The Issue Whether Rules 7D-30.04, 7D-30.06, 7D-31.01(2), 7D-31,01(4), 7D-31.01(5), 7D-31.01(12), 7D-32.01 and 7D-32.02, Florida Administrative Code, constitute an invalid exercise of delegated authority and are arbitrary and capricious?
Findings Of Fact The following findings of fact were stipulated to and are hereby adopted: The following is a Florida non-profit corporation, whose address is 115 N. Calhoun Street, Tallahassee, Florida. The FMHA is organized and maintained for the benefit of its members, which includes approximately 950 mobile home park owners and operators. A substantial portion of these members own or operate parks which contain 10 or more lots and therefore are subject to regulation by the Division of Land Sales, Condominiums and Mobile Homes, Department of Business Regulation. The Division of Land Sales, Condominiums and Mobile Homes, Department of Business Regulation is delegated the authority pursuant to Chapter 723, Florida Statutes, to regulate mobile home parks, including the powers to enforce and ensure compliance with the provisions of the Chapter and rules promulgated pursuant thereto, including the authority to impose a civil penalty against a mobile home park owner for any violation of the Chapter, or a rule or regulation of the Division. Chapter 723, Florida Statutes, was enacted by the Florida Legislature as Chapter 84-80, was signed by the Governor and filed in the office of the Secretary of State on June 4, 1984. Rules 7D-30, 7D-31, and 7D-32, Florida Administrative Code, are rules of the Division of Land Sales, Condominiums and Mobile Homes, Department of Business Regulation, which were properly adopted in accordance with Chapter 120, Florida Statutes. The Petitioner is a trade association the members of which are engaged in business in the mobile home industry in the State of Florida. The Petitioner has members who are mobile home manufacturers, retailers, equipment suppliers and servicers, owners and operators of mobile-home rental parks, developers of mobile home parks and subdivisions, insurance firms and lending institutions. The Petitioner has 1,020 members who develop mobile home parks and subdivisions or are owners and operators of mobile home rental parks. As stipulated to by the parties, approximately 950 of the Petitioner's members are owners and operators of mobile home rental parks. The Petitioner's members are involved in the rental of between 300,000 and 350,000 mobile home spaces. A substantial number of the Petitioner's members are subject to regulation by the Respondent pursuant to Chapter 723, Florida Statutes (1985), the "Florida Mobile Home Act." In July of 1984, subsequent to the effective date of Chapter 723, Florida Statutes (1985), the Bureau of Mobile Homes was created as a part of the Division of Florida Land Sales, Condominiums and Mobile Homes. Dr. Faye Mayberry has been, and continues to be, the Chief of the Bureau of Mobile Homes. Following the enactment of Chapter 723, Florida Statutes (1985), the Bureau of Mobile Homes concluded that there was a need to clarify certain portions of Chapter 723, Florida Statutes (1985), and a need to establish procedures necessary for the filing of prospectuses and other documents. Therefore, the Bureau initiated a process to determine what rules needed to be adopted. The Bureau also received numerous inquiries from mobile home owners and mobile home park owners concerning Chapter 723. The Bureau first looked at Chapter 723 in-house and looked at the nature of inquiries it had received and then drafted a conceptual approach to part of the rules. The conceptual draft, at the invitation of the Bureau, was reviewed by representatives of the Petitioner and the Intervenor. A meeting was held with the Respondent to discuss the conceptual approach. The Respondent left the meeting with the impression that the conceptual approach was not that far off. Following its discussions of the conceptual approach with the Petitioner and Intervenor, the Respondent drafted rules pursuant to Chapter 723. Four workshops, in three locations in Florida, were conducted to receive public input on the draft rules. Advance notice of the workshops was published in the Florida Administrative Weekly. Representatives of the Petitioner had notice of, and participated in, the workshops. Subsequent to the public workshops, in October of 1934, the Respondent published proposed rules under Chapters 7D-30 and 7D-31, in the Florida Administrative Weekly. In November of 1984, the Respondent published proposed rules under Chapter 7D-32. After publication of the proposed rules in the Florida Administrative Weekly, requests for a public hearing were received by the Respondent and public hearings were held. Representatives of the Petitioner attended these hearings and had an opportunity to provide input on the content of the proposed rules. Revisions were made to the proposed rules based upon suggestions from the Joint Administrative Procedures Committee and comments made by the public during the hearings held by the Respondent. The revisions were published in the Florida Administrative Weekly in January of 1985. As revised, the rules contained in Chapters 7D-30 and 7D-31, Florida Administrative Code, became effective on January 10, 1985. The rules contained in Chapter 7D-32. Florida Administrative Code, became effective on February 6, 1085. The Joint Administrative Procedures Committee did not file any challenge to the rules after they became effective. A substantial amount of input and work went into adopting Chapters 7D-30, 7D-31 and 7D-39, Florida Administrative Code. The Petitioner had notice of the promulgation of the rules at issue and has been involved in the development and distribution of information it believed was necessary to assist its members in complying with the requirements of Chapter 723. The Petitioner has distributed memoranda, conducted seminars, distributed prospectuses and communicated with representatives of the Respondent in an effort to assist its members in complying with the requirements of Chapter 723. The Petitioner provided definitions of terms for use in prospectuses and notices required by Chapter 723 and for use in complying with the Respondent's rules. The Petitioner has attempted to assist its members in preparing a prospectus which could be filed with the Respondent and would meet the requirements of Chapter 723. Toward this end, the Petitioner prepared a sample or model prospectus and conducted a seminar on the model prospectus on December 17, 1984. The seminar was conducted in Orlando, Florida, and was attended by over 600 people. In the model prospectus the Petitioner provided three alternative methods of providing for future rental increases to be included in a prospectus. The model prospectus discussed at the December 17, 1984 seminar was for use by those mobile home parks with 100 or more rental spaces. The Petitioner also prepared a model prospectus for mobile home parks with 26 to 99 rental spaces which it distributed in June of 1985. This model prospectus was sent to all members of the Petitioner. A large number of the Petitioner's members used the model prospectus prepared by the Petitioner. Information provided to members by the Petitioner was developed by the Petitioner based in part upon its discussions with the staff of the Respondent. The Petitioner received questions from its members concerning certain aspects of the Respondent's rules and Chapter 723 which the Petitioner attempted to answer. A substantial number of the Petitioner's members advertise their mobile home parks. Mr. Neil Kullman is a member of the Petitioner and is the President of Florida Leisure Communities. Florida Leisure Communities owns and operates 3 mobile home parks in Florida. Florida Leisure Communities waits for the Respondent to approve advertising materials it files with the Respondent because it has decided that it does not want to risk using an advertisement which may be found to be defective by the Respondent. Florida Leisure Communities does not wait for approval of its advertisements by the Respondent because it believes that it is required to do so by the Respondent's rules. Time delays have been experienced in getting advertisements approved. A substantial number of the Petitioner's members have rental agreements in existence at mobile homes parks which have anniversary dates or renewal dates which would allow increases in rent. Most of the rental agreements have renewal dates or anniversary dates of July 1 or January 1. The Petitioner provided information to its members in March of 1985 and August of 1985 concerning the Petitioner's understanding of what constitutes an effective notice of lot rental increase. In explaining how members can provide a concise explanation of the reason for a proposed lot rental increase, the Petitioner told its members the following in a memorandum distributed in March of 1985: You need only to provide a concise explanation of the reason for the proposed change. Be brief! You should only include a list of factors (for rent increases), or a short plain statement for the change in services or rules or regulations. Important! As for rent increases, the rule limits the factors you may consider to those specifically identified in the prospectus. If the homeowners go to mediation or arbitration, or to court, then only those factors identified in the prospectus can be used to justify the reasonableness of the increase. Also, you should only place on the notice of increase the category of factor used to determine the rent increase level. For example: Operating costs; Prevailing market rent; Prevailing economic conditions; or Consumer Price Index (CPI). Be sure to list only those factors which are necessary to fully justify the rent increase. In August of 1985 the Petitioner provided the following guidance to its members with respect to how to provide a concise explanation of the reason for a lot rental increase: 4. You need only to provide a concise explanation of the reason for the proposed increase. Be brief! You should only include a list of factors, or a short plain statement of the reason or reasons for the increase. For example, a response might be: "The reasons for the increase are increased operating costs, prevailing market rent, and prevailing economic [sic] conditions, as set forth in the prospectus." You need not to go [sic] into great detail as to the specific costs which may have increased during the course of the year which you may want to take into consideration, or do you need to explain what is intended to mean [sic] by prevailing market rent or prevailing economic conditions. You need only to include a concise explanation of the reasons for the increase. The recommendation of the Petitioner to its members concerning how to provide a concise explanation of an increase in lot rental was basically that the member refer to factors which might cause a rental increase as provided in the member's prospectus. In the model prospectus recommended by the Petitioner to its members in June of 1985, the Petitioner recommended that the following explanation of the manner in which lot rental could be increased should be used by its members: is as follows: Increase in Lot Rental The manner in which lot rental will be increased, Definitions. As used in this Section VIII: "Lot rental" means all sums paid or to be paid by the mobile home owner in consideration of leasing or renting a mobile home lot or lots in the Park. Such sums include any and all rents, special use fees, pass-through charges, installation and set-up charges, and other fees, charges and assessments imposed by the Owner. "Special use fees" mean those separately itemized amounts for specific services or privileges which are charged in addition to rent, including, but not limited to, such charges as guest fees, pet fees and entrance fees. "Pass-through charges" are defined as those amounts, other than special use fees, which are itemized and charged separately from the rent and which represent the mobile home owner's share of costs charged to the Park Owner by any state or local government or utility company. Notice of Increase. The mobile home owner shall be notified of any increase in the lot rental at least 90 days prior to the effective date of such increase. Lot Rental-Increases. General. The lot rental and each of the categories of charges current Iv or hereafter comprising a part of the lot rental are subject to periodic increases by the Owner. However, except for increases resulting from the imposition of pass-through charges, the lot rental will not be increased more frequently than annually, except for initial tenancies which commence after the beginning of the annual rental term. Factors Affecting Increases. Factors which may affect the level of increases in lot rental are as follows: Increased costs, which refers to any increases experienced by the Owner since the delivery of notice of the last increase in the lot rental in the total costs arising out of the ownership, operation and management of the Park. Prevailing Market Rent--Refers to the lot rental imposed in mobile home parks comparable to this Park, or the lot rental willingly paid from time to time by new residents of this Park. A park will be deemed comparable if it is located in the same general vicinity as this Park, and offers similar densities, amenities and services. Prevailing Economic Conditions--are intended to refer to those factors which bear on the economic viability of a real estate investment and which would be considered by a prudent businessman in establishing the base rent and other charges or any increase in the amount thereof. These factors may include: the costs attendant to the replacement of this Park in the economic environment existing at the time of any rental increase, including land acquisition costs, construction costs, and losses associated with the operation of a park prior to full occupancy, and the level at which the lot rental must be established in order that the Park Owner will realize a reasonable return on the costs referred to in this clause (1); the level of interest rates and other financing charges associated with construction, interim and permanent financing; (3) the availability of alternative forms of real estate investment capital; (4) the levels of the Consumer Price Index, defined as the United States Department of Labor, Consumer Price Index, U.S. City Average--All Urban Consumers, 1967 100, or, in the event of the discontinuation of publication of the Consumer Price Index, then an alternative index which has been reasonably related to the Consumer Price Index in evaluating economic conditions, and which has been, or can reasonably be expected to be, generally accepted as a replacement index for the Consumer Price Index; (5) the level at which the lot rental must be established in order that the Owner will realize a reasonable return on the "Owners's Equity"; for this purpose, the "Owner's Equity" refers to the fair market value of the Park from time to time, less existing mortgage indebtedness; (6) other economic factors which might reasonably be expected to affect-either the value of the Park, the rate of return available to the Owner of the Park at the existing level of rent, the present value of the real estate investment in the then current economic conditions, and which would be taken into consideration by a prudent businessman in considering the amount of rental increase required in the Park in order -to realize a rate of return similar to other at risk real estate ventures from the then current value of the Park. To the extent permitted by law, the mobile home owner may also be required to bear, in the form of increases in the lot rental, the costs incurred by Owner in installing capital improvements or performing major repairs in the Park. Additional Considerations The reasons for the increase in lot rental or other fees and charges will be set forth in the notice of increase. Only those factors set forth in the notice will be relied upon by the Park Owner as justification for the rent increase. The Park Owner reserves the right to amend this Prospectus or any Exhibit thereto from time to time to the extent permitted by law to conform with changes in relevant statutory provisions or changes in relevant rules of the Department of Business Regulation, or any other agency having jurisdiction over the operation of this mobile home park. An increase in one or more of the above- described factors may result in an increase in the mobile home owner's rent or other charges. Tenants assuming the remaining portion of a tenancy as prescribed by Section 723.059(3), F.S., are hereby notified that upon the expiration of the assumed tenancy, the Park Owner expressly reserves the right to increase lot rental amount in an amount deemed appropriate by the Park Owner with such increase being imposed in the manner disclosed in the Prospectus delivered to the initial recipient. A number of the Petitioner's members used the notice of lot rental increase recommended by the Petitioner and the portion of the prospectus quoted in finding of fact 33. The Respondent advised some of the Petitioner's members that the notice recommended by the Petitioner was deficient under the Respondent's rules. The notice was deficient because the Respondent determined that the notice did not provide a concise explanation of the reason for a lot rental increase. The notice used by several members of the Petitioner stated that the reason for the increase was "prevailing market conditions and economic conditions." The Respondent notified members that used this explanation that it was deficient. The Respondent also told those members that "the explanation must include the specific changes in the factors described in the prospectus under prevailing market conditions and economic conditions which were the reasons for the change." The Petitioner challenged the Respondent's interpretation of its rules concerning notices in Leon County Circuit Court. The Court advised the parties to work things out following a preliminary injunction hearing. Representatives of the Petitioner and the Respondent met and discussed the problem with the Petitioner's notice and the Respondent subsequently indicated that several examples of a concise explanation for lot rental increases proposed by the Petitioner were acceptable. The method of increasing rent provided in existing rental agreements at various mobile home parks varies. Because existing tenants have different anniversary dates or renewal dates, if notice of a lot rental increase affecting some tenants is given to all tenants of a park, it is more costly to the park owner. It is possible, however, to mail one notice of rental increase to all tenants of a park at the beginning of each year. Florida Leisure Communities has filed a prospectus for all three of its mobile home parks in Florida. The prospectuses have been approved by the Respondent. At the Colonnades, a Florida Leisure Communities park, 156 lots have been completed and 19 of those lots have been occupied. Improvements to be made by Florida Leisure Communities are specified in the prospectus for the parks. In order to keep pace with market conditions and provide different improvements, a new prospectus has to be filed with the Respondent. At Brittany Estates, another Florida Leisure Communities park, after a prospectus had been distributed to all tenants, a tornado destroyed 50 mobile homes. Most of the tenants of the 50 homes voluntarily terminated their leases. Mr. Bernie Covington is vice-president and director of the parks of Angeles Real Estate Management Company (hereinafter referred to as "Angeles"). Angeles owns and operates 13 mobile home parks in Florida. Angeles has filed a prospectus for Heritage Village, a 436 site park. The prospectus had not been approved or distributed as of the date of the hearing of these cases. Heritage Village owns and operates its own sewage treatment plant and water system. Heritage Village will be required, however, to tie into the County's water and sewage system at substantial costs. Existing leases with tenants of Heritage Village allow the park to pass the impact fees ($1,250.00 for sewage and $1,149.00 for water, per site) and the cost of tieing into the force main ($30,000.00 to $35,000.00) on to the tenants. The cost of tieing into the force main may not be passed on to the tenants under the Respondent's rules, however. Angeles has also filed a prospectus for Pleasant Living Mobile Home Park which has 218 tenants. The prospectus had not been approved or distributed as of the date off the final hearing of these cases. Angeles would now like to provide a secure area for storage of boats, RVs and cars and charge a fee for this service. The prospectus being reviewed by the Respondent, however, does not indicate that a secure area will be provided.
Findings Of Fact Michael Weiss is part owner of Suncoast International, Inc. and general manager of the corporation's only business, a trailer park in Flagler County known as Flagler by the Sea Mobile Home Park. At all pertinent times, the park has leased or offered for lease a total of 44 mobile home lots. In mid-1985, Mr. Weiss received a letter from petitioner Department of Business Regulation (DBR) informing him that park owners were required by law to prepare and distribute prospectuses to mobile home tenants. Efforts to draft a prospectus meeting petitioner's approval began in August of 1985. After several revisions, the petitioner approved a prospectus on June 13, 1986, No. 1802171P, for all lots. Mr. Weiss received written notice of approval, together with a copy of the prospectus to which it pertained, with attachments, on June 26, 1986; and promptly arranged for a copier to produce 50 uncollated copies of everything received from the petitioner, see Petitioner's Exhibit No. 1, including the cover letter. With the assistance of Mr. and Mrs. Whaley, who worked for the company at the park, he tried to assemble at least 44 complete sets of these materials. In late May of 1986, Mr. Weiss had given all tenants notice by registered mail of his intention to raise rents, effective September 1, 1986. Realizing he needed to distribute prospectuses before any rent increase, he had simultaneously informed tenants that a then current (but unapproved) version of the prospectus was available for inspection. Respondent's Exhibit No. 5. Hand Delivery As instructed, Ms. Whaley encouraged tenants to pick copies of the prospectus up when they paid their rent. She kept a list of persons to whom she distributed copies of the prospectus. Part of the list survived and has been received in evidence. Respondent's Exhibit No. 2. One tenant, Mary Oetken, received a copy of the approved prospectus on July 29, 1986. But the prospectus given to Ms. Oetken did not contain rules and regulations, a copy of the lot rental agreement, a lot layout plan, or the number of her lot. Ms. Oetken already had a copy of her lot rental agreement, and park personnel customarily distributed copies of rules and regulations to each tenant, before tenancies began. On August 29, 1986, another tenant, Betty Marinoff, wife of Peter, received a copy of an approved prospectus. Before September 1, 1986, Ms. Whaley hailed Mr. Philip H. Bird, and handed him a copy. Whether these copies of the approved pro-spectus included all attachments the evidence did not disclose. Robert Onusko, who has leased a lot in Flagler by the Sea Mobile Home Park continuously since August of 1981, has had a copy of the park's rules and regulations since he moved in. As did all other tenants, he paid increased rent beginning September 1, 1986. Although Mr. Onusko himself received no copy of an approved prospectus until January of 1989, Petitioner's Exhibit No. 7, Angela Whaley gave his daughter Marilyn a copy of the prospectus when Marilyn paid rent in July or August. Taped to Doors Not all tenants were then in residence at the park. About half lived there full time. (T.127) With respect to lots whose lessees were away, Mr. Weiss directed Mr. and Mrs. Whaley to tape copies of the prospectus on trailer doors. "That was common procedure with late payments or whatever . . . " T.112. In mid-August of 1986, Ms. Whaley told him that prospectuses had been distributed for each lot, either by delivery to a tenant or by posting. Clarence Rainey leased a lot from 1977 to 1989 at Flagler by the Sea Mobile Home Park, where he lived part of the year, returning to Illinois in the summer. Told by a neighbor that they were available, he asked for and received a prospectus in November of 1986. He had not received one earlier. With her husband Roger, Madeline DuJardin resided at Flagler by the Sea from February of 1979 until February of 1988. She did not get a copy of the approved prospectus before the rent increased on September 1, 1986, from $125.00 to $150.00 per month. Neither Mr. and Mrs. Rainey nor Mr. and Mrs. DuJardin received copies when they were originally distributed. Their trailers were among those to which copies were taped, weeks or months before their return in cooler weather. Charles A. Bond, who shared a trailer with a half-brother, resided at Flagler by the Sea from November 21, 1985, until December 31, 1988. While he lived at the park he never received a prospectus. Brothers surnamed Karcher each leased lots from respondent. Ms. Whaley gave one Mr. Karcher a copy of the approved prospectus, before September 1, 1986. But Richard Karcher, who in those days only spent a week at a time in the park, at intervals of several months, did not receive a copy of the approved prospectus before the rent increased. Richard Karcher had obtained a preliminary draft of the prospectus, but it differed in important respects from the draft which was eventually approved. In June of 1988, he obtained another copy of the prospectus, the copy, he testified, which he gave DBR's investigator, which also differs in important respects from the approved version. Attached to the copy Mr. Karcher gave DBR's investigator was a set of the park rules and regulations. It is not clear whether Ms. Whaley told Mr. Weiss that she had taped an approved copy to Mr. Richard Karcher's door. (T. 126, 128) Change of Law Effective July 1, 1986, statutory changes altered prospectus requirements. Petitioner mailed advice concerning the new requirements when it sent out annual fee statements to mobile park owners. Mr. Weiss did not personally receive this advice nor any written notice of the nine workshops petitioner conducted in August of 1986 to acquaint park owners with the statutory changes. Although approved a few days earlier, respondent's prospectus did not conform to all the new requirements. In early 1988, Mr. Weiss heard from Gloria Thompson, a DBR employee in its Tampa office, in connection with a complaint filed by Charles Jagde, the same person whose complaint led to the investigation that gave rise to the present proceedings. Ms. Thompson found no violation on the original complaint. Respondent's Exhibit No. 6. Eventually Mr. Weiss learned that revisions to prospectus No. 1802171 were necessary. On November 18, 1988, he filed another proposed prospectus with petitioner. After its approval on January 30, 1989, park personnel distributed the revised, approved prospectus, No. 1802171P86, to the tenants.
Recommendation It is, accordingly, RECOMMENDED: That DBR enter an order requiring respondent to send complete copies of currently approved prospectuses by registered mail to all tenants who have not received such copies personally and signed receipts so stating. DONE and ENTERED this 30th day of July, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1 through 6, 9, 11 through 14 and 16 through 19 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 7, the evidence did not establish the contents of the copy of the prospectus the Miranoffs received. With respect to petitioner's proposed finding of fact No. 8, Mr. Onusko's adult daughter Marilyn received a copy of the prospectus before the rent increased. Petitioner's proposed finding of fact No. 10 pertains to subordinate matters only. With respect to petitioner's proposed finding of fact No. 15, Mr. Karcher so testified, without contradiction. Respondent's proposed findings of fact Nos. 1 through 5, 7 through 10, 12 through 19, 21, 22, 24, and 27 through 30 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 6, the prospectus had not been approved at that time. With respect to respondent's proposed finding of fact No. 11, she did not personally deliver prospectuses to all tenants. With respect to respondent's proposed finding of fact No. 20, the differences were material. Respondent's proposed findings of fact Nos. 23, 25 and 26 are immaterial. COPIES FURNISHED: Donna H. Stinson, Esquire Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A. The Perkins House, Suite 100 118 North Gadsden Street Tallahassee, FL 32301 Debra Roberts, Esquire Department of Environmental Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Paul Martz, Esquire Martz & Zimmerman 3 Palm Row St. Augustine, FL 32084 Stephen R. MacNamara Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 =================================================================
The Issue 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 the case is whether the Petitioner has been the subject of a discriminatory housing practice by the Respondent through the alleged failure of the Respondent to provide a reasonable accommodation for a disability.
Findings Of Fact At all times material to the case, the Respondent operated an age-restricted mobile home park in Sarasota, Florida. With limited exceptions, residents of the mobile home park are 55 years of age and older. In September 2000, the Petitioner, a woman over 55 years of age, purchased a mobile home located within the Ridgewood Mobile Home Park. The mobile home was purchased through a real estate broker. The mobile home park apparently identifies itself through signage as a community for persons 55 years of age and older. Prior to the purchase the Petitioner had no communication with the Respondent and made no inquiry of the Respondent as to whether her son, who is under 55 years of age, would be allowed to live in the mobile home park. Within a few days of the purchase, the Petitioner was advised that residence in the mobile home park was limited, with certain exceptions, to persons 55 years of age and older. The Respondent advised the Petitioner that her son, who is under 55 years of age, could remain with her only for a period of up to two months to help her "settle in." By lease application dated October 1, 2000, the Petitioner advised the Respondent that her son would remain with her for a period of two months. In November 2000, after the two months had passed, the manager of the mobile home park (Mr. Cobb) informed the Respondent that her son would have to leave the residence. At that time, the Petitioner's son asserted that he was his mother's full-time, live-in caregiver. Prior to this point, the Petitioner had not indicated to the Respondent that she suffered from a handicap or required the services of a full-time, live-in caregiver The evidence fails to establish that, either at the time of the Petitioner's initial residence at the Respondent's mobile home park or by November 2000, the Petitioner suffered from a handicap or from any condition that substantially limited any major life activity, or that the Petitioner required the assistance of a full-time, live-in caregiver. At the time the Petitioner moved into the Respondent's mobile home park, the Petitioner was able to accomplish all major life activities. Although diabetic, the Petitioner was able to walk, drive, and shop for food or other necessities. Her son assisted in house cleaning and in other routine activities, but there is no credible evidence that, prior to August 2002, such assistance was required for performing major life activities. In August 2002, shortly after a medical procedure on the Petitioner's carotid artery, the Petitioner suffered a stroke. She was hospitalized for a period of approximately ten days and then transferred into a rehabilitation hospital for a period of approximately six weeks. Letters submitted from medical professionals involved with the Petitioner's case at the time of her stroke suggest that assistance was needed during the period of incapacity related to the stroke. There is no credible evidence that, subsequent to rehabilitation, the Petitioner needed the services of a full- time, live-in caregiver. After rehabilitation, the Petitioner recovered from the stroke sufficiently to regain her ability to perform major life activities, including driving an automobile. A subsequent automobile accident wherein she ran down a stop sign in the mobile home park after going shopping suggests that driving at night may be inappropriate. Following post-stroke rehabilitation, the Petitioner's son continued to reside with his mother, to assist in household duties and in assuring that the Petitioner followed a medication regimen, but the evidence fails to establish that she currently requires a full-time, live-in caregiver. At the time of the hearing, neither the Petitioner nor her son was residing in the Respondent's mobile home park. The evidence establishes that disabled or handicapped persons in the mobile home park who require full-time, live-in caregivers are accommodated without regard to the age of the caregiver or to the mobile home park's age-related restrictions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the complaint of Dona M. Burgess against the Respondent. DONE AND ENTERED this 29th day of July, 2003, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 29th day of July, 2003. COPIES FURNISHED: Elizabeth M. Boyle, Esquire Gulfcoast Legal Services, Inc. 1750 17th Street, Building 1 Sarasota, Florida 34234 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Kimberly P. Walker, Esquire Kevin Bruning, Esquire Williams, Parker, Harrison, Dietz & Getzen 200 South Orange Avenue Sarasota, Florida 34236-6802 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues are whether the respondents engaged in a discriminatory housing practice, in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2007),1 by discriminating against Petitioner, on the basis of her alleged disability, and by harassing Petitioner and retaliating against her.
Findings Of Fact Petitioner is a former resident of Broadview Mobile Home Park (Broadview), located at 1701 Post Road, Melbourne, Florida. Petitioner resided in Broadview for approximately six years from an undisclosed date in 2002 through September 8, 2008. Mr. Lamont Garber holds an ownership interest in Broadview. The record does not quantify the ownership interest of Mr. Garber. Mr. Garber manages Broadview with his brother, Mr. Wayne Garber. Broadview rents sites within the mobile home park to residents who own mobile homes. Each site has access to water and electric service. Each resident arranges his or her water and electric service directly with the respective utility provider. Sometime in 2005, Petitioner purchased a mobile home for approximately $6,500.00 and moved within Broadview to Lot 24. The rental agreement for Lot 24 required rent to be paid on the first day of each month. The rent for July 2008 was due on July 1, 2008. Petitioner failed to pay the rent payment that was due on July 1, 2008. On July 9, 2008, Broadview served Petitioner, by certified mail, with a notice that she had five business days in which to pay the rent due (the five-day notice). Petitioner received the five-day notice on July 10, 2008. The five-day period expired on July 17, 2008, with no rent payment from Petitioner. Petitioner had paid rent late in the past, but Petitioner had never been more than four or five days late. After July 17, 2008, Broadview initiated eviction proceedings. Petitioner tendered the rent payment on July 20, 2008, but Broadview proceeded with the eviction. Petitioner did not appear and defend the eviction proceeding. On August 26, 2008, the County Court for Brevard County, Florida, issued a Final Default Judgment of Eviction awarding possession of Lot 24 to Broadview. Law enforcement officers thereafter executed the Court's order and evicted Petitioner from Broadview on or about September 8, 2008. After Petitioner received the notice of eviction, she filed a complaint with the Florida Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes (DBPR). DBPR is the state agency responsible for regulating mobile home parks, including Broadview. The allegations in the complaint that Petitioner filed with DBPR were substantially similar to the claims of discrimination, retaliation, harassment, and unlawful rent increases Petitioner asserts in this proceeding. DBPR rejected Petitioner's allegations and found that Broadview lawfully evicted Petitioner for non-payment of rent. The final agency action of DBPR is substantially similar to that of HUD and the Commission's proposed agency action in this proceeding. Each agency found that Broadview lawfully evicted Petitioner for non-payment of rent and rejected the allegations of discrimination, harassment, and retaliation. The DOAH proceeding is a de novo consideration of the proceeding before the Commission. A preponderance of the evidence does not establish a prima facie showing that Petitioner is disabled or handicapped. Petitioner has cancer and is receiving chemotherapy and radiation treatment. A preponderance of evidence does not show that the medical condition substantially limits one or more major life activities of Petitioner. Petitioner also alleges that she is disabled and handicapped by a mental condition. Petitioner submitted no medical evidence of the alleged disability or handicap. A preponderance of evidence does not establish a prima facie showing that, if such a mental condition exists, the condition substantially limits one or more major life activities of Petitioner. Assuming arguendo that a preponderance of the evidence showed that Petitioner were disabled or handicapped, a preponderance of evidence does not establish a prima facie showing that either of the respondents discriminated against Petitioner, harassed her, or evicted her in retaliation for Petitioner's disability or handicap. It is undisputed that Petitioner conducted neighborhood organization efforts to protest a rent increase at Broadview and repeatedly called law enforcement officials to report alleged drug and prostitution activity in Broadview.2 However, Broadview did not evict Petitioner for those activities, and Petitioner's testimony to the contrary is neither credible nor persuasive. Rather, Petitioner engaged in other activities that the respondents found objectionable. Petitioner baby sat for one or more dogs in violation of Broadview's prohibition against pets. Some of the dogs were dangerous to other residents. Petitioner also verbally abused Mr. Wayne Garber when he attempted to mediate with Petitioner concerning the presence of dogs and Petitioner's conduct toward management at Broadview. On July 1, 2008, Broadview served Petitioner with a seven-day notice concerning Petitioner's compliance with lease requirements. The notice, in relevant part, alleged that Petitioner harassed management and impaired the ability of management to perform its duties. The testimony of respondents describing the activities of Petitioner that precipitated the seven-day notice is credible and persuasive. A preponderance of the evidence shows that the respondents had legitimate non-discriminatory reasons for requiring Petitioner to comply with the terms of the seven-day notice and for requiring Petitioner to comply with the requirement for rent to be paid on July 1, 2008. Petitioner failed to comply with either requirement, and Broadview evicted Petitioner for legitimate, non-discriminatory reasons. The respondents did not harass or retaliate against Petitioner.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that the respondents did not engage in an unlawful housing practice and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of May, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2009.
The Issue The issue is whether Respondents imposed upon mobile home owners an invalid "pass-through" charge to pay for the cost of work on the park's electrical distribution system, in violation of Section 723.031(5), Florida Statutes.
Findings Of Fact Tanglewood Mobile Home Park, Inc., owns the Tanglewood Mobile Home Park located at 345 Weatherbee Road, Fort Pierce, St. Lucie County, Florida (Tanglewood). The Patricia Yu Irrevocable Trust owns Tanglewood Mobile Home Park, Inc. Respondents Chester Yu and Ronald Yu are the trustees of the trust; Respondent Carol Yu is not a trustee. References to "Respondents" shall include only Chester Yu and Ronald Yu. Tanglewood was developed in 1969. The park was originally owned and operated for many years by Respondents' father. An undated prospectus for Tanglewood Mobile Home Park (Prospectus) contains several provisions that have some bearing on this case. Prospectus Section VI.A.1 requires each mobile home owner to bear the expense of "electrical connections." Prospectus Section VI.A.2.a states that, "to the extent permitted by law, the mobile home owner may also be required to bear, in the form of increases in the lot rental, the costs incurred by Owner in installing capital improvements or performing major repairs in the Park." Prospectus Section VIII.3 states that the Owner may assess, on a pro rata basis, "pass-through charges" as rent increases. Prospectus Section VIII.3.a prohibits more than one increase in lot rental annually, except for "pass-through charges." Section VIII.1.c defines "pass-through charges" as "those amounts, other than special use fees, which are itemized and charged separately from the rent and which represent the mobile homeowner's share of costs charged to the Park Owner by any state or local government or utility company." Section VIII.3.b.4 states: "To the extent permitted by law, the mobile home owner may also be required to bear, in the form of increases in the lot rental, the costs incurred by Owner in installing capital improvements or performing major repairs in the Park." The Prospectus states that Tanglewood has 158 lots. In reality, only 148 lots are improved and available for rent. One of these lots is the park office. At present, 139 lots are leased. In October 1999, Hurricane Irene caused flooding in Tanglewood. After the flooding had receded, the power company restored power to the area, but a submerged transformer blew out and damaged part of the Tanglewood's electrical distribution system, leaving 16 mobile homes without power. After repairing or replacing the transformer, the power company employee responsible for reconnecting Tanglewood's electrical distribution system reenergized eight mobile homes, but refused to reenergize the remaining eight due to the deteriorated condition of their meter bank. Meter banks are located in groups at various points in the park. Power enters the park either above- or below-ground and is fed into individual meters for each mobile home. Each meter bank typically contains eight meters, and each meter typically has a junction box and a disconnect box. The concern of the power company employee was that the mechanical force required to reconnect power to one meter bank could possibly be too great for the deteriorated supports to withstand. As was typical of many meter banks at Tanglewood, the meter bank for these eight lots was poorly supported due to the deterioration of its support structure. Most supports at Tanglewood were made of wood, which required close monitoring and careful maintenance. Exposed to the elements, wood suffered considerable damage over time from wood rot. If the support failed, a meter bank would fall over to the ground, exposing live electrical lines in close proximity to the mobile homes and their occupants. Many meter banks throughout Tanglewood also suffered from deteriorated supports. Many meter banks were deficient because of the use of plumbing-grade PVC pipes as conduit, which are of a decreased thickness, when compared to PVC pipes approved for outdoor electrical use and, when exposed to sunlight, tend to deteriorate faster than the type of PVC pipes approved for outdoor electrical use. The use of plumbing-grade PVC pipes may not have been legal at the time it was used. Other meter banks also suffered from rusted and missing components, which might allow rainwater to enter the system and damage the parts. Some of the larger missing components left gaps large enough to allow a child's finger to penetrate and touch a live wire. Meter cans were damaged, masts (for above-ground supply lines) were inadequately supported, and drop wires (for above-ground supply lines) were too low. Confronted with the problem of eight lots without electrical service, Respondents contacted a local electrical contractor, who replaced the meter bank and its supports, using new pressure-treated wood. He also increased the service for these eight meters from 100 amps to 150 amps. The power company promptly restored electrical service after these repairs were completed. Respondents did not try to assess the mobile home owners a pass-through charge for this work. Instead, on January 28, 2000, Respondents sent the mobile home owners a notice that their monthly rent would increase by $15 (net, $12, after relieving the tenants of the obligation to pay a $3 monthly administration fee for water and sewer). The notice states that the rent increase is effective May 1, 2000, which may reflect a common commencement date on all lot leases. The letter notes that the park owner "has expended and will expend substantial sums for improvements and upgrades in the park," but warns that the park owner does not know if "any additional tax, utility or assessment prorations will be necessary." The rent increase covered, among other things, the cost of the work to restore electrical service to the eight lots whose meter bank required replacement. On February 12, 2000, the St. Lucie County Building Inspector inspected the electrical distribution system at Tanglewood. He noted the conditions described above and issued numerous citations, which were submitted to the St. Lucie County Code Enforcement office. In 1998, St. Lucie County adopted the National Fire Protection Association code, which is based on the 1996 National Electrical Code. The new code requirements prohibit a wood support system, require the placement of meters within 30 feet of the mobile home, and require underground wiring, but do not require service above 100 amps, which was the minimum level of service at Tanglewood prior to any electrical work following Hurricane Irene. On May 25, 2000, the County Code Enforcement Officer issued a notice of citations to Respondents for unsafe electrical equipment. The officer required the replacement of the remainder of the electrical distribution system. When work stopped at Tanglewood, the County Code Enforcement Officer issued other notices of citations in June 2000. Respondents responded to these demands from the County by undertaking extensive work to Tanglewood's electrical distribution system. The result was a modern electrical distribution system--at a cost of $161,912, plus $28,977.76 in finance charges, for a total of $190,889.76. By Notice of Pass-Through Charge dated August 14, 2000, Respondents advised the mobile home owners of a monthly pass-through charge of $28.61 per lot from December 1, 2000, through November 1, 2004. The notice discloses that the reason for the pass-through charges is the electrical distribution system upgrade that had recently been completed. The evidence is clear that, except for the upgrade to 200-amp service, the electrical work done in this case was governmentally mandated. This finding is supported by the reluctance of Respondents to attend to the electrical system unless a mobile home was without electricity. Despite Respondents' electrical invoices, their park-management policy obviously deferred maintenance, at least with respect to the electrical distribution system. The closer question in this case is whether the work was a capital improvement or a repair. The addition of 50-100 amps of service was a capital improvement, but it was not mandated by the government. So the capital improvement versus repair question applies to the remainder of the work. In their proposed recommended order, Respondents contend that the electrical distribution system was "completely functional" prior to the inspection and citations. This is true as to the function of conducting electricity; this is untrue as to the function of conducting electricity safely. Weakened and sometimes nonexistent supports, rusted holes, holes from missing components, and occasionally exposed wiring substantially undermined the safety of the electrical distribution system at Tanglewood. Respondents argue that new code requirements forced them to relocate disconnects closer to the mobile homes, use four-wire (not three-wire) feeder line to all mobile homes, use electrical-grade conduit, and use metal supports for meter banks. However, these are subsidiary costs of repair, not capital improvements. As contrasted to the expansion of service, the remaining work does not enlarge the capacity of the electrical distribution system. The remaining work repairs the system to make it safer, with some additional work required to meet current code requirements. Respondents argue that the work increases the value of the land. The record does not support this assertion. Even if such evidence were present in this case, it would not be determinative. Although a capital improvement normally adds value, a residential safety hazard subtracts value, so its elimination would have the appearance of adding value. Respondents argue that the work substantially extends the life of the electrical distribution system. This argument would be more appealing in the presence of an effective preventative maintenance program covering such basic needs as replacing wooden supports and metal covers when needed. However, the nature of the work, other than raising the service from 100 amps, is more retrospective than prospective; the work is really only catching up on preventative repairs and maintenance that was not done for years. Once Respondents allowed the system to fall into such a state of disrepair, the secondary costs of bringing the system up to code, such as adding four-wire feeds and relocating disconnects, do not change the nature of the expenditures; they are repair expenses, not capital improvements. Respondents have proved that a portion of the work was clearly the responsibility of individual mobile home owners. For instance, about two-thirds of the mobile homes required $150-$200 of work to separate the grounded conductors from the grounding conductors. However, it is unclear that any of such work, for which individual mobile home owners were directly responsible, was performed on all lots. Even if this work were a capital expenditure, which it is not, it could not be passed "proportionately" among all of the mobile home owners, if only some of them required the work. Respondent contends correctly that the pass-through charges are a minor violation, as defined in Section 723.006(9), Florida Statutes. Respondents fully disclosed the pass-through charges prior to assessing them. The pass-through charges did not endanger the health, safety, or welfare of the mobile home owners; to the contrary. The charges arose from a substantial expenditure by Respondents to enhance the health, safety, and welfare of the mobile home owners. The pass-through charges caused no economic harm to the mobile home owners because Respondents were authorized by the Prospectus to raise the rent by a sufficient amount to compensate for the entire cost of the work on the electrical distribution system. For these reasons, alone, neither a penalty nor a refund is appropriate; a cessation of the assessment of further pass-through charges and the imposition of the maximum civil penalty for a minor violation are sufficient. An order requiring a refund of any portion of the collected pass-through charges may have a disproportionately disturbing effect on Respondents and the mobile home owners. Respondents borrowed the full cost of the work on the electrical distribution system, and this note is payable in 48 equal monthly instalments ending on August 4, 2004. An order requiring a refund of any portion of the monies already collected may result in a significant disruption in the anticipated cash flow to Respondents, necessitating an even greater increase in rent to cover the loss of these funds. Mobile home owners who have left the park between the time of the electrical work and the time of the rent increase would unfairly be relieved of their proportionate share of the cost of this work, and mobile home owners coming to the park after this rent increase would unfairly be imposed with a disproportionately larger share of the cost of this work.
Recommendation It is RECOMMENDED that the Division of Florida Land Sales, Condominiums, and Mobile Homes enter a final order dismissing the Amended Notice To Show Cause against Respondent Carol Yu. It is further RECOMMENDED that the Division of Florida Land Sales, Condominiums, and Mobile Homes enter a final order finding that Chester Yu and Ronald Yu have assessed a pass-through charge in violation of Section 723.031(5), Florida Statutes; that Chester Yu and Ronald Yu shall cease and desist from assessing this pass-through charge upon the effective date of the final order; that the violation is a minor violation and no refund is appropriate under the circumstances; and that Chester Yu and Ronald Yu shall pay a single civil penalty of $250, for which they are jointly and severally liable. DONE AND ENTERED this 19th day of September, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 2001. COPIES FURNISHED: Ross Fleetwood Division Director Division of Florida Land Sales, Condominiums, and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Janis Sue Richardson Attorney for Petitioner Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Bernard A. Conko Attorney for Respondent Cohen, Norris, Scherer, Weinberger & Wolmer 712 U.S. Highway One Fourth Floor North Palm Beach, Florida 33408
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 The issue is whether Respondent is guilty of a discriminatory housing practice based on physical handicap, in violation of the Fair Housing Act, Sections 760.20-760.37, Florida Statutes.
Findings Of Fact Respondent owns and operates McGregor Mobile Home Park in Fort Myers. His wife serves as the office manager. In February 1995, Petitioner met with Respondent and his wife to discuss leasing or purchasing a mobile home at the park. The following month, Petitioner leased a mobile home with an option to purchase. In March 1996, Petitioner purchased the mobile home. At all material times, Petitioner has rented from Respondent a mobile home lot at McGregor Mobile Home Park. Within two months of purchasing the mobile home, Petitioner filed a complaint with the U.S. Department of Housing and Urban Development. The complaint concerned Respondent’s attempt to charge her for an extra person residing in Petitioner’s mobile home. Respondent claimed that she required the person for physical assistance. In May 1996, Petitioner had a fence built around her mobile home lot. She did not obtain a building permit or the permission of Respondent, as was required under the rules of the park. Four to six weeks later, Petitioner had a deck built, again without a building permit or the permission of Respondent. At the time of the construction of the fence and deck, Petitioner had complained to local media about conditions at the park. A local television station broadcast a story about the park. The Lee County building department inspected the park and, on July 15, 1996, cited Respondent for a number of violations for, among other things, Petitioner’s fence and deck. Respondent’s wife immediately told Petitioner to remove these items. The disputes between Petitioner and Respondent seem to involve nothing more than disputes between a mobile home park operator and a park resident. Petitioner produced no credible evidence of discrimination against her on any basis. It does not appear that Respondent treated her any differently than he has treated other park residents. Petitioner also produced no credible evidence of discrimination against her on the basis of physical handicap. Approximately half of the park residents are handicapped. Also, the nature of Petitioner’s handicap is not well defined. At the hearing, she walked with a cane and limped noticeably. However, in the nearly three years that she has resided at the park, she has never used a wheelchair and very rarely used a cane.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 22nd day of December, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1997. COPIES FURNISHED: Linda Hurd 16 Circle Drive Fort Myers, Florida 33908 Terrence F. Lenick Terence F. Lenick, P.A. 12699 New Brittany Boulevard Fort Myers, Florida 33907 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
