The Issue The issues are whether the violations cited by the Division of Hotels and Restaurants during its inspection and re- inspection of Respondent's hotel existed, and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence: Parties Petitioner is the state agency responsible for regulating hotels pursuant to Part I of Chapter 509, Florida Statutes (the Act). Respondent operates the Traveler's Inn hotel on West Irlo Bronson Highway (U.S. Route 192) in Kissimmee, Florida. The Hotel The hotel is near the intersection of U.S. Route 192 and State Road 535. The hotel has approximately 125 guest rooms and is three stories in height. The record does not reflect the year that the hotel was constructed. Only the first floor and half of the second floor of the hotel are currently in use. Respondent "closed" the third floor of the hotel as a result of the hotel's low occupancy rate (less than 30 percent), which is due in large part to the post-September 11 decline in the tourism industry. The record does not reflect whether the third floor rooms are in condition to be used if there was additional demand for rooms at the hotel, nor does it reflect whether those rooms were "closed" at the time of the Division's initial inspection in August 2001, or the re-inspection in October 2001. Hotel Inspection Process Followed by the Division The Division is required to routinely inspect hotels that are subject to the Act. If violations are identified, the hotel operator is given a period of time within which to correct the violation. The correction period varies based upon the severity of the violation. The period is typically shorter for "critical" violations (those which are life-threatening or present a safety hazard) than it is for "non-critical" violations (those which do not immediately affect life safety issues and which can be fixed or corrected on a routine basis). The Division's inspectors have the authority to extend the correction period as circumstances warrant. After the expiration of the correction period, the Division re-inspects the facility to determine whether the violation has been corrected. If the violation has not been corrected and the time for doing so is not extended by the inspector, the Division initiates the administrative process to impose sanctions on the hotel's license. Violations Documented at Respondent's Hotel Based Upon the Division's Inspection and Re-inspection The Division conducted a routine investigation of Respondent's hotel on August 31, 2001. The inspection was conducted by Michael Campbell. Mr. Campbell's inspection report documented a number of violations at Respondent's hotel, including (1) the certification for the hotel's boiler had expired; (2) the hotel's fire sprinkler system had not been inspected within the prior 12 months; (3) an advertising brochure contained a false statement regarding the travel time from the hotel to Walt Disney World and Sea World; and (4) the hotel's dock and approach walkway were not safe. Based upon his report, Mr. Campbell issued a written warning to Respondent. The warning gave Respondent until October 1, 2001, to correct the cited violations. Mr. Campbell performed a re-inspection of Respondent's hotel on October 3, 2001. Based upon that re-inspection, Mr. Campbell issued another report which documented that the four violations listed above had not been corrected. The other violations cited by Mr. Campbell in his initial inspection report had been corrected prior to the re-inspection. The inspection report forms designate the sprinkler system violation and the advertising brochure violation to be "critical violations" and "of critical concern." The boiler violation is designated as a "non-critical violation." Despite the forms' characterizations of the sprinkler system and advertising brochure violations as requiring immediate correction, Mr. Campbell gave Respondent a full month to correct the violations. This suggests that Mr. Campbell did not consider the violations to pose a threat to public health, safety, or welfare, and the evidence fails to establish that any of the violations posed such a threat (although, as discussed below, the evidence does clearly and conclusively establish the violations). Mr. Campbell's October 2001 report informed Respondent that the Division would be initiating the administrative process in order to assess sanctions against Respondent's license. The Division's Administrative Complaint and this proceeding followed. Only the first three violations remain at issue; the violation based upon the dock and approach walkway is no longer at issue. The circumstances related to each of the violations still at issue are described below. Boiler Respondent has a Lochinvar boiler which supplies hot water to the hotel. The boiler is rated at 570,000 BTU per hour (BTU/hr), which represents the maximum heat input. The boiler only operates at the maximum level. Thus, whether or not the boiler is heating water to serve all 125 guest rooms or only a portion of those rooms, it is operating at 570,000 BTU/hr. The boiler was first inspected by the State Fire Marshall in May 1999. The inspection was performed by John Norman. Mr. Norman placed an identification tag on the boiler with a May 1999 date. However, he did not recommend that a certificate be issued for the boiler at that time because of an insufficient safety valve on the boiler. Respondent fixed the safety valve and Mr. Norman re- inspected the boiler in September 1999. Based upon that re- inspection, Mr. Norman recommended that a certificate be issued. The 1999 certificate was not introduced at the hearing. However, Mr. Norman testified that upon issuance, the certificate would have been valid for two years from the date that the certificate was issued, or until September 2001. Neither the certificate, nor any of Mr. Norman's inspection reports were posted in the room where the boiler was located at the time of Mr. Campbell's inspections in August 2001 and October 2001. Mr. Norman inspected the boiler again in May 2002 and a boiler certificate was issued by the State Fire Marshall on June 11, 2002. The certificate is valid until May 9, 2004. Mr. Norman characterized the boiler as being in good condition, both in September 1999, and presently. He further testified that the state of the boiler at those times indicate that it would have been in good condition during the intervening period as well, which would include the times of Mr. Campbell's inspection and re-inspection. 2. Sprinkler System The fire sprinkler system in Respondent's hotel only covers the laundry room, the maintenance room, and the boiler room. The guest rooms are not covered by the sprinkler system. The tag on the sprinkler system indicated that it was last inspected on August 3, 2000. Because the system is required to be inspected annually, the inspection expired on August 3, 2001. Accordingly, at the time Mr. Campbell conducted his initial inspection, the fire sprinkler system's inspection had expired. The system was not inspected prior to Mr. Campbell's re-inspection, and, as of the date of the hearing, it still has not been inspected. The cost to inspect the sprinkler system is between $800.00 and $1,000.00. Respondent's owner failed to have the sprinkler system inspected because he could not afford the cost of the inspection as a result of the reduction in business at the hotel post- September 11, and because of his independent interpretation of Section 509.215, Florida Statutes, which prescribes fire safety requirements for hotels. Respondent's owner relied upon the 1993 version of Section 509.215, Florida Statutes, because that was the most current version of the statute in the hotel's "library." The current version of the statute is materially the same as the 1993 version. 3. Advertising Brochure At the time of Mr. Campbell's initial inspection, Respondent had a brochure advertising its hotel which included the following statement on the front cover: "Five minutes from Walt Disney World Resort and Sea World." The brochures were available at or near the hotel's front desk. The record does not reflect whether the brochures were distributed by Respondent in any other manner, e.g., mailing to prospective guests, placed in kiosks or advertising racks around the area. Mr. Campbell obtained a brochure from the hotel's front desk during his August 2001 inspection. That brochure was not introduced at the hearing. The brochures were printed in 1996 and, at that time, the statement on the brochure may have been accurate.1 However, as a result of the growth and additional traffic congestion in the area, Respondent's hotel is no longer five minutes from Disney or Sea World. It is now approximately 18 minutes from Sea World and a similar distance time-wise from Disney. In an effort to correct the brochure in response to the August 2001 inspection report, Respondent's owner directed his staff to strike through the words "Five minutes from" on each of the brochures with a black marker. The brochure introduced by Respondent at the hearing was marked-out in that manner. Division supervisor Jo Beekman confirmed at the hearing that marking-out those words on the brochure would be sufficient to address the cited violation. Apparently, however, all of the brochures were not marked-out because Mr. Campbell obtained an unmodified brochure during his October 2001 re-inspection. That brochure was not introduced at the hearing, but Respondent's owner acknowledged that his staff may have "missed a few" brochures when they marked through the others.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants issue a Final Order which: finds that Respondent violated: Rule 61C-1.004(12), Florida Administrative Code, because it failed to have the boiler certificate posted in the boiler room; and Section 509.215(5), Florida Statutes, and the applicable NFPA standards incorporated into the State Fire Marshall's rules because Respondent failed to have the fire sprinkler system at its hotel inspected annually; and Rule 61C-3.002(3)(a), Florida Administrative Code, because its advertising brochure contained a false statement; and imposes an administrative fine in the total amount of $750.00, as calculated above; requires Respondent to have the fire sprinkler system inspected within 15 days of the date of the Final Order, and to provide proof thereof to the Division of Hotels and Restaurants; and requires Respondent's owner and/or general manager to attend an educational program sponsored by the Hospitality Education Program within 60 days of the date of the Final Order, and to provide proof thereof to the Division of Hotels and Restaurants. DONE AND ENTERED this 22nd day of January, 2003, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 22nd day of January, 2003.
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
