97-001411 Don Lindsey vs. Department Of Health
 Status: Closed
Recommended Order on Wednesday, August 13, 1997.


View Dockets  
Summary: Owner/operator of residential migrant farmworker housing is guilty of violations alleged in citations. Waiver or reduction of fines is not warranted.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DON LINDSEY , )

11)

12Petitioner , )

14)

15vs. ) Case No. 97-1411

20)

21DEPARTMENT OF HEALTH , )

25)

26Respondent. )

28__________________________________)

29RECOMMENDED ORDER

31Pursuant to notice, a Section 120.57(1) hearing was held in

41this case on July 18, 1997, by video teleconference, at sites in

53West Palm Beach and Tallahassee, Florida, before Stuart M.

62Lerner, a duly designated Administrative Law Judge of the

71Division of Administrative Hearings.

75APPEARANCES

76For Petitioner: Don L indsey, pro se

835600 Poinsettia Avenue, Number 1109

88West Palm Beach, Florida 33402

93For Respondent: Victoria A. Coleman, Esquire

99Department of Health

102Post Office Box 29

106West Palm Beach, Florida 33402

111STATEMENT OF THE ISSUES

1151. Whether Petitioner committed the violations alleged in

123the citations he received on February 6, 1997.

1312. If so, what amount, if any, should he be fined .

143PRELIMINARY STATEMENT

145On February 6, 1997, Petitioner was issued citations for

154violations existing at two migrant farmworker housing facilities

162that he owned in Pahokee, Florida. Petitioner thereafter

170requested an administrative hearing on the matter. On March 19,

1801997, the case was referred to the Division of Administrative

190Hearings for the assignment of an Administrative Law Judge to

200conduct a Section 120.57(1) hearing.

205As noted above, the hearing was held on July 18, 1997. A

217total of three witnesses testified at the hearing : Michael

227Menor, a Sanitation and Safety Specialist with the Department of

237Health (Department); Petitioner; and Speedy Martin, an employee

245of Petitioner's. In addition to the testimony of these three

255witnesses, a total of 17 exhibits (Respondent's Exhibits 1A, 1B,

2652A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 6A, 6B, 7, 8, 9A, 9B and 10) were

282offered and received into evidence.

287At the conclusion of the evidentiary portion of the hearing,

297the undersigned announced on the record that proposed recommended

306orders had to be filed no later than August 1, 1997. On July 31,

3201997, Petitioner and the Department timely filed their proposed

329recommended orders. The undersigned has carefully considered

336these proposed recommended orders submitted by the parties.

344On August 4, 1997, Petitioner filed the following "fax

353message" addressed to the undersigned:

358Pertinent to the facts is this contract with

366Glades Pest Control. I was conversing with

373the owner at the beginning of Feb. 1997. He

382had to go to the property to inspect it and

392determine a method of dealing with the

399problem. He sent me his suggestions on

406Feb. 17, 1997 and I agreed to have him do it

417a.s.a.p. That date was March 7, 1997.

424The "contract with Glades Pest Control" referenced in the

433message, as well as a February 17, 1997, letter, and a March 7,

4461997, invoice, from Glades Pest Control to Petitioner were

455appended to the message. Neither the information contained in

464the message nor the documents attached to the message were

474offered or received into evidence at the final hearing on

484July 18, 1997. Because they are outside the scope of the

495evidentiary record in this case, they cannot provide a basis for

506any finding of fact. See General Development Utilities, Inc. v.

516Hawkins , 357 So. 2d 408, 409 (Fla. 1978) ; Section 120.57(1)(h),

526Florida Statutes ("Findings of fact . . . shall be based

538exclusively on the evidence of record and on matters officially

548recognized."). In any event, even if they were considered part

559of the evidentiary record (upon which findings of fact could be

570based), the outcome of the instant case would be the same.

581FINDINGS OF FACT

584Based upon the evidence adduced at hearing and the record as

595a whole, the following Findings of Fact are made:

6041. At all times material to the instant case, Petitioner

614owned and operated two apartment buildings located (adjacent to

623each other) at 732 and 740 Joe Louis Avenue in Pahokee, Florida

635(hereinafter referred to as the 732 Apartments and the 740

645Apartments, respectively). Each building contained ten

651apartments used to house migrant farmworkers and members of their

661families, including their children.

6652. Among Petitioner's tenants was Speedy Martin.

672Petitioner paid Martin to help him maintain the buildings and

682grounds.

6833. Michael Menor is a Sanitation and Safety Specialist with

693the Department. He is assigned to the Department's Belle Glade

703office. In his capacity as a Sanitation and Safety Specialist,

713he inspects migrant farmworker housing to ascertain whether there

722is compliance with applicable statutory and rule requirements.

7304. Menor conducted inspections of the 732 and 740

739Apartments on January 14, 1997. The inspections revealed the

748existence of violations at both locations.

7545. Following his inspections, Menor prepared inspection

761reports which accurately described the violations that existed at

770the two locations at the time of the inspections and which gave

782notice that these violations needed to be corrected by 8:00 a.m.

793on January 28, 1997. Before leaving, he handed these inspection

803reports to one of Petitioner's tenants, Marlo Camble.

811Approximately a week later, Camble provided the reports to Speedy

821Martin, who, in turn, notified Petitioner of the contents of the

832reports.

8336. The inspection report describing the condition of the

842732 Apartments and grounds at the time of the January 14, 1997,

854inspection contained the following "comments and instructions":

862Repair cracks in building, south side.

868Replace 11 bathroom screens missing from

874building.

875Broken window [in] Apt. # 5 and two broken

884windows [in] Apt. 4.

888Repair or replace covers for water meters.

895Clean out garbage, litter and debris from

902east side of b[ui]ld[ing].

906Replace missing screens [in] Apt[s]. #1 [and]

9132.

914Provide or repair heat [in] Apt. #2.

921Exposed wires [hanging from two] public

927lighting . . . fixtures [on] west side of

936b[ui]lding.

937Exposed wires in meter room.

942Empty out storage area and repair door under

950stairs.

951Repair wall on side of storage area.

958Repair public lighting on 2nd floor.

964Repair or replace stove [in] Apt. #9.

971Repair or replace stove [in] Apt. #2.

978Note: Smoke detectors missing [from] Apt.

984#8.

985Fire extinguisher missing [from] Apt. #2.

991All fire extinguishers require reinspection

996and retag.

9987. The inspection report describing the condition of the

1007740 Apartments and grounds at the time of the January 14, 1997,

1019inspection contained the following "comments and instructions":

1027Replace missing screens in Apt[s]. #4 and #5.

1035Repair leak on overhang, [in] front of

1042Apt[s]. #4 and #5.

1046Clean out garbage, litter and debris from

1053east side of building.

1057Repair heater [in] Apt. #4.

1062Repair broken windows [in] Apt. #4. (2

1069windows broken).

1071Remove or repair screen door [on] Apt. #3.

1079Repair public lighting.

1082Repair screen [in] Apt. #1.

1087Exposed electrical wires [in] front of Apt.

1094#1.

1095Repair door frame and screen in meter room.

1103Clean room.

1105Provide cover for electrical wires in meter

1112room.

1113Repair overhang [on] corner of b[ui]ld[ing's]

1119west side.

1121Remove wooden poles [on] south side of

1128building.

1129Repair broken window [in] Apt. #3 [on] south

1137side of building.

1140Repair wall [on] south side of building.

1147Provide covers for water meters.

1152Replace 2 missing bathroom screens [on] south

1159side of building.

1162Repair public lighting [on] 2nd floor.

1168Replace missing screen [in] Apt. #7.

1174Repair 2 broken windows [in] Apt. #6.

1181Exposed wire [on] west side of Apt. #6.

1189Repair storage door under stairs and clean

1196storage room.

1198Note: All fire extinguishers require retag

1204and reinspection.

1206Replace fire extinguisher and smoke detector

1212[in] Apt. #2.

12158. Menor returned to the 732 and 740 Apartments on

1225January 31, 1997, to conduct follow-up inspections. 1 The follow-

1235up inspections revealed that, although Petitioner had remedied

1243some of the problems that Menor had discovered during his January

125414, 1997, inspections (and had noted in his reports of those

1265inspections), most of the violations found during these earlier

1274inspections had not been corrected.

12799. Following his January 31, 1997, inspections, Menor

1287prepared inspection reports which accurately described the

1294violations that existed at the two locations at the time of the

1306inspections and which gave notice that these violations needed to

1316be corrected by 8:00 a.m. on February 4, 1997. Menor, on

1327February 3, 1997, "faxed" Petitioner copies of the inspection

1336reports. He also spoke with Petitioner and advised him of the

1347contents of the reports.

135110. The inspection report describing the condition of the

1360732 Apartments and grounds at the time of the January 31, 1997,

1372inspection contained the following "comments and instructions":

1380Repair cracks in building, south side.

1386Replace 11 bathroom screens missing from

1392building.

1393Broken window [in] Apt. #5 and two broken

1401windows [in] Apt. #4.

1405Repair or replace covers for water meters.

1412Clean out garbage, litter and debris [from]

1419east side of building.

1423Replace missing screens [in] Apt[s]. #1 [and]

14302.

1431Provide or repair heat [in] Apt. #2.

1438Repair door to storage area under stairs.

1445Repair or replace stove [in] Apt. #9.

1452Repair or replace stove [in] Apt. #2.

1459Provide effective extermination of rodents.

146411. The inspection report describing the condition of the

1473740 Apartments and grounds at the time of the January 31, 1997,

1485inspection contained the following "comments and instructions":

1493Replace missing screens in Apt[s]. #4 [and]

1500#5.

1501Repair leak on overhang, [in] front of

1508Apt[s]. #4 [and] #5.

1512Clean out garbage, litter and debris from

1519east side of b[ui]ld[ing].

1523Repair 2 heaters [in] Apt. #4.

1529Repair overhang [on] corner of building['s]

1535west side.

1537Repair broken window [in] Apt. #3 [on] south

1545side of building.

1548Repair wall [on] south side of building.

1555Provide covers for water meters.

1560Replace 2 missing bathroom screens [on] south

1567side of b[ui]ld[ing].

1570Repair public lighting [on] south side of

1577b[ui]ld[ing].

1578Repair broken window (2)[in] Apt. #6.

1584Repair storage door und[er] stairs.

1589Provide effective extermination of rodents.

159412. Menor next inspected the 732 and 740 Apartments on

1604February 4, 1997. The inspections revealed that none of the

1614violations that Menor had discovered during his January 31, 1997,

1624inspections (and had noted in his reports of those inspections)

1634had been remedied, with the exception of the violation resulting

1644from the broken heater in Apartment number 2 in the 732

1655Apartments, which had been repaired since the January 31, 1997,

1665inspections. (One of the heaters in Apartment number 9 in the

1676732 Apartments, however, was now in disrepair.)

168313. Although Petitioner had taken steps to address some of

1693these continuing violations, his efforts, as Menor's February 4,

17021997, inspections revealed, were inadequate to correct the

1710targeted problems.

171214. Petitioner had ordered meter covers from the City of

1722Pahokee, but he had not yet received them nor had he placed any

1735temporary coverings over the uncovered meters.

174115. He had attempted to repair the cracks in the building

1752on the south side of the 732 Apartments; the door to the storage

1765area under the stairs in the 732 Apartments; the overhang in

1776front of Apartment numbers 4 and 5 in the 740 Apartments; the

1788overhang on the west side of the 740 Apartments; the wall on the

1801south side of the 740 Apartments; and the door to the storage

1813area under the stairs in the 740 Apartments; but the repairs he

1825had made had not been done properly.

183216. He had put rat poison under the buildings and given

1843tenants rat traps in an effort to alleviate the rodent

1853infestation problem at the 732 and 740 Apartments; however, he

1863had not gone to the expense of hiring a professional exterminator

1874to deal with the problem, even though it should have been

1885apparent to him that the services of an exterminator were needed

1896to effectively eliminate the rat population at the two locations.

190617. Following the February 4, 1997, inspections, Menor

1914prepared inspection reports which accurately described the

1921violations that existed at the 732 and 740 Apartments at the time

1933of the inspections and which gave notice that these violations

1943needed to be corrected by 8:00 a.m. on February 6, 1997. Menor

1955spoke with Petitioner and advised Petitioner of the contents of

1965the inspection reports and what Petitioner needed to do to remedy

1976the violations noted in the reports.

198218. Menor returned to inspect the 732 and 740 Apartments on

1993February 6, 1997. Upon his arrival, Menor met Petitioner, who

2003had also just arrived on the scene. In Petitioner's car were

2014screens and light bulbs that Petitioner intended to install in

2024the apartments and public areas that needed them.

2032Notwithstanding Petitioner's intentions, none of the violations

2039that Menor had discovered during his February 4, 1997,

2048inspections (and had noted in his reports of those inspections)

2058had yet been remedied. Inasmuch as the deadline that Menor had

2069given Petitioner to correct these violations had passed, Menor

2078issued Petitioner two citations, one for the continuing

2086violations at the 732 Apartments and the other for the continuing

2097violations at the 740 Apartments. Each citation directed

2105Petitioner "to pay a fine in the amount of $500.00," but provided

2117that Petitioner could "have the amount of the fine . . . reduced

2130or waived completely by demonstrating good faith in correcting

2139the violations or by presenting 'before and after' evidence to

2149the Palm Beach County Public Health Unit within 48 hours of the

2161time of the issuance of th[e] citation." Menor told Petitioner

2171that he would be back to the apartments on Monday, February 10,

21831997, to see if the violations had been corrected and if a

2195reduction or waiver of the fines was warranted.

220319. On February 10, 1997, Petitioner telephoned Menor and

2212advised him that he needed an extra day to bring the 732 and 740

2226Apartments into compliance. Menor responded by telling

2233Petitioner that he would postpone his inspections of the

2242apartments until the following day.

224720. The following day, February 11, 1997, Menor paid a

2257return visit to the 732 and 740 Apartments to conduct post-

2268citation inspections. Some of the continuing violations that

2276Menor had discovered during his February 4, 1997, inspections

2285(and had noted in his reports of those inspections) had still not

2297yet been remedied. These unremedied violations created

2304conditions that posed a serious threat to the health and safety

2315of the tenants.

231821. Following his February 11, 1997, inspections, Menor

2326prepared inspection reports which accurately described the

2333violations that existed at the two locations at the time of the

2345inspections and which gave notice that these violations needed to

2355be corrected by 8:00 a.m. on February 17, 1997. Menor provided

2366Petitioner, who was present during the inspections, copies of the

2376inspection reports.

237822. The inspection report describing the condition of the

2387732 Apartments and grounds at the time of the February 11, 1997,

2399inspection contained the following "comments and instructions":

2407Replace covers for water meters. . . .

2415Repair door to storage area.

2420Provide effective extermination of rodents.

2425Repair cracks in building, south side.

2431Screens missing from bathroom window[s].

243623. The inspection report describing the condition of the

2445740 Apartments and grounds at the time of the February 11, 1997,

2457inspection contained the following "comments and instructions":

2465Repair overhang [on] corner of building['s]

2471west side./Repair storage door.

2475Provide covers for water meters.

2480Repair 2 broken windows [in] Apt. #6.

2487Provide effective extermination of rodents.

249224. Menor next inspected the 732 and 740 Apartments on

2502February 17, 1997. The inspections revealed that at neither

2511location had Petitioner yet "provide[d] covers for water meters"

2520or "provide[d] effective extermination of rodents," although he

2528had corrected the other violations Menor had discovered during

2537his February 11, 1997, inspections (and had noted in his reports

2548of those inspections).

255125. Following his February 17, 1997, inspections, Menor

2559prepared inspection reports which accurately described the

2566violations that existed at the two locations at the time of the

2578inspections. Copies of these inspection reports were "faxed" to

2587Petitioner on February 18, 1997.

259226. On February 24, 1997, Menor received a complaint from a

2603tenant living in Apartment number 4 in the 740 Apartments that

2614there were "rats in [her] refrigerator." Later that day, Menor

2624went to the 740 Apartments to investigate the complaint. His

2634investigation revealed evidence that rats had entered the

2642complainant's refrigerator through a hole. Menor spoke with

2650Petitioner following his investigation and emphasized the

2657importance of Petitioner providing his tenants with effective

"2665pest control."

266727. Two days later, on February 26, 1997, Petitioner

2676telephoned Menor and told Menor that he (Petitioner) had made

2686arrangements for a "pest control" company, Glades Pest Control,

2695to provide extermination services at the 732 and 740 Apartments,

2705but that it would not be until March 4, 1997, that such services

2718would be rendered.

272128. On April 18, 1997, Menor returned to the 732 and 740

2733Apartments to ascertain whether the continuing violations that he

2742had discovered during his February 17, 1997, inspections (and had

2752noted in his reports of those inspections) had been remedied.

2762The inspections revealed that these violations had been

2770corrected.

2771CONCLUSIONS OF LAW

277429. The Department has been statutorily delegated the

2782authority to "adopt rules necessary to protect the health and

2792safety of migrant farm workers and other migrant labor camp or

2803residential migrant housing occupants. These rules must include

2811provisions relating to plan review of the construction of new,

2821expanded, or remodeled camps, personal hygiene facilities,

2828lighting, sewage disposal, safety, minimum living space per

2836occupant, bedding, food storage and preparation, insect and

2844rodent control, garbage, heating equipment, water supply,

2851maintenance and operation of the camp or housing, and such other

2862matters as the [D]epartment finds to be appropriate or necessary

2872to protect the life and health of the occupants." Section

2882381.0086, Florida Statutes.

288530. The Department has adopted such rules. They are found

2895in Chapter 64E-14 (formerly 10D-25), Florida Administrative Code.

290331. Rule 64E-14.007 (formerly 10D-25.058), Florida

2909Administrative Code, imposes requirements relating to

"2915[b]uildings and structures of migrant labor camps and

2923residential migrant housing." 2 It provides, in pertinent part,

2932as follows:

2934(1) Buildings and structures of migrant labor

2941camps and residential migrant housing shall

2947be weather-tight and shall provide protection

2953from the elements. Steps, porches, hallways

2959and other means of egress shall be sturdy and

2968safe. . . .

2972(4) The floors, roofs, and exterior walls,

2979and ceilings of all buildings and structures

2986shall be sound and in good repair. . . .

299632. Rule 64E-14.009 (formerly 10D-25.060), Florida

3002Administrative Code, imposes requirements relating to "[g]arbage

3009and [r]efuse [d]isposal." It provides as follows:

3016(1) Garbage shall be retained in cleanable,

3023watertight receptacles of impervious material

3028which are provided with tight fitting covers

3035suitable to protect the contents from flies,

3042insects, rodents and other animals.

3047Receptacles shall be provided in sufficient

3053quantity to store garbage from all buildings

3060and housing units.

3063(2) Garbage containers shall be kept clean

3070and shall be emptied on a regular basis, but

3079not less than twice weekly.

3084(3) Provisions shall be made for disposing of

3092the garbage, kitchen wastes and other refuse

3099in accordance with Chapter 62-700, F.A.C., or

3106applicable local code.

310933. Rule 64E-14.010 (formerly 10D-25.061), Florida

3115Administrative Code, imposes requirements relating to "[i]nsect

3122and [r]odent [c]ontrol." It provides that "[e]ffective measures

3130shall be taken to prevent infestation by and harborage of animal

3141or insect vectors or pests."

314634. Rule 64E-14.011 (formerly 10D-25.062), Florida

3152Administrative Code, imposes requirements relating to

"3158[h]eating." It provides as follows:

3163(1) All private living quarters, and

3169bathrooms of migrant labor camps and

3175residential migrant housing shall be equipped

3181with heat producing devices to maintain a

3188room temperature of 68 degrees Fahrenheit.

3194(2) Heating appliances, other than

3199electrical, shall be provided with a flue

3206pipe or vent connected to the appliance and

3214discharging to the outside air. Cooking

3220facilities shall not be considered heating

3226equipment.

3227(3) Automatically operated heat producing

3232equipment shall be provided with controls to

3239cut off the fuel supply upon the failure or

3248interruption of flame or ignition or whenever

3255a predetermined safe temperature or pressure

3261is exceeded. All steam and hot water systems

3269shall be provided with safety devices

3275designed to prevent hazardous pressures and

3281excessive temperatures.

328335. Rule 64E-14.012 (formerly 10D-25.063), Florida

3289Administrative Code, imposes requirements relating to

"3295[l]ighting." It provides as follows:

3300Each private living quarter in a migrant

3307labor camp or residential migrant housing

3313shall be provided with at least one ceiling

3321or wall type light fixture capable of

3328providing 30 foot candles of light at a point

333730 inches from the floor and at least one

3346separate double electric wall outlet.

3351Interior areas in which people congregate,

3357laundry rooms, shower rooms and toilet rooms

3364shall be provided with a minimum of one

3372ceiling or wall type fixture capable of

3379providing at least 20 foot candles of light

3387at a point 30 inches from the floor.

3395Electric wiring shall be installed in

3401accordance with the provisions of city or

3408county electrical codes. Light bulbs shall

3414be furnished in all facilities.

341936. Rule 64E-14.017 (formerly 10D-25.068), Florida

3425Administrative Code, imposes requirements relating to "[f]ood

3432[s]ervice [f]acilities." It provides, in pertinent part, that

"3440[i]n each individual family unit, there shall be provided a

3450range . . . ."

345537. Rule 64E-14.019 (formerly 10D-25.070), Florida

3461Administrative Code, imposes requirements relating to "[f]ire

3468[p]rotection." It provides, in pertinent part, that "[o]perating

3476smoke detection devices and fire extinguishers shall be installed

3485in all facilities."

348838. Rule 64E-14.021 (formerly 10D-25.072), Florida

3494Administrative Code, addresses the subject of "[r]esponsibility

3501of [o]perator." It provides, in pertinent part, that "[t]he

3510operator and owner shall be responsible for complying with all

3520statutory requirements and rules issued thereunder relating to

3528migrant labor camps and residential migrant housing," that "[t]he

3537entire premises of a migrant labor camp and residential migrant

3547housing shall be free from rubbish, waste paper, garbage and

3557other litter," and that "[t]he owner, operator or his agent shall

3568inspect daily or provide a competent individual to inspect daily

3578the grounds and common-use areas including toilets, showers,

3586laundries, mess halls, dormitories, kitchens or any facilities

3594relating to the operation of the facility and ensure that each is

3606maintained in a clean, satisfactory operating condition and kept

3615in good repair."

361839. Department personnel may issue an owner/operator of

3626residential migrant housing (as was Petitioner at all times

3635material to the instant case) a citation containing an order to

3646pay a fine for violating any provision of the rules adopted by

3658the Department pursuant to Section 381.0086, Florida Statutes.

3666Sections 381.0086(4) and 381.0087(1), Florida Statutes.

367240. "The fines imposed by a citation issued by the

3682[D]epartment may not exceed $500 for each violation." Sections

3691381.0086(4) and 381.0087(3), Florida Statutes; Rule 64E-14.021(5)

3698(formerly 10D-25.072(5)), Florida Administrative Code. "Each day

3705the violation exists constitutes a separate violation for which a

3715citation may be issued." Sections 381.0086(4) and 381.0087(3),

3723Florida Statutes; Rule 64E-14.020(1) (formerly 10D-25.071(1)),

3729Florida Administrative Code.

373241. "A citation issued [by the Department] constitutes a

3741notice of proposed agency action." Sections 381.0086(4) and

3749381.0087(1), Florida Statutes.

375242. The recipient of a citation has "the right to an

3763administrative hearing to contest the citation." Sections

3770381.0086(4) and 381.0087(4), Florida Statutes;. Rule 64E-

377814.020(5) (formerly 10D-25.071(5)), Florida Administrative Code.

378443. At the administrative hearing, the Department bears the

3793burden of establishing the recipient's guilt of the violation(s)

3802alleged in the citation. Proof greater than a mere preponderance

3812of the evidence must be presented. Clear and convincing evidence

3822is required. See Department of Banking and Finance, Division of

3832Securities and Investor Protection v. Osborne Stern and Company ,

3841670 So. 2d 932, 935 (Fla. 1996)("[A]n administrative fine

3851deprives the person fined of substantial rights in property.

3860Administrative fines . . . are generally punitive in

3869nature. . . . Because the imposition of administrative

3878fines . . . are penal in nature and implicate significant

3889property rights, the extension of the clear and convincing

3898evidence standard to justify the imposition of such a fine is

3909warranted."); Section 120.57(1)(h), Florida Statutes ("Findings

3917of fact shall be based on a preponderance of the evidence, except

3929in penal or licensure disciplinary proceedings or except as

3938otherwise provided by statute."). "'[C]lear and convincing

3946evidence requires that the evidence must be found to be credible;

3957the facts to which the witnesses testify must be distinctly

3967remembered; the testimony must be precise and explicit and the

3977witnesses must be lacking in confusion as to the facts in issue.

3989The evidence must be of such weight that it produces in the mind

4002of the trier of fact a firm belief or conviction, without

4013hesitancy, as to the truth of the allegations sought to be

4024established.'" In re Davey , 645 So. 2d 398, 404 (Fla. 1994),

4035quoting, with approval, from Slomowitz v. Walker , 429 So. 2d 797,

4046800 (Fla. 4th DCA 1983).

405144. Even if there is clear and convincing evidence of the

4062recipient's guilt presented at the administrative hearing, the

4070Department may nonetheless waive or reduce the fine imposed by

4080the citation. "In determining whether to reduce or waive the

4090fine, the [D]epartment must give due consideration to such

4099factors as the gravity of the violation, the good faith of the

4111person who has allegedly committed the violation, and the

4120person's history of previous violations, including violations for

4128which enforcement actions were taken." Sections 381.0086(4) and

4136381.0087(5), Florida Statutes; Rule 64E-14.021(5) (formerly 10D-

414325.072(5)), Florida Administrative Code. Rule 64E-14.021(5),

4149Florida Administrative Code, further provides that "[t]he

4156[D]epartment may reduce or waive the fine imposed by the citation

4167where the person responsible for correction present[ed] proof to

4176the [D]epartment's county public health unit director,

4183administrator or other authorized staff that the violation [had

4192been] corrected within 48 hours from the time of the citation."

420345. In the instant case, Petitioner, on February 6, 1997,

4213was issued two citations by the Department for violations that

4223allegedly existed on that date at the 732 and 740 Apartments, two

4235residential migrant housing facilities that he owned and operated

4244at the time. Each citation proposed to impose on Petitioner a

4255fine of $500.00, which was considerably less than the maximum

4265amount allowed for the number of alleged violations cited.

4274Petitioner requested and received an administrative hearing to

4282contest the citations.

428546. At the administrative hearing, clear and convincing

4293evidence was presented establishing that Petitioner committed the

4301violations alleged in the two citations.

430747. Although these violations were ultimately corrected,

4314given the number of violations, their serious nature when viewed

4324collectively, and the length of time it took Respondent to

4334correct them, the $500.00 fines proposed by the Department are

4344appropriate and should be neither waived nor reduced. 3

4353RECOMMENDATION

4354Based on the foregoing Findings of Fact and Conclusions of

4364Law, it is

4367RECOMMENDED that the Department issue a final order finding

4376Respondent guilty of the violations alleged in the February 6,

43861997, citations and fining him a total of $1,000.00 ($500.00 per

4398citation) for these violations.

4402DONE AND ENTERED this 13th day of August, 1997, in

4412Tallahassee, Leon County, Florida.

4416___________________________________

4417STUART M. LERNER

4420Administrative Law Judge

4423Division of Administrative Hearings

4427The DeSoto Building

44301230 Apalachee Parkway

4433Tallahassee, Florida 32399-3060

4436(904) 488-9675 SUNCOM 278-9675

4440Fax Filing (904) 921-6847

4444Filed with the Clerk of the

4450Division of Administrative Hearings

4454this 13th day of August, 1997.

4460ENDNOTES

44611 On January 27, 1997, Petitioner telephoned Menor and asked for

4472an extension of time, until January 31, 1997, to correct the

4483violations Menor had referenced in the reports describing the

4492results of his January 14, 1997, inspections. Menor granted

4501Petitioner's request.

45032 "Residential migrant housing," as used in Rule Chapter 64E-14,

4513Florida Administrative Code, is "[a] building, structure, mobile

4521home, barracks, or dormitory, or combination thereof on adjacent

4530property which is under the same ownership, management or

4539control, and the land appertaining thereto, that is rented or

4549reserved for occupancy by five or more migrant farmworkers. "

4558Rule 64E-14.002(13), Florida Administrative Code.

45633 The Department has not given notice of its intent to, and

4575therefore may not, impose fines greater than $500.00 per citation

4585for these violations. See Williams v. Turlington, 498 So. 2d 468

4596(Fla. 3d DCA 1986)("Since Williams was not given notice by either

4608the complaint or any later proceedings that he was at risk of

4620having his license permanently revoked, the Commission's

4627imposition of the non-prayed for relief of permanent revocation,

4636even if justified by the evidence, was error.").

4645COPIES FURNISHED:

4647Don Lindsey

46495600 Poinsettia Avenue, Number 1109

4654West Palm Beach, Florida 33402

4659Victoria A. Coleman, Esquire

4663Department of Health

4666Post Office Box 29

4670West Palm Beach, Florida 33402

4675Angela T. Hall, Agency Clerk

4680Department of Health

4683Building 6

46851317 Winewood Boulevard

4688Tallahassee, Florida 32399-0700

4691NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

4697All parties have the right to submit written exceptions within 15

4708days from the date of this Recommended Order. Any exceptions to

4719this Recommended Order should be filed with the agency that will

4730issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
Date: 11/21/1997
Proceedings: Final Order filed.
PDF:
Date: 11/20/1997
Proceedings: Agency Final Order
PDF:
Date: 11/20/1997
Proceedings: Recommended Order
PDF:
Date: 08/13/1997
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 07/18/97.
Date: 08/06/1997
Proceedings: Letter to V. Coleman & CC: D. Lindsey from Judge Lerner (& enclosed info. filed. at DOAH on 8/4/97) sent out.
Date: 08/04/1997
Proceedings: Letter to Robert Borton from Don Lindsay (RE: response to request for suggestions for a plan to control the rodent problem) (filed via facsimile).
Date: 07/31/1997
Proceedings: (Respondent) Proposed Recommended Order (for judge signature) (filed via facsimile).
Date: 07/31/1997
Proceedings: (Petitioner) Proposed Recommended Order (filed via facsimile).
Date: 07/18/1997
Proceedings: Video Hearing Held; see case file for applicable time frames.
Date: 07/17/1997
Proceedings: (Petitioner) List of Exhibits (filed via facsimile).
Date: 07/17/1997
Proceedings: (Respondent) Exhibits (filed via facsimile).
Date: 06/14/1997
Proceedings: (Respondent) List of Exhibits; Exhibits filed.
Date: 04/21/1997
Proceedings: Notice of Hearing by Video Teleconference sent out. (Video Final Hearing set for 7/18/97; West Palm Beach & Tallahassee; 9:15am)
Date: 04/10/1997
Proceedings: Joint Response to Initial Order (filed via facsimile).
Date: 03/27/1997
Proceedings: Initial Order issued.
Date: 03/19/1997
Proceedings: Notice; Citation (2) & Request for Administrative Hearing Form filed.

Case Information

Judge:
STUART M. LERNER
Date Filed:
03/19/1997
Date Assignment:
03/27/1997
Last Docket Entry:
11/21/1997
Location:
West Palm Beach, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

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