Findings Of Fact The Callahan Apartments, owned by Eugene T. Callahan, are located at 41 East Fourth Street in Jacksonville, Florida. These apartments are licensed by the Division of Hotels and Restaurants under license number 26-01943H. Eugene T. Callahan was licensed on September 15, 1980, the date of the Division's initial inspection, and was 50 licensed through March 16, 1981, the date of the hearing in this case. On September 15, 1980, the Division's inspector made the initial inspection of the premises located at 41 and 51 East Fourth Street, and found the following violations of Sections 7C-1.03 and 7C-1.04, Florida Administrative Code: Failure to provide fire extinguishers for Building 41 and 51 (Rule 7C-1.04) Failure to provide adequate number of electrical outlets in each of the rental rooms (Rule 7C- 1.04); Failure to provide or install proper exit lights (Rule 7C-1.04); Failure to maintain walls and ceilings through- out Buildings 41 and 51 (Rule 7C-1.03); Failure to repair bathroom floor of Apartment 3 in Building 51 (Rule 7C-1.03); Failure to repair bathroom wall of Apartment 2 of Building 51 (Rule 7C-1.03); Failure to repair or replace stoves in Apartments 1 and 4 of Building 51 (Rule 7C-1.03); Failure to repair or replace refrigerator in Apartment 4 of Building 41 (Rule 7C-1.03); Failure to close all holes leading to outside to keep out vermin (Rule 7C-1.03). A call-back inspection of Buildings 41 and 51 was made on October 23, 1980, to check on the progress of the Respondent in correcting the above violations. On this date all violations still existed, and Mr. Callahan was given until November 14, 1980, to make the necessary corrections. Subsequent inspections were conducted on November 18 and December 10, 1980, on which dates the corrections had not been made and the violations continued to exist. In the morning of the date of the hearing, March 16, 1981, a final inspection was conducted; the only violation corrected by Mr. Callahan was the placing of approved fire extinguishers in both Building 41 and Building 51. Photographs were taken by the inspector showing the conditions charged as violations in the show cause notice on the date of the initial inspection and at the time of the last inspection just prior to the hearing. Mr. Callahan asserts that he has corrected all of the violations that existed on September 15, 1980, except the electrical outlets (listed above as violation b) . Nevertheless, the photographs which had been taken by the inspector and were received in evidence, demonstrate the continued existence of the violations on the hearing date. Thus, the Respondent's testimony has been discounted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent, Eugene T. Callahan, pay a civil penalty in the amount of $1,000. The Respondent may elect to expend the amount of this penalty to correct the above-cited violations rather than pay the amount directly to the Division. If the Respondent should elect the second method, he shall submit to the Division valid receipts and work orders showing the measures taken to correct the above-cited violations, totaling an amount of at least $1,000.00. Regardless of the method chosen by the Respondent to pay the civil penalty Recommended, he shall have 60 days from the date of the Final Order in which to correct all of the above-cited violations.. If this is not done within 60 days, it is RECOMMENDED that the Respondent's license be suspended until such time as the violations are corrected. THIS RECOMMENDED ORDER entered on this 16th day of April, 1981. 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 16th day of April, 1981. COPIES FURNISHED: James N. Watson, Jr., Esquire 725 South Bronough Street Tallahassee, Florida 32301 Eugene T. Callahan 7528 Arlington Expressway Apartment No. 1318 Jacksonville, Florida 32211
Findings Of Fact The following findings of fact are based upon the evidence presented, Respondent's admissions and matters deemed admitted due to Respondent's failure to timely respond to Petitioner's Second Request for Admissions: At all times material hereto, Respondent was licensed by the Construction Industry Licensing Board as a registered air conditioning contractor with license number RA-0035721. He was the qualifying agent for Wallace's Air Conditioning and Heating. Respondent's address of record is 4710 Cypress Ridge Place, Tampa, Florida 33624, and it was to this address that notice of the hearing was sent. At no time prior to the hearing did Respondent contact counsel for Petitioner or the undersigned regarding any problem he had with the date scheduled for this hearing. Respondent did not appear, and was not represented at the hearing which commenced at 9:00 a.m. on May 11, 1988. However, at 1:56 p.m. on the day of hearing, a letter from Respondent addressed to Petitioner's counsel was filed at the Division of Administrative Hearings in Tallahassee, Florida. This letter was postmarked on May 9, 1988 and requests rescheduling of the hearing due to his being out of town on "urgent business." By Order entered on May 13, 1988, Respondent's untimely and insufficient motion for continuance was denied for failure to comply with Rule 22I-6.017, Florida Administrative Code, and this case has proceeded to the issuance of this Recommended Order in accordance with the procedures established at hearing. On or about March 18, 1986, Respondent, as qualifying agent for Wallace's Air Conditioning and Heating, entered into a contract with General Engineering and Machine Company for the installation of heating, ventilation and cooling services (HVAC) at the Sebring Square Plaza shopping mall in Sebring, Florida. The work to be performed included the installation of heating, ventilation, air conditioning and temperature control systems for stores in the mall, which included Zayre's Department Store and thirty "strip stores." The contract price for this work was $275,460. Respondent thereafter began work on the mall under this contract. However, he has never held any certificate of competency, occupational license, or registration in the City of Sebring, as required by local ordinance sections 5-18 and 5-19. On or about May, 1986 Respondent entered into a subcontract agreement with Long's Air Conditioning and Heating for sheetmetal duct work, venting of exhaust fans and installation of flex duct and grilles at the Sebring Square Plaza. The original amount of Respondent's contract with Long's Air Conditioning was $69,200, but this was increased by agreement to $72,200. On or about June 19, 1986, work on the thirty "strip stores" was deleted from this subcontract agreement, and the contract price was then reduced by $3,760, making a final contract price of $68,440. Respondent received draw requests totaling $68,440 from Long's Air Conditioning for work performed under this subcontract. Although all contracted work was performed by Long's Air Conditioning, Respondent has only made payments totaling $66,500, leaving an unpaid amount of $1,940. In connection with his work on the Sebring Square Plaza, Respondent purchased equipment and supplies from Florida Air Conditioners, Inc., in the total amount of $122,019.80, but made no payments on this account. On October 6, 1986, Respondent's account with Florida Air Conditioners was paid in full by Highway 27 Associates, the owners of the Sebring Square Plaza, who in turn charged this amount to the general contractor, General Engineering and Machine Company, by reducing the amount they paid to said general contractor on the Sebring Square Plaza. Charles R. Baldwin was the general administrator on this shopping mall job for the general contractor, General Engineering and Machine Company. In accordance with his subcontract agreement with Respondent, if Respondent did not pay his materialmen, the general contractor was responsible, and, in fact, in this case the general contractor was charged for payments made by the mall owner on Respondent's account at Florida Air Conditioners. Respondent failed to regularly attend weekly job site status meetings with Baldwin. When schedules were established, Respondent voiced no objection, but he then frequently failed to complete work in accordance with those schedules. Respondent made little effort to complete his work on time, or to make up for delays. He failed to supervise the work he was performing at the Sebring Square Plaza. On or about June 24, 1986 Respondent walked off the job without completing the work which he had contracted to perform, and this caused further delay in the mall's completion since Baldwin had to find another contractor to complete Respondent's job. Baldwin paid Respondent $174,467.70 on June 18, 1986 in connection with this job after Respondent signed an affidavit certifying that he had paid all his materialmen and subcontractors. The record establishes that said affidavit was false. With the amount Baldwin was charged for Respondent's unpaid account with Florida Air Conditioners, and the amount paid on June 18, 1986, General Engineering and Machine Company paid or was charged approximately $296,000 for work performed by Respondent, although their contract with Respondent was only $275,460. According to Bernard Verse, who was accepted as an expert in commercial construction, Respondent's failure to pay for supplies and equipment, and his failure to complete his contract with General Engineering and Machine Company constitute misconduct in contracting. In addition, Respondent failed to properly supervise the work he was performing, and for which he contracted, on this job.
Recommendation Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order suspending Respondent's license number RA- 0035721 for one (1) year and imposing an administrative fine of $5,000; provided that after the expiration of thirty (30) days from the issuance of the Final Order if Respondent pays said administrative fine in full, his license shall be immediately reinstated. DONE AND ENTERED this 23rd day of May, 1988, in Tallahassee, Florida. DONALD D. CONN 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 23rd day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5050 Rulings on Petitioner's Proposed Findings of Fact: 1 Adopted in Finding of Fact 1. 2-3 Adopted in Finding of Fact 3. 4 Adopted in Finding of Fact 4. 5 Adopted in Finding of Fact 9 6 Adopted in Finding of Fact 5. 7 Adopted in Finding of Fact 7. 8 Adopted in Findings of Fact 7, 8. 9-10 Adopted in Finding of Fact 6. Adopted in Finding of Fact 10. Adopted in Finding of Fact 6. Rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 7. Rejected as irrelevant. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Frank W. Wallace 4710 Cypress Ridge Place Tampa, Florida 33624 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue presented herein concern whether or not the Respondent failed to maintain apartments that he owns situated at the 2563 Northwest 13th Court in good repair; free of vermin; failed to keep the premises and yard clean; failed to keep the garbage in proper receptacles and to keep the license for the premises displayed in a conspicuous place as is more particularly set forth in the Notice to Show Cause filed herein dated January 3, 1984.
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. Respondent, George A. Williamson, is the owner of several apartments known as the 13th Court Apartments in Ft. Lauderdale, Florida. Those apartments are licensed by the Petitioner, Division of Hotels and Restaurants and has been assigned control number 16-3079-H. (Stipulation of the parties.) On November 22, 1983, petitioner's inspector, Daniel J. Stallone, made a routine inspection of the Respondent's apartments involved herein and found that the roof leaked in apartment number 2, that the toilet leaked in apartment number 7, that there were several torn and missing screens and that garbage and refuse were strewn all around the premises and needed attention. (Petitioner's Exhibit 1.) In addition, inspector Stallone could not find the license displayed in a conspicuous place as is required pursuant to Rule 7C-1.02(1), Florida Administrative Code. On December 8, 1983, Inspector Stallone made a callback inspection and found that none of the above-referred violations had been corrected or otherwise complied with by Respondent. Inspector Stallone issued a Notice of violation citing the Respondent with non-compliance with Rule 7C-1.02(4), 7C-1.03(1), (5), and (7), Florida Administrative Code and Section 509.221(8), Florida Statutes. (Petitioner's Exhibit 2.) Copies of the reports for the November 22 and December 8, 1983 inspections were sent to Respondent by certified mail, return receipt requested. (Petitioner's Exhibit 3.) On January 24, 1984, Inspector Stallone made a subsequent inspection and found that the roof leak had not been repaired on the premises. Additionally, he noted that there were broken screens in several apartments and that there was garbage strewn around the premises. (Petitioner's Exhibit 4.) Inspector Stallone made another inspection of the premises on July 20, 1984 and found that all of the violations for which Respondent had been cited in earlier inspections had been complied with with the exception of a roofing leak. That leak is now repaired. (Respondent's testimony and Exhibit 1.) Rosa Mae Spivey, a tenant at the apartments, has resided there for approximately seven years and is responsible for the overall maintenance and cleaning for the apartments. The structure has a flat roof. As of March 30, 1984, apartments 2, 4 and 5 were patched by Cherokee Roofing of Ft. Lauderdale, Florida. Ms. Spivey cleans the grounds surrounding the premises approximately three times per week and has had the screens repaired or replaced at least three times since she has served as manager of the apartments. Respondent paid Cherokee Roofing $475 on April 2, 1984 to repair the roof for the apartments. Respondent has placed a large dumpster for the tenants to utilize for garbage and other debris from their apartments. Respondent retains the services of a plumber, a carpenter, a general laborer and a painting and cleanup employee who responds to complaints as they are made. Respondent admits to an approximately four-month delay in correcting the roof inn repairs however, he states that due to the large number of repairs brought abort by uncaring tenants, he attempts to prioritize the repairs and schedules them as soon as practicable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Petitioner issue Respondent a written reprimand admonishing him for failure to timely correct violations for which he has been cited and request that he continuously maintain his premises in a clean and sanitary condition as required by pertinent rules and statutes. RECOMMENDED this 3rd day of December, 1984, 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 3rd day of December, 1984. COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 George Williamson 1113 Southeast 3 Avenue Ft. Lauderdale, Florida 33316 Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue is whether the Respondent's license as a registered pool contractor should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact At all times material hereto, Respondent, William Losciale, was a licensed registered pool contractor in the State of Florida, having been issued license number RP-0032951, by the State of Florida, and was the qualifier of Lynn Pools. On or about October 2, 1987, John J. Kerry entered into a contract with Respondent d/b/a Lynn Pools for the Respondent to construct a pool and screen enclosure on Mr. Kerry's property located at 633 South Little John Street in Inverness, Florida. The total cost of the pool and enclosure was $19,600.00. During construction various problems developed. Among them were delays in completion, the failure to obtain the proper permits, the installation of an inadequate and improper filter, the delayed removal of excavated dirt, the gouging up of the homeowner's yard, and the improper positioning of the septic tank after relocation. At the time the pool deck was being designed, the homeowner told the Respondent that it appeared to the homeowner that the deck was slanted towards the house and would cause flooding problems. The Respondent told the homeowner that the Respondent knew what he was doing and no such problem would develop. During construction of the pool, the homeowner pointed out to the Respondent that it appeared that the pool was being constructed higher than the patio which, if true, would also cause flooding problems. Again, the Respondent denied that the pool was being constructed higher than the patio and that flooding problems would occur. During construction, Respondent removed a rain downspout which, prior to construction, was located between the patio and the screen enclosure. The pool patio was then poured without replacing the downspout underneath the patio. As a result of one or more of the foregoing conditions, the homeowner's house was almost flooded on one occasion. Thereafter, the homeowner had to put a drain hole in the patio in an attempt to prevent future flooding. Since completion of the pool, when it rains, rainwater flows down the patio towards the house. Additionally, rainwater is directed from the roof through the gutter onto the patio towards the house and occasionally water overflows from the pool towards the house. While the house has not been flooded, the pool deck floods during certain rains. During construction, the Respondent removed all of the ground wires off electrical fixtures located in the homeowner's yard without replacing them after being requested to replace them by the homeowner. After the deck was poured, it was covered with kool deck. The kool deck was soft and had indentations in it. The Respondent agreed with the homeowner that the deck was bad and that the homeowner should not accept it. The Respondent the replaced the kool deck with river rock. The deck now has ripples in it. The Respondent tried to charge the homeowner an additional $1,200 for the river rock. The homeowner had the river rock installed for an additional $850.00 by a third party. Prior to entering into the contract for the pool and enclosure with Respondent, the home owner told the Respondent that he wanted the biggest water heater available to heat the pool water instantly. When the water heater was being installed, the homeowner questioned the Respondent whether or not the water heater was big enough to meet the homeowner's requirements. The Respondent said that it was. After installation, the heater did not come close to meeting the home owner's requirements. The homeowner then called the manufacturer of the heater and was told that the installed heater was too small. The Respondent, at the homeowner's request, then changed the heater to one that would supposedly heat the pool water faster. It did not. The homeowner then called the heating company again and was told that the new heater was only one size up from the original heater and still would not meet the homeowner's requirements. That heater remains on the homeowner's property and does not meet the homeowner's requirements. Mr. Kerry paid the Respondent $5,500.00 on December 7, 1987, which made a total of $19,000.00 the homeowner had paid the Respondent. The homeowner has paid more than $600.00 in repairing and/or correcting work that was the obligation of the Respondent. Correction of all these problems has been to the homeowner's financial detriment. In the latter part of December, 1987, the Respondent entered into an oral contract with All Wright Aluminum to have All Wright Aluminum install an L- shaped pool enclosure over the pool at the Kerry residence. The total contract price was $5,185.10. Payment for the construction was due within ten days of completion which occurred on January 6, 1988. All Wright Aluminum received a $1,000.00 payment from the Respondent on or about February 2, 1988. That payment was a check from a customer of the Respondent, made payable to the Respondent's order in partial payment on pool repairs which the Respondent made for that customer. The Respondent endorsed that check and made it payable to All Wright Aluminum. On February 15, 1988, All Wright Aluminum in compliance with the mechanic's lien law, filed a valid claim of lien against Mr. Kerry's property in the amount of $4,185.10 for failure of the Respondent to pay All Wright for the construction of the pool enclosure. On May 10, 1988, the Respondent paid All Wright Aluminum $1,000.00 towards that lien. On September 16, 1988, the Respondent paid All Wright $2,000.00 towards the satisfaction of that lien from his personal account. On September 16, 1988, the Respondent gave All Wright Aluminum a personal promissory note in the amount of $1,135.10 for the balance of the lien amount. On that date All Wright Aluminum satisfied its previously filed claim of lien. Respondent has previously been disciplined by the Florida Construction Industry Licensing Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order and therein penalize the Respondent, William Losciale, as follows: Assess a fine of $750 for the violation of Section 489.129(1)(h) Assess a fine of $750 for the violation of Sections 489.129(1)(j) , 489.105(4), and 489.119. Assess a fine of $1500 for the violation of Section 489.129(1)(m) Suspend the license of Respondent for a period of six (6) months. DONE and ENTERED this 19th day of October, 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3296 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Construction Industry Licensing Board 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-20 (1-20). COPIES FURNISHED: Jack M. Larkin Attorney at Law 806 Jackson Street Tampa, Florida 33602 William Losciale 6491 Mobile Street Inverness, Florida 32652 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
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
Findings Of Fact John and Enid Schmidt own property located at 2363 Pineland Lane, Clearwater, Florida. This Property is zoned RS-50 (single family) and is located at the City-County line with Pineland Lane dividing the incorporated and unincorporated areas at this location. The house is L-shaped and due to the lot configuration the swimming pool was placed in the L at the front of the house. This pool is screened and has been screened since it was installed some four years ago. Petitioners propose to extend the screen room 10.75 feet into the front setback area of 25 feet. The purpose of the extension is to enable Petitioners to roof this extension, apply additional roofing on two other sides of the pool enclosure, and install gutters with appropriate drains to carry off the rainwater that is now backing up against the house at the pool deck during heavy rains. When the pool was originally constructed, a French drain was installed to allow the rainwater to flow around the house; however, during recent heavy rains this drain has been inadequate to keep water from rising to the level of Petitioner's sliding glass doors. To alleviate the situation engineers have recommended the additional roofing and gutters requested to carry this water away from the pool-house area. Five of Petitioners neighbors, including the two closest to Petitioners' property, do not oppose the variance requested (Exhibit 5). One of these neighbors testified in support of the application.
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
The Issue The issues in this case are whether Respondent violated Sections 455.228, 489.127(1)(a) and (f), 489.129(1), (h), (m) and , and 489.531(1)(a), Florida Statutes (1995), 1/ and, if so, what, if any, penalty should be imposed in accordance with Florida Administrative Rule 61G4-17.001. 2/
Findings Of Fact Petitioner is the state agency responsible for regulating contractors in the state. Respondent is not licensed as a general contractor and is not the qualifying agent for Freeman Associates ("Freeman"). In April 1995, Respondent entered into a contract with Charles and Lenore Brunty to renovate the Brunty residence located at 1301 Kanab Avenue North West, Palm Bay, Florida. The contract price for the renovation was $48,494.86. Respondent provided the Bruntys with a written estimate of cost. The written estimate bears the headings, "Freeman Associates," "General Contracting," and "Property Improvements." It describes the type of work to be performed and separate costs for "Roofing," "Exterior Paint," "Exterior Windows/Screens," "Interior Woodwork," "Interior Cabinets," "Plumbing," "Electrical," "Air Conditioning/Hearing," "Interior Paint," "Flooring," and "Addition-Kitchen, Breakfast, Bath." Respondent represented to the Bruntys that he would oversee or supervise all of the renovations to their residence and would provide all permits. The contract states: Any and all work requiring permits shall be obtained by me and/or subcontractors prior to starting of any work on this project. Petitioner's Exhibit 2. Respondent obtained bids from subcontractors, oversaw their work, and charged the Bruntys for the work performed by the subcontractors. Respondent agreed to begin work on June 12, 1995. However, he performed no work before July 21, 1995. The work performed by Respondent did not comply with industry standards. Respondent removed the roof without providing adequate protection for the interior of the home. The weather damaged the ceilings and the Mexican tile. The ceilings had to be replaced by the Bruntys. The Mexican tile has not been replaced because of cost. On September 9, 1995, the Bruntys cancelled the contract. On September 19, 1995, Respondent presented a bill to the Bruntys for $16,826.38. The Bruntys telephoned the suppliers and discovered that Respondent had not paid the suppliers. The tile supplier's invoice was altered. The price had been exaggerated by $2,120, or more than 100 percent. The Bruntys refused to release any funds to Respondent until Respondent provided a full accounting. On October 6, 1995, Respondent filed a mechanic's lien against the Brunty property for $16,826.38. Thereafter, Respondent filed a second lien for $34,835.33. Respondent certified in the liens that he had paid for materials and performed all work. However, the two liens overstate the work performed and the cost of materials. Respondent in fact failed to pay all liens. The combined total of the two liens exceeds the contract price by $3,166.85. Respondent did not complete the renovations to the Brunty property and is not entitled to full payment of the contract price. The liens caused the lender to withhold construction funds for the renovations until the matter was resolved in civil court. In the interim, the Bruntys paid materials, subcontractors, and legal fees out of their own funds. In May 1995, Respondent acted as a general contractor in a second transaction. Respondent contracted with Mr. Curt Iffinger, a licensed air conditioning contractor, to install an air conditioning system at the home of Mr. Albert Bresch located at 4149 Sherwood Boulevard, Melbourne, Florida. Respondent represented to Mr. Iffinger that Respondent was a general contractor. Mr. Bresch paid Respondent for the installation. Mr. Iffinger performed the required installation. Respondent refused to pay Mr. Iffinger. Mr. Iffinger filed a mechanic's lien against the Bresch property. Respondent failed to cause the lien to be removed within 75 days and executed an affidavit stating that all liens were paid in full.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Sections 455.228, 489.127(1)(a) and (f), 489.129(1), (h), (m) and (o), and 489.531(1)(a) and imposing an administrative fine of $8,500. DONE AND ENTERED this 18th day of November, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1997.
The Issue The issue posed for decision herein is whether or not the Respondent, Melvin Stewart, t/a Depar Motel, has engaged in acts and/or conduct, as more particularly set forth in the Notice to Show Cause filed herein, which warrants the Petitioner's proposed sanctions of suspending or revoking the Respondent's license to operate a motel or the assessment of a civil penalty.
Findings Of Fact Based upon my observation of the witness and his demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Melvin Stewart, trading as the Depar Motel, is licensed by the Petitioner and holds license control No. 23-13405H. The Depar Motel is situated at 301 Northwest 62nd Street, Miami, Florida, and is of concrete block and stucco construction. The motel has approximately sixty-three (63) rooms plus a bar and lounge. Rogers Brown is an inspector employed by the Petitioner since approximately 1976. During his tenure, there has been a brief hiatus in his employment during which time he was on leave with the Department of Health and Rehabilitative Services, State of Florida. During the course of his employment, Inspector Brown made a routine inspection of the Depar Hotel on February 7, 1979, and noted that the Depar Motel was not being properly maintained, for reasons set forth hereinafter for which the Respondent, Melvin Stewart, was cited as violating Chapter 509, Florida Statutes, and Rule Chapters 7C-1 and 7C- 3, Florida Administrative Code. Without reciting herein the numerous alleged violations set forth in the Notice to Show Cause /1 or reciting in toto inspector Brown's testimony, the following is a brief summary of the conditions he found at the Depar Motel during his inspection on February 7, 1979. Inspector Brown found that the fire extinguishers at the Depar Motel were located at travel distances of more than seventy-five (75) feet apart. He found inadequate electrical wiring in several rooms, in that electrical wires were burned and exposed, air conditioning wires were exposed in several apartments, electrical shaving receptacles were exposed, electrical wall sockets did not have adequate cover plates and several rooms had no sockets in the bedrooms and bathrooms. (Apartments 33, 51, 10 and 19.) Inspector Brown found several apartment doors with improper locking devices; were poorly sealed; had loose door frames and broken jalousies in the doors and windows. (Apartments 13, 7, 15, 17, 27, 30, 32, 33, 34, 39, 40, 52 and 55.) He also found several rooms which had holes in the bathrooms and living room walls. (Apartments 7, 8, 16, 17, 18, 19, 24, 33, 39, 49, 52, 55, 57 and 59.) Inspector Brown also found several apartments which had inoperable jalousie windows and doors. (Apartments 4, 5, 11, 15, 24, 32, 33, 34, 37, 38, 39, 52, 57 and 60.) Inspector Brown found several rooms with clogged plumbing drains and he observed standing water in several plumbing fixtures, (Apartments 7 and 4.) He also found leaking faucets and hot water handles missing in several apartments. (Apartments 4, 16, 40, 52, 55 and 59.) Inspector Brown also found that several apartments lacked screen windows and that the screen windows in several apartments were torn. (Apartments 1, 4, 8, 10, 12, 15, 28, 29, 32, 34, 40, 51 and 60,) He also observed rodent droppings and roaches in several apartments. (TR. 70-73.) Inspector Brown found weeds, trash and debris outside the building. He noted that several apartments had soiled mattresses and in others the mattresses had no covers. (Apartments 4, 6, 30, 32 and 33.) Finally, Inspector Brown testified that the Respondent did not have on file with the Division a form No. 208, which is required of all licensees. 2/ Chapter 7C-3.02, Florida Administrative Code. The Respondent did not offer any witnesses to refute the charges set forth herein in the Notice to Show Cause or to counter the credited testimony of Inspector Rogers Brown.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: Upon issuance of the Division of Hotels and Restaurants' Final Order herein, the Respondent's license be suspended for a period of one (1) year with the suspension held in abeyance for a period of thirty (30) days, during which time the Respondent be allowed an opportunity to correct the deficiencies cited in the Notice to Show Cause filed herein. In the event that Respondent fails to correct the deficiencies as set forth in the referenced notice during the allowable period, Petitioner shall be authorized to immediately suspend Respondent's license for a period of one (1) year without the necessity for further hearing. Section 509.261(3)(a), Florida Statutes. RECOMMENDED this 7th day of April, 1980, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact This case is presented for consideration on the basis of a Notice to Show Cause/Administrative Complaint filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Hotels and Restaurants, against Michael Cohen, trading as Capricorn Apartments, Respondent. In fact, the 13251 Corporation, Inc., trades as Capricorn Apartments and is licensed by the Petitioner for the apartment business located at 13251 Northeast Memorial Highway, North Miami, Florida. That corporation was also the owner of the apartment building in September and October, 1979, and it is the licensee listed with the Petitioner. The license control number is 23-08555H. Michael Cohen, the named Respondent, is the President of the 13251 Corporation, Inc. On September 24, 1979, Inspector John D. McKinnon, an employee for the Petitioner, went to the Respondent's apartment building at 13251 Northeast Memorial Highway, North Miami, Florida, for purposes of conducting a premises inspection. In apartment 3, one of the units in the apartment complex, he found that the tenant had removed a panel on the wall and placed a bucket there for purposes of catching water that was periodically leaking into the apartment. There was no evidence at this point of any active leak, nevertheless the stains on the wall showed that the leak problem did exist. The source of the water leak was never determined, leaving open the possibility that it could have been caused by some problem created by the tenants living on the second floor above apartment 3 or by a roof leak, or other source for which the owner is responsible. There was an additional problem in apartment 3 where plumbing under one of the sinks was leaking and a catch bucket had been placed to collect the water. There was a problem in apartment 9, which is also located on the first floor. In that apartment newspaper had been placed on the floor to catch water which was coming in from the ceiling. Again, the origins of that water were never discovered, whether it was the fault of some second floor tenant above apartment 9 or a roof leak, or other source for which the owner is responsible. An examination of the grounds adjacent to the apartment building revealed tall bushes and weeds and a number of bottles, cans and pieces of paper. This inspection by McKinnon was a "call back" inspection which followed an earlier inspection of September 11, 1979, that earlier inspection revealing the same deficiencies.
Recommendation It is RECOMMENDED that the Respondent, 13251 Corporation, Inc., holder of license No. 23-5555t to trade as Capricorn Apartments at 13251 Northeast Memorial Highway, North Miami, Florida, he fined in the amount of Fifty Dollars ($50.00) for the violation established through Count III and in a similar amount for the violation established in Count V. (In keeping with the opportunity to submit Proposed Findings of Fact, Conclusions of Law and a Recommendation, the Respondent has submitted its proposal. Its proposal has been reviewed in preparing the Recommended Order and to the extent that it is not inconsistent with the Recommended Order, it has been utilized. To the extent that it is inconsistent, it is hereby rejected.) DONE AND ENTERED this 1st day of April, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Harold F.X. Purnell, Jr., Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Malcolm B. Wiseheart, Jr., Esquire Suite 402, Security Trust Building 700 Brickell Avenue Miami, Florida 33131
