The Issue The issue is whether Petitioner violated Section 386.207(3), Florida Statutes (2003), by failing to comply with the "Florida Clean Indoor Air Act."
Findings Of Fact Respondent holds License No. 70-00559, Series 2COP. The license authorizes Respondent to sell beer and wine at the licensed premises, which is located in Wildwood, Florida. Respondent is the sole owner of Buddy's Bar-B-Que. She has been licensed to sell beer and wine at her restaurant since June 1999. Sometime before July 18, 2003, Petitioner received an anonymous complaint that Respondent was allowing the smoking of tobacco products inside the establishment. Petitioner subsequently initiated an investigation. On or about July 18, 2004, Petitioner's investigator, Special Agent Karen Evans, observed Respondent and her patrons smoking inside the restaurant. Agent Evans advised Respondent about the prohibitions set forth in the Act and gave Respondent a questionnaire containing frequently asked questions about the Act. Agent Evans also issued Respondent a Notice to Comply. The notice mandated full compliance with the Act within 30 days. More than 30 days later, in the Fall of 2003, Special Agent Jeffrey Yonce and Agent Evans went to Respondent's restaurant. They observed Respondent and her patrons smoking inside the licensed premises. Agent Evens then gave Respondent notice that Petitioner intended to file an Administrative Action against for her failing to comply with the Act. Petitioner issued an Administrative Action against Respondent in November 2003. The opening paragraph of the Administrative Action erroneously refers to Manatee Lanes, Inc. as the entity being charged. However, the Administrative Action clearly indicates that Respondent was the licensee being charged with violating the Act. In fact, Petitioner's counsel admitted during the hearing that his client was aware of the charges against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order imposing an administrative penalty on Respondent in the amount of $250. DONE AND ENTERED this 20th day of July, 2004, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 20th day of July, 2004. COPIES FURNISHED: Michael J. Wheeler, Esquire Department of Business and Professional Regulation Northwood Centre, Suite 6 1940 North Monroe Street Tallahassee, Florida 32399-2202 Brandon L. Kolb, Esquire 112 East Street, Suite B Tampa, Florida 33602 Peter Williams, Director Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-2202 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue presented is whether Petitioner is eligible to participate in the Department's Drycleaning Solvent Cleanup Program.
Findings Of Fact Petitioner, Webbs Cleaners, has operated as a dry cleaning facility for approximately twenty-five years under the consecutive ownership of two brothers, Joseph Smith and Michael Smith. Joseph Smith owned the property and business from approximately 1975 through 1986, when he sold the business to Michael Smith. Michael Smith sold the business back to Joseph Smith in February 1999. At all times Joseph Smith retained ownership of the real property. Both owners operated Webbs Cleaners under the corporate structure of JCS, Incorporated. The corporation is a small business, never having earned one million dollars or more of gross revenue in any year. Webbs Cleaners is a full-service laundry and dry cleaning business, operating at 1601 Broadway, Riviera Beach, Florida. The dry cleaning business requires the use of a primary cleaning solvent called "perchloroethylene," commonly known as "perc." Webbs stores its supply of perc in the storage tanks of the dry cleaning machine. At the time of the Department's inspection, Webbs' dry cleaning machine had three separate storage tanks: a working tank, a distilling tank, and a fresh tank. Each tank had a volume capacity of approximately thirty to forty gallons. At the time in question, Phenix Supply Company was Webbs' supplier. Phenix delivered perc to Webbs by truck and usually filled the dry cleaning machine by pump. When a shipment arrived, a lid would be removed on top of the dry cleaning machine and a hose run from the supply truck to the dry cleaning machine inside Webbs Cleaners. Perc was then pumped from the truck directly into the dry cleaning machine's fresh storage tank. Because of the volumes usually delivered, perc was seldom delivered in five-gallon Dowper cans. When perc was delivered in Dowper cans, the cans were wheeled into the store on a hand truck and emptied into the storage tanks of the dry cleaning machine. Due to the exorbitant cost of perc, the Smith brothers always made sure every last drop of perc was emptied from the Dowper cans and placed into the dry cleaning machine. All Dowper cans were left "bone dry," stored behind the dry cleaning machine, and returned to Phenix on the next delivery. In the past, the Smith brothers have left empty Dowper cans outside the store on the days they were to be picked up by the supplier or to temporarily make extra room in the secondary containment area. Dry cleaning facilities generate various types of hazardous waste, which require proper disposal. Such wastes include: filters, filtered lint, bottom still residue (sludge and fatty acids), separator wastewater, mop water and fluorescent light bulbs. Webbs contracted with MCF to dispose of its hazardous wastes generated from the dry cleaning process. The hazardous wastes were placed in fifteen-gallon black drums supplied by MCF. Pursuant to new regulations, Michael Smith installed a secondary containment system under and completely around his dry cleaning machine in August 1996. Secondary containment has been in place around Webbs' dry cleaning machine since that time. On November 6, 1997, at approximately 7:00 a.m., Michael Smith placed two empty Dowper cans outside behind the dry cleaning facility so they could be picked up by Phenix. He also placed a five-gallon clear plastic container partially full of soap outside with the two Dowper cans. At approximately 8:30 a.m. that day, Leslie Smith from the Department and Susan Gash from Palm Beach County appeared unannounced at Webbs to conduct an inspection. They noticed the secondary containment around the dry cleaning machine. Facility inspections conducted by Leslie Smith are routine in nature, but extensive. Due to the difficulty in remembering all the details investigated at each facility, Leslie Smith uses a simple checklist system. Called an Inspection Exit Summary, the checklist quantifies deficiencies needing correction. The entire facility inspection report is condensed to a basic evaluation process whereby Leslie Smith simply adds all items marked with an "x," and the total number indicates the number of corrective responses which should be received from the owner/operator of the dry cleaning facility by a specified date. Information is then exchanged with the owner/operator for each item marked with an "x." Leslie Smith's routine is always the same. During a typical inspection she first asks for the facility operator, then notes what type of equipment is in use, requests to have any containers opened, takes photographs, and requests copies of business records. The first photograph is always of the dry cleaning unit, confirming if there is secondary containment around the unit and the type of unit in use. When she sees a closed container outside of the secondary containment area, she asks the facility operator to open it so she can see if it is empty. She "makes a big deal" out of determining whether containers have contents in them. Susan Gash was an environmental specialist with Palm Beach County. At the time of the Webbs inspection, Gash performed inspections for the County's wellfield protection code. She attended the inspection with Leslie Smith because she was being trained on State-related compliance issues. Because Gash was present, Leslie Smith made her own inspection more rigorous than usual. During the inspection, Leslie Smith and Susan Gash questioned Michael Smith about the contents of one black fifteen-gallon drum and about the three containers behind the facility. Joseph Smith acquired the black drum, located in the rear of the building, in approximately 1976. When purchased, it contained dry cleaning soap, which is not a hazardous substance. Since it was emptied, the drum has been used on-site for storing sandbags. Webbs is located in an area prone to flooding during heavy rain, and the sandbags are used to help protect the front and rear entrances of the facility. The five-gallon soap container and two Dowper cans located outside behind the facility were on the ground in a small area between the wall of the next building and a concrete wall between three and three and one-half feet high. The soap container made of clear, white plastic visibly contained liquid. Since soap is not a hazardous solvent, that container is not at issue in this proceeding. The two Dowper cans at issue are gray, five-gallon cans. On the morning of the inspection, these two empty Dowper cans and the five-gallon soap container had been located within the secondary containment area inside the facility. Because he needed more room, Michael Smith placed the two Dowper cans and the soap container outside between the two walls. He would never have placed the Dowper cans outside if they still contained any perc because perc is hazardous and must be stored within secondary containment and because perc is very expensive and anything of value placed outside his premises in Riviera Beach would be stolen. For whatever reasons, Leslie Smith chose not to follow her normal routine during the Webbs inspection. Although she always made a "big deal" out of determining whether containers had contents and had the facility operators open them to verify their contents or determine that they were empty, she did not request that any containers at Webbs be opened for inspection. At the final hearing, she testified that she had no authority to open containers to determine contents. Leslie Smith initially testified that she tried to pick up the Dowper cans but could not lift them because full Dowper cans weigh forty to fifty pounds. She later testified that she could not recall whether she tried to pick them up, shake them, or kick them because she has no recollection after three years. Her notes reflect that the cans were full but do not indicate how she knew that or why she assumed that. On the other hand, Susan Gash testified that even after three years she has a specific memory of taking her left foot, placing it at the top edge of a Dowper can, and pushing it to determine if the can were empty by rocking it back and forth and listening for splashing. She recalls hearing splashing and that Leslie Smith walked around her, bent over, and picked up the can to determine if it were empty. Leslie Smith's testimony conflicts with portions of her own testimony and that of Susan Gash. It is unlikely that Susan Gash rocked one of the Dowper cans back and forth since the Department's own photograph reflects the three cans snuggled tightly into a small area between the wall of the next building and a concrete wall which the uncontroverted testimony describes as three to three and one-half feet high. Further, even if credibility is afforded to their testimony, only one can was discussed, and two Dowper cans are at issue in this proceeding. When asked by Leslie Smith and Gash about the cans, Michael Smith told them the Dowper cans were "bone dry." He did not see Leslie Smith or Susan Gash lift, push, or kick the cans. Gash told him to put the cans inside the facility, and he did so while the inspectors were still at the facility. He had no difficulty lifting or carrying the empty Dowper cans. Leslie Smith believes that containers of perc not within secondary containment have the largest potential for harm to the environment that she could encounter at a dry cleaning facility. Yet, she did not react to the situation with any immediate concern. She did not direct Michael Smith to place the outside cans inside the secondary containment area. She did not contact Michael Smith or re-visit the site at any later time. She did not direct the Department's hazardous waste employees to the site until three months later. It can only be concluded that Leslie Smith did not believe the Dowper cans contained any perc. Accordingly, the two Dowper cans were empty on the day in question and did not need to be stored within secondary containment. Another alleged violation during the November 1997 visit involves a waste drum, which Leslie Smith noted was only partially within the secondary containment area. However, she has no recollection, and her notes do not reflect, whether the drum contained any waste. Webbs is not guilty of gross negligence regarding the waste drum. The last alleged violation during the inspection refers to whether a container of picrin, which is used for spotting, was outside the secondary containment area and contained solvents equal to more than one quart in volume. Leslie Smith has no recollection, and her notes do not reflect, the volume of the contents in the container. Webbs is not guilty of gross negligence regarding the container of picrin. The Department's inspection exit summary potentially contains information a facility operator needs in order to know what corrective action, if any, is required. Leslie Smith concedes that without a copy of the inspection exit summary, there would be a great deal of confusion as to what a dry cleaning facility would be required to do to respond appropriately to her investigation. The Department mailed Webbs' copy of the summary to the wrong address. Michael Smith did not provide any documentation to the Department after Leslie Smith's inspection because it was his understanding that the Department would return after thirty days to re-inspect his premises to verify that any corrective action had been taken. Leslie Smith later reported to the Department's Tallahassee office that Michael Smith had failed to provide a "characterization" or hazardous waste determination report that she had instructed him to obtain from a professional testing source as to the contents of the empty Dowper cans. After learning from Michael in early 1998 that the Department had performed an inspection at Webbs, Joseph Smith went to the Department's local office and obtained a copy of the inspection report. He then took photographs showing that all corrective actions had been taken and delivered them to the Department. Thereafter, he received no contact from the Department and assumed that nothing further was needed. In early 1998, Webbs replaced its dry cleaning machine with a new machine and a new secondary containment system. The machine and secondary containment system were purchased and installed simultaneously as a single unit and are still in use. In February 1998, Susan Gash performed a re-inspection of Webbs for Palm Beach County. She found the facility to be in compliance with all requirements. She found no containers behind the building. In approximately December 1998, Joseph Smith hired a civil engineer to determine if Webbs needed to participate in the Department's Drycleaning Solvent Cleanup Program. Soil borings were taken, and testing revealed that the site had some dry cleaning solvent contamination. An application for eligibility in the program was completed and jointly filed by both Joseph Smith, the property owner, and Michael Smith, the owner of the dry cleaning business at that time. The application was filed under the name of Webbs Cleaners. Webbs Cleaners has never been fined or had any administrative action taken against it. Webbs Cleaners has never willfully discharged solvents or willfully concealed any discharge. Webbs Cleaners has never been found to have violated any local, State, or federal law regulating the operation of a dry cleaning facility. From August 1996 through the time of the final hearing in this cause, Webbs has continuously used secondary containment systems under and around the dry cleaning machine and where solvents and waste materials containing solvents have been used or stored.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered determining that Webbs Cleaners is eligible to participate in the Department's Drycleaning Solvent Cleanup Program. DONE AND ENTERED this 25th day of August, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 25th day of August, 2000. COPIES FURNISHED: Inguana Varslavane-Callahan, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Kevin S. Hennessy, Esquire Lewis, Longman & Walker, P.A. 1700 Palm Beach Lakes Boulevard Suite 1000 West Palm Beach, Florida 33401-2006 Kathy C. Carter, Agency Clerk Office of General Counsel 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact The Respondent, Mary Anne Shiell, is a licensed real estate salesman holding license No. 0044116. The Petitioner, the Department of Professional Regulation, Board of Real Estate, is an agency of the State of Florida, having jurisdiction over licensing and the regulation of licensure status of real estate salesmen. This dispute arose out of a business transaction involving the showing by the Respondent and others of a piece of residential real property to the complaining witnesses, William G. and Geraldine Fellows (son and mother). On March 6, 1979, the Respondent, Juanda Marsh and Skip Mark were employed as real estate salesmen by Mannix, Inc. On that day Juanda Marsh, while attempting to find residential property listings, became aware of a home owned by Paul E. Phipps and his wife which was for sale. After talking to the owners of the house, Mr. and Mrs. Phipps, Ms. Marsh went back to the Mannix realty office where she spoke to the Respondent and advised the Respondent of the Phippses' home being for sale. Ms. Marsh then met the complaining witnesses, the Fellowses, and took them to meet Mr. Phipps at the home in question. This was late in the afternoon of March 6, 1979, and the electricity had been turned off in the home. Mr. Phipps was then in the process of wallpapering and painting the dwelling, which he used as rental property. After leaving the home that evening, the complainants decided to offer the Phippses $37,000 for the property. The complainants and Ms. Marsh prepared the contract, which was executed that evening by the complainants. The sellers executed the contract the following day, and the transaction was closed March 15, 1979. The complainants did not take possession of the premises until sometime in April of 1979. On March 6, 1979, when the complainants first viewed the premises, the Respondent, Marsh, Mark, as well as Phipps, the seller, were present. The complainant addressed the group of people generally, asking what kind of condition the roof was in. All concerned looked toward Mr. Phipps; he nodded his head, assenting that the roof was in good condition. There was a general agreement that the house appeared to be in good condition. Neither the Respondent nor Ms. Marsh nor Skip Mark had any additional knowledge regarding the condition of the house other than that which they saw that day in the presence of the complainants. All were seeing it for the first time. The Respondent did not give any assurance to the complainants that the roof was in good condition; she relied, as did all present, on the assurance given by Mr. Phipps at the time. Immediately prior to the drafting of the contract on that evening, the complainants were advised by the Respondent that if an "as is" clause were placed in the contract it might induce the seller to accept the lower offer which the complainants had in mind, and the complainants agreed. Accordingly, Ms. Marsh inserted in the contract the "as is" clause on the face of the contract, meaning that the purchasers, the Fellowses, would buy the property in the condition it was in at the time for the price they were offering and which, ultimately, the owner accepted. Prior to the closing of the transaction, the Fellowses called the Respondent by telephone to ascertain that all checks had been made pursuant to the Buyer Protection Plan and the Respondent advised that she thought everything was in good working condition, but she would attempt to inspect the premises to ascertain for sure if all equipment and appliances were working. The Respondent attempted to make an inspection of the premises a day or two before closing and there was no electricity or water turned on so that the various appliances could not be tested. She informed the complainants of this, but they said they could not afford to have the utilities turned on. The Respondent then called Mr. Phipps and explained the situation to him. She asked if he was in a position to tell the complainants what condition everything was in and he told her that so far as he knew the only thing in the house that might not function properly was the dishwasher. Mr. Phipps told the Respondent that the air conditioner functioned properly and indeed the vents were in the walls or ceiling and appeared to be in order. The Respondent looked in the oven door of the range in the kitchen and the oven element appeared to be in good condition, although it was impossible to test it because the utilities were not on. The Respondent removed the kitchen range elements and visually inspected them. Again, no electricity was available to test them after this fact had been disclosed to the complainants. Upon taking possession of the property in April, 1979, the complainants discovered certain defects consisting of: a leaky roof; duct work missing from the air conditioning system; the oven was inoperable; the range had several inoperative elements; the plumbing in the toilets leaked; the hot water heater was inoperable; and the disposal was not connected. Witness Ralph Porch inspected the air conditioning system and found that no duct work existed in the hall ceiling to connect the air conditioning system to the mechanical unit. He did not try to turn on the air conditioner. He did recall seeing the air supply grills and stated that the only way one could find out that there were no ducts in place was to climb up in the attic and look; that it was not a defect observable from the normal living areas of the house. The Respondent, in addition to inspecting the kitchen appliances, inspected but saw no evidence of a mineral deposit or other symptoms of leaks around the toilets. Mr. Phipps had represented that the hot water heater was not very old and so the Respondent had no reason to believe that the hot water heater was inoperable. She looked beneath the sink to examine the garbage disposal and did not notice any pipes or electrical wiring absent. The complainants maintained that the Respondent represented to them that the electricity had been turned on for one day and that all the appliances had been checked out and were in working order. The Hearing Officer finds this testimony not credible inasmuch as the Respondent testified that she had never made such a representation, but rather had visually inspected them to the best of her ability with no electricity available to actually test the functioning of the appliances, which testimony was corroborated by the testimony of Bernice Shackleford from the Orlando Utilities Commission, who established that the electricity was turned off March 5, 1979, the day before the property was first shown to the Fellowses and to the Respondent. Ms. Shackleford also testified that the utilities were inactive continuously until April 20, 1979, long after the closing and long after the alleged inspection of the appliances took place. The undersigned thus finds that the Respondent never represented to the Fellowses that the electricity had been turned on for a day, nor that she had thus tested the appliances and found them all in working order. The Respondent did not make any statement to the effect that the roof did or did not leak. A reasonable inspection of the residence would not disclose that the air conditioning vents or air supply grills were not connected by ducts to the mechanical portion of the air conditioning system. Subsequent to their taking possession of the house and initially complaining to the Respondent and Mannix, Inc., concerning the defects in the dwelling, the complainants filed a civil action regarding their complaints. The complainants sued the Phippses, who were the sellers; Juanda Marsh; Mannix, Inc.; the Respondent; and Electronic Realty Associates, Inc. Although the complainants denied settlement of the case, in their testimony in the instant proceeding, the civil litigation was in fact dismissed by their attorney (see Notice of Voluntary Dismissal; Respondent's Exhibit A). In that civil action, only Juanda Marsh and Skip Mark were alleged to have made false representations to the complainants. In summary, the Respondent was not shown to have had any knowledge regarding the condition of the premises which she failed to reveal to the complainants and sometime after the controversy arose, the Respondent offered, on behalf of Mannix, Inc., to purchase the property back from the complainants for what they had paid for it, but this offer was rejected.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore, RECOMMENDED that the Administrative Complaint filed herein against Mary Anne Shiell be dismissed. DONE AND ENTERED this 29th day of July, 1982, at Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 29th day of July, 1982. COPIES FURNISHED: Joseph Doherty, Esquire 3220 Chelsea Street Orlando, Florida 32803 Charles N. Prather, Esquire 17 South Lake Avenue, Suite 103 Orlando, Florida 32801 Frederick H. Wilsen, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. During times material, R. O. Crosby held a license for the premises known as Crosby Apartments, license number 60- 01726H, located at 732 Joe Louis Avenue, Pahokee, Palm Beach County, Florida. (Petitioner's Exhibit A). On March 24, 1986, Arnold Pergament, an Environmental Health Specialist employed with Petitioner, inspected Crosby Apartments and issued a notice of violation to Respondent for several violations of Florida Statutes and Petitioner's Rules. (Petitioner's Exhibit B). Inspector Pergament observed the following conditions: Fire Extinguishers: Inspector Pergament noted that there were no fire extinguishers on the premises which, based on its size, required a minimum of four fire extinguishers to comply with safety rules and regulations for tenants. Exit/Obstructions: Inspector Pergament observed an abandoned refrigerator on the second floor walkway which impeded the progress of persons walking in that area. Public Lighting: There were missing lights in the public toilets and other public facilities. Overhang: The roof overhang above the second floor walkway was broken; plaster was peeling and two stair handrails were loose; the steps which held the anchors for the handrails were cracked and wobbly and the stair handrails were unsafe for tenants to traverse by placing weight on the railings. Public Facilities: The public restroom on the second floor had an opening in the drainline from the urinal; the bathroom ceilings were damaged; stained walls in public restrooms and the showers, sinks and commodes were stained. The overall condition of the public facilities were dirty, grimy and inadequately cleaned. The bathrooms and toilets were not designated for each sex. Screenings: There were missing screens in the bathroom windows and box screens on other windows were torn and/or vandalized. Railings: There was a large open space in the second floor guard railings presenting a hazardous situation for minors and others. Inspector Pergament made a routine reinspection of the Crosby Apartments during September, 1986, and observed that three of the four required fire extinguishers had been replaced. He also observed that the screens had been replaced except one window in a bathroom. All other violations which were observed during the March 24, 1986, inspection still existed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner enter a Final Order finding the Respondent guilty of violations listed in the Notice to Show Cause issued on March 25, 1986, to the Crosby Apartments, license number 60-017265 and imposing a civil penalty assessment of $2,100.00 or $300.00 per violation as found herein. RECOMMENDED this 18th day of December, 1986, in Tallahassee, Florida. JAMES E. BRADWELL 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 18th day of December, 1986. COPIES FURNISHED: Lynne A. Quimby, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 R. O. Crosby 478 East Main Street Pahokee, Florida 33476 R. Hugh Snow, Director Division of Hotels and Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Thomas A. Bell, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32303
The Issue The issue for consideration in this case is whether Respondent's license as a real estate salesperson in Florida should be disciplined because of the matters set forth in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Division of Real Estate, was the agency in Florida responsible for the regulation of the real estate profession and the licensing of real estate professionals within this state. Respondent was licensed as a real estate sales person and employed as such in association with Today Real Estate, Inc., a real estate corporation trading as Re/Max Today, located at 2451-1 McMullen Booth Road in Clearwater, Florida. On July 16, 1997, James E. Brown and his wife submitted an offer to purchase a house located at 9813 Palmer Drive in New Port Richey. The offer was submitted by the Browns through their real estate agent, Nancy Riley, to the sellers who were represented by Respondent. As a part of the sales package, a home inspection report was completed on July 21, 1997, which indicated that the "air conditioning does not appear to be cooling enough." Thereafter, Respondent contacted Alvarez/Taylor, a plumbing and air conditioning company, to examine the unit and a representative of that company, William Taylor, went to the property on July 25, 1997, to inspect the unit. When he arrived, he found no one there and the house locked. He contacted his dispatcher who advised him to wait, and within a few minutes, Ms. Riley showed up. She let him in the house to do the inspection. The unit was low on freon, but the big problem with the unit that Taylor found was that it was old -- about 13 years old -- and at that age, he contends, units usually lose freon. He made an oral report to Ms. Riley who authorized him in writing to do whatever work was necessary on the unit to get it working properly. He installed the freon but that did not completely correct the problem. He advised Ms. Riley that he felt the unit should be replaced because of its age. She did not seem concerned about it, but she did not authorize the repairman to replace it. When he had done what he could do, short of replacing the unit, she again signed the work order, indicating the work had been done, and he gave her the pink copy of the form. This form showed his recommendation that the unit be replaced. According to Respondent, Ms. Riley called her after the air conditioner repairman had been at the house. She said the unit was working but was an older unit and somewhere down the line would have to be replaced. Respondent also claims that Ms. Riley told her she, Ms. Riley, had called Mrs. Brown and read her the report, and the Browns "were OK with it." Respondent did not see the repairman's report until July 28, 1997. At that time, she verified the repair charge of $140.00, and when she saw the recommendation for replacement on the form, she was upset by it. Respondent claims she had not been told by Ms. Riley that there was a recommendation for replacement, and she wanted to investigate the matter. She called Ms. Riley and left a message that she wanted to talk about it, and, on the recommendation of her own air conditioning repair firm, also called Alvarez/Taylor to ask for details on the recommendation for replacement. The repairman was not available, and she was unable to speak with anyone who was aware of the problem. All she was told was that the unit was old, would need constant repair, and should be replaced. When she asked to speak with the owner, he refused to speak with her. After several unsuccessful attempts to get information from Alvarez/Taylor, still on July 28, 1997, Respondent called Ms. Riley again and was told, she claims, that the situation was not so bad and the replacement recommendation was not immediate; that the Browns knew of the situation and were OK with it; and that the Browns hoped to get another year use out of the existing unit. Respondent claims she told Ms. Riley at that time she intended to remove the recommendation for replacement from the inspection report if she didn't hear back from Alvarez/Taylor, and that Ms. Riley agreed. Ms. Riley disputes this. Thereafter, she removed the recommendation for replacement from the inspection report, and on July 30, 1997, at the closing, Respondent gave the buyers an altered copy of the report of the air conditioning repairman. On this copy, the notation in the place reserved for recommendations that the unit was 13 years old and should be replaced was not present. The closing went forward and was consummated, and the Browns were given a copy of the altered inspection report. Almost a month later, on August 26, 1997, after the closing, Alvarez/Taylor furnished the Browns with a copy of the inspection report dated July 25, 1997 which reflected, in the space reserved for recommendations, that the unit should be replaced. The unit failed, and on September 3, 1997, Alvarez/Taylor replaced the unit due to its age and condition. The replacement cost the Browns $2,315.00. When the Browns started to look into the matter, and enlisted the aid of their agent, Ms. Riley, they also contacted Respondent who told them that she had altered the inspection report because she believed she had the authority to do that as a realtor. Respondent claims she was not trying to hide anything by altering the inspection report, nor was she trying to limit the Browns "or their representatives" access to the unit. She further contends she did not intend for anyone to reply on the altered inspection report. She says she believed everyone who needed to know, Ms. Riley and the Browns, were aware of the actual recommendation for replacement, and she was merely trying to correct the situation since she could not get what she considered to be appropriate information from Alvarez/Taylor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order finding Respondent, Margaret L. Page, guilty of concealment and breach of trust, imposing a suspension of her license as a real estate salesperson for six months under such terms and conditions as the Commission deems appropriate, and imposing an administrative fine of $500.00. DONE AND ENTERED this 29th day of September, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1999. COPIES FURNISHED: Ghunise Coaxum, Esquire Division of Real Estate Department of Business and Professional Development 400 West Robinson Street Suite N-308 Orlando, Florida 32801 David C. Levenreich, Esquire 406 South Prospect Avenue Clearwater, Florida 33756 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The issue in this proceeding is whether Respondent's motel license should be disciplined.
Findings Of Fact Respondent holds a motel license, number 2200031. The motel is located at 4140 West Highway 90, Lake City, Florida. 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. 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. 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. 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. 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. 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). 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).
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
The Issue Whether existing Rule 21F-20.009, Florida Administrative Code, is, as a matter of law, an invalid exercise of delegated legislative authority.
Findings Of Fact There were no findings of fact to be made.
