Findings Of Fact Respondent owns and operates a mobile home park in Winter Haven, Florida, known as Swiss Village Mobile Home Park, in which lots are leased to mobile home owners on an annual lease. There are 383 lots in this park and this park has held a permit issued by the Department of Health and Rehabilitative Services since 1980 (Exhibit 1). Edward G. Ackerman and his wife entered into a lease with Respondent for the use of a mobile home lot for the period January 15, 1981 until December 31, 1981, at a monthly rental of $75.07 (Exhibit 2). That lease provides for year-to-year renewal with rent for future years based on the Cost of Living Index as determined by the U.S. Government at the nearest reporting period to the end of each calendar year (Exhibit 2). A Guaranteed Lifetime Rent Agreement (Exhibit 3) was executed by the lessor concurrently with the lease in Exhibit 2, which guarantees the rental on the lot leased to Ackerman shall not be increased more than the U. S. Cost of Living Index as long as Ackerman resides in a mobile home located on the leased lot. Using the annual change and CPI to recompute Ackerman's monthly rental has resulted in the rent increasing from $75.00 per month in 1981 to $89.50 per month in 1985 (Exhibit 4). Prior to the time of this hearing Ackerman had purchased a condominium to which he had moved and he was no longer a tenant at the Swiss Village Mobile Home Park. All leases negotiated in years subsequent to 1981, have a similar escalation clause in the rent with the additional proviso that the monthly rent would be increased each year a minimum of $5.00 per month, with the maximum increase not exceeding the CPI. Respondent has used the October All Items Consumer Priced Index For All Urban Consumers (CPI-U) in determining the annual rent increase since operations commenced. This report is received in November and by promptly advising tenants the amount their rent will change, because of changes in the CPI-U, each. tenant receives approximately 30-days notice prior to the January 1 effective date. If the terms of the lease agreement are literally complied with and the December CPI is used, Respondent would have to calculate the rent due January 1 on the CPI which it receives in January. By the time tenants are notified of the effects of the CPI on their rent for the coming calendar year, they would already have paid an inadequate sum for the January rental, and perhaps for the month of February also, and would be billed for the deficiency. There is an active Home Owners Association at Swiss Village Mobile Home Park. This association has not complained of the failure of Respondent to provide 90 days notice prior to the automatic rent change which comes every January, nor have they requested arbitration. In order to insure tenants receive 90 days notice of the rental change, due to changes in the CPI, Respondent would have to use the July Consumer Price Index, which it receives in August. Had Respondent used the July CPI report and given tenants 90 days notice of the annual rental increases since 1981, these increases would have exceeded the increase computed using the October CPI (Exhibit 6). Exhibit 6 indicates the actual adjustments of rentals since 1981, has been $5.00 per month or the CPI, whichever is less.
The Issue Did Westside Ridge Adult Mobile Home Community (Westside) violate Rule 10D-26.085, Florida Administrative Code, by having standing water in its mobile home park for more than 48 hours? If so, is this sufficient basis for the Department of Health and Rehabilitative Services (Department) to deny Westside's application for renewal of its mobile home park operating permit?
Findings Of Fact Upon consideration of the deposition testimony and documentary evidence presented by the parties in this case, the following findings of fact are made: Westside Ridge, Ltd., a Florida limited partnership, is the owner of Westside Ridge Adult Mobile Home Community. Under Chapter 513, Florida Statutes, the Department, in conjunction with the representative county public health units, such as the Polk County Public Health Unit, is the agency charged with the responsibility of inspecting mobile home parks such as Westside to assure their compliance with public health laws and rules. On August 14, 1995, the Department inspected Westside and found water underneath some of the mobile homes in the park; water covering some of lots in the park; and water ponding in some of the streets in the park. This water had been standing for more than 48 hours. The Department's inspector issued an Inspection Report dated August 14, 1995. This report indicated that the unsatisfactory condition found at the mobile home park was the park drainage. The report stated that all violations of standing water must be corrected within 14 days. Westside received a copy of the Inspection Report from the August 14, 1995, inspection in a timely manner. Sometime around September 10, 1995, Westside retained the services of J. D. Smith Exterminators, Inc. (Smith), a professional pest control service, to treat any standing water in Westside's mobile home park. Westside has not corrected the conditions which affected the drainage in the mobile home park and resulted in the water standing in the park for over 48 hours. The Department contends that the rule requires Westside correct the conditions - either fill in the depressions in the soil or provide proper drainage of the water - which affect the drainage and results in water standing over 48 hours in the mobile home park. Westside contends that the rule does not prohibit water standing over 48 hours where the water is treated and does not contribute to mosquito or fly breeding. By letter dated September 15, 1995, Westside advised the Department that Westside would retain a professional pest control service to prevent any standing water from contributing to mosquito or fly breeding. Westside also requested that the Department advise it if the Department intended to seek enforcement pursuant to the Department's interpretation of Rule 10D-26.085, Florida Administrative Code. Apparently, the request concerning enforcement was made as a result of a telephone conversation between one of the Department's representatives and Westside's counsel on Thursday, September 14, 1995, concerning the Department's interpretation of the rule and what the Department intended to require Westside to correct the alleged violation of the rule. The Department did not advise Westside or its counsel of its intent to pursue enforcement. On or about September 10, 1995, Smith visited Westside mobile home park and found water standing as reported on the August Inspection Report but did not treat the water because Smith did not have the necessary chemical on hand. On or about September 13, 1995, Smith returned to Westside's mobile home park to treat the standing water but, upon arrival, Smith did not find any standing water at the mobile home park that required treatment. Before Westside's current annual mobile home park operating permit expired, Westside timely filed its application with the Department for the renewal of its mobile home park operating permit. The Department issued a Denial Of Application For Mobile Home Park/Recreational Vehicle Park Operating Permit dated November 26, 1995, denying Westside's application for its annual mobile home park operating permit. The basis of the Department's denial was that Westside mobile home park had violated Rule 10D-26.085, Florida Administrative Code, in that the mobile home park had been found to have standing water in the park in excess of the 48 hour period allowed by the rule. The denial also warned Westside that unless it had requested a hearing, or ceased operating the park, or remit a plan of action to remove all standing water and measures to prevent reoccurrence of the violation that Westside would be cited for operating without a valid permit within 30 days. During the summer of 1995, there was an above-average rainfall in Polk County, Florida which resulted in flooding problems in mobile home parks located throughout Polk County, Florida, including Westside's mobile home park. Based on the testimony of the Department's employees involved with the inspection of mobile home parks, the flooding conditions were the worst seen in Polk County, Florida in 25 years. The is no evidence of how long water had been standing in Westside's mobile home park before the Department's inspection on August 14, 1995, other than it had been standing over 48 hours. There is no evidence of Westside being cited for having water standing in its park for over 48 hours at any time previous to the August 14, 1995, inspection. There is no evidence of any water standing, for any length of time, in Westside's mobile home park, after September 14, 1995. Although the inspection report for January 10, 1996, indicates water standing in drainage ditches along the sides of Westside mobile home park, there is no evidence that these drainage ditches are in fact within the park boundary. The Department did not inspect Westside mobile home park again until January 10, 1996, which was after the issuance of the denial of the permit on November 26, 1995. There were no violations or unsatisfactory conditions, such as drainage, indicated on the Department's January 10, 1996, Inspection Report, notwithstanding that the Department's position is that since Westside has failed to correct the drainage problem which resulted in the standing water it continues to be in violation of Rule 10D-26.085, Florida Administrative Code. Treating standing water with chemicals to prevent mosquito and fly breeding does not solve all of the public health problems that may be associated with water that has been standing for long periods of time. It is the Department's position that water standing in the park for more than 48 hours is a violation of Rule 10D-085, Florida Administrative Code, and, without any other violation, is sufficient to deny the application for the operating permit. Other than the violation for having standing water in the park for over 48 hours and the failure to correct the conditions which resulted in the standing water, the Department concedes that Westside meets all other criteria for granting the application for a mobile home park operating permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order granting Petitioner's application for a mobile home operating permit. However, it is further recommended that the Department monitor the Westside mobile home park so as to determine if conditions presently existing at the park result in water standing in the park in excess of 48 hours under normal rainfall. If water found is to be standing in the park in excess of 48 under normal rainfall, the Department should then move to require Westside to correct the condition. RECOMMENDED this 7th day of May, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0273 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. Proposed findings of fact 1 through 11, 13, 16, 17, 19 through 25, 29, 30, 31 and 33 through 36 are adopted in substance as modified in the Findings of Fact 1 through 22. Proposed findings of fact 12 and 26 through 28 are neither material nor relevant. Proposed findings of fact 14, 15 and 37 through 41 are argument rather than findings of fact. Proposed findings of fact 18 and 32 are not supported by evidence in the record. Department's Proposed Findings of Fact. Proposed findings of fact 1 through 22 are adopted in substance as modified in Findings of Fact 1 through 22. Proposed findings of fact 23 and 24 are argument rather than findings of fact. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Timothy F. Campbell, Esquire Clark, Comparetto & Campbell, P.A. 4740 Cleveland Heights Boulevard Post Office Box 6559 Lakeland, Florida 33807 Jack Emory Farley, Esquire Department of Health and Rehabilitative Services District 14 270 Bartow Municipal Airport Bartow, Florida 33830
The Issue Whether respondent should refund sales tax petitioners paid on account of their purchase of a manufactured home?
Findings Of Fact On September 12, 1984, petitioners made a $160 down payment on a 75 x 150 foot lot in High Ridge Estates in Bay bounty by a check drawn in favor of Ed Franklin. They wanted the lot in order to put a manufactured home on it. After acquiescing to a request by personnel of the Bay County building department that they pay $21.00 for a mobile home permit, the Baileys improved the property in anticipation of placing a manufactured home on it. They put in a septic tank and poured a concrete pad. On November 21, 1984, the Baileys signed a form "FHMA SALES CONTRACT" as buyers. Petitioners' Exhibit No. 2. Jack Lee signed as seller on behalf of "DD&L Joint Venture." Id. Petitioners gave Lee a down payment of $13,400; DD&L undertook to procure from Fleetwood Homes of Georgia, Inc., a manufactured home to be placed on the High Ridge Estates lot. The form contract, which purported to obligate the Baileys for $53,000, describes the lot, but makes no mention of the manufactured home. In December of 1984, the manufactured home arrived at High Ridge Estates, borne by temporary axles and wheels, which were unbolted after its arrival, and left with the truck that had brought it. Statewide of Florida, Inc., placed it on its new foundation. With an exterior of wood siding and an asphalt-shingled roof, the 25.7 by 54 foot structure met VA and FHA materials requirements for standard housing. Carpet was laid over plywood subflooring. Wall joists stand 24 inches apart. The Baileys added a carport, a driveway, three decks and a separate storage shed. On March 13, 1985, Mr. and Mrs. Bailey borrowed money from Peoples First Financial Savings and Loan Association of Panama City (Peoples) to pay the balances they owed for the lot and home. Of the loan proceeds, $6,100.00 went to "C. Ed Franklin and wife, Frances P. Franklin," Hearing Officer's Exhibit No. 1, to pay for the lot on which the manufactured home stood; and $23,328.80 went to "ITT Comm. Finance." Id. To secure repayment of its loan to the Baileys, Peoples took a mortgage from the Baileys encumbering the lot and the manufactured home affixed to it. Petitioners' Exhibit No. 1. Apparently the payment to "ITT Comm. Finance" retired indebtedness the Baileys incurred in acquiring their 1985 Fleetwood Chadwick 3523D. Mrs. Bailey executed a retail buyer's order for their manufactured home in December of 1986, although the form, which showed Best Home Center, Inc., as the "DEALER," was dated March 22, 1985. Hearing Officer's Exhibit No. 2. The form reflects a total price for the manufactured home of $29,045.87, the sum on which sales tax was computed at $1,452.53. The Baileys paid tax in this amount to Best Home Center, Inc., "upon the sales (sic) of tangible personal property." Hearing Officer's Exhibit No. 2. Best Home Center, Inc., forwarded the taxes they collected from the Baileys, along with other taxes collected in March of 1985, to the Florida Department of Revenue. Hearing Officer's Exhibit No. 2. At the time the Baileys purchased the manufactured home it had no license tag. It never had a license tag and, at the time they purchased it, had never been assessed as real property. Best Home Center, Inc., made a written assignment to the Baileys of its rights, if any, to recover the sales tax the Baileys paid.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny petitioners' application for refund. DONE and ENTERED this 5th day of October, 1987, at Tallahassee, Florida. ROBERT T. BENTON, II 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 5th day of October, 1987. APPENDIX The second sentence of respondent's proposed finding of fact No. 1 and respondent's proposed findings of fact Nos. 3, 4, 6, 8, 9 and 10 have been adopted, in substance, insofar as material. With respect to the first sentence of respondent's proposed finding of fact No. 1, it is not entirely clear who sold the Baileys the manufactured home. The documentation reflected a sale by Best Home Center, Inc., for $29,045. With respect to respondent's proposed finding of fact No. 2, Ed Franklin and his wife conveyed the lot. The down payment was $160 and a $6,100 balance was paid in March. With respect to respondent's proposed finding of fact No. 5, the Peoples Mortgage originated in March, with indebtedness secured by lot and home. With respect to respondent's proposed finding of fact No. 7, the Bay County Building Department required them to purchase a permit on September 20, 1984. COPIES FURNISHED: The Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0305 Charles Stutts, Esquire General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0305 Mr. and Mrs. Bailey 22012 High Ridge Drive Lot 24 Panama City Beach, Florida 32407 D. Alan Burns, Esquire Assistant Attorney General Department of Legal Affairs Tax Section, Capitol Building Tallahassee, Florida 32399-1050
The Issue The issues in this case are: (1) whether, on three separate occasions, the Respondent raised the rent at Minerva Mobile Home Park without first delivering to the lessees an approved prospectus, as alleged in the Notice to Show Cause, Docket No. MH89446, issued on November 1, 1989; and (2), if so, what is the appropriate penalty.
Findings Of Fact The Respondent, Haines City Investment, Inc., is the owner of Minerva Mobile Home Park located in Haines City, Florida. There are approximately 72 lots for lease in Minerva Mobile Home Park. On or about January 6, 1988, a Final Order was entered by the Petitioner finding, among other things, that the Respondent had raised the rent on lots in Minerva Mobile Home Park, effective January 1, 1986, without first filing a prospectus with the Petitioner (and therefore also without delivering to the homeowners an approved prospectus.) Among other things, the Final Order fined the Respondent $3,000 and ordered the Respondent to deliver an approved prospectus to each homeowner entitled to receive one within 15 days. During the pendency of a court appeal of the Final Order, on or about April 29, 1988, the Respondent entered into an Agreement to Remit Civil Penalty and Annual Fees. Effective January 1, 1987, the Respondent increased the monthly lot rental in Minerva Mobile Home Park by $11. Effective January 1, 1988, the Respondent increased the monthly lot rental in Minerva Mobile Home Park by $4.50. Effective January 1, 1989, the Respondent increased the monthly lot rental in Minerva Mobile Home Park by $6. Effective January 1, 1990, the Respondent increased the monthly lot rental in Minerva Mobile Home Park by $12.50, to $134.50 per month. The 11 homeowners who testified all paid all rent increases charged by the Respondent. The Respondent first filed a prospectus for Minerva Mobile Home Park for approval by the Petitioner in October, 1986. By this time, the Respondent had given the homeowners a copy of the proposed, but unapproved prospectus. However, the proposed prospectus was not approved by the Petitioner, and several revisions were made. The final revision was not approved until May 20, 1987. The approved prospectus was not delivered to the homeowners of the Minerva Mobile Home Park until some time in March, 1990.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order requiring that the Respondent refund the illegal rent increases to the homeowners (or former homeowners) in Minerva Mobile Home Park and requiring the Respondent to pay a $1,500 civil penalty. RECOMMENDED this 26th day of November, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1990. COPIES FURNISHED: Debra Roberts, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Albert Labossiere, President Haines City Investment, Inc. 2800 Minerva Park Haines City, Florida 33844 E. James Kearney, Director Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee Florida 32399-1007
The Issue The issue in this case is whether Respondents discriminated against Petitioners based on race regarding the renting of a house.
Findings Of Fact LM Rentals owns 80 houses, which it rents. Mr. Peeples manages LM Rentals. LM Rentals contracts with Vantage to provide management of the rental properties, and Ms. Mossow is employed by Vantage. LM Rentals rented a house to the Odoms for approximately eight years, beginning in 2003. Mrs. Odom is a Native American. Mr. Odom is White and is not a Native American. No evidence was presented to establish that either anyone from LM Rentals or Ms. Mossow was aware that Mrs. Odom is a Native American. Mrs. Odom's physical appearance, her speech, and her surname could reasonably lead one to think that she is not a Native American. Her appearance would lead one to believe that she is White. The application which the Odoms filled out to rent the house did not require the Odoms to state their race. Mrs. Odom never informed employees of LM Rentals or Ms. Mossow that she is a Native American. Mrs. Odom claims that her children have darker skin than she, and, therefore, Ms. Mossow and employees of LM Rentals should have known that she is a Native American by looking at her children. However, no testimony was presented that Ms. Mossow or anyone from LM Rentals ever met Mrs. Odom's children prior to the filing of the discrimination complaint. Ms. Mossow did not meet any of Mrs. Odom's children until a short time before the final hearing when she delivered copies of exhibits to the Odoms' home. Mr. Peeples, the representative of LM Rentals, did not meet the Odoms' children and never met the Odoms until a few days before the final hearing. The house which the Odoms rented from LM Rentals developed a mold problem. Instead of bringing the mold problem to the attention of Ms. Mossow or anyone at LM Rentals, the Odoms contacted the Polk County Health Department (Health Department), which sent an environmental specialist to investigate the mold situation in January 2010. LM Rentals received a letter from the Health Department concerning the mold. LM Rentals hired a third-party testing company to test the house for mold. The coils on the air conditioner were replaced. The Odoms were not satisfied and requested that Ms. Mossow find them another rental house in the same school district in which they currently resided. LM Rentals has an average vacancy rate of five percent, which equates to about four houses at any given time. At the time that the Odoms requested to be relocated, there was only one house vacant in the school district which the Odoms wanted. The Odoms did not like the house and refused to relocate. Mrs. Odom claims that there were other houses available, but could not point to any specific house. Her claim is based on sheer speculation. The Odoms requested that the carpet be replaced, but, based on the tests of the third-party testing company, LM Rentals refused to do so. About the time they were having the mold problems, the Odoms' daughter was suspended from school. Mrs. Odom attributes the suspension to discrimination by Respondents. Mrs. Odom called, as a witness, the teacher who made the referral which resulted in Mrs. Odom's daughter being suspended. The teacher did not know Ms. Mossow and did not know Mr. Peeples. The teacher, who is also an attorney, was not sure if she had ever represented LM Rentals in the past as an attorney. The suspension was totally unrelated to any mold problems and any alleged discrimination. Mrs. Odom also claims that her son was arrested for disorderly conduct about the time of the mold problem, and she lays the arrest at the door of Respondents. Her rationale for her claim is that the arrest happened at the time they were dealing with the mold issues and that LM Rentals knew people. There is not a scintilla of evidence to connect the arrest of the Odoms' son to any actions by Respondents. In April 2010, during the period in which the mold was an issue, a code enforcement inspector saw a small grill on the Odoms' driveway, which was apparently a code violation. The inspector told the Odoms that the grill needed to be removed. LM Rentals received a letter from the code enforcement department stating that LM Rentals would be fined if the violation was not corrected. Ms. Mossow contacted the Odoms in an attempt to get the grill removed in order to avoid being fined. Mrs. Odom claims that Ms. Mossow and LM Rentals caused the code enforcement inspector to come to the Odoms' home and ask that the grill be removed. Mrs. Odom's claim is without merit. It is unlikely that Ms. Mossow or LM Rentals would request a code enforcement inspector to find a code violation which would result in LM Rentals, as owner of the property, being fined. No evidence was presented to show that Respondents treated non-minorities any differently than the Odoms were treated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Lawrence and Candace Odom's Petition for Relief. DONE AND ENTERED this 6th day of December, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND 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 6th day of December, 2011.
The Issue The issue is whether Respondent engaged in prohibited discriminatory conduct against Petitioners, Irene Cassermere (Ms. Cassermere) and Milagross Diaz (Ms. Diaz), within the terms and conditions, privileges, or provisions of services or facilities in the sale or rental of real property in violation of Section 760.23, Florida Statutes (2002).
Findings Of Fact Ms. Diaz is a female of Hispanic ethnicity with a physical disability that limits one or more of her major life activities. At all times material, she lived in the State of New York. Ms. Diaz was in Florida during the month of February 2002. On February 20, 2002, she completed an application for lot rental in the Sherwood Forrest Mobile Home Park (Sherwood Forest) with the intent to purchase a mobile home located on a rental lot at 216 London Drive, Kissimmee, Florida, owned by Beth Koze (Ms. Koze), who did not testify. Respondent informed Ms. Diaz that her credit check would be completed within a couple of days to ascertain her income and credit history. It was her understanding that Respondent had no interest in the potential purchase transaction between her and Ms. Koze. However, Respondent explained to Ms. Diaz, that ownership of a mobile home at the time of application was not required in order to be approved. According to Ms. Diaz, Respondent eventually informed her that due to insufficient income shown on her application she had been disapproved for lot rental. Ms. Diaz testified that Respondent informed her that she needed approximately twice the amount of her reported monthly income to qualify for lot rental approval. Thereafter, Ms. Diaz submitted a second lot rental application to Respondent. On the second application, Ms. Diaz included a co-applicant, Ms. Cassermere, who intended to relocate to Florida with her when the mobile home purchase and the lot rental application were completed. No monthly income for Ms. Cassermere was included on the lot rental application. On the second lot rental application, Ms. Diaz testified that she listed her "Occupation of Applicant" as "disabled." In the column regarding "income," she included her income and listed a Mr. LaRosa as a source of monthly income of $400.00, the amount she claimed Respondent previously informed her she needed to qualify for lot rental. According to Ms. Diaz, Respondent received her second lot rental application and called her to discuss the matter. During the conversation Respondent asked "[W]hat she was doing for Mr. LaRosa that he would put out $400.00 on her behalf." Ms. Diaz testified that she was offended by the tone of Respondent's voice and the implications that she believed prompted the question. She believed the question to have been irrelevant and did not answer. Ms. Diaz testified that in the "Assets and Income" column of her second lot rental application, she listed the amount of $10,000. When asked by Respondent the source of the $10,000, which apparently was not initially included on her first lot rental application, she explained to Respondent she intended to make a cash purchase of the mobile home from Ms. Koze for $10,000. When asked by Respondent the source of such a large sum, when her monthly income was insufficient to qualify for lot rental, she explained that she was to receive a lump sum, five years' retroactive social security benefit payment. Ms. Diaz testified that approximately one month after submitting her second rental lot application to Respondent and having received no response, she called Ms. Koze to ascertain the status of the mobile home sale. Ms. Diaz also testified that Ms. Koze advised her to call Respondent to find out what was holding up her second lot rental application. Believing the lot rental approval was a condition precedent to the mobile home sale, Ms. Diaz testified that at no time during her conversation with Ms. Koze did Ms. Koze advise her that she intended to take the mobile home off the market. Ms. Diaz then called Respondent and spoke with Andy Windfelder (Mr. Windfelder) about the rental lot application status. Mr. Windfelder told her to call Ms. Koze. Ms. Diaz's recollection of the telephone conversation between her and Ms. Koze follows: [A]t this point it's just too much trouble, that at this point she was going to keep the house. . . for a family member--So I told her at this point, she's been patient and she's been holding up with me for that whole time that we were waiting on this credit report, which is four weeks, that I'm not going to put her on the spot of going against them and tell me what transpired in that conversation for them to convince her not to sell to me. I told her that at that point I have no alternative but to tell her that I was going to go file a housing complaint, and I'm sorry that I would have to involve her, but that we had a contract and I gave her a deposit. So at that point she took my name and address and she mailed me my deposit back on a check, and at that point, I didn't contact Sherwood--I contacted Sherwood Forest only to tell them right after that that I filed this housing complaint, that I was going to file this housing complaint . . . As stated, Ms. Diaz filed her discrimination complaint with the Florida Commission on Human Relations and no longer communicated directly with Respondent regarding the matter. The core of Ms. Diaz's complaint is Respondent's failure, or refusal, to contact her by mail or by telephone about the result of her second lot rental application. Further, Ms. Diaz opined that Respondent pressured Ms. Koze not to sell her mobile home to her, which caused Ms. Koze to return Ms. Diaz's purchase contract deposit money. Ms. Diaz argued that Respondent's conduct, unreasonable delay in acting upon her lot rental application and pressure on Ms. Koze not to sell, had two direct effects: (1) she lost the opportunity to purchase the mobile home located on the rental lot at 216 London Drive, Kissimmee, Florida, and (2) she was denied the right to reside in Respondent's facility because she was a dark, disabled, Hispanic female. At all times material, Jeff Leeds (Mr. Leeds) was general manager of Sherwood Forest in Kissimmee, Florida. In that position, Mr. Leeds supervised a staff of 28 persons, of whom many were Hispanic. The park consisted of approximately 1,600 rental sites. According to Mr. Leeds, approximately 30 percent of Sherwood Forest residents were Hispanic, and he had never met Ms. Diaz. According to Mr. Leeds, Ms. Diaz's background check reflected insufficient income that raised an alert. Her second application, based upon his conversation with Ms. Diaz, would include her sister, Ms. Cassermere, as co-applicant. Ms. Diaz was unaware that in October 2003, Ms. Koze placed her mobile home back on the market and was willing to sell to her. This information was made available to Ms. Diaz by and through Respondent through the report provided to Respondent by the Commission's investigator. Based on the evidence of record, Ms. Diaz failed to present any credible evidence to substantiate her claim of discrimination. Ultimate Factual Determinations Respondent rejected Ms. Diaz's initial lot rental application, not because of her handicap or her Hispanic ethnicity, but because through a reasonable process of credit check references, it was discovered that Ms. Diaz's disability income was insufficient to meet Respondent's requirements for lot rental. The additional income of $400.00, an apparent loan from her friend, entered on her second rental lot application raised reasonable concerns; and, when inquiry was made, she refused to respond. There is no credible, competent evidence that Respondent attempted to influence and/or pressure the mobile home owner, Ms. Koze, to take her mobile home off the market and/or cancel her contract for sale with Ms. Diaz. Ms. Koze voluntarily returned Ms. Diaz's deposit money. There is no credible, competent evidence that Respondent intentionally delayed processing Ms. Diaz's second lot rental application with the intent or for the purpose of denying her approval because of her disability, gender, or her Hispanic ethnicity. In short, Respondent did not unlawfully discriminate against Ms. Diaz; rather, the delay caused by her second lot rental application to Respondent was for a legitimate, nondiscriminatory reason and was not proven to be the reason Ms. Koze took her mobile home off the market.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing Petitioners', Irene Cassermere and Milagross Diaz, Petition for Relief. DONE AND ENTERED this 1st day of July, 2004, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2004.
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
The Issue Whether the proposed repeal of Rule 61B-31.001(5), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority. Further, whether certain agency policies constitute rules and violate the provisions of Section 120.535, Florida Statutes.
Findings Of Fact The Florida Manufactured Housing Association, Inc. (FMHA) is a Florida not for profit corporation organized to represent the interests of the owners of approximately 750 mobile home parks. All of the parks owned by FMHA members are regulated by the Respondent. The FMHA's members will be substantially affected by the proposed repeal of the rule. The FMHA has standing to participate in his proceeding. The Florida Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Respondent), is the state agency charged with implementation, administration and enforcement of Chapter 723, Florida Statutes, relating to Mobile Home Park Lot Tenancies. The Federation of Mobile Home Owners of Florida, Inc. (Federation) is a Florida not for profit corporation organized to represent a substantial number of mobile home owners residing in Florida mobile home parks. The Federation's members will be substantially affected by the proposed repeal of the rule. The Federation has standing to participate in this proceeding. Insofar as is relevant to this case, a mobile home owner commonly rents a mobile home park lot upon which the home is placed. Pursuant to Section 723.011(1)(a), Florida Statutes, the owner of a mobile home park containing 26 or more lots must deliver a prospectus to the home owner prior to entering into an enforceable rental agreement for the mobile home lot. A mobile home park prospectus is intended to provide full and fair disclosure of the terms and conditions of residency and sets forth the regulations to which the home owner will be subjected after signing a lot rental agreement with the park owner. The prospectus must be filed with and approved by the Respondent. The challenged rule was adopted as Rule 7D-31.01(5), Florida Administrative Code, in 1985. Without alteration, it was subsequently renumbered as Rule 61B-31.001(5), Florida Administrative Code, and provides as follows: The Prospectus distributed to a home owner or prospective home owner shall be binding for the length of the tenancy, including any assumptions of that tenancy, and may not be changed except in the following circumstances: Amendments consented to by both the home owner and the park owner. Amendments to reflect new rules or rules that have been changed in accordance with procedures described in Chapter 723, F.S., and the prospectus. Amendments to reflect changes in the name of the owner of the park. Amendments to reflect changes in zoning. Amendments to reflect a change in the person authorized to receive notices and demands on the park owner's behalf. Amendments to reflect changes in the entity furnishing utility or other services. Amendments required by the Division. Amendments required as a result of revisions of Chapter 723, F.S. Amendments to add, delete or modify user fees for prospective home owners. Neither the statute nor the rule defines what is meant by the term "tenancy." Historically, the Respondent has taken the position that the prospectus was binding on the park owner and the mobile home owner until the mobile home no longer occupied the lot or the tenant was evicted, whichever occurred first. In other words, the "tenancy" existed for as long as the mobile home remained on the lot, and the prospectus was binding during the length of the "tenancy", including any assumptions of the "tenancy." However, several legal cases, most recently in 1992, have essentially stated that a mobile home "tenancy" exists for the period of time during which a mobile home rental agreement is effective. The effect of the legal decision is to permit Rule 61B-31.001(5), Florida Administrative Code, to be construed to provide that a prospectus is valid only for the period covered by a rental agreement. The Legislature has not adopted legislation subsequent to the case which would affect the substance of the decision. On January 20, 1995, the Respondent published notice of the proposed repeal of Rule 61B-31.001(5), Florida Administrative Code, in the Florida Administrative Weekly, Vol. 21, No. 3. The Respondent's purpose in repealing the rule is primarily to eliminate the language relating the period of validity for a prospectus to the "tenancy." Although the Respondent asserts that it has no current policy as to the period of validity for a prospectus, the Respondent acknowledges taking the continuing position that the prospectus is binding for longer than the period of a rental agreement. The Petitioner challenges the agency position as being an unpromulgated, and therefore invalid, rule. The Petitioner also challenges as being an unpromulgated and invalid rule, the Respondent's decision to discontinue the review and approval mechanism for amendments to any previously approved prospectus. The Respondent asserts that, notwithstanding prior practice, it has no statutory authority to review and approve amendments to a previously approved prospectus and that it will no longer do so.
The Issue The Department adopts and incorporates in this Final Order the Statement of the Issues in the Recommended Order. The Department's exceptions to the Statement of the Issues in the Recommended Order are not material and are therefore withdrawn.
Findings Of Fact Kjell Bergh operates a Volvo dealership in Minnesota. He also has other business interest in the United States and abroad. In 1986, he received approval from Volvo to open a Volvo dealership in the area of Boca Raton, Florida. Boca Raton zoning makes it very difficult to locate automobile dealerships there. Mr. Bergh therefore located a suitable five acre site to build the Volvo dealership in nearby Delray Beach, Florida. The property was purchased in 1987 solely to build the automobile dealership on it. At some point Mr. Bergh also received a Volkswagen franchise, and operates both the Volvo and the Volkswagen franchises on the Delray Beach property. Title to the land was taken individually in the names of Kjell and his wife Mary Bergh, as joint tenants, on the advice of their tax counsel. The purchase price for the land was approximately one million dollars. The automobile dealership is operated by Borton Motors Incorporated, a Florida corporation organized in 1986. It is owned 75 percent by the Petitioners, Kjell and Mary Bergh, and 25 percent by the vice president and general manager, Loren Sheffer, who has also invested money in the dealership. It is common in the automobile industry for local managers to have a personal stake in automobile dealerships they manage for absentee owners. The manager, however, has only a minority interest, and the automobile manufacturer, Volvo, holds Mr. Bergh responsible for the operation of the dealership. The Berghs financed the purchase of the land and the buildings used as the automobile dealership facilities through the Barnett Bank of Palm Beach County. On July 23, 1987, the Berghs executed a note and mortgage for $2,000,000 in favor of the Barnett Bank for the purchase of the property along with a construction loan agreement to build the dealership facility. The rate and mortgage were modified to increase the amount borrowed to $2,250,000 in May and June of 1988. The land was then leased to Borton Motors, Inc., the legal entity which operated the automobile dealerships. As a condition of obtaining the loan from Barnett Bank, the bank required that Borton Motors, Inc., guarantee the loan which the bank had made to Mr. and Mrs. Bergh, and also required the Berghs to assign the lease to Barnett Bank. The terms of the mortgage give Barnett Bank the right to collect rents and other payments from the property, and prohibits the termination or cancellation of the lease without Barnett's permission. Barnett Bank had the right to approve the lease provisions and to set the amount of the rent so that the debt service coverage ratio would be no less than 1.2 times the amount borrowed. In connection with the loan by Barnett Bank, on July 27, 1987, Borton Motors, Inc., gave to Barnett Bank "its continuing and unconditional guarantee of the payment in full when due of any and all indebtedness of Debtor [Kjell and Mary Bergh] to Bank to the same extent as if Guarantor [Borton Motors, Inc.] were the principal debtor of the indebtedness" (Exhibit 1D). From the inception of the transaction, it was intended that the entity operating the automobile dealership, Borton Motors, Inc., would finance the purchase of the real estate on which the automobile dealership would be located, and the construction of necessary improvements. This was accomplished through the rental payments Borton Motors, Inc., would make to the Berghs, who had actually taken title to the land. Through its guarantee, Borton Motors, Inc., was as liable to Barnett Bank as were the Berghs, from the inception of the loan. The Berghs hoped to receive a return on monies they invested in the automobile dealership, whether for real estate, improvements to the real estate, inventory in the form of cars, or parts, or for payments made for labor to its sales force and service technicians. It is misleading to state that the Berghs intended to receive a return on the real estate investment they made. The return on the real estate is not the result of a separate investment made by the Berghs, it is instead a part of the overall operation of the dealership. The Berghs are not investors in real property who happened to lease property to a tenant who happens to operate a automobile dealership on that property. The Berghs do take a federal income tax deduction for interest paid on the note to Barnett Bank and report the rent received from Borton Motors, Inc., as income on their federal income tax returns. Petitioners have acquired other debt on behalf of the corporation and do not receive any money from the corporation over and above the amount of the mortgage and other indebitness. The Barnett Bank of Palm Beach County eventually sold its loan to the Berghs to Volvo Finance North American, Inc., in late April 1992. This sale has no effect on the taxation of the transaction of issue. On February 8, 1991, the Department of Revenue sent to the Petitioners a form requesting them to file a "application for Sales and Use Tax Registration" and asking them to report the rental income they had received from Borton Motors, Inc., on the dealership property for the period February 1986 through February 1991. The Berghs filed the application and supplied the rental figures to the Department, but maintained no tax was due because the "amount paid reflects the actual debt service." The Department sent the Berghs a Notice of Assessment on February 28, 1991, stating that they owed $71,043.29 in tax, penalties and interest, representing a sales tax at the rate of 6 percent upon the lease payments they had received from Borton Motors, plus penalties and interest. The Department also gave them notice of a right to protest the assessment. The Berghs did protest the assessment to the Department's Bureau of Hearings and Appeals, which sustained the assessment, but agreed to reduce the penalty involved. The Berghs paid $7,043.50 plus interest of $2,327.98 which represents the amount of payments from Borton Motors, Inc., in excess of the debt service due to Barnett Bank.
Recommendation Based on the foregoing, it is recommended that a final order be entered withdrawing the assessment of tax. DONE AND ENTERED this 28th day of September, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 28th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2106 The following constitutes my rulings pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings: 1.-19. Adopted, though not verbatim. Respondent's Proposed Findings: 1. Accepted, excepted for last sentence which is rejected as unsupported by weight of the evidence. 2.-6. Adopted. Subordinate to hearing officer findings on this point. 8.-10. Accepted, but not verbatim. COPIES FURNISHED: Cynthia S. Tunnicliff Carlton, Fields, Ward, Emmanuel, Smith & Cutler P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Mark T. Aliff, Esquire Assistant Attorney General Department of Legal Affairs Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
