STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

GARDENVILLE MOTEL,

Respondent.

)

)

)

)

)

)

)

) Case No. 00-4326

)

)

)

)

)

RECOMMENDED ORDER

Pursuant to notice, a final administrative hearing was held in the above-styled cause before Administrative Law Judge

Fred L. Buckine, Division of Administrative Hearings, on December 15, 2000, via video teleconference at sites in Tampa and Tallahassee, Florida.

APPEARANCES

For Petitioner: Gail Hoge, Esquire

Department of Business

and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The Administrative Complaint alleges that Respondent violated certain provisions of Chapter 509, Florida Statutes,

and Chapter 61-C, Florida Administrative Code, regarding the absence of required equipment, equipment not operative, and failure to post required signs for public information.

Specifically, Respondent, after notice of specific violations and lapse of the allotted time to correct those violations, Respondent failed to do so.

PRELIMINARY STATEMENT

On October 19, 2000, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Agency), filed an Administrative Complaint against Respondent, Gardenville Motel, accompanied by an Election of Rights, signed by Respondent's Representative, Virgie Fowler. In his Election of Rights form, Mr. Fowler admitted the material allegations contained in the complaint and requested an informal hearing for the purpose of presenting mitigating circumstances, pursuant to Section 120.57(2), Florida Statutes.

On November 27, 2000, a Notice of Hearing by video teleconference scheduling the hearing for December 15, 2000, at 9:00 a.m. at Tampa and Tallahassee, issued.

On December 12, 2000, the Agency filed a Notice of Substitution of Counsel and its Response to Pre Hearing Notice.

On December 13, 2000, the Agency filed its exhibits and exhibits list.

The Agency presented the testimony of Ken Phillips, Safety and Sanitation Specialist, Division of Hotels and Restaurants. Petitioner's Exhibits 1, 2, and 3 were admitted into evidence. Official recognition was taken of National Fire Protection Association, Inc. (hereinafter NFPA code) which is incorporated into Rule 61C-1.004(9), Florida Administrative Code, through Chapter 509, Florida Statutes. No person appeared on behalf of Respondent, Gardenville Motel.

The Transcript was filed on December 15, 2000, and the Agency's Proposed Findings of Fact, and Conclusions of Law were filed on January 11, 2001. Respondent's Proposed Findings of Fact and Conclusions of Law was filed January 24, 2001.

FINDINGS OF FACT

1. On or about February 29, 2000, an employee of the Agency, Kenneth Phillips, supervised inspector trainee, Rick Decker, who performed the initial inspection of Respondent's establishment. A copy of the Public Lodging Inspection Report, citing specific violations noted in or about the establishment was prepared, and each violation was fully explained to Virgie Fowler. A copy of the inspection report was given to Mr. Fowler. Kenneth Phillips advised Mr. Fowler that a call-back re-inspection for correction of cited violations would be made on or about March 13, 2000.

2. On or about March 13, 2000, inspectors Kenneth Phillips and Rick Decker undertook a call-back re-inspection. Previously cited violations not corrected were observed by both inspectors, and entries were made in their re-inspection report, which constituted the Administrative Complaint herein filed.

3. The Agency is charged with the regulation of public lodging establishments and public food service establishments, pursuant to authority granted by Chapter 509, Section 509.032, Florida Statutes.

4. Respondent, Gardenville Motel, is holder of State of Florida License No. 39-01017-H, with a last-known business address of 11549 US Highway 41, Gibsonton, Florida 33534-5210. Respondent is owned and operated by Virgie Fowler.1 Gardenville Motel has a total of 16 non-sequentially numbered rooms available to rent.

5. The Division of Hotels and Restaurants has employed for four years Kenneth Phillips as a Sanitation and Safety Specialist. His primary duties are the inspection of hotels, restaurants, apartment complexes, and mobile vehicles, for the purpose of ascertaining licensees' compliance with safety and sanitation requirements provided by Chapter 509, Florida Statutes. Mr. Phillips has a four-year college degree in criminal justice and a two-year degree in environmental technology. He is a certified special fire inspector and

   receives ongoing training in food safety and inspection criteria.

6. On or about February 29, 2000, Mr. Phillips and Rick Decker conducted an inspection of the Gardenville Motel (hereinafter "Motel"), following a consumer's complaint of not being satisfied with the conditions of his motel room and management's delay in refunding his money.

7. Rick Decker recorded the results of their initial inspection in a "Food Service Inspection Report," under the supervision and direction of Kenneth Phillips. The Report noted

   25 safety and sanitation violations. The Report contained the notification: "Warning: Violations in the operations of your establishment must be corrected by: Date: 2/13/00. Time: 8:00". The date for re-inspection was a scrivener's error. The corrected date is "3/13/00."2

8. On the day of the inspection, a copy of the report was provided to the owner/manager, Virgie Fowler, who acknowledged receipt, by his signature at the bottom of the report. Kenneth Phillips and Rick Decker discussed with Mr. Fowler, each cited violation contained in the report including the 15-day period before re-inspection for compliance (i.e. correct date of 3/13/00).

9. On March 13, 2000, Mr. Phillips and Mr. Decker, conducted their re-inspection of the Motel to determine whether

   violations cited on February 29, 2000, were corrected. The two inspectors found eight uncorrected violations. A "Callback/Re- inspection Report" noting the uncorrected violations was completed. A copy of the Callback/Re-inspection Report was signed by and provided to Richard Mercurio, who signed the report as "Manager."3

10. Critical violations, noted on the initial report by an asterisk to the left of the cited violations, are considered dangerous. Critical violations present a risk to the personal health and safety of guests entering or staying at the motel. Respondent had three critical violations that were not corrected at the time of re-inspection.

11. Violations cited were: no smoke detectors in Rooms 7 and 9; the smoke detectors in Room 5 were inoperative; no fire extinguishers in Rooms 20, 21, 22, 23, 24, 25, and 26; lack of hot water in Rooms 7 and 9; electrical wire exposure in Room 9; and current license not displayed nor available upon request. There was excessive trash in the rear of the premises.

12. Every hotel, motel, and other public rental establishment is required by rule to post room rental rate cards in each room. The report cited Respondent for not posting a room rental rate charge card in each room offered for rent.

13. At the time of the re-inspection Respondent had not corrected three critical violations and one non-critical violation.

14. Respondent did not appear at the final hearing to present mitigating circumstances.

    CONCLUSIONS OF LAW

    
    

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

16. The standard of proof in a disciplinary proceeding is upon Petitioner who must prove each material allegation contained in its 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 (Fla. 1996).

17. The Administrative Complaint alleges that on February 29, 2000, through March 13, 2000, Respondent, Gardenville Motel, violated Section 509.1201(1), Florida Statutes, and Rules 61C- 1.004(9)(a) and 61C-1.004(11), Florida Administrative Code, to wit: (a) No fire extinguishers in Rooms 20, 21, 22, 23, 24, 25, and 26; (b) No smoke detector in Room 9 (c) No light switch in the restroom in Room 9; and (d) No room rental rates posted in rooms.

18. Rule 61C-1.004, Florida Administrative Code, incorporates NFPA Chapters 10 and 101.

    (5) All fire safety, protection and prevention equipment must be installed, approved, maintained and used in accordance with Chapter 509, Florida Statutes, and the National Fire Protection Association Life Safety Code Chapter 101, as adopted by the Division of State Fire Marshal in Chapter 4A-3, Florida Administrative Code.

    * * *

    (9) Fire safety Equipment.

    (a) Fire extinguisher Installation -- Fire extinguishers shall be installed in accordance with NFPA 10, Standard for Portable Fire Extinguishers, herein adopted by reference.

    * * *

    (11) Electrical wiring -- To prevent fire or injury, defective electrical wiring shall be replaced and wiring shall be kept in good repair. No extension cords shall be used except during cleaning, maintenance and other temporary activities. Only a wall switch or approved pull cord shall be permitted in bathrooms. In accordance with the provisions of NFPA 70, the National Electric Code, as adopted by the Division of State Fire Marshall in Chapter 4A-3, Florida Administrative Code, Uniform Fire Safety Rules and Standards, sufficient electrical outlets shall be provided.

    
    

19. Rule 61C-3.002(2), Florida Administrative Code, provides:

    (2) Posting - The rates and additional charges filed with the division shall be posted in a conspicuous place in each guest room or unit on BPR form 322-018, NOTICE TO GUEST, incorporated herein by reference and effective 9-25-96, or in a form incorporating the language thereon. Copies of this form may be obtained from any

    division office. Such rates shall be the actual maximum rates charged during any given period and shall not be a fictitious rate.

    
    

20. Respondent failed to provide fire extinguishers in Rooms 20, 21, 22, 23, 24, 25, and 26. By not doing so, Respondent has violated the provision of NFPA Code 10 and Rule 1.004(9)(a), Florida Administrative Code, which require a fire extinguisher within a travel distance of 75 feet.

21. Respondent failed to provide a smoke detector in Rooms

    
    

    7 and 9, and failed to provide an operative smoke detector in Room 5. By not doing so, Respondent has violated NFPA Code, 101, 17-3.4.4.2, which requires an operative smoke detector in every guestroom.

22. Respondent failed to provide an operative light switch in Room 9. By not doing so, Respondent has violated Rule 61C- 1.1004(11), Florida Administrative Code.

23. Respondent failed to provide room rental rate cards in each of the 16 units. By not doing so, Respondent has violated Section 509.201, Florida Statutes, which requires that room rental rate cards be posted in a conspicuous place for each rental unit.

24. Section 509.261(1), Florida Statutes, empowers the Agency to impose discretionary penalties upon any public lodging

    establishment operating in violation of Chapter 509 or the rules of the division:

    . . .

    
    

    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 purpose 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.

       
       

25. Respondent's three critical violations and the one

non-critical violation were brought to management's attention on two separate occasions, once during the initial inspection and again during the re-inspection. Respondent chose not to make correction of four violations. Respondent chose to continue operation of the motel with known critical and non-critical violations. Due to Respondent's conduct the public is exposed to health, safety, and welfare hazards.

RECOMMENDATION

It is recommended that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing a fine in the amount of $1,000 per

critical violation per day beginning on March 13, 2000, forward until each of the three critical violations has been corrected.

It is recommended that the Board impose a separate and additional fine in the amount of $500 per non-critical violation per day from beginning on March 13, 2000, forward until the one non-critical violation has been corrected.

It is recommended that the Board suspend License No. 39- 0107-H until full compliance with all sanctions herein imposed is made.

Finally, it is recommended that the Board impose upon Virgie Fowler, owner of the motel, the requirement to attend, at personal expense, an appropriate Education program to be designated by the Hospitality Educational program director prior to renewal or reinstatement of license No. 39-01017-H.

DONE AND ENTERED this 25th day of January, 2001, in Tallahassee, Leon County, Florida.

FRED L. BUCKINE

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 25th day of January, 2001.

ENDNOTES

1/ Petitioner's Exhibit No. 1, Certified copy of Gardenville Motel License Account, DBRLF2 form, signed by Mary Kane Vann, Records Custodian, Bureau of Licensure-H&R and notarized.

2/ Petitioner's Exhibit No. 2, BPR form 22-014, Legal Notice, Lodging Inspection Report consisting of three pages, listing violations found in each room by room number and those found in common areas. Report contained the following notice: Item listed in red or marked with an asterisk are of critical concern and must be corrected immediately; i.e. six types of critical violations are listed: fire extinguishers, smoke detectors, electrical deficiencies, water/hot/cold vermin control, and current license displayed, available upon request.

3/ Petitioner's Exhibit No. 3, BPR form 22-005, Call Back/Re- Inspection Report consisting of one page, listing nine violations found to be not complied with upon re-inspection. Of those violations not complied with are seven rooms with no fire extinguishers; two rooms without smoke detectors and one room with an inoperative smoke detector; one room with electrical wire exposure and no light in room, and no room rate card in rooms throughout the motel.

COPIES FURNISHED:

Virgie Fowler

c/o Gardenville Motel

11515 U.S. Highway 41, South

Gibsonton, Florida 33534

Gail S. Hoge, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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: 00-004326

Orders for Case No: 00-004326