Findings Of Fact After a realtor told Robert Edward Poland that the Flagship Bank was foreclosing on Villa Rosa Mobile Home Park in Jacksonville Beach, Mr. Poland and his wife offered to purchase the property. The incompetency of the owner, Mrs. Ritchie, then in her eighties, together with ensuing legal proceedings, complicated negotiations. But on August 21, 1986, Robert Edward Poland and Jacqueline Poland became joint owners of Villa Rosa Mobile Home Park. A portion of the park they acquired in fee simple, but another portion (now known as Beach Boulevard Trailer Park) they acquired only as a life estate pur autre vie. On the death of Mrs. Ritchie in mid-October 1987, the life estate was extinguished, and that portion has become the property of Mrs. Ritchie's daughter, Elizabeth Drey, and possibly the daughter's husband, Richard Drey. Only beginning with rent for February of 1989, however, have the Dreys begun receiving income from the trailer park. Rent Raised On August 21, 1986, the day they acquired ownership, the Polands gave tenants written notice of their intention "to adjust rent effective December 1, 1986" to $130 a month for a single mobile home lot and to $155 monthly for a double wide mobile home on a single lot. This proposed rental increase did not pertain to lots 3, 6, 13, 15, 47, 48, 49, 50, 51, 52, 53, 54, 55, or 007, which were rented only to over-nighters. Perhaps misunderstanding the notice, Tom Williams on Lot C began paying a higher amount on October 1, 1986, before the increase took effect. The following month, Debra Black Wood, J. E. Turner and James Mahoney also paid the increased rent prematurely. In their cases, and in the case of Mr. Williams, the Polands accepted the money but credited the surplus to the tenant. Not counting the lot which the boundary between the Drey property and the Polands' property divides, Mr. and Mrs. Poland offered for rent or lease 26 or more mobile home lots as residences, both before and after Mrs. Ritchie's death. The following tenants' monthly rent increased by the amounts indicated on December 1, 1986: Name of Tenant Lot No. Amount of Increase Ila Story 1 $30.00 Rosa Robinson 2 30.00 Rick Tahey 4/5 55.00 Virginia Dawson 7 5.00 Isabe Sutcliffe 8 30.00 Deborah Blackwood 9 5.00 B. E. Turner 12 30.00 Ingrid C. Fegan 14 30.00 Helen Marin 17 40.00 Alden Waterman 18 30.00 Ethel Dunsmoor 19 30.00 Martina O'Hare 20 30.00 Zora Hyde 21 30.00 William Vollkmer 22 30.00 Richard Rasmussen 23 5.00 Marjorie Barnes 24 30.00 James Mahoney 26 30.00 Roger Zucco 27 5.00 George Bunting 29 55.00 Robert Grabel 30 55.00 David Escopie 31 30.00 Catherine Stevens 32 30.00 Richard Law 33 30.00 Maxwell Page 35 30.00 Helen Hines 36 5.00 Norman Peterson 37 5.00 Hernandez/Johns 38/39 25.00 Lester Rogers 40 30.00 Rita Boyer 41 30.00 Thelma Thornton 42 30.00 Maxwell Page 43 30.00 Kenneth Driscoll 44 55.00 Edna Praine 45 55.00 Cassus Powell 100 30.00 David Koehler 101 5.00 Jerry Welker 102 62.50 John Embleton 103 5.00 Corrine Beach 104 55.00 Clyde Wiley 105 30.00 Candie Blasman 106 30.00 Harry Wilson 107 30.00 Stanley Dolka A 30.00 Goffery Riser D 5.00 William Page E 30.00 Pat Pattillo F 40.00 Roy Pike G 30.00 Frieda Suomella H 5.00 Charlotte Reid I 30.00 Bernard Hakes J 30.00 Herbert Davis K 30.00 Lee Haley L 30.00 Heide Alexander M 30.00 Joseph Moore N 5.00 Mary Lo Wampler O 40.00 Ernest Grizzard P 30.00 Bertha Martin Q 40.00 Cathy Lumbar R 65.00 Ruth Pooley S 5.00 Norma Baker U 5.00 H. W. DeMoss V 30.00 Arthur Pitman W 40.00 Jesse Wagnor X 5.00 James Hicks Y 5.00 Robert Wilder 00 20.00 At hearing, Mr. Poland testified to a total of 85 lots of which "seventy-three are singlewide [including some devoted to overnighters], and the balance would be overnighters or doublewides." T.88. According to DBR records, respondents reported 87 lots when applying for approval for their prospectus. Petitioner's Exhibit No. 3, pp. 000017, 000021. Past Practice Historically, the park had been run on the basis of oral agreements, creating month-to-month tenancies. Such records as existed when the Polands acquired ownership of the mobile home park reflected 13 different amounts charged different tenants for equivalent mobile home lots. Apparently Mrs. Ritchie had played favorites. A longtime resident testified that the rental rate structure was "kind of on the buddy/buddy system." T. 68. From time to time, and on no more than a month's notice, Mrs. Ritchie had raised rents. Robert L. Davis, who moved to the trailer park in October of 1976, originally paid $50.00 a month. On September 1, 1983, monthly rent increased from $50.00 to $75.00; and on December 1, 1983, from $75.00 to $100.00. One longtime resident, Katherine Stevens, "imagined" (T.127) that Mrs. Ritchie had asked for rent increases to defray utility rate hikes, but written notices of increases offered no explanation. T.48-49. Like Mr. Davis and Ms. Stevens, Robert Wilder, who seeks no money in this proceeding (T.75), was a tenant at the mobile home park before June 4, 1984. Until May of 1986, nobody ever received a prospectus. On June 10, 1983, however, rules and regulations were drawn up which provided in paragraph 20: Management specifically reserves the right to increase rental rates, fees, charges or assessments imposed on resident either by amendment or by addition to these rules, provided thirty (30) day written notice is given. Rosa Ritchie herself gave Ms. Stevens and other tenants a copy of the rules and regulations which first set out in writing her practice of giving thirty days' notice before raising rents. Regulatory Approval Only after the Polands had acquired the property, and announced their intention to raise rents, did Mr. Poland learn of the requirement that a prospectus be furnished tenants. On September 9, 1986, he wrote Mr. John D. Floyd of DBR as follows: With regards to the prospectus of Villa Rosa, please find enclosed a copy of the Rules and Regulations which are provided each tenant prior to renewing or extending `an existing rental agreement and prior to entering into a new rental agreement. This document was previously submitted to your Division and I assume that it remains acceptable. Petitioner's Exhibit No. 3. In response, Senior Clerk Pamela T. Parker of the Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, wrote Mr. Poland on September 19, 1986, listing various "deficiencies for form." With regard to the prospectus, she wrote, among other things: The prospectus fee was not in accordance with Section 723.011(1)(d), Florida Statutes. Please submit a check for the appropriate amount. Petitioner's Exhibit No. 3. Having received this reply, Mr. Poland wrote Ms. Parker on September 25, 1986, as follows: Enclosed please find the Mobile Home Prospectus, Filing Statement and Filing Fee. Currently, there are no rental agreements in writing for the mobile home park. All agreements are oral, to the best of my knowledge. Petitioner's Exhibit No. 3, p. 000018. Petitioner received Mr. Poland's letter of September 25, 1986, the following day. The letter is marked "RECEIVED FISCAL SEP 26 1986." DBR's Division of Florida Land Sales, Condominiums and Mobile Homes did not "process" the $150 check which accompanied the letter, until October 15, 1986, however, when somebody marked the letter "RECEIVED FISCAL OCT 15 1986" and crossed through the earlier received stamp. Another eight days passed before a form letter from the Division went out to Mr. Poland advising him of the Division's intention to examine the contents of his filing, to ensure its adequacy, and promising him he would "be notified as to the results of this examination within" forty five days of October 15, 1986. On November 20, 1986, more than 45 days after the prospectus had been received, the Division sent another letter to Mr. Poland, signed by Bridget St. Clair, apprising Mr. Poland of a number of deficiencies in the prospectus. On December 2, 1986, Mr. Poland made a second submission. In a cover letter addressed to Ms. St. Clair, he wrote: During our recent telephone conversation, you indicated that a prospectus is not necessary unless a rate increase Is anticipated. Since I have no intention of raising rates for the next year, I do question why this prospectus is necessary. Your thoughts on this point would be greatly appreciated. Petitioner's Exhibit No. 3, p. 000013. In May of 1987, after several further emendations, Mr. Poland was told over the telephone that the prospectus submitted in December passed muster, as revised. Having received oral approval, he asked an employee, Jack N. Justice, to deliver prospectuses. Mr. Justice delivered by hand to every resident who was home a copy of the prospectus and, whenever somebody was not at home, put a copy in the mail box. (Before these deliveries, the planned increase in rent had taken effect, as of December 1 of the previous year.) Petitioner gave written notice of approving the prospectus by letter dated May 27, 1987. The approved prospectus apprised tenants of the landlord's intention to pass on "ad valorem property taxes or utilities charges ... during the term of the lot rental agreement ... [p]rorated equally among all lots," Petitioner's Exhibit No. 1, p. 46, and warned tenants that an increase in water, sewer or garbage collection charges or property taxes "may result in an increase in the home owner's lot rental amount." Id. Rent Raised Again On June 25, 1987, Mr. Poland sent out a second notice proposing another increase of rent, to take effect on October 1, 1987, "due to the increase in real estate taxes and for capital improvements, including the water pressure problems complained of." Petitioner's Exhibit No. 4. The increase amounted to $15.00 per month for each single mobile home on a single lot, and to $20.00 for double wide mobile homes (or other mobile homes on double lots.) Id. On April 7, 1987, the City of Jacksonville Beach increased water and sewer rates. Mr. Poland's claim that the increase resulted in an average additional charge of approximately $14.12 per month per lot went unrebutted. A garbage collection container had to be added at $100 ($1.15 per lot) a month; $330 was expended to install a new water meter. Ad valorem taxes increased between 1985 and 1986, but were not shown to have risen at any time after December 1, 1986. The following tenants paid increased rent in the following monthly increments, effective October 1, 1987: Name of Tenant Lot No. Amount of Increase *Ila Story 1 $15.00 Mark Robson 2 15.00 *Rick Tahey 4/5 25.00 Seahorn/Gulledge 7 15.00 *Isabe Sutcliffe 8 15.00 William R. Hernandez 9 15.00 Bertie Willis 10/11 25.00 *B. E. Turner 12 15.00 *Ingrid C. Fegan 14 15.00 Ray Brozoski 16 5.00 *Helen Marin 17 15.00 *Alden Waterman 18 15.00 *Ethel Dunsmoor 19 15.00 *Martina O'Hare 20 15.00 *Zora Hyde 21 15.00 *William Vollkmer 22 15.00 William E. Wolfe 23 15.00 H. D. Seahorn 25 15.00 *James Mahoney 26 15.00 *Roger Zucco 27 15.00 Roland Page 28 15.00 *George Bunting 29 15.00 *Robert Grabel 30 15.00 Joseph Mickey 31 5.00 *Catherine Stevens 32 15.00 *Richard Law 33 15.00 Edna Barrett 34 15.00 *Maxwell Page 35 15.00 *Helen Hines 36 15.00 Christ. Hooley 37 15.00 *Hernandez/Johns 38/39 20.00 Arminta Rogers 40 15.00 *Rita Boyer 41 15.00 *Thelma Thornton 42 15.00 *Maxwell Page 43 15.00 *Kenneth Driscoll 44 15.00 *Edna Praine 45 15.00 James Wilson 46 15.00 Nancy C. Lane 100 15.00 *David Koehler 101 15.00 *Jerry Welker 102 15.00 *John Embleton 103 15.00 *Corrine Beach 104 20.00 *Clyde Wiley 105 15.00 *Candie Blasman 106 15.00 *Harry Wilson 107 20.00 *Stanley Dolka A 15.00 Tom Williams C 15.00 *Goffery Riser D 15.00 *William Page E 15.00 *Pat Pattillo F 15.00 *Roy Pike G 15.00 *Frieda Suomella H 15.00 *Charlotte Reid I 15.00 Michelle Holt J 15.00 *Herbert Davis K 15.00 *Lee Haley L 15.00 *Heide Alexander M 15.00 Joseph Morris N 15.00 *Mary Lo Wampler O 15.00 *Ernest Grizzard P 15.00 Juanita Holliman Q 15.00 *Kathalee Lombar R 15.00 *Ruth Pooley S 15.00 *Norma Baker U 15.00 *H. W. DeMoss V 15.00 *Arthur Pitman W 15.00 *Jesse Wagnor X 15.00 *James Hicks Y 15.00 W. Crowe Z 15.00 *Robert Wilder 00 20.00 Asterisks indicate those who were tenants on December 1, 1986. No lot rental agreements were in writing.
Recommendation It is, accordingly, RECOMMENDED: That petitioner reprimand respondents for raising rents before distributing prospectuses to their tenants. That petitioner require respondents to return the amounts by which rents collected for December of 1986 and January, February, March and April of 1987 exceeded rents charged the same tenants for November of 1986. DONE AND ENTERED this 1st day of December, 1989, in Tallahassee, Leon County, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5983 Petitioner's proposed findings of fact Nos. 1 through 4 recite procedural matters only. Petitioner's proposed findings of fact Nos. 5 through 11, 13, 15 through 19, and 21 through 25 have been adopted, in substance, insofar as immaterial. With respect to petitioner's proposed finding of fact No. 12, ad valorem taxes may also have contributed to the 1986 increase. Petitioner's proposed finding of fact No. 14 is rejected. With respect to petitioner's proposed finding of fact No. 20, Mrs. Ritchie distributed something she called rules and regulations. With respect to petitioner's proposed finding of fact No. 26, the charges themselves were included but not increases. Respondents' proposed findings of fact Nos. 1 through 4, 6, 7, 10 through 12, 14 through 17, 21, 22, 23, 25, and 26 have been estopped, in substance insofar as material. Respondents' proposed finding of fact No. 5 in immaterial. With respect to respondents' proposed findings of fact Nos. 8 and 9, the change in garbage collection charges, except for addition of a dumpster, occurred before respondents acquired the property; and the tax increase was $5,000.00 not $10,000.00. With respect to respondents' proposed finding of fact No. 13, respondents' selective (DBR advised them not to raise rents before distributing prospectuses) reliance on DBR for legal advice, whenever it may have ended, does not give rise to an estoppel. With respect to respondents' proposed findings of fact Nos. 18 and 19, utility rate charges are only one variable; usage was not proven. With respect to respondents' proposed finding of fact No. 20, Leroy Kierstaedt and Haze Studivant were apparently overnighters. With respect to respondents' proposed finding of fact No. 24, Ms. Stevens said she "imagined" this was so. Respondents' proposed finding of fact No. 27 was not established by the evidence. COPIES FURNISHED: Reynold Meyer Assistant General Counsel Department of Business Regulation Division of Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1070 Jeffrey C. Regan, Esquire 1300 Gulf Life Drive Jacksonville, Florida 32207 =================================================================
The Issue 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 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)
Findings Of Fact Respondent owns and operates a mobile home park in Winter Haven, Florida, known as Swiss Village Mobile Home Park, in which lots are leased to mobile home owners on an annual lease. There are 383 lots in this park and this park has held a permit issued by the Department of Health and Rehabilitative Services since 1980 (Exhibit 1). Edward G. Ackerman and his wife entered into a lease with Respondent for the use of a mobile home lot for the period January 15, 1981 until December 31, 1981, at a monthly rental of $75.07 (Exhibit 2). That lease provides for year-to-year renewal with rent for future years based on the Cost of Living Index as determined by the U.S. Government at the nearest reporting period to the end of each calendar year (Exhibit 2). A Guaranteed Lifetime Rent Agreement (Exhibit 3) was executed by the lessor concurrently with the lease in Exhibit 2, which guarantees the rental on the lot leased to Ackerman shall not be increased more than the U. S. Cost of Living Index as long as Ackerman resides in a mobile home located on the leased lot. Using the annual change and CPI to recompute Ackerman's monthly rental has resulted in the rent increasing from $75.00 per month in 1981 to $89.50 per month in 1985 (Exhibit 4). Prior to the time of this hearing Ackerman had purchased a condominium to which he had moved and he was no longer a tenant at the Swiss Village Mobile Home Park. All leases negotiated in years subsequent to 1981, have a similar escalation clause in the rent with the additional proviso that the monthly rent would be increased each year a minimum of $5.00 per month, with the maximum increase not exceeding the CPI. Respondent has used the October All Items Consumer Priced Index For All Urban Consumers (CPI-U) in determining the annual rent increase since operations commenced. This report is received in November and by promptly advising tenants the amount their rent will change, because of changes in the CPI-U, each. tenant receives approximately 30-days notice prior to the January 1 effective date. If the terms of the lease agreement are literally complied with and the December CPI is used, Respondent would have to calculate the rent due January 1 on the CPI which it receives in January. By the time tenants are notified of the effects of the CPI on their rent for the coming calendar year, they would already have paid an inadequate sum for the January rental, and perhaps for the month of February also, and would be billed for the deficiency. There is an active Home Owners Association at Swiss Village Mobile Home Park. This association has not complained of the failure of Respondent to provide 90 days notice prior to the automatic rent change which comes every January, nor have they requested arbitration. In order to insure tenants receive 90 days notice of the rental change, due to changes in the CPI, Respondent would have to use the July Consumer Price Index, which it receives in August. Had Respondent used the July CPI report and given tenants 90 days notice of the annual rental increases since 1981, these increases would have exceeded the increase computed using the October CPI (Exhibit 6). Exhibit 6 indicates the actual adjustments of rentals since 1981, has been $5.00 per month or the CPI, whichever is less.
The Issue This is a consolidated case involving both the present and prior owners of the Country Retreat Mobile Home Park: (f/k/a Christian Retreat Mobile Home Park). The case involves the issue of whether the prior owner, Respondent, Gospel Crusade, Inc., (hereinafter Gospel) is guilty of the violations alleged in the Notice to Show Cause dated June 6, 1990, issued against Gospel by the Petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (hereinafter the Division) Gospel has been charged with renewing the existing rental agreements of at least thirty-seven (37) mobile homeowners by implementing a lot rental amount increase. Gospel has also been charged with increasing the lot rental amount on May 1, 1986, with a rent increase notice that did not provide for an effective date or disclose the present rental charge for the mobile home lot. Gospel has also been charged with increasing the lot rental amount of at least forty-six mobile homeowners on February 1, 1988, without the delivery of an approved prospectus prior to the Increase. The case also involves the issue of whether the present park owner, Respondent Country Retreat, Inc. (hereinafter `Country') is guilty of the violations alleged in the Notice to Show Cause dated June 11, 1990, issued by the Division. Respondent, Country, has been charged with increasing the lot rental amount of at least forty-six mobile homeowners on February 1, 1989, by twenty-three dollars ($23.00) per month without delivering each affected mobile homeowner a prospectus approved by the Division. Country also has been charged with collecting lot rental amount increases from at least forty-six mobile homeowners which increases were imposed by the previous owner, Gospel Crusade, Inc. prior to the delivery of an approved prospectus. The homeowners' lot rental amounts were increased on May 1, 1986 and February 1, 1988, prior to delivery of an approved prospectus. At the final hearing in this matter, the Division presented the testimony of six (6) witnesses: Faye Mayberry, Chief of the Bureau of Mobile Homes; Warren Schoder, General Manager of Gospel Crusade, Inc.; and the following homeowners: Harold Hines, Martha Potteiger, Thomas Reinecke and Carmella Campora. The Division introduced six (6) exhibits into evidence which are referred to herein as Petitioner's Exhibits 1-6. Gospel presented the testimony of five (5) witnesses; Phillip Derstine, Robert Friedrich, Walt Wirries, Crystal Milligan, and Jean Mulholland. Gospel introduced two (2) exhibits into evidence which are referred to herein as Gospel Crusade Exhibits A and B. Country presented the testimony of Mr. Robert Ruggles and did not introduce into evidence any exhibits. After examining the Recommended Order and reviewing the record, it is HEREBY ORDERED:
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Division, has been the state agency responsible for the regulation of mobile home parks in Florida. Gospel was the developer and former owner and operator of a facility, located on church property in Manatee County, Florida, on which mobile homes were parked, owned and operated by individuals other than Gospel members, and known as Christian Retreat. Country is the present owner and operator of the facility in question, having purchased it from Gospel on December 15, 1988. The mobile home park in question contains 76 mobile home lots which are all rented or leased by the park owner to mobile home owners under oral rental agreements. As of June 13, 1986, all lots had been leased. Occupants of the lots do and did not have to belong to the owning church nor be a part of its ministry. No formal lease was required, but it was understood that the occupant would pay the required lot rental for as long as the lot was occupied. Because of this loose arrangement, Gospel claims it was not offering mobile home lots for rent or lease and was not, therefore, a "mobile home park owner" as defined by the statute. The evidence is clear, however, that the arrangement was formalized between the park and the lot occupants and the land was owned by Gospel. Though the occupant could remain as long as he or she desired, so long as the lot rental was paid if the party was capable of paying, and the community's standards were met, the occupant did not own the lot and paid rent to Gospel for the use of the space. There is also some indication that the amount paid by the occupants to Gospel was no more than was required to meet operating costs and included no profit to Gospel or return on equity. This payment was, however, except in those few cases where the occupant could not pay, a condition precedent to the occupant's remaining on the site and regardless of by what name called, was compensation for the use of the property. This is rent. On June 13, 1986, the Division approved Prospectus No. 4102545P, submitted by Gospel. Gospel had previously delivered to park residents a notice of increase in monthly lot rental from $82.00 to $90.00 which was to be effective on May 1, 1986, but which did not so state in its body. It was a defective notice. The prospectus was not delivered by hand, sent by certified mail or left at the lot prior to the effective date of the increase and at least 46 of the 76 occupants did not receive it. According to Reverend Derstine, Gospel's minister and leader of the congregation, some discussion took place between Gospel personnel and some owners regarding those matters contained in the prospectus, and a copy was kept in the park office for review by anyone who wanted to look at it. Further, the park's communication system, both written and electronic, may have carried notices of the availability of the prospectus. However, no copies were ever distributed to the residents in general as is required by law. The monthly lot rental was again increased, from $90.00 to $127.00, effective on February 1, 1988. This increase was preceded by written notice to all 76 lot occupants by Gospel prior to its implementation. Again, on February 1, 1989, Gospel, for the third time, increased lot rentals, this time from $127.00 to $150.00 per month. No prospectus was delivered for either the February 1, 1988 or the February 1, 1989 increases by either Gospel or Country, which purchased the park from Gospel on December 15, 1988. Though the February 1, 1989 increase was implemented by Gospel, which collected all monthly rentals paid by occupants through December, 1988, as of January 1, 1989, monthly lot rentals were collected by the new owner, Country. Prior to December 15, 1988, Country was not in any way involved in the operation, management or administration of the park. Prior to purchasing the park on December 15, 1988, Mr. Robert K. Ruggles, III, sole stockholders of Country, solicited from Mr. Schoder, then manager of Christian Retreat, proof that the prospectus for the impending lot rate increase scheduled for February 1, 1989 had been approved by the State. That proof was delivered to him. Mr. Ruggles insists that he did all he could do, from a practical standpoint, to determine that the prospectus had been appropriately sent out to the lot occupants, short of actually polling all occupants to determine it had been received. While the Division does not agree with Ruggles' position, it presented no evidence to demonstrate what further actions he could have taken, and in light of his sworn evidence regarding approval of the prospectus, it is found he did all he could do, reasonably, to insure the correctness of the procedure. When Mr. Ruggles subsequently found out there was a problem, even the Division concedes he took immediate steps to rectify it and agrees he was not enriched by the error. He has been cooperative with the Division at all times, and on February 5, 1990, the Division approved an amended prospectus for the February 1, 1989 rent increase. This approved prospectus was subsequently delivered to all residents by Country Retreat, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered herein directing that: The Notice to Show Cause against Country Retreat, Inc. be dismissed. That Gospel Crusade, Inc. pay a civil penalty of $2,500.00. RECOMMENDED this 1st day of February, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASES NO. 90-4916 & 90-4917 The following constituted my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: I. Accepted and incorporated herein. & 3. Accepted Accepted and incorporated herein. - 7. Accepted and incorporated herein. Accepted. & 10. Accepted and incorporated herein. - 13. Accepted and incorporated herein except for the names of individual residents specified which are not included. II. Accepted. - 5. Accepted and incorporated herein. FOR THE RESPONDENT, COUNTRY: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. 5. First sentence accepted and incorporated herein. Balance accepted. 6. - 8. Accepted and incorporated herein. 9. - 12. Accepted and incorporated herein. 13. Accepted and incorporated herein. 14. - 16. Accepted. 17. Accepted and incorporated herein. 18. Accepted. 19. Accepted and incorporated herein. COPIES FURNISHED: Kathryn E. Price, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1550 Joseph C. Ferrell, Esquire Ferrell and Ferrell, Chartered 1402 Third Avenue West Bradenton, Florida 34205 Robert M. Fournier, Esquire 1800 Second Street, Suite 806 Sarasota, Florida 34236 James L. Turner, Esquire Williams, Parker, Harrison Deitz & Getzen 1550 Ringling Blvd. Sarasota, Florida 34236 E. James Kearney Director Division of Florida Land Sales, Condominiums and Mobile Homes 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 The issue is whether Respondents imposed upon mobile home owners an invalid "pass-through" charge to pay for the cost of work on the park's electrical distribution system, in violation of Section 723.031(5), Florida Statutes.
Findings Of Fact Tanglewood Mobile Home Park, Inc., owns the Tanglewood Mobile Home Park located at 345 Weatherbee Road, Fort Pierce, St. Lucie County, Florida (Tanglewood). The Patricia Yu Irrevocable Trust owns Tanglewood Mobile Home Park, Inc. Respondents Chester Yu and Ronald Yu are the trustees of the trust; Respondent Carol Yu is not a trustee. References to "Respondents" shall include only Chester Yu and Ronald Yu. Tanglewood was developed in 1969. The park was originally owned and operated for many years by Respondents' father. An undated prospectus for Tanglewood Mobile Home Park (Prospectus) contains several provisions that have some bearing on this case. Prospectus Section VI.A.1 requires each mobile home owner to bear the expense of "electrical connections." Prospectus Section VI.A.2.a states that, "to the extent permitted by law, the mobile home owner may also be required to bear, in the form of increases in the lot rental, the costs incurred by Owner in installing capital improvements or performing major repairs in the Park." Prospectus Section VIII.3 states that the Owner may assess, on a pro rata basis, "pass-through charges" as rent increases. Prospectus Section VIII.3.a prohibits more than one increase in lot rental annually, except for "pass-through charges." Section VIII.1.c defines "pass-through charges" as "those amounts, other than special use fees, which are itemized and charged separately from the rent and which represent the mobile homeowner's share of costs charged to the Park Owner by any state or local government or utility company." Section VIII.3.b.4 states: "To the extent permitted by law, the mobile home owner may also be required to bear, in the form of increases in the lot rental, the costs incurred by Owner in installing capital improvements or performing major repairs in the Park." The Prospectus states that Tanglewood has 158 lots. In reality, only 148 lots are improved and available for rent. One of these lots is the park office. At present, 139 lots are leased. In October 1999, Hurricane Irene caused flooding in Tanglewood. After the flooding had receded, the power company restored power to the area, but a submerged transformer blew out and damaged part of the Tanglewood's electrical distribution system, leaving 16 mobile homes without power. After repairing or replacing the transformer, the power company employee responsible for reconnecting Tanglewood's electrical distribution system reenergized eight mobile homes, but refused to reenergize the remaining eight due to the deteriorated condition of their meter bank. Meter banks are located in groups at various points in the park. Power enters the park either above- or below-ground and is fed into individual meters for each mobile home. Each meter bank typically contains eight meters, and each meter typically has a junction box and a disconnect box. The concern of the power company employee was that the mechanical force required to reconnect power to one meter bank could possibly be too great for the deteriorated supports to withstand. As was typical of many meter banks at Tanglewood, the meter bank for these eight lots was poorly supported due to the deterioration of its support structure. Most supports at Tanglewood were made of wood, which required close monitoring and careful maintenance. Exposed to the elements, wood suffered considerable damage over time from wood rot. If the support failed, a meter bank would fall over to the ground, exposing live electrical lines in close proximity to the mobile homes and their occupants. Many meter banks throughout Tanglewood also suffered from deteriorated supports. Many meter banks were deficient because of the use of plumbing-grade PVC pipes as conduit, which are of a decreased thickness, when compared to PVC pipes approved for outdoor electrical use and, when exposed to sunlight, tend to deteriorate faster than the type of PVC pipes approved for outdoor electrical use. The use of plumbing-grade PVC pipes may not have been legal at the time it was used. Other meter banks also suffered from rusted and missing components, which might allow rainwater to enter the system and damage the parts. Some of the larger missing components left gaps large enough to allow a child's finger to penetrate and touch a live wire. Meter cans were damaged, masts (for above-ground supply lines) were inadequately supported, and drop wires (for above-ground supply lines) were too low. Confronted with the problem of eight lots without electrical service, Respondents contacted a local electrical contractor, who replaced the meter bank and its supports, using new pressure-treated wood. He also increased the service for these eight meters from 100 amps to 150 amps. The power company promptly restored electrical service after these repairs were completed. Respondents did not try to assess the mobile home owners a pass-through charge for this work. Instead, on January 28, 2000, Respondents sent the mobile home owners a notice that their monthly rent would increase by $15 (net, $12, after relieving the tenants of the obligation to pay a $3 monthly administration fee for water and sewer). The notice states that the rent increase is effective May 1, 2000, which may reflect a common commencement date on all lot leases. The letter notes that the park owner "has expended and will expend substantial sums for improvements and upgrades in the park," but warns that the park owner does not know if "any additional tax, utility or assessment prorations will be necessary." The rent increase covered, among other things, the cost of the work to restore electrical service to the eight lots whose meter bank required replacement. On February 12, 2000, the St. Lucie County Building Inspector inspected the electrical distribution system at Tanglewood. He noted the conditions described above and issued numerous citations, which were submitted to the St. Lucie County Code Enforcement office. In 1998, St. Lucie County adopted the National Fire Protection Association code, which is based on the 1996 National Electrical Code. The new code requirements prohibit a wood support system, require the placement of meters within 30 feet of the mobile home, and require underground wiring, but do not require service above 100 amps, which was the minimum level of service at Tanglewood prior to any electrical work following Hurricane Irene. On May 25, 2000, the County Code Enforcement Officer issued a notice of citations to Respondents for unsafe electrical equipment. The officer required the replacement of the remainder of the electrical distribution system. When work stopped at Tanglewood, the County Code Enforcement Officer issued other notices of citations in June 2000. Respondents responded to these demands from the County by undertaking extensive work to Tanglewood's electrical distribution system. The result was a modern electrical distribution system--at a cost of $161,912, plus $28,977.76 in finance charges, for a total of $190,889.76. By Notice of Pass-Through Charge dated August 14, 2000, Respondents advised the mobile home owners of a monthly pass-through charge of $28.61 per lot from December 1, 2000, through November 1, 2004. The notice discloses that the reason for the pass-through charges is the electrical distribution system upgrade that had recently been completed. The evidence is clear that, except for the upgrade to 200-amp service, the electrical work done in this case was governmentally mandated. This finding is supported by the reluctance of Respondents to attend to the electrical system unless a mobile home was without electricity. Despite Respondents' electrical invoices, their park-management policy obviously deferred maintenance, at least with respect to the electrical distribution system. The closer question in this case is whether the work was a capital improvement or a repair. The addition of 50-100 amps of service was a capital improvement, but it was not mandated by the government. So the capital improvement versus repair question applies to the remainder of the work. In their proposed recommended order, Respondents contend that the electrical distribution system was "completely functional" prior to the inspection and citations. This is true as to the function of conducting electricity; this is untrue as to the function of conducting electricity safely. Weakened and sometimes nonexistent supports, rusted holes, holes from missing components, and occasionally exposed wiring substantially undermined the safety of the electrical distribution system at Tanglewood. Respondents argue that new code requirements forced them to relocate disconnects closer to the mobile homes, use four-wire (not three-wire) feeder line to all mobile homes, use electrical-grade conduit, and use metal supports for meter banks. However, these are subsidiary costs of repair, not capital improvements. As contrasted to the expansion of service, the remaining work does not enlarge the capacity of the electrical distribution system. The remaining work repairs the system to make it safer, with some additional work required to meet current code requirements. Respondents argue that the work increases the value of the land. The record does not support this assertion. Even if such evidence were present in this case, it would not be determinative. Although a capital improvement normally adds value, a residential safety hazard subtracts value, so its elimination would have the appearance of adding value. Respondents argue that the work substantially extends the life of the electrical distribution system. This argument would be more appealing in the presence of an effective preventative maintenance program covering such basic needs as replacing wooden supports and metal covers when needed. However, the nature of the work, other than raising the service from 100 amps, is more retrospective than prospective; the work is really only catching up on preventative repairs and maintenance that was not done for years. Once Respondents allowed the system to fall into such a state of disrepair, the secondary costs of bringing the system up to code, such as adding four-wire feeds and relocating disconnects, do not change the nature of the expenditures; they are repair expenses, not capital improvements. Respondents have proved that a portion of the work was clearly the responsibility of individual mobile home owners. For instance, about two-thirds of the mobile homes required $150-$200 of work to separate the grounded conductors from the grounding conductors. However, it is unclear that any of such work, for which individual mobile home owners were directly responsible, was performed on all lots. Even if this work were a capital expenditure, which it is not, it could not be passed "proportionately" among all of the mobile home owners, if only some of them required the work. Respondent contends correctly that the pass-through charges are a minor violation, as defined in Section 723.006(9), Florida Statutes. Respondents fully disclosed the pass-through charges prior to assessing them. The pass-through charges did not endanger the health, safety, or welfare of the mobile home owners; to the contrary. The charges arose from a substantial expenditure by Respondents to enhance the health, safety, and welfare of the mobile home owners. The pass-through charges caused no economic harm to the mobile home owners because Respondents were authorized by the Prospectus to raise the rent by a sufficient amount to compensate for the entire cost of the work on the electrical distribution system. For these reasons, alone, neither a penalty nor a refund is appropriate; a cessation of the assessment of further pass-through charges and the imposition of the maximum civil penalty for a minor violation are sufficient. An order requiring a refund of any portion of the collected pass-through charges may have a disproportionately disturbing effect on Respondents and the mobile home owners. Respondents borrowed the full cost of the work on the electrical distribution system, and this note is payable in 48 equal monthly instalments ending on August 4, 2004. An order requiring a refund of any portion of the monies already collected may result in a significant disruption in the anticipated cash flow to Respondents, necessitating an even greater increase in rent to cover the loss of these funds. Mobile home owners who have left the park between the time of the electrical work and the time of the rent increase would unfairly be relieved of their proportionate share of the cost of this work, and mobile home owners coming to the park after this rent increase would unfairly be imposed with a disproportionately larger share of the cost of this work.
Recommendation It is RECOMMENDED that the Division of Florida Land Sales, Condominiums, and Mobile Homes enter a final order dismissing the Amended Notice To Show Cause against Respondent Carol Yu. It is further RECOMMENDED that the Division of Florida Land Sales, Condominiums, and Mobile Homes enter a final order finding that Chester Yu and Ronald Yu have assessed a pass-through charge in violation of Section 723.031(5), Florida Statutes; that Chester Yu and Ronald Yu shall cease and desist from assessing this pass-through charge upon the effective date of the final order; that the violation is a minor violation and no refund is appropriate under the circumstances; and that Chester Yu and Ronald Yu shall pay a single civil penalty of $250, for which they are jointly and severally liable. DONE AND ENTERED this 19th day of September, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 2001. COPIES FURNISHED: Ross Fleetwood Division Director Division of Florida Land Sales, Condominiums, and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Janis Sue Richardson Attorney for Petitioner Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Bernard A. Conko Attorney for Respondent Cohen, Norris, Scherer, Weinberger & Wolmer 712 U.S. Highway One Fourth Floor North Palm Beach, Florida 33408
Findings Of Fact Oak Park Village is a mobile home park which is owned and operated by the COOPERATIVE. All of the one hundred and thirty three (133) corporate shareholders are former renters who formed the corporation in order to purchase the park from Mr. Paster and Mr. Perrault, the previous park owners. When the purchase was made, the remaining sixty-six (66) mobile home owners who rented lots within the park did not participate in the purchase. These mobile home owners remained within the park in their status as renters. The COOPERATIVE'S predecessors in title filed a mobile home park prospectus and an amended prospectus with the DIVISION, as required by law. The renters who received the initial prospectus between April 1985 and October 1986, continued their relationship with the park under this prospectus. All of the newer renters were subject to the amended prospectus, which became effective October 1986. Each prospectus contains a copy of the lease form. All of the renters had to sign a written lease before they could enter the park. The term of a lease within the park was normally for a one year period, which ended on December 31st. However, if a tenancy did not begin on January 1st of any year, the first term would end on December 31st of the year the lease was made. Each lease contains an automatic renewal clause. Unless the renter notifies the mobile park owner in writing sixty (60) days in advance of the automatic renewal on December 31st of his intention to leave the park, the lease is automatically renewed for another one year period. In the lease and in each prospectus, only the renters can prevent the automatic renewal from taking effect. On September 19, 1986, the mobile home park owners, Mr. Paster and Mr. Perrault gave written notice to the renters of their intent to increase the lot rental amount effective January 1, 1987, from one hundred and fifty dollars ($150.00) a month to one hundred and fifty six dollars and forty cents ($156.40) per month for a one year period. This advance notice gave the renters the opportunity to terminate their leases and relocate before the automatically renewal or January 1, 1987, which would include this lot rental price increase. None of the renters gave the owners a sixty (60) day advance written notice of their intention to leave the park at the end of the term. Therefore, potential purchasers were on notice that sixty-six (66) renters intended to automatically renew their written leases on January 1, 1987, for a one year term. On January 1, 1987, the automatic renewal went into effect. Under the lease terms and each prospectus, every renter owed one thousand eight hundred seventy six dollars and eighty cents ($1,876.80) as lot rent for the year 1987. The renters had the option to pay this amount in equal monthly installments of one hundred and fifty six dollars and forty cents ($156.40) over the twelve month period. However, the mobile home park owner's right to the one thousand eight hundred seventy six dollars and eighty cents ($1,876.80) vested on January 1, 1987. Contrary to the stipulation of the parties, the law and the evidence shows that written leases were in effect on January 1, 1987. On December 26, 1986, the COOPERATIVE purchased Oak Park Village. At the time of purchase, the COOPERATIVE took the property subject to the existing leases, and the automatic renewals which were inchoate on December 26, 1986, but which would become operative on January 1, 1987. After the sale was completed, Mr. Paster attempted to rescind the notice of rent increase, which was to take effect on January 1, 1987. As Mr. Paster no longer owned the property at the time he attempted this recision, he was unable to effectuate a recission. On December 30, 1986, the COOPERATIVE mailed written notices to its sixty-six (66) renters. The notices informed the renters that the rent would remain at one hundred and fifty dollars ($150.00) for three months and would then increase to one hundred and eighty seven dollars ($187.00) per month from April 1, 1987, to December 31, 1987. This came to an annual rental amount of two thousand one hundred and thirty three dollars ($2,133.00). This was an annual increase of two hundred and fifty six dollars and twenty cents ($256.20) per renter during the 1987 lease term, when the increase initiated by the prior owners is compared with the proposed increase. In comparing the notice of increase dated September 19, 1986, and the notice dated December 24, ,1986, it appears that the first three reasons listed for the proposed increases are identical. The only additional reason for an increase which is listed on the notice dated December 24, 1986, from the new owners is "Maintenance needs of the park." The notices sent by the new owners, the COOPERATIVE, were postmarked December 30, 1986, and were placed in the individual post office boxes of all of the tenants on the same day. Page twelve of each prospectus defines "notice" as follows: Unless otherwise provided by statute, administrative rule, or this Prospectus, any notice shall be deemed given by posting by first class mail or by actual hand delivery. Rule 7D-32.02(3), Florida Administrative Code, the applicable rule to these proceedings, provides as follows: Notice given by personal delivery shall be deemed given when actually delivered to the homeowner. Notice by U.S. Mail shall be deemed given five days after notice is placed in the U.S. Mail addressed to the mobile homeowner's last known address. As the prospectus and the amended prospectus both defer to the administrative rule in effect which defines the term "notice," the COOPERATIVE's notice did not occur within a ninety day period, even under the COOPERATIVE's theory of the case, as set forth in its Proposed Recommended Order.
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)
