by the Respondent to correct said deficiency. Accordingly, the total amount of the civil penalty is

$750. It is further

RECOMMENDED that the Respondent shall pay the above amount of $750 within thirty (30) days of the date the Petitioner enters its final order, which funds shall be made payable to the order of the Treasurer of the State of Florida for credit to the Hotel and Restaurant Trust Fund. It is further

RECOMMENDED that if the Respondent fails to remit such civil penalty to the Petitioner within such period, the Division of Hotels and Restaurants' license No. 16-5268H for the Pinewood International Apartments located at 715 Northwest Sixth Avenue, Pompano Beach, Florida shall be suspended for twelve (12) months or until reinstated for good cause by the Division of Hotels and Restaurants.

RECOMMENDED this 14th day of July, 1983.

JAMES E. BRADWELL, 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, 1983.

ENDNOTES

1/ To the extent that the proposed findings, etc. are not incorporated in this Recommended Order, said proposed findings were deemed either irrelevant, immaterial or not otherwise supported by record evidence.

2/ Robert Beiter is the trustee of the subject premises.

3/ In making the above conclusions, Respondent's evidence offered to refute and/or mitigate the charges herein was considered by the undersigned in making the above Conclusions of Law.

COPIES FURNISHED:

Daniel J. Bosanko, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Alan S. Fishman, Esquire Scherer, Fishman & Carlton 2734 E. Oakland Park Blvd.

Ft. Lauderdale, Florida 33306

A Sherman S. Winn, Director Division of Hotels & Restaurants 725 South Bronough Street Tallahassee, Florida 32301

Mr. Gary R. Rutledge Secretary

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 82-001363

Orders for Case No: 82-001363