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.
Findings Of Fact The Respondent, Bertram Gould, is president and stockholder of Mohican Valley, Inc., d/b/a Indian Woods Subdivision. The Indian Woods Subdivision is located in Seminole County and consists of in excess of 150 subdivided lots. On May 20, 1982, Mohican Valley, Inc. purchased a mobile home park located in Seminole County, Florida, from Winter Springs Mobile Home Corporation. The park was formerly known as Mohawk Village, but is now known as the Indian Woods Subdivision. Bertram Gould and Mohican Valley, Inc. acquired their interest in the subdivision by virtue of a purchase and sale agreement, deed and assignment of lease indentures from Winter Springs Mobile Home Corporation. Individuals desiring to live in the mobile home park purchase their mobile home and contemporaneously sign a 99-year lease on the lots upon which the mobile homes are to be placed. The mobile homes purchased by prospective residents in the subdivision are typically purchased from Vaughn Motors, Inc., a corporation of which Mr. Gould is president. In 1981, Vaughn Motors, Inc. sold a mobile home to Alfred and Beverly Powers, which arrived at the park and was setup on November 30, 1981, or shortly thereafter. On March 1, 1982, Vaughn Motors, Inc. sold that mobile home to Warren E. and Sylvia Joyce Krummel, since the Powers had elected not to close the purchase. On the date of the sale to the Krummels, the mobile home was already setup on Lot 1, Block E, of the subdivision and ready for occupancy. On June 14, 1982, after the May 20 purchase of the subdivision by Mohican Valley, Inc, through its president, Bertram Gould, the Krummels executed an Indenture of Lease for Lot 1, Block E. There was thus a residential building on that property subject to the lease at the time the lease was entered into. On June 5, 1982, Dorothy Merritt signed a purchase agreement to buy a mobile home and the mobile home was delivered and setup on her lot on August 6, 1982. On that date she also signed a lease for the lot where the mobile home was placed. Thus, when the interest in that property was conveyed by lease, there was a residential building on the lot. Roy and Lydia Ardizzone initially leased a lot in the park from Winter Springs Mobile Home Corporation before the sale to Mohican Valley, Inc. and Bertram Gould. In August, 1982, after Mohican Valley, Inc. purchased the subdivision, the Ardizzones decided to place a mobile home on their lot, but since the Phase II portion of the subdivision in which their original lot was located was not completely developed, it was not feasible to place the home on the lot at that time. Accordingly, they asked Mr. Gould to substitute their lot for a lot in Phase I in order to facilitate placing a home on the lot and begin living in the park. Mr. Gould agreed and the substitution occurred on August 31, 1982, on which date the Ardizzones also signed a lease for the lot. They ordered a mobile home to be placed on that lot, which arrived some 10 days later, on September 9, 1982. It was immediately setup on the Ardizzone's lot. Thus, at the time the lease of August 31, 1982, was executed by the Ardizzones and Bertram Gould, the Ardizzones had already ordered the mobile home for immediate delivery, which was delivered and setup some 10 days later. Thus, there was an obligation on the part of the Respondent to provide a mobile home to them in less than two years and indeed within days. On or about September 4, 1982, Bertram Gould caused a mobile home to be placed on Lot 3, Block B of the subdivision and had it prepared for occupancy. On November 5, 1982, George W. and Alice H. Woodward signed a purchase agreement for the mobile home and ultimately executed a lease for the lot upon which that mobile home sat on January 10, 1983. They moved into their home on or about February 17, 1983. Thus, at the time the lease was executed by the Woodwards and Respondent, a residential building was present on the property subject to the lease. Mohican Valley, Inc.'s predecessor in title, Winter Springs Mobile Home Corporation, had, during the course of its development of the mobile home park, entered into approximately 156 ground leases for mobile home lots. In conjunction with the acquisition of title to the park by Mohican Valley, Inc., Mohican Valley Inc. was assigned all rights of Winter Springs Mobile Home Corporation in those 156 leases which had already been recorded by Winter Springs Mobile Home Corporation prior to the acceptance of assignment by Mohican Valley, Inc. It was not established that Mohican Valley, Inc. or Bertram Gould had participated in any offer or disposition of the property which was the subject of those leases prior to Mohican Valley, Inc.'s acceptance of their assignment. Prior to May 20, 1982, the Respondent had no ownership interest in either the mobile home park or in Winter Springs Mobile Home Corporation, which owned and managed the Park. He was not an officer, director, employee, salesman or any type of agent for the owner of the mobile home subdivision prior to May 20, 1982. The only nexus between the Respondent and the mobile home park prior to May 20, 1982, was his position as president of Vaughn Motors, Inc. which had sold mobile homes to some of the residents of the park who had executed leases which ultimately became assigned to Mohican Valley, Inc. The Respondent caused certain advertisements to be placed in the Orlando Sentinel newspaper. Although an advertisement was placed April 25, 1982, the Respondent was not involved in the publishing of that advertisement. It appeared in the newspaper approximately a month prior to purchase of the park by Mr. Gould's company. On June 4 and 5, 1982; September 19, 1982; October 10, 1982; and January 29, 1983, the Respondent admittedly placed advertisements in the Orlando Sentinel representing amounts of monthly lot rent, terms of available bank financing, the office address, the phone number and hours of operation, as well as representing the fact that mobile homes could be purchased at the park for a listed price, including certain optional features, as well as the representation that the mobile home park then owned by Mohican Valley, Inc. offered quarter-acre lots and double-wide homes with certain amenities. The price for lot rent was represented as never increasing. Bank financing was advertised as available variously at 14 and a quarter percent interest and 13 and a half percent interest. The representations contained in those advertisements were true, however, at the time Mohican Valley, Inc. took title to the mobile home park, a foreclosure action and lis pendens had been filed on that property by Florida Land Company, the mortgagee on a mortgage executed by Winter Springs Mobile Home Corporation, Mohican Valley, Inc.'s predecessor in title. That foreclosure had been filed on or before March 21, 1983, as evidenced by the Motion to Intervene (in evidence as Petitioner's Exhibit 4), which was filed in that foreclosure proceeding by Mohican Valley, Inc. No representation was made in these advertisements concerning the fact that the property which was the subject of the mobile home lot leases offered by Respondent was the subject of a mortgage encumbrance which was then in foreclosure, which foreclosure predated those advertisements. Bertram Gould, as president of Mohican Valley, Inc., as the movant in that Motion to Intervene, and as the successor in title to the mortgagor-in-foreclosure, knew of the existence of the facts surrounding that foreclosure as they related to the interest in the land he sought to convey and the effects such a foreclosure might have on the persons or residents of the park who executed those leases as lessee thereafter. Bertram Gould thus materially participated in the offer or disposition of the lots for lease in the subdivision and advertised those dispositions or offerings without representing that the real property to which they related was the subject of a pending foreclosure action. No reservation program has been approved by Petitioner for Bertram Gould, Mohican Valley, Inc. and/or Indian Woods, nor has any application for such been filed. No public offering statement for Bertram Gould, Mohican Valley, Inc. or Indian Woods, nor any application for such has, as of the time of the hearing, been filed and approved. The Indian Woods Subdivision has not been registered with the Petitioner by either Bertram Gould or Mohican Valley, Inc. Bertram Gould has engaged in the disposition of these subdivided lands directly as well as on behalf of Mohican Valley, Inc., of which corporation he is president and stockholder. Bertram Gould has offered, disposed of or participated in the offer or disposition of interests in the subdivided lands involved herein, which are located in Florida, by offering the subject land for leases to prospective mobile home purchasers and park residents.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That Bertram Gould be found guilty of violations of Sections 498.023(1) and (2), and Section 498.049(4) and Sections 498.051(1)(a), (b), and (d); that a penalty of $2,000 be imposed and that the Respondent be ordered to cease and desist the above described activities until the requirements delineated above involving registration of the subject subdivision, approval and promulgation of a current offering statement have been accomplished. DONE and ENTERED this 31st day of January, 1984, in Tallahassee, Florida. P. MICHAEL RUFF 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 31st day of January, 1984. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Ladd H. Fassett, Esquire Post Office Box 2747 Orlando, Florida 32802 E. James Kearney, Director Division of Florida Land Sales and Condominiums Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact At all pertinent time Country Meadows Estates, Ltd. (Country Meadows), a Florida limited partnership, has been the park owner of Country Meadows Mobile Home Park (the Park) which is located in Plant City, Florida. Century Realty Funds, Inc. (Century), is the general partner of Country Meadows Estates, Ltd. Century has been in the business of operating adult and retiree mobile home parks for approximately seven years. It operates over 20 different parks. Country Meadows has been in existence for approximately five years. Approximately 510 lots have been offered for rent or lease in the Park. When the last phase of the Park is completed, approximately 750 lots will have been offered for rent or lease. Yearly rental increases at Country Meadows equate to the increase in the consumer price index, or a $5 minimum increase, whichever is greater. This rental agreement is guaranteed by Century for the lifetime of the mobile home owners as long as they reside in the Park. Charge Of Failure To Deliver Approved Prospectus. Century retained a law firm to provide assistance in securing approval of its proposed prospectus, lease agreement and park rules and regulations and paid the law firm a fee for its services. On November 27, 1984, Country Meadows filed with the Department of Business Regulation, Division of Land Sales, Condominiums and Mobile Homes (the Division), a prospectus for the Park. In order to be able to increase rent in January, 1985, as provided in existing lot leases, Country Meadows tried to get a copy of the filed prospectus to all existing lot lessees by the end of 1984. Starting December 31, 1984, Country Meadows began delivering a copy of this prospectus to each new lessee of lots in the Park. On January 7, 1985, the Division notified Country Meadows of deficiencies in the prospectus. Century, often through its supervisor of property management operations, and its legal counsel held numerous telephone conferences with the Division and numerous conferences among themselves regarding the notice of deficiencies. On February 25, 1985, Country Meadows sent the Division a revised prospectus addressing the deficiencies. Country Meadows substituted the revised prospectus as the prospectus delivered to new lessees of lots in the Park after February 25, 1985. On March 13, 1985, the Division sent Country Meadows another notice of deficiencies. The deficiencies found this time were in the original prospectus but were not noted in the first notice of deficiencies. On March 15, 1985, Country Meadows stopped delivering a prospectus to new lessees of lots in the Park after March 15, 1985. Country Meadows believed the law prohibited it from delivering an unapproved prospectus after that date but did not believe that it was prohibited from continuing to do business until a prospectus was approved. Rather, Country Meadows believed the law allowed it to continue to enter into new lot leases in the Park without an approved prospectus after March 15, 1985, but that it would have to deliver a prospectus when approved and give lessees the right to rescind their lot leases after review of the approved prospectus. On May 22, 1985, Country Meadows sent the Division a second revised prospectus. On November 6, 1985, Country Meadows sent the Division yet another revised prospectus that distinguished between increase in base rent on a lot and increase in other fees associated with rental of a lot. On November 21, 1985, the Division approved Country Meadows' last revised prospectus for the Park. Between March 16 and November 5, 1985, Country Meadows entered into 79 new Park lot rental agreements without delivering a prospectus to the lessee. Instead, the applicable filed but not yet approved prospectus was made available for inspection. Within 45 days after approval of the third revised prospectus on November 21, 1985, Country Meadows distributed an approved prospectus to all lessees, including those who entered into leases between March 16 and November 5, 1985. Century made a good faith effort to correct the deficiencies the Division cited in its proposed prospectuses. Charge Of Failure To File Advertising. In late summer or early fall, 1985, William and Nancy Hines responded to an advertisement in a magazine and asked for information. Century sent them documents. Some were not identified. One was entitled Greetings From Sunny Florida! (Petitioner's Exhibit 7). Century generally gives this document to persons who express an interest in Country Meadows, inviting them to pursue their interest and make a visit to the Park, free of charge. Later, Century sent a follow-up letter giving new information, further "selling" the benefits of Century parks, and finally asking the Hineses to indicate if they were still interested. (Petitioner's Exhibit 10). The Hineses arranged to make a visit to the park on November 15, 1985. At the Park, a County Meadows sales representative spoke with the Hineses and gave them a document entitled "Approximate Monthly Living Expenses At Country Meadows" (Petitioner's Exhibit 9). Country Meadows gives this document to persons who request information about Country Meadows. During the visit, the Hineses also were given a document entitled "Before You Purchase A Home: Questions And Answers You Should Know" (Petitioner's Exhibit 8). Country Meadows (and Century in general) usually sends this document to persons who express an interest in Country Meadows (or another Century park). It poses and answers general questions about mobile home parks and, in so doing, touts Century and its mobile home park developments. None of the documents (Petitioner's Exhibits 7, 8, 9 and 10) were filed with the Division. The Hineses entered into a lease agreement on November 15, 1985. In late winter or early spring of 1985, Elmer and Adele Johnson also saw an advertisement in a magazine and arranged to visit Country Meadows. At the visit, a Country Meadows sales representative gave the Johnsons a copy of a document entitled "Century: Mobile Home Communities, Affordable, Award-Winning, Adult Mobile Home Living-Now offering 11 outstanding Central Florida Mobile Home Communities for your inspection!" (Petitioner's Exhibit 11). It identified and listed information on each of the eleven parks, including Country Meadows. After the visit, Country Meadows sent the Johnsons a follow-up letter giving new information, further "selling" the benefits of Century parks and finally asking the Johnsons to indicate if they were still interested. (Petitioner's Exhibit 10). The letter is a standard letter (addressed "Dear Friend") used to re- contact prospective customers who have visited a Century park (as, for example, hundreds have visited Country Meadows). On March 15, 1985, the Johnsons returned to Country Meadows. They were given a copy of Petitioner's Exhibit 8 and entered into a lease agreement. None of these documents (Petitioner's Exhibits 8, 10 and 11) were filed with the Division. Petitioner's Exhibit 11 also was used and given to Myre Lutha Tillman, a prospective purchaser, in approximately July, 1985. From at least May 29, 1984, through October 6, 1986, a billboard sign advertising Country Meadows (a picture of which is Petitioner's Exhibit 4) was located on Frontage Road and could be seen from Interstate 4, approximately six miles east of Plant City. Century admits the billboard was advertising that was not filed with the Division. The billboard was removed some time after October 6, 1986, and no longer is in use. Country Meadows also placed newspaper advertisements of the Park in the Tampa Tribune on Sunday, February 2, and Sunday, February 26, 1986 (Petitioner's Exhibits 5 and 6, respectively). Century admits that this advertising was not filed with the Division. Some of the information Century gave prospective purchasers including Petitioner's Exhibits 7, 8, 9, 10 and 11-- was given only to persons who expressed an interest in a Century mobile home park or at least requested information. Century's supervisor of property management operations did not think this information was "public" and therefore not "advertising" under the mobile home park statutes. This partially explains why Century did not file this information with the Division. Charge Of False Or Misleading Advertising. Century admits that it used a pamphlet entitled "Country Meadows: The Golden Dream" (Petitioner's Exhibit 12), which it properly filed with the Division, as advertising distributed to the public. The pamphlet advertises "Exercise Facilities & Locker Rooms" and "Security with Access Gatehouse." The only locker rooms ever at Country Meadows were small package lockers located in the mailroom. The pamphlet, while technically not false, was misleading because it gives the impression of a locker room that would be used to change clothes in conjunction with the exercise room. There always has been "Security with Access Gatehouse" at Country Meadows. Initially, the gatehouse was placed at the entrance of the Park and was manned by paid residents of the Park. The gatehouse was manned during the day until early evening hours and on weekends (in part to direct visitors and guests to residents.) Later, approximately in early 1986, the gatehouse was moved back from the entrance and was equipped with automatic security gate arms. The residents were given an access code which, when punched in at the gatehouse, would automatically open the gate arm on either entering or leaving the Park. Country Meadows no longer hired residents to man the gatehouse but hired a full- time security guard who roves Country Meadows and an adjacent Century park that now has approximately 100 home sites leased. The security guard's hours of employment include the early morning and the evening hours. Sometime after installation of the new gatehouse (no witness could say when), lightning struck the gate and blew out the computer that controls the gate arm. The computer was fixed and was operative for a while without access codes. It was anticipated that the access code mechanism would be operative and new access codes would be given to the residents by the end of August, 1987. Again, no witness could testify to more precise time frames in which these events took place. Century also admits that it used another pamphlet or brochure, similar to Petitioner's Exhibit 12 but not filed with the Division, for advertising to the general public. This other pamphlet or brochure was entitled "The Golden Dream: Country Meadows" (Petitioner's Exhibits 13). It was given to Gerald Gott, among others, at a seminar in Merrillville, Indiana, sometime between October 10 and December 20, 1985. Like Petitioner's Exhibit 12, Petitioner's Exhibit 13 includes a color-coded map of Country Meadows showing: (1) "Home Sites Sold"; (2) "Home Sites Available"; and (3) "Final Phase, Future Home Site." In other colors, the map shows one clubhouse and one pool located between the first two color-coded areas (and bordered on the third side by golf course), and a second clubhouse and second pool nestled inside the third color- coded area (the "Final Phase"). Neither of the two pamphlets (or brochures) use the word "proposed" to describe the second clubhouse or second pool. The "Final Phase" of Country Meadows now is underway, and it will include a clubhouse and pool. The clubhouse will be a closed pavilion with a patio. The billboard advertising Century used for at least from May 29, 1984, through October 6, 1986, (Petitioner's Exhibit 4) stated: "Price [$29,900] Includes: Golf-Lakes-Pool- Clubhouse." However, Country Meadows actually was selling homes (and leasing lots) in the Park without golf included in that price. (Golf is optional for purchasers who pay an additional golf membership fee.) When prospective purchasers made an issue of the billboard advertising, Country Meadows on at least one occasion made an accommodation, including in the purchase price two years of free golf on the "gold card program" and charging $240 per year for golf privileges after that. The Tampa Tribune newspaper advertising (Petitioner's Exhibits 5 and 6) included the statement: "Free *Golf For 5 Years [under certain conditions]." The asterisk was intended to refer the reader to an asterisk near the bottom of the ad that said: "*No Free Golf On $32,900 Homes." Mitigation. Century has made reasonably diligent efforts in many respects both to cooperate with the Division to achieve compliance with the statutes and rules and to address and resolve the complaints and desires of residents of the Park.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Petitioner, Department of Business Regulation, Division of Land Sales, Condominiums and Mobile Homes, enter a final order: Dismissing the first and fourth charges alleged in the Notice To Show Cause; Holding the Respondent, Century Realty Funds, Inc., d/b/a Country Meadows Estates, Ltd., guilty of the violations alleged in the second and third charges in the Notice To Show Cause; Ordering the Respondent to cease and desist from the use of unfiled and false or misleading advertising; and Ordering the Respondent to pay to the Petitioner a total civil penalty in the amount of $5000 for the violations for failure to file advertising and false or misleading advertising. RECOMMENDED this day of September, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 4th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0165 Explicit rulings on the parties' proposed findings of fact are made to comply with Section 120.59(2), Florida Statutes (1985): Petitioner's Proposed Findings Of Fact: 1.-4. Accepted and incorporated. 5.-6. Subordinate and unnecessary. 7.-26. Accepted and incorporated to the extent necessary and not subordinate. Accepted and incorporated. Rejected as not within the charges in the Notice To Show Cause. 29.-30. Rejected as contrary to facts found. Subordinate to facts found. Accepted and incorporated. Rejected as irrelevant and not within the charges in the Notice To Show Cause. Accepted and incorporated. Subordinate to facts contrary to those found. 36.-38. Subordinate to facts found. 39.-41. Accepted and incorporated. 42.-44. Subordinate to facts found. 45.-47. Accepted and incorporated to the extent necessary and not subordinate. 48.-53. Accepted and incorporated. Rejected as contrary to facts found. There are lockers in the mailroom, but the advertising is misleading. Subordinate to facts found. Subordinate. Respondent's Proposed Findings Of Fact: 1-8 Accepted and incorporated. Unnecessary. Except that the reasonableness of the fee was not the subject of any evidence, accepted and incorporated. 11.-12. Accepted and incorporated. 13. Unnecessary. 14.-18. Accepted and incorporated. 19. Rejected as not proven if, when or why a third revision was demanded. The evidence proves only that the third revision provides some information the Division had requested. 20.-21. Accepted and incorporated. Rejected as contrary to fact found. (It was not simply a matter of Century waiting for the Division to approve a filed prospectus.) Accepted and incorporated. 24.-31. Irrelevant and unnecessary. (As to 29. to 31., the issues were not the same as in this case.) 32.-35. Subordinate to facts found (except it was not proven that every reasonable effort was made.) 36.-40. Accepted and incorporated except, as to 38, "financial security" was not an issue in the Notice To Show Cause and is irrelevant.) 41. Accepted and incorporated (but the lockers were in the mailroom, and the advertisement of them is misleading.) 42.-43. Accepted and incorporated. Irrelevant and unnecessary. Subordinate to facts found. Rejected as contrary to facts found. Irrelevant and unnecessary. Accepted and incorporated. See 47, above. Rejected as contrary to facts found. (Petitioner's Exhibit 12 was.) Accepted and incorporated. Accepted and incorporated (although the first notice of deficiency, while incomplete, was timely.) Rejected as not proven precisely what Century's decision, i.e., the understanding of its supervisor of property management operations, was based on. 54.-59. Accepted and incorporated. Unnecessary. Accepted and incorporated. Rejected as conclusion of law. 63.-64. Accepted and incorporated except to the extent conclusion of law. 65. Rejected as not proven. COPIES FURNISHED: Debra Roberts, Esquire Paul Thomas Presnell, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1927 Ronald L. Clark, Esquire Michael A. Tewell, Esquire MURPHY & CLARK, P.A. Post Office Box 5955 Lakeland, Florida 33807-5955 Richard Coats, Director Division of Florida Land Sales, Condominiums and Mobile Homes The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1927 James Kearney, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1927 Thomas A. Bell, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1927
The Issue Whether Respondents Alfred Homes and Felicia Homes Foster1 subjected Petitioner Nidia Cruz to discriminatory housing practices based on Ms. Cruz’s national origin, in violation of the Florida Fair Housing Act, chapter 760, part II, Florida Statutes (FHA).
Findings Of Fact Ms. Cruz, who is Hispanic in national origin, rented and occupied a mobile home at lot #9 in Pine Grove Trailer Park (Pine Grove), in an unincorporated area adjacent to Fernandina Beach, Florida. Respondent Alfred Homes owns Pine Grove. His daughter, Respondent Felicia Homes Foster, oversees the business operations of Pine Grove. Ms. Foster lives in a mobile home at Pine Grove, and owns two other mobile homes that are rental units. Ms. Cruz rented one of these mobile homes from Ms. Foster. The remaining mobile homes in Pine Grove are owner-occupied, with those owners renting their lots from Respondents. Neither party could produce a lease between Respondents and Petitioner concerning the mobile home. Based on the parties’ testimony and other evidence presented at the final hearing, the undersigned finds that Petitioner’s tenancy for the mobile home commenced on or about October 15, 2016, for an approximately one-year term ending November 30, 2017. Respondents charged a $500 security deposit, and $600 per month for rent, which included water and sanitary sewer that Pine Grove’s well and septic system provided. Ms. Cruz was responsible for electrical services to the mobile home. After the expiration of the lease on November 30, 2017, the parties did not renew the lease, and Ms. Cruz continued to occupy the mobile home under a month-to-month agreement, until she vacated the mobile home on or about September 29, 2018. Ms. Cruz sought out Respondents to rent a mobile home, as her previous landlord had terminated the lease for her previous residence because of her unauthorized possession of pets. Ms. Foster informed Ms. Cruz that she had an available mobile home to rent, but as the previous tenants had just moved out, she needed to make repairs to the mobile home before it could be occupied. Ms. Cruz requested to move in immediately while the Respondents repaired the mobile home, because she and her daughter were, at that point, homeless. Respondents employed Michael Hamilton to repair and provide maintenance work to the mobile homes in Pine Grove. Mr. Hamilton worked for Respondents on weekends, as he had a full-time job during the week. Within approximately one month of Ms. Cruz moving into her mobile home, Mr. Hamilton made the needed repairs to its interior, including replacing the refrigerator, carpet, commode, and door locks. After moving into the mobile home, Ms. Cruz was involved in an incident at a nearby McDonald’s restaurant with an employee. That employee, Theresa McKenzie, was a tenant of Pine Grove and resided in lot #10, which was adjacent to Ms. Cruz’s mobile home. Ms. Cruz and her daughter, Ms. Burgos, complained to Ms. Foster that Ms. McKenzie and her co-tenant Earnest Roberts made loud, harassing, and defamatory statements about Ms. Cruz and her national origin. Respondents, individually, warned Ms. McKenzie and Mr. Roberts to refrain from calling Ms. Cruz and Ms. Burgos names. The feud between Ms. Cruz and Ms. McKenzie was interrupted when Ms. Cruz was arrested on November 18, 2016. Ms. Cruz was charged with, among other offenses, aggravated stalking arising from a violation of an order of protection and filing a false police report. The victim of these offenses was a previous landlord from whom Ms. Cruz had rented a room. While in pretrial detention, a psychologist evaluated Ms. Cruz, and determined her to be incompetent to proceed in the criminal proceeding. The trial court subsequently committed Ms. Cruz to a mental health facility, and she pled guilty to filing a false police report. The trial court sentenced Ms. Cruz to a split sentence of two years with special conditions, which included enrollment into the mental health court program. After acceptance into the mental health court program, Ms. Cruz was released from the Nassau County Jail. On February 13, 2017, Ms. Foster hand delivered a letter to Ms. McKenzie and Mr. Roberts, which warned them that if they did not refrain from verbal attacks against Ms. Cruz, Respondents would evict them from Pine Grove and obtain a no trespassing order. Chris Cummings, who was a Pine Grove resident at lot #4, testified he was aware of the incident at McDonald’s involving Ms. Cruz and Ms. McKenzie, as his wife also worked at that McDonald’s. Mr. Cummings observed, but could not hear, Ms. Cruz and Ms. McKenzie “squaring off” against each other. Mr. Cummings recounted that he observed Ms. Cruz lift her skirt and bend over, in a manner that he interpreted to mean that Ms. McKenize could kiss her rear end. In August 2017, Hurricane Irma caused a large branch from a pine tree to fall on top of Ms. Cruz’s mobile home, puncturing the exterior metal skin of the mobile home’s roof, which allowed water to intrude into the interior of the mobile home. The water intrusion caused significant damage to the ceilings, walls, and floor coverings of the mobile home. It is undisputed that Hurricane Irma inflicted serious damage to the mobile home, and that Ms. Cruz resorted to using buckets to catch water leaking from the roof. Shortly after Hurricane Irma passed, Mr. Hamilton placed a tarp over the top of the mobile home to stop the water intrusion. He then began repairs to Ms. Cruz’s mobile home over the course of several weekends, which included removing and replacing damaged sheet rock, patching the metal roof, and installing new carpet and linoleum flooring. Mr. Hamilton testified that Ms. Cruz, on several occasions, frustrated his ability to complete these repairs by denying him entry into the mobile home. Ms. Cruz presented evidence that her mobile home required extensive repairs upon moving in, and that it sustained severe damage from Hurricane Irma. However, she presented no credible evidence to rebut the testimony that Mr. Hamilton, on behalf of Respondents, completed all necessary repairs. Additionally, Ms. Cruz presented no credible evidence that Respondents treated her differently than other Pine Grove tenants in responding to and completing any necessary repairs to other tenant’s mobile homes. Neither the passage of time, incarceration, nor the trauma of Hurricane Irma, ended the feud between Ms. Cruz and Ms. McKenzie. The Nassau County Sheriff’s Office had regular call-outs to Pine Grove regarding Ms. Cruz and Ms. McKenzie. The feud escalated when, on January 4, 2018, Ms. McKenzie filed a petition for an injunction for protection against Ms. Cruz, and the circuit court entered a temporary injunction that same day. The next day, January 5, 2018, Ms. Cruz and Ms. Burgos each filed petitions for an injunction for protection against Ms. McKenzie. Then, on January 16, 2018, Ms. Cruz sought a petition for an injunction for protection against Mr. Roberts, which the circuit court granted, as a temporary injunction, that same day. On January 17, 2018, the circuit court held a hearing on the petition against Ms. Cruz and Ms. Burgos’s petition against Ms. McKenzie, and on January 18, 2018, granted a final injunction in each case. On January 18, 2018, Ms. Burgos filed a petition for an injunction for protection against Mr. Roberts, which the circuit court denied. On January 24, 2018, the circuit court heard Ms. Cruz’s petitions against Ms. McKenzie and Mr. Roberts; the circuit court denied the injunction against Ms. McKenzie, but granted a final injunction against Mr. Roberts. On January 29 and February 9, 2018, the circuit court entered orders to show cause in Ms. Burgos’s injunction against Ms. McKenzie, and after hearing argument, dismissed them on February 15, 2018. Despite these multiple injunction proceedings, Ms. Cruz and Ms. McKenzie continued their feud. On January 22, 2018, Ms. Cruz was arrested for violation of the protection order in favor of Ms. McKenzie. Ms. Cruz’s arrest triggered a violation of her felony probation. While in pretrial detention, she was again evaluated by a psychologist, who determined her to be incompetent to proceed. The circuit court committed Ms. Cruz to a mental health facility. She subsequently returned to court and pled guilty to a violation of probation. The circuit court sentenced Ms. Cruz to a split sentence of time served, reinstated probation, and extended probation with an added special condition for 12 months. Ms. Cruz was released from the Nassau County Jail on July 27, 2018. On July 31, 2018, Ms. Foster hand delivered a notice to terminate the lease, stating that the lease will end on August 31, 2018, and that Ms. Cruz should vacate the mobile home no later than September 1, 2018. Ms. Cruz and Ms. Burgos continued to hold over in the mobile home until they moved out on September 29, 2018. Ms. Cruz failed to provide any credible evidence that Respondents, or Mr. Hamilton, made any disparaging statements to Ms. Cruz regarding her national origin. Ms. Cruz failed to provide any credible evidence that Respondents treated her less favorably than other tenants with regard to her feud with Ms. McKenzie. Put differently, Ms. Cruz failed to provide any credible evidence that Respondents treated any other tenant disputes differently than the way they treated the dispute between Ms. Cruz and Ms. McKenzie. Ms. Foster attempted to intervene on behalf of Ms. Cruz to end the feud, when she hand-delivered the letter to Ms. McKenzie on February 13, 2017, that threatened eviction. The credible evidence presented demonstrated that Ms. Cruz often created or exacerbated this feud, which ultimately led to her incarceration. Ms. Cruz failed to provide any credible evidence that Respondents’ decision to end the month-to-month holdover of the lease of the mobile home was based on her national origin, or that Respondents treated Ms. Cruz differently than any other tenants who resided at Pine Grove in ending the month-to-month holdover of a lease.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Nidia Cruz’s Petition for Relief. DONE AND ENTERED this 1st day of July, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 1st day of July, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Nidia Cruz Post Office Box 1923 Callahan, Florida 32011 (eServed) James Pratt O'Conner, Esquire James Pratt O'Conner, P.A. Post Office Box 471 Fernandina Beach, Florida 32035 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
Findings Of Fact Michael Weiss is part owner of Suncoast International, Inc. and general manager of the corporation's only business, a trailer park in Flagler County known as Flagler by the Sea Mobile Home Park. At all pertinent times, the park has leased or offered for lease a total of 44 mobile home lots. In mid-1985, Mr. Weiss received a letter from petitioner Department of Business Regulation (DBR) informing him that park owners were required by law to prepare and distribute prospectuses to mobile home tenants. Efforts to draft a prospectus meeting petitioner's approval began in August of 1985. After several revisions, the petitioner approved a prospectus on June 13, 1986, No. 1802171P, for all lots. Mr. Weiss received written notice of approval, together with a copy of the prospectus to which it pertained, with attachments, on June 26, 1986; and promptly arranged for a copier to produce 50 uncollated copies of everything received from the petitioner, see Petitioner's Exhibit No. 1, including the cover letter. With the assistance of Mr. and Mrs. Whaley, who worked for the company at the park, he tried to assemble at least 44 complete sets of these materials. In late May of 1986, Mr. Weiss had given all tenants notice by registered mail of his intention to raise rents, effective September 1, 1986. Realizing he needed to distribute prospectuses before any rent increase, he had simultaneously informed tenants that a then current (but unapproved) version of the prospectus was available for inspection. Respondent's Exhibit No. 5. Hand Delivery As instructed, Ms. Whaley encouraged tenants to pick copies of the prospectus up when they paid their rent. She kept a list of persons to whom she distributed copies of the prospectus. Part of the list survived and has been received in evidence. Respondent's Exhibit No. 2. One tenant, Mary Oetken, received a copy of the approved prospectus on July 29, 1986. But the prospectus given to Ms. Oetken did not contain rules and regulations, a copy of the lot rental agreement, a lot layout plan, or the number of her lot. Ms. Oetken already had a copy of her lot rental agreement, and park personnel customarily distributed copies of rules and regulations to each tenant, before tenancies began. On August 29, 1986, another tenant, Betty Marinoff, wife of Peter, received a copy of an approved prospectus. Before September 1, 1986, Ms. Whaley hailed Mr. Philip H. Bird, and handed him a copy. Whether these copies of the approved pro-spectus included all attachments the evidence did not disclose. Robert Onusko, who has leased a lot in Flagler by the Sea Mobile Home Park continuously since August of 1981, has had a copy of the park's rules and regulations since he moved in. As did all other tenants, he paid increased rent beginning September 1, 1986. Although Mr. Onusko himself received no copy of an approved prospectus until January of 1989, Petitioner's Exhibit No. 7, Angela Whaley gave his daughter Marilyn a copy of the prospectus when Marilyn paid rent in July or August. Taped to Doors Not all tenants were then in residence at the park. About half lived there full time. (T.127) With respect to lots whose lessees were away, Mr. Weiss directed Mr. and Mrs. Whaley to tape copies of the prospectus on trailer doors. "That was common procedure with late payments or whatever . . . " T.112. In mid-August of 1986, Ms. Whaley told him that prospectuses had been distributed for each lot, either by delivery to a tenant or by posting. Clarence Rainey leased a lot from 1977 to 1989 at Flagler by the Sea Mobile Home Park, where he lived part of the year, returning to Illinois in the summer. Told by a neighbor that they were available, he asked for and received a prospectus in November of 1986. He had not received one earlier. With her husband Roger, Madeline DuJardin resided at Flagler by the Sea from February of 1979 until February of 1988. She did not get a copy of the approved prospectus before the rent increased on September 1, 1986, from $125.00 to $150.00 per month. Neither Mr. and Mrs. Rainey nor Mr. and Mrs. DuJardin received copies when they were originally distributed. Their trailers were among those to which copies were taped, weeks or months before their return in cooler weather. Charles A. Bond, who shared a trailer with a half-brother, resided at Flagler by the Sea from November 21, 1985, until December 31, 1988. While he lived at the park he never received a prospectus. Brothers surnamed Karcher each leased lots from respondent. Ms. Whaley gave one Mr. Karcher a copy of the approved prospectus, before September 1, 1986. But Richard Karcher, who in those days only spent a week at a time in the park, at intervals of several months, did not receive a copy of the approved prospectus before the rent increased. Richard Karcher had obtained a preliminary draft of the prospectus, but it differed in important respects from the draft which was eventually approved. In June of 1988, he obtained another copy of the prospectus, the copy, he testified, which he gave DBR's investigator, which also differs in important respects from the approved version. Attached to the copy Mr. Karcher gave DBR's investigator was a set of the park rules and regulations. It is not clear whether Ms. Whaley told Mr. Weiss that she had taped an approved copy to Mr. Richard Karcher's door. (T. 126, 128) Change of Law Effective July 1, 1986, statutory changes altered prospectus requirements. Petitioner mailed advice concerning the new requirements when it sent out annual fee statements to mobile park owners. Mr. Weiss did not personally receive this advice nor any written notice of the nine workshops petitioner conducted in August of 1986 to acquaint park owners with the statutory changes. Although approved a few days earlier, respondent's prospectus did not conform to all the new requirements. In early 1988, Mr. Weiss heard from Gloria Thompson, a DBR employee in its Tampa office, in connection with a complaint filed by Charles Jagde, the same person whose complaint led to the investigation that gave rise to the present proceedings. Ms. Thompson found no violation on the original complaint. Respondent's Exhibit No. 6. Eventually Mr. Weiss learned that revisions to prospectus No. 1802171 were necessary. On November 18, 1988, he filed another proposed prospectus with petitioner. After its approval on January 30, 1989, park personnel distributed the revised, approved prospectus, No. 1802171P86, to the tenants.
Recommendation It is, accordingly, RECOMMENDED: That DBR enter an order requiring respondent to send complete copies of currently approved prospectuses by registered mail to all tenants who have not received such copies personally and signed receipts so stating. DONE and ENTERED this 30th day of July, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1 through 6, 9, 11 through 14 and 16 through 19 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 7, the evidence did not establish the contents of the copy of the prospectus the Miranoffs received. With respect to petitioner's proposed finding of fact No. 8, Mr. Onusko's adult daughter Marilyn received a copy of the prospectus before the rent increased. Petitioner's proposed finding of fact No. 10 pertains to subordinate matters only. With respect to petitioner's proposed finding of fact No. 15, Mr. Karcher so testified, without contradiction. Respondent's proposed findings of fact Nos. 1 through 5, 7 through 10, 12 through 19, 21, 22, 24, and 27 through 30 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 6, the prospectus had not been approved at that time. With respect to respondent's proposed finding of fact No. 11, she did not personally deliver prospectuses to all tenants. With respect to respondent's proposed finding of fact No. 20, the differences were material. Respondent's proposed findings of fact Nos. 23, 25 and 26 are immaterial. COPIES FURNISHED: Donna H. Stinson, Esquire Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A. The Perkins House, Suite 100 118 North Gadsden Street Tallahassee, FL 32301 Debra Roberts, Esquire Department of Environmental Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Paul Martz, Esquire Martz & Zimmerman 3 Palm Row St. Augustine, FL 32084 Stephen R. MacNamara Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 =================================================================
The Issue Did Respondent violate Section 723.037(1), Florida Statutes, by failing to give timely written notice of rent increase on mobile home lots, and, if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Respondent owned the Arcadia Peace River Campground (Campground) located in DeSoto County, Florida, whose mailing address is 2988 Northwest Highway 70, Arcadia, Florida 34266. From October 3, 1996 through March 21, 1998, the Campground had 14 or more of its mobile home lots occupied by mobile homes. From October 3, 1996 through March 21, 1998, seven or more of the mobile homes located in the Campground were owned by residents of the Campground other than Respondent. Furthermore, these mobile homes were placed on lots leased by the mobile home residents from the Campground. From October 3, 1996 through March 21, 1998, four or more of the mobile homes located in the Campground were owned by Respondent's employees and placed on lots in the Campground. The rental for these lots was considered as part of the employees' compensation. On January 1, 1997, Respondent implemented and began collecting a $30.00 increase in the monthly lot rental from those mobile home owners leasing spaces in the Campground. Respondent gave the affected mobile home owners written notice of the January 1, 1997, monthly lot rental increase on November 26, 1996, some 36 days prior to the effective date (January 1, 1997) of the increase. No other notice of the lot rental increase was given to the affected mobile home owners. Respondent collected the $30.00 lot rental increase from the affected mobile home owners during the period from January 1, 1997, through March 21, 1998. On January 1, 1998, Respondent implemented and began collecting a $15.00 increase in the monthly lot rental from those mobile home owners leasing spaces in the Campground. Respondent gave the affected mobile home owners written notice of the January 1, 1998, monthly lot rental increase on October 28, 1997, some 65 days prior to the effective date of the increase. Respondent collected the $15.00 monthly lot rental increase from January 1, 1998, through March 21, 1998. Each of the following affected mobile home owners paid both the $30.00 monthly lot rental increase from January 1, 1997, through March 21, 1998 and the $15.00 monthly lot rental increase from January 1, 1998, through March 21, 1998: Charles Collins; Arthur P. McRae; Harold Martin; Maurice W. Jackson; Robert F. Martin; Irene K. Apps and; Reba Conner. On March 21, 1998, the Peace River flooded the Campground. The mobile homes located in the Campground were damaged. Subsequently, the mobile homes were removed from the Campground, purchased by Respondent, or were purchased by one or more new employees of Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and having specifically reviewed the factors set out in Section 723.006(5)(c), Florida Statutes, it is recommended that the Division enter a final order assessing Respondent with an administrative fine of $500.00. It is further recommended that Respondent be ordered to refund to Charles Collins, Arthur P. McRae, Harold Martin, Maurice W. Jackson, Robert F. Martin, Irene K. Apps, and Reba Conner all sums collected from these individuals as increases in lot rental during the period of January 1, 1997 through March 21, 1998. DONE AND ENTERED this 16th of June, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1999. COPIES FURNISHED: Philip Nowick, Director Division of Florida Land Sales, Condominiums, and Mobile Homes Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Eric H. Miller, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 George Lempenau, Qualified Representative 2998 Northwest Highway 70 Arcadia, Florida 34266
Findings Of Fact Pleasant Living Mobile Home Park (Pleasant Living) is an established park with 245 lots in Riverview, Florida. It has been in existence for a number of years, and has had at least three different owners, according to the records and testimony presented at hearing. One witness who testified at hearing recalls moving into the park between 1974 and 1975. Since at least 1981, Pleasant Living has had written leases with each of its tenants. For purposes of this proceeding there are two different paragraphs in the lease that are important: (1) Paragraph 5 which limits annual rent adjustments to fifteen percent of the existing rental amount. (2) Paragraph 6 which requires the tenant to pay as additional rent its proportionate share of any increases in real estate taxes, utility assessments, or any other governmental costs or taxes if such taxes or costs increase during the term of this lease. In 1981, published park rules and regulations made it clear to park residents that lot rent includes water, sewer and trash collections. On June 4, 1984, Chapter 723, Florida Statutes, which is also known as "The Florida Mobile Home Act", was enacted. The Division is the state agency charged with the responsibility to enforce the statutes involving landlord/tenant relationships in mobile home parks in which homes are owned by the tenants and are affixed to lots owned by the landlord. Pleasant Living is a park which falls in the category of parks regulated by these statutes. Once Chapter 723, Florida Statutes, became law, park owners were required to file a prospectus or offering circular with the Division prior to entering into an enforceable rental agreement with tenants. The Division was to review the prospectus and decide if it meets the requirements of the act. If the prospectus did not meet the requirements, the park owner was to be notified of the deficiencies. Prospectus number 2900243P was prepared by the owner of Pleasant Living in order to comply with the act. It was filed with the Division in November 1984. As part of the prospectus review process, the park owner was required to complete a Park Owner Filing Statement. The owner notified the Division that two hundred and twenty-two mobile home lots would receive the prospectus being filed. The lot designations and the names of the two hundred and twenty-two tenants in the park on December 18, 1984, were given to the Division. In a separate listing, the names and lot designations of the two hundred and eight tenants residing in the park on June 4, 1984, were also provided. Copies of the two different rental agreements to be offered with the prospectus were also filed. One was going to be used for resales, the other would be used for new sales. The lease that applies to resales is the same lease used since 1981. The lease that applies to new sales contains the same wording as the other lease concerning the payment of additional rent for proportionate shares of any increases in real estate taxes, utility assessments, or any other governmental costs or taxes during the term of this lease. Again, this tenant obligation was found in paragraph 6 of the new agreement. Paragraph 5 provided that rent increases would not exceed an average of ten percent annually. The prospectus filed by Pleasant Living went through the review process within the Division, and after some revision, it was determined that the document met the requirements of Chapter 723, Florida Statutes. The prospectus was officially approved on April 26, 1986. The approved prospectus advised tenants that they would receive at least ninety days notice in advance of an increase in rent. Only the new rental agreement originally designated as the one that applies to new sales was referenced in the prospectus. It was emphasized that all lots are governed by this rental agreement, which provides for rental increases not to exceed an average of ten percent annually. The payment of pass through charges by the tenant was also mentioned in the approved prospectus. Tenants were referred to the rental agreement, and were informed that the tenant will be responsible for payment of all costs charged to the park owner as a result of any action by state and local government, or public/private utilities. Tenants were further advised, as follows: The charges may be assessed more often than annually. The costs charged to the Park Owner will be assessed to the tenant on a pro rata basis. Any such increases shall be shared equally by the tenants of all leased lots in the mobile home park. The amount of an increase in pass-through charges shall be limited to the increased costs charged to the Park Owner and maintenance and administrative costs as permitted by Chapter 723, Florida Statutes. As to pass-through charges, the Park Owner cannot with any degree of accuracy disclose the potential financial obligation which the tenant will be responsible for paying. The rent may only be increased as is stated in the above Rental Agreement. The only other increased (sic) to rent will be per the increases that result from pass-through charges created by any governmental (sic) or utility as explained above. Tenancies under the 1981 lease form were still in effect, and the tenants could rely on the representations set forth in them. However, the landlord voluntarily waived his right to any maximum average annual rent increase that exceeded ten percent annually. Pursuant to these leases, which were obligations of contract that could not be impaired by the new laws, these leases were automatically renewed annually. Pursuant to the provisions of Chapter 723, Florida Statutes, the landlord informed all tenants that they would receive ninety days notice before any increases in rent occurred, as opposed to the thirty days set forth in the leases. This was a procedural change in the notice requirements that was governed by the new Florida Mobile Home Act. During the 1986 legislative session, amendments were made to the portions of Chapter 723, Florida Statutes, that set forth the information a prospectus or offering circular is required to contain. More stringent disclosure regarding services, user fees, and lot rental amounts charged by the park owner were required. To reconcile these changes with existing laws, the Legislature allowed previously approved prospectuses delivered to tenants on or before July 1, 1986, to remain valid if the park owner complied with all of the conditions set forth in the newly amended Section 723.011, Florida Statutes [1986 Supp.]. In order to comply with the new disclosure requirements in the laws relating to prospectuses for mobile home parks, the 1986 Pleasant Living park owner filed amendments to the original prospectus with the Division in August of 1986. The amended prospectus was given identification number 2900243P86, and was deemed adequate to meet the 1986 amendments to the statutes on September 26, 1986. When the proposed amendments to the prospectus were examined by the Division on August 28, 1986, the park manager was advised in writing that pursuant to Rule 7D-30.04, Florida Administrative Code, the approved amendments must be delivered to existing tenants prior to the renewal of their rental agreements. The two rental agreements used by the park remained the same after the amended prospectus became the park's disclosure document for tenants who came to the park on or after July 2, 1986. Respondent Wilder purchased Pleasant Living on June 11, 1987. Prior to the purchase, Respondent's predecessor in interest increased the rent to be paid in the 1987 rental year beginning August 1, 1987 by $7.00 per month for the upcoming one year term. Notice was given of the increase on April 24, 1987, to each affected mobile home owner. Notice was also given to the board of directors of the homeowner's association on April 29, 1987. These notices of rental increase complied with all of the procedural and time requirements imposed on the owner by Chapter 723, Florida Statutes. The notices specifically informed the recipients that Hillsborough County increased the ad valorem taxes for the park in the 1986 tax year, during the current term of each lease. The increase per unit was $76.22. Under the annual leases, the increase was payable at $6.35 per month for twelve months, effective August 1, 1987. The pass-through of the increased ad valorem taxes to tenants is authorized by Chapter 723, Florida Statutes, and was disclosed prior to occupancy to tenants who came to the park when the 1981 lease, the 1986 prospectus number 2900243P and the 1986 amended prospectus under number 2900243P86 were in effect. As all tenants who lived in the park prior to 1981 had the same written lease as the 1981 lease, according to the Park Owner Filing Statement completed in December 1984, the landlord had the right to charge additional rent based upon the tax increase. All leases specifically mention the ad valorem taxes, increases in governmental costs, as well as the three utilities: water, sewer and garbage. The notices sent in April 1987 by Respondent Wilder's predecessor in interest, also informed the recipients of the increases in the costs of the following utilities: rubbish pick-up, water charges, and sewer charges. The increase of the cost of rubbish pick-up during 1986 by $20.76 per unit charged by East Bay Sanitation was an increase in a utility charge which occurred during the current term of each lease. Under the leases, the increase was passed on to the mobile home owners. The charges were to be paid as additional rent or pass-through charges for one year at the rate of $.94 per month, effective August 1, 1987. The increase in the cost for water during 1986 by $18.36 per unit charged by Hillsborough County was an increase in a utility charge which occurred during the current term of the annual lease. Under the leases, the increase was passed on to the mobile home owners. The charges were to be paid as additional rent or pass-through charges for one year at the rate of $1.53 per month. The increase in the cost of sewer charges during 1986 by $9.48 per unit charged by Wilder corporation was an increase in a utility charge which occurred during the current term of the annual leases. Under the leases, the increase was passed on to the mobile home owners. The charges were to be paid as additional rent or pass-through charges for one year at the rate of $.79 per month. At the time of the purchase of the park, Respondent Wilder was aware that tenants had been given notice of the additional rent or pass-through charges which increased the payments to the park owner for the use of the lots during the 1987 rental year. The additional rent or pass-through charges were collected by Wilder for the one-year period, as stated in the notices. All of the above listed facts were contained in the agency's files prior to the issuance of the Notice to Show Cause.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended the Division enter a Final Order finding the Respondent not guilty of the alleged violations of Section 723.031(6), Florida Statutes, set forth in the Notice to Show Cause dated July 16, 1990. RECOMMENDED this 20th day of March, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1991. APPENDIX TO RECOMMENDED ORDER,CASE NO. 90-5933 Petitioner's Proposed Findings of Fact are addressed as follows: Accepted. See HO #17. Accepted. See Preliminary Statement. Accepted for purposes of this proceeding. See HO #9. Accepted. See HO #15. Accepted. 6. Accepted. See HO #17, #18, #20 - #23. Accepted. Accepted. 9.-21. Accepted. Accepted. See HO #24. Accepted. See HO #25. Rejected. Contrary to fact. The charges related only to increases in charges. Rejected. Irrelevant. Respondent's Proposed Findings of Fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. Accepted. See HO #9 and HO #15. Accepted. Accepted. Accepted. See HO #2 and HO #12. Accepted. See HO #11 - #12. COPIES FURNISHED: Kathryn E. Price, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 David S. Bernstein, Esquire Robbins, Gaynor & Bronstein, P.A. Post Office Box 14034 St. Petersburg, Florida 33733 E. James Kearney, Director Division of Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1000 General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue The issue is whether Respondent is guilty of a discriminatory housing practice based on physical handicap, in violation of the Fair Housing Act, Sections 760.20-760.37, Florida Statutes.
Findings Of Fact Respondent owns and operates McGregor Mobile Home Park in Fort Myers. His wife serves as the office manager. In February 1995, Petitioner met with Respondent and his wife to discuss leasing or purchasing a mobile home at the park. The following month, Petitioner leased a mobile home with an option to purchase. In March 1996, Petitioner purchased the mobile home. At all material times, Petitioner has rented from Respondent a mobile home lot at McGregor Mobile Home Park. Within two months of purchasing the mobile home, Petitioner filed a complaint with the U.S. Department of Housing and Urban Development. The complaint concerned Respondent’s attempt to charge her for an extra person residing in Petitioner’s mobile home. Respondent claimed that she required the person for physical assistance. In May 1996, Petitioner had a fence built around her mobile home lot. She did not obtain a building permit or the permission of Respondent, as was required under the rules of the park. Four to six weeks later, Petitioner had a deck built, again without a building permit or the permission of Respondent. At the time of the construction of the fence and deck, Petitioner had complained to local media about conditions at the park. A local television station broadcast a story about the park. The Lee County building department inspected the park and, on July 15, 1996, cited Respondent for a number of violations for, among other things, Petitioner’s fence and deck. Respondent’s wife immediately told Petitioner to remove these items. The disputes between Petitioner and Respondent seem to involve nothing more than disputes between a mobile home park operator and a park resident. Petitioner produced no credible evidence of discrimination against her on any basis. It does not appear that Respondent treated her any differently than he has treated other park residents. Petitioner also produced no credible evidence of discrimination against her on the basis of physical handicap. Approximately half of the park residents are handicapped. Also, the nature of Petitioner’s handicap is not well defined. At the hearing, she walked with a cane and limped noticeably. However, in the nearly three years that she has resided at the park, she has never used a wheelchair and very rarely used a cane.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 22nd day of December, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1997. COPIES FURNISHED: Linda Hurd 16 Circle Drive Fort Myers, Florida 33908 Terrence F. Lenick Terence F. Lenick, P.A. 12699 New Brittany Boulevard Fort Myers, Florida 33907 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether the Respondent's proposed rule 7D-31.002 is an invalid exercise of delegated legislative authority. The Petitioners and the Intervenor MLH Property Managers, Inc., contend that the rule is invalid. The Respondent and the Intervenor Federation Of Mobile Home Owners Of Florida contend the proposed rule is valid.
Findings Of Fact Facts stipulated to by the parties Petitioner, Florida Manufactured Housing Association, Inc. (FMHA), is a Florida nonprofit corporation whose address is 115 North Calhoun Street, Suite 5, Tallahassee, Florida 32301. The agency affected by this proceeding is the Respondent, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (DBR), whose address is The Johns Building, 725 South Bronough Street, Tallahassee, Florida 32399-1000. The DBR is charged with the implementation, enforcement and interpretation of Chapter 723, Florida Statutes, concerning mobile home park lot tenancies. The DBR also possesses statutory authority to impose civil penalties against a mobile home park owner for any violation of Chapter 723, Florida Statutes, a rule of the Department promulgated thereunder, or a properly promulgated park rule or regulation. This proceeding concerns the Respondent's proposed rule 7D-31.002, which was published in Vol. 16, No. 7 of the Florida Administrative Weekly (April 27, 1990). The FMHA is a Florida nonprofit corporation, which is organized and maintained for the benefit of the owners of approximately 1,000 mobile home parks containing a combined total of approximately 300,000 to 350,000 mobile home lots. The owners of the 1,000 mobile home parks comprise a substantial portion of the membership of the FMHA. One of the primary purposes of the FMHA is to act on behalf of its members before the various governmental entities of this state, including the Respondent, Florida Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes. FMHA member mobile home parks are subject to the provisions of Chapter 723, Florida Statutes, and the rules of the DBR contained in Rules 7D-30 through 7D-32, Florida Administrative Code. FMHA member mobile home parks are required to register with the DBR, to pay annual fees to the DBR, to file prospectuses and pay filing fees for the same to the DBR, to submit advertising to the DBR for approval, and are otherwise subject to the regulatory authority of the DBR with respect to the operation and management of their mobile home parks. Additionally, FMHA member mobile home parks are subject to the DBR's enforcement authority, which includes the power to fine or impose other civil penalties for failure to comply with the above-referenced rules and statutes. Each of the owners of the FMHA member mobile home is engaged in the business of leasing individual mobile home lots to mobile home owners. The mobile home owners lease mobile home lots for the purpose of installing on the lots a mobile home owned by the tenant. The Federation of Mobile Home Owners of Florida (FMO) is a Florida nonprofit corporation whose membership is comprised of over 100,000 mobile home owners residing in Florida. The normal activities of the FMO include, among other things, representing the interests of Florida's mobile home owners before Florida administrative agencies, including DBR and the Division of Administrative Hearings, in rulemaking proceedings and otherwise. Thousands of FMO members reside in mobile home parks which are governed by Chapter 723, Florida Statutes, and the rules adopted thereunder by DBR. Thousands of FMO members were tenants of those parks on June 4, 1984, and thousands more have become tenants by purchasing a home located in those parks from a former mobile home owner who was a tenant of those parks on June 4, 1984. MLH Property Managers, Inc. (MLH), a Delaware corporation, is the managing general partner of MLH Income Realty Partnership V, a New York limited partnership. MLH Income Realty Partnership V is the owner of eight mobile home parks in the State of Florida, each of which contain 26 or more mobile home lots which are offered for lease or rent for the placing thereon of mobile homes to be used as residences. NIH has entered into rental agreements with the majority of residents in each of the parks which have a one-year term, with the intent of NIH that the terms and conditions of tenancy be established on a yearly basis. The NIH parks contain lots which were leased to their present mobile home owner tenants (or their predecessor mobile home owners) prior to June 4, 1984. The full text of the proposed rule which is the subject of this proceeding is as follows: 7D-31.002 Tenancy. (a) A tenancy under chapter 723, Florida Statues, begins when the mobile home park owner and mobile home owner enter into an initial rental agreement as defined in section 723.003(4), Florida Statues, or when the mobile home owner assumes occupancy in the park, whichever occurs first. (b) Once a tenancy begins in accordance with paragraph (1)(a) of this rule, it is continuous and cannot be terminated by the mobile home park owner except pursuant to section 723.061, Florida Statutes. (a) The enactment of chapter 723, Florida Statutes, did not terminate the tenancy of a mobile home park owner which was in existence on June 4, 1984, the effective date of the chapter. Furthermore, chapter 723, Florida Statutes, does not allow or authorize the mobile home park owner to terminate a tenancy in existence on June 4, 1984, the effective date of the chapter, in any manner other than pursuant to section 723.061, Florida Statutes. (b) A tenancy in existence on June 4, 1984, the effective date of chapter 723, Florida Statutes, shall be deemed a tenancy under chapter 723 if, prior to June 4, 1984, the mobile home owner either entered into a rental agreement with the mobile home park owner, or the mobile home owner assumed occupancy in the mobile home park. The rest of the facts The Respondent has previously attempted to adopt a similar rule. In Volume 14, Number 7, of the Florida Administrative Weekly of February 19, 1988, the Respondent published a proposed rule 7D-31.002. The rule proposed in February of 1988 read as follows: 7D-31.002 Fee, Charges and Assessments. For tenancies in existence before June 4, 1984, including any assumptions of those tenancies pursuant to Section 723.059, Florida Statutes, the mobile home owner is not obligated to pay any fees, charges or assessments which were not disclosed fully in writing prior to occupancy, any provision to the contrary in a prospectus notwithstanding, unless the park owner can establish that the fees, charges or assessments have been collected as a matter of custom as defined in subsection (4) of this rule. Furthermore, the mobile home owner is not obligated to install any permanent improvements at all, including those mandated by governmental entities or utility companies. For tenancies created on or after June 4, 1984, pass through charges, as defined in Section 723.003(9), Florida Statutes, may be imposed by the mobile home park owner if the mobile home owner's obligation to pay such charges was disclosed in general terms pursuant to Sections 723.011 and 723.012, Florida Statutes, or pursuant to Section 723.013, Florida Statutes, even though the charge being imposed was not disclosed specifically, and the imposition of such pass through charges is not a violation of section 723.042, Florida Statutes. However, pass through charges may not be imposed if the mobile home owner's obligation to pay such charges was not disclosed generally and prior to occupancy as required by Sections 723.011(2) and 723.012, Florida Statutes, or Section 723.013, Florida Statutes, whichever is applicable. No fee, charge or assessment shall be imposed by a mobile home park owner on the purchaser of a mobile home situated in the park that is offered for sale by a resident of the park and as a condition to the purchaser being reviewed or approved for residency in the park. A fee, charge or assessment has been collected as a matter of custom if it was collected prior to July 1, 1967. In the case of Florida Manufactured Housing Association, Inc., v. Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, et al., 10 F.A.L.R. 3919 (June 24, 1988), the former proposed rule quoted immediately above was determined to be invalid on several grounds. The proposed rule that is the subject of this case will substantially affect the substantial interests of the Petitioner and each of the Intervenors. A substantial number of the members of the FMHA and the FMO are substantially affected by the proposed rule and the relief sought is the type and nature which these associations may properly seek on behalf of their respective members. Mr. Bob Custer is a Vice President in De Anza Corporation. De Anza Corporation is the owner of Mobile Americana Mobile Home Park. De Anza Corporation is a member of the FMHA. De Anza Corporation purchased the park in July 1976. At that time there was a written lease offered to all home owners in the park. Subsequently, the park offered written leases to home owners in the park. After the adoption of Chapter 723 on June 4, 1984, the park owner filed a prospectus with the DBR, received approval from the DBR, and distributed the approved prospectus to the mobile home owners in the park in 1985. The prospectus contains provisions, including fees and charges, that are different from the earlier offered rental agreements used in the park. The prospectus is the controlling document used by De Anza Corporation in determining increases in lot rent and fees and charges that will be collected during the tenancy. Mr. Tom Keenan is the Vice President for Property Operations for Mobile Home Communities, Inc., which owns and operates 10 mobile home parks in Florida. Each of the individual-parks is a member of the FMHA. Lake Haven Mobile Home Park is owned and operated by Mobile Home Communities, Inc. Lake Haven Mobile Home Park entered into 4 year leases with its tenants, beginning in 1975 and again in 1979. After the adoption of Chapter 723, on June 4, 1984, Lake Haven Mobile Home Park filed and received approval for a prospectus from DBR, which was distributed to mobile home owners in 1985. The prospectus, including the rental agreement therein, contains terms and conditions different from the earlier 4 year leases (including the term of the rental agreement which is changed to annual), and there are different fees and charges which can be collected. Of the 379 lots that are rented in the park, approximately 200 tenants entered the park prior to the delivery of the prospectus. Mobile Home Communities, Inc., operates the park pursuant to the disclosures contained in the prospectus. Ms. Jan West is the owner and operator of Eagle's Nest Mobile Home Estates, a 64 space mobile home park located in Fruitland Park, Florida. Ms. West is a member of the FMHA. Eagle's Nest was developed in the 1930's and purchased by Jan West's parents in the 1940's. Prior to 1987 the rental agreements in the park were all oral. Ms. West does not know the terms and conditions of the rental agreements offered to tenants when her parents operated the park. All 64 of the lots in the park were offered for rent or lease on June 4, 1984, the effective date of Chapter 723. In 1987 Eagle's Nest filed a prospectus with the DBR and the prospectus was approved. All of the tenants of the park signed the lease agreement contained in the prospectus in 1987 when the approved prospectus was delivered. The fees and charges that are included in the prospectus were never disclosed in writing to any of the tenants prior to the delivery of the prospectus. The prospectus is the document that Eagle's Nest uses to determine the landlord tenant relationship under Chapter 723. Eagle's Nest collects lawn mowing fees and special services fees when they apply. Ms. West does not know if there were charges, other than the base rent, that were collected prior to 1987. She does not know if other charges, like late charges, return check charges, guest fees, vehicle storage fees, pet fees, special services fees, or pass-through charges were charged prior to delivery of the prospectus. Lawn mowing fees and maintenance fees were collected prior to 1987. It is a common practice in the industry to use a fixed term lease, or a lease for a term of years, in the prospectus and rental agreement approved by the DBR. The Mobile Home Study Commission was created in 1988 to study problems with alternative dispute resolution relating to mobile home park rents. Chapter 88-147, Laws of Florida. The Study Commission was reauthorized in 1989 for another one year period to study this issue. Chapter 89-202, Laws of Florida. The Study Commission was in existence, in 1988, when the Florida Manufactured Housing Association challenged an earlier proposed rule, 7D-31.002, which regulated the fees and charges that could be collected in mobile home parks. In that case the Division of Administrative Hearings issued a Final Order invalidating the earlier proposed rule on several grounds. That Final Order was affirmed by the First District Court of Appeal. Florida Manufactured Housing Association, Inc. v. Department of Business Regulation, 10 F.A.L.R. 3919 (DOAH 1988), affirmed, 547 So.2d 636 (1st DCA 1989) (hereafter referred to as FMHA I). The DBR appeared at the Study Commission in 1990 and suggested legislation to directly overturn the hearing officer's decision in FMHA I. That suggested legislation was virtually identical to the proposed rule at issue in this proceeding. The legislation suggested by the DBR was not adopted. Thirty-five to forty percent of the tenants residing in MLH parks today resided there prior to the enactment of Chapter 723, Florida Statutes, on June 4, 1984. MLH or its predecessors in interest delivered prospectuses approved by DBR to all tenants residing in the parks on June 4, 1984, at or before the expiration of those tenants' pre-Chapter 723 leases. The prospectuses delivered to such residents disclosed the manner in which the residents' lot rental amount would be increased, other fees and charges which the resident would thereafter be charged, and the manner in which pass-through charges (for governmentally- mandated capital improvements) would be assessed. In some of its barks MLH has passed on ad valorem property tax increases to park tenants. A number of tenants in MLH's parks are now contending that such charges cannot be passed on to them, even though such charges are disclosed in the park prospectuses which they received after enactment of Chapter 723, Florida Statutes, because (the tenants assert) such charges were not disclosed to them prior to their moving into the parks before the enactment of Chapter 723. MLH has no knowledge as to whether each charge disclosed in its approved Chapter 723 prospectuses was disclosed by the previous owners of MLH parks at the time that the original tenant moved onto a particular lot before the enactment of Chapter 723. MLH intends to continue passing on ad valorem tax increases. The prospectuses for MLH parks approved by DBR provide for the collection of a $3.00 annual DBR filing fee. The obligation to pay that filing fee was not disclosed to tenants who moved into the parks before the enactment of Chapter 723 because, at that time, neither DBR nor any other state agency had regulatory jurisdiction over the parks and the legislature did not impose such a filing fee until the passage of Chapter 723 and the concomitant creation of the Bureau of Mobile Homes. As to the years prior to the enactment of Chapter 723, it is sometimes very difficult, if not impossible, for a current park owner to ascertain and establish what fees, charges, and assessments were disclosed to tenants before they moved into a park. There was no central regulatory authority at that time which was charged with the responsibility to monitor such disclosures. There was no required, standardized disclosure document such as the prospectus which is now required of most parks by Chapter 723. Some parks now subject to regulation under Chapter 723 came into existence as early as the 1930's and operated as informal, family-run businesses. Thus, for the industry in general, the records are not available to establish what disclosures were made to tenants who long ago moved in, and still reside in the parks, at the time they initially took up residence. MLH intends to continue the operation of its parks in Florida and, therefore, will be governed directly by the proposed rule, if it is adopted. Prior to the enactment of Chapter 723, there was no statutory limitation on the frequency of rent increases, no requirement that the park owner disclose the factors which would be considered in setting rents, and no requirement of the park owner to mediate rent disputes with statutorily recognized tenant organizations, all of which are now imposed under Chapter 723. All of the approved MLH prospectuses contain the land use descriptions required by Section 723.012(4)(c), (5), (14) (b), Florida Statutes, including a lot layout showing the location and size of all lots in the parks (whether vacant or occupied), the location of all recreation and common facilities, and a detailed description of those facilities. MLH was a member of the Florida Manufactured Housing Association at the time that the Division of Administrative Hearings rendered its opinion in Florida Manufactured Housing Association, Inc. v. Department of Business Regulation, 10 F.A.L.R. 3910 (D.O.A.H. 1988) ("FMHA I") and at the time FMHA I was affirmed by the First District Court of Appeal. DBR will apply the proposed rule to the administration of Section 723.031(5),(6), Florida Statutes. DBR will apply the proposed rule to the administration of existing rule 7D-31.001(5), Florida Administrative Code. "Length of tenancy," as used in existing rule 7D- 31.001(5), F.A.C., is not defined by Chapter 723, Florida Statutes, or by existing DBR rules. Nor is the term "tenancy" expressly defined in Chapter 723, Florida Statutes or in DBR's implementing rules. The word "continuous" used in the proposed rule is intended to have its common and ordinary meaning. The resale value of a tenant's mobile home in a park, as compared to the value of a comparable mobile home purchased from a dealer's lot, is significantly higher due to the recreational and other amenities which are provided by the park owner for the tenants' use. The resale value of a tenant's mobile home in a park, as compared to the value of a comparable mobile home purchased from a dealer's lot, is significantly higher if the tenant can pass on to the purchaser of the in-place home a rent schedule which is more favorable than the current rent schedule being charged for a home newly being placed in the park. MLH uses and has entered into fixed-term, twelve-month leases with tenants in some of its parks. Those leases are part of DBR-approved prospectuses for the parks. MLH's parks and other parks regulated under Chapter 723, Florida Statutes, compete vigorously for tenants and are willing to and, in fact, do negotiate long-term leases and even lifetime leases with residents of the parks. It is important to park operators to have the flexibility to modify the prospectus disclosures regarding the use of vacant lots, vacant common areas, and land and improvements devoted to recreation facilities, in order to meet market changes and competition. It is very difficult, and sometimes impossible to obtain unanimous consent of residents in a mobile home park on most issues. In the case of MLH's park at Ellenton, Florida, the park land and improvements are valued at approximately $22,000,000. Yet it would cost MLH conservatively, $56,300,000 to purchase the homes in the park from the tenants. It would cost MLH, conservatively, $9,200,000 to $22,000,000 to move all of the tenants' homes from the park. Moreover, a portion of that required purchase price is for value added to the homes by reason of the placement of the homes in the owner's park. Ninety-eight percent (98%) of the 1000 members in the full park division of the FMHA have parks that contain more than twenty-five (25) spaces. The Department of Health and Rehabilitative Services licenses a total of 5,500 mobile home parks in the State of Florida. FMHA developed a model prospectus for its members to comply with the law as enacted in 1984. FMHA advised its members to put all potential fees, charges, and assessments in prospectuses although such fees, charges, and assessments may not have been disclosed to the homeowner prior to the homeowner's occupancy in the park or prior to the homeowner entering into his or her initial rental agreement. Mobile Americana Mobile Home Park, a Pinellas County mobile home park, was purchased by De Anza in July, 1976. The park's prospectus number 5200119P was approved and delivered to homeowners in 1985. Since 1976, several leases and rules and regulations have been in effect in the park. The prospectus number 5200119P includes fees, charges, and assessments that were not previously disclosed in prior leases to homeowners. However, De Anza is not presently charging or collecting these undisclosed fees. De Anza manages A Garden Walk Mobile Home Park for MLH. Prospectus numbers 5000867P and 500086P86 are offered in the park. MLH offers various leases in A Garden Walk, including lifetime leases and the leased marked MLH Ex. $9. MLH Ex. #9 was used in the park after 1985 although the exact time of use is not known. Neither De Anza or MLH know what fees, charges, or assessments were disclosed to homeowners by previous park owners. For the last 3 years, De Anza has managed Hacienda Village Mobile Home Park. De Anza sets the rental amounts in its parks and uses the market approach. With the market approach, the park owners arrive at a market rent by comparing the rents in their parks with rents of other mobile home communities of comparable value. The park owners unilaterally arrive at the market value rent. The collection of governmental fees is accounted for in arriving at the market value rent. Approximately 5 to 7 years prior to the enactment of Chapter 723, Florida Statutes, De Anza disclosed to homeowners living in De Anza owned parks the homeowners' obligations to pay for increased costs due to governmental actions and increases in taxes. All pre-1984 De Anza leases were subject to Chapter 83. Mobile Americana, Hacienda Village, and A Garden Walk are members of the FMHA. Mobile Home Communities also operates Windmill Village Mobile Home Park. Homeowners in Windmill Village were provided a prospectus in 1985. The prospectus contains terms and conditions that are different from the rental agreement that was in effect from 1983 until 1985. Five of the parks owned by MLH were purchased on July 1, 1987. The other three parks were purchased between July 2, 1986, and 1989. At the time MLH purchased its eight parks each park had an approved prospectus in place. One of MLH's parks, Colony Cove Ellenton, is located in Ellenton, Florida, and offers three separate prospectuses, including prospectus numbers 410024P, 410024P86 and 410024P2. Pages 74, 75, and 76 of Colony Cove Ellenton prospectus number 410024P describe the park's recreational facilities. The park owner, on page 77, paragraph 4(f), reserves the right from time to time to alter or change any of the facilities by the removal, relocation, or alteration of existing facilities or the construction of new facilities. Page 85 of this prospectus provides for the collection of costs incurred as a result of state and local government actions. MLH owns and operates Clearwater Cascade Mobile Home Community of Clearwater, Florida. Prospectus Number 5200525P86 lists each lot, including lot size, as well as describes recreational facilities and common facilities in the park. LaCasa Mobile Home Park, a MLH park, offers at least two prospectuses in the park, prospectus numbers 5800237P and 5800237P86. Prospectus number 5800237P describes the recreational facilities in the park. The prospectus provides for an assessment to homeowners for ad valorem taxes. The park owner also reserves the right from time to time to change any of the facilities by the removal, relocation, or alteration of existing facilities or the construction of new facilities. MLH has not been told by the Division it would not have a right to make modifications to its facilities in accordance with its prospectuses. The prospectuses delivered to homeowners in MLH parks allow for a variety of lease situations. There are no provisions in the prospectuses delivered by MLH which state that a prospectus applies only to persons who were in residence on June 4, 1984. All of the MLH prospectuses include reservation language similar to language contained in the Colony Cove Ellenton prospectus, reserving the right to modify facilities. MLH owns and operates Valleydale Estate Mobile Home Park, which it purchased on July 1, 1987. The Valleydale Estates prospectus contains some fees that were not disclosed to homeowners prior to occupancy. When MLH purchased Valleydale, it did not inquire as to disclosures made to homeowners. MLH also owns Heritage Village Mobile Home Park. Prior to its purchase of the park, MLH did not inquire as to disclosures made to homeowners living in the park. Since 1984, Dr. Faye Mayberry has been the Chief of the Bureau of Mobile Homes. The Division has the duty to review and approve prospectuses. Park owners draft prospectuses and submit them to the Division for review. Approximately 3000 prospectuses have been approved by the Bureau of Mobile Homes. As part of the approval process the Division does not verify the accuracy of the contents of the prospectus, nor does the Division determine if the contents of the prospectus are consistent with rental agreements offered to a particular mobile home owner. Park owners are advised by the Division that failure to cite deficiencies in the prospectus filing does not relieve them of obligations under the law. On January 10, 1985, Rule 7D-30.003 Florida Administrative Code, was adopted. Mobile home parks may offer more than one version of a prospectus in a park. Park owners sometimes submit subsequent prospectus filings that are inconsistent with previously delivered prospectuses. The Division has not established a policy regarding subsequent prospectus filings which contain disclosures concerning the number of lots in the park which are inconsistent with the disclosures in the previously approved and delivered version of the prospectus. Such inconsistencies between the subsequent prospectus and the previously approved and delivered prospectus filings are handled by the Division on a case by case basis. Prior to June 4, 1984, the primary issue of concern for mobile home owners was the mobile home park owners' failure to live up to disclosures that were given prior to the homeowners' occupancy in the park. (TV V, pg. 613). The prospectus delivered to mobile home owners residing in the following mobile home parks included fees, charges, and assessments other than pass-through charges, which were not disclosed to homeowners until after they moved into the parks: Park East Club -- Sarasota, Florida Caribbean Estates -- New Port Richey, Florida River Grove Mobile Home Village -- Sebastian, Florida Hacienda Village -- Winter Springs, Florida Ocean Pines Mobile Home Park - Indialantic, Florida A Garden Walk -- Palm Beach Gardens, Florida The amount for which a mobile home located in a mobile home park can be sold tends to decrease when the lot rental amount charged by the park increases. It costs several thousand dollars to move a double- wide mobile home within a 50 mile radius and set it up again the way it was before the move. /1 Many FMO members have complained to the FMO leadership of prospectuses being delivered in their mobile home parks which include fees, charges, or assessments which were not disclosed prior to June 4, 1984.
