STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

LAKESIDE APARTMENTS,

Respondent.

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) Case No. 00-4318

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RECOMMENDED ORDER

The parties having been provided proper notice, Administrative Law Judge John G. Van Laningham of the Division of Administrative Hearings convened a formal hearing of this matter on December 7, 2000, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue in this case is whether discipline should be imposed against Respondent for operating on an expired public

lodging establishment license, an offense which is deemed by rule to constitute operation without a license.

PRELIMINARY STATEMENT

On March 20, 2000, Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants (the "Division") issued an Administrative Complaint against Respondent Lakeside Apartments ("Lakeside") for continuing to operate as a public lodging establishment after failing to renew its license therefor, which is deemed to constitute unlicensed operation. On October 18, 2000, the Administrative Complaint was referred to the Division of Administrative Hearings with a request that an administrative law judge be assigned to conduct a final hearing of the matter. Both sides were properly notified that the final hearing would occur at 3:00 p.m. on December 7, 2000, at the Office of the Attorney General in Fort Lauderdale, Florida.

At the designated time and place, the administrative law judge and counsel for the Division appeared for final hearing. Lakeside's representative, however, did not appear. After waiting approximately 20 minutes and upon review of the file, from which it was determined that Lakeside had been given adequate notice of the final hearing, the administrative law judge commenced the proceeding.

The Division offered three exhibits, and each was received in evidence. Petitioner’s Exhibit 1 is a certified copy of an official record of the Division dated November 30, 2000, which contains information on the status of Lakeside's license.

Petitioner’s Exhibit 2 is a copy of a Lodging Inspection Report dated July 20, 2000, that contains the observations of a Division employee who performed a routine inspection of Lakeside on that date. Petitioner's Exhibit 3 is a copy of a Lodging Inspection Report dated August 13, 1999. At the Division's request, the undersigned took official recognition of Section 509.241, Florida Statutes, and Rule 61C-1.002, Florida Administrative Code. In addition to documentary evidence, the Division presented the testimony of its employees Robert Shaw and Kenneth Charles Buck.

The transcript of the final hearing was filed on December 28, 2000. The Division submitted a proposed

recommended order that has been carefully considered. Lakeside did not file a post-hearing submission of any kind.

FINDINGS OF FACT

The evidence presented at final hearing established the facts that follow.

1. Lakeside is an apartment building with 19 units located at 1048 Northeast 18 Avenue, Fort Lauderdale, Florida 33304- 2408.

2. The Division issued Lakeside a license, numbered 16- 10553-H, to operate as a public lodging establishment. According to information in the Division's official database, as reproduced in Petitioner's Exhibit 1, 1/ the "current license expiration date [for Lakeside's license] is December 1, 2000."

3. On July 20, 2000, Division employee Robert Shaw conducted a routine inspection of Lakeside and found the apartment complex to be open and operating. On a Lodging Inspection Report that he prepared on that date, 2/ Mr. Shaw noted two minor violations, neither of which is at issue here. On the same form, Mr. Shaw inscribed the date that Lakeside's license would expire, as shown below, in the blank spaces provided for that purpose in a line that read:

   REMINDER: Your license expires 12 /01 /00 Petitioner's Exhibit 2. Mr. Shaw testified, however, that at the time of this inspection, he did not know whether or not Lakeside was licensed.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

5. The Department of Business and Professional Regulation, Division of Hotels and Restaurants, is the agency charged with

   licensing and inspecting public lodging establishments in the State of Florida, pursuant to Chapter 509, Florida Statutes.

6. Lakeside is a "public lodging establishment" under the definition provided in Section 509.013(4)(a), Florida Statutes. More specifically, Lakeside is classified as a "nontransient apartment," as that term is defined in Section 509.242(1)(d), Florida Statutes. Accordingly, to operate lawfully in this state, Lakeside must be duly licensed by, and submit to the regulatory authority of, the Division. See Section 509.241,

   Florida Statutes.

   
   

7. The Division seeks to impose an administrative fine on Lakeside and therefore bears the burden of proving the allegations of its Administrative Complaint by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); see also

   Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute. ").

8. In Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla.

   
   

   4th DCA 1983), the Court of Appeal, Fourth District, canvassed the cases to develop a "workable definition of clear and convincing evidence" and found that of necessity such a

   definition would need to contain "both qualitative and quantitative standards." The court held that

   clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

   
   

   Id. The Florida Supreme Court later adopted the fourth

   
   

   district's description of the clear and convincing evidence standard of proof. Inquiry Concerning a Judge No. 93-62, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding the interpretive

   comment that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler Brothers, Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev.

   denied, 599 So. 2d 1279 (1992)(citation omitted).

   
   

9. The Division has charged Lakeside with the offense of unlicensed operation in violation of Section 509.241(1), Florida Statutes, which provides:

   LICENSES; ANNUAL RENEWALS.–Each public

   lodging establishment and public food service establishment shall obtain a license from the division. Such license may not be

   transferred from one place or individual to another. It shall be a misdemeanor of the second degree, punishable as provided in s.

   775.082 or s. 775.083, for such an establishment to operate without a license.

   . . . Licenses shall be renewed annually, and the division shall adopt a rule establishing a staggered schedule for license renewals. If any license expires while administrative charges are pending against the license, the proceedings against the license shall continue to conclusion as if the license were still in effect.

   
   

10. Section 509.261, Florida Statutes, provides in pertinent part:

    1. Any public lodging establishment or public food service establishment that has operated or is operating in violation of this chapter or the rules of the division, operating without a license, or operating with a suspended or revoked license may be subject by the division to:

       1. Fines not to exceed $1,000 per offense;

       2. Mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program; and

       3. The suspension, revocation, or refusal of a license issued pursuant to this chapter.

    2. For the purposes of this section, the division may regard as a separate offense each day or portion of a day on which an establishment is operated in violation of a "critical law or rule," as that term is defined by rule.

       
       

11. Rule 61C-1.002(6), Florida Administrative Code, governs license renewals and states:

    It is the responsibility of the licensee to renew the license prior to the expiration date. The division makes available to all

    licensees BPR form 21-021, APPLICATION FOR LICENSE RENEWAL, incorporated herein by reference and effective 3-31-94, which contains all information required by law to renew the license. Any public lodging or food service establishment operating on an expired license is deemed to be operating without a license, and subject to the penalties provided for this offense in law and rule. Annual renewal dates for all establishments in the counties indicated are as follows:

    
    

    * * *

    
    

    (b) DISTRICT 02 -- December 1 -- Broward, Martin, Palm Beach[.]

    
    

    (Emphasis added).

    
    

12. As a public lodging establishment operating in Broward County, Florida, Lakeside is required annually to renew its license before December 1 of each year.

13. The Division argues that Lakeside's license expired when Lakeside failed timely to renew the license for the period from December 1, 1999 through December 1, 2000. 3/ Because Rule 61C-1.002(6) makes operating on an expired license tantamount to unlicensed operation, the Division contends that Lakeside was operating without a license at all times after December 1, 1999.

14. The Division's theory is flawed because, for reasons not explained, its own records fix December 1, 2000, as the expiration date for Lakeside's license — a fact that is inconsistent with the instant charge of non-renewal. See

    Petitioner's Exhibits 1 and 2. Further, while the official agency record in evidence as Petitioner's Exhibit 1 reports that Lakeside has not paid a license fee for the period from

    December 1, 1999 through December 1, 2000, the same document simultaneously advises that Lakeside's "current license expiration date is December 1, 2000."

15. It is possible to understand Petitioner's Exhibit 1 in two ways: (1) Lakeside's license was in force through December 1, 2000; and (2) Lakeside's license was not in force after December 1, 1999, as a result of Lakeside's failure to pay the required renewal fee. Thus, the evidence as to whether Lakeside's license expired on December 1, 1999, is not merely in conflict; it is ambiguous. None of the other evidence clarified or resolved this ambiguity. The clear and convincing evidence standard is not satisfied by ambiguous evidence. Westinghouse Electric Corp., Inc. v. Shuler Brothers, Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev. denied, 599 So. 2d 1279 (1992).

1. In view of this ambiguity in the proof, the instant record does not produce in the mind of this trier of fact a firm belief or conviction, without hesitancy, that Lakeside's license expired prior to December 1, 2000.

2. Accordingly, the Division failed to carry its burden of proving by clear and convincing evidence that Lakeside was operating on an expired license at times material to the

Administrative Complaint. Without this material fact, it cannot be concluded that Lakeside committed the offense of unlicensed operation, as charged.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order dismissing the Administrative Complaint against Lakeside Apartments.

DONE AND ENTERED this 24th day of January, 2001, in

Tallahassee, Leon County, Florida.

JOHN G. VAN LANINGHAM

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 2001.

ENDNOTES

1. Petitioner's Exhibit 1 bears the original signature of Bureau Chief Lance Rodan in his official capacity. Therefore, it is a self-authenticating document, see Section 90.902(2), Florida Statutes, that was admissible under the public records exception to the hearsay rule. See Section 90.803(8), Florida Statutes.

2. Mr. Shaw authenticated Petitioner's Exhibit 2, making it admissible under the public records exception to the hearsay rule. See Section 90.803(8), Florida Statutes.

   
   

3. The Administrative Complaint was issued long before the commencement of the current annual period on December 1, 2000. Thus, whether Lakeside could or should be deemed to be operating without a license as a consequence of failing to renew for the 2000-2001 period on or before December 1, 2000, is immaterial to the offense charged, and no opinion is expressed in this Recommended Order on the subject.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Lakeside Apartments 1048 Northeast 18 Avenue

Fort Lauderdale, Florida 33304-2408

Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 00-004318

Orders for Case No: 00-004318