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.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 00-4323

)

LITTO'S APARTMENTS, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

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

Judge for the Division of Administrative Hearings, held a

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

Park, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Did the Respondent commit the offenses alleged in the

Administrative Complaint Following Emergency Closure and, if

so, what penalty should be imposed?

PRELIMINARY STATEMENT

By an Administrative Complaint Following Emergency

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

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

Department of Business and Professional Regulation, Division

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

suspend, or otherwise discipline Respondent's license as a

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

As grounds therefor, the Department alleges that

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

Administrative Code, and NFPA 10, Standard for Portable Fire

Extinguishers, in that a fire extinguisher was missing on the

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

Administrative Code, in that there were no smoke detectors in

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

Administrative Code, in that the water supply was located less

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

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

Service, in that the septic tank did not meet Health

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

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

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

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

the ground.

By letter dated October 19, 2000, the Department referred

this matter to the Division for the assignment of an

Administrative Law Judge and for the conduct of a formal

hearing. At the hearing, the Department presented the

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

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

1.004, Florida Administrative Code, National Fire Protection

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

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

Health Service, and Section 509.221, Florida Statutes, were

officially recognized. Respondent did not appear at the

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

was issued allowing Respondent an opportunity to show cause

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

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

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

concluding the hearing and setting a time for proposed

recommended orders to be filed with the Division was issued.

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

by the US Postal Service as being "undeliverable as

addressed/unable to forward."

A Transcript of this proceeding was filed with the

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

Proposed Recommended Order. The Respondent did not file a

proposed recommended order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of

fact are made:

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

charged with the responsibility of licensing and regulating

public lodging establishments.

2. At all times pertinent to this proceeding, Respondent

was a licensed public lodging establishment as that term is

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

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

Florida.

3. At all times pertinent to this proceeding, Richard

Barnhart was employed by the Department as a Sanitation and

Safety Specialist.

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

was employed by the Department as a Sanitation and Safety

Supervisor.

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

inspection of Respondent's public lodging establishment

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

were classified as violations of critical concern. A

violation classified as of critical concern is required to be

corrected immediately. The safety violations observed by

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

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

in Units 1 and 2 not having a fire extinguisher available

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

detectors in apartments 1, 3, and 8.

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

Inspection Report advising Respondent of, among other things,

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

2000. Eugene Riggs, Respondent's Apartment Manager,

acknowledged receipt of the inspection report listing the

violations and the date for correction of the violations of

critical concern.

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

Inspection of Litto's Apartments and observed the same safety

violations that were observed on March 10, 2000.

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

Inspection Report advising Respondent that the violations

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

report advised Respondent that the report should be considered

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

Cause why sanctions should not be assessed against

Respondent's license. Eugene Riggs acknowledged receipt of a

copy of the Call Back/Re-Inspection Report.

9. During a routine inspection conducted on March 21,

2000, Barnhart observed that: (a) the apartments' water

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

field, a sanitation violation of critical concern not observed

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

tank on the premises, a sanitation violation of critical

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

had been disconnected resulting in raw sewage being dumped on

the ground, a sanitation violation of critical concern not

observed on March 10, 2000.

10. Barnhart prepared a Lodging Inspection Report

listing the violations observed during his routine inspection

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

copy of this report which, among other things, advised

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

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

deadline of March 21, 2000, for correcting the violation

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

2000.

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

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

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

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

Inspection Report on March 28, 2000, advising Respondent that

the violations had not been corrected and that a Notice to

Show Cause why sanctions should not be assessed against

Respondent's license would be issued.

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

conducted a joint routine inspection of Litto's Apartments and

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

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

2000, a Lodging inspection Report was prepared advising

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

21, 2000, and March 28, 2000, had not been corrected.

13. Based on the testimony of Richard Barnhart and Ed

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

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

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

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

a fire extinguisher available within a maximum distance of 75

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

fire extinguisher had been installed on the north side of

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

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

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

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

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

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

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

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

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

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

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

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

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

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

intervening time.

14. Respondent's failure to have sufficient fire

extinguishers properly located on its premises and

Respondent's failure to correct this violation resulted in a

significant threat to the public safety and welfare in that

the residents were not properly protected from the danger of

fire.

15. Respondent's failure to provide smoke detectors in

all of the apartments resulted in a significant threat to the

public safety and welfare in that the residents were not being

properly protected from the danger of fire.

16. Respondent's failure to correct the contaminated

water supply, correct the situation concerning the raw sewage

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

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

significant threat to the public health, safety, and welfare

in that not only were the tenants being subjected to those

unsanitary conditions but the general public as well.

17. An Order of Emergency Suspension of License and

Closure was issued by Respondent and signed by Gary Tillman,

District Administrator, having been delegated this authority

by the Director of Hotels and Restaurants. The Order of

Emergency Suspension of License and Closure is dated March 7,

2000. However, this appears to be scrivener's error in that

the order alleges violation that are alleged to have occurred

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

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

Emergency Suspension of License and Closure was still in

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

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

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

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

affirmative of an issue before an administrative tribunal,

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

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

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

Department must establish facts upon which its allegations

are based by clear and convincing evidence. Department of

Banking and Finance, Division of Securities and Investor

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

1996); and Section 120.57(1)(h), Florida Statutes (2000).

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

Statutes, provide in pertinent part as follows:

(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.

. . may be subject by the division to:

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

offense;

* * *

(c) The suspension, revocation, or refusal

of a license issued pursuant to this

chapter.

(2) For 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. (Emphasis furnished.)

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

provides in pertinent part as follows:

(2) Violations of critical laws or rules

are those violations determined by the

division to pose a significant threat to

the public health, safety, or welfare. . .

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

Administrative Code, provide in pertinent part as follows:

The following general requirements and

standards shall be met by all public

lodging and public food service

establishments:

(1) Water, plumbing and waste - Except as

specifically provided in these rules,

standards for water, plumbing and waste

shall be governed by Chapter 5, Food Code,

herein adopted by reference. For purposes

of this section, the term "food

establishment" as referenced in the Food

Code shall apply to all public lodging and

public food establishments as defined in

Chapter 509, FS.

* * *

(d) Sewage shall be disposed of in a

public sewerage system or other approved

sewerage system in accordance with the

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

herein adopted by reference, whichever is

applicable. . . .

* * *

(5) All safety, protection and prevention

equipment must be installed, approved,

maintained and used in accordance with

Chapter 509, FS, and the National Fire

Protection Association Life Safety Code

Chapter 101, as adopted by the Division of

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

* * *

(9) Fire safety equipment.

(a) Fire Extinguisher Installation - Fire

Extinguishers shall be installed in

accordance with NFPA 10, Standard for

Portable Fire Extinguishers, herein adopted

by reference.

23. The Department has met its burden to show

that Respondent: (a) failed to maintain a

sufficient number of fire extinguishers around the

apartments so that each apartment would have no more

than a maximum travel distance of 75 feet to reach a

fire extinguisher in case of fire in accordance with

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

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

Chapter 101, NFPA Life Safety Code, Section 19-

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

Administrative code, in that the water supply was

located less that 75 feet from the septic tank and

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

Florida Administrative Code; and (d) violated

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

1.004(1)(d), Florida Administrative Code, and

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

Public Health Service, in that the individual sewage

system was not being maintained and operated in

accordance law.

RECOMMENDATION

Having considered the serious nature of the offenses

committed by the Respondent, that Respondent is presently

under an Order of Emergency Suspension of License and Closure

for these same offenses, and that the Department is requesting

that only an administrative fine be imposed against

Respondent, it is recommended that the Department enter a

final order finding that Respondent committed the offenses

alleged in the Administrative Complaint Following Emergency

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

requested by the Department.

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

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM R. CAVE

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 15th day of February, 2001.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Division of Hotels and Restaurant

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Litto's Apartments

1720 U.S. Highway 27

Avon Park, Florida 33825-9589

Ahmed Anjuman

1720 U.S. Highway 27

Avon Park, Florida 32825-9589

Susan R. McKinney, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Barbara D. Auger, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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.