The Issue Does Petitioner owe Respondent sales tax for customer charges associated with the inspection/recertification of fire extinguishers, which activities were reported on invoices involving charges for parts, maintenance, recharge of fire extinguishers, provision of new fire extinguishers, pick-up and delivery, and maintenance, where the latter categories of activities included the payment of sales tax?
Findings Of Fact Petitioner does business in northeast Florida. Principally it inspects fire extinguishers at customer locations that must undergo inspection on an annual basis in accordance with Chapter 633, Florida Statutes. Petitioner also sells and services fire extinguishers to and for its customers. When performing an inspection, Petitioner's employee removes the fire extinguisher from its location, makes sure the powder in the fire extinguisher floats, checks the pressure gauge, makes sure that the pressure is acceptable in the extinguisher and examines the hose attached to the fire extinguisher; if these items are in good operating order the fire extinguisher is returned to its location and certified as operable for the upcoming period. The certification is evidenced by a tag placed on the fire extinguisher. That tag reflects a serial number, the name of the person who inspected and certified the extinguisher as acceptable, the permit number for the certifying person, and the kind of fire extinguisher that is under inspection. Beyond that point, if someone wishes to verify the status of the fire extinguisher that has been found acceptable, the tag evidences that acceptability. For the basic inspection, Petitioner charges its customers a fee depending on the number of fire extinguishers that are being inspected at a given location. If there is a problem with one of the fire extinguishers that has been inspected, Petitioner's employee will tell the customer the nature of the service that needs to be performed to assure that the fire extinguisher is in proper operating condition. In the event that a fire extinguisher has a problem which the customer wishes fixed, that fire extinguisher is removed from the customer's location and brought back to Petitioner's facility to be repaired. When the defective fire extinguisher is removed, an operable substitute fire extinguisher is provided to the customer pending repairs to the defective fire extinguisher. In effecting repairs, the customer is charged the cost of tangible items involved with the repair and for labor costs associated with the repair. The records which Petitioner maintained in the period in question in this case, reflect charges for the inspections of customer fire extinguishers and other activities and charges but not in the detail that has been set forth in the preceding paragraphs. The records are sales invoices. The invoices produced at the hearing are a fair representation of the experience associated with all invoices under question. In this case, Respondent intends to impose sales tax, penalties, and interest and an affiliated tax charge referred to as the Chartered Transit Systems Assessment, in relation to those items invoiced under the categories fire extinguisher inspected/fire extinguisher recertification/automatic fire extinguishing system inspected. These descriptions all refer to the process of fire extinguisher inspection. The invoices that are examples of this process show that sales tax and the associated charter tax have been collected for those other charges made by the Petitioner to its customers. Petitioner sought the advice of a CPA in establishing the manner in which its invoices reflect the collection of sales tax. This advice was sought through Mr. Schaefer. The audit period for which the Respondent has assessed additional tax, penalties, and interest is November 1, 1989 through October 31, 1994. The intent to impose tax penalties and interest resulted from an audit performed by the Respondent on Petitioner's business. An audit report was rendered on October 2, 1995; Petitioner objected to the findings in that audit report. Respondent affirmed the assessment in a Notice of Decision dated July 22, 1996. Petitioner sought reconsideration of that notice of decision. Respondent again upheld the assessment through its Notice of Reconsideration dated April 18, 1997. On June 19, 1997, Petitioner petitioned for formal hearing to contest the decision to impose the tax penalties and interest. The sample invoices by their terms state the following: FIRE DEFENSE CENTERS Invoice 3919 Morton Street 49217 JACKSONVILLE, FLORIDA 32217 (904) 731-0244 DATE ORDER NO 4/12/91 1613804 BR TO: Ramada Inn 6237 Arlington Expressway prices per contract Jacksonville, Fl 32211 Quantity Description Unit Price Total 24 Fire extinguisher inspected 65.00 2 5 lb. abc maintenance 20.00 3 Fire extinguisher inspected-unserviceable 9.00 3 5 lb. abc new fire extinguisher 114.00 2 10 lb. abc maintenance 28.00 2 Valve repair 10.40 1 Handle repair 3.95 1 Syphon tube 3.10 3 O rings 2.70 7 Pick up and delivery 8.00 After 15 days pay $282.09 264.15 QUADRUPLICATE Thank You Tax on 199.15 12.94 277.09 FIRE DEFENSE CENTERS Invoice 3919 Morton Street 49210 JACKSONVILLE, FLORIDA 32217 (904) 731-0244 DATE ORDER NO 4/12/91 1148265 JW TO: Clark Trailer Sales Serv. Mgr Linden Beane 5201 W. Beaver St prices per contract Jacksonville, Fl 32236 Quantity Description Unit Price Total 10 Fire extinguisher recertification 42.00 1 10 lb. abc hydrotest and recharge 38.00 1 Pick up and delivery 80.00 Tax on 38.00 2.47 82.47 After 15 days pay $87.47. QUADRUPLICATE Thank You FIRE DEFENSE CENTERS Invoice 3919 Morton Street JACKSONVILLE, FLORIDA (904) 731-0244 32217 49208 DATE ORDER NO TO: 4/12/91 1851144 JW Walmart 6767 103 rd St Jacksonville, Fl 32216 annual inspection prices per contract Quantity Description Unit Price Total 25 Fire extinguisher recertification 75.00 4 5 lb. abc maint 40.00 2 5 lb. abc recharge 20.00 2 Valve repair 8.90 3 Locking pin 6.00 1 Syphon tube 3.10 2 O ring 1.85 6 Pick up and delivery 8.00 After 15 days pay $173.56 162.85 Tax on 87.85 5.71 168.56 QUADRUPLICATE Thank You FIRE DEFENSE CENTERS Invoice 3919 Morton Street 49203 JACKSONVILLE, FLORIDA 32217 (904) 731-0244 DATE ORDER NO 4/12/91 1592203 EF TO: Poultry Health Service 5695 Stuart Ave prices per contract Jacksonville, Fl 32205 Quantity Description Unit Price Total 20 Fire extinguisher inspected 65.00 1 Fire extinguisher inspected-unserviceable 3.00 1 5 lb. abc maintenance 10.00 1 5 lb. abc recharge 10.00 1 2 3/4 lb. abc complete maintenance 8.00 New 10 lb. abc fire extinguisher 58.00 Valve repair 8.90 Syphon tube 3.10 O ring 2.45 4 Pick up and delivery 8.00 1 Fire extinguisher installed 7.50 183.95 Tax on 118.95 7.73 191.68 After 15 days pay $ 196.98 QUADRUPLICATE Thank you FIRE DEFENSE CENTERS Invoice 3919 Morton Street 49202 JACKSONVILLE, FLORIDA 32217 (904) 731-0244 DATE ORDER NO 4/12/91 1363891 PV TO: Holiday Inn 14670 Duval Rd (I 95 & Airport) Dan Zuhowski Jacksonville, Fl 32218 741-4404 Quantity Description Unit Price Total 4 30 lb. automatic fire extinguishing 225.00 system inspected 1 10 lb. automatic fire extinguishing system inspection 1-hood 1 10 lb. automatic fire extinguishing 50.00 system inspected 2-hood 11 Fusible links 93.50 2 10 lb. abc maintenance F/X's 24.00 418.40 Tax on 143.40 9.32 427.72 After 15 days pay $436.30 QUADRUPLICATE Thank You 10 lb. CO2 maintenance 12.00 O rings 1.90 Pick up and delivery 12.00 Standing alone, the invoices do not sufficiently distinguish which, if any, of the fire extinguishers being inspected are receiving other attention, or whether the invoices refer to an entirely different set of fire extinguishers than those that had been inspected. The distinctions described in prior paragraphs between the inspection process and other business pursuits have been based upon extrinsic evidence, outside the invoices, as offered by Louis Schaefer, Petitioner's owner. More specifically, Mr. Schaefer's description of invoice 49217 concerning the entries on that document is extrinsic evidence concerning the meaning of that invoice. Again without the extrinsic evidence one cannot reasonably ascertain the relationship, if any, between the fire extinguishers inspected and other activities involving fire extinguishers for which charges were made on the invoice. Moreover, without extrinsic evidence one cannot ascertain the number of fire extinguishers for which Petitioner has replaced or repaired parts, performed other forms of maintenance, etc., aside from the inspection. The invoice alone does not make clear which of the fire extinguishers described in the inspection line received no tangible personal property which was incorporated or attached to a repaired item, as opposed to those that may have had tangible personal property incorporated into or attached to a fire extinguisher that had been inspected. The same problem exists with other sample invoices. Related to invoice 49217, Mr. Schaefer points out that twenty-four fire extinguishers were inspected at a charge of $65.00. Two five-pound fire extinguishers needed maintenance. That maintenance was the recharge of the two five-pound fire extinguishers at the cost of $20.00. Three fire extinguishers were found to be unserviceable following the inspection. For the determination of the unservicability the customer was charged $9.00. The next line refers to the provision of three five-pound abc new fire extinguishers. The charge for the new fire extinguishers was $114.00. Mr. Schaefer explained that the new fire extinguishers were sold to the customer to replace the unserviceable fire extinguishers. Two fire extinguishers needed valve repairs. The invoice shows a $10.40 charge for the valve repairs. One of the fire extinguishers had a bent handle that had to be replaced. The charge on the invoice for the handle repair was $3.95. One fire extinguisher had a siphon tube repair. The invoice reflects that the charge for that repair was $3.10. Three O rings were replaced for a charge to the customer of $2.70. Mr. Schaefer explains that seven fire extinguishers were picked up and delivered for a cost of $8.00 that was in relation to removal, repairing, and returning fire extinguishers and hanging them back in place at the customer's business. Mr. Schaefer pointed out what can be ascertained by a mathematical exercise, that is, that all charges, with the exception of the $65.00 for inspecting twenty-four fire extinguishers, had sales tax imposed as part of the charges. That tax is in relation to the $199.15 for items other than inspection of the fire extinguishers. The total of the tax is $12.94. Mr. Schaefer explained that the inspection process itself involved an estimate of whether the fire extinguisher was serviceable and whether it met the date codes required. Further, in relation to invoice 49217, Mr. Schaefer explained the total number of fire extinguishers that received some service or were replaced. The two five-pound abc maintenance for $20.00 referred to two of the twenty-four inspected. The three fire extinguishers inspected unserviceable and the three five-pound abc new fire extinguishers refers to the removal of three fire extinguishers and replacement of those three fire extinguishers with new ones. The total of the two five-pound maintained and the three replaced brings the count to a subtotal of five fire extinguishers of the twenty-four inspected. The reference to two ten-pound abc maintenance brings the total to seven fire extinguishers repaired or replaced. The two valve repairs, the handle repair, and the O rings described in the invoice, according to Mr. Schaefer, were in relation to the two five-pound abc maintenance and the two ten-pound abc maintenance mentioned earlier in the invoice. The seven pick-up and delivery refers to three fire extinguishers that had to be replaced as unserviceable by the provision of new fire extinguishers and four fire extinguishers that could be repaired and returned to the customer by Mr. Schaefer's explanation. Therefore, seven of the twenty-four fire extinguishers inspected needed to be repaired or replaced. In summary, without Mr. Schaefer's explanation one can not reasonably discern the meaning of invoice 49217, whether the fire extinguishers inspected were part of the fire extinguishers repaired or replaced, and beyond that consideration how many fire extinguishers were repaired and replaced.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered upholding of sales tax, penalty, and interest, and related Chartered Transit System Assessment of tax, penalty, and interest for the audit period November 1, 1989, through October 31, 1994. DONE AND ENTERED this 3rd day of August, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1998. COPIES FURNISHED: Eric J. Taylor, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 William B. McMenamy, Esquire Donahoo, Donahoo, and Ball, P.A. 50 North Laura Street, Suite 2925 Jacksonville, Florida 32202 Marie A. Mattox, Esquire Mattox and Hood, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Linda Lettera, General Counsel Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact Official recognition is taken of the contents of the file in DOAH case number 86-3477 and the following facts from that file: On July 31, 1986, the Respondent denied the renewal of the Petitioner's license for an adult congregate living facility at the Clinton Crest Retirement Hotel, and advised him of his right to a formal administrative hearing as to relicensure. On August 8, 1986, the Respondent amended its basis for the proposed denial of licensure, alleging that on April 11, 1986, May 14, 1986, and July 18, 1986, Petitioner did not have a fixed fire extinguisher at the cooking appliance, did not have a three compartment sink or other approved system in use for the purpose of proper sanitation of kitchen utensils, and did not have a week's supply of non-perishable food based upon the number of weekly meals the facility had contracted to serve, and alleging that these were violations of specified statutes and rules. It further alleged that the fire extinguisher and the three compartment sink had remained uncorrected since June 20, 1985. The amended notice of proposed agency action cited the following provisions as the basis for the fire extinguisher requirement: sections 400.414 and 400.441, Fla. Stat., rules 10A-5.23(15)(a) and 4A-40.05, Fla. Admin. Code, and NFPA (National Fire Protection Association) 101, section 7-7.3 and NFPA 96. On August 11, 1986, the Petitioner requested a formal administrative hearing to contest the proposed denial of licensure. One year later, on August 14, 1987, the Respondent granted a renewal of license to the Petitioner. The Petitioner filed a motion for summary final order based upon issuance of the license. No response was filed by the Respondent. The Hearing Officer entered an order to the Respondent to show cause and to require a response. The Respondent filed a voluntary dismissal. The Petitioner moved to strike the voluntary dismissal, noting that he had requested the hearing, and requested attorneys' fees. The Respondent's response characterized the voluntary dismissal as a motion to dismiss for mootness, agreeing that the license had been issued. The Hearing Officer entered a recommended order recommending dismissal due to mootness, and noting that a request for attorneys' fees pursuant to section 57.111, Fla. Stat. (1987) would result in a final order and thus must originate with a separate petition to the Division of Administrative Hearings. The Respondent entered a final order dismissing the Petitioner's request for hearing as moot. The Petitioner then filed the instant petition for attorneys' fees and costs with the Division of Administrative Hearings. On June 20, 1985, Petitioner's facility was inspected. Two of the three violations set forth in the amended basis for denial of relicensure of August 8, 1986, were cited in the inspection report on June 20, 1985, and were reported as having not been corrected in a reinspection on September 26, 1985. P. Ex. 5. Those were the fire extinguisher issue and the three compartment sink issue. In the June 20, 1985, inspection report, the Respondent classified the three compartment sink violation as a class III violation, and required the violation to be corrected at the end of two months. The Respondent classified the fire extinguisher violation also as a class III violation, and required it to be corrected in three months. R. Ex. 5. An earlier administrative complaint had been filed against the Petitioner's facility on January 2, 1986. One of the allegations in that complaint was failure to have a fixed fire extinguisher at the kitchen stove. The Department classified this violation in the administrative complaint as a class III violation. The Petitioner entered into a stipulation in that administrative action paying, in part, a fine for this allegation of a fire code violation, and agreeing that if the deficiency was not corrected in thirty days, the result would be further administrative action, which might include "revocation proceedings." The stipulation did not clearly provide that failure to correct the violation would result in revocation of the license. The stipulation became embodied in the final order of the Respondent on March 19, 1986. R. Ex., 6. On April 11, 1986, and on May 14, 1986, the facility was inspected. Among other citations, the facility was cited for not have enough nonperishables to feed the 7 persons then living at the facility for a week, for not having a three compartment sink, and for not having a fire extinguisher over the cooking appliance. All three were classified as class III violations. R. Ex. 8. On reinspection on July 18, 1986, these items were still not corrected. In DOAH case number 86-3477, the Respondent admitted to requests for admissions that the three compartment sink issue and the non-perishable food issue were corrected by the date of the request for admissions, November 26, 1986. Thus, when that case closed, the only pending issue was the fire extinguisher over the stove. Based upon the testimony of James F. Schroeder, the Respondent's expert witness with respect to fire safety, the denial of relicensure in the letter of August 8, 1986, was primarily based upon the issue of fire extinguisher over the stove. The Petitioner's kitchen is small, approximately 6 to 8 feet in width and 10 to 12 feet in length. The stove is a residential electric stave having four burners. By design and construction, it is a domestic stove rather than what typically is thought of as a "commercial" stove. The stove is used commercially to prepare meals for residents of the adult congregate living facility for a fee. The stove is not located below a normal ceiling parallel with the floor, but is located under a lower slanted ceiling. The ceiling is only 4 to 6 feet above the front of the stove, and slants to within a few feet of the back of the stove. The ceiling is combustible, and a fire in the ceiling would spread to the rest of the adult congregate living facility unless extinguished by the automatic sprinkler system. The stove is near a window which could feed a stove fire with oxygen. The building is a wood frame building, and is highly susceptible to fire. There was a portable fire extinguisher at the stove. Additionally, the Petitioner installed fire sprinklers throughout the building at a cost of over $4,000. The automatic fire sprinklers were installed by the Petitioner to comply with the stipulated settlement dated March 19, 1986, and were installed after May 20, 1986. P. Ex. 3. The Petitioner thought he had been told by the Respondent that by installing the fire sprinkler system, he would satisfy the requirement that the stove have an automatic fire extinguisher. The fire sprinkler system that is installed included one in the kitchen, but the sprinkler in the kitchen is not located over the stove. R. Ex. 2. The kitchen fire sprinkler, which may be effective to impede a general fire in the kitchen, is not effective to smother a stove fire at the stove. Moreover, the one automatic sprinkler in the kitchen ceiling is not the same as an extinguisher at the stove because the stove fire extinguisher must have a manual operation capability as well as automatic capability, and must operate to shut off current to the stove in the event of fire. The lack of a fire extinguisher and hood at the stove poses a potential threat to the physical safety of the residents at the Petitioner's facility. The expert testimony presented was not sufficient to conclude as a matter of fact that the lack of a fire extinguisher and hood at the stove presents an imminent danger to residents or a substantial probability that death or serious physical injury would result there from, or that the lack of this equipment is a direct threat to the physical safety of the residents. The expert testimony was consistent with the classification by the Respondent of this violation as a class III violation. Petitioner's facility is licensed for 14 residents. On May 15, 1986, the Petitioner wrote to the Respondent asking that his license be reduced to 12 when it was reissued so that he would have time to obtain a three compartment sink. The Petitioner was having difficulty locating such a sink to purchase. The Petitioner intended to apply for a license for 14 residents when he had installed the sink. The Petitioner made this offer to the Respondent again in his letter of August 6, 1986, P. Ex. 4, and a letter from his attorney, P. Ex. 5, dated September 26, 1986. It was stipulated by the parties that rules 4A-40.05 and 4A-40.10, as embodied in R. Ex. 3, were applicable to the Petitioner on August 8, 1986. Conclusions of law 14 through 17 concern the contents of certain rules and provisions of the National Fire Protection Association (NFPA) standards, and are adopted as findings of fact. The Petitioner is the sole proprietor of the unincorporated business known as the Clinton Crest Retirement Hotel, which is the licensee in this case. The Petitioner is and was domiciled in the State of Florida, his principal office is and was in the State of Florida, he has not employed more than 25 full-time employees, and his net worth is not more than $2 million, including both personal and business investments. If attorneys' fees and costs are to be awarded in this proceeding, the unrebutted evidence justifies an award of $4,697.75 as reasonable attorneys' fees and $62.50 as reasonable costs.
Findings Of Fact Respondent, Hugenna D. Outar, operates a twelve-bed adult congregate living facility (ACLF) under the name of Moorehead House Retirement Center at 1405 Northeast Eighth Street, Homestead, Florida. The facility is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), and as such, is subject to that agency's regulatory jurisdiction. Outar serves as administrator of the facility. On or about August 15, 1987, Paul Grassi, an HRS fire inspector, conducted a routine annual inspection of respondent's facility. The purpose of the inspection was to determine if the facility was in compliance with the fire safety requirements of Chapter 10A-5, Florida Administrative Code (1987). The inspec- tion was made in the presence of Outar's mother since Outar was not at the facility that day. Grassi requested documentation showing that all facility fire alarms and smoke detectors had been checked by facility personnel on a quarterly basis. Also, he requested documentation to evidence that all employees had been given monthly training in procedures to be followed in the event of a fire. The former set of records is required by Department of Insurance Rule 4A-40.017, which has been adopted by reference by HRS. The latter requirement is imposed by Rule 10A-5.023(15)(b) and pertains to ACLF's having thirteen or more licensed beds. Because Outar's mother did not know where such documentation was kept, she was unable to comply with Grassi's request. Next, Grassi observed that Room D had a "pocket type" door with no hinges. According to Grassi, a state fire marshal regulation prohibits the use of this type of door in a resident's room and requires instead that a resident's room located by an exit have a door mounted on a hinge that swings outwardly to the corridor. The Classification of Deficiencies refers to the regulation imposing this requirement as "L.S.C. 85, 17-3.6.2" but the regulation itself is not of record or officially noticed. Finally, Grassi observed two residents' rooms with no door closures. According to Grassi, such closures are required on all residents' rooms, pursuant to a state fire marshal regulation, for the purpose of containing and confining a fire in the event of a fire in a room. The regulation was not identified at hearing nor made a part of the record but is referred to in the Classification of Deficiencies as "N.F.P.A. 101-85, 17.3.6.3." After noting these violations, Grassi explained them to the mother and gave her a brief explanation as to how they might be corrected. Each of the three deficiencies were categorized as Class III deficiencies. By letter dated September 24, 1987, HRS advised Outar in writing of the nature of the violations. Although the letter was not prepared until September 24, it instructed Outar to correct the deficiencies by September 14, 1987, or ten days earlier. Attached to the letter was a copy of the Classification of Deficiencies which identified the deficiencies, their class and the date by which they had to be corrected. On October 29, 1987 Grassi made a follow-up survey of respondent's facility. Since Outar was not at the facility that day, the survey was conducted in the presence of Outar's mother. Grassi found none of the deficiencies had been corrected. Accordingly, Outar was sent a letter by HRS on November 6, 1987 advising her that a second follow-up visit would be made. On December 14, 1987 Grassi returned for a third visit. This time Outar was present. Again, Grassi found none of the deficiencies corrected to his satisfaction. However, he conceded that the documentation pertaining to monthly fire drills and quarterly checks of fire alarms and smoke detectors was available for inspection but maintained it was unsatisfactory because all reports were identical and did not vary from month to month. He reasoned that this was contrary to the "intent" of the rule. During the inspection, Outar requested specific advice as to how to comply with the door regulations for which she had been cited. After receiving advice, these changes were made, and her doors now meet all fire safety requirements. Outar operates a small facility with only twelve beds. She pointed out that she had difficulty in installing closures on the two doors in question since two residents used walkers and had placed door "jams" on the doors to give them easy access through the doorway. As to the other door violation, the building was purchased with an archway leading into Room D which made it difficult to install a door mounted on hinges. Outar attempted to comply with Grassi's instructions but her carpenter was unable to make the necessary changes until Outar received specific advice from Grassi on December 14. Finally, Outar stated that the fire drill documentation was available for inspection on August 15 and October 29 but her mother did not know where it was. Outar did not learn it was filled out improperly until she personally spoke with Grassi on his third visit. She now has satisfactory records.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint filed against respondent be dismissed with prejudice. DONE AND ORDERED this 30th day of September, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 30th day of September, 1988.
Findings Of Fact Arnold J. Pergament, an employee of Petitioner for almost 20 years, has been inspecting rooming houses licensed by Petitioner in Belle Glade for almost all of that time. For many years, he has inspected Rader's Rooming House at 657 Southwest Avenue E in Belle Glade, which consists of two buildings owned by Respondent, to whom Petitioner has issued license No. 60-00737H, covering the premises. A two-storied stucco-on-wood building contains six to eight separately rented rooms and a frame building with a single story is divided into about a dozen units. Their exterior walls are weather-beaten and deteriorated; there is evidence of wood rot. On August 13, 1980, Mr. Pergament, in conducting a routine inspection, found only two fire extinguishers, not the three he testified were required for Respondent's premises. There was no fire extinguisher on the ground floor of the stucco-on-wood building. There were no light bulbs in at least some of the public bathrooms; in all, there were four bathrooms, one per building for each sex. The bathrooms needed cleaning and some had torn or missing screens. Trash and garbage had accumulated under the buildings and on the grounds. A stair railing consisted of a pipe supported by dangerously infrequent uprights. All these items and more Mr. Pergament noted on a public lodging inspection record. Petitioner's Exhibit No. 1. After marking it to indicate that it was a warning, he personally delivered a carbon copy of the inspection record to Respondent at his office. On the form, Respondent was advised that minor violations in the operation of his establishment were to be corrected by October 13, 1980. Petitioner's Exhibit No. 1. Mr. Pergament returned to Rader's Rooming House on October 15, 1980 to find trash and garbage, including broken glass, on the grounds and under the buildings, an unaltered stair railing, and no fire extinguisher on the ground floor of the stucco building. In the bathroom, light bulbs were missing, windows were broken, screens were torn and missing; and no hot water was available in the sinks or showers. He noted these matters in a contemporaneous reinspection report, Petitioner's Exhibit No. 2, a copy of which was mailed to Respondent. On November 25, 1980, Mr. Pergament returned and reinspected. A hall was being painted but the matters specified in Petitioner's Exhibit No. 2 were substantially unchanged. On the morning of the final hearing, Mr. Pergament and James R. Gallagher inspected Rader's Rooming House and found a new stair railing that Mr. Pergament testified was satisfactory. A third fire extinguisher had been installed. Although it lacked an "approved" tag, it had a tag with a date on it. There was hot water. Fluorescent light bulbs in the bathroom were missing and bathroom windows were broken. The ground were littered with trash of apparently recent origin. Johnny Marchane Lewis is one of four men who regularly work for respondent, who owns other rental property in addition to Rader's Rooming House. Mr. Lewis replaced some windows and screens last summer at Rader's Rooming House, again two months later, and again in March of 1981. The week before the final hearing, he discovered a missing screen, which he replaced, but no other problems with screens or broken windows. On the Saturday before the final hearing, Tommy Lee Williams, another of Respondent's employees, cleared the grounds at Rader's Rooming House, but he testified that garbage might still remain under the buildings. Five months previously, Respondent's men had cleared under the buildings. Somebody rakes "the yard" every other day. Mr. Williams fixed the hot water heater twice, once by replacing the heating element and once by replacing a switch. Although he does not live there, Mr. Williams visits Rader's Rooming House more than once a week. Mr. Pergament testified that he had never had a problem with Respondent's trying to make repairs to any of his properties, and Respondent testified that he tried to make all repairs promptly and would have been more prompt about seeing to the stair railing, except that he misunderstood which railing was meant in Petitioner's Exhibit No. 1. As Respondent conceded, there was no reasonable basis for his misunderstanding, but he did take steps to remedy the situation when he understood the problem.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner impose a fine against Respondent in the amount of $100.00. DONE and ENTERED this 12th day of May, 1981, in Tallahassee, Florida. COPIES FURNISHED: Mary Jo M. Gallay, Esquire 725 South Bronough Street Tallahassee, FL 32301 Milton Rader Rader's Rooming House 657 Southwest Avenue E Belle Glade, FL 33430 Norman J. Hayes 538 State Office Building 1350 Northwest 12th Avenue Miami, FL 33136 Lewis Reif Robert Hayes Gore Building Room 104 201 West Broward Boulevard Fort Lauderdale, FL 33301 ROBERT T. BENTON, II, 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 12th day of May, 1981.
The Issue The issue involved herein is whether or not the Respondent 2/ is guilty of violations set forth hereinafter in detail as stated in the Second Amended Notice to Show Cause filed by Petitioner herein. If so, the secondary issue is what penalty, if any, should be assessed for such violations. 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:
Findings Of Fact Robert C. Beiter, Sr. is the trustee and legal owner of the subject premises. On July 24, 1981, Petitioner, through its sanitarian, Richard Bragg, made an inspection of the subject premises situated at 610 Northwest Seventh Avenue, Pompano Beach, Florida. The premises is a public lodging establishment and is licensed by the Division of Hotels and Restaurants under license no. 16- 345 OH. During the inspection by Mr. Bragg, the following was observed: Fire extinguishers were overdue for service as indicated by the pressure gauges thereon or by the lack of service tags. Additionally, fire extinguishers were not kept or maintained on each floor at minimum distances of 75 feet apart. The general condition of the building revealed that paint was peeling from the walls, windows and doors were broken, the roof was leaking and there were missing window screens. The premises needed extermination for reaches and rodents. Public lighting in the stairways and walkways were not properly maintained in that the light fixtures were either not working or bulbs were missing. Covers were missing from various electrical outlets. Outside garbage dumpsters were not of sufficient size and placement for the 62 units in the premises, all of which had kitchen and cooking facilities. (See Petitioner's Exhibit No. 1) Inspector Bragg made a second inspection of the subject premises in early September, 1981, and found no compliance with the previous inspections as cited in the July 24, 1981 report. A third visit was made by Mr. Bragg on October 28, 1981, and he found the premises in the same condition with the exception that the public lighting in the stairways was operable and found to be in compliance. Subsequent visits were made by Mr. Bragg on November 17, 1981, and approximately one year later on December 13, 1982, at which time he found the same conditions existed as his original inspection on July 24, 1981, with the exception that some painting had been done. (Petitioner's Exhibits 2, 3, 4 and 5). Respondent's Position Respondent submitted extensive documentary evidence to the effect that substantial monies had been expended to repair or otherwise maintain the subject premises. Most of the documents submitted were for bills subsequent to the Petitioner's initial inspection on July 24, 1981. An observation of the hills submitted indicate that repairs were made to windows, screens, plumbing and roofing. Harry A. Wright served as the office manager charged with the management of the subject property during 1981. Fire extinguishers on the subject premises are routinely inspected and replaced on an annual basis. Mr. Wright concedes that there are leaks in several of the units on the premises. However, a number of problems relating to the plumbing on the premises are caused by the high water pressure which forces leaks in the apartments. Tenants relay their problems to the management by a telephone call to the management company. The dumpsters on the premises are emptied twice per week. The Respondent uses a maintenance crew to place heavy items in the dumpster on the premises. Respondent acknowledges and admits to a problem with the outside lighting, citing as cause, tenants breaking the bulbs or pilferage of lighting fixtures for their apartments. Respondent has made efforts to correct the most pressing problems initially, and efforts are ongoing to correct the remaining problems. (Testimony of Harry A. Wright).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent be assessed a civil penalty of $100 each for the six conditions found herein to be violations of the rules of the Division of Hotels and Restaurants. The total of these fines, $600, shall be paid within thirty (30) days of the date of the Petitioner's Final Order with funds made payable to the Treasurer of the State of Florida for credit to the Hotel and Restaurant Trust Fund. It is further RECOMMENDED that if said fine is not paid within such period, the Division of Hotels and Restaurants' license No. 16-34 SOB for the Pinewood International Apartments located at 610 Northeast Seventh Avenue, Pompano Beach, Florida, be suspended for twelve (12) months, or until reinstated for good cause shown by the Division of Hotels and Restaurants. 3/ RECOMMENDED this 14th day of July, 1983, 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 14th day of July, 1983.
