STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

)

Petitioner, )

)

vs. ) CASE NO. 89-7037

) HAINES CITY INVESTMENT, INC., ) d/b/a MINERVA MOBILE HOME PARK, )

)

)

Respondent. )

)

RECOMMENDED ORDER

On November 13, 1990, a formal administrative hearing was held in this case in Lakeland, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Debra Roberts, Esquire

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

For Respondent: No Appearance

STATEMENT OF THE ISSUES

The issues in this case are: (1) whether, on three separate occasions, the Respondent raised the rent at Minerva Mobile Home Park without first delivering to the lessees an approved prospectus, as alleged in the Notice to Show Cause, Docket No. MH89446, issued on November 1, 1989; and (2), if so, what is the appropriate penalty.

PRELIMINARY STATEMENT

On or about June 12, 1990, counsel of record for the Respondent moved to withdraw. Leave to withdraw was granted on June 14, 1990, and papers were thereafter served on the Respondent in care of its President, Albert Labossiere. Although an Order Continuing Final Hearing to November 13, 1990, was entered on August 8, 1990, and a copy mailed to Mr. Labossiere on behalf of the Respondent at the Minerva Mobile Home Park, where his mail was received and forwarded to him by express mail, and an Amended Notice of Hearing for November 14, 1990, was issued on September 7, 1990, and a copy likewise sent to Mr. Labossiere at the Minerva Mobile Home Park, and although Mr. Labossiere also had actual telephonic notice of the final hearing approximately ten days before the hearing, neither

Mr. Labossiere not anyone else appeared at the final hearing on November 14, 1990, on behalf of the Respondent.

At the final hearing, the Petitioner presented the testimony of one of its enforcement officers and of 11 homeowners of Minerva Mobile Home Park. The Petitioner also introduced ten exhibits in evidence, including a transcript of the deposition of the former manager of Minerva Mobile Home Park. Explicit rulings on the proposed findings of fact contained in the Petitioner's proposed recommended order may be found in the attached Appendix to Recommended Order, Case No. 89-7037.

FINDINGS OF FACT

1. The Respondent, Haines City Investment, Inc., is the owner of Minerva Mobile Home Park located in Haines City, Florida. There are approximately 72 lots for lease in Minerva Mobile Home Park.

   
   

2. On or about January 6, 1988, a Final Order was entered by the Petitioner finding, among other things, that the Respondent had raised the rent on lots in Minerva Mobile Home Park, effective January 1, 1986, without first filing a prospectus with the Petitioner (and therefore also without delivering to the homeowners an approved prospectus.) Among other things, the Final Order fined the Respondent $3,000 and ordered the Respondent to deliver an approved prospectus to each homeowner entitled to receive one within 15 days. During the pendency of a court appeal of the Final Order, on or about April 29, 1988, the Respondent entered into an Agreement to Remit Civil Penalty and Annual Fees.

   
   

3. Effective January 1, 1987, the Respondent increased the monthly lot rental in Minerva Mobile Home Park by $11.

   
   

4. Effective January 1, 1988, the Respondent increased the monthly lot rental in Minerva Mobile Home Park by $4.50.

   
   

5. Effective January 1, 1989, the Respondent increased the monthly lot rental in Minerva Mobile Home Park by $6.

   
   

6. Effective January 1, 1990, the Respondent increased the monthly lot rental in Minerva Mobile Home Park by $12.50, to $134.50 per month.

   
   

7. The 11 homeowners who testified all paid all rent increases charged by the Respondent.

   
   

8. The Respondent first filed a prospectus for Minerva Mobile Home Park for approval by the Petitioner in October, 1986. By this time, the Respondent had given the homeowners a copy of the proposed, but unapproved prospectus. However, the proposed prospectus was not approved by the Petitioner, and several revisions were made. The final revision was not approved until May 20, 1987. The approved prospectus was not delivered to the homeowners of the Minerva Mobile Home Park until some time in March, 1990.

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 723.011(1), Florida Statutes (1989), requires a mobile home park containing 26 or more lots to file a prospectus with the Petitioner. In general terms, a prospectus is designed to notify the prospective homeowner in the park precisely what home ownership in the park will cost and precisely what the homeowner will get for his money. See Section 723.012, Florida Statutes

   (1989). "Delivery shall be made prior to execution of the lot rental agreement or at the time of occupancy, whichever occurs first. Upon delivery of a prospectus to a prospective lessee, the lot rental agreement is voidable by the lessee for a period of 15 days." Section 723.011(2), Florida Statutes (1989). See also Section 723. 014, Florida Statutes (1989).

   
   

10. Section 723.031(7), Florida Statutes (1989), provides, in pertinent part:

    
    

    No park owner may increase the lot rental amount until an approved prospectus has been delivered if one is required. This subsection shall not be construed to prohibit those increases in lot rental amount for those lot rental agreements for which an approved prospectus was required to be delivered and which was delivered on or before July 1, 1986, if the mobile home park owner had:

    1. Filed a prospectus with the division prior to entering into the lot rental agreement;

    2. Made a good faith effort to correct deficiencies cited by the division by responding within the time limit set by the division, if one was set; and

    3. Delivered the approved prospectus to the mobile home owner within 45 days of approval by the division.

       
       

11. Under the evidence in this case, it is clear that the Respondent was required by Section 723.031(7) to have delivered an approved prospectus to the home owners in Minerva Mobile Home Park before each of the proposed lot increases referred to in the Findings of Fact. No approved prospectus was delivered until approximately March, 1990. Under Section 723.031(7), it was unlawful for the Respondent to charge the rent increases referred to in the Findings of Fact before March, 1990. Starting in April, 1990, the current lot rent of $134.50 per month is valid and enforceable.

    
    

12. Section 723.006(5)(b), Florida Statutes (1989), authorizes the Petitioner to "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."

    
    

13. Section 723.006(5)(d), Florida Statutes (1989), authorizes the Petitioner to "impose a civil penalty against a mobile home park owner . . . for any violation of this chapter, a properly promulgated park rule or regulation, or a rule or regulation promulgated pursuant hereto." It provides: "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."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order requiring that the Respondent refund the illegal rent increases to the homeowners (or former homeowners) in Minerva Mobile Home Park and requiring the Respondent to pay a

$1,500 civil penalty.

RECOMMENDED this 26th day of November, 1990, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 November, 1990.

COPIES FURNISHED:

Debra Roberts, Esquire Assistant General Counsel Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

Albert Labossiere, President Haines City Investment, Inc. 2800 Minerva Park

Haines City, Florida 33844

E. James Kearney, Director Department of Business

Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes

The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Joseph A. Sole, Esquire General Counsel

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF BUSINESS REGULATION, DIVISION OF FLORIDA LAND SALES, MOBILE HOMES AND CONDOMINIUMS, WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF BUSINESS REGULATION, DIVISION OF FLORIDA LAND SALES, MOBILE HOMES AND CONDOMINIUMS, CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 89-007037

Orders for Case No: 89-007037