The Issue There were four cited violations: Failure to keep daily medical administration records. Failure to document monthly fire drills. Violation of fire code by having bolts and chains on front and back door. Violation of fire code by having a door in a resident's room blocked by the resident's bed. Lauchner admitted these facts and DHRS proved the facts of allegations. However, there is an issue of law regarding whether all or part of the fire code violations apply to an ACLF which has less than three residents. Neither party filed proposed findings although DHRS filed copies of the applicable rules as a late filed exhibit and Ms. Lauchner filed a letter which contained her arguments but no proposed facts.
Findings Of Fact Mildred Lauchner is licensed by DHRS to operate Lauchner ACLF. This facility is licensed for three residents but it has never had more than two residents at one time. Mildred Lauchner is a mature white female who has worked at hospitals and nursing homes as an aide. She has operated an ACLF for several years and has a good general reputation with DHRS. She does this primarily alone with the assistance of a cleaning person who comes several times per week. Ms. Lauchner exhibited confusion about the sequence of events which lead to these fines being levied. Residents at the Lauchner ACLF are primarily elderly bed-ridden persons who do not need nursing care. On January 29, 1985 an inspection was conducted of Lauchner ACLF by DHRS. A copy of the inspection report was introduced as PEX 1. This inspection revealed various Class III deficiencies. A copy of this report was presented to Mildred Lauchner on February 23, 1985. She had 30 days to correct the deficiencies from the date of the deficiencies. On March 22, 1985 Lauchner ACLF was inspected. Four of the deficiencies were not corrected. Daily medication records were not being kept as required, there was no documentation of monthly fire drills, locks were on exit doors and a bed in a bedroom blocked an outside door. On May 22, 1985 the Lauchner ACLF was reinspected. Of the deficiencies previously noted in paragraph 5 above, the monthly fire drills had been documented and one of the exit doors had been brought into compliance with the life safety code. Lauchner ACLF had at least three exterior doors: a front door, a back door and door to the outside of the house in a bedroom. On June 4, 1985 the DHRS served an administrative complaint on Mildred Lauchner seeking to impose a total fine of $700.00 broken down as follows: $150.00 failure to keep daily medical administration records. $100.00 failure to document fire drills. $250.00 failure to have only simple locks on exit doors and having bolts or chains on such doors. $200.00 blocking an "exit" door in a bedroom.
Recommendation Having found that Lauchner ACLF was in violation of 10A- 5.24(1)(a)(3), Florida Administrative Code, it is recommended that the civil penalty of $150.00 be levied against Mildred Lauchner, the licensed operator. DONE AND ORDERED this 14th day of February 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February 1986. COPIES FURNISHED: David Pingree, Secretary Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 Steve Huss, Esquire General Counsel Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 Carol Wind, Esquire District V Legal Counsel 2255 East Bay Drive Clearwater, Florida 33518 Mildred Lauchner Lauchner ACLF 404 Madison Avenue North Clearwater, Florida 33515
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.
The Issue The issues to be resolved are whether Respondent performed repairs to septic tank systems without obtaining the required permits in three different instances, in violation of Florida Administrative Code Rule 64E-6.022, and if so, what penalty should be imposed for the violations proven.
Findings Of Fact The Department, an agency of the State of Florida, has responsibility for the regulation of septic tank contractors pursuant to Chapters 381, 386 and 489, part III, Florida Statutes. The Respondent, Scott Womble, is a resident of the State of Florida and has been authorized by the Department to provide septic tank contracting services. 5168 Pimlico Drive In 2003, Respondent replaced the drainfield on the real property located at 5168 Pimlico Drive, Tallahassee, Florida. A permit for the repair of the drainfield was issued in 2003, which listed Respondent as the agent for the permit applicant. In 2006, Respondent pumped out the septic tank at the Pimlico Drive location. Pumping out the septic tank does not require a permit. In 2006, Respondent also installed new "old style" chambers and end caps. Chambers are used to repair the drainfield. Repair of the drainfield requires a permit. A review of the records for the Leon County Health Department REHOST database revealed that no permits had been applied for or obtained for any work in 2006, 2007 or 2008 at the Pimlico address. 1351 Cochise Trail On or about December 19, 2008, Alex Mahon and Kathy Davis from the Leon County Health Department, Environmental Health Division, went to real property located at 1351 Cochise Trail in Tallahassee. Mahon and Davis went to the property in response to a phone call received from Respondent requesting the verification of a site evaluation. Site evaluations are required to be completed as part of the application process for a permit for septic tank installation. When Mahon and Davis arrived at the property, no one from Respondent's company was present. However, upon their arrival they observed that the septic tank and drainfield had been installed. A permit application had been submitted for the work at 1351 Cochise Trail. However, the application was incomplete and the permitting fee had not been included with the application. Accordingly, no permit had been issued for the work that was already completed at the time Mahon and Davis visited the site. Later that day, Respondent provided the missing documentation required for the issuance of the permit, and paid the permitting fee. At that time, a permit for the work was issued. 2207 Bannerman In January 2009, Kathy Davis from the Leon County Health Department received a call that work was being performed at 2207 Bannerman Road, which was the location for the La Hacienda Restaurant. She visited the site to see what work was being performed. At the time of Ms. Davis' visit, there was no work being performed at the site. There was, however, equipment present at the location and excavation of the drainfield had been performed. Used drainfield chambers had been dug up and were present on the site as well. No permit had been obtained for drainfield repair. Ms. Davis could not say whether any drainfield had been installed. She could only state with certainty that the area containing the drainfield had been excavated. Ms. Davis was aware that Respondent had been pumping out the septic tank on the property, which did not require a permit.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Department of Health enter a Final Order finding Respondent guilty of Count I and issuing a letter of warning; finding Respondent guilty of Count II and imposing a $750 fine; and dismissing the charges in Count III. DONE AND ENTERED this 10th day of November, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 10th day of November, 2009.
The Issue Whether Respondent is guilty of violating Sections 509.221(1) and (7) and 509.032, Florida Statutes, and Florida Administrative Code Rules 61C-1.004(5), (6), and (13), 61C- 3.001(2), as set out in the Administrative Complaint dated March 24, 2003.
Findings Of Fact The Department of Business and Professional Regulation, Division of Hotels and Restaurants (DHR) is the State Agency charged with regulating the operation of hotel establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes. At all times material hereto, Respondent has been licensed by DHR or otherwise subject to DHR's jurisdiction, pursuant to issued License No. 26-00783. Respondent's last known business address is Clark Apartment and Rooms, 9762 Bayview Avenue, Jacksonville, Florida 32208. On February 3, 2003, and again on March 10, 2003, a DHR sanitation and safety specialist, John Phelan, inspected Respondent's premises. On February 3, 2003, the initial inspection, Mr. Phelan was accompanied by his superior, David Futlon. At the February 3, 2003, initial inspection, the following deficiencies were observed by both inspectors and noted for Respondent by Mr. Phelan: No proof was observed that the smoke detectors were interconnected as required by law and as stated by management. The door of a gas oven was held in place by a garden spade. Live roaches were on the floor and climbing the walls around the oven. The inspectors observed a stained mattress and a missing mattress pad on the bed in room They also observed that the second floor bathroom was out- of-order, and that shower curtains and shower stalls were dirty with soap scum. On March 10, 2003, Mr. Phelan returned to Respondent's premises by himself and noted that the foregoing problems/violations remained. According to both inspectors, the most serious violation was that there was no documentation that the smoke detectors were interconnected. This is a critical violation because it could present a potential fire hazard. The next violation that was found to be critical was that there was "a garden spade holding the oven door closed." This was seen as a violation because of the potential for fire. Next down the urgent and critical scale was the presence of live roaches around the oven. The absence of a mattress pad on room 17's mattress and the stain on the mattress were of somewhat less concern. However, these bedding problems are violations because they pose a sanitary issue. The next-ranked violation was that the second floor bathroom was out-of-order. The bathroom also presented a lesser sanitary issue, which was that the shower curtain and shower stall were dirty with soap scum. Based on the foregoing uncorrected deficiencies, Mr. Phelan caused an administrative complaint to be issued against Respondent on March 24, 2003, alleging Respondent's violation of Chapter 509, Florida Statutes, and/or the administrative rules promulgated thereunder. Although it was demonstrated at hearing that Mr. Clark, Respondent's principal, had been attempting, between the two inspections, to fix the originally-cited deficiencies, and although some progress at renovation had been made, most problems had not been fully addressed as of the date of the follow-up inspection on March 10, 2003. The credible evidence and testimony as a whole show that Mr. Phelan had recognized that a gas heater which had been cited at the initial inspection had been disconnected by the date of the second inspection and that it was no longer in use at the time of the second inspection. Therefore, the gas heater had been crossed off the notification to Respondent by Mr. Phelan and had not been cited as a violation in the administrative complaint. The stove also had been disconnected prior to the re-inspection. The gas heater and gas stove were disconnected at the same time, so propping the stove door open or closed with a spade had no significance with regard to fire hazard. Like the heater, the stove should have been removed from the premises as a safety precaution, but because Mr. Phelan did not know that the stove had been disconnected when he made his re-inspection, it was cited and included in the administrative complaint. The reason the disconnected stove was still present on the premises was because Respondent was fumigating for roaches by setting off "roach bombs" inside it. The fumigation of the roaches in an area where all other exit holes for them were intentionally sealed had resulted in some dead roaches, but many live roaches had fled into the kitchen in the vicinity of the stove. The live roaches were observed by all the witnesses who saw the kitchen on or about the re-inspection date. The testimony of several witnesses was credible that the upstairs bathroom's sink and tub had been repaired prior to the re-inspection. Mr. Musselwhite recalled credibly that he had screwed the faucet handles back on the tub between the two inspections. However, the testimony of Mr. Musselwhite that he was using the tub and sink upstairs at the time of the re- inspection is not credible. The greater weight of the credible evidence is that the tub and sink upstairs might have been repaired, but they were not actually in working order at the time of the March 10, 2003, re-inspection, because the water had not yet been turned back on. The evidence is clear that plaster board had been installed in the shower by the date of the re-inspection and that this was done to deal with the prior notice concerning discoloration. A dispute among the witnesses as to whether the discoloration on the old shower walls was soap scum, discoloration by scum removers, or mildew cannot be resolved. However, it was proven that, despite several changes of shower curtains between the two inspections, the shower curtains present on the re-inspection date remained covered with soap scum and/or mildew. Respondent admitted that the lack of a mattress pad on the mattress in room 17 on the date of re-inspection was an oversight. It was proven that a mattress from a first floor room had been moved upstairs to room 17. In the opinion of Respondent's witnesses, this constituted, a "new" mattress which was not stained. In this situation, Mr. Phelan's observation of the mattress stain is more credible. On his first inspection, Mr. Phelan told Mr. Clark that in the absence of other documentation, Mr. Clark needed to have the State Fire Marshall inspect Respondent's smoke detectors, in order to provide documentation that they were interconnected. By "interconnectedness" the parties meant that if one smoke detector sounded, then all of the smoke detectors throughout the hotel should also sound. Mr. McGee and Mr. Clark testified that between the two inspections the issue of the smoke detectors had been "looked into" with employees of Home Depot and at the local fire department. Mr. Clark stated that he had contacted the Jacksonville Fire Department, which would not give him any documentation, but its employees agreed to come and inspect his smoke detectors. Mr. Clark testified convincingly that he had purchased and installed smoke detectors from the Home Depot which did not provide written documentation of interconnectedness but which could be tested for interconnectedness by pushing their buttons. He maintained that if the inspector had punched the button on any single smoke detector on the re-inspection date, the interconnectedness of all the smoke detectors would have been demonstrated by their all "going off" at once. The inspectors did not punch the smoke detectors' buttons during the two inspections because they could not reach the buttons, as they had no ladders. Respondent was written-up by DHR on both occasions because written documentation of interconnectedness was not provided and because interconnectedness was not otherwise demonstrated. In other words, Respondent provided neither papers showing interconnectedness nor a physical demonstration of interconnectedness during the second inspection.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, shall enter a final order: Finding Respondent guilty of violating Sections 509.221(1) and (7), Florida Statutes, and Florida Administrative Code Rules 61C-1.004(5) and (6), and 61C-3.001(2), and not guilty of violating Florida Administrative Code Rule 61C- 1.004(13); Ordering Respondent to pay an administrative penalty in the amount of $2,500.00, due and payable to the Department of Business and Professional Regulation, Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399, within 30 days of the final order; Requiring Respondent to attend a Hospitality Education Program class within 60 days of the date of the final order and provide proof thereof to the Department of Business and Professional Regulation Division of Hotels and Restaurants; and Requiring that Respondent pass a re-inspection of its premises within the same 60 days set out in (3), above. DONE AND ENTERED this 14th day of July, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 14th day of July, 2004.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 2330422. Respondent’s license authorizes Respondent to operate a public food service establishment known as Emily’s Restaurant No. 2 at 16 West Flagler Street, Miami, Florida (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location (the subject restaurant).2 At all times material hereto, Leonardo Hernandez was an experienced and appropriately trained investigator employed by Petitioner as a Sanitation and Safety Specialist. Mr. Hernandez’s job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. Violations are classified as either critical or non-critical. A critical violation is one that represents an imminent threat to the general public. A non- critical violation is a violation that does not rise to the level of a critical violation. On April 18, 2006, Mr. Hernandez inspected the subject restaurant. Based on that inspection, Mr. Hernandez prepared a report that noted multiple violations of pertinent rules. Prior to leaving the premises on April 18, 2006, Mr. Hernandez discussed his findings with the owner of the restaurant. Mr. Hernandez found that critical and non-critical violations existed and ordered the owner to correct the violations. On May 22, 2006, Mr. Hernandez conducted a follow-up inspection of the subject restaurant for the purpose of determining whether the violations he had ordered corrected had been corrected. Petitioner proved that the following violations existed at the subject restaurant at the time of the initial inspection on April 18 and at the time of the follow-up inspection on May 22, 2006. PARAGRAPH 1 Section 3-302.11(1)(a) of the Food Code requires that raw meat be stored so that it will not contaminate ready-to-eat food. On both April 18, 2006, and May 22, 2006, Mr. Hernandez observed that Respondent had stored raw meat above ready-to-eat food in violation of the cited Section of the Food Code. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection. This is a critical violation because of the manner in which Respondent stored the raw meat could have resulted in the contamination of the ready-to-eat food. PARAGRAPH 2 Section 5-202.12(A) and (B) of the Food Code requires that a hand-washing sink utilized by employees have hot water of at least 38°C (100°F). On both April 18, 2006, and May 22, 2006, Mr. Hernandez observed that Respondent had no hot water at the hand-washing sink utilized by Respondent’s employees. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection. This is a critical violation because it pertains to basic sanitation. PARAGRAPH 3 Section 11.4.2 of the National Fire Protection Association requires restaurants to keep oven hoods clean so as to prevent the build-up of greasy or oily sludge. On both April 18, 2006, and May 22, 2006, Mr. Hernandez observed that Respondent had failed to clean the oven hood and that greasy or oily sludge had built-up on the oven hood. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection. Mr. Hernandez testified that this was a non-critical violation. PARAGRAPH 4 Section 4-204.112 of the Food Code requires that food storage units have a thermometer to measure ambient temperature and requires that the thermometer be located so that it is easily viewable. On both April 18, 2006, and May 22, 2006, Mr. Hernandez observed that Respondent did not have a thermometer in a refrigerated food storage unit. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection. This is a critical violation because of the possible danger to the public that might result from the storage of food at the wrong temperature. PARAGRAPH 5 Section 4-903.11(b) of the Food Code requires that clean equipment and utensils be stored so that they are either inverted or covered. On both April 18, 2006, and May 22, 2006, Mr. Hernandez observed that Respondent had failed to store glasses, cups, utensils, pots, and pans in compliance with Section 4-903.11(b) of the Food Code. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection. This is a critical violation because it pertains to basic sanitation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order that finds that Respondent committed the violations alleged in paragraphs 1 through 5 of the Administrative Complaint and imposes administrative fines against Respondent as follows: $1,000.00 for the paragraph 1 violation; $1000.00 for the paragraph 2 violation; $500.00 for the paragraph 3 violation; $1,000.00 for the paragraph 4 violation; and $500.00 for the paragraph 5 violation. In addition, the final order should require Respondent’s owner to attend, at Respondent’s expense, an educational program sponsored by Petitioner’s Hospitality Education Program. DONE AND ENTERED this 8th day of November, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 8th day of November, 2006.
The Issue Whether Respondents' apartments are subject to regulation by the State of Florida, Division of Hotels and Restaurants? If so, did the Respondents violate the rules and regulations?
Findings Of Fact Between 1983 and January 3, 1999, Respondents jointly owned five apartment buildings of four units each on 29th Street, Niceville, Florida. The buildings were situated on one parcel of land, on the same side of the street, with common areas which are separated by a paved driveway. Each building was assigned a separate street address by the City of Niceville postal service. On January 4, 1999, by quit claim deed the Respondents transferred ownership interest in the buildings and property. By building address, the ownership of the four units is as follows: 1417 Charles Reid 1409 Robert Dukes 1415 Jane Reid 1411 James K. Dukes The fifth building was not transferred and remained the property of Respondents, along with the common areas and driveways separating the buildings. (See Petitioner's Exhibit 7.) The apartments are regularly managed by Mrs. Jackie Jones. The leases for the apartments are for a period in excess of six months. Respondents have never licensed the apartments with the Division of Hotels and Restaurants as a public lodging establishment. Following a complaint by the Department of Health on July 13, 1998, the Division directed that an inspection of the property be conducted by Filip Perez, a Sanitation and Safety Specialist employed by the Division of Hotels and Restaurants. Mr. Perez has been employed by the Division for 18 months, and has 20 years experience in the regulation of food service and lodging with the U.S. Army, and one year of experience with the Walton County Health Department. His duties with the Division include inspection of public lodging establishments and public food service establishments. He conducts between 100 to 150 inspections per month; of those, about 25 are of public lodging establishments. Mr. Perez investigated the complaint on July 21, 1998. The occupant of the apartment who initiated the complaint with the Department of Health was not available to allow inspection of her unit. Mr. Perez, pursuant to Division policy, conducted a routine inspection of the property. A routine inspection of a public lodging facility involves checking approximately 44 categories, including safety and licensure status. Critical violations are noted in red on the form and marked with an asterisk. As part of his inspection, Mr. Perez observed that there were several apartment buildings with approximately 20 total units on one lot, and classified the property on his inspection form as "nontransient apartment." Before he visited the property, Mr. Perez conducted a record check and determined that the property was not licensed because it did not appear in the Division's licensure data base. In the course of his inspection, Mr. Perez interviewed a tenant of Apartment C, Building 1409, who permitted Mr. Perez to test the tenant's smoke detector, which Mr. Perez determined was inoperative. He also determined that there were not fire extinguishers installed on the outside of the buildings. Respondents admitted that fire extinguishers are not furnished to the tenants. Public lodging establishments are required to be protected by smoke detectors, through NFPA 101, 19-3.4.4.1 and Section 509.211. Fire extinguishers with approved service tags are required by NFPA and Rule 61C-1.004(9)(a), Florida Administrative Code, in public lodging establishments. Mr. Perez also found a broken stair step at Building 1411 and discovered that there were not vacuum breakers (back- flow preventors) installed at the outside spigots to prevent back flow into the plumbing system. Mr. Perez filled out a lodging inspection report listing five violations, including the lack of licensure. The lack of fire extinguisher, inoperative smoke detector, broken step, and lack of licensure were noted as critical violations. The lack of vacuum breakers was not noted as a critical violation. A copy of the report was sent to Respondents by certified mail. On September 11, 1998, Chuck Franzalia, a Sanitation and Safety Specialist with the Division of Hotels and Restaurants, conducted a re-inspection of the property at the direction of the Division. Mr. Franzalia has been employed in that capacity with the Division for six years; before that, he was employed for 18 months in a transitional office for food inspection and for 15 years with the Okaloosa County Health Department as an environmental health specialist. Mr. Franzalia could not affirm or deny the NFPA violations, but observed that there were no vacuum breakers on the spigots, and the broken step had not been repaired at Building 1411. He conducted a pre-hearing inspection on May 4, 1999, and observed that the vacuum breakers had been installed; however, he observed no exterior fire extinguishers, and the broken step at Building 1411 was completely missing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the case be dismissed. DONE AND ENTERED this 31st day of August, 1999, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 August, 1999. COPIES FURNISHED: Gail Hoge, Esquire Gabrielle D'Alemberte, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles W. Reid, Esquire Post Office Box 151 Valparaiso, Florida 32580 Dorothy W. Joyce, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this case is whether Respondent's certification as an electrical contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County Construction Licensing Board (Board) was the county agency responsible for the certification of members of the construction trade and the regulation of that trade in Pinellas County, Florida. Respondent, Gabriel Varro, was certified as an electrical contractor by the Board and held such certification at all times pertinent hereto. On June 18, 1998, Nicholas Sasso, a building inspector with Pinellas County, visited a construction site at 24698 U.S. Highway 19 in Clearwater, Florida, where Respondent was engaged in electrical work. Mr. Sasso was supposed to conduct an inspection of electrical work done by the Respondent at that site but when he arrived at the construction site, at 11:45 a.m., was unable to gain entry to the site. At that time, Mr. Sasso called Respondent by telephone and left a message for Respondent to call back to reschedule the inspection. Respondent did not call in for re-inspection until October 23, 1998, over four months later. In response, however, Mr. Sasso again went to the site for an inspection on that day, where he found at least five violations of the building code for which he issued red tags (requirements for correction). At that point, Respondent had 15 working days to take corrective action, pay the red tags, and call for re-inspection. Mr. Sasso also called Respondent and left a message on the answering machine, but Respondent did not call back. On December 8, 1998, the Building Department's computer produced a notice of Respondent's failure to take sufficient corrective action or pay the red tags. Mr. Sasso returned to the site on November 16, 1998, for a follow-up and found that the Respondent had failed to take the required corrective action. Mr. Sasso returned to the site on December 8, 1998, and found the violations had still not been corrected. On December 30, 1998, the computer again indicated Respondent's failure to correct or pay the red tags, so Mr. Sasso went to the site, saw the deficiencies had not been corrected, and issued to Respondent, a Notice of Violation for failure to take corrective action and to pay red tags, and for electrical violations of the National Electrical Code and/or the standard building code which he had observed on several prior official visits to the construction site. Respondent was advised on the Notice of Violation that failure to correct the deficiencies within 15 working days of the citation would result in a court citation. Respondent called Mr. Sasso that same day, upon receipt of the Notice of Violation, and indicated he would comply with the requirements of the code, but he had not done so when Mr. Sasso returned to the site on February 4, 1999, to conduct a follow-up inspection, appropriate action has not been taken. Respondent claims he paid the red tags even though he did not cause the defects; and requested the Building Department to take his name off the permit. Respondent explained the mix-up by claiming the owner of the property had taken out the permit himself and put his, Respondent's, name on it as contractor because Respondent had agreed to do part of the project to correct some work done improperly by a tenant of the park which had resulted in a violation being issued to the park owner. The majority of the deficiencies discovered, Respondent claims, were located inside a structure on the property to which he never got access. Respondent also contends he limited his work to correction of an improper connection from the meter to the riser. He claims he advised the property owner that the only way he, Respondent, would call for an inspection would be if he were provided access to the structure so he could let in the inspector. It appears that because of a subsequent determination that the entire project violated the zoning laws, the job was cancelled by the owner. On February 17, 1998, Mr. Sasso also observed electrical work being carried on at an RV park in Pinellas County. Because Mr. Sasso could not recall any permit having been pulled for electrical work at that site, he stopped to see what was going on and identified himself to the workman on the job. The worker identified himself as Respondent and gave Mr. Sasso his card. Respondent advised Mr. Sasso of what he was doing, and when Mr. Sasso advised Respondent that he could not legally do the work without first obtaining a permit, Respondent indicated he was going to get it. Mr. Sasso noted that a trench had been dug near a power line, creating a potentially dangerous situation, and that five 50-watt electrical outlets had been installed on pedestals outside the front of the clubhouse. This was confirmed by the proposal submitted to the client by Respondent on September 2, 1998, and accepted by the client on December 4, 1998. The proposal called for the electrical permit to be included in the total contract price of $7,000. Respondent admits to giving the owner of the property a proposal for electrical work to be done, but claims, as the proposal form indicates, the owner was to dig the trench. The owner had the trench dug, as called for, and also placed the pedestals. The digging and the placing of the pedestals were an integral part of the project which Respondent had agreed to perform, and those actions required a permit to be issued prior to starting the work. The required permit was not obtained by Respondent or anyone else, and the work in progress has not been completed. Petitioner has suggested that Respondent be fined $750.00 for the violation alleged in Count One; $300.00 for the violation alleged in Count Two; and $750.00 for the violation alleged in Count Three. Counts One and Three are classified by statute as "major" violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board, enter a final order assessing an administrative fine of $1,050.00 for the violations alleged in Counts One and Two. DONE AND ENTERED this 11th day of August, 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 11th day of August, 1999. COPIES FURNISHED: William J. Owens, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 33773-5116 Gabriel Varro 1910 Union Street Clearwater, Florida 33763-2249
The Issue The issue is whether Respondent committed the violations alleged in the Administrative Complaint dated October 4, 2005, and if so, what penalty should be imposed.
Findings Of Fact Based on the evidence and the testimony of witnesses presented, and the entire record in this proceeding, the following findings of fact are made: At all relevant times, the Division is the state agency responsible for licensing, regulating, and inspecting public lodging establishments. With particular relevance to this case, it is the Division's responsibility to establish and enforce rules pertaining to sanitation and public health and safety in accordance with relevant provisions of the Florida Statutes; to ensure compliance with its rules; and to impose discipline in appropriate circumstances. At all relevant times, Green Terrace was licensed by the Division as a public lodging establishment under license number 1605642. At all relevant times, Green Terrace was located at 260 Southwest 8th Street, Pompano Beach, Florida 33060, and was owned by Peter Sporea (Mr. Sporea). At all relevant times, Larry Torres (Mr. Torres), a certified food manager and specialized fire safety inspector, was employed by the Division as a sanitation and safety inspector. Mr. Torres' duties include conducting inspections of Division licensees, including Green Terrace. On or about August 5, 2005, Mr. Torres conducted a routine inspection of Green Terrace. Based upon his inspection he documented various sanitation and safety violations and issued a written warning to Green Terrace which directed that the violations be remedied within 30 days. On September 29, 2005, Mr. Torres returned to Green Terrace to conduct a re-inspection. His re- inspection revealed that the violations documented at the time of the inspection had not been remedied. Two violations observed by Mr. Torres were "critical" in that they are more likely than other violations to pose an immediate threat to public health or safety; the remaining violations were deemed by Mr. Torres to be “non-critical.” Non-critical violations are violations which pose risk to the public health or safety, but are not considered to present an immediate threat. The violations which Mr. Torres observed and documented at the inspection, and again at the re-inspection were: Violation 01-09, based upon Mr. Torres' observation that a portable fire extinguisher located near apartment four was not charged. Failure to provide and maintain fire extinguishers in an operational condition is a critical violation. Violation 12-02, based upon Mr. Torres' observation of a loose railing on the second floor balcony by apartment seven; all building structural components, attachments and fixtures shall be kept in good repair. This violation is a critical violation due to the risk of serious injury if a person were to fall from a second floor balcony. Violation 13-01, based upon Mr. Torres' observation of a door in disrepair and a broken window in or near apartment 10. This is a violation because building structural components must be kept in good repair. Violation 25-01, based upon Mr. Torres' observation that excessive trash was observed in various places on the property grounds. For example, discarded equipment such as stoves was observed in hallways on the second floor. Violation 26-01, based upon Mr. Torres' observation that garbage was lying loose on the ground in the fenced area where garbage cans are available for community use. This is a violation because proper disposition of garbage is necessary to prevent nuisance conditions. Violation 26-14, based upon Mr. Torres' observation that trash receptacles lacked covers. This is a violation because uncovered trash receptacles could attract pests and constitute a public nuisance. Violation 26-18, based upon Mr. Torres' observation of a soiled waste receptacle that was attracting pests. This is a violation because dirty receptacles may attract pests, as they did here, and constitute a public nuisance. Mr. Torres and Mr. Sporea were the only witnesses at hearing. The trier of fact closely observed each, and evaluated such factors as their demeanor under oath; their candor with the fact-finder and with the opposing party under cross-examination; their opportunity to speak from personal knowledge concerning relevant facts; and their respective backgrounds, training and experience. Mr. Torres was forthright, direct and entirely credible. Mr. Sporea dissembled, and provided no persuasive testimony with respect to any of the material allegations of the Administrative Complaint. Upon a finding that a public lodging establishment licensee has operated in violation of relevant provisions of the Florida Statutes or rules promulgated thereuder, the licensee is subject to fines not to exceed $1,000.00 per offense; mandatory attendance at an educational program sponsored by the Hospitality Education Program; and the suspension, revocation or refusal of a license. In this case the Division has proposed that Respondent pay an administrative penalty in the amount of $2,700.00, and attend, at personal expense, a Hospitality Education Program approved by the Division. The proposed penalty is well within the Division's authority and is reasonable and generous under the facts and circumstances of this case.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner enter a final order finding the violations described and imposing an administrative fine on Green Terrace in the amount of $2700 due and payable on terms prescribed by the Division; and requiring the owner and/or manager of Green Terrace to attend, at the licensee's personal expense, an educational program sponsored the Hospitality Education Program or other educational program approved by the Division, within 60 days of the date of the final order, and to provide proof thereof to the Division. DONE AND ENTERED this 24th day of July 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2006.
