The Issue The issue is whether Respondent is guilty of any or all of six alleged violations of the law governing lodging establishments and, if so, what penalty should be imposed.
Findings Of Fact Respondent operates a lodging establishment known as Salazar's at 412 South 2nd Street in Immokalee. Respondent holds license control number 21-01901H. Petitioner's inspector inspected the lodging establishment on April 10 and 30, 1997. On April 10, the inspector completed a report citing violations. The alleged violations were the presence of expired fire extinguishers, a missing floor drain in the men's restroom, a locked women's restroom, leaking shower faucets in the showers in the men's restroom, no hot water in the showers in the men's restroom, a broken toilet in the men's restroom, no backflow device for the hose threaded to the faucet in the men's room, a chirping smoke detector suggestive of dead batteries, no cold water in one of the stalls in the men's restroom, a torn screen in the men's restroom, a strong smell of urine in the men's restroom, no hot water in the wash basin outside the women's restroom, a dumpster on dirt, and peeling paint in the shower stalls in the men's restroom. The inspector characterized the report as a warning. She mailed the report to Mr. Christman, who is Respondent's manager, and she gave Respondent five days from receipt of the report to correct the violations. However, several items bore asterisks, and, according to the form, Respondent had to correct these violations immediately. These violations were for the fire extinguishers, smoke alarm, lack of hot and cold water, and odor of urine. On April 30, 1997, the inspector returned and reinspected the lodging. She found nine violations. The alleged violations were expired fire extinguishers, a missing floor drain in the men's restroom, a broken toilet in the men's restroom, no backflow device between the faucet and hose, no cold water in one stall of the men's restroom, a torn screen in the men's restroom, a locked women's restroom, a dumpster on the dirt, and peeling paint in the shower stalls in the men's restroom. The only urgent violations remaining from the last inspection were for the fire extinguishers and lack of cold water. On May 29, 1997, the inspector returned and performed a second reinspection. She found the same violations as found previously, except for those concerning the dumpster and peeling paint. The following day, Petitioner issued Respondent the Notice to Show Cause that commenced this case. Respondent failed to repair or replace the torn screen in the men's restroom within the allotted time after the first inspection. It is no defense that the screen is immediately redamaged. Respondent made the women's restroom reasonably available to guests of residents by giving the key to a resident who made it available to women as needed. Respondent failed to repair the cold water in the men's restroom within the allotted time after the first inspection. Respondent failed to replace the missing floor drain or repair the toilet within the allotted time after the first inspection. Respondent failed to install a backflow device between the hose and the faucet within the allotted time after the first inspection. However, Respondent did not understand what Petitioner was requiring, and Petitioner's inspection reports did not clarify this requirement. Respondent was not available during the correction period, and he later had some trouble trying to obtain help from Petitioner in explaining what he needed to do. Although a backflow device serves the important purpose of preventing contaminated water from backflowing up the hose and into the public water supply, the circumstances of this case do not permit a finding of a violation.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants, Department of Business and Professional Regulation, enter a final order imposing a fine of $1300 against Respondent. DONE AND ENTERED this 26th day of March, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 26th day of March, 1998. COPIES FURNISHED: Scott R. Fransen Chief Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Robert J. Christman, Manager Salazar's 4799 State Road 29 South Punta Gorda, Florida 33935 Dorothy W. Joyce, Director Division of Hotels and Restaurant Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue The issues presented are whether Respondent failed to maintain sewage drains and to prevent the presence of roaches in violation of Food Code Rules 5-402.13 and 6-501.111, and, if so, what penalty, if any, should be imposed.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating restaurants in the state. Respondent is licensed as a restaurant, pursuant to license number 3912699, and is located at 1235 Hillsborough Avenue, Tampa, Florida. A sanitation and safety specialist (Specialist) for Petitioner inspected the restaurant on March 15, 2006. Respondent committed two violations. One violation involved waste water sewage, and the other involved roaches. Waste water sewage backed up into the mop sink in the floor drain in the dishwashing room. Waste water also backed up in the kitchen hand sink drain. Eight roaches were present in a shelf, and 10 roaches were clustered in cracks in a pipe. Another roach crawled out from behind the kitchen stove. The deficiencies were significant violations. Petitioner issued an emergency order closing the restaurant. Respondent corrected the offenses in one day. There is no evidence the violations are continuing. Respondent submitted credible and persuasive evidence of diligent efforts to maintain the restaurant in proper condition.
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 committing the acts and violations alleged in the Administrative Complaint and imposing a fine of $1,000, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date that the agency serves Respondent with a copy of the final order. DONE AND ENTERED this 1st day of August, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 1st day of August, 2006. COPIES FURNISHED: Maria B. Vences Los Tucanes 1235 East Hillsborough Avenue Tampa, Florida 33604 Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 George Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent has violated various provisions governing public lodging establishments and, if so, what penalty should be imposed.
Findings Of Fact Respondent operates a public lodging establishment known as First Street Apartments at 220 South First Street in Immokalee. The license to operate this establishment, which is number 21-00721-H, expired December 1, 1997. However, Petitioner has allowed Respondent to continue to operate under this license until the resolution of pending proceedings against the license. First Street Apartments comprise 84 residential units in buildings not greater than three stories. At the time of the inspection, about 60 units were occupied. The buildings were constructed in 1963, and Respondent acquired the property in 1984. The controlling owner of Respondent was formerly a professional football player, and he formed Respondent to acquire First Street Apartments while still playing football. He has since retired, and he assumed direct responsibility for managing the property in 1994. First Street Apartments generate a net cash flow of $25,000 to $35,000 annually. Respondent has no formal policy setting the frequency of inspections of apartment units. However, the weekend prior to the hearing, Respondent's owner and his family moved into one of the apartments. Petitioner’s inspector conducted inspections of First Street Apartments on July 30 and August 19, 1997. The July inspection resulted in the issuance of a warning for 38 violations. The inspector allowed Respondent 30 days to correct these violations. The findings below describe the conditions at First Street Apartments on August 19, when Petitioner’s inspector and a local fire inspector returned to the site for the reinspection. As to the first alleged violation, apartments 30, 32, 40, and 79 lacked smoke detectors. As to the second alleged violation, apartment 31 had a smoke detector, but it was inoperative. As to the third alleged violation, an undetermined number of apartments had hasps affixed to the outside doors, so as to permit them to be latched. Most if not all of these hasps were affixed to the screen door. Most but not all of these hasps were unlocked. There is no evidence that any hasps were locked with occupants inside. The evidence suggests that tenants used the hasps to secure the contents of their premises while they were gone. However, the evidence does not establish that all of these hasps were attached to the doors and doorframe so securely as to present more than a momentary impediment to someone from the inside or outside trying to force the hasp open without unlocking it. The doorframes appear to have secured so many hasps that the wood is pitted and incapable of securing the hasp against much force. The clear appearance of numerous screwholes in the doors and doorframes supports Respondent’s contention that its representatives have frequently removed the hasps, only to find them reaffixed a short time later. As to the fourth alleged violation, one of the apartments had uninsulated wiring, unprotected by conduit, running from the ceiling to a water heater. This uninsulated wiring ran within eight feet of the floor. The proximity of this exposed wiring to the water in the water heater rendered this violation especially hazardous. However, Petitioner failed to prove its allegation of a broken electrical socket with a hot plate plugged into it. As to the fifth alleged violation, occupants of apartments 31, 32, and 33 used extension cords for other than intermittent purposes, such as cleaning, maintenance, or other temporary activities. These more ongoing, permanent uses included cooking and playing radios and televisions. As to the sixth alleged violation, there was no public lighting in the alley between the north building and a fenced area to the next property. However, Respondent or Lee County has since added more exterior lighting, and the record does not permit a finding as to the effect of the former condition. As to the seventh alleged violation, Respondent conceded that Respondent did not provide heat at the time of the inspections. As to the eighth alleged violation, the original design of the guardrail along the balcony contains openings greater than four inches. To remedy this hazardous situation, Respondent or a prior owner placed chain-link fence behind the guardrail, so as to reduce the openings to the size of the openings in the chain- link fence. The chain-link fence may have been missing on the west side of the building, but this fact does not emerge clearly from the record. There is some evidence that the chain-link fence elsewhere had loosened from the guardrail, but the evidence fails to establish the extent to which any separation had occurred and the extent to which such separation presented a hazard to persons falling between the openings in the guardrails and then between the guardrails and the chain-link fence. Respondent has since repaired the guardrails, in any event. As to the ninth alleged violation, apartments 30 and 32 had broken windows, torn screens, and a broken faucet in the kitchen sink repaired with duct tape; apartments 30 and 31 had leaky ceilings with structural damage and falling plaster; walls were pulling away from the ceiling; the south building had exposed interior beams; exterior areas had structural damage with worn concrete revealing the metal foundation; the exterior wall of the southeast end of the building had a 15-foot crack; and the concrete pillar supporting the second-floor landing on the northeast side of the building was worn and cracked. As to the tenth alleged violation, apartment 32 had a rotten shower wall and leaky toilet, and apartment 31 had an inoperative shower. As to the eleventh alleged violation, there were roaches and flies around the premises, but there is no evidence of "noxious small animals or parasitic insects, such as lice, fleas, worms, rats, or mice." As the administrative law judge advised at the hearing, he took official notice of this dictionary definition of "vermin" taken from a Funk and Wagnall's Dictionary present in the courthouse at which the hearing took place. As to the twelfth alleged violation, there was a car seat under a stairwell and about a dozen five-gallon plastic pails. However, the tenants stored these items, on a temporary basis, for their work. They remove car seats to increase the passenger-carrying capacity of their motor vehicles, and they use the pails while picking fruits and vegetables. As to the thirteenth alleged violation, there was no concrete pad under one of the two dumpsters. As to the fourteenth alleged violation, a dumpster lid remained open for the entire 1.5-hour inspection. As to the fifteenth alleged violation, a broken sewer line had leaked a pool of gray water, and a sewer cap was missing from the sewer line as it left a residential unit. In sum, Petitioner proved the following violations, with critical violations marked with an asterisk: 1*, 2*, 4* (unprotected wiring, but no broken socket), 5*, 7*, 9, 10 (except for water leaking from under the sinks) 13, 14, and 15*. By Ordinance No. 92-72, the Collier County Commission adopted National Fire Protection Association Life Safety Code 101, Life Safety Code, effective October 21, 1992. NFPA 5-2.2.4.6(c) provides: "Open guards shall have intermediate rails or an ornamental pattern such that a sphere 4 in. (10.1 cm) in diameter cannot pass through any opening." NFPA 19-3.4.4.1 provides: Approved single station or multiple station smoke detectors continuously powered from the building electrical system shall be installed in accordance with 7-6.2.9 in every living unit within the apartment building regardless of the number of stories or number of apartments. When activated, the detector shall initiate an alarm that is audible in the sleeping rooms of that unit. This individual unit detector shall be in addition to any sprinkler system or other detection system that may be installed in the building. Section 5-402.14, 1995 Food Code, as adopted by the Food and Drug Administration, Public Health Service, United States Department of Health and Human Services (Food Code), provides: "Sewage shall be conveyed to the point of disposal through an approved sanitary sewage system or other system, including use of sewage transport vehicles, waste retention tanks, pumps, pipes, hoses, and connections that are constructed, maintained, and operated according to law." Section 5-501.11, Food Code, provides: "If located within the food establishment, a storage area for refuse, recyclables, and returnables shall meet the requirements specified under Parts 6-1 and 6-2." Section 5-501.12, Food Code, provides: "An outdoor storage surface for refuse, recyclables, and returnables shall be constructed of nonabsorbent material such as concrete or asphalt and shall be smooth, durable and sloped to drain." Section 5-501.113(B), Food Code, provides: "Cardboard or other packaging material that does not contain food residues and that is awaiting regularly scheduled delivery to a recycling or disposal site may be stored outside without being in a covered receptacle if it is stored so that it does not create a rodent harborage problem." Section 5-501.114(B), Food Code, provides: "Equipment and receptacles for refuse, recyclables, and returnables shall be kept covered . . . [w]ith tight-fitting lids or doors if kept outside the food establishment."
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order imposing an administrative fine against Respondent in the amount of $2750 and requiring Respondent's controlling owner to undergo additional education. DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 8th day of December, 1998. COPIES FURNISHED: Daniel R. Biggins Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 D. Nathan Hoskins Peck & Peck First Union Building, Suite 103 5801 Pelican Bay Boulevard Naples, Florida 34108 Dorothy W. Joyce, Director Division of Hotels and Restaurant Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues to be resolved in this proceeding concern whether violations of Section 509.032, Florida Statutes, and Rule 61C-1.004(5), Florida Administrative Code, as well as Chapter 4A-3, Florida Administrative Code, had been committed by the Respondent in terms of two specific safety violations allegedly occurring at the Respondent's lodging establishment.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, in pertinent part, with regulating the operation of hotel or lodging establishments in accordance with Section 20.165, Florida Statutes, and Chapter 509, Florida Statutes. The Respondent, at all times material hereto, has been licensed or otherwise subject to the Petitioner's jurisdiction. On September 28, 2001, and again on October 16, 2001, an inspector of the Division of Hotels and Restaurants (Division) inspected the Respondent's lodging premises. The Division inspector noted certain deficiencies at her first inspection and that those deficiencies where still outstanding and uncorrected at the end of her second inspection at that location. In light of the deficiencies noted at both inspections, the Division issued its Administrative Complaint on November 16, 2001, alleging that the fire extinguisher near Apartment Number One was in the "re-charge zone," meaning that it was inoperable on September 28, 2001, and was missing on October 16, 2001. The Complaint also charged that the balcony railing near Apartment Number Four was loose and, therefore, in an unsafe condition in violation of Rule 61C-1.004(5) and (6), Florida Administrative Code. In response, the Respondent testified that he does not live on the premises and that, although the fire extinguisher deficiency has occurred repeatedly, it is because children who are present on the premises keep discharging it. He testified that whenever it has been discharged he, or his maintenance man, immediately has it recharged by the Daytona Fire and Safety Company. Mr. Rampersad also testified that he did everything in his power to bring the railing up to proper code requirements by re-drilling holes and re-anchoring the railing in concrete. He contends that an "inspection supervisor" observed the railing and opined that it had been brought up to code, but there is no direct evidence of that observation. He established that, as of the time of the hearing, all necessary repairs to the railing had been made and that the fire extinguisher was charged and fully operable. He testified that at the time the fire extinguisher was missing upon the re-inspection date, found above, that it was at the service company being recharged.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Business and Professional Regulation, imposing a fine in the amount of $750.00; That the Respondent's license be suspended for six months, but with the suspension held in abeyance contingent upon timely payment of the administrative fine being received upon a schedule agreed to between the Respondent and the Director of the Division of Hotels and Restaurants. The failure to continue to make timely payments of the fine amount should result in imposition of the suspension of the Respondent's license; and That the Respondent be required to attend a Hospitality Education Program class under the auspices of the Petitioner within 60 days of the date of the final order herein and to provide satisfactory proof thereof to the Division of Hotels and Restaurants. DONE AND ENTERED this 8th day of January, 2003, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2003. COPIES FURNISHED: Milton Rampersad 1201 Kennedy Road, Apartment 19 Daytona Beach, Florida 32117 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Did Petitioner violate Section 386.041 and Section 381.0065, Florida Statutes, as alleged in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance?
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 pertinent to this proceeding, the Department, through the Polk County Health Department, was the agency of the State of Florida charged with the responsibility of issuing permits for the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems. The property in question is a duplex apartment building owned by Respondent and located at 1101-1103 Old South Drive, Lakeland, Florida. The two apartments in the duplex are serviced by a single septic tank and drainfield. In the summer of 1997, Petitioner determined that the drainfield needed repair and engaged the services of an individual who was not licensed to repair drainfields. Additionally, Petitioner did not obtain a permit for the repair to the drainfield. During the fall of 1997, Petitioner continued to experience trouble with the drainfield. Thereafter, on two separate occasions, Petitioner engaged the services of Burns Septic Tank Company (Burns) and Central Fla. Septic Tank Co. (Central) to pump-out the septic tank. Both Burns and Central indicated on their invoices for pumping out the septic tank that the drainfield was in need of repair. On December 9, 1997, after receiving a complaint from one of Petitioner’s tenants, the Department’s Environmental Specialist, Wade Schulz, made an inspection of the septic tank and drainfield at 1101-1103 Old South Drive, Lakeland, Florida. Schulz’s inspection revealed that the septic tank was backing up at the duplex apartments and that the septic tank D-box, old rock, and the drainfield pipe were exposed to the ground. Additionally, it was discovered that septage was flowing directly from the system to a wet drainage ditch. On December 9, 1997, Schulz verbally notified Petitioner that the system was in violation of: (a) Section 386.041, Florida Statutes (Nuisance injurious to health); (b) Section 381.0065, Florida Statutes (Prior approved system shall remain in operating condition); and (c) Section 381.0065, Florida Statutes (No person shall repair without permit). A written copy of the Citation for Violation Onsite Sewage Program/Sanitary Nuisance (Citation) was mailed to Petitioner but was returned as undeliverable. A copy of the Citation was personally served on Petitioner on January 23, 1998. After receiving the verbal citation from Schulz, Petitioner engaged Robby’s Septic Tank Service and had the septic tank pumped out. Other than pumping out the septic tank, Petitioner has made no other effort to correct the problem. After receiving the Citation, Petitioner met with the Department’s representative in an attempt to work out a solution. However, Petitioner contended that there was nothing wrong with the drainfield and refused to pay any fine. On July 9, 1998, the Department visited the site again and found that nothing had been done to correct the problem. Furthermore, the Department found that the system was still being improperly maintained. It was the opinion of both Schulz and Tony Warr, the Department’s Environmental Supervisor, that the only way to correct the problem was to completely repair the drainfield. It was Petitioner’s contention that the drainage ditch was clogged up resulting in a high water table around the drainfield and that if Polk County cleaned out the drainage ditch, allowing the water to flow off, it would resolve the problem of the drainfield. While the drainage ditch may be a problem, there was insufficient evidence to show that unclogging the drainage ditch would resolve the problem of the drainfield. It is clear that Petitioner’s drainfield is not operating properly and is in need of repair.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding the Petitioner guilty of the violations as charged and requiring Petitioner to pay a fine in the amount of $1,500.00 as set forth in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance, Part 6. DONE AND ENTERED this 11th day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin AO2 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6 Room 306 Tallahassee, Florida 32399-0700 Glenn E. Woodard, pro se Post Office Box 2000 Eaton Park, Florida 33801 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830
