The Issue A Notice to Show Cause issued on May 5, 1989, alleges that Respondent violated Sections 723.031(5) and (6), F.S. by increasing mobile home park lot rentals on January 1, 1987 and on October 1, 1987, and by collecting charges for water, sewer and waste disposal from at least one homeowner when such charges were not disclosed prior to tenancy. If it is determined that those violations occurred, it is necessary to recommend an appropriate penalty and corrective action.
Findings Of Fact At all times relevant to these proceedings, Alfred Herrick has been the park owner of Tan Tara Mobile Home Park, which is located in Melbourne, Florida. Respondent purchased the park in 1980. Eighty-four (84) lots are offered for rent or lease in the Tan Tara Mobile Home Park. Seventy-eight (78) lots are offered to tenants who own their home. Nineteen (19) lots were leased on or after November 1, 1986. The proposed prospectus for the Tan Tara Mobile Home Park was filed with the Division on September 13, 1985. The prospectus was deemed adequate to meet the requirements of Chapter 723, Florida Statutes on December 23, 1983. The prospectus was delivered to homeowners after January 1986. The prospectus review by the Division determines adequacy with Chapter 723, Florida Statutes. The prospectus is not reviewed to determine consistency with rental agreements or disclosures made to homeowners. Park owners are advised that approval of the prospectus by the Division does not relieve the park owner of any requirements under the law. The park owner determines the contents of the prospectus. Homeowners have no input as to the contents of or in the review process of the prospectus. The prospectus for Tan Tara Mobile Home Park contains a number of disclosures, as required by 723.012, F.S., relating to the mobile home park property, and sets out the terms and conditions of the rental agreement between the park owner and individual tenants of mobile home park. Included in the prospectus is the disclosure of all of the charges which may be charged by the park. Paragraph VII. UTILITY AND OTHER SERVICES, provides the following relevant disclosures: Water - Treated drinking water is provided by the City of Melbourne Utilities and is provided to each mobile home site. The charges for this service is [sic] currently included in the tenants' total monthly rental fee. * * * Sewage - Sewage disposal is provided by the City of Melbourne Utilities. The charges for this service is [sic] included in the tenants' monthly rental fee. * * * Waste and trash disposal - The collection of garbage and trash is provided by the City of Melbourne Utilities and is provided for each mobile home. The charge for this service is currently included in the tenants' total monthly rental fee. ... Paragraph VIII. RENT, RENTAL INCREASES AND OTHER CHARGES, provides the following relevant disclosures: The base rent and other charges applicable to your lot are effective January 1, 1985, as reflected in this section. The "base rent" refers to the regular monthly rent established by the Park Owner from time to time. The base rent is subject to annual rent increases effective each January 1st, after ninety (90) days notice from the Park Owner or Management of such increase. * * * "Other charges" refers to "special use fees" and "pass through charges". SPECIAL USE FEES refers to those separately itemized amounts charged in addition to the base rent for those specific items hereinafter set forth. The following special use fees are in effect within the park: Owner reserves the right to charge an Entrance or "Move-in" fee. The present amount charged for this fee in the Park is $1,000.00. Late rental payment fee of $10.00 after the fifth day of the month and $2.00 per day thereafter. Return check charge of $10.00 for each check not honored by the banking institution upon which the check is drawn. An additional charge of $5.00 per month for each and every person over two occupying a mobile home. Extra visitor and/or guest charge of $2.00 per person per day staying more than 15 consecutive days or 30 days total. Lawn maintenance fee, including mowing, edging, and trimming, in the amount of $10.00 for each required maintenance. If it becomes necessary for Management to place the Tenant' s garbage in proper containers, there will be an additional charge of $5.00 assessed to the Tenant for each occurrence. An additional charge of $5.00 per month for a Tenant's washing machine due to the extra water usage caused by the washing machine and also sewerage charges. For the purchaser, there will be a registration fee of $75.00 for investigating any proposed new Tenant into the Park. A new Tenant nonrefundable application fee of $75.00 for investigating any proposed new Tenant into the Park. A garbage and trash "removal" fee not included in the normal garbage or waste removal, of a minimum of $5.00, the exact charge to be determined by Park Management based upon size and weight of such excess refuse so removed by Management. Additional copies of the Prospectus are available at the park Off ice for Tenants requesting same for which there is a charge of $50.00 for each additional copy requested. Pet fee of 5.00 per pet per month. Skirting area clean up minimum fee of $20.00 if tenant fails to do this. * * * PASS THROUGH CHARGES, means those amounts other than special use fees, which are itemized and can be charged separately from the base rent and which represents the mobile home owner's share of cost charged to the park Owner by any State or local government or utility company. These charges will be passed on to the Tenant(s) on a pro rata basis. ("Pro rata basis" means that percentage derived by dividing the number of mobile home spaces leased by a resident by the total number of occupied mobile home spaces in the park.) The pass through charges which may be passed on to the Tenant(s) are as follows: Water charges or increases in same; Sewer charges or increases in same; Waste disposal charges or increases in same; * * * I. Replacement utility costs charged to the Park Owner by State or local government incurred as the result of the actions of any utility company for any utility or other services not provided or available to park residents on the delivery date that replaces, in whole or in part, any utility or other service that is provided or is available to park residents on the delivery date. * * * The above-mentioned pass through charges and costs which are billed by either the State or local governmental entities or utility companies may be passed through to the Tenants after providing at least ninety (90) days advanced written notice to all Tenants. The amount of an increase in pass through charges shall be limited to the increased costs or charges billed to the park owner by the State or local governmental agency or utility company plus any maintenance and administrative costs related to same as is permitted by 723.045, Florida Statutes. * * * (Petitioner's Exhibit #2, pp 11, 61-66, emphasis added) On September 2, 1986, Mr. Herrick gave a notice to all residents within the Tan Tara Mobile Home Park of a "base rent" increase effective January 1, 1987. On June 23, 1987, Mr. Herrick gave a notice of a pass through charge effective October 1, 1987. The notice provided for billing each tenant for the actual usage of water, sewer and waste disposal. In addition, the notice provided that the extra charge for washing machines would be eliminated effective October 1, 1987. Further, the notice indicated that due to the charges for water, sewer and waste disposal becoming effective October 1, there would not be a base rent increase on January 1, 1988. The cost of providing water, sewer and waste disposal, prior to October 1, 1987, had been included in the base rent charged by Tan Tara Mobile Home Park. Mr. Herrick calculated that the portion of base rent for those utilities was $12.50 for each lot. Individual water meters were installed and beginning October 1, 1987, the park owner began assessing all homeowners in the park for water, sewage and garbage based on individual usage. This cost was in addition to the base rent. The park owner also began assessing each homeowner two dollars and fifty cents ($2.50) per month, for meter reading Beginning January 1, 1989, Herrick started deducting from the base rent the $12.50 previously computed for utilities. He then continued to add on the utility charge based on the individuals meter reading. Bonnie and Reginald Charron are residents of Tan Tara Mobile Home Park. They first assumed occupancy in the park in 1982, leasing lot number 18. At that time they were given the park rules and regulations marked Petitioner's Exhibit 6. No disclosures regarding water, sewage, and garbage were made prior to occupancy. On or after August 30, 1984, the Charrons moved to lot 23. No other disclosures were made regarding the homeowners' obligation to pay for water, sewage or garbage. The prospectus was delivered to the Charrons on January 25, 1986. Since assuming occupancy in the park, the Charrons have been continuous residents and have not been evicted pursuant to Section 723.061, F.S. The Charrons paid fifteen dollars ($15.00) extra per month for their three (3) children plus five dollars ($5.00) per month for the washing machine. Mrs. Charron was advised the five dollars ($5.00) per person was required to cover the cost for extra water and sewage being used by those persons. When the Charrons began to pay for water, sewage and garbage based on individual usage) the fifteen dollars ($15.00) per month was never deducted from the base rent. Since October 1, 1987, the Charrons cost for water, sewage, and garbage has exceeded twelve dollars and fifty cents ($12.50) per month. Peggy E. Headley is a resident of Tan Tara Mobile Home Park. She moved into the park in September of 1982. On August 23, 1982, she was given the park rules and regulations marked Petitioner's Exhibit 8. No other disclosures were made regarding her obligation to pay for water, sewage and garbage. The prospectus was delivered to Mrs. Headley on January 25, 1986. Mrs. Eddie Walters is a resident of Tan Tara Mobile Home Park. She moved into the park in May of 1977. At that time, she received a copy of the park rules and regulations. On January 16, 1986, she received the prospectus. Respondent stipulated that water, sewage, and garbage charges have not been collected from homeowners as a matter of custom. It is undisputed that prior to occupancy in the mobile home park, the tenants listed above did not receive a disclosure from the park owner that they would be responsible for paying pass through or pass on charges as defined in the park prospectus. The rules and regulations which were in effect in the park were amended at various times, and at various times provided that water would be included in the base rent and/or that the park owner may charge separately for water. The set of rules and regulations attached to the prospectus provided that the management reserved the right to assess "pass through charges", including for water, on a pro rata basis. "Pro rata basis" is defined in the rules and regulations in the same manner as defined in the prospectus: "...that percentage derived by dividing the number of mobile home spaces leased by a resident by the total number of occupied mobile home spaces in the park." (Petitioner's Exhibit #2, p. 73) Neither the prospectus nor the rules and regulations provide for collection of water or other utilities based on individual usage. Oral lot rental agreements are in effect in Tan Tara Mobile Home Park. No written lot rental agreements have ever been executed between homeowners and the Respondent or prior park owners of Tan Tara. The term of the oral lot rental agreements is one year and begins January 1 of each year. Respondent has not been required by any governmental agency to install individual water meters or assess homeowners based on usage. However, an official with the City of Melbourne Water and Sewage Operations recommended installing individual meters as a means of finding out where the water was going. Herrick had contacted the city regarding high water and sewer bills. After the meters were installed the city noted an average monthly reduction of 173,200 gallons of water at the park. Water charges within the park are determined by reading individual meters which are located on each individual lot within the mobile home park. The meter readings are forwarded to New York, where Mr. Herrick maintains his residence and main business. A bill for water usage is sent from New York to each tenant and the payment is received in the New York office. Water usage records are kept each month by the New York office in order to determine water usage and the appropriate billing rates for water and sewer for individual residents.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered finding that Alfred Herrick, d/b/a Tan Tara Mobile Home Park violated Section 723.031(5), F.S., and requiring that: Respondent immediately cease assessing homeowner for utilities based on individual usage, and Respondent reimburse to each homeowner all sums collected since October 1, 1987, for utilities over and above that sum that would have been collected under a "pro rata" computation as described in the prospectus and park regulations. This latter computation should credit the homeowners for the $12.50 collected each month from October 1, 1987 until January 1, 1989. DONE AND RECOMMENDED this 15th day of March, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 15th day of March, 1990. COPIES FURNISHED: Debra Roberts Asst. General Counsel Dept. of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 David D. Eastman, Esquire P.O. Box 669 Tallahassee, FL 32302 James Kearney, Director Dept. of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1060 Joseph A. Sole General Counsel Dept. of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000 Stephen R. MacNamara Secretary Dept. of Business Regulation The Johns Building 725 S. Bronough St. Tallahassee, FL 32399-1000 =================================================================
Findings Of Fact Oak Park Village is a mobile home park which is owned and operated by the COOPERATIVE. All of the one hundred and thirty three (133) corporate shareholders are former renters who formed the corporation in order to purchase the park from Mr. Paster and Mr. Perrault, the previous park owners. When the purchase was made, the remaining sixty-six (66) mobile home owners who rented lots within the park did not participate in the purchase. These mobile home owners remained within the park in their status as renters. The COOPERATIVE'S predecessors in title filed a mobile home park prospectus and an amended prospectus with the DIVISION, as required by law. The renters who received the initial prospectus between April 1985 and October 1986, continued their relationship with the park under this prospectus. All of the newer renters were subject to the amended prospectus, which became effective October 1986. Each prospectus contains a copy of the lease form. All of the renters had to sign a written lease before they could enter the park. The term of a lease within the park was normally for a one year period, which ended on December 31st. However, if a tenancy did not begin on January 1st of any year, the first term would end on December 31st of the year the lease was made. Each lease contains an automatic renewal clause. Unless the renter notifies the mobile park owner in writing sixty (60) days in advance of the automatic renewal on December 31st of his intention to leave the park, the lease is automatically renewed for another one year period. In the lease and in each prospectus, only the renters can prevent the automatic renewal from taking effect. On September 19, 1986, the mobile home park owners, Mr. Paster and Mr. Perrault gave written notice to the renters of their intent to increase the lot rental amount effective January 1, 1987, from one hundred and fifty dollars ($150.00) a month to one hundred and fifty six dollars and forty cents ($156.40) per month for a one year period. This advance notice gave the renters the opportunity to terminate their leases and relocate before the automatically renewal or January 1, 1987, which would include this lot rental price increase. None of the renters gave the owners a sixty (60) day advance written notice of their intention to leave the park at the end of the term. Therefore, potential purchasers were on notice that sixty-six (66) renters intended to automatically renew their written leases on January 1, 1987, for a one year term. On January 1, 1987, the automatic renewal went into effect. Under the lease terms and each prospectus, every renter owed one thousand eight hundred seventy six dollars and eighty cents ($1,876.80) as lot rent for the year 1987. The renters had the option to pay this amount in equal monthly installments of one hundred and fifty six dollars and forty cents ($156.40) over the twelve month period. However, the mobile home park owner's right to the one thousand eight hundred seventy six dollars and eighty cents ($1,876.80) vested on January 1, 1987. Contrary to the stipulation of the parties, the law and the evidence shows that written leases were in effect on January 1, 1987. On December 26, 1986, the COOPERATIVE purchased Oak Park Village. At the time of purchase, the COOPERATIVE took the property subject to the existing leases, and the automatic renewals which were inchoate on December 26, 1986, but which would become operative on January 1, 1987. After the sale was completed, Mr. Paster attempted to rescind the notice of rent increase, which was to take effect on January 1, 1987. As Mr. Paster no longer owned the property at the time he attempted this recision, he was unable to effectuate a recission. On December 30, 1986, the COOPERATIVE mailed written notices to its sixty-six (66) renters. The notices informed the renters that the rent would remain at one hundred and fifty dollars ($150.00) for three months and would then increase to one hundred and eighty seven dollars ($187.00) per month from April 1, 1987, to December 31, 1987. This came to an annual rental amount of two thousand one hundred and thirty three dollars ($2,133.00). This was an annual increase of two hundred and fifty six dollars and twenty cents ($256.20) per renter during the 1987 lease term, when the increase initiated by the prior owners is compared with the proposed increase. In comparing the notice of increase dated September 19, 1986, and the notice dated December 24, ,1986, it appears that the first three reasons listed for the proposed increases are identical. The only additional reason for an increase which is listed on the notice dated December 24, 1986, from the new owners is "Maintenance needs of the park." The notices sent by the new owners, the COOPERATIVE, were postmarked December 30, 1986, and were placed in the individual post office boxes of all of the tenants on the same day. Page twelve of each prospectus defines "notice" as follows: Unless otherwise provided by statute, administrative rule, or this Prospectus, any notice shall be deemed given by posting by first class mail or by actual hand delivery. Rule 7D-32.02(3), Florida Administrative Code, the applicable rule to these proceedings, provides as follows: Notice given by personal delivery shall be deemed given when actually delivered to the homeowner. Notice by U.S. Mail shall be deemed given five days after notice is placed in the U.S. Mail addressed to the mobile homeowner's last known address. As the prospectus and the amended prospectus both defer to the administrative rule in effect which defines the term "notice," the COOPERATIVE's notice did not occur within a ninety day period, even under the COOPERATIVE's theory of the case, as set forth in its Proposed Recommended Order.
Findings Of Fact The Respondents, Mr. and Mrs. Sherman Clarke, previously held a foster home license issued by the Petitioner, Department of Health and Rehabilitative Services ("the Department"). By letter dated August 11, 1995, the Department advised the Respondents that the Department would not be re-licensing their foster home. The letter stated the reasons for the Department's decision not to re-license the Respondent's foster home. The letter also included the following information: You are further advised that within 30 days of receipt of this letter you may contest the decision of this agency by requesting an administrative hearing pursuant to the Administrative Procedure Act, Chapter 120, Florida Statutes. Your request for an administrative hearing should be made by sending a written request to: Karen M. Miller District Legal Counsel 111 South Sapodilla Avenue, Third Floor West Palm Beach, FL 33401 The Department's letter of August 11, 1995, was sent by certified mail, return receipt requested. The letter was received by the Respondents on August 16, 1995. The Respondents waited until January 18, 1996, to request an administrative hearing. On that date they wrote and mailed a certified letter addressed to Karen M. Miller in which they, for the first time, requested an administrative hearing. The letter of January 18, 1996, was received by the Department a few days after it was mailed. The record in this case does not contain any explanation as to why the Respondents waited until January 18, 1996, to request an administrative hearing.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order in this case concluding that the Respondents waived their right to contest the Department's decision not to re-license their foster home. DONE AND ENTERED this 31st day of October, 1996, in Tallahassee, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1996. COPIES FURNISHED: Catherine Linton, Esquire District 9 Legal Office Department of Health and Rehabilitative Services 111 Sapodilla Avenue West Palm Beach, Florida 33401 Mr. and Mrs. Sherman Clarke 509 44th Street West Palm Beach, Florida 33407 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 2, Room 204-X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
Findings Of Fact The Subject Property. The property at issue in this proceeding consists of approximately 66 lots (hereinafter referred to as the "Subject Property"), located in Highridge Estates Subdivision (hereinafter referred to as "Highridge"). Each lot is approximately one-third acre in size. Highridge and the Subject Property are located in Clay County, Florida. Highridge was filed in the public records of Clay County, Florida, as a platted subdivision in January of 1970. At the time Highridge was platted, each lot met the zoning requirements applicable to Highridge. Pursuant to then-existing zoning, each Highridge lot could be developed as a single-family residence by construction or the placement of a mobile home thereon. Adoption of the Clay County 2001 Comprehensive Plan. Clay County adopted the Clay County 2001 Comprehensive Plan (hereinafter referred to as the "Plan"), on January 23, 1992, as required by the Local Government Comprehensive Planning and Land Development Regulation Act, Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). At the time of the adoption of the Plan, the Plan contained policies which would have permitted lots such as those in Highridge that had not yet been developed to be developed as a single-family residence by the placement of a mobile home thereon. As required by the Act, the Plan was submitted to the Florida Department of Community Affairs (hereinafter referred to as the "Department"), for review and determination of whether the Plan was "in compliance" as defined by the Act. During the time that the Plan was being considered it was publicly known that the policies which would allow the placement of mobile homes on each of the lots in Highridge might not be accepted by the Department. Petitioner's Acquisition of the Subject Property. During the early 1990's William Bitetti began looking for real estate to invest in. Mr. Bitetti, through the services of Century 21 Lakeside Realty, became aware of the availability of lots in Highridge as a possible investment. Mr. Bitetti was assured by Century 21 Lakeside Realty's realtor that Highridge could be developed by the placement of a single mobile home on each lot. On or about March 25, 1992 Mr. Bitetti entered into a Contract for Sale and Purchase of 56 lots in Highridge. The following condition was included in the Contract for Sale and Purchase: this contract is only conditioned upon Buyer being able to place a Doublewide Mobile Home with attendant well, septic tank and system and electric service on each Lot, to be deter- mined by Buyer's attorney within 2 (two) weeks of the effective date of this contract. Mr. Bitetti intended that the lots would be purchased by the Petitioner, St. William Land Company, Inc. Mr. Bitetti is the sole shareholder and the President of Petitioner. Mr. Bitetti intended that the lots would be marketed for sale as single-family mobile home sites. Mr. Bitetti's attorney, Paul D. Newell, had experience with Highridge, having owned lots within Highridge himself. Mr. Newell was also aware of the language of the Plan that would allow development of the lots in Highridge. Mr. Newell had attempted to keep himself informed as to the progress of the Plan. Mr. Newell spoke to an official of the Clay County Planning and Zoning Department to confirm the language that would allow development of the lots in Highridge was included in the Plan and was told that it was. Mr. Newell also confirmed that regulations in existence at the time would allow Mr. Bitetti to market the lots as intended. The evidence failed to prove that any official of Clay County gave Mr. Newell assurances that the Plan would be approved by the Department as written. Mr. Newell was aware that the Plan had been submitted to the Department for review and had not yet been approved by the Department. Mr. Newell was also aware that it was possible that the Department would not accept the portion of the Plan that allowed continued development of developments like Highridge. On May 21, 1992 the Petitioner purchased the 56 lots in Highridge. Two of the 56 lots were subsequently sold by Petitioner. On or about October 12, 1992, Petitioner purchased an additional 12 lots in Highridge. The 12 lots purchased on October 12, 1992 and 54 of the lots purchased on May 21, 1992 constitute the Subject Property. At the time of purchase, the Subject Property lots could be sold for the installation of a mobile home on each lot pursuant to the law then in effect. The Plan was, however, still being reviewed by the Department. The Subject Property lots have direct access to a publicly owned and maintained right-of-way or to a privately owned platted right-of-way. Alleged Government Action Relied Upon by the Petitioner. On or about July 5, 1992, after acquiring the first 56 lots, Petitioner was issued a permit by the Clay County Building Department authorizing Petitioner to place a mobile home sales model on one of the lots. The evidence failed to prove that Clay County made any representation to Petitioner or Mr. Bitetti, or their representatives, that the policies of the Plan which would allow each lot of the Subject Property to be developed as individual sites for mobile homes would be approved by the Department or that, if it was, the law would not subsequently be changed. Nor did the evidence prove that Clay County represented in anyway that the Subject Property could be developed as Petitioner intended. Petitioner's Alleged Detrimental Reliance. Petitioner purchased the Subject Property for approximately $49,048.18, including closing costs. Two of the 68 lots purchased by Petitioner were subsequently sold. Petitioner realized a profit of approximately $2,582.31 on the sale of these lots. During 1992 Petitioner paid $29,515.37 to purchase and locate a mobile home as a model on one of the lots, to furnish the mobile home, and for landscaping, utilities, and the installation of a well, septic tank and power pole associated with the lot the mobile home was placed on. Petitioner also incurred the following expenses: $1,452.29 for postage associated with attempting to sell lots; $250.00 for charitable donations; $167.66 in bank account service fees; $2,957.85 for hazard and liability insurance; $36.50 in "miscellaneous" expenses; $2,355.72 for ad valorem taxes; and $510.00 in legal fees. Similar expenses were also incurred in 1993. The evidence failed to prove that Petitioner incurred any expenses or obligations for the development of the Subject Property. Rights That Allegedly Will Be Destroyed. Subsequent to Petitioner's acquisition of the Subject Property, the issuance of the permit to place a mobile home sales model on one of the lots and the acquisition of the mobile home and placement of the mobile home on one lot, the Plan was determined to not be in compliance with the Act. In particular, it was determined that the policies of the Plan which would have permitted lots such as those in Highridge that had not yet been developed to be developed by the placement of a mobile home on each lot caused the Plan to be "not in compliance". Clay County subsequently amended the Plan to eliminate the policies that would have permitted lots such as those in Highridge that had not yet been developed to be developed by the placement of a mobile home on each lot. The Plan was determined to be in compliance on April 27, 1993. As a result of the elimination of the policies pertinent to this matter, Clay County was required to modify the zoning for the Subject Property. The Subject Property was zoned for use for the smallest lot size allowed pursuant to the Plan: one-half acre. As a result of the foregoing, most of the Subject Property lots are too small to be developed individually. Pursuant to the Plan, lots that stand alone may be developed by the placement of a single mobile home thereon. Two of the 66 lots stand alone and, therefore, may be developed by the placement of a single mobile home thereon. The remaining 64 lots of the Subject Property are located in contiguous groups and, pursuant to the Plan, must be combined into one-half acre lots or larger. As a result, the Petitioner will lose the ability to sell some number of his lots for the placement of a single mobile home thereon. The evidence failed to prove what the actual economic impact will be to Petitioner if it cannot sell each lot for use as a single mobile home lot. Petitioner was notified by a letter dated August 24, 1993 and a letter to its real estate broker dated January 24, 1994 and a letter to Mr. Bitetti dated February 2, 1994, of the restrictions on the use of the Subject Property. The letters were all from Clay County personnel.
The Issue The issue is whether Respondent discriminated against Petitioner based on her sex or an alleged handicap contrary to Sections 760.20 through 760.37, Florida Statutes (2008), Fair Housing Act, as amended (the Act).
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 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.
Findings Of Fact After a realtor told Robert Edward Poland that the Flagship Bank was foreclosing on Villa Rosa Mobile Home Park in Jacksonville Beach, Mr. Poland and his wife offered to purchase the property. The incompetency of the owner, Mrs. Ritchie, then in her eighties, together with ensuing legal proceedings, complicated negotiations. But on August 21, 1986, Robert Edward Poland and Jacqueline Poland became joint owners of Villa Rosa Mobile Home Park. A portion of the park they acquired in fee simple, but another portion (now known as Beach Boulevard Trailer Park) they acquired only as a life estate pur autre vie. On the death of Mrs. Ritchie in mid-October 1987, the life estate was extinguished, and that portion has become the property of Mrs. Ritchie's daughter, Elizabeth Drey, and possibly the daughter's husband, Richard Drey. Only beginning with rent for February of 1989, however, have the Dreys begun receiving income from the trailer park. Rent Raised On August 21, 1986, the day they acquired ownership, the Polands gave tenants written notice of their intention "to adjust rent effective December 1, 1986" to $130 a month for a single mobile home lot and to $155 monthly for a double wide mobile home on a single lot. This proposed rental increase did not pertain to lots 3, 6, 13, 15, 47, 48, 49, 50, 51, 52, 53, 54, 55, or 007, which were rented only to over-nighters. Perhaps misunderstanding the notice, Tom Williams on Lot C began paying a higher amount on October 1, 1986, before the increase took effect. The following month, Debra Black Wood, J. E. Turner and James Mahoney also paid the increased rent prematurely. In their cases, and in the case of Mr. Williams, the Polands accepted the money but credited the surplus to the tenant. Not counting the lot which the boundary between the Drey property and the Polands' property divides, Mr. and Mrs. Poland offered for rent or lease 26 or more mobile home lots as residences, both before and after Mrs. Ritchie's death. The following tenants' monthly rent increased by the amounts indicated on December 1, 1986: Name of Tenant Lot No. Amount of Increase Ila Story 1 $30.00 Rosa Robinson 2 30.00 Rick Tahey 4/5 55.00 Virginia Dawson 7 5.00 Isabe Sutcliffe 8 30.00 Deborah Blackwood 9 5.00 B. E. Turner 12 30.00 Ingrid C. Fegan 14 30.00 Helen Marin 17 40.00 Alden Waterman 18 30.00 Ethel Dunsmoor 19 30.00 Martina O'Hare 20 30.00 Zora Hyde 21 30.00 William Vollkmer 22 30.00 Richard Rasmussen 23 5.00 Marjorie Barnes 24 30.00 James Mahoney 26 30.00 Roger Zucco 27 5.00 George Bunting 29 55.00 Robert Grabel 30 55.00 David Escopie 31 30.00 Catherine Stevens 32 30.00 Richard Law 33 30.00 Maxwell Page 35 30.00 Helen Hines 36 5.00 Norman Peterson 37 5.00 Hernandez/Johns 38/39 25.00 Lester Rogers 40 30.00 Rita Boyer 41 30.00 Thelma Thornton 42 30.00 Maxwell Page 43 30.00 Kenneth Driscoll 44 55.00 Edna Praine 45 55.00 Cassus Powell 100 30.00 David Koehler 101 5.00 Jerry Welker 102 62.50 John Embleton 103 5.00 Corrine Beach 104 55.00 Clyde Wiley 105 30.00 Candie Blasman 106 30.00 Harry Wilson 107 30.00 Stanley Dolka A 30.00 Goffery Riser D 5.00 William Page E 30.00 Pat Pattillo F 40.00 Roy Pike G 30.00 Frieda Suomella H 5.00 Charlotte Reid I 30.00 Bernard Hakes J 30.00 Herbert Davis K 30.00 Lee Haley L 30.00 Heide Alexander M 30.00 Joseph Moore N 5.00 Mary Lo Wampler O 40.00 Ernest Grizzard P 30.00 Bertha Martin Q 40.00 Cathy Lumbar R 65.00 Ruth Pooley S 5.00 Norma Baker U 5.00 H. W. DeMoss V 30.00 Arthur Pitman W 40.00 Jesse Wagnor X 5.00 James Hicks Y 5.00 Robert Wilder 00 20.00 At hearing, Mr. Poland testified to a total of 85 lots of which "seventy-three are singlewide [including some devoted to overnighters], and the balance would be overnighters or doublewides." T.88. According to DBR records, respondents reported 87 lots when applying for approval for their prospectus. Petitioner's Exhibit No. 3, pp. 000017, 000021. Past Practice Historically, the park had been run on the basis of oral agreements, creating month-to-month tenancies. Such records as existed when the Polands acquired ownership of the mobile home park reflected 13 different amounts charged different tenants for equivalent mobile home lots. Apparently Mrs. Ritchie had played favorites. A longtime resident testified that the rental rate structure was "kind of on the buddy/buddy system." T. 68. From time to time, and on no more than a month's notice, Mrs. Ritchie had raised rents. Robert L. Davis, who moved to the trailer park in October of 1976, originally paid $50.00 a month. On September 1, 1983, monthly rent increased from $50.00 to $75.00; and on December 1, 1983, from $75.00 to $100.00. One longtime resident, Katherine Stevens, "imagined" (T.127) that Mrs. Ritchie had asked for rent increases to defray utility rate hikes, but written notices of increases offered no explanation. T.48-49. Like Mr. Davis and Ms. Stevens, Robert Wilder, who seeks no money in this proceeding (T.75), was a tenant at the mobile home park before June 4, 1984. Until May of 1986, nobody ever received a prospectus. On June 10, 1983, however, rules and regulations were drawn up which provided in paragraph 20: Management specifically reserves the right to increase rental rates, fees, charges or assessments imposed on resident either by amendment or by addition to these rules, provided thirty (30) day written notice is given. Rosa Ritchie herself gave Ms. Stevens and other tenants a copy of the rules and regulations which first set out in writing her practice of giving thirty days' notice before raising rents. Regulatory Approval Only after the Polands had acquired the property, and announced their intention to raise rents, did Mr. Poland learn of the requirement that a prospectus be furnished tenants. On September 9, 1986, he wrote Mr. John D. Floyd of DBR as follows: With regards to the prospectus of Villa Rosa, please find enclosed a copy of the Rules and Regulations which are provided each tenant prior to renewing or extending `an existing rental agreement and prior to entering into a new rental agreement. This document was previously submitted to your Division and I assume that it remains acceptable. Petitioner's Exhibit No. 3. In response, Senior Clerk Pamela T. Parker of the Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, wrote Mr. Poland on September 19, 1986, listing various "deficiencies for form." With regard to the prospectus, she wrote, among other things: The prospectus fee was not in accordance with Section 723.011(1)(d), Florida Statutes. Please submit a check for the appropriate amount. Petitioner's Exhibit No. 3. Having received this reply, Mr. Poland wrote Ms. Parker on September 25, 1986, as follows: Enclosed please find the Mobile Home Prospectus, Filing Statement and Filing Fee. Currently, there are no rental agreements in writing for the mobile home park. All agreements are oral, to the best of my knowledge. Petitioner's Exhibit No. 3, p. 000018. Petitioner received Mr. Poland's letter of September 25, 1986, the following day. The letter is marked "RECEIVED FISCAL SEP 26 1986." DBR's Division of Florida Land Sales, Condominiums and Mobile Homes did not "process" the $150 check which accompanied the letter, until October 15, 1986, however, when somebody marked the letter "RECEIVED FISCAL OCT 15 1986" and crossed through the earlier received stamp. Another eight days passed before a form letter from the Division went out to Mr. Poland advising him of the Division's intention to examine the contents of his filing, to ensure its adequacy, and promising him he would "be notified as to the results of this examination within" forty five days of October 15, 1986. On November 20, 1986, more than 45 days after the prospectus had been received, the Division sent another letter to Mr. Poland, signed by Bridget St. Clair, apprising Mr. Poland of a number of deficiencies in the prospectus. On December 2, 1986, Mr. Poland made a second submission. In a cover letter addressed to Ms. St. Clair, he wrote: During our recent telephone conversation, you indicated that a prospectus is not necessary unless a rate increase Is anticipated. Since I have no intention of raising rates for the next year, I do question why this prospectus is necessary. Your thoughts on this point would be greatly appreciated. Petitioner's Exhibit No. 3, p. 000013. In May of 1987, after several further emendations, Mr. Poland was told over the telephone that the prospectus submitted in December passed muster, as revised. Having received oral approval, he asked an employee, Jack N. Justice, to deliver prospectuses. Mr. Justice delivered by hand to every resident who was home a copy of the prospectus and, whenever somebody was not at home, put a copy in the mail box. (Before these deliveries, the planned increase in rent had taken effect, as of December 1 of the previous year.) Petitioner gave written notice of approving the prospectus by letter dated May 27, 1987. The approved prospectus apprised tenants of the landlord's intention to pass on "ad valorem property taxes or utilities charges ... during the term of the lot rental agreement ... [p]rorated equally among all lots," Petitioner's Exhibit No. 1, p. 46, and warned tenants that an increase in water, sewer or garbage collection charges or property taxes "may result in an increase in the home owner's lot rental amount." Id. Rent Raised Again On June 25, 1987, Mr. Poland sent out a second notice proposing another increase of rent, to take effect on October 1, 1987, "due to the increase in real estate taxes and for capital improvements, including the water pressure problems complained of." Petitioner's Exhibit No. 4. The increase amounted to $15.00 per month for each single mobile home on a single lot, and to $20.00 for double wide mobile homes (or other mobile homes on double lots.) Id. On April 7, 1987, the City of Jacksonville Beach increased water and sewer rates. Mr. Poland's claim that the increase resulted in an average additional charge of approximately $14.12 per month per lot went unrebutted. A garbage collection container had to be added at $100 ($1.15 per lot) a month; $330 was expended to install a new water meter. Ad valorem taxes increased between 1985 and 1986, but were not shown to have risen at any time after December 1, 1986. The following tenants paid increased rent in the following monthly increments, effective October 1, 1987: Name of Tenant Lot No. Amount of Increase *Ila Story 1 $15.00 Mark Robson 2 15.00 *Rick Tahey 4/5 25.00 Seahorn/Gulledge 7 15.00 *Isabe Sutcliffe 8 15.00 William R. Hernandez 9 15.00 Bertie Willis 10/11 25.00 *B. E. Turner 12 15.00 *Ingrid C. Fegan 14 15.00 Ray Brozoski 16 5.00 *Helen Marin 17 15.00 *Alden Waterman 18 15.00 *Ethel Dunsmoor 19 15.00 *Martina O'Hare 20 15.00 *Zora Hyde 21 15.00 *William Vollkmer 22 15.00 William E. Wolfe 23 15.00 H. D. Seahorn 25 15.00 *James Mahoney 26 15.00 *Roger Zucco 27 15.00 Roland Page 28 15.00 *George Bunting 29 15.00 *Robert Grabel 30 15.00 Joseph Mickey 31 5.00 *Catherine Stevens 32 15.00 *Richard Law 33 15.00 Edna Barrett 34 15.00 *Maxwell Page 35 15.00 *Helen Hines 36 15.00 Christ. Hooley 37 15.00 *Hernandez/Johns 38/39 20.00 Arminta Rogers 40 15.00 *Rita Boyer 41 15.00 *Thelma Thornton 42 15.00 *Maxwell Page 43 15.00 *Kenneth Driscoll 44 15.00 *Edna Praine 45 15.00 James Wilson 46 15.00 Nancy C. Lane 100 15.00 *David Koehler 101 15.00 *Jerry Welker 102 15.00 *John Embleton 103 15.00 *Corrine Beach 104 20.00 *Clyde Wiley 105 15.00 *Candie Blasman 106 15.00 *Harry Wilson 107 20.00 *Stanley Dolka A 15.00 Tom Williams C 15.00 *Goffery Riser D 15.00 *William Page E 15.00 *Pat Pattillo F 15.00 *Roy Pike G 15.00 *Frieda Suomella H 15.00 *Charlotte Reid I 15.00 Michelle Holt J 15.00 *Herbert Davis K 15.00 *Lee Haley L 15.00 *Heide Alexander M 15.00 Joseph Morris N 15.00 *Mary Lo Wampler O 15.00 *Ernest Grizzard P 15.00 Juanita Holliman Q 15.00 *Kathalee Lombar R 15.00 *Ruth Pooley S 15.00 *Norma Baker U 15.00 *H. W. DeMoss V 15.00 *Arthur Pitman W 15.00 *Jesse Wagnor X 15.00 *James Hicks Y 15.00 W. Crowe Z 15.00 *Robert Wilder 00 20.00 Asterisks indicate those who were tenants on December 1, 1986. No lot rental agreements were in writing.
Recommendation It is, accordingly, RECOMMENDED: That petitioner reprimand respondents for raising rents before distributing prospectuses to their tenants. That petitioner require respondents to return the amounts by which rents collected for December of 1986 and January, February, March and April of 1987 exceeded rents charged the same tenants for November of 1986. DONE AND ENTERED this 1st day of December, 1989, in Tallahassee, Leon County, Florida. ROBERT T. BENTON, II 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 1st day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5983 Petitioner's proposed findings of fact Nos. 1 through 4 recite procedural matters only. Petitioner's proposed findings of fact Nos. 5 through 11, 13, 15 through 19, and 21 through 25 have been adopted, in substance, insofar as immaterial. With respect to petitioner's proposed finding of fact No. 12, ad valorem taxes may also have contributed to the 1986 increase. Petitioner's proposed finding of fact No. 14 is rejected. With respect to petitioner's proposed finding of fact No. 20, Mrs. Ritchie distributed something she called rules and regulations. With respect to petitioner's proposed finding of fact No. 26, the charges themselves were included but not increases. Respondents' proposed findings of fact Nos. 1 through 4, 6, 7, 10 through 12, 14 through 17, 21, 22, 23, 25, and 26 have been estopped, in substance insofar as material. Respondents' proposed finding of fact No. 5 in immaterial. With respect to respondents' proposed findings of fact Nos. 8 and 9, the change in garbage collection charges, except for addition of a dumpster, occurred before respondents acquired the property; and the tax increase was $5,000.00 not $10,000.00. With respect to respondents' proposed finding of fact No. 13, respondents' selective (DBR advised them not to raise rents before distributing prospectuses) reliance on DBR for legal advice, whenever it may have ended, does not give rise to an estoppel. With respect to respondents' proposed findings of fact Nos. 18 and 19, utility rate charges are only one variable; usage was not proven. With respect to respondents' proposed finding of fact No. 20, Leroy Kierstaedt and Haze Studivant were apparently overnighters. With respect to respondents' proposed finding of fact No. 24, Ms. Stevens said she "imagined" this was so. Respondents' proposed finding of fact No. 27 was not established by the evidence. COPIES FURNISHED: Reynold Meyer Assistant General Counsel Department of Business Regulation Division of Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1070 Jeffrey C. Regan, Esquire 1300 Gulf Life Drive Jacksonville, Florida 32207 =================================================================
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.
