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 =================================================================
Findings Of Fact As of June 4, 1984, ten or more spaces in Southwinds Mobile Home Park were being leased by individuals who owned the mobile homes in which they resided on the property. Some of those ten or more residents were Beverly Leight, William Daniel, Frank Addison, Keith Hellstrom, Faye Koch, and Helen Sutton. As of May 25, 1986, ten or more spaces in Southwinds Mobile Home Park were being leased by individuals who owned the mobile homes in which they resided. On May 25, 1986, Johnny Owens owned the mobile home in which he resided on leased Lot 10. As of October 28, 1986, ten or more spaces in Southwinds Mobile Home Park were being leased by individuals who owned the mobile homes in which they resided. On that date, Charles and Pauline Murphy owned the mobile home in which they resided on leased Lot 26. Upon paying the annual fee for southwinds Mobile Home Park, pursuant to Section 723.007 F.S., for the period of October 2, 1987 through October 1, 1988, Respondent Hugh D. Rowles, the park owner, advised Petitioner agency that he had dropped below ten lots available for rent. Respondent had reached this stage by simply not leasing out lots to new tenants as lots were voluntarily vacated by old tenants, and a natural attrition had occurred. The Petitioner's Fees Section accepted Respondent's word on the matter without further investigation, and Petitioner sent Respondent no more statements for the payment of the annual fee. In its business and public records, Petitioner listed Respondent and his park as not under jurisdiction of Chapter 723 F.S. On December 27, 1988, Respondent Rowles still owned Southwinds Mobile Home Park. As of that date, Beverly Leight, William Daniel, Frank Addison, Keith Hellstrom, Faye Koch, Helen Sutton, Johnny Owens, and the Murphys (8 tenants) were still residing in their respective mobile homes on the lots they were leasing from Respondent in Southwinds Mobile Home Park, as described supra. On that date, Leight, who had sold the park to Respondent in 1980, and Daniel, Addison, Hellstrom, Koch, and Sutton had been residents of Southwinds Mobile Home Park for at least three and a half years each; Owens had been a resident approximately two and a half years, and the Murphys had been residents approximately two years. In the park there were also some mobile homes owned' by Respondent which were rented as units--lot and mobile home together. To those individuals who owned their mobile homes and were leasing lots in Southwinds Mobile Home Park, Respondent sent a letter dated December 27, 1988, which provided in pertinent part: To those of you who own your own homes, I want to give you as much advance notice as possible. Sometime within the next few weeks, you will begin seeing land surveyors, soil testing people and others in the park. There is a VERY STRONG possibility that the property will be sold in JUNE of 1989. If and when the property is sold, there will NO LONGER be a trailer park here. It is STRONGLY SUGGESTED that you start making plans NOW for the removal of your trailer. If there is any way that I can assist you in relocating, I will be glad to help you. Until further notice, everything remains as usua1. After serving the letter f December 27, 1988, Respondent served the mobile home owners in Sothwinds Mobile Home Park with no other notice prior to June 1989. Faye Koch interpreted the letter of December 27, 1988 as requiring her to leave southwinds Mobile Home Park. Beverly Leight, on the other hand, understood it to mean that the park might be sold, but not that it definitely would be sold. In January 1989, Mr. Rowles offered Mrs. Koch $1,000 to leave the park by February 1, 1989. She moved out to a larger, better mobile home, after paying Respondent her overdue rent. Respondent rented the mobile home purchased from Mrs. Koch and the lot it was on, as a unit, to another person foil a short while. Rowles also purchased the mobile home of Keith Hellstrom for $1,000, which he likewise rented to someone else as a unit with his lot for a short time, He purchased Johnny Owens' mobile home for $1,000. Thereafter, Rowles sold each of these mobile homes at a loss. The Koch, Hellstrom, and Owens mobile homes were sold by Rowles for $100, $500, and $100, respectively. In March 1989, Respondent Rowles was contacted by a representative of Petitioner, apparently from the Enforcement Section, who had been contacted by Mrs. Leiht, and who advised Rowles of Petitioner agency's position that the tenancies of the remaining mobile home owners in Southwinds Mobile Home Park were subject to the protections of Chapter 723 F.S. Respondent advised Petitioner's representative that he did not regard his park as covered by Chapter 723 F.S. Respondent also requested Petitioner's representative to show Respond.ent that Chapter 723 FS was applicable to him and his park and advised the agency representative that, if he was subject to the agency's jurisdiction, he would comply. Respondent received no written response from the agency until the Notice to Show Cause was filed on July 18, 1989. On April 6, 1989, Respondent and his wife entered into a contract for the sale of the property comprising Southwinds Mobile Home Park to a third party. An addendum to the contract required Respondent to remove or pay for the removal of all personal property (that is, the mobile homes) located on the parcel upon being given thirty days notice from the third party buyer. The contract c6ntemplated that the property would continue to operate as rental property until the new owners elected to close it down or change its function. The closing on this contract for sale still had not occurred as of the date of formal hearing. The purchasers of the property comprising Southwinds Mobile Home Park have never given Respondent notice to remove any personal property from the park, nor has permitting of the property occurred such as would entitle the buyers to demand removal of such personal property. At the time Respondent entered into the April 6, 1989 contract for sale of Southwinds Mobile Home Park, only four mobile home owners were still leasing lots in the park. It may be inferred from the testimony as a whole that these were month to month tenancies. Respondent attempted to negotiate purchase of those four mobile homes. He did not suggest to any residents that they had any other options besides moving their mobile homes out of his park or selling them to him. Mrs. Leight held out for $2,500 and refused to move. She was joined in her refusal by Mr. Daniel, Ms. Sutton, and a Miss Warnock, all of whom were residing in their own mobile homes on Respondent's lots. On June 1, 1989, Respondent notified the fourmobile home owners remaining in Southwinds Mobile Home Park toremove their mobile homes no later than June 30, 1989. Thisnotification is in accord with the standards of Section 83.03(3)F.S. for month-to-month tenancies. At that point, Leight, Daniel, and Sutton were four-year residents There is noinformation as to Warnock's term of residency at southwindsMobile Home Park. On August 4, 1989, Respondent shut off waterservice to the mobile home owners remaining in southwinds MobileHome Park. As a result of Respondent's action, Beverly Leightwas compelled to move out of her mobile home in order to complywith health department requirements. In so doing, she incurredcosts of 4,486, for which she has not been reimbursed; however,she is one of the four remaining mobile homed owners (Leight,Daniel, Sutton, and Warnock) who left the subject property on orbefore October 30, 1989, pursuant to a stipulation with the Respondent whereby the Respondent deposited $10,000 with their attorney pending a judicial determination as to whether themobile home lot tenancies were governed by Chapter 723 or by Chapter 83, Parts II F.S. The Circuit Court action wherein the stipulation was filed had not yet resulted in such adetermination as of the date of formal hearing.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes enter a final order dismissing the Notice to Show Cause. DONE and ENTERED this 6th day of March, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 6th day of March, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-4572 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Accepted: 1-17, 19. Rejected as mere characterization of testimony and argument of counsel: 18 (with footnote) Respondent' s PFOF: Accepted: 1-3, 5-10, 12 Except for irrelevant, immaterial, subordinate or unnecessary material, the following PFOF are accepted: 4 Rejected as containing a conclusion of law: 11 COPIES FURNISHED: Eric H. Miller Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 F.A. Ford, Jr., Esquire Post Office Box-48 DeLand, Florida 32721-0048 E. James Kearney, Director Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 =================================================================
The Issue Did Westside Ridge Adult Mobile Home Community (Westside) violate Rule 10D-26.085, Florida Administrative Code, by having standing water in its mobile home park for more than 48 hours? If so, is this sufficient basis for the Department of Health and Rehabilitative Services (Department) to deny Westside's application for renewal of its mobile home park operating permit?
Findings Of Fact Upon consideration of the deposition testimony and documentary evidence presented by the parties in this case, the following findings of fact are made: Westside Ridge, Ltd., a Florida limited partnership, is the owner of Westside Ridge Adult Mobile Home Community. Under Chapter 513, Florida Statutes, the Department, in conjunction with the representative county public health units, such as the Polk County Public Health Unit, is the agency charged with the responsibility of inspecting mobile home parks such as Westside to assure their compliance with public health laws and rules. On August 14, 1995, the Department inspected Westside and found water underneath some of the mobile homes in the park; water covering some of lots in the park; and water ponding in some of the streets in the park. This water had been standing for more than 48 hours. The Department's inspector issued an Inspection Report dated August 14, 1995. This report indicated that the unsatisfactory condition found at the mobile home park was the park drainage. The report stated that all violations of standing water must be corrected within 14 days. Westside received a copy of the Inspection Report from the August 14, 1995, inspection in a timely manner. Sometime around September 10, 1995, Westside retained the services of J. D. Smith Exterminators, Inc. (Smith), a professional pest control service, to treat any standing water in Westside's mobile home park. Westside has not corrected the conditions which affected the drainage in the mobile home park and resulted in the water standing in the park for over 48 hours. The Department contends that the rule requires Westside correct the conditions - either fill in the depressions in the soil or provide proper drainage of the water - which affect the drainage and results in water standing over 48 hours in the mobile home park. Westside contends that the rule does not prohibit water standing over 48 hours where the water is treated and does not contribute to mosquito or fly breeding. By letter dated September 15, 1995, Westside advised the Department that Westside would retain a professional pest control service to prevent any standing water from contributing to mosquito or fly breeding. Westside also requested that the Department advise it if the Department intended to seek enforcement pursuant to the Department's interpretation of Rule 10D-26.085, Florida Administrative Code. Apparently, the request concerning enforcement was made as a result of a telephone conversation between one of the Department's representatives and Westside's counsel on Thursday, September 14, 1995, concerning the Department's interpretation of the rule and what the Department intended to require Westside to correct the alleged violation of the rule. The Department did not advise Westside or its counsel of its intent to pursue enforcement. On or about September 10, 1995, Smith visited Westside mobile home park and found water standing as reported on the August Inspection Report but did not treat the water because Smith did not have the necessary chemical on hand. On or about September 13, 1995, Smith returned to Westside's mobile home park to treat the standing water but, upon arrival, Smith did not find any standing water at the mobile home park that required treatment. Before Westside's current annual mobile home park operating permit expired, Westside timely filed its application with the Department for the renewal of its mobile home park operating permit. The Department issued a Denial Of Application For Mobile Home Park/Recreational Vehicle Park Operating Permit dated November 26, 1995, denying Westside's application for its annual mobile home park operating permit. The basis of the Department's denial was that Westside mobile home park had violated Rule 10D-26.085, Florida Administrative Code, in that the mobile home park had been found to have standing water in the park in excess of the 48 hour period allowed by the rule. The denial also warned Westside that unless it had requested a hearing, or ceased operating the park, or remit a plan of action to remove all standing water and measures to prevent reoccurrence of the violation that Westside would be cited for operating without a valid permit within 30 days. During the summer of 1995, there was an above-average rainfall in Polk County, Florida which resulted in flooding problems in mobile home parks located throughout Polk County, Florida, including Westside's mobile home park. Based on the testimony of the Department's employees involved with the inspection of mobile home parks, the flooding conditions were the worst seen in Polk County, Florida in 25 years. The is no evidence of how long water had been standing in Westside's mobile home park before the Department's inspection on August 14, 1995, other than it had been standing over 48 hours. There is no evidence of Westside being cited for having water standing in its park for over 48 hours at any time previous to the August 14, 1995, inspection. There is no evidence of any water standing, for any length of time, in Westside's mobile home park, after September 14, 1995. Although the inspection report for January 10, 1996, indicates water standing in drainage ditches along the sides of Westside mobile home park, there is no evidence that these drainage ditches are in fact within the park boundary. The Department did not inspect Westside mobile home park again until January 10, 1996, which was after the issuance of the denial of the permit on November 26, 1995. There were no violations or unsatisfactory conditions, such as drainage, indicated on the Department's January 10, 1996, Inspection Report, notwithstanding that the Department's position is that since Westside has failed to correct the drainage problem which resulted in the standing water it continues to be in violation of Rule 10D-26.085, Florida Administrative Code. Treating standing water with chemicals to prevent mosquito and fly breeding does not solve all of the public health problems that may be associated with water that has been standing for long periods of time. It is the Department's position that water standing in the park for more than 48 hours is a violation of Rule 10D-085, Florida Administrative Code, and, without any other violation, is sufficient to deny the application for the operating permit. Other than the violation for having standing water in the park for over 48 hours and the failure to correct the conditions which resulted in the standing water, the Department concedes that Westside meets all other criteria for granting the application for a mobile home park operating permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order granting Petitioner's application for a mobile home operating permit. However, it is further recommended that the Department monitor the Westside mobile home park so as to determine if conditions presently existing at the park result in water standing in the park in excess of 48 hours under normal rainfall. If water found is to be standing in the park in excess of 48 under normal rainfall, the Department should then move to require Westside to correct the condition. RECOMMENDED this 7th day of May, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0273 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. Proposed findings of fact 1 through 11, 13, 16, 17, 19 through 25, 29, 30, 31 and 33 through 36 are adopted in substance as modified in the Findings of Fact 1 through 22. Proposed findings of fact 12 and 26 through 28 are neither material nor relevant. Proposed findings of fact 14, 15 and 37 through 41 are argument rather than findings of fact. Proposed findings of fact 18 and 32 are not supported by evidence in the record. Department's Proposed Findings of Fact. Proposed findings of fact 1 through 22 are adopted in substance as modified in Findings of Fact 1 through 22. Proposed findings of fact 23 and 24 are argument rather than findings of fact. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Timothy F. Campbell, Esquire Clark, Comparetto & Campbell, P.A. 4740 Cleveland Heights Boulevard Post Office Box 6559 Lakeland, Florida 33807 Jack Emory Farley, Esquire Department of Health and Rehabilitative Services District 14 270 Bartow Municipal Airport Bartow, Florida 33830
The Issue This case concerns a Notice to Show Cause served by Petitioner on Respondents, by which Petitioner orders Respondents to cease and desist their activities, to pay statutory fees, and to be assessed penalties. The activities in question are associated with the alleged need for Respondents to pay annual fees for mobile home lots rented within an alleged mobile home park operated by Respondents from the years 1984 through 1991. See, Section 723.007, Florida Statutes. Based upon the alleged nonpayment of the annual fees, Petitioner seeks to impose a civil penalty in accordance with Section 723.006(5)(d)1., Florida Statutes.
Findings Of Fact In 1978, Park T. Brittle purchased property in Leon County, Florida, which had been foreclosed on by Barnett Bank. This property had been originally developed by Miles Salgret. Prior to the purchase by Park T. Brittle, some lots had been sold by Mr. Salgret, approximately four in number. The property in question is known as Briarwood Estates. The Briarwood Estates is for use by mobile home owners who either own or rent lots on this property. Subsequent to his purchase, Park T. Brittle had the property surveyed by Tom Howard, a surveyor. Through this survey, a plat was prepared. The plat was submitted to the Leon County Property Appraiser. Subsequent to that time, beginning in 1980, the lots within Briarwood Estates have been individually assessed by the Property Appraiser for tax purposes. That is to say that the tax assessment is made on the individual lot owners. Park T. Brittle has sold 29 or 30 lots during his ownership. The property that is described in the plat is property in which the individual lot owners own to the center line of the roads which adjoin the lots. Respondents provide water and street lights as amenities within Briarwood Estates. Respondents are billed for these utilities and, in turn, charge individual lot owners for the amenities. In addition to the mobile home lots which have been sold, beginning with 1984 when the Florida Mobile Home Act was passed, the relevant time frame in this inquiry, Respondents have rented 10 or more mobile home lots on the property known as Briarwood Estates. These lots were rented to residential mobile home owners. More specifically, Respondents have continually collected monthly rents for mobile home lots on the property from 16 residential mobile home owners. All 16 of these mobile homes, during the period of 1984 through 1991, were mobile homes which were at least 8 feet by 35 feet in dimension. None of these 16 mobile homes are owned by Respondents. The 16 lots are not for purposes of rental spaces for RVs. In view of an attempt to institute a rental increase for the mobile home lots which Respondents rented at Briarwood Estates, a complaint was made to Petitioner concerning Respondents' intention to increase the rental fees. Respondents deferred to the requirements set forth by Petitioner concerning rent increases for those lots rented to the residential mobile home owners. Respondents complied notwithstanding Respondents' claimed uncertainty concerning the necessity to follow the guidelines and requirements established by Petitioner for adopting rent increases for lots rented to residential mobile home owners at Briarwood Estates. The uncertainty asserted by Respondents concerned the question of whether the 16 lots for which Respondents receive rents are part of a mobile home park, as defined in Section 723.003(6), Florida Statutes. Respondent, Park T. Brittle, testified at page 17 in the hearing transcript: "I attempted to follow those guidelines, not because I felt obligated, but if indeed later on it was determined that I was operating a mobile home park, I wanted to be sure that I was clear on that part of it." This refers to the increases in lot rental fees. Respondents do not concede that they are operating a mobile home park as it pertains to the payment of annual fees for each of the 16 lots in the amount of $1.00 in 1984 and $3.00 from 1985 through 1991, together with a 10% late fee charge for each year and each lot if the fees were not paid prior to December 31st of the year in question. Consequently, the fees for the 16 lots in the years 1984 through 1991 have not been paid. The amount due for the annual lot fees and penalties is $387.20. In addition to the amount assessed for annual fees for the lots and penalties for late payment, historically, Petitioner has assessed a $500.00 fine per year for noncompliance with the requirement to pay annual lot fees. Respondents do not believe that they are operating a mobile home park, rather it is their assertion that they are operating a mobile home subdivision. Respondents have cooperated with the Petitioner in the investigation concerning the payment of annual fees for lot rentals which was occasioned by inquiries by Park Brittle as well as a complaint by a tenant in one of the sixteen lots in question over increases in the monthly mobile home lot rental fees.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law, it is RECOMMENDED that final order be entered which requires Respondents to pay $387.20 in annual fees and penalties for the period 1984-1991, and assesses a civil penalty in the amount of $500. DONE and ENTERED this 7th day of October, 1992, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2961 The following discussion is given concerning the proposed facts of the parties: Petitioner's Facts: Paragraphs 1 through 11 are subordinate to facts found. Paragraph 12 is not necessary to the resolution of the dispute. Paragraph 13 is subordinate to facts found. Respondents' Facts: Paragraphs 1 through 7 are subordinate to facts found. COPIES FURNISHED: E. Harper Field, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 George Carswell, Esquire Post Office Box 508 Monticello, Florida 32344 Henry M. Solares, Director Department of Business Regulation, Florida Land Sales Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, FL 32399-1007 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007
The Issue The issue in this case is whether Monroe County Ordinance 004-1997, approved by a Final Order of the Department of Community Affairs, DCA Docket No. DCA97-280-FOI-GM, is consistent with the Principles for Guiding Development set forth in Section 380.0552, Florida Statutes (1997)?
Findings Of Fact The Parties. Petitioners are all involved in the rental of real property in unincorporated Monroe County, Florida. Petitioner John H. Rathkamp is a resident of the State of Georgia. (Admitted fact). Mr. Rathkamp is the owner of real property located in unincorporated Monroe County described as Lost 6, Block 9, Redfish Lane, Cudjoe Ocean Shores Subdivision, Cudjoe Key (RE #188684000800). At the time of purchase, the property was improved. At all times material to this proceeding, Mr. Rathkamp's property was located in an Improved Subdivision land use district. (Admitted facts). Petitioner Monroe County Vacation Rental Managers, Inc., is a Florida not-for-profit corporation doing business in Monroe County. Its principal place of business is located at 701 Caroline Street, Key West, Florida. (Admitted facts). Petitioner Lower Keys Chamber of Commerce is a Florida not-for-profit corporation which conducts business in Monroe County. Its principal place of business is Post Office Box 4330511, Mile Maker 31, Big Pine Key, Florida. (Admitted facts). Petitioner Marathon Chamber of Commerce is a Florida not-for-profit corporation which conducts business in Monroe County. Its principal place of business is 12222 Overseas Highway, Marathon, Florida. (Admitted facts). Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the approval or rejection of comprehensive plan amendments and land development regulations adopted by the Monroe County Board of County Commissioners. Chapter 163, Florida Statutes, and Sections 380.05 and 380.0552, Florida Statutes (1997). Intervenor, the Board of County Commissioners of Monroe County (hereinafter referred to as the "County"), is the governing body of Monroe County, Florida, a political subdivision of the State of Florida. Among other things, the County is responsible for adopting a comprehensive plan and land development regulations for unincorporated Monroe County. Unincorporated Monroe County has been designated as the Florida Keys Area of Critical State Concern (hereinafter referred to as the "Florida Keys ACSC"), pursuant to Sections 380.05 and 380.0552, Florida Statutes, since 1979. As an area of critical state concern, all comprehensive plan amendments and land development regulations adopted by the County must be reviewed by the Department for consistency with the Principles for Guiding Development (hereinafter referred to as the "Principles"), set out in Section 380.0552(7), Florida Statutes. Standing. The parties stipulated that Petitioners are all substantially affected persons as those terms are used in Section 120.569, Florida Statutes (1997). The evidence in this case proved that Petitioners' substantial interests have been determined by the Department's Final Order approving the land development regulation at issue in this case. Petitioners have standing to initiate, and participate in, this proceeding. The evidence also proved that the County's substantial interests were determined by the Department's Final Order. The County has standing to participate in this proceeding. The County's Adoption of Ordinance No. 004-1997. During 1995 the County directed that public hearings be held on the issue of the rental of real estate for short periods of time for vacation purposes in Monroe County. Public hearings were held before the County's Development Review Committee in Marathon, Monroe County, Florida, on July 25, 1995, and December 2, 1995. Public hearings were also held before the County's Planning Commission on the following dates and at the following locations in Monroe County: Date Location March 7, 1996 Marathon March 21, 1996 Key West April 3, 1996 Key Largo April 18, 1996 Marathon April 22, 1996 Duck Key July 15, 1996 Duck Key September 5, 1996 Marathon On November 5, 1996, a referendum was placed on the ballot in Monroe County. The referendum asked the following question: "Should transient rentals of less than 28 days be allowed in (IS) Improved Subdivisions?" This question was answered "yes" by 51% of the citizens who voted on the referendum. Public hearings to consider an ordinance prohibiting certain vacation rentals were held before the County on December 18, 1996 in Marathon and on February 8, 1997, in Key West. On February 3, 1997, the County passed and adopted Ordinance No. 004-1997 (hereinafter referred to as the "Ordinance"). The Ordinance applies to lands located in unincorporated Monroe County. (Admitted facts). The Department's Review of the Ordinance. On February 25, 1997, the County transmitted a copy of the Ordinance to the Department for approval or rejection pursuant to Section 380.05, Florida Statutes. (Admitted fact). On April 25, 1997, the Department caused notice of Proposed Rule 9J-14.006(11), approving the Ordinance, to be published in the Florida Administrative Weekly. (Admitted fact). A challenge pursuant to Section 120.56, Florida Statutes, to the proposed rule was filed by Petitioners on May 16, 1997. The Department held public hearings in Monroe County on the proposed rule on May 21 and 22, 1997, and June 26, 1997. On May 31, 1997, an amendment to Section 380.05(6), Florida Statutes, became effective. The amendment changed the procedure for approving or rejecting comprehensive plan amendments and land development regulations in areas of critical state concern. Pursuant to the new procedure the Department was required to approve or reject comprehensive plan amendments and land development regulations in areas of critical state concern by final order instead of by rule. (Admitted facts). Petitioners in the rule challenge proceeding stipulated that they would not object, procedurally, if the Department elected to withdraw the proposed rule and issue a final order approving or rejecting the Ordinance. (Admitted fact). On November 26, 1997, the Department caused a Final Order entered November 5, 1997, to be published in the Florida Administrative Weekly, Vol. 23, No. 48. The Final Order was accepted into evidence as Joint Exhibit 5. The Final Order contains Findings of Fact and Conclusions of Law. Those Findings of Fact and Conclusions of Law are hereby incorporated by reference into this Recommended Order. A copy of the Final Order is attached to this Recommended Order. Pursuant to the Department's Final Order, the Department approved the Ordinance as being consistent with the Principles. (Admitted facts). Studies and Reports. One thing that was made abundantly clear during the formal hearing was that no formal studies were conducted by the County during its consideration and adoption of the Ordinance. Instead, the County relied upon information provided to it during the hearings conducted prior to, and during, the adoption of the Ordinance and the County's knowledge about Monroe County. Another fact made abundantly clear was that the Department also did not undertake any formal studies during its review of the Ordinance. The Department relied upon the its knowledge of Monroe County and information that had been provided to the County, summarized in memorandums. The Principles. Section 380.0552(7), Florida Statutes, creates the Principles: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and Florida Keys Electric Co-op; and Other utilities, as appropriate. To limit adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or man-made disaster and for a post-disaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. In determining whether the Ordinance is consistent with the Principles, the Principles must be considered as a whole and no specific provision is to be construed or applied in isolation from the other provisions. Section 380.0552(7), Florida Statutes. The Principles must also be construed and applied with due consideration to the legislative intent. The legislative intent in promulgating Section 380.0552, Florida Statutes, is set out in Section 380.0552(2), Florida Statutes: LEGISLATIVE INTENT.—It is hereby declared that the intent of the Legislature is: To establish a land use management system that protects the natural environment of the Florida Keys. To establish a land use management system that conserves and promotes the community character of the Florida Keys. To establish a land use management system that promotes orderly and balanced growth in accordance with the capacity of available and planned public facilities and services. To provide for affordable housing in close proximity to places of employment in the Florida Keys. To establish a land use management system that promotes and supports a diverse and sound economic base. To protect the constitutional rights of property owners to own, use, and dispose of their real property. To promote coordination and efficiency among governmental agencies with permitting jurisdiction over land use activities in the Florida Keys. In order for the Ordinance to be consistent with the legislative intent of Section 380.0552(2), Florida Statutes, it must be consistent with the Principles. The Ordinance. The Monroe County 2010 Comprehensive Plan (hereinafter referred to as the "Plan"), establishes the land uses which are allowed and prohibited in Monroe County. The Ordinance provides the following "Purpose": The purpose of this ordinance is to further and expressly clarify the existing prohibition on short-term transient rental of dwelling units for less than twenty-eight (28) days in duration in Improved Subdivisions, mobile home districts (which provide affordable housing) and native areas, and to allow tourist housing uses in all other districts and in improved subdivision districts with a newly-created tourist housing subindicator. The Ordinance defines the terms "vacation rentals" as the rental for tenancies of a dwelling unit for less than twenty- eight days. Hotels, motels, and recreational vehicle spaces are specifically excluded from the definition of "vacation rentals." The Ordinance addresses the following land use districts and prohibits vacation rentals within those district: Sparsely Settled Residential District; Native Area District; Mainland Native Area District; and Commercial Fishing Residential District. The Ordinance addresses the following land use districts and provides that vacation rentals are allowable "if a special vacation rental permit is obtained under the regulations established in Code s9.5-534": Urban Commercial District. Vacation rentals are not allowed, however, in commercial apartments with more than six units located in conjunction with a permitted commercial use; Urban Residential District; Sub Urban Commercial District. Vacation rentals are not allowed, however, in commercial apartments with more than six units located in conjunction with a permitted commercial use; Sub Urban Residential District; Sub Urban Residential District (Limited); Destination Resort District; Maritime Industries District. Vacation rentals are not allowed, however, in commercial apartments with more than six units; and Mixed Use Districts. Vacation rentals are not allowed, however, in commercial apartments with more than six units located in conjunction with a permitted commercial use. The Ordinance addresses the following land use districts and provides that vacation rentals are prohibited except "in gated communities which have (a) controlled access and (b) a homeowner's or property owners' association that expressly regulates or manages vacation rental uses": Urban Residential-Mobile Home District; URM-L District; and Improved Subdivision Districts. Improved Subdivision Districts (hereinafter referred to as "IS Districts"), are the primary, residential districts in Monroe County. 40 The Ordinance establishes a new district, the Improved Subdivision-Tourist Housing District (hereinafter referred to as the "IS-T District"). Vacation rentals are allowed in IS-T Districts under certain conditions: A map amendment designating a contiguous parcel as IS-T may be approved, provided that the map amendment application (and subsequent building permit applications and special vacation rental permit applications) meet the following standards, criteria and conditions: The IS-T designation is consistent with the 2010 Comprehensive Plan and there is no legitimate public purpose for maintaining the existing designation. The IS-T designation allowing vacation rental use does not create additional trips or other adverse traffic impacts within the remainder of the subdivision or within any adjacent IS district: The parcel to be designated IS-T must contain sufficient area to prevent spot zoning of individual parcels (i.e., rezonings should not result in spot-zoned IS-T districts or result in spot-zoned IS districts that are surrounded by IS-T districts). Unless the parcel to be rezoned contains the entire subdivision, there will be a rebuttable presumption that spot-zoning exists, but the Board of County Commissioners may rebut this presumption by making specific findings supported by competent, substantial evidence that: the designation preserves, promotes and maintains the integrity of surrounding residential districts and overall zoning scheme or comprehensive plan for the future use of surrounding lands; does not result in a small area of IS-T within a district that prohibits vacation rentals; the lots or parcels to be designated IS-T are all physically contiguous and adjacent to one another and do not result in a narrow strip or isolate pockets or spots of land that are not designated IS-T, or which prohibit vacation rentals; and the IS-T designation is not placed in a vacuum or a spot on a lot-by-lot basis without regard to neighboring properties, but is a part of an overall area that allows vacation rentals or similar compatible uses. In addition to the requirements contained in Code s.9.5-377 (District Boundaries), an IS-T district shall be separated from any established residential district that does not allow tourist housing or vacation rental uses by no less than a class C bufferyard: Vacation rental use is compatible with established land uses in the immediate vicinity of the parcel to be designated IS- T: and Unless a map amendment is staff-generated (i.e., initiated by Monroe County), an application for a map amendment to IS-T shall be authorized by the property owner(s) of all lots (or parcels) included within the area of the proposed map amendment. The Ordinance provides that vacation rentals are prohibited in Offshore Island Districts unless they "were established (and held valid state public lodging establishment licenses) prior to January 1, 1969." Finally, the Ordinance provides, in part, that the following uses are permitted in Recreational Vehicle Districts: Recreational vehicle spaces. RV spaces are intended for use by traveling recreational vehicles. RV spaces may be leased, rented or occupied by a specific, individual recreational vehicle, for a term of less than twenty-eight days, but placement of a specific, individual Recreational Vehicle (regardless of vehicle type or size) within a particular RV park for occupancies or tenancies of 6 months or more is prohibited. Recreational Vehicles may be stored, but not occupied, for periods of 6 months or greater only in an approved RV storage area (Designated on a site plan approved by the Director of Planning) or in another appropriate district that allows storage of recreational vehicles. . . . Code s9-534 of the Ordinance requires a permit for vacation rentals, except for vacation rentals located within a controlled access, gated-community or within a multifamily building which has 24-hour on-site management or 24-hour on-site supervision. This Code section also provides certain conditions which must be met by vacation rentals, requires that a copy of any permit be provided to surrounding property owners, provides for the circumstances under which a permit may be revoked, provides for certain penalties, and deals with other miscellaneous matters. Code s9-534 is hereby incorporated into this Recommended Order. The Ordinance is a "land development regulation" as defined in Section 380.031(8), Florida Statutes. (Admitted fact). Petitioners' Challenge to the Ordinance. On December 16, 1997, Petitioners timely filed a challenge pursuant to Sections 120.569 and 120.57, Florida Statutes, to the Department's Final Order approving the Ordinance. (Admitted facts). In addition to alleging that the Ordinance is not consistent with the Principles, Petitioners also challenged some of the specific findings of fact contained in the Final Order entered by the Department. While the Department has agreed that it has the burden of proving the "validity of the final order," for purposes of Sections 380.05 and 380.0552, Florida Statutes, the only "final order" which the Department entered in this matter is the final line of the order: "WHEREFORE, IT IS ORDERED that Monroe County Ordinance No. 004-1997 is consistent with Section 380.0552(7), F.S., and is hereby approved." Because this is a de novo proceeding, the "facts" and "conclusions of law" the Department reached in taking the "proposed agency action" at issue in this case, are not controlling. Petitioners also alleged that the Ordinance is not "consistent with the legislative intent for designation of unincorporated Monroe County as the Florida Keys ACSC expressed in Section 380.0552(2), F.S." Chapter 380, Florida Statutes, does not specifically require the Department to independently determine whether a land development regulation is consistent with the legislative intent. The Department is only required to determine consistency with the Principles. If a land development regulation is consistent with the Principles, it will also be consistent with the legislative intent. Finally, Petitioners alleged in their Petition that the Ordinance is not consistent with the Plan. This allegation was not included in the Prehearing Stipulation. This issue was, therefore, waived by Petitioners. Even if not considered waived, the issue of whether the Ordinance is consistent with the Plan is not an issue which has been properly brought before this forum. The challenge in this case was instituted pursuant to Chapter 380, Florida Statutes. Nowhere in Chapter 380, Florida Statutes, is the Department required or authorized to review a land development regulation for consistency with a growth management plan. The Department's authority to review a land development regulation for consistency with a growth management plan comes from Chapter 163, Florida Statutes. Challenges to Department's decisions under Chapter 163, Florida Statutes, must be instituted pursuant to Section 163.3213, Florida Statutes. No such proceeding has been instituted by Petitioners. Petitioners, although not specifically alleged in their petition or the Prehearing Stipulation, presented evidence at hearing and argument in their proposed order concerning what the County and Department knew or did not know, and what they did or did not do, at the time of their respective actions. Because this is a de novo proceeding, such knowledge or actions, do not support a finding that the Ordinance is not consistent with the Principles unless, in the case of required information, the information is not provided at hearing and, in the case of an action that was not taken, the action was required by rule or statute. The evidence presented at hearing in this case was sufficient to determine consistency of the Ordinance with the Principles. The evidence also failed to prove that the County or the Department failed to take any action required by rule or statute with regard to their respective roles in this matter. Sound Economic Development of Monroe County. Section 380.0552(7)(d), Florida Statutes, includes the following principle: "To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development." This principle is consistent with the legislative intent set out in Section 380.0552(2)(e), Florida Statutes, that a local government establish a land use management system that promotes and supports a diverse and sound economic base. Undoubtedly, the evidence in this case proved that the Ordinance will cause a negative impact to the economy of Monroe County. No economic impact study was necessary to prove this fact. Although neither the County nor the Department conducted an economic impact study prior to the County's adoption and the Department's review of the Ordinance, the County and the Department were aware of the fact that there would be a negative economic impact as a result of the Ordinance and took that fact into consideration in carrying out their respective roles. More importantly, there is no requirement in Chapters 120 or 380, Florida Statutes, that an economic impact study be performed prior to adoption of a land development regulation or during the Department's review. Nor is the Department authorized as part of its review pursuant to Chapter 380, Florida Statutes, to require such a study be conducted by the County. This is a de novo proceeding. Therefore, it was incumbent upon the Department in order to meet its burden of proof to present sufficient competent substantial evidence concerning the economic impact of the Ordinance during the formal hearing. Much of the proof was presented by Petitioners. The combined proof of the parties in this case concerning the economic impact of the Ordinance is sufficient to make a determination as to whether the Ordinance is consistent with Principle "d." The economy of Monroe County is primarily dependent upon the tourist industry. The tourist industry in turn is largely dependent on the natural resources of Monroe County. As a consequence, the majority of the Principles provide for a consideration of impacts on the environment of Monroe County. Ultimately, the economic viability of Monroe County depends on its environmental resources. Tourists who vacation in Monroe County generally require lodging while on vacation. Lodging in Monroe County is diverse and includes hotels, motels, camp grounds, RV parks, and rentals of dwellings, including rentals for periods of less than 28 days (rentals of dwellings of less than 28 days are hereinafter referred to as a "Short-Term Rental Property"). There are some tourists who prefer to stay in Short- Term Rental Property over other types of accommodations available in Monroe County. There are even some tourists who may go elsewhere if they are unable to find Short-Term Rental Property in Monroe County. A reduction in available Short-Term Rental Property may also cause some tourists to come to Monroe County during periods during the year when tourism is lower. The evidence, however, failed to prove the extent of the loss of tourists or the extent to which tourists may come to Monroe County during the off-season if there is a reduction in the available number of Short-Term Rentals Property as a result of the Ordinance. Short-Term Rental Property makes up a significant portion of tourist lodging available throughout Monroe County. Short-Term Rental Property has been a part of the tourist economy of Monroe County for the past twenty to thirty years. Short-Term Rental Property, however, has increased significantly recently as the number of dwellings in Monroe County has increased. The use of properties as Short-Term Rental Property adds to the economy of Monroe County by providing work for a number of businesses in Monroe County. Those businesses include real estate brokers, pool maintenance, lawn maintenance, home repairs, maid/cleaning services, and many of the businesses associated with the tourist industry. Occupancy rates for Short-Term Rental Properties in Monroe County have been averaging approximately 30% annually. Occupancy occurs primarily during the peak tourist season from December or January through April. To a lesser extent, occupancy is higher in August also. Occupancy rates in Monroe County hotels and motels during the peak season have been approximately 80% to 100%. There is currently a moratorium in the Florida Keys on the construction of hotels and motels. The moratorium is only effective through 2006. The construction of new transient rentals and the conversion of single-family residences to transient rentals are prohibited by the Plan. These measures represent an effort of the County to regulate the influx of tourists into Monroe County and very likely result in an increase of properties used for Short-Term Rental Property to meet the demand for tourist lodging. As a result of the Ordinance's restriction on where Short-Term Rental Property will be allowable in Monroe County, there will be some reduction in the number of Short-Term Rental Properties available to tourist in Monroe County. Petitioners have estimated that there will be a reduction of in excess of 3,000 Short-Term Rental Properties as a result of the Ordinance. This number is based upon the assumption that there are 4,100 Short-Term Rental Properties in Monroe County, that 76% of those rentals are located in IS districts, and that all 76% of the rentals in IS districts will be lost. The evidence failed to support a finding that such a reduction will occur. First, the Ordinance does not prohibit all Short-Term Rental Property in Monroe County. The use of properties for Short-Term Rental Property is not prohibited in several land use districts listed, supra. Short-Term Rental Property located in the cities of Key West, Key Colony Beach, and Village of Islamorada are also not subject to the Ordinance. There are approximately 12,000 seasonal rental units in incorporated and unincorporated Monroe County. To the extent that the demand for Short-Term Rental Property is not met by properties which are no longer available for use as a Short-Term Rental Property under the Ordinance, some part of that demand will be met by seasonal units not impacted by the Ordinance: those units located in land use districts in which Short-Term Rental Properties are not prohibited and in incorporated areas. The market will react to the market conditions as they change under the Ordinance. Petitioners' expert witness, Charles Ilvento, provided estimates of the losses in revenue and sales tax collections in Monroe County (at a rate of 11.55 per cent) as a result of the Ordinance. Those estimates were that Monroe County would experience $400,235,747.00 to $500,294,683.00 per year in economic losses and $6,262,444.00 per year in sales tax losses. The Department's and County's expert, Dr. Nicholas, estimated that the economic loss from the Ordinance to Monroe County would only be approximately 20 per cent of the loss projected by Mr. Ilvento and would last only two years. Mr. Ilvento also suggested that the losses would be continuing losses. The weight of the evidence failed to support the extent of losses suggested by Mr. Ilvento. First, in making his estimates, Mr. Ilvento relied upon the number of Short-Term Rental Properties Petitioners had estimated would be lost as a result of the Ordinance. Those estimates are too high. See Findings of Fact 68 and 69. Secondly, Mr. Ilvento did not take into account the economic benefit of keeping residential uses of property and the more commercial activities of Short-Term Rental Properties separate as required by the Ordinance. Because of the value of Short-Term Rental Properties, finding property for permanent residents is more difficult. In some areas, the use of residential property for Short-Term Rental Properties can dominate the residential nature of an area to a great enough extent that the residential sector will decline and withdraw. Thirdly, Mr. Ilvento did not take into account the increase in income that would be likely to occur from the sales of properties formerly used as Short-Term Rental Property which Petitioners assert will have to be sold. Fourthly, Petitioners' estimate of the number of properties that will be sold (50%), which Mr. Ilvento relied upon in reaching his estimates, is not reasonable. Petitioners' estimate of the number of Short-Term Rental Properties that will be sold assumes that the owners of those properties will no longer be able to afford them without the rental income they had previously enjoyed from the properties. This assumption is not realistic. It is not realistic to assume that half the owners of Short-Term Rental Properties acquired their property without taking into account the possibility that they would not be able to rent the property. Additionally, it is not reasonable to assume that an owner who is faced with the inability to carry the debt on a property will necessarily elect to sell it rather than rent it on a long-term basis. The evidence also proved that the economy of Monroe County will be benefited to the extent that the Ordinance enhances the availability of affordable housing and reduces adverse impacts to the environment of Monroe County, as discussed, infra. The benefits to the economy as a result of the increase in affordable housing and the reduction of adverse impacts to the environment will not be substantial, however. The weight of the evidence in this case proved that there will be an overall economic loss in Monroe County as a result of the Ordinance. That loss should last approximately two to three years. The amount of the loss projected by Dr. Nicholas is a more reasonable estimate of the loss which will occur. That loss, however, will be substantial. Protection of the Public Health, Safety, and Welfare. Section 380.0552(7)(l), Florida Statues, includes the following principle: "To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource." The County, in adopting the Ordinance, was primarily exercising its police power to protect the public health, safety, and welfare of the citizens of Monroe County. The County decided to exercise its power by limiting the types of activities allowable in areas designated for residential use. The County's decision was based upon extensive testimony on the negative impacts of Short-Term Rental Property in neighborhoods given at the public hearings conducted by the County. Additionally, the County was aware of the results of the November 5, 1996, referendum vote in which residents of the County voted in favor of prohibiting Short-Term Rental Property in IS districts. Although the testimony concerning the negative impacts of Short-Term Rental Property and the results of the referendum vote relied upon by the County constitutes hearsay, it does corroborate and explain the testimony of Denise Werling, a permanent resident of Monroe County. It is difficult to characterize the rental of Short- Term Rental Property as purely commercial or residential. While Short-Term Rental Property is being used by the people who rent the property as housing, which is in the nature of a residential use, the services they are provided in conjunction with the rental is more in the nature of a commercial enterprise. Therefore, Short-Term Rental Property use is more like the rental of a hotel or motel rental, rather than the a long-term lease of property. Additionally, although there are always exceptions, occupants of Short-Term Rental Properties use the properties for reasons that are different from the uses that occupants of long- term rentals or permanent residents put their properties. As a result of the differences between the uses to which occupants of Short-Term Rental Property and permanent residents put their property, conflicts arise where the two land uses exist side by side. Although Short-Term Rental Properties have been a part of Monroe County for many years, there has been an increase in the number of properties available for use as Short-Term Rental Property in areas which have also increasingly been used as neighborhoods for permanent residents during the past ten years. As a result, the conflicts between occupants of Short-Term Rental Properties and permanent residents have increased. Denise Werling testified as to the types of conflicts she has experienced with a Short-Term Rental Property located next door to her home. Ms. Werling's testimony was illustrative of the types of conflicts which can exist if Short-Term Rental Properties are allowed to exist in areas designated for purely residential uses. The following are the types of problems which are not uncommonly associated with the use of properties as Short-Term Rental Property in residential areas: Short-Term Rental Property may be occupied with excessive numbers of tenants. Occupants of Short-Term Rental Property usually do not have to work because they are on vacation. As a consequence, they usually want to maximize the time they spend enjoying their vacation. As a result, they may stay up later at night and/or get up earlier in the morning than permanent residents. Late- night parties are not limited to weekends. Occupants often have excessive numbers of vehicles, boats, jet skies, RV's, and boat trailers, which they park on residential streets or all over the Short-Term Rental Property. RV's are parked in the driveway, yard, or the street in front of the rental property. When occupied, these RV's can be noisy if they are powered by self-contained generators. Multiple boats may be docked along seawalls behind Short-Term Rental Properties. Ms. Werling has seen as many as six boats parked at one time against the seawall of the Short- Term Rental Property located next to her residence. Occupants of Short-Term Rental Property are unfamiliar with garbage and recycling schedules. As a result, full trash containers and recycle containers, if they are used, are left outside when the occupants leave, even though it may be several days before pickup is scheduled. Pets that are unfamiliar to the neighborhood are left to roam free. Ms. Werling has had dogs from the property next to hers on her property. Occupants of Short-Term Rental Property are strangers to the neighborhood. As a result, they can create a sense on uneasiness to permanent residents. This sense of uneasiness is not only a result of concern for the safety of the permanent residents and their families, but is also caused by the fact that occupants of Short-Term Rental Properties are less likely to adhere to accepted neighborhood practices. They may leave outdoor security lights on all the time. They are less concerned about trespassing onto seawalls and yards of the permanent residents. They are only in the area for a relatively short period of time and, consequently, they are likely to be less considerate of the neighboring permanent residents. Short-Term Rental Property occupants are often less familiar with the waters that surround their Short-Term Rental Property. As a result, they tend to run aground, causing damage to seagrass beds. While they could cause such damage elsewhere if they were staying at a hotel or motel, they at least have hotel and motel personnel that are familiar with the surrounding waters that they can consult before venturing out. Such information is not as readily available at Short-Term Rental Properties. 86 Most of the difficulties associated with Short-Term Rental Properties are not limited to occupants of Short-Term Rental Properties. Many are also caused by some permanent residents. Just as there are some Short-Term Rental Property occupants that are inconsiderate to permanent residents, there are permanent residents that are inconsiderate to their neighbors. The degree to which the problems are caused is much higher, however, for occupants of Short-Term Rental Properties than it is for permanent residents. Additionally, it is more likely that permanent residents that cause problems can be effectively dealt with through the enforcement of regulations than occupants of Short- Term Rental Property. Finally, some of the problems are only associated with occupants of Short-Term Rental Properties. Efforts to enforce regulations intended to deal with the problems associated with inconsiderate neighbors, such as anti-noise ordinances, have not been successful in eliminating the problems associated with Short-Term Rental Property. Short- Term Rental Property occupants have less reason to be concerned about regulations because they know they will be leaving the community in a short time. Whether they get along with their "neighbors" is not something they are concerned with. Ms. Werling has reported the problems she has experienced with the Short-Term Rental Property located next door to her. The problems, however, persist. Efforts of managers of Short-Term Rental Properties have not eliminated the difficulties associated with Short-Term Rental Property for the same reason that regulations are not effective and because not all owners of Short-Term Rental Property use local managers. Some absentee owners rent the properties themselves and they are not available to handle complaints as they arise. The County, in adopting the Ordinance, was exercising its police power to eliminate the incompatible use of Short-Term Rental Properties in districts intended for use as residential communities. In exercising its police power, the County prohibited Short-Term Rental Property in the most sensitive residential areas and placed restrictions intended to reduce the impacts of Short-Term Rental Properties in areas where Short-Term Rental Properties are allowed under the Ordinance. The County also restricted Short-Term Rental Properties in districts intended to protect the sensitive natural resources of the Florida Keys ACSC. Petitioners' have suggested that, while additional regulation of Short-Term Rental Property may be appropriate and beneficial, to prohibit Short-Term Rental Property in IS districts, given the negative economic impact of such a prohibition, would be detrimental to the overall welfare of Monroe County. Therefore, Petitioners have argued that the Ordinance is not consistent with Principle "l." Petitioners' suggestion does not support a finding that the Ordinance is not consistent with Principle (l), however. Petitioners' suggestion relates to the issue of the balancing of all the Principles, discussed infra. The County's Ability to Manage Land Use and Development. Section 380.0552(7)(a), Florida Statutes, includes the following principle: "To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation." Short-Term Rental Properties have existed throughout the Florida Keys for many years. Many owners of Short-Term Rental Property have obtained an occupational license for their rental business. Prior to the adoption of the Ordinance, the County Attorney and the Monroe County Code Enforcement Board, began to question whether the use of property as Short-Term Rental Property was an allowable land use in certain land districts in Monroe County under existing laws. The fact that some owners of Short-Term Rental Properties obtained occupational licenses from the Monroe County Tax Collector and licenses pursuant to Chapter 509, Florida Statutes, from the Department of Business and Professional Regulation does not, as Petitioners have argued, support a finding that the use of Short-Term Rental Properties have been an allowable use. An occupational license is, in essence, a method of collecting a tax pursuant to Chapter 205, Florida Statutes, for the operation of a business in a local jurisdiction. The issuance of such a license is not in the nature of a land use decision. Although there was a requirement in the County prior to the adoption of the Ordinance that occupational licenses issued by the Tax Collector be reviewed by the County for consistency with land use requirements, the evidence failed to support a finding that licenses were actually reviewed. Even if they had been, the evidence in this case only proved that the County simply did not give any consideration to whether existing comprehensive plans and land development regulations allow or prohibit the use of property as Short-Term Rental Property in all land use districts of Monroe County. Licenses from the Department of Business and Professional Regulation also do not constitute land use decisions. By taking the actions necessary to consider the problem of Short-Term Rental Properties and in adopting the Ordinance, the County has evidenced the willingness to take responsibility for the issue of whether the use of property for Short-Term Rental Property is allowable, and, if so, in which districts. By adopting the Ordinance, the County has resolved any ambiguity concerning the legality of Short-Term Rental Property. Even if it were clear that the use of Short-Term Rental Property has been allowable throughout Monroe County, the County has still taken steps to strengthen its capability for managing land use and development. The County took on a highly controversial issue, with vocal proponents and opponents, and made a decision as to the future direction of neighborhoods in Monroe County. In so doing, the County also took the actions necessary to actually "manage" Short-Term Rental Properties. The Environmental Issues. 100. Sections 380.0552(7)(b), (c), (e), (f), and (i), Florida Statutes, are Principles which require a consideration of the impacts on the environment of the Florida Keys: Principle "b": "To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat." Principle "c": "To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat." Principle "e": "To limit the adverse impacts of development on the quality of water throughout the Florida Keys." Principle "f": "To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys." Principle "i": "To limit the adverse impacts of public investments on the environmental resources of the Florida Keys." (This Principle could also be grouped with Section 380.0552(7)(h), Florida Statutes). These Principles are consistent with the legislative intent set out in Section 380.0552(2)(a), Florida Statutes, that a local government establish a land use management system that protects the natural environment of the Florida Keys. Part I of Chapter 380, Florida Statutes, is titled "The Florida Environmental Land and Water Management Act of 1972." Section 380.012, Florida Statutes. The legislative purpose for establishing Part I and designating areas of critical state concern was primarily to provide State protection from adverse development impacts on environmentally sensitive areas of the State: Big Cypress Swamp, Green Swamp, Apalachicola Bay, and Monroe County's Florida Keys. All of these areas include environmentally sensitive lands and water bodies. The Ordinance does not specifically deal with environmental issues. The Ordinance involves primarily a balancing of a local government's police power with the economic impact of the exercise of that power. The Ordinance does, however, have some small positive impacts on the environment of Monroe County. Most importantly, the Ordinance does nothing contrary to the legislative intent to protect the Florida Keys ACSC. Monroe County's economic viability depends on the preservation and protection of its natural resources, including the quality of its surrounding waters. Tourism, which is the largest industry in Monroe County, is dependent on Monroe County's natural resources. The tourists who come to Monroe County are, in large part, attracted to Monroe County by its environmental qualities. Unfortunately, tourists are generally the worst abusers of the natural environment of Monroe County. This is true whether a tourist is staying in a motel or a Short-Term Rental Property. Tourists have more free time and, as a consequence, tend to participate in the recreational activities available in Monroe County more frequently and intensely than permanent residents. They simply use the resources more than a permanent resident. For example, in addition to spending more time on the water during good weather, tourists tend to engage in water activities even during inclement weather. Unlike a permanent resident who can wait until the next clear weekend, a vacationer will not necessarily be in Monroe County when the weather clears and therefore, is likely to be on the water at every opportunity. Tourists use the resources of the Florida Keys ACSC throughout their vacation. Unlike permanent residents, who are limited primarily to enjoying the natural environment of the Florida Keys ACSC on weekends and holidays, tourists are free to enjoy the environment everyday they are in Monroe County. In addition to the more frequent and intense use of the resources of Monroe County, tourists also cause harm to the environment because of their lack of knowledge about the Florida Keys ACSC or because they simply don't care. Monroe County's nearshore waters consist of numerous unmarked channels that leave many areas of Monroe County, including many canals of IS Districts. The unmarked channels can be difficult to navigate because of shallow waters typical of the Florida Keys. Navigation through these channels is learned largely from experience. The shallow nearshore waters contain beds of seagrasses that provide an important part of the ecosystem of the Florida Keys. They support juvenile fish and shellfish, which in turn provide feeding stock for birds and larger fish species. Grounding on these seagrass beds causes propeller scaring damage to the seagrasses. Tourists are also not familiar or do not care about limits on the numbers of fish and other marine life that can be caught, the sensitively of coral reefs and other natural resources of the Florida Keys ACSC, or the need to minimize human contact with the Key Deer. As a result, tourist tend to create more harm to most of the environmental features of the Florida Keys ACSC. Tourists that stay in Short-Term Rental Properties located in IS Districts and other land use districts are not significantly different from tourists that stay in other transient rentals available in Monroe County such as hotels or motels in terms of their impacts on the environment. The adverse impacts on the environment from tourists described, supra, are caused by tourists regardless of where they may be staying. Tourists that stay in Short-Term Rental Properties, however, do cause slightly more harm to the environment than other tourists for several reasons. First, a large number of tourists bring their own boats and ski jets with them to Monroe County. Those who stay in Short-Term Rental Properties generally do not operate or store their boats out of commercial marinas or use public boat ramps. As a consequence, it is more difficult to educate them about the adverse impacts they may cause on the environment. Marinas and other commercial locations where boats may be docked provide greater information about the waters of the Florida Keys and are more likely to have adequately marked access channels than Short- Term Rental Properties. Marinas, hotels, and motels also have knowledgeable individuals available to answer questions concerning the surrounding waters, a service not available to Short-Term Rental Property occupants. Prohibiting Short-Term Rental Properties in IS Districts will reduce the number of inexperienced boaters using the numerous canals of IS Districts to access the waters of Monroe County. Secondly, tourists that occupy Short-Term Rental Properties are more likely to cause harm to the Key Deer and other sensitive natural resources due to the proximity of their Short-Term Rental Property to the Key Deer and other resources. Key Deer inhabit the Florida Keys primarily on Big Pine Key. The Key Deer is an endangered species. Properties located on Big Pine Key and in other areas where Key Deer are found are used for Short-Term Vacation Rental Properties. Adverse impacts on the Key Deer result from their interaction with humans, through feeding, automobile deaths, and dogs that chase the Key Deer. While all tourists have impacts on the Key Deer due to their interaction with the them, the location of Short-Term Rental Property within the Key Deer habitat, especially areas located away from the main highway corridor of the Florida Keys, U.S. Highway 1, increases the amount of interaction between those tourists who occupy those Short-Term Rental Properties and the Key Deer. Tourists staying in IS Districts on Big Pine Key, especially those in Port Pine Heights at the north end of the Key, feed the Deer more because they are there more often, and cause more traffic problems because of the drive required to get to their rental property. Principle "e" requires that land development regulations limit the adverse impacts of development on water quality. There are public health concerns associated with untreated or improperly treated sewage, including viruses, bacteria, and parasites. Throughout most of the Florida Keys ACSC, septic tanks are used to dispose of sewage. Many of the septic tanks were installed years ago and do not meet today's standards for septic tanks. The size of a septic tank that must be installed depends on what the property will be used for. For single family residences, it is assumed that 100 gallons per day of sewage will be disposed of. Hotels are also assumed to create the same amount per room, while resorts, camps, and cottages are assumed to produce 200 gallons per day. Establishments with self-service laundries are assumed to produce 750 gallons per day. The use of Short-Term Rental Properties is somewhere between the use of single-family residence, hotels, resorts, and establishments with self-service laundries because of the similarity in how tourists in Short-Term Rental Properties and occupants of other transient locations live. Additionally, Short-Term Rental Properties are often occupied with more persons than would normally be found in a single-family residence. Although some septic tanks are designed with even more capacity than may be required by rules, not all septic tanks are designed to handle the increased use that occupants of Short-Term Rental Properties can cause. As a consequence, there is at least the potential for adverse consequences to the water of the Florida Keys ACSC to the extent that Short-Term Rental Properties are not better regulated by the County. Through the Ordinance, the County is attempting to ensure that the potential harm from the over use of septic tanks in Monroe County is regulated. The Ordinance limits the number of occupants of Short-Term Rental Properties. The Ordinance also requires that applicants for vacation rental permits submit a report from the Department of Health verifying compliance with existing septic tank or on-site sewage disposal system regulations. The Ordinance has no direct impact on Principle (i) and some parts of the other environmental Principles. The Ordinance is not, however, inconsistent with any of the Principles which deal with the environment. Community Character and Historical Heritage of the Florida Keys. Section 380.0552(7)(f), Florida Statutes, provides for a consideration of the "community character" of the Florida Keys, in addition to environmental considerations. This principle is consistent with the legislative intent set out in Section 380.0552(2)(b), Florida Statutes, that a local government establish a land use management system that promotes the community character of the Florida Keys. Section 380.0552(7)(g), Florida Statutes, includes the following Principle: "To protect the historical heritage of the Florida Keys." Although the evidence proved that the vacation rental of single-family residences has been a part of the character and historical heritage of the Florida Keys for many years, the problem being dealt with by the County through the Ordinance has not. The Ordinance does nothing to harm the community character or historical heritage of Monroe County. Public Investments. Section 380.0552(7)(h), Florida Statutes, requires that "the value, efficiency, cost-effectiveness, and amortized life of existing and proposed major public investments be protected, including the following investments: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. This principle is consistent with the legislative intent set out in Section 380.0552(2)(c), Florida Statutes, that a local government establish a land use management system that promotes orderly and balanced growth in accordance with the capacity of available and planned public facilities and services. The evidence in this case failed to prove that the Ordinance has any impact, positive or negative, on "existing and proposed major public investments " Affordable Housing. Section 380.0552(7)(j), Florida Statutes, provides the following Principle: "To make available adequate affordable housing for all sectors of the population of the Florida Keys." This Principle is consistent with the legislative intent set out in Section 380.0552(2)(d), Florida Statutes, that a local government provide affordable housing in close proximity to places of employment in the Florida Keys. There is a significant problem finding housing in Monroe County. It is especially difficult finding housing affordable to lower income residents. The shortage of housing has been caused by the lack of available developable land and restrictions on development, including those imposed by the Rate of Growth Ordinance (hereinafter referred to as "ROGO"). ROGO limits the number of new permanent residential units which may be constructed in the Florida Keys to 255 per year. Because of the restrictions on available new housing in Monroe County, prices for residential property have increased over the years. Currently, most 2 to 3 bedroom properties used as Short-Term Rental Properties are selling for $200,000.00 to $300,000.00. These properties do not come under the definition of "affordable housing" for lower income residents. "Affordable housing" is defined in terms of housing which can be afforded by very-low income, low-income, and moderate-income persons. Homes that costs over $200,000.00 do not constitute "affordable housing" as defined in the County's Land Development Regulations. The market for homes selling for over $200,000.00 in Monroe County is not high. Therefore, to the extent that properties located in IS Districts that are currently used as Short-Term Rental Properties are placed on the market, there will not be a direct increase in housing for very-low income, low- income, or moderate-income persons. Many of the Short-Term Rental Properties in Monroe County are second homes that are used only part of the year by the owners and are used as Short-Term Rental Properties the rest of the year. Some Short-Term Rental Properties are properties that have been purchased for investment purposes and/or with the intent of using the properties as the owners' permanent residence upon retirement. As a result, these properties are not available for use by permanent residents. Regardless of their costs, with a limited number of new residential properties allowed under ROGO, the use of new properties as Short-Term Rental Properties necessarily reduces the overall availability of housing in Monroe County. The restriction caused in the overall housing market in Monroe County can reasonably be expected to also negatively impact the availability of affordable housing. Potential revenues to property owners from Short-Term Rental Properties in IS Districts are higher then the potential revenues from long-term rentals to permanent residents. Consequently, as more property owners in IS Districts are attracted to using their properties as Short-Term Rental Properties, there is a reduction in the amount of housing available for long-term rentals. Therefore, the use of properties in IS Districts as Short-Term Rental Properties decreases the supply of long-term rentals available for residents of Monroe County. By prohibiting the use of properties in IS Districts as Short-Term Rental Properties, the total properties in Monroe County available for housing, including for long-term rentals, for permanent residents, will increase. As supply increases demand for all housing, including an affordable housing to some small extent, will be better met. There is a demand for long-term rentals in Monroe County. Two to three bedroom homes located in IS Districts can easily be rented for $1,000.00 to $1,500.00 per month. Some segment of the permanent population of Monroe County could afford such rentals if they were available, freeing up less expensive housing. Additionally, some absentee owners are able to purchase more expensive property because of their ability to rent the property as Short-Term Rental Property and apply the rental income to meet a higher mortgage payment. As a result, the real estate market in Monroe County builds more expensive homes to meet the demand. To the extent that this market for higher priced homes is reduced by the Ordinance, the allocation of ROGO residential units may be used for less expensive housing. The overall impact on the increase in available housing for permanent residents of Monroe County as a result of prohibiting Short-Term Rental Properties in IS Districts will generally "trickle" down throughout the entire housing market and benefit the availability of affordable housing. Natural or Manmade Disaster and Post-Disaster Relief. Section 380.0552(7)(k), Florida Statutes, provides the following Principle: "To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a postdisaster reconstruction plan." Hurricane evacuation in Monroe County is a difficult problem because of the low elevations in the Florida Keys and the lack of evacuation routes. Through most of the Florida Keys, there is only one evacuation road: U.S. Highway 1. The County has adopted, and put in place, hurricane evacuation plans for Monroe County. Estimated hurricane evacuation times for Monroe County determine the extent to which growth can be allowed in the future. The estimated hurricane evacuation time for Monroe County is determined by a ROGO hurricane evacuation model. The model takes into account seasonal residents, hotel/motel residents, transient rental occupants, and permanent residents. Petitioners presented evidence in an effort to show that the reduction in Short-Term Rental Properties will cause the calculation under the ROGO hurricane evacuation model to be inaccurate. The evidence failed to support such a finding. The evidence failed to prove how occupants of Short- Term Rental Properties are treated for purposes of the hurricane evacuation model. Testimony that they are included as seasonal occupants was not credible. Even if occupants of Short-Term Rental Properties are considered seasonal occupants for hurricane evacuation purposes, it does not necessarily mean that the Ordinance is inconsistent with Principle "k." It would only mean that the results of the hurricane evacuation model need to be revised. Rather than hampering hurricane evacuation efforts in Monroe County, the Ordinance should have a beneficial impact by giving the County more accurate information about the actual number of Short-Term Rental Properties in Monroe County. Consideration of the Principles as a Whole. Section 380.0552(7), Florida Statues, specifically provides that the Principles are to be "construed as a whole and no specific provision shall be construed or applied in isolation from the other provisions." The evidence in this case supports a conclusion that the Ordinance has no or little impact on most of the Principles, except Principles "d" and "l." To the extent that there is any impact on the other Principles, the evidence proved that the Ordinance is consistent. This finding, however, is not dispositive of this case. Ultimately, the question of whether the Ordinance is consistent with the Principles is dependent upon an evaluation of the consistency of the Ordinance with Principles "d" and "l." Clearly, the Ordinance will have a short-term negative impact on the economy of Monroe County. Just as clearly, the Ordinance will enhance the safety, health, and welfare of the residents of Monroe County. When the legislative intent of Chapter 380, Florida Statutes, is taken into account, it is clear that this is not the type of land use decision the State is most concerned with. Because the Ordinance does essentially no harm to the natural environment and waters of the Florida Keys ACSC, the State's interest in the Florida Keys ACSC is protected. The issue is essentially a local one. Consequently, some deference should be afforded the County to make this difficult choice. Given the purpose of the Department's involvement in this matter, the legislative intent of Chapter 380, Florida Statutes, the County's effort in considering the issues, and the evidence presented in this proceeding, it is concluded that the County's effort to protect the public safety, health, and welfare is sufficient to overcome any harm to the economy. Therefore, the Ordinance is consistent with the Principles, considered as a whole.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order approving Monroe County Ordinance 004-1997 as consistent with the Principles for Guiding Development of Section 380.0552(7), Florida Statutes. DONE AND ENTERED this 30th day of September, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 30th day of September, 1998. COPIES FURNISHED: Kelly B. Plante, Esquire Kenneth J. Plante, Esquire Wilbur E. Brewton, Esquire Gray, Harris and Robinson, P.A. 225 South Adams, Suite 250 Tallahassee, Florida 32301 Jeffrey Bell, Esquire Herzfeld & Rubin 5310 North West 33rd Avenue, Suite 102 Ft. Lauderdale, Florida 33309 Kathleen R. Fowler, Assistant General Counsel Sherry Spiers, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Ralf G. Brookes, Esquire Hugh J. Morgan, Esquire Karen K. Cabanas, Esquire Morgan & Brookes 317 Whitehead Street Key West, Florida 33040 James T. Hendrick Monroe County Attorney 310 Fleming Street Key West, Florida 33040 James F. Murley, Secretary Department of Community Affairs Suite 100 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100 Stephanie Gehres Kruer, General Counsel Department of Community Affairs Suite 325-A 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue The issue for determination is whether Respondent committed the violations as alleged and, if so, what civil penalty is appropriate.
Findings Of Fact Respondent, T. Cayton Enterprises, Inc. is the owner and operator of Four Oaks Mobile Home Village, a mobile home park located in Titusville, Brevard County, Florida. On or around June 27, 1986, Thomas Cayton, as President of T. Cayton Enterprises, Inc. filed a prospectus for the park with Petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes. The filing statement provided that 49 lots would be offered for rent, and that none of the lots were occupied. The $10.00 per lot filing fee ($490.00) was paid. The filing was rejected as the form was deficient. Between the end of June 1986, and August 26, 1987, the date of the approval letter, eight versions of the prospectus were filed by the park owner and were reviewed by staff of the division. After each review, the owner was sent a letter outlining the deficiencies. At one point, sometime around June 1987, Mr. and Mrs. Cayton travelled to Tallahassee to meet with Selena Einwechter, the Supervisor of the Examination Section in the agency's Bureau of Mobile Homes. The prospectus submittals and correspondence to and from the Bureau comprise 425 pages. Between the filing of the first version of the prospectus and the final approval, approximately 14 months later, twelve lots were rented at Four Oaks Mobile Home Village. The lot numbers and dates of the rentals are: Lot #3 August 1, 1986 Lot #2 August 2, 1986 Lot #44 August 15, 1986 Lot #46 August 30, 1986 Lot #12 November 1, 1986 Lot #4 November 30, 1986 Lot #19 January 15, 1987 Lot #7 March 9, 1987 Lot #6 June 1, 1987 Lot #15 June 1, 1987 Lot #5 June 6, 1987 Lot #9 June 30, 1987 Six of the recitals are evidenced by written leases; the remainder were oral agreements, reflected in the office records of the park. All of the tenants commenced paying rent upon occupancy of the lot and no one was told that the leases were unenforceable. At the beginning of the process, on July 29, 1986, Thomas Cayton was sent a letter from the Bureau of Mobile Homes confirming that his prospectus filing had been received and was being examined. The bottom of the letter includes this statement, clearly displayed: NOTE: Section 723.011, Florida Statutes, and Rule 7D-31.01, Florida Administrative Code, requires the delivery of a prospectus which has been deemed adequate by the Division prior to entering into enforceable rental agreements or renewal of existing rental agreements. Renewals of existing rental agreements or entering into new rental agreements without delivery of a prospectus which has been deemed adequate will constitute a violation of the Florida Mobile Home Act. (Petitioner's Exhibit #1, composite) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes. Subsection 723.005(d)1., F.S. authorizes the Division of Florida Land Sales, Condominiums and Mobile Homes to impose a civil penalty not to exceed five thousand dollars ($5,000) against a mobile home park owner for each separate violation of Chapter 723, F.S. or regulation promulgated pursuant thereto. The statute and rule allegedly violated by Respondent provides as follows: 723.011 Disclosure prior to rental of a mobile home lot; prospectus, filing, approval.-- (1)(a) In a mobile home park containing 26 or more lots, the park owner shall file a prospectus with the diversion. Prior to entering into an enforceable rental agreement for a mobile home lot, the park owner shall deliver to the home owner a prospectus approved by the division. This subsection shall not be construed to invalidate those lot rental agreements for which an approved prospectus was required to be delivered and which was delivered on or before July 1, 1986, if the mobile home park owner had: Filed a prospectus with the division prior to entering into the lot rental agreement; Made a good faith effort to correct deficiencies cited by the division by responding within the time limit set by the division, if one was set; and Delivered the approved prospectus to the mobile home owner within 45 days of approval by the division. This paragraph shall not preclude the finding that a lot rental agreement is invalid on other grounds and shall not be construed to limit any rights of a mobile home-owner from seeking any remedies allowed by this chapter, including a determination that the lot rental agreement or any part thereof is unreasonable or unconscionable. (emphasis added) * * * 7D-31.001 Prospectus and Rental Agreement. * * * (13) The park owner shall deliver the prospectus to existing tenants prior to the renewal of their rental agreements or prior to entering into a new rental agreement. Once a tenant has been given a prospectus, the park owner shall not be required to provide another prospectus but shall provide amendments, as described in Rule 7D-30.004 and this rule. Because Four Oaks' prospectus was not approved until the end of August 1987, the 12 rental agreements entered between August 1, 1986 and June 30, 1987, violated the above provisions. Respondent claims that he thought that as long as the prospectus had been filed, he could enter into rental agreements. This would have been true under the original version of the Florida Mobile Home Act, passed by the Legislature in 1984. The relevant provision of that act is found in Section 720.302(1), F.S. (1984) as follows: Every mobile home park owner of a park which contains 26 or more lots shall file a prospectus or offering circular with the division prior to entering into an enforceable rental agreement. Chapter 84-80, Laws of Florida, Part III) This section took effect on January 1, 1985, for parks with more than 100 lots, and on July 1, 1985 for parks with less than 100 lots. (Chapter 84-80, Laws of Florida) The current version, reflected in Section 723.011, F.S., cited above, took effect on July 1, 1986. (Chapter 86-162, Laws of Florida) Respondent cannot avail himself of the "grand-father" provision of Section 723.011, since his rental agreements and prospectus approval occurred after July 1st. Further, the explicit language of the note on the July 29, 1986, letter should have put him on notice of the new requirements of the law. There are no guidelines for the imposition of a penalty, other than the $5,000.00 maximum per violation found in Section 723.006(5)(d)1. F.S. No evidence was presented as to prior violations by this Respondent. The extensive file evidences a good faith attempt to comply with a law that was still relatively new.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That Respondent be found guilty of violation of Section 723.011(1)(a), F.S. (1986), as charged, and that a civil penalty of $100.00 per violation be imposed, for a total of $1,200.00. DONE and RECOMMENDED this 13th day of September, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 1988. COPIES FURNISHED: Richard Coates, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas Cayton, Registered Agent 2475 Cheney Highway Titusville, Florida 3270 Debra Roberts, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Bell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue The issues 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 Respondent Tardiff committed the violations as set forth in the Notice to Show Cause dated February 24, 1997, and what penalty, if any, should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida charged with the responsibility to administer and to enforce the Florida Mobile Home Act, Chapter 723, Florida Statutes. At all times pertinent to this proceeding, Respondent has been the owner of Pondview Mobile Home Park. At all times pertinent to this proceeding, Respondent has had 10 or more lots offered for rent or lease. Respondent offered for rent or lease at least 22 lots. At all times pertinent to this proceeding, Respondent was a "mobile home park owner," as the term is defined in Section 723.003(7), Florida Statutes. No annual fees were paid by Respondent from 1984 until 1996. Currently, annual fees are $4.00 per lot, per year. Annual fees are payable to the division between July 1 and October 1 of each year. When Respondent increased his rent in 1993, he failed to file a copy of the lot rental increase notice with the Bureau of Mobile Homes. Under Chapter 723, Florida Statutes, the reason for the increase in rent is irrelevant to the filing requirement. When new tenants entered Respondent's mobile home park, Respondent failed to give them a prospectus or written notification of required information. Twelve homeowners have entered into rental agreements without receiving the statutorily required document. Respondent produced a cancelled check at the formal hearing showing that 1996 annual fees had been paid to the division. It is the park owner's responsibility to comply with Chapter 723, Florida Statutes. It is not the duty of the division to pursue park owners in order to obtain compliance with the Florida Mobile Home Act. Respondent has been permitted with the Department of Health (formerly Health and Rehabilitative Services (HRS)) every year since 1983.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That Petitioner enter a Final Order finding Respondent has violated the Sections of Chapter 723, Florida Statutes, as charged in the Notice to Show Cause, and ordering the Respondent to Pay annual fees for the years 1984-1995 in the amount of $814, plus a 10 percent penalty of $81.40 which equals $895.40; Pay a penalty of $1,200 for the violation of Section 723.013., Florida Statutes; Pay a penalty of $5,000 for the violation of Section 723.037, Florida Statutes; and Comply with all provisions of Chapter 723, Florida Statutes, in the future. DONE AND ENTERED this 28th day of August, 1997, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 28th day of August, 1997. COPIES FURNISHED: Suzanne V. Estrella, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Roland Tardiff Route 12 Box 394 Lake City, Florida 32025 Robert H. Ellzey, Jr., Director Division of Florida Land Sales, Condominiums, and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the amount collected from the tenants of Corley Island Mobile Manor by the Respondent for improvement and repairs to its sewage treatment plant was a "pass-through charge" as defined in Section 723.003(10), Florida Statutes, or was it collected as a matter of custom between the mobile home park owner and the mobile home owner or disclosed prior to tenancy in accordance with Section 723.031 (6), Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Petitioner is the state agency governing the landlord tenant relationship in mobile home parks subject to Chapter 723, Florida Statute. The Park is, and at all times pertinent to this proceeding, has been a mobile home park subject to Chapter 723, Florida Statutes. The Park is owned equally by Respondents, Dale B. Downing, R. E. Downing and H. W. Whitcomb. The Park is operated under the name of Corley Island Mobile Manor. The Park's wastewater is handled through a package treatment plant owned and operated by the Respondents (the WWTF). Under its original configuration, wastewater entered the WWTF through an aeration tank. The Park utilized two separate aeration tanks where the wastewater was agitated and allowed to come in contact with oxygen and enzymes. This started the treatment process. After the wastewater flowed through the first and the second aeration tanks, it spilled into a clarifier. The clarifier is a quiet tank where solids are allowed to settle into a hopper shaped bottom for removal or additional treatment. The clear wastewater at the top of the clarifier flows into a chlorine contact chamber and then out to percolation ponds which allow the wastewater to filter into the ground water through the bottom of the ponds. Prior to November of 1987, the Park was experiencing increased flows of wastewater through the WWTF. The Respondents first investigated the collection system for the infiltration of ground water into the system. The Park also inspected the mobile homes and fixed any leaky faucets, toilets, etc. The Respondents retained Altair Maintenance to examine the collection system using television cameras and to make necessary repairs. On July 8, 1983, Altair Maintenance invoiced the Park for $3,450.00 for these services. Altair Maintenance was called back for additional work in December of 1985 for the repair of manholes at a total charge of $4,124.25. Altair was again called on July 1, 1992 for maintenance of the WWTF at a cost of $1,898.75. Extensive repairs to the manholes and other parts of the WWTF were completed by Roto-Rooter Plumbing. Roto-Rooter was paid $24,090.00 for a May 13, 1983 invoice and $5,891.50 for a July 22, 1983 invoice. Even further repairs to the Park's WWTF were made by Superior Asphalt. It was paid $3,413.00 for replacement of a manhole. The above-described sums were not charged to the residents of the Park. In spite of the maintenance activities described above, the Park continued to experience problems with increased wastewater flows into the WWTF. During peak flow hours (approximately 11:00 A.M.) the normally clear wastewater flowing out of the clarifier into the chlorine contact chamber would become cloudy. This wash through of solids resulted from increased flows during peak flow hours. Wastewater would not remain in the clarifier for a sufficient period of time for the solids to settle out. These solids would spill out of the clarifier or "wash through" causing the wastewater flowing into the chlorine contact chamber to become dark due to the heavy solids content. The agency of state government having jurisdiction over the permitting and operation of wastewater treatment facilities is the Department of Environmental Regulation ("DER"). On November 3, 1987, the DER issued a warning notice to the Park because of an abnormally high amount of solids content and a high BOD level in the wastewater flowing from the WWTF. The DER issued a notice of violation on the same grounds on December 1, 1987. The agency of local government having jurisdiction over the WWTF is the Lake County Pollution Control Department. Respondent, Dale Downing, spoke with an employee of the Lake County Pollution Control Department, Roy Green, to determine the measures necessary to resolve this "wash through" of solids. Green told Dale Downing that he would not be able to make the plant perform unless the Park modified the WWTF by adding a digester and surge tank. A digester is a holding tank for solids, a by-product of the treatment process. Solids remain in the holding tank until removed by a removal service. A surge tank is a large tank placed at the front of a wastewater treatment facility which catches the initial inflow of wastewater. Regardless of the rate of flow into the surge tank, pumps release the wastewater from the tank at a uniform rate. A surge tank allows an operator to balance the flow of wastewater through the WWTF eliminating these peak flow problems. The DER permit for the Park's WWTF was due to expire in January of 1988. The Respondents applied for a new permit but were told that the standard five year operating permit could not be issued because of the warning notices and notices of violation the Park had received because of high suspended solids and BOD levels in the effluent. The DER suggested that the Park get a temporary permit while corrections were being made to bring the plant up to performance standards. Respondent, Dale Downing, traveled to the DER's office in Orlando for a meeting with its permitting supervisor, Lee Miller. Miller confirmed that the Park's only options to alleviate its WWTF problems were a connection to the City of Leesburg's municipal system or the addition of a surge tank and digester to the existing plant. The Park's engineer, Richard Newman, prepared plans and specifications for the addition of a surge tank and digester to the WWTF which were submitted to the DER for approval. The DER accepted the modifications on the condition that the Park eliminate its single-cell percolation pond and construct a two-cell percolation pond system. The modifications were completed by the Respondents. As a result, the DER issued a standard five year permit. The WWTF has been trouble free since the modifications were placed in service. The actual expenses necessary for the plant modifications and the construction of the two-cell percolation ponds were passed through to the Park residents. The total costs of these improvements were divided by the Park's 151 lots and charged to each resident on a pro rata basis ($61,644.31/151= $408.24). The Respondents considered this charge as a "pass-through charge". The maintenance, or lack of maintenance, of the Park's WWTF had no impact on the need for the modifications (capital improvements) to the Park's WWTF. There is competent substantial evidence to establish facts to show that the capital improvements, including the two-cell percolation pond, made to the Park's WWTF by the Respondents were governmentally mandated in that DER would not have granted a permit to the Respondents for the operation of the Park's WWTF without these minimum capital improvements. And, the costs of such capital improvements come within the definition of "pass-through charges" as defined in Section 723.003(10), Florida Statutes. The prospectus for the park discloses in Article VIII that each resident's lot rental amount could be increased to recover the cost of the modifications to the WWTF.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order dismissing the Notice To Show Cause filed in this case and any enforcement action against the Respondents. RECOMMENDED this 1st day of June, 1993, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5692 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. Proposed Findings of Fact 1 through 4, 8 through 13 and 15 through 21 are adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant or immaterial. Proposed Findings of Fact 5 through 7 and 14 are rejected as not being supported by competent substantial evidence in the record. Respondent's Proposed Findings of Fact. Proposed Findings of Fact 1 through 26 and 28 through 35 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant or immaterial. Proposed Findings of Fact 27 and 28 are covered in the Preliminary Statement and Conclusions of Law, respectively. COPIES FURNISHED: E. Harper Field, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 J. Allen Bobo, Esquire LUTZ, WEBB, PARTRIDGE, BOBO & BAITTY, P. A. Suite 504, One Sarasota Tower Two North Tamiami Trail Sarasota, Florida 34236 Janet Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Henry M. Solares, Director Division of Florida Land Sales, Condominiums And Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Donald D. Conn, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
