STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF FLORIDA LAND SALES, ) CONDOMINIUMS AND MOBILE HOMES, )

)

Petitioner, )

)

v. ) CASE NO. 88-5983

) ROBERT E. POLAND AND JACQUELINE ) POLAND, )

)

Respondents. )

)

RECOMMENDED ORDER

This matter came on for hearing in Jacksonville, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on May 10, 1989. The Division of Administrative Hearings received the hearing transcript on May 26, 1989.

The parties filed proposed recommended orders on June 29, 1989. In accordance with Rule 22I-6.031(2), Florida Administrative Code, the parties waived the provisions of Rule 28-5.402, Florida Administrative Code. The attached appendix addresses proposed findings of fact by number.

APPEARANCES

For Petitioner: Reynold Meyer, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Jeffrey C. Regan, Esquire

Rogers, Towers, Bailey, Jones and Gay 1300 Gulf Life Drive

Jacksonville, Florida 32207 STATEMENT OF THE ISSUES

Whether, when respondents increased the rent for certain mobile home lots effective December 1, 1986, they violated Section 732.031(7), Florida Statutes (1987)? Whether respondents violated Section 732.031(5), Florida Statutes (1987), when they raised the rent for specified mobile home lots effective October 1, 1987?

PRELIMINARY STATEMENT

By notice to show cause dated October 26, 1988, petitioner Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (DBR) alleged that the respondents, doing business as Villa Rosa Mobile

Home Park, "increased the lot rental amount on October 1, 1987, of [certain] mobile home owners during the term of the lot rental agreement in violation of Section 723.031(5), Florida Statutes"; that respondents increased "the lot rental amount" for various mobile home owners on October 1, 1986, on November 1, 1986 and on December 1, 1986, "without delivering an approved prospectus, which is a separate violation of Section 723.031(7), Florida Statutes for each home owner whose lot rental amount has increased"; and that respondents failed to deliver approved prospectuses to Pat Church in November of 1986, Shirley Laninger in May of 1987, and Christ Hooley in December of 1986, "upon execution of rental agreements or prior to occupancy in the mobile home park in violation of Section 723.011(2), Florida Statutes."

When respondents requested formal administrative proceedings, DBR referred the matter to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1987). At the beginning of the formal hearing, counsel for DBR abandoned the allegations regarding Pat Church, Shirley Laninger and Christ Hooley. Before the hearing closed, DBR also abandoned the allegations pertaining to October 1 and November 1, 1986.

FINDINGS OF FACT

1. After a realtor told Robert Edward Poland that the Flagship Bank was foreclosing on Villa Rosa Mobile Home Park in Jacksonville Beach, Mr. Poland and his wife offered to purchase the property. The incompetency of the owner, Mrs. Ritchie, then in her eighties, together with ensuing legal proceedings, complicated negotiations. But on August 21, 1986, Robert Edward Poland and Jacqueline Poland became joint owners of Villa Rosa Mobile Home Park.

   
   

2. A portion of the park they acquired in fee simple, but another portion (now known as Beach Boulevard Trailer Park) they acquired only as a life estate pur autre vie. On the death of Mrs. Ritchie in mid-October 1987, the life estate was extinguished, and that portion has become the property of Mrs. Ritchie's daughter, Elizabeth Drey, and possibly the daughter's husband, Richard Drey. Only beginning with rent for February of 1989, however, have the Dreys begun receiving income from the trailer park.

   
   

   Rent Raised

   
   

3. On August 21, 1986, the day they acquired ownership, the Polands gave tenants written notice of their intention "to adjust rent effective December 1, 1986" to $130 a month for a single mobile home lot and to $155 monthly for a double wide mobile home on a single lot. This proposed rental increase did not pertain to lots 3, 6, 13, 15, 47, 48, 49, 50, 51, 52, 53, 54, 55, or 007, which were rented only to over-nighters.

   
   

4. Perhaps misunderstanding the notice, Tom Williams on Lot C began paying a higher amount on October 1, 1986, before the increase took effect. The following month, Debra Black Wood, J. E. Turner and James Mahoney also paid the increased rent prematurely. In their cases, and in the case of Mr. Williams, the Polands accepted the money but credited the surplus to the tenant.

   
   

5. Not counting the lot which the boundary between the Drey property and the Polands' property divides, Mr. and Mrs. Poland offered for rent or lease 26 or more mobile home lots as residences, both before and after Mrs. Ritchie's death. The following tenants' monthly rent increased by the amounts indicated on December 1, 1986:

   Name of Tenant	Lot No.	Amount	of Increase
   Ila Story	1		$30.00
   Rosa Robinson	2		30.00
   Rick Tahey	4/5		55.00
   Virginia Dawson	7		5.00
   Isabe Sutcliffe	8		30.00
   Deborah Blackwood	9		5.00
   B. E. Turner	12		30.00
   Ingrid C. Fegan	14		30.00
   Helen Marin	17		40.00
   Alden Waterman	18		30.00
   Ethel Dunsmoor	19		30.00
   Martina O'Hare	20		30.00
   Zora Hyde	21		30.00
   William Vollkmer	22		30.00
   Richard Rasmussen	23		5.00
   Marjorie Barnes	24		30.00
   James Mahoney	26		30.00
   Roger Zucco	27		5.00
   George Bunting	29		55.00
   Robert Grabel	30		55.00
   David Escopie	31		30.00
   Catherine Stevens	32		30.00
   Richard Law	33		30.00
   Maxwell Page	35		30.00
   Helen Hines	36		5.00
   Norman Peterson	37		5.00
   Hernandez/Johns	38/39		25.00
   Lester Rogers	40		30.00
   Rita Boyer	41		30.00
   Thelma Thornton	42		30.00
   Maxwell Page	43		30.00
   Kenneth Driscoll	44		55.00
   Edna Praine	45		55.00
   Cassus Powell	100		30.00
   David Koehler	101		5.00
   Jerry Welker	102		62.50
   John Embleton	103		5.00
   Corrine Beach	104		55.00
   Clyde Wiley	105		30.00
   Candie Blasman	106		30.00
   Harry Wilson	107		30.00
   Stanley Dolka	A		30.00
   Goffery Riser	D		5.00
   William Page	E		30.00
   Pat Pattillo	F		40.00
   Roy Pike	G		30.00
   Frieda Suomella	H		5.00
   Charlotte Reid	I		30.00
   Bernard Hakes	J		30.00
   Herbert Davis	K		30.00
   Lee Haley	L		30.00
   Heide Alexander	M		30.00
   Joseph Moore	N		5.00
   Mary Lo Wampler	O		40.00
   Ernest Grizzard	P		30.00
   Bertha Martin	Q		40.00

   Cathy Lumbar	R	65.00
   Ruth Pooley	S	5.00
   Norma Baker	U	5.00
   H. W. DeMoss	V	30.00
   Arthur Pitman	W	40.00
   Jesse Wagnor	X	5.00
   James Hicks	Y	5.00
   Robert Wilder	00	20.00

   
   

   At hearing, Mr. Poland testified to a total of 85 lots of which "seventy-three are singlewide [including some devoted to overnighters], and the balance would be overnighters or doublewides." T.88. According to DBR records, respondents reported 87 lots when applying for approval for their prospectus. Petitioner's Exhibit No. 3, pp. 000017, 000021.

   
   

   Past Practice

   
   

6. Historically, the park had been run on the basis of oral agreements, creating month-to-month tenancies. Such records as existed when the Polands acquired ownership of the mobile home park reflected 13 different amounts charged different tenants for equivalent mobile home lots. Apparently Mrs. Ritchie had played favorites. A longtime resident testified that the rental rate structure was "kind of on the buddy/buddy system." T. 68.

   
   

7. From time to time, and on no more than a month's notice, Mrs. Ritchie had raised rents. Robert L. Davis, who moved to the trailer park in October of 1976, originally paid $50.00 a month. On September 1, 1983, monthly rent increased from $50.00 to $75.00; and on December 1, 1983, from $75.00 to

   $100.00. One longtime resident, Katherine Stevens, "imagined" (T.127) that Mrs. Ritchie had asked for rent increases to defray utility rate hikes, but written notices of increases offered no explanation. T.48-49. Like Mr. Davis and Ms.

   Stevens, Robert Wilder, who seeks no money in this proceeding (T.75), was a tenant at the mobile home park before June 4, 1984.

   
   

8. Until May of 1986, nobody ever received a prospectus. On June 10, 1983, however, rules and regulations were drawn up which provided in paragraph 20:

   
   

   Management specifically reserves the right to increase rental rates, fees, charges or assessments imposed on resident either by amendment or by addition to these rules, provided thirty (30) day written notice is given.

   
   

   Rosa Ritchie herself gave Ms. Stevens and other tenants a copy of the rules and regulations which first set out in writing her practice of giving thirty days' notice before raising rents.

   Regulatory Approval

   
   

9. Only after the Polands had acquired the property, and announced their intention to raise rents, did Mr. Poland learn of the requirement that a prospectus be furnished tenants. On September 9, 1986, he wrote Mr. John D. Floyd of DBR as follows:

   
   

   With regards to the prospectus of Villa Rosa, please find enclosed a copy of the Rules and Regulations which are provided each tenant prior to renewing or extending `an existing rental agreement and prior to entering into a new rental agreement. This document was previously submitted to your Division and I assume that it remains acceptable.

   
   

   Petitioner's Exhibit No. 3. In response, Senior Clerk Pamela T. Parker of the Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, wrote Mr. Poland on September 19, 1986, listing various "deficiencies for form." With regard to the prospectus, she wrote, among other things:

   
   

   The prospectus fee was not in accordance with Section 723.011(1)(d), Florida Statutes.

   Please submit a check for the appropriate amount.

   
   

   Petitioner's Exhibit No. 3. Having received this reply, Mr. Poland wrote Ms. Parker on September 25, 1986, as follows:

   
   

   Enclosed please find the Mobile Home Prospectus, Filing Statement and Filing Fee.

   
   

   Currently, there are no rental agreements in writing for the mobile home park. All agreements are oral, to the best of my knowledge.

   
   

   Petitioner's Exhibit No. 3, p. 000018. Petitioner received Mr. Poland's letter of September 25, 1986, the following day. The letter is marked "RECEIVED FISCAL SEP 26 1986." DBR's Division of Florida Land Sales, Condominiums and Mobile Homes did not "process" the $150 check which accompanied the letter, until October 15, 1986, however, when somebody marked the letter "RECEIVED FISCAL OCT

   15 1986" and crossed through the earlier received stamp.

   
   

10. Another eight days passed before a form letter from the Division went out to Mr. Poland advising him of the Division's intention to examine the contents of his filing, to ensure its adequacy, and promising him he would "be notified as to the results of this examination within" forty five days of October 15, 1986. On November 20, 1986, more than 45 days after the prospectus had been received, the Division sent another letter to Mr. Poland, signed by Bridget St. Clair, apprising Mr. Poland of a number of deficiencies in the prospectus.

    
    

11. On December 2, 1986, Mr. Poland made a second submission. In a cover letter addressed to Ms. St. Clair, he wrote:

    During our recent telephone conversation, you indicated that a prospectus is not necessary unless a rate increase Is anticipated. Since I have no intention of raising rates for the next year, I do question why this prospectus is necessary.

    
    

    Your thoughts on this point would be greatly appreciated.

    
    

    Petitioner's Exhibit No. 3, p. 000013. In May of 1987, after several further emendations, Mr. Poland was told over the telephone that the prospectus submitted in December passed muster, as revised.

    
    

12. Having received oral approval, he asked an employee, Jack N. Justice, to deliver prospectuses. Mr. Justice delivered by hand to every resident who was home a copy of the prospectus and, whenever somebody was not at home, put a copy in the mail box. (Before these deliveries, the planned increase in rent had taken effect, as of December 1 of the previous year.) Petitioner gave written notice of approving the prospectus by letter dated May 27, 1987.

    
    

13. The approved prospectus apprised tenants of the landlord's intention to pass on "ad valorem property taxes or utilities charges ... during the term of the lot rental agreement ... [p]rorated equally among all lots," Petitioner's Exhibit No. 1, p. 46, and warned tenants that an increase in water, sewer or garbage collection charges or property taxes "may result in an increase in the home owner's lot rental amount." Id.

    
    

    Rent Raised Again

    
    

14. On June 25, 1987, Mr. Poland sent out a second notice proposing another increase of rent, to take effect on October 1, 1987, "due to the increase in real estate taxes and for capital improvements, including the water pressure problems complained of." Petitioner's Exhibit No. 4. The increase amounted to $15.00 per month for each single mobile home on a single lot, and to

    $20.00 for double wide mobile homes (or other mobile homes on double lots.) Id.

    
    

15. On April 7, 1987, the City of Jacksonville Beach increased water and sewer rates. Mr. Poland's claim that the increase resulted in an average additional charge of approximately $14.12 per month per lot went unrebutted. A garbage collection container had to be added at $100 ($1.15 per lot) a month;

    $330 was expended to install a new water meter. Ad valorem taxes increased between 1985 and 1986, but were not shown to have risen at any time after December 1, 1986.

    
    

16. The following tenants paid increased rent in the following monthly increments, effective October 1, 1987:

    
    

    Name of Tenant	Lot No.	Amount of Increase
    *Ila Story	1	$15.00
    Mark Robson	2	15.00
    *Rick Tahey	4/5	25.00
    Seahorn/Gulledge	7	15.00
    *Isabe Sutcliffe	8	15.00
    William R. Hernandez	9	15.00
    Bertie Willis	10/11	25.00
    *B. E. Turner	12	15.00

    *Ingrid C. Fegan	14	15.00
    Ray Brozoski	16	5.00
    *Helen Marin	17	15.00
    *Alden Waterman	18	15.00
    *Ethel Dunsmoor	19	15.00
    *Martina O'Hare	20	15.00
    *Zora Hyde	21	15.00
    *William Vollkmer	22	15.00
    William E. Wolfe	23	15.00
    H. D. Seahorn	25	15.00
    *James Mahoney	26	15.00
    *Roger Zucco	27	15.00
    Roland Page	28	15.00
    *George Bunting	29	15.00
    *Robert Grabel	30	15.00
    Joseph Mickey	31	5.00
    *Catherine Stevens	32	15.00
    *Richard Law	33	15.00
    Edna Barrett	34	15.00
    *Maxwell Page	35	15.00
    *Helen Hines	36	15.00
    Christ. Hooley	37	15.00
    *Hernandez/Johns	38/39	20.00
    Arminta Rogers	40	15.00
    *Rita Boyer	41	15.00
    *Thelma Thornton	42	15.00
    *Maxwell Page	43	15.00
    *Kenneth Driscoll	44	15.00
    *Edna Praine	45	15.00
    James Wilson	46	15.00
    Nancy C. Lane	100	15.00
    *David Koehler	101	15.00
    *Jerry Welker	102	15.00
    *John Embleton	103	15.00
    *Corrine Beach	104	20.00
    *Clyde Wiley	105	15.00
    *Candie Blasman	106	15.00
    *Harry Wilson	107	20.00
    *Stanley Dolka	A	15.00
    Tom Williams	C	15.00
    *Goffery Riser	D	15.00
    *William Page	E	15.00
    *Pat Pattillo	F	15.00
    *Roy Pike	G	15.00
    *Frieda Suomella	H	15.00
    *Charlotte Reid	I	15.00
    Michelle Holt	J	15.00
    *Herbert Davis	K	15.00
    *Lee Haley	L	15.00
    *Heide Alexander	M	15.00
    Joseph Morris	N	15.00
    *Mary Lo Wampler	O	15.00
    *Ernest Grizzard	P	15.00
    Juanita Holliman	Q	15.00
    *Kathalee Lombar	R	15.00
    *Ruth Pooley	S	15.00
    *Norma Baker	U	15.00

    *H. W. DeMoss	V	15.00
    *Arthur Pitman	W	15.00
    *Jesse Wagnor	X	15.00
    *James Hicks	Y	15.00
    W. Crowe	Z	15.00
    *Robert Wilder	00	20.00

    
    

    Asterisks indicate those who were tenants on December 1, 1986. No lot rental agreements were in writing.

    
    

    CONCLUSIONS OF LAW

    
    

17. Since DBR referred respondents' hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1987), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1987).

    
    

18. In appropriate circumstances, DBR's Division of Florida Land Sales,

    Condominiums, and Mobile Homes is authorized to

    
    

    (b) ... issue an order requiring the mobile home park owner ... to take ... affirmative action ... [which] will carry out the purposes of ... Chapter [723 and/or] ...

    
    

    (d) 1. ... impose a civil penalty against any mobile home park owner ... for any violation of ... chapter [723, in which event a] ... penalty may be imposed on the basis of each separate violation ... and

    for each day of continuing violation, but in no event may the penalty for each separate violation or for each day of continuing violation exceed $5,000.

    
    

    Section 723.006(5), Florida Statutes (1987). Here petitioner alleges that respondents have violated Sections 723.031(5) and (7), Florida Statutes (1986 Supp.).

    
    

19. Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987). See Addington vs. Texas, 441

    U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuer- Busch, Inc. vs. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation, and presumably lesser penalties, as well, only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.

    I.

    
    

20. Initially, petitioner alleges, respondents ran afoul of the Florida Mobile Home Act when they raised rents on December 1, 1986, without having distributed approved prospectuses beforehand. The law provides:

    
    

    No park owner may increase the lot rental amount until an approved prospectus has been delivered if one is required.

    
    

    Section 723.031(7), Florida Statutes (1987). Respondents were required to deliver an approved prospectus to each tenant before raising rents, because respondents' mobile home park contains "26 or more lots." Section 723.011(1)(a), Florida Statutes (1987).

    
    

21. After announcing an increase in rents, respondents sought approval for a prospectus. Their initial submission, on September 6, 1986, lacked the requisite filing fee and did not, on that account, constitute a proper filing. Rule 7D-30.03(1)(c), Florida Administrative Code (1985). As of September 26, 1986, however, respondents had filed both the necessary filing fee and a complete application for approval of a prospectus. Because this application was not acted on within 45 days, the statute required that "the prospectus ... be deemed to be approved," Section 723.011(1)(b), Florida Statutes (1987), despite its apparently conceded deficiencies.

    
    

22. Respondents raised the rent on December 1, 1986, before distributing prospectuses. Contending DBR is responsible for their failure to distribute the deficient, but technically approved, prospectuses, respondents argue that DBR violated a duty to deal fairly with them, citing Section 723.021, Florida Statutes (1987), and assert that DBR should be estopped from imposing civil penalties, or requiring the return of any rent money collected.

    
    

23. Estoppel is available against the state or its agencies "only in exceptional circumstances," Tri-State Systems, Inc. vs. Department of Transportation, 500 So.2d 212, 215 (Fla. 1st DCA 1986), which must include these elements:

    
    

    1. A representation as to a material fact that is contrary to a later-asserted position; (2) reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.

       
       

       500 So.2d at 215-216; T & L Management, Inc. vs. Department of Transportation,

       497 So.2d 685 (Fla. 1st DCA 1986). What consequences flow from the timing of respondents' application is a question of law, not fact.

       
       

24. The only material fact as to which respondents were misinformed was the date on which the application became complete. The proof does not bear out respondents' claim that they made a detrimental change in position in reliance on erroneous advice about the filing date. In any case, no tenant was responsible for this misinformation.

    
    

25. Raising the rent was a detriment to the tenants, not to the landlords. On the other hand, as a matter of law, the prospectus respondents originally

    submitted must be deemed to have been approved before the 1986 rental increases took effect; and failure to distribute copies of that prospectus has not worked to respondents' advantage. But DBR did not forbid distribution of any prospectus, nor induce respondents to raise rents before distribution. Indeed, DBR warned respondents against jumping the gun.

    
    

26. Mr. Poland's letter to Ms. St. Clair of December 2, 1986, makes clear that he was unaware even then that he should have distributed prospectuses before raising rents the day before. Before rents were raised, he did not appreciate the significance of the date on which the application was filed. For this reason, too, the record will not support the conclusion that the Polands acted to their detriment because they were misapprised of the correct filing date.

    
    

27. The evidence not only failed to show that respondents relied on DBR's advice about when the application became complete, it also failed to show that they would have been justified in doing so, if they had. Respondents knew what they mailed when. Mutual mistake of fact does not give rise to estoppel.

    Nelson Richard Advertising vs. Department of Transportation, 513 So.2d 181 (Fla. 1st DCA 1987).

    
    

28. Since DBR has consistently maintained that respondents' application was incomplete before October 15, 1986, it has made no "representation as to a material fact that is contrary to a later-asserted position." 500 So.2d at 215. This is not a case where an agency seeks to revoke authority or approval originally granted, or to take action inconsistent in any way with any prior action. Cf. Kuge vs. State Department of Administration, Division of Retirement, 449 So.2d 389 (Fla. 3rd DCA 1984).

    
    

    II.

    
    

29. Petitioner also contends that respondents violated the Florida Mobile Home Act when they raised rents effective October 1, 1987, allegedly in contravention of the following provision:

    
    

    (5) The rental agreement shall contain the lot rental amount and services included. An increase in lot rental amount upon expiration of the term of the lot rental agreement shall be in accordance with s. 723.037 or s. 723.059(4), whichever is applicable, provided that, pursuant to s. 723.059(4), the amount of the lot rental increase is disclosed and agreed to by the purchaser, in writing. An increase in lot rental amount shall not be arbitrary or discriminatory between similarly situated tenants in the park. No lot rental amount may be increased during the term of the lot rental agreement, except:

    
    

    (c) That no charge may be collected that results in payment of money for sums previously collected as part of the lot rental amount. The provisions hereof notwithstanding, the mobile home park owner may pass on, at any time during the term of the lot rental agreement, ad valorem property

    taxes and utility charges, or increases of either, provided that the ad valorem property taxes and utility charges are not otherwise being collected in the remainder of the lot rental amount and provided further that the passing on of such ad valorem taxes or utility charges, or increases of either, was disclosed prior to tenancy, was being passed on as a matter of custom between the mobile home park owner and the mobile home owner, or such passing on was authorized by law. Such ad valorem taxes and utility charges shall be a part of the lot rental amount as defined by this chapter.

    
    

    Section 723.031(5), Florida Statutes (1987). (Emphasis supplied.) Respondents maintain that petitioner has failed to carry its burden to prove that the October 1, 1987, increases occurred "during the term of the lot rental agreement," Section 723.031(5), Florida Statutes (1987), of any tenant other than Ms. Stevens and Messrs. Davis and Wilder.

    
    

30. Respondents concede that October 1, 1987, fell during the terms of their lot rental agreements with these three tenants, all of whom were living in mobile homes at Villa Rosa when the Florida Mobile Home Act took effect on June 4, 1984. Respondents' proposed recommended order, pages 21 - 22. As to the other tenants subject to the October 1, 1987 increases, evidence respecting the length of their tenure reveals only whether they were also tenants ten months earlier on December 1, 1986.

    
    

31. The October 1, 1987 increases were shown to have occurred during the terms of lot agreements to which those tenants whose tenancies began later than December 1, 1986, were parties, by virtue of Section 723.031(4), Florida Statutes (1987), which provides:

    
    

    No rental agreement shall be offered by a park owner for a term of less than 1 year, and if there is no written rental agreement, no rental term shall be less than one year from the date of initial occupancy...

    
    

    Because none of the tenants' rental agreements were written, the terms of any agreements entered into after October 1, 1986, did not expire before October 2, 1987. The statute imputes to tenants who moved in after December 1, 1986, agreements that fall in this category.

    
    

32. With respect to those tenants whose tenancies began before December 1, 1986 (accept Ms. Stevens and Messrs. Davis and Wilder) respondents contend that, as far as the record discloses, they may all have initially occupied their lots on the first day of October in one of the years following enactment of the Florida Mobile Home Act. Although such a coincidence seems highly unlikely, DBR had the burden to prove clearly and convincingly that it did not in fact occur. Because petitioner did not meet this burden, it established only that the October 1, 1987 increases fell during the terms of lot rental agreements entered into by Ms. Stevens, Messrs. Davis and Wilder and those tenants who initially occupied lots after December 1, 1986.

33. The evidence gives no reason to believe that tenants who moved in, after the date in May of 1987 on which respondents learned that DBR had approved the prospectus, did not receive copies. Again, although it seems implausible that no tenants moving in after December 1, 1986, should have moved in before the prospectus was approved in May, petitioner failed to prove that any tenancy began between December and May or, without the tenant's being furnished a prospectus beforehand, at any time after December 1, 1986.

    
    

34. A more likely possibility (that has the same legal effect) is that tenants moving in after December 1, 1986, but before DBR told respondents the prospectus was approved, elected not to cancel their rental agreements within 15 days, once they received copies of the prospectus. See Section 723.014(2), Florida Statutes (1987). Respondents' employee delivered copies to every mobile home in the park in May (including those in which Ms. Stevens and Messrs. Davis and Wilder lived.)

    
    

35. Although the evidence did not establish that increased utility charges had previously been passed on "as a matter of custom," the prospectus gave notice of respondents' intention to pass on such charges thenceforward. Disregarding (as a capital improvement) the $330.00 expended on a new water meter, increases in water, sewer and garbage collection charges of $15.27 per month, incurred during the terms of lot rental agreements entered into on or after December 2, 1986, totalled more than the $15.00 increase respondents exacted for almost all of the lots, but less than the increases charged to Connie Beach, Harry Wilson, and Robert Wilder. (Other tenants whose rents went up more than $15.00 rented more than one lot.)

    
    

36. Petitioner did not prove that any portion of the increase in utility charges passed on was "otherwise being collected in the remainder of the lot rental amount." Section 723.031(5), Florida Statutes (1987). Since Ms. Beach and Mr. Wilson initially occupied their lots before December 1, 1986, petitioner proved a violation, if at all, only with regard to the $20.00 increase charged Mr. Wilder, whose double wide trailer stands on a single lot. Respondents contend that increased charges they incurred before raising the rent on October 1, 1987, would justify even a $20.00 increase. Because Mr. Wilder seeks no refund, however, it is appropriate to pretermit the question how, if at all, mobile home park owners should be allowed to pass on to mobile home owners increased utility charges already incurred in months gone by.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

1. That petitioner reprimand respondents for raising rents before distributing prospectuses to their tenants.

   
   

2. That petitioner require respondents to return the amounts by which rents collected for December of 1986 and January, February, March and April of 1987 exceeded rents charged the same tenants for November of 1986.

DONE AND ENTERED this 1st day of December, 1989, in Tallahassee, Leon County, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5983

Petitioner's proposed findings of fact Nos. 1 through 4 recite procedural matters only.

Petitioner's proposed findings of fact Nos. 5 through 11, 13, 15 through 19, and 21 through 25 have been adopted, in substance, insofar as immaterial.

With respect to petitioner's proposed finding of fact No. 12, ad valorem taxes may also have contributed to the 1986 increase.

Petitioner's proposed finding of fact No. 14 is rejected.

With respect to petitioner's proposed finding of fact No. 20, Mrs. Ritchie distributed something she called rules and regulations.

With respect to petitioner's proposed finding of fact No. 26, the charges themselves were included but not increases.

Respondents' proposed findings of fact Nos. 1 through 4, 6, 7, 10 through

12, 14 through 17, 21, 22, 23, 25, and 26 have been estopped, in substance insofar as material.

Respondents' proposed finding of fact No. 5 in immaterial.

With respect to respondents' proposed findings of fact Nos. 8 and 9, the change in garbage collection charges, except for addition of a dumpster, occurred before respondents acquired the property; and the tax increase was

$5,000.00 not $10,000.00.

With respect to respondents' proposed finding of fact

No. 13, respondents' selective (DBR advised them not to raise rents before distributing prospectuses) reliance on DBR for legal advice, whenever it may have ended, does not give rise to an estoppel.

With respect to respondents' proposed findings of fact Nos. 18 and 19, utility rate charges are only one variable; usage was not proven.

With respect to respondents' proposed finding of fact No. 20, Leroy Kierstaedt and Haze Studivant were apparently overnighters.

With respect to respondents' proposed finding of fact No. 24, Ms. Stevens said she "imagined" this was so.

Respondents' proposed finding of fact No. 27 was not established by the evidence.

COPIES FURNISHED:

Reynold Meyer

Assistant General Counsel Department of Business Regulation Division of Florida Land Sales, Condominiums and Mobile Homes

725 South Bronough Street Tallahassee, Florida 32399-1070

Jeffrey C. Regan, Esquire 1300 Gulf Life Drive Jacksonville, Florida 32207

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION

DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES 725 SOUTH BRONOUGH STREET - JOHNS BUILDING

TALLAHASSEE, FLORIDA 32399-1030

DEPARTMENT OF BUSINESS REGULATION, DIVISION OF FLORIDA LAND SALES CONDOMINIUMS AND MOBILE HOMES,

Petitioner,

v.

DOCKET NO. MH 88262

ROBERT E. POLAND AND JACQUELINE DOAH CASE NO. 88-5983 POLAND,

Respondents.

/

FINAL ORDER

This Order is entered by the Director of the Division of Florida Land Sales, Condominiums and Mobile Homes, Department of Business Regulation, State of Florida, pursuant to Section 120.59, Florida Statutes, following a review of the record in this case and the Recommended Order entered by Robert T. Benton, 11, Hearing Officer, Division of Administrative Hearings on May 10, 1989.

The findings of fact as determined by the Hearing Officer in the Recommended Order are hereby adopted in this Final Order. The conclusions of law contained in the Recommended Order, to the extent of any consistency with the conclusions of law set forth herein, are accepted, as is the recommended penalty.

APPEARANCES

For Petitioner: Reynold Meyer, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Jeffrey C. Regan, Esquire

Rogers, Towers, Bailey, Jones and Gay 1300 Gulf Life Drive

Jacksonville, Florida 32207 STATEMENT OF THE ISSUES

Whether, when Respondents increased the rent for certain mobile home lots effective December 1, 1986, they violated Section 732.031(7), Florida Statutes (1987)? Whether Respondents violated Section 732.031(5), Florida Statutes (1987), when they raised the rent for specified mobile home lots effective October 1, 1987?

PRELIMINARY STATEMENT

By notice to show cause dated October 26, 1988, petitioner Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (DBR) alleged that the Respondents, d/b/a Villa Rosa Mobile Home Park, "increased the lot rental amount on October 1, 1987, of [certain] mobile home owners during the term of the lot rental agreement in violation of Section 723.031(5), Florida Statutes"; that Respondents increased "the lot rental amount" for various mobile home owners on October 1, 1986, on November 1, 1986 and on December 1, 1986, "without delivering an approved prospectus, which is a separate violation of Section 732.031(7), Florida Statutes for each home owner whose lot rental amount was increased"; and that Respondents failed to deliver approved prospectuses to Pat Church in November of 1986, Shirley Laninger in May of 1987, and Christ Hooley in December of 1986, "upon execution of rental agreements or prior to occupancy in the mobile home park in violation of Section 723.011(2), Florida Statutes."

When Respondents requested formal administrative proceedings, DBR referred the matter to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1987). At the beginning of the formal hearing, counsel for DBR abandoned the allegations regarding Pat Church, Shirley Laninger and Christ Hooley. Before the hearing closed, DBR also abandoned the allegations pertaining to October 1 and November 1, 1986.

FINDINGS OF FACT

1. After a realtor told Robert Edward Poland that the Flagship Bank was foreclosing on Villa Rosa Mobile Home Park in Jacksonville Beach, Mr. Poland and his wife offered to purchase the property. The incompetency of the owner, Mrs. Ritchie, then in her eighties, together with ensuing legal proceedings, complicated negotiations. But on August 21, 1986, Robert Edward Poland and Jacqueline Poland became joint owners of Villa Rosa Mobile Home Park.

   
   

2. A portion of the park they acquired in fee simple, but another portion (now known as Beach Boulevard Trailer Park) they acquired only as a life estate pur autre vie. On the death of Mrs. Ritchie in mid-October 1987, the life estate was extinguished, and that portion has become the property of Mrs.

   Ritchie's daughter, Elizabeth-Drey, and possibly the daughter's husband, Richard Drey. Only beginning with rent for February of 1989, however, have the Dreys begun receiving income from the trailer park.

   
   

   Rent Raised

   
   

3. On August 21, 1986, the day they acquired ownership, the Polands gave tenants written notice of their intention "to adjust rent effective December 1, 1986" to $130 a month for a single mobile home lot and to $155 monthly for a double wide mobile home on a single lot. This proposed rental increase did not pertain to lots 3, 6, 13, 15, 47, 48, 49, 50, 51, 52, 53, 54, 55, or 007, which were rented only to over-nighters.

   
   

4. Perhaps misunderstanding the notice, Tom Williams on Lot C began paying a higher amount on October 1, 1986, before the increase took effect. The following month, Deborah Blackwood, J. E. Turner and James Mahoney also paid the increased rent prematurely. In their cases, and in the case of Mr. Williams, the Polands accepted the money but credited the surplus to the tenant.

   
   

5. Not counting the lot which the boundary between the Drey property and the Polands' property divides, Mr. and Mrs. Poland offered for rent or lease 26 or more mobile home lots as residences, both before and after Mrs. Ritchie's death. The following tenants' monthly rent increased by the amounts indicated on December 1, 1986:

   
   

   Name of Tenant Lot No. Amount of Increase

   
   

   Ila Story	1	$30.00
   Rosa Robinson	2	30.00
   Rick Tahey	4/5	55.00
   Virginia Dawson	7	5.00
   Isabe Sutcliffe	8	30.00
   Deborah Blackwood	9	5.00
   B.E. Turner	12	30.00
   Ingrid C. Fegan	14	30.00
   Helen Marin	17	40.00
   Alden Waterman	18	30.00
   Martina O'Hare	20	30.00
   Zora Hyde	21	30.00
   William Vollkmer	22	30.00
   Richard Rasmussen	23	5.00
   Marjorie Barnes	24	30.00
   James Mahoney	26	30.00
   Roger Zucco	27	5.00
   George Bunting	29	55.00
   Robert Grabel	30	55.00
   David Escopie	31	30.00
   Catherine Stevens	32	30.00
   Richard Law	33	30.00
   Maxwell Page	35	30.00
   Helen Hines	36	5.00
   Norman Peterson	37	5.00
   Hernandez/Johns	38/39	25.00
   Lester Rogers	40	30.00
   Rita Boyer	41	30.00
   Thelma Thornton	42	30.00
   Maxwell Page	43	30.00

   Kenneth Driscoll	44	55.00
   Edna Praine	45	55.00
   Cassus Powell	100	30.00
   David Koehler	101	5.00
   Jerry Welker	102	62.50
   John Embleton	103	5.00
   Corrine Beach	104	55.00
   Clyde Wiley	105	30.00
   Candie Blasman	106	30.00
   Harry Wilson	107	30.00
   Stanley Dolka	A	30.00
   Geoffery Raiser	D	5.00
   William Page	E	30.00
   Pat Pattillo	F	40.00
   Roy Pike	G	30.00
   Frieda Suomela	H	5.00
   Charlotte Reid	I	30.00
   Bernard Hakes	J	30.00
   Herbert Davis	K	30.00
   Lee Haley	L	30.00
   Heide Alexander	M	30.00
   Joseph Morse	N	5.00
   Mary Lo Wampler	O	40.00
   Ernest Grizzard	P	30.00
   Bertha Martin	Q	40.00
   Kathalee Lombar	R	65.00
   Ruth Pooley	S	5.00
   Norma Baker	U	5.00
   H.W. DeMoss	V	30.00
   Arthur Pittman	W	40.00
   Jesse Wagnor	X	5.00
   James Hicks	Y	5.00
   Robert Wilder	00	20.00

   
   

   At hearing, Mr. Poland testified to a total of 85 lots of which "seventy-three are singlewide [including some devoted to overnighters], and the balance would be overnighters or doublewides." T.88. According to DBR records, Respondents reported 87 lots when applying for approval for their prospectus. Petitioner's Exhibit NO. 3, pp. 000017, 000021.

   
   

   Past Practice

   
   

6. Historically, the park had been run on the basis of oral agreements, creating month-to-month tenancies. Such records as existed when the Polands acquired ownership of the mobile home park reflected 13 different amounts charged different tenants for equivalent mobile home lots. Apparently Mrs. Ritchie had played favorites. A longtime resident testified that the rental rate structure was "kind of on the buddy/buddy system." T.68.

   
   

7. From time to time, and on no more than a month's notice, Mrs. Ritchie had raised rents. Robert L. Davis, who moved to the trailer park on October of 1976, originally paid $50.00 a month. On September 1, 1983, monthly rent increased from $50.00 to $75.00; and on December 1, 1983, from $75.00 to

   $100.00. One longtime resident, Katherine Stevens, "imagined" (T.127) that Mrs. Ritchie had asked for rent increases to defray utility rate hikes, but written notices of increases offered no explanation. T.48-49. Like Mr. Davis and Ms.

   Stevens, Robert Wilder, who seeks no money in this proceeding (T.75), was a tenant at the mobile home park before June 4, 1984.

   
   

8. Until May of 1986, nobody ever received a prospectus. On June 10, 1983, however, rules and regulations were drawn up which provided in paragraph 20:

   
   

   Management specifically reserves the right to increase rental rates, fees, charges or assessments imposed on resident either by amendment or by addition to these rules, provided thirty (30) day written notice is given.

   
   

   Rosa Ritchie herself gave Ms. Stevens and other tenants a copy of the rules and regulations which first set out in writing her practice of giving thirty days' notice before raising rents.

   
   

   Regulatory Approval

   
   

9. Only after the Polands had acquired the property, and announced their intention to raise rents, did Mr. Poland learn of the requirement that a prospectus be furnished tenants. On September 9, 1986, he wrote Mr. John D. Floyd of DBR as follows:

   
   

   With regards to the prospectus of Villa Rosa, please find enclosed a copy of the Rules and Regulations which are provided each tenant prior to renewing or extending an existing rental agreement and prior to entering into a new rental agreement. This document was previously submitted to your Division and I assume that it remains acceptable.

   
   

   Petitioner's Exhibit No. 3. In response, Senior Clerk Pamela T. Parker of the Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, wrote Mr. Poland on September 19, 1986, listing various "deficiencies for form." With regard to the prospectus, she wrote, among other things:

   
   

   The prospectus fee was not in accordance with Section 723.011(1)(d), Florida Statutes. Please submit a check for the appropriate amount.

   
   

   Petitioner's Exhibit No. 3. Having received this reply, Mr. Poland wrote Ms. Parker on September 25, 1986, as follows:

   
   

   Enclosed please find the Mobile Home Prospectus, Filing Statement and Filing Fee.

   
   

   Currently, there are no rental agreements in writing for the mobile home park. All agreements are oral, to the best of my knowledge.

   
   

   Petitioner's Exhibit No. 3, P. 000018. Petitioner received Mr. Poland's letter of September 25, 1986, the following day. The letter is marked "RECEIVED FISCAL SEP 26 1986." DBR's Division of Florida Land Sales, Condominiums and Mobile Homes did not "process" the $150 check which accompanied the letter, until

   October 15, 1986, however, when somebody marked the letter "RECEIVED FISCAL OCT

   15 1986" and crossed through the earlier received stamp.

   
   

10. Another eight days passed before a form letter from the Division went out to Mr. Poland advising him of the Division's intention to examine the contents of his filing, to ensure its adequacy, and promising him he would "be notified as to the results of this examination within" forty five days of October 15, 1986. On November 20, 1986, more than 45 days after the prospectus had been received, the Division sent another letter to Mr. Poland, signed by Bridget St. Clair, apprising Mr. Poland of a number of deficiencies in the prospectus.

    
    

11. On December 2, 1986, Mr. Poland made a second submission. In a cover letter addressed to Ms. St. Clair, he wrote:

    
    

    During our recent telephone conversation, you indicated that a prospectus is not necessary unless a rate increase is anticipated. Since I have no intention of raising rates for the next year, I do question why this prospectus is necessary.

    
    

    Your thoughts on this point would be greatly appreciated.

    
    

    Petitioner's Exhibit No. 3, P. 000013. In May of 1987, after several further emendations, Mr. Poland was told over the telephone that the prospectus submitted in December passed muster, as revised.

    
    

12. Having received oral approval, he asked an employee, Jack N. Justice, to deliver prospectuses. Mr. Justice delivered by hand to every resident who was home a copy of the prospectus and, whenever somebody was not at home, put a copy in the mail box. (Before theses deliveries, the planned increase in rent had taken effect, as of December 1 of the previous year.) Petitioner gave written notice of approving the prospectus by letter dated May 27, 1987.

    
    

13. The approved prospectus apprised tenants of the landlord's intention to pass on "ad valorem property taxes or utilities charges . . . during the term of the lot rental agreement . . . [p]rotated equally among all lots," Petitioner's Exhibit No. 1, P. 46, and warned tenants that an increase in water, sewer or garbage collection charges or property taxes "may result in an increase in the home owner's lot rental amount." Id.

    
    

    Rent Raised Again

    
    

14. On June 25, 1987, Mr. Poland sent out a second notice proposing another increase of rent, to take effect on October 1, 1987, "due to the increase in real estate taxes and for capital improvements, including the water pressure problems complained of." Petitioner's Exhibit No. 4. The increase amounted to $15.00 per month for each single mobile home on a single lot, and to

    $20.00 for double wide mobile homes (or other mobile homes on double lots.) Id.

    
    

15. On April 7, 1987, the City of Jacksonville Beach increased water and sewer rates. Mr. Poland's claim that the increase resulted in an average additional charge of approximately $14.12 per month per lot went unrebutted. A garbage collection container had to be added at $100 ($1.15 per lot) a month;

    $330 was expended to install a new water meter. Ad valorem taxes increased

    between 1985 and 1986, but were not shown to have risen at any time after December 1, 1986.

    
    

16. The following tenants paid increased rent in the following monthly increments, effective October 1, 1987:

Name of Tenant Lot No. Amount of Increase

Asterisks indicate those who were tenants on December 1, 1986. No lot rental agreements were in writing.

CONCLUSIONS OF LAW

Since DBR referred Respondents' hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1987), "the Division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1987).

In appropriate circumstances, DBR's Division of Florida Land Sales,

Condominiums and Mobile Homes is authorized to

(b) . . . issue an order requiring the mobile home park owner . . . to take . . . affirmative action as in the judgment of the Division . . . will carry out the purposes of . . . Chapter [723 and/or] . . .

(d)1. . . . impose a civil penalty against any mobile home park owner . . . for any violation of .

. . chapter [723, in which event a] . . . penalty may be imposed on the basis of each separate violation . . . and for each day of continuing violation, but in no event may the penalty for each separate violation or for each day of continuing violation exceed $5,000.

Section 723.006(5), Florida Statutes (1987). Here petitioner alleges that respondents have violated Sections 723.031(5) and (7), Florida Statutes (1986 Supp.)

Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly.

Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987). See Addington vs. Texas, 441

U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA ;1986); Anheuser-Busch, Inc. vs. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 8846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation, and presumably lesser penalties, as well, only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable &statutes and rules create a clear duty, which the evidence shows has been breached.

I.

Initially, petitioner alleges, respondents ran afoul of the Florida Mobile Home Act when they raised rents on December 1, 1986, without having distributed approved prospectuses beforehand. The law provides:

No park owner may increase the lot rental amount until an approved prospectus has been delivered if one is required.

Section 723.031(7), Florida Statutes (1987). Respondents were required to deliver an approved prospectus to each tenant before raising rents, because respondents' mobile home park contains "26 or more lots." Section 723.011(1)(a), Florida Statutes (1987). After announcing an increase in rents, respondents sought approval for a prospectus. Their initial submission, on September 6, 1986, lacked the requisite filing fee and did not, on that account, constitute a proper filing. Rule 7D-30.03(1)(c), Florida Administrative Code (1985). As of September 26, 1986, however, respondents had filed both the necessary filing fee and a complete application for approval of a prospectus. Because this application was not acted on within 45 days, the statute required that "the prospectus . . . be deemed to be approved," Section 723.011(1)(b), Florida Statutes (1987), despite its apparently conceded deficiencies.

Respondents raised the rent on December 1, 1986 for 64 homeowners, before distributing prospectuses. Each distribution constitutes a separate violation of Section 723.031(7), Florida Statutes. Contending DBR is responsible for their failure to distribute the deficient, but technically approved, prospectuses, respondents argue that DBR violated a duty to deal fairly with them, citing Section 723.021, Florida Statutes (1987), and assert that DBR should be estopped from imposing civil penalties, or requiring the return of any rent money collected.

Estoppel is available against the state or its agencies "only in exceptional circumstances," Tri-State Systems, Inc. vs. Department of Transportation, 500 So.2d 212, 215 (Fla. 1st DCA 1986), which must include these elements:

(1) A representation as to a material fact that is contrary to a later-asserted position; (2) reliance on that representation; and (3) a change in position detrimental to the party claiming

estoppel, caused by the representation and reliance thereon.

500 So.2d at 215-216; T & L Management Inc. vs. Department of Transportation,

497 So.2d 685 (Fla. 1st DCA 1986). What consequences flow from the timing of respondents' application is a question of law, not fact.

The only material fact as to which respondents were misinformed was the date on which the application became complete. The proof does not bear out respondents' claim that they made a detrimental change in position in reliance on erroneous advice about the filing date. In any case, no tenant was responsible for this misinformation.

Raising the rent was a detriment to the tenants, not to the landlords. On the other hand, as a matter of law, the prospectus respondents originally submitted must be deemed to have been approved before the 1986 rental increases took effect; and failure to distribute copies of that prospectus has not worked to respondents' advantage. But DBR did not forbid distribution of any prospectus, nor induce respondents to raise rents before distribution. Indeed, DBR warned respondents against jumping the gun.

Mr. Poland's letter to Ms. St. Clair of December 2, 1986, makes clear the he was unaware even then that he should have distributed prospectuses before raising rents the day before. Before rents were raised, he did not appreciate the significance of the date on which the application was filed. For this reason, too, the record will not support the conclusion that the Polands acted to their detriment because they were misappraised of the correct filing date.

The evidence not only failed to show that respondents relied on DBR's advice about when the application became complete, it also failed to show that they would have been justified in doing so, if they had. Respondents knew what they mailed when. Mutual mistake of fact does not give rise estoppel. Nelson Richard Advertising vs. Department of Transportation, 513 So.2d 181 (Fla. 1st DCA 1987).

Since DBR has consistently maintained that respondents' application was incomplete before October 15, 1986, it has made no "representation as to a material fact that is contrary to a later-asserted position. 500 So.2d at 215. This is not a case where an agency seeks to revoke authority or approval originally granted, or to take action inconsistent in any way with any prior action. Cf. Kuge vs. State Department of Administration, Division of Retirement, 449 So.2d 389 (Fla. 3rd DCA 1984).

II.

Petitioner also contends that respondents violated the Florida Mobile Home Act when they raised rents effective October 1, 1987, allegedly in contravention of the following provision:

(5) The rental agreements shall contain the lot rental amount and services included. An increase in lot rental amount upon expiration of the term of the lot rental agreement shall be in accordance with S. 723.037 or S. 723.059(4), whichever is applicable, provided that, pursuant to s. 723.059(4), the amount of the lot rental increase is disclosed and agreed to by the purchaser, in writing. An increase in lot rental amount shall not be arbitrary or discriminatory between similarly situated tenants in the park. No lot

rental amount may be increased during the term of the lot rental agreement, except:

(c) That no charge may be collected that results in payment of money for sums previously collected as part of the lot rental amount. The provisions hereof notwithstanding, the mobile home park owner may pass on, at any time during the term of the lot rental agreement, ad valorem property taxes and utility charges or increases of either, provided that the ad valorem property taxes and utility charges are not otherwise being collected in the remainder of the lot rental amount and provided further that the passing on of such ad valorem taxes or utility charges, or increases of either, was disclosed prior to tenancy, was being passed on as a matter of custom between the mobile home park owner and the mobile home owner, or such passing on was authorized by law. Such ad valorem taxes and utility charges shall be a part of the lot rental amount as defined by this chapter.

Section 723.031(5), Florida Statutes (1987). (Emphasis supplied.) Respondents maintain that petitioner has failed to carry its burden to prove that the October 1, 1987, increases occurred "during the term of the lot rental agreement," Section 723.031(5), Florida Statutes (1987), of any tenant other than Ms. Stevens and Messrs. Davis and Wilder.

Respondents concede that October 1, 1987, fell during the terms of their lot rental agreements with these three tenants, all of whom were living in mobile homes at Villa Rosa when the Florida Mobile Home Act took effect on June 4, 1984. Respondents' proposed recommend order, pages 21 - 22. As to the other tenants subject to the October 1, 1987 increases, evidence respecting the term of of the rental agreements reveals only whether they were also tenants ten months earlier on December 1, 1986.

The October 1, 1987 increases were shown to have occurred during the terms of lot agreements to which those tenants whose tenancies began later than December 1, 1986, were parties, by virtue of Section 723.301(4), Florida Statutes (1987), which provides:

No rental agreement shall be offered by a park owner for a term of less than 1 year, and if there is no written rental agreement, no rental term shall be less than one year from the date of initial occupancy .

Because none of the tenants' rental agreements were written, the terms of any agreements entered into after October 1, 1986, did not expire before October 2, 1987. The statute imputes to tenants who moved in after December 1, 1986, agreements that fall in this category.

With respect to those homeowners whose tenancies began before December 1, 1986 (accept Ms. Stevens and Messrs. Davis and Wilder) respondents contend that, as far as the record discloses, they may all have initially occupied their lots on the first day of October in one of the years following enactment of the Florida Mobile Home Act. Although such a coincidence seems highly unlikely, DBR

had the burden to prove clearly and convincingly that it did not in fact occur. Because petitioner did not meet this burden, it established only that the October 1, 1987 increases fell during the terms of lot rental agreements entered into by Ms. Stevens, Messrs. Davis and Wilder and those tenants who initially occupied lots after December 1, 1986.

The evidence gives no reason to believe that homeowners who moved in, after the date in May of 1987 on which respondents learned that DBR had approved the prospectus, did not receive copies. Again, although it seems implausible that no tenants moving in after December 1, 1986, should have moved in before the prospectus was approved in Nay, petitioner failed to prove that any tenancy began between December and May or, without the tenant's being furnished a prospectus beforehand, at any time after December 1, 1986.

Respondents' employee delivered copies to every mobile home in the park in May (including those in which Ms. Stevens and Messrs. Davis and Wilder lived.)

The evidence did not establish that any increase in real =estate taxes or utility charges had previously been passed on "as a matter of custom" or was "otherwise being collected in the remainder of the lot rental amount." Section 723.031(5), Florida Statutes (1987). Since Ms. Beach and Mr. Wilson initially occupied their lots before December 1, 1986, petitioner proved a violation, if at all, only with regard to the $20.00 increase charged Mr. Wilder, whose double wide trailer stands on a single lot.

ORDER

Based on the above findings of fact and conclusions of law, it is hereby, ORDERED:

1. Within 60 days of the date of this Final Order, Respondents shall return the amounts by which rents collected from homeowners as listed in paragraph 5, pages 4 and 5 of this Order for each of the months December of 1986 and January, February, March and April of 1987 exceeded rents charged the same homeowners for November of 1986.

DONE AND ORDERED this 11th day of June, 1990, in Tallahassee, Leon County, Florida.

MATTHEW M. CARTER II, DIRECTOR

Division of Florida Land Sales, Condominiums and Mobile Homes

Department of Business Regulation State of Florida

COPIES FURNISHED:

Jeffrey C. Regan, Esquire Rogers, Towers, Bailey, Jones and Gay,

1300 Gulf Life Drive, Jacksonville, Florida 32207

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Certified Mail to Jeffrey C. Regan, Esquire, Rogers, Towers, Bailey, Jones and Gay, 1300 Gulf Life Drive, Jacksonville, Florida 32207 this 11th day of June, 1990.

CONNIE D. BLACKMAN, CLERK

RIGHT TO APPEAL

THIS FINAL ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY RESPONDENTS PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(d), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH CONNIE BLACKMAN, CLERK OF THE DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES, WITHIN 30 DAYS OF THE RENDITION OF THIS ORDER.

Docket for Case No: 88-005983

Orders for Case No: 88-005983