10-000038 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Bradford Motel Status: Closed Recommended Order on Friday, April 9, 2010.

Summary: Failure to provide smoke detectors for hearing-impaired residents is a critical violation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 10-0038

)

BRADFORD MOTEL, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 17, 2010, an administrative hearing in this

case was held by video teleconference between Tallahassee and

Tampa, Florida, before William F. Quattlebaum, Administrative

Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

For Respondent: Tom Collins, pro se

Bradford Motel

2811 Highway 60 East

Valrico, Florida 33594

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations of the

Administrative Complaint are correct, and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By an undated Administrative Complaint, the Department of

Business and Professional Regulation, Division of Hotels and

Restaurants (Petitioner), alleged that the Bradford Motel

(Respondent), owned and operated by Tom Collins, was determined

after inspection to be in violation of various health and safety

regulations. Mr. Collins filed a request for a formal

administrative hearing dated September 8, 2008, with the

Petitioner. On January 4, 2010, the Petitioner forwarded the

request to the Division of Administrative Hearings, which

scheduled and conducted the formal hearing.

At the hearing, the Petitioner presented the testimony of

two witnesses and had Exhibits 1 through 4 admitted into

evidence. Mr. Collins participated in the hearing by telephone

and testified on behalf of the Respondent.

The Transcript of the hearing was filed on March 8, 2010.

The Petitioner filed a Proposed Recommended Order on March 16,

2010.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with

regulation of hotels and restaurants pursuant to Chapter 509,

Florida Statutes (2008).

2. At all times material to this case, the Respondent was

a residential hotel located at 2811 East Highway 60, Valrico,

Florida 33594, and holding license number 6268431.

3. On May 6, 2008, Mark Cannella, a trained inspector

employed by the Petitioner, performed a routine inspection of

the Respondent.

4. Mr. Cannella identified various safety regulation

violations in a written report that was provided at the time of

the inspection to Carolyn Seas, a representative of the

Respondent.

5. Safety regulation violations that constitute an

immediate threat to public safety are deemed to be "critical"

violations.

6. Mr. Cannella noted in his inspection report that, at

the time of the inspection, the Respondent had no smoke

detectors capable of providing appropriate warning to hearing-

impaired motel residents.

7. The absence of smoke detectors capable of warning

hearing-impaired residents was identified as a critical

violation because hearing-impaired guests may be unable to hear

the alarm presented by a standard smoke detection device.

8. Mr. Cannella's inspection report also noted that there

was no backflow prevention device installed on a water heater

hose bibb.

9. A backflow prevention device prevents potentially

contaminated water from being drawn into supply lines. The lack

of a backflow prevention device presents a contamination risk to

the entire water supply, should tainted water be drawn back into

the supply lines.

10. A re-inspection was conducted on June 11, 2008, by

Eric Singletary, another inspector employed by the Petitioner.

Mr. Singletary's inspection report noted that the violations

related to the smoke detection devices and the backflow

prevention device had not been corrected. A copy of

Mr. Singletary's written report was again provided to Ms. Seas.

11. A second re-inspection was conducted by Mr. Singletary

on July 9, 2008. Mr. Singletary's inspection report noted that

the violations related to the smoke detection devices and

backflow prevention device still remained uncorrected. Ms. Seas

was again provided a copy of Mr. Singletary's written report.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

13. The Petitioner is the state agency charged with the

regulation of public lodging establishments in the State of

Florida. See Chapter 509, Fla. Stat. (2008).

14. The Administrative Complaint alleged that, at the time

of the inspections identified herein, the Respondent lacked

proper smoke detection devices and a backflow prevention device.

Additional allegations set forth in the Administrative Complaint

that were related to mattress pads were dismissed by the

Petitioner at the hearing.

15. The Petitioner has the burden of proving by clear and

convincing evidence the remaining allegations set forth in the

Administrative Complaint against the Respondent. 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).

The burden has been met.

16. Section 509.216, Florida Statutes (2008), requires

that "[s]pecialized smoke detectors for the deaf and hearing

impaired shall be available upon request by guests in public

lodging establishments at a rate of at least one such smoke

detector per 50 dwelling units or portions thereof, not to

exceed five such smoke detectors per public lodging facility."

17. The evidence presented in this case establishes that

the Respondent failed to have the appropriate smoke detection

devices available for use by hearing-impaired guests.

18. The Petitioner has adopted by incorporation the

applicable provisions of the Food Code. Fla. Admin. Code

R. 61C-4.010(1). In relevant part, Food Code Rule 5-203.14

requires that the plumbing system preclude the backflow of

potential contaminants into the water supply through the

installation of proper backflow devices on hose bibbs.

19. The evidence presented in this case establishes that

the Respondent failed to have an appropriate backflow prevention

device installed on a water heater hose bibb.

20. Subsection 509.261(1), Florida Statutes (2008),

provides that each offense is punishable by a fine not to exceed

$1,000 per offense. In addition, offenses may be disciplined by

mandatory attendance at an educational program sponsored by the

Hospitality Education Program, or by suspension, revocation, or

refusal of a license.

RECOMMENDATION

Based on 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 imposing a fine of $1,000 against the

Respondent and requiring that the Respondent complete an

appropriate educational program related to the violations

identified herein.

DONE AND ENTERED this 9th day of April, 2010, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of April, 2010.

COPIES FURNISHED :

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Tom Collins

Bradford Motel

2811 Highway 60 East

Valrico, Florida 33594

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

William L. Veach, Director

Division of Hotels and Restaurants

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 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.