The Issue Whether, under the facts and circumstances of this case, Respondent is guilty of the violations alleged in the Amended Notice To Show Cause issued November 9, 1989 by the Division of Hotels and Restaurants, Department of Business Regulation.
Findings Of Fact Upon consideration of the evidence adduced at the hearing, the following relevant facts are found: At all times material to this case, the Respondent, Barkap, Inc., d/b/a Flamingo Inn (Flamingo) held a valid public lodging establishment license located at 2011 South Atlantic Avenue, Daytona Beach, Volusia County, Florida, license number 74-03605H. Flamingo is operated by Peter Kappelman, President of Barkap Inc., and his wife who is also a corporate officer of Barkap, Inc. Flamingo has only 24 rental units. Prior to June 1988, George Houllis, Environmental Health Inspector, with the Division of Hotels and Restaurants (Division), was assigned to inspect Flamingo's establishment. While attempting to inspect a fire extinguisher Houllis broke the glass in the door of a cabinet containing a fire extinguisher. Houllis contends that the glass door was already cracked, while Kappelman contends that it was not cracked, and that Houllis attempted to "cover it up". At Kappelman's insistence, the Division paid for the repair at a cost of approximately $35.00. However, as a result of this incident, Charles Casper, another Environmental Health Inspector with the Division, was assigned to inspect the Flamingo establishment beginning June 1988. The Division's policy is to inspect licensed public lodging establishments on a quarterly basis and, in accordance with that policy, Charles Casper inspected the Flamingo on at least a quarterly basis beginning in June 1988. Shortly after Casper began inspecting the Flamingo, the relationship between Casper and Kappelman deteriorated and reached a point where each party became personal with their remarks, with Kappelman refusing to sign the inspection report, describing Casper's behavior as "Gestapo methods", and alleging that the Flamingo was being treated differently than other establishments along the "strip" on Daytona Beach. While Casper may have been strict with his inspections of the Flamingo, there is insufficient evidence to show that his behavior could be described as arbitrary or that he treated the Flamingo differently than any other licensed establishment. Violations of a minor nature are normally cited on the inspection report to document, warn or educate the licensee of corrections that need to be made, usually by the next routine inspection date. However, where corrections of minor violations are not made by the date indicated on the inspection report, a minor violation can become a major violation, usually at the discretion of the inspector. The Flamingo had been warned on the September 12, 1988 inspection report by Casper for having exit doors propped open on all floors and listed the violation as a minor violation. There was no date for making the correction on the report, but two subsequent inspection reports dated December 15, 1988 and January 12, 1989 did not show exit doors being propped open as a violation on those dates. The record is not clear as to why another inspection was made within a month of the December 15, 1988 inspection, but apparently it was a follow-up inspection concerning a major violation listed on the September 12, 1988 inspection report concerning locking devices on doors wherein a Notice To Show Cause was issued. However, this matter was settled without the necessity of a hearing and the case dismissed. Flamingo was cited again on June 5, 1989 for having exit doors propped open with wooden wedges and advised to remove all props from the exit doors and given until the next routine inspection date to make the correction. The next routine inspection of the Flamingo was on September 25, 1989, and at that time Flamingo was cited again for having exit doors propped open with wooden wedges on the first second and third floors. Since the same violation had been cited on June 5, 1989 and not corrected by the time of the next routine inspection on September 25, 1989, Casper considered this violation as a major violation and requested that a Notice To Show Cause be issued. In addition to the major violation cited on September 25, 1989, Casper cited six minor violations on the inspection report issued on September 25, 1989. These violations were as follows: (1) Failure to provide exit sign for stairway exit door; (2) Failure to maintain walkway emergency light in good repair; (3) Failure to maintain fiberglass shower liners, building exteriors, stairways, inside cabinet under sink and walls in good repair and failure to maintain proper cleanliness of back panel and wall behind trash can; (4) Failure to maintain proper cleanliness of tub and bathroom walls in good repair (walls need paint); (5) Failure to provide covers for exterior trash cans and; (6) Failure to provide room rate for door in unit number 204. A Notice To Show Cause was issued by the Division on November 9, 1989 charging Flamingo with the major and minor violations discussed above. Casper conducted a pre-conference re-inspection of Flamingo on November 28, 1989 to determine compliance with the September 25, 1989 inspection report. While Flamingo did not totally comply by correcting all cf the violations cited in the September 25, 1989 inspection report, it did correct several of the violations. For convenience, Kappelman leaves the wooden wedges in the vicinity of the exit doors for use by the guest in propping open doors while carrying luggage in and out of their rooms and the cleaning staff while carrying linen and other items in and out of the rooms and other areas of the motel. Kappelman did not remove the wooden wedges from the vicinity of the exit doors after Flamingo was cited for this violation on June 5, 1989. Casper did not observe any persons, including maids or guest, in the vicinity of the exit doors that were propped open on September 25, 1989. Although not every inspection report shows the time of day the inspection was made, those reports that do show the time indicate the inspection was made during the time of day when the maids would be cleaning and guests would be checking out of their rooms. Flamingo is aware that the doors are being propped open for short periods of time for the purposes previously stated but does not feel that this is a violation. The minor violation cited in the September 25, 1989 inspection report concerning the missing exit sign on second floor west was not cited in the November 28, 1989 inspection report as a violation. Apparently it had been corrected, because the exit sign was missing on September 25, 1989 as admitted to by Kappelman. However, there is insufficient evidence to show that there was not another approved exit sign that clearly marked the exit and visible from any direction of the exit access. Likewise, there was insufficient evidence to show that low level exit signs were specifically required in the Flamingo. The minor violation cited in the September 25, 1989 inspection report for failure to maintain the walkway emergency light by Room 106 in good repair in violation of Rule 7C-1.004(3), Florida Administrative Code, was also cited in the November 28, 1989 inspection report as a violation. However, there was insufficient evidence to show that the area of Flamingo serviced by this emergency light would not be well-lighted during the day and night in the event the regular light was not functioning. On September 25, 1989 Casper inspected Rooms 204 and 303 as suggested by Kappelman because these rooms were unoccupied and available for rent. In both rooms (204 and 303) Casper cited Flamingo for bathtub liners having loose caulking resulting in the liner separating from the wall. The violation had not been corrected at the time of the re-inspection on November 28, 1989. Casper cited cleanliness violations on September 25, 1989 as follows: (1) in room 204 a substance on back portion of cabinet; (2) hair on tub in room 303; (3) splatter on wall behind trash can in room 303; and (4) exterior trash can lid missing by rooms 103 and 106. The re-inspection report indicates the splatter on wall behind trash can to be in room 204 rather than room 303 as indicated in September 25, 1989 inspection report. Kappelman admits that a splatter the size of a quarter was present. The remaining cleanliness citations in the September 25, 1989 inspection report appear to have been corrected at the time of re-inspection. Numerous cracks were noted on the exterior of stairwell and outer walls on September 25, 1989. Casper assumed these cracks to be maintenance cracks and not structural in nature (settling cracks) because, with one exception, the cracks did not have any monitoring devices (measuring gauges). These cracks were still evident at the re-inspection. However, the cracks previously had measuring gauges to determine if there was settling, but had been removed without Kappelman's knowledge. The record is not clear whether the cracks were eventually determined to be structural or maintenance cracks. However, all of the cracks were monitored for a period of time. In any event, the cracks had not been repaired at the time of re-inspection, but are now repaired. Casper determined that the "paint job" on the bathroom walls in Room 303 was poor because it appeared that there was only one coat of paint resulting in the dry wall bleeding through. There was no mention of the bathroom walls needing paint in Room 204. However, in the re-inspection report Casper noticed that the bathroom walls in Room 204 needed painting. It is not clear whether Casper made an error in room numbers or if both rooms needed painting and Room 303 had been corrected on November 28, 1989. However, it is clear that the bathroom walls in all rooms were not painted as such but the drywall was impregnated with paint to give the appearance of being painted. There is insufficient evidence to show that painting would be applicable in either room due to the type of wall. Flamingo was cited on September 25, 1989 for failure to have room rates posted in room 204. Based upon Casper's thorough job of inspecting that day, as testified to by Rappelman, it has been shown that that the room rates were neither posted on the door nor in the room, notwithstanding Kappelman's testimony to the contrary.
Recommendation In making the following recommendation I am mindful of the Division's "guidelines" of increasing the penalty five times for a major violation and doubling the penalty of a minor violation when the violation is not corrected at the time of the Informal Conference Call-Back Inspection. However, these guidelines would appear to have a "chilling effect" on a licensee's decision to challenge the Division in the administrative forum, and also conclusively presume that the penalty should be the same regardless of the facts and circumstances surrounding the violation. Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the circumstances surrounding the violations, it is, therefore, RECOMMENDED that the Petitioner enter a Final Order finding Respondent guilty of: (1) the major violation of securing exit doors in an open position in violation of Section 17-2.2.1(a) and 5.2.2.8 of the Code as adopted by Rule 4A-43.006, Florida Administrative Code; (2) the minor violation of failing to properly maintain the fiberglass liner and the cleanliness of the inside of the cabinet and the area behind the trash can in violation of Section 7C-1.003(1), Florida Administrative Code; (3) the minor violation of failing to keep the lid on an exterior trash can in violation of Section 7C-1.003(5), Florida Administrative Code, and (4) the minor violation of failing to post room rates in room 204 in violation of Section 7C-3.002(2), Florida Administrative Code, and for such violations assess an administrative fine of $100.00 for the major violation and $50.00 for each of the three minor violation for a total fine of $250.00. It is further recommended that all other violations cited in the Amended Notice to Show Cause be DISMISSED. DONE AND ENTERED this 3rd day of April, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-0183 Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1-4. Adopted in Findings of Fact 1, 2, 3 and 3, respectively. 5-7. Adopted in Findings of Fact 4, 5 and 5, respectively as modified. Adopted in Findings of Fact 10 and 16. Adopted in Finding of Fact 15. Adopted in Findings of Fact 7 and 9. 11-12. Adopted in Findings of Fact 17, and 10, respectively. 13-16. Adopted in Findings of Fact (4,6), (7,9), 18, 19, and (20,21), respectively. Adopted in Findings of Fact 22 and 23 with the exception of the room number which should be 303. Rejected as not being supported by substantial competent evidence in the record. 19-21. Adopted in Findings of Fact 22, 5, and 25, respectively. 22. Not material or relevant to this proceeding. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent did not file any proposed findings of fact with the Division of Administrative Hearings. COPIES FURNISHED: Elizabeth C. Masters, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Paul J. Dubbeld, Esquire First Union Bank Building Suite 815 444 Seabreeze Boulevard Daytona Beach, Florida 32118 Fred Fluty, Director Division of Hotels and Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Joseph A. Sole, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Stephen R. MacNamara Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
Findings Of Fact The Respondent, R & R Guest Home, Inc., is located at 720 S. W. 5th Street in Dania, Florida, and consists of four apartments which are designated as A building, B building, C building, and D building. Buildings A, B and C are contiguous. Building D is located east of the main complex. The Respondent facility received license number 10-06-0046 on December 2, 1981, allowing a capacity of 21 beds. This license had an expiration date of September 9, 1982. On March 31, 1982, the Respondent was advised that the allowable capacity had been increased to 37 beds, and on November 8, 1982, license number 10-06-0046 was reissued to show a capacity of 37. The capacity set by HRS was based on its regulations which require a usable floor space of 60 square feet per bed in rooms designated for multiple occupancy. A representative of HRS visited the R & R Guest Home on February 9, 1982, and on July 6, 1982, and found resident beds in use in excess of the licensed capacity of the facility. By notice dated July 7, 1982, HRS advised the Respondent that corrective action must be taken by July 21, 1982. Specifically, the HRS representative found 53 beds in place. The HRS representative again visited the R & R Guest Home on August 24 and on August 26, 1982, and once again found beds in the facility in excess of the licensed capacity of 37. In November of 1982 the HRS representative visited the Respondent, R & R Guest Home, and the excess beds found on the August visits were still in place. Respondents facility had been cited previously, in July of 1981 and in February of 1982, for having beds in excess of the licensed capacity, but these violations had been corrected. The Respondent's owner admits that on July 6, 1982, there were 43 beds on the licensed premises, and that on this date the authorized capacity was 37. The excess beds in the Respondent's facility were situated across doorways in the A building and in the B building, creating a situation that presented potential danger to the residents, in that they might not be able to exit the buildings in an emergency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilita tive Services assess fine of $1,000. against the Respondent, R & R Guest Home, Inc. THIS RECOMMONDED ORDER entered this 7th day of March, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1983. COPIES FURNISHED: Harold L. Braynon, Esquire 201 West Broward Boulevard Fort Lauderdale, Florida 33301 Jesse H. Diner, Esquire Post Office Drawer 2088 Hollywood, Florida 33022-2088 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether respondent committed the violations alleged in the Notice to Show Cause, and if so, whether its license should be revoked or suspended, or whether a civil penalty should be imposed.
Findings Of Fact At all times relevant- to this cause, Real Estate Rentals, Inc. held license number 39-926-H issued by the Department of Business Regulation, Division of Hotels and Restaurants (Division) for the premises known as Ippolito Apartments located at 112 South Brevard Avenue, Tampa, Hillsborough County, Florida. The president of Real Estate Rentals, Inc. is E. L. Ippolito. On February 27, March 14, and March 25, 1986, Pablo Mercado inspected the Ippolito Apartments. Mr. Mercado is employed by the Division as an Environmental Health Specialist and his duties include the inspection of hotels, apartments, and other buildings. Mr. Mercado inspects between 40 and 50 buildings a week. Each building is routinely inspected four times a year. When Mr. Mercado inspected the Ippolito Apartments on February 27, 1986, he found several conditions which he considered to be statutory or rule violations. Mr. Mercado noted these violations on a standard form of the Division. The Division's form lists various items numbered 1-36. Items 1 (Fire Extinguishers), 5 (Fire Hazards), 11 (Building Repair/Painting), and 19 (Screening) were checked on the form as minor violations, and comments were made concerning each item. As to Item 1, Mr. Mercado noted that no fire extinguishers were in the building and that a fire extinguisher was needed on each floor or one in each apartment. As to item 5, Mr. Mercado noted that furniture needed to be removed from the hall. As to item 11, Mr. Mercado made the following comments: Need window facing st. apt. #1. You need a window in bathroom apt. #1. Paint inside bldg. Stairs need repair. Hole in bathroom floor apt. #3. Water leaking in the bathroom from the upstairs apt. into apt. #1. As to Item 19, Mr. Mercado noted that all the screens missing on the windows had to be replaced. The form was sent to Real Estate Rentals, Inc., with the indication that the document was a warning and that all violations had to be corrected by March 14, 1986. When Mr. Mercado made his inspection on February 27, 1986, he did not observe a hole in the bathroom floor in apartment #3 or observe any water leaking into the bathroom in apartment #1, and there was no competent evidence presented at the hearing to establish that either of these conditions existed. Mr. Mercado did observe that there were no fire extinguishers in the hall, and he did go into one apartment and observed that there was not a fire extinguisher in that apartment. Two other tenants informed him that they did not have a fire extinguisher in their apartments. Mr. Mercado observed that one of the windows facing the street contained no window pane but simply had a plastic bag taped over the window frame on the outside of the building to cover the empty space. On other windows jalousie slats were missing, and the window on the bathroom of apartment #1 was covered with a piece of plywood. Some screens were missing and some screens were torn up. One of the steps on the stairs was missing part of the two-inch lip, which created a hazard to individuals using the stairs. On March 14, 1986, Mr. Mercado made a return inspection. He noted that the furniture had been removed from the hall. However, he did not feel that any of the other violations listed had been corrected. Therefore, Mr. Mercado filled out a Call Back/Re-Inspection Report", which referred to the warning issued on February 27, 1986, and made the following comments: Violations: #1--#5--#11--#19 (See DBR-226) Only violation #5 is complied. The rest of the violations #1,#)1,#19 are not complied. The report indicated that the time to correct the violations had been extended to March 24, 1986. This report was sent to the respondent by certified mail. On March 25, 1986, Mr. Mercado again inspected the Ippolito Apartments. The conditions had not changed from the time of his previous inspection on March 14, 1986. Mr. Mercado visited the Ippolito Apartments again on April 7, 1986, and also on June 10, 1986. The pictures admitted into evidence as petitioner's exhibits No. 6 were taken on June 10, 1986. On June 10, 1986, the building was in the same condition as it had been on February 27, March 14, and March 25, 1986, except that several of the windows on the front of the building had been replaced with plywood boards. Mr. Mercado did not believe that the replacement of the windows with the boards corrected the violation as to the windows, but he could not remember whether the windows had been replaced with the plywood as of March 14th or the March 25th inspection, or whether they were replaced at a later time. Since slats were still missing from other windows on all of his inspections, he did not feel the violations as to the windows had been corrected. By June 10, 1986, the windows in front of the apartment had been replaced with plywood backed by 2 x 4 studs. According to Mr. Howell, who performed the work, the replacement of the windows with the plywood structure occurred approximately 2 1/2 months prior to the hearing, which would have been early or mid-April, 1986. In that the only competent evidence as to the date of the replacement of the front windows was Mr. Howell's testimony, it is found that the windows in the front of the building had not been replaced with plywood at the time of Mr. Mercado's inspections on March 14 and March 25, 1986. There was no competent evidence presented as to the condition of the windows in the front of the building on March 14 or March 25, 1986.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a final order finding respondent guilty of three violations of Rule 7C-1.03(1) and one violation of Rule 7C-1.04(1) on February 27, March 14 and March 25, 1986, as set forth in charges 1 through 4 of the Notice to Show Cause, finding respondent not guilty of the violations set forth in charges 5 and 6 of the Notice to Show Cause, and imposing a total civil penalty of $975 assessed as follows: (1) failure to provide adequate fire extinguishers, $100 for each offense for a total of $300, (2) failure to maintain windows in good repair, $100 for each offense for a total of $300, (3) failure to maintain stairs in good repair, $50 for each offense for a total of $150, (4) failure to maintain screens in good repair, $75 for each offense for a total of $225. DONE and ENTERED this 9th day of October, 1986, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1800 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings On Proposed Findings of Fact Submitted by the Petitioner 1. Accepted in paragraph 1. 2.-3. Accepted generally in paragraph 2. Accepted in paragraph 3. Accepted in paragraph 4, except that competent evidence showed only that at least one apartment did not have fire extinguisher. The only evidence as to other apartments was hearsay. Rejected as immaterial. Rejected as immaterial in that evidence showed there was not a fire extinguisher in each apartment. 8.-9. Accepted in paragraph 4. 10. Rejected as irrelevant in that respondent was never notified or charged with a violation based on that condition. 11.-12. Accepted generally in paragraph 4. 13. Accepted in paragraph 3. 14.-15. Accepted in paragraph 5. Accepted in paragraph 6. Accepted in background, not finding of fact. Accepted in part in paragraph 7, however, whether violations were corrected was irrelevant because respondent was not charged with violations on April 17, 1986. Rejected as not a finding of fact in that it is a recitation of testimony. Rejected, date of repair set forth in paragraph 8. 22.-23. Rejected as immaterial and as recitation of testimony. 24. Rejected to the degree it is a finding of fact in that replacement of windows occurred after relevant time period. 25.-31. Rejected, not finding of fact. Rulings On Proposed Findings of Fact Submitted by the Respondents Accepted in paragraph 1. Rejected as irrelevant and also not supported by the evidence in that a violation was noted for correction. Accepted in paragraph 3. Accepted in part and rejected in part as set forth in paragraph 4. Accepted in paragraph 5. Accepted in part in paragraph 8, however, repair work irrelevant since it occurred after date of inspections. Rejected as irrelevant. Accepted in part in paragraph 4. Whether bathroom had exhaust fan is irrelevant since the issue was whether the window was in good repair. Reject that Mr. Mercado was not a credible witness. COPIES FURNISHED: James Kearney, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 R. Hugh Snow, Director Department of Business Regulation Division of Hotels and Restaurants The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Lynne A. Quimby, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Mr. Emilio L. Ippolito 901 South Rome Avenue Tampa, Florida 33606
The Issue The administrative complaint alleges that J. E. Patterson is licensed as a registered plumbing contractor and as a registered air conditioning contractor, and that he committed these violations of Chapter 489, Florida Statutes: that he did business in a name not included on his license, that he failed to properly update his address with the Board, and that he failed to properly supervise the activity of the firm which undertook construction work under his name. The issue for disposition is whether the violations occurred, and if so, what discipline is appropriate.
Findings Of Fact The records of the Department of Professional Regulation (DPR) reveal that J. E. Patterson has three active licenses, issued pursuant to Chapter 489, Florida Statutes, governing contractors: an electrical contractor's license (ER 0010700), a plumbing contractor's license (RF 005243), and an air conditioning contractor's license (RA 0052424). None of these licenses has ever qualified a firm named "Pro-Mech". The addresses on the licenses are Merritt Island and Titusville, Florida, in Brevard County. Bobby J. Hunter, Sr. is an Investigator Specialist II for DPR who has investigated construction industry license complaints for approximately fourteen years. After receiving a complaint from a building official, Mr. Hunter conducted an investigation of Mr. Patterson and a firm called "Pro-Mech". The investigation included a telephone interview and a personal contact with J. E. Patterson. Patterson admitted to Mr. Hunter that he had done contracting business as "Pro- Mech", and that he did not send change of status forms or apply to have the firm qualified because the firm had become insolvent. Patterson did not admit the other violations. No prior disciplinary actions against this licensee were alleged or proven.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED: that J.E. Patterson be found guilty of violating Sections 489.129(1)(g) and 489.119, Florida Statutes and that a letter of guidance be issued. DONE and ORDERED this 15th day of November, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 15th day of November, 1988. COPIES FURNISHED: David Bryant, Esquire 1107 E. Jackson, Suite 104 Tampa, Florida 33602 J. E. Patterson Post Office Box 2505 Umatilla, Florida 32784 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
The Issue The issue is whether Respondent is guilty of any or all of six alleged violations of the law governing lodging establishments and, if so, what penalty should be imposed.
Findings Of Fact Respondent operates a lodging establishment known as Salazar's at 412 South 2nd Street in Immokalee. Respondent holds license control number 21-01901H. Petitioner's inspector inspected the lodging establishment on April 10 and 30, 1997. On April 10, the inspector completed a report citing violations. The alleged violations were the presence of expired fire extinguishers, a missing floor drain in the men's restroom, a locked women's restroom, leaking shower faucets in the showers in the men's restroom, no hot water in the showers in the men's restroom, a broken toilet in the men's restroom, no backflow device for the hose threaded to the faucet in the men's room, a chirping smoke detector suggestive of dead batteries, no cold water in one of the stalls in the men's restroom, a torn screen in the men's restroom, a strong smell of urine in the men's restroom, no hot water in the wash basin outside the women's restroom, a dumpster on dirt, and peeling paint in the shower stalls in the men's restroom. The inspector characterized the report as a warning. She mailed the report to Mr. Christman, who is Respondent's manager, and she gave Respondent five days from receipt of the report to correct the violations. However, several items bore asterisks, and, according to the form, Respondent had to correct these violations immediately. These violations were for the fire extinguishers, smoke alarm, lack of hot and cold water, and odor of urine. On April 30, 1997, the inspector returned and reinspected the lodging. She found nine violations. The alleged violations were expired fire extinguishers, a missing floor drain in the men's restroom, a broken toilet in the men's restroom, no backflow device between the faucet and hose, no cold water in one stall of the men's restroom, a torn screen in the men's restroom, a locked women's restroom, a dumpster on the dirt, and peeling paint in the shower stalls in the men's restroom. The only urgent violations remaining from the last inspection were for the fire extinguishers and lack of cold water. On May 29, 1997, the inspector returned and performed a second reinspection. She found the same violations as found previously, except for those concerning the dumpster and peeling paint. The following day, Petitioner issued Respondent the Notice to Show Cause that commenced this case. Respondent failed to repair or replace the torn screen in the men's restroom within the allotted time after the first inspection. It is no defense that the screen is immediately redamaged. Respondent made the women's restroom reasonably available to guests of residents by giving the key to a resident who made it available to women as needed. Respondent failed to repair the cold water in the men's restroom within the allotted time after the first inspection. Respondent failed to replace the missing floor drain or repair the toilet within the allotted time after the first inspection. Respondent failed to install a backflow device between the hose and the faucet within the allotted time after the first inspection. However, Respondent did not understand what Petitioner was requiring, and Petitioner's inspection reports did not clarify this requirement. Respondent was not available during the correction period, and he later had some trouble trying to obtain help from Petitioner in explaining what he needed to do. Although a backflow device serves the important purpose of preventing contaminated water from backflowing up the hose and into the public water supply, the circumstances of this case do not permit a finding of a violation.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants, Department of Business and Professional Regulation, enter a final order imposing a fine of $1300 against Respondent. DONE AND ENTERED this 26th day of March, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1998. COPIES FURNISHED: Scott R. Fransen Chief Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Robert J. Christman, Manager Salazar's 4799 State Road 29 South Punta Gorda, Florida 33935 Dorothy W. Joyce, Director Division of Hotels and Restaurant Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order holding the Respondent guilty as charged, impose a fine in the amount of $2000 and suspend the Respondent's license for one year. DONE AND ORDERED this 17th day of March, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1988.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, Raymond F. Cay was licensed as a barber in the state of Florida and licensed to operate a barbershop in the state of Florida, holding license numbers BB00014055 and B50007436, respectively. At all times material to this proceeding, Respondent was owner of the barbershop, Cay's Hairstylist (Cay's), located at 1349 Cassat Avenue, Jacksonville, Florida 32205. On April 14, 1987, Petitioner conducted a routine annual inspection of Cay's as required by rule and noted certain deficiencies which if proven could have resulted in Respondent's licenses being revoked, suspended or otherwise disciplined. However, there was insufficient evidence to show that these allegations of deficiencies were ever proven in a formal proceeding or admitted to by Respondent in an informal proceeding under Chapter 120, Florida Statutes. In fact, there was insufficient evidence to show that any disposition had been made by the Petitioner on these alleged deficiencies. On March 11, 1988, Petitioner again conducted a routine annual inspection of Cay's and again noted certain deficiencies which were the basis of the Second Amended Complaint. There was insufficient evidence to show that there was excessive hair on floor or that the back of the bars, chairs or furniture were not maintained in a safe and sanitary manner or that the shop and equipment were dirty on March 11, 1988 when the inspector visited Cay's. Although all of the barbering tools were not totally immersed in a disinfectant solution on March 11, 1988 when the inspector visited Cay's, there was insufficient evidence to show that that portion of the barbering tool (including brushes) which comes in contact with the patrons, was not sufficiently immersed in a proper disinfectant solution to allow proper sanitation. Although there were no sanitary towels in the bathroom on March 11, 1988 when the inspector visited Cay's, there was insufficient evidence to show that the bathroom was dirty. Sanitation rules were improperly displayed in Cay's on March 11, 1988 when the inspector visited. The only license not displayed on March 11, 1988 when the inspector visited Cay's was Ms. Delp's, and she was currently on leave and not working even though she was in the shop shampooing her hair on that day. On November 22, 1988, Petitioner conducted a re-inspection of Cay's and the inspector noted certain deficiencies which if proven could result in Respondent's licenses being revoked, suspended or otherwise disciplined. However, these alleged deficiencies were neither made a part of the Second Amended Administrative Complaint nor was there any evidence that these alleged deficiencies were ever proven or that they formed the basis for any disciplinary action taken by the Petitioner.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter a Final Order DISMISSING the Second Amended Administrative Complaint filed herein. RESPECTFULLY submitted and entered this 24th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4180 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statute, on all of the Proposed Findings of Fact submitted by Petitioner in this case. Respondent did not submit any Proposed Findings of Fact and Conclusions of Law. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Treated as a conclusion of law rather than a finding of fact. 2.-3. Adopted in Finding of Fact 1. 4. Adopted in Finding of Fact 2. 5.-6. Subordinate to facts actually found in this Recommended Order. 7. Treated as a conclusion of law rather than a finding of fact. 8.-0. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 4. Subordinate to facts actually found in this Recommended Order. COPIES FURNISHED: Myrtle Aase, Executive Director Barber's Board 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 E. Renee Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 P. W. Cay, Qualified Representative 1349 Cassat Avenue Jacksonville, Florida 32205 Raymond F. Cay 1349 Cassat Avenue Jacksonville, Florida 32205
Findings Of Fact At all times material to this case, the Respondent, Joseph Lawton, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0052537. At all times material to this case, the Respondent was the qualifying agent for All Florida Systems located in Fort Lauderdale, Florida. The Notice of Hearing was mailed to Respondent at his last known address. Ronald Klein lives at 8245 Northwest Ninety-fifth Avenue, Tamarac, Florida. A portion of the roof on Mr. Klein's residence is flat and a portion is pitched. In the middle of August, 1987, Respondent met with Mr. Klein at the Klein residence to discuss Mr. Klein's roofing needs. Respondent told Mr. Klein during their meeting that the flat portion of his roof needed to be re-roofed and quoted a price for the work that Mr. Klein found acceptable. This was the only meeting between Mr. Klein and Respondent and was the only time Mr. Klein has seen Respondent. There was no written contract between Respondent and Mr. Klein because Respondent did not mail to Mr. Klein a written contract as he had agreed to do. On Sunday, August 30, 1987, Earl Batten, one of All Florida System's workers, re-roofed the flat portion of Mr. Klein's roof. Mr. Klein paid Mr. Batten $1,575.00 for the work pursuant to the verbal agreement between Respondent and Mr. Klein. Mr. Klein made his check payable to Earl Batten because Respondent had told Mr. Klein to pay his worker when the work was completed. Mr. Klein noted on the check that the check was in payment of work done by All Florida Systems. Respondent did not obtain the permits required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the permits required by local law. Respondent did not obtain the inspections required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the inspections required by local law. Mr. Klein's roof began leaking after Mr. Batten completed his work on August 30, 1987. In response to three weeks of repeated telephone calls from Mr. Klein, Respondent sent one of his supervisors to inspect Mr. Klein's roof. The supervisor told Mr. Klein that the work had to be redone because the work on the flat roof had not been properly tied into the remainder of the roofing system. Mr. Klein was further advised by the supervisor that Respondent would be in contact with Mr. Klein. After Respondent failed to respond further, Mr. Klein hired a second roofing contractor who corrected the deficient work in October of 1987 at a price of $1,377.00. Between the time Mr. Batten worked on his roof and the time the second contractor corrected the deficiencies, Mr. Klein sustained damages to his residence which required expenditures of over $1,500.00 to repair. Respondent was previously disciplined by the Construction Industry Licensing Board in Case No. 90265.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having violated Sections 489.129(1)(d) and (m), Florida Statutes, and which imposes an administrative fine against Respondent in the amount of $5,000.00 and places Respondent on probation for a period of one year. DONE and ENTERED this 19th day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 20, 22 are adopted in substance; insofar as material. The findings of fact contained in paragraphs 16, 17, 21 of Petitioner's proposed findings of fact are subordinate. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph Lawton 1000 South Ocean Boulevard Apartment 6C Pompano Beach, Florida 33062 Kenneth E. Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether the allegations in the Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Koy Wan Hibachi Buffet (Respondent) are correct.
Findings Of Fact The Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509, Florida Statutes (2013).1/ At all times material to this case, the Respondent was operating as a large buffet-type public restaurant located at 945 West State Road 436, Suite 1179, Altamonte Springs, Florida 32714. On April 22, 2013, Amy Zaleski and Cecelia Chiu, trained and experienced sanitation and safety specialists employed by the Petitioner, performed a routine inspection of the Respondent, during which the inspectors observed various violations of the Code. At the conclusion of the routine inspection, Ms. Zaleski prepared a written report documenting the Code violations observed by the inspectors. Before leaving the premises, Ms. Zaleski provided a copy of the inspection report to a manager identified as Ander Chow and discussed the violations with him. According to the inspection report, the violations were to be corrected by 8:00 a.m., on June 21, 2013, at which time a "callback" inspection was scheduled to occur. The purpose of the callback inspection was to determine whether the Code violations identified during the routine inspection had been corrected. On June 24, 2013, Inspectors Zaleski and Chiu performed a callback inspection of the Respondent and observed that some of the Code violations observed during the routine inspection had not been corrected. At the conclusion of the routine inspection, Ms. Zaleski prepared a written report documenting the Code violations observed by the inspectors. Before leaving the premises, Ms. Zaleski provided a copy of the inspection report to a manager identified as Melody Chen and discussed the violations with her. The Code classifies violations as either "high priority," "intermediate" or "basic," essentially reflecting the level of threat to public health posed by a deficiency. A high priority violation is one that poses a direct or significant threat to public health. An intermediate violation is one that, uncorrected, could develop into a high priority violation. A basic violation is one of core sanitation and maintenance requirements that does not meet the level of a high priority or intermediate violation. Count 1 Raw oysters and other "shellstock" are sold to restaurants in containers that are tagged to identify the source of the product and the date of the harvest. The relevant portion of the Code requires that establishments serving shellstock must prevent the comingling of products from different sources and harvest dates. The Code also requires establishments to retain the tags for 90 days to permit identification of the source and date of harvest. The purpose of the requirement is to facilitate identification of a potential source of contaminated shellstock after an occurrence of food-borne illness by persons consuming the product. The Respondent offered raw oysters available for public consumption. On the dates of both the routine and the callback inspections, the Respondent was unable to make the shellstock tags available for inspection, and the Petitioner cited the Respondent for failing to maintain the tags in the manner required. The Petitioner classified the deficiency as an intermediate violation. At the hearing, the Respondent asserted that the tags were properly maintained and available at the time of the inspections, and that the managers present at the time of the inspections were not sufficiently proficient at speaking English to understand the inspectors' request. The assertion was not supported by credible evidence. The Respondent was unable to demonstrate compliance with the tag retention requirement on the dates of the inspections. Counts 2 and 3 The relevant portion of the Code requires that certain food products be stored within specified temperature ranges to minimize the potential for bacterial growth. In the alternative, establishments may use "time control" to monitor the safety of potentially hazardous food. Essentially, an establishment can meet Code requirements either by controlling the temperature at which the product is held or by limiting the time during which the product must be consumed, cooked or discarded. In Count 2, the Petitioner alleged that during both the routine and the callback inspections, the temperatures of various food items including "Krab," sprouts, shrimp, raw pork, surimi, boiled eggs, and cut melon failed to comply with the temperature- based requirements of the Code. The Petitioner classified the deficiency alleged in Count 2 as a high priority violation. In Count 3, the Petitioner alleged that during both the routine and the callback inspections, sushi, a potentially hazardous food being served on the buffet line, failed to comply with the temperature-based requirements of the Code. The Petitioner classified the deficiency alleged in Count 3 as an intermediate violation. The Respondent asserted that it used time control to monitor the products for safety. The Code requires that an establishment choosing to use time control must have written documentation identifying the practices implemented and must make the documentation available to the Petitioner on request. The Respondent was unable to produce written documentation of the time control procedures during either the routine or the callback inspection. Count 5 The relevant portion of the Code prohibits storage of food on the floor because dirt, bacteria, and floor cleaning chemical residue can contaminate food stored on the floor. During both the routine and the callback inspections, the Petitioner's inspectors observed boxed food being stored on the floor of a walk-in freezer. This deficiency was classified as a basic violation. At the hearing, the Respondent asserted that the products had been delivered just prior to the inspections, the delivery employee placed the boxes on the freezer floor, and Respondent's employees had not yet moved the boxes from the floor to the shelves. The assertion was not supported by credible evidence. Count 6 The relevant portion of the Code provides that an employee may drink from a closed beverage container if the container is handled in a manner which prevents contamination of the employee's hands, the container, exposed food, and clean equipment and utensils. The Petitioner alleged that the Respondent violated the Code because inspectors observed an employee's beverage container on a food prep counter. The evidence is insufficient to establish that the potentially permissible beverage container was not handled in such a manner as to comply with the requirements of the Code. Count 9 (Part A) The relevant portion of the Code requires that food contact surfaces must be "clean to sight and touch" to prevent bacterial contamination. During both the routine and the callback inspections, meat-cutting boards at cooking stations were stained and soiled. Count 9 classified the deficiency as an intermediate violation. Counts 10 and 12 The relevant portion of the Code requires that "a handwashing sink shall be maintained so that it is accessible at all times for employee use" and that the sink "shall be equipped to provide water at a temperature of at least 100 degrees." During both the routine and the callback inspections, one of the 12 handwashing sinks available to employees had various items stored in it, and there was no hot water available at that sink. Count 10 identified the hot water deficiency as an intermediate violation. Count 12 classified the accessibility deficiency as an intermediate violation. The Respondent asserted that the hot water supply line was leaking at that particular sink and so it had been turned off. The items were placed in the sink to prevent its usage. The evidence failed to establish the reason the sink remained unrepaired after being cited as a deficiency during the routine inspection. Count 11 The relevant portion of the Code requires that a vacuum breaker device be installed on certain plumbing fixtures to prevent the backflow of contaminated water into the water supply system. During both the routine inspection and the callback inspection, the inspectors observed that a splitter fitting had been installed on the mop sink faucet and that no vacuum device was present. This deficiency was classified as a high priority violation. Count 13 The relevant portion of the Code requires that the operator of an establishment take effective measures to protect the premises from infestation by vermin, such as roaches. During the routine inspection, a gap was visible at the threshold of an exterior door at the rear of the restaurant through which vermin could enter the building. During the routine inspection, inspectors observed dead roaches inside a cabinet under a "soft-serve" ice cream machine, in a cabinet under a handwash sink, on the floor at a "wait station," and inside a storage area where unused equipment was located. Roach excrement was present on the gasket of an unused cooler located in the storage area. During the callback inspection, the gap remained unrepaired. Inspectors again observed dead roaches inside a storage area where unused equipment was located and roach excrement on the gasket of an unused cooler. Roaches present a risk of bacterial contamination and disease to surfaces and food contact areas. Count 13 classified presence of vermin as a high priority violation and the gap under the exterior door as a basic violation. Count 15 The relevant portion of the Code requires that carbon dioxide and helium tanks be adequately secured. An unsecured carbon dioxide tank can fall over, explode, and become a dangerous projectile. During both the routine inspection and the callback inspection, inspectors observed a carbon dioxide tank stored in an upright position without being properly secured. This deficiency was classified as a basic violation.
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 a fine of $6,900 against the Respondent and requiring that the Respondent complete an appropriate educational program related to the violations set forth herein. DONE AND ENTERED this 2nd day of April, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2014.
Findings Of Fact Malcolm McCoy, for nearly 10 years prior to December 19, 1989, was employed by the City of Clearwater in the Gas Division. He was a permanent employee and covered by City of Clearwater's civil service rules and regulations. At the time of his dismissal on December 19, 1989, he served as a crew leader. In June, 1989, McCoy was arrested for possession and sale of cocaine. He was subsequently suspended without pay for five days by the City and awarded 60 disciplinary points (Exhibit 2), and on October 31, 1981, a court order was entered, which shows McCoy pleaded guilty in the Circuit Court in and for Pinellas County to sale or delivery of cocaine and possession of cocaine. Adjudication of guilt and imposition of sentence was withheld, and McCoy was placed on probation for two years (Exhibit 1). On September 11, 1989, McCoy received a letter by certified mail from the City advising him that he had accumulated 60 disciplinary points as a result of the cocaine incident and that any further disciplinary action within a two- year time frame may be grounds for his dismissal (Exhibit 3). On or about November 15, 1989, McCoy removed some City-owned dried out and dead sod from City property, loaded it onto a City vehicle, transported this sod to his address, and, with the help of his assistant, placed this sod in his yard. This occurred during regular working hours. Enroute to McCoy's residence with the sod on the vehicle, McCoy's assistant suggested to McCoy that it was wrong to take this sod to McCoy's property. Nevertheless, at McCoy's direction, the assistant helped McCoy unload the sod from the City truck and place it on McCoy's property. McCoy's stated purpose for placing the sod in his yard was to help arrest erosion on his property. An anonymous phone call reported this fact, the investigation confirmed, and McCoy admitted that he took the sod which was worthless as sod and placed it on his property. McCoy did not feel he had misappropriate City property; only that he had saved the City the expense of disposing of the dead sod.
Recommendation It is recommended that the dismissal of Malcolm McCoy as a civil service employee of the City of Clearwater be affirmed and McCoy's appeal be dismissed. ENTERED this 4th day of April, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Office Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1990. COPIES FURNISHED: Miles Lance, Esquire Post Office Box 4748 Clearwater, FL 33418-4748 Malcolm McCoy 1323 Tioga Avenue Clearwater, FL 34616
