01-001828 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Gables Guest House Status: Closed Recommended Order on Thursday, September 27, 2001.

Summary: A minimum of six critical safety and plumbing violations over one month period resulted in $3,400 fine(s).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

DIVISION OF HOTELS AND )

RESTAURANTS , )

)

Petitioner , )

) Case No. 01-1828

vs. )

)

GABLES GUEST HOUSE , )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held on

August 17, 2001, by video teleconference at locations in

Tallahassee, Florida and Jacksonville, Florida, by Ella Jane P.

Davis, a duly-assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner : Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulations

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent : No Appearance

STATEMENT OF THE ISSUE

Whether Respondent failed to properly maintain the premises

at Gables Guest House, in violation of Section 509.032, Florida

Statutes, through violations of Rules 61C-1.004, and 61C-3.002,

Florida Administrative Code, as alleged in the administrative

complaint.

PRELIMINARY STATEMENT

This cause was referred to the Division of Administrative

Hearings on or about May 10, 2001. It was initially assigned to

Administrative Law Judge Suzanne F. Hood.

On May 10, 2001, an Initial Order was forwarded to

Petitioner and Respondent. On May 23, 2001, a Notice of Hearing

by Video Teleconference was forwarded to Petitioner and

Respondent, setting the hearing for July 20, 2001, at locations

in Tallahassee, Florida and Jacksonville, Florida.

On June 12, 2001, Petitioner filed a Motion for Continuance.

On June 15, 2001, an Order Granting Continuance and Rescheduling

Hearing by Video Teleconference was forwarded to Petitioner and

Respondent, setting the hearing for August 17, 2001, at locations

in Tallahassee, Florida and Jacksonville, Florida.

At the appointed time, the videoconference hearing was

convened by Judge Ella Jane P. Davis, in the absence of Judge

Hood. Respondent did not appear at either location timely, and

after a search was made of the lobby and waiting areas of the

Jacksonville location and after waiting one-half hour without

Respondent appearing, the final hearing went forward.

At Petitioner's request, official recognition was taken of

various statutes and rules and of portions of the 1997 United

States Public Health Service Food Code, which is incorporated by

reference into the Agency's rules.

Petitioner presented the oral testimony of Gustavo Velez and

had three exhibits admitted in evidence.

A Transcript was filed on August 23, 2001.

Petitioner timely filed a Proposed Recommended Order which

has been considered.

FINDINGS OF FACT

1. Respondent facility is a "rooming house" licensed by

Petitioner Department of Business and Professional Regulation.

2. Gustavo Velez is a trained and certified inspector for

Petitioner. He inspected Respondent facility on April 7, 2000,

and issued many citations and warnings for critical and non-

critical violations of departmental health rules. He re-

inspected on May 8, 2000.

3. A critical violation is one which creates imminent and

immediate hazard to the health and safety of the public. A non-

critical violation is one which creates only an indirect threat

to public health and safety.

4. On inspection and on re-inspection, there was no fire

alarm installed on the premises, and there were no pull stations

connected to smoke detectors on each floor. These are critical

violations.

5. On both inspections, Respondent's exit doors on both the

first and second floors were locked, and the exit door on the

second floor opened inward. The inherent danger is self-evident.

These are critical violations.

6. On both inspections, there was a floor fan obstructing

the second floor exit. The inherent danger is self-evident.

This is a critical violation.

7. On both inspections, there were no hearing-impaired

smoke detectors on the premises. This meant that any hearing-

impaired person could not request and receive one and therefore

would be at risk in case of fire. The absence of hearing-

impaired smoke detectors is a critical violation.

8. On both inspections, there was a light fixture near the

second floor exit that was hanging by a cord and separated from

the ceiling. This situation created the danger of electrical

fire and injury. It is a critical violation.

9. On both inspections, there was no backflow prevention

device installed at the hose bibb located at the side of the

building. This situation invites water contamination and is a

critical violation.

10. On both occasions, there was a heavy accumulation of

dust throughout the establishment; no room rate schedule

available at the time of the inspections; and no room rates

posted in the establishment. These are non-critical violations.

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. Petitioner Agency has the duty to go forward and prove

the charges by clear and convincing evidence.

13. The provisions of Chapter 509, Florida Statutes, and

Rule Chapter 61C, Florida Administrative Code, govern this case.

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

provides that violations of critical laws or rules are those

violations determined by the Division of Hotel and Restaurants to

pose a significant threat to the public health, safety, or

welfare.

15. Rule 61C-1.001, Florida Administrative Code, provides

that except when otherwise defined in the rule, the definitions

provided in paragraph 1-201.10(B), Food Code, 1999

Recommendations of the United States Public Health Service/Food

and Drug Administration (Food Code) are adopted by reference and

shall apply to Rule Chapters 61C-1, 61C-3 and 61C-4, Florida

Administrative Code. Although Petitioner presented for official

recognition only the 1997 version of the federal requirements,

the undersigned has applied the 1999 version, as required by the

foregoing rules.

16. Rule 61C-1.004(1), Florida Administrative Cod e,

provides that, except as specifically provided in the rules,

standards for water, plumbing, and waste shall be governed by

Chapter 5, Food Code, adopted by reference.

17. Pursuant to Rule 61C-1.004(5), Florida Administrative

Code, all fire safety, protection and prevention equipment must

be installed, approved, maintained and used in accordance with

Chapter 509, Florida Statutes, and the National Fire Protection

Association (NFPA) Life Safety Code, Chapter 101, as adopted by

the Division of the State Fire Marshal in Chapter 4A-3, Florida

Administrative Code.

18. Rule 61C-1.004(10), Florida Administrative Code,

provides, in pertinent part, that adequate means of exit shall be

provided pursuant to NFPA, Life Safety Code Chapter 101.

19. Rule 61C-1.004 (10), Florida Administrative Code,

provides, in pertinent part, that means of access must permit

unobstructed travel at all times and be maintained free of

obstructions.

20. Pursuant to Section 509.215(8), Florida Statutes,

specialized smoke detectors for the deaf and hearing-impaired

shall be available upon request by guests in public lodging

establishments at a rate of at least one smoke detector per 50

dwelling units or portions thereof, not to exceed five such smoke

detectors per public lodging facility.

21. Pursuant to Rule 61C-1.004(11), Florida Administrative

Code, to prevent fire or injury, defective electrical wiring

shall be replaced and wiring shall be kept in good repair.

22. Pursuant to 5-203.14, United States Public Health

Service Food Code, a plumbing system shall be installed to

preclude a backflow of a solid, liquid, or gas contaminant into

the water supply system at each point of use at the food

establishment, including on a hose bibb, if a hose is attached,

or on a hose bibb if a hose is not attached, and backflow

prevention is required by law, by either (a) providing an air

gap, as specified under Section 5-202.13; or (b) installing an

approved backflow prevention device as specified under

Section 5-202.14.

23. Pursuant to Rule 61C -1.004(6), Florida Administrative

Code, all building structural components, attachments and

fixtures shall be kept in good repair, clean and free of

obstructions.

24. Pursuant to Rule 61C-3.002(1), Florida Administrative

Code, a photocopy of the room rate schedule, stamped with the

date it was received by the district, shall be kept available for

inspection at all times.

25. Pursuant to Rule 61C-3.002(2), Florida Administrative

Code, the rates and additional charges filed with the Division of

Hotels and Restaurants shall be posted in a conspicuous place in

each guest room or unit on BPR Form 22-018, Notice to Guests,

incorporated by reference in that rule, and effective

September 25, 1996, or in a form incorporating the language

thereon.

26. Pursuant to Section 509.261(1), Florida Statutes, the

Division of Hotels and Restaurants may impose penalties for

violations of Chapter 509, Florida Statutes, including an

administrative fine of no more than $1,000 for each separate

offense and the suspension or revocation of Respondent's license.

27. It is concluded that the cited violations were, in

fact, present on both inspections and these constituted a minimum

of six critical violations.

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 the violations listed above and providing

for suspension of Respondent's license until she/it begins to

make payment of fines totaling $3,400.00, in monthly payments of

no less than $100 and no more than $500 per month, at the

discretion of the Department.

DONE AND ENTERED this 27th day of September, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of September, 2001.

COPIES FURNISHED:

Lucy Deering

Gables Guest House

2020 Main Street

Jacksonville, Florida 32206

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Susan R. McKinley, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulations

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulations

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.