Findings Of Fact James Zaharako is the Executive Vice-President of J. R. Brooks & Sons, Inc. In this capacity he is involved in the management and administration of J. R. Brooks & Sons, Inc., including but not limited to collection of sums owed. He or his subordinates agreed to fill orders for avocadoes from Sunshine Produce Company, Inc. totalling $84,193.25 set out as follows: DATE INVOICE NO. DOLLAR AMOUNT 06/10/83 45434 $9,256.25 01/05/84 125261 7,337.00 01/11/84 12096 4,936.00 01/12/84 12168 6,610.50 01/26/84 14094 8,908.00 01/26/84 14127 8,755.00 02/02/84 15114 10,172.50 02/08/84 22125 7,340.00 02/08/84 22126 10,632.00 02/15/84 23141 10,246.00 $84,193.25 These agricultural products were delivered into the care, custody and control of truck drivers employed by Sunshine Produce, Company, Inc. at the J. R. Brooks packing facility located in Homestead, Florida. The transaction, except for payment to J. R. Brooks, was complete at that time. Despite many attempts to collect the total amount, representatives of Sunshine refused, declined, or failed to pay J. R. Brooks & Sons, Inc. the amount charged without offering any reason except that they did not have sufficient funds. The surety, pursuant to bond FS-106353 for Sunshine Produce Company, Inc. is Allied Fidelity Insurance Company. The amount on this bond is capped at $4,000 for events arising between August 7, 1983, and August 6, 1984. Seventy-four thousand nine hundred and thirty-seven dollars ($74,937.00) of the total unpaid-for orders were filled by J. R. Brooks & Son to Sunshine Produce Company, Inc. in this period of time.
The Issue The issue involved herein is whether or not the Respondent 2/ guilty of violations set forth hereinafter in detail as stated in the Second Amended Notice to Show Cause filed by Petitioner herein. If so, the secondary issue is what penalty, if any, should be assessed for such violations. Based upon my observation of the witnesses and their demeanor while testifying, documentary-evidence received and the entire record compiled herein, I hereby make the following relevant:
Findings Of Fact Robert C. Beiter, Sr. is the trustee and legal owner of the subject premises. On July 24, 1981, Petitioner, through its sanitarian, Richard Bragg, made an inspection of the subject premises situated at 715 Northwest Sixth Avenue, Pompano Beach, Florida. The premises is a public lodging establishment and is licensed by the Division of Hotels and Restaurants under license No. 16- 5268H. During the inspection by Mr. Bragg, the following violations were observed: Fire extinguishers were overdue for service as indicated by the pressure gauges thereon and/or by the lack of service tags thereon. The general condition of the building was run down, paint was peeling from the walls, windows and doors were broken, the roof was leaking, and window screens were missing. A severe infestation of rodents and roaches existed on the premises. Papers and assorted trash were located around the building. There were no outside garbage containers furnished for the building, which contains six apartment units with kitchen/cooking facilities in each apartment. Stairways and walkways were not well lighted and the handrails on the stairways and walkways were loose. Electrical fixtures did not all have covers and were not all in working order. Plumbing fixtures in several apartments were leaking. (Testimony of Richard Bragg, an inspector employed by the Petitioner for approxi- mately 14 years and who has approximately 25 years in the hotel/restaurant business.) Mr. Bragg made subsequent inspections of these premises in September and October, 1981, and the same conditions were in existence, except that an outside garbage container had been provided. A subsequent inspection of the premises was made by Mr. Bragg on November 11, 1981, and the original conditions existed, except for the provision of the garbage container. On December 12, 1982, Mr. Bragg found no evidence of correction of the remaining problems since his November 11, 1981 inspection. Finally, on February 18, 1982, Mr. Bragg observed all of the original cited problems as existed on July 24, 1981, except for those relating to furnishing a garbage container. Mr. Bragg was unable to check the condition of the plumbing and the electrical fixtures due to the lack of access to the apartments on February 18, 1982. Respondent tendered extensive documentary evidence consisting of receipts for various repairs made to the subject premises, including plumbing, roofing, window and screen repairs; extermination for pest control and trash services. Respondent's agent, Harry A. Wright, had the fire extinguishers inspected and replaced on an annual basis. All of the documentary evidence submitted respecting expenditures were for repairs subsequent to the date of Mr. Bragg's initial inspection on July 24, 1981.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent be assessed a civil penalty of $100 for each of the eight conditions for the subject premises found herein to be violations of the rules of the Division of Hotels and Restaurants, with the exception that it is RECOMMENDED that the Respondent only be assessed a civil penalty of $50 for the violation found above relating to outside garbage containers due to the effective and corrective action taken by the Respondent to correct said deficiency. Accordingly, the total amount of the civil penalty is $750. It is further RECOMMENDED that the Respondent shall pay the above amount of $750 within thirty (30) days of the date the Petitioner enters its final order, which funds shall be made payable to the order of the Treasurer of the State of Florida for credit to the Hotel and Restaurant Trust Fund. It is further RECOMMENDED that if the Respondent fails to remit such civil penalty to the Petitioner within such period, the Division of Hotels and Restaurants' license No. 16-5268H for the Pinewood International Apartments located at 715 Northwest Sixth Avenue, Pompano Beach, Florida shall be suspended for twelve (12) months or until reinstated for good cause by the Division of Hotels and Restaurants. RECOMMENDED this 14th day of July, 1983. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1983.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent violated certain provisions of Chapter 509, Florida Statutes, and Chapter 61-C, Florida Administrative Code, concerning various conditions maintained at its establishment, as alleged particularly in the Administrative Complaint.
Findings Of Fact On February 12, 2001, Gary Reed, a Safety and Sanitation Specialist, conducted an initial inspection of the Respondent's establishment. The establishment name is Ocean Breeze Village, which is a public lodging establishment. Mr. Reed thereafter conducted a re-inspection of the premises on March 27, 2001. During both inspections he observed old chairs and tables blocking the walkway on the west side of the building. He also observed a face-plate missing from an exit sign by the stairs on the outside of the building and that the word "exit" on the exit sign face-plate was partially obliterated. Chairs and tables blocking a walkway is a potentially serious violation because the means of egress in cases of emergency, such as fire, must be unobstructed and the exits clearly marked. Mr. Reed also observed that the west handrail was very loose on the stairs outside Unit nine, Unit eleven and Unit twelve of the lodging establishment. Section 509.211(4), Florida Statutes, states that each public lodging establishment that is three or more stories in height must have safe and secure railings on all balconies, platforms and stairways and that all such railings must be properly maintained and repaired. This railing was not properly maintained and repaired. With regard to the balconies, Mr. Reed observed that there was no balcony certification available at the premises or on file with his agency. The management or owner of each public lodging establishment that is three stories or more in height must file a certificate by an appropriate contractor stating that any and all balconies, platforms, stairways and railings have been inspected by a trained inspector. See Section 509.2112, Florida Statutes. Mr. Reed observed that there was no "back-flow" prevention device installed on a hose spigot on the north side of the Respondent's building. A back-flow prevention device is designed to prevent any solid, liquid or gas from flowing backward into a potable water system. Its absence, under the food service code involved herein, is a violation. Mr. Reed also observed unusual furniture stored outside of Unit one, old screens, garden hoses, electrical materials, used fencing, old plumbing materials, old tables and chairs and bicycles stored on the east side of the property. Mr. Reed also observed miscellaneous garbage stuffed in concrete boxes under electrical meters and panels on the south side of the building. These are violations because the public lodging must be maintained clear of debris so as to prevent vermin and to help ensure public safety, in accordance with the legal authority cited below.
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 imposing a fine in the amount of $750.00. DONE AND ENTERED this 7th day of February, 2002, 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 Clerk of the Division of Administrative Hearings this 7th day of February, 2002. COPIES FURNISHED: Darel Mikula Ocean Breeze Village 208 North Halifax Avenue Daytona Beach, Florida 32118 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Susan R. McKinley, Director 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
Findings Of Fact The respondent was licensed in 1976 as a foster home, and obtained a license to operate an adult congregate living facility on May 31, 1981. This was the first ACLF license issued in Gadsden County. On September 12, 1983 two representatives of the Department visited the Fletcher Group Home in response to an abuse complaint. Although the abuse complaint was not substantiated, they found unsanitary conditions which led to a concern about the general cleanliness of the facility, and they found that the noon meal was being served around 3:50 in the afternoon. The facility's cleanliness and the late mealtime became a concern because the residents are non-verbal or have low verbal skills, and are in the facility because they are unable to care for their basic personal needs. Because of these conditions, the Department's representatives brought their supervisor to the facility on an unannounced visit at noon on September 14, 1983, to do a complete investigation. When they arrived, the noon meal was just beginning to be prepared, and was not ready until about 1:00 p.m. The conditions of the facility were found to be a potential threat to the health, safety and welfare of the residents in that flies were observed in the kitchen area; the entire kitchen was generally dirty and unsanitary; roaches were found in the refrigerator; food containers in the refrigerator had no covers; there was unwrapped meat stored in the refrigerator; and the refrigerator was generally unclean. The medicine cabinet was unlocked. In the bedroom areas, beds were dirty and unmade; there were roach droppings found in the beds and in the dresser drawers; the ceiling and walls were wet from rain due to the roof leaking; the ceiling sheetrock had fallen out in one of the closets with the clothes still in there, and the clothes were wet because of the leak; the facility had mold and mildew on the walls and ceilings; and generally smelled musty. In the bathroom, the toilet was stopped up and had been used until it was filled with feces; the bathtub was dirty; the sink was dirty; the hot water did not work in the sink; and the cold water tap would not turn off. Outside the facility, the kitchen sink drained into an open pipe which discharged onto the ground. The linoleum in the facility was not tacked down properly, and the metal trim was exposed so that a resident could be injured. 4.. Another visit was made on September 15, at approximately 1:30 p.m. During this investigation, the menus had not been kept on a weekly basis nor corrected with changes in the meals. The records were incomplete or were missing from their folders. There was no indication of any special diets for two of the residents who had diabetes. The contracts between the facility and the residents were out of date. Roaches were still found to be present in the closets and in the refrigerator and the kitchen waste water was still being piped onto the ground behind the facility. On September 16 the Department made another inspection. This revealed that the facility had improper wiring, and did not meet the requirements of the standard building code. Plates were off the wiring receptacles making it possible for residents to come in contact with electrical wiring; exterior wiring was done improperly; interior lighting fixtures were put on the exterior of the building; LP gas heaters were improperly installed; and the beds were too close to the gas heaters. Neither the plumbing, nor the wiring, nor the building itself were in compliance with the applicable building codes. The-respondent either denied that the conditions found by Department representatives existed, or she contends that those which existed have been corrected. However, there was no evidence presented by the respondent to show that the plumbing, electrical wiring or the building itself is in compliance with the applicable building codes. Thus, there is substantial, competent evidence to support a finding that the violations alleged existed on September 12, 14, 15 and 16, 1983.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the license of Carrie Fletcher to operate the adult congregate living facility known as the Fletcher Group Home, be revoked. THIS Recommended Order entered this 4 day of June, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4 day of June, 1984. COPIES FURNISHED: John L. Pierce, Esquire 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 Conrad C. Bishop, Jr., Esquire Post Office Box 167 Perry, Florida 32347
