97-001411 Don Lindsey vs. Department Of Health Status: Closed Recommended Order on Wednesday, August 13, 1997.

Summary: Owner/operator of residential migrant farmworker housing is guilty of violations alleged in citations. Waiver or reduction of fines is not warranted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DON LINDSEY , )

)

Petitioner , )

)

vs. ) Case No. 97-1411

)

DEPARTMENT OF HEALTH , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in

this case on July 18, 1997, by video teleconference, at sites in

West Palm Beach and Tallahassee, Florida, before Stuart M.

Lerner, a duly designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Don L indsey, pro se

5600 Poinsettia Avenue, Number 1109

West Palm Beach, Florida 33402

For Respondent: Victoria A. Coleman, Esquire

Department of Health

Post Office Box 29

West Palm Beach, Florida 33402

STATEMENT OF THE ISSUES

1. Whether Petitioner committed the violations alleged in

the citations he received on February 6, 1997.

2. If so, what amount, if any, should he be fined .

PRELIMINARY STATEMENT

On February 6, 1997, Petitioner was issued citations for

violations existing at two migrant farmworker housing facilities

that he owned in Pahokee, Florida. Petitioner thereafter

requested an administrative hearing on the matter. On March 19,

1997, the case was referred to the Division of Administrative

Hearings for the assignment of an Administrative Law Judge to

conduct a Section 120.57(1) hearing.

As noted above, the hearing was held on July 18, 1997. A

total of three witnesses testified at the hearing : Michael

Menor, a Sanitation and Safety Specialist with the Department of

Health (Department); Petitioner; and Speedy Martin, an employee

of Petitioner's. In addition to the testimony of these three

witnesses, a total of 17 exhibits (Respondent's Exhibits 1A, 1B,

2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 6A, 6B, 7, 8, 9A, 9B and 10) were

offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing,

the undersigned announced on the record that proposed recommended

orders had to be filed no later than August 1, 1997. On July 31,

1997, Petitioner and the Department timely filed their proposed

recommended orders. The undersigned has carefully considered

these proposed recommended orders submitted by the parties.

On August 4, 1997, Petitioner filed the following "fax

message" addressed to the undersigned:

Pertinent to the facts is this contract with

Glades Pest Control. I was conversing with

the owner at the beginning of Feb. 1997. He

had to go to the property to inspect it and

determine a method of dealing with the

problem. He sent me his suggestions on

Feb. 17, 1997 and I agreed to have him do it

a.s.a.p. That date was March 7, 1997.

The "contract with Glades Pest Control" referenced in the

message, as well as a February 17, 1997, letter, and a March 7,

1997, invoice, from Glades Pest Control to Petitioner were

appended to the message. Neither the information contained in

the message nor the documents attached to the message were

offered or received into evidence at the final hearing on

July 18, 1997. Because they are outside the scope of the

evidentiary record in this case, they cannot provide a basis for

any finding of fact. See General Development Utilities, Inc. v.

Hawkins , 357 So. 2d 408, 409 (Fla. 1978) ; Section 120.57(1)(h),

Florida Statutes ("Findings of fact . . . shall be based

exclusively on the evidence of record and on matters officially

recognized."). In any event, even if they were considered part

of the evidentiary record (upon which findings of fact could be

based), the outcome of the instant case would be the same.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as

a whole, the following Findings of Fact are made:

1. At all times material to the instant case, Petitioner

owned and operated two apartment buildings located (adjacent to

each other) at 732 and 740 Joe Louis Avenue in Pahokee, Florida

(hereinafter referred to as the 732 Apartments and the 740

Apartments, respectively). Each building contained ten

apartments used to house migrant farmworkers and members of their

families, including their children.

2. Among Petitioner's tenants was Speedy Martin.

Petitioner paid Martin to help him maintain the buildings and

grounds.

3. Michael Menor is a Sanitation and Safety Specialist with

the Department. He is assigned to the Department's Belle Glade

office. In his capacity as a Sanitation and Safety Specialist,

he inspects migrant farmworker housing to ascertain whether there

is compliance with applicable statutory and rule requirements.

4. Menor conducted inspections of the 732 and 740

Apartments on January 14, 1997. The inspections revealed the

existence of violations at both locations.

5. Following his inspections, Menor prepared inspection

reports which accurately described the violations that existed at

the two locations at the time of the inspections and which gave

notice that these violations needed to be corrected by 8:00 a.m.

on January 28, 1997. Before leaving, he handed these inspection

reports to one of Petitioner's tenants, Marlo Camble.

Approximately a week later, Camble provided the reports to Speedy

Martin, who, in turn, notified Petitioner of the contents of the

reports.

6. The inspection report describing the condition of the

732 Apartments and grounds at the time of the January 14, 1997,

inspection contained the following "comments and instructions":

Repair cracks in building, south side.

Replace 11 bathroom screens missing from

building.

Broken window [in] Apt. # 5 and two broken

windows [in] Apt. 4.

Repair or replace covers for water meters.

Clean out garbage, litter and debris from

east side of b[ui]ld[ing].

Replace missing screens [in] Apt[s]. #1 [and]

2.

Provide or repair heat [in] Apt. #2.

Exposed wires [hanging from two] public

lighting . . . fixtures [on] west side of

b[ui]lding.

Exposed wires in meter room.

Empty out storage area and repair door under

stairs.

Repair wall on side of storage area.

Repair public lighting on 2nd floor.

Repair or replace stove [in] Apt. #9.

Repair or replace stove [in] Apt. #2.

Note: Smoke detectors missing [from] Apt.

#8.

Fire extinguisher missing [from] Apt. #2.

All fire extinguishers require reinspection

and retag.

7. The inspection report describing the condition of the

740 Apartments and grounds at the time of the January 14, 1997,

inspection contained the following "comments and instructions":

Replace missing screens in Apt[s]. #4 and #5.

Repair leak on overhang, [in] front of

Apt[s]. #4 and #5.

Clean out garbage, litter and debris from

east side of building.

Repair heater [in] Apt. #4.

Repair broken windows [in] Apt. #4. (2

windows broken).

Remove or repair screen door [on] Apt. #3.

Repair public lighting.

Repair screen [in] Apt. #1.

Exposed electrical wires [in] front of Apt.

#1.

Repair door frame and screen in meter room.

Clean room.

Provide cover for electrical wires in meter

room.

Repair overhang [on] corner of b[ui]ld[ing's]

west side.

Remove wooden poles [on] south side of

building.

Repair broken window [in] Apt. #3 [on] south

side of building.

Repair wall [on] south side of building.

Provide covers for water meters.

Replace 2 missing bathroom screens [on] south

side of building.

Repair public lighting [on] 2nd floor.

Replace missing screen [in] Apt. #7.

Repair 2 broken windows [in] Apt. #6.

Exposed wire [on] west side of Apt. #6.

Repair storage door under stairs and clean

storage room.

Note: All fire extinguishers require retag

and reinspection.

Replace fire extinguisher and smoke detector

[in] Apt. #2.

8. Menor returned to the 732 and 740 Apartments on

January 31, 1997, to conduct follow-up inspections. 1 The follow-

up inspections revealed that, although Petitioner had remedied

some of the problems that Menor had discovered during his January

14, 1997, inspections (and had noted in his reports of those

inspections), most of the violations found during these earlier

inspections had not been corrected.

9. Following his January 31, 1997, inspections, Menor

prepared inspection reports which accurately described the

violations that existed at the two locations at the time of the

inspections and which gave notice that these violations needed to

be corrected by 8:00 a.m. on February 4, 1997. Menor, on

February 3, 1997, "faxed" Petitioner copies of the inspection

reports. He also spoke with Petitioner and advised him of the

contents of the reports.

10. The inspection report describing the condition of the

732 Apartments and grounds at the time of the January 31, 1997,

inspection contained the following "comments and instructions":

Repair cracks in building, south side.

Replace 11 bathroom screens missing from

building.

Broken window [in] Apt. #5 and two broken

windows [in] Apt. #4.

Repair or replace covers for water meters.

Clean out garbage, litter and debris [from]

east side of building.

Replace missing screens [in] Apt[s]. #1 [and]

2.

Provide or repair heat [in] Apt. #2.

Repair door to storage area under stairs.

Repair or replace stove [in] Apt. #9.

Repair or replace stove [in] Apt. #2.

Provide effective extermination of rodents.

11. The inspection report describing the condition of the

740 Apartments and grounds at the time of the January 31, 1997,

inspection contained the following "comments and instructions":

Replace missing screens in Apt[s]. #4 [and]

#5.

Repair leak on overhang, [in] front of

Apt[s]. #4 [and] #5.

Clean out garbage, litter and debris from

east side of b[ui]ld[ing].

Repair 2 heaters [in] Apt. #4.

Repair overhang [on] corner of building['s]

west side.

Repair broken window [in] Apt. #3 [on] south

side of building.

Repair wall [on] south side of building.

Provide covers for water meters.

Replace 2 missing bathroom screens [on] south

side of b[ui]ld[ing].

Repair public lighting [on] south side of

b[ui]ld[ing].

Repair broken window (2)[in] Apt. #6.

Repair storage door und[er] stairs.

Provide effective extermination of rodents.

12. Menor next inspected the 732 and 740 Apartments on

February 4, 1997. The inspections revealed that none of the

violations that Menor had discovered during his January 31, 1997,

inspections (and had noted in his reports of those inspections)

had been remedied, with the exception of the violation resulting

from the broken heater in Apartment number 2 in the 732

Apartments, which had been repaired since the January 31, 1997,

inspections. (One of the heaters in Apartment number 9 in the

732 Apartments, however, was now in disrepair.)

13. Although Petitioner had taken steps to address some of

these continuing violations, his efforts, as Menor's February 4,

1997, inspections revealed, were inadequate to correct the

targeted problems.

14. Petitioner had ordered meter covers from the City of

Pahokee, but he had not yet received them nor had he placed any

temporary coverings over the uncovered meters.

15. He had attempted to repair the cracks in the building

on the south side of the 732 Apartments; the door to the storage

area under the stairs in the 732 Apartments; the overhang in

front of Apartment numbers 4 and 5 in the 740 Apartments; the

overhang on the west side of the 740 Apartments; the wall on the

south side of the 740 Apartments; and the door to the storage

area under the stairs in the 740 Apartments; but the repairs he

had made had not been done properly.

16. He had put rat poison under the buildings and given

tenants rat traps in an effort to alleviate the rodent

infestation problem at the 732 and 740 Apartments; however, he

had not gone to the expense of hiring a professional exterminator

to deal with the problem, even though it should have been

apparent to him that the services of an exterminator were needed

to effectively eliminate the rat population at the two locations.

17. Following the February 4, 1997, inspections, Menor

prepared inspection reports which accurately described the

violations that existed at the 732 and 740 Apartments at the time

of the inspections and which gave notice that these violations

needed to be corrected by 8:00 a.m. on February 6, 1997. Menor

spoke with Petitioner and advised Petitioner of the contents of

the inspection reports and what Petitioner needed to do to remedy

the violations noted in the reports.

18. Menor returned to inspect the 732 and 740 Apartments on

February 6, 1997. Upon his arrival, Menor met Petitioner, who

had also just arrived on the scene. In Petitioner's car were

screens and light bulbs that Petitioner intended to install in

the apartments and public areas that needed them.

Notwithstanding Petitioner's intentions, none of the violations

that Menor had discovered during his February 4, 1997,

inspections (and had noted in his reports of those inspections)

had yet been remedied. Inasmuch as the deadline that Menor had

given Petitioner to correct these violations had passed, Menor

issued Petitioner two citations, one for the continuing

violations at the 732 Apartments and the other for the continuing

violations at the 740 Apartments. Each citation directed

Petitioner "to pay a fine in the amount of $500.00," but provided

that Petitioner could "have the amount of the fine . . . reduced

or waived completely by demonstrating good faith in correcting

the violations or by presenting 'before and after' evidence to

the Palm Beach County Public Health Unit within 48 hours of the

time of the issuance of th[e] citation." Menor told Petitioner

that he would be back to the apartments on Monday, February 10,

1997, to see if the violations had been corrected and if a

reduction or waiver of the fines was warranted.

19. On February 10, 1997, Petitioner telephoned Menor and

advised him that he needed an extra day to bring the 732 and 740

Apartments into compliance. Menor responded by telling

Petitioner that he would postpone his inspections of the

apartments until the following day.

20. The following day, February 11, 1997, Menor paid a

return visit to the 732 and 740 Apartments to conduct post-

citation inspections. Some of the continuing violations that

Menor had discovered during his February 4, 1997, inspections

(and had noted in his reports of those inspections) had still not

yet been remedied. These unremedied violations created

conditions that posed a serious threat to the health and safety

of the tenants.

21. Following his February 11, 1997, inspections, Menor

prepared inspection reports which accurately described the

violations that existed at the two locations at the time of the

inspections and which gave notice that these violations needed to

be corrected by 8:00 a.m. on February 17, 1997. Menor provided

Petitioner, who was present during the inspections, copies of the

inspection reports.

22. The inspection report describing the condition of the

732 Apartments and grounds at the time of the February 11, 1997,

inspection contained the following "comments and instructions":

Replace covers for water meters. . . .

Repair door to storage area.

Provide effective extermination of rodents.

Repair cracks in building, south side.

Screens missing from bathroom window[s].

23. The inspection report describing the condition of the

740 Apartments and grounds at the time of the February 11, 1997,

inspection contained the following "comments and instructions":

Repair overhang [on] corner of building['s]

west side./Repair storage door.

Provide covers for water meters.

Repair 2 broken windows [in] Apt. #6.

Provide effective extermination of rodents.

24. Menor next inspected the 732 and 740 Apartments on

February 17, 1997. The inspections revealed that at neither

location had Petitioner yet "provide[d] covers for water meters"

or "provide[d] effective extermination of rodents," although he

had corrected the other violations Menor had discovered during

his February 11, 1997, inspections (and had noted in his reports

of those inspections).

25. Following his February 17, 1997, inspections, Menor

prepared inspection reports which accurately described the

violations that existed at the two locations at the time of the

inspections. Copies of these inspection reports were "faxed" to

Petitioner on February 18, 1997.

26. On February 24, 1997, Menor received a complaint from a

tenant living in Apartment number 4 in the 740 Apartments that

there were "rats in [her] refrigerator." Later that day, Menor

went to the 740 Apartments to investigate the complaint. His

investigation revealed evidence that rats had entered the

complainant's refrigerator through a hole. Menor spoke with

Petitioner following his investigation and emphasized the

importance of Petitioner providing his tenants with effective

"pest control."

27. Two days later, on February 26, 1997, Petitioner

telephoned Menor and told Menor that he (Petitioner) had made

arrangements for a "pest control" company, Glades Pest Control,

to provide extermination services at the 732 and 740 Apartments,

but that it would not be until March 4, 1997, that such services

would be rendered.

28. On April 18, 1997, Menor returned to the 732 and 740

Apartments to ascertain whether the continuing violations that he

had discovered during his February 17, 1997, inspections (and had

noted in his reports of those inspections) had been remedied.

The inspections revealed that these violations had been

corrected.

CONCLUSIONS OF LAW

29. The Department has been statutorily delegated the

authority to "adopt rules necessary to protect the health and

safety of migrant farm workers and other migrant labor camp or

residential migrant housing occupants. These rules must include

provisions relating to plan review of the construction of new,

expanded, or remodeled camps, personal hygiene facilities,

lighting, sewage disposal, safety, minimum living space per

occupant, bedding, food storage and preparation, insect and

rodent control, garbage, heating equipment, water supply,

maintenance and operation of the camp or housing, and such other

matters as the [D]epartment finds to be appropriate or necessary

to protect the life and health of the occupants." Section

381.0086, Florida Statutes.

30. The Department has adopted such rules. They are found

in Chapter 64E-14 (formerly 10D-25), Florida Administrative Code.

31. Rule 64E-14.007 (formerly 10D-25.058), Florida

Administrative Code, imposes requirements relating to

"[b]uildings and structures of migrant labor camps and

residential migrant housing." 2 It provides, in pertinent part,

as follows:

(1) Buildings and structures of migrant labor

camps and residential migrant housing shall

be weather-tight and shall provide protection

from the elements. Steps, porches, hallways

and other means of egress shall be sturdy and

safe. . . .

(4) The floors, roofs, and exterior walls,

and ceilings of all buildings and structures

shall be sound and in good repair. . . .

32. Rule 64E-14.009 (formerly 10D-25.060), Florida

Administrative Code, imposes requirements relating to "[g]arbage

and [r]efuse [d]isposal." It provides as follows:

(1) Garbage shall be retained in cleanable,

watertight receptacles of impervious material

which are provided with tight fitting covers

suitable to protect the contents from flies,

insects, rodents and other animals.

Receptacles shall be provided in sufficient

quantity to store garbage from all buildings

and housing units.

(2) Garbage containers shall be kept clean

and shall be emptied on a regular basis, but

not less than twice weekly.

(3) Provisions shall be made for disposing of

the garbage, kitchen wastes and other refuse

in accordance with Chapter 62-700, F.A.C., or

applicable local code.

33. Rule 64E-14.010 (formerly 10D-25.061), Florida

Administrative Code, imposes requirements relating to "[i]nsect

and [r]odent [c]ontrol." It provides that "[e]ffective measures

shall be taken to prevent infestation by and harborage of animal

or insect vectors or pests."

34. Rule 64E-14.011 (formerly 10D-25.062), Florida

Administrative Code, imposes requirements relating to

"[h]eating." It provides as follows:

(1) All private living quarters, and

bathrooms of migrant labor camps and

residential migrant housing shall be equipped

with heat producing devices to maintain a

room temperature of 68 degrees Fahrenheit.

(2) Heating appliances, other than

electrical, shall be provided with a flue

pipe or vent connected to the appliance and

discharging to the outside air. Cooking

facilities shall not be considered heating

equipment.

(3) Automatically operated heat producing

equipment shall be provided with controls to

cut off the fuel supply upon the failure or

interruption of flame or ignition or whenever

a predetermined safe temperature or pressure

is exceeded. All steam and hot water systems

shall be provided with safety devices

designed to prevent hazardous pressures and

excessive temperatures.

35. Rule 64E-14.012 (formerly 10D-25.063), Florida

Administrative Code, imposes requirements relating to

"[l]ighting." It provides as follows:

Each private living quarter in a migrant

labor camp or residential migrant housing

shall be provided with at least one ceiling

or wall type light fixture capable of

providing 30 foot candles of light at a point

30 inches from the floor and at least one

separate double electric wall outlet.

Interior areas in which people congregate,

laundry rooms, shower rooms and toilet rooms

shall be provided with a minimum of one

ceiling or wall type fixture capable of

providing at least 20 foot candles of light

at a point 30 inches from the floor.

Electric wiring shall be installed in

accordance with the provisions of city or

county electrical codes. Light bulbs shall

be furnished in all facilities.

36. Rule 64E-14.017 (formerly 10D-25.068), Florida

Administrative Code, imposes requirements relating to "[f]ood

[s]ervice [f]acilities." It provides, in pertinent part, that

"[i]n each individual family unit, there shall be provided a

range . . . ."

37. Rule 64E-14.019 (formerly 10D-25.070), Florida

Administrative Code, imposes requirements relating to "[f]ire

[p]rotection." It provides, in pertinent part, that "[o]perating

smoke detection devices and fire extinguishers shall be installed

in all facilities."

38. Rule 64E-14.021 (formerly 10D-25.072), Florida

Administrative Code, addresses the subject of "[r]esponsibility

of [o]perator." It provides, in pertinent part, that "[t]he

operator and owner shall be responsible for complying with all

statutory requirements and rules issued thereunder relating to

migrant labor camps and residential migrant housing," that "[t]he

entire premises of a migrant labor camp and residential migrant

housing shall be free from rubbish, waste paper, garbage and

other litter," and that "[t]he owner, operator or his agent shall

inspect daily or provide a competent individual to inspect daily

the grounds and common-use areas including toilets, showers,

laundries, mess halls, dormitories, kitchens or any facilities

relating to the operation of the facility and ensure that each is

maintained in a clean, satisfactory operating condition and kept

in good repair."

39. Department personnel may issue an owner/operator of

residential migrant housing (as was Petitioner at all times

material to the instant case) a citation containing an order to

pay a fine for violating any provision of the rules adopted by

the Department pursuant to Section 381.0086, Florida Statutes.

Sections 381.0086(4) and 381.0087(1), Florida Statutes.

40. "The fines imposed by a citation issued by the

[D]epartment may not exceed $500 for each violation." Sections

381.0086(4) and 381.0087(3), Florida Statutes; Rule 64E-14.021(5)

(formerly 10D-25.072(5)), Florida Administrative Code. "Each day

the violation exists constitutes a separate violation for which a

citation may be issued." Sections 381.0086(4) and 381.0087(3),

Florida Statutes; Rule 64E-14.020(1) (formerly 10D-25.071(1)),

Florida Administrative Code.

41. "A citation issued [by the Department] constitutes a

notice of proposed agency action." Sections 381.0086(4) and

381.0087(1), Florida Statutes.

42. The recipient of a citation has "the right to an

administrative hearing to contest the citation." Sections

381.0086(4) and 381.0087(4), Florida Statutes;. Rule 64E-

14.020(5) (formerly 10D-25.071(5)), Florida Administrative Code.

43. At the administrative hearing, the Department bears the

burden of establishing the recipient's guilt of the violation(s)

alleged in the citation. Proof greater than a mere preponderance

of the evidence must be presented. Clear and convincing evidence

is required. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932, 935 (Fla. 1996)("[A]n administrative fine

deprives the person fined of substantial rights in property.

Administrative fines . . . are generally punitive in

nature. . . . Because the imposition of administrative

fines . . . are penal in nature and implicate significant

property rights, the extension of the clear and convincing

evidence standard to justify the imposition of such a fine is

warranted."); Section 120.57(1)(h), 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."). "'[C]lear 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 in 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.'" In re Davey , 645 So. 2d 398, 404 (Fla. 1994),

quoting, with approval, from Slomowitz v. Walker , 429 So. 2d 797,

800 (Fla. 4th DCA 1983).

44. Even if there is clear and convincing evidence of the

recipient's guilt presented at the administrative hearing, the

Department may nonetheless waive or reduce the fine imposed by

the citation. "In determining whether to reduce or waive the

fine, the [D]epartment must give due consideration to such

factors as the gravity of the violation, the good faith of the

person who has allegedly committed the violation, and the

person's history of previous violations, including violations for

which enforcement actions were taken." Sections 381.0086(4) and

381.0087(5), Florida Statutes; Rule 64E-14.021(5) (formerly 10D-

25.072(5)), Florida Administrative Code. Rule 64E-14.021(5),

Florida Administrative Code, further provides that "[t]he

[D]epartment may reduce or waive the fine imposed by the citation

where the person responsible for correction present[ed] proof to

the [D]epartment's county public health unit director,

administrator or other authorized staff that the violation [had

been] corrected within 48 hours from the time of the citation."

45. In the instant case, Petitioner, on February 6, 1997,

was issued two citations by the Department for violations that

allegedly existed on that date at the 732 and 740 Apartments, two

residential migrant housing facilities that he owned and operated

at the time. Each citation proposed to impose on Petitioner a

fine of $500.00, which was considerably less than the maximum

amount allowed for the number of alleged violations cited.

Petitioner requested and received an administrative hearing to

contest the citations.

46. At the administrative hearing, clear and convincing

evidence was presented establishing that Petitioner committed the

violations alleged in the two citations.

47. Although these violations were ultimately corrected,

given the number of violations, their serious nature when viewed

collectively, and the length of time it took Respondent to

correct them, the $500.00 fines proposed by the Department are

appropriate and should be neither waived nor reduced. 3

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department issue a final order finding

Respondent guilty of the violations alleged in the February 6,

1997, citations and fining him a total of $1,000.00 ($500.00 per

citation) for these violations.

DONE AND ENTERED this 13th day of August, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of August, 1997.

ENDNOTES

1 On January 27, 1997, Petitioner telephoned Menor and asked for

an extension of time, until January 31, 1997, to correct the

violations Menor had referenced in the reports describing the

results of his January 14, 1997, inspections. Menor granted

Petitioner's request.

2 "Residential migrant housing," as used in Rule Chapter 64E-14,

Florida Administrative Code, is "[a] building, structure, mobile

home, barracks, or dormitory, or combination thereof on adjacent

property which is under the same ownership, management or

control, and the land appertaining thereto, that is rented or

reserved for occupancy by five or more migrant farmworkers. "

Rule 64E-14.002(13), Florida Administrative Code.

3 The Department has not given notice of its intent to, and

therefore may not, impose fines greater than $500.00 per citation

for these violations. See Williams v. Turlington, 498 So. 2d 468

(Fla. 3d DCA 1986)("Since Williams was not given notice by either

the complaint or any later proceedings that he was at risk of

having his license permanently revoked, the Commission's

imposition of the non-prayed for relief of permanent revocation,

even if justified by the evidence, was error.").

COPIES FURNISHED:

Don Lindsey

5600 Poinsettia Avenue, Number 1109

West Palm Beach, Florida 33402

Victoria A. Coleman, Esquire

Department of Health

Post Office Box 29

West Palm Beach, Florida 33402

Angela T. Hall, Agency Clerk

Department of Health

Building 6

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

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.