The Issue Whether Respondent Tardiff committed the violations as set forth in the Notice to Show Cause dated February 24, 1997, and what penalty, if any, should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida charged with the responsibility to administer and to enforce the Florida Mobile Home Act, Chapter 723, Florida Statutes. At all times pertinent to this proceeding, Respondent has been the owner of Pondview Mobile Home Park. At all times pertinent to this proceeding, Respondent has had 10 or more lots offered for rent or lease. Respondent offered for rent or lease at least 22 lots. At all times pertinent to this proceeding, Respondent was a "mobile home park owner," as the term is defined in Section 723.003(7), Florida Statutes. No annual fees were paid by Respondent from 1984 until 1996. Currently, annual fees are $4.00 per lot, per year. Annual fees are payable to the division between July 1 and October 1 of each year. When Respondent increased his rent in 1993, he failed to file a copy of the lot rental increase notice with the Bureau of Mobile Homes. Under Chapter 723, Florida Statutes, the reason for the increase in rent is irrelevant to the filing requirement. When new tenants entered Respondent's mobile home park, Respondent failed to give them a prospectus or written notification of required information. Twelve homeowners have entered into rental agreements without receiving the statutorily required document. Respondent produced a cancelled check at the formal hearing showing that 1996 annual fees had been paid to the division. It is the park owner's responsibility to comply with Chapter 723, Florida Statutes. It is not the duty of the division to pursue park owners in order to obtain compliance with the Florida Mobile Home Act. Respondent has been permitted with the Department of Health (formerly Health and Rehabilitative Services (HRS)) every year since 1983.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That Petitioner enter a Final Order finding Respondent has violated the Sections of Chapter 723, Florida Statutes, as charged in the Notice to Show Cause, and ordering the Respondent to Pay annual fees for the years 1984-1995 in the amount of $814, plus a 10 percent penalty of $81.40 which equals $895.40; Pay a penalty of $1,200 for the violation of Section 723.013., Florida Statutes; Pay a penalty of $5,000 for the violation of Section 723.037, Florida Statutes; and Comply with all provisions of Chapter 723, Florida Statutes, in the future. DONE AND ENTERED this 28th day of August, 1997, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1997. COPIES FURNISHED: Suzanne V. Estrella, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Roland Tardiff Route 12 Box 394 Lake City, Florida 32025 Robert H. Ellzey, Jr., Director Division of Florida Land Sales, Condominiums, and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondents are James Brown and Bianca Brown, his wife. At all times pertinent to these proceedings, Respondents were owners of the mobile home park known as "Carefree Cove Club" located in Hypoluxo, Florida. They have owned the park since 1957. On or about December 28, 1984, Respondents, as operators of the park, filed a prospectus with Petitioner as required by Section 723.011, Florida Statutes. Petitioner approved the prospectus on March 27, 1985. At that time, 195 lots were being offered in the park for lease or rent. The number of lots and approximate sizes were set forth in the prospectus. The prospectus was delivered by Respondents to tenants shortly after notice of approval was received from Petitioner. On or about June 5, 1986, Respondents, pursuant to Chapter 723, Florida Statutes, sent a notice of eviction to tenants residing in the park. The park took no new tenants and was virtually closed after January 1, 1987. Most of the tenants had voluntarily vacated the park with exception of four residents by December 1, 1987. On December 16, 1987, Respondents forwarded notices to the remaining four tenants of an intent to impose "pass through" charges resulting from the park's increased real property taxes. Provision for "pass through" of such charges is made in the prospectus. The taxes which were the subject of the "pass through" were levied on three parcels of property belonging to Respondents. All of the parcels are contiguous. Two of the parcels are divided into lots and are a part of the park as described in the prospectus. The record is unclear as to whether the third parcel was completely or partially platted into lots, but it is established that this property, while not explicitly described in the prospectus, was used for recreational purposes by tenants and parking of recreational vehicles. Further, the property was landscaped and is found to be a part of the park. Respondents' intention to pass the increase in property taxes on to the tenants was consistent with the prospectus and Respondents' previous practice in 1986, when a refund was given to park tenants as the result of a property tax reduction. Respondents' subsequently abandoned their intention, however, and no "pass through" charges were collected from the tenants. Currently, no mobile home tenants reside in the park. Items, including real estate taxes, normally considered as "pass through" charges were customarily included in rental charges to tenants prior to June 4, 1984, as "operating expenses" and not otherwise denominated on rental documents. After the legislative enactment creating Chapter 723, Florida Statutes, Respondent prepared the prospectus which sets forth separate "pass through" charges. Respondents experienced periodic episodes of vandalism of the facilities of the park as the number of residents decreased in 1987. The tenants maintained alternate residences in the northern part of the United States and none were in residence at the park in the summer of 1987, when Respondents locked the clubhouse to prevent vandalism of the facility. As the tenants returned, each of them were informed that a key and access to the clubhouse was available upon request. A written notice dated March 24, 1988, codifying this policy, was sent to club members by Respondents. Closure of the facility by Respondents was in accordance with the prospectus previously distributed to the tenants. The prospectus notes that the facility's hours are from 9:00 a.m. to 9:30 p.m., and that it may be closed earlier if there are no activities. Use of the facility for all activities and all meetings requires advance reservation and written approval of the club management. It is the position of Petitioner that Section 723.002, Florida Statutes, requires the application of the provisions of Chapter 723 to Respondents' park although less than 10 lots were rented or available for rent at the time of Respondents' alleged offenses. Petitioner's policy is that mobile home parks operating under provisions of Chapter 723, Florida Statutes, and having 10 or more lots offered for rent or lease when the tenancy is created, continue to be governed under those statutory provisions as to that tenancy even when the total number of tenants becomes less than the statute's threshold of 10 tenancies. Petitioner's policy also consistently holds that tenancies created prior to the enactment of Chapter 723 in June of 1984, and consequently prior to the requirement of an approved prospectus, continue to be governed for the remainder of the term of that tenancy by the previous understanding or custom established by the rental agreement between tenant and landlord and applicable provisions of law existing at the inception of the agreement.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the charges set forth in the Notice To Show Cause. DONE AND ENTERED this 11th day of October, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2549 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS 1.-3. Addressed with the exception of the last sentence of finding number three, which is unnecessary to conclusion reached. 4.-5. Addressed. Addressed in part, remainder unnecessary to result reached. Addressed. Addressed in part, remainder unnecessary to result. Addressed. 10 Addressed. RESPONDENTS' PROPOSED FINDINGS Respondents' findings consisted of five unnumbered paragraphs. Numbers 1 through 5 have been assigned to those paragraphs and they are treated as follows: 1.-2. Addressed. Addressed in part. Remainder unnecessary. Addressed. Addressed. COPIES FURNISHED: Debra Roberts, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Alan S. Zangen, Esquire 1601 Belvedere Road, Suite 112 West Palm Beach, Florida 33406 Joseph A. Sole, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 E. James Kearney Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue The issues are whether the respondents engaged in a discriminatory housing practice, in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2007),1 by discriminating against Petitioner, on the basis of her alleged disability, and by harassing Petitioner and retaliating against her.
Findings Of Fact Petitioner is a former resident of Broadview Mobile Home Park (Broadview), located at 1701 Post Road, Melbourne, Florida. Petitioner resided in Broadview for approximately six years from an undisclosed date in 2002 through September 8, 2008. Mr. Lamont Garber holds an ownership interest in Broadview. The record does not quantify the ownership interest of Mr. Garber. Mr. Garber manages Broadview with his brother, Mr. Wayne Garber. Broadview rents sites within the mobile home park to residents who own mobile homes. Each site has access to water and electric service. Each resident arranges his or her water and electric service directly with the respective utility provider. Sometime in 2005, Petitioner purchased a mobile home for approximately $6,500.00 and moved within Broadview to Lot 24. The rental agreement for Lot 24 required rent to be paid on the first day of each month. The rent for July 2008 was due on July 1, 2008. Petitioner failed to pay the rent payment that was due on July 1, 2008. On July 9, 2008, Broadview served Petitioner, by certified mail, with a notice that she had five business days in which to pay the rent due (the five-day notice). Petitioner received the five-day notice on July 10, 2008. The five-day period expired on July 17, 2008, with no rent payment from Petitioner. Petitioner had paid rent late in the past, but Petitioner had never been more than four or five days late. After July 17, 2008, Broadview initiated eviction proceedings. Petitioner tendered the rent payment on July 20, 2008, but Broadview proceeded with the eviction. Petitioner did not appear and defend the eviction proceeding. On August 26, 2008, the County Court for Brevard County, Florida, issued a Final Default Judgment of Eviction awarding possession of Lot 24 to Broadview. Law enforcement officers thereafter executed the Court's order and evicted Petitioner from Broadview on or about September 8, 2008. After Petitioner received the notice of eviction, she filed a complaint with the Florida Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes (DBPR). DBPR is the state agency responsible for regulating mobile home parks, including Broadview. The allegations in the complaint that Petitioner filed with DBPR were substantially similar to the claims of discrimination, retaliation, harassment, and unlawful rent increases Petitioner asserts in this proceeding. DBPR rejected Petitioner's allegations and found that Broadview lawfully evicted Petitioner for non-payment of rent. The final agency action of DBPR is substantially similar to that of HUD and the Commission's proposed agency action in this proceeding. Each agency found that Broadview lawfully evicted Petitioner for non-payment of rent and rejected the allegations of discrimination, harassment, and retaliation. The DOAH proceeding is a de novo consideration of the proceeding before the Commission. A preponderance of the evidence does not establish a prima facie showing that Petitioner is disabled or handicapped. Petitioner has cancer and is receiving chemotherapy and radiation treatment. A preponderance of evidence does not show that the medical condition substantially limits one or more major life activities of Petitioner. Petitioner also alleges that she is disabled and handicapped by a mental condition. Petitioner submitted no medical evidence of the alleged disability or handicap. A preponderance of evidence does not establish a prima facie showing that, if such a mental condition exists, the condition substantially limits one or more major life activities of Petitioner. Assuming arguendo that a preponderance of the evidence showed that Petitioner were disabled or handicapped, a preponderance of evidence does not establish a prima facie showing that either of the respondents discriminated against Petitioner, harassed her, or evicted her in retaliation for Petitioner's disability or handicap. It is undisputed that Petitioner conducted neighborhood organization efforts to protest a rent increase at Broadview and repeatedly called law enforcement officials to report alleged drug and prostitution activity in Broadview.2 However, Broadview did not evict Petitioner for those activities, and Petitioner's testimony to the contrary is neither credible nor persuasive. Rather, Petitioner engaged in other activities that the respondents found objectionable. Petitioner baby sat for one or more dogs in violation of Broadview's prohibition against pets. Some of the dogs were dangerous to other residents. Petitioner also verbally abused Mr. Wayne Garber when he attempted to mediate with Petitioner concerning the presence of dogs and Petitioner's conduct toward management at Broadview. On July 1, 2008, Broadview served Petitioner with a seven-day notice concerning Petitioner's compliance with lease requirements. The notice, in relevant part, alleged that Petitioner harassed management and impaired the ability of management to perform its duties. The testimony of respondents describing the activities of Petitioner that precipitated the seven-day notice is credible and persuasive. A preponderance of the evidence shows that the respondents had legitimate non-discriminatory reasons for requiring Petitioner to comply with the terms of the seven-day notice and for requiring Petitioner to comply with the requirement for rent to be paid on July 1, 2008. Petitioner failed to comply with either requirement, and Broadview evicted Petitioner for legitimate, non-discriminatory reasons. The respondents did not harass or retaliate against Petitioner.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that the respondents did not engage in an unlawful housing practice and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of May, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2009.
The Issue The issue is whether Respondent violated the Florida Fair Housing Act (“the Act”) by failing to provide Petitioner with a reasonable accommodation.
Findings Of Fact The following Findings of Fact are based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding. Scottish Highlands is a deed-restricted community in Leesburg, Florida. The Association is responsible for the daily operations and management of Scottish Highlands. Since at least February 16, 2015, Scottish Highlands’ bylaws have provided that “[f]ences and/or continuous hedges are not permitted except along the perimeter of Association property. Approved fencing shall be of pressure treated pine ‘shadow box,’ not exceeding six (6) feet in height.” The Association’s governing documents also require that “[a]ny and all improvements, alterations, or additions to units by parcel owners” must be reviewed by an architectural review committee. The architectural review committee then recommends to the Board of Directors whether the proposed improvement, addition, or alteration should be allowed. The Board of Directors, within 60 days after the parcel owner’s initial request, approves or disapproves the proposal. Ms. Almonte and her husband moved into Scottish Highlands in May of 2010. In 2013, Ms. Almonte was diagnosed with fibromyalgia. Ms. Almonte described her experience with fibromyalgia as follows: The exact cause of fibromyalgia is not known. Symptoms include widespread pain, fatigue, cognitive difficulties, and migraine headaches. Treatments include medication and lifestyle changes. Many people describe fibromyalgia as feeling like a persistent flu. I discovered self-care was one of my best options, by exercising regularly, by gardening, using raised bed planters, because I can’t do ground level gardening because of my hips, back, and knees. I have had a hip replacement and have broken my knee. Reducing emotional and mental stress by using techniques such as meditation, relaxation, and aromatherapy in my herb garden. By eating a balanced diet, by growing my own organic vegetables, fruits, and herbs [sic]. I see a psychologist, a psychiatrist, a rheumatologist, and my primary care physician on a regular basis. When I have severe flare-ups, I am homebound for days. Stressful situations exacerbate her conditions. The Social Security Administration ruled on May 5, 2016, that Ms. Almonte is disabled. While there was no testimony or documentation describing why the Social Security Administration determined that Ms. Almonte was disabled, an October 14, 2016, letter from Dr. Eleanor Davina of Adult Medicine of Lake County, Inc., states that “due to underlying medical conditions, Ms. Lourdes is unable to do ground level yard work to include gardening or weeding, unless she has raised garden beds.”1/ It is not surprising that Ms. Almonte uses gardening to mitigate the symptoms of fibromyalgia. Ms. Almonte has over 25 years of experience with gardening. She has been a certified Florida master gardener and a member of the Florida Nursery Growers and Landscape Association. Ms. Almonte is also a founding member of the Scottish Highlands Garden Club. On approximately July 1, 2016, the Almontes paid $2,850 for 12 planter beds that were placed in their backyard. Each bed is made from pressure-treated lumber and is two feet high and six feet long. Recent photographs indicate that several of the beds include lattices that are considerably higher than the beds themselves. Initially, Ms. Almonte used 10 of the beds for gardening and the remaining two as a work bench. Depending on what she is growing at any particular time, Ms. Almonte typically has six of the beds in use. Soon after placing the planter beds in their backyard, the Almontes received at least one letter from the Association ordering their removal. Rather than contacting the Association and explaining that the planter beds were part of Ms. Almonte’s treatment, the Almontes hired an attorney. Via a letter dated July 28, 2016, the Association invited the Almontes to address the Board of Directors at the Board’s next public meeting on September 20, 2016. However, the Association barred the Almontes from bringing their attorney unless they provided a 10-day advance notice that they were doing so. Ms. Almonte declined the Association’s invitation because she did not want to discuss her health issues in public. On August 4, 2016, the Association received a “Trespass Warning” from the Almontes stating that it was not “authorized, permitted, or invited to enter or remain on” their property. The Trespass Warning also stated that the Almontes would pursue criminal charges through the Lake County Sheriff’s Office if the Association disregarded the warning. On September 26, 2016, the Association filed a Petition for Mandatory Non-Binding Arbitration with the Florida Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes.2/ The Almonte’s Answer to the Petition stated the following: The Almontes did not “construct” large wooden planter boxes with 4X8 lattice panels and bamboo curtains. At significant expense, the Almontes hired a professional carpenter to construct several portable wooden planter boxes. The pre-constructed planter boxes were then transported to the Almontes property and situated on their back-yard patio. Mrs. Almonte is medically disabled and has been diagnosed with an anxiety disorder. Mrs. Almonte is a master gardener who has worked in the gardening industry for over 30 years. Based on her disability and her background, Mrs. Almonte’s medical doctor recommend[ed] Mrs. Almonte continue gardening to get physical exercise and to help her relieve the unbearable stress she deals with while coping with her physical and mental disability. Since Mrs. Almonte is no longer able to continuously bend or stoop to the ground to tend to a garden grown on the ground, it was recommended that Mrs. Almonte utilize raised bed gardens to accommodate her disability. Mrs. Almonte’s psychologist agrees with her medical doctor’s recommendation to utilize gardening as a means to cope with and mitigate the symptoms associated with her disability. The portable planter boxes are not positioned in a straight line and do not have the appearance of a fence or a continuous hedge. Instead, they are positioned and repositioned on the patio according to the type of plant growing in a particular planter and the time of year. As plants mature and the weather changes, the planter boxes are repositioned on the patio to where the plants can thrive. Planter boxes with plants that require their growth to be supported are equipped with wood lattice panels until the growth has died or the plants are harvested. There are no “bamboo curtains” on the Almontes’ property. They did, at one time, have a single bamboo curtain screening part of their property from their neighbor’s property. However, that curtain has long since been removed. The planter boxes were professionally constructed of pressure treated pine. Many members of the community have commented on how beautiful the planters (and plants) are and how they add beauty to the community. The Almontes’ neighbor even wrote a letter stating that she thought the planter boxes are beautiful and aesthetically pleasing to view. As stated above, the planter boxes do not constitute a fence or a continuous hedge. However, if said planter boxes were considered a fence or a hedge, which they are not, fences, raised planter boxes, and continuous hedges already exist throughout the community. * * * Under the governing documents, the Almontes are not required to seek approval from the Board of Directors because their planter boxes are not an improvement, alteration or addition to their unit. An “improvement” to real property is synonymous with a “fixture” to real property. Fixtures are typically affixed to the land and become part of the real property. Alterations alter the land in some way. And additions are typically fixtures that are added to the real property that become part of the land. Here, the planter boxes are not affixed to the real property in any way. In fact, the planter boxes are regularly moved about the Almontes’ back patio depending on the growing season. Therefore, the planter boxes are not an improvement, alteration, or addition to the real property. Accordingly, the Almontes were not required to seek approval to bring in the planter boxes.[3/] On November 16, 2016, Ms. Almonte filed a complaint with the Department of Housing and Urban Development (“HUD”), and the complaint was ultimately referred to the Commission. Ultimate Findings The unrebutted evidence demonstrates that Ms. Almonte’s major life activities of bending, stooping, kneeling, and rising from one’s knees have been substantially limited. Therefore, the undersigned finds that Ms. Almonte proved by a preponderance of the evidence that she is disabled within the meaning of the Act. While there is insufficient evidence to support a finding that Ms. Almonte expressly requested a reasonable accommodation from the Association prior to her complaint being received by HUD and the Commission,4/ the Almonte’s Answer to the Association’s Petition for Arbitration was sufficient to demonstrate by a preponderance of the evidence that the Association was on notice that Ms. Almonte wanted a reasonable accommodation. The preponderance of the evidence demonstrates that: the planter beds were a reasonable accommodation; and those planter beds were necessary to afford Ms. Almonte an opportunity to use and enjoy her home in Scottish Highlands. The planter beds were a reasonable accommodation because they cost the Association nothing and did not materially impact any of the other residents. The planter beds were a necessary accommodation because they were an important aspect of Ms. Almonte’s efforts to mitigate the effects of fibromyalgia. There is no dispute that the Association objected to Ms. Almonte having the planter beds in her backyard. The Association has not articulated a legitimate, non- discriminatory reason for withholding approval of the planter beds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Scottish Highlands Condominium Association, Inc., violated the Florida Fair Housing Act by failing to provide Lourdes Almonte with a reasonable accommodation, and requiring Scottish Highlands Condominium Association, Inc., to provide Ms. Almonte with a reasonable accommodation. DONE AND ENTERED this 26th day of November, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 26th day of November, 2018.
Findings Of Fact At all pertinent time Country Meadows Estates, Ltd. (Country Meadows), a Florida limited partnership, has been the park owner of Country Meadows Mobile Home Park (the Park) which is located in Plant City, Florida. Century Realty Funds, Inc. (Century), is the general partner of Country Meadows Estates, Ltd. Century has been in the business of operating adult and retiree mobile home parks for approximately seven years. It operates over 20 different parks. Country Meadows has been in existence for approximately five years. Approximately 510 lots have been offered for rent or lease in the Park. When the last phase of the Park is completed, approximately 750 lots will have been offered for rent or lease. Yearly rental increases at Country Meadows equate to the increase in the consumer price index, or a $5 minimum increase, whichever is greater. This rental agreement is guaranteed by Century for the lifetime of the mobile home owners as long as they reside in the Park. Charge Of Failure To Deliver Approved Prospectus. Century retained a law firm to provide assistance in securing approval of its proposed prospectus, lease agreement and park rules and regulations and paid the law firm a fee for its services. On November 27, 1984, Country Meadows filed with the Department of Business Regulation, Division of Land Sales, Condominiums and Mobile Homes (the Division), a prospectus for the Park. In order to be able to increase rent in January, 1985, as provided in existing lot leases, Country Meadows tried to get a copy of the filed prospectus to all existing lot lessees by the end of 1984. Starting December 31, 1984, Country Meadows began delivering a copy of this prospectus to each new lessee of lots in the Park. On January 7, 1985, the Division notified Country Meadows of deficiencies in the prospectus. Century, often through its supervisor of property management operations, and its legal counsel held numerous telephone conferences with the Division and numerous conferences among themselves regarding the notice of deficiencies. On February 25, 1985, Country Meadows sent the Division a revised prospectus addressing the deficiencies. Country Meadows substituted the revised prospectus as the prospectus delivered to new lessees of lots in the Park after February 25, 1985. On March 13, 1985, the Division sent Country Meadows another notice of deficiencies. The deficiencies found this time were in the original prospectus but were not noted in the first notice of deficiencies. On March 15, 1985, Country Meadows stopped delivering a prospectus to new lessees of lots in the Park after March 15, 1985. Country Meadows believed the law prohibited it from delivering an unapproved prospectus after that date but did not believe that it was prohibited from continuing to do business until a prospectus was approved. Rather, Country Meadows believed the law allowed it to continue to enter into new lot leases in the Park without an approved prospectus after March 15, 1985, but that it would have to deliver a prospectus when approved and give lessees the right to rescind their lot leases after review of the approved prospectus. On May 22, 1985, Country Meadows sent the Division a second revised prospectus. On November 6, 1985, Country Meadows sent the Division yet another revised prospectus that distinguished between increase in base rent on a lot and increase in other fees associated with rental of a lot. On November 21, 1985, the Division approved Country Meadows' last revised prospectus for the Park. Between March 16 and November 5, 1985, Country Meadows entered into 79 new Park lot rental agreements without delivering a prospectus to the lessee. Instead, the applicable filed but not yet approved prospectus was made available for inspection. Within 45 days after approval of the third revised prospectus on November 21, 1985, Country Meadows distributed an approved prospectus to all lessees, including those who entered into leases between March 16 and November 5, 1985. Century made a good faith effort to correct the deficiencies the Division cited in its proposed prospectuses. Charge Of Failure To File Advertising. In late summer or early fall, 1985, William and Nancy Hines responded to an advertisement in a magazine and asked for information. Century sent them documents. Some were not identified. One was entitled Greetings From Sunny Florida! (Petitioner's Exhibit 7). Century generally gives this document to persons who express an interest in Country Meadows, inviting them to pursue their interest and make a visit to the Park, free of charge. Later, Century sent a follow-up letter giving new information, further "selling" the benefits of Century parks, and finally asking the Hineses to indicate if they were still interested. (Petitioner's Exhibit 10). The Hineses arranged to make a visit to the park on November 15, 1985. At the Park, a County Meadows sales representative spoke with the Hineses and gave them a document entitled "Approximate Monthly Living Expenses At Country Meadows" (Petitioner's Exhibit 9). Country Meadows gives this document to persons who request information about Country Meadows. During the visit, the Hineses also were given a document entitled "Before You Purchase A Home: Questions And Answers You Should Know" (Petitioner's Exhibit 8). Country Meadows (and Century in general) usually sends this document to persons who express an interest in Country Meadows (or another Century park). It poses and answers general questions about mobile home parks and, in so doing, touts Century and its mobile home park developments. None of the documents (Petitioner's Exhibits 7, 8, 9 and 10) were filed with the Division. The Hineses entered into a lease agreement on November 15, 1985. In late winter or early spring of 1985, Elmer and Adele Johnson also saw an advertisement in a magazine and arranged to visit Country Meadows. At the visit, a Country Meadows sales representative gave the Johnsons a copy of a document entitled "Century: Mobile Home Communities, Affordable, Award-Winning, Adult Mobile Home Living-Now offering 11 outstanding Central Florida Mobile Home Communities for your inspection!" (Petitioner's Exhibit 11). It identified and listed information on each of the eleven parks, including Country Meadows. After the visit, Country Meadows sent the Johnsons a follow-up letter giving new information, further "selling" the benefits of Century parks and finally asking the Johnsons to indicate if they were still interested. (Petitioner's Exhibit 10). The letter is a standard letter (addressed "Dear Friend") used to re- contact prospective customers who have visited a Century park (as, for example, hundreds have visited Country Meadows). On March 15, 1985, the Johnsons returned to Country Meadows. They were given a copy of Petitioner's Exhibit 8 and entered into a lease agreement. None of these documents (Petitioner's Exhibits 8, 10 and 11) were filed with the Division. Petitioner's Exhibit 11 also was used and given to Myre Lutha Tillman, a prospective purchaser, in approximately July, 1985. From at least May 29, 1984, through October 6, 1986, a billboard sign advertising Country Meadows (a picture of which is Petitioner's Exhibit 4) was located on Frontage Road and could be seen from Interstate 4, approximately six miles east of Plant City. Century admits the billboard was advertising that was not filed with the Division. The billboard was removed some time after October 6, 1986, and no longer is in use. Country Meadows also placed newspaper advertisements of the Park in the Tampa Tribune on Sunday, February 2, and Sunday, February 26, 1986 (Petitioner's Exhibits 5 and 6, respectively). Century admits that this advertising was not filed with the Division. Some of the information Century gave prospective purchasers including Petitioner's Exhibits 7, 8, 9, 10 and 11-- was given only to persons who expressed an interest in a Century mobile home park or at least requested information. Century's supervisor of property management operations did not think this information was "public" and therefore not "advertising" under the mobile home park statutes. This partially explains why Century did not file this information with the Division. Charge Of False Or Misleading Advertising. Century admits that it used a pamphlet entitled "Country Meadows: The Golden Dream" (Petitioner's Exhibit 12), which it properly filed with the Division, as advertising distributed to the public. The pamphlet advertises "Exercise Facilities & Locker Rooms" and "Security with Access Gatehouse." The only locker rooms ever at Country Meadows were small package lockers located in the mailroom. The pamphlet, while technically not false, was misleading because it gives the impression of a locker room that would be used to change clothes in conjunction with the exercise room. There always has been "Security with Access Gatehouse" at Country Meadows. Initially, the gatehouse was placed at the entrance of the Park and was manned by paid residents of the Park. The gatehouse was manned during the day until early evening hours and on weekends (in part to direct visitors and guests to residents.) Later, approximately in early 1986, the gatehouse was moved back from the entrance and was equipped with automatic security gate arms. The residents were given an access code which, when punched in at the gatehouse, would automatically open the gate arm on either entering or leaving the Park. Country Meadows no longer hired residents to man the gatehouse but hired a full- time security guard who roves Country Meadows and an adjacent Century park that now has approximately 100 home sites leased. The security guard's hours of employment include the early morning and the evening hours. Sometime after installation of the new gatehouse (no witness could say when), lightning struck the gate and blew out the computer that controls the gate arm. The computer was fixed and was operative for a while without access codes. It was anticipated that the access code mechanism would be operative and new access codes would be given to the residents by the end of August, 1987. Again, no witness could testify to more precise time frames in which these events took place. Century also admits that it used another pamphlet or brochure, similar to Petitioner's Exhibit 12 but not filed with the Division, for advertising to the general public. This other pamphlet or brochure was entitled "The Golden Dream: Country Meadows" (Petitioner's Exhibits 13). It was given to Gerald Gott, among others, at a seminar in Merrillville, Indiana, sometime between October 10 and December 20, 1985. Like Petitioner's Exhibit 12, Petitioner's Exhibit 13 includes a color-coded map of Country Meadows showing: (1) "Home Sites Sold"; (2) "Home Sites Available"; and (3) "Final Phase, Future Home Site." In other colors, the map shows one clubhouse and one pool located between the first two color-coded areas (and bordered on the third side by golf course), and a second clubhouse and second pool nestled inside the third color- coded area (the "Final Phase"). Neither of the two pamphlets (or brochures) use the word "proposed" to describe the second clubhouse or second pool. The "Final Phase" of Country Meadows now is underway, and it will include a clubhouse and pool. The clubhouse will be a closed pavilion with a patio. The billboard advertising Century used for at least from May 29, 1984, through October 6, 1986, (Petitioner's Exhibit 4) stated: "Price [$29,900] Includes: Golf-Lakes-Pool- Clubhouse." However, Country Meadows actually was selling homes (and leasing lots) in the Park without golf included in that price. (Golf is optional for purchasers who pay an additional golf membership fee.) When prospective purchasers made an issue of the billboard advertising, Country Meadows on at least one occasion made an accommodation, including in the purchase price two years of free golf on the "gold card program" and charging $240 per year for golf privileges after that. The Tampa Tribune newspaper advertising (Petitioner's Exhibits 5 and 6) included the statement: "Free *Golf For 5 Years [under certain conditions]." The asterisk was intended to refer the reader to an asterisk near the bottom of the ad that said: "*No Free Golf On $32,900 Homes." Mitigation. Century has made reasonably diligent efforts in many respects both to cooperate with the Division to achieve compliance with the statutes and rules and to address and resolve the complaints and desires of residents of the Park.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Petitioner, Department of Business Regulation, Division of Land Sales, Condominiums and Mobile Homes, enter a final order: Dismissing the first and fourth charges alleged in the Notice To Show Cause; Holding the Respondent, Century Realty Funds, Inc., d/b/a Country Meadows Estates, Ltd., guilty of the violations alleged in the second and third charges in the Notice To Show Cause; Ordering the Respondent to cease and desist from the use of unfiled and false or misleading advertising; and Ordering the Respondent to pay to the Petitioner a total civil penalty in the amount of $5000 for the violations for failure to file advertising and false or misleading advertising. RECOMMENDED this day of September, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0165 Explicit rulings on the parties' proposed findings of fact are made to comply with Section 120.59(2), Florida Statutes (1985): Petitioner's Proposed Findings Of Fact: 1.-4. Accepted and incorporated. 5.-6. Subordinate and unnecessary. 7.-26. Accepted and incorporated to the extent necessary and not subordinate. Accepted and incorporated. Rejected as not within the charges in the Notice To Show Cause. 29.-30. Rejected as contrary to facts found. Subordinate to facts found. Accepted and incorporated. Rejected as irrelevant and not within the charges in the Notice To Show Cause. Accepted and incorporated. Subordinate to facts contrary to those found. 36.-38. Subordinate to facts found. 39.-41. Accepted and incorporated. 42.-44. Subordinate to facts found. 45.-47. Accepted and incorporated to the extent necessary and not subordinate. 48.-53. Accepted and incorporated. Rejected as contrary to facts found. There are lockers in the mailroom, but the advertising is misleading. Subordinate to facts found. Subordinate. Respondent's Proposed Findings Of Fact: 1-8 Accepted and incorporated. Unnecessary. Except that the reasonableness of the fee was not the subject of any evidence, accepted and incorporated. 11.-12. Accepted and incorporated. 13. Unnecessary. 14.-18. Accepted and incorporated. 19. Rejected as not proven if, when or why a third revision was demanded. The evidence proves only that the third revision provides some information the Division had requested. 20.-21. Accepted and incorporated. Rejected as contrary to fact found. (It was not simply a matter of Century waiting for the Division to approve a filed prospectus.) Accepted and incorporated. 24.-31. Irrelevant and unnecessary. (As to 29. to 31., the issues were not the same as in this case.) 32.-35. Subordinate to facts found (except it was not proven that every reasonable effort was made.) 36.-40. Accepted and incorporated except, as to 38, "financial security" was not an issue in the Notice To Show Cause and is irrelevant.) 41. Accepted and incorporated (but the lockers were in the mailroom, and the advertisement of them is misleading.) 42.-43. Accepted and incorporated. Irrelevant and unnecessary. Subordinate to facts found. Rejected as contrary to facts found. Irrelevant and unnecessary. Accepted and incorporated. See 47, above. Rejected as contrary to facts found. (Petitioner's Exhibit 12 was.) Accepted and incorporated. Accepted and incorporated (although the first notice of deficiency, while incomplete, was timely.) Rejected as not proven precisely what Century's decision, i.e., the understanding of its supervisor of property management operations, was based on. 54.-59. Accepted and incorporated. Unnecessary. Accepted and incorporated. Rejected as conclusion of law. 63.-64. Accepted and incorporated except to the extent conclusion of law. 65. Rejected as not proven. COPIES FURNISHED: Debra Roberts, Esquire Paul Thomas Presnell, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1927 Ronald L. Clark, Esquire Michael A. Tewell, Esquire MURPHY & CLARK, P.A. Post Office Box 5955 Lakeland, Florida 33807-5955 Richard Coats, Director Division of Florida Land Sales, Condominiums and Mobile Homes The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1927 James Kearney, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1927 Thomas A. Bell, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1927
Findings Of Fact Lake Waldena Resort is a mobile home park as defined by Section 723.003(6), Florida Statutes. It is located at Route 4, Box 300, Silver Springs, Florida 32688. The mobile home park is subject to regulation pursuant to Section 723.002(1), Florida Statutes. That law is administered by the Petitioner. All Respondents are mobile home park owners as defined by Section 723.003(7), Florida Statutes. The Hilgemans are park owners and have been at all relevant times for this dispute. At the times relevant to the inquiry Pat Montgomery was the park operator, which equates to park owner under the terms of the statute. Pat Montgomery concluded her affiliation with Lake Waldena Resort in May 1989. Pat Montgomery, as the park operator, who had been employed by Donald L. Hilgeman, collected the rent from the mobile homeowners who had lots within the park. She attended any problems that the mobile homeowners confronted her with. She ordered supplies for the operation of the mobile home park. She sold mobile homes for use in the park and ordered them for sale. She was involved with the provision of carports and screen rooms associated with mobile homes in the park. She was responsible for the payroll and basically everything that transpired in the day-to- day operations in the mobile home park. The Hilgemans had limited affiliation with the park. Mr. Hilgeman was involved with doing physical labor at the park and was Montgomery's employer. On July 26, 1988, a notice of lot rental increase was mailed to all tenants in the Lake Waldena Resort Mobile Home Park. This notice was provided in accordance with Rule 7D-32.002(1), Florida Administrative Code. The basis for this increase was associated with the economic pressures on the park owner brought about by increases in real estate taxes, insurance costs, sanitation fees, other fees payable to the Petitioner, and wage increases. An exemplar of the form notice which had been sent out to each mobile home owner may be seen in Respondents' Exhibit 5 admitted into evidence. All notices were dispatched by U.S. Mail. As contemplated by Rule 7D-32.002(4), Florida Administrative Code, official notice was considered to have been made within five days of July 26, 1988, which corresponded to July 31, 1988. A meeting within 30 days of the provision of notice as described in Section 723.037(3), Florida Statutes, would equate to August 30, 1988. The proposed lot increase was from $78 to $88. At the time of notification of the lot increase Lloyd Carter was the vice president of the homeowners' association at Lake Waldena Resort. He was residing in the mobile home park. Gordon Gibson was the president of the homeowner's association who, at the moment of the lot increase, was residing in Minden, Ontario, Canada. Mr. Carter picked up a copy of the notice of lot rental increase from the office at the mobile home park shortly after the notice had been prepared on July 26, 1988. He then called Mr. Gibson in Canada and explained the particulars of that notice. At that time, Mr. Carter stated no concerns to Mr. Gibson about the notice of lot rental increase. He merely informed Mr. Gibson of the pendency of the lot rental increase. Under ordinary circumstances the' expected time for delivery of mail dispatched from the United States to Canada was in the neighborhood of five to seven days; however, in August 1988, the Canadians were undergoing a postal strike which delayed matters. Nonetheless, Mr. Gibson received his copy of the notice and on August 4, 1988, he wrote Mr. Hilgeman. A copy of that correspondence may be seen as Respondents' Exhibit 6 admitted into evidence. Mr. Gibson informed Mr. Hilgeman in that correspondence that he wished to have a meeting to discuss the lot rental increase. The meeting would be attended by a committee of not more than four persons under the direction of Mr. Carter. He asked that the meeting be held at a convenient time prior to August 26, 1988. The basis for Mr. Gibson's action in which he requested a meeting with the park owner was through the process of discussion with his board of directors in independent conversations in which it was decided that a meeting was desired. A meeting to discuss the reasons for the lot rental increase was not held before August 26, 1988, or before August 30, 1988. When Mr. Gibson sent his August 4, 1988 correspondence he was aware of the problems of the postal strike in Canada and the delay that this might promote in the receipt of his letter by the park owner. He had not instructed Mr. Carter to make any contact with the park owner prior to the park owner's receipt of the correspondence which outlined the fact of Mr. Carter's duties as chairman of the committee. The return receipt correspondence from Gibson to Hilgeman dated August 4, 1988, was received by, Pat Montgomery in mid August 1988. By correspondence of August 22, 1988, addressed from Mr. Hilgeman to Mr. Gibson, a copy of which may be seen as Respondents' Exhibit 7 admitted into evidence, Mr. Hilgeman demanded of Mr. Gibson that he confirm that a majority of the Lake Waldena residents had in fact selected Mr. Gibson to represent them. Reference is made in that letter to section 723.078(2)(b), Florida Statutes, having to do with the requirements for bylaws in homeowners' associations. This request of Mr. Gibson is not a prerogative of Mr. Hilgeman as park owner in dealing with the issue of the conduct of the meeting. Nor is it available to Mr. Hilgeman to remind Mr. Gibson that he had to comply Section 723.037(1), Florida Statutes or Section 723.076(1), Florida Statutes. To the extent that those provisions have any relevance to the homeowners' association, the former pertains to standing to challenge increases in such things as the lot rental amount through the homeowners' association, something that the park owner is not called upon to advise the homeowners' association about. This question of standing does not enter in to the matter of the ability to represent mobile home owners at a meeting pursuant to Section 723.037(3), Florida Statutes, for purposes of discussing the lot rental increase. Likewise, the latter statutory reference that describes the idea of incorporation of a homeowners' association and the need to notify the park owner is not associated with the meeting to discuss the purposes of the lot rental increase. On the other hand, when Mr. Hilgeman referred to Rules 7D-32.003(1) and 7D-32.004(2), Florida Administrative Code, those are provisions which have some significance in considering the matter of a meeting to discuss a lot rental increase. Rule 7D-32.004(2), Florida Administrative Codes, states: If requested to do so by the park owner or subdivision developer, the committee shall certify that it has been selected as described Rule 7D-32.003, Florida Administrative Code. The certification shall include a certificate of all members of the committee attesting to its proper formation under the statute in these rules. Significantly, that provision does not describe the relationship of such a request to the obligation of the park owner to meet within 30 days of notice of lot rental increase as contemplated by Section 723.037(3), Florida Statutes. None of the principals, given the statutory scheme and rules that were designed to effectuate the purposes of the statute, could have reasonably understood on what terms the park owner was entitled to make this request taking into account the complications of corresponding back and forth between the United States and Canada in the midst of a mail strike, the consequence of which made it unlikely that the meeting would take place on or before August 30, 1988. In the conclusions of law a discussion is made of the effect of the request for certification and whether it tolls the time for conducting the informational session to discuss the reasons for the lot rental increase. The envelope for the August 22, 1988 correspondence was stamped in the United States on August 23, 1988, in Bradenton, Florida. It also bears a date of August 29, 1988, which is seen as a part of the verification of receipt of that letter in Canada. Mr. Gibson received the Hilgeman correspondence of August 22, 1988 on August 29, 1988. Mr. Carter also received a copy of the August 22, 1988 correspondence by Mr. Hilgeman and had a discussion with Mr. Hilgeman about that letter sometime around August 23 or August 24, 1988. That conversation took place in the mobile home park. This did not lead to the resolution of the certification request made by Mr. Hilgeman to the homeowners' association. It was left to Mr. Gibson to take care of the response to the request for certification. In the conversation being described, between Hilgeman and Carter, Carter made it known that he intended to complain to the Petitioner about the park owner not meeting with the homeowners' committee within 30 days of notice. A complaint was made as may be seen in a copy of that complaint which is Respondent's Exhibit No. 2 admitted into evidence. That complaint was sent out on August 26, 1988. The basis for the homeowners' association complaining to the Petitioner was related to their concern that they preserve their right to have the meeting even if it transpired beyond the 30 days contemplated in the statute. Notwithstanding the complaint's existence, Mr. Gibson went forward with his attempts to try to satisfy Mr. Hilgeman concerning certification and did so with the assistance of Victor Davis a member of the board of directors of the homeowners' association. Mr. Gibson's attitude about this was to the effect that the request by Mr. Hilgeman was a legitimate request that should be complied with. A discussion had also been held between Carter and Hilgeman on August 18, 1988, in which Mr. Hilgeman gave advance notice of the fact that he needed several questions answered and that there would be a delay in the meeting. The indication was made that a letter would be sent to Mr. Gibson to have those questions answered. That eventuated in the August 22, 1988 correspondence from Hilgeman to Gibson. Upon making these matters known to Mr. Carter on August 18, 1988, Mr. Carter's only remark was that this would be "fine." On September 9, 1988, a letter was written from Ralph B. Murray, Jr., Specialist Enforcement Section, Bureau of Mobile Homes within the Petitioner's department which was sent to Mr. Hilgeman reminding him of the necessity to respond to allegations that had been made by the Lake Waldena Resort Homeowners' Association concerning the claim that Mr. Hilgeman had refused to meet with those mobile homeowners in the statutorily prescribed time as announced at Section 723.037(3), Florida Statutes. A copy of this correspondence may be found as Respondent's Exhibit No. 9, admitted into evidence. On September 13, 1988, by correspondence, a copy of which may be found as Respondent's Exhibit No. 10 admitted into evidence, Mr. Hilgeman offered his reply. He tells Mr. Murray that he is not sure whether the homeowners' association is legitimate and that they had not responded to his August 22, 1988 correspondence to Mr. Gibson which he enclosed in his letter to Mr. Murray. He spoke of delays in the mailing time for mail coming from Canada. He makes mention of the fact of having informed Mr. Carter that the manager, who was Ms. Montgomery was on vacation and would not return until August 30, 1988. In fact, Ms. Montgomery was not available to meet with the homeowners' association in the period August 18 through August 30, 1988. This would not have relieved Mr. Hilgeman of the necessity to meet with the homeowners' association on or before August 30, 1988, had they complied with his request for certification prior to that date. They did not. Compliance with the certification process was achieved by correspondence of September 12, 1988 from Gibson to Hilgeman in which he sets out the explanation of certification of the credentials of the homeowners' association to form a committee and meet with the park owner. That was received by the park owner on September 19, 1988, in the person of Pat Montgomery. A copy of this correspondence and the certification of receipt may be found as Respondent's Exhibit No. 11 admitted into evidence. After receipt of the information concerning the certification of the homeowners' association committee, Mr. Hilgeman sent a letter to Mr. Carter on September 29, 1988, to establish a meeting. A copy of that correspondence may be found as Respondent's Exhibit No. 13 admitted into evidence. It outlines the fact that Mr. Hilgeman is sufficiently satisfied concerning the certification to have the meeting and offers a meeting prior to October 4, 1988 or after October 9, 1988, and invites Mr. Carter to consult with Pat Montgomery to establish a mutually convenient time for the meeting. A meeting was held between Mr. Murray and Mr. Hilgeman in October, 1988, in which a discussion ensued concerning whether or not Mr. Hilgeman himself would meet with the homeowners' committee. Mr. Hilgeman held firm in his attitude that his manager Pat Montgomery would be available to meet with the homeowners' committee, but that Mr. Hilgeman would not be meeting with them. As explained in the correspondence of October 14, 1988, addressed from Mr. Carter to Mr. Murray, a copy of which may be found as Respondent's Exhibit No. 14 admitted into evidence, contact was made between Carter and Montgomery and Carter was told on October 11, 1988 that a meeting would be held at 10:00 a.m. on October 14, 1988, between Montgomery and the committee. She was told by Carter that this meeting would not be acceptable unless Mr. Hilgeman was in attendance. Based upon conversations with Mr. Murray, the homeowners' association had been persuaded that it was only appropriate to meet with Mr. Hilgeman. Consequently, by this logic it was not appropriate to meet with Ms. Montgomery. A copy of this correspondence of August 14, 1988 was made available to Mr. Hilgeman. On June 7, 1989, the Petitioner brought an action against the Respondent and he sought a formal hearing which was conducted on February 22, 1990. Prior to that hearing the homeowners did have their meeting with Mr. Hilgeman on November 14, 1989, in which they were made aware of the reasons for the lot rental increase. The homeowners accepted the explanation and the idea of the increase and do not desire to pursue the present complaint against the Respondents. When Mr. Hilgeman sought certification of the credentials of the committee assigned by the homeowners association he was acting in good faith. In addition, he was entitled to look to Pat Montgomery as park operator and by consequence park owner under the definition of Section 723.003(7), Florida Statutes, to speak for him in the course of the meeting to discuss the lot rental increase. The misconception of the committee of mobile home owners concerning the necessity to meet with Mr. Hilgeman and not with his park operator, as fostered by the remarks of Mr. Murray, who lead those mobile homeowners to believe that they could only meet with Mr. Hilgeman, caused a delay in arranging the meeting. Mr. Hilgeman should not be hold accountable for that delay.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered that dismisses these actions against the Respondents. DONE and ENTERED this 18th day of April, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1990. APPENDIX CASE NO. 89-4100 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1-9 are subordinate to facts found. Although Paragraph 10 is an accurate portrayal of the meeting of August 24, 1988 between Mr. Carter and Mr. Hilgeman, it should be stated that any meeting to discuss lot rental increase was contingent upon the response to the certification request made by Mr. Hilgeman and replied to by Mr. Gibson on a date beyond the 30 day period. Paragraphs 11 and 12 are subordinate to facts found. Concerning Paragraph 13, whatever Mr. Hilgeman perceptions would be about the role of Ms. Montgomery, whether she was considered to be the same as an attorney representing or in some other capacity, in law she was a park owner and entitled to act in behalf of the park owners at the meeting. Concerning Paragraph 14, the effect of failing to respond to the request for certification within the 30 day period was tantamount to a waiver or agreement to meet at a time later. Paragraph 15 is subordinate to facts found. Concerning Paragraph 16, to the extent this paragraph suggests that the length of the meeting or breadth of detail in the explanation made by Mr. Hilgeman was inadequate, that idea is rejected in that sufficient explanation was given to comply with the requirements of law. The comments in Paragraph 17 are not relevant. The accommodation that was made between counsel was not a necessary arrangement to mitigate the circumstance in an instance where Respondent Donald L. Hilgeman had violated Chapter 723, Florida Statutes. This meeting was beneficial to the homeowners and park owners alike, but came at this late date based upon the failure of the homeowners to meet with Pat Montgomery over a year earlier. Respondents' Facts Paragraph 1 is subordinate to facts found Paragraph 2 is not necessary to the resolution to the dispute. Paragraph 3 is subordinate to facts found with the exception of those two sentences that come before the last sentence in that paragraph. Paragraphs 4 and 5 and all sentences save the last of Paragraph 6 are subordinate to facts found. That sentence is not necessary to the resolution of the dispute. Paragraphs 7 through 11 with the exception of the second sentence in Paragraph 11 are subordinate to facts found. The second sentence is not necessary to the resolution of the dispute. Paragraph 12 is subordinate to facts found. Paragraph 13 is misleading in that it intimates that Mr. Carter was derelict in his duties to make contact with Mr. Hilgeman to establish a meeting; however, the contacts that were made were in accordance with the expectations of Mr. Hilgeman and Mr. Gibson who were controlling the timing of that meeting. Paragraphs 14 through 16 with the exception of the last sentence to Paragraph 16 are subordinate to facts found. The last sentence to Paragraph 16 is not necessary to the resolution of the dispute. Paragraph 17 is subordinate to facts found with the exception of the last sentence which is not necessary to the resolution of this dispute. Paragraphs 18 and 19 are subordinate to facts found. Paragraph 20 is subordinate to facts found with the exception of the last sentence which is not necessary to the resolution of this dispute. Paragraph 21 is not necessary to the resolution of the dispute and is an inaccurate portrayal of the requirements of law as to gaining the approval of the majority of homeowners before representing them in the course of a meeting to discuss lot rental increases. Paragraphs 22 through 25 are subordinate to facts found. COPIES FURNISHED: Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Joseph A. Sole, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 David D. Eastman, Esquire Parker, Skelding, Labasky & Corry Post Office Box 669 Tallahassee, FL 32302 Susan C. Marvin Pamela Leslie Assistants General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL, 32399-1007
Findings Of Fact Oak Park Village is a mobile home park which is owned and operated by the COOPERATIVE. All of the one hundred and thirty three (133) corporate shareholders are former renters who formed the corporation in order to purchase the park from Mr. Paster and Mr. Perrault, the previous park owners. When the purchase was made, the remaining sixty-six (66) mobile home owners who rented lots within the park did not participate in the purchase. These mobile home owners remained within the park in their status as renters. The COOPERATIVE'S predecessors in title filed a mobile home park prospectus and an amended prospectus with the DIVISION, as required by law. The renters who received the initial prospectus between April 1985 and October 1986, continued their relationship with the park under this prospectus. All of the newer renters were subject to the amended prospectus, which became effective October 1986. Each prospectus contains a copy of the lease form. All of the renters had to sign a written lease before they could enter the park. The term of a lease within the park was normally for a one year period, which ended on December 31st. However, if a tenancy did not begin on January 1st of any year, the first term would end on December 31st of the year the lease was made. Each lease contains an automatic renewal clause. Unless the renter notifies the mobile park owner in writing sixty (60) days in advance of the automatic renewal on December 31st of his intention to leave the park, the lease is automatically renewed for another one year period. In the lease and in each prospectus, only the renters can prevent the automatic renewal from taking effect. On September 19, 1986, the mobile home park owners, Mr. Paster and Mr. Perrault gave written notice to the renters of their intent to increase the lot rental amount effective January 1, 1987, from one hundred and fifty dollars ($150.00) a month to one hundred and fifty six dollars and forty cents ($156.40) per month for a one year period. This advance notice gave the renters the opportunity to terminate their leases and relocate before the automatically renewal or January 1, 1987, which would include this lot rental price increase. None of the renters gave the owners a sixty (60) day advance written notice of their intention to leave the park at the end of the term. Therefore, potential purchasers were on notice that sixty-six (66) renters intended to automatically renew their written leases on January 1, 1987, for a one year term. On January 1, 1987, the automatic renewal went into effect. Under the lease terms and each prospectus, every renter owed one thousand eight hundred seventy six dollars and eighty cents ($1,876.80) as lot rent for the year 1987. The renters had the option to pay this amount in equal monthly installments of one hundred and fifty six dollars and forty cents ($156.40) over the twelve month period. However, the mobile home park owner's right to the one thousand eight hundred seventy six dollars and eighty cents ($1,876.80) vested on January 1, 1987. Contrary to the stipulation of the parties, the law and the evidence shows that written leases were in effect on January 1, 1987. On December 26, 1986, the COOPERATIVE purchased Oak Park Village. At the time of purchase, the COOPERATIVE took the property subject to the existing leases, and the automatic renewals which were inchoate on December 26, 1986, but which would become operative on January 1, 1987. After the sale was completed, Mr. Paster attempted to rescind the notice of rent increase, which was to take effect on January 1, 1987. As Mr. Paster no longer owned the property at the time he attempted this recision, he was unable to effectuate a recission. On December 30, 1986, the COOPERATIVE mailed written notices to its sixty-six (66) renters. The notices informed the renters that the rent would remain at one hundred and fifty dollars ($150.00) for three months and would then increase to one hundred and eighty seven dollars ($187.00) per month from April 1, 1987, to December 31, 1987. This came to an annual rental amount of two thousand one hundred and thirty three dollars ($2,133.00). This was an annual increase of two hundred and fifty six dollars and twenty cents ($256.20) per renter during the 1987 lease term, when the increase initiated by the prior owners is compared with the proposed increase. In comparing the notice of increase dated September 19, 1986, and the notice dated December 24, ,1986, it appears that the first three reasons listed for the proposed increases are identical. The only additional reason for an increase which is listed on the notice dated December 24, 1986, from the new owners is "Maintenance needs of the park." The notices sent by the new owners, the COOPERATIVE, were postmarked December 30, 1986, and were placed in the individual post office boxes of all of the tenants on the same day. Page twelve of each prospectus defines "notice" as follows: Unless otherwise provided by statute, administrative rule, or this Prospectus, any notice shall be deemed given by posting by first class mail or by actual hand delivery. Rule 7D-32.02(3), Florida Administrative Code, the applicable rule to these proceedings, provides as follows: Notice given by personal delivery shall be deemed given when actually delivered to the homeowner. Notice by U.S. Mail shall be deemed given five days after notice is placed in the U.S. Mail addressed to the mobile homeowner's last known address. As the prospectus and the amended prospectus both defer to the administrative rule in effect which defines the term "notice," the COOPERATIVE's notice did not occur within a ninety day period, even under the COOPERATIVE's theory of the case, as set forth in its Proposed Recommended Order.
The Issue 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.
The Issue The issue in this case is whether state use tax is due and payable on transactions wherein the taxpayer rented mobile homes to persons for use as private residences (which the lessees were required to maintain, repair, and insure), pursuant to leases under which the lessee would acquire title to his home upon payment in full of the total rent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order withdrawing the tax assessment against Park Place. DONE AND ENTERED this 25th day of June, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2004.
