STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD L. HILGEMAN, )

d/b/a DLH ENTERPRISES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6664F

) STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION )

OF FLORIDA LAND SALES, )

CONDOMINIUMS AND MOBILE HOMES, )

)

Respondent. )

)

FINAL ORDER

On March 14, 1991, a final hearing was held in this case in the Offices of the Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. Charles C. Adams served as the Hearing Officer.

APPEARANCES

For Petitioner: David D. Eastman, Esquire

Parker, Skelding, Labasky & Corry

311 North Monroe Street Tallahassee, Florida 32301

For Respondent: Susan C. Marvin

Debra Roberts

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

STATEMENT OF ISSUES

The issues in this case concern the attempt by Petitioner to collect

$11,684.62 in attorneys fees and costs associated with the defense of the case of State of Florida, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, Petitioner, vs. Donald L. Hilgeman and Marilyn Hilgeman, d/b/a DLH Enterprises; and Pat Montgomery, as park owners of Lake Waldena Resort, Respondents, DOAH Case No. 89-4100, and $931.50 in attorneys fees and costs attributable to the pursuit of the present case to collect those attorneys fees and costs attributable to the defense of the administrative prosecution. See Section 57.111, Florida Statutes.

FINDINGS OF FACT

1. At all times relevant to this inquiry Petitioner was a mobile home park owner as defined by Section 723.003(7), Florida Statutes (1987). Petitioner, Marilyn Hilgeman, his former wife, and Pat Montgomery had administrative charges brought against them through a notice to show cause. In that notice to show cause those three individuals were identified as park owners of Lake Waldena Resort in Silver Springs, Florida. In particular the present Respondent charged the Petitioner and the others with violating Section 723.037(3), Florida Statutes (1987) for having refused to meet with a designated mobile home owners committee within 30 days of giving notice of a lot rent increase and having been requested to conduct that meeting for purpose of discussing the reasons for the increase in the lot rental amount. The accused sought a formal hearing as envisioned by Section 120.57(1), Florida Statutes. That hearing was conducted by the undersigned and a recommended order entered on April 18, 1990, in the aforementioned DOAH Case No. 89-4100.

   
   

2. For reasons set out in the conclusions of law found within the recommended order, the suggested disposition of that case was one which found the several Petitioners innocent of any wrong doing and called for the dismissal of the administrative prosecution.

   
   

3. On July 25, 1990 the prosecuting agency entered its final order in DOAH Case No. 89-4100. It accepted the fact-finding in the recommended order; however, it modified the conclusions of law and recommended disposition. Unlike the recommended order, the final order in its conclusions of law specifically found that the present Petitioner and the others accused had violated Section 723.037(3), Florida Statutes, wherein at page 17 it was held "Therefore, it is concluded Respondent violated Sections 723.037(3), Florida Statutes." The conclusions of law in the final order went on to say that in mitigation of the violation the prosecuting agency had considered the apparent confusion of those Respondents regarding the affect of Rule 7D-32.004(2), Florida Administrative Code, as it might influence the actions of the accused and in particular, the present Petitioner. In the final order concerning the mitigating affects of Rule 7D-32.004(2), Florida Administrative Code, it was decided that notwithstanding any misunderstanding the accused had as to the significance of the Rule it could not alter the statutory requirements of having a meeting within 30 days of the notice of lot rental increase as described in Section 723.037(3), Florida Administrative Code (1987).

   
   

4. The language within Rule 7D-32.004(2), Florida Administrative Code, stated:

   
   

   If requested to do so by the park owner or subdivision developer, the committee shall certify that it has been selected as described in Rule 7D-32.003, Florida Admin- istrative Code. This certification shall include a certificate of all members of the committee attesting to its proper formation under the statute and these rules.

   
   

   For reasons expressed in the recommended order that rule was seen as tolling the 30-day requirement for meeting expressed in Section 723.037(3), Florida Statutes (1987) on the facts found in both the recommended and final orders. This was based upon a recognition that the present Petitioner had employed the rule in an attempt to gain a certification from the committee of mobile home owners prior

   to the conduct of a meeting to discuss the increase in lot rentals. Again, this belief that the rule tolled the requirement for conducting the meeting within 30 days of the notice of lot rental increase expressed in the recommended order was rejected in the final order. The final order controls absent further relief by resort to the appellate court process.

   
   

5. In describing the reasons why the prosecution maintained that the rule could not alter the statutory requirement for holding a meeting within 30 days, the final order states that there are policy considerations that make it important for the committee and the park owner to meet within 30 days and those reasons concern the fact that the rent increase becomes effective within 90 days over the notice, the informational value of having the reasons explained for the lot increase as a prelude to any request to having a dispute about lot rental increases submitted to mediation within 30 days following the scheduled meeting. The final order goes on to describe, through its conclusions of law, that the meeting to discuss lot rental increase was not held until November 14, 1989 over a year after the notice of lot rental increase. That statement comes immediately before the conclusion of law that the present Petitioner had violated Section 723.037(3), Florida Statutes.

   
   

6. In the conclusions of law set out in the final order the prosecuting agency in its paragraph describing the mitigating circumstances acknowledges the possible confusion on the part of the accused as well as the mobile home owners committee when it describes, as did the recommended order, the filing of a complaint by the committee as a means of ostensibly preserving the right to have the meeting envisioned by Section 723.037(3), Florida Statutes (1987), when taken against the background of the opportunity to have a credential check of mobile home owners committee members as envisioned by Rule 7D-32.004(2), Florida Administrative Code. This refers to the issue of whether a meeting could be held after 30 days from the notice of intended lot rental increase absent such a complaint.

   
   

7. In the statement on mitigation the final order recognizes that the administrative prosecution was penal in nature and that Section 723.037(3), Florida Statutes (1987) and Rule 7D-32.004(2), Florida Administrative Code needed to be read in context and should be strictly construed with ambiguities favoring the accused. The final order cites to State v. Pattishall, 99 Fla. 296, 126 So. 147 (1930) and Davis v. Dept. of Professional Regulation, 457 So.2d 1074 (Fla. 1DCA 1984). The treatment of those cases and the resolution of the dispute through final order is one which finds the accused in violation of Section 723.037(3), Florida Statutes (1987), but mitigates the disposition in the way of the penalty based upon the reading given Pattishall and Davis, supra. That factual impression is given when the order in disposition is examined wherein it is stated through the final order, "Based upon the consideration of the facts found, the conclusions of law reached, and the mitigation evidence, it is ordered that the notice to show cause is hereby dismissed."

   
   

8. On August 22, 1990, the present Petitioner noticed an appeal of the final order in the administrative prosecution but later abandoned that appeal before the court had the opportunity to speak to its merits. On October 22, 1990, the present Petitioner filed a petition for collection of attorneys fees and costs spoken to in the statement of issues.

   
   

9. The petition for attorneys fees and costs were subjected to a motion to dismiss based upon a claim of untimeliness and that motion was denied by order of December 10, 1990.

10. The present Respondent requested an evidentiary hearing as contemplated Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code, and the evidentiary hearing was conducted on the date described before.

    
    

11. When the present Petitioner abandoned his appeal to the District Court, he necessarily was placed in the position of arguing that the final order drawn by the prosecuting agency constituted the basis for the claim that he was a small business party who had prevailed in the dispute related to DOAH Case No. 89-4100. See Section 57.111(3)(c)1, Florida Statutes. Contrary to his assertion the final order as described in these facts did not favor the present Petitioner. Although the prosecuting agency did not choose to impose a penalty against the present Petitioner based upon its assessment of matters in mitigation and dismissed the case without exacting a penalty, it had found the present Petitioner in violation of a substantiative provision of law, i.e. Section 723.037(3), Florida Statutes (1987). Thus, the disposition cannot be said to favor the present Petitioner. Having decided this mixed question of fact and law against the present Petitioner, it is not necessary to make findings of fact concerning whether the present Petitioner is a small business party as defined at Section 57.111(3)(d), Florida Statutes and whether the present Respondent was substantially justified in this administrative prosecution related to law and fact as contemplated by Sections 57.111(3)(e) and (4)(a), Florida Statutes, or to examine whether special circumstances exist that would make the award of attorneys fees and costs unjust.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over this matter in accordance with Section 57.111, Florida Statutes and Rule 22I-6.035, Florida Administrative Code.

    
    

13. As is recognized in Section 57.111(3)(c)1, Florida Statutes, the present Petitioner must prove by a preponderance of the evidence that he has prevailed by virtue of a final order entered in his favor by the prosecuting agency in DOAH Case No. 89-4100. See Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc., 549 So.2d 715, (Fla. 1DCA 1989). For reasons described in the fact finding he has failed in this attempt.

    
    

14. In spite of the prosecuting agency's decision not to exact a penalty against the present Petitioner in the final order related to the administrative prosecution in DOAH Case No. 89-4100, it found him in violation of the substantive provision at Section 723.037(3), Florida Statutes (1987). That was a conclusion of law which was adverse to his position. It would have been appropriate to pursue an appeal to set aside that determination of a violation of the subject section. He had standing to pursue that remedy. See Rabren v. Department of Professional Regulation, 15 FLW 2464 (Fla 1DCA 1990). In summary, the decision which the prosecuting agency reached when it held that the present Petitioner had violated Section 723.037(3), Florida Statutes (1987) does not favor the present Petitioner and the willingness to dismiss the case without imposing a penalty based upon the prosecuting agency's assessment of mitigating circumstances does not promote a different result.

ORDER

Therefore, the petition for the collection of attorneys fees and costs in accordance with Section 57.111, Florida Statutes, is dismissed.

DONE and ORDERED this 26th day of April, 1991, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 26th day of April, 1991.

COPIES FURNISHED:

David D. Eastman, Esquire

Parker, Skelding, Labasky & Corry

311 North Monroe Street Tallahassee, FL 32301

Susan C. Marvin Debra Roberts

Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007

E. James Kearney, Director Florida Land Sales, Condominiums

and Mobile Homes

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

Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

================================================================= DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

DONALD L. HILGEMAN, NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED.

vs. CASE NO. 91-1669

DOAH CASE NO. 90-6664F

STATE OF FLORIDA, DEPARTMENT OF BUSINESS REGULATION, et al.,

Appellee.

/ Opinion filed February 12, 1992.

An Appeal from an order of the Division of Administrative Hearings.

David D. Eastman and Jennifer Barker Lavia of Parker, Skelding, Labasky & Corry, for Appellant.

Karl M. Scheuerman, Chief Attorney, Department of Business Regulation, for Appellee.

PER CURIAM.

AFFIRMED.

ERVIN, SMITH, and ALLEN, JJ., CONCUR

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable Charles C. Adams, Hearing Officer

WHEREAS, in that certain cause filed in this Court styled: Division of Administrative Hearings

DONALD L. HILGEMAN, d/b/a DLH ENTERPRISES

v. Case No. 91-1669

STATE OF FLORIDA, DEPARTMENT OF

BUSINESS REGULATION, DIVISION OF Your Case No. 90-6664F FLORIDA LAND SALES, CONDOMINIUMS

AND MOBILE HOMES

The attached opinion was rendered on February 12, 1992.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable James D. Joanos

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 16th day of March, 1992.

Clerk, District Court of Appeal of Florida, First District

Docket for Case No: 90-006664F

Orders for Case No: 90-006664F