STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-3337

)

SERENGETTI PROPERTIES, INC., ) d/b/a RED CARPET INN KISSIMMEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on August 14, 1987, in Kissimmee, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Lynne A. Quimby, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

For Respondent: Did not appear and was not

otherwise represented.

BACKGROUND AND PROCEDURAL MATTERS

An Emergency Order of Suspension and Notice to Show Cause was entered in this case on August 7, 1987, by R. Hugh Snow, Director of the Division of Hotels and Restaurants, Department of Business Regulation. The Order and Notice required the Respondent immediately cease operation based on an immediate, serious and continuing public health danger at the licensed premises. The Notice provided for an option of a prompt emergency hearing or hearing with a 14-day notice requirement. A deadline was established for the exercise of the options.

The Order and Notice to Show Cause were personally served on August 8, 1987, to Pyarali Rahemtulla, at the licensed premises. Mr. Rahemtulla requested an immediate hearing, the details of which were provided in the Order and Notice to Show Cause.

Just prior to the scheduled hearing the District office of the Division of Hotels and Restaurants received a typewritten note, apparently signed by Mr.

Rahemtulla, indicating that Serengetti Properties, Inc. is no longer operating Red Carpet Inn and would not be represented at the Post-Suspension hearing.

Counsel for Petitioner indicated that her research of court records disclosed that receivers had recently been appointed for the property, Red Carpet Inn, in Osceola County Circuit Court case #85-1221. The documents did not reflect that the Receivers were for the corporation designated as licensee in this case.

The Receivers for the property, a Mr. and Mrs. Reitz, were on the premises during various inspections by the Division, and, according to Laird Lane, were aware of the hearing.

The hearing was scheduled to commence at 10:00 a.m. By 10:15 a.m., no representative for Respondents appeared, nor did anyone appear during the course of the approximate hour and a half hearing.

In support of a prima facie case, Petitioner presented the testimony of five witnesses and twelve exhibits. No transcript was prepared, nor were proposed findings submitted.

ISSUE

The issue for resolution in this proceeding is whether the Respondent's license should remain suspended because of statutory and rule violations related to failure of the septic tank and drainfield, as alleged in the August 7, 1987, Emergency Order of Suspension and Notice to Show Cause.

In his Request for Hearing dated August 8, 1987, P. Rohemtulla states as his disputed issues of fact: "Septic pumps are now working. (The same has [sic] been repaired and septic tanks are emptied on a regular basis.)"

FINDINGS OF FACT

1. Respondent, Serengetti Properties, Inc., for all relevant periods was licensed by the Division of Hotels and Restaurants as a public lodging, doing business as Red Carpet Inn, located at 4810 West Space Coast Parkway, Kissimmee, Florida. License number 59-00522H was suspended with an emergency order by the Division of Hotels and Restaurants ("Division") on August 8, 1987.

   
   

2. Minez Rahemtulla is President of Serengetti Properties, Inc. His father, Pyarali Rahemtulla, is a representative of the corporation.

   
   

3. The Osceola County Health Department has had problems with the septic tank and drainage field at the Red Carpet Inn for approximately a year and a half. Sewer service is available and the facility was initially required to connect to the system within a year. This requirement was waived and the Division of Hotels and Restaurants allowed the motel to expand its drainfield. That measure failed after a short time.

   
   

4. The motel has two or three pumps which are intended to dispense effluent to various parts of the drainfield on a rotating basis to avoid over- saturation. Those pumps have periodically been inoperative.

   
   

5. George Jackow is the Environmental Health Supervisor for the Department of Health and Rehabilitative Services at the Osceola County Health Department. In June 1987, his supervisor, Frank Wolf, requested an update of the sewage system functioning and assigned staff to conduct inspections and report their findings.

   
   

6. George Jackow first visited the licensed premises on July 6, 1987 and did a comprehensive inspection of the septic tank and drainage field. He found overgrown vegetation and vegetation called "dollar grass", both indicia of the presence of effluent on the ground surface. He found very wet ground on the drainfield area and at times stepped into malodorous sewage.

7. He visited the premises later on July 20, 1987, with Frank Wolf. Again, they found evidence of untreated sewage effluent in various parts of the drainfield. Some effluent was flowing down to Lake Cecile, at the back of the property. This lake is abutted by Red Carpet Inn and other motels, who use it for recreational purposes for their guests. The strong odor of human waste was still evident, along with partially disintegrated shreds of toilet paper.

   
   

8. At one point in the inspection, the pump kicked on and bubbling action was observed in one of the standing pools of waste.

   
   

9. The manager of the motel claimed that the fluid was "just water."

   
   

10. George Jackow came back again the same day and took samples. The laboratory report revealed fecal coliform in the amount of more than 2,400 units of measurement in each of four samples taken. Any fecal matter is a hazard, but anything over 100 units is very dangerous. Infectious hepatitis and other diseases result from exposure to the bacteria.

    
    

11. Red Carpet is in a highly populated area, consisting of tourist attractions and motels. During the inspection, a visitor from the next door attraction was strolling around in the drainfield and was curious about the activities of these inspectors in knee-high boots.

    
    

12. HRS informed the Division of Hotels and Restaurants that the property was condemned by the local health department. As a temporary measure, the facility was required to spread lime to impede the growth of bacteria. The motel was also required to employ a service to pump out the septic tank in an amount based upon 150 gallons times the number of rooms rented each day. Neither measure was effective, and on August 6, 1987, an inspection by Laird Lane, Environmental Health Specialist for the Division, revealed that the pumping was not being conducted with sufficient frequency or volume to meet the requirements.

    
    

13. The foul odor and obvious existence of effluent continued on the date that the Emergency Suspension was served, August 8, 1987.

    
    

14. Samples taken on August 10th revealed continued fecal coliform content.

    
    

15. As of the morning of the date of hearing, August 14th, the facility was padlocked and unoccupied. There was still some odor but the drainfield would be drying up if it were not for very recent rainy weather.

    
    

16. The septic tank was, as of the date of hearing, approximately one- fourth full, as opposed to the overflowing condition observed in earlier inspections.

    
    

17. At the hearing, Counsel for the Division argued that the suspension should remain in effect until the system is approved by HRS. Frank Wolf, the HRS Environmental Health Director at the Osceola County Health Department, insists that hookup to the sewer system is the only means of avoiding continuing extremely hazardous conditions in the septic tank and drainfield. No amount of expansion or modification of the existing septic tank system is going to provide a remedy, according to Wolf.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding. Section 120.57(1), Florida Statutes, Section 120.60, Florida Statutes.

    
    

19. The Notice to Show Cause and Emergency Order of Suspension charge the Respondent with violations of sections 386.041(1)(b) and 509.221(2), Florida Statutes and Rules 7C-3.001(1) and 10D-6.046, Florida Administrative Code. These are statutes and rules of the Department of HRS and of the Division which require proper sanitation, including appropriate and adequately maintained sewage disposal systems. Subsection 509.261(4)(b), Florida Statutes authorizes the Division to suspend or revoke the license of a public lodging establishment when the establishment has been condemned by the local health authority for

    failure to meet sanitation standards or the premises have been condemned because the premises are unsafe and unfit for human occupancy.

    
    

20. The Division has provided uncontroverted proof that the licensee has committed the violations as alleged and that reasonable notice has been provided as required by subsection 120.60(7), Florida Statutes.

Based on the foregoing, it is hereby, RECOMMENDED:

That Respondent's license remain suspended for a maximum period of 12 months, as provided in subsection 509.261(3)(a), Florida Statutes, or until its waste disposal system is approved by the Osceola County Health Department and the Department of HRS, whichever first occurs.

DONE and RECOMMENDED this 4th day of September, 1987, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1987.

COPIES FURNISHED:

Lynne A. Quimby, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

Minaz P. Rahemtulla Serengetti Properties, Inc. 4810 W. Space Coast Parkway Kissimee, Florida 32741

James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

Thomas A. Bell, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

R. Hugh Snow, Director

Division of Hotels and Restaurants 725 South Bronough Street Tallahassee, Florida 32399-1000

Docket for Case No: 87-003337

Orders for Case No: 87-003337