98-002923
Division Of Hotels And Restaurants vs.
Bentley Farms, Inc., D/B/A First Street Apartments
Status: Closed
Recommended Order on Tuesday, December 8, 1998.
Recommended Order on Tuesday, December 8, 1998.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF BUSINESS AND )
13PROFESSIONAL REGULATION, )
16DIVISION OF HOTELS AND )
21RESTAURANTS, )
23)
24Petitioner, )
26)
27vs. ) Case No. 98-2923
32)
33BENTLEY FARMS, INC., d/b/a )
38FIRST STREET APARTMENTS, )
42)
43Respondent. )
45______________________________)
46RECOMMENDED ORDER
48Robert E. Meale, Administrative Law Judge of the Division of
58Administrative Hearings, conducted the final hearing in Naples,
66Florida, on October 6, 1998.
71APPEARANCES
72For Petitioner: Daniel R. Biggins
77Department of Business and
81Professional Regulation
831940 North Monroe Street
87Tallahassee, Florida 32399-1007
90For Respondent: D. Nathan Hoskins
95Peck & Peck
98First Union Building, Suite 103
1035801 Pe lican Bay Boulevard
108Naples, Florida 34108
111STATEMENT OF THE ISSUE
115The issue is whether Respondent has violated various
123provisions governing public lodging establishments and, if so,
131what penalty should be imposed.
136PRELIMINARY STATEMENT
138By Administrative Complaint dated March 10, 1998, Petitioner
146alleged that Respondent violated various provisions governing its
154public lodging establishment known as First Street Apartments at
163220 South First Street in Immokalee. The Administrative
171Complaint alleged that the violations existed as of July 30 and
182August 19, 1997.
185The Administrative Complaint alleges fifteen violations,
191including seven designated as "critical" (marked with an
199asterisk): 1)* apartments 30, 32, 40, and 79 lacked smoke
209detectors, in violation of National Fire Protection Association
217Life Safety Code 101, 19-3.4.4.1 and Section 633.025(11), Florida
226Statutes; 2)* apartment 31 had a broken smoke detector, in
236violation of Rule 61C-1.004(5), Florida Administrative Code;
2433)* apartments 25, 29, 31, 33, 40, 42, 44, 47, and 78 had doors
257with hasps on them, in violation of Rule 61C -1.004(10), Florida
268Administrative Code; 4)* apartment 31 had a broken electrical
277socket hanging from the wall with a hot plate plugged into it and
290had exposed wiring not in conduit running within eight feet of
301the floor to the hot water heater, in violation of Rule
31261C -1.004(11), Florida Administrative Code; 5)* residents in
320apartments 31, 32, and 33 were using extension cords improperly,
330in violation of Rule 61C-1.004(11), Florida Administrative Code;
3386) the alley between the north building and fenced area lacked
349public lighting, in violation of Section 509.221(3), Florida
357Statutes; 7)* apartments lacked heat, in violation of Rule
36661C -1.004(12), Florida Administrative Code; 8) the fencing behind
375the vertical balcony rail was missing on the west side and loose
387elsewhere on the second level, in violation of National Fire
397Protection Association Life Safety Code 101, 5 -2.2.4.6(c);
4059) apartments 30 and 32 had broken windows, torn s creens, and a
418broken faucet in the kitchen sink repaired with duct tape;
428apartments 30 and 31 had leaky ceilings with structural damage
438and falling plaster; walls were pulling away from the ceiling;
448the south building had exposed interior beams; exterior areas had
458structural damage with worn concrete revealing the metal
466foundation; the exterior wall of the southeast end of the
476building had a 15-foot crack; and the concrete pillar supporting
486the second-floor landing on the northeast side of the building
496was worn and cracked, in violation of Rule 61C-1.004(6), Florida
506Administrative Code; 10) apartment 32 had a rotten shower wall
516and leaky toilet, apartment 31 had an inoperative shower, and
526apartments 31 and 32 had water leaking under the sinks, in
537violation of Rule 61C-1.004(2)(a), Florida Administrative Code;
54411) apartment 31 had roaches, the dumpster had flies, and rotten
555food littered the east side of the building, in violation of
566Section 509.221(7), Florida Statutes; 12) an old car seat and
576buckets were under an exterior stairwell, in violation of Rule
58661C -3.001(7), Florida Administrative Code; 13) a dumpster was not
596on an approved pad, in violation of Section 5-501.12 (amended at
607hearing from an incorrect reference to Section 5-501.11), 1995
616Food Code, as adopted by the Food and Drug Administration, Public
627Health Service, United States Department of Health and Human
636Services; 14) a dumpster lid was left open, in violation of
647Section 5-501.114(B) (amended at hearing from an incorrect
655reference to Section 5-501.113(B)), 1995 Food Code, as adopted by
665the Food and Drug Administration, Public Health Service, United
674States Department of Health and Human Services; and 15)* a sewage
685line outside apartment 23 was open and covered with an old
696cabinet door, and a sewage cap outside apartment 23 was missing,
707in violation of Section 5-402.14, 1995 Food Code, as adopted by
718the Food and Drug Administration, Public Health Service, United
727States Department of Health and Human Services.
734Respondent demanded a formal hearing. At the hearing,
742Respondent admitted the alleged violation of Rule 61C-1.004(12),
750Florida Administrative Code, for failing to provide heat, and
759Section 5-501.12, Food Code, for failing to provide a suitable
769pad for the second dumpster.
774At the hearing, Petitioner called three witnesses and
782offered into evidence 15 exhibits. Respondent called two
790witnesses and offered into evidence no exhibits. All exhibits
799were admitted.
801The parties did not order a transcript.
808FINDINGS OF FACT
8111. Respondent operates a public lodging establishment known
819as First Street Apartments at 220 South First Street in
829Immokalee. The license to operate this establishment, which is
838number 21-00721-H, expired December 1, 1997. However, Petitioner
846has allowed Respondent to continue to operate under this license
856until the resolution of pending proceedings against the license.
8652. First Street Apartments comprise 84 residential units in
874buildings not greater than three stories. At the time of the
885inspection, about 60 units were occupied. The buildings were
894constructed in 1963, and Respondent acquired the property in
9031984.
9043. The controlling owner of Respondent was formerly a
913professional football player, and he formed Respondent to acquire
922First Street Apartments while still playing football. He has
931since retired, and he assumed direct responsibility for managing
940the property in 1994. First Street Apartments generate a net
950cash flow of $25,000 to $35,000 annually.
9594. Respondent has no formal policy setting the frequency of
969inspections of apartment units. However, the weekend prior to
978the hearing, Respondent's owner and his family moved into one of
989the apartments.
9915. Petitioners inspector conducted inspections of First
998Street Apartments on July 30 and August 19, 1997. The July
1009inspection resulted in the issuance of a warning for 38
1019violations. The inspector allowed Respondent 30 days to correct
1028these violations.
10306. The findings below describe the conditions at First
1039Street Apartments on August 19, when Petitioners inspector and a
1049local fire inspector returned to the site for the reinspection.
10597. As to the first alleged violation, apartments 30, 32,
106940, and 79 lacked smoke detectors. As to the second alleged
1080violation, apartment 31 had a smoke detector, but it was
1090inoperative.
10918. As to the third alleged violation, an undetermined
1100number of apartments had hasps affixed to the outside doors, so
1111as to permit them to be latched. Most if not all of these hasps
1125were affixed to the screen door. Most but not all of these hasps
1138were unlocked.
11409. There is no evidence that any hasps were locked with
1151occupants inside. The evidence suggests that tenants used the
1160hasps to secure the contents of their premises while they were
1171gone. However, the evidence does not establish that all of these
1182hasps were attached to the doors and doorframe so securely as to
1194present more than a momentary impediment to someone from the
1204inside or outside trying to force the hasp open without unlocking
1215it. The doorframes appear to have secured so many hasps that the
1227wood is pitted and incapable of securing the hasp against much
1238force. The clear appearance of numerous screwholes in the doors
1248and doorframes supports Respondents contention that its
1255representatives have frequently removed the hasps, only to find
1264them reaffixed a short time later.
127010. As to the fourth alleged violation, one of the
1280apartments had uninsulated wiring, unprotected by conduit,
1287running from the ceiling to a water heater. This uninsulated
1297wiring ran within eight feet of the floor. The proximity of this
1309exposed wiring to the water in the water heater rendered this
1320violation especially hazardous. However, Petitioner failed to
1327prove its allegation of a broken electrical socket with a hot
1338plate plugged into it.
134211. As to the fifth alleged violation, occupants of
1351apartments 31, 32, and 33 used extension cords for other than
1362intermittent purposes, such as cleaning, maintenance, or other
1370temporary activities. These more ongoing, permanent uses
1377included cooking and playing radios and televisions.
138412. As to the sixth alleged violation, there was no public
1395lighting in the alley between the north building and a fenced
1406area to the next property. However, Respondent or Lee County has
1417since added more exterior lighting, and the record does not
1427permit a finding as to the effect of the former condition.
143813. As to the seventh alleged violation, Respondent
1446conceded that Respondent did not provide heat at the time of the
1458inspections.
145914. As to the eighth alleged violation, the original design
1469of the guardrail along the balcony contains openings greater than
1479four inches. To remedy this hazardous situation, Respondent or a
1489prior owner placed chain-link fence behind the guardrail, so as
1499to reduce the openings to the size of the openings in the chain-
1512link fence.
151415. The chain-link fence may have been missing on the west
1525side of the building, but this fact does not emerge clearly from
1537the record. There is some evidence that the chain-link fence
1547elsewhere had loosened from the guardrail, but the evidence fails
1557to establish the extent to which any separation had occurred and
1568the extent to which such separation presented a hazard to persons
1579falling between the openings in the guardrails and then between
1589the guardrails and the chain-link fence. Respondent has since
1598repaired the guardrails, in any event.
160416. As to the ninth alleged violation, apartments 30 and 32
1615had broken windows, torn screens, and a broken faucet in the
1626kitchen sink repaired with duct tape; apartments 30 and 31 had
1637leaky ceilings with structural damage and falling plaster; walls
1646were pulling away from the ceiling; the south building had
1656exposed interior beams; exterior areas had structural damage with
1665worn concrete revealing the metal foundation; the exterior wall
1674of the southeast end of the building had a 15-foot crack; and the
1687concrete pillar supporting the second-floor landing on the
1695northeast side of the building was worn and cracked.
170417. As to the tenth alleged violation, apartment 32 had a
1715rotten shower wall and leaky toilet, and apartment 31 had an
1726inoperative shower.
172818. As to the eleventh alleged violation, there were
1737roaches and flies around the premises, but there is no evidence
1748of "noxious small animals or parasitic insects, such as lice,
1758fleas, worms, rats, or mice." As the administrative law judge
1768advised at the hearing, he took official notice of this
1778dictionary definition of "vermin" taken from a Funk and Wagnall's
1788Dictionary present in the courthouse at which the hearing took
1798place.
179919. As to the twelfth alleged violation, there was a car
1810seat under a stairwell and about a dozen five-gallon plastic
1820pails. However, the tenants stored these items, on a temporary
1830basis, for their work. They remove car seats to increase the
1841passenger-carrying capacity of their motor vehicles, and they use
1850the pails while picking fruits and vegetables.
185720. As to the thirteenth alleged violation, there was no
1867concrete pad under one of the two dumpsters.
187521. As to the fourteenth alleged violation, a dumpster lid
1885remained open for the entire 1.5-hour inspection.
189222. As to the fifteenth alleged violation, a broken sewer
1902line had leaked a pool of gray water, and a sewer cap was missing
1916from the sewer line as it left a residential unit.
192623. In sum, Petitioner proved the following violations,
1934with critical violations marked with an asterisk: 1*, 2*, 4*
1944(unprotected wiring, but no broken socket), 5*, 7*, 9, 10 (except
1955for water leaking from under the sinks) 13, 14, and 15*.
196624. By Ordinance No. 92-72, the Collier County Commission
1975adopted National Fire Protection Association Life Safety Code
1983101, Life Safety Code, effective October 21, 1992.
199125. NFPA 5-2.2.4.6(c) provides: "Open guards shall have
1999intermediate rails or an ornamental pattern such that a sphere 4
2010in. (10.1 cm) in diameter cannot pass through any opening."
202026. NFPA 19-3.4.4.1 provides:
2024Approved single station or multiple station
2030smoke detectors continuously powered from the
2036building electrical system shall be installed
2042in accordance with 7-6.2.9 in every living
2049unit within the apartment building regardless
2055of the number of stories or number of
2063apartments. When activated, the detector
2068shall initiate an alarm that is audible in
2076the sleeping rooms of that unit. This
2083individual unit detector shall be in addition
2090to any sprinkler system or other detection
2097system that may be installed in the building.
210527. Section 5-402.14, 1995 Food Code, as adopted by the Food and
2117Drug Administration, Public Health Service, United States
2124Department of Health and Human Services (Food Code), provides:
"2133Sewage shall be conveyed to the point of disposal through an
2144approved sanitary sewage system or other system, including use of
2154sewage transport vehicles, waste retention tanks, pumps, pipes,
2162hoses, and connections that are constructed, maintained, and
2170operated according to law."
217428. Section 5-501.11, Food Code, provides: "If located within
2183the food establishment, a storage area for refuse, recyclables,
2192and returnables shall meet the requirements specified under Parts
22016-1 and 6-2."
220429. Section 5-501.12, Food Code, provides: "An outdoor storage
2213surface for refuse, recyclables, and returnables shall be
2221constructed of nonabsorbent material such as concrete or asphalt
2230and shall be smooth, durable and sloped to drain."
223930. Section 5-501.113(B), Food Code, provides: "Cardboard or
2247other packaging material that does not contain food residues and
2257that is awaiting regularly scheduled delivery to a recycling or
2267disposal site may be stored outside without being in a covered
2278receptacle if it is stored so that it does not create a rodent
2291harborage problem."
229331. Section 5-501.114(B), Food Code, provides: "Equipment and
2301receptacles for refuse, recyclables, and returnables shall be
2309kept covered . . . [w]ith tight-fitting lids or doors if kept
2321outside the food establishment."
2325CONCLUSIONS OF LAW
232832. The Division of Administrative Hearings has jurisdiction
2336over the subject matter. Section 120.57(1), Florida Statutes.
2344(All references to Sections are to Florida Statutes, except for
2354references to Sections of the Food Code. All references to Rules
2365are to the Florida Administrative Code.)
237133. Section 509.211(2) provides that Petitioner "may i mpose
2380administrative sanctions for violations of these rules [adopted
2388under Chapter 633, Florida Statutes] pursuant to Section
2396509.261."
239734. Section 509.261(1) authorizes Petitioner to impose a fine of
2407$1000 per offense, require additional education, or suspend or
2416revoke a license of any operator of a public lodging
2426establishment for a violation of any provision of Chapter 509 or
2437Petitioner's rules. Section 509-261(2) provides that the
2444Petitioner "may" treat as a separate offense each day that a
"2455critical" violation continues uncorrected.
245935. Petitioner must prove the material allegations by clear and
2469convincing evidence. Department of Banking and Finance v.
2477Osborne Stern and Company, Inc. , 670 So. 2d 932 (Fla. 1996) and
2489rris v. Turlington , 610 So. 2d 292 (Fla. 1987).
249836. Rule 61C-1.004 provides that all public lodging and public
2508food service establishments must meet the following requirements:
2516The following general requirements and
2521standards shall be met by all public lodging
2529and public food service establishments:
2534(1) Water, plumbing and waste -- Except as
2542specifically provided in these rules,
2547standards for water, plumbing and waste shall
2554be governed by chapter 5, Food Code, herein
2562adopted by reference. For the purposes of
2569this section, the term 'food establishment'
2575as referenced in the Food code shall apply to
2584all public lodging and public food
2590establishments as defined in Chapter 509,
2596Florida Statutes.
2598* * *
2601(2)(a) Each public lodging and food service
2608establishment shall be provided with adequate
2614and conveniently located bathroom facilities
2619for its employees and guests in accordance
2626with provisions of these rules and the
2633plumbing authority having jurisdiction.
2637Public access to toilet facilities shall be
2644permitted through food preparation, storage,
2649or warewashing areas. Bathroom fixtures
2654shall be of readily cleanable sanitary
2660design. Bathroom facilities shall be kept
2666clean, in good repair and free from
2673objectionable odors. Bathrooms shall provide
2678at least 20 foot candles of light. The
2686walls, ceilings and floors of all bathrooms
2693shall be kept in good condition.
2699* * *
2702(5) All fire safety, protection and
2708prevention equipment must be installed,
2713approved, maintained and used in accordance
2719with Chapter 509, FS, and the National Fire
2727Protection Association Life Safety Code
2732Chapter 101, as adopted by the Division of
2740State Fire Marshal in Chapter 4A-3, FAC.
2747* * *
2750(6) All building structural components,
2755attachments and fixtures shall be kept in
2762good repair, clean and free of obstructions.
2769* * *
2772(10) Means of access must permit
2778unobstructed travel at all times and be
2785maintained free of obstructions and fire
2791hazards. Halls, entrances and stairways
2796shall be clean, ventilated and well-lighted
2802day and night. Hall and stair runners shall
2810be kept in good condition. Handrails shall
2817be installed on all stairways and guard rails
2825around all porches and steps. Adequate means
2832of exit shall be provided pursuant to NFPA
2840101. Exits shall be clearly marked with
2847approved illuminated exit signs.
2851(11) Electrical wiring -- To prevent fire or
2859injury, defective electrical wiring shall be
2865replaced and wiring shall be kept in good
2873repair. No extension cords shall be used
2880except during cleaning, maintenance and other
2886temporary activities. Only a wall switch or
2893approved pull cord shall be permitted in
2900bathrooms. In accordance with the provisions
2906of NFPA 70, the National Electrical Code, as
2914adopted by the Division of State Fire Marshal
2922in Chapter 4A-3, FAC, Uniform Fire Safety
2929Rules and Standards, sufficient electrical
2934outlets shall be provided.
2938(12) Heating and ventilation -- The heating
2945and ventilation system shall be kept in good
2953repair or be installed to maintain a minimum
2961of 68 degrees Fahrenheit throughout the
2967building. The insurance inspector's boiler
2972report is required annually for power boilers
2979and high pressure/high temperature boilers
2984and biannually for low pressure steam or
2991vapor heating boilers and shall be posted in
2999the boiler room. The provisions of this
3006section do not apply to the common areas of
3015resort condominiums.
301737. Rule 61C-3.001(7) provides, for all public lodging
3025establishments, that
3027yards, alleys, driveways, sidewalks, and
3032other exterior portions of the licensed
3038premises shall be kept clean, free of debris,
3046free of objectionable odors, and properly
3052drained, maintained and mowed. All unused
3058and discarded equipment and materials shall
3064be removed from the premises, except when
3071placed in a designated storage area.
307738. Section 509.221 provides in m aterial part:
3085(3) Each establishment licensed under this
3091chapter shall be properly lighted, heated,
3097cooled, and ventilated and shall be operated
3104with strict regard to the health, comfort,
3111and safety of the guests. Such proper
3118lighting shall be construed to apply to both
3126daylight and artificial illumination.
3130* * *
3133(7) The operator of any establishment
3139licensed under this chapter shall take
3145effective measures to protect the
3150establishment against the entrance and the
3156breeding on the premises of all vermin. Any
3164room in such establishment infested with such
3171vermin shall be fumigated, disinfected,
3176renovated, or other corrective action taken
3182until the vermin are exterminated.
318739. Section 633.025 provides:
3191(1) Each municipality, county, and special
3197district with firesafety responsibilities
3201shall adopt minimum firesafety standards
3206which shall operate in conjunction with the
3213state minimum building code adopted by such
3220local jurisdiction as required by s. 553.73.
3227. . .
3230(2) Pursuant to subsection (1), each
3236municipality, county, and special district
3241with firesafety responsibilities shall adopt
3246and enforce the codes specified in paragraph
3253(a), paragraph (b), paragraph (c), or
3259paragraph (d) as the minimum firesafety code:
3266(a) The Standard Fire Prevention Code,
32721985 edition or subsequent edition, as
3278adopted by the Southern Building Code
3284Congress International.
3286(b) The EPCOT Fire Prevention Code.
3292(c) The National Fire Protection
3297Association (NFPA) Pamphlet 1, 1985 edition
3303or subsequent edition.
3306(d) The South Florida Fire Prevention
3312Code, subject to the provisions of subsection
3319(4).
3320(3) In addition, each municipality, county,
3326and special district with firesafety
3331responsibilities shall adopt National Fire
3336Protection Association (NFPA) 101, Life
3341Safety Code, 1985 edition or subsequent
3347edition, as part of the minimum firesafety
3354code.
3355* * *
3358(7) The new building or structure provisions
3365enumerated within the firesafety code adopted
3371pursuant to this section shall apply only to
3379buildings or structures for which the
3385building permit is issued on or after
3392January 1, 1988. Subject to the provisions
3399of subsection (8), the existing building or
3406structure provisions enumerated within the
3411firesafety code adopted pursuant to this
3417section shall apply to buildings or
3423structures for which the building permit was
3430issued or the building or structure was
3437constructed prior to January 1, 1988.
3443(8) With regard to existing buildings, the
3450Legislature recognizes that it is not always
3457practical to apply any or all of the
3465provisions of the minimum firesafety code and
3472that physical limitations may require
3477disproportionate effort or expense with
3482little increase in lifesafety. Prior to
3488applying the minimum firesafety code to an
3495existing building, the local fire official
3501shall determine that a threat to lifesafety
3508or property exists. If a threat to
3515lifesafety or property exists, the fire
3521official shall apply the applicable
3526firesafety code for existing buildings to the
3533extent practical to assure a reasonable
3539degree of lifesafety and safety of property
3546or the fire official shall fashion a
3553reasonable alternative which affords an
3558equivalent degree of lifesafety and safety of
3565property. The decision of the local fire
3572official may be appealed to the local
3579administrative board described in s. 553.73.
3585(9) Nothing herein shall preclude a
3591municipality, county, or special district
3596from requiring a structure to be maintained
3603in accordance with the applicable firesafety
3609code.
3610(10) With respect to standards established
3616by the National Fire Protection Association
3622(NFPA) 101, Life Safety Code, 1985 edition,
3629s. 19-3.4.2.1, those standards shall not
3635apply to structures having direct access to
3642the outside from each living unit and having
3650three stories or less.
3654(11) With respect to standards established
3660by the National Fire Protection Association
3666(NFPA) 101, Life Safety Code, 1985 edition,
3673s. 19-3.4.4.1, battery operated smoke
3678detectors shall be considered as an approved
3685detection device for buildings having direct
3691access to the outside from each living unit
3699and having three stories or less.
3705(12) Heating and ventilation -- The heating
3712and ventilation system shall be kept in good
3720repair or be installed to maintain a minimum
3728of 68 degrees Fahrenheit throughout the
3734building. The insurance inspector's boiler
3739report is required annually for power boilers
3746and high pressure/high temperature boilers
3751and biannually for low pressure steam or
3758vapor heating boilers and shall be posted in
3766the boiler room. The provisions of this
3773section do not apply to the common areas of
3782resort condominiums.
378440. As noted in the findings of fact, Petitioner failed to
3795prove the following alleged violations: 3, 4 (broken socket
3804only), 6, 8, 10 (water leaking under sinks only), 11, and 12.
381641. As to alleged violations 1 and 2, the First Street
3827Apartments were constructed in 1963. Thus, Section 633.025(8)
3835provides that the NFPA shall not apply until "the local fire
3846official" determines that a "a threat to lifesafety or property
3856exists." There is no evidence of such a determination.
386542. However, Collier County adopted the NFPA by ordinance.
3874Section 633.025(9) provides that nothing in Section 633.025 shall
3883preclude a county from requiring the maintenance of a structure
3893in accordance with the applicable fire safety code. It appears
3903the determination required by Section 633.025(8) thus applies to
3912situations in which, under Section 633.025, the NFPA is applied
3922to a county by operation of state law without adoption by the
3934county.
393543. Thus, Petition er has proved two violations of NFPA
394519-3.4.1, as adopted by Collier County in Ordinance No. 92-72.
3955These are "critical" violations.
395944. As to violation 4, Petitioner proved only that the
3969wiring to the hot water heater was uninsulated and within eight
3980feet of the ground. Petitioner proved that this violated Rule
399061C-1.004(11). This is a "critical" violation.
399645. As to violation 5, Petitioner proved that the use of
4007extension cords violated Rule 61C-1.004(11). This is a
"4015critical" violation.
401746. As to violation 7, Petitioner proved that the absence
4027of heat violated Rule 61C-1.004(12). This is a "critical"
4036violation.
403747. As to violation 9, Petitioner proved that the various
4047items in disrepair violated Rule 61C-1.004(6).
405348. As to violation 10, Petitioner proved all of the
4063alleged items, except for the water leaking under the sinks, and
4074these items violated Rule 61C-1.004(2)(a).
407949. As to violation 13, Petitioner proved that the absence
4089of a pad under the dumpster violated Section 5-501.12, Food Code.
410050. As to violation 14, Petitioner proved that the open lid
4111on the dumpster violated Section 5-501.114, Food Code.
411951. As to violation 15, Petitioner proved that the broken
4129sewer line and uncapped sewer line violated Section 5-5.402.14,
4138Food Code. This is a "critical" violation.
414552. Petitioner should fine Respondent $1000 for violation
415315, $500 for violation 4, $250 each for violations 1 and 2, $250
4166for violation 5, $100 for violation 7 (although a "critical"
4176violation, the absence of heat in the summer is not hazardous to
4188the occupants' health), and $100 for each of the four non-
"4199critical" violations, for a total of $2750. The fine is set
4210with consideration of the need not to deprive Respondent of the
4221money necessary to maintain the property and in recognition of
4231the commitment of Respondent's controlling owner, in moving his
4240family to the property, to improve the maintenance level of the
4251property. Petitioner should also require Respondent's
4257controlling owner to attend take additional education in an
4266amount set by Petitioner in the final order.
4274RECOMMENDATION
4275It is
4277RECOMMENDED that the Division of Hotels and Restaurants
4285enter a final order imposing an administrative fine against
4294Respondent in the amount of $2750 and requiring Respondent's
4303controlling owner to undergo additional education.
4309DONE AND ENTERED this 8th day of December, 1998, in
4319Tallahassee, Leon County, Florida.
4323___________________________________
4324ROBERT E. MEALE
4327Administrative Law Judge
4330Division of Administrative Hearings
4334T he DeSoto Building
43381230 Apalachee Parkway
4341Tallahassee, Florida 32399-3060
4344(850) 488-9675 SUNCOM 278-9675
4348Fax Filing (850) 921-6847
4352Filed with the Clerk of the
4358Division of Administrative Hearings
4362this 8th day of December, 1998.
4368COPIES FURNISHED:
4370Daniel R. Biggins
4373Department of Business and
4377Professional Regulation
43791940 North Monroe Street
4383Tallahassee, Florida 32399-1007
4386D. Nathan Hoskins
4389Peck & Peck
4392First Union Building, Suite 103
43975801 Pelican Bay Boulevard
4401Naples, Florida 34108
4404Dorothy W. Joyce, Director
4408Division of Hotels and Restaurant
4413Department of Business and
4417Professional Regulation
44191940 North Monroe Street
4423Tallahassee, Florida 32399-0792
4426Lynda L. Goodgame, General Counsel
4431Department of Business and
4435Professional Regulation
44371940 North Monroe Street
4441Tallahassee, Florida 32399-0792
4444NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
4450All parties have the right to submit written exceptions within 15
4461days from the date of this Recommended Order. Any exceptions to
4472this Recommended Order must be filed with the agency that will
4483issue the Final Order in this case.
- Date
- Proceedings
- Date: 12/10/1998
- Proceedings: Respondent`s Notice of Appeal and Petition for Emergency Stay and Review(filed via facsimile).
- Date: 12/08/1998
- Proceedings: Respondent`s Notice of Appeal and Petition for Emergency Stay and Review filed.
- Date: 11/05/1998
- Proceedings: (Petitioner) Recommended Order filed.
- Date: 11/05/1998
- Proceedings: (Respondent) Recommended Order (unsigned); (Respondent) Recommended Order (filed via facsimile).
- Date: 10/29/1998
- Proceedings: Respondent`s Objection to Petitioner`s Motion to Strike (filed via facsimile).
- Date: 10/13/1998
- Proceedings: (D. Hoskins) Petition for Emergency Stay and Review filed.
- Date: 10/06/1998
- Proceedings: CASE STATUS: Hearing Held.
- Date: 10/05/1998
- Proceedings: Respondent`s Motion for Continuance (filed via facsimile).
- Date: 10/01/1998
- Proceedings: Order Denying Motion to Relinquish Jurisdiction sent out.
- Date: 09/28/1998
- Proceedings: Respondent`s Reply to Petitioner`s First Request for Admissions (filed via facsimile).
- Date: 09/28/1998
- Proceedings: (Respondent) Objection to Motion to Relinquish Jurisdiction and Request for Extension of Time to File Answers to Request for Admissions (filed via facsimile).
- Date: 09/22/1998
- Proceedings: (Petitioner) Motion to Relinquish Jurisdiction filed.
- Date: 08/14/1998
- Proceedings: Notice of Serving Petitioner`s First Request for Admissions (filed via facsimile).
- Date: 08/03/1998
- Proceedings: Notice of Hearing sent out. (hearing set for 10/6/98; 9:00am; Naples)
- Date: 07/21/1998
- Proceedings: Joint Response to Initial Order filed.
- Date: 07/08/1998
- Proceedings: Initial Order issued.
- Date: 07/01/1998
- Proceedings: Agency Referral Letter; Request for Formal Hearing; Administrative Complaint (exhibits) filed.
Case Information
- Judge:
- ROBERT E. MEALE
- Date Filed:
- 07/01/1998
- Date Assignment:
- 07/08/1998
- Last Docket Entry:
- 12/10/1998
- Location:
- Naples, Florida
- District:
- Middle
- Agency:
- Department of Business and Professional Regulation