STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 90-0183

) BARKAP, INC., d/b/a FLAMINGO INN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on February 23, 1990 in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Elizabeth C. Masters, Esquire

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

For Respondent: Paul J. Dubbeld, Esquire

First Union Banks Building Suite 815

444 Seabreeze Boulevard Daytona Beach, Florida 32118

STATEMENT OF THE ISSUE

Whether, under the facts and circumstances of this case, Respondent is guilty of the violations alleged in the Amended Notice To Show Cause issued November 9, 1989 by the Division of Hotels and Restaurants, Department of Business Regulation.

PRELIMINARY STATEMENT

On November 13, 1989, a Notice To Show Cause - Notice of Informal Conference issued by Respondent on November 9, 1989 was served on the Petitioner by certified mail charging it with one major violation under Section 509.211, Florida Statutes and six minor violations under Section 509.211(2), Florida Statutes, and Rule 7C-1 and 7C-3, Florida Administrative Code. Respondent filed a Request For Hearing wherein it denied all charges and this hearing ensued. At the time scheduled for hearing, the Petitioner filed a Motion To Amend Notice To Show Cause by adding a violation of the National Fire Protection Association 101, 1985 Edition, Life Safety Code and Rule 4A-43.006, Florida Administrative Code, to the statutory violation already cited for major violation 1 and minor

violation 1. The Motion to Amend was granted without objection from Respondent and the matter proceeded forward on the Amended Notice To Show Cause as the charging document.

In support of the Amended Notice To Show Cause, the Petitioner presented the testimony of Charles Casper, George Houllis and Chester Cole. Petitioner's exhibits 1,2,4,5, and 6 were received into evidence. Respondent offered the testimony of Peter Rappelman and Fred Hagen. Respondent's exhibits 1, 2, 3 and

4 were received into evidence.

No transcript has been filed with the Division of Administrative Hearings in this case. The Petitioner timely filed its Proposed Findings of Fact and Conclusions of Law. Respondent has not filed any Proposed Findings of Fact and Conclusions of Law with the Division of Administrative Hearings. A ruling on each Proposed Finding of Fact submitted by the Petitioner has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the evidence adduced at the hearing, the following relevant facts are found:

1. At all times material to this case, the Respondent, Barkap, Inc., d/b/a Flamingo Inn (Flamingo) held a valid public lodging establishment license located at 2011 South Atlantic Avenue, Daytona Beach, Volusia County, Florida, license number 74-03605H.

   
   

2. Flamingo is operated by Peter Kappelman, President of Barkap Inc., and his wife who is also a corporate officer of Barkap, Inc. Flamingo has only 24 rental units.

   
   

3. Prior to June 1988, George Houllis, Environmental Health Inspector, with the Division of Hotels and Restaurants (Division), was assigned to inspect Flamingo's establishment. While attempting to inspect a fire extinguisher Houllis broke the glass in the door of a cabinet containing a fire extinguisher. Houllis contends that the glass door was already cracked, while Kappelman contends that it was not cracked, and that Houllis attempted to "cover it up". At Kappelman's insistence, the Division paid for the repair at a cost of approximately $35.00. However, as a result of this incident, Charles Casper, another Environmental Health Inspector with the Division, was assigned to inspect the Flamingo establishment beginning June 1988.

   
   

4. The Division's policy is to inspect licensed public lodging establishments on a quarterly basis and, in accordance with that policy, Charles Casper inspected the Flamingo on at least a quarterly basis beginning in June 1988.

   
   

5. Shortly after Casper began inspecting the Flamingo, the relationship between Casper and Kappelman deteriorated and reached a point where each party became personal with their remarks, with Kappelman refusing to sign the inspection report, describing Casper's behavior as "Gestapo methods", and alleging that the Flamingo was being treated differently than other establishments along the "strip" on Daytona Beach. While Casper may have been strict with his inspections of the Flamingo, there is insufficient evidence to show that his behavior could be described as arbitrary or that he treated the Flamingo differently than any other licensed establishment.

6. Violations of a minor nature are normally cited on the inspection report to document, warn or educate the licensee of corrections that need to be made, usually by the next routine inspection date. However, where corrections of minor violations are not made by the date indicated on the inspection report, a minor violation can become a major violation, usually at the discretion of the inspector.

   
   

7. The Flamingo had been warned on the September 12, 1988 inspection report by Casper for having exit doors propped open on all floors and listed the violation as a minor violation. There was no date for making the correction on the report, but two subsequent inspection reports dated December 15, 1988 and January 12, 1989 did not show exit doors being propped open as a violation on those dates.

   
   

8. The record is not clear as to why another inspection was made within a month of the December 15, 1988 inspection, but apparently it was a follow-up inspection concerning a major violation listed on the September 12, 1988 inspection report concerning locking devices on doors wherein a Notice To Show Cause was issued. However, this matter was settled without the necessity of a hearing and the case dismissed.

   
   

9. Flamingo was cited again on June 5, 1989 for having exit doors propped open with wooden wedges and advised to remove all props from the exit doors and given until the next routine inspection date to make the correction.

   
   

10. The next routine inspection of the Flamingo was on September 25, 1989, and at that time Flamingo was cited again for having exit doors propped open with wooden wedges on the first second and third floors. Since the same violation had been cited on June 5, 1989 and not corrected by the time of the next routine inspection on September 25, 1989, Casper considered this violation as a major violation and requested that a Notice To Show Cause be issued.

    
    

11. In addition to the major violation cited on September 25, 1989, Casper cited six minor violations on the inspection report issued on September 25, 1989. These violations were as follows: (1) Failure to provide exit sign for stairway exit door; (2) Failure to maintain walkway emergency light in good repair; (3) Failure to maintain fiberglass shower liners, building exteriors, stairways, inside cabinet under sink and walls in good repair and failure to maintain proper cleanliness of back panel and wall behind trash can; (4) Failure to maintain proper cleanliness of tub and bathroom walls in good repair (walls need paint); (5) Failure to provide covers for exterior trash cans and; (6) Failure to provide room rate for door in unit number 204.

    
    

12. A Notice To Show Cause was issued by the Division on November 9, 1989 charging Flamingo with the major and minor violations discussed above.

    
    

13. Casper conducted a pre-conference re-inspection of Flamingo on November 28, 1989 to determine compliance with the September 25, 1989 inspection report.

    
    

14. While Flamingo did not totally comply by correcting all cf the violations cited in the September 25, 1989 inspection report, it did correct several of the violations.

15. For convenience, Kappelman leaves the wooden wedges in the vicinity of the exit doors for use by the guest in propping open doors while carrying luggage in and out of their rooms and the cleaning staff while carrying linen and other items in and out of the rooms and other areas of the motel. Kappelman did not remove the wooden wedges from the vicinity of the exit doors after Flamingo was cited for this violation on June 5, 1989.

    
    

16. Casper did not observe any persons, including maids or guest, in the vicinity of the exit doors that were propped open on September 25, 1989. Although not every inspection report shows the time of day the inspection was made, those reports that do show the time indicate the inspection was made during the time of day when the maids would be cleaning and guests would be checking out of their rooms.

    
    

17. Flamingo is aware that the doors are being propped open for short periods of time for the purposes previously stated but does not feel that this is a violation.

    
    

18. The minor violation cited in the September 25, 1989 inspection report concerning the missing exit sign on second floor west was not cited in the November 28, 1989 inspection report as a violation. Apparently it had been corrected, because the exit sign was missing on September 25, 1989 as admitted to by Kappelman. However, there is insufficient evidence to show that there was not another approved exit sign that clearly marked the exit and visible from any direction of the exit access. Likewise, there was insufficient evidence to show that low level exit signs were specifically required in the Flamingo.

    
    

19. The minor violation cited in the September 25, 1989 inspection report for failure to maintain the walkway emergency light by Room 106 in good repair in violation of Rule 7C-1.004(3), Florida Administrative Code, was also cited in the November 28, 1989 inspection report as a violation. However, there was insufficient evidence to show that the area of Flamingo serviced by this emergency light would not be well-lighted during the day and night in the event the regular light was not functioning.

    
    

20. On September 25, 1989 Casper inspected Rooms 204 and 303 as suggested by Kappelman because these rooms were unoccupied and available for rent.

    
    

21. In both rooms (204 and 303) Casper cited Flamingo for bathtub liners having loose caulking resulting in the liner separating from the wall. The violation had not been corrected at the time of the re-inspection on November 28, 1989.

    
    

22. Casper cited cleanliness violations on September 25, 1989 as follows:

    (1) in room 204 a substance on back portion of cabinet; (2) hair on tub in room 303; (3) splatter on wall behind trash can in room 303; and (4) exterior trash can lid missing by rooms 103 and 106. The re-inspection report indicates the splatter on wall behind trash can to be in room 204 rather than room 303 as indicated in September 25, 1989 inspection report. Kappelman admits that a splatter the size of a quarter was present. The remaining cleanliness citations in the September 25, 1989 inspection report appear to have been corrected at the time of re-inspection.

    
    

23. Numerous cracks were noted on the exterior of stairwell and outer walls on September 25, 1989. Casper assumed these cracks to be maintenance cracks and not structural in nature (settling cracks) because, with one exception, the cracks did not have any monitoring devices (measuring gauges).

    These cracks were still evident at the re-inspection. However, the cracks previously had measuring gauges to determine if there was settling, but had been removed without Kappelman's knowledge. The record is not clear whether the cracks were eventually determined to be structural or maintenance cracks.

    However, all of the cracks were monitored for a period of time. In any event, the cracks had not been repaired at the time of re-inspection, but are now repaired.

    
    

24. Casper determined that the "paint job" on the bathroom walls in Room

    303 was poor because it appeared that there was only one coat of paint resulting in the dry wall bleeding through. There was no mention of the bathroom walls needing paint in Room 204. However, in the re-inspection report Casper noticed that the bathroom walls in Room 204 needed painting. It is not clear whether Casper made an error in room numbers or if both rooms needed painting and Room

    303 had been corrected on November 28, 1989. However, it is clear that the bathroom walls in all rooms were not painted as such but the drywall was impregnated with paint to give the appearance of being painted. There is insufficient evidence to show that painting would be applicable in either room due to the type of wall.

    
    

25. Flamingo was cited on September 25, 1989 for failure to have room rates posted in room 204. Based upon Casper's thorough job of inspecting that day, as testified to by Rappelman, it has been shown that that the room rates were neither posted on the door nor in the room, notwithstanding Kappelman's testimony to the contrary.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

27. Section 509.262(1), Florida Statutes, empowers the Division to suspend or revoke the license of any public lodging establishment for violating any of the provisions of Chapter 509, Florida Statutes or the rules of the Division. However, Section 509.262(2), allows the Division to impose fines against the licenses for such violations in lieu of suspension or revocation of license, provided the fines so imposed do not exceed $500.00 for each offense.

    
    

28. Section 509.211(2), Florida Statutes, authorizes the Division to enforce any rule adopted by the State Fire Marshal which relates to public lodging establishment.

    
    

29. Rule 4A-43.006(11), Florida Administrative Code, adopts the standards of the National Fire Protection Association 101, 1985 edition, Life Safety Code (Code) as the uniform fire safety standards required by the state of Florida with respect to public lodging establishments.

    
    

30. Section 5-2.1.8, of the Code requires that a door to a stair enclosure or horizontal exit be self-closing and "shall not at any time be secured in the open position." The Code recognizes that in a situation such as this one, doors to stair enclosures and horizontal exits will be blocked open by some door- stopping chock to allow free flow of normal traffic, and makes an exception for doors located in buildings which house a low or ordinary hazard to be held open by an automatic releasing device. Otherwise, there is no exception to the requirement that doors not be secured in the open position as they were in this case. There was no evidence that Flamingo came within the above exception.

31. Rule 7C-1.004(3), Florida Administrative Code, requires that exits "be clearly marked with approved illuminated exit signs". Section 5-10.1.1 of the Code requires that exits "be marked by an approved sign readily visible from any direction of exit access". Section 5-10.1.3 of the Code is not applicable since there was no requirement for low level exit signs.

    
    

32. Rule 7C-1.004(3) provides that "halls, entrances and stairways must be well-lighted day and night". Section 17-2.9 of the Code provides that "emergency lighting in accordance with Section 5-9 shall be provided in all buildings with more than *25* rooms". (e.s. between *)

    
    

33. Section 7C-1.003(1), Florida Administrative Code, provides that "roofs, walk, ceilings, floors, stairs, steps, windows, transoms, shelves, fixtures, etc., shall be in good repair, clean and *painted where applicable"*. (e.s. between *) Section 70-3.001(3), Florida Administrative Code, provides that "the walls, ceilings and floors shall be kept in good condition".

    
    

34. Section 70-3.001(12), Florida Administrative Code, provides that trash can lids must be tight-fitting and Section 70-1.003(5), Florida Administrative Code, further requires that the trash can be covered at all times with a tight- fitting cover.

    
    

35. Section 70-3.002(2), Florida Administrative Code, requires that room rates be posted in each room on a form provided by the Division.

    
    

36. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegation of misconduct is based. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (2 DCA Fla. 1977). The Petitioner has sustained its burden as to: (1) the major violation of securing exit doors in an open position in violation of Sections 17-2.2.1(a) and 5.2.2.8 of the Code as adopted by Rule 4A-43.006, Florida Administrative Code; (2) the minor violation of failing to properly maintain the fiberglass liner and the cleanliness of the inside the cabinet and the area behind the trash can in violation df Section 7C-1.003(1), Florida Administrative Code; (3) the minor violation of failing to keep the lid on an exterior trash can in violation of Section 7C- 1.003(5), Florida Administrative Code, and; (4) the minor violation of failing to post room rates in room 204 in violation of Section 7C-3.0023(2), Florida Administrati1ve Code.

RECOMMENDATION

In making the following recommendation I am mindful of the Division's "guidelines" of increasing the penalty five times for a major violation and doubling the penalty of a minor violation when the violation is not corrected at the time of the Informal Conference Call-Back Inspection. However, these guidelines would appear to have a "chilling effect" on a licensee's decision to challenge the Division in the administrative forum, and also conclusively presume that the penalty should be the same regardless of the facts and circumstances surrounding the violation.

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the circumstances surrounding the violations, it is, therefore,

RECOMMENDED that the Petitioner enter a Final Order finding Respondent guilty of: (1) the major violation of securing exit doors in an open position in violation of Section 17-2.2.1(a) and 5.2.2.8 of the Code as adopted by Rule 4A-43.006, Florida Administrative Code; (2) the minor violation of failing to properly maintain the fiberglass liner and the cleanliness of the inside of the cabinet and the area behind the trash can in violation of Section 7C-1.003(1), Florida Administrative Code; (3) the minor violation of failing to keep the lid on an exterior trash can in violation of Section 7C-1.003(5), Florida Administrative Code, and (4) the minor violation of failing to post room rates in room 204 in violation of Section 7C-3.002(2), Florida Administrative Code, and for such violations assess an administrative fine of $100.00 for the major violation and $50.00 for each of the three minor violation for a total fine of

$250.00. It is further recommended that all other violations cited in the Amended Notice to Show Cause be DISMISSED.

DONE AND ENTERED this 3rd day of April, 1990, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-0183

Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner

1-4. Adopted in Findings of Fact 1, 2, 3 and 3, respectively.

5-7. Adopted in Findings of Fact 4, 5 and 5, respectively as modified.

1. Adopted in Findings of Fact 10 and 16.

   
   

2. Adopted in Finding of Fact 15.

   
   

3. Adopted in Findings of Fact 7 and 9.

11-12. Adopted in Findings of Fact 17, and 10, respectively.

13-16. Adopted in Findings of Fact (4,6), (7,9), 18, 19, and (20,21), respectively.

1. Adopted in Findings of Fact 22 and 23 with the exception of the room number which should be 303.

2. Rejected as not being supported by substantial competent evidence in the record.

19-21. Adopted in Findings of Fact 22, 5, and 25, respectively.

22. Not material or relevant to this proceeding.

Specific Rulings on Proposed Findings of Fact Submitted by the Respondent

The Respondent did not file any proposed findings of fact with the Division of Administrative Hearings.

COPIES FURNISHED:

Elizabeth C. Masters, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Paul J. Dubbeld, Esquire First Union Bank Building Suite 815

444 Seabreeze Boulevard Daytona Beach, Florida 32118

Fred Fluty, Director

Division of Hotels and Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Joseph A. Sole, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Stephen R. MacNamara Secretary

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

Docket for Case No: 90-000183

Orders for Case No: 90-000183