00-004318 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Lakeside Apartments 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. 00-4318

)

LAKESIDE APARTMENTS, )

)

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 March 20, 2000, Petitioner Department of Business and

Professional Regulation, Division of Hotels and Restaurants (the

"Division") issued an Administrative Complaint against

Respondent Lakeside Apartments ("Lakeside") 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 3:00 p.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.

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

waiting approximately 20 minutes and upon review of the file,

from which it was determined that Lakeside 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 Lakeside's license.

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

dated July 20, 2000, that contains the observations of a

Division employee who performed a routine inspection of Lakeside

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

Inspection Report dated August 13, 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 Robert Shaw

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. Lakeside

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. Lakeside is an apartment building with 19 units located

at 1048 Northeast 18 Avenue, Fort Lauderdale, Florida 33304-

2408.

2. The Division issued Lakeside a license, numbered 16-

10553-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 Lakeside's license] is December 1, 2000."

3. On July 20, 2000, Division employee Robert Shaw

conducted a routine inspection of Lakeside and found the

apartment complex to be open and operating. On a Lodging

Inspection Report that he prepared on that date, 2/ Mr. Shaw

noted two minor violations, neither of which is at issue here.

On the same form, Mr. Shaw inscribed the date that Lakeside's

license would expire, as shown below, in the blank spaces

provided for that purpose in a line that read:

REMINDER: Your license expires 12 /01 /00

Petitioner's Exhibit 2. Mr. Shaw testified, however, that at

the time of this inspection, he did not know whether or not

Lakeside was licensed.

CONCLUSIONS OF LAW

4. 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.

5. 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.

6. Lakeside is a "public lodging establishment" under the

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

More specifically, Lakeside 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, Lakeside must be duly licensed by, and submit to the

regulatory authority of, the Division. See Section 509.241,

Florida Statutes.

7. The Division seeks to impose an administrative fine on

Lakeside 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. . . .").

8. 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).

9. The Division has charged Lakeside 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.

10. 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.

11. 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).

12. As a public lodging establishment operating in Broward

County, Florida, Lakeside is required annually to renew its

license before December 1 of each year.

13. The Division argues that Lakeside's license expired

when Lakeside failed timely to renew the license for the period

from December 1, 1999 through December 1, 2000. 3/ Because

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

tantamount to unlicensed operation, the Division contends that

Lakeside was operating without a license at all times after

December 1, 1999.

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

not explained, its own records fix December 1, 2000, as the

expiration date for Lakeside's license — a fact that is

inconsistent with the instant charge of non-renewal. See

Petitioner's Exhibits 1 and 2. Further, while the official

agency record in evidence as Petitioner's Exhibit 1 reports that

Lakeside has not paid a license fee for the period from

December 1, 1999 through December 1, 2000 , the same document

simultaneously advises that Lakeside's "current license

expiration date is December 1, 2000."

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

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

1, 2000; and (2) Lakeside's license was not in force after

December 1, 1999, as a result of Lakeside's failure to pay the

required renewal fee. Thus, the evidence as to whether

Lakeside'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. Westinghouse

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

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

17. In view of this 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 Lakeside's license

expired prior to December 1, 2000.

18. Accordingly, the Division failed to carry its burden

of proving by clear and convincing evidence that Lakeside was

operating on an expired license at times material to the

Administrative Complaint. Without this material fact, it cannot

be concluded that Lakeside 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 Lakeside

Apartments.

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. Mr. Shaw 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. The Administrative Complaint was issued long before the

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

Thus, whether Lakeside 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

Lakeside Apartments

1048 Northeast 18 Avenue

Fort Lauderdale, Florida 33304-2408

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.