01-002010 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Hidden Cove Apartments Status: Closed Recommended Order on Tuesday, September 11, 2001.

Summary: Respondent committed various health and safety violations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner , )

)

vs. ) Case No. 01-2010

)

HIDDEN COVE APARTMENTS, )

)

Respondent. )

___________________________ )

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in

this case on July 27, 2001, in Orlando, Florida, before

Jeff B. Clark, a duly-designated Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner : Charles F. Tunnicliff, Esquire

Department of Business and

P rofessional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent : No appearance

STATEMENT OF THE ISSUE

The issue presented for decision in this case is whether

Respondent violated Section 509.032, Florida Statutes, as set

forth in the Administrative Complaint dated August 15, 2000.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 15, 2000,

Petitioner notified Respondent of its intent to pursue

sanctions against Respondent's public lodging establishment

license based upon violations specified in the complaint.

On May 21, 2001, Petitioner forwarded the matter to the

Division of Administrative Hearings for assignment of an

Administrative Law Judge and the conduct of a formal

administrative hearing in this matter, pursuant to

Subsection 120.57(1), Florida Statutes.

On June 8, 2001, the undersigned set the matter for

hearing on July 27, 2001, in Orlando, Florida. On or about

July 18, 2001, Respondent telephoned the undersigned's office

requesting that the hearing be reset in Brevard County; the

request was not granted. The final hearing was held on

July 27, 2001, in Orlando.

At the final hearing, Petitioner presented the testimony

of Susan Cecilione, an Inspector for Petitioner's Division of

Hotels and Restaurants.

Petitioner’s Exhibits 1-3 were admitted into evidence.

Official recognition was taken of the National Fire Protection

Association Rule 1-6.2 (1998 Edition, Standard for Portable

Fire Extinguishers); Rule 61C-1.004, Florida Administrative

Code; Rule 61C-3.001, Florida Administrative Code; and Chapter

5-203.14, U.S. Public Health Service Food Code.

A Transcript of the final hearing was filed on August 17,

2001. Petitioner filed a Proposed Recommended Order on

August 30, 2001. No proposed recommended order was submitted

on Respondent's behalf.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the

final hearing, and the entire record in this proceeding, the

following findings of fact are made.

1. At all times relevant to this proceeding, Petitioner

is the state agency charged with licensing, regulating, and

inspecting public lodging establishments to protect public

safety.

2. To accomplish this purpose, Petitioner employs

persons trained to inspect public lodging establishments to

ensure compliance with health and safety regulations. Such

inspectors visit and inspect these premises making routine

inspections or, in response to complaints, to gather facts and

make reports documenting their findings.

3. At all times relevant to this proceeding, Petitioner

employed Susan Cecilione ("Cecilione") as an Inspector

assigned to its Division of Hotels and Restaurants.

4. At all times relevant to this proceeding, Respondent,

Hidden Cove Apartments, was a licensed public lodging

establishment within the meaning of Subsection 509.013(4)(a),

Florida Statutes, operating under license control

number 15-04455H 000, and located at 1951 Southeast Convair

Street, Palm Bay, Florida, 32909.

5. During a routine inspection on or about July 14,

2000, Cecilione visited Hidden Cove Apartments. Cecilione's

inspection revealed various violations. Specifically,

Cecilione observed:

(a ) The 2A10BC fire extinguisher at

building 1961 was discharged;

(b ) In apartment 101, building 1961, the

electricity flickered on and off in the

dining room area;

(c ) Fire ant hills were observed along

the walkways around buildings 1951 and

1961;

(d ) The shower in apartment 103,

building 1951, leaked behind the wall into

the closet;

(e ) The cement driveway was caving in

and broken apart;

(f ) There were no back flow prevention

devices on hose bibbs at buildings 1951 and

1961;

(g ) The laundry room had a heavy

accumulation of lint and dirt on floor

beside, behind, and beneath the dryer;

(h) ( i) The front windows in many

apartments had been either bolted closed or

sealed so they could not be opened without

the window falling out;

(ii ) There were broken screens on

the sliding glass doors at apartments 103

and 104, building 1951;

(iii ) In apartment 102, building

1951 and apartment 101, building 1961, the

front door sweeps and seals (gaskets)

around the doors were loose fitting,

leaving large gaps.

6. Respondent was informed that all viola tions must be

corrected by July 27, 2000.

7. On or about July 28, 2000, Cecilione made a

callback/reinspection visit for the purpose of determining

whether Respondent had corrected the violations noted on the

previous visit. One of the violations previously noted had

been corrected. The laundry room had been cleaned.

8. Each of the uncorrected violations listed in

paragraph 5 hereinabove constitutes a separate and distinct

potential hazard to the health and/or safety of individuals on

the premises.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

cause, pursuant to Subsection 120.57(1), Florida Statutes.

10. Pursuant to Section 509.261, Florida Statutes,

Petitioner, through its Division of Hotels and Restaurants, is

empowered to regulate and discipline public lodging

establishments.

11. Petitioner seeks to impose administrative fines upon

Respondent and must, therefore, provide clear and convincing

evidence of the allegations made against Respondent.

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d

932 (Fla. 1996).

12. Subsection 509.032(6), Florida Statutes, authorizes

Petitioner to promulgate rules pertaining to health and safety

conditions at Respondent's public lodging establishment.

Pursuant to that grant of authority, Petitioner promulgated

rules listed hereinafter.

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

provides that 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.

14. Rule 61C-1.001, Florida Administrative Code,

provides that "[e ]xcept when otherwise defined in this 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, herein adopted by

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

[Florida Administrative Code]."

15. Rule 61C-1.004(1), Florida Administrative Code,

provides that "[e ]xcept as specifically provided in these

rules, standards for water, plumbing, and waste shall be

governed by Chapter 5, Food Code, herein adopted by

reference."

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

Administrative Code, "[a ]ll 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 Life Safety Code

("NFPA") Chapter 101, as adopted by the Division of State Fire

Marshall in Chapter 4A-3 [Florida Administrative Code]."

17. Pursuant to NFPA 10, 1-6.2, portable fire

extinguishers shall be maintained in a fully charged and

operable condition and kept in their designated places at all

times when they are not being used. Petitioner failed to

maintain the 2A10BC fire extinguisher at building 1961 in a

fully charged and operable condition, which is a violation of

Rule 61C-1.004(5), Florida Administrative Code.

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

Administrative Code, "[t ]o prevent fire or injury, defective

electrical wiring shall be replaced and wiring shall be kept

in good repair." In apartment 101, building 1961, the

electricity flickered on and off in the dining room area,

which is a violation of Rule 61C-1.004(11), Florida

Administrative Code.

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

Administrative Code, "[a ]ll building structural components,

attachments and fixtures shall be kept in good repair, clean

and free of obstructions." The cement driveway was caving in

and broken apart, which is a violation of Rule 61C-1.004(6),

Florida Administrative Code.

20. Rule 61C-1.004(2)(a), Florida Administrative Code,

provides, in pertinent part, that "[b ]athroom facilities shall

be kept clean, in good repair and free from objectionable

odors." The shower in apartment 103, building 1951, leaked

behind the wall into the closet, which is a violation of Rule

61C-1.004(2)(a), Florida Administrative Code.

21. Pursuant to Rule 61C-1.004(3), Florida

Administrative Code:

Effective control measures shall be taken

to protect against the entrance into the

establishment, and the breeding or presence

on the premises of rodents, flies, roaches

and other vermin. All buildings shall be

effectively rodent-proofed, free of rodents

and maintained in a rodent-proof and

rodent-free condition. All windows used

for ventilation must be screened, except

when effective means of vermin control are

used.

In violation of Rule 61C-1.004(3), Florida Administrative

Code, fire ant hills were observed along the walkways around

buildings 1951 and 1961; the front windows in many apartments

had been either bolted closed or sealed so they could not be

opened without the window falling out; there were broken

screens on the glass sliding doors at apartments 103 and 104,

building 1951; and in apartment 102, building 1951, and

apartment 101, building 1961, the front door sweeps and seals

(gaskets) around the door were loose fitting, leaving large

gaps.

22. Pursuant to Chapter 5-203.14, U.S. Public Health

Service Food Code, a plumbing system shall be installed to

preclude backflow of a solid, liquid or gas contaminant into

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

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

a hose bibb if a hose is not attached, and backflow prevention

is required by law by:

(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.

In violation of Chapter 5-203.14, U.S. Public Health Service

Food Code, there were no back flow prevention devices on hose

bibbs at buildings 1951 and 1961.

23. Petitioner has demonstrated by clear and convincing

evidence that each of the violations enumerated in paragraphs

17-22 are violations of the promulgated Rules and create a

danger to public health and safety.

24. Pursuant to Subsection 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.

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 violating the

above-specified provisions of the Florida Statutes and Florida

Administrative Code; that Respondent be required to pay a fine

in the amount of $2,400; and that Respondent's license be

suspended until the fine is paid.

DONE AND ENTERED this 11th day of September, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

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 16th day of September, 2001.

COPIES FURNISHED:

Susan R. McKinley, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-2202

David Moallem

Hidden Cove apartments

2115 Palm Bay Road, Northeast No. 3

Palm Bay, Florida 32909

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.