00-004323 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Litto`s Apartments
 Status: Closed
Recommended Order on Thursday, February 15, 2001.


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Summary: Petitioner presented sufficient evidence to meet its burden to show that Respondent had committed the offenses alleged in the Administrative Complaint Following Emergency Closure.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16DIVISION OF HOTELS AND )

21RESTAURANTS, )

23)

24Petitioner, )

26)

27vs. ) Case No. 00-4323

32)

33LITTO'S APARTMENTS, )

36)

37Respondent. )

39____________________________________)

40RECOMMENDED ORDER

42Upon due notice, William R. Cave, an Administrative Law

51Judge for the Division of Administrative Hearings, held a

60formal hearing in this matter on December 18, 2000, in Avon

71Park, Florida.

73APPEARANCES

74For Petitioner: Charles F. Tunnicliff, Esquire

80Division of Hotels and Restaurants

85Department of Business and

89Professional Regulation

911940 North Monroe Street

95Tallahassee, Florida 32399-2202

98For Respondent: No Appearance

102STATEMENT OF THE ISSUE

106Did the Respondent commit the offenses alleged in the

115Administrative Complaint Following Emergency Closure and, if

122so, what penalty should be imposed?

128PRELIMINARY STATEMENT

130By an Administrative Complaint Following Emergency

136Closure dated April 7, 2000, and filed with the Division of

147Administrative Hearings (Division) on October 19, 2000, the

155Department of Business and Professional Regulation, Division

162of Hotels and Restaurants (Department) is seeking to revoke,

171suspend, or otherwise discipline Respondent's license as a

179public lodging establishment, license number 38-00104-H.

185As grounds therefor, the Department alleges that

192Respondent violated: (a) Rule 61C-1.004(9)(a), Florida

198Administrative Code, and NFPA 10, Standard for Portable Fire

207Extinguishers, in that a fire extinguisher was missing on the

217north side of apartments; (b) Rule 61C-1.004(5), Florida

225Administrative Code, in that there were no smoke detectors in

235apartments 1, 3, and 8; (c) Rule 61C-1.004(1)(a), Florida

244Administrative Code, in that the water supply was located less

254that 75 feet from septic tank and drain field; (d) Chapter 5,

266Section 5-403.11, (1997) Food Code, U.S. Public Health

274Service, in that the septic tank did not meet Health

284Department requirements; and (e) Section 509.221(1), Florida

291Statutes, in that there was an open septic tank with exposed

302raw sewage located on Respondent's premises and a septic blow

312out on Respondent's premises with raw sewage being dumped on

322the ground.

324By letter dated October 19, 2000, the Department referred

333this matter to the Division for the assignment of an

343Administrative Law Judge and for the conduct of a formal

353hearing. At the hearing, the Department presented the

361testimony of Richard Barnhart and Ed Madden. The Department's

370Exhibits 1 through 6 were admitted in evidence. Rule 61C-

3801.004, Florida Administrative Code, National Fire Protection

387Association, Inc. (NFPA) 10, Standard for Portable Fire

395Extinguishers (1998), Rule 5-403.11, Food Code, U.S. Public

403Health Service, and Section 509.221, Florida Statutes, were

411officially recognized. Respondent did not appear at the

419hearing. Subsequent to the hearing, an Order to Show Cause

429was issued allowing Respondent an opportunity to show cause

438why he failed to appear at the hearing. Respondent's copy of

449the order was returned by the U. S. Postal Service as being

"461undeliverable as addressed/unable to forward." An order

468concluding the hearing and setting a time for proposed

477recommended orders to be filed with the Division was issued.

487Subsequently, the Respondent's copy of the Order was returned

496by the US Postal Service as being "undeliverable as

505addressed/unable to forward."

508A Transcript of this proceeding was filed with the

517Division on January 4, 2001. The department timely filed its

527Proposed Recommended Order. The Respondent did not file a

536proposed recommended order.

539FINDINGS OF FACT

542Upon consideration of the oral and documentary evidence

550adduced at the hearing, the following relevant findings of

559fact are made:

5621. The Department is the agency of the State of Florida

573charged with the responsibility of licensing and regulating

581public lodging establishments.

5842. At all times pertinent to this proceeding, Respondent

593was a licensed public lodging establishment as that term is

603defined in Section 509.013(4)(a), Florida Statutes, license

610number 38-00194-H, located at 1720 US Highway 27, Avon Park,

620Florida.

6213. At all times pertinent to this proceeding, Richard

630Barnhart was employed by the Department as a Sanitation and

640Safety Specialist.

6424. At all times pertinent to this proceeding, Ed Madden

652was employed by the Department as a Sanitation and Safety

662Supervisor.

6635. On March 10, 2000, Barnhart performed a routine

672inspection of Respondent's public lodging establishment

678(Litto's Apartments) and observed two safety violations which

686were classified as violations of critical concern. A

694violation classified as of critical concern is required to be

704corrected immediately. The safety violations observed by

711Barnhart were: (a) fire extinguisher missing on north side of

721Units 1 an 2 which resulted in some of the apartments located

733in Units 1 and 2 not having a fire extinguisher available

744within a maximum distance of 75 feet; and (b) no smoke

755detectors in apartments 1, 3, and 8.

7626. On March 10, 2000, Barnhart prepared a Lodging

771Inspection Report advising Respondent of, among other things,

779the safety violations that had to be corrected by March 18,

7902000. Eugene Riggs, Respondent's Apartment Manager,

796acknowledged receipt of the inspection report listing the

804violations and the date for correction of the violations of

814critical concern.

8167. On March 21, 2000, Barnhart performed a Call Back/Re-

826Inspection of Litto's Apartments and observed the same safety

835violations that were observed on March 10, 2000.

8438. On March 21, 2000, Barnhart prepared a Call Back/Re-

853Inspection Report advising Respondent that the violations

860observed on March 10, 2000, had not been corrected. This

870report advised Respondent that the report should be considered

879a warning and that Respondent would be issued a Notice to Show

891Cause why sanctions should not be assessed against

899Respondent's license. Eugene Riggs acknowledged receipt of a

907copy of the Call Back/Re-Inspection Report.

9139. During a routine inspection conducted on March 21,

9222000, Barnhart observed that: (a) the apartments' water

930supply was less than 75 feet from a septic tank and drain

942field, a sanitation violation of critical concern not observed

951on March 10, 2000; (b) there was raw sewage in an open septic

964tank on the premises, a sanitation violation of critical

973concern not observed on March 10, 2000; and (c) a septic tank

985had been disconnected resulting in raw sewage being dumped on

995the ground, a sanitation violation of critical concern not

1004observed on March 10, 2000.

100910. Barnhart prepared a Lodging Inspection Report

1016listing the violations observed during his routine inspection

1024on March 21, 2000. Eugene Riggs acknowledged receipt of a

1034copy of this report which, among other things, advised

1043Respondent of the deadline of March 28, 2000, for correcting

1053the additional violations observed on March 21, 2000, and the

1063deadline of March 21, 2000, for correcting the violation

1072observed on March 10, 2000, and not corrected by March 21,

10832000.

108411. On March 28, 2000, Barnhart performed a Call

1093Back/Re-Inspection of Litto's Apartments and observed that the

1101violations observed on March 10, 2000, and March 21, 2000, had

1112not been corrected. Barnhart prepared a Call Back/Re-

1120Inspection Report on March 28, 2000, advising Respondent that

1129the violations had not been corrected and that a Notice to

1140Show Cause why sanctions should not be assessed against

1149Respondent's license would be issued.

115412. On April 7, 2000, Barnhart and Supervisor Madden

1163conducted a joint routine inspection of Litto's Apartments and

1172observed that the violations of March 10, 2000, March 21,

11822000, and March 28, 2000, had not been corrected. On April 7,

11942000, a Lodging inspection Report was prepared advising

1202Respondent that the violations noted on March 10, 2000, March

121221, 2000, and March 28, 2000, had not been corrected.

122213. Based on the testimony of Richard Barnhart and Ed

1232Madden, whose testimonies I find to be credible, there is

1242sufficient evidence to show that: (a) a fire extinguisher was

1252missing from the north side of the Units 1 and 2 which

1264resulted in some of the apartments in Units 1 an 2 not having

1277a fire extinguisher available within a maximum distance of 75

1287feet at the time of the inspection on March 10, 2000, and no

1300fire extinguisher had been installed on the north side of

1310Units 1 and 2 at time of the inspection on April 7, 2000, or

1324during the intervening time; (b) smoke detectors were not

1333installed in apartments 1, 3, and 8 at the time of the

1345inspections on March 10, 2000, and smoke detector had not been

1356installed in apartments 1, 3, and 8 at the time of the

1368inspection on April 7, 2000, or during the intervening time;

1378(c) at the time of the March 21, 2000, inspection, there was

1390raw sewage in an open septic tank and sewage on the ground due

1403to a septic tank blowout which had not been corrected at the

1415time of the inspection on April 7, 2000, or during the

1426intervening time; and (d) the water supply was located less

1436than 75 feet from septic tank and drain field at the time of

1449the inspection on March 21, 2000, which had not been corrected

1460at the time of the inspection on April 7, 2000, or during the

1473intervening time.

147514. Respondent's failure to have sufficient fire

1482extinguishers properly located on its premises and

1489Respondent's failure to correct this violation resulted in a

1498significant threat to the public safety and welfare in that

1508the residents were not properly protected from the danger of

1518fire.

151915. Respondent's failure to provide smoke detectors in

1527all of the apartments resulted in a significant threat to the

1538public safety and welfare in that the residents were not being

1549properly protected from the danger of fire.

155616. Respondent's failure to correct the contaminated

1563water supply, correct the situation concerning the raw sewage

1572being dumped on the ground, and to correct the situation where

1583raw sewage was being left in an open septic tank resulted in a

1596significant threat to the public health, safety, and welfare

1605in that not only were the tenants being subjected to those

1616unsanitary conditions but the general public as well.

162417. An Order of Emergency Suspension of License and

1633Closure was issued by Respondent and signed by Gary Tillman,

1643District Administrator, having been delegated this authority

1650by the Director of Hotels and Restaurants. The Order of

1660Emergency Suspension of License and Closure is dated March 7,

16702000. However, this appears to be scrivener's error in that

1680the order alleges violation that are alleged to have occurred

1690on March 10, 21, 28, 2000, and April 7, 2000. Also, the

1702Certificate of Service is dated April 7, 2000. The Order of

1713Emergency Suspension of License and Closure was still in

1722effect on December 18, 2000, the date of the hearing.

1732CONCLUSIONS OF LAW

173517. The Division of Administrative Hearings has

1742jurisdiction over the parties and the subject matter of this

1752proceeding pursuant to Section 120.57(1), Florida Statutes.

175918. The burden of proof is on the party asserting the

1770affirmative of an issue before an administrative tribunal,

1778Florida Department of Transportation v. J.W.C. Company, Inc. ,

1786396 So. 2d 778 (Fla. 1st DCA 1981). The Department has the

1798burden of proof in this proceeding. To meet its burden, the

1809Department must establish facts upon which its allegations

1817are based by clear and convincing evidence. Department of

1826Banking and Finance, Division of Securities and Investor

1834Protection v. Osborne Stern Company , 670 So. 2d 932, 933 (Fla.

18451996); and Section 120.57(1)(h), Florida Statutes (2000).

185219. Sections 509.261(1)(a)and(c), and (2), Florida

1858Statutes, provide in pertinent part as follows:

1865(1) Any public lodging establishment or

1871public food service establishment that has

1877operated or is operating in violation of

1884this chapter or the rules of the division.

1892. . may be subject by the division to:

1901(a) Fines not to exceed $1,000 per

1909offense;

1910* * *

1913(c) The suspension, revocation, or refusal

1919of a license issued pursuant to this

1926chapter.

1927(2) For purposes of this section, the

1934division may regard as a separate offense

1941each day or portion of a day on which an

1951establishment is operated in violation of a

"1958critical law or rule" as that term is

1966defined by rule. (Emphasis furnished.)

197120. Rule 61C-1.0021(2), Florida Administrative Code,

1977provides in pertinent part as follows:

1983(2) Violations of critical laws or rules

1990are those violations determined by the

1996division to pose a significant threat to

2003the public health, safety, or welfare. . .

201122. Rules 61C-1.004(1)(d)(5)and (9)(a), Florida

2016Administrative Code, provide in pertinent part as follows:

2024The following general requirements and

2029standards shall be met by all public

2036lodging and public food service

2041establishments:

2042(1) Water, plumbing and waste - Except as

2050specifically provided in these rules,

2055standards for water, plumbing and waste

2061shall be governed by Chapter 5, Food Code,

2069herein adopted by reference. For purposes

2075of this section, the term "food

2081establishment" as referenced in the Food

2087Code shall apply to all public lodging and

2095public food establishments as defined in

2101Chapter 509, FS.

2104* * *

2107(d) Sewage shall be disposed of in a

2115public sewerage system or other approved

2121sewerage system in accordance with the

2127provisions of Chapter 64E-6 or 62-601, FAC,

2134herein adopted by reference, whichever is

2140applicable. . . .

2144* * *

2147(5) All safety, protection and prevention

2153equipment must be installed, approved,

2158maintained and used in accordance with

2164Chapter 509, FS, and the National Fire

2171Protection Association Life Safety Code

2176Chapter 101, as adopted by the Division of

2184State Fire Marshal in Chapter 4A-3, FAC.

2191* * *

2194(9) Fire safety equipment.

2198(a) Fire Extinguisher Installation - Fire

2204Extinguishers shall be installed in

2209accordance with NFPA 10, Standard for

2215Portable Fire Extinguishers, herein adopted

2220by reference.

222223. The Department has met its burden to show

2231that Respondent: (a) failed to maintain a

2238sufficient number of fire extinguishers around the

2245apartments so that each apartment would have no more

2254than a maximum travel distance of 75 feet to reach a

2265fire extinguisher in case of fire in accordance with

2274NFPA-10, Section 3-2.1; (b) failed to maintain smoke

2282detectors in apartments 1, 3, and 8 as required by

2292Chapter 101, NFPA Life Safety Code, Section 19-

23003.4.4.1; (c) violated Rule 61C-1.004(1)(a), Florida

2306Administrative code, in that the water supply was

2314located less that 75 feet from the septic tank and

2324drain field as required by Rule 64E-6.005(1)(a),

2331Florida Administrative Code; and (d) violated

2337Section 509.221(1), Florida Statutes, Rule 61C-

23431.004(1)(d), Florida Administrative Code, and

2348Chapter 5, Section 5-403.11, Food Code (1997), U.S.

2356Public Health Service, in that the individual sewage

2364system was not being maintained and operated in

2372accordance law.

2374RECOMMENDATION

2375Having considered the serious nature of the offenses

2383committed by the Respondent, that Respondent is presently

2391under an Order of Emergency Suspension of License and Closure

2401for these same offenses, and that the Department is requesting

2411that only an administrative fine be imposed against

2419Respondent, it is recommended that the Department enter a

2428final order finding that Respondent committed the offenses

2436alleged in the Administrative Complaint Following Emergency

2443Closure and imposing an administrative fine of $1,200.00 as

2453requested by the Department.

2457DONE AND ENTERED this 15th of February, 2001, in

2466Tallahassee, Leon County, Florida.

2470___________________________________

2471WILLIAM R. CAVE

2474Administrative Law Judge

2477Division of Administrative Hearings

2481The DeSoto Building

24841230 Apalachee Parkway

2487Tallahassee, Florida 32399-3060

2490(850) 488-9675 SUNCOM 278-9675

2494Fax Filing (850) 921-6947

2498www.doah.state.fl.us

2499Filed with the Clerk of the

2505Division of Administrative Hearings

2509this 15th day of February, 2001.

2515COPIES FURNISHED:

2517Charles F. Tunnicliff, Esquire

2521Division of Hotels and Restaurant

2526Department of Business and

2530Professional Regulation

25321940 North Monroe Street

2536Tallahassee, Florida 32399-0792

2539Litto's Apartments

25411720 U.S. Highway 27

2545Avon Park, Florida 33825-9589

2549Ahmed Anjuman

25511720 U.S. Highway 27

2555Avon Park, Florida 32825-9589

2559Susan R. McKinney, Director

2563Division of Hotels and Restaurants

2568Department of Business and

2572Professional Regulation

2574Northwood Centre

25761940 North Monroe Street

2580Tallahassee, Florida 32399-0792

2583Barbara D. Auger, General Counsel

2588Department of Business and

2592Professional Regulation

2594Northwood Centre

25961940 North Monroe Street

2600Tallahassee, Florida 32399-0792

2603NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2609All parties have the right to submit exceptions within 15 days

2620from the date of this Recommended Order. Any exceptions to

2630this Recommended Order should be filed with the agency that

2640will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 03/28/2001
Proceedings: Final Order filed.
PDF:
Date: 03/27/2001
Proceedings: Agency Final Order
PDF:
Date: 02/16/2001
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 02/15/2001
Proceedings: Recommended Order
PDF:
Date: 02/15/2001
Proceedings: Recommended Order issued (hearing held December 18, 2000) CASE CLOSED.
PDF:
Date: 02/09/2001
Proceedings: Motion to Present Supplemental Authority filed by Petitioner.
PDF:
Date: 01/25/2001
Proceedings: Motion in Response to Produce Evidence of Service (filed by Petitioner via facsimile).
PDF:
Date: 01/23/2001
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 01/12/2001
Proceedings: Order issued (the parties shall file their proposed recommended orders by January 26, 2001).
Date: 01/04/2001
Proceedings: Transcript of Proceedings filed.
PDF:
Date: 12/20/2000
Proceedings: Order to Show Cause issued (Respondent shall respond to this order by 1/8/2001)
Date: 12/18/2000
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 11/03/2000
Proceedings: (Joint) Response to Initial Order (filed via facsimile).
PDF:
Date: 11/02/2000
Proceedings: Notice of Hearing issued (hearing set for December 18, 2000; 1:00 p.m.; Avon Park, FL).
Date: 10/20/2000
Proceedings: Initial Order issued.
PDF:
Date: 10/19/2000
Proceedings: Administrative Complaint filed.
PDF:
Date: 10/19/2000
Proceedings: Agency referral, Request for Hearing filed.

Case Information

Judge:
WILLIAM R. CAVE
Date Filed:
10/19/2000
Date Assignment:
10/20/2000
Last Docket Entry:
03/28/2001
Location:
Avon Park, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

Counsels

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