STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. )

)

GREEN TERRACE, )

)

Respondent. )

_____________________________ )

Case No. 06-1084

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on May 19, 2006, by videoteleconference at sites in Lauderdale Lakes and Tallahassee, Florida, before Florence Snyder Rivas, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Peter Sporea, Owner

5041 Northwest 112th Drive Coral Springs, Florida 33076

STATEMENT OF THE ISSUE

The issue is whether Respondent committed the violations alleged in the Administrative Complaint dated October 4, 2005,

and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated October 4, 2005, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner or Division), alleged that Respondent, Green Terrace (Respondent or Green Terrace), violated statutes and rules which govern the operations of licensed Florida lodging establishments. Respondent timely asserted its right to an administrative hearing. In due course, Petitioner referred the matter to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct the requested hearing.

The identity of witnesses, exhibits and attendant rulings are reflected in the one-volume transcript of the proceedings filed on June 20, 2006. The Division has filed a timely Proposed Recommended Order which has been duly-considered; as of the date of this Recommended Order, no post-hearing submission has been filed on Respondent's behalf.

FINDINGS OF FACT

Based on the evidence and the testimony of witnesses presented, and the entire record in this proceeding, the following findings of fact are made:

1. At all relevant times, the Division is the state agency responsible for licensing, regulating, and inspecting

   public lodging establishments. With particular relevance to this case, it is the Division's responsibility to establish and enforce rules pertaining to sanitation and public health and safety in accordance with relevant provisions of the Florida Statutes; to ensure compliance with its rules; and to impose discipline in appropriate circumstances.

2. At all relevant times, Green Terrace was licensed by the Division as a public lodging establishment under license number 1605642. At all relevant times, Green Terrace was located at 260 Southwest 8th Street, Pompano Beach, Florida 33060, and was owned by Peter Sporea (Mr. Sporea).

3. At all relevant times, Larry Torres (Mr. Torres), a certified food manager and specialized fire safety inspector, was employed by the Division as a sanitation and safety inspector. Mr. Torres' duties include conducting inspections of Division licensees, including Green Terrace. On or about August 5, 2005, Mr. Torres conducted a routine inspection of Green Terrace. Based upon his inspection he documented various sanitation and safety violations and issued a written warning to Green Terrace which directed that the violations be remedied within 30 days. On September 29, 2005, Mr. Torres returned to Green Terrace to conduct a re-inspection. His re- inspection revealed that the violations documented at the time of the inspection had not been remedied.

4. Two violations observed by Mr. Torres were "critical" in that they are more likely than other violations to pose an immediate threat to public health or safety; the remaining violations were deemed by Mr. Torres to be “non-critical.” Non-critical violations are violations which pose risk to the public health or safety, but are not considered to present an immediate threat.

5. The violations which Mr. Torres observed and documented at the inspection, and again at the re-inspection were:

   1. Violation 01-09, based upon

      Mr. Torres' observation that a portable fire extinguisher located near apartment four was not charged. Failure to provide and maintain fire extinguishers in an operational condition is a critical violation.

   2. Violation 12-02, based upon

      Mr. Torres' observation of a loose railing on the second floor balcony by apartment seven; all building structural components, attachments and fixtures shall be kept in good repair. This violation is a critical violation due to the risk of serious injury if a person were to fall from a second floor balcony.

   3. Violation 13-01, based upon Mr. Torres' observation of a door in

      disrepair and a broken window in or near apartment 10. This is a violation because building structural components must be kept in good repair.

   4. Violation 25-01, based upon

      Mr. Torres' observation that excessive trash was observed in various places on the property grounds. For example, discarded equipment such as stoves was observed in hallways on the second floor.

   5. Violation 26-01, based upon Mr. Torres' observation that garbage was lying loose on the ground in the fenced area where garbage cans are available for community use. This is a violation because proper disposition of

      garbage is necessary to prevent nuisance conditions.

      1. Violation 26-14, based upon Mr. Torres' observation that trash receptacles lacked covers. This is a violation because uncovered trash receptacles could attract

         pests and constitute a public nuisance.

      2. Violation 26-18, based upon

      Mr. Torres' observation of a soiled waste receptacle that was attracting pests. This is a violation because dirty receptacles may attract pests, as they did here, and constitute a public nuisance.

      
      

6. Mr. Torres and Mr. Sporea were the only witnesses at hearing. The trier of fact closely observed each, and evaluated such factors as their demeanor under oath; their candor with the fact-finder and with the opposing party under cross-examination; their opportunity to speak from personal knowledge concerning relevant facts; and their respective backgrounds, training and experience. Mr. Torres was forthright, direct and entirely credible. Mr. Sporea dissembled, and provided no persuasive testimony with respect to any of the material allegations of the Administrative Complaint.

7. Upon a finding that a public lodging establishment licensee has operated in violation of relevant provisions of

   the Florida Statutes or rules promulgated thereuder, the licensee is subject to fines not to exceed $1,000.00 per offense; mandatory attendance at an educational program sponsored by the Hospitality Education Program; and the suspension, revocation or refusal of a license. In this case the Division has proposed that Respondent pay an administrative penalty in the amount of $2,700.00, and attend, at personal expense, a Hospitality Education Program approved by the Division. The proposed penalty is well within the Division's authority and is reasonable and generous under the facts and circumstances of this case.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2006).1

9. Pursuant to Section 509.261, Florida Statutes, Petitioner is empowered to regulate and discipline public lodging establishments; upon a finding that a public lodging establishment has operated or is operating in violation of Chapter 509, Florida Statutes, or Florida Administrative Code Rules promulgated thereto, discipline may be imposed including administrative fines not to exceed $1,000.00 per offense; mandatory attendance at personal expense at an educational

   program sponsored by the Hospitality Education Program; and the suspension, revocation or refusal of a license. Where, as here, a licensee disputes the factual underpinnings of proposed disciplinary action, the Division must provide clear and convincing evidence of the violations alleged to have been committed by the lodging establishment. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

10. Pursuant to Florida Administrative Code Rule 61C- 1.004(5) "[a]ll 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 (NFPA) Chapter 101, as adopted by the Division of State Fire Marshall in Chapter 4A-3 [Florida Administrative Code]."

11. Florida Administrative Code Rule 61C-1.004(1) "[e]xcept as specifically provided in these rules, standards for water, plumbing, and waste shall be governed by Chapter 5, Food Code (Food Code), herein adopted by reference."

12. Violations of critical laws or rules are defined in Florida Administrative Code Rule 61C-1.0021(2), as "those violations determined by the [Petitioner] to pose a significant threat to the public health, safety, or welfare.”

13. Petitioner has alleged violations of the following

    rules governing public lodging establishments:

    
    

    1. NFPA Standard 10, 1-6.2, which provides in pertinent part:

       Portable extinguishers shall be maintained in a fully charged and operable condition.

       
       

    2. Florida Administrative Code Rule 61C- 1.004(6) which provides in pertinent part:

       All building structural components, attachments and fixtures shall be kept in good repair, clean and free of obstructions.

       
       

    3. Florida Administrative Code Rule 61C- 3.001(7) which provides in pertinent part:

       The yards, alleys, driveways, sidewalks, and other exterior portions of the licensed premises shall be kept clean, free of debris, free of objectionable odors, and properly drained, maintained and mowed.

       
       

    4. Florida Administrative Code Rule 61C- 1.004(1)(E) which provides in pertinent part:

       All garbage and rubbish shall be removed from the establishment premises with sufficient frequency to prevent nuisance conditions and shall be disposed of in accordance with provisions of chapter 62- 701, FAC herein adopted by reference.

       
       

    5. Rule 501.113(A), Food Code, which provides in pertinent part:

       Receptacles and waste handling units for refuse, recyclables, and returnables shall be kept covered. . . .

       (2) After they are filled; and (B) With tight-fitting lids or doors if kept outside the public lodging establishment.

       
       

    6. Rule 5-501.116(B), Food Code, provides in pertinent part:

    Refuse, recyclables, and returnables shall be cleaned at a frequency necessary to prevent them from developing a buildup

    of soil or becoming attractants for insects and rodents.

    
    

14. Petitioner proved by clear and convincing evidence that Respondent violated NFPA Standard 1, 1-6.2, by failing to maintain a fire extinguisher in a charged or operable condition, a critical violation.

15. Petitioner proved by clear and convincing evidence that Respondent violated Florida Administrative Code Chapter 61C-1.004(6), by having a railing on a second floor stairway which was loose and in disrepair, a critical violation.

16. Petitioner proved by clear and convincing evidence that Respondent violated Florida Administrative Code Chapter 61C-1.004(6), by having a door and a window in disrepair.

17. Petitioner proved by clear and convincing evidence that Respondent violated Florida Administrative Code Chapter 61C-3.001(7), by having excessive trash throughout the property grounds and by having discarded equipment stored outside the building.

18. Petitioner proved by clear and convincing evidence that Respondent violated Florida Administrative Code Chapter 61C-1.004(1)(e) by having garbage that was not properly disposed.

19. Petitioner proved by clear and convincing evidence that Respondent violated Rule 5-501.113(A), Food Code, by having uncovered trash receptacles.

20. Petitioner proved by clear and convincing evidence that Respondent violated Rule 5-501.116(B), Food Code, by having a soiled waste receptacle that was attracting pests.

21. In sum, the Division proved by clear and convincing evidence, critical violations (NFPA Standard 10, 1-6.2 and Fla. Admin. Code R. 61C-1.004(6)); and non-critical violations (Fla. Admin. Code R. 61C-1.004(6); 61C-3.001(7); 61C- 1.004(1)(E); Rule 5-5-1.113(A), Food Code; and Rule 5-5- 1.116(B), Food Code).

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is:

RECOMMENDED that Petitioner enter a final order finding the violations described and imposing an administrative fine on Green Terrace in the amount of $2700 due and payable on terms prescribed by the Division; and requiring the owner and/or manager of Green Terrace to attend, at the licensee's personal expense, an educational program sponsored the Hospitality Education Program or other educational program approved by the Division, within 60 days of the date of the final order, and to provide proof thereof to the Division.

DONE AND ENTERED this 24th day of July 2006, in Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

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 July, 2006.

ENDNOTE

1/ All further references to statutes and rules are to the 2005 versions in effect at the time of Mr. Torres’ inspections.

COPIES FURNISHED:

Charles Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Peter Sporea Green Terrace

5041 Northwest 112th Drive Coral Springs, Florida 33076

George Luebkemann, Director Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Josefina Tamayo, 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: 06-001084

Orders for Case No: 06-001084