The Issue Whether respondent committed the violations alleged in the Notice to Show Cause, and if so, whether its license should be revoked or suspended, or whether a civil penalty should be imposed.
Findings Of Fact At all times relevant- to this cause, Real Estate Rentals, Inc. held license number 39-926-H issued by the Department of Business Regulation, Division of Hotels and Restaurants (Division) for the premises known as Ippolito Apartments located at 112 South Brevard Avenue, Tampa, Hillsborough County, Florida. The president of Real Estate Rentals, Inc. is E. L. Ippolito. On February 27, March 14, and March 25, 1986, Pablo Mercado inspected the Ippolito Apartments. Mr. Mercado is employed by the Division as an Environmental Health Specialist and his duties include the inspection of hotels, apartments, and other buildings. Mr. Mercado inspects between 40 and 50 buildings a week. Each building is routinely inspected four times a year. When Mr. Mercado inspected the Ippolito Apartments on February 27, 1986, he found several conditions which he considered to be statutory or rule violations. Mr. Mercado noted these violations on a standard form of the Division. The Division's form lists various items numbered 1-36. Items 1 (Fire Extinguishers), 5 (Fire Hazards), 11 (Building Repair/Painting), and 19 (Screening) were checked on the form as minor violations, and comments were made concerning each item. As to Item 1, Mr. Mercado noted that no fire extinguishers were in the building and that a fire extinguisher was needed on each floor or one in each apartment. As to item 5, Mr. Mercado noted that furniture needed to be removed from the hall. As to item 11, Mr. Mercado made the following comments: Need window facing st. apt. #1. You need a window in bathroom apt. #1. Paint inside bldg. Stairs need repair. Hole in bathroom floor apt. #3. Water leaking in the bathroom from the upstairs apt. into apt. #1. As to Item 19, Mr. Mercado noted that all the screens missing on the windows had to be replaced. The form was sent to Real Estate Rentals, Inc., with the indication that the document was a warning and that all violations had to be corrected by March 14, 1986. When Mr. Mercado made his inspection on February 27, 1986, he did not observe a hole in the bathroom floor in apartment #3 or observe any water leaking into the bathroom in apartment #1, and there was no competent evidence presented at the hearing to establish that either of these conditions existed. Mr. Mercado did observe that there were no fire extinguishers in the hall, and he did go into one apartment and observed that there was not a fire extinguisher in that apartment. Two other tenants informed him that they did not have a fire extinguisher in their apartments. Mr. Mercado observed that one of the windows facing the street contained no window pane but simply had a plastic bag taped over the window frame on the outside of the building to cover the empty space. On other windows jalousie slats were missing, and the window on the bathroom of apartment #1 was covered with a piece of plywood. Some screens were missing and some screens were torn up. One of the steps on the stairs was missing part of the two-inch lip, which created a hazard to individuals using the stairs. On March 14, 1986, Mr. Mercado made a return inspection. He noted that the furniture had been removed from the hall. However, he did not feel that any of the other violations listed had been corrected. Therefore, Mr. Mercado filled out a Call Back/Re-Inspection Report", which referred to the warning issued on February 27, 1986, and made the following comments: Violations: #1--#5--#11--#19 (See DBR-226) Only violation #5 is complied. The rest of the violations #1,#)1,#19 are not complied. The report indicated that the time to correct the violations had been extended to March 24, 1986. This report was sent to the respondent by certified mail. On March 25, 1986, Mr. Mercado again inspected the Ippolito Apartments. The conditions had not changed from the time of his previous inspection on March 14, 1986. Mr. Mercado visited the Ippolito Apartments again on April 7, 1986, and also on June 10, 1986. The pictures admitted into evidence as petitioner's exhibits No. 6 were taken on June 10, 1986. On June 10, 1986, the building was in the same condition as it had been on February 27, March 14, and March 25, 1986, except that several of the windows on the front of the building had been replaced with plywood boards. Mr. Mercado did not believe that the replacement of the windows with the boards corrected the violation as to the windows, but he could not remember whether the windows had been replaced with the plywood as of March 14th or the March 25th inspection, or whether they were replaced at a later time. Since slats were still missing from other windows on all of his inspections, he did not feel the violations as to the windows had been corrected. By June 10, 1986, the windows in front of the apartment had been replaced with plywood backed by 2 x 4 studs. According to Mr. Howell, who performed the work, the replacement of the windows with the plywood structure occurred approximately 2 1/2 months prior to the hearing, which would have been early or mid-April, 1986. In that the only competent evidence as to the date of the replacement of the front windows was Mr. Howell's testimony, it is found that the windows in the front of the building had not been replaced with plywood at the time of Mr. Mercado's inspections on March 14 and March 25, 1986. There was no competent evidence presented as to the condition of the windows in the front of the building on March 14 or March 25, 1986.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a final order finding respondent guilty of three violations of Rule 7C-1.03(1) and one violation of Rule 7C-1.04(1) on February 27, March 14 and March 25, 1986, as set forth in charges 1 through 4 of the Notice to Show Cause, finding respondent not guilty of the violations set forth in charges 5 and 6 of the Notice to Show Cause, and imposing a total civil penalty of $975 assessed as follows: (1) failure to provide adequate fire extinguishers, $100 for each offense for a total of $300, (2) failure to maintain windows in good repair, $100 for each offense for a total of $300, (3) failure to maintain stairs in good repair, $50 for each offense for a total of $150, (4) failure to maintain screens in good repair, $75 for each offense for a total of $225. DONE and ENTERED this 9th day of October, 1986, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1800 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings On Proposed Findings of Fact Submitted by the Petitioner 1. Accepted in paragraph 1. 2.-3. Accepted generally in paragraph 2. Accepted in paragraph 3. Accepted in paragraph 4, except that competent evidence showed only that at least one apartment did not have fire extinguisher. The only evidence as to other apartments was hearsay. Rejected as immaterial. Rejected as immaterial in that evidence showed there was not a fire extinguisher in each apartment. 8.-9. Accepted in paragraph 4. 10. Rejected as irrelevant in that respondent was never notified or charged with a violation based on that condition. 11.-12. Accepted generally in paragraph 4. 13. Accepted in paragraph 3. 14.-15. Accepted in paragraph 5. Accepted in paragraph 6. Accepted in background, not finding of fact. Accepted in part in paragraph 7, however, whether violations were corrected was irrelevant because respondent was not charged with violations on April 17, 1986. Rejected as not a finding of fact in that it is a recitation of testimony. Rejected, date of repair set forth in paragraph 8. 22.-23. Rejected as immaterial and as recitation of testimony. 24. Rejected to the degree it is a finding of fact in that replacement of windows occurred after relevant time period. 25.-31. Rejected, not finding of fact. Rulings On Proposed Findings of Fact Submitted by the Respondents Accepted in paragraph 1. Rejected as irrelevant and also not supported by the evidence in that a violation was noted for correction. Accepted in paragraph 3. Accepted in part and rejected in part as set forth in paragraph 4. Accepted in paragraph 5. Accepted in part in paragraph 8, however, repair work irrelevant since it occurred after date of inspections. Rejected as irrelevant. Accepted in part in paragraph 4. Whether bathroom had exhaust fan is irrelevant since the issue was whether the window was in good repair. Reject that Mr. Mercado was not a credible witness. COPIES FURNISHED: James Kearney, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 R. Hugh Snow, Director Department of Business Regulation Division of Hotels and Restaurants The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Lynne A. Quimby, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Mr. Emilio L. Ippolito 901 South Rome Avenue Tampa, Florida 33606
The Issue 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 Whether a civil penalty should be assessed against the Respondent under the facts and circumstances of Case No. 89-2966. Whether Respondent should be denied licensure renewal under the facts and circumstances of Case No. 89-4890. Whether a civil penalty should be assessed against Respondent under the facts and circumstances of Case No. 89-5238.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to these proceedings, Sacred Heart was operating an Adult Congregate Living Facility (ACLF) under either a Standard license or a Conditional license issued by the Department in accordance with Chapter 400, Florida Statutes. FINDINGS AS TO CASE NOS. 89-2966 AND 89-5238 In DOAH Case No. 86-4065 (OPLC No. 86-474 ACLF) the Department and Sacred Heart entered into a stipulated settlement that was read into the record at the time of the final hearing (Petitioner's Composite Exhibit 1, Tab 6) on September 1, 1987 which provided: (a) that the Department was to perform a full survey (the same as an annual survey) of Sacred Heart beginning on September 1, 1987 and concluding on September 2, 1987; (b) that the parties would review the survey and establish a date for correcting any deficiencies noted; (c) that upon Sacred Heart timely correcting the noted deficiencies the Department would issue a renewal license for a period of one year from the date of issuance; (d) that substantial compliance of the noted deficiencies was a pre-condition to issuance of the renewal license; and (e) that Sacred Heart's failure to timely correct the noted deficiencies would result in the Department denying the renewal license. In accordance with the above-referenced stipulation the Department conducted a survey of the Sacred Heart facility on September 1 and 2, 1987. The survey was broken down into two parts: (a) operational deficiencies which are dealt with in Case No. 89-5238 and (b) fire safety standards deficiencies which are dealt with in Case No. 89-2966. That part of the survey concerning operational deficiencies was conducted on September 1 and 2, 1987. The Department noted 15 deficiencies of which 7 were Class III, 3 were part Class III and part Unclassified and 5 were Unclassified. Some of these deficiencies were required to be corrected by September 8, 1987, others to be corrected by October 2, 1987 and November 1, 1987 and the balance to be corrected by November 30, 1987. That part of the survey concerning fire safety standards deficiencies was conducted on September 2, 1987. The Department noted 18 Class III deficiencies which some were to be corrected by September 15, 1987 and the balance to be corrected by November 1, 1987. On December 1, 1987 the Department conducted a follow-up survey and noted that all operational deficiencies (Class III and Unclassified) listed on the September 1-2, 1987 survey had been corrected with the exception of the following: (a) ACLF 106 A(1), E(1), I, and J, Class III ; (b) ACLF 108F, Unclassified; (c) ACLF 109 H(18) and (19), Unclassified; (d) ACLF 111 A(1), Unclassified; and (e) ACLF 113(20) and (25), Unclassified. On December 8, 1987 the Department conducted a follow-up survey and noted that all of the fire safety standards deficiencies (Class III) had been corrected by Sacred Heart or withdrawn by the Department with the exception of ACLF 89, 107 A., B., C., F. and Q all of which had been partially corrected. Sacred Heart was operating with a conditional license with a termination date of October 7, 1987 at the time of the above-referenced stipulation and survey. This conditional license was extended until December 15, 1987. After the follow-up survey on December 1, 1987 and December 8, 1987 the Department notified Sacred Heart on January 6, 1988 that it was issuing Sacred Heart a Standard (regular) license with an effective date of December 16, 1987 without any conditions requiring Sacred Heart to correct the operational or fire safety standards deficiencies noted on the follow-up surveys of December 1 and 8, 1987. This standard license had an expiration date of October 7, 1988. Since the Department was aware of Sacred Heart's less than full compliance with correcting both the operational and fire safety standards deficiencies it can be assumed that the Department considered Sacred Heart in substantial compliance with correcting those deficiencies as required by the stipulation when it issued Sacred Hearth the Standard license without any conditions placed on the license requiring the correction of those deficiencies. Notwithstanding that it had issued a Standard license without any condition requiring Sacred Heart to correct any outstanding deficiencies, the Department conducted a follow-up survey on the operational and fire safety standards deficiencies on March 18, 1988 and March 25, 1988, respectively. On March 18, 1988 the Department conducted a follow-up visit of the annual survey conducted on September 1-2, 1987 and the follow-up visit of December 8, 1987 and found the following operational deficiencies that were noted in the September 1987 annual survey that had not been corrected: (a) ACLF 106(H) - Loose iron railing on entry of main building, Class III; (b) ACLF 109H (18) - cracked or peeling paint on wall in shower in room 18 of the main building, Unclassified; and (c) ACLF 113A (20) and (25) - stained or dirty ceiling panels in room 20 and 25 in the main building, Unclassified. Based on the follow-up survey of March 18, 1988 sanctions were recommended and approved for the uncorrected operational deficiencies. An administrative complaint was issued on March 16, 1989 and filed with the Division of Administrative Hearings on September 26, 1989 in Case No. 89-5238 charging Sacred Heart with failure to correct these deficiencies and attempting to discipline the license issued to Sacred Heart, notwithstanding Sacred Heart's substantial compliance with the stipulation. On March 25, 1988 the Department conducted a follow-up visit on the September 1987 annual survey and the December 1987 follow-up visit and found the following fire safety standards deficiencies that had been noted in the September 1988 annual survey that had not been corrected: ACLF 89, 107 - A. all resident sleeping rooms that open into corridors did not have self-closing or automatic closing devices installed - this deficiency had been partially corrected in December 1987 and remained partially corrected in March 1988; B. all stair well doors (2-story building) did not have self-closing or automatic closing devices installed - partially corrected in December 1987 but neither door operational in March 1988; C. - all sleeping rooms, common areas, hallways, corridors, sitting or lounge areas, T.V. rooms, dining room, kitchen areas, laundry rooms, furnace rooms, Chapel and office areas adjoining the resident use areas did not have electronic smoke detectors wired into household electrical current (heat detector acceptable in kitchen) - this was only partially corrected on December 1987 as it was in March 1988; and F. all electrical panel boxes did not have each circuit breaker identified and labeled showing the area each circuit breaker protected - all corrected except in cottage #8 which was not corrected in March 1988. Based on the follow-up survey of March 25, 1988 sanctions were recommended and approved for the uncorrected fire safety standards deficiencies. An administrative complaint was issued on March 31, 1989 in Case No. 89-2966 and filed with the Division of Administrative Hearings on May 30, 1989 charging Sacred Heart with failure to correct these deficiencies and attempting to discipline the license issued to Sacred Heart, notwithstanding Sacred Heart's substantial compliance with the stipulation. While the administrative complaint in Case No. 89-5238 indicates that deficiencies ACLF 109 and ACLF 113 are Class III deficiencies, both of the surveys and the Recommendation For Sanctions list these deficiencies as Unclassified . The operational and fire safety standards deficiencies noted by the Department in its September 1987 annual survey did exist. Furthermore, those operational and fire safety standards deficiencies noted in the follow-up visits of December 8, 1987 and March 18 and 25, 1988 as not being corrected, were uncorrected on the dates of the follow-up visits. FINDINGS AS TO CASE NO. 89-4980 On June 10 and 14, 1988 the Department conducted an annual survey of the Sacred Heart facility and noted the following deficiencies: (a) ACLF 63, 64, 66 - Unclassified; (b) ACLF 67, 71, 96A, 97A, Class III; (c) ACLF 106, 109, 89 (1-14) (maintenance problems) Unclassified; (d) ACLF 107A and B, 108 A-E, Class III; (e) ACLF 110A and B, 111 and 113, Unclassified; and (f) ACLF 26 and 42, Class III. On June 16, 1988 the Department conducted a follow-up of the annual survey conducted on September 2, 1987 and found the following fire safety standards deficiencies noted in the 1987 annual survey and the March 25, 1988 follow- up survey that had not been corrected: (a) ACLF 89, 107A - had not installed automatic or self-closing devices on all doors of residents' rooms that open into hallway or corridor; (b) ACLF 89, 107B - failed to install automatic or self-closing devices on all stairwell doors; and (c) ACLF 89 107C - failed to have electric smoke detectors wired into household electric current in furnace room, others noted in earlier annual survey and follow-up survey had been corrected. Additionally, the Department conducted an annual survey of the fire safety standards on June 16, 1988 and noted several deficiencies which were corrected at the follow-up survey of August 16, 1988 with the exception of: (a) having improper ashtrays in use in various areas of the main building and cottages; and (b) failure to install automatic fire extinguishing (sprinkler) system in the 2-story (main) building in accordance with Rule 4A-40.007(1), Florida Administrative Code. The August 16, 1988 survey also noted the following new fire safety standards deficiencies: (a) the failure to encase alarm wires in protective casings in north and south cottages; (b) failure to install additional alarm bells and switches or pull boxes in north cottages; (c) failure to have additional fire alarm bells installed on the first floor of 2- story main building; and (d) the failure to have pull box alarm systems properly installed according to Rule 4A-40.004, Florida Administrative Code. By letter dated August 9, 1988 the Department imposed a moratorium on admissions at the Sacred Heart facility effective August 8, 1988 in accordance with Section 400.415, Florida Statutes, for severe deficiencies including, but not limited to, inappropriate placement and retention of residents, substandard cleanliness of residents and substantial cleanliness of the facility. On August 16, 1988 the Department conducted another follow-up survey on the Sacred Heart facility and noted the following operational deficiencies: (a) ACLF 26, 27, 41 (1-6), 51, 52, 53, 58, 67, 71 (2-8), 96 (a-s), 98, 104, 105, 106 (a-o), 107 A-C, 109 A-H, 110 A-V and 111 (a-c), Unclassified; and (b) 71 (1), 93 A (1-7) and B (1-4), 97 A-E, 108 A-N, 112-115, 117 and 89 (a-m), Class III. On the follow-up survey of August 16, 1988 it was noted that the following operational deficiencies noted in the annual survey of June 10 and 14, 1988 had not been corrected: (a) ACLF 67; (b) ACLF 96 A & B (partially corrected); (c) ACLF 106, 109, 89 (1-6 partially corrected and 9 not corrected); (d) ACLF 107 A partially corrected; (e) ACLF 110 A-B; and (f) ACLF 111. On September 6, 1988 the Department notified Sacred Heart that its application for renewal of its license was being denied pursuant to Section 400.414(1)(2)(a)(b) and (d), Florida Statutes, because Sacred Heart did not comply with the standards for operation of an ACLF pursuant to Chapter 400, Part II, Florida Statutes and Chapter 10A-5, Florida Administrative Code. The specific reasons given by the Department were the inappropriate placement and retention of residents and substandard cleanliness of the facility and, "the failure to: provide adequate resident care; meet life safety standards; provide social, leisure and recreational activities and to correct numerous physical plant deficiencies" as demonstrated by the March 18, 1988, June 10, 14, 1988 and August 16, 1988 area office visits and surveys. As a result of this denial letter Sacred Heart filed a petition with the Department requesting an administrative hearing which was assigned PDRL No. I 88-899 and referred to the Division of Administrative Hearings which assigned Case No. 88-5177 to this request. On October 13, 1988 the Department conducted a survey of the Sacred Heart facility for the purpose of reconsidering the moratorium issued on August 8, 1988. The October 13, 1988 fire safety standards survey noted the same deficiencies as were noted on the August 16, 1988 survey, none had been corrected. The operational deficiencies survey noted that some of the operational deficiencies noted on the August 16, 1988 survey had been corrected but that a good number had not been corrected. Additionally, the operational deficiency survey of October 13, 1988 noted a large number of new deficiencies. On February 8, 1989, the Department conducted another follow-up survey on both the operational deficiencies and the fire safety standards deficiencies. This survey noted that all fire safety standards deficiencies noted on October 13, 1988 had been corrected with the exception of installing an automatic fire extinguishing system. This survey also noted that a large number of the operational deficiencies noted on the October 13, 1988 survey had not been corrected and also noted several new deficiencies. Sometime before May 25, 1989 the Department and Sacred Heart entered into a Joint Stipulation wherein the Department would again place Sacred Heart on a 60 day conditional license upon the execution and return of the Joint Stipulation and lift the moratorium imposed on August 8, 1988. In return, Sacred Heart agreed to: (a) correct all remaining deficiencies arising out of the surveys of March 18, June 10 and 14, August 16, 1988 and February 8, 1989; (b) a full and complete survey utilizing the new survey manual; and (c) the results of this new survey being used to determine whether the license would be denied and the matter referred to the Division of Administrative Hearings for licensure denial proceedings de novo. On May 25, 1989 in accordance with the stipulation the Department lifted the August 8, 1988 moratorium that it had imposed on the Sacred Heart facility and issued Sacred Heart a 60-day Conditional license effective April 16, 1989 with an expiration date of June 15, 1989 In accordance with the stipulation and, the need to conduct an annual survey for licensure, the Department conducted an annual survey of the Sacred Heart facility on June 13-14, 1989. There were no repeat fire safety standards deficiencies noted in the June 1989 annual survey. However, the following new fire safety standards deficiencies were noted in the June 1989 survey: (a) ACLF 700-801A kitchen - cooking range and fry grill needs to be certified as to their safety, and cooking range and fry grill need thorough cleaning, removing flammable burnt and crusted food and grease from burners, well and cooking surface, and (b) ACLF 700-901B, main building - (1) sprinkler alarm bell not connected, (2) holes in ceiling and walls left by sprinkler contractor need to be sealed to prevent passage of toxic gases to other areas, (3) exit door (ground floor, south wing) does not swing outwardly in direction of escape travel, and (4) fire alarm "Pull Station" not loud enough to be heard throughout building on outside of building. These fire safety standard deficiencies are Class III deficiencies. The June 13-14, 1989 survey noted the following Class III operational deficiencies: ACLF 302 (ANC), ACLF 404-1001-1010, ACLF 504-507(4)-508 (a repeat deficiency), ACLF 602; ACLF 613, ACLF 617 (1-10), ACLF 700, ACLF 708, ACLF 800- 1010 (A-G, with G being a repeat deficiency), ACLF 803-806-808-1010 (A-F, with F being a repeat deficiency), ACLF 804-1010 (A-H, with H being a repeat deficiency), ACLF 810-811-1010 (A-B, with B being a repeat deficiency), ACLF 1002-1010, ACLF 1003-1010, ACLF 1005 and, ACLF 1105-1106 (A-B, with B being a repeat deficiency). Although several of the above operational deficiencies are listed as "repeat deficiencies", there is insufficient evidence to show that these exact deficiencies had been noted in an earlier annual survey or the earlier follow-up visits as deficiencies. The date for correcting the new fire safety standard deficiencies was July 14, 1989 and the date for correcting the operational deficiencies varied from June 14, 1989 thru August 14, 1989. The Department made no further visits to the Sacred Heart facility subsequent to the June 13-14, 1989 annual survey in an attempt to determine if Sacred Heart had corrected those deficiencies noted in the June 13-14, 1989 annual survey, notwithstanding that the Department had allowed Sacred Heart a period of time to correct these deficiencies. All of the deficiencies noted in the June 1989 annual survey were subsequently corrected within the time period prescribed in June 1989 annual survey report. All of the operational and fire safety standards deficiencies noted in the annual surveys and follow-up visits conducted subsequent to March 25, 1988 did exist. Furthermore, all of the operational and fire safety standards deficiencies noted in the annual surveys and follow-up visits beginning with the September 1987 annual survey and ending with the February 8, 1989 follow-up visit had been corrected before the June 1989 annual survey in accordance with the stipulation. On June 22, 1989 the Department entered a Final Order adopting the stipulation and ordering the parties to comply with its terms. Based on this Final Order the Department filed a Voluntary Dismissal in DOAH Case No. 88-5177 on July 10, 1989 and the file of the Division of Administrative Hearings closed on July 13, 1989. By letter dated June 29, 1989 the Department advised Sacred Heart that its application for renewal of its license which had expired on June 15, 1989 was denied pursuant to Section 415.103, Florida Statutes; Section 415.107(5)(b), Florida Statutes; Section 400.414(1)(2)(a)(b)(d) and 3, Florida Statutes and; Chapter 10A-5, Florida Administrative Code. The specific basis for the denial included but was not limited to: (a) the deficiencies cited during area surveys and follow-up with a September 2, 1987, March 18, June 10, June 14, June 16, August 12, October 13, 1988 and February 8, March 8, June 13 and June 14, 1989 which demonstrates continued non-compliance in correcting deficiencies (Section 400.414(d), Florida Statutes; (b) the August 8, 1988 moratorium imposed on admissions to the facility (Section 400.414(3), Florida Statutes; (c) failure to comply with the provisions of the joint stipulation in the DOAH Case No. 88- 5177, PDRL No. I-88-899 ACLF (Section 400.414(2)(d), Florida Statutes; and (d) the confirmed neglect of resident C. C. that occurred on September 15, 1988 (Section 400.414(2)(a), Florida Statutes). By letter dated August 7, 1989 Sacred Heart filed a petition with the Department requesting a formal hearing pursuant to Chapter 120, Florida Statutes. The petition, with attachments was referred to the Division of Administrative Hearings and assigned Case No. 89-4890. On August 11, 1989 the Department entered its Final Order in Department of Health and Rehabilitative Services v. C. N., Case No. 88-6455C wherein the Department denied the request of C. N. for expunction of the confirmed report of neglect involving C. C., a resident of the Sacred Heart facility at the time the incident of neglect occurred on September 15, 1988. Upon entry of the Final Order in this case Sacred Heart discharged C. N. and C. N. is no longer employed by Sacred Heart. On December 13, 1989 the Department entered its Final Order in Department of Health and Rehabilitative Services v. B. B. A., Case No. 88-6258C wherein the Department denied the request of B. B. A. for expunction of the confirmed report of neglect involving C. C., a resident of Sacred Heart at the time the incident of neglect occurred on September 15, 1988. B. B. A. at the time the incident of neglect occurred was a co-owner and was still a co-owner on the day of this hearing on August 6-7, 1990. The final order was on appeal to the District Court of Appeal on the day of hearing.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a Final Order in Case No. 89-4890 denying renewal of the ACLF license of Sacred Heart Retirement Villa, Inc. It is further recommended that the Administrative Complaints in Case Nos. 89-2966 and 89-5238 be dismissed. DONE and ORDERED this 15th day of February, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1991. APPENDIX TO THE RECOMMENDED ORDER 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 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: 2 (3, 14, 17); 3 (6, 17); 4 (12, 17); 6-7 (28-30, 34); 9 (5, 17); 10 (6, 17); 11 (14, 17); 12 (19, 34); 15 (21, 34); 16 (24, 34); 18 (19, 34); 19 (24, 34); 22 (12, 13, 17); 24 (28-31, 34); 26 (25, 34); 28 (28-31, 34); 31 (24, 34); 32 (25, 34); 35 (28- 31, 34); 38 (20); 39 (29); 40 (35); 43 (36); 46 (38); 47 (39) and 48 (19). 2. Proposed findings of fact 1, 5, 8, 13, 14, 17, 21, 25, 29, 30, 34-37, 42, 44, 45 and 49 are unnecessary. 3. Proposed findings of fact 20, 23, 27 and 41 are not material or relevant. Specific Rulings of Proposed Findings of Fact Submitted by Respondent 1. Adopted in findings of fact 26 and 35 but modified. 2. Adopted in findings of fact 3, 4, 6, 12, 13, 14, 17-21, 24, 25, 28-34 but modified. Although the alleged deficiencies, moratorium and confirmed neglect report arose prior to the June 22, 1989 Final Order, there is no substantial competent evidence in the report to support the position that this resolved all matters before the Department at that time. Not necessary. 5.-6. Not supported by substantial competent evidence in the record. Not necessary Not supported by substantial competent evidence in the record. Adopted in findings of fact 33 and 34 but modified. Adopted in findings of fact 32 and 33 but modified. Adopted in finding of fact 29, but modified. Not material or relevant. A restatement of testimony and not a finding of fact. However, if considered a finding of fact it is not supported by substantial competent evidence in the record. COPIES FURNISHED: Michael O. Mathis, Esquire HRS Office of Licensure and Certification 2727 Mahan Drive Tallahassee, FL 32308 Kurt Andrew Simpson, Esquire Ocean South 3500 South Third Street Jacksonville, FL 32250 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue The issues in this case are whether the Respondent committed the violations alleged in an Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent has been licensed to engage in the food service business, having been issued license number 16-09404-R. At all times material to this case, the Respondent has operated a restaurant in which food was prepared and served to the public. The Respondent’s restaurant business is located at 625 East Atlantic Boulevard, Pompano Beach, Florida 33060. On July 7, 2004, the Respondent’s restaurant premises were inspected by Larry Torres. Mr. Torres is a Sanitation and Safety Specialist employed by the Petitioner. In conjunction with the inspection on July 7, 2004, Mr. Torres prepared a Food Service Inspection Report in which he noted matters of significance that he observed during the inspection. During the course of his inspection on July 7, 2005, Mr. Torres noted several deficiencies that were violations of applicable statutes and rules. Mr. Torres advised the restaurant owner of these deficiencies and required that they be corrected by the next day. On July 8, 2005, Mr. Torres re-inspected the Respondent’s restaurant. Some of the deficiencies had been corrected and progress was being made towards the correction of others. Mr. Torres granted an extension of time until July 21, 2004, for the correction of the remaining deficiencies. On July 22, 2005, Mr. Torres again re-inspected the Respondent’s restaurant. As of July 22, 2005, all but four of the original deficiencies had been corrected and efforts were underway to correct those four deficiencies. On this occasion Mr. Torres granted an extension of time until August 22, 1004, within which to correct the remaining deficiencies. On August 23, 2004, Mr. Torres conducted another re- inspection of the Respondent’s restaurant. At that time there were three uncorrected deficiencies. Those uncorrected deficiencies were identified by numbers. The numbers were 32, 37, and 45. Deficiency number 32 was the absence of a sign in the area of the employee hand wash sink reminding employees that they were required to wash their hands before preparing or serving food. This is not a critical violation.3 Deficiency number 37 was an unrepaired hole in the wall in the area of the mop sink. The evidence in this case does not reveal what type of safety or sanitation issue resulted from the hole in the wall in the area of the mop sink. This is not a critical violation.4 Deficiency number 45 related to the condition of the automatic fire suppression system incorporated into the hood over some of the cooking elements in the kitchen. The Respondent’s automatic fire suppression system was an older dry chemical system. Such systems require maintenance and testing once every six years, and the Respondent’s system was overdue for maintenance and testing. Automatic fire suppression systems of the type used by the Respondent are rather rare and it can be difficult and time-consuming to locate the dry chemicals necessary to maintain the system. This was a critical violation because of the possibility of having a kitchen fire at a time when the automatic fire suppression system might not be working. The Respondent’s manager made diligent efforts to resolve deficiency number 45. On July 8, 2004, he received a proposal from a fire protection company to replace the existing fire suppression system with a more modern system for approximately three thousand dollars. That was more than the Respondent’s owner was able to spend to resolve that problem. Eventually the Respondent’s manager found someone who would resolve deficiency number 45 by bringing the existing fire suppression system into compliance for only five hundred dollars. By September 27, 2004, the fire suppression in the hood was in compliance and deficiency number 45 was resolved. The Respondent’s manager procrastinated in addressing deficiency number 32 because of his concerns about resolving the more serious matter of deficiency number 45. It took several months for the Respondent’s manager to hang hand washing signs near the employee hand washing sink. The Respondent’s manager addressed deficiency number 37 a bit sooner. At about the same time that deficiency number 45 was resolved, the manager also patched the hole in the wall by the mop sink area.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case to the following effect: Concluding that the three violations identified in the three numbered paragraphs of the Administrative Complaint existed on the dates alleged in the Administrative Complaints; Concluding that no penalty should be imposed for the violation identified in paragraph 1 of the Administrative Complaint; Concluding that an administrative fine in the amount of $50.00 should be imposed for the violation identified in paragraph 2 of the Administrative Complaint; and Concluding that an administrative fine in the amount of $50.00 should be imposed for the violation identified in paragraph 3 of the Administrative Complaint. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2005.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Galilee was licensed by the Department. Galilee's last known address is 4685 Haverhill Road, West Palm Beach, Florida. Galilee is a lodging establishment, consisting of rental apartments. It was originally constructed in 1995 as an assisted living facility but, as a business decision, the owner subsequently converted it to rental apartments. The Department's inspector inspected the outside of Galilee on December 18, 2002, and again on January 17, 2003. The inspector found deficiencies at the first inspection, and at the second inspection three deficiencies remained uncorrected. The uncorrected deficiencies were (1) the current report of the annual inspection for the fire sprinkler system was not available; (2) fire extinguishers failed to have state certification tags affixed; and (3) no backflow prevention device on the exterior hose connection to the apartment building. The failure to have available the current report of the annual inspection for the fire sprinkler system was a critical violation. The deficiency was classified as a critical violation because the annual report is the only way that an inspector can ascertain that the fire sprinkler system is operational. The inspector requested the current annual report at the first visit but it was not available. The failure of the fire extinguishers to have state certification tags affixed was a critical violation. The deficiency was classified as a critical violation because the state certified tag verifies that an extinguisher is in proper working order and is being properly maintained. The failure to have a backflow prevention device on the exterior hose connection to the apartment building was not a critical violation. The backflow prevention device stops negative water pressure. At the first inspection, the inspector explained the violations to the owner and gave him a 30-day warning to have the violations corrected, advising the owner that she would return on January 17, 2003, for a follow-up inspection. The violations were not corrected at the follow-up inspection 30 days later. The evidence shows that all the violations were corrected within a month to a month and a half after the second inspection. Galilee provided mitigating circumstances for the violations not being corrected at the time of the second inspection. As to the deficiency regarding availability of the current report of the annual inspection for the fire sprinkler system, Galilee has a current report dated February 27, 2003. Also, Galilee suggests that the inspector did not request the report. The undersigned finds the inspector's testimony credible that she requested the report. Further, the evidence shows that Galilee confused the requested report with the report of the fire department's inspection. The inspector testified, and her testimony is found credible, that the report of the annual inspection for the fire sprinkler system is generated by a private company, not the fire department, because the fire department does not perform the inspection required for the requested report. As to the deficiency regarding tagging of the fire extinguishers, Galilee's owner purchased fire extinguishers from Home Depot and was not aware that the extinguishers were required to be tagged at the time of the first inspection. Subsequent to the second inspection, the fire extinguishers were tagged by the AAC United Fire and Safety Department, with which Galilee has a contract to inspect the fire extinguishers. As to the deficiency regarding backflow prevention device, it too was corrected subsequent to the second inspection. Furthermore, even though the deficiencies were corrected subsequent to the second inspection, Galilee began the process to correct the deficiencies after the first inspection. Galilee was not ignoring the deficiencies. The deficiencies were not timely corrected because Galilee's owner was attempting to obtain, whom he considered, the proper people to perform the tasks involved and have the tasks performed at a reasonable expense. No evidence of prior disciplinary action being taken against Galilee by the Department was presented.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order: Finding that Galilee violated NFPA Life Safety Code 25, 1-8.2 and Food Code Rule 5-204.12. Dismissing the violation of Florida Administrative Code Rule 61C-1.004(5). Imposing an administrative fine of $1,500.00, payable under terms and conditions deemed appropriate. S DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. ____ ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2003.
The Issue Whether Respondent failed to properly maintain the premises at Park Avenue Sub, in violation of Section 509.032, Florida Statutes (2000), as alleged in the Administrative Complaints.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following findings of facts are made: 1. Respondent, Sang Kuen Cho, held license number 69-0347-R for the operation of a public food service establishment operating under the name Park Ave Sub, and located at 1203 South Park Avenue, Sanford, Florida 32771. As to DOAH Case No. 01-0961: 2. On August 18, 19, and 22, 2001, Carolyn Moore, Inspector with Petitioner's Division of Hotels and Restaurants, conducted an inspection of Respondent's premises. 3. It was observed that there was no 40 BC Fire Extinguisher available on the premises. The Fire Suppression System was tagged 11-99, and the last inspection report was dated 11-99. The barrel used for grease collection was not ona surface that was non-absorbent. There was no evidence that the restaurant manager was certified by Petitioner as a certified food manager. There was no probe thermometer available. The meat slicer had old, dried food debris on it. There was bare wood exposed on the preparation table, and the covering was worn out. There was old, dried food splattered on the wall behind the slicer. The flooring around the cooking equipment was missing tiles or other non-porous covering. There was a large amount of newspapers and empty boxes under the preparation table. 4. There were no chemical test strips available to test the concentration of the sanitizing solutions. The filters in the hood over the stove had an accumulation of dust and a black substance on them. There was no covered receptacle in the restroom. The restroom had no paper towels or other hand-drying device provided. The front door was propped open on August 18, 2000. The last inspection report was not available. As to DOAH Case No. 01-1110: 5. On January 24, 2001, and again on February 1, 2001, an inspection was conducted on Respondent's premises. 6. It was observed that there was no 40 BC fire extinguisher on the premises for the grease fryer. The tag on the Fire Suppression System indicated it was last inspected 11- 99. 7. Deli meats in containers in the refrigerator had not been date marked to indicate the date the food should be consumed by. The ceiling tiles over the hood system were not properly installed, leaving a gap. Old food debris and a black substance were on the hood filters. The wall by the back door had old, dried food debris splattered on it. As to DOAH Case No. 01-1111: 8. On July 26, 1999, and again on August 20, 1999, an inspection was conducted on Respondent's premises. 9. The right compartment of the three-compartment sink was not plumbed for hot and cold water. The front exit door was open in a fixed position. The fire extinguisher was stored on the floor by the rear exit door. The floor in the kitchen area had torn and missing tiles and was not sealed. An extension cord was being used for operating the microwave, and a carbon dioxide tank was not secured. 10. There was still no 40 BC fire extinguisher available when the premises were re-inspected on April 18 and 27, 2001.
Conclusions For Petitioner: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 For Respondents: No appearance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be enter by the Division of Hotels and Restaurants, as follows: 1. As to DOAH Case No. 01-0961, an administrative fine of $5,400 be imposed and Respondent's license be suspended until payments of fines have begun and the restaurant is brought into compliance with the Food Code, the Fire Safety Code, and other provisions of Chapter 61C, Florida Administrative Code. 2. As to DOAH Case No. 01-1110, an administrative fine in the amount of $3,400 be imposed and Respondent's license be suspended until the restaurant is brought into compliance and payments on the fine are begun. 3. As to DOAH Case No. 01-1111, an administrative fine of $1,000 be imposed and Respondent's license be suspended until payment, in full, is made. 4. Respondent be required to make monthly payments until the administrative fines are paid in full under such terms anda conditions as the Department deems just and reasonable. DONE AND ENTERED this Gl, day of June, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this A day of June, 2001. COPIES FURNISHED: Park Avenue Sub 1203 South Park Avenue Sanford, Florida 32771 Sang Kuen Cho d/b/a Park Ave Sub 1203 South Park Avenue Sanford, Florida 32771 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
