The Issue The issue for determination is whether Respondent committed the violations as alleged and, if so, what civil penalty is appropriate.
Findings Of Fact Respondent, T. Cayton Enterprises, Inc. is the owner and operator of Four Oaks Mobile Home Village, a mobile home park located in Titusville, Brevard County, Florida. On or around June 27, 1986, Thomas Cayton, as President of T. Cayton Enterprises, Inc. filed a prospectus for the park with Petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes. The filing statement provided that 49 lots would be offered for rent, and that none of the lots were occupied. The $10.00 per lot filing fee ($490.00) was paid. The filing was rejected as the form was deficient. Between the end of June 1986, and August 26, 1987, the date of the approval letter, eight versions of the prospectus were filed by the park owner and were reviewed by staff of the division. After each review, the owner was sent a letter outlining the deficiencies. At one point, sometime around June 1987, Mr. and Mrs. Cayton travelled to Tallahassee to meet with Selena Einwechter, the Supervisor of the Examination Section in the agency's Bureau of Mobile Homes. The prospectus submittals and correspondence to and from the Bureau comprise 425 pages. Between the filing of the first version of the prospectus and the final approval, approximately 14 months later, twelve lots were rented at Four Oaks Mobile Home Village. The lot numbers and dates of the rentals are: Lot #3 August 1, 1986 Lot #2 August 2, 1986 Lot #44 August 15, 1986 Lot #46 August 30, 1986 Lot #12 November 1, 1986 Lot #4 November 30, 1986 Lot #19 January 15, 1987 Lot #7 March 9, 1987 Lot #6 June 1, 1987 Lot #15 June 1, 1987 Lot #5 June 6, 1987 Lot #9 June 30, 1987 Six of the recitals are evidenced by written leases; the remainder were oral agreements, reflected in the office records of the park. All of the tenants commenced paying rent upon occupancy of the lot and no one was told that the leases were unenforceable. At the beginning of the process, on July 29, 1986, Thomas Cayton was sent a letter from the Bureau of Mobile Homes confirming that his prospectus filing had been received and was being examined. The bottom of the letter includes this statement, clearly displayed: NOTE: Section 723.011, Florida Statutes, and Rule 7D-31.01, Florida Administrative Code, requires the delivery of a prospectus which has been deemed adequate by the Division prior to entering into enforceable rental agreements or renewal of existing rental agreements. Renewals of existing rental agreements or entering into new rental agreements without delivery of a prospectus which has been deemed adequate will constitute a violation of the Florida Mobile Home Act. (Petitioner's Exhibit #1, composite) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes. Subsection 723.005(d)1., F.S. authorizes the Division of Florida Land Sales, Condominiums and Mobile Homes to impose a civil penalty not to exceed five thousand dollars ($5,000) against a mobile home park owner for each separate violation of Chapter 723, F.S. or regulation promulgated pursuant thereto. The statute and rule allegedly violated by Respondent provides as follows: 723.011 Disclosure prior to rental of a mobile home lot; prospectus, filing, approval.-- (1)(a) In a mobile home park containing 26 or more lots, the park owner shall file a prospectus with the diversion. Prior to entering into an enforceable rental agreement for a mobile home lot, the park owner shall deliver to the home owner a prospectus approved by the division. This subsection shall not be construed to invalidate those lot rental agreements for which an approved prospectus was required to be delivered and which was delivered on or before July 1, 1986, if the mobile home park owner had: Filed a prospectus with the division prior to entering into the lot rental agreement; Made a good faith effort to correct deficiencies cited by the division by responding within the time limit set by the division, if one was set; and Delivered the approved prospectus to the mobile home owner within 45 days of approval by the division. This paragraph shall not preclude the finding that a lot rental agreement is invalid on other grounds and shall not be construed to limit any rights of a mobile home-owner from seeking any remedies allowed by this chapter, including a determination that the lot rental agreement or any part thereof is unreasonable or unconscionable. (emphasis added) * * * 7D-31.001 Prospectus and Rental Agreement. * * * (13) The park owner shall deliver the prospectus to existing tenants prior to the renewal of their rental agreements or prior to entering into a new rental agreement. Once a tenant has been given a prospectus, the park owner shall not be required to provide another prospectus but shall provide amendments, as described in Rule 7D-30.004 and this rule. Because Four Oaks' prospectus was not approved until the end of August 1987, the 12 rental agreements entered between August 1, 1986 and June 30, 1987, violated the above provisions. Respondent claims that he thought that as long as the prospectus had been filed, he could enter into rental agreements. This would have been true under the original version of the Florida Mobile Home Act, passed by the Legislature in 1984. The relevant provision of that act is found in Section 720.302(1), F.S. (1984) as follows: Every mobile home park owner of a park which contains 26 or more lots shall file a prospectus or offering circular with the division prior to entering into an enforceable rental agreement. Chapter 84-80, Laws of Florida, Part III) This section took effect on January 1, 1985, for parks with more than 100 lots, and on July 1, 1985 for parks with less than 100 lots. (Chapter 84-80, Laws of Florida) The current version, reflected in Section 723.011, F.S., cited above, took effect on July 1, 1986. (Chapter 86-162, Laws of Florida) Respondent cannot avail himself of the "grand-father" provision of Section 723.011, since his rental agreements and prospectus approval occurred after July 1st. Further, the explicit language of the note on the July 29, 1986, letter should have put him on notice of the new requirements of the law. There are no guidelines for the imposition of a penalty, other than the $5,000.00 maximum per violation found in Section 723.006(5)(d)1. F.S. No evidence was presented as to prior violations by this Respondent. The extensive file evidences a good faith attempt to comply with a law that was still relatively new.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That Respondent be found guilty of violation of Section 723.011(1)(a), F.S. (1986), as charged, and that a civil penalty of $100.00 per violation be imposed, for a total of $1,200.00. DONE and RECOMMENDED this 13th day of September, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 1988. COPIES FURNISHED: Richard Coates, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas Cayton, Registered Agent 2475 Cheney Highway Titusville, Florida 3270 Debra Roberts, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Bell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue The issues for consideration in this case concern the petition and challenge to the validity of Rule 7D-32.001(4); Rule 7D-32.003 and Rules 7D- 32.004(1) and (2), Florida Administrative Code. The basis for the challenge is premised upon an alleged vagueness, inadequacy in the establishment of standards for agency decisions, the vesting of unbridled discretion in the agency and the contention that the rules are arbitrary and capricious.
Findings Of Fact Petitioner is the owner of Lake Waldena Resort, a mobile home park located in Marion County, Florida. That park is regulated under the provisions of Chapter 723, Florida Statutes. Petitioner is a mobile home park owner within the definition set out in Section 723.003(7), Florida Statutes. In addition, Petitioner is presently charged, through a notice to show cause/administrative complaint, with violating Section 723.037(3), Florida Statutes and Rule 7D- 32.004(1), Florida Administrative Code, by his alleged refusal to meet with a designated homeowners' committee within 30 days of the giving of notice of a proposed increase of lot rental. That disciplinary case was heard on the same date as the present case and is awaiting disposition through a recommended order. If Petitioner is found to have violated provisions within Chapter 723, Florida Statutes and Chapter 7D-32, Florida Administrative Code, he may be subjected to a civil penalty or have other administrative sanctions imposed. The rules that are under challenge are related to the formation of the homeowners committee; the activities of that committee in ascertaining the basis for the park owners' reason for a lot rental increase; the obligation of the park owner to meet with the committee and the opportunity of the park owner to request certification of the committee's selection to participate in the meeting envisioned by Section 737.0037(3), Florida statues. Respondent by the authority set forth in Section 732.006(6), Florida Statutes, is authorized to promulgate rules which it deems to be necessary to implement, enforce, and interpret the provisions of Chapter 723, Florida Statutes. In accordance with that authority and the authority set forth in Section 723.037, Florida Statutes, it enacted the rules which are the subject of this dispute. Intervenor is a Florida non-profit corporation which represents over 150,000 mobile home owners and tenants in Florida and has as its purpose the representation of those mobile home owners in various activities, to include legal issues. The Petitioner and Respondent and the mobile home owners whom the Intervenor represents are substantially affected by the decision concerning the validity of the aforementioned rules.
The Issue The issue to be determined is whether Respondent, Colony Park Mobile Home Village, Inc., a Florida corporation, engaged in prohibited conduct against Petitioner, Nidia Cruz, by discriminating against her based on her national origin in the terms and conditions, privileges, or provision of services or facilities in the sale or rental of real property in violation of Section 760.23, Florida Statutes.
Findings Of Fact Petitioner was, at all times relevant to this proceeding, a resident at the Colony Park Mobile Home Village in Merritt Island, Florida. This property is owned and managed by Respondent, Colony Park Mobile Home Village, Inc. Petitioner is a Hispanic female. Petitioner claims Respondent discriminated against her based on her national origin as follows: attempted to evict her from the mobile home park without going to court, she was harassed by employee(s) of Respondent, and she was denied the right to rent a mobile home. Petitioner leases her mobile home from its owner, Tabitha Belcher; Ms. Belcher leases the mobile home lot from Respondent and subleases the lot to Petitioner. Petitioner testified to various complaints against her neighbors in the Colony Park Mobile Home Village based on their conduct which she considered inappropriate. No credible evidence was presented that Respondent was in any way responsible for or connected with the various complaints that Petitioner had against her neighbors or that Respondent failed to exercise reasonable management and control of the Colony Park Mobile Home Village. Approximately 100 families reside in the Colony Park Mobile Home Village. The residents of the Colony Park Mobile Home Village generally reflect the ethnic make-up of Brevard County, Florida, although the resident census may have more racial and ethnic minorities than is typically found in the community. Irene Rivera and Mercie Verduzco testified. Each of these witnesses is of Hispanic descent. Each resided in the Colony Park Mobile Home Village during the time of Petitioner’s complaints, and each has at all times been treated fairly, respectfully and with kindness by all employees and management of the Colony Park Mobile Home Village. Minority residents of the Colony Park Mobile Home Village, including those of Hispanic descent, are dealt with in a courteous and respectful manner; no evidence of discriminatory treatment of Hispanic or other minorities was presented. No credible evidence was presented of the discrimination alleged in the Petition for Relief.
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 Petitioner’s Petition for Relief and the allegations of discrimination contained therein. DONE AND ENTERED this 9th day of September, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Nidia Cruz 6854 Marilane Street Merritt Island, Florida 32953 Robert J. Warren, Esquire Robert J. Warren, P.A. 703 North Main Street, Suite C Gainesville, Florida 32601 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 Whether the Department of Revenue (DOR) should grant Petitioner's request for a refund of the $1,433.40 in sales tax Petitioner paid in connection with his purchase of a mobile home from Dwight Hatfield Manufactured Homes, Inc.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: In October 2002, Petitioner purchased a lot in a mobile home park in Davie, Florida (Petitioner's Property). There was a "worn out" mobile home on the property that Petitioner had "demolished and removed." On May 30, 2003, Petitioner entered into a Purchase Agreement with Dwight Hatfield Manufactured Homes, Inc., wherein he agreed to purchase, for $23,890.00, a 2003 Homes of Merit mobile home that was not yet built (Purchased Mobile Home). The Purchase Agreement provided that the Purchased Mobile Home was to be "drop shipped" directly from the manufacturer's facility to Petitioner's Property, where it would be "met by [Petitioner]." The Purchase Agreement further provided, in pertinent part, as follows with respect the passing of title of the Purchased Mobile Home: Title to said equipment shall remain in the Seller until the agreed purchase price therefor is paid in full . . . ; thereupon title to the within described unit passes to the buyer as of the date of . . . full cash payment . . . . Petitioner paid the full purchase price of the Purchased Mobile Home upon execution of the Purchase Agreement, but no sales tax was collected from him at that time. On July 13, 2003, the Purchased Mobile Home was delivered to Petitioner's Property, where it has remained. Thereafter, Larry Douglas, Sr., of Dwight Hatfield Manufactured Homes sent the following letter, dated September 11, 2003, to Petitioner: You have recently purchased a new Homes of Merit manufactured home from Dwight Hatfield Manufactured Homes, Inc. You have not provided us with proof that you are exempt [from] sales tax. Therefore, you owe Dwight Hatfield Manufactured Homes, Inc., the amount of $1,433.40 for the sales tax on your home. Your home will not be registered in your name until the balance is paid in full. On or about September 15, 2003, Petitioner filed with the Broward County Property Appraiser an "application for the issuance an 'RP' License Plate to identify [the Purchased Mobile Home] as real property." In his application, Petitioner represented that the Purchased Mobile Home had been "permanently affixed on January 1 of the current year, [was] now permanently affixed, and it [was his] intention that [it] remain permanently affixed," to Petitioner's Property. At no time prior to the filing of the application had the Purchased Mobile Home been classified as real property. The Broward County Property Appraiser, on September 15, 2003, issued a certificate stating that the Purchased Mobile Home was "included in an assessment for ad valorem taxation of [Petitioner's Property]." On September 18, 2003, Petitioner reluctantly paid the $1,433.40 that Dwight Hatfield Manufactured Homes claimed was due "for the sales tax on [the Purchased Mobile Home]." On September 19, 2003, the Department of Highway Safety and Motor Vehicles issued a certificate of title for the Purchased Mobile Home in Petitioner's name. In March 2006, Petitioner applied to DOR for a refund of the $1,433.40 he had paid to Dwight Hatfield Manufactured Homes in sales tax for the Purchased Mobile Home. On July 27, 2006, DOR issued its Notice of Decision of Refund Denial.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a Final Order denying Petitioner's refund request. DONE AND ENTERED this 3rd day of April, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 2007.
The Issue The issues in this case concern the attempt by Petitioner to collect $11,684.62 in attorneys fees and costs associated with the defense of the case of State of Florida, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, Petitioner, vs. Donald L. Hilgeman and Marilyn Hilgeman, d/b/a DLH Enterprises; and Pat Montgomery, as park owners of Lake Waldena Resort, Respondents, DOAH Case No. 89-4100, and $931.50 in attorneys fees and costs attributable to the pursuit of the present case to collect those attorneys fees and costs attributable to the defense of the administrative prosecution. See Section 57.111, Florida Statutes.
Findings Of Fact At all times relevant to this inquiry Petitioner was a mobile home park owner as defined by Section 723.003(7), Florida Statutes (1987). Petitioner, Marilyn Hilgeman, his former wife, and Pat Montgomery had administrative charges brought against them through a notice to show cause. In that notice to show cause those three individuals were identified as park owners of Lake Waldena Resort in Silver Springs, Florida. In particular the present Respondent charged the Petitioner and the others with violating Section 723.037(3), Florida Statutes (1987) for having refused to meet with a designated mobile home owners committee within 30 days of giving notice of a lot rent increase and having been requested to conduct that meeting for purpose of discussing the reasons for the increase in the lot rental amount. The accused sought a formal hearing as envisioned by Section 120.57(1), Florida Statutes. That hearing was conducted by the undersigned and a recommended order entered on April 18, 1990, in the aforementioned DOAH Case No. 89-4100. For reasons set out in the conclusions of law found within the recommended order, the suggested disposition of that case was one which found the several Petitioners innocent of any wrong doing and called for the dismissal of the administrative prosecution. On July 25, 1990 the prosecuting agency entered its final order in DOAH Case No. 89-4100. It accepted the fact-finding in the recommended order; however, it modified the conclusions of law and recommended disposition. Unlike the recommended order, the final order in its conclusions of law specifically found that the present Petitioner and the others accused had violated Section 723.037(3), Florida Statutes, wherein at page 17 it was held "Therefore, it is concluded Respondent violated Sections 723.037(3), Florida Statutes." The conclusions of law in the final order went on to say that in mitigation of the violation the prosecuting agency had considered the apparent confusion of those Respondents regarding the affect of Rule 7D-32.004(2), Florida Administrative Code, as it might influence the actions of the accused and in particular, the present Petitioner. In the final order concerning the mitigating affects of Rule 7D-32.004(2), Florida Administrative Code, it was decided that notwithstanding any misunderstanding the accused had as to the significance of the Rule it could not alter the statutory requirements of having a meeting within 30 days of the notice of lot rental increase as described in Section 723.037(3), Florida Administrative Code (1987). The language within Rule 7D-32.004(2), Florida Administrative Code, stated: If requested to do so by the park owner or subdivision developer, the committee shall certify that it has been selected as described in Rule 7D-32.003, Florida Admin- istrative Code. This certification shall include a certificate of all members of the committee attesting to its proper formation under the statute and these rules. For reasons expressed in the recommended order that rule was seen as tolling the 30-day requirement for meeting expressed in Section 723.037(3), Florida Statutes (1987) on the facts found in both the recommended and final orders. This was based upon a recognition that the present Petitioner had employed the rule in an attempt to gain a certification from the committee of mobile home owners prior to the conduct of a meeting to discuss the increase in lot rentals. Again, this belief that the rule tolled the requirement for conducting the meeting within 30 days of the notice of lot rental increase expressed in the recommended order was rejected in the final order. The final order controls absent further relief by resort to the appellate court process. In describing the reasons why the prosecution maintained that the rule could not alter the statutory requirement for holding a meeting within 30 days, the final order states that there are policy considerations that make it important for the committee and the park owner to meet within 30 days and those reasons concern the fact that the rent increase becomes effective within 90 days over the notice, the informational value of having the reasons explained for the lot increase as a prelude to any request to having a dispute about lot rental increases submitted to mediation within 30 days following the scheduled meeting. The final order goes on to describe, through its conclusions of law, that the meeting to discuss lot rental increase was not held until November 14, 1989 over a year after the notice of lot rental increase. That statement comes immediately before the conclusion of law that the present Petitioner had violated Section 723.037(3), Florida Statutes. In the conclusions of law set out in the final order the prosecuting agency in its paragraph describing the mitigating circumstances acknowledges the possible confusion on the part of the accused as well as the mobile home owners committee when it describes, as did the recommended order, the filing of a complaint by the committee as a means of ostensibly preserving the right to have the meeting envisioned by Section 723.037(3), Florida Statutes (1987), when taken against the background of the opportunity to have a credential check of mobile home owners committee members as envisioned by Rule 7D-32.004(2), Florida Administrative Code. This refers to the issue of whether a meeting could be held after 30 days from the notice of intended lot rental increase absent such a complaint. In the statement on mitigation the final order recognizes that the administrative prosecution was penal in nature and that Section 723.037(3), Florida Statutes (1987) and Rule 7D-32.004(2), Florida Administrative Code needed to be read in context and should be strictly construed with ambiguities favoring the accused. The final order cites to State v. Pattishall, 99 Fla. 296, 126 So. 147 (1930) and Davis v. Dept. of Professional Regulation, 457 So.2d 1074 (Fla. 1DCA 1984). The treatment of those cases and the resolution of the dispute through final order is one which finds the accused in violation of Section 723.037(3), Florida Statutes (1987), but mitigates the disposition in the way of the penalty based upon the reading given Pattishall and Davis, supra. That factual impression is given when the order in disposition is examined wherein it is stated through the final order, "Based upon the consideration of the facts found, the conclusions of law reached, and the mitigation evidence, it is ordered that the notice to show cause is hereby dismissed." On August 22, 1990, the present Petitioner noticed an appeal of the final order in the administrative prosecution but later abandoned that appeal before the court had the opportunity to speak to its merits. On October 22, 1990, the present Petitioner filed a petition for collection of attorneys fees and costs spoken to in the statement of issues. The petition for attorneys fees and costs were subjected to a motion to dismiss based upon a claim of untimeliness and that motion was denied by order of December 10, 1990. The present Respondent requested an evidentiary hearing as contemplated Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code, and the evidentiary hearing was conducted on the date described before. When the present Petitioner abandoned his appeal to the District Court, he necessarily was placed in the position of arguing that the final order drawn by the prosecuting agency constituted the basis for the claim that he was a small business party who had prevailed in the dispute related to DOAH Case No. 89-4100. See Section 57.111(3)(c)1, Florida Statutes. Contrary to his assertion the final order as described in these facts did not favor the present Petitioner. Although the prosecuting agency did not choose to impose a penalty against the present Petitioner based upon its assessment of matters in mitigation and dismissed the case without exacting a penalty, it had found the present Petitioner in violation of a substantiative provision of law, i.e. Section 723.037(3), Florida Statutes (1987). Thus, the disposition cannot be said to favor the present Petitioner. Having decided this mixed question of fact and law against the present Petitioner, it is not necessary to make findings of fact concerning whether the present Petitioner is a small business party as defined at Section 57.111(3)(d), Florida Statutes and whether the present Respondent was substantially justified in this administrative prosecution related to law and fact as contemplated by Sections 57.111(3)(e) and (4)(a), Florida Statutes, or to examine whether special circumstances exist that would make the award of attorneys fees and costs unjust.
The Issue 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 Chapter 723, Florida Statutes, the Florida Mobile Home Act, became law on June 4, 1984, created by Chapter 84-80, Laws of Florida. Chapter 723 expressly preempts to the state all regulation and control of mobile home lot rents in mobile home parks and all those matters relating to the landlord-tenant relationship treated by or falling within the purview of the chapter. The statute regulates any residential tenancy in which a mobile home is placed upon a rented or leased lot in a mobile home park in which 10 or more lots are offered for rent or lease. The statute requires that every owner of a mobile home park containing 26 or more lots shall file a prospectus with the Respondent prior to entering into an enforceable rental agreement. Respondent has the power and duty to enforce and ensure compliance with the provisions of the chapter and rules promulgated pursuant to the chapter relating to the rental of mobile home lots. Respondent is further authorized to promulgate rules, pursuant to Chapter 120, which are necessary to implement, enforce and interpret the chapter. The proposed rule at issue in this proceeding was first published in the Florida Administrative Weekly, Volume 14, Number 7, February 19, 1988. The parties have requested official recognition of the proposed rule and its date of publication, and that request is hereby granted. Proposed rule 7D-31.002, Florida Administrative Code, provides: 7D-31.002 Fees, 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 Section 723.042, Florida Statutes and 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, 1976. Petitioner is a not-for-profit incorporated association, whose members include approximately 1,000 mobile home park owners and operators who own and operate mobile home parks in the State of Florida. Petitioner's members each lease at least 25 or more lots for the placement of mobile homes within each of their mobile home parks. Each of the members is therefore required to file and receive approval of a prospectus from Respondent prior to entering into an enforceable rental agreement for the lease of lots in those mobile home parks. Tom Coon, owner and operator of Hillsboro Mobile Home Park, located at Route 3, Box 801, Pompano Beach, Florida 33067, has "passed through" and charged for the hook-up fees and installation of sewer and water lines for hook-up to the Coconut Creek City Utility System. The cost to Mr. Coon for hook-up was $116,808 which includes fees which were not disclosed prior to occupancy and permanent improvements which were mandated as a result of actions by state and local government and the utility company. David Zell, owner of Colony Mobile Home Park, 2301 North 29th Avenue, Hollywood, Florida 33020, has "passed on" real estate tax increases in 1987 and 1988, as a result of entering into a three year negotiated agreement with the home owners negotiating committee, pursuant to mediation in 1986. The agreement allows for pass-on of increases in taxes and limits rent increases during that three year term. The total cost of pass-on charges for ad valorem property tax increases was $6,417.62 over that two year period. There is at least a $3,337.62 ad valorem property tax increase which will be passed-on in 1989. This pass-on charge for real estate taxes would be prohibited in that the real estate taxes were not disclosed to the residents prior to occupancy, nor were they collected prior to July 1, 1976. Charles Aultman is the owner and operator of Plantation Manor Mobile Home Park, 3032 South U.S. Route 1, Fort Pierce, Florida 33450. Aultman passed-on ad valorem property tax and utility increases for the years 1984, 1985, 1986, 1987 and 1988 for all residents of the park. The total amount passed-on was $33,872.57. This charge would be prohibited as not disclosed prior to occupancy or charged as a matter of custom as defined in the proposed rule. Jim Dale, owner of Rexmere Village Mobile Home Park, 11300 Rexmere Boulevard, Fort Lauderdale, Florida 33325-4099, has passed-on increases to ad valorem property taxes for the mobile home park to each of his residents in 1987 and 1988. The approximate cost of the pass-ons at this point is $120,000 per year. The pass-on charge for increased ad valorem property taxes is based upon an agreement entered into between the mobile home owners and the park owner that limits the increases in lot rental amount in the park, but allows for pass-ons of increased ad valorem property taxes. In addition, the mobile home park prospectus includes a charge for parking which limits the on-street parking in the mobile home park. This charge was not collected prior to July 1, 1976, and was not disclosed prior to occupancy, but has been collected since the prospectus was delivered in the mobile home park. There is a collection rate of approximately $8,000 per year parking charges in the mobile home park. Pauline Mantwil is the owner of Sunshine Mobile Manor, which had its sewage treatment plant condemned by the Department of Environmental Regulation. The park was required to tie into the Martin County Sewage Treatment System (Dixie Plant). The cost to each mobile home owner was allocated at $730 per space. The park owner passed-through this cost. The cost was disclosed in the prospectus, but was not disclosed prior to occupancy in the mobile home park. The total cost for impact fees and other costs associated with tie-in to the system is approximately $150,000. This pass-on of tie-in and other costs to hook up to the sewage treatment plant would be prohibited under the proposed rule because it was not disclosed prior to occupancy and because, in part, the costs include some permanent improvements to the sewage treatment system within the park. Mike Pond is the owner of Palm Shores Mobile Village, Inc., a mobile home park located at Number 1, East Lane, Lake Alfred, Florida 33850. The mobile home park consists of 97 lots. The park owner has no records of the fees and charges which were collected prior to July 1, 1976, and there was no disclosure of fees and charges prior to occupancy to the residents who moved in prior to the time the prospectus was approved and delivered. The prospectus was approved August 21, 1985, and delivered shortly thereafter. The mobile home park was mandated to enlarge its sewage treatment plant by the Department of Environmental Regulation. The park passed-through the costs of the sewage treatment plant enlargement to each resident within the park, at a cost of $218.25 per lot. In addition, there is an ad valorem property fire tax which is passed-on to each resident of $34.05 per lot. The fire tax is included within the November 1 tax bill and is paid March 31 of the next year. Neither the charge for sewer enlargement or the fire tax was disclosed prior to occupancy. The park owner has no record as to whether these types of fees and charges were collected prior to July 1, 1976. Clayton, Williams and Sherwood is a partnership doing business in the State of Florida, which operates the Coral Lakes Mobile Home Park located in Broward County, Florida. Clayton, Williams and Sherwood has passed-on increases in ad valorem property taxes in 1986 and 1987 to each resident within the mobile home park. The total pass-on charges for those two years is $15,600. There are 118 lots in the park that were occupied by residents prior to June 4, 1984. Each of these lots was charged a pass-on charge for taxes. Clayton, Williams and Sherwood is not aware of whether ad valorem tax increases were passed-on to residents prior to July 1, 1976, nor are they aware as to what disclosures were made to the residents in the mobile home park prior to occupancy. Clayton, Williams and Sherwood is the park owner of Shadow Hills Mobile Home Park in Orange County, Florida. Orange County has mandated that the mobile home park hook-up to the county sewer system. The cost of hook-up is $829,000 for hook-up fees, $50,000 to install a lift station for the purpose of complying with regulations for hook-up to the county sewage system, and $50,000 to eliminate percolation ponds which are currently on site. The owner of the mobile home park intends to pass-through the cost of the hook-up to the Orange County sewer system by amortizing that cost over a fourteen-year period. The mobile home park prospectus provides that the mobile home park may pass-through costs incurred due to the actions of state and local governments or utility companies. The park owner does not know whether these charges were collected prior to July 1, 1976. Clayton, Williams and Sherwood is also the park owner of Lakewood Mobile Home Park in Indian River County, Florida. Indian River County has mandated that Lakewood Mobile Home Park hook-up to the county sewer system at a cost of $484,000 to the mobile home park. This $484,000 includes hook-up fees and approximately $50,000 for a lift station to be installed as part of the hook-up. The prospectus for Lakewood Mobile Home Park provides that the park owner may pass-through costs incurred due to actions by state and local governments or utility companies as a separate charge. However, the park owner does not know whether a pass-through charge was disclosed to the residents of the park prior to occupancy nor whether such charge was collected prior to July 1, 1976. Charles Metcalf is the owner of Woodall's Trailer Park, located at 2121 New Tampa Highway, Lakeland, Florida 33801. Woodall's Trailer Park was required by the City of Lakeland to upgrade the electric utility system in the park. The approximate cost of this upgrade, which is presently being installed, is $35,000. The park owner operated the mobile home park based upon oral leases prior to the submission and approval of the prospectus of the mobile home park. The prospectus was approved June 4, 1985, by Respondent. The mobile home park owner intends to pass-through the cost of upgrading the electrical utility system to 253 mobile home lots located in the park. Those 253 mobile home lots are occupied by residents who were residents of the park as of June 4, 1984. The park owner did not disclose a pass-through or pass-on charge to any of those residents prior to occupancy, nor has a pass-through or pass-on charge been collected in the park prior to July 1, 1976. A pass-through charge is allowed in the mobile home park prospectus for costs incurred as the result of actions of state or local governments or utility companies. Jack Zieaer is the manager of Gulfstream Harbor, a 383 unit mobile home park, which began development in 1980. Approximately 235 lots were occupied on June 4, 1984 and approximately 260 lots were occupied on December 31, 1984. The prospectus for the mobile home park, which was filed on December 31, 1984, and distributed to existing tenants in the park, authorizes the imposition of separate charges on the home owners in addition to the basic lot rental amount, which separate charges were not disclosed in advance of occupancy. One hundred and twenty-three residents of the park received advance disclosure of all the charges set forth in the prospectus prior to occupancy. The tenancies of those 123 residents began after June 4, 1984. James F. Gould is the resident manager of Mobile Home Country Club, which contains 269 lots and which has been in operation for approximately 25 years. Twenty to twenty-five residents apply for residency in the park each year. The park imposes an application fee of $50 to screen the residents. Approximately $32,000 per year is collected for separate water and sewer charges plus an administrative fee. The separate charge for water was disclosed to people when they moved into the park. William Hart is the owner and operator of seven mobile home parks, including Havenwood Adult Mobile Home Community. In 1981, 1986 and 1987, Hart passed-through to the residents at Havenwood tax increases in addition to the basic lot rental amount. All of Hart's prospectuses authorize the pass-through of charges billed by state or local governments or utility companies and provide for a $50 investigation fee to investigate proposed residents. The total investigative fees collected from all seven of Hart's parks in 1987 was approximately $9,400. The taxes passed-on in Havenwood in 1981, 1986 and 1987 total approximately $850, $1,300, and $2,100 respectively. DeAnza Corporation owns eight mobile home parks in Florida with about 5,300 spaces, including Mobil Americana Mobile Home Park in St. Petersburg, Florida. Mobil Americana Mobile Home Park was in operation prior to June 4, 1984, and was developed beginning about 22-23 years ago. DeAnza purchased Mobil Americana in 1976, at which time there was a lease in place in the park. There were 758 residents in the park at the time it was purchased of whom 275 continue in occupancy today. DeAnza charges an application fee in all of its parks of $50, except for one park which charges an application fee of $20. Five hundred and forty-eight of the 758 lots presently occupied at Mobil Americana are occupied by residents who moved in before June 4, 1984. The City of St. Petersburg has instructed DeAnza to install 11 new fire hydrants in Mobil Americana, and DeAnza has responded by proposing to install two. An engineer has estimated that it would cost approximately one-half million dollars to install 11 hydrants in the park and that it would cost approximately $68,500 to install only two. DeAnza and the City are continuing to negotiate concerning the fire hydrants. The park intends to pass-through the costs of any fire hydrants to the residents. Rents are increased in the park yearly, and every two years the rental level is set by the market. The park owner determines the market. A substantial number of Petitioner's members will experience an adverse and/or substantial economic impact as a result of the proposed rule, if adopted. The past practice of collecting pass-through and pass-on charges by the park owners will be illegal under the proposed rule. In addition, the past collections of fees, charges and assessments which were not disclosed prior to occupancy or collected prior to July 1, 1976, will be illegal and subject to Respondent's enforcement jurisdiction. Those illegal charges may be required to be paid back to the homeowners. As such, there is a substantial economic impact from the proposed rule. Petitioner has standing to challenge proposed rule 7D-31.002, pursuant to sections 120.54(4) and 120.57, Florida Statutes. Petitioner's Executive Director conducted a partial survey of Petitioner's members. Over 5 percent of the surveyed parks have already charged pass-through charges for governmentally mandated capital improvements to their residents, including residents of the parks prior to June 4, 1984, and a substantial number of others intend to in the future. The term "entrance fee," as that term is commonly understood in the mobile home industry, is a fee charged for moving a mobile home onto a vacant mobile home lot in a mobile home park, whether that is done by a dealer or a home owner. The term "application fee" as that term is commonly understood in the mobile home industry, is a charge for recouping the costs associated with credit checks, screening, and criminal background checks in qualifying a potential resident of the park. It applies to someone who purchases an existing home in the park. The Respondent acknowledges that there is an economic impact from the statute as interpreted by the proposed rule and that the economic impact of the proposed rule on regulated persons was pointed out to the Respondent during workshops on the proposed rule. However, the Respondent did not conduct any investigation of the economic impact of the proposed rule. No economist conducted the economic impact analysis; rather, the economic impact statement supporting the proposed rule was prepared by Respondent's legal section. No consideration was given by Respondent to the amount of monies involved in pass- through charges. Further, no review was made by Respondent of the prospectuses contained in its own files in order to determine the kind or extent of economic impact on the persons regulated by Respondent, i.e., the park owners. The parties have stipulated that there is no provision in chapter 723, Florida Statutes, which expressly provides that all fees, charges and assessments have to be fully disclosed in writing. Pass-through charges or pass-on charges are not prohibited by chapter 723, Florida Statutes; rather, that chapter specifically defines pass-through charges and even requires that all prospectuses contain a description of the manner in which pass-through charges will be assessed. It is the common understanding in the mobile home industry that park owners cannot require mobile home owners to install permanent improvements on their individual lots, such as driveways, etc. However, mobile home owners can be contractually obligated to pay the cost of installing capital improvements required by local governments or utility companies--pass-through charges by statutory definition.
The Issue Whether Respondent should be granted licenses to operate two residential group homes for developmentally disabled individuals.
Findings Of Fact On October 22, 1999, the Department issued to Community Opportunities, Inc., a temporary license to operate Skyline ("Skyline" or "Skyline Group Home"), a residential group home for developmentally disabled clients in Pasco County, Florida, which is located in the Department's Suncoast Region. Four months later, in February 2000, the Department issued a standard license to Community Opportunities, Inc. From February 2000 through early August 2002, Skyline Group Home operated under that standard license. In May 2002, the Department investigated an abuse complaint concerning a 21-year-old male resident at the Skyline Group Home who was diagnosed as mentally retarded with Intermittent Explosive Disorder. His past history included incarceration for attempting to stab his father and, while at Skyline, 14 behavior incidents ranging from exposing himself to violent behavior towards staff and other residents at the group home. On or about May 3, 2000, this resident, while a passenger in a van for the group home, took the vehicle's keys from the seat where they were left by a staff person, started the van, ran over the staff person twice, and ran the van into a house and a telephone pole, before being stopped. Following the Department's investigation, the report was classified as verified for inadequate supervision, caretaker present. The investigation referred to in paragraph 2 also found that the Skyline Group Home was inadequately staffed, with employees working for weeks at a time with no days off. At the time of the investigation, the van driver, who was injured in the incident, described in paragraph 2 had not had a day off for almost two months prior to that incident. On August 4, 2000, the Department met with representatives of Community Opportunities, Inc., due to safety issues with the operation of the group home. Following this meeting, on or about August 11, 2000, Skyline's licensure status was changed from standard to conditional. At that time, the Department requested that the facility submit plans of corrective action. On August 28, 2000, the Department investigated an abuse complaint concerning a mentally retarded, female resident of the Skyline Group Home. This resident was found walking on a gravel road with no shoes and dressed only in a nightgown. It was estimated that it would have taken 8 to 10 minutes to walk to the location where the resident was found. This elopement from the group home occurred 3 times in a three-hour period. As a result of the investigation, it was also learned that Skyline Group Home staff members were dropping off residents at school before teachers arrived, thereby leaving the developmentally disabled clients unattended. In addition, the investigation revealed that staff at the Skyline Group Home could not be reached during the day when emergencies or problems with medications arose, staff members failed to document significant events as required, and faxed requests for medication from the school to the group home went unanswered. This report was classified as verified for inadequate supervision and medical neglect. The investigation found systemic problems associated with the group home. Although the Department gave Community Opportunities, Inc., time to correct the problems, the problems were never corrected. As a result of those failed attempts, the Department closed the Skyline Group Home on September 30, 2000. On September 21, 2000, the Department sent a letter to Ernie M. Beal, Jr., Executive Director of Community Opportunities, Inc., notifying him that the license for the Skyline Group Home would not be renewed. Community Opportunities, Inc., did not challenge the Department's proposed action and two months later, the Department issued a Final Order affirming the denial of Community Opportunities, Inc.'s, relicensure. The reasons for nonrenewal of Skyline's license included the facility's failure to maintain adequate staff at the group home; failure to take reasonable precautions to assure that the residents were not harming themselves or others; incidents involving injury to staff; inadequate corrective action plans to address deficiencies; and numerous violations of the licensure standards under Rule Chapter 65B-6, Florida Administrative Code. On or about September 12, 2002, the Department received licensure applications for two developmentally group homes, Skyline Group Home in Dade City, Florida, and Harvill Group Home located in Lithia, Florida, both of which were located in the Department's Suncoast Region. The applications were submitted by Your Friends & Neighbors of Florida, Inc., and signed by Pamela Beal, Chief Executive Officer ("CEO"). Ernest Beal, Jr., Chief Operating Officer, was listed on both of the applications as the person who would operate and supervise the facilities. Your Friends & Neighbors of Florida, Inc. is a non- profit corporation. Ernest M. Beal, Jr., is its president and Pamela Beal is its vice-president, secretary, treasurer, and CEO. The Board of Directors of Your Friends & Neighbors of Florida, Inc., is comprised of Pamela Beal and Ernest Beal, Jr., and Felicity Lennox, who was also on the Board of Directors of Communities Opportunities, Inc. Ernest M. Beal, Jr., is the president and CEO of PEJUS, Inc., which on January 1, 2000, purchased the assets of Community Opportunities, Inc. PEJUS, Inc., then conveyed its interest in the former Community Opportunities, Inc. to Your Friends & Neighbors, Inc. Qualification documents for Your Friends & Neighbors of Florida, Inc., were filed with the Secretary of State on or about January 29, 2001, and the corporation was authorized to transact business in Florida on that date. Petitioner's, Your Friends & Neighbors of Florida, Inc.'s, corporate office is at the same address as Community Opportunities, Inc., located at 1515 Magnavox Way, Fort Wayne, Indiana. Moreover, when calling Your Friends & Neighbors of Florida, Inc.'s phone number, one is greeted by a recorded message which states the names Your Friends & Neighbors, Inc., Community Opportunities. Inc., and PEJUS, Inc. Your Friends & Neighbors, Inc., is an Indiana corporation founded in 1985 by Ethyl Beal and Pamela Beal. Community Opportunities, Inc., is an Indiana corporation owned by Ernest Beal, Jr., which owned the Skyline Group Home in September 2000, when the license for Skyline was not renewed. The two applications for licensure submitted by Your Friends & Neighbors of Florida, Inc., on September 12, 2002, were almost identical to the application for the Skyline Group Home submitted by Community Opportunities, Inc., in July 1999. There were no significant differences in the 1999 application and the 2002 applications. In fact, the services to be provided, the program description, and the staffing pattern were almost identical. Notwithstanding these similarities, the applications submitted in 2002, proposed to serve clients with developmental disabilities more severe than those served at Skyline Group Home pursuant to the 1999 application. By letter dated October 2, 2002, the Department notified Pamela Beal, CEO of Your Friends & Neighbors of Florida, Inc., that the licensure applications had been denied. The notice cited all the reasons the Department did not renew Skyline's license in September 2000. Those reasons included the incident involving the vehicle resulting in injury to staff; neglect of the residents; failure to correct problems through corrective action plans; insufficient staffing ratio; lack of reasonable precautions to ensure residents' safety; failure to ensure timely medical treatment to residents; and failure to properly report injuries. Despite the violations cited in the notice of denial, at the final hearing, the Department clarified that its concern with the subject applications was not with the direct care staff, but with the fact that the proposed model would not meet the needs of the clients with developmental disabilities that Petitioner wanted to serve.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services enter a Final Order confirming the decision not to issue Petitioner's group home licenses for Skyline and Harvill. DONE AND ENTERED this 30th day of April, 2003, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 30th day of April, 2003. COPIES FURNISHED: Pamela J. Beal 1515 Magnavox Way Fort Wayne, Indiana 46804 Ernie Beal, President Your Friends & Neighbors of Florida, Inc. 4505 Club House Drive Marietta, Georgia 30066 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 314 Largo, Florida 33778-1630 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
