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
Findings Of Fact The Respondents, Douglas S. Melvin and Janice Melvin, operate a motel under the name The Islander at 4300 Ocean Beach Boulevard, Cocoa Beach, Florida. This motel is licensed by the Florida Division of Hotels and Restaurants under license number 15-182H. In answer to the complaint of a guest, Wesley A. Blom went to The Islander motel to inspect it on September 10, 1981. The complaining guest was not present, but the complaint related in part to the lack of cleanliness of room 217. Wesley A. Blom is a state qualified and certified sanitarian and inspector of fire extinguisher devices. He has had nine years experience in such work with the State of Florida. When Wesley A. Blom inspected The Islander on September 10, 1981, its owners, Douglas S. Melvin and Janice Melvin, were not present. During this inspection Wesley A. Blom was shown room 217 by motel personnel, and he inspected the motel generally for compliance with all applicable Florida Statutes and rules relating to safety, sanitation, and maintenance of public lodgings. During the September 10, 1981, inspection of The Islander motel, Wesley Blom observed the following conditions: The fire extinguishers available to the public and occupants of The Islander were of the soda-acid type, requiring periodic service checks and recharging to remain in safe, reliable, and useable condition. These fire extinguishers did not have un- expired service tags, as required, but the service tags affixed showed that these fire extinguishers had been last inspected and recharged more than one year previously. Paint was peeling on the walls of the bathroom in room 217. The bed cover on the bed in room number 217 was torn and stained in several places with tar residue. The floor In room 217 was dirty, and trash was scattered about the floor of this room. At the time when the dirt and trash was discovered on the floor in room 217, the bed had been made up, indicating that the room had been serviced by the motel staff. No room rate notice of any kind was posted in room 217. On September 30, 1981, Wesley A. Blom returned to The Islander motel to determine whether the conditions observed there on September 10, 1981, had changed or been corrected. He did not reinspect room 217 at this time because it was occupied, but the fire extinguishers available at The Islander motel had not been serviced or recharged since February of 1979, as evidenced by their expired State Fire Marshal service tags. On February 22, 1982, Wesley A. Blom again returned to The Islander motel to determine if the conditions discovered on September 10, 1981, had been corrected or changed. He was not able to inspect room number 217 because it was occupied, but he did observe that previously available soda-acid fire extinguishers were no longer present. The only fire extinguishers available at The Islander motel on this occasion were different models of an undetermined type which were located in the lobby of the motel. This lobby is more than 100 feet from many of the rooms of the motel. The Respondents contend in their own behalf that room 217 had not been made up, and was not ready for occupancy when it was inspected; that the bed cover with the tar on it was being cleaned by the maid, and was not finished when inspected; that the carpet was not dirty, but simply had not been vacuumed when it was inspected; that rate sheets are usually posted, but the one in room 217 had been missing and was found in another room; and that a maintenance man responsible for painting the rooms was fired for using inferior paint which might have peeled off. However, both the Respondents were in Michigan on September 10, 1981, when the first inspection took place; thus, without testimony from motel personnel who were present at the time, the testimony of the Respondents is not of sufficient quality to support a finding of fact. The expired date on the fire extinguishers is admitted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner enter a Final Order finding the Respondents guilty of violating Section 509.221(2) and (6), and 509.201, Florida Statutes, and Sections 7C-1.04(1), 1.03(1), 3.01 and 3.02, Florida Administrative Code. And it is further RECOMMENDED that the Final Order of the Petitioner suspend license number 15-182H held by Douglas S. Melvin and Janice Melvin, authorizing them to operate The Islander motel, for a period of one year from the date of the Final Order, and that The Islander motel be closed pursuant to this suspension for one year. And it is further RECOMMENDED that the Final Order of the Petitioner provide that the suspension period of one year may be lifted upon a satisfactory demonstration to the Petitioner that approved fire extinguishers are maintained on the premises of The Islander motel in accordance with all applicable laws. And it is further RECOMMENDED that, in addition to the foregoing, the Final Order of the Petitioner assess an administrative fine of $200 for each of the four violations not relating to fire extinguishers, as enumerated above, for a total fine of $800 payable no later than 30 days after the date of the Final Order. THIS RECOMMENDED ORDER entered on this the 24th day of March, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1982. COPIES FURNISHED: Daniel J. Bosanko, Esquire 725 South Bronough Street Tallahassee, Florida 32301 Douglas S. Melvin and Janice Melvin 4300 Ocean Beach Boulevard Cocoa Beach, Florida 32931
The Issue The issue presented for decision in this case is whether Respondent violated Section 509.032, Florida Statutes, as set forth in the Administrative Complaint dated August 15, 2000.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made. At all times relevant to this proceeding, Petitioner is the state agency charged with licensing, regulating, and inspecting public lodging establishments to protect public safety. To accomplish this purpose, Petitioner employs persons trained to inspect public lodging establishments to ensure compliance with health and safety regulations. Such inspectors visit and inspect these premises making routine inspections or, in response to complaints, to gather facts and make reports documenting their findings. At all times relevant to this proceeding, Petitioner employed Susan Cecilione ("Cecilione") as an Inspector assigned to its Division of Hotels and Restaurants. At all times relevant to this proceeding, Respondent, Hidden Cove Apartments, was a licensed public lodging establishment within the meaning of Subsection 509.013(4)(a), Florida Statutes, operating under license control number 15-04455H 000, and located at 1951 Southeast Convair Street, Palm Bay, Florida, 32909. During a routine inspection on or about July 14, 2000, Cecilione visited Hidden Cove Apartments. Cecilione's inspection revealed various violations. Specifically, Cecilione observed: The 2A10BC fire extinguisher at building 1961 was discharged; In apartment 101, building 1961, the electricity flickered on and off in the dining room area; Fire ant hills were observed along the walkways around buildings 1951 and 1961; The shower in apartment 103, building 1951, leaked behind the wall into the closet; The cement driveway was caving in and broken apart; There were no back flow prevention devices on hose bibbs at buildings 1951 and 1961; The laundry room had a heavy accumulation of lint and dirt on floor beside, behind, and beneath the dryer; (i) The front windows in many apartments had been either bolted closed or sealed so they could not be opened without the window falling out; There were broken screens on the sliding glass doors at apartments 103 and 104, building 1951; In apartment 102, building 1951 and apartment 101, building 1961, the front door sweeps and seals (gaskets) around the doors were loose fitting, leaving large gaps. Respondent was informed that all violations must be corrected by July 27, 2000. On or about July 28, 2000, Cecilione made a callback/reinspection visit for the purpose of determining whether Respondent had corrected the violations noted on the previous visit. One of the violations previously noted had been corrected. The laundry room had been cleaned. Each of the uncorrected violations listed in paragraph 5 hereinabove constitutes a separate and distinct potential hazard to the health and/or safety of individuals on the premises.
Recommendation Upon 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 Respondent guilty of violating the above-specified provisions of the Florida Statutes and Florida Administrative Code; that Respondent be required to pay a fine in the amount of $2,400; and that Respondent's license be suspended until the fine is paid. DONE AND ENTERED this 11th day of September, 2001, in Tallahassee, Leon County, Florida. ___________________________________ JEFF B. CLARK 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 16th day of September, 2001. COPIES FURNISHED: Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 David Moallem Hidden Cove apartments 2115 Palm Bay Road, Northeast No. 3 Palm Bay, Florida 32909
The Issue The issue for determination is whether the application for an initial license to operate an Adult Family Care Home ("AFCH") should be denied because the applicant submitted fraudulent or inaccurate information in the application.
Findings Of Fact Petitioner is owned by Ms. Marvell Lawton, R.N. (the "applicant"). On June 3, 1996, the applicant applied for a license to operate an AFCH at 550 East Division Street, Deland, Florida (the "facility"). Respondent is the state agency responsible for licensing AFCHs. Respondent requires several documents to be submitted with the application including: a Florida Department of Health and Rehabilitative Services ("HRS") Community Residential Homes Sponsor Certification Form (the "HRS Form"); a statement by the local zoning office that the facility is properly zoned (the "zoning approval"); and a fire inspection report. The applicant altered the HRS Form, the zoning approval, and the fire inspection report to indicate that the facility was approved for a maximum capacity of five residents. Respondent initially denied the license application solely on the basis of the fire inspection report. However, the basis of denial was amended to include the HRS Form and the zoning approval pursuant to an order entered by Judge Stephen F. Dean on October 16, 1996. By letter dated July 11, 1996, Respondent notified the applicant that her application was denied. The letter stated, in relevant part, that the specific basis for denial was: . . . Submission of fraudulent or inaccurate information to the agency. The fire safety inspection report submitted with the application package was altered to indicate approval for five residents when the fire marshal's office had only approved three residents. The local fire marshal's office has verified that the original approval was for three residents because Ms. Lawton did not want to install a manual alarm system which is required for four or five residents. Submission of fraudulent or inaccurate information to the agency is grounds for denial of the AFCH application, s. 400.619(11)(e),F.S. On April 2, 1996, the applicant obtained a fire inspection report from the City of Deland Fire Department (the "Fire Department"). The fire inspection report limited the maximum capacity of the facility to three residents because the applicant did not have the manual alarm system required for four or five residents and did not wish to install such a system. The applicant altered the fire inspection report that she submitted with her application. She changed the number "3" to a "5" so that the fire inspection report appeared to approve the facility for a maximum capacity of five residents. As part of its review of the application, Respondent attempted to verify the fire inspection report included in the application by calling the Fire Department. When the Fire Department did not verify that the maximum capacity was five residents, Respondent obtained a copy of the original fire inspection report from the Fire Department. On March 22, 1996, the applicant obtained a zoning approval from the City of DeLand stating that the maximum capacity of the facility is three residents. The applicant added the phrase "to 5" after the number "3" in the zoning approval so that the zoning approval authorized a maximum capacity of "3 to 5" residents. On June 3, 1996, the applicant submitted the HRS Form to Respondent. The applicant amended the portion of the HRS Form requiring a designation of capacity for facilities with six or fewer residents as well as that for facilities with 7-14 residents. The latter category does not apply to Petitioner. The applicant did not submit fraudulent information to Respondent. The applicant did not intend to defraud Respondent. She misunderstood the application process. The facility has space for only three residents. It is physically impossible to house more than three residents in the facility. The applicant would have gained nothing from an authorized capacity of more than three residents. The applicant's refusal to add the manual alarm system required for four or five residents is consistent with the facility's limit of three residents. The applicant assumed that Respondent's minimum license category is for a license of 1-5 residents. The applicant altered the HRS Form, the zoning approval, and the fire inspection report under the mistaken belief that the capacity designation in each document should conform to the maximum capacity in Respondent's license category. In the HRS Form, the applicant even altered the licensed capacity for facilities with 7-14 residents. The applicant mistakenly submitted inaccurate information to Respondent within the meaning of Section 400.619(11)(e), Florida Statutes.1 The maximum licensed capacity of the facility must be consistent with fire safety requirements for the welfare of the residents. The licensed capacity of the facility must also conform to applicable zoning laws.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and thereinGRANT a license to operate an AFCH for three residents. RECOMMENDED this 21st day of February, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1997.
