02-000146 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Palm Court Apartments Status: Closed Recommended Order on Thursday, April 11, 2002.

Summary: Respondent failed to provide electricity to apartment unit, a public lodging establishment; $1,000 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0146

)

PALM COURT APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held before Daniel M. Kilbride,

Administrative Law Judge, Division of Administrative Hearings

("DOAH"), on February 28, 2002, in Melbourne, Florida.

APPEARANCES

For Petitioner: Tiffany A. Short, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Rudolph Hardick, P resident

Fourteen Carmalt, Inc.

Post Office Box 320615

Cocoa Beach, Florida 32932

STATEMENT OF THE ISSUES

Whether the Respondent, public lodging establishment,

violated the provisions of C hapter 509, Florida Statutes, as

alleged in the Amended Administrative Complaint, and, if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

On November 16, 2001, the Petitioner filed an

Administrative Complaint alleging that inspections of the

Resp ondent public lodging establishment conducted pursuant to

Section 509.032, Florida Statutes, revealed the Respondent

caused, directly or indirectly, the termination or interruption

of utility services furnished to tenants in violation of Section

83.67(1), Florida Statutes. The Administrative Complaint was

served on the Respondent by certified U.S. mail. On December 7,

2001, the Petitioner received an Election of Rights form from

the Respondent in which the allegations contained in the

Administrative Compl aint were disputed, and a petition was made

for a formal administrative hearing to resolve disputed issues

of material fact. On January 11, 2002, the Petitioner filed a

request with DOAH for formal evidentiary hearing. A hearing

pursuant to Section 120.5 7(1), Florida Statutes, was noticed and

set for February 28, 2002. On February 11, 2002, the Petitioner

filed a Motion for Order Allowing Correction for Scrivener's

Error, which Motion was granted over objection by Order issued

on February 18, 2002. The Petitioner filed an Amended

Administrative Complaint on February 19, 2002, in which the

charge of violating Section 83.67(1), Florida Statutes, was

replaced with an allegation that the Respondent violated Section

509.221(3), Florida Statutes, by failing to maintain proper

lighting, heating, cooling, and ventilation and that the

Respondent public lodging establishment was not operated with

strict regard to the health, comfort, and safety of the guests.

At the hearing, the Petitioner presented the testimony o f

Ed Weimer, Safety and Sanitation Specialist, and offered three

exhibits that were accepted without objection into evidence.

The Respondent presented no witness testimony or evidence. The

parties were granted 15 days from the filing date of the

transcri pt to submit proposed recommended orders. The

Transcript was filed with DOAH on March 11, 2002. Petitioner

filed its Proposed Recommended Order on March 26, 2002.

Respondent has not filed proposals as of the date of this

Recommended Order.

FINDINGS OF F ACT

1. The Respondent is, and has been at all times material

hereto, a public lodging establishment licensed by the State of

Florida, having been issued license number 15 - 00043 - H for

apartment units located at 14 Carmalt Street, Cocoa Beach,

Florida.

2 . The Petitioner received a consumer complaint on

October 10, 2001, that one of the tenants in the Respondent

public lodging establishment had been without electrical power

and hot water for at least three days.

3. On October 11, 2001, Ed Weimer, Safety and Sanitation

Specialist with Petitioner ("inspector") conducted an inspection

of the Respondent public lodging establishment. The inspector

observed that Units 5 and 16 were occupied but had no electrical

power. The inspector observed that when other tenants operated

light switches in Unit 5 and 16 the lights did not come on.

Extensions cords had been run through the windows of units

without power from units with power. In addition, a common area

hallway was also without electrical power.

4. On Octo ber 11, 2001, the inspector provided notice of

the observed violations by posting a copy of the Lodging

Inspection Report at the site, sending a copy of the Report by

certified U.S. mail to the Respondent, and by orally

communicating the contents of the Re port by telephone to the

Respondent's principal Rudolph Hardick, Alice Hill, the manager

of the apartment complex, and an unidentified secretary in the

Respondent's office.

5. Since the violations were observed after 12:00 p.m. on

October 11, 2001, the Re spondent was give notice that remedial

action was required to be taken by 10:00 a.m. the following day

rather than that same day.

6. On October 12, 2001, at approximately 10:10 a.m., the

inspector conducted a follow - up inspection of the licensed

premises and observed that the violations noted in the Lodging

Inspection Report dated October 11, 2001, had not been

corrected.

7. On October 12, 2001, the inspector completed a Call

Back/Re - Inspection Report and provided notice that same day of

said follow - up in spection and report by personally delivering a

copy of the Call Back/Re - Inspection Report to Respondent's

manager, Alice Hill.

8. The mechanism by which proper lighting, heating,

cooling, and/or ventilation is terminated or interrupted is not

relevant to the statutory obligation of each licensed public

lodging establishment to maintain such lighting, heating,

cooling, and ventilation with strict regard to the health,

comfort, and safety of guests.

9. Without electrical power, none of the requirements

stat ed in Section 509.221(3), Florida Statutes, can be

satisfied, to wit, maintenance of proper lighting, heating,

cooling, and/or ventilation and the operation of the licensed

premises with strict regard to health, comfort, and safety of

the guests.

10. The Respondent had adequate time, notice, and

opportunity to correct the observed violations but failed to do

so.

11. The Respondent has not offered any explanation or

mitigation for its failure to comply with its statutory

obligation under Section 509.221( 3), Florida Statutes.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

13. The Department of Business and Professional

Regulation, Division of Hotels and Restaurants, is the state

agency charged with regulating public lodging establishments,

pursuant to Chapter 509 and Section 20.165, Florida Statutes.

14. Section 509.013, Florida Statutes, reads in per tinent

part:

As used in this chapter, the term:

* * *

(3) "Guest" means any . . . tenant . . .

or occupant of a public lodging

establishment . . .

(4)(a) "Public lodging establishment"

means any unit . . . within a single complex

of buildi ngs, which is rented to guests more

than three times in a calendar year for

periods of less than 30 days or 1 calendar

month, whichever is less, . . .

15. Section 509.221(3), Florida Statutes, provides, inter

alia , that "each establishment licensed under this chapter shall

be properly lighted, heated, cooled, and ventilated and shall be

operated with strict regard to the health, comfort, and safety

of the guests."

16. Pursuant to Section 509.261(1), Florida Statutes, the

Division of Hotels and Restaurant s may impose penalties for

violations of Chapter 509, Florida Statutes, including an

administrative fine of not more than $1,000 per offense;

mandatory attendance, at personal expense, at an educational

program sponsored by the Hospitality Education Progra m; and the

suspension, revocation, or refusal of the Respondent public

lodging establishment's license.

17. Petitioner has the burden of proving, by clear and

convincing evidence, the allegations against the Respondent

contained in the Administrative Co mplaint. Section

120.57(1)(j), Florida Statutes; Department of Banking and

Finance v. Osborne Stern and Company , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

18. Petitioner has proven by clear and convincing evidence

that Respondent violated Section 509.221(3), Florida Statutes,

by failing to maintain electrical power to certain dwelling

units of the licensed premises. In so doing, it failed to

operate the licensed premises with strict regard to the health,

comfort, and s afety of guests. Cf. Yoder v. Greenwald , 246 So.

2d 148, 150 (Fla. 3rd DCA 1971); see also Schulte v. Gold , 360

So. 2d 428 (Fla. 3rd DCA 1978).

19. Section 509.221(3), Florida Statutes, contains no

exception and provides no discretion to a licensed publi c

lodging establishment to determine whether a tenant needs or

deserves proper lighting, heating, cooling, and ventilation.

The mechanism by which proper lighting, heating, cooling, and/or

ventilation is terminated or interrupted is not relevant to the

st atutory obligation to maintain it.

20. There is no authority for the Respondent to terminate,

interrupt, or allow the interruption of utility service as a

rent enforcement mechanism, or for any reason, and Section

509.221(3), Florida Statutes, specificall y prohibits such action

or inaction.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be enter finding the

Respondent guilty of violating Section 509.221(3), Florida

Statutes, and that an a dministrative fine of $1,000 be imposed.

DONE AND ENTERED this 11th day of April, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bui lding

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of April, 2002.

COPIES FURNISHED :

Rudolph Hardick

Fourteen Carmalt, Inc.

Post Office Box 320615

Cocoa Beach, Florida 32932

Tiffany A. Short, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Hardy L. Roberts, III, Ge neral Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Susan R. McKinley, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulat ion

Northwood Centre

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 Recommended Order. Any exceptions

to this R ecommended Order should be filed with the agency that

will issue the Final Order in this case.