STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 97-3851

)

SALAZAR FAMILY, d/b/a )

SALAZAR'S, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Myers, Florida, on November 20, 1997.

APPEARANCES

For Petitioner: Scott R. Fransen

Chief Assistant General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Robert J. Christman, Manager

Salazar's

4799 State Road 29

South Punta Gorda, Florida 33935 STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of any or all of six alleged violations of the law governing lodging establishments and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Notice to Show Cause issued May 30, 1997, Petitioner advised Respondent that it must show cause why its license as a public lodging should not be suspended or revoked for six violations found during inspections on April 10 and 30, 1997. The alleged violations were a failure to maintain fire extinguishers at least annually, in violation of National Fire Protection Association 10, 4-4.1; failure to keep all building structural components, attachments, and fixtures in good repair, clean, and free of obstructions, in violation of Rule 61C-1.004(6), Florida Administrative Code; failure to keep unlocked the women's restroom, in violation of Section 509.221(1), Florida Statutes; failure to provide cold water to the south stall of the men's restroom, in violation of Rule 61C3.001(1)(a), Florida Administrative Code; failure to maintain in good repair the plumbing system, as evidenced by a missing floor drain and broken toilet in the men's restroom, in violation of Rule 5-205.15(b), Florida Administrative Code; and failure to install a backflow device, in violation of Rule 5-204.12, Florida Administrative Code.

In an answer filed November 26, 1997, Respondent stated that, after trying to have the fire extinguishers serviced, Mr. Christman had purchased two new fire extinguishers at Builders Square; the torn screen in the men's bathroom has repeatedly been replaced and redamaged immediately; the

lodging establishment is restricted to men only and one of the lodgers has a key to the women's restroom; the cold water was running; the lodgers remove the drain cover as soon as it is replaced and the toilet was later fixed; and the requirement of a backflow device was unclear because Respondent did not know what a backflow device was.

On February 19, 1998, Petitioner filed a Motion to Withdraw Violation Number 1, which addresses the fire extinguishers. This motion is granted, and the first alleged violation in the Notice to Show Cause is stricken.

At the hearing, Petitioner offered into evidence four exhibits. Respondent offered into evidence two exhibits. All six exhibits were admitted.

The Administrative Law Judge gave Respondent an opportunity to elicit testimony of another witness, either by deposition or by telephone with the Administrative Law Judge on the telephone. Respondent elected instead to file an affidavit from the witness, to which Petitioner objected on the grounds that it was denied the right to cross-examination. The objection is sustained, and the affidavit is stricken.

The parties did not order a transcript.

FINDINGS OF FACT

1. Respondent operates a lodging establishment known as Salazar's at 412 South 2nd Street in Immokalee. Respondent holds license control number 21-01901H.

2. Petitioner's inspector inspected the lodging establishment on April 10 and 30, 1997.

3. On April 10, the inspector completed a report citing

   
   

   1. violations. The alleged violations were the presence of expired fire extinguishers, a missing floor drain in the men's restroom, a locked women's restroom, leaking shower faucets in the showers in the men's restroom, no hot water in the showers in the men's restroom, a broken toilet in the men's restroom, no backflow device for the hose threaded to the faucet in the men's room, a chirping smoke detector suggestive of dead batteries, no cold water in one of the stalls in the men's restroom, a torn screen in the men's restroom, a strong smell of urine in the men's restroom, no hot water in the wash basin outside the women's restroom, a dumpster on dirt, and peeling paint in the shower stalls in the men's restroom.

4. The inspector characterized the report as a warning. She mailed the report to Mr. Christman, who is Respondent's manager, and she gave Respondent five days from receipt of the report to correct the violations. However, several items bore asterisks, and, according to the form, Respondent had to correct these violations immediately. These violations were for the fire extinguishers, smoke alarm, lack of hot and cold water, and odor of urine.

5. On April 30, 1997, the inspector returned and reinspected the lodging. She found nine violations. The

   alleged violations were expired fire extinguishers, a missing floor drain in the men's restroom, a broken toilet in the men's restroom, no backflow device between the faucet and hose, no cold water in one stall of the men's restroom, a torn screen in the men's restroom, a locked women's restroom, a dumpster on the dirt, and peeling paint in the shower stalls in the men's restroom. The only urgent violations remaining from the last inspection were for the fire extinguishers and lack of cold water.

6. On May 29, 1997, the inspector returned and performed a second reinspection. She found the same violations as found previously, except for those concerning the dumpster and peeling paint.

7. The following day, Petitioner issued Respondent the Notice to Show Cause that commenced this case.

8. Respondent failed to repair or replace the torn screen in the men's restroom within the allotted time after the first inspection. It is no defense that the screen is immediately redamaged.

9. Respondent made the women's restroom reasonably available to guests of residents by giving the key to a resident who made it available to women as needed.

10. Respondent failed to repair the cold water in the men's restroom within the allotted time after the first inspection.

11. Respondent failed to replace the missing floor drain or repair the toilet within the allotted time after the first inspection.

12. Respondent failed to install a backflow device between the hose and the faucet within the allotted time after the first inspection. However, Respondent did not understand what Petitioner was requiring, and Petitioner's inspection reports did not clarify this requirement. Respondent was not available during the correction period, and he later had some trouble trying to obtain help from Petitioner in explaining what he needed to do. Although a backflow device serves the important purpose of preventing contaminated water from backflowing up the hose and into the public water supply, the circumstances of this case do not permit a finding of a violation.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

14. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932

    (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

15. Rule 61C-1.004(6) provides: "All building structural components, attachments and fixtures shall be kept in good repair, clean and free of obstructions." Petitioner has proved that Respondent violated this rule due to the failure to repair the torn screen in a timely manner.

16. Rule 61C-3.001(1)(a) provides, as to guest bathrooms: ". . . Guest, private, and connecting bathrooms shall provide lavatories and shower enclosures with hot and cold running water under pressure." Petitioner has proved that Respondent violated this rule due to the failure to repair the cold water in the men's shower stall in a timely fashion.

17. Food Code Rule 5-205.15(B) requires that a "plumbing system shall be . . . [m]aintained in good repair." Rules 61C-1.001(15) and 1.004 adopt this Food Code rule, among

    others, and apply it to public lodgings, such as the one owned and operated by Respondent. Petitioner proved that Respondent violated this rule due to the failure to replace the missing floor drain and repair the broken toilet in a timely fashion.

18. Section 509.261(2) authorizes fines of up to $1000 per offense to suspension and revocation. Petitioner has proved three separate violations. However, only the failure to supply cold water is a critical violation. The most

appropriate penalty would be a $1000 fine for this violation, and a total fine of $300 for the remaining violations, for a total fine of $1300.

RECOMMENDATION

It is

RECOMMENDED that the Division of Hotels and Restaurants, Department of Business and Professional Regulation, enter a

final order imposing a fine of $1300 against Respondent.

DONE AND ENTERED this 26th day of March, 1998, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1998.

COPIES FURNISHED:

Scott R. Fransen

Chief Assistant General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

Robert J. Christman, Manager Salazar's

4799 State Road 29

South Punta Gorda, Florida 33935

Dorothy W. Joyce, Director Division of Hotels and Restaurant Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1. days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-003851

Orders for Case No: 97-003851