The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the licenses of two public lodging establishments and against an individual alleged to have operated a public lodging establishment without a license, on the basis of allegations set forth in three separate Administrative Complaints.
Findings Of Fact At all times material hereto, the Respondent Fountain View Hotel (Fountain View) was a public lodging establishment, license number 60-00163-H, located at 5617 44th Street, West Palm Beach, Florida. Lawrence Joseph Vavala (Inspector Vavala) was at all material times employed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants, as a Sanitation and Safety Specialist (Inspector). Catherine Driscoll (Supervisor Driscoll) was at all material times employed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants, as a Sanitation and Safety Supervisor. On April 17, 2000, Inspector Vavala inspected the Fountain View and found numerous violations of public lodging service rules, all of which he marked on his lodging service inspection report of April 17, 2000. On April 17, 2000, when Inspector Vavala performed an inspection on Fountain View, he observed that the smoke detectors were inoperable in Apartments 3 and 4 in the front building. This violation is a critical violation because it endangers the life and safety of individuals living in the public lodging establishment. On April 17, 2000, during his inspection of the premises, Inspector Vavala observed that there were no portable fire extinguishers installed in the back building on either landing on either floor. Further, there was no fire extinguisher on the first floor, bottom landing, in the front building. In public lodging establishments, fire extinguishers are required to be within 75 feet of potential fire hazards. There was a fire extinguisher in the hallway on the second floor, but it had not been inspected since September 1994. Fire extinguishers are required to be inspected annually. These violations are critical in that they endanger the lives and safety of individuals residing in the public lodging establishment. On April 17, 2000, during his inspection of the premises, Inspector Vavala observed evidence of rodent droppings in the water heater room on the south side of the building and cockroaches in the kitchen cabinets of Apartment 4. These are critical violations in that disease is spread in this manner which endangers the health and safety of individuals residing in the public lodging establishment. During his inspection of the premises, Inspector Vavala observed electrical wiring in disrepair in Apartments 3 and 4. Wires were hung through a window out to the back porch, simply hanging by cord and socket. These are critical violations in that someone could be injured by the wiring. Further, in being exposed to the outside elements, it could cause shortage and fire. These are critical violations in that they endanger the safety and lives of individuals residing in the public lodging establishment. On April 17, 2000, during his inspection of the premises, Inspector Vavala observed that the cooking stove was inoperable in Apartment 4 and the air conditioning units were inoperable in Apartments 3 and 4. This is a critical violation because tenants may bring in propane or charcoal stoves to prepare food which would be a fire hazard and could endanger the safety and lives of individuals residing in the public lodging establishment. Inspector Vavala also observed that the air conditioning units were inoperable in Apartments 3 and 4. On April 17, 2000, during his inspection of the premises, Inspector Vavala observed the locks were inoperable on the kitchen door to the outside stairway in Apartment 3. This is a critical violation in that if the door could not be locked, an intruder could enter the premises and take property or physically harm an individual inside the apartment. On April 17, 2000, during his inspection of the premises, Inspector Vavala observed a broken window at the front door of the front apartment; the ceiling on top of the stairwell in the front of the building had a hole through the roof; a hole was in the stucco on the west side of the front building; a window was in disrepair on the west side of the front building; windows were boarded up on the west side of the building; stucco was missing on the south side of the front building; a window was broken on the lower floor of the front building on the south side; a window was in disrepair, and one window was broken on the lower floor of the front building on the east side; stucco was cracked on the north side of the exterior wall of the back building; the door frame was rotting at Apartment 6 in the back building; a window was broken on the north side of the back building at Apartment 6; there were holes in the wall and ceiling of the water heater room on the south side of the back building; a window was broken on the south side of the back building on the second floor; and the cross face on the west side of the front building and on the east side of the front building was not enclosed. Further, he observed excessive debris outside apartments around the building, a broken soda machine on the north side of the back building was falling over, and the refrigeration units in it could contaminate the ground water; he observed a rusting LP gas tank from a barbecue which, when left outside, will rust through the tank and release the gas in the air, which would endanger the health and welfare of persons in the area; there were cars lying around and the oil from those could contaminate the ground water. On April 17, 2000, in Apartment 4, Inspector Vavala observed kitchen cabinets in disrepair; tile was chipped, broken, and missing on the kitchen floor; there was a hole in the wall of the living area; the window operating assembly was in disrepair allowing the windows to either remain in a stuck open or stuck closed position; the clamps no longer worked on the window; the wood framing around a window air conditioner was rotting and had a hole below it; the plaster was cracked and chipping in the bathroom; there was a hole in the wall above the tub in the shower stall; a hole was in the wall behind the toilet in the bathroom; and the carpet was stained and unclean in the living area. The poor condition of the kitchen cabinets, the holes in the wall of the living room and bathroom, and the broken, chipped and missing tile could harbor rodents and bugs and nesting vermin. The rotting frame and hole in the wall underneath could allow the air conditioner, which was located on the second floor, to fall and endanger lives of persons beneath the window. Further, the hole in the wall allowed pests and vermin to enter the apartment. The window operating assembly which would not allow the windows to open was dangerous should there be a fire or other disaster blocking other exits to the apartment. The window operating assembly, which would not allow the windows to close, allows the outside elements to enter the apartment during inclement weather causing further deterioration to the apartments and personal belongings of tenants. The cracked and chipped plaster in the bathroom would not allow adequate cleaning which contributes to poor sanitation. The dirty carpet in the living area could be harboring insects, mold and mildew. The violations observed in Apartment 4 affect the health and safety of its tenants. On April 17, 2000, in Apartment 3, Inspector Vavala observed the ceiling stained in the back bedroom, reflecting leaking water damage; the ceiling plaster cracked in the back bedroom; broken and missing tiles in the kitchen, exposing plywood; kitchen cabinets that were in disrepair; an inoperative assembly in a shower stall window; all the window operating assemblies in the middle bedroom in disrepair; a closet door in disrepair in the middle bedroom; a sink was falling off the wall in the bathroom; there was a hole in the wall under the toilet in the bathroom; and backflow prevention was not provided on exterior hose bins. The violations observed in Apartment 4 endangered the health and safety of its tenants. On April 17, 2000, Inspector Vavala observed that the establishment was operating without a new license in 1998, 1999, and 2000. On May 2, 2000, an Administrative Complaint was issued against the Respondent Fountain View Hotel which was docketed as Case No. 2-00-185 before the Division of Hotels and Restaurants, and as Case No. 00-2949 before the Division of Administrative Hearings. On April 8, 1999, one year prior to the violations enumerated in paragraphs 5 through 15 above, Supervisor Driscoll and Inspector Paul Landmann, inspected the same Fountain View Hotel described above. Numerous violations observed during the April 8, 1999, inspection were still not corrected on April 17, 2000. On February 23, 2000, Supervisor Driscoll made a follow-up inspection of the same Fountain View and found numerous violations of public lodging service rules, all of which she marked on the lodging service inspection report of February 23, 2000. On April 8, 1999, the Petitioner issued an Administrative Complaint against Respondent Joseph Sansalone d/b/a Fountain View Hotel (Sansalone) which was docketed as Case No. 2-99-79 before the Division of Hotels and Restaurants, and as Case No. 00-3040 before the Division of Administrative Hearings. At all times material hereto, Respondent Lamplighter Hotel & Apartments (Lamplighter) was a public lodging establishment, license number 60-00167-H, located at 433 40th Street, West Palm Beach, Florida. On April 17, 2000, during his inspection of the Lamplighter, Inspector Vavala, observed that there were no fire extinguishers located anywhere on the premises. This violation is a critical violation because it endangers the life and safety of individuals living in the public lodging establishment. On April 17, 2000, during his inspection of the Lamplighter, Inspector Vavala observed rodent droppings in an upstairs apartment in the back building and in the storage shed adjacent to the back building. This is a critical violation in that disease is spread in this manner which endangers the health and safety of individuals residing in the public lodging establishment. On April 17, 2000, during his inspection of the Lamplighter, Inspector Vavala observed that there was no cover on the wall socket at the top of the stairs in the front building, and that cover plates were missing on the electrical sockets on the outside receptacle on the outside of the front area. This violation is critical because the health and safety of children are endangered because children could stick their fingers in the outlets and be electrocuted. Further Inspector Vavala observed a soda machine plugged into an outlet on the outside which was exposed to the elements, which could also be a potential danger to the health and welfare of persons in the vicinity. On April 17, 2000, during his inspection of the Lamplighter, Inspector Vavala observed that the stairway in the rear of the building and the back building on the east side was in disrepair. These are critical violations because it would not be safe to evacuate the rear building from the stairwells, in case of fire or other emergency. On April 17, 2000, during his inspection of the Lamplighter, Inspector Vavala observed windows broken on the first and second floors of the front building on the south side; broken windows on the first and second floor of the front building on the east side; a broken window on the lower floor of the front building on the north side; a broken window on the door to the downstairs apartment in the back building; and a broken window on the east side of the back building on the second floor. These are violations because there is sharp glass exposed and no protection from the outside against vermin or the elements. He also observed stucco falling off the exterior wall of the front building on the north side; doors falling off the storage shed at the back of the building, adjacent to the living establishment, which harbored vermin; and a hole in the roof of the storage shed attached to the back of the building. The crawl space under the front building on the south side and under the front building on the north side was not enclosed; screens were ripped on the north side of the front building on the first floor and on the west side of the front building, which would allow insects to enter the establishment. On April 17, 2000, during his inspection, Inspector Vavala observed a second floor hurricane shutter broken in the down position. This broken shutter would not allow evacuation through the window in case of fire or other emergency. On April 17, 2000, during his inspection, Inspector Vavala observed a door missing at the upstairs apartment on the back building, and the ceiling was falling in the kitchen and family room in an upstairs back apartment. The apartment appeared to be unoccupied; however, it would endanger the health and welfare of the tenants if it was occupied. Further, the missing door would allow children playing in the area to enter the apartment where the ceiling is falling, which could result in serious injury to a child. On April 17, 2000, during his inspection, Inspector Vavala observed an excessive amount of debris in and around the premises, including a refrigerator in an unused condition that still had the door attached which could be a hazard to children that lived in the establishment. On April 17, 2000, during his inspection, Inspector Vavala observed inoperable kitchen appliances located in the upstairs back building. These are critical violations because individuals may bring in propane or charcoal stoves to prepare food which would be a fire hazard and could endanger the safety and lives of individuals residing in the public lodging establishment. On April 17, 2000, during his inspection, Inspector Vavala observed that lighting was not provided in the hallway staircase in the front building. This is a critical violation because the unlighted area endangers the health and safety of tenants of the establishment. On April 17, 2000, Inspector Vavala also observed that the establishment was operating without a new license in 1998, 1999, and 2000. On May 2, 2000, the Division issued an Administrative Complaint against Respondent, Lamplighter Hotel & Apartments, which was docketed as Case No. 2-00-186 before the Division of Hotels and Restaurants, and as Case No. 00-2950 before the Division of Administrative Hearings. The Lamplighter Hotel & Apartments, located at 433 40th Street, West Palm Beach, Florida, and the Fountain View Hotel, located at 516 44th Street, West Palm Beach, Florida, are owned by Americorp Mortgage Co., Inc., whose president is Joseph D. Sansalone.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Division of Hotels and Restaurants issue a final order to the following effect: Concluding that the Respondent Fountain View Hotel is guilty of the violations observed during the inspection of its premises on April 17, 2000, as described in the foregoing Findings of Fact and Conclusions of Law, and imposing a penalty on the Respondent Fountain View Hotel consisting of an administrative fine in the amount of $5,000.00 and the revocation of its license. Concluding that the Respondent Lamplighter Hotel & Apartments is guilty of the violations observed during the inspection of its premises on April 17, 2000, as described in the foregoing Findings of Fact and Conclusions of Law, and imposing a penalty on the Respondent Lamplighter Hotel & Apartments consisting of an administrative fine in the amount of $5,000.00 and the revocation of its license. Concluding that the Respondent Joseph Sansalone is guilty of operating a public lodging establishment at the premises of the Fountain View Hotel during April of 1999 without a then-current license for that establishment, and imposing a penalty on the Respondent Joseph Sansalone consisting of an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 18th day of January, 2001, in Tallahassee, Leon County, Florida. 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 18th day of January, 2001.
The Issue The issue is whether Respondent has violated various provisions governing public lodging establishments and, if so, what penalty should be imposed.
Findings Of Fact Respondent operates a public lodging establishment known as First Street Apartments at 220 South First Street in Immokalee. The license to operate this establishment, which is number 21-00721-H, expired December 1, 1997. However, Petitioner has allowed Respondent to continue to operate under this license until the resolution of pending proceedings against the license. First Street Apartments comprise 84 residential units in buildings not greater than three stories. At the time of the inspection, about 60 units were occupied. The buildings were constructed in 1963, and Respondent acquired the property in 1984. The controlling owner of Respondent was formerly a professional football player, and he formed Respondent to acquire First Street Apartments while still playing football. He has since retired, and he assumed direct responsibility for managing the property in 1994. First Street Apartments generate a net cash flow of $25,000 to $35,000 annually. Respondent has no formal policy setting the frequency of inspections of apartment units. However, the weekend prior to the hearing, Respondent's owner and his family moved into one of the apartments. Petitioner’s inspector conducted inspections of First Street Apartments on July 30 and August 19, 1997. The July inspection resulted in the issuance of a warning for 38 violations. The inspector allowed Respondent 30 days to correct these violations. The findings below describe the conditions at First Street Apartments on August 19, when Petitioner’s inspector and a local fire inspector returned to the site for the reinspection. As to the first alleged violation, apartments 30, 32, 40, and 79 lacked smoke detectors. As to the second alleged violation, apartment 31 had a smoke detector, but it was inoperative. As to the third alleged violation, an undetermined number of apartments had hasps affixed to the outside doors, so as to permit them to be latched. Most if not all of these hasps were affixed to the screen door. Most but not all of these hasps were unlocked. There is no evidence that any hasps were locked with occupants inside. The evidence suggests that tenants used the hasps to secure the contents of their premises while they were gone. However, the evidence does not establish that all of these hasps were attached to the doors and doorframe so securely as to present more than a momentary impediment to someone from the inside or outside trying to force the hasp open without unlocking it. The doorframes appear to have secured so many hasps that the wood is pitted and incapable of securing the hasp against much force. The clear appearance of numerous screwholes in the doors and doorframes supports Respondent’s contention that its representatives have frequently removed the hasps, only to find them reaffixed a short time later. As to the fourth alleged violation, one of the apartments had uninsulated wiring, unprotected by conduit, running from the ceiling to a water heater. This uninsulated wiring ran within eight feet of the floor. The proximity of this exposed wiring to the water in the water heater rendered this violation especially hazardous. However, Petitioner failed to prove its allegation of a broken electrical socket with a hot plate plugged into it. As to the fifth alleged violation, occupants of apartments 31, 32, and 33 used extension cords for other than intermittent purposes, such as cleaning, maintenance, or other temporary activities. These more ongoing, permanent uses included cooking and playing radios and televisions. As to the sixth alleged violation, there was no public lighting in the alley between the north building and a fenced area to the next property. However, Respondent or Lee County has since added more exterior lighting, and the record does not permit a finding as to the effect of the former condition. As to the seventh alleged violation, Respondent conceded that Respondent did not provide heat at the time of the inspections. As to the eighth alleged violation, the original design of the guardrail along the balcony contains openings greater than four inches. To remedy this hazardous situation, Respondent or a prior owner placed chain-link fence behind the guardrail, so as to reduce the openings to the size of the openings in the chain- link fence. The chain-link fence may have been missing on the west side of the building, but this fact does not emerge clearly from the record. There is some evidence that the chain-link fence elsewhere had loosened from the guardrail, but the evidence fails to establish the extent to which any separation had occurred and the extent to which such separation presented a hazard to persons falling between the openings in the guardrails and then between the guardrails and the chain-link fence. Respondent has since repaired the guardrails, in any event. As to the ninth alleged violation, apartments 30 and 32 had broken windows, torn screens, and a broken faucet in the kitchen sink repaired with duct tape; apartments 30 and 31 had leaky ceilings with structural damage and falling plaster; walls were pulling away from the ceiling; the south building had exposed interior beams; exterior areas had structural damage with worn concrete revealing the metal foundation; the exterior wall of the southeast end of the building had a 15-foot crack; and the concrete pillar supporting the second-floor landing on the northeast side of the building was worn and cracked. As to the tenth alleged violation, apartment 32 had a rotten shower wall and leaky toilet, and apartment 31 had an inoperative shower. As to the eleventh alleged violation, there were roaches and flies around the premises, but there is no evidence of "noxious small animals or parasitic insects, such as lice, fleas, worms, rats, or mice." As the administrative law judge advised at the hearing, he took official notice of this dictionary definition of "vermin" taken from a Funk and Wagnall's Dictionary present in the courthouse at which the hearing took place. As to the twelfth alleged violation, there was a car seat under a stairwell and about a dozen five-gallon plastic pails. However, the tenants stored these items, on a temporary basis, for their work. They remove car seats to increase the passenger-carrying capacity of their motor vehicles, and they use the pails while picking fruits and vegetables. As to the thirteenth alleged violation, there was no concrete pad under one of the two dumpsters. As to the fourteenth alleged violation, a dumpster lid remained open for the entire 1.5-hour inspection. As to the fifteenth alleged violation, a broken sewer line had leaked a pool of gray water, and a sewer cap was missing from the sewer line as it left a residential unit. In sum, Petitioner proved the following violations, with critical violations marked with an asterisk: 1*, 2*, 4* (unprotected wiring, but no broken socket), 5*, 7*, 9, 10 (except for water leaking from under the sinks) 13, 14, and 15*. By Ordinance No. 92-72, the Collier County Commission adopted National Fire Protection Association Life Safety Code 101, Life Safety Code, effective October 21, 1992. NFPA 5-2.2.4.6(c) provides: "Open guards shall have intermediate rails or an ornamental pattern such that a sphere 4 in. (10.1 cm) in diameter cannot pass through any opening." NFPA 19-3.4.4.1 provides: Approved single station or multiple station smoke detectors continuously powered from the building electrical system shall be installed in accordance with 7-6.2.9 in every living unit within the apartment building regardless of the number of stories or number of apartments. When activated, the detector shall initiate an alarm that is audible in the sleeping rooms of that unit. This individual unit detector shall be in addition to any sprinkler system or other detection system that may be installed in the building. Section 5-402.14, 1995 Food Code, as adopted by the Food and Drug Administration, Public Health Service, United States Department of Health and Human Services (Food Code), provides: "Sewage shall be conveyed to the point of disposal through an approved sanitary sewage system or other system, including use of sewage transport vehicles, waste retention tanks, pumps, pipes, hoses, and connections that are constructed, maintained, and operated according to law." Section 5-501.11, Food Code, provides: "If located within the food establishment, a storage area for refuse, recyclables, and returnables shall meet the requirements specified under Parts 6-1 and 6-2." Section 5-501.12, Food Code, provides: "An outdoor storage surface for refuse, recyclables, and returnables shall be constructed of nonabsorbent material such as concrete or asphalt and shall be smooth, durable and sloped to drain." Section 5-501.113(B), Food Code, provides: "Cardboard or other packaging material that does not contain food residues and that is awaiting regularly scheduled delivery to a recycling or disposal site may be stored outside without being in a covered receptacle if it is stored so that it does not create a rodent harborage problem." Section 5-501.114(B), Food Code, provides: "Equipment and receptacles for refuse, recyclables, and returnables shall be kept covered . . . [w]ith tight-fitting lids or doors if kept outside the food establishment."
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order imposing an administrative fine against Respondent in the amount of $2750 and requiring Respondent's controlling owner to undergo additional education. DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1998. COPIES FURNISHED: Daniel R. Biggins Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 D. Nathan Hoskins Peck & Peck First Union Building, Suite 103 5801 Pelican Bay Boulevard Naples, Florida 34108 Dorothy W. Joyce, Director Division of Hotels and Restaurant Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times, material to this case, Petitioner has been licensed by the Department to operate an adult congregate living facility (ACLF) which is located at 6200 West Fairfield Drive, Pensacola, Florida, and is known as the Warrington House. Francis Cooper is the sole shareholder and operator of the Warrington House. Prior to 1984, the Warrington House was known as the Heritage House and was owned by a Mr. Mitchell. Sometime in 1984, Mr. Mitchell was criminally charged with elderly abuse on his residents and the Heritage House went into receivership. Another branch of HRS who was represented by Esther Ward, asked Ms. Francis Cooper to take over the facility. HRS was apparently well satisfied with Ms. Cooper's qualifications in running an ACLF since she had another such facility. When Ms. Cooper took over the Heritage House the electrical power to the facility was about to be turned off. Only by Ms. Cooper's pleading with Gulf Power was that circumstance forestalled. There were only thirteen (13) patients at the facility out of the sixteen (16) that were supposed to have been there. Three (3) of the patients had been mysteriously removed during the night. The residents that were at the house could not identify themselves and very few resident records were at the facility. The building was infested with roaches, there was raw sewage in the yard and the sewage system was completely blocked to the extent that sewage came up through the showers when a toilet was flushed. There was urine in every carpet. None of the appliances in the house worked. There were no air conditioners, fans or plastic dishes. The floors were in bad shape. In fact, Ms. Cooper fell through two of the bathroom floors. When Ms. Cooper questioned HRS representatives about the appalling conditions of the facility, she received no responsive answer. After Ms. Cooper had taken over the facility, she discovered that Mr. Mitchell had absconded with three months advance rent from the residents. Ms. Cooper, therefore, had to operate the premises for three months without income from the residents that were there. She used her own money. Ms. Cooper started with the air conditioning, flooring and carpeting. All these items were replaced. The bathrooms were tiled and additional bathrooms were added. She put in a $6,000.00 sewage system, a lift station and paid $1,000.00 to hook the building onto city sewage. She also brought in an exterminator to get rid of the bugs. All of this took place over a period of two years wherein Ms. Cooper worked diligently to bring the building up to "snuff." In fact, in the time since she has had the facility she has accomplished wonders in improving conditions at the house. These conditions clearly did not appear overnight, but over several years and were apparently overlooked by Respondent until the crisis with Mr. Mitchell had occurred. Ms. Cooper went into the house with the understanding that the corporation would eventually build another facility and close what had become the Warrington House. The reason for the new construction was that the current building, regardless of the amount of repair, was still an old building not worth maintaining and which was allowed to deteriorate badly prior to her stewardship. However, due to a falling out with her brother, who was then a co- shareholder of the corporation, Ms. Cooper was unable to complete her plans for moving the residents of the Warrington House to a new facility. She continues to attempt to obtain financing to build a new facility. At least once a year, HRS does a full survey on a ACLF like the Warrington House. A full survey is simply an inspection of the property in order to determine the degree of compliance with HRS rules and regulations. Upon completing the inspection, the inspector goes through an exit briefing with the ACLF's management. During the exit briefing, the inspector will go over any deficiencies he or she has discovered and attempt to establish mutually agreeable correction dates. The inspector also explains that these time periods are the best estimates that they can come up with at that point to allow a reasonable amount of time for the required corrections to be made. If any problems should arise, the inspector requests that the manager communicate with his or her office and ask for an extension. Extensions are not always forthcoming. After the full survey inspection is done, a follow-up visit is normally scheduled to determine whether the earlier cited deficiencies have been corrected. If, after the follow-up survey there are items that are still not corrected, the inspector will explain to the person in charge that they are subject to administrative action and that he or she will report he facility's noncompliance to his or her office. Whether or not administrative action is taken is determined at a level above the inspector. However, it appears that the customary practice of the office is to pursue an administrative fine for any noncompliance after the correction date has been passed. After the first follow-up survey has been made it depends on the particular factual situation whether or not further follow-up surveys are made until compliance is achieved. If there are efforts being made to correct the problems further follow-up surveys will be made. If not, further follow-up surveys may not be made. In this case, James Temkin, an HRS Fire Protection Specialist, performed a full survey fire safety inspection on the Warrington House on September 24, 1986. During that survey, he cited 11 deficiencies. Various compliance dates were established for the deficiencies. A follow-up survey was conducted by Mr. Temkin on January 14, 1987. During that survey, he noted that 6 of the previously cited deficiencies had not been corrected. He recommended administrative action on all the uncorrected deficiencies. The six remaining uncorrected deficiencies were as follows: No up to date fire plan and the July 7th fire drills were not documented; No fire alarm test since July 1986 and fire alarm zones were not shown on the actuator panel; Smoke detectors not working in four (4) rooms; Exit sign lights burned out at the front and center exits, emergency lights not working at the front, rear and upstairs exit halls; Sleeping rooms had hollow core doors; and There was no documentation of fire safety on the wood paneling and tile ceilings on the first and second floors. All other deficiencies cited during the September 24, 1986 full survey were corrected. As to the alleged deficiencies contained in the latter half of (b) and (c)-(f) above, none appear at any point in HRS' rules governing ACLF's. Supposedly, these deficiencies are cited in the NFPA life safety code, which is incorporated by reference in the Fire Marshal's rule on ACLF's, Rule 4A-40, Florida Administrative Code. The 1984 version of Rule 4A-40, Florida Administrative Code is incorporated by reference in HRS' rule, Rule 10A-5, Florida Administrative Code. Both HRS' rule and the Fire Marshal's rule are contained in the Florida Administrative Code. However, the 1984 version of NFPA is nowhere to be found in the Administrative Code. The current Fire Marshal's rule adopts portions of the 1985 NFPA life safety code. However, the HRS' rule adopts the 1984 version of the Fire Marshal's rule. No showing was made by Respondent as to what the 1984 version of the NFPA code contained. The HRS inspector's testimony regarding a particular deficiency's inclusion in the NFPA cannot be relied on since both inspectors apparently used the 1985 version of the NFPA which is not the 1984 version included in HRS's rule. Without proof of the contents of the NFPA, HRS has failed to prove any deficiencies for which it may take administrative actions. As to the other deficiencies, attempts to comply were in fact made by the Warrington House. The facility's personnel in fact thought they had complied with HRS' desires based upon previous inspections. However, for one reason or another, these attempts were rejected by the HRS inspector and the deficiency was cited again, but because of another reason. The lack of an up- to-date fire plan (cited in (a) above) was met by the Warrington House when they obtained a fire plan prior to the established correction date from another arm of HRS responsible for devising such plans. However, upon the January 14th follow-up inspection, the plan obtained from HRS by Petitioner was considered insufficient in that it did not outline staff responsibilities during a fire. The same thing occurred with the lack of fire alarm tests, cited in the latter part of (a) and the first part of (b) above. The Warrington House obtained the testing document and test from another branch of HRS responsible for such testing. However, the inspector at the follow up survey did not deem his own agency's testing documents sufficient since it did not show a different type sending unit was being tested at least once a year. 1/ These are simply not repeat deficiencies since in each instance the earlier grievance had been met and it was another grievance which cropped up. On July 9, 1987, a second follow-up survey to the Temkin September 24, 1986, full survey was performed by O.B. Walton, an HRS fire safety inspector. The evidence was not clear as to any remaining uncorrected deficiencies, if any, he found. Therefore, Respondent failed to establish any repetitive deficiencies as a result of the July 9 follow-up survey. Apparently, however, Mr. Walton, did perform another full survey on July 9, 1987. Several additional deficiencies were cited by him. A follow-up visit was conducted by Mr. Walton on October 23, 1987. Four alleged deficiencies remained uncorrected as follows: Ceiling not repaired in hot water heater closet, i.e. not taped; Kitchen fire door latch was jammed open so it would not latch, but it would stay closed; Plug by hot water heater had no cover; No documentation that drapes were fire retardant. Again, none of the above alleged deficiencies appear in HRS' rules or in the fire marshal's rule and a reasonable person could not glean from any of the other provisions contained in HRS' rules that the above conditions might be included in these provisions. The lack of clarity or uniformity in interpretation of HRS' rules is especially born out in this case since two different inspectors while inspecting the same building cited different deficiencies under their respective interpretation of the rules. When the experts differ it is difficult to see how a reasonable lay person could even begin to know or understand the contents of HRS or the Fire Marshal's rules. This lack is especially true since the relevant contents of the 1984 NFPA life safety code are not contained in the Florida Administrative Code and were not demonstrated by HRS. HRS, therefore, failed to prove any repeat deficiencies from the October 23, 1987 follow-up survey. A third fire safety follow-up visit was conducted by Pat Reid, a human services program analyst, on January 21, 1988. She has no expertise or license to perform fire safety inspections. She found all of the earlier cited uncorrected deficiencies corrected except for the documentation on the drapes. That alleged deficiency was partially corrected since Petitioner was replacing the drapery with metal blinds. However, as indicated earlier the lack of documentation for fire retardant drapes was not proven to be a violation by Respondent. Ms. Reid had previously conducted a full survey of Petitioner on August 17 and 18, 1987 in her area of expertise operation and general maintenance of an ACLF. Several deficiencies were cited and correction dates were established. Ms. Reid conducted a follow-up survey to the August 17 and 18 full survey on October 23, 1987. The following alleged deficiencies had not been corrected: Facility staff do not have documentation of being free of communicable diseases; The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease; Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom; Faucet of first floor bathroom is loose; Carpeting in first floor resident room (#7) is badly stained; Three vinyl chairs in dining room have tears, exposing foam padding; Second floor bathroom faucet nearest exit does not clearly distinguish between hot and cold water taps. As to the alleged deficiency contained in (a) above, the regulations do not contain a requirement that any documentation be kept regarding staff members being free of communicable disease. The regulations only require that the facility administrator assure that staff is free of communicable disease. The evidence showed that Petitioner had in fact assured that the staff was free of communicable disease. Therefore, no violation occurred. The alleged deficiency cited in (b) above does constitute a violation of Rules 10-5.081(1)(b), (2)(a)4.d., and (2)(b), Florida Administrative Code. However, in this instance, there are several mitigating circumstances. Foremost is the fact that Petitioner attempted on several occasions to obtain this information from another arm of HRS who had M. B. under its care prior to his admission to Petitioner's facility and had actually failed to complete M. B.'s Health Assessment form properly. Petitioner received many assurances from HRS that it would obtain and forward the information. HRS failed to do so. Moreover, after several years of M. B. living at the Warrington House and after several years of HRS care prior to his admission, common sense would dictate that M. B. is free of communicable diseases. Petitioner has in fact received confirmation of that fact from an examining physician who certified M. B. free of communicable diseases. 2/ As to (c) above, the evidence showed that the windows were only cracked and not broken. No evidence was presented as to the severity of the cracks. Cracked windows are not included in Rule 10A-5.022(a), Florida Administrative Code, which only addresses broken window panes. Moreover, cracked windows without proof of the severity of the cracks is not sufficient evidence of the lack of good repair or other hazardous conditions similar to those listed in Rule 10A-5.022(a), Florida Administrative Code. The Rule requires proof of the hazardous nature of such a condition. Cracked windows are not hazardous in and of themselves and no showing was made that these cracked panes constituted a hazard. Nor do cracked window panes standing alone constitute a violation of Rule 10A-5.022(d). The rule requires evidence that such cracked panes are unreasonably unattractive and no showing was made that the cracks were unreasonably unattractive. Likewise, the missing shower tile in (d) above fails to constitute a violation of Rule 10A-5.022(a) since the deficiency is not listed, and no showing was made that the missing tile constituted a hazardous condition. Similarly, the missing tile, by itself, does not constitute a violation under Rule 10A-5.022(d) since no showing was made that the missing tile was unreasonably unattractive. The same failure of proof occurs with the alleged deficiencies listed in (e), (f), (g), (h) and (i). See Rules 10A-5.022(c), (e) and (i). The alleged deficiency cited in (j) above does constitute a violation of 10A-5.023(9)(e). However, the violation was not repeated after October 1, 1987, the effective date of Section 400.414(2)(d), Florida Statutes. Ms. Reid conducted a second follow-up survey to the August 17 and 18 full survey when she performed the fire safety follow-up on January 21, 1988. All previously cited deficiencies had been corrected except for: Facility staff do not have documentation of being free of communicable diseases. The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable diseases. The following maintenance problems exist: broken or cracked window panes in windows of second floor exit door, both first floor bathrooms and resident room identified as W. S. A third follow-up was conducted by Ms. Reid on April 15, 1988. All the previously cited deficiencies had been corrected except for: The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease. Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom. All of the alleged deficiencies cited in the January 21, 1988 follow- up and the April 15, 1988 follow-up survey were carried forward from the alleged deficiencies discussed above, cited in the October 23, 1987 follow-up survey. The same findings are made as to the alleged deficiencies which were carried forward. Only the physical health assessment of M. B. was cited by Respondent and shown to be a repeated deficiency since the information was not obtained by the established correction dates occurring after October 1, 1987. By the date of the hearing all the above alleged deficiencies had been corrected. Respondent notified Petitioner that it proposed to deny renewal of Petitioner's license to operate the Warrington House on December 23, 1987. The basis for the denial was Section 400.414(1) and (2)(d) which states: 400.414 Denial, revocation, or suspension of license; imposition of administrative fine; grounds. The department may deny, revoke or suspend a license or impose an administrative fine in the manner provided in chapter 120. Any of the following actions by a facility or its employee shall be grounds for action by the department against a licensee: * * * (d) Multiple and repeated violations of this part or of minimum standards or rules adopted pursuant to this part. The language of Subsection (d) was added to Section 400.414 F.S. on October 1, 1987. Prior to that date Respondent had no authority to take punitive action against the license of an ACLF licensee for multiple and repeated violations of Respondent's statutes and rules. The only action Respondent could take against a facility for such violations was in the form of a civil fine the amount of which could be raised if the violation was repetitive. Section 400.426, Florida Statutes. No multiple violations were shown by the evidence through the April 15, 1988 follow-up survey. More importantly, however, no multiple violations were shown by Respondent after October 1, 1987, the effective date of the statutory language at issue in this case. No showing was made by Respondent as to any legislative intent that the statute operate retrospectively. The statute operates only prospectively. Therefore, any alleged deficiencies cited prior to October 1, 1987 are irrelevant for purposes of imposing the punishment contemplated under Section 400.414, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services renew Petitioner's license. DONE and ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1988.
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
The Issue The issue in the case is whether the allegations of the Administrative Complaint are true, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes. The Respondent is a restaurant located at 29 North Boulevard of the Presidents, Sarasota, Florida 34236. Giuseppe Casadio owns and operates the restaurant. On March 25, 2002, an employee representing the Petitioner performed a routine inspection of the Respondent restaurant. Violations of applicable food and fire safety regulations, adopted and enforced by the Petitioner, were noted during the inspection. The inspector identified the violations to the owner and scheduled a re-inspection for March 27, 2002. On March 27, 2002, the Petitioner's employee re- inspected the Respondent restaurant and determined that some of the violations remained uncorrected. The uncorrected violations are related to refrigeration problems, pest control issues, inadequate fire extinguishers, and improper use of an electrical extension cord. The refrigeration problems resulted in a failure to maintain food at appropriate temperatures. The walk-in refrigerator was not chilling properly, and food items including salmon and ham were not chilled to the 41 degrees Fahrenheit required pursuant to regulation. The required storage temperature is intended to retard spoilage and the development of bacteria. At the time of the initial inspection, the Respondent's walk-in refrigerator unit was malfunctioning. The day after the initial inspection, repairs were made to the unit, but the repairs were inadequate and the food storage temperatures remained excessive at the time of the re-inspection. After the re-inspection, additional repair work was required. Another uncorrected violation was the improper storage of a prepared garlic and oil mixture in a "reach-in" refrigerator on the cook's line. The temperature of the mixture was 56 degrees, in excess of the 41 degrees Fahrenheit required pursuant to regulation. Prepared garlic and oil mixtures present the potential for development of botulism if not chilled and stored appropriately. The pest control issue cited in the inspection related to the detection of roaches around the dishwashing machine. The restaurant has a contract with a pest control company, but the measures being taken to reduce the roach population are apparently inadequate. Fire prevention regulations require that an appropriate fire extinguisher be within a travel distance of 30 feet from "high hazard" cooking equipment. The Respondent was not in compliance with the regulations at the time of either inspection because the fire extinguisher was improperly located. Fire prevention regulations prohibit use of electrical extension cords except for temporary use during cleaning. At the time of both inspections, an extension cord was being used to power the reach-in refrigerator unit at the end of the cook's line. The Petitioner has prosecuted similar allegations against the Respondent in a prior administrative proceeding. Pursuant to a Final Order issued in 2001 based on an agreed stipulation and consent order, the Petitioner has previously identified code violations related to improper food storage temperature and inadequate fire suppression equipment during inspections in 1999 and 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order imposing a fine of $5,600, and requiring that the Respondent attend a Hospitality Education Class at his own expense within 60 days of the date of the Final Order. DONE AND ENTERED this 17th day of October, 2002, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 17th day of October, 2002. COPIES FURNISHED: Joseph Casadio Osteria Incorporated 29 North Boulevard of the Presidents Sarasota, Florida 34236 Giuseppe Casadio 934 Boulevard of the Arts Sarasota, Florida 34236 Charles F. Tunnicliff, Esquire 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 Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 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
