STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 97-1483

)

ROLAND TARDIFF, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in Lake City, Florida, on July 22, 1997, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Suzanne V. Estrella, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Roland Tardiff

Route 12 Box 394

Lake City, Florida 32025 STATEMENT OF THE ISSUE

Whether Respondent Tardiff committed the violations as set forth in the Notice to Show Cause dated February 24, 1997, and what penalty, if any, should be imposed.

PRELIMINARY STATEMENT

The Notice to Show Cause dated February 24, 1997, alleged that the Respondent violated The Florida Mobile Home Act, Chapter 723, Florida Statutes, as follows:

1. Failed to pay annual fees for the years 1984 through 1996 in violation of section 723.007, Florida Statutes.

   
   

2. Failed to file the 1993 lot rental increase notice with the Division in violation for Section 723.037(3), Florida Statutes.

   
   

3. Failed to give written notification to home owners in the absence of a prospectus in violation to section 723.013, Florida Statutes.

The Respondent timely responded by letter to the Notice to Show Cause and requested a formal hearing.

At the formal hearing, Petitioner presented two exhibits which were accepted into evidence and presented the testimony of John Floyd, Investigator Supervisor with the Bureau of Mobile Homes, Division of Florida Land Sales, Condominiums and Mobile Homes (FLSCMH).

The Respondent presented one exhibit but did not testify.

FINDINGS OF FACT

1. Petitioner is the agency of the State of Florida charged with the responsibility to administer and to enforce the Florida Mobile Home Act, Chapter 723, Florida Statutes.

2. At all times pertinent to this proceeding, Respondent has been the owner of Pondview Mobile Home Park.

3. At all times pertinent to this proceeding, Respondent has had 10 or more lots offered for rent or lease. Respondent offered for rent or lease at least 22 lots.

4. At all times pertinent to this proceeding, Respondent was a "mobile home park owner," as the term is defined in Section 723.003(7), Florida Statutes.

5. No annual fees were paid by Respondent from 1984 until 1996. Currently, annual fees are $4.00 per lot, per year. Annual fees are payable to the division between July 1 and October 1 of each year.

6. When Respondent increased his rent in 1993, he failed to file a copy of the lot rental increase notice with the Bureau of Mobile Homes. Under Chapter 723, Florida Statutes, the reason for the increase in rent is irrelevant to the filing requirement.

7. When new tenants entered Respondent's mobile home park, Respondent failed to give them a prospectus or written notification of required information. Twelve homeowners have entered into rental agreements without receiving the statutorily required document.

8. Respondent produced a cancelled check at the formal hearing showing that 1996 annual fees had been paid to the division.

9. It is the park owner's responsibility to comply with Chapter 723, Florida Statutes. It is not the duty of the

   division to pursue park owners in order to obtain compliance with the Florida Mobile Home Act.

10. Respondent has been permitted with the Department of Health (formerly Health and Rehabilitative Services (HRS)) every year since 1983.

    CONCLUSIONS OF LAW

    
    

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

12. Section 723.002(1), Florida Statutes, addresses the jurisdiction of Chapter 723, as enforced by the Bureau of Mobile Homes, as follows:

    1. 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.

       
       

13. Section 723.013, Florida Statutes, requires written notification to park residents prior to their entering the park, and, states:

    A mobile home park owner who enters into a rental agreement in which a prospectus is not provided shall give written notification to the mobile home owner of the following information prior to occupancy:

    
    

    1. The nature and type of zoning under which the mobile home park operates; the name of the zoning authority which has jurisdiction over the land comprising the mobile home park; and a detailed description containing all information available to the mobile home park owner, including the time, manner, and nature, of any definite future

       plans which he has for future changes in the use of the land comprising the mobile home park or a portion thereof.

       
       

    2. The name and address of the mobile home park owner or a person authorized to receive notices and demands on his behalf.

       
       

    3. All fees and charges, assessments, or other financial obligations not included in the rental agreement and a copy of the rules and regulations in effect.

    
    

    Respondent's failure to provide this information to twelve (12) mobile home owners is therefore a violation of 723.013, Florida Statutes.

14. Section 723.037, Florida Statutes, states:

    
    

    (3) The park owner shall file annually with the division a copy of any notice of a lot rental amount increase. The notice shall be filed on or before January 1 of each year for any notice given during the preceding year. If the actual increase in an amount less than the proposed amount stated in the notice, the park owner shall notify the division of the actual amount of the increase within 30 days of the effective date of the increase or at the time of filing, which ever is later.

    Respondent's failure to file the 1993 lot rental increase notice with the division is therefore a violation of 723.037, Florida Statutes.

15. Section 723.007, Florida Statutes, states:

    
    

    Each mobile home park owner shall pay to the division on or before October 1 of each year, an annual fee of $4 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 park owner 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.

    
    

    Respondent's failure to pay annual fees on twenty-two (22) mobile homes from 1984 until 1996 is therefore a violation of Section 723.007, Florida Statutes.

16. It is concluded that the Petitioner proved by clear and convincing evidence that Respondent violated the provisions of Section 723.007, 723.037(3), and 723.013, Florida Statutes, as alleged in the Notice to Show Cause.

17. Pursuant to the provisions of Section 723.007, Florida Statutes, the Petitioner shall impose a penalty of 10 percent of the amount due on delinquent annual fees. The 10 percent penalty, referenced in this section, relates to the total amount owed in annual fees and should be considered separate and apart from the fact that failure to pay the annual fee is also a violation of Chapter 723, Florida Statutes.

18. Pursuant to the provisions of Section 723.006(5)(e)1, Florida Statutes, the Petitioner may impose a civil penalty against any mobile home park owner for any violations of Chapter 723, Florida Statutes, as follows:

    . . . 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. . .

    
    

19. The Respondent violated the provisions of 723.007, Florida Statutes; however, that statute specifically provides for

a 10 percent penalty, and a $5,000 fine may be imposed for general violations of the statute. It appears appropriate to "penalize" the Respondent only once for failure to pay the annual fee, and the statute mandates a 10 percent penalty.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED:

That Petitioner enter a Final Order finding Respondent has violated the Sections of Chapter 723, Florida Statutes, as charged in the Notice to Show Cause, and ordering the Respondent to

1. Pay annual fees for the years 1984-1995 in the amount of

   
   

   $814, plus a 10 percent penalty of $81.40 which equals $895.40;

   
   

2. Pay a penalty of $1,200 for the violation of Section 723.013., Florida Statutes;

3. Pay a penalty of $5,000 for the violation of Section 723.037, Florida Statutes; and

4. Comply with all provisions of Chapter 723, Florida Statutes, in the future.

DONE AND ENTERED this 28th day of August, 1997, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1997.

COPIES FURNISHED:

Suzanne V. Estrella, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Roland Tardiff Route 12 Box 394

Lake City, Florida 32025

Robert H. Ellzey, Jr., Director Division of Florida Land Sales,

Condominiums, and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 97-001483

Orders for Case No: 97-001483