STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-1860

) SALVATORE AND CAROLYN CARPINO, ) d/b/a CHARLOTTE STREET APARTMENTS, )

)

Respondents. )

)

RECOMMENDED ORDER

On August 22, 1989, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: John B. Fretwell, Esquire

Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondents: Salvatore A. Carpino, Esquire

One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner, the Department of Business Regulation, Division of Hotels and Restaurants (DBR), should revoke or suspend or otherwise discipline the public lodging establishment license held by Salvatore and Carolyn Carpino for alleged violations of the requirements of licensure.

PRELIMINARY STATEMENT

On November 30, 1988, DBR issued a Notice to Show Cause directed to Salvatore and Carolyn Carpino, "d/b/a Charlotte St. Apartments." The Notice to Show Cause, 1/ which charges violations of the requirements of licensure for a public lodging establishment, identifies the licensed premises by the address 1323-1325 Charlotte Street, Tallahassee, Florida. At the time of licensure, the Carpinos, then husband and wife, owned that property and jointly applied for licensure. By the time of the formal administrative hearing on this matter, the marriage of the Carpinos had been dissolved, and Carolyn Carpino's interest in the property had been conveyed to her former husband.

At the hearing, the Carpinos made several motions that were ruled on at the hearing on the record. Many of these motions do not merit separate treatment in this Recommended Order. Explicit rulings on the DBR's proposed findings of fact may be found in the attached Appendix to Recommended Order. (The Carpinos did not file any proposed findings of fact.)

FINDINGS OF FACT

1. In approximately June 1988, the DBR contacted the Carpinos in writing and contacted Salvatore Carpino by telephone to advise them that the DBR had determined that the property they owned at 1323 and 1325 Charlotte Street in Tallahassee, Florida, was a public lodging establishment required to be licensed under Chapter 509, Florida Statutes. The Carpinos disagreed with the DBR's assessment of the status of the property, believing the property not to be subject to licensure, but agreed to submit to licensure as the most expedient way to deal with the matter at the time.

   
   

2. In approximately June 1988, the DBR mailed the Carpinos an Application for License form, which the Carpinos partially completed and returned to the DBR with the application fee. Upon receipt of the partially completed form, the DBR completed the "Name of Business" and "Address of Business" parts of the form with the words "Charlotte St Apt" and "1323 Charlotte St," respectively. Based on this application, the DBR issued license number 47-1749H to the Carpinos.

   
   

3. Upon inspection of the Carpino property on Charlotte Street on September 19, 1988, a DBR inspector found unacceptably high weed cover across the entire outside premises, together with an unacceptable amount of litter and trash, including food containers, fast food paper, bottles, and baby items. In addition, the garbage dumpster was not water tight and covered. It was missing half of the top lid, and the drain opening at the bottom of the dumpster was not plugged. Finally, the fire extinguisher at one of the four apartments at the 1325 Charlotte Street address had not been serviced and tagged since July 1981. (None of the other residents of any of the other four dwelling units at the 1325 Charlotte Street address or at any of the four dwelling units at the 1323 Charlotte Street address were available to inspection of other fire extinguishers.) The Carpinos were notified by certified mail to correct the noted violations within 10 days. Reinspection on September 30, 1988, disclosed that none of the violations had been corrected.

   
   

4. DBR personnel inspected the Carpinos' property again; once in April and twice in August 1989. The yard and garbage dumpster were in approximately the same condition on each inspection. On the last inspection, a "prehearing inspection" on August 17, 1989, the DBR inspector was able to inspect the fire extinguisher at one of the four dwelling units at the 1323 Charlotte Street address and found that it, too, had not been serviced and tagged since July 1981.

   
   

5. It can be inferred from all of the evidence, including the Carpinos' testimony, that none of the fire extinguishers in any of the dwelling units at either the 1323 or the 1325 Charlotte Street addresses had been serviced and tagged since July 1981.

   
   

6. The Carpino property at 1323 and 1325 Charlotte Street consists of two separate two-story quadraplexes, each on property bearing a distinct legal description--lots 5 and 6, respectively, of Block 3 of the Westview subdivision-

   -and each encumbered by a distinct mortgage. Physically, the two quadraplexes

   both face Charlotte Street and are set the same distance back from Charlotte Street. They are very close to each other (and to the property line separating lot 5 from lot 6), separated by only a few feet. Between them is a common wooden stairway set on a concrete slab that connects 1323 to 1325. At the top of the stairs is a wooden platform that also connects the two buildings and serves as access to the second floor unit of each building that is closest to the stairway. The platform area is covered by a small roof that is part of the stair structure, not part of the roof of either of the buildings.

   
   

7. The Carpino property on Charlotte Street is not operated under a single business name. The Carpinos identify them as, and operate them as, 1323 Charlotte Street and 1325 Charlotte Street. The name "Charlotte St Apt" was invented by the DBR for purposes of completing the license application, and the name "Charlotte St. Apartments" was invented by the DBR for purposes of the Notice to Show Cause filed in this case.

   
   

8. The Carpino property on Charlotte Street is not regularly rented to transients or held out or advertised to the public as a place regularly rented to transients.

   
   

9. During the pendency of this administrative proceeding, the annual license that had been issued to the Carpinos came up for renewal. The Carpinos did not renew the license but allowed it to expire on or about June 1, 1989.

   
   

   CONCLUSIONS OF LAW

   
   

10. Regardless whether the Carpinos were required to license their buildings on Charlotte Street, they chose to submit the building at the 1323 Charlotte Street address to licensing and obtain a public lodging establishment license. 2/ Regardless of their reasons for obtaining this license, once the Carpinos submitted to licensing and obtained the license, they agreed, as a matter of law, to comply with the requirements of licensure in return for the benefits of licensure, both real and perceived, whatever they might be. At the same time, the public acquired a right to expect that the Carpinos would be required to comply with the requirements of the license they held on the property. So long as the Carpinos continued to hold the license on their property, the DBR had jurisdiction to initiate license disciplinary proceedings if the Carpinos failed to comply with the requirements of licensure.

    
    

11. The license held by the Carpinos on the Charlotte Street property was a one-year license renewable on June 1 of every year. See Section 509.241(1), Florida statutes (1987). The license expired on June 1, 1989, when the Carpinos did not renew it. Although the Carpinos were subject to the requirements of the license as long as the license was in effect, the DBR's jurisdiction expired with the expiration of the license on June 1, 1989

    
    

12. In support of its assertion of continuing jurisdiction over the Carpinos, the DBR argues that it would not be able to serve the expressed legislative intent to safeguard the public health, safety, and welfare if it were not able to continue to assert jurisdiction over the Carpinos and former licensees like them. Cf. Section 509.032, Florida Statutes (1987). The DBR contends that the public would not be adequately safeguarded if licensees such as the Carpinos could avoid prosecution of a DBR notice to show cause by allowing the annual license to expire and then reapplying for licensure. (As a worst case scenario, the DBR asks that one assume that the violation occurs on May 31.)

For several reasons, the DBR's arguments are not persuasive. First, assuming that the Carpinos are required to have the Charlotte Street property licensed, they would be legally unable to rent the property as of the expiration of the license. If they tried to rent the property without a license, they would be subject to criminal prosecution. See Section 509.241(1), Florida Statutes (1987). When the Carpinos allowed their license to expire, the public became as fully safeguarded as if the DBR had successfully prosecuted a case to revoke the Carpinos' license. 3/ Finally, it is not true, as the DBR suggests at another point in its argument, that licensees can simply reapply for licensure and be relicensed regardless of preexisting violations. To the contrary, even assuming that the Carpinos would reapply (which would appear to be highly unlikely at this time), preexisting violations would be relevant considerations to the DBR's decision whether to relicense. Under Section 509.241(1), Florida Statutes (1987), the DBR "may refuse a license, or a renewal thereof, to any establishment that is not constructed and maintained in accordance with law and with the rules of the [DBR]."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Hotels and Restaurants, enter a final order dismissed the Notice to Show Cause in this case.

RECOMMENDED this 18th day of October 1989, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of October 1989.

ENDNOTES

1/ The Carpinos correctly argued at the hearing that F.A.C. Rule 28-6.009, one of the model rules, prescribes an administrative complaint as the proper pleading to initiate a disciplinary proceeding. However, although the DBR's F.

A.C. Rule 7-4.001(1) is incomprehensible as written, it nonetheless appears that, through its Rule 7-4.002, providing for the issuance of a notice to show cause, the DBR has adopted a specific rule of procedure covering the same subject matter as F. A. C. Rule 28-6.009. This appears to be permissible under Section 120.54(10), Florida Statutes (1987).

2/ Regardless of the intention of the parties, the license, on its face, is for the "Charlotte St Apt" at "1323 Charlotte St."

3/ If it was determined in the criminal prosecution that the Carpino property on Charlotte Street is not required to be licensed, then it also will have been

determined that the Legislature did not intend to safeguard the public from the Carpinos and their Charlotte Street property.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1860

To comply with the requirements of Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact:

1. Rejected as, in part, contrary to facts found. The Carpinos were doing business at 1323 and 1325 Charlotte Street, but the license, by its own terms, only covered 1323 Charlotte Street. In addition, the license only was in effect until June 1, 1989.

   
   

2. Accepted but subordinate and unnecessary.

   
   

3. Accepted and incorporated to the extent not subordinate to facts found.

COPIES FURNISHED:

John B. Fretwell, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609

Fred Fluty, Director

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

Stephen R. MacNamara Secretary

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

Joseph A. Sole, Esquire General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee Florida 32399-1007

Docket for Case No: 89-001860

Orders for Case No: 89-001860