The Issue Whether Rules 7D-30.04, 7D-30.06, 7D-31.01(2), 7D-31,01(4), 7D-31.01(5), 7D-31.01(12), 7D-32.01 and 7D-32.02, Florida Administrative Code, constitute an invalid exercise of delegated authority and are arbitrary and capricious?
Findings Of Fact The following findings of fact were stipulated to and are hereby adopted: The following is a Florida non-profit corporation, whose address is 115 N. Calhoun Street, Tallahassee, Florida. The FMHA is organized and maintained for the benefit of its members, which includes approximately 950 mobile home park owners and operators. A substantial portion of these members own or operate parks which contain 10 or more lots and therefore are subject to regulation by the Division of Land Sales, Condominiums and Mobile Homes, Department of Business Regulation. The Division of Land Sales, Condominiums and Mobile Homes, Department of Business Regulation is delegated the authority pursuant to Chapter 723, Florida Statutes, to regulate mobile home parks, including the powers to enforce and ensure compliance with the provisions of the Chapter and rules promulgated pursuant thereto, including the authority to impose a civil penalty against a mobile home park owner for any violation of the Chapter, or a rule or regulation of the Division. Chapter 723, Florida Statutes, was enacted by the Florida Legislature as Chapter 84-80, was signed by the Governor and filed in the office of the Secretary of State on June 4, 1984. Rules 7D-30, 7D-31, and 7D-32, Florida Administrative Code, are rules of the Division of Land Sales, Condominiums and Mobile Homes, Department of Business Regulation, which were properly adopted in accordance with Chapter 120, Florida Statutes. The Petitioner is a trade association the members of which are engaged in business in the mobile home industry in the State of Florida. The Petitioner has members who are mobile home manufacturers, retailers, equipment suppliers and servicers, owners and operators of mobile-home rental parks, developers of mobile home parks and subdivisions, insurance firms and lending institutions. The Petitioner has 1,020 members who develop mobile home parks and subdivisions or are owners and operators of mobile home rental parks. As stipulated to by the parties, approximately 950 of the Petitioner's members are owners and operators of mobile home rental parks. The Petitioner's members are involved in the rental of between 300,000 and 350,000 mobile home spaces. A substantial number of the Petitioner's members are subject to regulation by the Respondent pursuant to Chapter 723, Florida Statutes (1985), the "Florida Mobile Home Act." In July of 1984, subsequent to the effective date of Chapter 723, Florida Statutes (1985), the Bureau of Mobile Homes was created as a part of the Division of Florida Land Sales, Condominiums and Mobile Homes. Dr. Faye Mayberry has been, and continues to be, the Chief of the Bureau of Mobile Homes. Following the enactment of Chapter 723, Florida Statutes (1985), the Bureau of Mobile Homes concluded that there was a need to clarify certain portions of Chapter 723, Florida Statutes (1985), and a need to establish procedures necessary for the filing of prospectuses and other documents. Therefore, the Bureau initiated a process to determine what rules needed to be adopted. The Bureau also received numerous inquiries from mobile home owners and mobile home park owners concerning Chapter 723. The Bureau first looked at Chapter 723 in-house and looked at the nature of inquiries it had received and then drafted a conceptual approach to part of the rules. The conceptual draft, at the invitation of the Bureau, was reviewed by representatives of the Petitioner and the Intervenor. A meeting was held with the Respondent to discuss the conceptual approach. The Respondent left the meeting with the impression that the conceptual approach was not that far off. Following its discussions of the conceptual approach with the Petitioner and Intervenor, the Respondent drafted rules pursuant to Chapter 723. Four workshops, in three locations in Florida, were conducted to receive public input on the draft rules. Advance notice of the workshops was published in the Florida Administrative Weekly. Representatives of the Petitioner had notice of, and participated in, the workshops. Subsequent to the public workshops, in October of 1934, the Respondent published proposed rules under Chapters 7D-30 and 7D-31, in the Florida Administrative Weekly. In November of 1984, the Respondent published proposed rules under Chapter 7D-32. After publication of the proposed rules in the Florida Administrative Weekly, requests for a public hearing were received by the Respondent and public hearings were held. Representatives of the Petitioner attended these hearings and had an opportunity to provide input on the content of the proposed rules. Revisions were made to the proposed rules based upon suggestions from the Joint Administrative Procedures Committee and comments made by the public during the hearings held by the Respondent. The revisions were published in the Florida Administrative Weekly in January of 1985. As revised, the rules contained in Chapters 7D-30 and 7D-31, Florida Administrative Code, became effective on January 10, 1985. The rules contained in Chapter 7D-32. Florida Administrative Code, became effective on February 6, 1085. The Joint Administrative Procedures Committee did not file any challenge to the rules after they became effective. A substantial amount of input and work went into adopting Chapters 7D-30, 7D-31 and 7D-39, Florida Administrative Code. The Petitioner had notice of the promulgation of the rules at issue and has been involved in the development and distribution of information it believed was necessary to assist its members in complying with the requirements of Chapter 723. The Petitioner has distributed memoranda, conducted seminars, distributed prospectuses and communicated with representatives of the Respondent in an effort to assist its members in complying with the requirements of Chapter 723. The Petitioner provided definitions of terms for use in prospectuses and notices required by Chapter 723 and for use in complying with the Respondent's rules. The Petitioner has attempted to assist its members in preparing a prospectus which could be filed with the Respondent and would meet the requirements of Chapter 723. Toward this end, the Petitioner prepared a sample or model prospectus and conducted a seminar on the model prospectus on December 17, 1984. The seminar was conducted in Orlando, Florida, and was attended by over 600 people. In the model prospectus the Petitioner provided three alternative methods of providing for future rental increases to be included in a prospectus. The model prospectus discussed at the December 17, 1984 seminar was for use by those mobile home parks with 100 or more rental spaces. The Petitioner also prepared a model prospectus for mobile home parks with 26 to 99 rental spaces which it distributed in June of 1985. This model prospectus was sent to all members of the Petitioner. A large number of the Petitioner's members used the model prospectus prepared by the Petitioner. Information provided to members by the Petitioner was developed by the Petitioner based in part upon its discussions with the staff of the Respondent. The Petitioner received questions from its members concerning certain aspects of the Respondent's rules and Chapter 723 which the Petitioner attempted to answer. A substantial number of the Petitioner's members advertise their mobile home parks. Mr. Neil Kullman is a member of the Petitioner and is the President of Florida Leisure Communities. Florida Leisure Communities owns and operates 3 mobile home parks in Florida. Florida Leisure Communities waits for the Respondent to approve advertising materials it files with the Respondent because it has decided that it does not want to risk using an advertisement which may be found to be defective by the Respondent. Florida Leisure Communities does not wait for approval of its advertisements by the Respondent because it believes that it is required to do so by the Respondent's rules. Time delays have been experienced in getting advertisements approved. A substantial number of the Petitioner's members have rental agreements in existence at mobile homes parks which have anniversary dates or renewal dates which would allow increases in rent. Most of the rental agreements have renewal dates or anniversary dates of July 1 or January 1. The Petitioner provided information to its members in March of 1985 and August of 1985 concerning the Petitioner's understanding of what constitutes an effective notice of lot rental increase. In explaining how members can provide a concise explanation of the reason for a proposed lot rental increase, the Petitioner told its members the following in a memorandum distributed in March of 1985: You need only to provide a concise explanation of the reason for the proposed change. Be brief! You should only include a list of factors (for rent increases), or a short plain statement for the change in services or rules or regulations. Important! As for rent increases, the rule limits the factors you may consider to those specifically identified in the prospectus. If the homeowners go to mediation or arbitration, or to court, then only those factors identified in the prospectus can be used to justify the reasonableness of the increase. Also, you should only place on the notice of increase the category of factor used to determine the rent increase level. For example: Operating costs; Prevailing market rent; Prevailing economic conditions; or Consumer Price Index (CPI). Be sure to list only those factors which are necessary to fully justify the rent increase. In August of 1985 the Petitioner provided the following guidance to its members with respect to how to provide a concise explanation of the reason for a lot rental increase: 4. You need only to provide a concise explanation of the reason for the proposed increase. Be brief! You should only include a list of factors, or a short plain statement of the reason or reasons for the increase. For example, a response might be: "The reasons for the increase are increased operating costs, prevailing market rent, and prevailing economic [sic] conditions, as set forth in the prospectus." You need not to go [sic] into great detail as to the specific costs which may have increased during the course of the year which you may want to take into consideration, or do you need to explain what is intended to mean [sic] by prevailing market rent or prevailing economic conditions. You need only to include a concise explanation of the reasons for the increase. The recommendation of the Petitioner to its members concerning how to provide a concise explanation of an increase in lot rental was basically that the member refer to factors which might cause a rental increase as provided in the member's prospectus. In the model prospectus recommended by the Petitioner to its members in June of 1985, the Petitioner recommended that the following explanation of the manner in which lot rental could be increased should be used by its members: is as follows: Increase in Lot Rental The manner in which lot rental will be increased, Definitions. As used in this Section VIII: "Lot rental" means all sums paid or to be paid by the mobile home owner in consideration of leasing or renting a mobile home lot or lots in the Park. Such sums include any and all rents, special use fees, pass-through charges, installation and set-up charges, and other fees, charges and assessments imposed by the Owner. "Special use fees" mean those separately itemized amounts for specific services or privileges which are charged in addition to rent, including, but not limited to, such charges as guest fees, pet fees and entrance fees. "Pass-through charges" are defined as those amounts, other than special use fees, which are itemized and charged separately from the rent and which represent the mobile home owner's share of costs charged to the Park Owner by any state or local government or utility company. Notice of Increase. The mobile home owner shall be notified of any increase in the lot rental at least 90 days prior to the effective date of such increase. Lot Rental-Increases. General. The lot rental and each of the categories of charges current Iv or hereafter comprising a part of the lot rental are subject to periodic increases by the Owner. However, except for increases resulting from the imposition of pass-through charges, the lot rental will not be increased more frequently than annually, except for initial tenancies which commence after the beginning of the annual rental term. Factors Affecting Increases. Factors which may affect the level of increases in lot rental are as follows: Increased costs, which refers to any increases experienced by the Owner since the delivery of notice of the last increase in the lot rental in the total costs arising out of the ownership, operation and management of the Park. Prevailing Market Rent--Refers to the lot rental imposed in mobile home parks comparable to this Park, or the lot rental willingly paid from time to time by new residents of this Park. A park will be deemed comparable if it is located in the same general vicinity as this Park, and offers similar densities, amenities and services. Prevailing Economic Conditions--are intended to refer to those factors which bear on the economic viability of a real estate investment and which would be considered by a prudent businessman in establishing the base rent and other charges or any increase in the amount thereof. These factors may include: the costs attendant to the replacement of this Park in the economic environment existing at the time of any rental increase, including land acquisition costs, construction costs, and losses associated with the operation of a park prior to full occupancy, and the level at which the lot rental must be established in order that the Park Owner will realize a reasonable return on the costs referred to in this clause (1); the level of interest rates and other financing charges associated with construction, interim and permanent financing; (3) the availability of alternative forms of real estate investment capital; (4) the levels of the Consumer Price Index, defined as the United States Department of Labor, Consumer Price Index, U.S. City Average--All Urban Consumers, 1967 100, or, in the event of the discontinuation of publication of the Consumer Price Index, then an alternative index which has been reasonably related to the Consumer Price Index in evaluating economic conditions, and which has been, or can reasonably be expected to be, generally accepted as a replacement index for the Consumer Price Index; (5) the level at which the lot rental must be established in order that the Owner will realize a reasonable return on the "Owners's Equity"; for this purpose, the "Owner's Equity" refers to the fair market value of the Park from time to time, less existing mortgage indebtedness; (6) other economic factors which might reasonably be expected to affect-either the value of the Park, the rate of return available to the Owner of the Park at the existing level of rent, the present value of the real estate investment in the then current economic conditions, and which would be taken into consideration by a prudent businessman in considering the amount of rental increase required in the Park in order -to realize a rate of return similar to other at risk real estate ventures from the then current value of the Park. To the extent permitted by law, the mobile home owner may also be required to bear, in the form of increases in the lot rental, the costs incurred by Owner in installing capital improvements or performing major repairs in the Park. Additional Considerations The reasons for the increase in lot rental or other fees and charges will be set forth in the notice of increase. Only those factors set forth in the notice will be relied upon by the Park Owner as justification for the rent increase. The Park Owner reserves the right to amend this Prospectus or any Exhibit thereto from time to time to the extent permitted by law to conform with changes in relevant statutory provisions or changes in relevant rules of the Department of Business Regulation, or any other agency having jurisdiction over the operation of this mobile home park. An increase in one or more of the above- described factors may result in an increase in the mobile home owner's rent or other charges. Tenants assuming the remaining portion of a tenancy as prescribed by Section 723.059(3), F.S., are hereby notified that upon the expiration of the assumed tenancy, the Park Owner expressly reserves the right to increase lot rental amount in an amount deemed appropriate by the Park Owner with such increase being imposed in the manner disclosed in the Prospectus delivered to the initial recipient. A number of the Petitioner's members used the notice of lot rental increase recommended by the Petitioner and the portion of the prospectus quoted in finding of fact 33. The Respondent advised some of the Petitioner's members that the notice recommended by the Petitioner was deficient under the Respondent's rules. The notice was deficient because the Respondent determined that the notice did not provide a concise explanation of the reason for a lot rental increase. The notice used by several members of the Petitioner stated that the reason for the increase was "prevailing market conditions and economic conditions." The Respondent notified members that used this explanation that it was deficient. The Respondent also told those members that "the explanation must include the specific changes in the factors described in the prospectus under prevailing market conditions and economic conditions which were the reasons for the change." The Petitioner challenged the Respondent's interpretation of its rules concerning notices in Leon County Circuit Court. The Court advised the parties to work things out following a preliminary injunction hearing. Representatives of the Petitioner and the Respondent met and discussed the problem with the Petitioner's notice and the Respondent subsequently indicated that several examples of a concise explanation for lot rental increases proposed by the Petitioner were acceptable. The method of increasing rent provided in existing rental agreements at various mobile home parks varies. Because existing tenants have different anniversary dates or renewal dates, if notice of a lot rental increase affecting some tenants is given to all tenants of a park, it is more costly to the park owner. It is possible, however, to mail one notice of rental increase to all tenants of a park at the beginning of each year. Florida Leisure Communities has filed a prospectus for all three of its mobile home parks in Florida. The prospectuses have been approved by the Respondent. At the Colonnades, a Florida Leisure Communities park, 156 lots have been completed and 19 of those lots have been occupied. Improvements to be made by Florida Leisure Communities are specified in the prospectus for the parks. In order to keep pace with market conditions and provide different improvements, a new prospectus has to be filed with the Respondent. At Brittany Estates, another Florida Leisure Communities park, after a prospectus had been distributed to all tenants, a tornado destroyed 50 mobile homes. Most of the tenants of the 50 homes voluntarily terminated their leases. Mr. Bernie Covington is vice-president and director of the parks of Angeles Real Estate Management Company (hereinafter referred to as "Angeles"). Angeles owns and operates 13 mobile home parks in Florida. Angeles has filed a prospectus for Heritage Village, a 436 site park. The prospectus had not been approved or distributed as of the date of the hearing of these cases. Heritage Village owns and operates its own sewage treatment plant and water system. Heritage Village will be required, however, to tie into the County's water and sewage system at substantial costs. Existing leases with tenants of Heritage Village allow the park to pass the impact fees ($1,250.00 for sewage and $1,149.00 for water, per site) and the cost of tieing into the force main ($30,000.00 to $35,000.00) on to the tenants. The cost of tieing into the force main may not be passed on to the tenants under the Respondent's rules, however. Angeles has also filed a prospectus for Pleasant Living Mobile Home Park which has 218 tenants. The prospectus had not been approved or distributed as of the date off the final hearing of these cases. Angeles would now like to provide a secure area for storage of boats, RVs and cars and charge a fee for this service. The prospectus being reviewed by the Respondent, however, does not indicate that a secure area will be provided.
The Issue Whether the amount collected from the tenants of Corley Island Mobile Manor by the Respondent for improvement and repairs to its sewage treatment plant was a "pass-through charge" as defined in Section 723.003(10), Florida Statutes, or was it collected as a matter of custom between the mobile home park owner and the mobile home owner or disclosed prior to tenancy in accordance with Section 723.031 (6), Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Petitioner is the state agency governing the landlord tenant relationship in mobile home parks subject to Chapter 723, Florida Statute. The Park is, and at all times pertinent to this proceeding, has been a mobile home park subject to Chapter 723, Florida Statutes. The Park is owned equally by Respondents, Dale B. Downing, R. E. Downing and H. W. Whitcomb. The Park is operated under the name of Corley Island Mobile Manor. The Park's wastewater is handled through a package treatment plant owned and operated by the Respondents (the WWTF). Under its original configuration, wastewater entered the WWTF through an aeration tank. The Park utilized two separate aeration tanks where the wastewater was agitated and allowed to come in contact with oxygen and enzymes. This started the treatment process. After the wastewater flowed through the first and the second aeration tanks, it spilled into a clarifier. The clarifier is a quiet tank where solids are allowed to settle into a hopper shaped bottom for removal or additional treatment. The clear wastewater at the top of the clarifier flows into a chlorine contact chamber and then out to percolation ponds which allow the wastewater to filter into the ground water through the bottom of the ponds. Prior to November of 1987, the Park was experiencing increased flows of wastewater through the WWTF. The Respondents first investigated the collection system for the infiltration of ground water into the system. The Park also inspected the mobile homes and fixed any leaky faucets, toilets, etc. The Respondents retained Altair Maintenance to examine the collection system using television cameras and to make necessary repairs. On July 8, 1983, Altair Maintenance invoiced the Park for $3,450.00 for these services. Altair Maintenance was called back for additional work in December of 1985 for the repair of manholes at a total charge of $4,124.25. Altair was again called on July 1, 1992 for maintenance of the WWTF at a cost of $1,898.75. Extensive repairs to the manholes and other parts of the WWTF were completed by Roto-Rooter Plumbing. Roto-Rooter was paid $24,090.00 for a May 13, 1983 invoice and $5,891.50 for a July 22, 1983 invoice. Even further repairs to the Park's WWTF were made by Superior Asphalt. It was paid $3,413.00 for replacement of a manhole. The above-described sums were not charged to the residents of the Park. In spite of the maintenance activities described above, the Park continued to experience problems with increased wastewater flows into the WWTF. During peak flow hours (approximately 11:00 A.M.) the normally clear wastewater flowing out of the clarifier into the chlorine contact chamber would become cloudy. This wash through of solids resulted from increased flows during peak flow hours. Wastewater would not remain in the clarifier for a sufficient period of time for the solids to settle out. These solids would spill out of the clarifier or "wash through" causing the wastewater flowing into the chlorine contact chamber to become dark due to the heavy solids content. The agency of state government having jurisdiction over the permitting and operation of wastewater treatment facilities is the Department of Environmental Regulation ("DER"). On November 3, 1987, the DER issued a warning notice to the Park because of an abnormally high amount of solids content and a high BOD level in the wastewater flowing from the WWTF. The DER issued a notice of violation on the same grounds on December 1, 1987. The agency of local government having jurisdiction over the WWTF is the Lake County Pollution Control Department. Respondent, Dale Downing, spoke with an employee of the Lake County Pollution Control Department, Roy Green, to determine the measures necessary to resolve this "wash through" of solids. Green told Dale Downing that he would not be able to make the plant perform unless the Park modified the WWTF by adding a digester and surge tank. A digester is a holding tank for solids, a by-product of the treatment process. Solids remain in the holding tank until removed by a removal service. A surge tank is a large tank placed at the front of a wastewater treatment facility which catches the initial inflow of wastewater. Regardless of the rate of flow into the surge tank, pumps release the wastewater from the tank at a uniform rate. A surge tank allows an operator to balance the flow of wastewater through the WWTF eliminating these peak flow problems. The DER permit for the Park's WWTF was due to expire in January of 1988. The Respondents applied for a new permit but were told that the standard five year operating permit could not be issued because of the warning notices and notices of violation the Park had received because of high suspended solids and BOD levels in the effluent. The DER suggested that the Park get a temporary permit while corrections were being made to bring the plant up to performance standards. Respondent, Dale Downing, traveled to the DER's office in Orlando for a meeting with its permitting supervisor, Lee Miller. Miller confirmed that the Park's only options to alleviate its WWTF problems were a connection to the City of Leesburg's municipal system or the addition of a surge tank and digester to the existing plant. The Park's engineer, Richard Newman, prepared plans and specifications for the addition of a surge tank and digester to the WWTF which were submitted to the DER for approval. The DER accepted the modifications on the condition that the Park eliminate its single-cell percolation pond and construct a two-cell percolation pond system. The modifications were completed by the Respondents. As a result, the DER issued a standard five year permit. The WWTF has been trouble free since the modifications were placed in service. The actual expenses necessary for the plant modifications and the construction of the two-cell percolation ponds were passed through to the Park residents. The total costs of these improvements were divided by the Park's 151 lots and charged to each resident on a pro rata basis ($61,644.31/151= $408.24). The Respondents considered this charge as a "pass-through charge". The maintenance, or lack of maintenance, of the Park's WWTF had no impact on the need for the modifications (capital improvements) to the Park's WWTF. There is competent substantial evidence to establish facts to show that the capital improvements, including the two-cell percolation pond, made to the Park's WWTF by the Respondents were governmentally mandated in that DER would not have granted a permit to the Respondents for the operation of the Park's WWTF without these minimum capital improvements. And, the costs of such capital improvements come within the definition of "pass-through charges" as defined in Section 723.003(10), Florida Statutes. The prospectus for the park discloses in Article VIII that each resident's lot rental amount could be increased to recover the cost of the modifications to the WWTF.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order dismissing the Notice To Show Cause filed in this case and any enforcement action against the Respondents. RECOMMENDED this 1st day of June, 1993, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5692 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. Proposed Findings of Fact 1 through 4, 8 through 13 and 15 through 21 are adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant or immaterial. Proposed Findings of Fact 5 through 7 and 14 are rejected as not being supported by competent substantial evidence in the record. Respondent's Proposed Findings of Fact. Proposed Findings of Fact 1 through 26 and 28 through 35 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant or immaterial. Proposed Findings of Fact 27 and 28 are covered in the Preliminary Statement and Conclusions of Law, respectively. COPIES FURNISHED: E. Harper Field, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 J. Allen Bobo, Esquire LUTZ, WEBB, PARTRIDGE, BOBO & BAITTY, P. A. Suite 504, One Sarasota Tower Two North Tamiami Trail Sarasota, Florida 34236 Janet Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Henry M. Solares, Director Division of Florida Land Sales, Condominiums And Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Donald D. Conn, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue A Notice to Show Cause issued on May 5, 1989, alleges that Respondent violated Sections 723.031(5) and (6), F.S. by increasing mobile home park lot rentals on January 1, 1987 and on October 1, 1987, and by collecting charges for water, sewer and waste disposal from at least one homeowner when such charges were not disclosed prior to tenancy. If it is determined that those violations occurred, it is necessary to recommend an appropriate penalty and corrective action.
Findings Of Fact At all times relevant to these proceedings, Alfred Herrick has been the park owner of Tan Tara Mobile Home Park, which is located in Melbourne, Florida. Respondent purchased the park in 1980. Eighty-four (84) lots are offered for rent or lease in the Tan Tara Mobile Home Park. Seventy-eight (78) lots are offered to tenants who own their home. Nineteen (19) lots were leased on or after November 1, 1986. The proposed prospectus for the Tan Tara Mobile Home Park was filed with the Division on September 13, 1985. The prospectus was deemed adequate to meet the requirements of Chapter 723, Florida Statutes on December 23, 1983. The prospectus was delivered to homeowners after January 1986. The prospectus review by the Division determines adequacy with Chapter 723, Florida Statutes. The prospectus is not reviewed to determine consistency with rental agreements or disclosures made to homeowners. Park owners are advised that approval of the prospectus by the Division does not relieve the park owner of any requirements under the law. The park owner determines the contents of the prospectus. Homeowners have no input as to the contents of or in the review process of the prospectus. The prospectus for Tan Tara Mobile Home Park contains a number of disclosures, as required by 723.012, F.S., relating to the mobile home park property, and sets out the terms and conditions of the rental agreement between the park owner and individual tenants of mobile home park. Included in the prospectus is the disclosure of all of the charges which may be charged by the park. Paragraph VII. UTILITY AND OTHER SERVICES, provides the following relevant disclosures: Water - Treated drinking water is provided by the City of Melbourne Utilities and is provided to each mobile home site. The charges for this service is [sic] currently included in the tenants' total monthly rental fee. * * * Sewage - Sewage disposal is provided by the City of Melbourne Utilities. The charges for this service is [sic] included in the tenants' monthly rental fee. * * * Waste and trash disposal - The collection of garbage and trash is provided by the City of Melbourne Utilities and is provided for each mobile home. The charge for this service is currently included in the tenants' total monthly rental fee. ... Paragraph VIII. RENT, RENTAL INCREASES AND OTHER CHARGES, provides the following relevant disclosures: The base rent and other charges applicable to your lot are effective January 1, 1985, as reflected in this section. The "base rent" refers to the regular monthly rent established by the Park Owner from time to time. The base rent is subject to annual rent increases effective each January 1st, after ninety (90) days notice from the Park Owner or Management of such increase. * * * "Other charges" refers to "special use fees" and "pass through charges". SPECIAL USE FEES refers to those separately itemized amounts charged in addition to the base rent for those specific items hereinafter set forth. The following special use fees are in effect within the park: Owner reserves the right to charge an Entrance or "Move-in" fee. The present amount charged for this fee in the Park is $1,000.00. Late rental payment fee of $10.00 after the fifth day of the month and $2.00 per day thereafter. Return check charge of $10.00 for each check not honored by the banking institution upon which the check is drawn. An additional charge of $5.00 per month for each and every person over two occupying a mobile home. Extra visitor and/or guest charge of $2.00 per person per day staying more than 15 consecutive days or 30 days total. Lawn maintenance fee, including mowing, edging, and trimming, in the amount of $10.00 for each required maintenance. If it becomes necessary for Management to place the Tenant' s garbage in proper containers, there will be an additional charge of $5.00 assessed to the Tenant for each occurrence. An additional charge of $5.00 per month for a Tenant's washing machine due to the extra water usage caused by the washing machine and also sewerage charges. For the purchaser, there will be a registration fee of $75.00 for investigating any proposed new Tenant into the Park. A new Tenant nonrefundable application fee of $75.00 for investigating any proposed new Tenant into the Park. A garbage and trash "removal" fee not included in the normal garbage or waste removal, of a minimum of $5.00, the exact charge to be determined by Park Management based upon size and weight of such excess refuse so removed by Management. Additional copies of the Prospectus are available at the park Off ice for Tenants requesting same for which there is a charge of $50.00 for each additional copy requested. Pet fee of 5.00 per pet per month. Skirting area clean up minimum fee of $20.00 if tenant fails to do this. * * * PASS THROUGH CHARGES, means those amounts other than special use fees, which are itemized and can be charged separately from the base rent and which represents the mobile home owner's share of cost charged to the park Owner by any State or local government or utility company. These charges will be passed on to the Tenant(s) on a pro rata basis. ("Pro rata basis" means that percentage derived by dividing the number of mobile home spaces leased by a resident by the total number of occupied mobile home spaces in the park.) The pass through charges which may be passed on to the Tenant(s) are as follows: Water charges or increases in same; Sewer charges or increases in same; Waste disposal charges or increases in same; * * * I. Replacement utility costs charged to the Park Owner by State or local government incurred as the result of the actions of any utility company for any utility or other services not provided or available to park residents on the delivery date that replaces, in whole or in part, any utility or other service that is provided or is available to park residents on the delivery date. * * * The above-mentioned pass through charges and costs which are billed by either the State or local governmental entities or utility companies may be passed through to the Tenants after providing at least ninety (90) days advanced written notice to all Tenants. The amount of an increase in pass through charges shall be limited to the increased costs or charges billed to the park owner by the State or local governmental agency or utility company plus any maintenance and administrative costs related to same as is permitted by 723.045, Florida Statutes. * * * (Petitioner's Exhibit #2, pp 11, 61-66, emphasis added) On September 2, 1986, Mr. Herrick gave a notice to all residents within the Tan Tara Mobile Home Park of a "base rent" increase effective January 1, 1987. On June 23, 1987, Mr. Herrick gave a notice of a pass through charge effective October 1, 1987. The notice provided for billing each tenant for the actual usage of water, sewer and waste disposal. In addition, the notice provided that the extra charge for washing machines would be eliminated effective October 1, 1987. Further, the notice indicated that due to the charges for water, sewer and waste disposal becoming effective October 1, there would not be a base rent increase on January 1, 1988. The cost of providing water, sewer and waste disposal, prior to October 1, 1987, had been included in the base rent charged by Tan Tara Mobile Home Park. Mr. Herrick calculated that the portion of base rent for those utilities was $12.50 for each lot. Individual water meters were installed and beginning October 1, 1987, the park owner began assessing all homeowners in the park for water, sewage and garbage based on individual usage. This cost was in addition to the base rent. The park owner also began assessing each homeowner two dollars and fifty cents ($2.50) per month, for meter reading Beginning January 1, 1989, Herrick started deducting from the base rent the $12.50 previously computed for utilities. He then continued to add on the utility charge based on the individuals meter reading. Bonnie and Reginald Charron are residents of Tan Tara Mobile Home Park. They first assumed occupancy in the park in 1982, leasing lot number 18. At that time they were given the park rules and regulations marked Petitioner's Exhibit 6. No disclosures regarding water, sewage, and garbage were made prior to occupancy. On or after August 30, 1984, the Charrons moved to lot 23. No other disclosures were made regarding the homeowners' obligation to pay for water, sewage or garbage. The prospectus was delivered to the Charrons on January 25, 1986. Since assuming occupancy in the park, the Charrons have been continuous residents and have not been evicted pursuant to Section 723.061, F.S. The Charrons paid fifteen dollars ($15.00) extra per month for their three (3) children plus five dollars ($5.00) per month for the washing machine. Mrs. Charron was advised the five dollars ($5.00) per person was required to cover the cost for extra water and sewage being used by those persons. When the Charrons began to pay for water, sewage and garbage based on individual usage) the fifteen dollars ($15.00) per month was never deducted from the base rent. Since October 1, 1987, the Charrons cost for water, sewage, and garbage has exceeded twelve dollars and fifty cents ($12.50) per month. Peggy E. Headley is a resident of Tan Tara Mobile Home Park. She moved into the park in September of 1982. On August 23, 1982, she was given the park rules and regulations marked Petitioner's Exhibit 8. No other disclosures were made regarding her obligation to pay for water, sewage and garbage. The prospectus was delivered to Mrs. Headley on January 25, 1986. Mrs. Eddie Walters is a resident of Tan Tara Mobile Home Park. She moved into the park in May of 1977. At that time, she received a copy of the park rules and regulations. On January 16, 1986, she received the prospectus. Respondent stipulated that water, sewage, and garbage charges have not been collected from homeowners as a matter of custom. It is undisputed that prior to occupancy in the mobile home park, the tenants listed above did not receive a disclosure from the park owner that they would be responsible for paying pass through or pass on charges as defined in the park prospectus. The rules and regulations which were in effect in the park were amended at various times, and at various times provided that water would be included in the base rent and/or that the park owner may charge separately for water. The set of rules and regulations attached to the prospectus provided that the management reserved the right to assess "pass through charges", including for water, on a pro rata basis. "Pro rata basis" is defined in the rules and regulations in the same manner as defined in the prospectus: "...that percentage derived by dividing the number of mobile home spaces leased by a resident by the total number of occupied mobile home spaces in the park." (Petitioner's Exhibit #2, p. 73) Neither the prospectus nor the rules and regulations provide for collection of water or other utilities based on individual usage. Oral lot rental agreements are in effect in Tan Tara Mobile Home Park. No written lot rental agreements have ever been executed between homeowners and the Respondent or prior park owners of Tan Tara. The term of the oral lot rental agreements is one year and begins January 1 of each year. Respondent has not been required by any governmental agency to install individual water meters or assess homeowners based on usage. However, an official with the City of Melbourne Water and Sewage Operations recommended installing individual meters as a means of finding out where the water was going. Herrick had contacted the city regarding high water and sewer bills. After the meters were installed the city noted an average monthly reduction of 173,200 gallons of water at the park. Water charges within the park are determined by reading individual meters which are located on each individual lot within the mobile home park. The meter readings are forwarded to New York, where Mr. Herrick maintains his residence and main business. A bill for water usage is sent from New York to each tenant and the payment is received in the New York office. Water usage records are kept each month by the New York office in order to determine water usage and the appropriate billing rates for water and sewer for individual residents.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered finding that Alfred Herrick, d/b/a Tan Tara Mobile Home Park violated Section 723.031(5), F.S., and requiring that: Respondent immediately cease assessing homeowner for utilities based on individual usage, and Respondent reimburse to each homeowner all sums collected since October 1, 1987, for utilities over and above that sum that would have been collected under a "pro rata" computation as described in the prospectus and park regulations. This latter computation should credit the homeowners for the $12.50 collected each month from October 1, 1987 until January 1, 1989. DONE AND RECOMMENDED this 15th day of March, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 15th day of March, 1990. COPIES FURNISHED: Debra Roberts Asst. General Counsel Dept. of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 David D. Eastman, Esquire P.O. Box 669 Tallahassee, FL 32302 James Kearney, Director Dept. of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1060 Joseph A. Sole General Counsel Dept. of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000 Stephen R. MacNamara Secretary Dept. of Business Regulation The Johns Building 725 S. Bronough St. Tallahassee, FL 32399-1000 =================================================================
Findings Of Fact Continental Country Club is a residential subdivision consisting of several mobile home lots located in Wildwood, Florida. Each of the residents in the subdivision owns his or her mobile home and, although some residents lease their lots from Continental Country Club, Inc., the great majority of the residents own lots in the subdivision which were purchased from Respondent, or its predecessors, and upon which the residents' mobile homes are placed. This administrative action relates solely to the individuals owning lots in the subdivision. All of the property in the Continental Country Club subdivision is subject to an instrument entitled "Amended and Restated Declaration of Restrictions," recorded on January 27, 1975, in the Public Records of Sumter County, Book 160, page 315 (Exhibit A). The only modification to the declaration referenced in paragraph 3 above is a document dated September 9, 1983, which applies only to certain lots and is entitled "Amendment to Amended and Restated Declaration of Restrictions" (Exhibit B). The Respondent, Continental Country Club, Inc., is the current developer of Continental Country Club and has succeeded to the rights of Continental Country Club Community, Inc., the previous developer of the subdivision. At all times material to this proceeding, Respondent owned and operated a portion of the Continental Country Club subdivision, or amenities exclusively serving the subdivision, including a marina, streets, street lights, and drainage facilities. Exhibit C contains a true and correct graphical description of the Continental Country Club subdivision. Prior to March 1, 1985, each lot owner was required to pay a monthly maintenance charge of sixty-five dollars ($65.00) as provided in paragraph 3 of the Amended and Restated Declaration of Restrictions (Exhibit A). On or about February 20, 1985, in accordance with paragraph 3 of the Amended and Restated Declaration of Restrictions, Respondent mailed a notice to the lot owners in the subdivision (Exhibit D), advising them that effective March 1, 1985, the monthly maintenance charge would be one hundred thirty-five dollars ($135.00). This was the first notice the lot owners received regarding the increase in maintenance fees. On or about July 8, 1985, Respondent sent the lot owners a letter regarding maintenance charges (Exhibit E). On or about July 12, 1985, Respondent, through its attorney, Chris Ford, mailed another letter to the lot owners (Exhibit F). The fact that the above-referenced July 8 and July 12 letters, regarding the notice of increase in maintenance charges, were mailed to each of the lot owners is not at issue in this case. Subsequent to mailing the above-referenced letters, Respondent has billed lot owners at Continental Country Club for maintenance charges at a monthly rate of one hundred thirty-five dollars ($135.00) effective June 1, 1985. Pursuant to the declaration of restrictions (Exhibit A), Respondent has sent notices of intent to file liens and has recorded liens against lots in the subdivision based upon the failure of the lot owners to timely pay the increased portion of maintenance fees charged after June 1, 1985. Rules and regulations for the Amended and Restated Declaration of Restrictions are as contained in Exhibit G. All lot owners at closing were given a copy of the declaration of restrictions (effective December 16, 1974, Exhibit 3). Paragraph 3 thereof provides for owners to pay monthly maintenance charges which "shall be subject to adjustment at any time during the term hereof and shall be effective as far as each owner is concerned upon receipt of an invoice containing a new maintenance charge." These purchasers were also told that the covenants and restrictions outlining the duties and responsibilities of the developer and lot owners ran with the land and followed the property to subsequent purchasers. The warranty deed to the lot purchased conveyed these lots subject to "covenants, conditions, restrictions, rules and regulations of record, together with amendments thereto" (Exhibit 4.) Two lot owners testified in these proceedings that they did not recall receiving a copy of these covenants and restrictions at closing but both of them signed an acknowledgment that they had received a copy at closing (Exhibits 5 and 8).
Findings Of Fact Michael Weiss is part owner of Suncoast International, Inc. and general manager of the corporation's only business, a trailer park in Flagler County known as Flagler by the Sea Mobile Home Park. At all pertinent times, the park has leased or offered for lease a total of 44 mobile home lots. In mid-1985, Mr. Weiss received a letter from petitioner Department of Business Regulation (DBR) informing him that park owners were required by law to prepare and distribute prospectuses to mobile home tenants. Efforts to draft a prospectus meeting petitioner's approval began in August of 1985. After several revisions, the petitioner approved a prospectus on June 13, 1986, No. 1802171P, for all lots. Mr. Weiss received written notice of approval, together with a copy of the prospectus to which it pertained, with attachments, on June 26, 1986; and promptly arranged for a copier to produce 50 uncollated copies of everything received from the petitioner, see Petitioner's Exhibit No. 1, including the cover letter. With the assistance of Mr. and Mrs. Whaley, who worked for the company at the park, he tried to assemble at least 44 complete sets of these materials. In late May of 1986, Mr. Weiss had given all tenants notice by registered mail of his intention to raise rents, effective September 1, 1986. Realizing he needed to distribute prospectuses before any rent increase, he had simultaneously informed tenants that a then current (but unapproved) version of the prospectus was available for inspection. Respondent's Exhibit No. 5. Hand Delivery As instructed, Ms. Whaley encouraged tenants to pick copies of the prospectus up when they paid their rent. She kept a list of persons to whom she distributed copies of the prospectus. Part of the list survived and has been received in evidence. Respondent's Exhibit No. 2. One tenant, Mary Oetken, received a copy of the approved prospectus on July 29, 1986. But the prospectus given to Ms. Oetken did not contain rules and regulations, a copy of the lot rental agreement, a lot layout plan, or the number of her lot. Ms. Oetken already had a copy of her lot rental agreement, and park personnel customarily distributed copies of rules and regulations to each tenant, before tenancies began. On August 29, 1986, another tenant, Betty Marinoff, wife of Peter, received a copy of an approved prospectus. Before September 1, 1986, Ms. Whaley hailed Mr. Philip H. Bird, and handed him a copy. Whether these copies of the approved pro-spectus included all attachments the evidence did not disclose. Robert Onusko, who has leased a lot in Flagler by the Sea Mobile Home Park continuously since August of 1981, has had a copy of the park's rules and regulations since he moved in. As did all other tenants, he paid increased rent beginning September 1, 1986. Although Mr. Onusko himself received no copy of an approved prospectus until January of 1989, Petitioner's Exhibit No. 7, Angela Whaley gave his daughter Marilyn a copy of the prospectus when Marilyn paid rent in July or August. Taped to Doors Not all tenants were then in residence at the park. About half lived there full time. (T.127) With respect to lots whose lessees were away, Mr. Weiss directed Mr. and Mrs. Whaley to tape copies of the prospectus on trailer doors. "That was common procedure with late payments or whatever . . . " T.112. In mid-August of 1986, Ms. Whaley told him that prospectuses had been distributed for each lot, either by delivery to a tenant or by posting. Clarence Rainey leased a lot from 1977 to 1989 at Flagler by the Sea Mobile Home Park, where he lived part of the year, returning to Illinois in the summer. Told by a neighbor that they were available, he asked for and received a prospectus in November of 1986. He had not received one earlier. With her husband Roger, Madeline DuJardin resided at Flagler by the Sea from February of 1979 until February of 1988. She did not get a copy of the approved prospectus before the rent increased on September 1, 1986, from $125.00 to $150.00 per month. Neither Mr. and Mrs. Rainey nor Mr. and Mrs. DuJardin received copies when they were originally distributed. Their trailers were among those to which copies were taped, weeks or months before their return in cooler weather. Charles A. Bond, who shared a trailer with a half-brother, resided at Flagler by the Sea from November 21, 1985, until December 31, 1988. While he lived at the park he never received a prospectus. Brothers surnamed Karcher each leased lots from respondent. Ms. Whaley gave one Mr. Karcher a copy of the approved prospectus, before September 1, 1986. But Richard Karcher, who in those days only spent a week at a time in the park, at intervals of several months, did not receive a copy of the approved prospectus before the rent increased. Richard Karcher had obtained a preliminary draft of the prospectus, but it differed in important respects from the draft which was eventually approved. In June of 1988, he obtained another copy of the prospectus, the copy, he testified, which he gave DBR's investigator, which also differs in important respects from the approved version. Attached to the copy Mr. Karcher gave DBR's investigator was a set of the park rules and regulations. It is not clear whether Ms. Whaley told Mr. Weiss that she had taped an approved copy to Mr. Richard Karcher's door. (T. 126, 128) Change of Law Effective July 1, 1986, statutory changes altered prospectus requirements. Petitioner mailed advice concerning the new requirements when it sent out annual fee statements to mobile park owners. Mr. Weiss did not personally receive this advice nor any written notice of the nine workshops petitioner conducted in August of 1986 to acquaint park owners with the statutory changes. Although approved a few days earlier, respondent's prospectus did not conform to all the new requirements. In early 1988, Mr. Weiss heard from Gloria Thompson, a DBR employee in its Tampa office, in connection with a complaint filed by Charles Jagde, the same person whose complaint led to the investigation that gave rise to the present proceedings. Ms. Thompson found no violation on the original complaint. Respondent's Exhibit No. 6. Eventually Mr. Weiss learned that revisions to prospectus No. 1802171 were necessary. On November 18, 1988, he filed another proposed prospectus with petitioner. After its approval on January 30, 1989, park personnel distributed the revised, approved prospectus, No. 1802171P86, to the tenants.
Recommendation It is, accordingly, RECOMMENDED: That DBR enter an order requiring respondent to send complete copies of currently approved prospectuses by registered mail to all tenants who have not received such copies personally and signed receipts so stating. DONE and ENTERED this 30th day of July, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1 through 6, 9, 11 through 14 and 16 through 19 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 7, the evidence did not establish the contents of the copy of the prospectus the Miranoffs received. With respect to petitioner's proposed finding of fact No. 8, Mr. Onusko's adult daughter Marilyn received a copy of the prospectus before the rent increased. Petitioner's proposed finding of fact No. 10 pertains to subordinate matters only. With respect to petitioner's proposed finding of fact No. 15, Mr. Karcher so testified, without contradiction. Respondent's proposed findings of fact Nos. 1 through 5, 7 through 10, 12 through 19, 21, 22, 24, and 27 through 30 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 6, the prospectus had not been approved at that time. With respect to respondent's proposed finding of fact No. 11, she did not personally deliver prospectuses to all tenants. With respect to respondent's proposed finding of fact No. 20, the differences were material. Respondent's proposed findings of fact Nos. 23, 25 and 26 are immaterial. COPIES FURNISHED: Donna H. Stinson, Esquire Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A. The Perkins House, Suite 100 118 North Gadsden Street Tallahassee, FL 32301 Debra Roberts, Esquire Department of Environmental Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Paul Martz, Esquire Martz & Zimmerman 3 Palm Row St. Augustine, FL 32084 Stephen R. MacNamara Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 =================================================================
The Issue This is a consolidated case involving both the present and prior owners of the Country Retreat Mobile Home Park: (f/k/a Christian Retreat Mobile Home Park). The case involves the issue of whether the prior owner, Respondent, Gospel Crusade, Inc., (hereinafter Gospel) is guilty of the violations alleged in the Notice to Show Cause dated June 6, 1990, issued against Gospel by the Petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (hereinafter the Division) Gospel has been charged with renewing the existing rental agreements of at least thirty-seven (37) mobile homeowners by implementing a lot rental amount increase. Gospel has also been charged with increasing the lot rental amount on May 1, 1986, with a rent increase notice that did not provide for an effective date or disclose the present rental charge for the mobile home lot. Gospel has also been charged with increasing the lot rental amount of at least forty-six mobile homeowners on February 1, 1988, without the delivery of an approved prospectus prior to the Increase. The case also involves the issue of whether the present park owner, Respondent Country Retreat, Inc. (hereinafter `Country') is guilty of the violations alleged in the Notice to Show Cause dated June 11, 1990, issued by the Division. Respondent, Country, has been charged with increasing the lot rental amount of at least forty-six mobile homeowners on February 1, 1989, by twenty-three dollars ($23.00) per month without delivering each affected mobile homeowner a prospectus approved by the Division. Country also has been charged with collecting lot rental amount increases from at least forty-six mobile homeowners which increases were imposed by the previous owner, Gospel Crusade, Inc. prior to the delivery of an approved prospectus. The homeowners' lot rental amounts were increased on May 1, 1986 and February 1, 1988, prior to delivery of an approved prospectus. At the final hearing in this matter, the Division presented the testimony of six (6) witnesses: Faye Mayberry, Chief of the Bureau of Mobile Homes; Warren Schoder, General Manager of Gospel Crusade, Inc.; and the following homeowners: Harold Hines, Martha Potteiger, Thomas Reinecke and Carmella Campora. The Division introduced six (6) exhibits into evidence which are referred to herein as Petitioner's Exhibits 1-6. Gospel presented the testimony of five (5) witnesses; Phillip Derstine, Robert Friedrich, Walt Wirries, Crystal Milligan, and Jean Mulholland. Gospel introduced two (2) exhibits into evidence which are referred to herein as Gospel Crusade Exhibits A and B. Country presented the testimony of Mr. Robert Ruggles and did not introduce into evidence any exhibits. After examining the Recommended Order and reviewing the record, it is HEREBY ORDERED:
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Division, has been the state agency responsible for the regulation of mobile home parks in Florida. Gospel was the developer and former owner and operator of a facility, located on church property in Manatee County, Florida, on which mobile homes were parked, owned and operated by individuals other than Gospel members, and known as Christian Retreat. Country is the present owner and operator of the facility in question, having purchased it from Gospel on December 15, 1988. The mobile home park in question contains 76 mobile home lots which are all rented or leased by the park owner to mobile home owners under oral rental agreements. As of June 13, 1986, all lots had been leased. Occupants of the lots do and did not have to belong to the owning church nor be a part of its ministry. No formal lease was required, but it was understood that the occupant would pay the required lot rental for as long as the lot was occupied. Because of this loose arrangement, Gospel claims it was not offering mobile home lots for rent or lease and was not, therefore, a "mobile home park owner" as defined by the statute. The evidence is clear, however, that the arrangement was formalized between the park and the lot occupants and the land was owned by Gospel. Though the occupant could remain as long as he or she desired, so long as the lot rental was paid if the party was capable of paying, and the community's standards were met, the occupant did not own the lot and paid rent to Gospel for the use of the space. There is also some indication that the amount paid by the occupants to Gospel was no more than was required to meet operating costs and included no profit to Gospel or return on equity. This payment was, however, except in those few cases where the occupant could not pay, a condition precedent to the occupant's remaining on the site and regardless of by what name called, was compensation for the use of the property. This is rent. On June 13, 1986, the Division approved Prospectus No. 4102545P, submitted by Gospel. Gospel had previously delivered to park residents a notice of increase in monthly lot rental from $82.00 to $90.00 which was to be effective on May 1, 1986, but which did not so state in its body. It was a defective notice. The prospectus was not delivered by hand, sent by certified mail or left at the lot prior to the effective date of the increase and at least 46 of the 76 occupants did not receive it. According to Reverend Derstine, Gospel's minister and leader of the congregation, some discussion took place between Gospel personnel and some owners regarding those matters contained in the prospectus, and a copy was kept in the park office for review by anyone who wanted to look at it. Further, the park's communication system, both written and electronic, may have carried notices of the availability of the prospectus. However, no copies were ever distributed to the residents in general as is required by law. The monthly lot rental was again increased, from $90.00 to $127.00, effective on February 1, 1988. This increase was preceded by written notice to all 76 lot occupants by Gospel prior to its implementation. Again, on February 1, 1989, Gospel, for the third time, increased lot rentals, this time from $127.00 to $150.00 per month. No prospectus was delivered for either the February 1, 1988 or the February 1, 1989 increases by either Gospel or Country, which purchased the park from Gospel on December 15, 1988. Though the February 1, 1989 increase was implemented by Gospel, which collected all monthly rentals paid by occupants through December, 1988, as of January 1, 1989, monthly lot rentals were collected by the new owner, Country. Prior to December 15, 1988, Country was not in any way involved in the operation, management or administration of the park. Prior to purchasing the park on December 15, 1988, Mr. Robert K. Ruggles, III, sole stockholders of Country, solicited from Mr. Schoder, then manager of Christian Retreat, proof that the prospectus for the impending lot rate increase scheduled for February 1, 1989 had been approved by the State. That proof was delivered to him. Mr. Ruggles insists that he did all he could do, from a practical standpoint, to determine that the prospectus had been appropriately sent out to the lot occupants, short of actually polling all occupants to determine it had been received. While the Division does not agree with Ruggles' position, it presented no evidence to demonstrate what further actions he could have taken, and in light of his sworn evidence regarding approval of the prospectus, it is found he did all he could do, reasonably, to insure the correctness of the procedure. When Mr. Ruggles subsequently found out there was a problem, even the Division concedes he took immediate steps to rectify it and agrees he was not enriched by the error. He has been cooperative with the Division at all times, and on February 5, 1990, the Division approved an amended prospectus for the February 1, 1989 rent increase. This approved prospectus was subsequently delivered to all residents by Country Retreat, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered herein directing that: The Notice to Show Cause against Country Retreat, Inc. be dismissed. That Gospel Crusade, Inc. pay a civil penalty of $2,500.00. RECOMMENDED this 1st day of February, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASES NO. 90-4916 & 90-4917 The following constituted my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: I. Accepted and incorporated herein. & 3. Accepted Accepted and incorporated herein. - 7. Accepted and incorporated herein. Accepted. & 10. Accepted and incorporated herein. - 13. Accepted and incorporated herein except for the names of individual residents specified which are not included. II. Accepted. - 5. Accepted and incorporated herein. FOR THE RESPONDENT, COUNTRY: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. 5. First sentence accepted and incorporated herein. Balance accepted. 6. - 8. Accepted and incorporated herein. 9. - 12. Accepted and incorporated herein. 13. Accepted and incorporated herein. 14. - 16. Accepted. 17. Accepted and incorporated herein. 18. Accepted. 19. Accepted and incorporated herein. COPIES FURNISHED: Kathryn E. Price, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1550 Joseph C. Ferrell, Esquire Ferrell and Ferrell, Chartered 1402 Third Avenue West Bradenton, Florida 34205 Robert M. Fournier, Esquire 1800 Second Street, Suite 806 Sarasota, Florida 34236 James L. Turner, Esquire Williams, Parker, Harrison Deitz & Getzen 1550 Ringling Blvd. Sarasota, Florida 34236 E. James Kearney Director Division of Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact The Petition filed herein, among other matters, alleges, in pertinent part, that: This is a petition for determination of the invalidity of a proposed rule of the Department of Business Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, pursuant to Section 120.54(4), Fla. Stat. (1987). The 1,000 members of the FMHA may be sub- jected to this rule and Gerry Barding as an individual are substantially affected in that the rule has the effect of allowing the DBR to schedule a mediation or arbitration if the request "does not substantially comply with Chapter 723, Fla. Stat., and these rules." Section 723.037 limits the substantial rights of a party who fails to mediate or arbitrate a dispute under Section 723.037 with the DBR . . . . * * * The substantial rights of the members of FMHA will be affected if the DBR is allowed to grant mediation or arbitration requests when the mobile home owners have not complied with the provisions of Section 723.037, Fla. Stat. (1987). The proposed rule of the DBR enlarges, modifies, or otherwise contravenes the statu- tory authority granted by Chapter 723, Fla. Stat. (1987), and is unreasonable, arbitrary, and capricious. Petitioner, FMHA, is an incorporated association not for profit whose members include approximately 1,000 mobile home park owners. All of the mobile home park members of FMHA own mobile home parks which contain greater than 25 mobile home lots which are offered for lease. A substantial number of the members of the FMHA on a regular basis annually increase the lot rental amount in their mobile home parks. The residents of the FMHA members' mobile home parks are entitled to and may request mediation of lot rental amount increases pursuant to Sections and 723.038, F.S. (1987), and the rules of the Florida Department of Business Regulation. Requests for mediation have been made in the past by homeowners residing in FMHA members' mobile home parks and many of those mediation proceedings have not yet been completed. Petitioner, Gerry Barding, is the owner of Pinelake Village Mobile Home Park located in Jensen Beach, Florida. In the past, Mr. Barding has increased the lot rental amount in Pinelake Village Mobile Home Park and expects to do so in the future. In September 1987, a request for mediation from Pinelake Village residents was not filed within 30 days of the meeting between the park owner and the residents. The Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes reviewed the request for mediation and determined that it was willing to mediate the dispute. The Division requested that Mr. Barding advise it of his willingness or refusal to participate in the mediation. Mr. Barding declined to agree to mediation of the dispute, and the mediation file of the Division was closed. Sections 723.037(4), F.S. (1987), provides in pertinent part that: Within 30 days of the date of the scheduled meeting described in subsection (3), the home owners shall request that the dispute be submitted to mediation pursuant to Section if a majority of the affected home owners have designated, in writing, that: The rental increase is unreasonable; The rental increase has made the lot rental amount unreasonable; The decrease in services or utilities is not accompanied by a corresponding decrease in rent or is otherwise unreasonable; or The change in the rules and regulations is unreasonable. [Emphasis supplied]. The Department of Business Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes does not interpret Section 723.037(4), F.S., as depriving it of authority to mediate when the request for mediation is filed more than 30 days after the referenced meeting. Section 723.037(6), F.S., provides that: No action relating to a dispute described in this section may be filed in any court unless and until a request has been submitted to the Division for mediation and arbitration and the request has been processed in accordance with Section 723.038. Section 723.037(7), F.S., provides that: If a party refuses to agree to mediate or arbitrate, or fails to request mediation, upon proper request, that party shall not be entitled to attorney's fees in any action relating to a dispute described in this section. Section 723.004(4), F.S., provides that: Nothing in this chapter shall be construed to prevent the enforcement of a right or duty under this section, Sections 723.022; 723.023; 723.031; 723.033; 723.035; 723.037; 723.038; 723.061; 723.0615; 723.062; 723.063; or 723.081 by civil action after the party has exhausted its administrative remedies, if any. Existing Rule 7D-32.005(3), F.A.C., provides in pertinent part: The homeowners' committee shall request mediation, or the homeowners' committee and the park owner may jointly request arbitration, by mailing or delivering the following items to the Division of Florida Land Sales, Condominiums and Mobile Homes, 725 South Bronough Street, Tallahassee, Florida 32399-1007: A completed Form DBR 405, which becomes effective on the same date as this rule and which may be obtained by writing to the Division at the above address, and A copy of the written designation required by Rule 7D-32.005(1), Florida Administrative Code, and Section 723.037(4), Florida Statutes; and A copy of the notice of lot rental increase, reduction in services or utilities, or change in rules and regulations which is being challenged as unreasonable; and A copy of the records which verify the selection of the homeowners' committee in accordance with Rule 7D-32.003, Florida Administrative Code, and Section 723.037(3), Florida Statutes. [Emphasis supplied] Proposed Rule 7D-32.005(4), F.A.C., which was published in Volume 14, No. 4, Florida Administrative Law Weekly (January 29, 1988), and which is here challenged, provides that: A request for mediation or arbitration shall be denied if the request does not substantially comply with Chapter 723, Fla. Stat., and these rules. The word "may," which is struck through, is to be deleted from the existing rule now in effect. The underlining indicates that the words "shall" and "substantially" are amendatory language to be added. Rule 7D-32.005(5), Florida Administrative Code, provides: If the homeowners' committee requests media- tion, a copy of the four items required by subsection (3) of this rule shall be furnished to the park owner by Certified U. S. Mail, Return Receipt Requested, at the time the request is filed with the Division. Failure to comply with this requirement may result in a delay in scheduling of a mediation meeting until the required items have been furnished to the park owner. [Emphasis supplied] Rule 7D-32.005(6), Florida Administrative Code, provides: Within 10 days from the date that the park owner or his agent receives copies of the documents required to be furnished to him pursuant to subsection (5) of this rule, the park owner shall advise the Division in writing of his willingness or refusal to participate in the requested mediation. If the park owner is of the opinion that the home owners or the homeowners' committee have failed to satisfy the statutory requirements set forth in Section 723.037, Florida Statutes, or the requirements of these rules he may indicate his willingness to participate in the mediation process without waiving his objections to the procedures used by the homeowners' committee. Rule 7D-32.005(7), Florida Administrative Code, provides: A decision by the Division to grant or deny a request for mediation does not constitute an adjudication of any issues arising under Section 723.037, Florida Statutes. Any dispute concerning the applicability of Section 723.037(6)-(7), Florida Statutes, must be submitted to a court of competent jurisdiction in the event that judicial proceedings are initiated. Rule 7D-32.001(5), Florida Administrative Code, provides: `Mediation' means a process whereby a mediator provided by the Division of Florida Land Sales, Condominiums and Mobile Homes partici- pates in discussions with a homeowners' committee and a park owner concerning the reasonableness of an increase in lot rental amount, change in park rules and regulations, or a decrease in services or utilities. The purpose of the mediator's participation is to assist the parties in arriving at a mutually agreeable settlement of their differences.
The Issue As presented in the petition to determine the invalidity of a proposed rule filed on February 14, 1992, and as refined in the parties' joint stipulation filed at hearing on September 14, 1992, the issue presented for disposition is the validity of proposed amendments to rules 12D-6.001(3) and 12D-6.002(1)(d)1. and 2., F.A.C.
Findings Of Fact The following facts are based in their entirety on the parties' joint stipulation presented at hearing on September 14, 1992: This is a Section 120.54(4), F.S., rule challenge proceeding initiated by the Florida Manufactured Housing Association, Inc., Petitioner, to challenge the validity of proposed amendments to Rules 12D-6.001(3) and 12D-6.002(1)(d)1. and 2., F.A.C., as proposed by the State of Florida Department of Revenue, Respondent. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action. The Petitioner is the Florida Manufactured Housing Association, Inc., "FMHA". The FMHA is a not-for-profit corporation organized to do business in the State of Florida. The FMHA is located at 115 North Calhoun Street, Tallahassee, Florida 32301. The agency affected by this proceeding is the Respondent, Florida Department of Revenue, whose address is Post Office Box 3000, Tallahassee, Florida 32315-3000. The proposed rules at issue in this proceeding are proposed Rule 12D- 6.001(3) and proposed rule 12D-6.002(1)(d)1. and 2., F.A.C., as published in Volume 18, Number 4 of the Florida Administrative Weekly, January 24, 1992. The challenged provisions of these rules provide as follows: 12D-6.001(3) - "Permanently affixed." A mobile home shall be considered "permanently affixed" if it is tied down and connected to the normal and usual utilities, and if the owner of the mobile home is also the owner of the land to which it is affixed. 12D-6.002(1) This rule subsection shall apply if the owner of the mobile home is also the owner of the land on which the mobile home is permanently affixed and the mobile home has a current sticker affixed, regardless of the series. (d) This rule subsection shall apply to mobile home parks operating a sales office in which a mobile home is being offered for sale where the dealer/developer/owner owns the mobile home and the land to which it is permanently affixed as follows: The dealer/developer/owner must pay real property taxes even if the mobile home has been issued a dealer license plate. A mobile home discussed in this subsection shall not be considered tangible personal property or mobile home inventory. The proposed rules were promulgated by the Department of Revenue to give effect to the statutory change to Section 193.075, F.S., as set forth in Committee Substitute to Senate Bill 1578 which provides as follows: 193.075 Mobile Homes -- A mobile home shall be taxed as real property if the owner of the mobile home is also the owner of the land on which the mobile home is permanently affixed. A mobile home shall be considered permanently affixed if it is tied down and connected to the normal and usual utilities. A mobile home that is taxed as real property shall be issued an "RP" series sticker as provided in Section 320.0815. A mobile home that is not taxed as real property shall have a current license plate properly affixed as provided in Section 320.08(11). Any such mobile home without a current license plate properly affixed shall be presumed to be tangible personal property. The Florida Manufactured Housing Association, Inc., is a trade association representing the interests of approximately 1300 mobile home parks, dealerships, manufacturers and related mobile home service firms who conduct business in the State of Florida. One of the primary purposes of the FMHA is to act on behalf of its members before the various governmental entities of the state, including the Respondent, Florida Department of Revenue. The subject matter of the proposed rules at issue in this proceeding is within the general scope of interest and activity of the FMHA. The relief requested in this action is of the type appropriate for FMHA to obtain on behalf of its members. The proposed rules and economic impact statement were promulgated by the Department of Revenue in accordance with the requirements of Section 120.54, F.S. The FMHA member manufacturers, dealers and park owners who are substantially affected by the proposed rules at issue herein are engaged in the business of selling mobile homes and offer mobile homes for sale to the public. A number of these homes are tied down in accordance with all applicable local, state and federal requirements and connected to the normal and usual utilities so that they can be displayed as fully functioning "model" homes prior to the time they are sold. The FMHA member manufacturers, dealers and park owners who display fully functional mobile homes for sale to the public maintain they have no intention of permanently affixing the homes to their real property. The homes are maintained in this manner for the purposes of safety and display only, with the full intention that they be removed from the realty subsequent to the sale. A substantial number of the members of the FMHA will be substantially affected by the proposed rules, because their business activities are subject to the rule provisions challenged herein and because it is FMHA's position that the proposed rules will directly impact the continued ability of FMHA member manufacturers, dealers and park owners to display fully functioning model homes held for sale to the public on their real property without being subject to ad valorem tax liability. FMHA members who own and operate mobile home parks, mobile home dealerships and mobile home manufacturing enterprises are subject to the rulemaking authority of the Respondent, Department of Revenue. A substantial number of FMHA members are engaged in the process of manufacturing mobile homes. Mobile home manufacturers commonly display one or more completed mobile home units which are tied down and connected to the normal and usual utilities at model home centers located on their manufacturing premises. The homes are held for sale to mobile home dealers or to the general public. The homes are tied down and connected to utilities for purposes of safety and display. The attachment of the homes to the property is not intended by the manufacturer to be permanent. When the homes are sold, they are disconnected from the utilities, removed from the tie-downs, and transported off the manufacturer's property. The removal process does not cause damage to the home or the real property. A substantial number of FMHA members operate retail sales lots, where new and used mobile homes are held for sale and displayed for sale to the public. These homes are owned by the retail dealers. Mobile home dealers typically display one or more mobile homes which are tied down and connected to the normal and usual utilities located on the dealer's sales lots. The homes are held for sale to mobile home park owners or the general public. The homes are tied down and connected to utilities for purposes of safety and display. The attachment of the homes to the property is not intended by the dealer to be permanent. When the homes are sold, they are disconnected from the utilities, removed from the tie-downs, and transported off the dealer's property. The removal process does not cause damage to the home or the real property. A substantial number of FMHA members own and operate rental mobile home parks. In rental mobile home parks, a tenant places his own mobile home upon land owned by the park owner commonly referred to as a park "developer", and leases the land. A substantial number of FMHA members who own mobile home parks also hold dealer licenses, and operate a mobile home sales business within the park. Mobile home park owners or developers typically display one or more model homes which are tied down and connected to the normal and usual utilities. The homes are held for sale to the public. When the units are sold to a purchaser, they are disconnected from the utilities, removed from the tie-downs, and transported from the model home area to a designated lot within the mobile home park. This process does not result in damage to the mobile home or the real property. At the time of sale, the purchaser of the mobile home enters into a land lease with the mobile home park owner. At his option, the purchaser may choose to terminate the lease and remove the mobile home from the mobile home park. In some instances, FMHA members, who own mobile home parks and operate a sales business within the park, lease both land and mobile homes to tenants as part of a lease option agreement, where the park owner retains ownership of the home and land until the home purchase option is exercised. If the tenant fails to exercise the option or defaults under the agreement, the park owner may sell the home to another purchaser. That purchaser may either remove the mobile home from the lot, or enter into a new land lease with the park owner. Under proposed Rules 12D-6.002(1)(d)1. and 2., mobile homes owned by FMHA member manufacturers, dealers and park owners determined to be permanently affixed to real property, as defined by Section 193.075, F.S., and owned by the manufacturers, dealers and park owners will be declared real property, and taxed accordingly. Under the proposed rules the assessment date is January 1 of any given year, and a mobile home permanently affixed to real property owned by FMHA member manufacturers, dealers, or mobile home park owners on January 1 will be taxed as real property. The FMHA member manufacturers, dealers and park owners determined to own mobile homes permanently affixed to their realty will have their real property tax increased by the assessed valuation of the mobile homes, without regard to their intended use or disposition of the homes.
Findings Of Fact At all pertinent time Country Meadows Estates, Ltd. (Country Meadows), a Florida limited partnership, has been the park owner of Country Meadows Mobile Home Park (the Park) which is located in Plant City, Florida. Century Realty Funds, Inc. (Century), is the general partner of Country Meadows Estates, Ltd. Century has been in the business of operating adult and retiree mobile home parks for approximately seven years. It operates over 20 different parks. Country Meadows has been in existence for approximately five years. Approximately 510 lots have been offered for rent or lease in the Park. When the last phase of the Park is completed, approximately 750 lots will have been offered for rent or lease. Yearly rental increases at Country Meadows equate to the increase in the consumer price index, or a $5 minimum increase, whichever is greater. This rental agreement is guaranteed by Century for the lifetime of the mobile home owners as long as they reside in the Park. Charge Of Failure To Deliver Approved Prospectus. Century retained a law firm to provide assistance in securing approval of its proposed prospectus, lease agreement and park rules and regulations and paid the law firm a fee for its services. On November 27, 1984, Country Meadows filed with the Department of Business Regulation, Division of Land Sales, Condominiums and Mobile Homes (the Division), a prospectus for the Park. In order to be able to increase rent in January, 1985, as provided in existing lot leases, Country Meadows tried to get a copy of the filed prospectus to all existing lot lessees by the end of 1984. Starting December 31, 1984, Country Meadows began delivering a copy of this prospectus to each new lessee of lots in the Park. On January 7, 1985, the Division notified Country Meadows of deficiencies in the prospectus. Century, often through its supervisor of property management operations, and its legal counsel held numerous telephone conferences with the Division and numerous conferences among themselves regarding the notice of deficiencies. On February 25, 1985, Country Meadows sent the Division a revised prospectus addressing the deficiencies. Country Meadows substituted the revised prospectus as the prospectus delivered to new lessees of lots in the Park after February 25, 1985. On March 13, 1985, the Division sent Country Meadows another notice of deficiencies. The deficiencies found this time were in the original prospectus but were not noted in the first notice of deficiencies. On March 15, 1985, Country Meadows stopped delivering a prospectus to new lessees of lots in the Park after March 15, 1985. Country Meadows believed the law prohibited it from delivering an unapproved prospectus after that date but did not believe that it was prohibited from continuing to do business until a prospectus was approved. Rather, Country Meadows believed the law allowed it to continue to enter into new lot leases in the Park without an approved prospectus after March 15, 1985, but that it would have to deliver a prospectus when approved and give lessees the right to rescind their lot leases after review of the approved prospectus. On May 22, 1985, Country Meadows sent the Division a second revised prospectus. On November 6, 1985, Country Meadows sent the Division yet another revised prospectus that distinguished between increase in base rent on a lot and increase in other fees associated with rental of a lot. On November 21, 1985, the Division approved Country Meadows' last revised prospectus for the Park. Between March 16 and November 5, 1985, Country Meadows entered into 79 new Park lot rental agreements without delivering a prospectus to the lessee. Instead, the applicable filed but not yet approved prospectus was made available for inspection. Within 45 days after approval of the third revised prospectus on November 21, 1985, Country Meadows distributed an approved prospectus to all lessees, including those who entered into leases between March 16 and November 5, 1985. Century made a good faith effort to correct the deficiencies the Division cited in its proposed prospectuses. Charge Of Failure To File Advertising. In late summer or early fall, 1985, William and Nancy Hines responded to an advertisement in a magazine and asked for information. Century sent them documents. Some were not identified. One was entitled Greetings From Sunny Florida! (Petitioner's Exhibit 7). Century generally gives this document to persons who express an interest in Country Meadows, inviting them to pursue their interest and make a visit to the Park, free of charge. Later, Century sent a follow-up letter giving new information, further "selling" the benefits of Century parks, and finally asking the Hineses to indicate if they were still interested. (Petitioner's Exhibit 10). The Hineses arranged to make a visit to the park on November 15, 1985. At the Park, a County Meadows sales representative spoke with the Hineses and gave them a document entitled "Approximate Monthly Living Expenses At Country Meadows" (Petitioner's Exhibit 9). Country Meadows gives this document to persons who request information about Country Meadows. During the visit, the Hineses also were given a document entitled "Before You Purchase A Home: Questions And Answers You Should Know" (Petitioner's Exhibit 8). Country Meadows (and Century in general) usually sends this document to persons who express an interest in Country Meadows (or another Century park). It poses and answers general questions about mobile home parks and, in so doing, touts Century and its mobile home park developments. None of the documents (Petitioner's Exhibits 7, 8, 9 and 10) were filed with the Division. The Hineses entered into a lease agreement on November 15, 1985. In late winter or early spring of 1985, Elmer and Adele Johnson also saw an advertisement in a magazine and arranged to visit Country Meadows. At the visit, a Country Meadows sales representative gave the Johnsons a copy of a document entitled "Century: Mobile Home Communities, Affordable, Award-Winning, Adult Mobile Home Living-Now offering 11 outstanding Central Florida Mobile Home Communities for your inspection!" (Petitioner's Exhibit 11). It identified and listed information on each of the eleven parks, including Country Meadows. After the visit, Country Meadows sent the Johnsons a follow-up letter giving new information, further "selling" the benefits of Century parks and finally asking the Johnsons to indicate if they were still interested. (Petitioner's Exhibit 10). The letter is a standard letter (addressed "Dear Friend") used to re- contact prospective customers who have visited a Century park (as, for example, hundreds have visited Country Meadows). On March 15, 1985, the Johnsons returned to Country Meadows. They were given a copy of Petitioner's Exhibit 8 and entered into a lease agreement. None of these documents (Petitioner's Exhibits 8, 10 and 11) were filed with the Division. Petitioner's Exhibit 11 also was used and given to Myre Lutha Tillman, a prospective purchaser, in approximately July, 1985. From at least May 29, 1984, through October 6, 1986, a billboard sign advertising Country Meadows (a picture of which is Petitioner's Exhibit 4) was located on Frontage Road and could be seen from Interstate 4, approximately six miles east of Plant City. Century admits the billboard was advertising that was not filed with the Division. The billboard was removed some time after October 6, 1986, and no longer is in use. Country Meadows also placed newspaper advertisements of the Park in the Tampa Tribune on Sunday, February 2, and Sunday, February 26, 1986 (Petitioner's Exhibits 5 and 6, respectively). Century admits that this advertising was not filed with the Division. Some of the information Century gave prospective purchasers including Petitioner's Exhibits 7, 8, 9, 10 and 11-- was given only to persons who expressed an interest in a Century mobile home park or at least requested information. Century's supervisor of property management operations did not think this information was "public" and therefore not "advertising" under the mobile home park statutes. This partially explains why Century did not file this information with the Division. Charge Of False Or Misleading Advertising. Century admits that it used a pamphlet entitled "Country Meadows: The Golden Dream" (Petitioner's Exhibit 12), which it properly filed with the Division, as advertising distributed to the public. The pamphlet advertises "Exercise Facilities & Locker Rooms" and "Security with Access Gatehouse." The only locker rooms ever at Country Meadows were small package lockers located in the mailroom. The pamphlet, while technically not false, was misleading because it gives the impression of a locker room that would be used to change clothes in conjunction with the exercise room. There always has been "Security with Access Gatehouse" at Country Meadows. Initially, the gatehouse was placed at the entrance of the Park and was manned by paid residents of the Park. The gatehouse was manned during the day until early evening hours and on weekends (in part to direct visitors and guests to residents.) Later, approximately in early 1986, the gatehouse was moved back from the entrance and was equipped with automatic security gate arms. The residents were given an access code which, when punched in at the gatehouse, would automatically open the gate arm on either entering or leaving the Park. Country Meadows no longer hired residents to man the gatehouse but hired a full- time security guard who roves Country Meadows and an adjacent Century park that now has approximately 100 home sites leased. The security guard's hours of employment include the early morning and the evening hours. Sometime after installation of the new gatehouse (no witness could say when), lightning struck the gate and blew out the computer that controls the gate arm. The computer was fixed and was operative for a while without access codes. It was anticipated that the access code mechanism would be operative and new access codes would be given to the residents by the end of August, 1987. Again, no witness could testify to more precise time frames in which these events took place. Century also admits that it used another pamphlet or brochure, similar to Petitioner's Exhibit 12 but not filed with the Division, for advertising to the general public. This other pamphlet or brochure was entitled "The Golden Dream: Country Meadows" (Petitioner's Exhibits 13). It was given to Gerald Gott, among others, at a seminar in Merrillville, Indiana, sometime between October 10 and December 20, 1985. Like Petitioner's Exhibit 12, Petitioner's Exhibit 13 includes a color-coded map of Country Meadows showing: (1) "Home Sites Sold"; (2) "Home Sites Available"; and (3) "Final Phase, Future Home Site." In other colors, the map shows one clubhouse and one pool located between the first two color-coded areas (and bordered on the third side by golf course), and a second clubhouse and second pool nestled inside the third color- coded area (the "Final Phase"). Neither of the two pamphlets (or brochures) use the word "proposed" to describe the second clubhouse or second pool. The "Final Phase" of Country Meadows now is underway, and it will include a clubhouse and pool. The clubhouse will be a closed pavilion with a patio. The billboard advertising Century used for at least from May 29, 1984, through October 6, 1986, (Petitioner's Exhibit 4) stated: "Price [$29,900] Includes: Golf-Lakes-Pool- Clubhouse." However, Country Meadows actually was selling homes (and leasing lots) in the Park without golf included in that price. (Golf is optional for purchasers who pay an additional golf membership fee.) When prospective purchasers made an issue of the billboard advertising, Country Meadows on at least one occasion made an accommodation, including in the purchase price two years of free golf on the "gold card program" and charging $240 per year for golf privileges after that. The Tampa Tribune newspaper advertising (Petitioner's Exhibits 5 and 6) included the statement: "Free *Golf For 5 Years [under certain conditions]." The asterisk was intended to refer the reader to an asterisk near the bottom of the ad that said: "*No Free Golf On $32,900 Homes." Mitigation. Century has made reasonably diligent efforts in many respects both to cooperate with the Division to achieve compliance with the statutes and rules and to address and resolve the complaints and desires of residents of the Park.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Petitioner, Department of Business Regulation, Division of Land Sales, Condominiums and Mobile Homes, enter a final order: Dismissing the first and fourth charges alleged in the Notice To Show Cause; Holding the Respondent, Century Realty Funds, Inc., d/b/a Country Meadows Estates, Ltd., guilty of the violations alleged in the second and third charges in the Notice To Show Cause; Ordering the Respondent to cease and desist from the use of unfiled and false or misleading advertising; and Ordering the Respondent to pay to the Petitioner a total civil penalty in the amount of $5000 for the violations for failure to file advertising and false or misleading advertising. RECOMMENDED this day of September, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0165 Explicit rulings on the parties' proposed findings of fact are made to comply with Section 120.59(2), Florida Statutes (1985): Petitioner's Proposed Findings Of Fact: 1.-4. Accepted and incorporated. 5.-6. Subordinate and unnecessary. 7.-26. Accepted and incorporated to the extent necessary and not subordinate. Accepted and incorporated. Rejected as not within the charges in the Notice To Show Cause. 29.-30. Rejected as contrary to facts found. Subordinate to facts found. Accepted and incorporated. Rejected as irrelevant and not within the charges in the Notice To Show Cause. Accepted and incorporated. Subordinate to facts contrary to those found. 36.-38. Subordinate to facts found. 39.-41. Accepted and incorporated. 42.-44. Subordinate to facts found. 45.-47. Accepted and incorporated to the extent necessary and not subordinate. 48.-53. Accepted and incorporated. Rejected as contrary to facts found. There are lockers in the mailroom, but the advertising is misleading. Subordinate to facts found. Subordinate. Respondent's Proposed Findings Of Fact: 1-8 Accepted and incorporated. Unnecessary. Except that the reasonableness of the fee was not the subject of any evidence, accepted and incorporated. 11.-12. Accepted and incorporated. 13. Unnecessary. 14.-18. Accepted and incorporated. 19. Rejected as not proven if, when or why a third revision was demanded. The evidence proves only that the third revision provides some information the Division had requested. 20.-21. Accepted and incorporated. Rejected as contrary to fact found. (It was not simply a matter of Century waiting for the Division to approve a filed prospectus.) Accepted and incorporated. 24.-31. Irrelevant and unnecessary. (As to 29. to 31., the issues were not the same as in this case.) 32.-35. Subordinate to facts found (except it was not proven that every reasonable effort was made.) 36.-40. Accepted and incorporated except, as to 38, "financial security" was not an issue in the Notice To Show Cause and is irrelevant.) 41. Accepted and incorporated (but the lockers were in the mailroom, and the advertisement of them is misleading.) 42.-43. Accepted and incorporated. Irrelevant and unnecessary. Subordinate to facts found. Rejected as contrary to facts found. Irrelevant and unnecessary. Accepted and incorporated. See 47, above. Rejected as contrary to facts found. (Petitioner's Exhibit 12 was.) Accepted and incorporated. Accepted and incorporated (although the first notice of deficiency, while incomplete, was timely.) Rejected as not proven precisely what Century's decision, i.e., the understanding of its supervisor of property management operations, was based on. 54.-59. Accepted and incorporated. Unnecessary. Accepted and incorporated. Rejected as conclusion of law. 63.-64. Accepted and incorporated except to the extent conclusion of law. 65. Rejected as not proven. COPIES FURNISHED: Debra Roberts, Esquire Paul Thomas Presnell, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1927 Ronald L. Clark, Esquire Michael A. Tewell, Esquire MURPHY & CLARK, P.A. Post Office Box 5955 Lakeland, Florida 33807-5955 Richard Coats, Director Division of Florida Land Sales, Condominiums and Mobile Homes The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1927 James Kearney, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1927 Thomas A. Bell, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1927
The Issue The issue for determination was whether the Respondent, Trailer Estates Park and Recreation District (Trailer Estates), violated Section 760.23, Florida Statutes (1997), by subjecting the Petitioner, Steven S. Berryman (Berryman), to alleged discriminatory housing practices.
Findings Of Fact The Petitioner, Steven S. Berryman (Berryman) failed to appear at final hearing, either in Tallahassee or in Tampa, Florida, and presented no evidence in support of the Petition for Relief. Berryman's original Complaint alleged housing discrimination but did not specify the basis of the discrimination. FCHR investigated the Complaint and issued a Determination of No Reasonable Cause. Berryman's Petition for Relief alleged housing discrimination but also did not specify the basis of the discrimination. Rather, the Petition for Relief alleged that Trailer Estates: "did not have enough votes to convert the park to 55 or older"; allowed a 39 year-old to live in the park; and allowed "young people to live in their park, however you have to be related to them or be a personal friend of theirs."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 7th day of January, 1999, at Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 7th day of January, 1999. COPIES FURNISHED: Steven Berryman 4307 Howard Drive Sykesville, Maryland 21784 Robert J. Gill, Esquire Diane K. McClellan, Esquire Ruden, McClosky, Smith, Schuster & Russell 1549 Ringling Boulevard, Suite 160 Sarasota, Florida 34236 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
