STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

PINEY WOODS LODGE,

Respondent.

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) Case No. 03-4051

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RECOMMENDED ORDER

This cause came on for formal hearing before Diane Cleavinger, Administrative Law Judge with the Division of Administrative Hearings, on February 17, 2004, in Lake City, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Kana Baleswaran, pro se

Piney Woods Lodge 4140 West Highway 90

Lake City, Florida 32055 STATEMENT OF THE ISSUE

The issue in this proceeding is whether Respondent's motel license should be disciplined.

PRELIMINARY STATEMENT

On August 22, 2003, Petitioner, Department of Business and Professional Regulation, filed an Administrative Complaint against Respondent, Piney Woods Lodge. The complaint alleged that Piney Woods Lodge motel's license should be disciplined for violations of Chapter 509, Florida Statutes, and the rules promulgated thereto. Specifically, the Administrative Complaint alleged that Respondent violated Rule 61C-1.004(11) and NFPA 70 (fire safety) because Respondent was using an extension cord to operate a window air conditioning unit and an electrical outlet cover was not secure against the wall; Rule 61C-3.001(5) (cleanliness, renovation, and replacement of furnishings) for exposed insulation and food buildup in a microwave; and 61C- 1.004(7) (certain areas free of debris and flammables) for lint build up in a clothes dryer. Respondent denied the allegations of the Administrative Complaint and timely requested an administrative hearing. The matter was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner called one witness to testify and offered four exhibits into evidence. Respondent's representative testified on behalf of Respondent but did not offer any exhibits into evidence.

After the hearing, with leave of the undersigned, Respondent filed one exhibit consisting of a room rental log.

Petitioner filed a Proposed Recommended Order on March 11, 2004. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. Respondent holds a motel license, number 2200031. The motel is located at 4140 West Highway 90, Lake City, Florida.

2. On June 9, 2003, and on June 16, 2003, a division inspector inspected the Respondent's motel premises and specifically inspected room 207. The inspector noted five alleged deficiencies on June 9, 2003. On June 16, 2003, the inspector noted that three of the five alleged deficiencies remained uncorrected, while two of the alleged deficiencies were corrected during the June 16, 2003, re-inspection.

3. The three uncorrected alleged deficiencies consisted of exposed insulation around the air conditioning unit in room 207, food buildup present in the microwave in room 207, and heavy lint buildup present in the lint filter of the motel's commercial clothes dryer. The two alleged deficiencies corrected during the re-inspection were the use of an electrical extension cord and an unsecured electrical outlet cover.

4. Room number 207 was available for rent and was rented to the public by the Respondent on May 31, 2003, and again on June 19, 2003. During the interim time and at the time of these inspections, the room was not rented because it was undergoing repairs. During this time, the room was being used primarily as a handyman workroom for ongoing repairs. Part of the repairs

   being done to room 207 was to replace the permanent air conditioning unit in that room. Because the air conditioning unit did not work, Respondent had temporarily installed a window air conditioning unit. The window air conditioning unit did not fit the window it was in, therefore, Respondent had placed insulation around the unit. The insulation was exposed. The insulation was not a furnishing supplied with the room but was a temporary part of the building’s window/wall system intended as a prelude to replacing the air conditioning unit. Since the insulation was not a furnishing, its exposure did not violate Rule 61C-3.001(5) that addresses the cleanliness of room furnishings such as drapes.

5. An extension cord was being used to power the window air conditioning unit in room 207. Even though Respondent unhooked the extension cord during the re-inspection, the use of the extension cord to power the air conditioning unit was a fire hazard and violates Chapter 509.

6. Additionally, one of the electrical outlet cover plates was attached, but was loose. However, it did function as a barrier. There was no evidence regarding the space requirements for an electrical outlet or how the outlet cover impacts that space other than as a barrier. The evidence did not show that a loose outlet cover violates NFPA 70,110.32 that deals with the space requirements around electrical equipment.

7. Finally, the microwave in room 207 had old food buildup on its walls. The microwave is a furnishing and is required to be kept clean. Such food buildup does not meet the cleanliness requirements of Rule 61C-3.001(5).

8. Outside of room 207, the inspector personally observed the lint buildup in the dryer. Petitioner does require that the dryer’s lint trap be cleaned once a day. However, either the trap had not been cleaned or the dryer had received heavier use on the days of the inspection. The lint is a flammable material and the dryer trap must be kept free of such flammables. The accumulation of the lint was a fire hazard and is a violation of

   Rule 61C-1.004(7).

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat.

10. Chapter 509, Florida Statutes, governs the licensure and operations of public lodging establishments. Rule 61.C-

    1.004 states, in part:

    
    

    The following general requirements and standards shall be met by all public lodging and public food service establishments:

    
    

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    (7) Attics, basements, boiler rooms, meter rooms, laundry rooms, and storage rooms shall be kept clean and free of debris and flammables.

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    (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 Electrical Code, as adopted by the Division of State Fire Marshal in Chapter 4A-3, F.A.C., Uniform Fire Safety Rules and Standards, sufficient electrical outlets shall be provided.

    
    

    NFPA 70,110.32 states, in part:

    
    

    Sufficient space shall be provided and maintained about electrical equipment to permit ready and safe operation and maintenance of such equipment . . . In all cases, the work space shall be adequate to permit at least a 90-degree opening of doors or hinged panels.

    
    

    Rule 60C-3.001 states, in part:

    
    

    The following requirements and standards shall be met by all public lodging establishments.

    
    

    (5) Furniture, upholstery, etc.- Furniture, upholstery, draperies, shades, venetian doors, blinds, and other provided furnishings in lobbies, lounges, parlors and bedrooms shall be kept clean, and be renovated or replaced as needed. All rugs and floor coverings must be kept clean and in good condition, free from holes and rips. Non-perforated metal, plastic, or plastic lined wastebaskets shall be provided for all bedrooms.

    
    

11. In this case, the evidence demonstrated that Petitioner violated Rule 61C-1.004(7), by permitting the dryer

    lint trap to accumulate a large amount of lint; Rule 61C- 1.004(11), by using an extension cord to power the window air conditioning unit in room 207; and Rule 60C-3.001, by not properly cleaning the microwave unit in room 207. The evidence did not demonstrate that a loose electrical outlet violated NFPA 70,110.32, as cited in the Administrative Complaint or that exposed insulation violated Rule 61C-3.001(5), as cited in the Administrative Complaint.

12. Section 509.261(1), Florida Statutes, provides that any public lodging establishment that has violated Chapter 509, Florida Statutes, or the rules promulgated thereunder, is subject to fines, not to exceed $1,000.00 for each offense and/or suspension or revocation of license. There were no mitigating or aggravating circumstances shown by the evidence. A fine in the amount of $500.00 for each violation is

reasonable.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it is,

RECOMMENDED:

That the Department enter a final order finding Respondent guilty for violating Chapter 509, Florida Statutes, and imposing an administrative fine in the amount of $1,500.00.

DONE AND ENTERED this 31st day of March, 2004, in Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 31st day of March, 2004.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Kana Baleswaran, pro se Piney Woods Lodge

4140 West Highway 90 Lake City, Florida 32055

Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Nancy Campiglia, 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: 03-004051

Orders for Case No: 03-004051