STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

OCEAN BREEZE VILLAGE,

Respondent.

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) Case No. 01-3009

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RECOMMENDED ORDER

Pursuant to notice, this cause came on before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings, for a formal hearing in Daytona Beach, Florida on October 24, 2001. The appearances were as

follows:

APPEARANCES

For Petitioners: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulations

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Darel Mikula, pro se

208 North Halifax Avenue Daytona Beach, Florida 32118

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Respondent violated certain provisions of Chapter 509, Florida Statutes, and Chapter 61-C, Florida Administrative Code, concerning various conditions maintained at its establishment, as alleged particularly in the Administrative

Complaint.

PRELIMINARY STATEMENT

This cause arose following an inspection of the Respondent's public lodging establishment. After conducting the inspection and finding violations, and upon re-inspection, the Petitioner Agency served the Respondent with an Administrative Complaint, alleging that the Respondent violated certain provisions of Chapter 509, Florida Statutes and Chapter 61-C, Florida Administrative Code, which incorporates the National Fire Inspection Association (NFPA) code. On July 25, 2001, the Respondent disputed the Complaint and elected to seek an administrative proceeding and hearing on the disputed issues of fact and law. The case was transferred to the Division of Administrative Hearings and to the undersigned for evidentiary hearing. In due course a Notice of Hearing was issued, on August 24, 2001, setting the cause for final hearing for October 24, 2001, in Daytona Beach, Florida. During the course of the hearing the Petitioner presented the testimony of witness

Gary Reed, a Safety and Sanitation Specialist, and Ann Johnson, a Senior Safety and Sanitation Specialist. Additionally, the Petitioner's Exhibits one through five were admitted into evidence. The Respondent presented the testimony of two witnesses, himself and Gloria Mikula. The Respondent's Exhibit one was admitted into evidence. Upon conclusion of the proceedings the parties elected to transcribe it and were afforded a period of time to submit Proposed Recommended Orders. The Petitioner Agency submitted a Proposed Recommended Order which has been considered in the rendition of this Recommended

Order.

FINDINGS OF FACT

1. On February 12, 2001, Gary Reed, a Safety and Sanitation Specialist, conducted an initial inspection of the Respondent's establishment. The establishment name is Ocean Breeze Village, which is a public lodging establishment.

   Mr. Reed thereafter conducted a re-inspection of the premises on March 27, 2001. During both inspections he observed old chairs and tables blocking the walkway on the west side of the building. He also observed a face-plate missing from an exit sign by the stairs on the outside of the building and that the word "exit" on the exit sign face-plate was partially obliterated. Chairs and tables blocking a walkway is a potentially serious violation because the means of egress in

   cases of emergency, such as fire, must be unobstructed and the exits clearly marked.

2. Mr. Reed also observed that the west handrail was very loose on the stairs outside Unit nine, Unit eleven and Unit twelve of the lodging establishment. Section 509.211(4), Florida Statutes, states that each public lodging establishment that is three or more stories in height must have safe and secure railings on all balconies, platforms and stairways and that all such railings must be properly maintained and repaired. This railing was not properly maintained and repaired. With regard to the balconies, Mr. Reed observed that there was no balcony certification available at the premises or on file with his agency. The management or owner of each public lodging establishment that is three stories or more in height must file a certificate by an appropriate contractor stating that any and all balconies, platforms, stairways and railings have been inspected by a trained inspector. See Section 509.2112, Florida Statutes.

3. Mr. Reed observed that there was no "back-flow" prevention device installed on a hose spigot on the north side of the Respondent's building. A back-flow prevention device is designed to prevent any solid, liquid or gas from flowing backward into a potable water system. Its absence, under the food service code involved herein, is a violation. Mr. Reed

   also observed unusual furniture stored outside of Unit one, old screens, garden hoses, electrical materials, used fencing, old plumbing materials, old tables and chairs and bicycles stored on the east side of the property. Mr. Reed also observed miscellaneous garbage stuffed in concrete boxes under electrical meters and panels on the south side of the building. These are violations because the public lodging must be maintained clear of debris so as to prevent vermin and to help ensure public safety, in accordance with the legal authority cited below.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Sections 120.569 and 120.57(1), Florida Statutes (2001).

5. The Department of Business and Professional Regulation, Division of Hotels and Restaurants is the state agency charged with regulating public food service establishments in accordance with Section 20.165 and Chapter 509, Florida Statutes.

6. Pursuant to Section 509.261(1), Florida Statutes (2001), the Division of Hotels and Restaurants may impose penalties for violations of Chapter 509, Florida Statutes, including an administrative fine of no more than $1,000.00 for each separate offense, and the suspension or revocation of the Respondent's license. In a penal proceeding such as this, the

   Petitioner has the burden of proving by clear and convincing evidence the allegations against the Respondent, since the valuable property right in a license is potentially stake. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1966).

7. The Petitioner has established by clear and convincing evidence that the Respondent violated Section 61C-1.004(10), Florida Administrative Code, by failing to keep a path of egress unobstructed. The Petitioner has established, as well, that the Respondent violated this rule by not having exits clearly marked with approved, illuminated exit signs. Clear and convincing evidence has also established that the Respondent violated Section 509.211(4), Florida Statutes, by failing to maintain and repair balcony railings. The Respondent violated Section 509.2112, Florida Statutes, by not filing a balcony certification.

8. Additionally, the Petitioner has established that the Respondent violated Section 5-203.14, "Food Code," by failing to install a device on a hose to preclude back-flow into the potable water system. The Respondent violated Rule 61C- 3.001(7), Florida Administrative Code, by failing to keep the yard and exterior portions of the public lodging establishment premises clean and free of debris.

9. Although the above violations were present upon the first inspection and upon the second inspection, approximately one month later, the Respondent established that an extreme storm event involving multiple tornados and flooding struck Daytona Beach, in the neighborhood where his establishment is located, between the first and second inspections. The resulting felled trees, power lines and flooding effectively prevented workmen from gaining access to his property to make the needed repairs and corrections for approximately two weeks and also resulted in a scarcity of available workmen to perform non-emergency jobs such as the Respondent had for them. Thus, although the Respondent had not corrected the violations as of the time of the second inspection, by the summer of 2001, the violations had been corrected. Indeed the Respondent has placed in evidence, in addition to testimony, exhibits depicting the situation caused by the storm event and the certification of the balcony railings at issue. Consequently, although the violations occurred as established by the Petitioner, mitigation of the resulting penalty under these circumstances is warranted.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED that a final order be entered imposing a fine in the amount of $750.00.

DONE AND ENTERED this 7th day of February, 2002, in Tallahassee, Leon County, Florida.

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P. MICHAEL RUFF 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 Clerk of the

Division of Administrative Hearings this 7th day of February, 2002.

COPIES FURNISHED:

Darel Mikula

Ocean Breeze Village

208 North Halifax Avenue Daytona Beach, Florida 32118

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Susan R. McKinley, Director 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

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: 01-003009

Orders for Case No: 01-003009