The Issue Did the Respondent commit the offenses alleged in the Administrative Complaint Following Emergency Closure and, if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of licensing and regulating public lodging establishments. At all times pertinent to this proceeding, Respondent was a licensed public lodging establishment as that term is defined in Section 509.013(4)(a), Florida Statutes, license number 38-00194-H, located at 1720 US Highway 27, Avon Park, Florida. At all times pertinent to this proceeding, Richard Barnhart was employed by the Department as a Sanitation and Safety Specialist. At all times pertinent to this proceeding, Ed Madden was employed by the Department as a Sanitation and Safety Supervisor. On March 10, 2000, Barnhart performed a routine inspection of Respondent's public lodging establishment (Litto's Apartments) and observed two safety violations which were classified as violations of critical concern. A violation classified as of critical concern is required to be corrected immediately. The safety violations observed by Barnhart were: (a) fire extinguisher missing on north side of Units 1 an 2 which resulted in some of the apartments located in Units 1 and 2 not having a fire extinguisher available within a maximum distance of 75 feet; and (b) no smoke detectors in apartments 1, 3, and 8. On March 10, 2000, Barnhart prepared a Lodging Inspection Report advising Respondent of, among other things, the safety violations that had to be corrected by March 18, 2000. Eugene Riggs, Respondent's Apartment Manager, acknowledged receipt of the inspection report listing the violations and the date for correction of the violations of critical concern. On March 21, 2000, Barnhart performed a Call Back/Re- Inspection of Litto's Apartments and observed the same safety violations that were observed on March 10, 2000. On March 21, 2000, Barnhart prepared a Call Back/Re- Inspection Report advising Respondent that the violations observed on March 10, 2000, had not been corrected. This report advised Respondent that the report should be considered a warning and that Respondent would be issued a Notice to Show Cause why sanctions should not be assessed against Respondent's license. Eugene Riggs acknowledged receipt of a copy of the Call Back/Re-Inspection Report. During a routine inspection conducted on March 21, 2000, Barnhart observed that: (a) the apartments' water supply was less than 75 feet from a septic tank and drain field, a sanitation violation of critical concern not observed on March 10, 2000; (b) there was raw sewage in an open septic tank on the premises, a sanitation violation of critical concern not observed on March 10, 2000; and (c) a septic tank had been disconnected resulting in raw sewage being dumped on the ground, a sanitation violation of critical concern not observed on March 10, 2000. Barnhart prepared a Lodging Inspection Report listing the violations observed during his routine inspection on March 21, 2000. Eugene Riggs acknowledged receipt of a copy of this report which, among other things, advised Respondent of the deadline of March 28, 2000, for correcting the additional violations observed on March 21, 2000, and the deadline of March 21, 2000, for correcting the violation observed on March 10, 2000, and not corrected by March 21, 2000. On March 28, 2000, Barnhart performed a Call Back/Re-Inspection of Litto's Apartments and observed that the violations observed on March 10, 2000, and March 21, 2000, had not been corrected. Barnhart prepared a Call Back/Re- Inspection Report on March 28, 2000, advising Respondent that the violations had not been corrected and that a Notice to Show Cause why sanctions should not be assessed against Respondent's license would be issued. On April 7, 2000, Barnhart and Supervisor Madden conducted a joint routine inspection of Litto's Apartments and observed that the violations of March 10, 2000, March 21, 2000, and March 28, 2000, had not been corrected. On April 7, 2000, a Lodging inspection Report was prepared advising Respondent that the violations noted on March 10, 2000, March 21, 2000, and March 28, 2000, had not been corrected. Based on the testimony of Richard Barnhart and Ed Madden, whose testimonies I find to be credible, there is sufficient evidence to show that: (a) a fire extinguisher was missing from the north side of the Units 1 and 2 which resulted in some of the apartments in Units 1 an 2 not having a fire extinguisher available within a maximum distance of 75 feet at the time of the inspection on March 10, 2000, and no fire extinguisher had been installed on the north side of Units 1 and 2 at time of the inspection on April 7, 2000, or during the intervening time; (b) smoke detectors were not installed in apartments 1, 3, and 8 at the time of the inspections on March 10, 2000, and smoke detector had not been installed in apartments 1, 3, and 8 at the time of the inspection on April 7, 2000, or during the intervening time; (c) at the time of the March 21, 2000, inspection, there was raw sewage in an open septic tank and sewage on the ground due to a septic tank blowout which had not been corrected at the time of the inspection on April 7, 2000, or during the intervening time; and (d) the water supply was located less than 75 feet from septic tank and drain field at the time of the inspection on March 21, 2000, which had not been corrected at the time of the inspection on April 7, 2000, or during the intervening time. Respondent's failure to have sufficient fire extinguishers properly located on its premises and Respondent's failure to correct this violation resulted in a significant threat to the public safety and welfare in that the residents were not properly protected from the danger of fire. Respondent's failure to provide smoke detectors in all of the apartments resulted in a significant threat to the public safety and welfare in that the residents were not being properly protected from the danger of fire. Respondent's failure to correct the contaminated water supply, correct the situation concerning the raw sewage being dumped on the ground, and to correct the situation where raw sewage was being left in an open septic tank resulted in a significant threat to the public health, safety, and welfare in that not only were the tenants being subjected to those unsanitary conditions but the general public as well. An Order of Emergency Suspension of License and Closure was issued by Respondent and signed by Gary Tillman, District Administrator, having been delegated this authority by the Director of Hotels and Restaurants. The Order of Emergency Suspension of License and Closure is dated March 7, 2000. However, this appears to be scrivener's error in that the order alleges violation that are alleged to have occurred on March 10, 21, 28, 2000, and April 7, 2000. Also, the Certificate of Service is dated April 7, 2000. The Order of Emergency Suspension of License and Closure was still in effect on December 18, 2000, the date of the hearing.
Recommendation Having considered the serious nature of the offenses committed by the Respondent, that Respondent is presently under an Order of Emergency Suspension of License and Closure for these same offenses, and that the Department is requesting that only an administrative fine be imposed against Respondent, it is recommended that the Department enter a final order finding that Respondent committed the offenses alleged in the Administrative Complaint Following Emergency Closure and imposing an administrative fine of $1,200.00 as requested by the Department. DONE AND ENTERED this 15th of February, 2001, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2001. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Division of Hotels and Restaurant Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Litto's Apartments 1720 U.S. Highway 27 Avon Park, Florida 33825-9589 Ahmed Anjuman 1720 U.S. Highway 27 Avon Park, Florida 32825-9589 Susan R. McKinney, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 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
Findings Of Fact Respondent holds license No. 23-7743-H covering all the premises mentioned in the notice to show cause in the present case, and held this license on October 23, 1980. (Stipulation on the record (P. 11) in Case No. 80-2428) On October 23, 1980, each violation alleged in the notice to show cause did in fact occur. Respondent employs a full-time staff averaging eight to nine persons, who are responsible for maintenance at Lincoln Fields. Respondent's payroll expenditures for maintenance are somewhere around $75,000 to $80,000 a year. Maintenance supplies cost a like amount. In addition, an independent contractor who does painting is paid $11,000 or $12,000 annually, and an exterminator is paid about $15,000 a year. No money has been extracted by any owner or respondent from the operating revenues of the apartment complex for several years. The owners are holding on in hopes that HUD will finance a renovation. Jeffrey Harris, Jr., who is the maintenance foreman of Lincoln Field Apartments, gets anything he needs from management to repair and maintain the premises. Sharon Marie Fleming is the office manager and bookkeeper for respondent. She was asked to correct the deficiencies noted by Mr. Brown on his October visit to the apartment complex. She made work orders to accomplish this and gave them to the foreman. She bought approximately 46 new fire extinguishers and caused other extinguishers to be reserviced. She paid for the 46 fire extinguishers in November with a check. Respondent's Exhibit No. 1. These fire extinguishers replaced 46 missing fire extinguishers. (R. 100) On April 13, 1981, respondent purchased an additional 41 fire extinguishers. No fire extinguishers were purchased between September 1, 1977, and November, 1980. Respondent has begun putting fire extinguishers inside apartments in an effort to prevent theft. Ordinarily leaky faucets are fixed on the same day Ms. Fleming's office receives a complaint, or on the following day. Exterminators come every Monday to exterminate pests in part of the apartment complex. They spray each apartment once a month and have agreed to spray in between times, as needed. Respondent would incur no additional expense if a tenant should request extermination between monthly visits. Before the extermination contract that existed at the time of hearing was entered into, respondent had contracted with the other exterminators and its own personnel exterminated at one time. In January of 1981, respondent contracted with the current exterminator, because their previous exterminator had not eliminated the rat problem. The grounds people cut the grass once as week. One company that worked on the sewage lines broke holes in the line in order to gain access. Since then, respondent's maintenance crew has installed regular "clean-outs" in the pipes and "straightened them out." People were stealing the metal screw-in-caps that fit into the pipe, so respondent started using caps made of PVC, which is much less valuable than brass. Tenants "stealing" electricity sometimes results in exposed wires. After exposed electrical wiring in a meter room had been corrected, respondent's employees built new meter room doors, bought new locks, and locked the doors. Broken windows became so commonplace ("not just the tenants, everybody comes in and breaks the windows" R. 111) that respondent began replacing windowpanes with a plastic that does not break. Painters paint every day, grounds people work full time on the grounds. Some tenants had left appliances in stairwells. Respondent caused these to be cleared out by threatening those tenants with eviction.
Recommendation It is accordingly, RECOMMENDED: That petitioner impose a fine against respondent in the amount of three thousand, five hundred dollars ($3,500). DONE AND ENTERED this 21st day of September, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1981. COPIES FURNISHED: Janice G. Scott, Esquire 725 South Bronough Street Tallahassee, Florida 32301 Harold Zinn, Esquire, and Samuel Burstyn, Esquire Eighth Floor 3050 Biscayne Boulevard Miami, Florida 33137 R. B. Burroughs, Jr., Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
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 The issue involved herein is whether or not the Respondent 2/ is guilty of violations set forth hereinafter in detail as stated in the Second Amended Notice to Show Cause filed by Petitioner herein. If so, the secondary issue is what penalty, if any, should be assessed for such violations. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant:
Findings Of Fact Robert C. Beiter, Sr. is the trustee and legal owner of the subject premises. On July 24, 1981, Petitioner, through its sanitarian, Richard Bragg, made an inspection of the subject premises situated at 610 Northwest Seventh Avenue, Pompano Beach, Florida. The premises is a public lodging establishment and is licensed by the Division of Hotels and Restaurants under license no. 16- 345 OH. During the inspection by Mr. Bragg, the following was observed: Fire extinguishers were overdue for service as indicated by the pressure gauges thereon or by the lack of service tags. Additionally, fire extinguishers were not kept or maintained on each floor at minimum distances of 75 feet apart. The general condition of the building revealed that paint was peeling from the walls, windows and doors were broken, the roof was leaking and there were missing window screens. The premises needed extermination for reaches and rodents. Public lighting in the stairways and walkways were not properly maintained in that the light fixtures were either not working or bulbs were missing. Covers were missing from various electrical outlets. Outside garbage dumpsters were not of sufficient size and placement for the 62 units in the premises, all of which had kitchen and cooking facilities. (See Petitioner's Exhibit No. 1) Inspector Bragg made a second inspection of the subject premises in early September, 1981, and found no compliance with the previous inspections as cited in the July 24, 1981 report. A third visit was made by Mr. Bragg on October 28, 1981, and he found the premises in the same condition with the exception that the public lighting in the stairways was operable and found to be in compliance. Subsequent visits were made by Mr. Bragg on November 17, 1981, and approximately one year later on December 13, 1982, at which time he found the same conditions existed as his original inspection on July 24, 1981, with the exception that some painting had been done. (Petitioner's Exhibits 2, 3, 4 and 5). Respondent's Position Respondent submitted extensive documentary evidence to the effect that substantial monies had been expended to repair or otherwise maintain the subject premises. Most of the documents submitted were for bills subsequent to the Petitioner's initial inspection on July 24, 1981. An observation of the hills submitted indicate that repairs were made to windows, screens, plumbing and roofing. Harry A. Wright served as the office manager charged with the management of the subject property during 1981. Fire extinguishers on the subject premises are routinely inspected and replaced on an annual basis. Mr. Wright concedes that there are leaks in several of the units on the premises. However, a number of problems relating to the plumbing on the premises are caused by the high water pressure which forces leaks in the apartments. Tenants relay their problems to the management by a telephone call to the management company. The dumpsters on the premises are emptied twice per week. The Respondent uses a maintenance crew to place heavy items in the dumpster on the premises. Respondent acknowledges and admits to a problem with the outside lighting, citing as cause, tenants breaking the bulbs or pilferage of lighting fixtures for their apartments. Respondent has made efforts to correct the most pressing problems initially, and efforts are ongoing to correct the remaining problems. (Testimony of Harry A. Wright).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent be assessed a civil penalty of $100 each for the six conditions found herein to be violations of the rules of the Division of Hotels and Restaurants. The total of these fines, $600, shall be paid within thirty (30) days of the date of the Petitioner's Final Order with funds made payable to the Treasurer of the State of Florida for credit to the Hotel and Restaurant Trust Fund. It is further RECOMMENDED that if said fine is not paid within such period, the Division of Hotels and Restaurants' license No. 16-34 SOB for the Pinewood International Apartments located at 610 Northeast Seventh Avenue, Pompano Beach, Florida, be suspended for twelve (12) months, or until reinstated for good cause shown by the Division of Hotels and Restaurants. 3/ RECOMMENDED this 14th day of July, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1983.
