STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF FLORIDA LAND SALES, ) CONDOMINIUMS AND MOBILE HOMES, )
)
Petitioner, )
)
vs. ) CASE NO. 89-005132
) SUN COAST INTERNATIONAL, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Flagler Beach, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on April 11, 1990. The Division of Administrative Hearings received a hearing transcript on April 23, 1990.
The parties filed proposed recommended orders on May 7, 1990. The attached appendix addresses proposed findings of fact by number.
APPEARANCES
For Petitioner: Debra Roberts, Esquire
725 South Bronough Street Tallahassee, Florida 32399-1007
For Respondent: Donna H. Stinson, Esquire
Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A.
The Perkins House, Suite 100
118 North Gadsden Street Tallahassee, Florida 32301
and
Paul Martz, Esquire Martz & Zimmerman
3 Palm Row
St. Augustine, Florida 32301 STATEMENT OF THE ISSUE
Whether petitioner should take disciplinary action against respondent for the reasons alleged in the amended notice to show cause, dated August 9, 1989?
PRELIMINARY STATEMENT
By amended notice to show cause, petitioner alleges that respondent violated Section 723.031(7), Florida Statutes (1989) and Rule 7D-31.001(13),
and (15), Florida Administrative Code, by delivering prospectuses to Mary
Oetken and Richard Karcher "which had not been approved by the Division and which did not contain the lot marker to which each applied" and "that were not the same as the prospectus approved by the division"; and by raising lot rents "without delivering to each mobile home owner an approved prospectus," beforehand.
FINDINGS OF FACT
Michael Weiss is part owner of Suncoast International, Inc. and general manager of the corporation's only business, a trailer park in Flagler County known as Flagler by the Sea Mobile Home Park. At all pertinent times, the park has leased or offered for lease a total of 44 mobile home lots.
In mid-1985, Mr. Weiss received a letter from petitioner Department of Business Regulation (DBR) informing him that park owners were required by law to prepare and distribute prospectuses to mobile home tenants. Efforts to draft a prospectus meeting petitioner's approval began in August of 1985. After several revisions, the petitioner approved a prospectus on June 13, 1986, No. 1802171P, for all lots.
Mr. Weiss received written notice of approval, together with a copy of the prospectus to which it pertained, with attachments, on June 26, 1986; and promptly arranged for a copier to produce 50 uncollated copies of everything received from the petitioner, see Petitioner's Exhibit No. 1, including the cover letter. With the assistance of Mr. and Mrs. Whaley, who worked for the company at the park, he tried to assemble at least 44 complete sets of these materials.
In late May of 1986, Mr. Weiss had given all tenants notice by registered mail of his intention to raise rents, effective September 1, 1986. Realizing he needed to distribute prospectuses before any rent increase, he had simultaneously informed tenants that a then current (but unapproved) version of the prospectus was available for inspection. Respondent's Exhibit No. 5.
Hand Delivery
As instructed, Ms. Whaley encouraged tenants to pick copies of the prospectus up when they paid their rent. She kept a list of persons to whom she distributed copies of the prospectus. Part of the list survived and has been received in evidence. Respondent's Exhibit No. 2.
One tenant, Mary Oetken, received a copy of the approved prospectus on July 29, 1986. But the prospectus given to Ms. Oetken did not contain rules and regulations, a copy of the lot rental agreement, a lot layout plan, or the number of her lot. Ms. Oetken already had a copy of her lot rental agreement, and park personnel customarily distributed copies of rules and regulations to each tenant, before tenancies began.
On August 29, 1986, another tenant, Betty Marinoff, wife of Peter, received a copy of an approved prospectus. Before September 1, 1986, Ms. Whaley hailed Mr. Philip H. Bird, and handed him a copy. Whether these copies of the approved pro-spectus included all attachments the evidence did not disclose.
Robert Onusko, who has leased a lot in Flagler by the Sea Mobile Home Park continuously since August of 1981, has had a copy of the park's rules and regulations since he moved in. As did all other tenants, he paid increased rent beginning September 1, 1986. Although Mr. Onusko himself received no copy of an
approved prospectus until January of 1989, Petitioner's Exhibit No. 7, Angela Whaley gave his daughter Marilyn a copy of the prospectus when Marilyn paid rent in July or August.
Taped to Doors
Not all tenants were then in residence at the park. About half lived there full time. (T.127) With respect to lots whose lessees were away, Mr. Weiss directed Mr. and Mrs. Whaley to tape copies of the prospectus on trailer doors. "That was common procedure with late payments or whatever . . . " T.112. In mid-August of 1986, Ms. Whaley told him that prospectuses had been distributed for each lot, either by delivery to a tenant or by posting.
Clarence Rainey leased a lot from 1977 to 1989 at Flagler by the Sea Mobile Home Park, where he lived part of the year, returning to Illinois in the summer. Told by a neighbor that they were available, he asked for and received a prospectus in November of 1986. He had not received one earlier.
With her husband Roger, Madeline DuJardin resided at Flagler by the Sea from February of 1979 until February of 1988. She did not get a copy of the approved prospectus before the rent increased on September 1, 1986, from $125.00 to $150.00 per month.
Neither Mr. and Mrs. Rainey nor Mr. and Mrs. DuJardin received copies when they were originally distributed. Their trailers were among those to which copies were taped, weeks or months before their return in cooler weather.
Charles A. Bond, who shared a trailer with a half-brother, resided at Flagler by the Sea from November 21, 1985, until December 31, 1988. While he lived at the park he never received a prospectus.
Brothers surnamed Karcher each leased lots from respondent. Ms. Whaley gave one Mr. Karcher a copy of the approved prospectus, before September 1, 1986. But Richard Karcher, who in those days only spent a week at a time in the park, at intervals of several months, did not receive a copy of the approved prospectus before the rent increased.
Richard Karcher had obtained a preliminary draft of the prospectus, but it differed in important respects from the draft which was eventually approved. In June of 1988, he obtained another copy of the prospectus, the copy, he testified, which he gave DBR's investigator, which also differs in important respects from the approved version.
Attached to the copy Mr. Karcher gave DBR's investigator was a set of the park rules and regulations. It is not clear whether Ms. Whaley told Mr. Weiss that she had taped an approved copy to Mr. Richard Karcher's door. (T. 126, 128)
Change of Law
Effective July 1, 1986, statutory changes altered prospectus requirements. Petitioner mailed advice concerning the new requirements when it sent out annual fee statements to mobile park owners. Mr. Weiss did not personally receive this advice nor any written notice of the nine workshops petitioner conducted in August of 1986 to acquaint park owners with the statutory changes. Although approved a few days earlier, respondent's prospectus did not conform to all the new requirements.
In early 1988, Mr. Weiss heard from Gloria Thompson, a DBR employee in its Tampa office, in connection with a complaint filed by Charles Jagde, the same person whose complaint led to the investigation that gave rise to the present proceedings. Ms. Thompson found no violation on the original complaint. Respondent's Exhibit No. 6.
Eventually Mr. Weiss learned that revisions to prospectus No. 1802171 were necessary. On November 18, 1988, he filed another proposed prospectus with petitioner. After its approval on January 30, 1989, park personnel distributed the revised, approved prospectus, No. 1802171P86, to the tenants.
CONCLUSIONS OF LAW
Since the Department of Business Regulation referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989), "the division has jurisdiction over the formal proceeding." 120.57(1)(b)3., Florida Statutes (1989).
The Department's Division of Florida Land Sales, Condominiums, and Mobile Homes is authorized to
(b) . . . issue an order requiring the mobile home park owner, or its assignee or agent, to cease and desist from an unlawful practice and take such affirmative action as in the judgment of the division will carry out the purposes of this chapter.
(d)1. . . . impose a civil penalty . . . for any violation of this chapter, a properly promulgated park rule or regulation, or a rule or regulation promulgated pursuant hereto. A penalty may be imposed on the basis of each separate violation and, if the violation is a continuing one, 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 (1989). Petitioner has alleged violations of Section 723.031(7), Florida Statutes (1989) and Rule 7D-31.001(13), (14) and (15), Florida Administrative Code.
Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). See Addington v. Texas, 441
U.S. 426 (1979); Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser- Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker v. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation or other serious penalty only if the duty has a "substantial basis," Bowling v. 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.
The cases teach that "statutes authorizing the revocation of a license to practice a business or profession must be strictly construed for they are penal in nature." State v. Pettishal, 99 Fla. 296, 126 So. 147 (1930). "In license revocation proceedings, case law requires strict construction of
statutes." Davis v. Department of Professional Regulation, 457 So.2d 1074, 1076 (Fla. 1st DCA 1984) quoting Bowling v. Department of Insurance, 394 So.2d 165,
171 (Fla. 1st DCA 1971). Although petitioner does not seek license revocation here, it does seek to imposes serious penalties, including an administrative fine. Because proceedings to impose fines are also "penal in nature," State v. Pettishal, 99 Fla. 296, 126 So. 147 (1930), due process requires fair notice of proscribed conduct.
Petitioner proposes to levy an administrative fine of $5,000; and, as the state agency charged with the duty to enforce the provisions of Chapter 723, Florida Statutes (1989), to require repayment of increased rent collected before approved prospectuses reached tenants, increments aggregating $2,125. But see Willner v. Department of Professional Regulation, Board of Medicine, No. 89-2237 (Fla. 1st DCA; June 26, 1990). In calculating this latter sum, petitioner has abandoned its earlier position that prospectuses approved on June 13, 1986, ceased to qualify as approved when statutory changes took effect on July 1, 1986. Petitioner also seeks an order requiring respondent "to deliver an approved prospectus to all homeowners who have not yet received," Petitioner's Proposed Recommended Order, p. 13, one.
Section 723.011, Florida Statutes (1989), requires owners of mobile home parks that contain 26 or more lots "to deliver to the homeowner a prospectus approved by the division." Section 723.011(1)(a), Florida Statutes (1989). The purpose of the prospectus is to disclose to (prospective) lessees or mobile home owners certain information regarding the operation of a mobile home park. See generally Village Park Mobile Home Association, Inc. v. Department of Business Regulation, 506 So.2d 426, 433 (Fla. 1st DCA 1987).
A park owner must effect delivery before "entering into an enforceable rental agreement for a mobile home lot," Section 723.011(1)(a), Florida Statutes (1989), and "[n]o 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 (1989). To like effect, Rule 7D-31.001(13), Florida Administrative Code, provides:
The park owner shall deliver the prospectus to existing home owners prior to the renewal of their rental agreements, or prior to entering into a new rental agreement, or prior to increasing the lot rental amount.
Once a home owner has been given a prospectus, the park owner shall not be required to provide another prospectus but shall provide amendments, . . .
Flagler by the Sea Mobile Home Park did not have an approved prospectus until June 13, 1986, and no mobile home owner received an approved prospectus before late June or early July. For that reason, and because of the park's size, Section 723.031(7), Florida Statutes (1989) required delivery of approved prospectuses, before any increase in the "lot rental amount" could lawfully be exacted.
Only in the case of Mary Oetken, whose copy lacked requisite attachments, did petitioner prove that respondent failed to deliver, either personally or to a tenant's mobile home, a complete copy of the prospectus DBR approved. Petitioner showed that other tenants did not receive even incomplete
prospectuses before the rent increased, but did not offer clear and convincing proof that copies of approved prospectuses were not taped to the doors of their mobile homes before the increase went into effect.
Dissemination to Mr. Richard Karcher of an unapproved, preliminary version of prospectus No. 1802171P did not fulfill the requirement that a copy of the approved version be distributed to him in a timely manner, and also ran afoul of Rule 7D-31.001(14), Florida Administrative Code, which provides:
Only a prospectus which has been determined by the Division to meet the requirements of the Statutes and these rules may be delivered to a mobile home owner.
Petitioner did not allege or prove, however, that Ms. Whaley failed to post a copy of the approved prospectus on Mr. Karcher's trailer door, on the theory that he had already received a preliminary draft. The version he received in June of 1988 was also unapproved.
Absent Tenants
Rule 7D-32.002, Florida Administrative Code, which requires the park owner to "give written notice to each affected homeowner" before "any lot rental increase, reduction in services or utilities, or change in rules and regulations," provides:
Notice shall be given by personal delivery or U.S. mail. Notice given by personal delivery shall be given when actually delivered to the homeowner.
The park owner "may request that the homeowner sign a receipt indicating that the homeowner has received a copy of the prospectus, the rules and regulations and other pertinent documents." Section 723.011(4), Florida Statutes (1989).
Petitioner maintains that the statutes and rules, read as a whole, envision delivery of prospectuses by mail, when personal delivery is not feasible. Indeed, Rule 7D-32.002, Florida Administrative Code, clearly requires such delivery if the prospectus itself is to serve as notice of a rent increase, reduction in services or change in rules. On the other hand, the evidence adduced here did not show that prospectus No. 1802171P purported to state rules and regulations or describe utilities or other services that differed in any way from rules, regulations, services and utilities that had obtained theretofore. While an increase in rent was contemplated, notice of the increase had already been given separately, in conformity with Rule 7D-32.002, Florida Administrative Code.
The rule of construction inclusio unius, exclusio alterius supports respondent's contention that, when prospectuses do not serve as notices of a rent increase, reduction in services, or change in rules, they need not be mailed, even if personal delivery to the home owner cannot be accomplished. Respondent delivered prospectuses to absent tenants "by leaving a copy thereof at the residence," Section 83.56(4), Florida Statutes (1989), in the same manner allowed by statute when a landlord seeks, not merely to raise the rent, but to terminate a tenancy (on grounds the statute specifies) and "the tenant is absent from the premises." Section 83.56(4), Florida Statutes (1989) Petitioner has promulgated no administrative rule defining delivery explicitly with reference to distributing prospectuses.
Of course, a prudent park owner would do well to send prospectuses by registered mail to tenants unable or unwilling to accept personal delivery and sign a receipt. But respondent's interpretation of the statute cannot be dismissed as fanciful or far-fetched. That it does not effectuate the legislative purpose -- to afford mobile home owners full disclosure -- as reliably as the interpretation for which DBR contends, does not authorize the Department to levy heavy fines on unsuspecting park owners proceeding in good faith.
It is open to DBR definitively to construe the statutory requirement that prospectuses be "delivered" before rent increases take effect by adopting a rule, in accordance with Section 120.54, Florida Statutes (1989), requiring delivery of prospectuses by mail, if personal delivery cannot be accomplished. Such a rule would dissipate existing ambiguity and with it any due process impediment to disciplinary proceedings against a park owner who failed to comply. Additionally, in enforcement proceedings, DBR is empowered to "issue an order requiring the mobile home park owner, or its assignee or agent, to . . . take such affirmative action as in the judgment of the division will carry out the purposes of . . . chapter [723]." Section 723.006(5)(b), Florida Statutes (1989).
Incomplete Prospectuses
Petitioner also contends that respondent should be disciplined because, in one or more cases, the approved prospectus lacked a lot layout plan and the lot number of the tenant to whom it was delivered. See Rule 7D- 31.001(13), Florida Administrative Code. In such cases, the prospectus differed from the version DBR had approved, in violation of Rule 7D-31.001(14), Florida Administrative Code. But in a mobile home park like Flagler by the Sea, where the rent, rules, regulations, utilities and other services do not vary from one lot to another, this omission did not amount to a material departure from rule requirements.
The notice to show cause did not charge respondent with failure to deliver rules and regulations or lot rental agreements. See generally Wray v. Department of Professional Regulation, Board of Medical Examiners, 435 So.2d 312 (Fla. 1st DCA 1983). The proof showed no such failure. But Section 723.012, Florida Statutes (1989), which sets out what the "prospectus or offering circular, which is required to be provided by s. 723.011, must contain," Section 723.012, Florida Statutes (1989), specifies inclusion of "park rules and regulations," Section 723.012(11), Florida Statutes (1989) and, "to the extent they are applicable . . . the rental agreement or agreements to be offered for rental of mobile home lots." Section 723.012(14), Florida Statutes (1989) These items were attached, moreover, in the version of the prospectus approved by DBR.
Delivering a prospectus to Ms. Oetken without copies of the rules and regulations and the lot rental agreement attached violated Rule 7D-31.001(14), Florida Administrative Code. Evidence affirmatively established, however, that Ms. Oetken already had a copy of her lot rental agreement. As far as the evidence showed, moreover, Ms. Oetken also had a copy of the park rules and regulations. If so, the apparently inadvertent failure to attach another copy to the prospectus could not have occasioned great harm.
It is, accordingly, RECOMMENDED:
That DBR enter an order requiring respondent to send complete copies of currently approved prospectuses by registered mail to all tenants who have not received such copies personally and signed receipts so stating.
DONE and ENTERED this 30th day of July, 1990, in Tallahassee, Florida.
ROBERT T. BENTON, II
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1990.
APPENDIX
Petitioner's proposed findings of fact Nos. 1 through 6, 9, 11 through 14 and 16 through 19 have been adopted, in substance, insofar as material.
With respect to petitioner's proposed finding of fact No. 7, the evidence did not establish the contents of the copy of the prospectus the Miranoffs received.
With respect to petitioner's proposed finding of fact No. 8, Mr. Onusko's adult daughter Marilyn received a copy of the prospectus before the rent increased.
Petitioner's proposed finding of fact No. 10 pertains to subordinate matters only.
With respect to petitioner's proposed finding of fact No. 15, Mr. Karcher so testified, without contradiction.
Respondent's proposed findings of fact Nos. 1 through 5, 7 through 10, 12
through 19, 21, 22, 24, and 27 through 30 have been adopted, in substance, insofar as material.
With respect to respondent's proposed finding of fact No. 6, the prospectus had not been approved at that time.
With respect to respondent's proposed finding of fact No. 11, she did not personally deliver prospectuses to all tenants.
With respect to respondent's proposed finding of fact No. 20, the differences were material.
Respondent's proposed findings of fact Nos. 23, 25 and 26 are immaterial.
COPIES FURNISHED:
Donna H. Stinson, Esquire
Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A.
The Perkins House, Suite 100
118 North Gadsden Street Tallahassee, FL 32301
Debra Roberts, Esquire Department of Environmental
Regulation
725 South Bronough Street Tallahassee, FL 32399-1007
Joseph A. Sole General Counsel
Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000
Paul Martz, Esquire Martz & Zimmerman
3 Palm Row
St. Augustine, FL 32084
Stephen R. MacNamara Secretary
Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000
=================================================================
AGENCY FINAL ORDER
=================================================================
DEPARTMENT OF BUSINESS REGULATION
DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES
DEPARTMENT OF BUSINESS REGULATION, DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES,
Petitioner, DOAH CASE NO. 89-5132 vs. DBR DOCKET NO. MH8941
SUN COAST INTERNATIONAL, INC.,
Respondent.
/
FINAL ORDER
This matter came on for hearing in Flagler Beach, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on April 11, 1990. The Division of Administrative Hearings received a hearing transcript on April 23, 1990. The parties filed proposed recommended orders on May 7, 1990.
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. The recommended penalty has been changed, and the reasons for the change is stated with citations to the record.
APPEARANCES
For Petitioner: Debra Roberts, Esquire
725 South Bronough Street Tallahassee, Florida 32399-1007
For Respondent: Donna H. Stinson, Esquire
Moyle, Flaningan, Katz, Fitzgerald & Sheehan, P.A. The Perkins House, Suite 100
118 North Gadsden Street Tallahassee, Florida 32301
and Paul Martz, Esquire Martz & Zimmerman
3 Palm Row
St. Augustine, Florida 32301 STATEMENT OF THE ISSUE
Whether Respondent violated Section 723.031(7), Florida Statutes (1989) and Rules 7D-31.001(13)(14)(15), Florid Administrative Code as alleged in the Amended Notice to Show Cause.
PRELIMINARY STATEMENT
By amended notice to show cause, Petitioner alleges that Respondent violated Section 723.031(7), Florida Statutes (1989) and Rules 7D- 31.001(13)(14)(15), Florida Administrative Code, by delivering prospectuses to at least two homeowners Mary Oetken and Richard Karcher "which had not been approved by the Division and which did not contain the lot number to which each applied"; and "that were not the same versions of the prospectus as the prospectus approved by the division"; and by implementing a lot rental amount increase "without delivering to each mobile home owner an approved prospectus," beforehand.
Respondent asserts that although not in compliance with the law in effect on the date of delivery the prospectus he delivered was approved by the division and thus he did not violate section 723.031(7), Florida Statutes. Respondent further asserts that it effectuated delivery of the prospectus under Chapter 723, when he taped the prospectus to the doors of absent homeowners.
FINDINGS OF FACT
Michael Weiss is part owner of Suncoast International, Inc., and general manager of the corporation's only business, a mobile home park in Flagler County, known as Flagler by the Sea Mobile Home Park. At all pertinent times, the park has leased or offered for lease a total of 44 mobile home lots.
In mid-1985, Mr. Weiss received a letter from Petitioner Department of Business Regulation (DBR) informing him that park owners were required by law to prepare and distribute prospectuses to mobile home tenants. Efforts to draft a prospectus meeting petitioner's approval began in August of 1985. After several revisions, the petitioner on June 13, 1986, approved prospectus No. 1802171P for all lots.
Mr. Weiss received written notice of approval, together with a copy of the prospectus to which it pertained, with attachments, on June 26, 1986; and promptly arranged for a copier to produce 50 uncollated copies of everything received from the petitioner, see Petitioner's Exhibit No. 1, including the cover letter. With the assistance of Mr. and Mrs. Whaley, who worked for the company at the park, he tried to assemble at least 44 complete sets of these materials.
In late May of 1986, Mr. Weiss had given all tenants notice by registered mail of his intention to raise rents, effective September 1, 1986. Realizing he needed to distribute prospectuses before any rent increase, he had simultaneously informed tenants that a then current (but unapproved) version of the prospectus was available for inspection. Respondent's Exhibit No. 5.
HAND DELIVERY
As instructed, Ms. Whaley encouraged tenants to pick copies of the prospectus up when they paid their rent. She kept a list of persons to whom she distributed copies of the prospectus. Part of the list survived and has been received in in evidence. Respondent's Exhibit No. 2.
One tenant, Mary Oetken, received a copy of the approved prospectus on July 29, 1986. But the prospectus given to Ms. Oetken did not contain rules and regulations, a copy of the lot rental agreement, a lot layout plan, or the number of her lot. Ms. Oetken already had a copy of her lot rental agreement, and park personnel customarily distributed copies of rules and regulations to each tenant, before tenancies began.
On August 29, 1986, another tenant, Betty Marinoff, wife of Peter, received a copy of an approved prospectus number 1802171P. Before September 1, 1986, Ms. Whaley hailed Mr. Phillip H. Bird, and handed him a copy. Whether these copies of the approved prospectus included all attachments the evidence did not disclose.
Robert Onusko, who has leased a lot in Flagler by the Sea Mobile Home Park continuously since August of 1981, has had a copy of the park's rules and regulations since he moved in. As did all other tenants, he paid increased rent beginning September 1, 1986. Although Mr. Onusko himself received no copy of an approved prospectus until January of 1989, Petitioner's Exhibit No. 7, Angela Whaley gave his daughter Marilyn a copy of the prospectus when Marilyn paid rent in July or august.
TAPED TO DOORS
Not all tenants were then in residence at the park. About half lived there full time. (T.127) With respect to lots whose lessees were away, Mr. Weiss directed Mr. and Mrs. Whaley to tape copies of the prospectus on trailer doors. "That was common procedure with late payments or whatever . . ." T.112. In mid- August of 1986, Ms. Whaley told him that prospectus had been distributed for each lot, either by delivery to a tenant or by posting.
Clarence Rainey leased a lot from 1977 to 1989 at Flagler by the Sea Mobile Home Park, where he lived part of the year, returning to Illinois in the summer. Told by a neighbor that they were available, he asked for and received and prospectus in November of 1986. He had not received one earlier.
With her husband Roger Madeline DuJardin resided at Flagler by the Sea from February of 1979 until February of 1988. She did not get a copy of the approved prospectus before the rent increased on September 1, 1986, from $125.00 to $150.00 per month.
Neither Mr. and Mrs. Rainey nor Mr. and Mrs. DuJardin received copies when they were originally distributed. Their trailers were among those to which copied were taped weeks or months before their return in cooler weather.
Charles A. Bond, who shared a trailer with a half-brother, resided at Flagler by the Sea from November 21, 1985, until December 31, 1988. While he lived at the park he never received a prospectus.
Brothers surnamed Karcher each leased lots from Respondent. Ms. Whaley gave one Mr. Karcher a copy of the approved prospectus, before September 1, 1986. But Richard Karcher, who in those days only spent a week at a time in the park, at intervals of several months, did not receive a copy of the approved prospectus before the rent increased.
Richard Karcher had obtained a preliminary draft of the prospectus, but it differed in important respects from the draft which was eventually approved. In June of 1988, he obtained another copy of the prospectus, the copy, he testified, which he gave DBR's investigator, which also differs in important respects from the approved version.
Attached to the copy Mr. Karcher gave DBR's investigator was a set of the park rules and regulations. It is not clear whether Ms. Whaley told Mr. Weiss that she had taped an approved copy to Mr. Richard Karcher's door. (T. 126, 128)
CHANGE OF LAW
Effective July 1, 1986, statutory changes altered prospectus requirements. Petitioner mailed advice concerning the new requirements when it sent out annual fee statements to mobile home park owners. Mr. Weiss did not personally receive this advice nor any written notice of the nine workshops petitioner conducted in August of 1986 to acquaint park owners with the statutory changes. Although approved a few days earlier, respondent's prospectus did not conform to all the new requirements.
In early 1988, Mr. Weiss heard from Gloria Thompson, a DBR employee in its Tampa office, in connection with a complaint filed by Charles Jagde, the same person whose complaint led to the investigation that gave rise to the present proceedings. Ms. Thompson found no violation on the original complaint. Respondent's Exhibit No. 6.
Eventually Mr. Weiss learned that revisions to prospectus No. 1802171 were necessary. On November 18, 1988, he filed another proposed prospectus with petitioner. After its approval on January 30, 1989, park personnel distributed the approved prospectus, No. 1802171P86, to the tenants.
CONCLUSIONS OF LAW
Since the Department of Business Regulation referred Respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989), "the division has jurisdiction over the formal proceeding." 120.57(1)(b)3., Florida Statutes (1989).
Pursuant to Section 723.005, Florida Statutes, the Division is the State agency charged with the duty to enforce and ensure compliance with the provisions of Chapter 723 and rules promulgated thereto. The provisions of Chapter 723 apply to any residential tenancy in which a mobile home is placed upon a rented lot in a mobile home park in which ten or more lots are offered for rent or lease. (Section 723.002, Florida Statutes) Sun Coast offers for rent or lease forty-four (44) lots and, thus, the Flagler By The Sea Mobile Home Park is under the jurisdiction of the Division.
Section 723.006(5), Florida Statutes provides in relevant part:
(b) The Division may issue an order requiring the mobile home park owner, o its assignee or agent, to cease and desist from an unlawful practice and take such affirmative action as in the judgment of the division will carry out the purpose of this chapter.
1. The Division may impose a civil penalty for any violation of this chapter, a
properly promulgated park rule or regulation, or a rule or regulation promulgated pursuant hereto. A penalty may be imposed on the basis of each separate violation and, if the violation is a continuing one, 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. . .
Pursuant to Section 723.011, Florida Statutes, a park that contains 26 or more lots is required to deliver an approved prospectus to each prospective homeowner. Therefore, Sun Coast is required to deliver a prospectus. Although the prospectus is primarily a disclosure statement, it is also incorporated into the rental agreement. Section 723.031(10), Florida Statutes. The specific requirements of the prospectus are explicitly provided for in Section 723.012, Florida Statutes. The purpose of the prospectus is to disclose to lessees or mobile home owners certain information regarding the future operation of the mobile home park. See Village Park Mobile Home Association, Inc. v. Department of Business Regulation, 506 So.2d 426, (Fla. 1st DCA 1978). It is required to
include certain information such as the homeowner's obligations for certain fees, charges and assessments, the manner that these fees will be assessed and the basis for termination of the tenancy by the park owner. All exhibits, which include the mobile home park lot layout, rental agreements, and all covenants and restrictions and zoning are required to be included in the prospectus.
Pursuant to section 723.059(3), Florida Statutes, the purchaser of mobile home who assumes the remainder of the term of any rental agreement is entitled to rely on the terms and conditions of the prospectus or offering circular as delivered to the initial recipient.
Respondent has been charged with violating 723.031(7), Florida Statutes (1989) and Rules 7D-31.001(13),(14),(15), Florida Administrative Code.
Section 723.031(7), Florida Statutes provides:
No park owner may increase the lot rental amount until an approved prospectus has been delivered if one is required.
Rule 7D-31.001(15), Florida Administrative Code, provides:
The park owner shall deliver the prospectus to existing homeowners prior to the renewal of their rental agreements, or prior to entering into a new rental agreement, or prior to increasing the lot rental amount. Once a homeowner has been given a prospectus, the park owner shall not be required to provide another prospectus but shall provide amendments, . . .
Based on the above, Flagler was required to deliver an approved prospectus before any increase in the lot rental amount could be exacted.
Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Addington v. Texas, 441 U.S.
418, 426 (979); Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser- Busch, Inc. v. Department of Business Regulation, 393 So.2d 612 (Fla. 3rd DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). State v. Pettishal, 126 So 147 (1930), Davis v. Department of
Professional Regulation 457 So 2d 1074, 176 (Fla. 1st DCA 1984). This, however, is not a license revocation action. The prospectus is not a license or a permit but primarily a disclosure document. Village Park, supra.
Mobile home laws, including Chapter 723, were enacted for the protection of the public and thus should be liberally construed to effectuate their purposes. Lanca Homeowners. Inc., etc., et. al v. Lantana Cascade of Palm Beach Ltd. et. al, 541 So.2d 1121 (Fla. 1988); Stewart v. Green, 300 So.2d 889 (Fla. 1974); Palm Beach v. Strong, 300 So.2d 81 (Fla. 1974).Smith v. Department of Business Regulation, 504 So.2d 1285, 129 (Fla. 1st DCA 1986).
The first issue to be resolved is whether the Respondent's delivery of a prospectus which was approved by the Division in June, 1986 is in violation of section 723.031(7), Florida Statutes and Rule 7D-31.001(15), Florida Administrative Code, when the prospectus was delivered after July 1, 1986 the effective date of amendments to Chapter 723, Florida Statutes. The facts in the
case reveals that the Respondent's prospectus No. 1802171P was approved on June 13, 1986. On June 30, 1986, Chapter 723 was amended, effective July 1, 1986.
1/ Because the effective date of the amendments was July 1, 1986, an approved prospectus which was delivered after July 1, 1986 was required to be in compliance with the law as amended.
Although Respondent testified it did not know the law had changed, its lack of knowledge is not an excuse for violating the law. A park owner, doing business in an industry known to be state regulated, is under a duty to inform himself of its obligations under the law. The courts of this state have consistently held that knowledge of the law is imputed to persons in passing on the character of their acts. 23 Fla. Jur. 2d Evidence, Sect. 100 (1980). (See McGillick v. Chapman et ux., 184 So.26 (Fla. 1938), in which the Supreme Court held that where a loan is secured by a mortgage on Florida realty, a lender is assumed to know that several states had usury laws and that the lender was under a duty to inform himself of the Florida usury laws; and State ex rel. First Presbyterian Church of Miami v. Fuller, 182 So. 888 (Fla. 1938), in which the Supreme Court held that where municipal liquor licenses are issued subject to regulations, the holder of the license is presumed to know the provisions and regulations controlling the sale of liquor; and Bilgore, et. al v. Gunn, 9 So.2d
184 (Fla. 1942), in which farmers and creditors are charged with the knowledge of provisions of the Farm Credit Act; and Caravasios v. Vanderpool & Co. Inc.,
182 So. 603 (Fla. 1938) providing that a corporation suing a married woman was charged with the knowledge of laws relating to separate property.) Every person is charged with knowledge of legislative enactments, and this principle applies to federal law as well as state statutes. Pembroke v. Peninsular Terminal Co.,
146 So. 249 (Fla. 1933) The knowledge of facts is also presumed. See Redstone
Redstone Lbr. & Supply Co., 133 So. 882 (Fla. 1931), where the Court held that the directors of a corporation are charged with knowledge of such corporate affairs as is their duty to keep informed of, and of the facts which the corporate books and records disclose. Therefore Sun Coast is imputed with the knowledge of the law and any amendments thereto and must comply accordingly.
The above notwithstanding, the Division, when it mailed annual fee statements, notified park owners of tee change in the law and of its intention to hold workshops throughout the state explaining the new law. Moreover, the Division held nine workshops and advised park owners it would decline to act with respect to enforcement if certain conditions were met. (Pet Ex 5, pg. 1- 3). In addition, section 723.011(1)(a), Florida Statutes, (Supp. 1986), provided that rental agreements would not be invalidated, if among other things, an approved prospectus was required to be delivered and was delivered on or before July 1, 1986. In this case, the prospectus was delivered to homeowners after July 1, 1986. The Respondent did not file any amendments to his prospectus filing o brine the prospectus into compliance with the law as amended on July 1, 1986 until November 18, 1988, over 2 years after the 1986 amendment became effective. It is concluded that Respondent was required to deliver an prospectus that was approved in accordance with the law in effect on the date of delivery of the prospectus.
Absent Tenants
The other issue for resolution is, whether taping a prospectus to the door of absent homeowners known to be away for weeks or even months, is adequate delivery under Chapter 723. Respondent asserts that delivery by taping or posting is adequate under Chapter 723 because Section 83.56(4), Florida Statutes, which regulates landlord-tenant relationships other than mobile home tenancies, allows a landlord to raise rent, and terminate a tenancy of an absent
tenant by "leaving a copy of the notice at the residence." This assertion is rejected for the following reasons. First, the mobile home park owner and mobile home owner relationship is governed by Chapter 723 and not Chapter 83. Pursuant to section 723.002, Florida Statutes, only when both the mobile home and lot are rented, or when fewer than ten lots are available for rent or lease, is the tenancy governed by the provisions of part II, Chapter 83, the "Florida Residential Landlord and Tenant Act". Respondent leases more than 10 lots and leases the lot and not the home, thus Chapter 83 does not govern the operation of his park. Second, a review of Chapter 723 reveals that posting is not adequate notice to terminate a tenancy under Chapter 723, Florida Statutes.
Section 723.061(1)(c)2, Florida Statutes, requires that the mobile home owner must have received written notice at least 30 days prior to the date on which he is required to vacate the premises.
Furthermore, posting or taping a prospectus to the door of a homeowner who is not expected to return to the home to receive the prospectus for weeks or even months does not effectuate legislative intent under Chapter 723. The legislature's passage of section 723.031(7), Florida Statutes, is a clear indication of its intent that the homeowner receive the prospectus before the increase of the lot rental amount. Also, Chapter 723, and rules promulgated thereto, read as a whole, envision delivery of prospectuses by mail when a personal delivery is not feasible.
However, since no administrative rule has been promulgated defining delivery explicitly with reference to delivery of the prospectus, the word "deliver" must take its plain and ordinary meaning. "Deliver" means to give forth or hand over; transfer; to carry to and leave at the proper place or places; distribute [deliver the mail]. New World Dictionary of the American Language, 2d College ed., (1980). "Delivery" as defined in Black's Law Dictionary, 385 (rev. 5th ed. 1979), means the act by which the res or substance thereof is placed within the actual or constructive possession or control of another. "Actual delivery consists in the giving real possession to the vendee or his servant or special agents who are identified with him in law and represent him. "Constructive delivery" of personalty takes place when the goods are set a part and notice given to the person to whom they are to be delivered,... Black's Law Dictionary, 386 (revised 5th ed. 1979). By taping the prospectuses to the door of absent homeowners, the Respondent did not effectuate delivery of prospectuses by the plain and ordinary meaning of the word delivery or in accordance with the intent of the legislative.
Based on the above findings of fact and conclusions of law, it is concluded that Respondent on September 30, 1986, increased the lot rental amount and failed to deliver an approved prospectus in accordance with existing law to Clarence Rainey, 2/ Madeline Du Jardin, 3/ Charles A. Bond 4/ and Richard Karcher 5/ in violation of section 723.031(7), Florida Statutes (1989), and Rules 7D-31.001(14), (15), Florida Administrative Code. Moreover, the prospectus delivered to Mr. Richard Karcher was not the version approved by the Division in June, 1986. Mr. Richard Karcher's version differed in important respects to the version approved in accordance with the law prior to July 1, 1986. 6/
Incomplete Prospectuses
In one or more cases, the approved prospectus provided to the homeowner lacked a lot layout plan and the lot number of the tenant to whom it was delivered contrary to Rule 7D-31.001(13), Florida Administrative Code. In such cases, the prospectus differed from the version DBR had approved, in violation
of Rule 7D-31.001(14), Florida Administrative Code. The lot layout and lot number is important because a purchaser of a mobile home is entitled to rely on the terms and conditions in the prospectus as delivered to the initial homeowner.
Delivering a prospectus to Ms. Oetken which did not include copies of the rules and regulations and the lot rental agreement attached violated Rule 7D- 31.0011(14), Florida Administrative Code. Evidence affirmatively established, however, that Ms. Oetken already had a copy of her lot rental agreement. As far as the evidence showed, moreover, Ms. Oetken also had a copy of the park rules and regulations. If so, the apparently inadvertent failure to attach another copy to the prospectus could not have occasioned great harm.
ORDER
Based on the findings of fact and conclusions of law, it is ordered:
Respondent shall deliver to each homeowner who has not already been delivered an approved prospectus, a complete copy of the prospectus approved in accordance with existing law.
Because Respondent is precluded by section 723.031(7), Florida Statutes, from increasing the lot rental amount prior to delivery of an approved prospectus and because Respondent taped versions of the prospectuses to doors of absent homeowners, and because Respondent delivered a version of the prospectus to Mr. Richard Karcher significantly different than the version approved by the Bureau on June 1986, Respondent shall refund the increased amount collected between September 1, 1986 and the date the prospectus was delivered to the following homeowners in the following amounts:
Clarence Rainey 3 months 75.00
(Findings of Fact #8, 10, 12)
Madeline Du Jardin 2 months 50.00
(Findings of Fact #8, 11, 12)
Charles A. Bond 4 months 100.00
(Findings of Fact #8, 13)
Richard Karcher 28 months 700.00
(Findings of Fact #8, 14, 15)
DONE AND ORDERED this 26th day of October, 1990, in Tallahassee, Florida.
MATTHEW M. CARTER II, DIRECTOR
Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation State of Florida
ENDNOTES
1/ | See Section 86-162, Laws of Florida (1986). |
2/ | See Findings of Fact #8, 10, 12. |
3/ | See Findings of Fact #8, 11, 12. |
4/ | See | Findings | of | Fact | #8, 3. |
5/ | See | Findings | of | Fact | #8, 14, 15. |
6/ | See | Findings | of | Fact | #14, 15. |
RIGHT TO APPEAL |
THIS FINAL ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY RESPONDENT 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 CAROLYN CANNON, CLERK FOR THE DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES, WITHIN 30 DAYS OF THE RENDITION OF THIS ORDER.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been furnished by Certified U.S. Mail to DONNA STINSON, The Perkins House, Suite 100, 118 N. Gadsden Street, Tallahassee, Florida 32301, and PAUL MARTZ, Esquire,
3 Palm Road, P. O. Box 3928, St. Augustine, Florida 32085-3928, this 26th day of October, 1990.
Carolyn Cannon, Clerk
Copies furnished to:
Dr. Faye Mayberry, Chief Bureau of Mobile Homes
Robert T. Benton, II Hearing Officer
Division of Administrative Hearings
Debra Roberts
Assistant General Counsel
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT STATE OF FLORIDA
DEPARTMENT OF BUSINESS NOT FINAL UNTIL TIME EXPIRES TO REGULATION, DIVISION OF FILE MOTION FOR REHEARING AND FLORIDA LAND SALES, DISPOSITION THEREOF IF FILED. CONDOMINIUMS AND MOBILE HOMES,
vs.
DCA CASE NO. 90-003370 Petitioner, DOAH CASE NO. 89-005132
SUN COAST INTERNATIONAL, INC.,
Respondent.
/ Opinion filed March 11, 1992.
An Appeal from an order of the Department of Business Regulation. Donna H. Stinson, of Myle, Flanigan, Katz, Fitzgerald & Sheehan, P.A., Tallahassee, for Appellant. Debra Roberts, Assistant General Counsel, Department of Business Regulation, Tallahassee, for Appellee. Thomas A. Munkittrick, for Federation of Mobile Homeowners of Florida, Inc., Largo.
Amicus Curiae.
ERVIN, J.
Appellant, Sun Coast International, Inc., the owner of a mobile home park (Sun Coast or owner), appeals a final order of the Division of Florida Land Sales, Condominiums and Mobile Homes (division), directing the owner to refund rental amounts which the division determined had been illegally collected from certain mobile home park tenants. Appellant contends that the division erred by concluding that appellant failed to comply with a statutory and rule requirement that it deliver an approved prospectus to all tenants before the rent increase and that the division acted beyond its statutory authority by requiring appellant to return rent increases to four tenants. We find that the division properly interpreted the term "delivers" to exclude taping the prospectus to an absent tenant's door, but find no statutory authority for the restitution ordered. Consequently, we affirm in part and reverse in part.
In mid-1985, Michael Weiss, part owner of Sun Cast, received a letter from the division informing him that as an owner of a mobile home park he was required by law to prepare and distribute prospectuses to all tenants residing within the park, and that the prospectuses had to be approved by the division and delivered to each tenant before any anticipated increase in rent could occur
[statute cite omitted in ACCESS document] Fla. Stat. (Supp. 1988); 723.031(7), Fla. Stat. (Supp. 1986). See also Fla. Admin. Code. The purpose of the prospectus is to disclose to the tenants certain information regarding the operation of the mobile home park; the tenants' obligating to pay certain fees, charges, and assessments; the manner in which such fees will be assessed; and the basis for terminating of the tenancy by the park owner. 723.012, Fla. Stat. (1985). See Herrick V. Department of Business Reg., Div. of Fla. Land Sales, Condominiums & Mobile Homes, 17 F.L.W. D544-46, (Fla. 1st DCA Feb. 19, 1992), for a general discussing of the propose for enacting the Florida Mobile Home Act and requiring the delivery of prospectuses to the tenants. Rule 7D-31.00l(15). A specific exception is recognized under section 723.3l(7)(c) for increases in lot rental agreement for which approved prospectuses were required to be delivered before July 1, 1986, if the mobile home park owner had delivered the approved prospectuses to the tenants within 45 days of approval by the division. Under this exception, it was incumbent upon the appellant to establish that it had accomplished delivery upon all tenants affected by the rental increases within 45 days after the date of prospectus approval, which occurred on June 13, 1986.
Efforts to draft a prospectus complying with the division's approval began in August 1985. While the approval process was pending, appellant, in late May 1986, gave all tenants notice by registered mail of its intention to raise rents, effective September 1, 1986. On June 13, 1986, the division approved appellant's prospectus, and appellant received written notice of same on June 26, 1986. The approved prospectuses were directly delivered to all tenants, with the exception of four absent tenants, whose prospectuses were "delivered" by being taped on the doors on their mobile homes. Delivery to those four tenants was not, however, otherwise effectuated before the effective date of the rental increases, on September 1, 1986.
In ruling that taping a prospectus to a tenant's door does not Constitute "delivery" under the statute, the division relied upon the dictionary, which states that "deliver" means to give forth or hand over, transfer, to carry and leave at the proper place or places, distribute. New World Dictionary of the American Language (2d college ed. 1980). It is of course a cardinal rule of statutory Construct in that unless otherwise defined or limited by manifest legislative intent, statutory language shall be given its plain and ordinary meaning. Powell v. State, 508 S.2d 1307, 1310 (Fla. 1st DCA), review denied,
518 S.2d 1277 (Fla. 1987). It is impossible for us to say that the division's reliance on the above definition is not a reasonable method of interpreting the statutory term. Department of Admin.. Div. of Retirement V. More, 524 S.2d 704, 707 (Fla. 1st DCA 1988).
Appellant next argues as an alternative ground that the division is without authority to order restitution of the rent increases to the tenants, because even if delivery was improper, the restitution ordered constitutes a penalty, and because there is no statutory authorization for the imposition of a penalty, the administrative order so directing was in Contravention of Article I, Section
18 of the Florida Constitution, precluding imposition of penalties except as provided by law." We disagree that restitution or a refund of rental increases Constitutes a penalty, and we conclude that no specific statutory authorization is necessary, such power can otherwise be reasonably implied from those powers expressly delegated to the agency. In so "Delivery" is not defined in either Chapter 723, Florida Statutes, or Florida Administrative Code Chapter 7D-3l. Concluding, we Consider it essential to point out that the terms
"restitution" and "penalty" are not synonymous. "Restitution" is defined as the "[act of restoring; restoration; restoration of anything to its rightful owner; the act of making good or giving equivalent for any loss, damage or injury; and indemnification.
Black's Law Dictionary 1313 (6th ed. 1990).
The primary purpose of restitution is to restore the plaintiff to the position in which he or she was before the defendant received the benefit which gave rise to the ligation to restore; hence the plaintiff is entitled to recover that which he or she parted with, or that which the defendant has received.
11 Fla. Jur. 2d Contracts 246, at 548-49 (1979).
As a result, one so aggrieved has a right of action pursuant to a quasi contract, or contract implied by law, based primarily upon the theory that the defendant has received a benefit or has been unjustly enriched, and accordingly should be required to compensate the plaintiff.
11 Fla. Jur. 2d Contracts g 236, at 538 (1979).
Among other things, the plaintiff's right to recover - rests both on money paid by mistake of fact and by mistake of law. 11 Fla. Jur. 2d Contracts 242 (1979).
A penalty, on the other hand, is not designed as a means of restoring an aggrieved person to his or her original position.
Rather, "penalty" is variously defined as "a sum of money which the law exacts payment of by way of punishment for doing some act which is prohibited or for not doing some act which is required to be done," or "a statutory liability imposed on wrongdoer in amount which is not limited to damages suffered by party wronged."
Black's Law Dictionary 1133 (6th ed. 1990).
Clearly, there may be no relationship between the amount ordered restored and the penalty inflicted. The two terms have altogether different purposes; hence, restitution cannot be considered, under the circumstances, a penalty.
Having said the above, we nevertheless must Conclude that there is no power, expressly or reasonably implied, which has been statutorily delegated to the division permitting it to issue an administrative order requiring the restitution of unauthorized rental increases. The following provisions of Section 723.006(5), Florida Statutes (Supp. 1986), set forth in pertinent part the powers and duties of the division:
Notwithstanding any remedies
available to mobile home owners, mobile home park owners, and homeowners' associations, if the division has reasonable cause to believe that a violation of any provision of this chapter or any rule promulgated pursuant hereto has occurred, the division
may institute enforcement proceedings in its own name against a developer, mobile home park owner, or homeowners' association, or its assignee or agent, as follows:
The division may issue an order requiring the mobile home park owner, or its assignee or agent, to cease and desist from an unlawful practice and take such affirmative action as in the judgment of the division will carry out the purposes of this chapter.
The division may bring an action in Circuit court on behalf of a class of
mobile home owners, mobile home park owners, lessees, or purchasers for declaratory relief, injunctive relief, or restitution. (Emphasis added.)
Thus, it appears that if the division seeks restitution on behalf of a class of mobile home owners or tenants, the exclusive procedure provided therefor is t commence an action in Circuit curt and not, as occurred herein, an administrative Adjudicatory proceeding. In so saying, we consider that the statutory maxim of expressi unius est exlusi alterius is particularly applicable t the above previsions. In other words, if a statute enumerates the things on which it is t operate, or forbids certain things, it is ordinarily Construed as excluding form its pertain all those matters not expressly mentioned. See Ideal Farms Drainage Dist. V. Certain Lands, 154 Fla. 554, , 19 S.2d 234, 239 (1944). And, as more particularly applicable t the statute now under Consideration, a legislative direction as to how a thing shall be done is, in effect, a prohibition against its being done in any other way. Alsp V. Pierce, 155 Fla. 185, 19 S.2d 799, 805-06 (Fla. 1944)(en banc). Indeed, the maxim has been applied to a statute providing for a limited form of recoupment, with the result that all other forms of recoupment are deemed to have been excluded. 2A Norman J. Singer, Statutes and Statutory Construction 47.23, at 217 (5th ed. 1992 rev.) We therefore conclude that the legislature has provided in section 723.006(5)(c) the exclusive means by which the division may seek restitution of rents wrongfully obtained by mobile park owners from their tenants: by action in Circuit court.
The division argues, however, that it is authorized to impose restitution by administrative order under the provisions of section 723.006(5)(b), permitting it to "take such affirmative action as in the judgment of the division will carry out the purposes of this chapter." We disagree. Another maxim of statutory interpretation is that of ejusdem generis, meaning that where general words in a statute follow a designation of particular subjects or classes of persons, the meaning of the general words will ordinarily be presumed to be restricted by the particular designation, so as to include only things or persons of the same kind, class, or character as those specifically enumerated. See Van Pelt V. Hilliard, 75 Fla. 792, 78 S. 693 (1918). The above rule was recently applied by this Court in D.A. V. Department of Health & Rehabilitative Services, 561 S.2d 380, 382 (Fla. 1st DCA 1990), to limit the general terms in Section 415.503(12), Florida Statutes (1987), "any other person legally responsible for the child's welfare in a residential setting," to persons of the same class or character as those previously specifically enumerated in the statute.
Applying this maxim to the statute at bar, we Consider that the statutory language empowering the division to "take such affirmative action as in the judgment of the division will carry out the provisions of this chapter" is limited by that language immediately preceding it, which authorizes the division to issue orders requiring the mobile home park owners "to cease and desist from an unlawful practice." As a consequence, the affirmative action undertaken by the division should be understood to be that which is reasonably incidental to the issuance of cease and desist orders, or other similar relief. We cannot conceive that it was legislative intent, by reason of the juxtaposition of the above words in subsection (5)(b) and the explicit remedy of restitution provided in subsection (5)(c), that the general language authorizing the division to take "affirmative action" reasonably implies as well the remedy of restitution within an administrative setting. We therefore conclude that any action for restitution undertaken by the division on behalf of mobile home tenants must be brought in circuit court.
The order is AFFIRMED as it relates to delivery of the prospectuses, but is REVERSED and REMANDED with directions to strike that portion of the order requiring appellant to refund the increased rental amounts to the four tenants.
In so ruling, we recognize that a refund/reimbursement remedy was approved in Herrick V. Department of Business Reg., Div. of Fla. Land Sales, Condominiums & Mobile Homes, 17 F.L.W. D543 (Fla. 1st DCA Feb. 19, 1992), however, we note that the propriety of ordering such a remedy was not an issue raised in Herrick, unlike the case at bar.
| Issue Date | Proceedings |
|---|---|
| Jul. 30, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 11, 1992 | Opinion | |
| Oct. 26, 1990 | Agency Final Order | |
| Jul. 30, 1990 | Recommended Order | Statute does not specify manner of delivering prospectuses that don't advise mobile home tenants of rental increase. |
