The Issue Did Respondent violate Section 723.037(1), Florida Statutes, by failing to give timely written notice of rent increase on mobile home lots, and, if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Respondent owned the Arcadia Peace River Campground (Campground) located in DeSoto County, Florida, whose mailing address is 2988 Northwest Highway 70, Arcadia, Florida 34266. From October 3, 1996 through March 21, 1998, the Campground had 14 or more of its mobile home lots occupied by mobile homes. From October 3, 1996 through March 21, 1998, seven or more of the mobile homes located in the Campground were owned by residents of the Campground other than Respondent. Furthermore, these mobile homes were placed on lots leased by the mobile home residents from the Campground. From October 3, 1996 through March 21, 1998, four or more of the mobile homes located in the Campground were owned by Respondent's employees and placed on lots in the Campground. The rental for these lots was considered as part of the employees' compensation. On January 1, 1997, Respondent implemented and began collecting a $30.00 increase in the monthly lot rental from those mobile home owners leasing spaces in the Campground. Respondent gave the affected mobile home owners written notice of the January 1, 1997, monthly lot rental increase on November 26, 1996, some 36 days prior to the effective date (January 1, 1997) of the increase. No other notice of the lot rental increase was given to the affected mobile home owners. Respondent collected the $30.00 lot rental increase from the affected mobile home owners during the period from January 1, 1997, through March 21, 1998. On January 1, 1998, Respondent implemented and began collecting a $15.00 increase in the monthly lot rental from those mobile home owners leasing spaces in the Campground. Respondent gave the affected mobile home owners written notice of the January 1, 1998, monthly lot rental increase on October 28, 1997, some 65 days prior to the effective date of the increase. Respondent collected the $15.00 monthly lot rental increase from January 1, 1998, through March 21, 1998. Each of the following affected mobile home owners paid both the $30.00 monthly lot rental increase from January 1, 1997, through March 21, 1998 and the $15.00 monthly lot rental increase from January 1, 1998, through March 21, 1998: Charles Collins; Arthur P. McRae; Harold Martin; Maurice W. Jackson; Robert F. Martin; Irene K. Apps and; Reba Conner. On March 21, 1998, the Peace River flooded the Campground. The mobile homes located in the Campground were damaged. Subsequently, the mobile homes were removed from the Campground, purchased by Respondent, or were purchased by one or more new employees of Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and having specifically reviewed the factors set out in Section 723.006(5)(c), Florida Statutes, it is recommended that the Division enter a final order assessing Respondent with an administrative fine of $500.00. It is further recommended that Respondent be ordered to refund to Charles Collins, Arthur P. McRae, Harold Martin, Maurice W. Jackson, Robert F. Martin, Irene K. Apps, and Reba Conner all sums collected from these individuals as increases in lot rental during the period of January 1, 1997 through March 21, 1998. DONE AND ENTERED this 16th of June, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1999. COPIES FURNISHED: Philip Nowick, Director Division of Florida Land Sales, Condominiums, and Mobile Homes Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Eric H. Miller, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 George Lempenau, Qualified Representative 2998 Northwest Highway 70 Arcadia, Florida 34266
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.
Findings Of Fact The Petition filed herein, among other matters, alleges, in pertinent part, that: This is a petition for determination of the invalidity of a proposed rule of the Department of Business Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, pursuant to Section 120.54(4), Fla. Stat. (1987). The 1,000 members of the FMHA may be sub- jected to this rule and Gerry Barding as an individual are substantially affected in that the rule has the effect of allowing the DBR to schedule a mediation or arbitration if the request "does not substantially comply with Chapter 723, Fla. Stat., and these rules." Section 723.037 limits the substantial rights of a party who fails to mediate or arbitrate a dispute under Section 723.037 with the DBR . . . . * * * The substantial rights of the members of FMHA will be affected if the DBR is allowed to grant mediation or arbitration requests when the mobile home owners have not complied with the provisions of Section 723.037, Fla. Stat. (1987). The proposed rule of the DBR enlarges, modifies, or otherwise contravenes the statu- tory authority granted by Chapter 723, Fla. Stat. (1987), and is unreasonable, arbitrary, and capricious. Petitioner, FMHA, is an incorporated association not for profit whose members include approximately 1,000 mobile home park owners. All of the mobile home park members of FMHA own mobile home parks which contain greater than 25 mobile home lots which are offered for lease. A substantial number of the members of the FMHA on a regular basis annually increase the lot rental amount in their mobile home parks. The residents of the FMHA members' mobile home parks are entitled to and may request mediation of lot rental amount increases pursuant to Sections and 723.038, F.S. (1987), and the rules of the Florida Department of Business Regulation. Requests for mediation have been made in the past by homeowners residing in FMHA members' mobile home parks and many of those mediation proceedings have not yet been completed. Petitioner, Gerry Barding, is the owner of Pinelake Village Mobile Home Park located in Jensen Beach, Florida. In the past, Mr. Barding has increased the lot rental amount in Pinelake Village Mobile Home Park and expects to do so in the future. In September 1987, a request for mediation from Pinelake Village residents was not filed within 30 days of the meeting between the park owner and the residents. The Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes reviewed the request for mediation and determined that it was willing to mediate the dispute. The Division requested that Mr. Barding advise it of his willingness or refusal to participate in the mediation. Mr. Barding declined to agree to mediation of the dispute, and the mediation file of the Division was closed. Sections 723.037(4), F.S. (1987), provides in pertinent part that: Within 30 days of the date of the scheduled meeting described in subsection (3), the home owners shall request that the dispute be submitted to mediation pursuant to Section if a majority of the affected home owners have designated, in writing, that: The rental increase is unreasonable; The rental increase has made the lot rental amount unreasonable; The decrease in services or utilities is not accompanied by a corresponding decrease in rent or is otherwise unreasonable; or The change in the rules and regulations is unreasonable. [Emphasis supplied]. The Department of Business Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes does not interpret Section 723.037(4), F.S., as depriving it of authority to mediate when the request for mediation is filed more than 30 days after the referenced meeting. Section 723.037(6), F.S., provides that: No action relating to a dispute described in this section may be filed in any court unless and until a request has been submitted to the Division for mediation and arbitration and the request has been processed in accordance with Section 723.038. Section 723.037(7), F.S., provides that: If a party refuses to agree to mediate or arbitrate, or fails to request mediation, upon proper request, that party shall not be entitled to attorney's fees in any action relating to a dispute described in this section. Section 723.004(4), F.S., provides that: Nothing in this chapter shall be construed to prevent the enforcement of a right or duty under this section, Sections 723.022; 723.023; 723.031; 723.033; 723.035; 723.037; 723.038; 723.061; 723.0615; 723.062; 723.063; or 723.081 by civil action after the party has exhausted its administrative remedies, if any. Existing Rule 7D-32.005(3), F.A.C., provides in pertinent part: The homeowners' committee shall request mediation, or the homeowners' committee and the park owner may jointly request arbitration, by mailing or delivering the following items to the Division of Florida Land Sales, Condominiums and Mobile Homes, 725 South Bronough Street, Tallahassee, Florida 32399-1007: A completed Form DBR 405, which becomes effective on the same date as this rule and which may be obtained by writing to the Division at the above address, and A copy of the written designation required by Rule 7D-32.005(1), Florida Administrative Code, and Section 723.037(4), Florida Statutes; and A copy of the notice of lot rental increase, reduction in services or utilities, or change in rules and regulations which is being challenged as unreasonable; and A copy of the records which verify the selection of the homeowners' committee in accordance with Rule 7D-32.003, Florida Administrative Code, and Section 723.037(3), Florida Statutes. [Emphasis supplied] Proposed Rule 7D-32.005(4), F.A.C., which was published in Volume 14, No. 4, Florida Administrative Law Weekly (January 29, 1988), and which is here challenged, provides that: A request for mediation or arbitration shall be denied if the request does not substantially comply with Chapter 723, Fla. Stat., and these rules. The word "may," which is struck through, is to be deleted from the existing rule now in effect. The underlining indicates that the words "shall" and "substantially" are amendatory language to be added. Rule 7D-32.005(5), Florida Administrative Code, provides: If the homeowners' committee requests media- tion, a copy of the four items required by subsection (3) of this rule shall be furnished to the park owner by Certified U. S. Mail, Return Receipt Requested, at the time the request is filed with the Division. Failure to comply with this requirement may result in a delay in scheduling of a mediation meeting until the required items have been furnished to the park owner. [Emphasis supplied] Rule 7D-32.005(6), Florida Administrative Code, provides: Within 10 days from the date that the park owner or his agent receives copies of the documents required to be furnished to him pursuant to subsection (5) of this rule, the park owner shall advise the Division in writing of his willingness or refusal to participate in the requested mediation. If the park owner is of the opinion that the home owners or the homeowners' committee have failed to satisfy the statutory requirements set forth in Section 723.037, Florida Statutes, or the requirements of these rules he may indicate his willingness to participate in the mediation process without waiving his objections to the procedures used by the homeowners' committee. Rule 7D-32.005(7), Florida Administrative Code, provides: A decision by the Division to grant or deny a request for mediation does not constitute an adjudication of any issues arising under Section 723.037, Florida Statutes. Any dispute concerning the applicability of Section 723.037(6)-(7), Florida Statutes, must be submitted to a court of competent jurisdiction in the event that judicial proceedings are initiated. Rule 7D-32.001(5), Florida Administrative Code, provides: `Mediation' means a process whereby a mediator provided by the Division of Florida Land Sales, Condominiums and Mobile Homes partici- pates in discussions with a homeowners' committee and a park owner concerning the reasonableness of an increase in lot rental amount, change in park rules and regulations, or a decrease in services or utilities. The purpose of the mediator's participation is to assist the parties in arriving at a mutually agreeable settlement of their differences.
Findings Of Fact At all pertinent time Country Meadows Estates, Ltd. (Country Meadows), a Florida limited partnership, has been the park owner of Country Meadows Mobile Home Park (the Park) which is located in Plant City, Florida. Century Realty Funds, Inc. (Century), is the general partner of Country Meadows Estates, Ltd. Century has been in the business of operating adult and retiree mobile home parks for approximately seven years. It operates over 20 different parks. Country Meadows has been in existence for approximately five years. Approximately 510 lots have been offered for rent or lease in the Park. When the last phase of the Park is completed, approximately 750 lots will have been offered for rent or lease. Yearly rental increases at Country Meadows equate to the increase in the consumer price index, or a $5 minimum increase, whichever is greater. This rental agreement is guaranteed by Century for the lifetime of the mobile home owners as long as they reside in the Park. Charge Of Failure To Deliver Approved Prospectus. Century retained a law firm to provide assistance in securing approval of its proposed prospectus, lease agreement and park rules and regulations and paid the law firm a fee for its services. On November 27, 1984, Country Meadows filed with the Department of Business Regulation, Division of Land Sales, Condominiums and Mobile Homes (the Division), a prospectus for the Park. In order to be able to increase rent in January, 1985, as provided in existing lot leases, Country Meadows tried to get a copy of the filed prospectus to all existing lot lessees by the end of 1984. Starting December 31, 1984, Country Meadows began delivering a copy of this prospectus to each new lessee of lots in the Park. On January 7, 1985, the Division notified Country Meadows of deficiencies in the prospectus. Century, often through its supervisor of property management operations, and its legal counsel held numerous telephone conferences with the Division and numerous conferences among themselves regarding the notice of deficiencies. On February 25, 1985, Country Meadows sent the Division a revised prospectus addressing the deficiencies. Country Meadows substituted the revised prospectus as the prospectus delivered to new lessees of lots in the Park after February 25, 1985. On March 13, 1985, the Division sent Country Meadows another notice of deficiencies. The deficiencies found this time were in the original prospectus but were not noted in the first notice of deficiencies. On March 15, 1985, Country Meadows stopped delivering a prospectus to new lessees of lots in the Park after March 15, 1985. Country Meadows believed the law prohibited it from delivering an unapproved prospectus after that date but did not believe that it was prohibited from continuing to do business until a prospectus was approved. Rather, Country Meadows believed the law allowed it to continue to enter into new lot leases in the Park without an approved prospectus after March 15, 1985, but that it would have to deliver a prospectus when approved and give lessees the right to rescind their lot leases after review of the approved prospectus. On May 22, 1985, Country Meadows sent the Division a second revised prospectus. On November 6, 1985, Country Meadows sent the Division yet another revised prospectus that distinguished between increase in base rent on a lot and increase in other fees associated with rental of a lot. On November 21, 1985, the Division approved Country Meadows' last revised prospectus for the Park. Between March 16 and November 5, 1985, Country Meadows entered into 79 new Park lot rental agreements without delivering a prospectus to the lessee. Instead, the applicable filed but not yet approved prospectus was made available for inspection. Within 45 days after approval of the third revised prospectus on November 21, 1985, Country Meadows distributed an approved prospectus to all lessees, including those who entered into leases between March 16 and November 5, 1985. Century made a good faith effort to correct the deficiencies the Division cited in its proposed prospectuses. Charge Of Failure To File Advertising. In late summer or early fall, 1985, William and Nancy Hines responded to an advertisement in a magazine and asked for information. Century sent them documents. Some were not identified. One was entitled Greetings From Sunny Florida! (Petitioner's Exhibit 7). Century generally gives this document to persons who express an interest in Country Meadows, inviting them to pursue their interest and make a visit to the Park, free of charge. Later, Century sent a follow-up letter giving new information, further "selling" the benefits of Century parks, and finally asking the Hineses to indicate if they were still interested. (Petitioner's Exhibit 10). The Hineses arranged to make a visit to the park on November 15, 1985. At the Park, a County Meadows sales representative spoke with the Hineses and gave them a document entitled "Approximate Monthly Living Expenses At Country Meadows" (Petitioner's Exhibit 9). Country Meadows gives this document to persons who request information about Country Meadows. During the visit, the Hineses also were given a document entitled "Before You Purchase A Home: Questions And Answers You Should Know" (Petitioner's Exhibit 8). Country Meadows (and Century in general) usually sends this document to persons who express an interest in Country Meadows (or another Century park). It poses and answers general questions about mobile home parks and, in so doing, touts Century and its mobile home park developments. None of the documents (Petitioner's Exhibits 7, 8, 9 and 10) were filed with the Division. The Hineses entered into a lease agreement on November 15, 1985. In late winter or early spring of 1985, Elmer and Adele Johnson also saw an advertisement in a magazine and arranged to visit Country Meadows. At the visit, a Country Meadows sales representative gave the Johnsons a copy of a document entitled "Century: Mobile Home Communities, Affordable, Award-Winning, Adult Mobile Home Living-Now offering 11 outstanding Central Florida Mobile Home Communities for your inspection!" (Petitioner's Exhibit 11). It identified and listed information on each of the eleven parks, including Country Meadows. After the visit, Country Meadows sent the Johnsons a follow-up letter giving new information, further "selling" the benefits of Century parks and finally asking the Johnsons to indicate if they were still interested. (Petitioner's Exhibit 10). The letter is a standard letter (addressed "Dear Friend") used to re- contact prospective customers who have visited a Century park (as, for example, hundreds have visited Country Meadows). On March 15, 1985, the Johnsons returned to Country Meadows. They were given a copy of Petitioner's Exhibit 8 and entered into a lease agreement. None of these documents (Petitioner's Exhibits 8, 10 and 11) were filed with the Division. Petitioner's Exhibit 11 also was used and given to Myre Lutha Tillman, a prospective purchaser, in approximately July, 1985. From at least May 29, 1984, through October 6, 1986, a billboard sign advertising Country Meadows (a picture of which is Petitioner's Exhibit 4) was located on Frontage Road and could be seen from Interstate 4, approximately six miles east of Plant City. Century admits the billboard was advertising that was not filed with the Division. The billboard was removed some time after October 6, 1986, and no longer is in use. Country Meadows also placed newspaper advertisements of the Park in the Tampa Tribune on Sunday, February 2, and Sunday, February 26, 1986 (Petitioner's Exhibits 5 and 6, respectively). Century admits that this advertising was not filed with the Division. Some of the information Century gave prospective purchasers including Petitioner's Exhibits 7, 8, 9, 10 and 11-- was given only to persons who expressed an interest in a Century mobile home park or at least requested information. Century's supervisor of property management operations did not think this information was "public" and therefore not "advertising" under the mobile home park statutes. This partially explains why Century did not file this information with the Division. Charge Of False Or Misleading Advertising. Century admits that it used a pamphlet entitled "Country Meadows: The Golden Dream" (Petitioner's Exhibit 12), which it properly filed with the Division, as advertising distributed to the public. The pamphlet advertises "Exercise Facilities & Locker Rooms" and "Security with Access Gatehouse." The only locker rooms ever at Country Meadows were small package lockers located in the mailroom. The pamphlet, while technically not false, was misleading because it gives the impression of a locker room that would be used to change clothes in conjunction with the exercise room. There always has been "Security with Access Gatehouse" at Country Meadows. Initially, the gatehouse was placed at the entrance of the Park and was manned by paid residents of the Park. The gatehouse was manned during the day until early evening hours and on weekends (in part to direct visitors and guests to residents.) Later, approximately in early 1986, the gatehouse was moved back from the entrance and was equipped with automatic security gate arms. The residents were given an access code which, when punched in at the gatehouse, would automatically open the gate arm on either entering or leaving the Park. Country Meadows no longer hired residents to man the gatehouse but hired a full- time security guard who roves Country Meadows and an adjacent Century park that now has approximately 100 home sites leased. The security guard's hours of employment include the early morning and the evening hours. Sometime after installation of the new gatehouse (no witness could say when), lightning struck the gate and blew out the computer that controls the gate arm. The computer was fixed and was operative for a while without access codes. It was anticipated that the access code mechanism would be operative and new access codes would be given to the residents by the end of August, 1987. Again, no witness could testify to more precise time frames in which these events took place. Century also admits that it used another pamphlet or brochure, similar to Petitioner's Exhibit 12 but not filed with the Division, for advertising to the general public. This other pamphlet or brochure was entitled "The Golden Dream: Country Meadows" (Petitioner's Exhibits 13). It was given to Gerald Gott, among others, at a seminar in Merrillville, Indiana, sometime between October 10 and December 20, 1985. Like Petitioner's Exhibit 12, Petitioner's Exhibit 13 includes a color-coded map of Country Meadows showing: (1) "Home Sites Sold"; (2) "Home Sites Available"; and (3) "Final Phase, Future Home Site." In other colors, the map shows one clubhouse and one pool located between the first two color-coded areas (and bordered on the third side by golf course), and a second clubhouse and second pool nestled inside the third color- coded area (the "Final Phase"). Neither of the two pamphlets (or brochures) use the word "proposed" to describe the second clubhouse or second pool. The "Final Phase" of Country Meadows now is underway, and it will include a clubhouse and pool. The clubhouse will be a closed pavilion with a patio. The billboard advertising Century used for at least from May 29, 1984, through October 6, 1986, (Petitioner's Exhibit 4) stated: "Price [$29,900] Includes: Golf-Lakes-Pool- Clubhouse." However, Country Meadows actually was selling homes (and leasing lots) in the Park without golf included in that price. (Golf is optional for purchasers who pay an additional golf membership fee.) When prospective purchasers made an issue of the billboard advertising, Country Meadows on at least one occasion made an accommodation, including in the purchase price two years of free golf on the "gold card program" and charging $240 per year for golf privileges after that. The Tampa Tribune newspaper advertising (Petitioner's Exhibits 5 and 6) included the statement: "Free *Golf For 5 Years [under certain conditions]." The asterisk was intended to refer the reader to an asterisk near the bottom of the ad that said: "*No Free Golf On $32,900 Homes." Mitigation. Century has made reasonably diligent efforts in many respects both to cooperate with the Division to achieve compliance with the statutes and rules and to address and resolve the complaints and desires of residents of the Park.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Petitioner, Department of Business Regulation, Division of Land Sales, Condominiums and Mobile Homes, enter a final order: Dismissing the first and fourth charges alleged in the Notice To Show Cause; Holding the Respondent, Century Realty Funds, Inc., d/b/a Country Meadows Estates, Ltd., guilty of the violations alleged in the second and third charges in the Notice To Show Cause; Ordering the Respondent to cease and desist from the use of unfiled and false or misleading advertising; and Ordering the Respondent to pay to the Petitioner a total civil penalty in the amount of $5000 for the violations for failure to file advertising and false or misleading advertising. RECOMMENDED this day of September, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 4th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0165 Explicit rulings on the parties' proposed findings of fact are made to comply with Section 120.59(2), Florida Statutes (1985): Petitioner's Proposed Findings Of Fact: 1.-4. Accepted and incorporated. 5.-6. Subordinate and unnecessary. 7.-26. Accepted and incorporated to the extent necessary and not subordinate. Accepted and incorporated. Rejected as not within the charges in the Notice To Show Cause. 29.-30. Rejected as contrary to facts found. Subordinate to facts found. Accepted and incorporated. Rejected as irrelevant and not within the charges in the Notice To Show Cause. Accepted and incorporated. Subordinate to facts contrary to those found. 36.-38. Subordinate to facts found. 39.-41. Accepted and incorporated. 42.-44. Subordinate to facts found. 45.-47. Accepted and incorporated to the extent necessary and not subordinate. 48.-53. Accepted and incorporated. Rejected as contrary to facts found. There are lockers in the mailroom, but the advertising is misleading. Subordinate to facts found. Subordinate. Respondent's Proposed Findings Of Fact: 1-8 Accepted and incorporated. Unnecessary. Except that the reasonableness of the fee was not the subject of any evidence, accepted and incorporated. 11.-12. Accepted and incorporated. 13. Unnecessary. 14.-18. Accepted and incorporated. 19. Rejected as not proven if, when or why a third revision was demanded. The evidence proves only that the third revision provides some information the Division had requested. 20.-21. Accepted and incorporated. Rejected as contrary to fact found. (It was not simply a matter of Century waiting for the Division to approve a filed prospectus.) Accepted and incorporated. 24.-31. Irrelevant and unnecessary. (As to 29. to 31., the issues were not the same as in this case.) 32.-35. Subordinate to facts found (except it was not proven that every reasonable effort was made.) 36.-40. Accepted and incorporated except, as to 38, "financial security" was not an issue in the Notice To Show Cause and is irrelevant.) 41. Accepted and incorporated (but the lockers were in the mailroom, and the advertisement of them is misleading.) 42.-43. Accepted and incorporated. Irrelevant and unnecessary. Subordinate to facts found. Rejected as contrary to facts found. Irrelevant and unnecessary. Accepted and incorporated. See 47, above. Rejected as contrary to facts found. (Petitioner's Exhibit 12 was.) Accepted and incorporated. Accepted and incorporated (although the first notice of deficiency, while incomplete, was timely.) Rejected as not proven precisely what Century's decision, i.e., the understanding of its supervisor of property management operations, was based on. 54.-59. Accepted and incorporated. Unnecessary. Accepted and incorporated. Rejected as conclusion of law. 63.-64. Accepted and incorporated except to the extent conclusion of law. 65. Rejected as not proven. COPIES FURNISHED: Debra Roberts, Esquire Paul Thomas Presnell, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1927 Ronald L. Clark, Esquire Michael A. Tewell, Esquire MURPHY & CLARK, P.A. Post Office Box 5955 Lakeland, Florida 33807-5955 Richard Coats, Director Division of Florida Land Sales, Condominiums and Mobile Homes The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1927 James Kearney, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1927 Thomas A. Bell, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1927
The Issue Whether Respondents Alfred Homes and Felicia Homes Foster1 subjected Petitioner Nidia Cruz to discriminatory housing practices based on Ms. Cruz’s national origin, in violation of the Florida Fair Housing Act, chapter 760, part II, Florida Statutes (FHA).
Findings Of Fact Ms. Cruz, who is Hispanic in national origin, rented and occupied a mobile home at lot #9 in Pine Grove Trailer Park (Pine Grove), in an unincorporated area adjacent to Fernandina Beach, Florida. Respondent Alfred Homes owns Pine Grove. His daughter, Respondent Felicia Homes Foster, oversees the business operations of Pine Grove. Ms. Foster lives in a mobile home at Pine Grove, and owns two other mobile homes that are rental units. Ms. Cruz rented one of these mobile homes from Ms. Foster. The remaining mobile homes in Pine Grove are owner-occupied, with those owners renting their lots from Respondents. Neither party could produce a lease between Respondents and Petitioner concerning the mobile home. Based on the parties’ testimony and other evidence presented at the final hearing, the undersigned finds that Petitioner’s tenancy for the mobile home commenced on or about October 15, 2016, for an approximately one-year term ending November 30, 2017. Respondents charged a $500 security deposit, and $600 per month for rent, which included water and sanitary sewer that Pine Grove’s well and septic system provided. Ms. Cruz was responsible for electrical services to the mobile home. After the expiration of the lease on November 30, 2017, the parties did not renew the lease, and Ms. Cruz continued to occupy the mobile home under a month-to-month agreement, until she vacated the mobile home on or about September 29, 2018. Ms. Cruz sought out Respondents to rent a mobile home, as her previous landlord had terminated the lease for her previous residence because of her unauthorized possession of pets. Ms. Foster informed Ms. Cruz that she had an available mobile home to rent, but as the previous tenants had just moved out, she needed to make repairs to the mobile home before it could be occupied. Ms. Cruz requested to move in immediately while the Respondents repaired the mobile home, because she and her daughter were, at that point, homeless. Respondents employed Michael Hamilton to repair and provide maintenance work to the mobile homes in Pine Grove. Mr. Hamilton worked for Respondents on weekends, as he had a full-time job during the week. Within approximately one month of Ms. Cruz moving into her mobile home, Mr. Hamilton made the needed repairs to its interior, including replacing the refrigerator, carpet, commode, and door locks. After moving into the mobile home, Ms. Cruz was involved in an incident at a nearby McDonald’s restaurant with an employee. That employee, Theresa McKenzie, was a tenant of Pine Grove and resided in lot #10, which was adjacent to Ms. Cruz’s mobile home. Ms. Cruz and her daughter, Ms. Burgos, complained to Ms. Foster that Ms. McKenzie and her co-tenant Earnest Roberts made loud, harassing, and defamatory statements about Ms. Cruz and her national origin. Respondents, individually, warned Ms. McKenzie and Mr. Roberts to refrain from calling Ms. Cruz and Ms. Burgos names. The feud between Ms. Cruz and Ms. McKenzie was interrupted when Ms. Cruz was arrested on November 18, 2016. Ms. Cruz was charged with, among other offenses, aggravated stalking arising from a violation of an order of protection and filing a false police report. The victim of these offenses was a previous landlord from whom Ms. Cruz had rented a room. While in pretrial detention, a psychologist evaluated Ms. Cruz, and determined her to be incompetent to proceed in the criminal proceeding. The trial court subsequently committed Ms. Cruz to a mental health facility, and she pled guilty to filing a false police report. The trial court sentenced Ms. Cruz to a split sentence of two years with special conditions, which included enrollment into the mental health court program. After acceptance into the mental health court program, Ms. Cruz was released from the Nassau County Jail. On February 13, 2017, Ms. Foster hand delivered a letter to Ms. McKenzie and Mr. Roberts, which warned them that if they did not refrain from verbal attacks against Ms. Cruz, Respondents would evict them from Pine Grove and obtain a no trespassing order. Chris Cummings, who was a Pine Grove resident at lot #4, testified he was aware of the incident at McDonald’s involving Ms. Cruz and Ms. McKenzie, as his wife also worked at that McDonald’s. Mr. Cummings observed, but could not hear, Ms. Cruz and Ms. McKenzie “squaring off” against each other. Mr. Cummings recounted that he observed Ms. Cruz lift her skirt and bend over, in a manner that he interpreted to mean that Ms. McKenize could kiss her rear end. In August 2017, Hurricane Irma caused a large branch from a pine tree to fall on top of Ms. Cruz’s mobile home, puncturing the exterior metal skin of the mobile home’s roof, which allowed water to intrude into the interior of the mobile home. The water intrusion caused significant damage to the ceilings, walls, and floor coverings of the mobile home. It is undisputed that Hurricane Irma inflicted serious damage to the mobile home, and that Ms. Cruz resorted to using buckets to catch water leaking from the roof. Shortly after Hurricane Irma passed, Mr. Hamilton placed a tarp over the top of the mobile home to stop the water intrusion. He then began repairs to Ms. Cruz’s mobile home over the course of several weekends, which included removing and replacing damaged sheet rock, patching the metal roof, and installing new carpet and linoleum flooring. Mr. Hamilton testified that Ms. Cruz, on several occasions, frustrated his ability to complete these repairs by denying him entry into the mobile home. Ms. Cruz presented evidence that her mobile home required extensive repairs upon moving in, and that it sustained severe damage from Hurricane Irma. However, she presented no credible evidence to rebut the testimony that Mr. Hamilton, on behalf of Respondents, completed all necessary repairs. Additionally, Ms. Cruz presented no credible evidence that Respondents treated her differently than other Pine Grove tenants in responding to and completing any necessary repairs to other tenant’s mobile homes. Neither the passage of time, incarceration, nor the trauma of Hurricane Irma, ended the feud between Ms. Cruz and Ms. McKenzie. The Nassau County Sheriff’s Office had regular call-outs to Pine Grove regarding Ms. Cruz and Ms. McKenzie. The feud escalated when, on January 4, 2018, Ms. McKenzie filed a petition for an injunction for protection against Ms. Cruz, and the circuit court entered a temporary injunction that same day. The next day, January 5, 2018, Ms. Cruz and Ms. Burgos each filed petitions for an injunction for protection against Ms. McKenzie. Then, on January 16, 2018, Ms. Cruz sought a petition for an injunction for protection against Mr. Roberts, which the circuit court granted, as a temporary injunction, that same day. On January 17, 2018, the circuit court held a hearing on the petition against Ms. Cruz and Ms. Burgos’s petition against Ms. McKenzie, and on January 18, 2018, granted a final injunction in each case. On January 18, 2018, Ms. Burgos filed a petition for an injunction for protection against Mr. Roberts, which the circuit court denied. On January 24, 2018, the circuit court heard Ms. Cruz’s petitions against Ms. McKenzie and Mr. Roberts; the circuit court denied the injunction against Ms. McKenzie, but granted a final injunction against Mr. Roberts. On January 29 and February 9, 2018, the circuit court entered orders to show cause in Ms. Burgos’s injunction against Ms. McKenzie, and after hearing argument, dismissed them on February 15, 2018. Despite these multiple injunction proceedings, Ms. Cruz and Ms. McKenzie continued their feud. On January 22, 2018, Ms. Cruz was arrested for violation of the protection order in favor of Ms. McKenzie. Ms. Cruz’s arrest triggered a violation of her felony probation. While in pretrial detention, she was again evaluated by a psychologist, who determined her to be incompetent to proceed. The circuit court committed Ms. Cruz to a mental health facility. She subsequently returned to court and pled guilty to a violation of probation. The circuit court sentenced Ms. Cruz to a split sentence of time served, reinstated probation, and extended probation with an added special condition for 12 months. Ms. Cruz was released from the Nassau County Jail on July 27, 2018. On July 31, 2018, Ms. Foster hand delivered a notice to terminate the lease, stating that the lease will end on August 31, 2018, and that Ms. Cruz should vacate the mobile home no later than September 1, 2018. Ms. Cruz and Ms. Burgos continued to hold over in the mobile home until they moved out on September 29, 2018. Ms. Cruz failed to provide any credible evidence that Respondents, or Mr. Hamilton, made any disparaging statements to Ms. Cruz regarding her national origin. Ms. Cruz failed to provide any credible evidence that Respondents treated her less favorably than other tenants with regard to her feud with Ms. McKenzie. Put differently, Ms. Cruz failed to provide any credible evidence that Respondents treated any other tenant disputes differently than the way they treated the dispute between Ms. Cruz and Ms. McKenzie. Ms. Foster attempted to intervene on behalf of Ms. Cruz to end the feud, when she hand-delivered the letter to Ms. McKenzie on February 13, 2017, that threatened eviction. The credible evidence presented demonstrated that Ms. Cruz often created or exacerbated this feud, which ultimately led to her incarceration. Ms. Cruz failed to provide any credible evidence that Respondents’ decision to end the month-to-month holdover of the lease of the mobile home was based on her national origin, or that Respondents treated Ms. Cruz differently than any other tenants who resided at Pine Grove in ending the month-to-month holdover of a lease.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Nidia Cruz’s Petition for Relief. DONE AND ENTERED this 1st day of July, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Nidia Cruz Post Office Box 1923 Callahan, Florida 32011 (eServed) James Pratt O'Conner, Esquire James Pratt O'Conner, P.A. Post Office Box 471 Fernandina Beach, Florida 32035 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue The issues are whether the respondents engaged in a discriminatory housing practice, in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2007),1 by discriminating against Petitioner, on the basis of her alleged disability, and by harassing Petitioner and retaliating against her.
Findings Of Fact Petitioner is a former resident of Broadview Mobile Home Park (Broadview), located at 1701 Post Road, Melbourne, Florida. Petitioner resided in Broadview for approximately six years from an undisclosed date in 2002 through September 8, 2008. Mr. Lamont Garber holds an ownership interest in Broadview. The record does not quantify the ownership interest of Mr. Garber. Mr. Garber manages Broadview with his brother, Mr. Wayne Garber. Broadview rents sites within the mobile home park to residents who own mobile homes. Each site has access to water and electric service. Each resident arranges his or her water and electric service directly with the respective utility provider. Sometime in 2005, Petitioner purchased a mobile home for approximately $6,500.00 and moved within Broadview to Lot 24. The rental agreement for Lot 24 required rent to be paid on the first day of each month. The rent for July 2008 was due on July 1, 2008. Petitioner failed to pay the rent payment that was due on July 1, 2008. On July 9, 2008, Broadview served Petitioner, by certified mail, with a notice that she had five business days in which to pay the rent due (the five-day notice). Petitioner received the five-day notice on July 10, 2008. The five-day period expired on July 17, 2008, with no rent payment from Petitioner. Petitioner had paid rent late in the past, but Petitioner had never been more than four or five days late. After July 17, 2008, Broadview initiated eviction proceedings. Petitioner tendered the rent payment on July 20, 2008, but Broadview proceeded with the eviction. Petitioner did not appear and defend the eviction proceeding. On August 26, 2008, the County Court for Brevard County, Florida, issued a Final Default Judgment of Eviction awarding possession of Lot 24 to Broadview. Law enforcement officers thereafter executed the Court's order and evicted Petitioner from Broadview on or about September 8, 2008. After Petitioner received the notice of eviction, she filed a complaint with the Florida Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes (DBPR). DBPR is the state agency responsible for regulating mobile home parks, including Broadview. The allegations in the complaint that Petitioner filed with DBPR were substantially similar to the claims of discrimination, retaliation, harassment, and unlawful rent increases Petitioner asserts in this proceeding. DBPR rejected Petitioner's allegations and found that Broadview lawfully evicted Petitioner for non-payment of rent. The final agency action of DBPR is substantially similar to that of HUD and the Commission's proposed agency action in this proceeding. Each agency found that Broadview lawfully evicted Petitioner for non-payment of rent and rejected the allegations of discrimination, harassment, and retaliation. The DOAH proceeding is a de novo consideration of the proceeding before the Commission. A preponderance of the evidence does not establish a prima facie showing that Petitioner is disabled or handicapped. Petitioner has cancer and is receiving chemotherapy and radiation treatment. A preponderance of evidence does not show that the medical condition substantially limits one or more major life activities of Petitioner. Petitioner also alleges that she is disabled and handicapped by a mental condition. Petitioner submitted no medical evidence of the alleged disability or handicap. A preponderance of evidence does not establish a prima facie showing that, if such a mental condition exists, the condition substantially limits one or more major life activities of Petitioner. Assuming arguendo that a preponderance of the evidence showed that Petitioner were disabled or handicapped, a preponderance of evidence does not establish a prima facie showing that either of the respondents discriminated against Petitioner, harassed her, or evicted her in retaliation for Petitioner's disability or handicap. It is undisputed that Petitioner conducted neighborhood organization efforts to protest a rent increase at Broadview and repeatedly called law enforcement officials to report alleged drug and prostitution activity in Broadview.2 However, Broadview did not evict Petitioner for those activities, and Petitioner's testimony to the contrary is neither credible nor persuasive. Rather, Petitioner engaged in other activities that the respondents found objectionable. Petitioner baby sat for one or more dogs in violation of Broadview's prohibition against pets. Some of the dogs were dangerous to other residents. Petitioner also verbally abused Mr. Wayne Garber when he attempted to mediate with Petitioner concerning the presence of dogs and Petitioner's conduct toward management at Broadview. On July 1, 2008, Broadview served Petitioner with a seven-day notice concerning Petitioner's compliance with lease requirements. The notice, in relevant part, alleged that Petitioner harassed management and impaired the ability of management to perform its duties. The testimony of respondents describing the activities of Petitioner that precipitated the seven-day notice is credible and persuasive. A preponderance of the evidence shows that the respondents had legitimate non-discriminatory reasons for requiring Petitioner to comply with the terms of the seven-day notice and for requiring Petitioner to comply with the requirement for rent to be paid on July 1, 2008. Petitioner failed to comply with either requirement, and Broadview evicted Petitioner for legitimate, non-discriminatory reasons. The respondents did not harass or retaliate against Petitioner.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that the respondents did not engage in an unlawful housing practice and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of May, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2009.
The Issue The issue in this case is whether state use tax is due and payable on transactions wherein the taxpayer rented mobile homes to persons for use as private residences (which the lessees were required to maintain, repair, and insure), pursuant to leases under which the lessee would acquire title to his home upon payment in full of the total rent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order withdrawing the tax assessment against Park Place. DONE AND ENTERED this 25th day of June, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2004.
The Issue The issues for consideration in this case concern the petition and challenge to the validity of Rule 7D-32.001(4); Rule 7D-32.003 and Rules 7D- 32.004(1) and (2), Florida Administrative Code. The basis for the challenge is premised upon an alleged vagueness, inadequacy in the establishment of standards for agency decisions, the vesting of unbridled discretion in the agency and the contention that the rules are arbitrary and capricious.
Findings Of Fact Petitioner is the owner of Lake Waldena Resort, a mobile home park located in Marion County, Florida. That park is regulated under the provisions of Chapter 723, Florida Statutes. Petitioner is a mobile home park owner within the definition set out in Section 723.003(7), Florida Statutes. In addition, Petitioner is presently charged, through a notice to show cause/administrative complaint, with violating Section 723.037(3), Florida Statutes and Rule 7D- 32.004(1), Florida Administrative Code, by his alleged refusal to meet with a designated homeowners' committee within 30 days of the giving of notice of a proposed increase of lot rental. That disciplinary case was heard on the same date as the present case and is awaiting disposition through a recommended order. If Petitioner is found to have violated provisions within Chapter 723, Florida Statutes and Chapter 7D-32, Florida Administrative Code, he may be subjected to a civil penalty or have other administrative sanctions imposed. The rules that are under challenge are related to the formation of the homeowners committee; the activities of that committee in ascertaining the basis for the park owners' reason for a lot rental increase; the obligation of the park owner to meet with the committee and the opportunity of the park owner to request certification of the committee's selection to participate in the meeting envisioned by Section 737.0037(3), Florida statues. Respondent by the authority set forth in Section 732.006(6), Florida Statutes, is authorized to promulgate rules which it deems to be necessary to implement, enforce, and interpret the provisions of Chapter 723, Florida Statutes. In accordance with that authority and the authority set forth in Section 723.037, Florida Statutes, it enacted the rules which are the subject of this dispute. Intervenor is a Florida non-profit corporation which represents over 150,000 mobile home owners and tenants in Florida and has as its purpose the representation of those mobile home owners in various activities, to include legal issues. The Petitioner and Respondent and the mobile home owners whom the Intervenor represents are substantially affected by the decision concerning the validity of the aforementioned rules.
The Issue Whether the Agency for Persons with Disabilities (APD) properly denied the application for licensure renewal sought for the group home facility license held by Tracy Court Group Home, owned and operated by V-Agape, LLC.
Findings Of Fact Petitioner is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential habitation centers pursuant to section 20.197 and chapter 393, Florida Statutes. At all times material to this complaint, Respondent held foster or group home facility licenses issued by APD. The current group home license issued for V-Agape, LLC, located at 19103 Tracy Court, Lutz, Florida 33548, is owned by Tonya Nelson, the sole managing member. Respondent has contracted with APD to provide the residents with Medicaid waiver developmental disability residential habitation services. HCSO conducts investigations of reports of abuse, neglect, abandonment, and threats of harm to children on behalf of DCF. Investigations of abuse, neglect, abandonment, and threats of harm are initiated by reported incidents through the Florida Abuse Hotline. Karen Gonzalez is the supervisor of the Specialized Investigating Unit. She supervises the CPIs who perform the abuse hotline investigations. Ms. Gonzalez supervised Robert Hoon and Jennifer Campbell, both CPIs. A report was made to the Florida Abuse Hotline on January 24, 2014, that a minor female resident of Respondent’s Tracy Court Group Home sustained bruising and a red mark on the back of her hand from being struck on her hands by Tonya Nelson. The resident is non-verbal and intellectually disabled. The subsequent investigation by CPI Hoon, on behalf of DCF, was ultimately closed with verified indicators for physical injury upon the minor resident living in the Tracy Court Group Home, but did not identify the caregiver responsible. CPI Hoon reviewed and discussed the investigation with Supervisor Gonzalez before he prepared the Investigative Summary (IS). When conducting investigations, the CPI reviews the prior history of incidents reported on a group home and its owner/operator. In subsection “D. Prior Reports and Service Records Implications for Child Safety,” CPI Hoon reported that: There are prior reports on the facility that include concerns for physical discipline in the foster home and to her o[w]n children. There is a verified report in 2012 for physical injury and the aps [adult perpetrators] where [sic] Tonya Nelson and the aunt as it is unknown who caused the injuries. Ms. Gonzalez testified that prior reports are reviewed in conducting their investigations to determine whether a pattern of concern for the health and safety of the children placed in that home and for the caretakers caring for the children in the home exists. The CPIs utilize DCF Operating Procedure (CFOP) 175-28, Child Maltreatment Index, as a guideline in conducting their investigations. A “verified finding” is made when a preponderance of the credible evidence results in a determination that the specific harm or threat of harm was the result of abuse, abandonment, or neglect. CPI Campbell explained the application of CFOP during an investigation: [I]t . . . breaks down the different maltreatments that are investigated under the umbrella of abuse, neglect, and abandonment, and it provides a guideline for the definitions of what the different maltreatments are, and the different types of supporting evidence and documents that may be needed when supporting a maltreatment when the investigator comes up with the findings. It’s basically a guideline for investigations, because when a report comes in it may not be just one maltreatment, there may be a number of different maltreatments; or an investigator may identify a maltreatment during the course of an investigation, and so this provides a guideline for the investigator. On May 20, 2014, a report was made to the Florida Abuse Hotline about a minor resident of Respondent’s Tracy Court Group Home. An investigation was commenced concerning unexplained bruises observed on the resident, a vulnerable minor. CPI Campbell completed the investigation and prepared the IS. She discussed the verified findings with Supervisor Gonzalez. CPI Campbell is an experienced investigator, having had 11 years of service with HCSO following five years’ experience as a CPI in Michigan. The report of May 20, 2014, was a “Supplemental” report since, according to Supervisor Gonzalez, it came in right after the initial risk sequence. Rather than creating an entire new report, this one became supplemental to the prior one. The IS stated that the resident had a large bruise on her left thigh and bruises on her left arm and the back of her leg. Ms. Nelson was not able to explain how the minor resident sustained the bruises on her leg and arm. CPI Campbell became involved with Ms. Nelson and the investigation of the group home when Supervisor Gonzalez gave her the task of completing the investigation initiated by CPI Krisita Edwards. At the time CPI Campbell took over the investigation, CPI Edwards had been assigned to other duties. CPI Campbell explained that it was not unusual for a second investigator to complete work begun by another since all their notes are kept on a central database known as the Florida Safe Families Network (FSFN), where all contacts are noted, as well as the investigative summary. CPIs Edwards and Campbell collaborated on the investigation in this case. CPI Edwards entered her initial findings in the FSFN, which was picked up and continued by CPI Campbell when she took over the case. The two CPIs have collaborated on other cases in a similar fashion. The initial documentation by CPI Edwards was performed within 48 hours of the call coming into the abuse hotline as required. CPI Campbell’s completion of the report and investigation occurred after she had spoken with CPI Edwards and discussed the matter with Supervisor Gonzalez. The result of the investigation concerning the bruises on the minor resident was that the bruises were “indeterminate for physical abuse” and “indeterminate for supervisory neglect” due to the fact that a specific cause of the injuries could not be determined. Further, since the minor resident had been removed to another group home, the report concluded that there existed no continuing threat to the resident’s well-being. Even though the resident had been removed from the Tracy Court Group Home and, therefore, was not in any danger of being further harmed, CPI Campbell continued to have serious concerns about the care of residents in the group home. She believed that several allegations of the same type of harm were being made in the group home and that they could not ask the resident how she received her injuries since she was non-verbal. Myra Leitold, an APD residential licensing supervisor, had monitored the Tracy Court Group Home for the previous nine and one-half years. On December 28, 2012, she observed that a door lock to the office and bedroom was keyed so that it could be readily opened from the inside which, she believed, created a safety hazard. Between December 2012 and August 2014, the group home was cited for ten violations of Medication Administration Procedures. On one of her visits, in December 2012, Ms. Leitold noted that no current prescription was present for one of the residents, and that the label on the prescription bottle did not match the prescription drugs inside the bottle. Additionally, she found that the accounting for one of the resident’s finances was not current and that the temperature inside the group home was a chilly 65 degrees Fahrenheit. Mitchell Turner, human services program specialist for APD, recorded numerous medication administration violations at the group home. He noted on May 30, 2013, that the medication prescriptions and instructions for the Medical Administration Record (MAR) did not match. On June 18, 2013, he discovered that the wrong dosage of prescription was being given to a resident, and Ms. Nelson admitted this mistake. Mr. Turner grew so concerned about the prescription irregularities that he requested Pamela Lassiter, a medical case management registered nurse, to review the group home. Nurse Lassiter was sent to the home where she discovered and cited the home for three additional prescription violations. Even following Nurse Lassiter’s visit, on another trip to the group home on April 9, 2014, Mr. Turner cited an additional MAR violation. He believed these violations posed a health and safety risk to the residents affected and exhibited a pattern of neglect by Respondent to the health and safety of vulnerable children. During the period when prescription and other violations were noted, on January 11, 2013, Ms. Nelson exceeded the maximum licensed capacity of three in the group home when she accepted a fourth resident. She did not have prior written approval from APD to exceed her licensed capacity of residents. On September 25, 2013, Mr. Turner issued a Notice of Non-Compliance (NNC) because Ms. Nelson again exceeded the licensed capacity for the number of residents in the group home without prior written approval from APD. Mr. Turner expressed his concerns over the repeated violations by Respondent. Ms. Nelson testified that she had received verbal approval for the placements in excess of the home’s licensed capacity from Meisha Stewart, residential placement coordinator for APD, and that on a prior occasion in 2012, she had accepted a resident after receiving verbal approval. This testimony was rebutted by both Geraldine Williams, the former regional operations manager for APD’s Suncoast Region, and Ms. Leitold, who testified she had never known APD to give verbal approval for a placement of a resident in a group home. With the high volume of referrals APD makes to group homes, they cannot operate in a system where verbal placements occur. All placements must be made in writing. When a provider receives a NNC, the provider is required to submit and successfully complete a Corrective Action Plan (CAP). Mr. Turner testified that Ms. Nelson did not submit or successfully complete a CAP for the MAR violations. On January 17, 2013, Ms. Leitold visited the group home and observed the following violations: volatile materials were not stored in approved metal containers and three prescriptions for a resident’s medications were not present. The gasoline, charcoal, and lighter fluid found by Ms. Leitold were required to be stored in approved metal containers. Keeping these materials in the open posed a safety hazard for the minor residents by giving them access to volatile materials. On November 4, 2014, Ms. Nelson sent an email to Meisha Stewart advising her she intended to accept a non-APD client for placement in the Tracy Court Group Home without APD’s prior approval. Ms. Nelson testified that since that same resident had been placed in the Tracy Court Group Home for a six-month period in 2013, she believed she did not need a new approval in 2014.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying V-Agape, LLC, d/b/a Tracy Court Group Home’s application for license renewal. DONE AND ENTERED this 6th day of November, 2015, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2015. COPIES FURNISHED: Brian F. McGrail, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Lindsey Ann West, Esquire The Plante Law Group, PLC 806 North Armenia Avenue Tampa, Florida 33609 (eServed) Gerald D. Siebens, Esquire Agency for Persons with Disabilities 1313 North Tampa Street, Suite 515 Tampa, Florida 33602-3328 (eServed) Barbara Palmer, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) David De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
