00-004317 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Blackwood Rentals Status: Closed Recommended Order on Wednesday, January 24, 2001.

Summary: Petitioner Agency failed to prove by clear and convincing evidence that Respondent was operating on an expired public lodging establishment license because the evidence was ambiguous.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 00-4317

)

BLACKWOOD RENTALS, )

)

Respondent. )

)

RECOMMENDED ORDER

The parties having been provided proper notice,

Administrative Law Judge John G. Van Laningham of the Division

of Administrative Hearings convened a formal hearing of this

matter on December 7, 2000, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue in this case is whether discipline should be

imposed against Respondent for operating on an expired public

lodging establishment license, an offense which is deemed by

rule to constitute operation without a license.

PRELIMINARY STATEMENT

On April 21, 2000, Petitioner Department of Business and

Professional Regulation, Division of Hotels and Restaurants (the

"Division") issued an Administrative Complaint against

Respondent Blackwood Rentals ("Blackwood") for continuing to

operate as a public lodging establishment after failing to renew

its license therefor, which is deemed to constitute unlicensed

operation. On October 18, 2000, the Administrative Complaint

was referred to the Division of Administrative Hearings with a

request that an administrative law judge be assigned to conduct

a final hearing of the matter. Both sides were properly

notified that the final hearing would occur at 9:30 a.m. on

December 7, 2000, at the Office of the Attorney General in Fort

Lauderdale, Florida.

At the designated time and place, the administrative law

judge and counsel for the Division appeared for final hearing.

Blackwood's representative, however, did not appear. After

waiting approximately 15 minutes and upon review of the file,

from which it was determined that Blackwood had been given

adequate notice of the final hearing, the administrative law

judge commenced the proceeding.

The Division offered three exhibits, and each was received

in evidence. Petitioner’s Exhibit 1 is a certified copy of an

official record of the Division dated November 30, 2000, which

contains information on the status of Blackwood's license.

Petitioner’s Exhibit 2 is a copy of a Lodging Inspection Report

dated June 5, 2000, that contains the observations of a Division

employee who performed a routine inspection of Blackwood on that

date. Petitioner's Exhibit 3 is a copy of a Lodging Inspection

Report dated July 15, 1999. At the Division's request, the

undersigned took official recognition of Section 509.241,

Florida Statutes, and Rule 61C-1.002, Florida Administrative

Code. In addition to documentary evidence, the Division

presented the testimony of its employees Cynthia Pieri and

Kenneth Charles Buck.

The transcript of the final hearing was filed on

December 28, 2000. The Division submitted a proposed

recommended order that has been carefully considered. Blackwood

did not file a post-hearing submission of any kind.

FINDINGS OF FACT

The evidence presented at final hearing established the

facts that follow.

1. Blackwood is an apartment building with five units

located at 4115 Riverside Drive, Coral Springs, Florida 33065-

5929.

2. The Division issued Blackwood a license,

numbered 16-16900-H, to operate as a public lodging

establishment. According to information in the Division's

official database, as reproduced in Petitioner's Exhibit 1, 1/

the "current license expiration date [for Blackwood's license]

is December 1, 2000."

3. On June 5, 2000, and again on October 6, 2000, Division

employee Cynthia Pieri conducted routine inspections of

Blackwood. Each time, she found the apartments to be open and

operating. Additionally, on both occasions Ms. Pieri took note

that Blackwood's 1999-2000 license was not on display or

available at the premises.

4. On a Lodging Inspection Report that she prepared on

June 5, 2000, 2/ Ms. Pieri checked box number 38 indicating a

violation in connection with the following item: "Current

license, displayed, available upon request." In the comments

section of the form she wrote: "#38 1999-2000 DBPR license is

not posted." Ms. Pieri left blank the spaces provided for

informing the establishment of the date when its license would

expire in a line that read: "REMINDER: Your license expires

__/__/__." Petitioner's Exhibit 2. 3/

5. Kenneth Charles Buck, a Division employee, explained

that ordinarily licensees such as Blackwood are sent a renewal

notice. Regardless whether a licensee receives a notice,

however, it is responsible for paying the required fee, which

may be remitted either to the local office or to the Division's

headquarters in Tallahasseeanscript of Final Hearing ("T-")

13. Sometimes, a licensee will pay the field inspector; field

inspectors are authorized to accept license fees and issue

receipts. T-14.

6. Mr. Buck testified that the documents he could access

on his computer indicated that Blackwood had failed to pay a

license fee for the 1999-2000 period. T-13. Mr. Buck stated

further that he had spoken with Blackwood's owner "on occasion"

and had informed her that the license fee was due. T-14.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

8. The Department of Business and Professional Regulation,

Division of Hotels and Restaurants, is the agency charged with

licensing and inspecting public lodging establishments in the

State of Florida, pursuant to Chapter 509, Florida Statutes.

9. Blackwood is a "public lodging establishment" under the

definition provided in Section 509.013(4)(a), Florida Statutes.

More specifically, Blackwood is classified as a "nontransient

apartment," as that term is defined in Section 509.242(1)(d),

Florida Statutes. Accordingly, to operate lawfully in this

state, Blackwood must be duly licensed by, and submit to the

regulatory authority of, the Division. See Section 509.241,

Florida Statutes.

10. The Division seeks to impose an administrative fine on

Blackwood and therefore bears the burden of proving the

allegations of its Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Company , 670 So. 2d 932, 935 (Fla. 1996); see also

Section 120.57(1)(j), Florida Statutes ("Findings of fact shall

be based on a preponderance of the evidence, except in penal or

licensure disciplinary proceedings or except as otherwise

provided by statute. . . .").

11. In Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla.

4th DCA 1983), the Court of Appeal, Fourth District, canvassed

the cases to develop a "workable definition of clear and

convincing evidence" and found that of necessity such a

definition would need to contain "both qualitative and

quantitative standards." The court held that

clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Id. The Florida Supreme Court later adopted the fourth

district's description of the clear and convincing evidence

standard of proof. Inquiry Concerning a Judge No. 93-62 , 645

So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal

also has followed the Slomowitz test, adding the interpretive

comment that "[a]lthough this standard of proof may be met where

the evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler

Brothers, Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev .

denied , 599 So. 2d 1279 (1992)(citation omitted).

12. The Division has charged Blackwood with the offense of

unlicensed operation in violation of Section 509.241(1), Florida

Statutes, which provides:

LICENSES; ANNUAL RENEWALS.–Each public

lodging establishment and public food

service establishment shall obtain a license

from the division. Such license may not be

transferred from one place or individual to

another. It shall be a misdemeanor of the

second degree, punishable as provided in s.

775.082 or s. 775.083, for such an

establishment to operate without a license.

. . . Licenses shall be renewed annually,

and the division shall adopt a rule

establishing a staggered schedule for

license renewals. If any license expires

while administrative charges are pending

against the license, the proceedings against

the license shall continue to conclusion as

if the license were still in effect.

13. Section 509.261, Florida Statutes, provides in

pertinent part:

(1) Any public lodging establishment or

public food service establishment that has

operated or is operating in violation of

this chapter or the rules of the division,

operating without a license, or operating

with a suspended or revoked license may be

subject by the division to:

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

offense;

(b) Mandatory attendance, at personal

expense, at an educational program sponsored

by the Hospitality Education Program; and

(c) The suspension, revocation, or

refusal of a license issued pursuant to this

chapter.

(2) For the purposes of this section, the

division may regard as a separate offense

each day or portion of a day on which an

establishment is operated in violation of a

"critical law or rule," as that term is

defined by rule.

14. Rule 61C-1.002(6), Florida Administrative Code,

governs license renewals and states:

It is the responsibility of the licensee to

renew the license prior to the expiration

date. The division makes available to all

licensees BPR form 21-021, APPLICATION FOR

LICENSE RENEWAL, incorporated herein by

reference and effective 3-31-94, which

contains all information required by law to

renew the license. Any public lodging or

food service establishment operating on an

expired license is deemed to be operating

without a license, and subject to the

penalties provided for this offense in law

and rule. Annual renewal dates for all

establishments in the counties indicated are

as follows:

* * *

(b) DISTRICT 02 -- December 1 -- Broward,

Martin, Palm Beach[.]

(Emphasis added).

15. As a public lodging establishment operating in Broward

County, Florida, Blackwood is required annually to renew its

license before December 1 of each year.

16. The Division argues that Blackwood's license expired

when Blackwood failed timely to renew the license for the period

from December 1, 1999 through December 1, 2000. 4/ Because

Rule 61C-1.002(6) makes operating on an expired license

tantamount to unlicensed operation, the Division contends that

Blackwood was operating without a license at all times after

December 1, 1999.

17. The Division's theory is flawed because, for reasons

not explained, its own official record fixes December 1, 2000,

as the expiration date for Blackwood's license — a fact that is

inconsistent with the instant charge of non-renewal. See

Petitioner's Exhibit 1 ("The current license expiration date is

December 1, 2000.").

18. Ms. Pieri's testimony that Blackwood's 1999-2000

license was not on display at the apartments when she inspected

them on June 5 and October 6, 2000, is consistent with the

allegation that Blackwood's license had expired but falls short

of proving the point, for Blackwood simply may have failed

properly to post or make available its valid license — a

violation, to be sure, but not one at issue here. Ms. Pieri's

testimony also does not exclude the possibility that Blackwood's

license was renewed after October 6 but before November 30, 2000

(the date of Petitioner's Exhibit 1). Finally, even if

Ms. Pieri's testimony were accepted as proof that Blackwood's

license had expired as of December 1, 1999, then her testimony

would be in conflict with Petitioner's Exhibit 1.

19. Mr. Buck's testimony is consistent with Petitioner's

Exhibit 1 in that he made clear, as does the official agency

record, that Blackwood had not paid the license fee for the

1999-2000 period. Mr. Buck did not say, in so many words, that

Blackwood's license had expired on December 1, 1999. If,

however, that inference were drawn (as it reasonably might be)

from his statement that the license was "delinquent," T-14, then

Mr. Buck's testimony, too, would be in conflict with

Petitioner's Exhibit 1.

20. The clear and convincing standard of evidence may be

met where the evidence is merely in conflict. Westinghouse

Electric Corp., Inc. v. Shuler Brothers, Inc. , 590 So. 2d 986,

988 (Fla. 1st DCA 1991), rev . denied , 599 So. 2d 1279 (1992).

But here there is more, because while the official agency record

in evidence as Petitioner's Exhibit 1 reports that as of

November 30, 2000, Blackwood has not paid a license fee for the

period from December 1, 1999 through December 1, 2000, the same

document simultaneously advises that Blackwood's "current

license expiration date is December 1, 2000."

21. It is possible to understand Petitioner's Exhibit 1 in

two ways: (1) Blackwood's license was in force through

December 1, 2000; and (2) Blackwood's license was not in force

after December 1, 1999, as a result of Blackwood's failure to

pay the required renewal fee. Thus, the evidence as to whether

Blackwood's license expired on December 1, 1999, is not merely

in conflict; it is ambiguous. None of the other evidence

clarified or resolved this ambiguity. The clear and convincing

evidence standard is not satisfied by ambiguous evidence. Id.

22. In view of the ambiguity in the proof, the instant

record does not produce in the mind of this trier of fact a firm

belief or conviction, without hesitancy, that Blackwood's

license expired prior to December 1, 2000.

23. According ly, the Division failed to carry its burden

of proving by clear and convincing evidence that Blackwood was

operating on an expired license at times material to the

Administrative Complaint. Without this material fact, it cannot

be concluded that Blackwood committed the offense of unlicensed

operation, as charged.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Division enter a final order

dismissing the Administrative Complaint against Blackwood

Rentals.

DONE AND ENTERED this 24th day of January, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

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 24th day of January, 2001.

ENDNOTES

1. Petitioner's Exhibit 1 bears the original signature of

Bureau Chief Lance Rodan in his official capacity. Therefore,

it is a self-authenticating document, see Section 90.902(2),

Florida Statutes, that was admissible under the public records

exception to the hearsay rule. See Section 90.803(8), Florida

Statutes.

2. Ms. Pieri authenticated Petitioner's Exhibit 2, making it

admissible under the public records exception to the hearsay

rule. See Section 90.803(8), Florida Statutes.

3. No written report documenting Ms. Pieri's October 6, 2000,

inspection of Blackwood was presented at hearing.

4. The Administrative Complaint was issued long before the

commencement of the current annual period on December 1, 2000.

Thus, whether Blackwood could or should be deemed to be

operating without a license as a consequence of failing to renew

for the 2000-2001 period on or before December 1, 2000, is

immaterial to the offense charged, and no opinion is expressed

in this Recommended Order on the subject.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Blackwood Rentals

2611 Northwest 115 Terrace

Coral Springs, Florida 33065-3443

Susan R. McKinley, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

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 R ecommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issue the F inal O rder in this case.