Findings Of Fact Oak Park Village is a mobile home park which is owned and operated by the COOPERATIVE. All of the one hundred and thirty three (133) corporate shareholders are former renters who formed the corporation in order to purchase the park from Mr. Paster and Mr. Perrault, the previous park owners. When the purchase was made, the remaining sixty-six (66) mobile home owners who rented lots within the park did not participate in the purchase. These mobile home owners remained within the park in their status as renters. The COOPERATIVE'S predecessors in title filed a mobile home park prospectus and an amended prospectus with the DIVISION, as required by law. The renters who received the initial prospectus between April 1985 and October 1986, continued their relationship with the park under this prospectus. All of the newer renters were subject to the amended prospectus, which became effective October 1986. Each prospectus contains a copy of the lease form. All of the renters had to sign a written lease before they could enter the park. The term of a lease within the park was normally for a one year period, which ended on December 31st. However, if a tenancy did not begin on January 1st of any year, the first term would end on December 31st of the year the lease was made. Each lease contains an automatic renewal clause. Unless the renter notifies the mobile park owner in writing sixty (60) days in advance of the automatic renewal on December 31st of his intention to leave the park, the lease is automatically renewed for another one year period. In the lease and in each prospectus, only the renters can prevent the automatic renewal from taking effect. On September 19, 1986, the mobile home park owners, Mr. Paster and Mr. Perrault gave written notice to the renters of their intent to increase the lot rental amount effective January 1, 1987, from one hundred and fifty dollars ($150.00) a month to one hundred and fifty six dollars and forty cents ($156.40) per month for a one year period. This advance notice gave the renters the opportunity to terminate their leases and relocate before the automatically renewal or January 1, 1987, which would include this lot rental price increase. None of the renters gave the owners a sixty (60) day advance written notice of their intention to leave the park at the end of the term. Therefore, potential purchasers were on notice that sixty-six (66) renters intended to automatically renew their written leases on January 1, 1987, for a one year term. On January 1, 1987, the automatic renewal went into effect. Under the lease terms and each prospectus, every renter owed one thousand eight hundred seventy six dollars and eighty cents ($1,876.80) as lot rent for the year 1987. The renters had the option to pay this amount in equal monthly installments of one hundred and fifty six dollars and forty cents ($156.40) over the twelve month period. However, the mobile home park owner's right to the one thousand eight hundred seventy six dollars and eighty cents ($1,876.80) vested on January 1, 1987. Contrary to the stipulation of the parties, the law and the evidence shows that written leases were in effect on January 1, 1987. On December 26, 1986, the COOPERATIVE purchased Oak Park Village. At the time of purchase, the COOPERATIVE took the property subject to the existing leases, and the automatic renewals which were inchoate on December 26, 1986, but which would become operative on January 1, 1987. After the sale was completed, Mr. Paster attempted to rescind the notice of rent increase, which was to take effect on January 1, 1987. As Mr. Paster no longer owned the property at the time he attempted this recision, he was unable to effectuate a recission. On December 30, 1986, the COOPERATIVE mailed written notices to its sixty-six (66) renters. The notices informed the renters that the rent would remain at one hundred and fifty dollars ($150.00) for three months and would then increase to one hundred and eighty seven dollars ($187.00) per month from April 1, 1987, to December 31, 1987. This came to an annual rental amount of two thousand one hundred and thirty three dollars ($2,133.00). This was an annual increase of two hundred and fifty six dollars and twenty cents ($256.20) per renter during the 1987 lease term, when the increase initiated by the prior owners is compared with the proposed increase. In comparing the notice of increase dated September 19, 1986, and the notice dated December 24, ,1986, it appears that the first three reasons listed for the proposed increases are identical. The only additional reason for an increase which is listed on the notice dated December 24, 1986, from the new owners is "Maintenance needs of the park." The notices sent by the new owners, the COOPERATIVE, were postmarked December 30, 1986, and were placed in the individual post office boxes of all of the tenants on the same day. Page twelve of each prospectus defines "notice" as follows: Unless otherwise provided by statute, administrative rule, or this Prospectus, any notice shall be deemed given by posting by first class mail or by actual hand delivery. Rule 7D-32.02(3), Florida Administrative Code, the applicable rule to these proceedings, provides as follows: Notice given by personal delivery shall be deemed given when actually delivered to the homeowner. Notice by U.S. Mail shall be deemed given five days after notice is placed in the U.S. Mail addressed to the mobile homeowner's last known address. As the prospectus and the amended prospectus both defer to the administrative rule in effect which defines the term "notice," the COOPERATIVE's notice did not occur within a ninety day period, even under the COOPERATIVE's theory of the case, as set forth in its Proposed Recommended Order.
Findings Of Fact Petitioner is the state licensing regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.30, Florida Statutes and Chapters 120, 455 and 475, Florida Statutes, and rules and regulations promulgated pursuant thereto. During times material, Respondent was a licensed real estate salesman in Florida, having been issued license number 0319604. The last license issued Respondent was as a salesman, c/o Referral Realty Center, Inc. (herein Referral) at 8974 Seminole Boulevard, Seminole, Florida. On December 1, 1988, Respondent entered into a management agreement with Madeira Beach Yacht Club Condominium Association, Inc. (herein Madeira) to serve as property manager. Respondent assumed the property manager position with Madeira in June of 1987, which was formalized by a written agreement in December 1988. While acting as property manager for Madeira, Respondent handled the rental transactions of individual units for owners. In return for her services, Respondent was compensated based on a commission of 10% to 20% of the monthly rental. On at least one occasion, Respondent rented an individual unit for owners for a term greater than one year. Respondent was aware that she was renting the one unit for a term in excess of one year. Respondent signed leases for units belonging to individual owners as the rental agent or representative. Respondent used the commissions that she received to defray operating expenses for her rental business such as cleaning fees for the units and for personal compensation. Respondent maintained a bank account at the First Federal of Largo Savings and Loan Association entitled "Dorothy K. Livingston Rental Account" for her rental business. Deposits to that account were rental monies received from tenants from which disbursements were made to unit owners and the remaining commissions went to Respondent as compensation. The rental account maintained by Respondent was neither an account with her employing real estate broker, nor was it an escrow account. Respondent placed security deposits that she received from tenants in the referenced rental account that she maintained. Respondent did not inform her employing broker of the receipt of security deposits nor did she discuss with her employing broker any of her activities involving rental of units for owners at Madeira. However, there is credible testimony evidencing that her broker was knowledgeable of Respondent's activities relative to her rental of units for owners. During May 1989, Respondent placed her real estate license with Referral Realty Center (Referral) as her employing broker. She did so in order to receive payment for referring prospects to Referral. On or about May 22, 1989, Respondent entered into an independent contractor agreement with Referral. That agreement provided in pertinent part that: Independent contractor agrees that Independent contractor will not list any real estate for sale, exchange, lease or rental... . Independent contractor agrees to refer all prospective clients, customers, buyers and sellers of which Independent contractor becomes aware to the Center... . Independent contractor agrees that so long as this Agreement is in force and effect the Independent contractor will not refer any prospective seller or buyer to another real estate broker... . 9. Independent contractor agrees to act, and to represent that he or she is acting solely as a referral associate of the Center... . While employed by Referral, Respondent also received commissions from individual unit owners at Madeira. During the time when Respondent had her license listed with Referral, she also received commissions from Referral for prospects she generated while renting units for owners and acting as property manager at Madeira. Respondent received a copy of a letter from attorney R. Michael Kennedy, addressed to J.L. Cleghorn of Building Managers International, Inc., dated September 5, 1989. In that letter, attorney Kennedy expressed his opinion that condominium or cooperative managers are exempted from the licensing provisions of Chapter 475, Florida Statutes, and that receipt of a percentage of rental proceeds would not be precluded even if the manager was salaried. The Kennedy letter erroneously states support for attorney Kennedy's opinion by Alexander M. Knight, Chief of the Bureau of Condominiums, and Knight so advised attorney Kennedy of that erroneous support by a subsequent letter to him. It is unclear to what extent Respondent apprised attorney Kennedy as to the specifics of her activities and to what extent she relied on his opinion prior to engaging in her property manager's rental and referral activities. (Petitioner's Exhibit 7.) Respondent did not seek advice from Petitioner as to whether her activities fell within the guidelines of Chapter 475, Florida Statutes. Respondent is familiar with the statutory definitions of a broker and salesman and what activities constitute brokerage and sales activities. During times material, Respondent's employing broker, David Hurd, was a licensed real estate broker in Florida, and the broker of record for Referral for procuring prospects and making referrals of real estate activities. Employment under an independent contractor agreement is considered employment under Chapter 475, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1,500.00, issue a written reprimand to her, place her license on probation for a period of one (1) year with the further condition that she complete 60 hours of continuing education. RECOMMENDED this 31st day of May, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 31st day of May, 1991. COPIES FURNISHED: Janine B. Myrick, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jerry Gottlieb, Esquire GOTTLIEB & GOTTLIEB, P.A. 2753 State Road 580, Suite 204 Clearwater, Florida 34621 Darlene F. Keller, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this matter are whether the Department of Business and Professional Regulation, Division of Real Estate (Petitioner) proved that Derek Welling (Respondent) is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Subsection 475.25(1)(b), Florida Statutes; and whether Petitioner proved that Respondent is guilty of failing to account and deliver funds in violation of Subsection 475.25(1)(d)1, Florida Statutes; and if so, what is the appropriate discipline?
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes. Respondent is a licensed realtor and has been at all times material hereto, having been issued license number 0582890 under Chapter 475, Florida Statutes. In 1989, Respondent founded UK Realty, a real estate brokerage firm, with his son-in-law, Russell Christner. From 1989 thru the summer of 1996, Respondent primarily served as UK Realty's international sales representative while Mr. Christner served as its qualified broker. Respondent traveled to various trade shows primarily in Europe and encouraged customers to purchase rental properties in the central Florida area. In 1991, Respondent and Mr. Christner formed a short- term rental property management company known as Connoisseur Homes, Inc. (Connoisseur) to manage the rental properties of UK Realty's domestic and international clients. In 1993, Respondent and Christner sold a one-third interest in Connoisseur to Mr. Graham Greene, who immediately became president of Connoisseur and served as its day-to-day operations manager. Although Respondent maintained a one-third ownership in Connoisseur, he remained the company's international sales associate. Respondent was generally not involved in the day-to-day management and operations of Connoisseur and had little personal knowledge of the factual circumstances surrounding the client complaints that form the basis of Petitioner's allegations. Each of the allegations levied against Respondent in Petitioner's Amended Administrative Complaint involves complaints filed by property owners relating to contract services with Connoisseur. There is no evidence in the record that any of the property owners was dissatisfied with the services of Respondent or Connoisseur prior to the summer/fall of 1996. Hart Property In 1994, Michael Hart, a resident of England, engaged the services of UK Realty and purchased a rental home property in Davenport, Florida. Mr. Hart was referred to Mr. Richard Wilkes, a representative of Connoisseur, to manage his property. On May 17, 1995, Mr. Hart contracted with Connoisseur to provide rental management services. Mr. Hart placed an initial deposit with Connoisseur to purchase various items and maintained a $1000 balance in an escrow account to pay the annual taxes and monthly expenses associated with the management of the property. Pursuant to his contract with Connoisseur, Mr. Hart received periodic statements from Connoisseur detailing all moneys collected from tenants, escrow balances, and any other activity in his account. According to the statements Mr. Hart received, Connoisseur booked nine persons to stay in his property between October of 1996 and January of 1997. While Connoisseur received approximately $9,844.60 for these rentals, Mr. Hart received none of the rental proceeds. On or about January 3, 1997, Mr. Hart received notice from the Polk County tax collector indicating that the "tourist development tax" associated with his property was delinquent for the months of September, October, and November of 1996. In addition, the letter indicated that Connoisseur made a payment to Polk County for September 1996 that was returned for insufficient funds. Shortly thereafter, Mr. Hart was advised that the cable and electricity to the property had been disconnected for non-payment. Glass Property In May 1993, Mr. Colin Glass purchased a rental home in Davenport, Florida, and contracted with Connoisseur to manage the property. Pursuant to the contract, Connoisseur agreed to advertise and list the property, manage the reservations and timely pay the rental property's expenses. Mr. Glass agreed to receive $500.00 for each week that the property was rented minus a cleaning fee. Pursuant to the contract, Mr. Glass placed a $1000 deposit with Connoisseur to pay the initial maintenance costs associated with the property. Thereafter, Mr. Glass received periodic statements from Connoisseur detailing the funds received, occupancy, and expenses paid to manage his property. The statement for the month ending November 30, 1996, indicates that Connoisseur collected $5,290.00 in rental proceeds from tenants who rented the property between August of 1996 and January of 1997 and paid $110 for cleaning services on November 8 and 21, 1996. In November, 1996, Mr. Glass requested a detailed accounting from Connoisseur regarding his property. On December 6, 1996, Mr. Glass received a written letter on Connoisseur stationary, signed by Kelleen Newman, a Connoisseur employee responsible for preparing accounting statements during the relevant period. The letter advised Mr. Glass that Connoisseur owed Mr. Glass approximately $1,750.00 for payments received pursuant to bookings under the names Beaumont and Tullet. To date, Mr. Glass has not received the rental proceeds. In addition, Connoisseur failed to pay the property tax bill associated with the Glass property as required by the management contract, and it became delinquent. Hamlyn Property On September 22, 1993, John Hamlyn purchased a home in Davenport, Florida. Five months later, on February 22, 1994, Mr. Hamlyn hired Connoisseur to manage his rental property. Pursuant to the contract, Connoisseur agreed to advertise and rent the property, manage the collections, and pay the operational expenses. Mr. Hamlyn placed a $500.00 deposit with Connoisseur to perform the contract and was required to maintain that balance in the account. In November of 1995, Respondent and Connoisseur increased the required escrow balance to $1000.00. In January of 1997, immediately following the demise of Connoisseur, Mr. Hamlyn maintained an escrow account with Connoisseur. Mr. Hamlyn did not receive an accounting of the escrowed funds or a refund of the balance. The evidence is undisputed that Mr. Hart, Mr. Glass, and Mr. Hamlyn each delivered funds in trust to Connoisseur which were not accounted for or returned. The evidence is undisputed that Connoisseur, in 1996, received rental proceeds as agents on behalf of Mr. Hart and Mr. Glass, which were not remitted to the owners. The evidence is undisputed that Connoisseur, in 1996, failed to pay certain utility bills and tax bills as required in its contracts with Mr. Hart and Mr. Glass. Connoisseur's Collapse Connoisseur's operational and financial failure surfaced on September 13, 1996, when Mr. Green, the company's co-owner and day-to-day operations manager, without notice, resigned as President of Connoisseur and formed a competing property management company. To make matters worse, within days, Mr. Green hired key staff away from Connoisseur including Richard Stanton, Connoisseur's office manager, accountant and licensed real estate broker, as well as Dyer Scott, the company's book-keeper. Shortly thereafter, Mr. Green's new company was operational and selectively securing new management agreements with Connoisseur's client list. In response, Respondent immediately evaluated Connoisseur's financial and operational status and attempted to manage its problems. Respondent advised all of Connoisseur's homeowners of the company's status, including the departure of the key operational owner and employees, but tried to assure them that the company was headed in the right direction. In fact, in a news update dated October 15, 1996, Respondent advised all of the clients, including Mr. Hart, Mr. Glass, and Mr. Hamlyn of the following: Upon investigation we were appalled to find that most of our homeowners are waiting on payments and upon further investigation we found that in many cases payment had never been collected from the tour operator. This situation is being corrected immediately and manual invoices are being prepared for collection . . . I'm happy to say that approximately $200,000 in back bookings will be properly allocated to our homeowners this month. Connoisseur did not recover. Within two months, 150 of Connoisseur's 270 homeowners cancelled their management contract with Connoisseur and on January 1, 1997, Respondent sold his interest in Connoisseur to Richard Wilkes and received a total of $15,000.00. Respondent experienced complete financial loss as a result of the demise of Connoisseur. His home was foreclosed and his vehicle was repossessed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Amended Administrative Complaint filed against Respondent in this matter be dismissed. DONE AND ORDERED this 3rd day of July, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 3rd day of July, 2003. COPIES FURNISHED: Victor L. Chapman, Esquire Barrett, Chapman & Ruta, P.A. 18 Wall Street Post Office Box 3826 Orlando, Florida 32802-3826 Christopher J. DeCosta, Esquire Department of Business and Professional Regulation Hurston Building, North Tower 400 West Robinson Street, Suite N809 Orlando, Florida 32801 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Nancy P. Campiglia, Acting Director Department of Business and Professional Regulation 400 West Robinson Street Suite 802, North Orlando, Florida 32801
The Issue The issues to be determined are whether Respondent violated Sections 475.25(1)(b), 475.25(1)(e), 475.25(1)(k), and 475.42(1)(d), Florida Statutes (2006), and Florida Administrative Code Rule 63J2-14.009, as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the real estate industry in the State of Florida, pursuant to Section 20.165 and Chapters 455 and 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate sales associate, having been issued license number SL 706026. During the time relevant to this case, Respondent was a sales associate affiliated with Jacksonville Home Finders, Inc., a brokerage company located in Jacksonville, Florida. Katrin Rabren was the broker/owner of Jacksonville Home Finders, Inc. (Homefinders). In approximately 2006, she hired Respondent as a sales associate, and Respondent's license was listed as affiliated with Homefinders in September 2006. In early April 2007, Ms. Rabren received a call from Alvin Reynolds, the owner of some property Homefinders was managing at 3501 Kernan Boulevard, Number 234, in Jacksonville. Mr. Reynolds was calling to ask for his funds from the rental of the property. The property was apparently rented and funds received from the tenant for a security deposit and first month's rent on or about March 12, 2007. However, those funds, totaling $1,444.99, were not placed in the broker's trust account. Ms. Rabren confronted Respondent about the funds and was told that Respondent spent the money on personal bills. Respondent told Ms. Rabren that she would replace the money. On April 5, 2007, Respondent gave Ms. Rabren a check made out to Jacksonville Homefinders for $1,489.99. The check was from an account for Winter Property Maintenance, Respondent's husband's company. Ms. Rabren's husband deposited the check in Homefinder's escrow account. On April 6, 2007, the check was returned for insufficient funds. Ms. Rabren paid the property owner out of her personal funds. Respondent has not replaced the funds or delivered funds to the employer/broker for deposit into the escrow account.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Real Estate Commission enter a Final Order finding that Respondent has violated the provisions of Sections 475.25(1)(b), 475.25(1)(e), 475.25(1)(k), 475.42(1)(d), Florida Statutes (2006), and Florida Administrative Code Rule 63J2- 14.009, as alleged in the Administrative Complaint, and revoking Respondent's license as a real estate sales associate. DONE AND ENTERED this 20th day of October, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 20th day of October, 2010.
The Issue This case concerns a Notice to Show Cause served by Petitioner on Respondents, by which Petitioner orders Respondents to cease and desist their activities, to pay statutory fees, and to be assessed penalties. The activities in question are associated with the alleged need for Respondents to pay annual fees for mobile home lots rented within an alleged mobile home park operated by Respondents from the years 1984 through 1991. See, Section 723.007, Florida Statutes. Based upon the alleged nonpayment of the annual fees, Petitioner seeks to impose a civil penalty in accordance with Section 723.006(5)(d)1., Florida Statutes.
Findings Of Fact In 1978, Park T. Brittle purchased property in Leon County, Florida, which had been foreclosed on by Barnett Bank. This property had been originally developed by Miles Salgret. Prior to the purchase by Park T. Brittle, some lots had been sold by Mr. Salgret, approximately four in number. The property in question is known as Briarwood Estates. The Briarwood Estates is for use by mobile home owners who either own or rent lots on this property. Subsequent to his purchase, Park T. Brittle had the property surveyed by Tom Howard, a surveyor. Through this survey, a plat was prepared. The plat was submitted to the Leon County Property Appraiser. Subsequent to that time, beginning in 1980, the lots within Briarwood Estates have been individually assessed by the Property Appraiser for tax purposes. That is to say that the tax assessment is made on the individual lot owners. Park T. Brittle has sold 29 or 30 lots during his ownership. The property that is described in the plat is property in which the individual lot owners own to the center line of the roads which adjoin the lots. Respondents provide water and street lights as amenities within Briarwood Estates. Respondents are billed for these utilities and, in turn, charge individual lot owners for the amenities. In addition to the mobile home lots which have been sold, beginning with 1984 when the Florida Mobile Home Act was passed, the relevant time frame in this inquiry, Respondents have rented 10 or more mobile home lots on the property known as Briarwood Estates. These lots were rented to residential mobile home owners. More specifically, Respondents have continually collected monthly rents for mobile home lots on the property from 16 residential mobile home owners. All 16 of these mobile homes, during the period of 1984 through 1991, were mobile homes which were at least 8 feet by 35 feet in dimension. None of these 16 mobile homes are owned by Respondents. The 16 lots are not for purposes of rental spaces for RVs. In view of an attempt to institute a rental increase for the mobile home lots which Respondents rented at Briarwood Estates, a complaint was made to Petitioner concerning Respondents' intention to increase the rental fees. Respondents deferred to the requirements set forth by Petitioner concerning rent increases for those lots rented to the residential mobile home owners. Respondents complied notwithstanding Respondents' claimed uncertainty concerning the necessity to follow the guidelines and requirements established by Petitioner for adopting rent increases for lots rented to residential mobile home owners at Briarwood Estates. The uncertainty asserted by Respondents concerned the question of whether the 16 lots for which Respondents receive rents are part of a mobile home park, as defined in Section 723.003(6), Florida Statutes. Respondent, Park T. Brittle, testified at page 17 in the hearing transcript: "I attempted to follow those guidelines, not because I felt obligated, but if indeed later on it was determined that I was operating a mobile home park, I wanted to be sure that I was clear on that part of it." This refers to the increases in lot rental fees. Respondents do not concede that they are operating a mobile home park as it pertains to the payment of annual fees for each of the 16 lots in the amount of $1.00 in 1984 and $3.00 from 1985 through 1991, together with a 10% late fee charge for each year and each lot if the fees were not paid prior to December 31st of the year in question. Consequently, the fees for the 16 lots in the years 1984 through 1991 have not been paid. The amount due for the annual lot fees and penalties is $387.20. In addition to the amount assessed for annual fees for the lots and penalties for late payment, historically, Petitioner has assessed a $500.00 fine per year for noncompliance with the requirement to pay annual lot fees. Respondents do not believe that they are operating a mobile home park, rather it is their assertion that they are operating a mobile home subdivision. Respondents have cooperated with the Petitioner in the investigation concerning the payment of annual fees for lot rentals which was occasioned by inquiries by Park Brittle as well as a complaint by a tenant in one of the sixteen lots in question over increases in the monthly mobile home lot rental fees.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law, it is RECOMMENDED that final order be entered which requires Respondents to pay $387.20 in annual fees and penalties for the period 1984-1991, and assesses a civil penalty in the amount of $500. DONE and ENTERED this 7th day of October, 1992, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2961 The following discussion is given concerning the proposed facts of the parties: Petitioner's Facts: Paragraphs 1 through 11 are subordinate to facts found. Paragraph 12 is not necessary to the resolution of the dispute. Paragraph 13 is subordinate to facts found. Respondents' Facts: Paragraphs 1 through 7 are subordinate to facts found. COPIES FURNISHED: E. Harper Field, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 George Carswell, Esquire Post Office Box 508 Monticello, Florida 32344 Henry M. Solares, Director Department of Business Regulation, Florida Land Sales Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, FL 32399-1007 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007
The Issue Whether Respondent, Greenway Nursery, Inc. (“Greenway”), is liable to Petitioner, Huntsman Tree Supplier, Inc. (“Huntsman”), for the purchase of landscaping trees, and, if so, in what amount.
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: Huntsman is a Florida corporation for profit, located in Lake City, and engaged in the business of commercial tree farming. Its owners are James and Michelle Huntsman. Mr. Huntsman is the president of the company and Ms. Huntsman is the secretary. Greenway is a Florida corporation for profit, located in Morriston, and engaged in the business of commercial nursery and landscaping. Its owner and president is Brian D. Love. At issue in this proceeding are two deliveries of trees from Huntsman to Greenway, one on March 12, 2015, and one on June 23, 2015. The invoice for the March 12 delivery indicates that it was billed to Greenway. It is for 12 East Palatka holly trees, 65 gallons each. The trees are billed at the rate of $240 each, for a total bill of $2,880. The invoice indicates that Greenway took delivery of the trees by customer pick-up. The invoice for the June 23 delivery also states that it was billed to Greenway. The invoice includes one ligustrum, eight feet in height, for $200; one 2.5-inch DBH1/ slash pine for $130; two 4-inch live oaks with a height of 14 to 16 feet for $250 each; and one cypress for $240. The total amount of the invoice is $1,070. Again, the invoice indicates that Greenway took delivery by picking up the trees. All of the trees in both invoices were destined for a landscaping project at Adena Golf and Country Club in Ocala (“Adena”). Both parties were involved in planting trees in different areas of the Adena property. The parties’ course of dealing until June 2015, was not completely explained at the hearing. It was clear that Huntsman would directly bill Greenway for the trees and that Greenway would take delivery of the trees by pick-up. It was unclear whether Huntsman expected to receive payment directly from Adena or whether Greenway would pay Huntsman for the trees from payments Greenway received from Adena. In any event, Greenway accepted the billings and took delivery of the trees in each instance, thus accepting ultimate responsibility for payment to Huntsman. In its answer to the Complaint, and again at the final hearing, Greenway admitted liability for the $2,880 stated in the March 12 invoice. Mr. Love agreed to pay Huntsman that amount within 15 days of entry of the final order in this case. However, Greenway denied liability for the $1,070 stated in the June 23 invoice. Mr. Love stated that his company was not liable for these trees because they were not part of his project with Adena. He stated that he installed these trees to replace trees on the Adena property that had died, but that the dead trees had not been the responsibility of his company. Ms. Huntsman denied that the dead trees had been installed in the area of the Adena property where her company was working. She testified that Adena’s representative told her that she should seek payment from Greenway because the June 23 tree delivery constituted “warranty work.” Greenway had planted trees on the Adena property that had died, and Adena considered Greenway the warrantor of those trees and therefore liable for their replacement. Based on all of the testimony, it appears that Huntsman found itself in the middle of a dispute between Greenway and Adena as to whether Greenway had warranted the trees that died, and became aware of the dispute only after it had billed and delivered the trees to Greenway in accordance with the parties usual course of dealing. The evidence was insufficient to establish that Huntsman had any responsibility for, or prior knowledge of, the dead trees. It will be left to one or the other of these parties to take up the issue of payment with Adena. Fundamental fairness dictates that this burden should fall to Greenway. Greenway had the warranty dispute with Adena that caused this controversy. Greenway accepted the bill of lading and the invoice for the June 23 shipment, and took delivery of the trees in accordance with the parties usual course of business. As the innocent supplier of the trees, Huntsman should be made whole.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of Huntsman Tree Supplier, Inc., against Greenway Nursery, Inc., in the amount of $4,000. DONE AND ENTERED this 12th day of April, 2016, 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 12th day of April, 2016.
Findings Of Fact At all material times, the Respondent Jay R. Toll ("Toll") was a licensed real estate broker, acting as the sole qualifying broker and officer of the Respondent The Home Agency Real Estate Corporation ("Home Agency"). At the time of the hearing, the licenses of the Respondent Toll and the Respondent Home Agency had expired, and were thus in inactive status. From October of 1980 to April 8, 1981, Laura Oxford was employed as a salesman for Home Agency. On April 8, 1981, Laura Oxford expired. By letter dated June 10, 1981, Attorney W. J. McNaughton, representing the estate of Laura Oxford, notified the Respondent Toll that he was to retain all commissions, together with a full accounting thereof, in Toll's escrow account until McNaughton advised Toll as to the time when the money should be delivered to the estate. By letter dated June 19, 1981, Toll responded that he owed Laura Oxford $883.73 for the Hawkins to Macaluso sales transaction, and that he would keep that sum in escrow. By letter of October 22, 1982, McNaughton informed Toll to forward the check for all commissions due to Laura Oxford to the estate of Laura Oxford. Hearing no response from Toll, McNaughton again wrote to both Respondent Toll and Respondent Home Agency and requested them to forward the commissions due Laura Oxford. McNaughton also stated that if he had not heard from Toll within seven days of Toll's receipt of the letter, he would report Toll to the Florida Real Estate Commission. Again hearing no response, McNaughton wrote to Toll on January 5, 1983 requesting the $883.73, and also indicated to Toll that McNaughton was aware of four real estate deals at the time of Oxford's death, for which she may have been owed commissions. This letter was sent to Toll at his home address, and to Home Agency at its business address, certified mail, but both were returned unclaimed. When this last attempt at communication with the Respondents' failed, McNaughton advised Ralph Oxford, personal representative of the estate of Laura Oxford, to file a complaint with the Florida Real Estate Commission. On February 26, 1982, Toll's escrow account in which the $883.73 in commission due Laura Oxford had been maintained was closed, and the funds were thereafter not maintained in escrow. The complaint Ralph Oxford filed against the Respondents was investigated from April 20, 1983 to May 27, 1983, by Department Investigator Frank King. On May 20, 1983, Frank King interviewed Toll with regard to Mr. Oxford's complaint. During that interview, Toll admitted that he owed the estate of Laura Oxford $927.50 for the Miller to Rivera sales transaction and $75 for the Price to Rosario sales transaction. Ralph Oxford first became aware that there were commission monies due Laura Oxford in excess of $883.73 when investigator Frank King so notified him during the course of investigation of Toll. At no time prior to May, 1983 did Toll report to McNaughton or Ralph Oxford that additional monies were due Laura Oxford. Toll utilized the commissions due the estate of Laura Oxford for his own use and benefit without the prior knowledge and consent of Laura Oxford or her estate. On July 25, 1980, Toll submitted an application for licensure of The Home Agency Real Estate Corporation, listing Jill Harris, wife of Harvey Harris, as vice president and registered agent of the corporation, and listing Harvey Harris as a 50 percent owner in the corporation. On July 29, 1980, Harvey Harris gave Toll a check in the amount of $2,550 as partial payment for ownership of 50 percent of Home Agency. The total purchase price for 50 percent of the stock of Home Agency was $3,500.00. The original agreement between Harvey Harris and Toll was that Harris was to own 50 percent of the profits of the corporation. The stock was never issued. On August 19, 1980, Harvey Harris became employed by Home Agency as a real estate salesman and remained so employed until approximately April 22, 1981. Early in Harris' employment, Toll told Harvey Harris that he did not want partners in the corporation, and offered instead to make Harvey Harris sales manager with Harvey Harris receiving 60 percent of listings and sales and Home Agency receiving 40 percent. Harvey Harris was also to get $100 for each deal that came in the office and $50 a week toward car allowance. Toll's agreement with Harvey Harris included the provision that Toll be placed on all of Harvey Harris' listings so that if Harris was out of the office canvassing or training salespeople and customers called to inquire about a listing, Toll would be able to take the calls. Further, if Harris took a listing and was also selling salesman for the listing, he would retain 70 percent of the money with 30 percent going to Home Agency. Through several payments, Toll paid back the $3,500 originally paid to him by Harvey Harris for the stock. Harris was the listing salesman in the Brown to Herrara transaction. Toll took no part in the listing which was sold by another real estate office. Under the terms of the agreement between Toll and Harris, Harris should have received 60 percent of Home Agency's share of the commission. Home Agency received $2,349 as commission, and Harris was to receive $1,404.00. Instead, Harvey Harris received nothing. When Harris demanded his commission, Toll told him that he needed the money to keep Home Agency open and stated that he would pay Harris back. Harvey Harris was the listing salesman in the Lassiter to O'Bier transaction. Toll procured the purchasers, the O'Biers. In that transaction Home Agency received $3,750.00. Toll should have received 60 percent of that amount, but instead received nothing. Harris discussed the commission with Toll and was again told by Toll that he needed the money to keep the office open. Harvey Harris was both the listing and rental salesman in the Temple Israel to Mishel rental transaction. As such, he was entitled to 70 percent of the $700 commission. Instead Harvey Harris received $175.00. When he confronted Toll about the additional monies due him, Toll told him that that was all he would receive. Harris was the selling salesman in the Carsaglia to Caveras transaction. The listing was held by 4 percent Realty. Toll had no involvement in the transaction, other than rewording the contract. Harris was due 60 percent of the commission in the Carsaglia to Caveras transaction. Home Agency received approximately $2,200.00. Harris received $570.19, significantly less than the approximately $1,320 that he was entitled to receive. Harris was the listing salesman and selling salesman in the Force to Albertoria transaction. Home Agency received $3,720 in commissions from that transaction. Under the terms of his agreement with Toll, Harris was to receive 70 percent of that commission. Instead, Toll paid Harris $116 initially, with twelve payments of $88.85 due monthly. Toll did not pay the last two payments in the amount of $88.85 to Harris. Harris received no other monies from Toll on the commissions previously discussed, and when he requested the commissions and pursued the point he was fired. After leaving Toll's employment, Harris repeatedly requested the commissions and Toll failed to deliver them. The Respondent Toll presented no defense to the allegations involving Laura Oxford, but did defend the statements of Harris by presenting testimony that Harris in fact was indebted to Home Agency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Florida Real Estate Commission finding the Respondents guilty of Count One of the Administrative Complaint and suspending the licenses of Jay R. Toll and The Home Agency Real Estate Corporation for a period of three (3) years. DONE and ENTERED this 30th day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1984.
Findings Of Fact Petitioner was arrested in 1979 and convicted in 1980 of the third- degree felony of attempted trafficking in cannabis. He served 25 months of a five-year sentence. For about five months during 1978, Petitioner cultivated a marijuana crop consisting of about 120 plants. Although Petitioner's participation did not extend to the sale of the cannabis, he was aware of the commercial purpose for which it was being cultivated. Petitioner earned about $13,000 for his efforts. Shortly following his release from prison, Petitioner moved to the St. Petersburg area where he began to work in the roofing industry as a roofing laborer and, later, supervisor. He has continuously worked in the St. Petersburg area since, except for a period of about nine months during which he resided out of state. For the past two years, following an on-the-job injury, Petitioner has worked as a roofing sales representative. For the past nine months, he has worked as a sales representative for Ron Webb Roofing, where he worked as a roofing laborer and supervisor from 1983 through 1985 prior to his injury. Petitioner has never had a customer complaint while working in the roofing industry. As a sales representative, he is required to handle cash entrusted to him for his employer, and he has never mishandled any of these funds. Petitioner was married last July to a cardiac care nurse. He has since adopted her 16 year-old son, and the couple is expecting a baby in June. Petitioner is an active member of the PTA at his son's school. He also attends Northside Methodist Church nearly every week. Petitioner pursues as a hobby the practice of magic. He is a member of the Society for American Magicians, and this year is the president of the St. Petersburg assembly, which has 196 members and is currently the fifth largest in the United States. Petitioner has freely donated his magician services for the entertainment of the less fortunate. Recently, he performed for free for the Special Olympics in Clearwater, nursing homes, church groups, and birthday parties. Petitioner has rehabilitated himself and is of good moral character.
Recommendation Based upon the foregoing, it is RECOMMENDED that Respondent enter a final order issuing Petitioner a license as a home improvement seller. DONE and RECOMMENDED this 6th day of May, 1988, in Tallahassee, Florida. ROBERT E MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1988. COPIES FURNISHED: Alan D. Watson, Esquire Yeakle and Watson, P.A. 890 Florida Federal Building One Fourth Street North St. Petersburg, Florida 33701 Stephen M. Christian, Esquire Assistant General Counsel Office of Comptroller 1313 Tampa Street Suite 615 Tampa, Florida 33602-3394 Honorable Gerald Lewis Comptroller State of Florida The Capitol Tallahassee, Florida 32399-0350 Charles L. Stutts General Counsel Plaza Level The Capitol Tallahassee, Florida 32399-0350
The Issue The issue for determination is whether Respondent committed the violations as alleged and, if so, what civil penalty is appropriate.
Findings Of Fact Respondent, T. Cayton Enterprises, Inc. is the owner and operator of Four Oaks Mobile Home Village, a mobile home park located in Titusville, Brevard County, Florida. On or around June 27, 1986, Thomas Cayton, as President of T. Cayton Enterprises, Inc. filed a prospectus for the park with Petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes. The filing statement provided that 49 lots would be offered for rent, and that none of the lots were occupied. The $10.00 per lot filing fee ($490.00) was paid. The filing was rejected as the form was deficient. Between the end of June 1986, and August 26, 1987, the date of the approval letter, eight versions of the prospectus were filed by the park owner and were reviewed by staff of the division. After each review, the owner was sent a letter outlining the deficiencies. At one point, sometime around June 1987, Mr. and Mrs. Cayton travelled to Tallahassee to meet with Selena Einwechter, the Supervisor of the Examination Section in the agency's Bureau of Mobile Homes. The prospectus submittals and correspondence to and from the Bureau comprise 425 pages. Between the filing of the first version of the prospectus and the final approval, approximately 14 months later, twelve lots were rented at Four Oaks Mobile Home Village. The lot numbers and dates of the rentals are: Lot #3 August 1, 1986 Lot #2 August 2, 1986 Lot #44 August 15, 1986 Lot #46 August 30, 1986 Lot #12 November 1, 1986 Lot #4 November 30, 1986 Lot #19 January 15, 1987 Lot #7 March 9, 1987 Lot #6 June 1, 1987 Lot #15 June 1, 1987 Lot #5 June 6, 1987 Lot #9 June 30, 1987 Six of the recitals are evidenced by written leases; the remainder were oral agreements, reflected in the office records of the park. All of the tenants commenced paying rent upon occupancy of the lot and no one was told that the leases were unenforceable. At the beginning of the process, on July 29, 1986, Thomas Cayton was sent a letter from the Bureau of Mobile Homes confirming that his prospectus filing had been received and was being examined. The bottom of the letter includes this statement, clearly displayed: NOTE: Section 723.011, Florida Statutes, and Rule 7D-31.01, Florida Administrative Code, requires the delivery of a prospectus which has been deemed adequate by the Division prior to entering into enforceable rental agreements or renewal of existing rental agreements. Renewals of existing rental agreements or entering into new rental agreements without delivery of a prospectus which has been deemed adequate will constitute a violation of the Florida Mobile Home Act. (Petitioner's Exhibit #1, composite) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes. Subsection 723.005(d)1., F.S. authorizes the Division of Florida Land Sales, Condominiums and Mobile Homes to impose a civil penalty not to exceed five thousand dollars ($5,000) against a mobile home park owner for each separate violation of Chapter 723, F.S. or regulation promulgated pursuant thereto. The statute and rule allegedly violated by Respondent provides as follows: 723.011 Disclosure prior to rental of a mobile home lot; prospectus, filing, approval.-- (1)(a) In a mobile home park containing 26 or more lots, the park owner shall file a prospectus with the diversion. Prior to entering into an enforceable rental agreement for a mobile home lot, the park owner shall deliver to the home owner a prospectus approved by the division. This subsection shall not be construed to invalidate those lot rental agreements for which an approved prospectus was required to be delivered and which was delivered on or before July 1, 1986, if the mobile home park owner had: Filed a prospectus with the division prior to entering into the lot rental agreement; Made a good faith effort to correct deficiencies cited by the division by responding within the time limit set by the division, if one was set; and Delivered the approved prospectus to the mobile home owner within 45 days of approval by the division. This paragraph shall not preclude the finding that a lot rental agreement is invalid on other grounds and shall not be construed to limit any rights of a mobile home-owner from seeking any remedies allowed by this chapter, including a determination that the lot rental agreement or any part thereof is unreasonable or unconscionable. (emphasis added) * * * 7D-31.001 Prospectus and Rental Agreement. * * * (13) The park owner shall deliver the prospectus to existing tenants prior to the renewal of their rental agreements or prior to entering into a new rental agreement. Once a tenant has been given a prospectus, the park owner shall not be required to provide another prospectus but shall provide amendments, as described in Rule 7D-30.004 and this rule. Because Four Oaks' prospectus was not approved until the end of August 1987, the 12 rental agreements entered between August 1, 1986 and June 30, 1987, violated the above provisions. Respondent claims that he thought that as long as the prospectus had been filed, he could enter into rental agreements. This would have been true under the original version of the Florida Mobile Home Act, passed by the Legislature in 1984. The relevant provision of that act is found in Section 720.302(1), F.S. (1984) as follows: Every mobile home park owner of a park which contains 26 or more lots shall file a prospectus or offering circular with the division prior to entering into an enforceable rental agreement. Chapter 84-80, Laws of Florida, Part III) This section took effect on January 1, 1985, for parks with more than 100 lots, and on July 1, 1985 for parks with less than 100 lots. (Chapter 84-80, Laws of Florida) The current version, reflected in Section 723.011, F.S., cited above, took effect on July 1, 1986. (Chapter 86-162, Laws of Florida) Respondent cannot avail himself of the "grand-father" provision of Section 723.011, since his rental agreements and prospectus approval occurred after July 1st. Further, the explicit language of the note on the July 29, 1986, letter should have put him on notice of the new requirements of the law. There are no guidelines for the imposition of a penalty, other than the $5,000.00 maximum per violation found in Section 723.006(5)(d)1. F.S. No evidence was presented as to prior violations by this Respondent. The extensive file evidences a good faith attempt to comply with a law that was still relatively new.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That Respondent be found guilty of violation of Section 723.011(1)(a), F.S. (1986), as charged, and that a civil penalty of $100.00 per violation be imposed, for a total of $1,200.00. DONE and RECOMMENDED this 13th day of September, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 1988. COPIES FURNISHED: Richard Coates, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas Cayton, Registered Agent 2475 Cheney Highway Titusville, Florida 3270 Debra Roberts, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Bell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Respondents are James Brown and Bianca Brown, his wife. At all times pertinent to these proceedings, Respondents were owners of the mobile home park known as "Carefree Cove Club" located in Hypoluxo, Florida. They have owned the park since 1957. On or about December 28, 1984, Respondents, as operators of the park, filed a prospectus with Petitioner as required by Section 723.011, Florida Statutes. Petitioner approved the prospectus on March 27, 1985. At that time, 195 lots were being offered in the park for lease or rent. The number of lots and approximate sizes were set forth in the prospectus. The prospectus was delivered by Respondents to tenants shortly after notice of approval was received from Petitioner. On or about June 5, 1986, Respondents, pursuant to Chapter 723, Florida Statutes, sent a notice of eviction to tenants residing in the park. The park took no new tenants and was virtually closed after January 1, 1987. Most of the tenants had voluntarily vacated the park with exception of four residents by December 1, 1987. On December 16, 1987, Respondents forwarded notices to the remaining four tenants of an intent to impose "pass through" charges resulting from the park's increased real property taxes. Provision for "pass through" of such charges is made in the prospectus. The taxes which were the subject of the "pass through" were levied on three parcels of property belonging to Respondents. All of the parcels are contiguous. Two of the parcels are divided into lots and are a part of the park as described in the prospectus. The record is unclear as to whether the third parcel was completely or partially platted into lots, but it is established that this property, while not explicitly described in the prospectus, was used for recreational purposes by tenants and parking of recreational vehicles. Further, the property was landscaped and is found to be a part of the park. Respondents' intention to pass the increase in property taxes on to the tenants was consistent with the prospectus and Respondents' previous practice in 1986, when a refund was given to park tenants as the result of a property tax reduction. Respondents' subsequently abandoned their intention, however, and no "pass through" charges were collected from the tenants. Currently, no mobile home tenants reside in the park. Items, including real estate taxes, normally considered as "pass through" charges were customarily included in rental charges to tenants prior to June 4, 1984, as "operating expenses" and not otherwise denominated on rental documents. After the legislative enactment creating Chapter 723, Florida Statutes, Respondent prepared the prospectus which sets forth separate "pass through" charges. Respondents experienced periodic episodes of vandalism of the facilities of the park as the number of residents decreased in 1987. The tenants maintained alternate residences in the northern part of the United States and none were in residence at the park in the summer of 1987, when Respondents locked the clubhouse to prevent vandalism of the facility. As the tenants returned, each of them were informed that a key and access to the clubhouse was available upon request. A written notice dated March 24, 1988, codifying this policy, was sent to club members by Respondents. Closure of the facility by Respondents was in accordance with the prospectus previously distributed to the tenants. The prospectus notes that the facility's hours are from 9:00 a.m. to 9:30 p.m., and that it may be closed earlier if there are no activities. Use of the facility for all activities and all meetings requires advance reservation and written approval of the club management. It is the position of Petitioner that Section 723.002, Florida Statutes, requires the application of the provisions of Chapter 723 to Respondents' park although less than 10 lots were rented or available for rent at the time of Respondents' alleged offenses. Petitioner's policy is that mobile home parks operating under provisions of Chapter 723, Florida Statutes, and having 10 or more lots offered for rent or lease when the tenancy is created, continue to be governed under those statutory provisions as to that tenancy even when the total number of tenants becomes less than the statute's threshold of 10 tenancies. Petitioner's policy also consistently holds that tenancies created prior to the enactment of Chapter 723 in June of 1984, and consequently prior to the requirement of an approved prospectus, continue to be governed for the remainder of the term of that tenancy by the previous understanding or custom established by the rental agreement between tenant and landlord and applicable provisions of law existing at the inception of the agreement.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the charges set forth in the Notice To Show Cause. DONE AND ENTERED this 11th day of October, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2549 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS 1.-3. Addressed with the exception of the last sentence of finding number three, which is unnecessary to conclusion reached. 4.-5. Addressed. Addressed in part, remainder unnecessary to result reached. Addressed. Addressed in part, remainder unnecessary to result. Addressed. 10 Addressed. RESPONDENTS' PROPOSED FINDINGS Respondents' findings consisted of five unnumbered paragraphs. Numbers 1 through 5 have been assigned to those paragraphs and they are treated as follows: 1.-2. Addressed. Addressed in part. Remainder unnecessary. Addressed. Addressed. COPIES FURNISHED: Debra Roberts, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Alan S. Zangen, Esquire 1601 Belvedere Road, Suite 112 West Palm Beach, Florida 33406 Joseph A. Sole, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 E. James Kearney Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
