The Issue The issues in this case concern the attempt by Petitioner to collect $11,684.62 in attorneys fees and costs associated with the defense of the case of State of Florida, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, Petitioner, vs. Donald L. Hilgeman and Marilyn Hilgeman, d/b/a DLH Enterprises; and Pat Montgomery, as park owners of Lake Waldena Resort, Respondents, DOAH Case No. 89-4100, and $931.50 in attorneys fees and costs attributable to the pursuit of the present case to collect those attorneys fees and costs attributable to the defense of the administrative prosecution. See Section 57.111, Florida Statutes.
Findings Of Fact At all times relevant to this inquiry Petitioner was a mobile home park owner as defined by Section 723.003(7), Florida Statutes (1987). Petitioner, Marilyn Hilgeman, his former wife, and Pat Montgomery had administrative charges brought against them through a notice to show cause. In that notice to show cause those three individuals were identified as park owners of Lake Waldena Resort in Silver Springs, Florida. In particular the present Respondent charged the Petitioner and the others with violating Section 723.037(3), Florida Statutes (1987) for having refused to meet with a designated mobile home owners committee within 30 days of giving notice of a lot rent increase and having been requested to conduct that meeting for purpose of discussing the reasons for the increase in the lot rental amount. The accused sought a formal hearing as envisioned by Section 120.57(1), Florida Statutes. That hearing was conducted by the undersigned and a recommended order entered on April 18, 1990, in the aforementioned DOAH Case No. 89-4100. For reasons set out in the conclusions of law found within the recommended order, the suggested disposition of that case was one which found the several Petitioners innocent of any wrong doing and called for the dismissal of the administrative prosecution. On July 25, 1990 the prosecuting agency entered its final order in DOAH Case No. 89-4100. It accepted the fact-finding in the recommended order; however, it modified the conclusions of law and recommended disposition. Unlike the recommended order, the final order in its conclusions of law specifically found that the present Petitioner and the others accused had violated Section 723.037(3), Florida Statutes, wherein at page 17 it was held "Therefore, it is concluded Respondent violated Sections 723.037(3), Florida Statutes." The conclusions of law in the final order went on to say that in mitigation of the violation the prosecuting agency had considered the apparent confusion of those Respondents regarding the affect of Rule 7D-32.004(2), Florida Administrative Code, as it might influence the actions of the accused and in particular, the present Petitioner. In the final order concerning the mitigating affects of Rule 7D-32.004(2), Florida Administrative Code, it was decided that notwithstanding any misunderstanding the accused had as to the significance of the Rule it could not alter the statutory requirements of having a meeting within 30 days of the notice of lot rental increase as described in Section 723.037(3), Florida Administrative Code (1987). The language within Rule 7D-32.004(2), Florida Administrative Code, stated: If requested to do so by the park owner or subdivision developer, the committee shall certify that it has been selected as described in Rule 7D-32.003, Florida Admin- istrative Code. This certification shall include a certificate of all members of the committee attesting to its proper formation under the statute and these rules. For reasons expressed in the recommended order that rule was seen as tolling the 30-day requirement for meeting expressed in Section 723.037(3), Florida Statutes (1987) on the facts found in both the recommended and final orders. This was based upon a recognition that the present Petitioner had employed the rule in an attempt to gain a certification from the committee of mobile home owners prior to the conduct of a meeting to discuss the increase in lot rentals. Again, this belief that the rule tolled the requirement for conducting the meeting within 30 days of the notice of lot rental increase expressed in the recommended order was rejected in the final order. The final order controls absent further relief by resort to the appellate court process. In describing the reasons why the prosecution maintained that the rule could not alter the statutory requirement for holding a meeting within 30 days, the final order states that there are policy considerations that make it important for the committee and the park owner to meet within 30 days and those reasons concern the fact that the rent increase becomes effective within 90 days over the notice, the informational value of having the reasons explained for the lot increase as a prelude to any request to having a dispute about lot rental increases submitted to mediation within 30 days following the scheduled meeting. The final order goes on to describe, through its conclusions of law, that the meeting to discuss lot rental increase was not held until November 14, 1989 over a year after the notice of lot rental increase. That statement comes immediately before the conclusion of law that the present Petitioner had violated Section 723.037(3), Florida Statutes. In the conclusions of law set out in the final order the prosecuting agency in its paragraph describing the mitigating circumstances acknowledges the possible confusion on the part of the accused as well as the mobile home owners committee when it describes, as did the recommended order, the filing of a complaint by the committee as a means of ostensibly preserving the right to have the meeting envisioned by Section 723.037(3), Florida Statutes (1987), when taken against the background of the opportunity to have a credential check of mobile home owners committee members as envisioned by Rule 7D-32.004(2), Florida Administrative Code. This refers to the issue of whether a meeting could be held after 30 days from the notice of intended lot rental increase absent such a complaint. In the statement on mitigation the final order recognizes that the administrative prosecution was penal in nature and that Section 723.037(3), Florida Statutes (1987) and Rule 7D-32.004(2), Florida Administrative Code needed to be read in context and should be strictly construed with ambiguities favoring the accused. The final order cites to State v. Pattishall, 99 Fla. 296, 126 So. 147 (1930) and Davis v. Dept. of Professional Regulation, 457 So.2d 1074 (Fla. 1DCA 1984). The treatment of those cases and the resolution of the dispute through final order is one which finds the accused in violation of Section 723.037(3), Florida Statutes (1987), but mitigates the disposition in the way of the penalty based upon the reading given Pattishall and Davis, supra. That factual impression is given when the order in disposition is examined wherein it is stated through the final order, "Based upon the consideration of the facts found, the conclusions of law reached, and the mitigation evidence, it is ordered that the notice to show cause is hereby dismissed." On August 22, 1990, the present Petitioner noticed an appeal of the final order in the administrative prosecution but later abandoned that appeal before the court had the opportunity to speak to its merits. On October 22, 1990, the present Petitioner filed a petition for collection of attorneys fees and costs spoken to in the statement of issues. The petition for attorneys fees and costs were subjected to a motion to dismiss based upon a claim of untimeliness and that motion was denied by order of December 10, 1990. The present Respondent requested an evidentiary hearing as contemplated Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code, and the evidentiary hearing was conducted on the date described before. When the present Petitioner abandoned his appeal to the District Court, he necessarily was placed in the position of arguing that the final order drawn by the prosecuting agency constituted the basis for the claim that he was a small business party who had prevailed in the dispute related to DOAH Case No. 89-4100. See Section 57.111(3)(c)1, Florida Statutes. Contrary to his assertion the final order as described in these facts did not favor the present Petitioner. Although the prosecuting agency did not choose to impose a penalty against the present Petitioner based upon its assessment of matters in mitigation and dismissed the case without exacting a penalty, it had found the present Petitioner in violation of a substantiative provision of law, i.e. Section 723.037(3), Florida Statutes (1987). Thus, the disposition cannot be said to favor the present Petitioner. Having decided this mixed question of fact and law against the present Petitioner, it is not necessary to make findings of fact concerning whether the present Petitioner is a small business party as defined at Section 57.111(3)(d), Florida Statutes and whether the present Respondent was substantially justified in this administrative prosecution related to law and fact as contemplated by Sections 57.111(3)(e) and (4)(a), Florida Statutes, or to examine whether special circumstances exist that would make the award of attorneys fees and costs unjust.
The Issue Whether or not Respondent had cause to revoke Petitioners'1 conditional license to operate a group home facility.
Findings Of Fact Based on the testimony of witnesses presented, the documentary evidence, and Petitioners' Responses to Request for Admissions and the entire record in this proceeding, the following findings of fact are made: Petitioners, John R. Oliver and his father, Otis Clay Oliver, have owned and operated Friendship Group Home for approximately 22 years. From 1995 until about six months before the inspections that resulted in a conditional license and its revocation, they had operated it jointly. Early in 2001, John Oliver became solely responsible for the management of the group home facility. Friendship Group Home is a "group home facility." As defined in Subsection 393.063(24), Florida Statutes, a "'Group home facility' means a residential facility which provides a family living environment including supervision and care necessary to meet the physical, emotional, and social needs of its residents. The capacity of such a facility shall be at least 4 residents but not more than 15 residents." Respondent, Department of Children and Family Services, is authorized by Section 393.067, Florida Statutes, to "provide through its licensing authority a system of provider qualifications, standards, training criteria for meeting standards, and monitoring for residential facilities " In addition to its licensing authority, Respondent may, as authorized by Subsection 393.0673(1), Florida Statutes, ”deny, revoke, or suspend a license or impose an administrative fine, not to exceed $1,000 per violation per day, for a violation of any provision of s. 393.0655 or s. 393.067 or rules adopted pursuant thereto." On March 2, 2002, Bernard "Andy" Anderson, a veteran safety and sanitation inspector employed by the Orange County Health Department (an independent governmental agency that inspects public facilities for sanitation and safety), conducted a routine inspection of Friendship Group Home. Mr. Anderson described the conditions he found as a "hellhole." More specifically, he found that thermostats were needed in all refrigerators; mattresses were soiled and torn; bed linen throughout was very dirty, ripped, and torn, some needed to be replaced, all needed regular cleaning; toilets were dirty, some with feces, all were stained, some needed to be replaced; showers needed cleaning; and some floor tile needed replacement, and cleaning. Mr. Anderson further described the facility as "in need of a lot of work"; "absolute filth in each room of the facility"; it was so dirty that "it was a place he wouldn't want to sit down in"; "there was a stench throughout the building"; and "people that lived there were not clean and taken care of." The facility was rated as "unsatisfactory" and given ten days to make corrections. Upon re-inspection on March 14, 2001, to determine corrections, the facility was determined to be "satisfactory." On April 24, 2001, a fax directed to Laura Lucas in response to a request from Respondent for a copy of a Sanitation Inspection Report, Mr. Anderson commented, "Clay Oliver does just enough to get by me. That place is a hellhole." Mr. Anderson's testimony and the exhibits he authored are believable and accepted by the undersigned as credible. Lois Smith and Shirley Soule inspected Friendship Group Home on February 28, 2001. Both are experienced members of an oversight group appointed by the Governor of the State of Florida which advocates for the developmentally disabled. Their unannounced inspection was in response to abuse reports received by Respondent. They characterized the facility as "filthy and foul smelling"; "the buildings were in disrepair and in need of paint"; an in-ground swimming pool on the premises was filled with "green water"; a "horrible odor" was emanating from the back yard (Mr. Oliver advised them that the odor was from the septic tank which had been damaged and was open); soiled clothing, bed linen and mattresses were found throughout the living areas; and medications were found in an unlocked cabinet and not organized by client. Mss. Smith and Soule made additional observations which were consistent with the observations of Mr. Anderson, the health department inspector. Each of these witnesses had the opportunity and capacity to objectively observe the condition of Friendship Group Home and its clients. The observations and concern for the conditions as expressed by Mss. Smith and Soule are credible and accepted by the undersigned. Respondent was contacted by both Mr. Anderson and Mss. Smith and Soule and advised of the conditions found at Friendship Group Home. In response to the complaint from the local advocacy council members, Respondent conducted an inspection of the facility on March 22, 2001. The March 22, 2001, inspection confirmed the observations of Mr. Anderson, Ms. Smith and Ms. Soule. In particular, the inspection noted the following: linen upon the beds was heavily soiled with dirt and body oils that appeared to have been there for some time; some beds had blankets on them and the blankets were in the same condition; and mattresses were torn and ripped. Linen was piled the in the laundry area which is outside of a building; the linen had been there so long, that weeds were growing through the linen pile. Client records were not being kept in accordance with Florida Administrative Code rules. While Mr. Oliver produced a folder containing loose papers for some of the clients, he was unable to produce records on each client that provided a record of expenditures and required medical information. Medications were maintained in an unlocked cabinet which included the medications of clients who were no longer living in the facility. Staff background screening information and records of in-service training were not available. Food supplies were not available in appropriate quantities. Toilets were unclean and badly stained; bathroom floors were wet, water damage was present; and furniture was dirty, and broken down. The entire premises smelled of urine. Air-conditioners were not working, and living quarters were poorly ventilated. Dead roaches were in cabinets. The pool was green, and the bottom could not be seen because of the algae. In a March 28, 2001, letter, Respondent specifically advised John Oliver of the "deficiencies and repairs." The letter also advised "[A]fter completion of required work and the Fire/Health department's re-inspection, an additional site visit will be conducted prior to a new application for renewal is approved." On April 24, 2001, Otis Clay Oliver applied for license renewal for a developmental services residential facility for a maximum client capacity of 14. On May 4, 2001, a survey/inspection of the facility was conducted in response to the application for license renewal. Although improvement from the March 22, 2001, inspection was noted, there were still missing and incomplete client records, records of individual expenditures were not being kept, staff records of training and Florida Department of Law Enforcement background checks were not in place, no written plan of emergency procedures was on file, no intake and placement plan was available, air-conditioners were still inoperable, the facility was still in disrepair, linens and beds still needed to be replaced, a menu reviewed annually by a dietician was not available, and other violations were present. A May 29, 2001, letter to Mr. John Oliver advised that a three-month "conditional" license had been approved with an issue date of June 1, 2001. Although advised of the right to hearing if there was disagreement with the conditional license, no hearing was requested. The May 29, 2001, letter, which enclosed the May 4, 2001, survey findings, further advised: "Follow-up to sections A.2 (Budget and Finance), A.3.1.1 (Clients records), A.4 (Personnel) A.5 (Staff Training) A.6 (Client Rights) A.7 (Emergency Procedures) A.8 (Intake and Placement) H.2.9 (fire and safety) and H.3. (Facility Plant) H.4 (Maintenance and Storage) H.5 (Food Service) is required. Please forward notification as soon as possible-but no later than close of business Friday, June 29, 2001-that these requirement [sic] has been met." The May 4, 2001, survey is formally titled, "Statement of Survey Findings/Deficiencies/Plan of Correction." The survey, as its title indicates, lists "Findings/Deficiencies," (violations of Florida Administrative Code rules), and for each finding/deficiency there is a listed "Plan of Corrective Action," and a "Completion Date." The completion date indicated for each activity was June 30, 2001. June 30, 2001, was a Saturday. To avoid confusion, on June 6, 2001, Respondent sent John Oliver a letter reiterating the completion date of Friday, June 29, 2001, as indicated in the May 29, 2001, letter. On June 28, 2001, John Oliver forwarded a "Response to Statement of Survey Findings/Deficiencies/Plan of Action." He understood that the violations of the Florida Administrative Code rules as noted in the May 14, 2001 [sic], "Statement of Survey Findings/Deficiencies/Plan of Correction," were to be completed by June 29, 2001. On July 2, 2001, Respondent re-inspected Friendship Group Home and found the following: Records of expenditures from individual resident accounts are not being appropriately kept (violation of Rule 65B-6.010(2)(b), Florida Administrative Code). Individual records were missing medical summaries, records of clients' illnesses while resident in the facility, and written authorization for routine medical and dental care for clients were not present (violation of Rule 65B- 6.010(3)(a)(2) and (4), Florida Administrative Code). Personnel files lack written references, job descriptions, records of in- service training and affidavits of good moral character (violation of Rule 65B-6.010(5), Florida Administrative Code). There was no written emergency plan (violation of Rule 65B- 6.009(23)(b), Florida Administrative Code). One client's room needed an air-conditioner or other adequate cooling mechanism; the same room required ceiling repairs (violation of Rule 65B- 6.010(8)(i)and(l), Florida Administrative Code). Bed linens were not replaced with clean linen at least once a week (violation of Rule 65B-6.010(8)(c)(8), Florida Administrative Code). Meals were neither supervised by a nutritionists [sic], nor conducted pursuant to annual consultation with a dietitian (violation of Rule 65B-6.010(9)(c)(1), Florida Administrative Code). On July 13, 2001, Respondent notified Petitioners by letter titled, "Notice of Revocation of License" that their conditional license had been revoked. It advised, "[Y]our plan of action dated June 28, 2001, and indeed the present condition of your facility and its records, do not meet the requirements of your conditional license. In particular (but not inclusive of all noted violations), you have failed to properly address section H.3 (Facility Plant) of the May 14, 2001 [sic], survey. The conditions of the facilities [sic] roof, bathroom areas, bedding and swimming pool remain substandard." This letter then referenced the July 2, 2001, "home visit," delineating additional specific violations (paragraph 21, supra). The observations and reports of the inspections of March 22, May 4, and July 2, 2001, by Laura Lucas are accepted as credible. Although suggested by Petitioners, Ms. Lucas did not demonstrate bias, interest or ulterior motive. Her observations were consistent with other witnesses and, to some degree, confirmed by Petitioner, John Oliver. As evidenced by the July 2, 2001, inspection by Respondent, Petitioners failed to complete the Plan of Correction delineated in the May 14, 2001 (incorrectly date- referencing the May 4, 2001 survey), "Statement of Survey Findings/Deficiencies/Plan of Correction."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be entered affirming the revocation of the conditional license of Otis C. Oliver and John R. Oliver issued on June 1, 2001, to operate a group home residential facility. DONE AND ENTERED this 25th day of July, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2002.
Findings Of Fact The Petition filed herein, among other matters, alleges, in pertinent part, that: This is a petition for determination of the invalidity of a proposed rule of the Department of Business Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, pursuant to Section 120.54(4), Fla. Stat. (1987). The 1,000 members of the FMHA may be sub- jected to this rule and Gerry Barding as an individual are substantially affected in that the rule has the effect of allowing the DBR to schedule a mediation or arbitration if the request "does not substantially comply with Chapter 723, Fla. Stat., and these rules." Section 723.037 limits the substantial rights of a party who fails to mediate or arbitrate a dispute under Section 723.037 with the DBR . . . . * * * The substantial rights of the members of FMHA will be affected if the DBR is allowed to grant mediation or arbitration requests when the mobile home owners have not complied with the provisions of Section 723.037, Fla. Stat. (1987). The proposed rule of the DBR enlarges, modifies, or otherwise contravenes the statu- tory authority granted by Chapter 723, Fla. Stat. (1987), and is unreasonable, arbitrary, and capricious. Petitioner, FMHA, is an incorporated association not for profit whose members include approximately 1,000 mobile home park owners. All of the mobile home park members of FMHA own mobile home parks which contain greater than 25 mobile home lots which are offered for lease. A substantial number of the members of the FMHA on a regular basis annually increase the lot rental amount in their mobile home parks. The residents of the FMHA members' mobile home parks are entitled to and may request mediation of lot rental amount increases pursuant to Sections and 723.038, F.S. (1987), and the rules of the Florida Department of Business Regulation. Requests for mediation have been made in the past by homeowners residing in FMHA members' mobile home parks and many of those mediation proceedings have not yet been completed. Petitioner, Gerry Barding, is the owner of Pinelake Village Mobile Home Park located in Jensen Beach, Florida. In the past, Mr. Barding has increased the lot rental amount in Pinelake Village Mobile Home Park and expects to do so in the future. In September 1987, a request for mediation from Pinelake Village residents was not filed within 30 days of the meeting between the park owner and the residents. The Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes reviewed the request for mediation and determined that it was willing to mediate the dispute. The Division requested that Mr. Barding advise it of his willingness or refusal to participate in the mediation. Mr. Barding declined to agree to mediation of the dispute, and the mediation file of the Division was closed. Sections 723.037(4), F.S. (1987), provides in pertinent part that: Within 30 days of the date of the scheduled meeting described in subsection (3), the home owners shall request that the dispute be submitted to mediation pursuant to Section if a majority of the affected home owners have designated, in writing, that: The rental increase is unreasonable; The rental increase has made the lot rental amount unreasonable; The decrease in services or utilities is not accompanied by a corresponding decrease in rent or is otherwise unreasonable; or The change in the rules and regulations is unreasonable. [Emphasis supplied]. The Department of Business Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes does not interpret Section 723.037(4), F.S., as depriving it of authority to mediate when the request for mediation is filed more than 30 days after the referenced meeting. Section 723.037(6), F.S., provides that: No action relating to a dispute described in this section may be filed in any court unless and until a request has been submitted to the Division for mediation and arbitration and the request has been processed in accordance with Section 723.038. Section 723.037(7), F.S., provides that: If a party refuses to agree to mediate or arbitrate, or fails to request mediation, upon proper request, that party shall not be entitled to attorney's fees in any action relating to a dispute described in this section. Section 723.004(4), F.S., provides that: Nothing in this chapter shall be construed to prevent the enforcement of a right or duty under this section, Sections 723.022; 723.023; 723.031; 723.033; 723.035; 723.037; 723.038; 723.061; 723.0615; 723.062; 723.063; or 723.081 by civil action after the party has exhausted its administrative remedies, if any. Existing Rule 7D-32.005(3), F.A.C., provides in pertinent part: The homeowners' committee shall request mediation, or the homeowners' committee and the park owner may jointly request arbitration, by mailing or delivering the following items to the Division of Florida Land Sales, Condominiums and Mobile Homes, 725 South Bronough Street, Tallahassee, Florida 32399-1007: A completed Form DBR 405, which becomes effective on the same date as this rule and which may be obtained by writing to the Division at the above address, and A copy of the written designation required by Rule 7D-32.005(1), Florida Administrative Code, and Section 723.037(4), Florida Statutes; and A copy of the notice of lot rental increase, reduction in services or utilities, or change in rules and regulations which is being challenged as unreasonable; and A copy of the records which verify the selection of the homeowners' committee in accordance with Rule 7D-32.003, Florida Administrative Code, and Section 723.037(3), Florida Statutes. [Emphasis supplied] Proposed Rule 7D-32.005(4), F.A.C., which was published in Volume 14, No. 4, Florida Administrative Law Weekly (January 29, 1988), and which is here challenged, provides that: A request for mediation or arbitration shall be denied if the request does not substantially comply with Chapter 723, Fla. Stat., and these rules. The word "may," which is struck through, is to be deleted from the existing rule now in effect. The underlining indicates that the words "shall" and "substantially" are amendatory language to be added. Rule 7D-32.005(5), Florida Administrative Code, provides: If the homeowners' committee requests media- tion, a copy of the four items required by subsection (3) of this rule shall be furnished to the park owner by Certified U. S. Mail, Return Receipt Requested, at the time the request is filed with the Division. Failure to comply with this requirement may result in a delay in scheduling of a mediation meeting until the required items have been furnished to the park owner. [Emphasis supplied] Rule 7D-32.005(6), Florida Administrative Code, provides: Within 10 days from the date that the park owner or his agent receives copies of the documents required to be furnished to him pursuant to subsection (5) of this rule, the park owner shall advise the Division in writing of his willingness or refusal to participate in the requested mediation. If the park owner is of the opinion that the home owners or the homeowners' committee have failed to satisfy the statutory requirements set forth in Section 723.037, Florida Statutes, or the requirements of these rules he may indicate his willingness to participate in the mediation process without waiving his objections to the procedures used by the homeowners' committee. Rule 7D-32.005(7), Florida Administrative Code, provides: A decision by the Division to grant or deny a request for mediation does not constitute an adjudication of any issues arising under Section 723.037, Florida Statutes. Any dispute concerning the applicability of Section 723.037(6)-(7), Florida Statutes, must be submitted to a court of competent jurisdiction in the event that judicial proceedings are initiated. Rule 7D-32.001(5), Florida Administrative Code, provides: `Mediation' means a process whereby a mediator provided by the Division of Florida Land Sales, Condominiums and Mobile Homes partici- pates in discussions with a homeowners' committee and a park owner concerning the reasonableness of an increase in lot rental amount, change in park rules and regulations, or a decrease in services or utilities. The purpose of the mediator's participation is to assist the parties in arriving at a mutually agreeable settlement of their differences.
The Issue Whether Petitioner is entitled to a foster care license upon satisfactory evidence of financial ability to provide care for children placed in her home.
Findings Of Fact Petitioner took the required courses through the Department and applied for a foster home license. She passed all home visits with flying colors and was recommended for licensure. Her application contained a family financial statement which reflected her monthly income as $660.00 and her estimated monthly liabilities (expenditures) as $625.62. The Department calculated Petitioner's residual income as $34.38 by deducting her usual expenses from her usual income. Because substitute care parents must have sufficient income to assure the stability and security of their own family without relying on foster care payments and must have sufficient income to cover four to six weeks of a foster child's care during anticipated lag time in receiving foster care payments, Petitioner's application was denied. The $660.00 Petitioner declared in her financial statement is made up of $460.00 monthly social security income plus $200.00 from unenumerated sources. Petitioner is not employed outside the home. Petitioner testified credibly that, as of the date of hearing on January 18, 2001, she had nearly $15,000.00 saved in her bank account, mostly as the proceeds of the "Black Farmers Settlement" of a class action lawsuit. In support of her testimony, Petitioner also had admitted in evidence an undated letter addressed to her, showing transmittal to her of a check for $50,000.00 "cash award," in the cases of Pigford et al. v. Glickman, and Brewington et al. v. Glickman. Petitioner also had admitted in evidence an AmSouth "Official Check," dated January 3, 2001, made out to her in the amount of $14,928.88. This appears to be a certified cashier's check she asked for in order to demonstrate her bank balance for the hearing. Petitioner further testified that she had made a deposit to her checking account. She had admitted in evidence an AmSouth customer receipt (deposit slip) showing an AmSouth account balance of $59.85 to which a $3,000.00 check had been deposited on November 1, 2000. The numbers on this item did not match those on her check cashing card or her voided check, which items were also admitted in evidence. However, there is no reason to believe the numbers would match, considering modern automatic banking safeguards. What, precisely, this receipt was intended to demonstrate is unclear. Much of Petitioner's $50,000.00 settlement monies went to pay for hip replacement surgery, and she is fully recovered. Prior to making her application and while she was still in training, that is, prior to November 29, 1999, the Department allowed Petitioner to take in some foster children on an emergency basis. The understanding at that time was that Petitioner would bear all the children's expenses with no reimbursement by any government program except for their medical aid. During this period, Petitioner frequently complained that she had no money to put gas in her car to bring a certain child or children to the Department office for their medical care or to see their case workers. As near as can be determined from this record, these events occurred in the fall of 1999 or early in the year 2000, but without information as to when Petitioner received her lump-sum class action settlement, it is impossible to assess whether these events occurred before or after Petitioner received her class action settlement. Petitioner's Lease for Voucher Tenancy, Section 8, Tenant-Based Assistance Rental Voucher Program, signed April 7, 2000, stated that she lives in the home with four other individuals: Irene Turner, Lionel Cook, Iman McCullough, and Christina Honeycutt. However, a June 26, 2000, Home Study Report concluded, based on visits in April and May 2000, that Petitioner lives alone. Iman McCullough, a foster child, lived in Petitioner's home for a short period in 1999, but by September 2000, she was living in another foster home. Christina Honeycutt, also a foster child, lived in Petitioner's home only briefly in 1999. Another individual listed on the April 7, 2000, lease as a resident of the home is Lionel Cook, one of Petitioner's sons. However, the June 26, 2000, Home Study Report stated that Petitioner did not know her sons' addresses or phone numbers and that she had stated she has no contact with them. The Petitioner's Section 8 rent is $30.00 per month, calculated on five residents in the home. It is conceivable that a change in the number of people in the home may alter the amount paid for rent. There was no evidence presented concerning how much per child Petitioner would receive if her application were granted. Petitioner testified that she hoped to have four children assigned to her. The June 26, 2000, Home Study Report recommended that she receive five children.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order denying Petitioner's application for a foster home license at this time and without prejudice to reapply. DONE AND ENTERED this 1st day of March, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2001.
Findings Of Fact Petitioner is a healthy, alert 27-year-old female individual, who was born with Downs Syndrome and is visually impaired. Petitioner is an adult and is a Medicaid waiver client of Developmental Services and is receiving supported living services. Petitioner, by her choice, is presently residing in the home of her mother, Sandra Kuhn. She desires to continue to live independently outside of a group home or institutional setting. Petitioner desires to have an active social life, outside of work. At present, she participates in the Special Olympics, bowling, attends dances and dates. However, Petitioner's participation is restricted because she must rely on her mother or friends to provide transportation to these functions. She is capable of using a taxi; however, she has limited funds for such purpose. Petitioner is employed on a regular basis at Brevard Achievement Center (BAC), the local sheltered workshop. She receives transportation services from Space Coast Area Transit (SCAT) five days a week to transport her to and from work. Payment for this service comes from Medicaid waiver funds. Funds are also provided for Respite Care services for family members on a regular basis. Petitioner takes the position that the goal of the statute and rules relating to supported living services is to allow clients to live as independently as possible in their own houses and to achieve productive lives as close to normal as possible. Section 393.066(1) and (4), Florida Statutes. Petitioner states that an important part of living a normal and productive life is the ability to partake of recreational and leisure activities and to develop interpersonal relations outside of work or the client's immediate family. This can be accomplished by authorizing waiver funds to provide transportation services to special events or regularly-scheduled activities. Petitioner argues that such services may be authorized under the current rules, as provided in Rule 10F-11.006(1),(3),(h),(l),(m),(p), Florida Administrative Code. The Department is considering a change in its policy regarding the use of waiver funds to provide transportation services for leisure and/or recreational uses by drafting proposed Chapter 10F-13, Florida Administrative Code. Such services have been requested by Petitioner in her support plan for more than two years. Petitioner's Support Coordinator has supported this request. However, such request has been denied by the District Seven Developmental Services Office. Respondent takes the position that waiver funds can only be used to provide transportation services for such purposes that will prevent the institutionalization of a client. The District's position is that regardless of whether funding is available, waiver funds cannot be used to provide for recreational or leisure activities.
Recommendation Based on 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 request for waiver funds to be used for transportation services, subject to the restrictions contained in paragraph 19 and availability of funds for such purpose. DONE and ENTERED this 24th day of April, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, 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 24th day of April, 1996. COPIES FURNISHED: James A. Sawyer, Jr. District 7 Legal Counsel Department of Health and Rehabilitative Services 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Ms. Mary Sandra Kuhn 250 South Sykes Creek Parkway Apartment 201B Merritt Island, Florida 32952 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 728 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services Building 7, Suite 728 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
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.
Findings Of Fact 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. At all times pertinent to this proceeding, Respondent has been the owner of Pondview Mobile Home Park. 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. 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. 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. 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. 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. Respondent produced a cancelled check at the formal hearing showing that 1996 annual fees had been paid to the division. 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. Respondent has been permitted with the Department of Health (formerly Health and Rehabilitative Services (HRS)) every year since 1983.
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 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; Pay a penalty of $1,200 for the violation of Section 723.013., Florida Statutes; Pay a penalty of $5,000 for the violation of Section 723.037, Florida Statutes; and 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
The Issue Whether Respondent, Countrywide Home Loans, Inc. (Respondent), discriminated against Petitioner, Wikindson Philippe (Petitioner) in the origination of Petitioner's mortgage loan on the basis of race and national origin in violation of the Florida Fair Housing Act, and, if so, what remedy is available.
Findings Of Fact Petitioner, Wikindson Philippe, is a black male of Haitian origin. He filed a Housing Discrimination Complaint against Respondent on November 5, 2008. At all times material to the allegations of the complaint, Respondent was a lender in partnership with KB Home, a construction entity developing a residential community described in the record as Blackstone. On May 20, 2007, Petitioner and his wife ventured forth to look at homes for purchase. They initially went to a KB Home development to inquire about homes but were told it was sold out. The proceeded to a nearby development, Blackstone, and met with a salesman who Petitioner described as "aggressive." The salesman showed Petitioner various lots and Petitioner and his wife were impressed by the community. In order to get "pre-qualified" for a loan to purchase a home, the KB Home salesman referred the couple to Lydia Lapotaire, a loan consultant who was located in Respondent's sales center. Mrs. Lapotaire was employed by Countrywide KB Home Loans, the preferred lender for KB Home residential properties. Working in tandem, KB Home the builder/developer and Countrywide KB Home Loans, the preferred lender, sought to accommodate Petitioner's interest in purchasing the Blackstone home. Both entities had a financial interest in securing Petitioner's business. Despite his concerns that he was being inappropriately pressured to purchase a home, Petitioner signed a contract to acquire a lot and single-family dwelling to be constructed on the lot. The purchase agreement recognized that the final purchase price could be stated in an addendum to the initial contract. Based upon the purchase agreement Petitioner planned to acquire a home with a total sales price of $302,490.00. At all times material to the negotiation of the purchase agreement, Petitioner had advised the salesman and Mrs. Lapotaire that he could not afford to pay more than $1,600.00 per month for a mortgage payment. Petitioner was not concerned regarding the amount of the loan so long as the total monthly payment did not exceed his cap. Because he relied on the representations of the salesman and the lender's consultant and wanted to have the home, Petitioner deposited $5,000.00 down on the purchase agreement. At all times material to the purchase, both Mrs. Lapotaire and the salesman assured Petitioner that the lender would work with him to allow him to acquire the home. Nevertheless, when Petitioner consulted a friend who had more experience in the purchase of homes, Petitioner became concerned that the home he desired could not be acquired for the amount he could pay. When Petitioner brought these concerns to the salesman's attention he was advised that he would lose his deposit if he attempted to cancel the contract. Petitioner believed that the only way he could recover his deposit money was to be denied for the loan. To that end, Petitioner and his wife selected upgrades from the base price of the home. In so doing, Petitioner was required to make additional deposits. In accordance with the time lines specified by the builder, Petitioner deposited a total of $20,000 toward the purchase price of the home. As evidenced by Petitioner's Exhibit B (also admitted into the record as Respondent's Exhibit 7), Petitioner's loan application for the Blackstone home was not approved. The Notice of Action Taken specified several reasons Countrywide KB Home Loans was unable to approve the loan. Petitioner claimed he did not receive the notice; it was sent to an incorrect address. Instead of being addressed to apartment 772, it was addressed to apartment 72. In the meanwhile, the lender continued to seek financing for Petitioner's purchase. At that time, Respondent had an affiliated company called Full Spectrum Lending that worked as a subprime unit. By going that route it was presumed the buyer was still actively seeking to purchase the home and that various lending scenarios could be explored to determine whether Petitioner might qualify. It is undisputed that Petitioner did not qualify for a loan under the standard loan scenario. None of the lending procedures used by Respondent, Countrywide KB Home Loans, or Full Spectrum Lending required Petitioner to disclose his race or ethnic origin. In fact, Petitioner did not prove that any of the loan processors or underwriters knew Petitioner's race or ethnic origin. There is no evidence that Petitioner's race and ethnic origins were considered in the decision to approve or not approve the loan. The motivations of Respondent and KB Home were likely similar. As joint venture partners, they would have wanted Petitioner to be approved for a loan and to close on it. KB Home would not likely decline to sell to Petitioner nor want to refund his deposit. Respondent would not likely profit from not approving the loan. None of the business reasons for wanting the loan and sale to be consummated were based upon Petitioner's race or ethnic origin. In short, financial interests and not a desire to harm a person of Petitioner's race or ethnic origin were the key reasons for the seller and lender to work in concert to achieve the closing on Petitioner's home. After an extended amount of time, Petitioner did close on the home. He claimed that he was pressured into closing due to the fear that his deposit would be lost but he nevertheless signed all of the closing documents necessary to own and finance the home. It was undoubtedly too expensive for Petitioner. Petitioner has not been able to keep current on his mortgage obligation. Facing foreclosure, he now asserts that Respondent's actions were to take advantage of him based upon his race or ethnic origin. Respondent and KB Home may have unduly pressured Petitioner to purchase a home he could not afford, but there is no evidence they did so based upon his race or ethnic origin. Petitioner is an articulate person. Through out these proceedings he has stated his position on the issues of the case in a well-reasoned and cogent manner. He is understandably disenchanted with the financial results of his home purchase. He has, however, continued to enjoy the residence and his wife likes the home. Petitioner's purchase agreement provided, in pertinent part: 5.5 Failure to Obtain Commitment. Prior to the Loan Approval Deadline, if Buyer's loan application is denied or Buyer obtains an unsatisfactory loan approval (in Buyer's reasonable discretion) Buyer may cancel this Agreement with written notice to Seller and receive a refund of all Deposits. Based upon the Notice of Action Taken (dated July 13, 2007); Petitioner could have canceled the purchase agreement. He chose to close on the transaction. If Petitioner was not approved for a loan or if the terms of a loan were unreasonable, Petitioner did not have to accept the terms of the loan. Petitioner erroneously presumed he would not receive a refund of his deposit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint of discrimination filed by Petitioner. DONE AND ENTERED this 2nd day of February, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2010. COPIES FURNISHED: Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Robert C. Graham, Esquire Akerman Senterfitt 50 North Laura Street, Suite 2500 Jacksonville, Florida 32202 Wikindson Philippe 2413 Country Pond Court St. Cloud, Florida 34771-8868 COPY FURNISHED BY CERTIFIED MAIL Sylvia Bakrevski Country Wide Home Loans 5220 Las Virgenes Road Calabasas, California 91302 (Certification No. 91 7108 2133 3935 7995 2966)
The Issue At issue in this proceeding is whether the actions of the Florida Housing Finance Corporation (“Florida Housing”) concerning the review and scoring of the responses to Request for Applications 2016-110, Housing Credit Financing for Affordable Housing Developments Located in Medium and Small Counties (the “RFA”), was clearly erroneous, contrary to competition, arbitrary or capricious. Specifically, the issue is whether Florida Housing acted contrary to the agency’s governing statutes, rules, policies, or the RFA specifications in finding that the applications of Petitioners JPM Outlook One Limited Partnership (“JPM Outlook”) and Grande Park Limited Partnership (“Grande Park”) were ineligible for funding.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: JPM Outlook is a Florida limited partnership based in Jacksonville, Florida, that is in the business of providing affordable housing. Grande Park is a Florida limited partnership based in Jacksonville, Florida, that is in the business of providing affordable housing. Hammock Ridge is a Florida limited liability company based in Coconut Grove, Florida, that is in the business of providing affordable housing. Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes. For the purposes of this proceeding, Florida Housing is an agency of the State of Florida. Its purpose is to promote public welfare by administering the governmental function of financing affordable housing in Florida. Pursuant to section 420.5099, Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code and has the responsibility and authority to establish procedures for allocating and distributing low-income housing tax credits. The low income housing tax credit program was enacted to incentivize the private market to invest in affordable rental housing. These tax credits are awarded competitively to housing developers in Florida for rental housing projects that qualify. The credits are then normally sold by developers for cash to raise capital for their projects. The effect of this sale is to reduce the amount that the developer would have to borrow otherwise. Because the total debt is lower, a tax credit property can (and must) offer lower, more affordable rents. Developers also covenant to keep rents at affordable levels for periods of 30 to 50 years as consideration for receipt of the tax credits. Housing tax credits are not tax deductions. For example, a $1,000 deduction in a 15-percent tax bracket reduces taxable income by $1,000 and reduces tax liability by $150, while a $1,000 tax credit reduces tax liability by $1,000. The demand for tax credits provided by the federal government exceeds the supply. Florida Housing is authorized to allocate housing tax credits and other funding by means of a request for proposal or other competitive solicitation in section 420.507(48). Florida Housing has adopted chapter 67-60 to govern the competitive solicitation process for several different programs, including the program for tax credits. Chapter 67-60 provides that Florida Housing allocate its housing tax credits, which are made available to Florida Housing on an annual basis by the U.S. Treasury, through the bid protest provisions of section 120.57(3). In their applications, applicants request a specific dollar amount of housing tax credits to be given to the applicant each year for a period of 10 years. Applicants will normally sell the rights to that future stream of income tax credits (through the sale of almost all of the ownership interest in the applicant entity) to an investor to generate the amount of capital needed to build the development. The amount which can be received depends upon the accomplishment of several factors, such as a certain percentage of the projected Total Development Cost; a maximum funding amount per development based on the county in which the development will be located; and whether the development is located within certain designated area of some counties. This, however, is not an exhaustive list of the factors considered. Housing tax credits are made available through a competitive application process commenced by the issuance of a Request for Applications. A Request for Applications is equivalent to a “request for proposal,” as indicated in rule 67-60.009(3). The RFA in this case was issued on October 7, 2016. A modification to the RFA was issued on November 10, 2016, and responses were due December 2, 2016. A challenge was filed to the terms, conditions, or requirements of the RFA by parties not associated with the instant case, but that challenge was dismissed prior to hearing. Through the RFA, Florida Housing seeks to award up to an estimated $12,312,632 of housing tax credits to qualified applicants to provide affordable housing developments in Medium Counties, as well as up to an estimated $477,091 of housing tax credits to qualified applicants to provide affordable housing developments in Small Counties other than Monroe County. By the terms of the RFA, a review committee made up of Florida Housing staff reviewed and scored each application. These scores were presented in a public meeting and the committee ultimately made a recommendation as to which projects should be funded. This recommendation was presented to Florida Housing’s Board of Directors (“the Board”) for final agency action. On March 24, 2017, all applicants received notice that the Board had approved the recommendation of the review committee concerning which applications were eligible or ineligible for funding and which applications were selected for awards of housing tax credits, subject to satisfactory completion of the credit underwriting process. The notice was provided by the posting on Florida Housing’s website (www.floridahousing.org) of two spreadsheets, one listing the “eligible” and “ineligible” applications and one identifying the applications which Florida Housing proposed to fund. Florida Housing announced its intention to award funding to 10 developments, including Intervenor Hammock Ridge. Petitioners JPM Outlook and Grande Park were deemed ineligible. If JPM Outlook and Grande Park had been deemed eligible, each would have been in the funding range based on its assigned lottery number and the RFA selection criteria. If Grande Park had been deemed eligible, Hammock Ridge would not have been recommended for funding. Petitioners JPM Outlook and Grande Park timely filed notices of protest and petitions for administrative proceedings. The scoring decision at issue in this proceeding is based on Florida Housing’s decision that Petitioners failed to submit as Attachment 1 to Exhibit A the correct and properly signed version of the Applicant Certification and Acknowledgment Form. Petitioners’ admitted failure to submit the correct Applicant Certification and Acknowledgement Form was the sole reason that Florida Housing found Petitioners’ applications to be ineligible for funding. Section Four of the RFA was titled, “INFORMATION TO BE PROVIDED IN APPLICATION.” Listed there among the Exhibit A submission requirements was the Applicant Certification and Acknowledgement Form, described as follows: The Applicant must include a signed Applicant Certification and Acknowledgement form as Attachment 1 to Exhibit A to indicate the Applicant’s certification and acknowledgement of the provisions and requirements of the RFA. The form included in the copy of the Application labeled “Original Hard Copy” must reflect an original signature (blue ink is preferred). The Applicant Certification and Acknowledgement form is provided in Exhibit B of this RFA and on the Corporation’s Website http://www.floridahousing.org/Developers/ MultiFamilyPrograms/Competitive/2016- 110/RelatedForms/ (also accessible by clicking here). Note: If the Applicant provides any version of the Applicant Certification and Acknowledgement form other than the version included in this RFA, the form will not be considered. The final sentence of the quoted language is referred to by Florida Housing as the “effects clause.” The November 10, 2016, modifications to the RFA were communicated to applicants in three ways. First, Florida Housing provided a Web Board notice. The Florida Housing Web Board is a communication tool that allows interested parties and development partners to stay apprised of modifications to procurement documents. Second, each RFA issued by Florida Housing, including the one at issue in this proceeding, has its own specific page on Florida Housing's website with hyperlinks to all documents related to that RFA. Third, Florida Housing released an Official Modification Notice that delineated every modification, including a “blackline” version showing the changes with underscoring for emphasis. Brian Parent is a principal for both JPM Outlook and Grande Park. Mr. Parent received the Web Board notification of the RFA modifications via email. Upon receiving the email, Mr. Parent reviewed the modifications on the Florida Housing website. The modification to the RFA, posted on Florida Housing’s website on November 10, 2016, included the following modification of the Applicant Certification and Acknowledgement Form, with textual underscoring indicating new language: Pursuant to Rule 67-60.005, F.A.C., Modification of Terms of Competitive Solicitations, Florida Housing hereby modifies Item 2.b.(4) of the Applicant Certification and Acknowledgement Form to read as follows: (4) Confirmation that, if the proposed Development meets the definition of Scattered Sites, all Scattered Sites requirements that were not required to be met in the Application will be met, including that all features and amenities committed to and proposed by the Applicant that are not unit- specific shall be located on each of the Scattered Sites, or no more than 1/16 mile from the Scattered Site with the most units, or a combination of both. If the Surveyor Certification form in the Application indicates that the proposed Development does not consist of Scattered Sites, but it is determined during credit underwriting that the proposed Development does meet the definition of Scattered Sites, all of the Scattered Sites requirements must have been met as of Application Deadline and, if all Scattered Sites requirements were not in place as of the Application Deadline, the Applicant’s funding award will be rescinded; Note: For the Application to be eligible for funding, the version of the Applicant Certification and Acknowledgement Form reflecting the Modification posted 11-10-16 must be submitted to the Corporation by the Application Deadline, as outlined in the RFA. Rule 67-48.002(105) defines “Scattered Sites” as follows: “Scattered Sites,” as applied to a single Development, means a Development site that, when taken as a whole, is comprised of real property that is not contiguous (each such non-contiguous site within a Scattered Site Development, is considered to be a “Scattered Site”). For purposes of this definition “contiguous” means touching at a point or along a boundary. Real property is contiguous if the only intervening real property interest is an easement, provided the easement is not a roadway or street. All of the Scattered Sites must be located in the same county. The RFA modification included other changes concerning Scattered Sites. Those changes either modified the Surveyor Certification Form itself or required applicants to correctly provide information concerning Scattered Sites in the Surveyor Certification Form. Each Petitioner included in its application a Surveyor Certification Form indicating that its proposed development sites did not consist of Scattered Sites. The Surveyor Certification Forms submitted were the forms required by the modified RFA. There was no allegation that Petitioners incorrectly filled out the Surveyor Certification Forms. However, the Applicant Certification and Acknowledgement Form submitted by each of the Petitioners was the original form, not the form as modified to include the underscored language set forth in Finding of Fact 20 regarding the effect of mislabeling Scattered Sites on the Surveyor Certification Form. The failure of JPM Outlook and Grande Park to submit the correct Applicant Certification and Acknowledgement Form was the sole reason that Florida Housing found them ineligible for funding. In deposition testimony, Ken Reecy, Florida Housing’s Director of Multifamily Programs, explained the purpose of the Applicant Certification and Acknowledgement Form: There’s a number of things that we want to be sure that the applicants are absolutely aware of in regard to future actions or requirements by the Corporation. If they win the award, there are certain things that they need to know that they must do or that they are under certain obligations, that there’s certain obligations and commitments associated with the application to make it clear what the requirements--what certain requirements are, not only now in the application, but also perhaps in the future if they won awards. At the conclusion of a lengthy exposition on the significance of the modified language relating to Scattered Sites, Mr. Reecy concluded as follows: [W]e wanted to make sure that if somebody answered the question or did not indicate that they were a scattered site, but then we found out that they were, in fact, a scattered site, we wanted to make it absolutely clear to everyone involved that in the event that your scattered sites did not meet all of those requirements as of the application deadline, that the funding would be rescinded. Petitioners argue that the failure to submit the modified Applicant Certification and Acknowledgement Form should be waived as a minor irregularity. Their simplest argument on that point is that their applications did not in fact include Scattered Sites and therefore the cautionary language added to the Applicant Certification and Acknowledgement Form by the November 10, 2016, modifications did not apply to them and could have no substantive effect on their applications. Petitioners note that their applications included the substantive changes required by the November 10, 2016, modifications, including those related to Scattered Sites. Petitioners submitted the unmodified Applicant Certification and Acknowledgement Form as Attachment 1 to their modified Exhibit A. Petitioners further note that the “Ability to Proceed Forms” they submitted with their applications on December 2, 2016, were the forms as modified on November 10, 2016. They assert that this submission indicates their clear intent to acknowledge and certify the modified RFA and forms, regardless of their error in submitting the unmodified Applicant Certification and Acknowledgement Form. Petitioners assert that the Scattered Sites language added to the Applicant Certification and Acknowledgement Form by the November 10, 2016, modifications was essentially redundant. Mr. Reecy conceded that the warning regarding Scattered Sites was not tied to any specific substantive modification of the RFA. The language was added to make it “more clear” to the applicant that funding would be rescinded if the Scattered sites requirements were not met as of the application deadline. Petitioners point out that this warning is the same as that applying to underwriting failures generally. Petitioners assert that the new language had no substantive effect on either the Applicant Certification and Acknowledgement Form or on the certifications and acknowledgements required of the applicants. Even in the absence of the modified language, Petitioners would be required to satisfy all applicable requirements for Scattered Sites if it were determined during underwriting that their applications included Scattered Sites. Petitioners conclude that, even though the modified Applicant Certification and Acknowledgement Form was not included with either of their applications, the deviation should be waived as a minor irregularity. Florida Housing could not have been confused as to what Petitioners were acknowledging and certifying. The unmodified Applicant Certification and Acknowledgement Form was submitted with a modified Attachment 1 that included all substantive changes made by the November 10, 2016, modifications to the RFA. Petitioners gained no advantage by mistakenly submitting an unmodified version of the Applicant Certification and Acknowledgement Form. The submittal of the unmodified version of the form was an obvious mistake and waiving the mistake does not adversely impact Florida Housing or the public. Mr. Reecy testified that he could recall no instance in which Florida Housing had waived the submittal of the wrong form as a minor irregularity. He also observed that the credibility of Florida Housing could be negatively affected if it waived the submission of the correct form in light of the “effects clause” contained in Section Four: Due to the fact that we did have an effects clause in this RFA and we felt that, in accordance with the rule requirements regarding minor irregularities, that it would be contrary to competition because we wanted everybody to sign and acknowledge the same criteria in the certification; so we felt that if some did--some certified some things and some certified to others, that that would be problematic. And the fact that we had very specifically instructed that if we did not get the modified version, that we would not consider it, and then if we backed up and considered it, that that would erode the credibility of the Corporation and the scoring process. Mr. Reecy testified that the modification to the Applicant Certification and Acknowledgement Form was intended not merely to clarify the Scattered Sites requirement but to strengthen Florida Housing’s legal position in any litigation that might ensue from a decision to rescind the funding of an applicant that did not comply with the Scattered Sites requirements as of the application deadline. He believed that waiving the “effects clause” would tend to weaken Florida Housing’s legal position in such a case. Petitioners had clear notice that they were required to submit the modified Applicant Certification and Acknowledgement Form. They did not avail themselves of the opportunity to protest the RFA modifications. There is no allegation that they were misled by Florida Housing or that they had no way of knowing they were submitting the wrong form. The relative importance of the new acknowledgement in the modified form may be a matter of argument, but the consequences for failure to submit the proper form were plainly set forth in the effects clause. Florida Housing simply applied the terms of the modified RFA to Petitioners’ applications and correctly deemed them ineligible for funding.
Recommendation Based on the foregoing, it is RECOMMENDED that the Florida Housing Finance Corporation enter a final order confirming its initial decision finding JPM Outlook One Limited Partnership and Grande Park Limited Partnership ineligible for funding, and dismissing each Formal Written Protest and Petition for Administrative Hearing filed by JPM Outlook One Limited Partnership and Grande Park Limited Partnership. DONE AND ENTERED this 29th day of June, 2017, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2017.
The Issue The issues for consideration in this case concern the petition and challenge to the validity of Rule 7D-32.001(4); Rule 7D-32.003 and Rules 7D- 32.004(1) and (2), Florida Administrative Code. The basis for the challenge is premised upon an alleged vagueness, inadequacy in the establishment of standards for agency decisions, the vesting of unbridled discretion in the agency and the contention that the rules are arbitrary and capricious.
Findings Of Fact Petitioner is the owner of Lake Waldena Resort, a mobile home park located in Marion County, Florida. That park is regulated under the provisions of Chapter 723, Florida Statutes. Petitioner is a mobile home park owner within the definition set out in Section 723.003(7), Florida Statutes. In addition, Petitioner is presently charged, through a notice to show cause/administrative complaint, with violating Section 723.037(3), Florida Statutes and Rule 7D- 32.004(1), Florida Administrative Code, by his alleged refusal to meet with a designated homeowners' committee within 30 days of the giving of notice of a proposed increase of lot rental. That disciplinary case was heard on the same date as the present case and is awaiting disposition through a recommended order. If Petitioner is found to have violated provisions within Chapter 723, Florida Statutes and Chapter 7D-32, Florida Administrative Code, he may be subjected to a civil penalty or have other administrative sanctions imposed. The rules that are under challenge are related to the formation of the homeowners committee; the activities of that committee in ascertaining the basis for the park owners' reason for a lot rental increase; the obligation of the park owner to meet with the committee and the opportunity of the park owner to request certification of the committee's selection to participate in the meeting envisioned by Section 737.0037(3), Florida statues. Respondent by the authority set forth in Section 732.006(6), Florida Statutes, is authorized to promulgate rules which it deems to be necessary to implement, enforce, and interpret the provisions of Chapter 723, Florida Statutes. In accordance with that authority and the authority set forth in Section 723.037, Florida Statutes, it enacted the rules which are the subject of this dispute. Intervenor is a Florida non-profit corporation which represents over 150,000 mobile home owners and tenants in Florida and has as its purpose the representation of those mobile home owners in various activities, to include legal issues. The Petitioner and Respondent and the mobile home owners whom the Intervenor represents are substantially affected by the decision concerning the validity of the aforementioned rules.
The Issue 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.
Findings Of Fact 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. 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. Effective January 1, 1987, the Respondent increased the monthly lot rental in Minerva Mobile Home Park by $11. Effective January 1, 1988, the Respondent increased the monthly lot rental in Minerva Mobile Home Park by $4.50. Effective January 1, 1989, the Respondent increased the monthly lot rental in Minerva Mobile Home Park by $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. The 11 homeowners who testified all paid all rent increases charged by the Respondent. 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.
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
