The Issue This is a license discipline proceeding in which, on the basis of facts alleged in a First Amended Administrative Complaint, Petitioner seeks to take disciplinary action against Respondent. It is alleged that Respondent violated Section 386.204, Florida Statutes, “by and through Section 386.207(3), Florida Statutes,” by allowing patrons to smoke in an enclosed indoor workplace.
Findings Of Fact The parties have stipulated to the fourteen paragraphs of findings of fact which follow. Petitioner is the State of Florida, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is Old Cutler Oyster Company, Inc., d/b/a Old Cutler Oyster Company. Respondent holds license number 22-20655, Series 4-COP, issued by Petitioner. Michael Pace is the President of Respondent and holds 100 percent of the stock of Respondent. Lisa Tyrell was the manager and person in charge at Respondent’s licensed premises on July 9, 2003. Ms. Tyrell is currently employed by Respondent as a manager. Ms. Tyrell called Michael Pace on the telephone, then gave the receiver to Fernandez (Special Agent), who explained to Mr. Pace that violations of the Florida Clean Indoor Air Act were occurring on the licensed premises. On July 9, 2003, Special Agent Fernandez issued an Official Notice of Warning to Ms. Tyrell as a result of observing patrons smoking which, he claimed, was in violation of the Florida Clean Indoor Air Act. On August 15, 2003, Special Agent Fernandez issued a Notice to Comply to Mr. Pace and told him that he had thirty days to comply with the notice or administrative charges would be filed. The notice alleged a violation of the Florida Clean Indoor Air Act by “allowing patron to smoke cigarettes on 4-COP SRX licensed premises.” Special Agent Fernandez visited the licensee a third time on September 18, 2003. At all times material hereto, Respondent held a valid retail tobacco products dealer permit issued by Petitioner. At no time did Special Agent Fernandez observe any of Respondent’s employees smoking within Respondent’s business premises. No patron received a citation for violating the Florida Clear Indoor Air Act. On July 9, on August 15, and on September 18 of 2003, Special Agent Fernandez observed patrons smoking tobacco products within Respondent’s licensed premises.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a final order be issued in this case dismissing the First Amended Administrative Complaint and denying all relief sought by the Petitioner. DONE AND ENTERED this 24th day of September, 2004, in Tallahassee, Leon County, Florida. S 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 24th day of September, 2004.
The Issue Whether proposed rules 10D-105.009, 10D-105.011 and 10D-105.012, Florida Administrative Code, related to the Florida Indoor Clean Air Act constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Garrison Corporation, Inc., (Garrison) operates a chain of retail tobacco outlets, doing business as "Smoke & Snuff" stores in 16 Florida mall locations. In addition to tobacco products, Garrison sells tobacco-related accessories and various gift items. Garrison is a family-owned business in existence since November of 1973. As a retail store primarily in the business of selling tobacco or tobacco related products, the Garrison stores are exempt from the smoking restrictions set forth in the Florida Clean Indoor Air Act (Act). Customers of the Garrison stores can smoke within Smoke & Snuff stores without restriction. At least two of the malls in which Garrison stores operate have advised that smoking will be prohibited within mall common areas. Some mall operators have implemented smoking prohibitions on their own unrelated to requirements of the Act. Garrison asserts that the imposition of mall smoking restrictions results in a decrease in customer traffic in the mall and declining sales for the tobacco retailer. The chief operating officer for Garrison testified at hearing that the imposition of tobacco smoking restrictions in Florida malls has caused and will continue to result in a diminution in business for the Smoke & Snuff stores. In support of its position, Garrison offered unaudited sales and income figures for the Smoke & Snuff stores. A review of the sales figures indicates that sales in many Smoke & Snuff stores have declined in past years. The decline in Garrison sales has not been limited merely to tobacco products, but has impacted non-tobacco merchandise lines sold in the Smoke & Snuff stores as well. Over the past five years, smoking by adults has decreased in the United States. As smoking has declined, the adult customer base for tobacco products has been reduced. Further, other factors such as store personnel, weather and economic conditions can affect retail sales. There are no studies on the extent of sales impact, if any, caused by the imposition of tobacco smoking restrictions in malls. There are no studies which indicate that the imposition of smoking restrictions in malls results in a decline in customer traffic. The evidence fails to establish that customer traffic declines as a result of the imposition of smoking restrictions. The evidence fails to establish that the Garrison sales decline is directly or primarily related to the imposition of smoking restrictions in the malls where the Smoke & Snuff stores are located. The evidence fails to establish that Petitioner Garrison has standing to challenge the proposed rules. As to MacKoul Distributors, the prehearing stipulation states that MacKoul Distributors operates a place of employment and as such is subject to the Act and the proposed rules. Part II of Chapter 386, Florida Statutes, is the Florida Clean Indoor Air Act (Act). As stated at section 386.202, Florida Statutes, the purpose of the Florida Clean Indoor Air Act is as follows: ...to protect the public health, comfort, and environment by creating areas in public places and at public meetings that are reasonably free from tobacco smoke by providing a uniform statewide maximum code. The Act does not require the designation of smoking areas.... The Act provides at Section 386.204, Florida Statutes, as follows: A person may not smoke in a public place or at a public meeting except in designated smoking areas. These prohibitions do not apply in cases in which an entire room or hall is used for a private function and seating arrangements are under the control of the sponsor of the function and not of the proprietor or person in charge of the room or hall. Section 386.203, Florida Statutes, provides definitions as follows: "Public place" means the following enclosed, indoor areas used by the general public: Government buildings; Public means of mass transportation and their associated terminals not subject to federal smoking regulation; Elevators; Hospitals; Nursing homes; Educational facilities; Public school buses; Libraries; Courtrooms; Jury waiting and deliberation rooms; Museums; Theaters; Auditoriums; Arenas; Recreational facilities; Restaurants which seat more than 50 persons; Retail stores, except a retail store the primary business of which is the sale of tobacco or tobacco related products; Grocery stores; Places of employment; Health care facilities; Day care centers; and Common areas of retirement homes and condominiums. * * * "Smoking" means possession of a lighted cigarette, lighted cigar, lighted pipe, or any other lighted tobacco product. "Smoking area" means any designated area meeting the requirements of ss. 386.205 and 386.206. "Common area" means any hallway, corridor, lobby, aisle, water fountain area, restroom, stairwell, entryway, or conference room in any public place. The Act provides no definition of "retail store" or "place of employment." The Act does not specifically include "malls" within the definition of "public places." Section 386.205, Florida Statutes, addresses the matter of designation of smoking areas, and provides as follows: Smoking areas may be designated by the person in charge of a public place. If a smoking area is designated, existing physical barriers and ventilation systems shall be used to minimize smoke in adjacent nonsmoking areas. This provision shall not be construed to require fixed structural or other physical modifications in providing these areas or to require operation of any existing heating, ventilating, and air conditioning system (HVAC system) in any manner which decreases its energy efficiency or increases its electrical demand, or both, nor shall this provision be construed to require installation of new or additional HVAC systems.. (2)(a) A smoking area may not be designated in...any common area as defined in s 386.203.... * * * In a workplace where there are smokers and nonsmokers, employers shall develop, implement, and post a policy regarding designation of smoking and nonsmoking areas. Such a policy shall take into consideration the proportion of smokers and nonsmokers. Employers who make reasonable efforts to develop, implement, and post such a policy shall be deemed in compliance. An entire area may be designated as a smoking area if all workers routinely assigned to work in that area at the same time agree. With respect to the square footage in any public place as described in subsection (4), this square footage shall not include private office work space which is not a common area as defined in s. 386.203(6) and which is ordinarily inaccessible to the public. No more than one-half of the total square footage in any public place within a single enclosed indoor area used for a common purpose shall be reserved and designated as a smoking area. This square footage limitation does not apply to restaurants as defined in s. 386.203(1)(p). However, such a restaurant must ensure that no more than 65 percent of the seats existing in its dining room at any time are located in an area designated as a smoking area. A smoking area may not contain common areas which are expected to be used by the public. Section 386.206, Florida Statutes, provides as follows: The person in charge of a public place shall conspicuously post, or cause to be posted, in any area designated as a smoking area signs stating that smoking is permitted in such area. Each sign posted pursuant to this section shall have letters of reasonable size which can be easily read. The color, design, and precise place of posting such signs shall be left to the discretion of the person in charge of the premises. In order to increase public awareness, the person in charge of a public place may, at his discretion, also post "NO SMOKING" or "NO SMOKING EXCEPT IN DESIGNATED AREAS" signs as appropriate. Section 386.207, Florida Statutes, addresses the administration and enforcement of the provisions of the Act and provides as follows: The department or division shall enforce ss. 386.205 and 386.206 and to implement such enforcement shall adopt...rules specifying procedures to be followed by enforcement personnel in investigating complaints and notifying alleged violators, rules defining types of cases for which exemptions may be granted, and rules specifying procedures by which appeals may be taken by aggrieved parties. Public agencies responsible for the management and maintenance of government buildings shall report observed violations to the department or the division. The State Fire Marshal shall report to the department or division observed violations of ss. 386.205 and 386.206 found during its periodic inspections conducted pursuant to its regulatory authority. The department or division, upon notification of observed violations of ss. 386.205 and 386.206 , shall issue to the proprietor or other person in charge of such public place a notice to comply with ss. 386.205 and 386.206. If such person fails to comply within 30 days after receipt of such notice, the department or division shall assess a civil penalty against him not to exceed $100 for the first violation and not to exceed $500 for each subsequent violation. The imposition of such fine shall be in accordance with the provisions of chapter 120. If a person refuses to comply with ss. 386.205 and 386.206, after having been assessed such penalty, the department or division may file a complaint in the circuit court of the county in which such public place is located to require compliance. A person may request an exemption from ss. 386.205 and 386.206 by applying to the department or division. The department or division may grant exemptions on a case-by- case basis where it determines that substantial good faith efforts have been made to comply or that emergency or extraordinary circumstances exist. Section 386.208, Florida Statutes, provides as follows: Any person who violates s. 386.204 commits a noncriminal violation as provided for in s. 775.08(3), punishable by a fine of not more than $100 for the first violation and not more than $500 for each subsequent violation. Jurisdiction shall be within the appropriate county court. This case involves the Petitioners' challenge to proposed rules 10D- 105.009(1), (2), (3), (4), (8), (10) and (11), proposed rule 10D-105.011, and proposed rule 10D-105.012(2). In relevant part, proposed rule 10D-105.009 provides as follows: 10D-105.009 - On-Site Investigations of Public Places -- During inspections or investigations of any Clean Indoor Air Act complaint, HRS personnel shall document all observed violations of Florida Statutes sections 386.205 or 386.206. Such violations include the following: In any workplace where there are smokers and nonsmokers, employers shall develop a policy with regard to the designation of smoking areas. Should there be no written policy, a violation of section 386.205(3), F.S., exists and will be documented as "Failure to develop a smoking policy regarding smoking and nonsmoking areas." Employers are required to implement a written smoking policy. If employees are observed violating a workplace smoking policy, a violation of section 386.205(3), F.S. exists and will be documented as "Failure to implement an existing smoking policy." Should a smoking policy exist for a workplace but not be posted, a violation of section 386.205(3), F.S. exists and will be documented as "Failure to post a smoking policy." When a common work area is designated as a smoking area, all workers assigned to work within that single enclosed area must agree to such a designation. (Partitioned work spaces and rooms not separated by closed doors, floor to ceiling moveable walls or similar floor to ceiling barrier do not constitute separate work areas.) This violation of the Florida Clean Indoor Air Act will be documented as: failure to post signs in a designated smoking area, a violation of section 386.206, F.S., and failure to implement a smoking policy regarding smoking and nonsmoking areas, a violation of section 386.205(3), F.S. * * * (8) If single occupancy offices have not been counted in the calculation of the square footage of a designated smoking area where both smokers and nonsmokers routinely assigned to work at the same time and the doors of those offices are left open, then a violation of section 386.205(3), exists and will be documented as "Square footage calculation for designation of smoking areas is incorrect." * * * If smoking is allowed anywhere in an enclosed shopping mall concourse, then a violation of section 386.205, F.S., exists and shall be documented as :"Smoking permitted or designated in a prohibited area." If smoking is allowed in an enclosed shopping mall food court and is not specifically regulated by the Department of Business and Professional Regulation, then a violation of section 386.205, F.S., exists and shall be documented as "Smoking permitted or designated in a prohibited area." In relevant part, proposed rule 10D-105.011 provides as follows: 10D-105.011 - Types of Cases for which Exemptions may be Granted; Procedures by which Appeals may be taken by Aggrieved Parties. -- The proprietor or other person in charge of a public place may request an exemption from Florida Statutes sections 386.205 or 386.206, by submitting their request in writing to the HRS State Health Officer. On the recommendation of the State Health Officer, the department may grant any exemptions from the requirements of section 386.205(4) or 386.206, F.S., as an emergency or extraordinary circumstances which justifies exemption when compliance with the Florida Clean Indoor Air Act would result in a greater hazard to public health than would result from granting an exemption. Temporary exemptions of limited duration may be granted under emergency or extraordinary conditions when good-faith efforts to comply have been made. Public places which have received a letter of complaint as described by Florida Statutes section 386.207(2), and intend to request exemption from the requirements of the law, must file such a request with the State Health Officer within 30 days of receipt of the notice of the alleged violation. Proprietors or persons in charge of public places who have been assessed penalties under Florida Statutes sections 386.205 or 386.206, may seek administrative review of the assessment pursuant to the provisions of Florida Statutes Chapter 120. In relevant part, proposed rule 10D-105.012 provides as follows: 10D-105.012 - Minimum Standards for Assessing Fines by HRS Personnel Against Public Places Found to be in Violation of the Florida Indoor Clean Indoor Air Act. When the proprietor or other person in charge of a public place has been notified of observed violations and has failed to correct those violations, the department shall assess fines in accordance with the provisions of Chapter 120, Florida Statutes.... (The subsection includes a list of violations with increasing fines depending on whether the violation is a first, second or third offense.) * * * For every offense after the third offense, the maximum penalty of $500.00 shall be assessed. Each day that a violation continues shall constitute a separate violation. Separate fines shall be assessed for each observed violation, and for each day that each violation persists.
The Issue The issues are (1) whether engaging in air conditioning contracting regulated by the Florida Electrical Contractors Licensing Board pursuant to Section 489.500 et seq. Part II, Florida Statutes, constitutes exceeding the scope of one's license as an electrical contractor, (2) whether performing air conditioning contracting in the name of "Dixon's Heating and Air Conditioning" constitutes operating in a name other than the name his electrical contracting license is issued in, contrary to Subsection 489.533(1)(l), and (3) whether Respondent willfully violated the building codes by venting the heater improperly, failing to get a permit and get work inspected.
Findings Of Fact Notice of hearing was given to Respondent at Route 2, Box 595, Yulee, Florida 32097. Arnold Dixon is and has been at all times material to this case a registered electrical contractor, license number ER0004417. (Pet. Ex. 1 & 2) He has maintained his address of record as Route 2, Box 595, Yulee, Florida 32097. (T-Pg. 6) He has held such license since 1976. (Pet. Ex. 1 & 2) Arnold Dixon does not hold a license, a state registration or certification to engage in contracting as a heating or air conditioning contractor. (Pet. Ex. 4 & 6) Arnold Dixon does hold a Nassau County Occupational License as an electrical contractor and as a heating and air conditioning contractor. No check of local records was conducted to see if he had a local license as an air conditioning contractor. (T-Pg. 22) On or about June 1985, the Respondent's company, Dixon's Heating and Air Conditioning, contracted to install an air conditioning and heating unit at the home of John Williams for a contract price of $1985. (Pet. Ex. 5 and T-Pgs. 10 & 11) The work on this contract was done by David Everett, who negotiated the contract. The Respondent's company, Dixon's Heating and Air Conditioning, did not obtain a permit to perform the work at the Williams' residence. Inspections on the Williams' job were not called for by Dixon's Heating and Air Conditioning. Permits and inspections were required by the applicable building code. (T-Pgs. 25 & 26) Entering into a contract to perform air conditioning and heating work and performing such work is air conditioning contracting, which is regulated under Part I, Chapter 489, Florida Statutes. After installation by Dixon's Hearing and Air Conditioning, the Williams' heating system generated carbon monoxide when operating because there was insufficient fresh air being provided to the unit. Because the air intake was in a closet which restricted the air supply to the hot air handling system, the air handling unit sucked fumes from the exhaust side of the unit back through the unit's combustion chamber and circulated it through the house. The longer the unit ran, the more debris was trapped in the louvered door of the closet and the more combustion gases were pulled through the combustion chamber and distributed through the house by the air handling unit. (T-Pg. 34) According to the manufacturer's representative, the hot air return is required to be ducted into the unit. In this case, the return air was pulled from inside a closet which had louvered doors. No duct was used and this installation was not in accordance with the manufacturer's instructions. Although the unit as installed was unsafe and had the potential to kill, no evidence was received that failure to install the unit in accordance with the manufacturer's instructions was a violation of local building code. (T-Pgs. 34- 38) Dixon's Heating and Air Conditioning did not hold itself out to be and was not engaged in electrical contracting in fulfilling the Williams' contract. Dixon's Heating and Air Conditioning did hold itself out to be an air conditioning contractor and the work performed in fulfilling the Williams' contract was air conditioning contracting.
Findings Of Fact Respondent Tom E. Connelly, operates a restaurant at 3620 South Atlantic Avenue, Daytona Beach, Florida. That restaurant is known as Sally's Donut Shop. Respondent holds a license issued by the State of Florida, Department of Business Regulation, Division of Hotels and Restaurants, license number 74-16O5R. That license on its face indicates that the license is for food service with a seating capacity of eight and a class of service known as ZK. In addition, Respondent holds an occupational license issued by Volusia County, Florida, which indicates that the establishment is a restaurant with zero to thirty seats. Connelly has also been issued a license by the City of Daytona Beach Shores, Florida. In that license the business is described as a coffee shop. It is indicated that the establishment has eight seats. Finally, Respondent has been issued a permit from the Volusia County Health Department to operate the food service establishment in question. Respondent is the most recent proprietor in a series of individuals who have utilized the licensed premises for purposes of operating a restaurant. Quentin Freeman opened the licensed premises in May of 1973 and operated until January 1, 1974. At the time of his ownership the business was primarily involved with serving customers coffee and donuts. The premises had one restroom available for customers and access to that restroom was through the food preparation area. The hand washing facilities for employees of the establishment were found in the bathroom. There was no duplication of hand washing facilities for the benefit of employees in the food preparation area. Mr. Freeman held the necessary permits to operate the restaurant. Tables and chairs were available to the patrons of the restaurant and they were located within the premises proper. There were two tables and four chairs. The patrons used those tables and chairs when consuming the food served at the licensed premises. Those tables and chairs assisted Freeman in his enterprise, in that they were deemed to be of value to his business operation. Freeman also served sandwiches. The sandwiches which were served were not cooked on the licensed premises. An additional feature of the business was a takeout service where patrons would purchase their food and leave the premises before consuming the food purchased. A stove or range which is now present in the licensed premises was not there during Freeman's ownership. A donut machine with hood was located in the premises at the time of Freeman's ownership and at present. At present there are more tables and chairs in the restaurant than was the case when Freeman was the proprietor. There are now four tables in the licensed premises. Freeman was never cited with any form of violation related to licenses issued by the state, county or municipality, pertaining to the operation of his food establishment. Freeman sold the business to Dorothy and Adolf Becker. He has continued to frequent the licensed premises and has observed that tables and chairs have remained in that business premises from the time of his ownership to the present. The business has not significantly changed in that period, in the way of any reconstruction. Alterations that have been made in the licensed premises since the time of the Freeman ownership pertain to the change in location of a counter, the removal of a wall, the addition of tables and chairs, and the inclusion of the range or stove in the food preparation area. Freeman also had an ice cream machine in the licensed premises which has been removed. The Beckers operated the food service establishment from January 1974 through August, 1979. At the time of their operation, the business had only the one restroom in the licensed premises and access to that restroom was through the food preparation area. No hand wash facilities for the benefit of employees, with hot and cold water function, were found in the food preparation area. At the time of the operation by the Beckers, the stove or range which is presently located in the food preparation area was not installed. Becker was inspected during the ownership period by persons within the Volusia County Health Department who were acting in the capacity as representatives of the Petitioner. During the Becker ownership no citations were given by the Petitioner or other regulatory agencies related to deficiencies pertaining to the number of restrooms in the premises; the fact of access to the one restroom in the premises through the food preparation area; the non- existence in the food preparation area of a hand wash facility for the benefit of employees or the operation of the food service establishment without installing an exhaust hood over all the cooking gear, which hood had an automatic fire-extinguisher. Susan Niles purchased the premises from the Beckers. Niles operated the business as a donut and sandwich shop. Her ownership lasted from August 1979 through February 1981, when the business was sold to the Respondent. During her ownership Niles conducted a takeout food service, and served a small breakfast menu, with the food staples being sandwiches and donuts. In the beginning, she had two tables with three to four chairs each. She knocked out a wall and relocated the counter. She also added two or three smaller tables that would accommodate two to three chairs each. When she purchased the business there were some tables and chairs already located there. Those tables and chairs were on the inside of the licensed premises. She found the chairs and tables to be a valuable asset in the operation of the business. She had licenses necessary to conduct her business. Regular inspections were made of her licensed premises on the part of government officials, among them one James E. Jackson, an employee of the Volusia County Health Department, who inspected for the benefit of Petitioner. No citations were given for problems within the licensed premises, during Niles' ownership. During Niles' operation, approximately twenty percent of the business was for customer consumption of food on the premises with the balance being takeout. Niles added a stove or range, which is still in the licensed premises. Most of her cooking was done at home, away from the premises, and the stove was used to boil water for coffee and to cook an egg or prepare bacon. The stove which was added by Niles, did not have a vent system associated with it and still does not. Niles removed the ice cream machine which had been installed by the Freemans and was also operated by the Beckers. When Respondent took over the restaurant in 1981, he operated the business in essentially the same fashion as the prior owner. He sold donuts and sandwiches and served breakfast. The sandwiches were hot and cold sandwiches. The donuts were prepared on the premises. The donut making machine has a vent system associated with it and has had that feature at all relevant points in time. The kitchen stove or range which has been mentioned before has four top burners and it is used by Connelly to boil potatoes, for potato salad, for poaching eggs and frying eggs. In addition there is a microwave oven in the premises which is used for the preparation of bacon and sausage. Finally, the oven is used for cooking turkeys. In using the stove there Is a limited amount of steam and grease associated with its use. Connelly has made no changes to the physical layout of the licensed premises following his purchase of the business. Connelly has not added any tables or chairs subsequent to his purchase. At present there are four tables and eight chairs. When Connelly purchased the premises he verified the existence of necessary licenses and permits for the prior owner, to insure his ability to gain necessary licenses and permits for the prior owner, to insure his ability to gain necessary permission from those regulatory agencies. The licenses and permits issued to the prior owner led Connelly to believe that tables and chairs were associated with the business. He paid the proprietor $9,500.00 in cash and entered into a lease with the building owner. Connelly would not have purchased the business had he not understood that seating capacity for patrons would be made available. During the period of Connelly's ownership periodic inspections have been made of the premises. Prior to April 12, 1984, no citations had been given to Connelly related to the licensed premises. Moreover, and permit renewals have been granted Connelly at appropriate times within his conduct of business at the subject location. In the face of the present charges, Connelly has inquired of contractors on the subject of adding an additional restroom. Those two contractors on the subject of adding an additional restroom. Those two contractors have indicated that this cannot be achieved within the premises now occupied by Respondent. The State of Florida, Department of Business Regulation, Division of Hotels and Restaurants, has a contract with Volusia County Health Department to inspect premises which are licensed by the state agency. In that connection, James E. Jackson and Karen Fisher, employees of Volusia County Health Department have inspected the licensed premises while Respondent has operated the business. Moreover, Jackson inspected the premises when it was owned by other proprietors, who have been previously identified. No citations were given by Jackson, notwithstanding conditions which are similar to what was discovered by Karen Fisher when she took over Jackson's inspection responsibilities for the licensed premises in question. Her responsibility began in February, 1984. After assuming the responsibility for inspecting Connelly's business, Fisher made a routine inspection and no citations were given to Connelly based upon that inspection. Subsequently, based upon remarks made by Connelly against a competitor, to the effect that the competitor was serving meals in the competitor's licensed premises, inappropriately, an inspection was made of that premises leading to the removal of tables and chairs from that premises. In turn, the competitor complained that Connelly was inappropriately providing tables and chairs for food consumption on premises in an establishment which could not allow that circumstance. This caused Fisher to return to the licensed premises on April 12, 1984, and to cite Respondent for violations as reflected in the notice to show cause document. In particular, Fisher noted on that date that the access to the restroom was not possible without crossing the food preparation area. She observed that there was only one restroom available on the licensed premises. She observed that the food preparation area did not have available a hand wash sink with hot and cold feature, which could be used by the employees within the licensed premises. She also noted that the range or stove which had the four burners and oven did not have a vent associated with that apparatus. That ventilation system is also referred to as a hood. Further inspections on April 18 and May 2, 1984, did not indicate a change in circumstance related to the areas identified by Fisher as being problems. Following the issuance of the notice to show cause, by the Petitioner, the items complained of remain in the same status as existed on April 12, 1984. Prior to this charge, Petitioner was unaware of the existence of seating in the licensed premises however, when the management or its designee, i.e., a supervisor within the Volusia County Health Department, learned of the problem of alleged rules violations, Petitioner then placed charges against the Respondent.
Findings Of Fact By his answers to Petitioner's Request for Admissions, Respondent indicates, and it is so found, that he is currently licensed by the Florida Construction Industry Licensing Board under license CA C010372 as a certified air conditioning contractor; that his license was in effect at all times material to the allegations involved in this hearing; and that his license was in effect as of the date of the hearing. The Construction Industry Licensing Board, (Board), is the state agency responsible for licensing construction trades professionals in this state. Sometime prior to August 18, 1987, Respondent's firm contracted with Ralph Worthington to replace the air conditioning system at Mr. Worthington's home in Pinellas County, Florida. The contract price was $3,075.00. The work was completed. On August 19, 1987, Dale J. Parker, a mechanical inspector for the City of St. Petersburg, which utilizes the Standard Mechanical Code as a guideline for construction in the city, inspected the unit in question installed by Respondent's concern, Residential Air Conditioning. A permit to complete the work had been issued on June 25, 1987 for the work. No explanation was given for why the inspection was not done until approximately two months after the permit was issued, but that delay is not relevant to the issues here. During his inspection, Mr. Parker found that the provisions of Sections 303.2 and 303.3 of the Standard Mechanical Code had not been followed by the Respondent's firm in that no light was available in front of the unit, no electrical disconnect was furnished for the unit, and there was no clear access to the unit. Access is required to be through an unencumbered space no less than 22 by 36 inches. When he went up into the attic to examine the unit, he found the area to be tight and dark. At the time, he was unable to see any defects other than those he listed, but his general opinion of the installation was that it was "not a good job" and was somewhat "sloppy". As a result of the defects he saw, he rejected the work and "red tagged" it. Issuance of a red tag requires correction of the defect and reinspection of the work. Evidence indicates that the required light had not been there prior to Respondent's installation and the access to the unit, which required stepping over an air duct, was the same as it had been before the installation of the new unit. The Code requirement to correct these defects existed when the house was built. It is clear the initial installation, not done by Respondent, was also deficient. Respondent admits that when he installed the new unit, he assumed the responsibility for correcting the existing deficiencies and bringing the installation up to Code requirements. However, Mr. Worthington, the homeowner, would not allow Respondent's personnel back into his residence to correct the problems. This does not excuse the improper installation but would have resulted in a waiver of the reinspection fee. On October 1, 1987, William Rinehart, owner of Johnson's Air Conditioning, who had been contacted by Mr. Worthington, sent his technician, Mr. Aleshire out to the property to make the repairs. Mr. Aleshire discovered a lot of water in the insulation in the attic in the area around the air conditioning unit. He also noticed that duct work had come loose from the unit, that the unit was tilted, and that both the primary and secondary drain pipes were clogged with sand at the outside outlet. When he moved the insulation, he found the attic floor had rotted as a result of water condensation which had spilled out of the drain pans surrounding the unit onto the floor. As a result, the attic floor fell through into the room below. Mr. Aleshire found that the air handling unit was improperly tilted. So was the primary drain pan which was improperly tilted away from the drain. Since the drain was clogged, when the condensation collected in the pan, instead of draining out, it ran over the opposite side of the pan into the secondary pan from which it could not drain because that plug was clogged as well. As a result, the condensation water ran over out onto the attic floor. Aleshire also noticed that some of the wiring had to be replaced because of a lack of sealing and failure to use Romex connectors, both of which are required by the Code. In his opinion, however, except for the electrical problems and the tilted air handling unit and drain pans, the installation was up to Code. Had it not been for the clogged drains, the unit would probably have worked satisfactorily for a long period without problems. There is no evidence to connect the clogged outside drains with the Respondent. He is, however, responsible for the other defects noted. Both Aleshire and Rinehart consider the tilted installation of the air handling unit improper. Mr. Rinehart would have used adjustable bolts to affix the unit and a carpenter's level to insure the drainage was proper. The failure to level the unit is negligence and the failure to utilize proper sealant and Romex connectors constituted misconduct since both are required by the Code. Respondent does not deny either of these defects. He contends his firm did what it agreed to do. When Mr. Worthington complained, he initially responded and attempted to correct the problems but was unable to do so to Mr. Worthington's satisfaction. The problems were not corrected by Respondent. Nonetheless, Respondent contends his firm tried to do a proper job and feels Worthington overreacted, frequently complaining when a workman was only a few minutes late for a scheduled appointment. Respondent was not personally aware of the details of the installation in question, did not do any of the work himself; nor did he inspect the job when it was completed. When this work was being done, Respondent, who is in partnership with Mr. Neidrich was in Tampa opening another office for the firm. He first found out about it after a complaint was filed and, in an effort to work out their differences, attempted to contact Worthington up until the time the Department of Professional Regulation got into the picture. Respondent, who qualified the company under his license, is an engineer and his primary function with the company is to design complicated systems. He visits jobs of "difficult installation" but acts merely as a consultant on the company's routine business. He performs quality checks from time to time on routine as well as major jobs to insure the work is being done properly. Though he testified he does this on a weekly basis, he admitted his last inspection was four weeks before the hearing. The correction of the defects identified herein was subsequently accomplished by another contractor hired by Mr. Worthington at additional cost. He also paid $422.80 to replace floor covering damaged as a result of the tilted air conditioning unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Neal A. O'Connor be reprimanded and pay an administrative fine of $500.00. RECOMMENDED this 25th day of May, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1989. COPIES FURNISHED: Elizabeth A. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Neal A, O'Connor 1925 Hastings Drive Clearwater, Florida 34623 Kenneth A. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs CASE NO.: 89308 DOAH CASE NO.: 89-0186 NEAL A. O'CONNOR, LICENSE NO.: CA C010372, Respondent. /
The Issue The issue is whether the Petitioner's imposition of an administrative fine of $300 upon the Respondent should be upheld.
Findings Of Fact Riverview Rest Home is an adult congregate living facility which is subject to licensing by the Petitioner. This facility was so licensed on the dates in question, and remains licensed to the present time. On July 23, 1980, members of the professional staff of the Petitioner inspected the Respondent. Based upon this inspection the Respondent was issued a list of violations and deficiencies. In addition to those which were subsequently corrected, the violations in issue are: (1) screens in the kitchen area in need of repair, (2) a toilet which could not be flushed, and was full of human waste, (3) dust and dirt accumulated in the bed frames, and window sills cluttered with dust, lint, cigarette butts, paper and cobwebs, and (4) dirt on the floor under beds. A reinspection of Riverview Rest Home was conducted on August 15, 1980, which revealed the following: A toilet accommodating 4 residents was semi-full of toilet paper, human urine and feces, and emitting a strong odor. Two residents were sitting or lying in rooms in close proximity to this toilet. An attempt to flush this toilet disclosed the tank to be empty and the water to have been cut off. When the water was turned on, the toilet began to leak in a large stream. The toilet seat was loose, broken, and not attached to the base. Heavy accumulations of lint, dust and dirt on bed frames, and window sills cluttered with dust, lint, cigarette butts, bits of paper and cobwebs. The outside screen door adjacent to the kitchen area was torn and in need of repair. Dirty and stained mattresses in resident rooms, dirty, urine stained, and soiled sheets on resident beds. Bathroom fixtures were dirty, stained, in need of cleaning, and the floor around toilets was dirty and wet. The table in the cottage where residents eat was dirty, and showed the residue of a previous meal or meals. Other violations or deficiencies were observed during reinspection, but the above are repeat occurrences of those first noticed on July 23, 1980. In addition, a fire marshall of the City of Holly Hills conducted a fire safety inspection of the Respondent facility on August 4, 1980, and found 5 violations of the City Fire Code. A reinspection was done on August 13, 1980, to verify corrections, and the gas hot water heater which had been found improperly vented, had not been corrected. A second reinspection on August 21, 1980, found the gas hot water heater then properly vented, but the emergency lighting system was not working. The Respondent, while not admitting the violations and deficiencies described above, presented no evidence to controvert the testimony of the Petitioners witnesses relative to the results of inspections of the Respondent facility. Essentially, the Respondents position is that all of the alleged deficiencies are first-time violations not subject to fine or penalty. However, there is adequate evidence in the record to support a finding that the violations for which a penalty was assessed were recurring deficiencies not corrected after the Respondent had been advised of their existence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's imposition of an administrative fine in the amount of $300 be upheld. THIS RECOMMENDED ORDER entered on this 12th day of January, 1981. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1981. COPIES FURNISHED: Leo J. Stellwagaen, Esq. Assistant District IV Counsel P.O. Box 2417 F Jacksonville, Florida 32231 Leo Siroky Riverview Rest Home 700 Daytona Avenue Holly Hill, Florida 32017
