STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 92-5692

) DALE B. DOWNING, R. E. DOWNING, )

R. E. DOWNING, and H. W. WHITCOMB, ) individually and as partners, d/b/a ) CORLEY ISLAND MOBILE MANOR, )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice, the Division of Administrative Hearings by its duly assigned Hearing Officer, William R. Cave, held a formal hearing in the above- captioned matter on March 10, 1993 in Bradenton, Florida.

APPEARANCES

For Petitioner: E. Harper Field, Esquire

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

For Respondents: J. Allen Bobo, Esquire

LUTZ, WEBB, PARTRIDGE, BOBO & BAITTY

Suite 504, One Sarasota Tower Two North Tamiami Trail Sarasota, Florida 34236

STATEMENT OF THE ISSUE

Whether the amount collected from the tenants of Corley Island Mobile Manor by the Respondent for improvement and repairs to its sewage treatment plant was a "pass-through charge" as defined in Section 723.003(10), Florida Statutes, or was it collected as a matter of custom between the mobile home park owner and the mobile home owner or disclosed prior to tenancy in accordance with Section

723.031 (6), Florida Statutes.

PRELIMINARY STATEMENT

By a Notice To Show Cause dated August 26, 1992, the Petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, seeks to enter a cease and desist order, and impose civil penalties against the Respondents pursuant to Section 723.006, Florida Statute. In the

Notice To Show Cause the Petitioner alleges that the Respondents collected from each tenant in Corley Island Mobile Manor (Park) a charge of $408.24 for improvements and repairs to the Park's sewage treatment plant in violation of Section 723.031, Florida Statutes, in that: (a) the improvements and repairs were not mandated by a governmental entity and therefore, the charges could not be collected as a "pass-through charge" as defined in Section 723.003(10), Florida Statutes; (b) the charges had not been disclosed prior to tenancy as a fee, charge, or assessment that was the responsibility of the tenant or; (c) the charges had not been collected as a matter of custom between the Park and its tenants. By letter dated September 10, 1992, the Respondents requested a formal hearing. By letter of transmittal dated September 18, 1992, the Petitioner requested the Division of Administrative Hearings to assign a Hearing Officer and conduct of a formal administrative hearing in this matter.

At the hearing, the Petitioner presented the testimony of Elizabeth A. Baker. Petitioner's exhibits 1 through 15 were received as evidence in this case. Respondents presented the testimony of Dale B. Downing. Respondent's exhibits 1 through 20 were received as evidence in this case. Respondent's exhibits 16 and 17 are the depositions of H. Lee Miller and Richard O. Newman, respectively, that were received in lieu of their live testimony at the hearing. The Hearing Officer took Official Recognition of Chapter 723, Florida Statutes (1991). It was requested by the parties that the undersigned take Official Recognition of certain Department of Environmental Regulation rules, however, the parties did not advise the undersigned of the particular rules that they wished to be Officially Recognized as agreed to at the hearing (TR 154-157), therefore, there has been no Department of Environmental Regulation rules Officially Recognized in this proceeding.

A transcript of this proceeding was filed with the Division of Administrative Hearings on April 1, 1993. The parties timely filed their Proposed Recommended Orders. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Petitioner is the state agency governing the landlord tenant relationship in mobile home parks subject to Chapter 723, Florida Statute.

   
   

2. The Park is, and at all times pertinent to this proceeding, has been a mobile home park subject to Chapter 723, Florida Statutes.

   
   

3. The Park is owned equally by Respondents, Dale B. Downing, R. E. Downing and H. W. Whitcomb. The Park is operated under the name of Corley Island Mobile Manor.

   
   

4. The Park's wastewater is handled through a package treatment plant owned and operated by the Respondents (the WWTF).

   
   

5. Under its original configuration, wastewater entered the WWTF through an aeration tank. The Park utilized two separate aeration tanks where the wastewater was agitated and allowed to come in contact with oxygen and enzymes. This started the treatment process. After the wastewater flowed through the first and the second aeration tanks, it spilled into a clarifier. The clarifier

   is a quiet tank where solids are allowed to settle into a hopper shaped bottom for removal or additional treatment. The clear wastewater at the top of the clarifier flows into a chlorine contact chamber and then out to percolation ponds which allow the wastewater to filter into the ground water through the bottom of the ponds.

   
   

6. Prior to November of 1987, the Park was experiencing increased flows of wastewater through the WWTF. The Respondents first investigated the collection system for the infiltration of ground water into the system. The Park also inspected the mobile homes and fixed any leaky faucets, toilets, etc.

   
   

7. The Respondents retained Altair Maintenance to examine the collection system using television cameras and to make necessary repairs. On July 8, 1983, Altair Maintenance invoiced the Park for $3,450.00 for these services.

   
   

8. Altair Maintenance was called back for additional work in December of 1985 for the repair of manholes at a total charge of $4,124.25. Altair was again called on July 1, 1992 for maintenance of the WWTF at a cost of $1,898.75.

   
   

9. Extensive repairs to the manholes and other parts of the WWTF were completed by Roto-Rooter Plumbing. Roto-Rooter was paid $24,090.00 for a May 13, 1983 invoice and $5,891.50 for a July 22, 1983 invoice.

   
   

10. Even further repairs to the Park's WWTF were made by Superior Asphalt. It was paid $3,413.00 for replacement of a manhole.

    
    

11. The above-described sums were not charged to the residents of the Park.

    
    

12. In spite of the maintenance activities described above, the Park continued to experience problems with increased wastewater flows into the WWTF. During peak flow hours (approximately 11:00 A.M.) the normally clear wastewater flowing out of the clarifier into the chlorine contact chamber would become cloudy.

    
    

13. This wash through of solids resulted from increased flows during peak flow hours. Wastewater would not remain in the clarifier for a sufficient period of time for the solids to settle out. These solids would spill out of the clarifier or "wash through" causing the wastewater flowing into the chlorine contact chamber to become dark due to the heavy solids content.

    
    

14. The agency of state government having jurisdiction over the permitting and operation of wastewater treatment facilities is the Department of Environmental Regulation ("DER").

    
    

15. On November 3, 1987, the DER issued a warning notice to the Park because of an abnormally high amount of solids content and a high BOD level in the wastewater flowing from the WWTF. The DER issued a notice of violation on the same grounds on December 1, 1987.

    
    

16. The agency of local government having jurisdiction over the WWTF is the Lake County Pollution Control Department.

    
    

17. Respondent, Dale Downing, spoke with an employee of the Lake County Pollution Control Department, Roy Green, to determine the measures necessary to resolve this "wash through" of solids. Green told Dale Downing that he would

    not be able to make the plant perform unless the Park modified the WWTF by adding a digester and surge tank.

    
    

18. A digester is a holding tank for solids, a by-product of the treatment process. Solids remain in the holding tank until removed by a removal service.

    
    

19. A surge tank is a large tank placed at the front of a wastewater treatment facility which catches the initial inflow of wastewater. Regardless of the rate of flow into the surge tank, pumps release the wastewater from the tank at a uniform rate. A surge tank allows an operator to balance the flow of wastewater through the WWTF eliminating these peak flow problems.

    
    

20. The DER permit for the Park's WWTF was due to expire in January of 1988. The Respondents applied for a new permit but were told that the standard five year operating permit could not be issued because of the warning notices and notices of violation the Park had received because of high suspended solids and BOD levels in the effluent.

    
    

21. The DER suggested that the Park get a temporary permit while corrections were being made to bring the plant up to performance standards.

    
    

22. Respondent, Dale Downing, traveled to the DER's office in Orlando for a meeting with its permitting supervisor, Lee Miller. Miller confirmed that the Park's only options to alleviate its WWTF problems were a connection to the City of Leesburg's municipal system or the addition of a surge tank and digester to the existing plant.

    
    

23. The Park's engineer, Richard Newman, prepared plans and specifications for the addition of a surge tank and digester to the WWTF which were submitted to the DER for approval.

    
    

24. The DER accepted the modifications on the condition that the Park eliminate its single-cell percolation pond and construct a two-cell percolation pond system.

    
    

25. The modifications were completed by the Respondents. As a result, the DER issued a standard five year permit. The WWTF has been trouble free since the modifications were placed in service.

    
    

26. The actual expenses necessary for the plant modifications and the construction of the two-cell percolation ponds were passed through to the Park residents. The total costs of these improvements were divided by the Park's

    151 lots and charged to each resident on a pro rata basis ($61,644.31/151=

    $408.24). The Respondents considered this charge as a "pass-through charge".

    
    

27. The maintenance, or lack of maintenance, of the Park's WWTF had no impact on the need for the modifications (capital improvements) to the Park's WWTF.

    
    

28. There is competent substantial evidence to establish facts to show that the capital improvements, including the two-cell percolation pond, made to the Park's WWTF by the Respondents were governmentally mandated in that DER would not have granted a permit to the Respondents for the operation of the Park's WWTF without these minimum capital improvements. And, the costs of such capital improvements come within the definition of "pass-through charges" as defined in Section 723.003(10), Florida Statutes.

29. The prospectus for the park discloses in Article VIII that each resident's lot rental amount could be increased to recover the cost of the modifications to the WWTF.

    
    

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

31. Section 723.006(5)(b) and (d)1., Florida Statues, empowers the Petitioner to issue cease and desist orders or impose a civil penalty against mobile home park owners or homeowners' association, or its assignee or agent for any violation of Chapter 723, Florida Statutes.

    
    

32. Section 723.003(10), Florida Statutes, defines a "pass- through charge" as follows:

    
    

    (10) The term "pass-through charge" means the mobile home owner's proportionate share of the necessary and actual direct costs and impact or hookup fees for a governmentally mandated capital improvement, which may include the necessary and actual direct costs and impact or hookup fees incurred for capital improvements required for public regulated utilities.

    
    

33. Section 723.031(6), Florida Statutes, provides as follows:

    
    

    (6) Except for pass-through charges, as defined in this chapter, failure on the part of the mobile home park owner or developer to disclose fully all fees, charges, or assessments prior to tenancy, unless it can be shown that such fees, charges, or assessments have been collected as a matter of custom between the mobile home park owner and mobile home owner, shall prevent the park owner or operator from collecting said fees, charges, or assessments; and refusal by the mobile home owner to pay such fee, charge, or assessment shall not be used by the park owner or developer as a cause for eviction in any court of law. (emphasis supplied).

    
    

34. In this proceeding, the burden was upon the Petitioner, as the regulatory agency, to establish facts upon which its allegations of misconduct are based. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (2 DCA Fla. 1977). Also the Petitioner must prove the material allegations of the Notice To Show Cause by a preponderance of the evidence. The Petitioner has failed to sustain its burden in this regard.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order dismissing the Notice To Show Cause filed in this case and any enforcement action against the Respondents.

RECOMMENDED this 1st day of June, 1993, at Tallahassee, Florida.

WILLIAM R. CAVE

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 1st day of June, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5692

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Petitioner's Proposed Findings of Fact.

1. Proposed Findings of Fact 1 through 4, 8 through 13 and 15 through 21 are adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant or immaterial.

2. Proposed Findings of Fact 5 through 7 and 14 are rejected as not being supported by competent substantial evidence in the record.

Respondent's Proposed Findings of Fact.

1. Proposed Findings of Fact 1 through 26 and 28 through 35 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant or immaterial.

2. Proposed Findings of Fact 27 and 28 are covered in the Preliminary Statement and Conclusions of Law, respectively.

COPIES FURNISHED:

E. Harper Field, Esquire Assistant General Counsel Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

J. Allen Bobo, Esquire

LUTZ, WEBB, PARTRIDGE, BOBO & BAITTY, P. A.

Suite 504, One Sarasota Tower Two North Tamiami Trail Sarasota, Florida 34236

Janet Ferris, Secretary Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1000

Henry M. Solares, Director Division of Florida Land Sales,

Condominiums And Mobile Homes Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1000

Donald D. Conn, Esquire General Counsel Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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.

Docket for Case No: 92-005692

Orders for Case No: 92-005692