STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WESTSIDE RIDGE ADULT MOBILE ) HOME COMMUNITY, )
)
Petitioner, )
)
vs. ) CASE NO. 96-0273
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, William R. Cave, Hearing Officer, Division of Administrative Hearings, held a formal hearing in this matter by telephonic communications on February 23, 1996.
APPEARANCES
For Petitioner: Timothy F. Campbell, Esquire
Clark, Comparetto & Campbell, P.A. Cleveland Heights Boulevard
Post Office Box 6559 Lakeland, Florida 33807
For Respondent: Jack Emory Farley, Esquire
Department of Health and Rehabilitative Services
District 14
270 Bartow Municipal Airport Bartow, Florida 32830
STATEMENT OF THE ISSUES
Did Westside Ridge Adult Mobile Home Community (Westside) violate Rule 10D-26.085, Florida Administrative Code, by having standing water in its mobile home park for more than 48 hours?
If so, is this sufficient basis for the Department of Health and Rehabilitative Services (Department) to deny Westside's application for renewal of its mobile home park operating permit?
PRELIMINARY STATEMENT
Westside timely filed its application for renewal of its permit to operate its mobile home park for the permit year beginning October 1, 1995. On November 26, 1995, the Department issued its Denial of Application for Mobile Home Park/Recreational Vehicle Park Operating Permit. Westside timely filed its Request For Hearing with the Department. On January 9, 1996, the Department
referred the matter to the Division of Administrative Hearings (Division) for the assignment of a Hearing Officer and the conduct of a hearing.
The parties requested, and were granted, a telephonic hearing. Prior to the hearing, the parties submitted a joint Prehearing Stipulation with stipulated facts numbered 1 through 10 and 12 through 14 and six joint exhibits attached, identified as exhibit "A" through exhibit "F". The parties stipulated to these exhibits being received as evidence. Additionally, the parties stipulated to the depositions of Paul Ayers, Bob Sokoloskis and David Arnold, exhibits "G", "H" and "I", respectively, being received as evidence in lieu of their live testimony at the hearing. Exhibits "A" through "I" were received as evidence. Neither party presented any other evidence, oral or documentary, at the hearing.
There was no transcript of the proceeding filed with the Division. The parties timely filed their Proposed Recommended Orders. A ruling on each proposed finding of fact submitted by Petitioner and the Department has been made as reflected in an Appendix to the Recommended Order.
FINDINGS OF FACT
Upon consideration of the deposition testimony and documentary evidence presented by the parties in this case, the following findings of fact are made:
Westside Ridge, Ltd., a Florida limited partnership, is the owner of Westside Ridge Adult Mobile Home Community.
Under Chapter 513, Florida Statutes, the Department, in conjunction with the representative county public health units, such as the Polk County Public Health Unit, is the agency charged with the responsibility of inspecting mobile home parks such as Westside to assure their compliance with public health laws and rules.
On August 14, 1995, the Department inspected Westside and found water underneath some of the mobile homes in the park; water covering some of lots in the park; and water ponding in some of the streets in the park. This water had been standing for more than 48 hours.
The Department's inspector issued an Inspection Report dated August 14, 1995. This report indicated that the unsatisfactory condition found at the mobile home park was the park drainage. The report stated that all violations of standing water must be corrected within 14 days.
Westside received a copy of the Inspection Report from the August 14, 1995, inspection in a timely manner.
Sometime around September 10, 1995, Westside retained the services of
J. D. Smith Exterminators, Inc. (Smith), a professional pest control service, to treat any standing water in Westside's mobile home park.
Westside has not corrected the conditions which affected the drainage in the mobile home park and resulted in the water standing in the park for over
48 hours.
The Department contends that the rule requires Westside correct the conditions - either fill in the depressions in the soil or provide proper
drainage of the water - which affect the drainage and results in water standing over 48 hours in the mobile home park.
Westside contends that the rule does not prohibit water standing over
48 hours where the water is treated and does not contribute to mosquito or fly breeding.
By letter dated September 15, 1995, Westside advised the Department that Westside would retain a professional pest control service to prevent any standing water from contributing to mosquito or fly breeding. Westside also requested that the Department advise it if the Department intended to seek enforcement pursuant to the Department's interpretation of Rule 10D-26.085, Florida Administrative Code. Apparently, the request concerning enforcement was made as a result of a telephone conversation between one of the Department's representatives and Westside's counsel on Thursday, September 14, 1995, concerning the Department's interpretation of the rule and what the Department intended to require Westside to correct the alleged violation of the rule.
The Department did not advise Westside or its counsel of its intent to pursue enforcement.
On or about September 10, 1995, Smith visited Westside mobile home park and found water standing as reported on the August Inspection Report but did not treat the water because Smith did not have the necessary chemical on hand. On or about September 13, 1995, Smith returned to Westside's mobile home park to treat the standing water but, upon arrival, Smith did not find any standing water at the mobile home park that required treatment.
Before Westside's current annual mobile home park operating permit expired, Westside timely filed its application with the Department for the renewal of its mobile home park operating permit.
The Department issued a Denial Of Application For Mobile Home Park/Recreational Vehicle Park Operating Permit dated November 26, 1995, denying Westside's application for its annual mobile home park operating permit.
The basis of the Department's denial was that Westside mobile home park had violated Rule 10D-26.085, Florida Administrative Code, in that the mobile home park had been found to have standing water in the park in excess of the 48 hour period allowed by the rule. The denial also warned Westside that unless it had requested a hearing, or ceased operating the park, or remit a plan of action to remove all standing water and measures to prevent reoccurrence of the violation that Westside would be cited for operating without a valid permit within 30 days.
During the summer of 1995, there was an above-average rainfall in Polk County, Florida which resulted in flooding problems in mobile home parks located throughout Polk County, Florida, including Westside's mobile home park. Based on the testimony of the Department's employees involved with the inspection of mobile home parks, the flooding conditions were the worst seen in Polk County, Florida in 25 years.
The is no evidence of how long water had been standing in Westside's mobile home park before the Department's inspection on August 14, 1995, other than it had been standing over 48 hours. There is no evidence of Westside being cited for having water standing in its park for over 48 hours at any time previous to the August 14, 1995, inspection.
There is no evidence of any water standing, for any length of time, in Westside's mobile home park, after September 14, 1995. Although the inspection report for January 10, 1996, indicates water standing in drainage ditches along the sides of Westside mobile home park, there is no evidence that these drainage ditches are in fact within the park boundary.
The Department did not inspect Westside mobile home park again until January 10, 1996, which was after the issuance of the denial of the permit on November 26, 1995. There were no violations or unsatisfactory conditions, such as drainage, indicated on the Department's January 10, 1996, Inspection Report, notwithstanding that the Department's position is that since Westside has failed to correct the drainage problem which resulted in the standing water it continues to be in violation of Rule 10D-26.085, Florida Administrative Code.
Treating standing water with chemicals to prevent mosquito and fly breeding does not solve all of the public health problems that may be associated with water that has been standing for long periods of time.
It is the Department's position that water standing in the park for more than 48 hours is a violation of Rule 10D-085, Florida Administrative Code, and, without any other violation, is sufficient to deny the application for the operating permit.
Other than the violation for having standing water in the park for over 48 hours and the failure to correct the conditions which resulted in the standing water, the Department concedes that Westside meets all other criteria for granting the application for a mobile home park operating permit.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings pursuant to Section 120.57(1), Florida Statutes (1995).
In a permit application proceeding, the party asserting the affirmative of an issue has the burden of presenting evidence as to that issue. Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981). Thus Petitioner had the burden of presenting evidence of its entitlement to the permit. However, as in this case, where the denial of the permit is based solely on an alleged violation of a rule regulating the operation of mobile home parks, the Department has the burden of proving by a preponderance of the evidence that Petitioner had violated the rule and were thus not entitled to the permit. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, et al., (21 Florida Law Weekly S142, March 29, 1996).
Section 513.01(1), Florida Statutes (1995), defines the term "Department" as used in Chapter 513, Florida Statutes, to mean the Department of Health and Rehabilitative Services, and includes its representative county public health units.
Sections 513.02 (1) and (2), Florida Statutes (1995), in pertinent part provide:
A person may not [establish] or [maintain] a mobile home park . . . in this state without
first obtaining a permit from the Department
. . . [Each permit must be renewed annually].
The department may refuse a permit to, [or refuse to renew the permit of], any park or
camp that is not [constructed] or [maintained] in accordance with law and with the rules of the department. (Emphasis supplied)
In accordance with the authority granted under Section 513.05, Florida Statutes, the Department adopted Rules 10D-26.085 and 10D-26.086, Florida Statutes, which in pertinent part provide:
10D-26.085 Insect and Rodent Control.
Standing water over 48 hours shall not be allowed in the mobile home or recreational vehicle park and the premises shall be kept free of refuse and debris which may provide harborage for rodents or contribute to mos- quito or fly breeding . . . Effective measure shall be taken by the owner or operator to control mosquitoes, flies and other harmful insects as well as vector type arachnids such as fleas and ticks.
10D-26.086 Owner's Responsibility. It shall be the park owner or operator's respons- ibility to [maintain the in full compliance with all ordinances, rules, and laws appli-
cable to the parks]. . . . (Emphasis supplied)
An agency's interpretation of its own rule should be given great weight. The Department's interpretation of the rule that water standing in the mobile home park in excess of 48 hours, notwithstanding that the water may be chemically treated, although correct, is a very strict interpretation of the rule. Therefore, since Westside allowed standing water in the park in excess of
48 hours there was a violation of Rule 10D-26.085, Florida Administrative Code, albeit a "technical violation". However, without more, such violation would not be sufficient to deny Westside's its renewal application for a mobile home park operating permit.
Just as the Department must require that a mobile home park be constructed so as not to adversely affect the public health, the Department must also require that once constructed and permitted the mobile home park must be maintained so as not to adversely affect the public health. Therefore, if a condition becomes apparent in a mobile home park after it is constructed and permitted that may adversely affect the public health, the Department must require the mobile home park to correct that condition. However, in the instant case, it has not been proven that under normal rainfall that the condition would create a situation where the public health would be adversely affected.
In order for a Mobile home park to have its annual operating permit renewed, it must be shown that the park is being maintained in accordance with all ordinances, rules and laws. In that regard, any ongoing condition within the park which could create a problem that would adversely affect the public health must be corrected in order to have the park's operating permit renewed. However, in the instant case, the problem arose due to an above-average rainfall (probably highest in 25 years) in Polk County during the summer of 1995 which resulted in flooding in many of the parks in Polk County, including Westside.
It has not been proven that the Westside park has had, or may have in the future, a problem with standing water under normal rainfall. Therefore, the Department has failed to prove, under the appropriate standard of proof, that by failing to correct the condition which resulted in water standing over 48 hours in the park during abnormal rainfall, that Westside has violated Rule 10D- 26.085, Florida Administrative Code. However, the situation in the Westside park does need to be monitored by the Department so as to determine if this condition creates standing water in excess of 48 hours under normal rainfall.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order granting Petitioner's application for a mobile home operating permit. However, it is further recommended that the Department monitor the Westside mobile home park so as to determine if conditions presently existing at the park result in water standing in the park in excess of 48 hours under normal rainfall. If water found is to be standing in the park in excess of 48 under normal rainfall, the Department should then move to require Westside to correct the condition.
RECOMMENDED this 7th day of May, 1996, 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 7th day of May, 1996.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0273
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.
Proposed findings of fact 1 through 11, 13, 16, 17, 19 through 25, 29, 30, 31 and 33 through 36 are adopted in substance as modified in the Findings of Fact 1 through 22.
Proposed findings of fact 12 and 26 through 28 are neither material nor relevant.
Proposed findings of fact 14, 15 and 37 through 41 are argument rather than findings of fact.
Proposed findings of fact 18 and 32 are not supported by evidence in the record.
Department's Proposed Findings of Fact.
Proposed findings of fact 1 through 22 are adopted in substance as modified in Findings of Fact 1 through 22.
Proposed findings of fact 23 and 24 are argument rather than findings of fact.
COPIES FURNISHED:
Gregory D. Venz, Agency Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Richard Doran, General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Timothy F. Campbell, Esquire Clark, Comparetto & Campbell, P.A. 4740 Cleveland Heights Boulevard Post Office Box 6559
Lakeland, Florida 33807
Jack Emory Farley, Esquire Department of Health and
Rehabilitative Services District 14
270 Bartow Municipal Airport Bartow, Florida 33830
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.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
WESTSIDE RIDGE ADULT MOBILE HOME COMMUNITY
Petitioner,
vs . CASE NO. 96-0273
RENDITION NO. HRS-96-380-FOI-HST
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
Respondent.
/
FINAL ORDER
This cause is before me for entry of a Final Order. Petitioner challenges the department's denial of its annual mobile home park operating permit. The hearing officer concluded that a violation of rule 10D-26.085, Florida Administrative Code, occurred as a result of standing water in petitioner's mobile home park, but that the standing water was the result of abnormally high regional rainfall at that time. He opined that petitioner's failure to effect structural changes to the grounds of the mobile home park did not constitute a violation of rule 10D-26.085 or rule 10D-26.086 1/, because the department did not establish that the standing water problem would recur under normal rainfall conditions. Consequently, the hearing officer recommended that the department grant petitioner's application for the annual operating permit, but that the department continue to monitor the park for standing water under normal rainfall conditions to determine if there is a continuing violation of the applicable rule. After an extension of time was orally granted, both parties timely filed exceptions to the Recommended Order.
Petitioner concurs with the hearing officer's recommendation that the annual operating permit be issued, but excepts to the finding that there was, at any point, a violation of rule 10D-26.085, Florida Administrative Code, and to the recommendation that the department continue to monitor the park to determine if there is a standing water condition during a period of normal rainfall.
Petitioner also argues that there is no record evidence for the hearing officer's finding that "[t]reating water standing water with chemicals to prevent mosquito and fly breeding does not solve all of the public health problems that may be associated with water that has been standing for long periods of time."
The department takes exception to the hearing officer's conclusion that the cited violation of rule 10D-26.085 was insufficient to warrant denial of the annual operating permit. The department also contends that it is immaterial
under the rule whether the standing water condition was precipitated by normal or exceptional rainfall, and that the hearing officer improperly added a "normal rainfall" clause to the rule.
The Recommended Order is approved and adopted, except to the extent that paragraph 30 and the Recommendation could be read to insert into rule 10D-26.085 a "period of normal rainfall" criteria for discerning a violation of the standing water prohibition. The hearing officer correctly concluded that the standing water resulting from excessive rainfall which disappeared some five months prior to the renewal period for petitioner's operating permit, was an insufficient basis to conclude that petitioner was in continuing violation of rule 10D-26.085 and/or rule 10D-26.086. Such a conclusion, however, does not support the position that a violation of the rules occurs only when standing water is present during periods of normal rainfall.
The department testified at the hearing that flooding such as that which occurred at petitioner's mobile home park can create depressions in the topography which increase the likelihood of future flooding in the same area. In this case, the department could only speculate on such reoccurrence of flooding because no evidence suggested that standing water was present at any time other than the single reported violation. Should a pattern of rainfall followed by standing water in the park develop, the department would be justified in mandating corrective action by petitioner, regardless of the level of rainfall precipitating the problematic condition. The department need not establish that the rainfall for a given period was "normal" in order to determine that a unacceptable standing water condition exists. As the hearing officer concluded, the department should continue to monitor the subject premises to determine if a recurring problem has been created.
Accordingly, it is Ordered that petitioner's application for a mobile home park operating permit is GRANTED.
RULING ON EXCEPTIONS
The parties' exceptions to the Recommended Order are rejected to the extent the exceptions are inconsistent with this Final Order. Specifically, I reject petitioner's contention that the hearing officer erred by finding that chemical treatment of standing water does not preclude a determination that a rule 10D-
26.085 violation exists. That finding was supported by competent substantial evidence. 2/ Under petitioner's view of rule 10D-26.085, it would be acceptable for a mobile home park to have on it's roads and underneath homes, large semi-permanent bodies of standing water full of pesticides. Such a situation would pose an imminent health risk to the park's residents.
DONE and ORDERED this 2nd day of December, 1996, in Tallahassee, Leon County, Florida.
EDWARD A. FEAVER, Secretary Department of Health and
Rehabilitative Services
By: RICHARD HUNTER
Deputy State Health Officer
ENDNOTES
1/ Rule 10D-26.086, Florida Administrative Code, requires a mobile home park operator to maintain the park in full compliance with all ordinances, rules, and laws applicable to such parks.
2/ Deposition testimony of Ernie Paul Ayers at page 24.
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
COPIES FURNISHED TO:
William R. Cave, Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Jack Farley, Esquire District 14 Legal Office 4720 Old Highway 37
Lakeland, Florida 33813-2030
Timothy F. Campbell, Esquire Post Office Box 6559 Lakeland, Florida 33807 Polk
CPHU
2090 Clowers Street
Bartow, Florida 33830
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been sent by U.S. Mail or hand delivery to each of the above-named persons this 5, day of December, 1996.
Gregory D. Venz Agency Clerk
Department of Health and Rehabilitative Services
1323 Winewood Blvd.
Tallahassee, Florida 32399-0700
(904) 488-2381
| Issue Date | Proceedings |
|---|---|
| Dec. 09, 1996 | Final Order filed. |
| Jun. 19, 1996 | Petitioner`s Response to Respondent`s Exceptions filed. |
| May 07, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 02/23/96. |
| Mar. 19, 1996 | (Petitioner) Notice of Submittal of Proposed Recommended Order; Proposed Recommended Order (For HO Signature); Petitioner`s Memorandum of Law w/cover letter filed. |
| Mar. 15, 1996 | Petitioner`s Memorandum of Law filed. |
| Mar. 15, 1996 | (Petitioner) Notice of Submittal of Proposed Recommended Order; Proposed Recommended Order (For HO Signature); Petitioner`s Memorandum of Law w/cover sheet filed. |
| Mar. 14, 1996 | Department`s Proposed Recommended Order filed. |
| Mar. 14, 1996 | Letter to HO from T. Campbell Re: Signature Pages of depositions of Ernie Paul Ayers, David B. Arnold & Robert C. Sokoloskis filed w/DOAH on 2/27/96 filed. |
| Mar. 04, 1996 | Corrected Order Scheduling Submission of Proposed Recommended Orders sent out. (due 3/14/96) |
| Mar. 04, 1996 | Letter to WRC from T. Campbell (Re: Deadline for Proposed RO's) filed. |
| Mar. 01, 1996 | (Joint) Prehearing Stipulation w/cover letter filed. |
| Feb. 28, 1996 | Order Scheduling Submission of Proposed Recommended Orders sent out.(Proposed RO`s were due by 2/14/96) |
| Feb. 27, 1996 | Deposition of Ernie Paul Ayers ; Deposition of Robert C. Sokoloskis ; Deposition of David B. Arnold filed. |
| Feb. 26, 1996 | (Petitioner) Notice of Intent to File Petition for Costs and Fees w/cover letter filed. |
| Feb. 23, 1996 | CASE STATUS: Hearing Held. |
| Feb. 20, 1996 | (Joint) Prehearing Stipulation filed. |
| Feb. 13, 1996 | (Timothy F. Campbell) Notice of Appearance; (3) Notice of Taking Deposition w/cover letter filed. |
| Feb. 06, 1996 | Amended Notice of Hearing (as to location only) sent out. (hearing set for 2/23/96; 9:00am; Lakeland) |
| Jan. 29, 1996 | Prehearing Order sent out. |
| Jan. 22, 1996 | Notice of Hearing sent out. (hearing set for 2/23/96; 9:00am; Lakeland) |
| Jan. 17, 1996 | Initial Order issued. |
| Jan. 10, 1996 | Cover letter from Timothy F. Campbell; Notice; Request for Hearing, (Exhibits); Agency Action ltr. filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 02, 1996 | Agency Final Order | |
| May 07, 1996 | Recommended Order | While the Department proved a violation of 48 hour period established by rule, such violation insufficient to deny renewal of permit. |
