00-002746 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. 1015 Apartments Status: Closed Recommended Order on Wednesday, December 13, 2000.

Summary: $1,000 fine recommended where Petitioner demonstrated danger to public health and safety is a violation of Rule and Statute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 00-2746

)

1015 APARTMENTS, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notic e, a formal hearing was conducted in this

case on September 25, 2000, via video teleconference in Fort

Lauderdale and Tallahassee, Florida, before Florence Snyder

Rivas, a duly-designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Jean Pierre-Lou is, pro se

1015 Northeast 17th Avenue

Apartment 205

Fort Lauderdale, Florida 33304-2465

STATEMENT OF 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 April 3, 2000.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 3, 2000, Petitioner

notified Respondent of its intent to pursue sanctions against

Respondent's public lodging establishment license based upon

violations specified in the complaint.

Respondent timely disputed the charges. On July 7, 2000,

Petitioner forwarded the matter to the Division of Administrative

Hearings for assignment of an Administrative Law Judge and the

conduct of a formal administrative hearing in this matter,

pursuant to Section 120.57(1), Florida Statutes.

The final hearing was held on September 25, 2000, by video

teleconference in Tallahassee and Fort Lauderdale.

Jean Pierre-Louis, pro se , appeared on behalf of Respondent.

During the course of the hearing, he asserted that he had been

given insufficient notice to procure the attendance of witnesses.

He requested, and was permitted, an additional two weeks, through

October 9, 2000, to provide the undersigned with sworn statements

of as many witnesses as he desired. The undersigned advised

Respondent that Petitioner would be permitted additional time to

depose any such witnesses, if it desired to do so, and file the

deposition transcript(s) for consideration by the undersigned in

the preparation of the Recommended Order. Respondent agreed to

that procedure, and affirmatively stated that two weeks would be

sufficient time for him to supply affidavits. However, as of

this writing, Respondent has neither supplied any statements nor

sought an extension of time in which to do so.

At the final hearing, Petitioner presented the testimony of

Sean Sylvester Grovesnor, Sanitation and Safety Specialist for

Petitioner's Division of Hotels and Restaurants.

Jean Pierre-Louis testifi ed on Respondent's behalf.

Petitioner’s Exhibits 1-3 were admitted into evidence

without objection. Official recognition was taken of the

National Fire Protection Association Act 101-193.4.4.1; Chapter V

of the 1997 Food Code of the United States Public Health Service,

as incorporated into Title 61C, Florida Administrative Code; Rule

61C-1.004, Florida Administrative Code; Rule 61C-3.002(5),

Florida Administrative Code; Rule 61C-4.010(6), Florida

Administrative Code, incorporating by reference Chapter 4 of the

United States Public Health Lodging Code; and Rule 61C-1.004(1),

Florida Administrative Code, incorporating by reference Chapter 5

of the United States Public Health Lodging Code.

Respondent’s Composite Exhibit 1 was admitted into evidence

without objection.

A Transcript of the final hearing was filed on November 2,

2000. Petitioner filed a Proposed Recommended Order on

November 15, 2000. No proposed recommended order was submitted

on Respondent's behalf.

FINDINGS OF FACT

Based on the ora l and documentary evidence adduced at the

final hearing, and the entire record in this proceeding, the

following findings of fact are made.

1. 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.

2. To accomplish this purpose, Petitioner employs persons

trained to respond to citizen complaints about public lodging

establishments. Such inspectors visit and inspect the premises

about which complaints are made, gather facts, and make reports

to document their findings.

3. At all times relevant to this proceeding, Petitioner

employed Sean Sylvester Grovesnor (" Grovesnor") as a Sanitation

and Safety Specialist assigned to its Division of Hotels and

Restaurants.

4. At all times relevant to this proceeding, Respondent

1015 Apartments was a licensed public lodging establishment

within the meaning of Section 509.013(4)(a), Florida Statutes,

operating under license control number 16-04182H, and located at

1015 Northeast 17th Avenue, Fort Lauderdale, Florida 33304-2465.

5. Responding to a complaint on or about February 10, 2000,

Grovesnor visited 1015 Apartments.

6. Grovesnor's inspection revealed various violations.

Specifically, Grovesnor observed:

a) balcony railing supports in disrepair in

front of Apartment No. 204;

b) no smoke detector in Apartment No. 201;

c) an exit sign hanging from exposed wires by

Apartment No. 205;

d) a broken window on south side of the

building;

e) water stained ceiling tiles in living room

of Apartment No. 201;

f) holes in kitchen cabinets in Apartment no.

201;

g) cold water knob in Apartment No. 201 would

not work;

h) faucet head not properly attached to the

bathtub in Apartment No. 201;

i) mildew and mildew holes in bathroom

ceiling of Apartment No. 104.

j) the sewer line clean out pipe cover was

missing in the parking lot.

7. Respondent was informed that all violations must be

corrected by February 17, 2000.

8. On or about February 18, 200 0, Grovesnor made a

callback/reinspection visit for the purpose of determining

whether Respondent had corrected the violations noted on the

previous visit. None of the violations previously noted had been

corrected.

9. Each of the above-described violat ions constitutes a

separate and distinct potential hazard to the health and/or

safety of individuals on the premises.

10. The balcony railing violation was corrected on

March 17, 2000, by Tim's Welding of Fort Lauderdale.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1), Florida Statutes.

12. Pursuant to Section 509.261, Florida Statutes,

Petitioner, through its Division of Hotels and Restaurants, is

empowered to regulate and discipline public lodging

establishments.

13. Petitioner seeks to impose administrative fines upon

Respondent and must, therefore, provide clear and convincing

evidence of the allegations made against Respondent. Department

of Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932 (Fla.

1996).

14. Section 509.032(6), Florida Statutes, authorizes

Petitioner to promulgate rules pertaining to health and safety

conditions at Respondent's public lodging establishment.

Pursuant to that grant of authority, Petitioner promulgated Rule

61C-4.010(6), Florida Administrative Code, incorporating by

reference Chapter 4 of the United States Public Health Lodging

Code, and Rule 61C-1.004(1), Florida Administrative Code,

incorporating by reference Chapter 5 of the United States Public

Health Lodging Code.

15. Rule 61C-1.004(6), Florida Administrative Code,

provides in pertinent part:

. . . all building structural components,

attachments and fixtures shall be kept in

good repair, clean and free of obstructions.

16. Petitioner has demonstrated by clear and convincing

evidence that the defective balcony rail support; the broken

window; and the mildewed and water-stained ceilings each

constitute a violation of this Rule and create a danger to public

health and safety.

17. Section 509.215(h), Florida Statutes, provides in

pertinent part:

. . . [each room] shall be equipped with an

approved listed single station smoke

detector . . . ."

18. Petitioner has demonstrated by clear and convincing

evidence that Respondent failed to provide a working smoke

detector in Apartment no. 201. This failure violates the cited

statute and constitutes a danger to public health and safety.

19. Rule 61C-1.004(11), Florida Administrative Code,

provides, in pertinent part:

To prevent fire or injury, defective

electrical wiring shall be replaced and

wiring shall be kept in good repair.

20. Petitioner has demonstrated by clear and convincing

evidence that Respondent failed to prevent or correct the

presence of exposed wires by Apartment no. 205, which failure

violated the cited Rule and constitutes a danger to public health

and safety.

21. Chapter 5-205.15(1997), Department of United Stat es

Public Health Lodging Code, incorporated into the Florida

Administrative Code as Rule 61C-1.004(1), provides, in pertinent

part:

. . . a plumbing system shall be. . .

maintained in good repair.

22. Petitioner has demonstrated by clear and convincing

evidence that Respondent failed to cover the sewer line clean out

pipe; and to repair the cold water knob on the bathroom sink and

the bathtub faucet in Apartment no. 201. These failures violate

the cited Rule and constitute a danger to public health and

safety.

23. Rule 61C-3.001(5), Florida Administrative Code, states:

Furniture, upholstery, draperies, shades,

venetian doors, blinds, and other provided

furnishings in lobby, lodges, parlors and

bedrooms shall be kept clean, and be

renovated or replaced as needed . . . .

24. Petitioner has demonstrated that Respondent failed to

repair holes in the kitchen cabinet in Apartment no. 201.

However, this Rule, by its very terms, does not apply to

permanent fixtures such as kitchen counters and cabinets. Thus

no sanction can be imposed based upon this Rule.

25. Pursuant to Section 509.211(2), Florida Statutes,

Petitioner may impose administrative fines, not to exceed $1,000

per offense, for each violation of Chapter 509 and Rules

promulgated thereunder.

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, and that Respondent be required to pay a fine in the amount

of $1,000.

DONE AND ENTERED this 13th day of December, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of December, 2000.

COPIES FURNISHED:

Susan R. McKinley, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Barbara D. Auger, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Charles F. Tunnicliff

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jean Pierre-Louis

1015 Northeast 17th Avenue

Apartment 205

Fort Lauderdale, Florida 33304-2465

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.