STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 92-2961

) PARK BRITTLE AND PHYLLIS BRITTLE, )

)

Respondents. )

)

RECOMMENDED ORDER

Notice was provided and on August 27, 1992, in Tallahassee, Florida, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCES

FOR PETITIONER: E. Harper Field, Esquire

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

FOR RESPONDENTS: George Carswell, Esquire

Post Office Box 508 Monticello, Florida 32344

STATEMENT OF THE ISSUES

This case concerns a Notice to Show Cause served by Petitioner on Respondents, by which Petitioner orders Respondents to cease and desist their activities, to pay statutory fees, and to be assessed penalties. The activities in question are associated with the alleged need for Respondents to pay annual fees for mobile home lots rented within an alleged mobile home park operated by Respondents from the years 1984 through 1991. See, Section 723.007, Florida Statutes. Based upon the alleged nonpayment of the annual fees, Petitioner seeks to impose a civil penalty in accordance with Section 723.006(5)(d)1., Florida Statutes.

PRELIMINARY STATEMENT

Petitioner served the Notice to Show Cause on Respondents providing the option to contest the facts alleged by requesting a formal hearing. Respondents availed themselves of that opportunity. The case was then forwarded to the Division of Administrative Hearings to assign a Hearing Officer to conduct that hearing. The hearing was held on the aforementioned date.

At hearing, Petitioner called Respondent, Park T. Brittle, Elizabeth Baker, and Helen Peavy as witnesses. Park T. Brittle testified in his own defense and Respondents' exhibit no. 1 was admitted into evidence.

Following the filing of the hearing transcript, the parties, through counsel, have submitted Proposed Recommended Orders. Those Proposed Recommended Orders have been considered and their fact finding is discussed in an Appendix within this Recommended Order.

FINDINGS OF FACT

1. In 1978, Park T. Brittle purchased property in Leon County, Florida, which had been foreclosed on by Barnett Bank. This property had been originally developed by Miles Salgret. Prior to the purchase by Park T. Brittle, some lots had been sold by Mr. Salgret, approximately four in number. The property in question is known as Briarwood Estates. The Briarwood Estates is for use by mobile home owners who either own or rent lots on this property.

   
   

2. Subsequent to his purchase, Park T. Brittle had the property surveyed by Tom Howard, a surveyor. Through this survey, a plat was prepared. The plat was submitted to the Leon County Property Appraiser. Subsequent to that time, beginning in 1980, the lots within Briarwood Estates have been individually assessed by the Property Appraiser for tax purposes. That is to say that the tax assessment is made on the individual lot owners.

   
   

3. Park T. Brittle has sold 29 or 30 lots during his ownership.

   
   

4. The property that is described in the plat is property in which the individual lot owners own to the center line of the roads which adjoin the lots.

   
   

5. Respondents provide water and street lights as amenities within Briarwood Estates. Respondents are billed for these utilities and, in turn, charge individual lot owners for the amenities.

   
   

6. In addition to the mobile home lots which have been sold, beginning with 1984 when the Florida Mobile Home Act was passed, the relevant time frame in this inquiry, Respondents have rented 10 or more mobile home lots on the property known as Briarwood Estates. These lots were rented to residential mobile home owners. More specifically, Respondents have continually collected monthly rents for mobile home lots on the property from 16 residential mobile home owners. All 16 of these mobile homes, during the period of 1984 through 1991, were mobile homes which were at least 8 feet by 35 feet in dimension.

   None of these 16 mobile homes are owned by Respondents. The 16 lots are not for purposes of rental spaces for RVs.

   
   

7. In view of an attempt to institute a rental increase for the mobile home lots which Respondents rented at Briarwood Estates, a complaint was made to Petitioner concerning Respondents' intention to increase the rental fees. Respondents deferred to the requirements set forth by Petitioner concerning rent increases for those lots rented to the residential mobile home owners. Respondents complied notwithstanding Respondents' claimed uncertainty concerning the necessity to follow the guidelines and requirements established by Petitioner for adopting rent increases for lots rented to residential mobile home owners at Briarwood Estates. The uncertainty asserted by Respondents concerned the question of whether the 16 lots for which Respondents receive rents are part of a mobile home park, as defined in Section 723.003(6), Florida

   Statutes. Respondent, Park T. Brittle, testified at page 17 in the hearing transcript: "I attempted to follow those guidelines, not because I felt obligated, but if indeed later on it was determined that I was operating a mobile home park, I wanted to be sure that I was clear on that part of it." This refers to the increases in lot rental fees.

   
   

8. Respondents do not concede that they are operating a mobile home park as it pertains to the payment of annual fees for each of the 16 lots in the amount of $1.00 in 1984 and $3.00 from 1985 through 1991, together with a 10% late fee charge for each year and each lot if the fees were not paid prior to December 31st of the year in question. Consequently, the fees for the 16 lots in the years 1984 through 1991 have not been paid. The amount due for the annual lot fees and penalties is $387.20.

   
   

9. In addition to the amount assessed for annual fees for the lots and penalties for late payment, historically, Petitioner has assessed a $500.00 fine per year for noncompliance with the requirement to pay annual lot fees.

   
   

10. Respondents do not believe that they are operating a mobile home park, rather it is their assertion that they are operating a mobile home subdivision.

    
    

11. Respondents have cooperated with the Petitioner in the investigation concerning the payment of annual fees for lot rentals which was occasioned by inquiries by Park Brittle as well as a complaint by a tenant in one of the sixteen lots in question over increases in the monthly mobile home lot rental fees.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section120.57(1), Florida Statutes.

    
    

13. Section 723.002(1), Florida Statutes, in pertinent part establishes the applicability of Chapter 723, Florida Statutes, to persons who own or operate a mobile home park wherein it is states:

    
    

    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. . . .

    
    

14. By contrast a limited number of references within Chapter 723, Florida Statutes, are related to mobile home subdivision developers and the owners of lots in mobile home subdivisions. That limitation is described in Section 723.002(2), Florida Statutes, where it states:

    
    

    The provisions of ss. 723.035, 723.037,

    723.038, 723.054, 723.055, 723.056, 723.058,

    and 723.68 are applicable to mobile home subdivision developers and the owners of lots in mobile subdivisions.

    
    

15. The term mobile home is defined at Section 723.003(3), Florida Statutes:

    The term "mobile home" means a residential structure, transportable in one or more sections, which is 8 body feet or more in width, over 35 body feet in length with the hitch, built on an integral chassis, designed to be used as a dwelling when connected to the required utilities, and not originally sold as a recreational vehicle, and includes the plumbing, heating, air-conditioning, and electrical system contained therein.

    
    

16. The definition of "mobile home owner" or "home owner" is set forth at Section 723.003(5), Florida Statutes, where it states:

    
    

    The term "mobile home" or "home owner" means a person who owns a mobile home and rents or leases a lot within a mobile home park for residential use.

    
    

17. The definition of "mobile home park" or "park" is set out in Section 723.003(6), Florida Statutes, where it states:

    
    

    The term "mobile home park" or "park" means a use of land in which lots or spaces are offered for rent or lease for the placement of mobile homes and in which the primary use of the park is residential.

    
    

18. The definition of "mobile home park owner" or "park owner" is set out in Section 723.003(7), Florida Statutes, where it states:

    
    

    The term "mobile home park owner" or "park owner" means an owner or operator of a mobile home park.

    
    

19. The definition of "mobile home subdivision" is set out in Section 723.003(8), Florida Statutes, where it states:

    
    

    The term "mobile home park subdivision" means a subdivision of mobile homes where individual lots are owned by owners and where a portion

    of the subdivision or the amenities exclusively serving the subdivision are retained by the subdivision developer.

    
    

20. The 16 lots which Respondents have consistently rented since 1984 constitute a "mobile home park" or "park" in that those lots have been rented for placement of 16 "mobile homes". The "mobile homes" have been residential structures throughout that period and the park where those "mobile homes" have been placed has been primarily used for residential purposes. Given that there were 16 lots rented over the period of time associated with residential tenancies through the "mobile homes" placed upon the rented lots in the mobile home park, all the provisions within Chapter 723, Florida Statutes, are relevant to Respondents' ownership and operation of the "mobile home park" or "park" as "mobile home park owners" or "park owners." This includes the requirements of Section 723.007, Florida Statutes, which states:

    Each mobile homes park owner shall pay to the division, on or before October 1 of each year, an annual fee in the amount of $3 for each mobile home lot within a mobile home park which he owns. If the fee is not paid by December 31, the mobile home parkowner shall be assessed a penalty of 10 percent of the amount due, and he shall not have standing to maintain or defend any action in the courts of this state until the amount due, plus any penalty, is paid.

    
    

21. The language set out in Section 723.007, Florida Statutes, has remained the same from 1985-1991 and is similar to the 1984 language in that provision, with the exception that the annual fee in 1984 was $1.

    
    

22. In the period 1984-1991 Respondents owe $387.20 in accordance with the fee structure established in Section 723.007, Florida Statutes.

    
    

23. For failing to pay the annual fees described Respondents are subject to the penalty provision set forth at Section 723.006(5)(d)1, Florida Statutes, which states:

    
    

    The division may impose a civil penalty against a mobile home park owner or homeowners' association, or its assignee or agent, 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 impose don 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. All amounts collected shall be deposited with the Treasurer to the credit of the Division of Florida Land Sales, Condominiums, and Mobile Homes Trust Fund.

    
    

24. In deciding an appropriate civil penalty it is taken into account that the Respondents have been cooperative with the Petitioner. It is also noted that the historical civil penalty for not paying the annual fees has been $500 per year. Moreover, Respondents' defense has been taken into account in which Respondents urge that the operation at Briarwood Estates in its entirety is a "mobile home subdivision". While that argument is not accepted, the comfort which Respondents had in their interpretation that Briarwood Estates in its entirety constitutes a "mobile home subdivision" tends to mitigate against a substantial civil penalty.

    
    

25. The 29 or 30 lots which the Respondents have sold to mobile home owners in Briarwood Estates and the individual tax assessment for lots within Briarwood Estates are consistent with the definition of a "mobile home subdivision," but that portion of Briarwood Estates associated with the 16 lots which are rented to "mobile home owners" undermines the argument that the entire Briarwood Estates is a "mobile home subdivision". Correctly stated, the portion of Briarwood Estates in which the 16 lots have been consistently rented in the

period 1984-1991 is a "mobile home park" or "park", and the area of Briarwood Estates where the 29 or 30 lots have been sold constitutes a "mobile home subdivision".

RECOMMENDATION

Upon consideration of the Findings of Fact and Conclusions of Law, it is RECOMMENDED that final order be entered which requires Respondents to pay

$387.20 in annual fees and penalties for the period 1984-1991, and assesses a

civil penalty in the amount of $500.

DONE and ENTERED this 7th day of October, 1992, 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 7th day of October, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2961

The following discussion is given concerning the proposed facts of the parties:

Petitioner's Facts:

Paragraphs 1 through 11 are subordinate to facts found. Paragraph 12 is not necessary to the resolution of the dispute. Paragraph 13 is subordinate to facts found.

Respondents' Facts:

Paragraphs 1 through 7 are subordinate to facts found.

COPIES FURNISHED:

E. Harper Field, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007

George Carswell, Esquire Post Office Box 508 Monticello, Florida 32344

Henry M. Solares, Director

Department of Business Regulation, Florida Land Sales Condominiums and Mobile Homes

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

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STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION

DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES

STATE OF FLORIDA,

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

Petitioner,

v. CASE NO. 92-2961

PARK BRITTLE AND PHYLLIS BRITTLE,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings in the above-styled case submitted a Recommended Order to the Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (hereinafter Division). A copy of that Recommended Order is attached hereto.

FINDINGS OF FACT

The Division hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The Division hereby adopts and incorporates by reference the Conclusions of Law set forth in the Recommended Order, except Conclusion 25, which the Division rejects on the ground that the first part of 25 is redundant, and the last sentence is not a correct statement of law.

Based upon the foregoing, it is

ORDERED AND ADJUDGED that Respondent be required to pay Three Hundred Eighty Dollars and Twenty cents ($380.20) in annual fees and late fees for the period 1984 through 1991. In addition, Respondent be required to pay a civil penalty in the amount of Five Hundred Dollars ($500.00).

DONE AND ORDERED this 29th day of October 1992.

HENRY M. SOLARES, DIRECTOR

Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1004

COPIES FURNISHED:

George Carswell, Esquire Post Office Box 508 Monticello, Florida 32344

Charles C. Adams, Hearing Officer Division of Administrative Hearings

E. Harper Field

Assistant General Counsel

W. James Norred, Chief Bureau of Mobile Homes

RIGHT TO APPEAL

THIS FINAL ORDER, WHICH CONSTITUTES FINAL AGENCY ACTION, MAY BE APPEALED 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 FEES, AND WITH THIS AGENCY WITHIN 30 DAYS OF RENDITION OF THIS ORDER.

Docket for Case No: 92-002961

Orders for Case No: 92-002961