The Issue Whether a civil penalty should be imposed upon the Petitioner for alleged violations of Chapter 400, Part II, Florida Statutes?
Findings Of Fact The Petitioner owns an adult congregate living facility. On May 28, 1985, Jim Temkin, an employee of the Respondent, inspected the Petitioner's facility. As a result of this inspection, Mr. Temkin noted four violations of the rules and regulations governing the operation of Florida adult congregate living facilities. (Other deficiencies, not relevant to this proceeding, were also noted). The deficiencies noted in Mr. Temkin's May 28, 1985, inspection report were as follows: ACLF 1 Styrofoam plastic ceiling is used in the dining room, sleeping rooms, hallway, bathrooms and laundry, the kitchen has a particle board ceiling all of which appear to be combustible. . . . . ACLF 2 The kitchen has a gas range and an electrical range without exhausts or automatic extinguishing systems. . . . . ACLF 3 The outside chimney stark [sic] for the gas heater in the resident dining room does not extend above the roof. . . . . ACLF 5 Bed No. 1 & No. 2 have unprotected windows into the dining room. The deficiencies quoted in finding of fact 3 (hereinafter referred to as "ACLF 1, 2, 3 or 5"), were discussed with the Petitioner by Mr. Temkin at the conclusion of his inspection. The Petitioner was given the opportunity to select reasonable dates for correction of the problems noted by Mr. Temkin. The Petitioner accompanied Mr. Temkin during his inspection on May 28, 1985. The following dates were agreed upon by the Petitioner and Mr. Temkin for the correction of the deficiencies noted in finding of fact 3: ACLF 1: February 1, 1986. ACLF 2: September 28, 1985. ACLF 3: July 8, 1985. ACLF 5: July 8, 1985. On March 24, 1986, Mr. Temkin returned to the Petitioner's facility to determine if the deficiencies noted in his May 28, 1985, report had been corrected. Deficiencies ACLF 3 and 5 had not been corrected. Deficiencies ACLF 1 and 2 had only been partially corrected. Therefore, as of March 24, 1986, the Petitioner had failed to correct the deficiencies within the correction periods agreed upon by the Petitioner and the Respondent. ACLF 1 involved the use of materials for the roofs of the rooms noted by the Respondent in violation of Section 6-5.1.3 of the Life Safety Code, National Fire Prevention Association Codes and Standards. Use of these materials constituted an indirect hazard to residents of the facility. As of March 24, 1986, the hazardous material had been replaced with sheet rock in only the back bedrooms. ACLF 2 involved the use of a range without proper fire protection. Failure to have the proper protection constituted an indirect hazard to residents because fire could easily spread from the kitchen to other parts of the facility. The Petitioner could have chosen from at least two methods to correct this problem. The Petitioner chose to install fire doors on the two exists from the kitchen. As of March 24, 1986, only one door had been installed. ACLF 3 involved an outside exhaust from a gas heater. Mr. Temkin estimated that the exhaust extended only 9 inches above the roof. Mr. Temkin did not measure the exhaust. Instead, Mr. Temkin merely observed the exhaust from the ground. Mr. Temkin's estimate is insufficient to prove that the exhaust was less than 2 feet above the roof. ACLF 5 involved two windows between two bedrooms and the "dining room." In fact, the windows were between two bedrooms and a sitting room; not the dining room. These windows did not, however, provide sufficient protection from fire outside the bedrooms to meet Chapter 17 of the Life Safety Code, National Fire Prevention Association Codes and Standards. The windows constituted an indirect risk to residents because fire could easily spread from the sitting room into the bedrooms. On May 1, 1986, Mr. Temkin inspected the Petitioner's facility again. ACLF 1, 3 and 5 had still not been corrected. Therefore, a new date was agreed upon for the correction of these items: August 1, 1986. The new date was not an extension of time. The new date was given simply because the Petitioner had failed to meet the originally prescribed date and a completion date had to be re-established. At no time before or after the original completion dates for ACLF 1, 2, 3 and 5 did the Respondent agree to a different completion date in substitution of the original dates or extend the original extension dates. The Petitioner took steps to correct ACLF 1, 2, 3 and 5. The steps taken by the Petitioner were not, however, successful in insuring that the deficiencies were corrected by the completion date originally agreed to by the Petitioner and the Respondent. The Petitioner has not been charged at any other time with a violation of the law applicable to the operation of an adult congregate living facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Petitioner be found guilty of, and a total civil penalty of $200.00 be imposed for, violating the Class III deficiencies identified by the Respondent as ACLF 1 and 2. It is further: RECOMMENDED: That the Petitioner be found not guilty of the Class III deficiencies identified by the Respondent as ACLF 3 and 5. DONE and ORDERED this 22nd day of January, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 22nd day of January, 1988. COPIES FURNISHED: Narvel Armstrong, pro se Post Office Box 261 Vernon, Florida 32462 John R. Perry, Esquire Assistant District 2 Legal Counsel Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
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 for determination is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Galilee was licensed by the Department. Galilee's last known address is 4685 Haverhill Road, West Palm Beach, Florida. Galilee is a lodging establishment, consisting of rental apartments. It was originally constructed in 1995 as an assisted living facility but, as a business decision, the owner subsequently converted it to rental apartments. The Department's inspector inspected the outside of Galilee on December 18, 2002, and again on January 17, 2003. The inspector found deficiencies at the first inspection, and at the second inspection three deficiencies remained uncorrected. The uncorrected deficiencies were (1) the current report of the annual inspection for the fire sprinkler system was not available; (2) fire extinguishers failed to have state certification tags affixed; and (3) no backflow prevention device on the exterior hose connection to the apartment building. The failure to have available the current report of the annual inspection for the fire sprinkler system was a critical violation. The deficiency was classified as a critical violation because the annual report is the only way that an inspector can ascertain that the fire sprinkler system is operational. The inspector requested the current annual report at the first visit but it was not available. The failure of the fire extinguishers to have state certification tags affixed was a critical violation. The deficiency was classified as a critical violation because the state certified tag verifies that an extinguisher is in proper working order and is being properly maintained. The failure to have a backflow prevention device on the exterior hose connection to the apartment building was not a critical violation. The backflow prevention device stops negative water pressure. At the first inspection, the inspector explained the violations to the owner and gave him a 30-day warning to have the violations corrected, advising the owner that she would return on January 17, 2003, for a follow-up inspection. The violations were not corrected at the follow-up inspection 30 days later. The evidence shows that all the violations were corrected within a month to a month and a half after the second inspection. Galilee provided mitigating circumstances for the violations not being corrected at the time of the second inspection. As to the deficiency regarding availability of the current report of the annual inspection for the fire sprinkler system, Galilee has a current report dated February 27, 2003. Also, Galilee suggests that the inspector did not request the report. The undersigned finds the inspector's testimony credible that she requested the report. Further, the evidence shows that Galilee confused the requested report with the report of the fire department's inspection. The inspector testified, and her testimony is found credible, that the report of the annual inspection for the fire sprinkler system is generated by a private company, not the fire department, because the fire department does not perform the inspection required for the requested report. As to the deficiency regarding tagging of the fire extinguishers, Galilee's owner purchased fire extinguishers from Home Depot and was not aware that the extinguishers were required to be tagged at the time of the first inspection. Subsequent to the second inspection, the fire extinguishers were tagged by the AAC United Fire and Safety Department, with which Galilee has a contract to inspect the fire extinguishers. As to the deficiency regarding backflow prevention device, it too was corrected subsequent to the second inspection. Furthermore, even though the deficiencies were corrected subsequent to the second inspection, Galilee began the process to correct the deficiencies after the first inspection. Galilee was not ignoring the deficiencies. The deficiencies were not timely corrected because Galilee's owner was attempting to obtain, whom he considered, the proper people to perform the tasks involved and have the tasks performed at a reasonable expense. No evidence of prior disciplinary action being taken against Galilee by the Department was presented.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order: Finding that Galilee violated NFPA Life Safety Code 25, 1-8.2 and Food Code Rule 5-204.12. Dismissing the violation of Florida Administrative Code Rule 61C-1.004(5). Imposing an administrative fine of $1,500.00, payable under terms and conditions deemed appropriate. S DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. ____ ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2003.
