STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA MANUFACTURED HOUSING ) ASSOCIATION, INC., a Florida )
incorporated association not for ) profit, and GERRY BARDING, an ) individual, )
)
Petitioners, )
)
vs. ) CASE NO. 88-0815RP
) DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF FLORIDA LAND SALES, ) CONDOMINIUMS AND MOBILE HOMES, )
)
Respondent. )
)
FINAL ORDER
Upon due notice, formal hearing was held in this cause before Ella Jane P. Davis, a duly designated hearing officer of the Division of Administrative Hearings, on March 21, 1988, in Tallahassee, Florida.
APPEARANCES
For Petitioner: David D. Eastman, Esquire
Post Office Box 669
318 North Monroe Street Tallahassee, Florida 32302
For Respondent: Thomas Presnell, Esquire
The Johns Building
725 South Bronough Street Tallahassee, Florida 32393-1007
BACKGROUND AND PROCEDURE
The Petitioner, Florida Manufactured Housing Association, Inc. (FMHA), filed a petition on February 19, 1988, with the Division of Administrative Hearings, pursuant to Section 120.54(4), F.S. (1987), challenging the validity of a proposed rule of the Respondent, Department of Business Regulation (DBR) which had been published in Volume 14, No. 4, Florida Administrative Weekly on January 19, 1988.
At the present time, Rule 7D-32.005(4), Florida Administrative Code provides that:
A request for mediation or arbitration may be denied if the request does not comply with Chapter 723 Florida Statutes and these rules.
DBR has noticed its intention to amend Rule 7D-32.005(4), Florida Administrative Code to, read as follows:
A request for mediation or arbitration shall
be denied if the request does not substantially comply with Chapter 723, Florida Statutes and these rules.
A hearing was noticed in this cause for March 14, 1988. By stipulation of the parties, the hearing date was continued until March 21, 1988. At the formal hearing on that date, the Petitioner presented oral testimony of Mr. Frank Williams, Executive Director of FMHA, and the parties adopted a prehearing stipulation encompassing stipulated facts and identifying issues of law.
In addition to those stipulated facts set forth hereafter, the parties have stipulated to other facts, subject to Respondent's objection that facts relating to past practices of the Division in reviewing mediation requests under an existing rule are irrelevant to the issues raised by this petition to determine the invalidity of a proposed rule. Respondent's practices in reviewing mediation requests in the past are relevant at least as to standing.
Accordingly, Respondent's objection to that evidence is denied.
No transcript was provided. Both parties have submitted proposed findings of fact and conclusions of law within the stipulated time frame, the findings of fact of which are ruled upon in the appendix to this final order, pursuant to Section 120.59(2), F.S..
FINDINGS OF FACT
The Petition filed herein, among other matters, alleges, in pertinent part, that:
This is a petition for determination of the invalidity of a proposed rule of the Department of Business Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, pursuant to Section 120.54(4), Fla. Stat. (1987).
The 1,000 members of the FMHA may be sub- jected to this rule and Gerry Barding as an individual are substantially affected in that the rule has the effect of allowing the DBR to schedule a mediation or arbitration if the request "does not substantially comply with Chapter 723, Fla. Stat., and these rules."
Section 723.037 limits the substantial rights of a party who fails to mediate or arbitrate a dispute under Section 723.037 with the DBR . . . .
* * *
The substantial rights of the members of FMHA will be affected if the DBR is allowed to grant mediation or arbitration requests when the
mobile home owners have not complied with the provisions of Section 723.037, Fla. Stat. (1987).
The proposed rule of the DBR enlarges, modifies, or otherwise contravenes the statu- tory authority granted by Chapter 723, Fla. Stat. (1987), and is unreasonable, arbitrary, and capricious.
Petitioner, FMHA, is an incorporated association not for profit whose members include approximately 1,000 mobile home park owners.
All of the mobile home park members of FMHA own mobile home parks which contain greater than 25 mobile home lots which are offered for lease.
A substantial number of the members of the FMHA on a regular basis annually increase the lot rental amount in their mobile home parks.
The residents of the FMHA members' mobile home parks are entitled to and may request mediation of lot rental amount increases pursuant to Sections
and 723.038, F.S. (1987), and the rules of the Florida Department of Business Regulation.
Requests for mediation have been made in the past by homeowners residing in FMHA members' mobile home parks and many of those mediation proceedings have not yet been completed.
Petitioner, Gerry Barding, is the owner of Pinelake Village Mobile Home Park located in Jensen Beach, Florida.
In the past, Mr. Barding has increased the lot rental amount in Pinelake Village Mobile Home Park and expects to do so in the future. In September 1987, a request for mediation from Pinelake Village residents was not filed within 30 days of the meeting between the park owner and the residents. The Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes reviewed the request for mediation and determined that it was willing to mediate the dispute. The Division requested that Mr. Barding advise it of his willingness or refusal to participate in the mediation. Mr. Barding declined to agree to mediation of the dispute, and the mediation file of the Division was closed.
Sections 723.037(4), F.S. (1987), provides in pertinent part that:
Within 30 days of the date of the scheduled meeting described in subsection (3), the home owners shall request that the dispute be submitted to mediation pursuant to Section
if a majority of the affected home owners have designated, in writing, that:
The rental increase is unreasonable;
The rental increase has made the lot rental amount unreasonable;
The decrease in services or utilities is not accompanied by a corresponding decrease in rent or is otherwise unreasonable; or
The change in the rules and regulations is unreasonable. [Emphasis supplied].
The Department of Business Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes does not interpret Section 723.037(4), F.S., as depriving it of authority to mediate when the request for mediation is filed more than 30 days after the referenced meeting.
Section 723.037(6), F.S., provides that:
No action relating to a dispute described in this section may be filed in any court unless and until a request has been submitted to the Division for mediation and arbitration and the request has been processed in accordance with Section 723.038.
Section 723.037(7), F.S., provides that:
If a party refuses to agree to mediate or arbitrate, or fails to request mediation, upon proper request, that party shall not be entitled to attorney's fees in any action relating to a dispute described in this section.
Section 723.004(4), F.S., provides that:
Nothing in this chapter shall be construed to prevent the enforcement of a right or duty under this section, Sections 723.022; 723.023;
723.031; 723.033; 723.035; 723.037; 723.038;
723.061; 723.0615; 723.062; 723.063; or
723.081 by civil action after the party has exhausted its administrative remedies, if any.
Existing Rule 7D-32.005(3), F.A.C., provides in pertinent part:
The homeowners' committee shall request mediation, or the homeowners' committee and
the park owner may jointly request arbitration, by mailing or delivering the following items
to the Division of Florida Land Sales, Condominiums and Mobile Homes, 725 South
Bronough Street, Tallahassee, Florida 32399-1007:
A completed Form DBR 405, which becomes effective on the same date as this rule and which may be obtained by writing to the Division at the above address, and
A copy of the written designation required by Rule 7D-32.005(1), Florida Administrative Code, and Section 723.037(4),
Florida Statutes; and
A copy of the notice of lot rental increase, reduction in services or utilities, or change in rules and regulations which is being challenged as unreasonable; and
A copy of the records which verify the selection of the homeowners' committee in
accordance with Rule 7D-32.003, Florida Administrative Code, and Section 723.037(3), Florida Statutes. [Emphasis supplied]
Proposed Rule 7D-32.005(4), F.A.C., which was published in Volume 14, No. 4, Florida Administrative Law Weekly (January 29, 1988), and which is here challenged, provides that:
A request for mediation or arbitration shall be denied if the request does not substantially comply with Chapter 723, Fla. Stat., and these rules.
The word "may," which is struck through, is to be deleted from the existing rule now in effect. The underlining indicates that the words "shall" and "substantially" are amendatory language to be added.
Rule 7D-32.005(5), Florida Administrative Code, provides: If the homeowners' committee requests media-
tion, a copy of the four items required by subsection (3) of this rule shall be furnished to the park owner by Certified U. S. Mail, Return Receipt Requested, at the time the request is filed with the Division. Failure to comply with this requirement may result in a delay in scheduling of a mediation meeting until the required items have been furnished to the park owner. [Emphasis supplied]
Rule 7D-32.005(6), Florida Administrative Code, provides:
Within 10 days from the date that the park owner or his agent receives copies of the documents required to be furnished to him pursuant to subsection (5) of this rule, the park owner shall advise the Division in writing of his willingness or refusal to participate in the requested mediation. If the park owner is of the opinion that the home owners or the homeowners' committee have failed to satisfy the statutory requirements set forth in Section 723.037, Florida Statutes, or the requirements of these rules he may indicate his willingness to participate in the mediation process without waiving his objections to the procedures used by the homeowners' committee.
Rule 7D-32.005(7), Florida Administrative Code, provides:
A decision by the Division to grant or deny a request for mediation does not constitute an adjudication of any issues arising under Section 723.037, Florida Statutes. Any dispute concerning the applicability of Section
723.037(6)-(7), Florida Statutes, must be submitted to a court of competent jurisdiction in the event that judicial proceedings are initiated.
Rule 7D-32.001(5), Florida Administrative Code, provides:
`Mediation' means a process whereby a mediator provided by the Division of Florida Land Sales, Condominiums and Mobile Homes partici-
pates in discussions with a homeowners' committee and a park owner concerning the reasonableness of an increase in lot rental amount, change in park rules and regulations, or a decrease in services or utilities. The purpose of the mediator's participation is
to assist the parties in arriving at a mutually agreeable settlement of their differences.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over this proceeding pursuant to Section 120.54(4), F.S.
FMHA is an incorporated association consisting of over 1,000 mobile home park owners who are members of that association. The over 1,000 members of FMHA, one of whom is Gerry Barding, are all regulated by Chapter 723, F.S., and the Florida Department of Business Regulation, Division of Land Sales, Condominiums and Mobile Homes, pursuant to Section 723.006, F.S. (1987)
The business of the mobile home park owner members of the Florida Manufactured Housing Association is the operation and management of mobile home parks in the State of Florida. In the operation of that business, the park owners anticipate and regularly do increase the lot rental amount charged in those mobile home parks.
Upon increase in the lot rental amount, or changing the rules and regulations, or decreasing services or utilities in the mobile home park, the residents of the mobile home park have a right to request mediation pursuant to Section 723.037(4), F.S. (1987). The word request," as used in s. 723.037(4), F.S., is not defined in the statute, but the subparagraphs, which are alternative in nature, contemplate a "writing." Existing Rule 7D-32.005(3) interprets that statutory term to require that the request must be in writing, filed with Department of Business Regulation, Division of Land Sales, Condominiums, and Mobile Homes, and contain the four items specified in (a)-(d) of that rule. That rule, by employing the word "and" contemplates that all four items be included in the mediation request. Existing Rule 7D-32.005(5) provides for a delay in proceedings if all four items specified in Rule subsection
(3)(a)-(d) are not provided to the park owner by certified mail simultaneously with filing with the Division of the four items of request. Proposed Rule 7D- 32.005(4) would further interpret the statute to require that those who request mediation be in substantial compliance with Rules 7D-32.005(3) and (5), among other rules, as well as with the statute or their request will be dismissed/denied. It is Petitioners' initial contention that proposed Rule 7D- 32.005(4) modifies the timeliness requirement for a request for mediation or
arbitration by the residents of a mobile home park pursuant to Section 723.037(4), Florida Statutes (1987), and secondly, that the rule amendment provides no firm guidelines as to what constitutes "substantial" compliance.
The Respondent contends that because Petitioner FMHA did not establish that there is any mediation request which is pending or imminent and which will positively be processed pursuant to the proposed rule, FMHA is without standing to challenge the proposed rule amendment. Respondent concedes, apparently, that it would be impossible to establish that there is any mediation request which is pending or imminent and which will be processed pursuant to the proposed rule because the proposed rule has not yet been adopted or applied.
Respondent further proposes that Sections 723.037(6), (7), F.S., would not apply to FMHA's members or Mr. Barding merely as a result of the Division's willingness to provide a mediator, and since park owners always have the option of agreeing to participate or not to participate in a requested mediation, those provisions could only be applied to the park owner if he refused to mediate. Upon this basis, the agency asserts that because it is each park owner's unilateral decision whether to mediate or not to mediate at some future date, and because there is no pending or imminent litigation, the Petitioners' concern is purely speculative and conjectural. Respondent asserts in favor of this position the case of Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978). Contrariwise, the case of Professional Firefighters of Florida, Inc. v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981 in distinguishing Jerry, held:
In both Jerry and Alice P., supra, the challengers were not subject to the rule or immediately affected by it at the time suit was filed and were unlikely to be affected by it in the future. In contrast, in this case, the individual appellants are presently affected by the rules . . . .
Although the Firefighters case is distinguishable from the present one because Firefighters involves a statewide occupational licensing or certification requirement imposed for the first time upon persons in that occupational field, the case is analogous here on the issue of standing because the Court in Firefighters held that the appellants had standing to challenge the rule "regardless of whether submission to certification or licensing is termed voluntary or not."
Respondent's arguments present conundrums. If either of Respondent's theories is given credence, it would be impossible for any individual or association to ever establish standing to challenge a proposed rule pursuant to Section 120.54(4), F.S., simply because proposed rules, by their very nature, anticipate only future litigation. Therefore, Respondent's argument is not persuasive. Moreover, if the agency were to view this rule amendment as procedural only, it could process pending mediation requests involving FMHA members pursuant thereto.
Additionally, a proper request for mediation impinges upon important, if not precisely property, rights of the park owner and residents. In Section 723.037(6), F.S. (1987), the statute specifically prohibits the filing of an action in any court unless and until a request has been submitted to the Division for mediation. Moreover, in Section 723.037(7), F.S. (1987), if a party refuses to agree to mediate or arbitrate, or fails to request mediation
upon request, that party is not entitled to attorney's fees in any action relating to a dispute described in Section 723.037. Therefore, even if the Division simply closes its file when a park owner declines to mediate with regard to a late filed request by the homeowners for mediation, it is conceivable that the park owner could ultimately be denied attorney's fees and costs should the issue go to court, whereas if the untimely request for mediation had been denied by the agency upon jurisdictional grounds of untimeliness as required by the statute, there would be no issue of whether or not the park owner could be denied attorney's fees in Circuit Court because he declined to mediate.
A substantial number of members of FMHA are affected by the proposed rule. The impact of the rule is not speculative or conjectural in that the members of FMHA are in immediate danger of sustaining a direct injury as a result of the challenged agency's action. See, Village Park v. State Department of Business Regulation, 506 So.2d 426 (Fla. 1st DCA 1987).
FMHA has standing to challenge the proposed rule at issue in this case upon authority of Village Park v. State Department of Business Regulation, supra, and Florida Home Builders Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982).
Gerry Barding, an individual mobile home park owner, also has standing to bring this challenge as established by the facts as found, supra.
The Proposed Rule
Mediation is an alternative dispute resolution form which is established pursuant to Section 723.037, F.S. The right to mediation is invoked when a park owner gives written notice to each affected homeowner in his mobile home park at least 90 days prior to any increase in the lot rental amount, reduction of the services or utilities provided by the park owner, or change in the rules or regulations of the park. A committee, not to exceed five in number, is designated by a majority of affected homeowners or by the board of directors of the Home Owners' Association, if applicable. The homeowners are required to meet at a mutually convenient time with the park owner within 30 days of the notice, to discuss the reason for the increase in lot rental amount, reduction of services or utilities, or change in rules or regulations. Within
30 days of the date of that scheduled meeting, the homeowners have a right to request mediation pursuant to the requirements of Section 723.037(4), F.S.
Section 723.037(4), F.S., provides:
Within 30 days of the date of the scheduled meeting described in subsection (3), the home owners shall request that the dispute be submitted to mediation pursuant to Section
if a majority of the affected home owners have designated, in writing, that:
The rental increase is unreasonable;
The rental increase has made the lot rental amount unreasonable;
The decrease in services or utilities is not accompanied by a corresponding decrease
in rent or is otherwise unreasonable; or
The change in the rules and regulations is unreasonable. [Emphasis supplied].
The Department of Business Regulation has stipulated that the Division does not interpret the above-quoted statutory provision as depriving the Division of authority to mediate when the request for mediation is filed more than 30 days after the referenced meeting. That is, Respondent agency does not now interpret the 30 day provision of Section 723.037(4) to be jurisdictional. That interpretation may foreshadow how DBR will interpret and apply its proposed rule amendment but that interpretation is not binding in this de novo proceeding. What is to be interpreted in this proceeding is the rule as written. Other alternatives of litigation exist if DBR subsequently applies its rule contrary to the rule's clear meaning.
The existing rule provides for discretionary agency dismissal if a mediation application is not in total compliance with the statute and other rules. The amendment to the rule by the use of the word "shall" purports to make agency dismissal mandatory unless there is substantial compliance by the homeowners with the statute and other rules. The use of the word "shall" in the amended rule tracks the use of the word "shall" in the statute, both of which usages are mandatory language.
The term "shall" is normally accorded a mandatory connotation wherever it is used in generic law, be it statutory or regulatory law. Neal v. Bryant,
149 So.2d 529 (Fla. 1962). See also, Webster's New Collegiate Dictionary page 1056 (1979) stating that, the term "shall" is "used in laws, regulations, or directives to express what is mandatory . . ." (This connotation to the term "shall" was referenced in Williams v. State, 378 So.2d 902, 903 (Fla. 5th DCA 1980), and in Murray v. State, 278 So.2d 111 (Fla. 5th DCA 1980).
An exception to the mandatory meaning of the word "shall" was recognized in the case of Reid v. Southern Development Co., 42 So.206 (Fla. 1906). In that case, the court quoted from the decision rendered in Hurford v. City of Omaha, 4 NEB 366, wherein the Nebraska Supreme Court stated:
When a particular provision of a statute relates to some immaterial matters, where compliance is a matter of convenience rather than substance, or where the directions of the statute are given with a view to the
proper, orderly, and prompt conduct of business merely, the provision may be generally be regarded as directory.
The Florida Supreme Court in Neal supra recognized this two-part test from Hurford, supra, at page 532, and added that:
Most certainly, where the statute provides for the deprivation of a property right, the procedural requirements here in question can not be regarded as an `immaterial matter' or
an `matter of convenience rather than substance.
The Third District Court of Appeal addressed the effect of the word "shall" in the notice provision of Section 120.57(1)(b)2. F.S. (1979), and held in Guerra v. State, 427 So.2d 1098 (Fla. 3d DCA 1983), at page 1101, that the conflicting rule of the Department of Labor must give way "in the face of legislative requirement to the contrary" and stated:
By employing the emphatically mandatory word "shall," Section 120.57(1)(b)2. simply and unequivocally requires that every pertinent notice contain the provisions the statute specifies. [Emphasis supplied].
The court therein concluded that "the agency has no choice but to amend its existing rule," Id. at page 1102.
Although Respondent argues that in proper cases, the word "shall" may be construed as permissive or directory only, the cases cited by the Respondent in support of this construction are distinguishable and not persuasive. These cases are: Belcher Oil Co. v. Dade County, 271 So.2d 118 (Fla. 1972); Lomelo v. Mayo, 204 So.2d 550 (Fla. 1967); Schneider v. Gustafson Industries, Inc., 139 So.2d 423 (Fla. 1962); and Brown v. Pumpian, 504 So.2d 481 (Fla. 1st DCA 1987).
In Belcher, citing Lomelo, the court held that, ". . . in proper cases and particularly so where required to conform to constitutional requirements, [the word shall] may be construed as permissive only." Taken together, the opinions in both Belcher and Lomelo suggest that a permissive connotation is to be attributed to the statutory use of the word "shall" only where the statute as a whole indicates that the time requirement is not intended as a limitation on the agency's power to act. That is not the case with Section 723.037(4), nor is there any hint in this case that it is necessary to construe the word "shall" as permissive only, in order for the statute as a whole to survive constitutional assault. See, peripherally, Department of Business Regulation v. National Manufactured Housing Federation, Inc., 370 So.2d 1132 (Fla. 1979). Brown involved peculiarities of remedies available upon a petition for writ of mandamus and so is not truly on point for present purposes, but the language employed with regard to the jurisdictional qualities of timeliness are apropos:
Mandatory language has in a number of cases been construed as directory, dependent upon the history and subject matter of the particular provision, and as a general rule statutes setting the time when a thing is to be done are regarded as merely directory, where no provision restraining the doing of it after that time is included and the act in question is not one upon which jurisdiction depends. Brown, supra at p. 482.
Contrariwise, the statutory time for filing a "request for mediation" is analogous to initiation of a lawsuit by filing with the trial court a "complaint" or filing with an appellate court a "notice of appeal" because the entire dispute resolution process is initiated thereby.
Respondent places great reliance upon Schneider, supra. Therein, the court construed a rule of the old Industrial Commission which stated that a transcript "shall" be filed within 45 days and a similar statutory provision which stated that a transcript "must" be filed within 45 days and the Commission "shall" dismiss the application for review if it is not. The court concluded that the statutory language did not amount to an express prohibition against the exercise of discretion in such dismissal or against the application of a rule of substantial as opposed to strict compliance. See, Schneider, at page 425. Respondent's reliance upon the Schneider case is misplaced. The rule in
question was essentially a procedural appellate rule covering how a transcript should be transmitted, paid for, and filed before an administrative appeals tribunal. That rule did not impinge upon the earlier time frame established by statute and rule for actually initiating the appeal itself by timely filing of the equivalent of a notice of appeal, what was then termed, an "application for review." Timeliness of applications for review before the old Industrial Commission were, indeed, jurisdictional.
By analogy to the instant situation, the time frame for homeowners to make a request for mediation as established by the statutory language of Section 723.037(4), Florida Statutes, is jurisdictional in the same sense as a notice of appeal filed before a District Court of Appeal.
The First District Court of Appeal recently discussed provisions of Section 723.037(2), F.S., in Village Park Mobile Home Association, Inc. v. Department of Business Regulation, supra. Although that case revolved around standing of certain mobile home owners to bring that particular action, the court summarized Section 723.037(2), F.S., with careful regard to mandatory and permissive phrases therein:
According to Section 723.037(2), F.S., once the written notice is given by the park owner, a committee or homeowners' association shall meet with the park owner to discuss the intended changes. According to subsection (3), within 15 days of the meeting, the home- owners, if they decide to contest the changes, shall request that the dispute be submitted to mediation pursuant to Section 723.038 if a majority of the homeowners have stated, in writing, that the rental increase is unreasonable, the decrease in services was not accompanied by a corresponding decrease in rent, or the changes in rules or regulations are unreasonable. According to the Act, if those parties subsequently agree, arbitration rather than mediation may be requested. [Emphasis supplied.]
Id., at page 434. This latter "request" provision is the enabling statute, Section 723.037(4), Florida Statutes, for the proposed rule here under challenge.
Timely request is indeed mandatory under the statute, regardless of the interpretation placed upon that language by the agency at the present time. The proposed rule under challenge clearly employs the word "shall" in compliance with the statute's use of the word "shall" and is valid upon that point.
In their post-hearing submittals, Petitioners also argued that the use of the word "substantially" within the proposed rule constitutes vagueness because it does not reveal how many factors within the statute/rules must be complied with in order to achieve "substantial" compliance. Respondent countered that because the four corners of the original petition do not specifically allege vagueness, the proposed rule cannot be held invalid on that ground.
Section 120.54(4), Florida Statutes (1987), provides, in pertinent part, as follows:
Any substantially affected person may seek an administrative determination of the invalidity of a proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority.
The request seeking determination
under this . . . must state with particularity the provisions of the rule alleged to be invalid with sufficient explanation of the
fact or grounds for the alleged invalidity . . .
Section 120.52, Florida Statutes (1987), provides, in pertinent part as follows:
`Invalid exercise of delegated legislative authority' means action which goes beyond the powers, functions, and duties delegated by
the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:
The agency has materially failed to follow the applicable rulemaking procedure set forth
in Section 120.54;
The agency has exceeded its grant of rule making authority, citation to which is required by Section 120.54(7);
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by Section 120.54(7); and
The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or
The rule is arbitrary or capricious. [Emphasis supplied]
Paragraph 8 of the Petition herein specifically alleges the language contained in Section 120.52(8)(c) and (e) as grounds for finding an "invalid exercise of delegated authority." Although the four corners of the Petition does not also specifically allege subparagraph (d), that is, "vagueness," the interaction of the words "shall" and "substantially" has been clearly alleged, and should the rule be too vague, it would also be rendered "arbitrary and capricious."
The interests of a mobile home park owner and a mobile home park tenant necessarily compete. Because of the fundamental nature of the conflict (the owner seeking to maximize profit and the tenant seeking affordable living accommodations with reasonable services and amenities), and because of the pervasiveness of mobile home living in Florida, the application of such rules is of such a great public moment that they require some standard by which consistency of application may be obtained. As written, the proposed rule's use of the word "substantially" renders it vague in that it fails to establish adequate standards for agency decisions. The use of the word "substantially"
attempts to modify and render discretionary the clearly mandatory nature of the word "shall" as used in terms of the 30 days jurisdictional time frame contained in the statute. The word "substantially" in the proposed rule may legitimately be read so as to permit amendments to a timely request for mediation but it fails to provide any guidelines to enable park owners, mobile home owners, or DBR to determine when a party has satisfied the requirement of "substantially" complying with Rule 7D-32.005(3), which has four mandatory conjunctive requirements for every type of dispute. (The statute specifies only four disjunctive requirements dependent upon the type of dispute). As written, the proposed rule gives no hint as to how many factors must be complied with in order to meet "substantial" compliance. It is thus left to the unbridled discretion or whim of Division personnel to pronounce when "substantiality" has been achieved. This would permit arbitrary and capricious decisions.
FINAL ORDER
Upon the foregoing findings of fact and conclusions of law cited here and, it is
ORDERED that proposed rule 7D-32.005(4), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this day of 1st day of July 1988.
ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1050
Filed with the Clerk of the Division of Administrative Hearings this day 1st day of July 1988
APPENDIX TO FINAL ORDER DOAH Case No. 88-0815RP
The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF) pursuant to s. 120.59(2), Florida Statutes. Petitioner's PFOF:
Covered in FOF 2.
Covered in FOF 3.
Covered in FOF 4.
Covered in FOF 5.
Covered in FOF 6.
Covered in FOF 7.
Covered in FOF 8.
8-10. See evidentiary ruling "Background and Procedure." Although various conditionally stipulated facts were admitted in evidence and are accepted, they were not all necessary to resolve the issue of this case. The proposals not adopted are subordinate and unnecessary to the facts as found in FOF 8, 10, 14,
and 16-17. It is noted that FOF 16 and 17 only quote rules and do not depend upon stipulations of the parties. See also COL 13, 14, and 22.
Covered in FOF 9.
Covered in FOF 10.
Covered in FOF 11.
Covered in FOF 12.
Covered in FOF 13.
Respondent' s PFOF:
Rejected in "Background and Procedure" and FOF 1.
Covered in FOF 2.
Covered in FOF 7.
4-5. Covered in FOF 15 except to the extent the proposal is subordinate.
Covered in FOF 5.
Covered in FOF 4, 6,
Covered in FOF 9.
Covered in FOF 11.
Covered in FOF 12.
Covered in FOF 19.
Covered in FOF 18. 13-14. Covered in FOF 1.
COPIES FURNISHED:
E. James Kearney, Director Department of Business Regulation Division of Florida Land Sales,
Condominiums, and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32393-1000
David D. Eastman, Esquire Post Office Box 669
318 North Monroe Street Tallahassee, Florida 32302
Thomas Presnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Liz Cloud, Chief
Bureau of Administrative Code The Capitol - 1802
Tallahassee, Florida 32399-0250
Carroll Webb, Executive Director Administrative Procedure Committee
120 Holland Building Tallahassee, Florida 32399-1300
| Issue Date | Proceedings |
|---|---|
| Jul. 01, 1988 | Final Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 01, 1988 | DOAH Final Order | Proposed rule held invalid because ""substantially"" cannot be determined in a four sub-part listing |
