The Issue Whether the discriminatory housing practices alleged in Petitioner's amended housing discrimination complaint were committed by Respondents and, if so, what relief should the Florida Commission on Human Relations (Commission) provide Petitioner.
Findings Of Fact Based on the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Petitioner is a woman of Native American heritage. The record evidence, however, does not reveal that, at any time material to the instant case, anyone outside of her family, including Respondents, was aware of Petitioner's Native American background; nor does the record evidence establish that Petitioner was ever subjected to derogatory remarks about being of Native American descent. At all times material to the instant case, Petitioner has suffered from health problems that have substantially limited her ability to walk and have required her to use a motorized wheelchair to ambulate. Petitioner is now, and has been at all times material to the instant case, a resident of Kings Manor Estates (Park), a residential community of single-family mobile homes that is located in Davie, Florida. The Park is one of various mobile home communities that Respondent Uniprop Corporation (Uniprop) owns and operates. Like the other residents of the Park, Petitioner owns the mobile home in which she resides and pays rent to Uniprop for the use of the lot on which home is situated. Petitioner's home occupies lot 78 in the Park. As a resident of the Park, Petitioner has use of the Park's common areas and facilities, which include a swimming pool. There has been no showing that Petitioner has been denied access to any of these common areas or facilities due to her handicap. Residents of the Park must comply with the Park's rules and regulations. These rules and regulations reasonably require, among other things, that residents obtain, in addition to any permits they may need from the Town of Davie, the approval of Uniprop (referred to as "design approval") before constructing any improvements on their lots, including wheelchair ramps. To obtain such "design approval," a resident must submit to Park management a completed "design approval" application form and any supporting documentation. The application form provides a space for the resident to provide a "[d]escription, [d]rawing [l]ocation & [s]ize of [the proposed] [a]ddition." Immediately underneath this space on the form is the following pre-printed language: It is the Resident's responsibility to obtain all governmental approvals, to make certain the proposed improvement is suitable for the purpose intended and that the improvement complies with all applicable codes, standards and governmental requirements. Approval by Management of any improvement is limited to considerations of appearance. Resident agrees to have their home improvements built to the specifications listed above and illustrated in the space above and/or attached drawings, exhibits and permits. It is the responsibility of the Park's property manager, with the help of the Park's assistant property manager, to enforce the Park's rules and regulations. The duties of the Park's property manager and assistant property manager (whose work stations are located in the Park's business office) also include collecting rent from the Park's residents and taking appropriate action when residents are delinquent in their rental payments. There is a "drop off box" located outside the Park's business office in which residents can place their rental payments when the office is closed and the Park's property manager and assistant property manager are unavailable. Neither the property manager nor the assistant property manager is authorized to give residents "design approval." Only the Uniprop regional supervisor has such authority. The property manager and assistant property manager merely serve as "conduits" between the resident and the Uniprop regional supervisor in the "design approval" process. They take the completed "design approval" application form from the resident, provide it to the Uniprop regional supervisor, and, after hearing back from the regional supervisor, communicate the regional supervisor's decision to the resident. At all times material to the instant case, Respondent Delores Maddox was the Park's property manager. Ms. Maddox no longer works for Uniprop. Hazel Crain is now, and has been at all times material to the instant case, the Park's assistant property manager. At all times material to the instant case, Milton Rhines was the Uniprop regional supervisor having authority over the activities at the Park. Mr. Rhines was based in Ft. Myers, Florida, on the other side of the state from the Park. Josephine Patricia Silver is now, and has been at all times material to the instant case, employed as a sales consultant for Uniprop. In this capacity, she engages in activities designed to facilitate the sale of mobile homes manufactured by Uniprop (to be placed in the Park and other mobile home communities Uniprop owns and operates). Although her office is located in the Park, she plays no decision-making role in Park management. Notwithstanding that it is not her job responsibility to accept rental payments, she sometimes will do so as a courtesy to Park residents when she is at the Park on weekends or during the evening hours and the business office is closed. Although Ms. Silver and Petitioner do not get along, Ms. Silver has never threatened to "throw away" Petitioner's rental payments; nor has she ever told any of Park's residents that Petitioner was not paying her rent. Ms. Silver, however, has "gossiped" and made derogatory comments about Petitioner, but no showing has been made that Petitioner's handicap, her Native American heritage, or her having exercised any of her rights under Florida's Fair Housing Act played any role in Ms. Silver's having made these comments. In August of 2002, Petitioner mentioned to Ms. Crain about her interest in having a wheelchair ramp constructed on her lot. Ms. Crain suggested to Petitioner that she contact the Town to discuss the feasibility of such a project. Petitioner subsequently telephoned Brian Dillon, the Town's chief structural inspector. Mr. Dillon not only attempted to assist Petitioner in her efforts to obtain a permit from the Town to construct the wheelchair ramp, he also helped her make arrangements to have a boy scout troop construct the ramp for her with donated materials. The Town would not issue Petitioner a permit for the ramp unless and until she obtained the written approval of the Park owner, Uniprop. The ramp was constructed for Petitioner by the boy scouts during a weekend in mid-November 2002, without Petitioner's having first obtained Uniprop's "design approval" or a permit from the Town. Prior to the construction of the ramp, Petitioner had received a "design approval" application form from Ms. Crain and, on or about November 12 or 13, 2002, with Ms. Crain's assistance, had begun the application process. Petitioner, however, did not wait to receive the "design approval" she had applied for from Uniprop before giving the boy scouts the go ahead to start constructing the ramp. After discovering that the ramp had been constructed, Park management attempted to "work" with Petitioner to enable her to complete the paperwork necessary to obtain (belatedly) "design approval" for the ramp. On November 21, 2002, Petitioner submitted to Park management the following note from her physician, James Milne, D.O.: Due to Medical Necessity, my patient Mary Helen Meacham requires use of a motorized wheelchair, and it is necessary for her to have ramp access. If you have any questions, please feel free to call my office. By December 5, 2002, Petitioner had yet to submit the design plans needed to obtain "design approval" for the ramp. Accordingly, on that date, Uniprop's attorney, Ernest Kollra, Esquire, sent Petitioner, by certified mail, a Notice of Violation of Community Covenants, which read as follows: Please be advised the undersigned represents Kings Manor Estates with respect to your tenancy at the Community. This Notice is sent to you pursuant to Florida Statute, Chapter, 723.061, Et Seq. Park Management has advised the undersigned that you are in violation of the following Community Covenants of Kings Manor Estates: 7. Improvements: Before construction of any type is permitted on the homesite or added to a home, the Resident must obtain written permission from Management in the form of a Design Approval. Additional permits may be required by the municipality in which the Community is located. 10. Handicap Access: Any Residents requiring handicap access improvements such as ramps are permitted. All plans for such ramps must be approved by Management and comply with all other Community Covenants and governmental standards. You are in violation of the above Community Covenants, in that you have failed to submit plans to Management prior to the construction of your ramp. Park Management has been apprised by the Town of Davie that permits are required and none was obtained by you prior to construction, in compliance with Town of Davie governmental standards. In order to correct the above violation, you must within seven (7) days from delivery of this Notice, remove the ramp from your homesite. Delivery of the mailed notice is deemed given five (5) days after the date of postmark. If you fail and/or refuse to comply with this Notice, your tenancy will be terminated in accordance with Florida Statute Chapter 723.061.[2] If you have any questions concerning any of the above, you may contact Park Management at . . . . Petitioner did not remove the ramp by the deadline imposed by the December 5, 2002, Notice of Violation of Community Covenants. Park management, however, took no action to terminate her tenancy. After receiving the December 5, 2002, Notice of Violation of Community Covenants, Petitioner stopped making rental payments to Uniprop and, instead, deposited these monies with the Florida Justice Institute to be held in escrow until the controversy concerning the ramp was resolved. In or around mid-January 2003, Park management received from Petitioner corrected design plans for the ramp (that had been prepared by Doug Amos of Doug Amos Construction). On January 15, 2003, Ms. Maddox sent to Mr. Rhines, by facsimile transmission, a copy of these plans. Petitioner was subsequently granted "design approval" for the ramp. It has not been shown that there was any unreasonable or excessive delay involved in the granting of such approval. On February 19, 2003, Ms. Maddox wrote the following letter to the Town's Building Department: Please be advised that MaryHelen Meacham Woods is authorized to have permits issued for site #78 at 12620 SW 6th Street Davie, Florida 33325 for the Installation of a handicapped ramp. Thank you for your consideration in this matter. Following an inspection, the Town, in March 2003, issued a permit for the ramp. Petitioner has had use of the ramp since mid-November 2002 when it was first built (notwithstanding that she did not obtain Uniprop's "design approval" and a permit from the Town until some months later). On or about May 30, 2003, Petitioner authorized the Florida Justice Institute to deliver to Uniprop the rental payments it was holding (at Petitioner's request) in escrow. Uniprop accepted these rental payments when they were delivered. Petitioner has had raw eggs thrown at her wheelchair ramp. She suspects that Ms. Maddox's children were responsible for this vandalism, but there is insufficient record evidence to identify the culprits, much less ascertain their motives. On or about August 31, 2004, at a time when Hurricane Frances was approaching the Florida peninsula from the southeast, Park management sent Petitioner a Notice of Violation of Community Covenants, which read as follows: Pursuant to Florida Statute 723.061 et seq, you are hereby advised that you are in violation of the following Community Covenant(s) of which the Community first became aware on August 30, 2004. SECTION I: HOME AND SITE MAINTENANCE - Eachresident shall keep his/her site and home in a clean and neat condition and free of any fire hazards, there is no storage permitted around or under the home or in screened rooms. ALL items must be stored inside the home or storage shed. Although you have previously been furnished a copy of the Community Covenants of the park, and said Community Covenants are posted in the recreation center and business office, a copy of the rule(s) of which you are in violation is attached to this notice for your convenience. Specifically, you are in violation of the above Community Covenant(s) in that Your home, trim and utility shed are dirty, there is growth in the gutters and there is a window air conditioner on the home. In order to correct the above violation of the Community Covenant(s) you must Wash your home, trim and utility shed, paint with colors approved by management, clean the growth from the gutters and remove the window air conditioner within seven (7) days from delivery date of this letter. If you fail and/or refuse to correct the violations of the Community Covenant(s) in the manner listed above, the park will pursue all its rights and remedies pursuant to 723.061 et seq. PLEASE GOVERN YOURSELF ACCORDINGLY It has not been shown that Park management took this action to retaliate against Petitioner for having requested permission to construct a wheelchair ramp on her lot or that such action was motivated by any other improper purpose. Park management has not pursued the matter the further. At no time has Park management initiated legal action to terminate Petitioner's tenancy and evict her. The record evidence is insufficient to establish that Respondents, or anyone acting on their behalf, have said or done anything having the purpose or effect of disadvantaging Petitioner based on her handicap, her Native American heritage, or her having asked to be allowed to build a wheelchair ramp on her lot.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that Respondents are not guilty of any "discriminatory housing practice" and dismissing Petitioner's amended housing discrimination complaint based on such finding. DONE AND ENTERED this 5th day of May, 2005, in Tallahassee, Leon County, Florida. S ___ STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2005.
The Issue The issue is whether any of the respondents is guilty of discriminating against Petitioner on the basis of her sex in connection with her rental of a lot in the Galaxy Mobile Home Park, in violation of the Florida Fair Housing Act, section 760.23(2), Florida Statutes.
Findings Of Fact In September 2010, Petitioner, a 54-year-old female, moved into Galaxy Mobile Home Park, 5810 U.S. Highway 92, West, Plant City, Florida. Since her arrival at the park, Petitioner has occupied her lot based on a month-to-month rental agreement. The park consists of 33 mobile home lots, four cabins, six RV lots, and one house. At present, 27 females and 22 males live there; most residents are 55 years old and older. The park manager is Respondent Adams, an 85-year-old female. She and her late husband moved to Galaxy Mobile Home Park in 1988. Initially, she was not the manager, but her husband performed all of the maintenance and lawn mowing. Ownership and property-management duties lie with Respondent David and Respondent PGM; one of them employs Respondent Adams and pays her $300 per month to serve as the park manager. In 2002, Respondent Adams moved out of the park and into a nearby residence. She works mornings in a small office located at the park, although, if needed, she remains at the park until as late as 4:00 p.m. or returns to the park in the afternoon. Her duties include cleaning the laundromat, collecting rents, showing prospective tenants available lots, and arranging for repairs. She is paid $300 per month for her services. Respondent Perez, a male reportedly 68 or 70 years old, formerly was the maintenance man at the park--the lawn mowing responsibilities having been assigned to another person. Using supplies provided by Respondent David or Respondent PMG, Respondent Perez performed maintenance work around the park as needed. No one recorded his time, and he did not work according to a set schedule. At times, he would travel and be gone for extensive periods, during which minor maintenance duties were apparently deferred until his return, sometimes months later. Respondent Perez lived in a mobile home at the park, and his sole compensation was free lot rent of about $300 per month. This obviously was a part-time job. When she first moved to Galaxy Mobile Home Park, Petitioner owned an RV, so she rented lot 148, which is an RV lot. Petitioner first arrived at the park late in the day when the office was closed, so, the next morning, she and Respondent Adams were speaking in front of Petitioner's RV. After Petitioner had paid the first-month's rent, Respondent Adams was describing the park amenities to Petitioner when Respondent Perez approached the two women, cursing loudly. Few incidents involving Respondent Perez acquired much clarity in the record, and the first of these is no exception. As Respondent Perez approached Petitioner and Respondent Adams, he appeared to be concerned about an item of potentially dangerous maintenance equipment that Petitioner may have lent to another resident. Pointing a finger at Petitioner, evidently from some distance from the two women, Respondent Perez warned her that if she lent this equipment to someone, "it is on your fucking ass," implying that she, not he, would be responsible if the resident injured himself using the equipment. For emphasis, Respondent Perez then pounded his chest, shouting, "I'm a fucking man." Petitioner replied, "and I'm a fucking woman." Later that day, two male residents were helping Petitioner set up her RV. Driving by, Respondent Perez shouted a warning to Petitioner from his vehicle, "if you let those fucking men in your yard, you'll have a yard-full of fucking men." The following morning, Respondent Perez knocked on Petitioner's door. This appears to have been the only time that he did so, and he never entered Petitioner's home at any time. When Petitioner answered the door, Respondent Perez told her that everyone was "fucking complaining" that she was using too much toilet paper, plugging up the sewage system at the park. Petitioner replied that, due to problems with her holding tank, she did not flush her toilet paper, but disposed of it in her trash, and invited Respondent Perez to take a look. Respondent Perez declined, saying, "Well, I don't know. That's what the fuck they say." In October 2011, when a resident left her mobile home to move north, Petitioner moved into the mobile home, which was at lot 163. The mobile home had a screen porch, where Petitioner would often sit, enjoying watching television and smoking cigarettes, which she tried not to smoke inside. From time to time, Respondent Perez would walk by the screen porch, and sometimes he would utter unpleasantries to Petitioner, warning her that no one could do his work. On one occasion, Petitioner complained to Respondent Adams that Respondent Perez was disturbing her by his use of a flashlight as he walked through the park at night. Respondent Adams spoke to Respondent Perez, who replaced the flashlight with a brighter lantern. The evidence does not establish that Respondent Perez was walking at night to bother Petitioner; given the location of their lots, he would have to pass her lot as he walked or drove toward the front of the mobile home park where amenities were located. Also, Respondent Perez was in an intimate relationship with a woman named Mrs. Miller, and Petitioner's lot was between the lots of Respondent Perez and Mrs. Miller. ("Mrs. Miller" is a pseudonym to protect the privacy of the resident.) In the spring of 2012, while Petitioner was talking to a male resident at the picnic area, Respondent Perez drove up and began talking to the man, evidently ignoring Petitioner. Respondent Perez told him that, the prior evening, he had met a woman in a bar. Professing to be a Christian, she had told him that she did not believe in sex before marriage. But Respondent Perez loudly proclaimed that he had had sexual intercourse with the woman that very night. At this point in the story, Respondent Perez laid face down in the grass and began violently thrusting, in a pantomime of sexual intercourse, explaining that "when I get a woman, I can go all night." Other problems arose between Petitioner and Respondent Perez. When she moved from the RV, Petitioner placed a PVC pipe from the RV in her new yard, keeping it for the new owner of the RV. Respondent Perez removed the pipe, likely as part of his duties in keeping the park clean and thinking that the used pipe had been discarded. Petitioner called Respondent Adams, accused Respondent Perez of stealing the pipe, and threatened to call the sheriff's office. Respondent Adams told her that would not be necessary, and she would buy whatever PVC pipe the new owner required to connect his RV to the park's plumbing. At some point, dissatisfied with Respondent Adams' handling of her complaints about Respondent Perez, Petitioner demanded a meeting with Respondent David. Respondent David, Respondent Adams, and Petitioner met at the park. They were talking while looking at a repair job that Respondent Perez had done, suggesting that the focus of Petitioner's complaints at least included poor workmanship on Respondent Perez's part. But when Petitioner tried to talk about Respondent Perez, Respondent David declined to do so unless Respondent Perez was present. Respondent David and Petitioner had no further conversations. The final incident coincided with the death of a neighbor, according to Petitioner, who testified that Respondent Perez's animosity toward her intensified at this time. The death seems to have taken place in July 2013. The record is insufficiently developed to find any possible connection between the resident's death and Respondent Perez's increased animosity. However, at some point, Mrs. Miller died, and Respondent Perez and Respondent Adams believed that Petitioner and another neighbor entered Mrs. Miller's mobile home after the ambulance had removed her body to rifle through her medications in order to steal those that they wanted. Petitioner admitted that she was in the mobile home going through the medications, but only to assist the emergency medical technicians in their effort to identify Mrs. Miller's prescriptions. The record is poorly developed in other respects. Petitioner testified to a steady verbal barrage from Respondent Perez, seemingly on every occasion that the two met, usually featuring epithets describing Petitioner as a "whore" or "prostitute." Petitioner called as a witness her brother, who could recall only that Respondent Perez complained about where he and his son had parked and that Respondent Perez was always "on" his sister about something, although he could not recall anything in specific. The nephew also testified, adding only that Respondent Perez often told them that they could not "fucking park" where they had parked, and he generally swore a lot. The neighbor who had joined Petitioner in Mrs. Miller's mobile home testified that she had once overheard Respondent Perez say to a male resident that all women are "whores and prostitutes." On another occasion, she overheard Respondent Perez say to Respondent Adams, as he pointed to a woman some distance away, "there's another one of those whores over there." And the neighbor overheard Respondent Adams reply, "I told you to keep that word from your mouth." A deputy who was called out in response to a complaint made by Petitioner could not remember a single detail of the call. By contrast, Respondent Adams proved to be a memorable witness. Demonstrating the danger of compound questions posed to aged witnesses, when asked by her attorney if Respondent Perez drove by Petitioner's home every day and harassed her, Respondent Adams answered that he had to--meaning that he had to drive by Petitioner's lot. When asked by her attorney (twice) if Respondent Perez harassed Petitioner, Respondent Adams answered definitively, yes. She explained that he harassed everyone, but also denied that he harassed anyone. As Respondent Adams saw it, the relationship between Petitioner and Respondent Perez was that of two residents, not a resident and the park maintenance man. On occasion, though, Respondent Adams directed Respondent Perez to watch his language. One such occasion has been noted above; on another occasion, she said that Petitioner "has a name. It is Lisa. Use it." Respondent Perez's reference to Petitioner that prompted this directive is undisclosed. Respondent Adams also witnessed occasions during which Petitioner employed profanity toward Respondent Perez, as well as at least one other individual. On one such occasion, when a male tree-trimmer at the park warned Petitioner to keep a safe distance from his work area, she responded, "You son of a bitch. Drop a limb on me and I will sue you." It is difficult to characterize Respondent's state of mind at the time of his vulgar utterances, of which some, it is safe to assume, were uttered at Petitioner. The present record supports findings that Petitioner and Respondent Perez had a poor relationship. It is impossible to determine whether either party was at fault for this relationship or the degree of any fault that each party bore. However, from Respondent Perez's point of view, Petitioner's behavior was, on one occasion, substantially unjustified, as in the case of the removed PVC pipe from the yard, and, on another occasion, open to justifiable suspicion, as in the handling of the prescription medicines after Mrs. Miller's death. The present record supports a finding of abusive verbal exchanges between Petitioner and Respondent Perez, but not their frequency. If Petitioner's recounting of them were fully credited as all of them, there were very few such exchanges over the three years in question. Undoubtedly, Respondent Perez's swear words and other insults were grounded in gender relations or gender, as in his use of the words, "fuck" or "fucking," "bitch," and "whore." Respondent Perez was unable to direct a park visitor to move his car without uttering "fucking," employed either as an adverb to intensify the verb (i.e., "move") or an adjective to intensify the object (i.e., the "car")--or, of course, both. Most importantly, though, the present record in no way supports a finding that these exchanges were so frequent or intense as to deprive Petitioner of the use and enjoyment of her home and the amenities in the park.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition. DONE AND ENTERED this 23rd day of March, 2015, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 23rd day of March, 2015. COPIES FURNISHED: Yaron M. David Properties Group Management, LLC 5810 U.S. Highway 92, West Plant City, Florida 33567 Rachel K. Beige, Esquire Cole, Scott and Kissane, P.A. 2nd Floor 1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 (eServed) C. Martin Lawyer, III, Esquire Bay Area Legal Services, Inc. 1302 North 19th Street, Suite 400 Tampa, Florida 33605-5230 (eServed) Melissa Ann Craig, Esquire Bay Area Legal Services, Inc. 18238 U.S. Highway 301, South Wimauma, Florida 33598 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
Findings Of Fact Michael Weiss is part owner of Suncoast International, Inc. and general manager of the corporation's only business, a trailer park in Flagler County known as Flagler by the Sea Mobile Home Park. At all pertinent times, the park has leased or offered for lease a total of 44 mobile home lots. In mid-1985, Mr. Weiss received a letter from petitioner Department of Business Regulation (DBR) informing him that park owners were required by law to prepare and distribute prospectuses to mobile home tenants. Efforts to draft a prospectus meeting petitioner's approval began in August of 1985. After several revisions, the petitioner approved a prospectus on June 13, 1986, No. 1802171P, for all lots. Mr. Weiss received written notice of approval, together with a copy of the prospectus to which it pertained, with attachments, on June 26, 1986; and promptly arranged for a copier to produce 50 uncollated copies of everything received from the petitioner, see Petitioner's Exhibit No. 1, including the cover letter. With the assistance of Mr. and Mrs. Whaley, who worked for the company at the park, he tried to assemble at least 44 complete sets of these materials. In late May of 1986, Mr. Weiss had given all tenants notice by registered mail of his intention to raise rents, effective September 1, 1986. Realizing he needed to distribute prospectuses before any rent increase, he had simultaneously informed tenants that a then current (but unapproved) version of the prospectus was available for inspection. Respondent's Exhibit No. 5. Hand Delivery As instructed, Ms. Whaley encouraged tenants to pick copies of the prospectus up when they paid their rent. She kept a list of persons to whom she distributed copies of the prospectus. Part of the list survived and has been received in evidence. Respondent's Exhibit No. 2. One tenant, Mary Oetken, received a copy of the approved prospectus on July 29, 1986. But the prospectus given to Ms. Oetken did not contain rules and regulations, a copy of the lot rental agreement, a lot layout plan, or the number of her lot. Ms. Oetken already had a copy of her lot rental agreement, and park personnel customarily distributed copies of rules and regulations to each tenant, before tenancies began. On August 29, 1986, another tenant, Betty Marinoff, wife of Peter, received a copy of an approved prospectus. Before September 1, 1986, Ms. Whaley hailed Mr. Philip H. Bird, and handed him a copy. Whether these copies of the approved pro-spectus included all attachments the evidence did not disclose. Robert Onusko, who has leased a lot in Flagler by the Sea Mobile Home Park continuously since August of 1981, has had a copy of the park's rules and regulations since he moved in. As did all other tenants, he paid increased rent beginning September 1, 1986. Although Mr. Onusko himself received no copy of an approved prospectus until January of 1989, Petitioner's Exhibit No. 7, Angela Whaley gave his daughter Marilyn a copy of the prospectus when Marilyn paid rent in July or August. Taped to Doors Not all tenants were then in residence at the park. About half lived there full time. (T.127) With respect to lots whose lessees were away, Mr. Weiss directed Mr. and Mrs. Whaley to tape copies of the prospectus on trailer doors. "That was common procedure with late payments or whatever . . . " T.112. In mid-August of 1986, Ms. Whaley told him that prospectuses had been distributed for each lot, either by delivery to a tenant or by posting. Clarence Rainey leased a lot from 1977 to 1989 at Flagler by the Sea Mobile Home Park, where he lived part of the year, returning to Illinois in the summer. Told by a neighbor that they were available, he asked for and received a prospectus in November of 1986. He had not received one earlier. With her husband Roger, Madeline DuJardin resided at Flagler by the Sea from February of 1979 until February of 1988. She did not get a copy of the approved prospectus before the rent increased on September 1, 1986, from $125.00 to $150.00 per month. Neither Mr. and Mrs. Rainey nor Mr. and Mrs. DuJardin received copies when they were originally distributed. Their trailers were among those to which copies were taped, weeks or months before their return in cooler weather. Charles A. Bond, who shared a trailer with a half-brother, resided at Flagler by the Sea from November 21, 1985, until December 31, 1988. While he lived at the park he never received a prospectus. Brothers surnamed Karcher each leased lots from respondent. Ms. Whaley gave one Mr. Karcher a copy of the approved prospectus, before September 1, 1986. But Richard Karcher, who in those days only spent a week at a time in the park, at intervals of several months, did not receive a copy of the approved prospectus before the rent increased. Richard Karcher had obtained a preliminary draft of the prospectus, but it differed in important respects from the draft which was eventually approved. In June of 1988, he obtained another copy of the prospectus, the copy, he testified, which he gave DBR's investigator, which also differs in important respects from the approved version. Attached to the copy Mr. Karcher gave DBR's investigator was a set of the park rules and regulations. It is not clear whether Ms. Whaley told Mr. Weiss that she had taped an approved copy to Mr. Richard Karcher's door. (T. 126, 128) Change of Law Effective July 1, 1986, statutory changes altered prospectus requirements. Petitioner mailed advice concerning the new requirements when it sent out annual fee statements to mobile park owners. Mr. Weiss did not personally receive this advice nor any written notice of the nine workshops petitioner conducted in August of 1986 to acquaint park owners with the statutory changes. Although approved a few days earlier, respondent's prospectus did not conform to all the new requirements. In early 1988, Mr. Weiss heard from Gloria Thompson, a DBR employee in its Tampa office, in connection with a complaint filed by Charles Jagde, the same person whose complaint led to the investigation that gave rise to the present proceedings. Ms. Thompson found no violation on the original complaint. Respondent's Exhibit No. 6. Eventually Mr. Weiss learned that revisions to prospectus No. 1802171 were necessary. On November 18, 1988, he filed another proposed prospectus with petitioner. After its approval on January 30, 1989, park personnel distributed the revised, approved prospectus, No. 1802171P86, to the tenants.
Recommendation It is, accordingly, RECOMMENDED: That DBR enter an order requiring respondent to send complete copies of currently approved prospectuses by registered mail to all tenants who have not received such copies personally and signed receipts so stating. DONE and ENTERED this 30th day of July, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1 through 6, 9, 11 through 14 and 16 through 19 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 7, the evidence did not establish the contents of the copy of the prospectus the Miranoffs received. With respect to petitioner's proposed finding of fact No. 8, Mr. Onusko's adult daughter Marilyn received a copy of the prospectus before the rent increased. Petitioner's proposed finding of fact No. 10 pertains to subordinate matters only. With respect to petitioner's proposed finding of fact No. 15, Mr. Karcher so testified, without contradiction. Respondent's proposed findings of fact Nos. 1 through 5, 7 through 10, 12 through 19, 21, 22, 24, and 27 through 30 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 6, the prospectus had not been approved at that time. With respect to respondent's proposed finding of fact No. 11, she did not personally deliver prospectuses to all tenants. With respect to respondent's proposed finding of fact No. 20, the differences were material. Respondent's proposed findings of fact Nos. 23, 25 and 26 are immaterial. COPIES FURNISHED: Donna H. Stinson, Esquire Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A. The Perkins House, Suite 100 118 North Gadsden Street Tallahassee, FL 32301 Debra Roberts, Esquire Department of Environmental Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Paul Martz, Esquire Martz & Zimmerman 3 Palm Row St. Augustine, FL 32084 Stephen R. MacNamara Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 =================================================================
The Issue 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 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 The Respondent, Bertram Gould, is president and stockholder of Mohican Valley, Inc., d/b/a Indian Woods Subdivision. The Indian Woods Subdivision is located in Seminole County and consists of in excess of 150 subdivided lots. On May 20, 1982, Mohican Valley, Inc. purchased a mobile home park located in Seminole County, Florida, from Winter Springs Mobile Home Corporation. The park was formerly known as Mohawk Village, but is now known as the Indian Woods Subdivision. Bertram Gould and Mohican Valley, Inc. acquired their interest in the subdivision by virtue of a purchase and sale agreement, deed and assignment of lease indentures from Winter Springs Mobile Home Corporation. Individuals desiring to live in the mobile home park purchase their mobile home and contemporaneously sign a 99-year lease on the lots upon which the mobile homes are to be placed. The mobile homes purchased by prospective residents in the subdivision are typically purchased from Vaughn Motors, Inc., a corporation of which Mr. Gould is president. In 1981, Vaughn Motors, Inc. sold a mobile home to Alfred and Beverly Powers, which arrived at the park and was setup on November 30, 1981, or shortly thereafter. On March 1, 1982, Vaughn Motors, Inc. sold that mobile home to Warren E. and Sylvia Joyce Krummel, since the Powers had elected not to close the purchase. On the date of the sale to the Krummels, the mobile home was already setup on Lot 1, Block E, of the subdivision and ready for occupancy. On June 14, 1982, after the May 20 purchase of the subdivision by Mohican Valley, Inc, through its president, Bertram Gould, the Krummels executed an Indenture of Lease for Lot 1, Block E. There was thus a residential building on that property subject to the lease at the time the lease was entered into. On June 5, 1982, Dorothy Merritt signed a purchase agreement to buy a mobile home and the mobile home was delivered and setup on her lot on August 6, 1982. On that date she also signed a lease for the lot where the mobile home was placed. Thus, when the interest in that property was conveyed by lease, there was a residential building on the lot. Roy and Lydia Ardizzone initially leased a lot in the park from Winter Springs Mobile Home Corporation before the sale to Mohican Valley, Inc. and Bertram Gould. In August, 1982, after Mohican Valley, Inc. purchased the subdivision, the Ardizzones decided to place a mobile home on their lot, but since the Phase II portion of the subdivision in which their original lot was located was not completely developed, it was not feasible to place the home on the lot at that time. Accordingly, they asked Mr. Gould to substitute their lot for a lot in Phase I in order to facilitate placing a home on the lot and begin living in the park. Mr. Gould agreed and the substitution occurred on August 31, 1982, on which date the Ardizzones also signed a lease for the lot. They ordered a mobile home to be placed on that lot, which arrived some 10 days later, on September 9, 1982. It was immediately setup on the Ardizzone's lot. Thus, at the time the lease of August 31, 1982, was executed by the Ardizzones and Bertram Gould, the Ardizzones had already ordered the mobile home for immediate delivery, which was delivered and setup some 10 days later. Thus, there was an obligation on the part of the Respondent to provide a mobile home to them in less than two years and indeed within days. On or about September 4, 1982, Bertram Gould caused a mobile home to be placed on Lot 3, Block B of the subdivision and had it prepared for occupancy. On November 5, 1982, George W. and Alice H. Woodward signed a purchase agreement for the mobile home and ultimately executed a lease for the lot upon which that mobile home sat on January 10, 1983. They moved into their home on or about February 17, 1983. Thus, at the time the lease was executed by the Woodwards and Respondent, a residential building was present on the property subject to the lease. Mohican Valley, Inc.'s predecessor in title, Winter Springs Mobile Home Corporation, had, during the course of its development of the mobile home park, entered into approximately 156 ground leases for mobile home lots. In conjunction with the acquisition of title to the park by Mohican Valley, Inc., Mohican Valley Inc. was assigned all rights of Winter Springs Mobile Home Corporation in those 156 leases which had already been recorded by Winter Springs Mobile Home Corporation prior to the acceptance of assignment by Mohican Valley, Inc. It was not established that Mohican Valley, Inc. or Bertram Gould had participated in any offer or disposition of the property which was the subject of those leases prior to Mohican Valley, Inc.'s acceptance of their assignment. Prior to May 20, 1982, the Respondent had no ownership interest in either the mobile home park or in Winter Springs Mobile Home Corporation, which owned and managed the Park. He was not an officer, director, employee, salesman or any type of agent for the owner of the mobile home subdivision prior to May 20, 1982. The only nexus between the Respondent and the mobile home park prior to May 20, 1982, was his position as president of Vaughn Motors, Inc. which had sold mobile homes to some of the residents of the park who had executed leases which ultimately became assigned to Mohican Valley, Inc. The Respondent caused certain advertisements to be placed in the Orlando Sentinel newspaper. Although an advertisement was placed April 25, 1982, the Respondent was not involved in the publishing of that advertisement. It appeared in the newspaper approximately a month prior to purchase of the park by Mr. Gould's company. On June 4 and 5, 1982; September 19, 1982; October 10, 1982; and January 29, 1983, the Respondent admittedly placed advertisements in the Orlando Sentinel representing amounts of monthly lot rent, terms of available bank financing, the office address, the phone number and hours of operation, as well as representing the fact that mobile homes could be purchased at the park for a listed price, including certain optional features, as well as the representation that the mobile home park then owned by Mohican Valley, Inc. offered quarter-acre lots and double-wide homes with certain amenities. The price for lot rent was represented as never increasing. Bank financing was advertised as available variously at 14 and a quarter percent interest and 13 and a half percent interest. The representations contained in those advertisements were true, however, at the time Mohican Valley, Inc. took title to the mobile home park, a foreclosure action and lis pendens had been filed on that property by Florida Land Company, the mortgagee on a mortgage executed by Winter Springs Mobile Home Corporation, Mohican Valley, Inc.'s predecessor in title. That foreclosure had been filed on or before March 21, 1983, as evidenced by the Motion to Intervene (in evidence as Petitioner's Exhibit 4), which was filed in that foreclosure proceeding by Mohican Valley, Inc. No representation was made in these advertisements concerning the fact that the property which was the subject of the mobile home lot leases offered by Respondent was the subject of a mortgage encumbrance which was then in foreclosure, which foreclosure predated those advertisements. Bertram Gould, as president of Mohican Valley, Inc., as the movant in that Motion to Intervene, and as the successor in title to the mortgagor-in-foreclosure, knew of the existence of the facts surrounding that foreclosure as they related to the interest in the land he sought to convey and the effects such a foreclosure might have on the persons or residents of the park who executed those leases as lessee thereafter. Bertram Gould thus materially participated in the offer or disposition of the lots for lease in the subdivision and advertised those dispositions or offerings without representing that the real property to which they related was the subject of a pending foreclosure action. No reservation program has been approved by Petitioner for Bertram Gould, Mohican Valley, Inc. and/or Indian Woods, nor has any application for such been filed. No public offering statement for Bertram Gould, Mohican Valley, Inc. or Indian Woods, nor any application for such has, as of the time of the hearing, been filed and approved. The Indian Woods Subdivision has not been registered with the Petitioner by either Bertram Gould or Mohican Valley, Inc. Bertram Gould has engaged in the disposition of these subdivided lands directly as well as on behalf of Mohican Valley, Inc., of which corporation he is president and stockholder. Bertram Gould has offered, disposed of or participated in the offer or disposition of interests in the subdivided lands involved herein, which are located in Florida, by offering the subject land for leases to prospective mobile home purchasers and park residents.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That Bertram Gould be found guilty of violations of Sections 498.023(1) and (2), and Section 498.049(4) and Sections 498.051(1)(a), (b), and (d); that a penalty of $2,000 be imposed and that the Respondent be ordered to cease and desist the above described activities until the requirements delineated above involving registration of the subject subdivision, approval and promulgation of a current offering statement have been accomplished. DONE and ENTERED this 31st day of January, 1984, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of January, 1984. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Ladd H. Fassett, Esquire Post Office Box 2747 Orlando, Florida 32802 E. James Kearney, Director Division of Florida Land Sales and Condominiums Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Chapter 723, Florida Statutes, the Florida Mobile Home Act, became law on June 4, 1984, created by Chapter 84-80, Laws of Florida. Chapter 723 expressly preempts to the state all regulation and control of mobile home lot rents in mobile home parks and all those matters relating to the landlord-tenant relationship treated by or falling within the purview of the chapter. The statute regulates any residential tenancy in which a mobile home is placed upon a rented or leased lot in a mobile home park in which 10 or more lots are offered for rent or lease. The statute requires that every owner of a mobile home park containing 26 or more lots shall file a prospectus with the Respondent prior to entering into an enforceable rental agreement. Respondent has the power and duty to enforce and ensure compliance with the provisions of the chapter and rules promulgated pursuant to the chapter relating to the rental of mobile home lots. Respondent is further authorized to promulgate rules, pursuant to Chapter 120, which are necessary to implement, enforce and interpret the chapter. The proposed rule at issue in this proceeding was first published in the Florida Administrative Weekly, Volume 14, Number 7, February 19, 1988. The parties have requested official recognition of the proposed rule and its date of publication, and that request is hereby granted. Proposed rule 7D-31.002, Florida Administrative Code, provides: 7D-31.002 Fees, Charges and Assessments. For tenancies in existence before June 4, 1984, including any assumptions of those tenancies pursuant to Section 723.059, Florida Statutes, the mobile home owner is not obligated to pay any fees, charges or assessments which were not disclosed fully in writing prior to occupancy, any provision to the contrary in a prospectus notwithstanding, unless the park owner can establish that the fees, charges or assessments have been collected as a matter of custom as defined in subsection (4) of this rule. Furthermore, the mobile home owner is not obligated to install any permanent improvements at all, including those mandated by governmental entities or utility companies. For tenancies created on or after June 4, 1984, pass through charges, as defined in Section 723.003(9), Florida Statutes, may be imposed by the mobile home park owner if the mobile home owner's obligation to pay such charges was disclosed in general terms pursuant to Sections 723.011 and 723.012, Florida Statutes, or pursuant to Section 723.013, Florida Statutes, even though the charge being imposed was not disclosed specifically, and the imposition of such pass through charges is not a violation of Section 723.042, Florida Statutes. However, pass through charges may not be imposed if the mobile home owner's obligation to pay such charges was not disclosed generally and prior to occupancy as required by Section 723.042, Florida Statutes and by Sections 723.011(2) and 723.012, Florida Statutes or Section 723.013, Florida Statutes, whichever is applicable. No fee, charge or assessment shall be imposed by a mobile home park owner on the purchaser of a mobile home situated in the park that is offered for sale by a resident of the park and as a condition to the purchaser being reviewed or approved for residency in the park. A fee, charge or assessment has been collected as a matter of custom if it was collected prior to July 1, 1976. Petitioner is a not-for-profit incorporated association, whose members include approximately 1,000 mobile home park owners and operators who own and operate mobile home parks in the State of Florida. Petitioner's members each lease at least 25 or more lots for the placement of mobile homes within each of their mobile home parks. Each of the members is therefore required to file and receive approval of a prospectus from Respondent prior to entering into an enforceable rental agreement for the lease of lots in those mobile home parks. Tom Coon, owner and operator of Hillsboro Mobile Home Park, located at Route 3, Box 801, Pompano Beach, Florida 33067, has "passed through" and charged for the hook-up fees and installation of sewer and water lines for hook-up to the Coconut Creek City Utility System. The cost to Mr. Coon for hook-up was $116,808 which includes fees which were not disclosed prior to occupancy and permanent improvements which were mandated as a result of actions by state and local government and the utility company. David Zell, owner of Colony Mobile Home Park, 2301 North 29th Avenue, Hollywood, Florida 33020, has "passed on" real estate tax increases in 1987 and 1988, as a result of entering into a three year negotiated agreement with the home owners negotiating committee, pursuant to mediation in 1986. The agreement allows for pass-on of increases in taxes and limits rent increases during that three year term. The total cost of pass-on charges for ad valorem property tax increases was $6,417.62 over that two year period. There is at least a $3,337.62 ad valorem property tax increase which will be passed-on in 1989. This pass-on charge for real estate taxes would be prohibited in that the real estate taxes were not disclosed to the residents prior to occupancy, nor were they collected prior to July 1, 1976. Charles Aultman is the owner and operator of Plantation Manor Mobile Home Park, 3032 South U.S. Route 1, Fort Pierce, Florida 33450. Aultman passed-on ad valorem property tax and utility increases for the years 1984, 1985, 1986, 1987 and 1988 for all residents of the park. The total amount passed-on was $33,872.57. This charge would be prohibited as not disclosed prior to occupancy or charged as a matter of custom as defined in the proposed rule. Jim Dale, owner of Rexmere Village Mobile Home Park, 11300 Rexmere Boulevard, Fort Lauderdale, Florida 33325-4099, has passed-on increases to ad valorem property taxes for the mobile home park to each of his residents in 1987 and 1988. The approximate cost of the pass-ons at this point is $120,000 per year. The pass-on charge for increased ad valorem property taxes is based upon an agreement entered into between the mobile home owners and the park owner that limits the increases in lot rental amount in the park, but allows for pass-ons of increased ad valorem property taxes. In addition, the mobile home park prospectus includes a charge for parking which limits the on-street parking in the mobile home park. This charge was not collected prior to July 1, 1976, and was not disclosed prior to occupancy, but has been collected since the prospectus was delivered in the mobile home park. There is a collection rate of approximately $8,000 per year parking charges in the mobile home park. Pauline Mantwil is the owner of Sunshine Mobile Manor, which had its sewage treatment plant condemned by the Department of Environmental Regulation. The park was required to tie into the Martin County Sewage Treatment System (Dixie Plant). The cost to each mobile home owner was allocated at $730 per space. The park owner passed-through this cost. The cost was disclosed in the prospectus, but was not disclosed prior to occupancy in the mobile home park. The total cost for impact fees and other costs associated with tie-in to the system is approximately $150,000. This pass-on of tie-in and other costs to hook up to the sewage treatment plant would be prohibited under the proposed rule because it was not disclosed prior to occupancy and because, in part, the costs include some permanent improvements to the sewage treatment system within the park. Mike Pond is the owner of Palm Shores Mobile Village, Inc., a mobile home park located at Number 1, East Lane, Lake Alfred, Florida 33850. The mobile home park consists of 97 lots. The park owner has no records of the fees and charges which were collected prior to July 1, 1976, and there was no disclosure of fees and charges prior to occupancy to the residents who moved in prior to the time the prospectus was approved and delivered. The prospectus was approved August 21, 1985, and delivered shortly thereafter. The mobile home park was mandated to enlarge its sewage treatment plant by the Department of Environmental Regulation. The park passed-through the costs of the sewage treatment plant enlargement to each resident within the park, at a cost of $218.25 per lot. In addition, there is an ad valorem property fire tax which is passed-on to each resident of $34.05 per lot. The fire tax is included within the November 1 tax bill and is paid March 31 of the next year. Neither the charge for sewer enlargement or the fire tax was disclosed prior to occupancy. The park owner has no record as to whether these types of fees and charges were collected prior to July 1, 1976. Clayton, Williams and Sherwood is a partnership doing business in the State of Florida, which operates the Coral Lakes Mobile Home Park located in Broward County, Florida. Clayton, Williams and Sherwood has passed-on increases in ad valorem property taxes in 1986 and 1987 to each resident within the mobile home park. The total pass-on charges for those two years is $15,600. There are 118 lots in the park that were occupied by residents prior to June 4, 1984. Each of these lots was charged a pass-on charge for taxes. Clayton, Williams and Sherwood is not aware of whether ad valorem tax increases were passed-on to residents prior to July 1, 1976, nor are they aware as to what disclosures were made to the residents in the mobile home park prior to occupancy. Clayton, Williams and Sherwood is the park owner of Shadow Hills Mobile Home Park in Orange County, Florida. Orange County has mandated that the mobile home park hook-up to the county sewer system. The cost of hook-up is $829,000 for hook-up fees, $50,000 to install a lift station for the purpose of complying with regulations for hook-up to the county sewage system, and $50,000 to eliminate percolation ponds which are currently on site. The owner of the mobile home park intends to pass-through the cost of the hook-up to the Orange County sewer system by amortizing that cost over a fourteen-year period. The mobile home park prospectus provides that the mobile home park may pass-through costs incurred due to the actions of state and local governments or utility companies. The park owner does not know whether these charges were collected prior to July 1, 1976. Clayton, Williams and Sherwood is also the park owner of Lakewood Mobile Home Park in Indian River County, Florida. Indian River County has mandated that Lakewood Mobile Home Park hook-up to the county sewer system at a cost of $484,000 to the mobile home park. This $484,000 includes hook-up fees and approximately $50,000 for a lift station to be installed as part of the hook-up. The prospectus for Lakewood Mobile Home Park provides that the park owner may pass-through costs incurred due to actions by state and local governments or utility companies as a separate charge. However, the park owner does not know whether a pass-through charge was disclosed to the residents of the park prior to occupancy nor whether such charge was collected prior to July 1, 1976. Charles Metcalf is the owner of Woodall's Trailer Park, located at 2121 New Tampa Highway, Lakeland, Florida 33801. Woodall's Trailer Park was required by the City of Lakeland to upgrade the electric utility system in the park. The approximate cost of this upgrade, which is presently being installed, is $35,000. The park owner operated the mobile home park based upon oral leases prior to the submission and approval of the prospectus of the mobile home park. The prospectus was approved June 4, 1985, by Respondent. The mobile home park owner intends to pass-through the cost of upgrading the electrical utility system to 253 mobile home lots located in the park. Those 253 mobile home lots are occupied by residents who were residents of the park as of June 4, 1984. The park owner did not disclose a pass-through or pass-on charge to any of those residents prior to occupancy, nor has a pass-through or pass-on charge been collected in the park prior to July 1, 1976. A pass-through charge is allowed in the mobile home park prospectus for costs incurred as the result of actions of state or local governments or utility companies. Jack Zieaer is the manager of Gulfstream Harbor, a 383 unit mobile home park, which began development in 1980. Approximately 235 lots were occupied on June 4, 1984 and approximately 260 lots were occupied on December 31, 1984. The prospectus for the mobile home park, which was filed on December 31, 1984, and distributed to existing tenants in the park, authorizes the imposition of separate charges on the home owners in addition to the basic lot rental amount, which separate charges were not disclosed in advance of occupancy. One hundred and twenty-three residents of the park received advance disclosure of all the charges set forth in the prospectus prior to occupancy. The tenancies of those 123 residents began after June 4, 1984. James F. Gould is the resident manager of Mobile Home Country Club, which contains 269 lots and which has been in operation for approximately 25 years. Twenty to twenty-five residents apply for residency in the park each year. The park imposes an application fee of $50 to screen the residents. Approximately $32,000 per year is collected for separate water and sewer charges plus an administrative fee. The separate charge for water was disclosed to people when they moved into the park. William Hart is the owner and operator of seven mobile home parks, including Havenwood Adult Mobile Home Community. In 1981, 1986 and 1987, Hart passed-through to the residents at Havenwood tax increases in addition to the basic lot rental amount. All of Hart's prospectuses authorize the pass-through of charges billed by state or local governments or utility companies and provide for a $50 investigation fee to investigate proposed residents. The total investigative fees collected from all seven of Hart's parks in 1987 was approximately $9,400. The taxes passed-on in Havenwood in 1981, 1986 and 1987 total approximately $850, $1,300, and $2,100 respectively. DeAnza Corporation owns eight mobile home parks in Florida with about 5,300 spaces, including Mobil Americana Mobile Home Park in St. Petersburg, Florida. Mobil Americana Mobile Home Park was in operation prior to June 4, 1984, and was developed beginning about 22-23 years ago. DeAnza purchased Mobil Americana in 1976, at which time there was a lease in place in the park. There were 758 residents in the park at the time it was purchased of whom 275 continue in occupancy today. DeAnza charges an application fee in all of its parks of $50, except for one park which charges an application fee of $20. Five hundred and forty-eight of the 758 lots presently occupied at Mobil Americana are occupied by residents who moved in before June 4, 1984. The City of St. Petersburg has instructed DeAnza to install 11 new fire hydrants in Mobil Americana, and DeAnza has responded by proposing to install two. An engineer has estimated that it would cost approximately one-half million dollars to install 11 hydrants in the park and that it would cost approximately $68,500 to install only two. DeAnza and the City are continuing to negotiate concerning the fire hydrants. The park intends to pass-through the costs of any fire hydrants to the residents. Rents are increased in the park yearly, and every two years the rental level is set by the market. The park owner determines the market. A substantial number of Petitioner's members will experience an adverse and/or substantial economic impact as a result of the proposed rule, if adopted. The past practice of collecting pass-through and pass-on charges by the park owners will be illegal under the proposed rule. In addition, the past collections of fees, charges and assessments which were not disclosed prior to occupancy or collected prior to July 1, 1976, will be illegal and subject to Respondent's enforcement jurisdiction. Those illegal charges may be required to be paid back to the homeowners. As such, there is a substantial economic impact from the proposed rule. Petitioner has standing to challenge proposed rule 7D-31.002, pursuant to sections 120.54(4) and 120.57, Florida Statutes. Petitioner's Executive Director conducted a partial survey of Petitioner's members. Over 5 percent of the surveyed parks have already charged pass-through charges for governmentally mandated capital improvements to their residents, including residents of the parks prior to June 4, 1984, and a substantial number of others intend to in the future. The term "entrance fee," as that term is commonly understood in the mobile home industry, is a fee charged for moving a mobile home onto a vacant mobile home lot in a mobile home park, whether that is done by a dealer or a home owner. The term "application fee" as that term is commonly understood in the mobile home industry, is a charge for recouping the costs associated with credit checks, screening, and criminal background checks in qualifying a potential resident of the park. It applies to someone who purchases an existing home in the park. The Respondent acknowledges that there is an economic impact from the statute as interpreted by the proposed rule and that the economic impact of the proposed rule on regulated persons was pointed out to the Respondent during workshops on the proposed rule. However, the Respondent did not conduct any investigation of the economic impact of the proposed rule. No economist conducted the economic impact analysis; rather, the economic impact statement supporting the proposed rule was prepared by Respondent's legal section. No consideration was given by Respondent to the amount of monies involved in pass- through charges. Further, no review was made by Respondent of the prospectuses contained in its own files in order to determine the kind or extent of economic impact on the persons regulated by Respondent, i.e., the park owners. The parties have stipulated that there is no provision in chapter 723, Florida Statutes, which expressly provides that all fees, charges and assessments have to be fully disclosed in writing. Pass-through charges or pass-on charges are not prohibited by chapter 723, Florida Statutes; rather, that chapter specifically defines pass-through charges and even requires that all prospectuses contain a description of the manner in which pass-through charges will be assessed. It is the common understanding in the mobile home industry that park owners cannot require mobile home owners to install permanent improvements on their individual lots, such as driveways, etc. However, mobile home owners can be contractually obligated to pay the cost of installing capital improvements required by local governments or utility companies--pass-through charges by statutory definition.
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 The issue in this case is whether the Respondent's proposed rule 7D-31.002 is an invalid exercise of delegated legislative authority. The Petitioners and the Intervenor MLH Property Managers, Inc., contend that the rule is invalid. The Respondent and the Intervenor Federation Of Mobile Home Owners Of Florida contend the proposed rule is valid.
Findings Of Fact Facts stipulated to by the parties Petitioner, Florida Manufactured Housing Association, Inc. (FMHA), is a Florida nonprofit corporation whose address is 115 North Calhoun Street, Suite 5, Tallahassee, Florida 32301. The agency affected by this proceeding is the Respondent, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (DBR), whose address is The Johns Building, 725 South Bronough Street, Tallahassee, Florida 32399-1000. The DBR is charged with the implementation, enforcement and interpretation of Chapter 723, Florida Statutes, concerning mobile home park lot tenancies. The DBR also possesses statutory authority to impose civil penalties against a mobile home park owner for any violation of Chapter 723, Florida Statutes, a rule of the Department promulgated thereunder, or a properly promulgated park rule or regulation. This proceeding concerns the Respondent's proposed rule 7D-31.002, which was published in Vol. 16, No. 7 of the Florida Administrative Weekly (April 27, 1990). The FMHA is a Florida nonprofit corporation, which is organized and maintained for the benefit of the owners of approximately 1,000 mobile home parks containing a combined total of approximately 300,000 to 350,000 mobile home lots. The owners of the 1,000 mobile home parks comprise a substantial portion of the membership of the FMHA. One of the primary purposes of the FMHA is to act on behalf of its members before the various governmental entities of this state, including the Respondent, Florida Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes. FMHA member mobile home parks are subject to the provisions of Chapter 723, Florida Statutes, and the rules of the DBR contained in Rules 7D-30 through 7D-32, Florida Administrative Code. FMHA member mobile home parks are required to register with the DBR, to pay annual fees to the DBR, to file prospectuses and pay filing fees for the same to the DBR, to submit advertising to the DBR for approval, and are otherwise subject to the regulatory authority of the DBR with respect to the operation and management of their mobile home parks. Additionally, FMHA member mobile home parks are subject to the DBR's enforcement authority, which includes the power to fine or impose other civil penalties for failure to comply with the above-referenced rules and statutes. Each of the owners of the FMHA member mobile home is engaged in the business of leasing individual mobile home lots to mobile home owners. The mobile home owners lease mobile home lots for the purpose of installing on the lots a mobile home owned by the tenant. The Federation of Mobile Home Owners of Florida (FMO) is a Florida nonprofit corporation whose membership is comprised of over 100,000 mobile home owners residing in Florida. The normal activities of the FMO include, among other things, representing the interests of Florida's mobile home owners before Florida administrative agencies, including DBR and the Division of Administrative Hearings, in rulemaking proceedings and otherwise. Thousands of FMO members reside in mobile home parks which are governed by Chapter 723, Florida Statutes, and the rules adopted thereunder by DBR. Thousands of FMO members were tenants of those parks on June 4, 1984, and thousands more have become tenants by purchasing a home located in those parks from a former mobile home owner who was a tenant of those parks on June 4, 1984. MLH Property Managers, Inc. (MLH), a Delaware corporation, is the managing general partner of MLH Income Realty Partnership V, a New York limited partnership. MLH Income Realty Partnership V is the owner of eight mobile home parks in the State of Florida, each of which contain 26 or more mobile home lots which are offered for lease or rent for the placing thereon of mobile homes to be used as residences. NIH has entered into rental agreements with the majority of residents in each of the parks which have a one-year term, with the intent of NIH that the terms and conditions of tenancy be established on a yearly basis. The NIH parks contain lots which were leased to their present mobile home owner tenants (or their predecessor mobile home owners) prior to June 4, 1984. The full text of the proposed rule which is the subject of this proceeding is as follows: 7D-31.002 Tenancy. (a) A tenancy under chapter 723, Florida Statues, begins when the mobile home park owner and mobile home owner enter into an initial rental agreement as defined in section 723.003(4), Florida Statues, or when the mobile home owner assumes occupancy in the park, whichever occurs first. (b) Once a tenancy begins in accordance with paragraph (1)(a) of this rule, it is continuous and cannot be terminated by the mobile home park owner except pursuant to section 723.061, Florida Statutes. (a) The enactment of chapter 723, Florida Statutes, did not terminate the tenancy of a mobile home park owner which was in existence on June 4, 1984, the effective date of the chapter. Furthermore, chapter 723, Florida Statutes, does not allow or authorize the mobile home park owner to terminate a tenancy in existence on June 4, 1984, the effective date of the chapter, in any manner other than pursuant to section 723.061, Florida Statutes. (b) A tenancy in existence on June 4, 1984, the effective date of chapter 723, Florida Statutes, shall be deemed a tenancy under chapter 723 if, prior to June 4, 1984, the mobile home owner either entered into a rental agreement with the mobile home park owner, or the mobile home owner assumed occupancy in the mobile home park. The rest of the facts The Respondent has previously attempted to adopt a similar rule. In Volume 14, Number 7, of the Florida Administrative Weekly of February 19, 1988, the Respondent published a proposed rule 7D-31.002. The rule proposed in February of 1988 read as follows: 7D-31.002 Fee, Charges and Assessments. For tenancies in existence before June 4, 1984, including any assumptions of those tenancies pursuant to Section 723.059, Florida Statutes, the mobile home owner is not obligated to pay any fees, charges or assessments which were not disclosed fully in writing prior to occupancy, any provision to the contrary in a prospectus notwithstanding, unless the park owner can establish that the fees, charges or assessments have been collected as a matter of custom as defined in subsection (4) of this rule. Furthermore, the mobile home owner is not obligated to install any permanent improvements at all, including those mandated by governmental entities or utility companies. For tenancies created on or after June 4, 1984, pass through charges, as defined in Section 723.003(9), Florida Statutes, may be imposed by the mobile home park owner if the mobile home owner's obligation to pay such charges was disclosed in general terms pursuant to Sections 723.011 and 723.012, Florida Statutes, or pursuant to Section 723.013, Florida Statutes, even though the charge being imposed was not disclosed specifically, and the imposition of such pass through charges is not a violation of section 723.042, Florida Statutes. However, pass through charges may not be imposed if the mobile home owner's obligation to pay such charges was not disclosed generally and prior to occupancy as required by Sections 723.011(2) and 723.012, Florida Statutes, or Section 723.013, Florida Statutes, whichever is applicable. No fee, charge or assessment shall be imposed by a mobile home park owner on the purchaser of a mobile home situated in the park that is offered for sale by a resident of the park and as a condition to the purchaser being reviewed or approved for residency in the park. A fee, charge or assessment has been collected as a matter of custom if it was collected prior to July 1, 1967. In the case of Florida Manufactured Housing Association, Inc., v. Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, et al., 10 F.A.L.R. 3919 (June 24, 1988), the former proposed rule quoted immediately above was determined to be invalid on several grounds. The proposed rule that is the subject of this case will substantially affect the substantial interests of the Petitioner and each of the Intervenors. A substantial number of the members of the FMHA and the FMO are substantially affected by the proposed rule and the relief sought is the type and nature which these associations may properly seek on behalf of their respective members. Mr. Bob Custer is a Vice President in De Anza Corporation. De Anza Corporation is the owner of Mobile Americana Mobile Home Park. De Anza Corporation is a member of the FMHA. De Anza Corporation purchased the park in July 1976. At that time there was a written lease offered to all home owners in the park. Subsequently, the park offered written leases to home owners in the park. After the adoption of Chapter 723 on June 4, 1984, the park owner filed a prospectus with the DBR, received approval from the DBR, and distributed the approved prospectus to the mobile home owners in the park in 1985. The prospectus contains provisions, including fees and charges, that are different from the earlier offered rental agreements used in the park. The prospectus is the controlling document used by De Anza Corporation in determining increases in lot rent and fees and charges that will be collected during the tenancy. Mr. Tom Keenan is the Vice President for Property Operations for Mobile Home Communities, Inc., which owns and operates 10 mobile home parks in Florida. Each of the individual-parks is a member of the FMHA. Lake Haven Mobile Home Park is owned and operated by Mobile Home Communities, Inc. Lake Haven Mobile Home Park entered into 4 year leases with its tenants, beginning in 1975 and again in 1979. After the adoption of Chapter 723, on June 4, 1984, Lake Haven Mobile Home Park filed and received approval for a prospectus from DBR, which was distributed to mobile home owners in 1985. The prospectus, including the rental agreement therein, contains terms and conditions different from the earlier 4 year leases (including the term of the rental agreement which is changed to annual), and there are different fees and charges which can be collected. Of the 379 lots that are rented in the park, approximately 200 tenants entered the park prior to the delivery of the prospectus. Mobile Home Communities, Inc., operates the park pursuant to the disclosures contained in the prospectus. Ms. Jan West is the owner and operator of Eagle's Nest Mobile Home Estates, a 64 space mobile home park located in Fruitland Park, Florida. Ms. West is a member of the FMHA. Eagle's Nest was developed in the 1930's and purchased by Jan West's parents in the 1940's. Prior to 1987 the rental agreements in the park were all oral. Ms. West does not know the terms and conditions of the rental agreements offered to tenants when her parents operated the park. All 64 of the lots in the park were offered for rent or lease on June 4, 1984, the effective date of Chapter 723. In 1987 Eagle's Nest filed a prospectus with the DBR and the prospectus was approved. All of the tenants of the park signed the lease agreement contained in the prospectus in 1987 when the approved prospectus was delivered. The fees and charges that are included in the prospectus were never disclosed in writing to any of the tenants prior to the delivery of the prospectus. The prospectus is the document that Eagle's Nest uses to determine the landlord tenant relationship under Chapter 723. Eagle's Nest collects lawn mowing fees and special services fees when they apply. Ms. West does not know if there were charges, other than the base rent, that were collected prior to 1987. She does not know if other charges, like late charges, return check charges, guest fees, vehicle storage fees, pet fees, special services fees, or pass-through charges were charged prior to delivery of the prospectus. Lawn mowing fees and maintenance fees were collected prior to 1987. It is a common practice in the industry to use a fixed term lease, or a lease for a term of years, in the prospectus and rental agreement approved by the DBR. The Mobile Home Study Commission was created in 1988 to study problems with alternative dispute resolution relating to mobile home park rents. Chapter 88-147, Laws of Florida. The Study Commission was reauthorized in 1989 for another one year period to study this issue. Chapter 89-202, Laws of Florida. The Study Commission was in existence, in 1988, when the Florida Manufactured Housing Association challenged an earlier proposed rule, 7D-31.002, which regulated the fees and charges that could be collected in mobile home parks. In that case the Division of Administrative Hearings issued a Final Order invalidating the earlier proposed rule on several grounds. That Final Order was affirmed by the First District Court of Appeal. Florida Manufactured Housing Association, Inc. v. Department of Business Regulation, 10 F.A.L.R. 3919 (DOAH 1988), affirmed, 547 So.2d 636 (1st DCA 1989) (hereafter referred to as FMHA I). The DBR appeared at the Study Commission in 1990 and suggested legislation to directly overturn the hearing officer's decision in FMHA I. That suggested legislation was virtually identical to the proposed rule at issue in this proceeding. The legislation suggested by the DBR was not adopted. Thirty-five to forty percent of the tenants residing in MLH parks today resided there prior to the enactment of Chapter 723, Florida Statutes, on June 4, 1984. MLH or its predecessors in interest delivered prospectuses approved by DBR to all tenants residing in the parks on June 4, 1984, at or before the expiration of those tenants' pre-Chapter 723 leases. The prospectuses delivered to such residents disclosed the manner in which the residents' lot rental amount would be increased, other fees and charges which the resident would thereafter be charged, and the manner in which pass-through charges (for governmentally- mandated capital improvements) would be assessed. In some of its barks MLH has passed on ad valorem property tax increases to park tenants. A number of tenants in MLH's parks are now contending that such charges cannot be passed on to them, even though such charges are disclosed in the park prospectuses which they received after enactment of Chapter 723, Florida Statutes, because (the tenants assert) such charges were not disclosed to them prior to their moving into the parks before the enactment of Chapter 723. MLH has no knowledge as to whether each charge disclosed in its approved Chapter 723 prospectuses was disclosed by the previous owners of MLH parks at the time that the original tenant moved onto a particular lot before the enactment of Chapter 723. MLH intends to continue passing on ad valorem tax increases. The prospectuses for MLH parks approved by DBR provide for the collection of a $3.00 annual DBR filing fee. The obligation to pay that filing fee was not disclosed to tenants who moved into the parks before the enactment of Chapter 723 because, at that time, neither DBR nor any other state agency had regulatory jurisdiction over the parks and the legislature did not impose such a filing fee until the passage of Chapter 723 and the concomitant creation of the Bureau of Mobile Homes. As to the years prior to the enactment of Chapter 723, it is sometimes very difficult, if not impossible, for a current park owner to ascertain and establish what fees, charges, and assessments were disclosed to tenants before they moved into a park. There was no central regulatory authority at that time which was charged with the responsibility to monitor such disclosures. There was no required, standardized disclosure document such as the prospectus which is now required of most parks by Chapter 723. Some parks now subject to regulation under Chapter 723 came into existence as early as the 1930's and operated as informal, family-run businesses. Thus, for the industry in general, the records are not available to establish what disclosures were made to tenants who long ago moved in, and still reside in the parks, at the time they initially took up residence. MLH intends to continue the operation of its parks in Florida and, therefore, will be governed directly by the proposed rule, if it is adopted. Prior to the enactment of Chapter 723, there was no statutory limitation on the frequency of rent increases, no requirement that the park owner disclose the factors which would be considered in setting rents, and no requirement of the park owner to mediate rent disputes with statutorily recognized tenant organizations, all of which are now imposed under Chapter 723. All of the approved MLH prospectuses contain the land use descriptions required by Section 723.012(4)(c), (5), (14) (b), Florida Statutes, including a lot layout showing the location and size of all lots in the parks (whether vacant or occupied), the location of all recreation and common facilities, and a detailed description of those facilities. MLH was a member of the Florida Manufactured Housing Association at the time that the Division of Administrative Hearings rendered its opinion in Florida Manufactured Housing Association, Inc. v. Department of Business Regulation, 10 F.A.L.R. 3910 (D.O.A.H. 1988) ("FMHA I") and at the time FMHA I was affirmed by the First District Court of Appeal. DBR will apply the proposed rule to the administration of Section 723.031(5),(6), Florida Statutes. DBR will apply the proposed rule to the administration of existing rule 7D-31.001(5), Florida Administrative Code. "Length of tenancy," as used in existing rule 7D- 31.001(5), F.A.C., is not defined by Chapter 723, Florida Statutes, or by existing DBR rules. Nor is the term "tenancy" expressly defined in Chapter 723, Florida Statutes or in DBR's implementing rules. The word "continuous" used in the proposed rule is intended to have its common and ordinary meaning. The resale value of a tenant's mobile home in a park, as compared to the value of a comparable mobile home purchased from a dealer's lot, is significantly higher due to the recreational and other amenities which are provided by the park owner for the tenants' use. The resale value of a tenant's mobile home in a park, as compared to the value of a comparable mobile home purchased from a dealer's lot, is significantly higher if the tenant can pass on to the purchaser of the in-place home a rent schedule which is more favorable than the current rent schedule being charged for a home newly being placed in the park. MLH uses and has entered into fixed-term, twelve-month leases with tenants in some of its parks. Those leases are part of DBR-approved prospectuses for the parks. MLH's parks and other parks regulated under Chapter 723, Florida Statutes, compete vigorously for tenants and are willing to and, in fact, do negotiate long-term leases and even lifetime leases with residents of the parks. It is important to park operators to have the flexibility to modify the prospectus disclosures regarding the use of vacant lots, vacant common areas, and land and improvements devoted to recreation facilities, in order to meet market changes and competition. It is very difficult, and sometimes impossible to obtain unanimous consent of residents in a mobile home park on most issues. In the case of MLH's park at Ellenton, Florida, the park land and improvements are valued at approximately $22,000,000. Yet it would cost MLH conservatively, $56,300,000 to purchase the homes in the park from the tenants. It would cost MLH, conservatively, $9,200,000 to $22,000,000 to move all of the tenants' homes from the park. Moreover, a portion of that required purchase price is for value added to the homes by reason of the placement of the homes in the owner's park. Ninety-eight percent (98%) of the 1000 members in the full park division of the FMHA have parks that contain more than twenty-five (25) spaces. The Department of Health and Rehabilitative Services licenses a total of 5,500 mobile home parks in the State of Florida. FMHA developed a model prospectus for its members to comply with the law as enacted in 1984. FMHA advised its members to put all potential fees, charges, and assessments in prospectuses although such fees, charges, and assessments may not have been disclosed to the homeowner prior to the homeowner's occupancy in the park or prior to the homeowner entering into his or her initial rental agreement. Mobile Americana Mobile Home Park, a Pinellas County mobile home park, was purchased by De Anza in July, 1976. The park's prospectus number 5200119P was approved and delivered to homeowners in 1985. Since 1976, several leases and rules and regulations have been in effect in the park. The prospectus number 5200119P includes fees, charges, and assessments that were not previously disclosed in prior leases to homeowners. However, De Anza is not presently charging or collecting these undisclosed fees. De Anza manages A Garden Walk Mobile Home Park for MLH. Prospectus numbers 5000867P and 500086P86 are offered in the park. MLH offers various leases in A Garden Walk, including lifetime leases and the leased marked MLH Ex. $9. MLH Ex. #9 was used in the park after 1985 although the exact time of use is not known. Neither De Anza or MLH know what fees, charges, or assessments were disclosed to homeowners by previous park owners. For the last 3 years, De Anza has managed Hacienda Village Mobile Home Park. De Anza sets the rental amounts in its parks and uses the market approach. With the market approach, the park owners arrive at a market rent by comparing the rents in their parks with rents of other mobile home communities of comparable value. The park owners unilaterally arrive at the market value rent. The collection of governmental fees is accounted for in arriving at the market value rent. Approximately 5 to 7 years prior to the enactment of Chapter 723, Florida Statutes, De Anza disclosed to homeowners living in De Anza owned parks the homeowners' obligations to pay for increased costs due to governmental actions and increases in taxes. All pre-1984 De Anza leases were subject to Chapter 83. Mobile Americana, Hacienda Village, and A Garden Walk are members of the FMHA. Mobile Home Communities also operates Windmill Village Mobile Home Park. Homeowners in Windmill Village were provided a prospectus in 1985. The prospectus contains terms and conditions that are different from the rental agreement that was in effect from 1983 until 1985. Five of the parks owned by MLH were purchased on July 1, 1987. The other three parks were purchased between July 2, 1986, and 1989. At the time MLH purchased its eight parks each park had an approved prospectus in place. One of MLH's parks, Colony Cove Ellenton, is located in Ellenton, Florida, and offers three separate prospectuses, including prospectus numbers 410024P, 410024P86 and 410024P2. Pages 74, 75, and 76 of Colony Cove Ellenton prospectus number 410024P describe the park's recreational facilities. The park owner, on page 77, paragraph 4(f), reserves the right from time to time to alter or change any of the facilities by the removal, relocation, or alteration of existing facilities or the construction of new facilities. Page 85 of this prospectus provides for the collection of costs incurred as a result of state and local government actions. MLH owns and operates Clearwater Cascade Mobile Home Community of Clearwater, Florida. Prospectus Number 5200525P86 lists each lot, including lot size, as well as describes recreational facilities and common facilities in the park. LaCasa Mobile Home Park, a MLH park, offers at least two prospectuses in the park, prospectus numbers 5800237P and 5800237P86. Prospectus number 5800237P describes the recreational facilities in the park. The prospectus provides for an assessment to homeowners for ad valorem taxes. The park owner also reserves the right from time to time to change any of the facilities by the removal, relocation, or alteration of existing facilities or the construction of new facilities. MLH has not been told by the Division it would not have a right to make modifications to its facilities in accordance with its prospectuses. The prospectuses delivered to homeowners in MLH parks allow for a variety of lease situations. There are no provisions in the prospectuses delivered by MLH which state that a prospectus applies only to persons who were in residence on June 4, 1984. All of the MLH prospectuses include reservation language similar to language contained in the Colony Cove Ellenton prospectus, reserving the right to modify facilities. MLH owns and operates Valleydale Estate Mobile Home Park, which it purchased on July 1, 1987. The Valleydale Estates prospectus contains some fees that were not disclosed to homeowners prior to occupancy. When MLH purchased Valleydale, it did not inquire as to disclosures made to homeowners. MLH also owns Heritage Village Mobile Home Park. Prior to its purchase of the park, MLH did not inquire as to disclosures made to homeowners living in the park. Since 1984, Dr. Faye Mayberry has been the Chief of the Bureau of Mobile Homes. The Division has the duty to review and approve prospectuses. Park owners draft prospectuses and submit them to the Division for review. Approximately 3000 prospectuses have been approved by the Bureau of Mobile Homes. As part of the approval process the Division does not verify the accuracy of the contents of the prospectus, nor does the Division determine if the contents of the prospectus are consistent with rental agreements offered to a particular mobile home owner. Park owners are advised by the Division that failure to cite deficiencies in the prospectus filing does not relieve them of obligations under the law. On January 10, 1985, Rule 7D-30.003 Florida Administrative Code, was adopted. Mobile home parks may offer more than one version of a prospectus in a park. Park owners sometimes submit subsequent prospectus filings that are inconsistent with previously delivered prospectuses. The Division has not established a policy regarding subsequent prospectus filings which contain disclosures concerning the number of lots in the park which are inconsistent with the disclosures in the previously approved and delivered version of the prospectus. Such inconsistencies between the subsequent prospectus and the previously approved and delivered prospectus filings are handled by the Division on a case by case basis. Prior to June 4, 1984, the primary issue of concern for mobile home owners was the mobile home park owners' failure to live up to disclosures that were given prior to the homeowners' occupancy in the park. (TV V, pg. 613). The prospectus delivered to mobile home owners residing in the following mobile home parks included fees, charges, and assessments other than pass-through charges, which were not disclosed to homeowners until after they moved into the parks: Park East Club -- Sarasota, Florida Caribbean Estates -- New Port Richey, Florida River Grove Mobile Home Village -- Sebastian, Florida Hacienda Village -- Winter Springs, Florida Ocean Pines Mobile Home Park - Indialantic, Florida A Garden Walk -- Palm Beach Gardens, Florida The amount for which a mobile home located in a mobile home park can be sold tends to decrease when the lot rental amount charged by the park increases. It costs several thousand dollars to move a double- wide mobile home within a 50 mile radius and set it up again the way it was before the move. /1 Many FMO members have complained to the FMO leadership of prospectuses being delivered in their mobile home parks which include fees, charges, or assessments which were not disclosed prior to June 4, 1984.
