STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 05-0820

)

DGJ PROPERTIES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal video teleconference hearing was held in this case on April 26, 2005, with the Respondent appearing from Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Danilo Jiminez, pro se

Post Office Box 371601 Miami, Florida 33137

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent, DGJ

Properties (Respondent), committed the violations alleged in the Administrative Complaint dated September 2, 2004, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On September 2, 2004, the Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner or Department), issued an Administrative Complaint that alleged the Respondent violated provisions of Chapter 509, Florida Statutes, and the rules promulgated in accordance with that chapter. The pertinent law governs the operation of hotels and restaurants within the State of Florida. The Petitioner alleged five critical violations pertaining to the operation of the establishment owned and operated by the Respondent.

More specifically, the Administrative Complaint maintained that the Respondent allowed an LP gas tank having a water capacity greater than 2 1/2 pounds to be located at an impermissible location, failed to repair an exit sign that was not illuminated as required, failed to repair an emergency sign, allowed an electrical extension cord to be used to power an air conditioner, failed to provide a balcony certification, and failed to correct a vermin problem. The Administrative Complaint also outlined other less critical violations.

Danilo Jimenez, president of the Respondent, executed an

Election of Rights that disputed the material facts alleged in the Administrative Complaint. The Respondent requested an evidentiary hearing and the Department forwarded the matter to the Division of Administrative Hearings for formal proceedings on March 4, 2005.

At the hearing conducted on April 26, 2005, the Petitioner presented testimony from Jorge Gandolff, an inspector employed by the Petitioner. Petitioner’s Exhibits 1-3 were admitted into evidence. The Petitioner requested, and official recognition was taken, of the provisions of law identified as Petitioner’s Exhibit A.

The transcript of the proceedings was filed with the Division of Administrative Hearings on May 6, 2005. It correctly lists the persons called to testify in this matter and chronicles the testimony offered in this matter. The Petitioner timely filed a Proposed Recommended Order that has been fully considered in the preparation of this Recommended Order. The Respondent did not file a proposed order.

FINDINGS OF FACT

1. The Petitioner is the state entity charged with the responsibility of licensing and regulating hotels and restaurants within the State of Florida.

2. At all times material to the allegations of this case, the Respondent was licensed by, or subject to, the

   jurisdiction of the Petitioner. As such, the Respondent is required to comply with all Florida statutes and administrative rules governing lodging establishments.

3. The Respondent is licensed (license number 2300240) as a non-transient 18-apartment complex located at 440 Southwest 5th Avenue, Miami, Florida 33130-2767. The Respondent has owned and operated the subject property since December of 1999.

4. On July 12, 2004, one of Petitioner’s inspectors performed a lodging inspection report that denoted several violations of the administrative rules governing public lodging establishments. The inspector, Jorge Gandolff, listed all of the violations on a Legal Notice Form that accompanied the report. A copy of the report was provided to the Respondent.

5. On July 12, 2004, the inspector noted the following violations at the Respondent’s property:

   1. An LP gas tank having a water capacity greater than 2 1/2 pounds was inside apartment six.

   2. An exit sign did not illuminate or function properly when tested by the inspector.

   3. An emergency light did not function when tested by the inspector.

   4. An air conditioner was being operated by power provided through an electrical extension cord.

   5. When a balcony certificate was requested, it was not made available to the inspector.

   6. There was water damage on the ceiling of apartment six.

   7. There was a hole and water damage to the ceiling of bedroom area in apartment six.

   8. There was a 12-inch hole in the first floor hallway.

   9. There was a torn or worn stair runner.

   10. There was a leaking faucet in a bathroom.

   11. There were fresh rodent droppings.

   12. There was trash and/or debris on the grounds.

   13. There was discarded construction or maintenance refuse on the premises including a broken door in a hallway.

   14. The license for the establishment was not displayed in the office.

       
       

       The Legal Notice Form listing the violations provided that the Respondent would be afforded approximately ten days to make corrections.

6. On August 19, 2004, the inspector returned to the Respondent’s premises to follow-up on the violations previously noted.

7. At that time, the inspector found the following violations uncorrected:

   1. An LP gas tank having a water capacity greater than 2 1/2 pounds was located within apartment six.

   2. An exit sign did not illuminate or function appropriately when tested.

   3. An emergency light did not function when tested.

   4. An electrical extension cord was being used to power an air conditioner.

   5. The Respondent could not produce a balcony certificate.

   6. There was water damage on the ceiling

      of apartment six.

   7. There was a hole in the ceiling (bedroom area) with plaster falling down in apartment six.

   8. There was a 12-inch hole in the first floor hallway.

   9. There was a torn or worn stair runner.

   10. There was a leaking faucet in a bathroom.

   11. There were fresh rodent droppings.

   12. There was trash and debris on the grounds.

   13. There was discarded construction or maintenance trash on the premises (the broken door was still in the hallway).

   14. There was no license for the establishment on display in the office.

       
       

8. According to the inspector, “critical violations” are designated “critical” because they pose an immediate threat to the public health and safety. Less “non-critical” violations are given more time to correct. Fire safety issues are generally assessed “critical.” In this case there were no fewer than five “critical” violations because they presented fire safety problems. It was expected that all critical violations would be promptly repaired or cured. The Respondent failed or otherwise refused to make the corrections noted within ten days of the original inspection.

9. The existence of an LP tank at apartment six constituted a critical violation.

10. Using an electrical extension cord to power an air conditioner was also considered a critical violation.

11. The credible evidence from the inspector established

    that many of the violations were associated with apartment six.

12. The residents in apartment six were in the process of being evicted. In fact, they had changed the lock so that the landlord did not have access to the apartment. The Respondent theorized that the complaint to the Department that precipitated the inspection was in retaliation for the eviction notice being served on the residents in apartment six. The Respondent did not, however, advise the Petitioner at the time of the inspections that the tenant had willfully refused the landlord access to the apartment.

13. Mr. Jimenez believes that the tenant changed the locks to the apartment so that he and his staff could not have access to correct problems within the unit. He also maintained that the emergency sign and exit signs were vandalized. He further claimed that the balcony certificate had been provided to another inspector.

14. Mr. Gandolff searched the Department’s records but could find no balcony certificate for the subject property. The Department maintains certificates for three years. Properties are to have railings and balconies certified for safety as required by the rules.

15. According to Mr. Jimenez by the time of the final hearing he had corrected all matters complained of in this

    case. He maintained that the residents of apartment six had delayed the repairs and that the hurricanes of last year precluded timely repairs. He opined that most repairmen were unavailable for this type of work because the hurricane damages provided greater and more lucrative employment opportunities for such workers elsewhere. He opined that he could not obtain workers to perform the work any quicker than he did. The Respondent did not, however, produce a copy of a balcony certificate pertaining to the subject property nor any record as to the repairs itemized in the complaint.

16. The Respondent further maintained that it is difficult to correct vandalism because it is a constant problem.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

18. The Petitioner bears the burden of proof in this matter to establish by clear and convincing evidence the allegations of this case. See 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 § 120.57(1)(j), Fla. Stat. (2004). The Department

    has met its burden.

    
    

19. The clear and convincing evidence established that the Respondent failed to timely make repairs to the violations cited by the inspector. Had the Respondent needed additional time to make such repairs, it could have notified the Department of its difficulties in dealing with apartment six. Clearly, as to the balcony certificate the Respondent has provided no credible explanation for why a copy of that instrument was not timely provided to the Department.

20. Section 509.261(1), Florida Statutes (2004), provides:

    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.

    
    

21. Section 509.032, Florida Statutes (2004), provides in pertinent part:

    (1) GENERAL.--The division shall carry out all of the provisions of this chapter and all other applicable laws and rules relating to the inspection or regulation of public lodging establishments and public food service establishments for the purpose of safeguarding the public health, safety, and welfare. The division shall be responsible for ascertaining that an operator licensed under this chapter does not engage in any misleading advertising or unethical practices.

    * * *

    (6) RULEMAKING AUTHORITY.--The division shall adopt such rules as are necessary to carry out the provisions of this chapter.

    
    

22. The Department promulgated administrative rules pursuant to its statutory authority. Found in Chapter 61C of the Florida Administrative Code, those rules specify safety and health regulations pertinent to public housing. Exits and emergency lighting are required to adequately illuminate means of egress. See Fla. Admin. Code R. 61C-1.004(10). Balconies, stairways, and railings must be safe, secure, and free of defect. A certificate verifying inspection by a person who through education and experience is competent to inspect

    multi-story buildings must be provided to assure balconies are so maintained. See Fla. Admin. Code R. 61C-3.001(11)(A).

    Structural components of a building including attachments and fixtures must be kept in good repair and be free of obstructions. See Fla. Admin. Code R. 61C-1.004(6).

23. Even assuming, arguendo, that the Respondent could

not get access to apartment six due to the lack of cooperation of its residents, the Respondent failed to timely make the repairs noted in the report to the public areas of the establishment. The Department established by clear and convincing evidence that the exit and emergency signs were not functioning, that the one-foot hole in the first floor hallway was not repaired, and that there was a torn or worn runner on a stairway. Additionally, the Respondent did not produce a balcony certificate and did not

remove the trash and debris noted both inside and outside the public areas of the building.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a Final Order imposing an administrative fine in the amount of $3000.00, and requiring the Respondent to attend, at its personal expense, an educational program sponsored by the Hospitality Education Program to fully educate the Respondent regarding its responsibilities under the law.

S

DONE AND ENTERED this 26th day of May 2005, in Tallahassee, Leon County, Florida.

J. D. PARRISH 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 26th day of May, 2005.

COPIES FURNISHED:

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

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Leon Biegalski, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Danilo Jimenez

Post Office Box 371601 Miami, Florida 33137

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: 05-000820

Orders for Case No: 05-000820