Judges: K. N. AYERS
Agency: Department of Business and Professional Regulation
Latest Update: Nov. 01, 1985
Summary: Mobile home subdivisions are not governed by same statutes as mobile home parks.
85-2366.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF ) FLORIDA LAND SALES, ) CONDOMINIUMS AND MOBILE ) HOMES, )
)
Petitioner, )
)
vs. ) CASE NO. 85-2366
) CONTINENTAL COUNTRY CLUB, ) INC., d/b/a CONTINENTAL ) VILLAGE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above-styled case on September 24, 1985, at Bushnell, Florida.
APPEARANCES
For Petitioner: John C. Courtney, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: David Eastman, Esquire
318 North Monroe Street Tallahassee, Florida 32301
By Amended Notice to Show Cause the Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes seeks to enter a cease and desist order, impose civil penalties and/or enter an order requiring Continental Country Club, Inc., d/b/a Continental Village, Respondent, to take such affirmative action as necessary to comply with the provisions of Chapter 723, Florida Statutes (1984 Supp.). As
grounds therefor it is alleged Respondent failed to give written notice to lot owners at least 90 days prior to changing the rules and regulations pertaining to monthly maintenance charges.
At the beginning of the hearing the parties presented a joint prehearing stipulation accompanied by Exhibits A through
The stipulated facts are contained in Findings of Fact 1 through 14 below and the lettered exhibits are admitted. Thereafter, Petitioner called three witnesses, Respondent called two witnesses, and exhibits numbered 1 through 11 were admitted into evidence.
Proposed recommended orders have been submitted by the parties. There is no dispute regarding the facts herein involved. Accordingly, all proposed findings of fact submitted by Respondent are included in the findings below. Those of Petitioner not included are listed in Appendix A with reason for not being included. Proposed conclusions of law have been considered and are discussed below. Those not included herein are rejected as not consistent with the statutes and proper interpretation thereof.
FINDINGS OF FACT
Continental Country Club is a residential subdivision consisting of several mobile home lots located in Wildwood, Florida.
Each of the residents in the subdivision owns his or her mobile home and, although some residents lease their lots from Continental Country Club, Inc., the great majority of the residents own lots in the subdivision which were purchased from Respondent, or its predecessors, and upon which the residents' mobile homes are placed. This administrative action relates solely to the individuals owning lots in the subdivision.
All of the property in the Continental Country Club subdivision is subject to an instrument entitled "Amended and Restated Declaration of Restrictions," recorded on January 27, 1975, in the Public Records of Sumter County, Book 160, page 315 (Exhibit A).
The only modification to the declaration referenced in paragraph 3 above is a document dated September 9, 1983, which applies only to certain lots and is entitled "Amendment to Amended and Restated Declaration of Restrictions" (Exhibit B).
The Respondent, Continental Country Club, Inc., is the current developer of Continental Country Club and has succeeded to the rights of Continental Country Club Community, Inc., the previous developer of the subdivision.
At all times material to this proceeding, Respondent owned and operated a portion of the Continental Country Club subdivision, or amenities exclusively serving the subdivision, including a marina, streets, street lights, and drainage facilities.
Exhibit C contains a true and correct graphical description of the Continental Country Club subdivision.
Prior to March 1, 1985, each lot owner was required to pay a monthly maintenance charge of sixty-five dollars ($65.00) as provided in paragraph 3 of the Amended and Restated Declaration of Restrictions (Exhibit A).
On or about February 20, 1985, in accordance with paragraph 3 of the Amended and Restated Declaration of Restrictions, Respondent mailed a notice to the lot owners in the subdivision (Exhibit D), advising them that effective March 1, 1985, the monthly maintenance charge would be one hundred thirty-five dollars ($135.00). This was the first notice the lot owners received regarding the increase in maintenance fees.
On or about July 8, 1985, Respondent sent the lot owners a letter regarding maintenance charges (Exhibit E).
On or about July 12, 1985, Respondent, through its attorney, Chris Ford, mailed another letter to the lot owners (Exhibit F). The fact that the above-referenced July 8 and July
12 letters, regarding the notice of increase in maintenance charges, were mailed to each of the lot owners is not at issue in this case.
Subsequent to mailing the above-referenced letters, Respondent has billed lot owners at Continental Country Club for maintenance charges at a monthly rate of one hundred thirty-five dollars ($135.00) effective June 1, 1985. Pursuant to the declaration of restrictions (Exhibit A), Respondent has sent notices of intent to file liens and has recorded liens against lots in the subdivision based upon the failure of the lot owners to timely pay the increased portion of maintenance fees charged after June 1, 1985.
Rules and regulations for the Amended and Restated Declaration of Restrictions are as contained in Exhibit G.
All lot owners at closing were given a copy of the declaration of restrictions (effective December 16, 1974, Exhibit 3). Paragraph 3 thereof provides for owners to pay monthly maintenance charges which "shall be subject to adjustment at any time during the term hereof and shall be effective as far as each owner is concerned upon receipt of an invoice containing a new maintenance charge." These purchasers were also told that the covenants and restrictions outlining the duties and responsibilities of the developer and lot owners ran with the land and followed the property to subsequent purchasers. The warranty deed to the lot purchased conveyed these lots subject to "covenants, conditions, restrictions, rules and regulations of record, together with amendments thereto" (Exhibit 4.) Two lot owners testified in these proceedings that they did not recall receiving a copy of these covenants and restrictions at closing but both of them signed an acknowledgment that they had received a copy at closing (Exhibits 5 and 8).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings. The issues presented in this case are:
Is Respondent subject to the provisions of Section 723.037(1), Florida Statutes (1984 Supp.) and, if so,
Did the Respondent give the 90-day notice required before changing the rules and regulations (increasing the maintenance fee)?
Section 723.002, Florida Statutes (1984 Supp.) provides:
The provisions of this chapter apply to any residential tenancy in which a mobile home is placed upon a rented or leased lot in a mobile home park in which 10 or more lots are offered for rent or lease. This chapter shall not be construed to apply to any other tenancy, including a tenancy in which both a mobile home and a mobile home lot are rented or leased by the mobile home
resident or a tenancy in which a rental space is offered for occupancy by recreational-vehicle-type units which are primarily designed as temporary living quarters for recreational camping or travel use and which either have their own motor power or are mounted on or drawn by another vehicle. When both the mobile home and lot are rented or when fewer than ten lots are available for rent or lease, the tenancy shall be governed by the provisions of part II of chapter 83, the "Florida Residential Landlord and Tenant Act". (Emphasis supplied.)
The provisions of ss. 723.035, 723.037, 723.038, 723.054, 723.055, 723.056, and
723.068 are applicable to mobile home subdivision developers and the owners of lots in mobile home subdivisions.
Continental Country Club is a mobile home subdivision as defined in Section 723.003(7), Florida Statutes, where the individual lots are owned by owners and a portion of the subdivision or the amenities exclusively serving the subdivision are retained by the subdivision developer. Respondent is successor to the developer of that subdivision and stands in the shoes of the developer.
Section 723.004(1), Florida Statutes, provides in pertinent part:
There is hereby expressly preempted to the state all regulation and control of mobile home lot rents and mobile home parks and those other matters and things relating to the landlord-tenant relationship treated by or falling within the purview of this chapter.
Section 723.005, in providing for regulation by the Petitioner, states:
The division has the power and duty to enforce and ensure compliance with the provisions of this chapter and rules promulgated pursuant thereto relating to the
rental, development, and sale of mobile home parks.
Other than in Section 723,002(2) above-quoted and Section 723.003(7), Florida Statutes, which defines a mobile home subdivision, Chapter 723 refers to mobile home subdivisions only in Section 723.074, which requires the owner of recreational facilities or other property exclusively serving a mobile home subdivision to give the lot owners first right of refusal before selling these facilities to an outside purchaser.
Those sections of Chapter 723 above-quoted all regulate mobile home parks—not mobile home subdivisions. However, Section 723.037(1), which is made applicable to mobile home subdivisions by Section 723.002(2), provides in pertinent part:
A park owner shall give written notice to each mobile home owner at least 90 days prior to any lot rental increase, reduction in services or utilities, or changes in rules and regulations.
In statutory construction the legislative intent is determined primarily from the language of the statute; and the legislature is assumed to know the meaning of the words and to have expressed its intent by using them in the enactment. SRG Corp. v. Department of Revenue, 365 So. 2d 687 (Fla. 1978). The starting point for interpreting a statute is the language of the statute itself absent a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive. Consumer Product Safety Commission v. GTE Sylvania, 447 U.S. 102, 100 S. Ct. 2051, 64 L.Ed 2d 766 (1980) Thayer v. State 335 So. 2d 815 (Fla. 1976).
By defining mobile home parks and mobile home subdivisions, the legislature obviously recognized the differences between them and, except for those sections made applicable to subdivisions by Sections 723.002(2) and 723.074 relating to the sale of facilities, mobile home subdivisions are not again referred to in Chapter 723.
Rule 7D-31.01, Florida Administrative Code, defines lot rental as:
All consideration paid by the homeowner to the park owner. It includes rent, special
use fees, pass-through charges, fees, assessments, and any other financial obligations of the homeowner to the park owner, which are related to the tenancy. (Emphasis supplied.)
By its language this rule is limited to parks and does not include subdivisions. By the specific language of the rule, those special use fees, assessments, etc., provided for in this rule are only those charges related to the tenancy. The land owners here involved are not tenants except in the very broadest sense, and there is no landlord-tenant relationship between them and the developer. Black's Law Dictionary, Fifth Edition (1979) defines tenant at page 1314 as:
In the broadest sense, one who holds or possesses lands or tenements by any kind of right or title, whether in fee, for life, for years, at will, or otherwise. In a more restrictive sense, one who has the temporary use and occupation of real property owned by another person (called the "landlord"), the duration and terms of its tenancy being usually fixed by an instrument called a "lease". One who occupies another's land or premises in subordination to such other's title and with his assent, express or implied. One renting land and paying for it either in money, or part of crop or equivalent.
It would appear that "charges related to the tenancy" is intended to include only those tenancies where a landlord- tenant relationship exists. This conclusion is buttressed by the language of Section 723.002(1) above-quoted, which states this chapter is applicable to residential tenancies in which a mobile home is placed upon a rented or leased lot in a mobile home park and not to any other tenancy.
Petitioner also cites Rule 7D-32.01(5), F.A.C. as authority for the broad interpretation of tenancy to include lot owner. That rule provides:
"Lot rental" means all amounts as defined in Rule 7D-31.01, Florida Administrative Code, to be paid by the homeowner to the park owner or to the subdivision developer.
Rule 7D-31.01, F.A.C., above-quoted is limited, by its very terms, to payments made "by the homeowner to the park owner." Rule 7D-32.01(5) is the latest enacted rule and its terms prevail. An interpretation of 7D-32.01(5) to correlate the two rules to eliminate a conflict and remain consonant with Chapter 723 is that if some residents of mobile home developments rent the lot on which their mobile home sits, then all payments they make for the privilege of occupying the lot are included in the definition of "lot rental." Any other interpretation is in conflict with the provisions of Section 723.002(1).
Here, it is unnecessary to conclude that the maintenance charges imposed on the homeowners by the developers are not lot rentals or rules or regulations which require 90 days' notice to the homeowners before they can be changed. By making the maintenance charges effective more than 90 days after the homeowners were notified of these changes, the developer has complied with Section 723.037.
From the foregoing it is concluded that the developer, by making the changes in maintenance charges presented to lot owners February 20, 1985, effective June 1, 1985, rather than March 1, 1985, gave the lot owners 90 days' notice prior to making this change. This has the effect of giving lot owners 90 days' notice prior to the change in the monthly maintenance fees and puts the developer in compliance with Section 723.037, Florida Statutes. It is
RECOMMENDED that the Amended Notice to Show Cause be dismissed.
ENTERED this 1st day of November, 1985, at Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301 904/488-9675
FILED with the Clerk of the Division of Administrative Hearings
this 1st day of November, 1985.
APPENDIX
Petitioner's proposed findings of fact not specifically included in findings with reason for non-inclusion.
7. Included in Finding 8. Remainder of Petitioner's 7 not deemed necessary to the results reached.
9. Conclusions of law, and so treated.
Not necessary to results reached.
Not material to allegations.
Not material to allegations.
Preliminary matters leading to the hearing held.
COPIES FURNISHED
John C. Courtney, Esq.
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
David Eastman, Esq.
318 North Monroe Street Tallahassee, Florida 32301
E. James Kearney, Director Division of Florida Land Sales,
Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
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AGENCY FINAL ORDER
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STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION
725 SOUTH BRONOUGH STREET - JOHNS BUILDING TALLAHASSEE, FLORIDA 32301
DEPARTMENT OF BUSINESS REGULATION, DIVISION OF FLORIDA LAND SALES,,; CONDOMINIUMS AND MOBILE HOMES,
Petitioner,
vs. DOCKET NO. 85109MHP
(DOAH) Case No. 85-2366
CONTINENTAL COUNTRY CLUB, INC , d/b/a CONTINENTAL VILLAGE,
Respondent.
/
FINAL ORDER
This cause comes before the Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (hereinafter the Division) for issuance of a final order, pursuant to section 120.59, Florida Statutes, following a formal hearing before a hearing officer for the Division of Administrative Hearings. The hearing officer has issued a recommended order which is partially incorporated herein by reference below and which is attached hereto as Exhibit A. No exceptions have been filed to the above recommended order.
Having reviewed the record herein, including the recommended order referenced above, the Division makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
The findings of fact contained in the recommended order, Exhibit A, are adopted in their entirety as the findings of fact of this agency.
CONCLUSIONS OF LAW
As reflected in the conclusions of law recited below, the recommended conclusions of law are rejected in part and are adopted in part. To the extent that the recommended order implies that the maintenance charges at issue in this case are not lot rental fees, as defined in section 723.037, Florida, Statutes, and Rules 7D-31.01(2) and 32.01(5), Florida Administrative Code, the recommended conclusions are rejected on the basis that they misinterpret the above statute and rules.
To the extent that the recommended order finds that respondent complied with the notice provisions of the above statute and recommends dismissal of the instant notice, the recommended order is adopted. Consistent with the above recitals, the Division makes the following conclusions of law:
The Division of Administrative Hearings has jurisdiction over these parties and the subject matter of this proceeding.
Continental Country Club is a mobile home subdivision, as defined in section 723.003(7), Florida Statutes, and respondent is the developer of that subdivision.
The Division was authorized to bring this enforcement action against respondent pursuant to sections 723.005 and
723.006 of the Florida Statutes.
The maintenance charges at issue herein constitute lot rental fees under section 723.037, Florida Statutes, and respondent was required to give each lot owner at Continental Country Club written notice at least ninety days prior to increasing these maintenance charges.
Section 723.037, which specifies the notice which must be given before increasing lot rental fees, provides, in part:
A park owner shall give written notice to each mobile home owner at least ninety days prior to any lot rental increase, reduction in services or utilities, or change in rules and regulations
In turn, the Division has promulgated Rule 7D-31.01, Florida Administrative Code, defining the term "lot rental" as:
all consideration paid by the homeowner to the park owner. It includes rent, special use fees, pass-through charges, fees, assessments, and any other financial obligations of the homeowner to the park owner, which are related to the tenancy.
More to the point in the present case, the notice requirements of the above statute are specifically made applicable to mobile home subdivisions, through the terms of section 723.002(2), Florida Statutes, and Rule 7D-32.01, Florida Administrative Code. Taken together, the statute and the rules require that subdivision lot owners receive advance notice of increases in certain charges, identified in the above rules, when such charges are assessed against them by a subdivision developer.
The maintenance charges involved here come within the rule definition of lot rental, therefore, notice of an increase in these charges was required. This procedure, 1n turn, enables lot owners in a mobile home subdivision to utilize the mandatory non-judicial remedies spelled out in the above statute for resolving any dispute over these charges.
By making the maintenance charges effective more than ninety days after the homeowners were originally notified of these increased charges, and absent a finding that the homeowners sought to timely avail themselves of the remedies provided in section 723.037, Florida Statutes, the developer has complied with the notice requirements of the above statute.
ORDER
Based upon the above findings of fact and conclusions of law, it is ordered that the amended notice to show cause herein be dismissed. This final order may be appealed pursuant to section 120.68, Florida Statutes, and Rule 9.10, Florida Rules of Appellate Procedure, by filing a Notice Of Appeal conforming to the requirements of Rule 9.10(d), Florida Rules of Appellate Procedure, both with the appropriate District Court of Appeal and with this agency within thirty days of rendition of this order, accompanied by the appropriate filing fees.*
*Note: Page 4 of the Agency Final Order filed with this Division is not available and therefore not a part
of this research database.
Docket for Case No: 85-002366
Orders for Case No: 85-002366
