The Issue Whether the proposed repeal of Rule 61B-31.001(5), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority. Further, whether certain agency policies constitute rules and violate the provisions of Section 120.535, Florida Statutes.
Findings Of Fact The Florida Manufactured Housing Association, Inc. (FMHA) is a Florida not for profit corporation organized to represent the interests of the owners of approximately 750 mobile home parks. All of the parks owned by FMHA members are regulated by the Respondent. The FMHA's members will be substantially affected by the proposed repeal of the rule. The FMHA has standing to participate in his proceeding. The Florida Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Respondent), is the state agency charged with implementation, administration and enforcement of Chapter 723, Florida Statutes, relating to Mobile Home Park Lot Tenancies. The Federation of Mobile Home Owners of Florida, Inc. (Federation) is a Florida not for profit corporation organized to represent a substantial number of mobile home owners residing in Florida mobile home parks. The Federation's members will be substantially affected by the proposed repeal of the rule. The Federation has standing to participate in this proceeding. Insofar as is relevant to this case, a mobile home owner commonly rents a mobile home park lot upon which the home is placed. Pursuant to Section 723.011(1)(a), Florida Statutes, the owner of a mobile home park containing 26 or more lots must deliver a prospectus to the home owner prior to entering into an enforceable rental agreement for the mobile home lot. A mobile home park prospectus is intended to provide full and fair disclosure of the terms and conditions of residency and sets forth the regulations to which the home owner will be subjected after signing a lot rental agreement with the park owner. The prospectus must be filed with and approved by the Respondent. The challenged rule was adopted as Rule 7D-31.01(5), Florida Administrative Code, in 1985. Without alteration, it was subsequently renumbered as Rule 61B-31.001(5), Florida Administrative Code, and provides as follows: The Prospectus distributed to a home owner or prospective home owner shall be binding for the length of the tenancy, including any assumptions of that tenancy, and may not be changed except in the following circumstances: Amendments consented to by both the home owner and the park owner. Amendments to reflect new rules or rules that have been changed in accordance with procedures described in Chapter 723, F.S., and the prospectus. Amendments to reflect changes in the name of the owner of the park. Amendments to reflect changes in zoning. Amendments to reflect a change in the person authorized to receive notices and demands on the park owner's behalf. Amendments to reflect changes in the entity furnishing utility or other services. Amendments required by the Division. Amendments required as a result of revisions of Chapter 723, F.S. Amendments to add, delete or modify user fees for prospective home owners. Neither the statute nor the rule defines what is meant by the term "tenancy." Historically, the Respondent has taken the position that the prospectus was binding on the park owner and the mobile home owner until the mobile home no longer occupied the lot or the tenant was evicted, whichever occurred first. In other words, the "tenancy" existed for as long as the mobile home remained on the lot, and the prospectus was binding during the length of the "tenancy", including any assumptions of the "tenancy." However, several legal cases, most recently in 1992, have essentially stated that a mobile home "tenancy" exists for the period of time during which a mobile home rental agreement is effective. The effect of the legal decision is to permit Rule 61B-31.001(5), Florida Administrative Code, to be construed to provide that a prospectus is valid only for the period covered by a rental agreement. The Legislature has not adopted legislation subsequent to the case which would affect the substance of the decision. On January 20, 1995, the Respondent published notice of the proposed repeal of Rule 61B-31.001(5), Florida Administrative Code, in the Florida Administrative Weekly, Vol. 21, No. 3. The Respondent's purpose in repealing the rule is primarily to eliminate the language relating the period of validity for a prospectus to the "tenancy." Although the Respondent asserts that it has no current policy as to the period of validity for a prospectus, the Respondent acknowledges taking the continuing position that the prospectus is binding for longer than the period of a rental agreement. The Petitioner challenges the agency position as being an unpromulgated, and therefore invalid, rule. The Petitioner also challenges as being an unpromulgated and invalid rule, the Respondent's decision to discontinue the review and approval mechanism for amendments to any previously approved prospectus. The Respondent asserts that, notwithstanding prior practice, it has no statutory authority to review and approve amendments to a previously approved prospectus and that it will no longer do so.
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).
The Issue The issue presented is whether subsections (1) and (4) of Rule 7D-32.002, Florida Administrative Code, are an invalid exercise of delegated legislative authority.
The Issue The issue presented for decision herein is whether or not Respondent aided and abetted an unregistered person to evade the provisions of Chapter 489, Florida Statutes; knowingly combined or conspired with an uncertified or unregistered person by allowing his registration to be used in violation of Chapter 489, Florida Statutes, and engaged in the practice of contracting while his license was in an inactive status and thereafter abandoned a construction project in which he was engaged.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. During times material, Respondent was a registered general contractor and held license number RG 0035788 issued by Petitioner, Florida Construction Industry Licensing Board. Respondent admitted, and it is found herein, that in January and February 1983 Respondent's license was delinquent and inactive due to his failure to renew same. In January of 1983, Venetian Park Homeowners Association contracted with one Joseph Acampora to construct five walls at the Venetian Park Homeowners Condominium project for the sum of $7,500 (Petitioner's Exhibit 2). During the negotiations for the referenced contract, the Venetian Park Homeowners Association dealt solely with Joseph Acampora. Acampora hired Chet Lanzi as a laborer on the job to construct the walls. The construction commenced to the point that the walls were erected but the plaster finish was not applied to any of the walls. At that point, Acampora abandoned the job. Acampora was paid $5,000 for his work to that point by the homeowners association. These checks were cashed by Acampora (Petitioner's Exhibit 3). Acampora was not a licensed contractor and therefore could not obtain a permit from the Hallandale Building Department to construct the walls for the homeowners association as contracted. To overcome that hurdle, Acampora approached Respondent to obtain the permit for him from the Hallandale Building Department for a fee of $300. In furtherance of that agreement, Respondent applied to the City of Hallandale for the building permit and that permit was issued to Respondent to construct the walls for the homeowners association. Respondent admitted that at the time he obtained the building permit for this project from the Hallandale Building Department, his contractor's license was delinquent and inactive due to his failure to renew the license upon its expiration. During the hearing, Respondent admitted that a letter introduced by him from the homeowners association was, in fact, not truthful and that that letter was merely issued by the homeowners association to facilitate Acampora in having Respondent to obtain the building permit. During the construction on this project by Mr. Lanzi, Respondent did not supervise Mr. Lanzi nor did Mr. Lanzi ever see Respondent on the job site. Additionally, Respondent admitted that he had no involvement in choosing or paying subcontractors or suppliers or otherwise furnishing laborers for the project. The homeowners association hired an unrelated third contractor to complete the work contracted for by Acampora. This was brought about due to the fact that Acampora abandoned the project and Respondent failed to complete the project due to the fact that he was employed elsewhere and had neither the time or the resources with which to complete the project for Acampora.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent's registered general contractor's license number RG 0035788 be suspended for a period of six (6) months and the Respondent pay to Petitioner an administrative fine of $500. DONE AND ENTERED this 16th day of August 1984 in Tallahassee, Florida. JAMES E. BRADWELL 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 16th day of August 1984.
Findings Of Fact Oak Park Village is a mobile home park which is owned and operated by the COOPERATIVE. All of the one hundred and thirty three (133) corporate shareholders are former renters who formed the corporation in order to purchase the park from Mr. Paster and Mr. Perrault, the previous park owners. When the purchase was made, the remaining sixty-six (66) mobile home owners who rented lots within the park did not participate in the purchase. These mobile home owners remained within the park in their status as renters. The COOPERATIVE'S predecessors in title filed a mobile home park prospectus and an amended prospectus with the DIVISION, as required by law. The renters who received the initial prospectus between April 1985 and October 1986, continued their relationship with the park under this prospectus. All of the newer renters were subject to the amended prospectus, which became effective October 1986. Each prospectus contains a copy of the lease form. All of the renters had to sign a written lease before they could enter the park. The term of a lease within the park was normally for a one year period, which ended on December 31st. However, if a tenancy did not begin on January 1st of any year, the first term would end on December 31st of the year the lease was made. Each lease contains an automatic renewal clause. Unless the renter notifies the mobile park owner in writing sixty (60) days in advance of the automatic renewal on December 31st of his intention to leave the park, the lease is automatically renewed for another one year period. In the lease and in each prospectus, only the renters can prevent the automatic renewal from taking effect. On September 19, 1986, the mobile home park owners, Mr. Paster and Mr. Perrault gave written notice to the renters of their intent to increase the lot rental amount effective January 1, 1987, from one hundred and fifty dollars ($150.00) a month to one hundred and fifty six dollars and forty cents ($156.40) per month for a one year period. This advance notice gave the renters the opportunity to terminate their leases and relocate before the automatically renewal or January 1, 1987, which would include this lot rental price increase. None of the renters gave the owners a sixty (60) day advance written notice of their intention to leave the park at the end of the term. Therefore, potential purchasers were on notice that sixty-six (66) renters intended to automatically renew their written leases on January 1, 1987, for a one year term. On January 1, 1987, the automatic renewal went into effect. Under the lease terms and each prospectus, every renter owed one thousand eight hundred seventy six dollars and eighty cents ($1,876.80) as lot rent for the year 1987. The renters had the option to pay this amount in equal monthly installments of one hundred and fifty six dollars and forty cents ($156.40) over the twelve month period. However, the mobile home park owner's right to the one thousand eight hundred seventy six dollars and eighty cents ($1,876.80) vested on January 1, 1987. Contrary to the stipulation of the parties, the law and the evidence shows that written leases were in effect on January 1, 1987. On December 26, 1986, the COOPERATIVE purchased Oak Park Village. At the time of purchase, the COOPERATIVE took the property subject to the existing leases, and the automatic renewals which were inchoate on December 26, 1986, but which would become operative on January 1, 1987. After the sale was completed, Mr. Paster attempted to rescind the notice of rent increase, which was to take effect on January 1, 1987. As Mr. Paster no longer owned the property at the time he attempted this recision, he was unable to effectuate a recission. On December 30, 1986, the COOPERATIVE mailed written notices to its sixty-six (66) renters. The notices informed the renters that the rent would remain at one hundred and fifty dollars ($150.00) for three months and would then increase to one hundred and eighty seven dollars ($187.00) per month from April 1, 1987, to December 31, 1987. This came to an annual rental amount of two thousand one hundred and thirty three dollars ($2,133.00). This was an annual increase of two hundred and fifty six dollars and twenty cents ($256.20) per renter during the 1987 lease term, when the increase initiated by the prior owners is compared with the proposed increase. In comparing the notice of increase dated September 19, 1986, and the notice dated December 24, ,1986, it appears that the first three reasons listed for the proposed increases are identical. The only additional reason for an increase which is listed on the notice dated December 24, 1986, from the new owners is "Maintenance needs of the park." The notices sent by the new owners, the COOPERATIVE, were postmarked December 30, 1986, and were placed in the individual post office boxes of all of the tenants on the same day. Page twelve of each prospectus defines "notice" as follows: Unless otherwise provided by statute, administrative rule, or this Prospectus, any notice shall be deemed given by posting by first class mail or by actual hand delivery. Rule 7D-32.02(3), Florida Administrative Code, the applicable rule to these proceedings, provides as follows: Notice given by personal delivery shall be deemed given when actually delivered to the homeowner. Notice by U.S. Mail shall be deemed given five days after notice is placed in the U.S. Mail addressed to the mobile homeowner's last known address. As the prospectus and the amended prospectus both defer to the administrative rule in effect which defines the term "notice," the COOPERATIVE's notice did not occur within a ninety day period, even under the COOPERATIVE's theory of the case, as set forth in its Proposed Recommended Order.
Findings Of Fact The Respondents, Mr. and Mrs. Sherman Clarke, previously held a foster home license issued by the Petitioner, Department of Health and Rehabilitative Services ("the Department"). By letter dated August 11, 1995, the Department advised the Respondents that the Department would not be re-licensing their foster home. The letter stated the reasons for the Department's decision not to re-license the Respondent's foster home. The letter also included the following information: You are further advised that within 30 days of receipt of this letter you may contest the decision of this agency by requesting an administrative hearing pursuant to the Administrative Procedure Act, Chapter 120, Florida Statutes. Your request for an administrative hearing should be made by sending a written request to: Karen M. Miller District Legal Counsel 111 South Sapodilla Avenue, Third Floor West Palm Beach, FL 33401 The Department's letter of August 11, 1995, was sent by certified mail, return receipt requested. The letter was received by the Respondents on August 16, 1995. The Respondents waited until January 18, 1996, to request an administrative hearing. On that date they wrote and mailed a certified letter addressed to Karen M. Miller in which they, for the first time, requested an administrative hearing. The letter of January 18, 1996, was received by the Department a few days after it was mailed. The record in this case does not contain any explanation as to why the Respondents waited until January 18, 1996, to request an administrative hearing.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order in this case concluding that the Respondents waived their right to contest the Department's decision not to re-license their foster home. DONE AND ENTERED this 31st day of October, 1996, in Tallahassee, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1996. COPIES FURNISHED: Catherine Linton, Esquire District 9 Legal Office Department of Health and Rehabilitative Services 111 Sapodilla Avenue West Palm Beach, Florida 33401 Mr. and Mrs. Sherman Clarke 509 44th Street West Palm Beach, Florida 33407 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 2, Room 204-X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
The Issue The issues in this case are: (1) whether, on three separate occasions, the Respondent raised the rent at Minerva Mobile Home Park without first delivering to the lessees an approved prospectus, as alleged in the Notice to Show Cause, Docket No. MH89446, issued on November 1, 1989; and (2), if so, what is the appropriate penalty.
Findings Of Fact The Respondent, Haines City Investment, Inc., is the owner of Minerva Mobile Home Park located in Haines City, Florida. There are approximately 72 lots for lease in Minerva Mobile Home Park. On or about January 6, 1988, a Final Order was entered by the Petitioner finding, among other things, that the Respondent had raised the rent on lots in Minerva Mobile Home Park, effective January 1, 1986, without first filing a prospectus with the Petitioner (and therefore also without delivering to the homeowners an approved prospectus.) Among other things, the Final Order fined the Respondent $3,000 and ordered the Respondent to deliver an approved prospectus to each homeowner entitled to receive one within 15 days. During the pendency of a court appeal of the Final Order, on or about April 29, 1988, the Respondent entered into an Agreement to Remit Civil Penalty and Annual Fees. Effective January 1, 1987, the Respondent increased the monthly lot rental in Minerva Mobile Home Park by $11. Effective January 1, 1988, the Respondent increased the monthly lot rental in Minerva Mobile Home Park by $4.50. Effective January 1, 1989, the Respondent increased the monthly lot rental in Minerva Mobile Home Park by $6. Effective January 1, 1990, the Respondent increased the monthly lot rental in Minerva Mobile Home Park by $12.50, to $134.50 per month. The 11 homeowners who testified all paid all rent increases charged by the Respondent. The Respondent first filed a prospectus for Minerva Mobile Home Park for approval by the Petitioner in October, 1986. By this time, the Respondent had given the homeowners a copy of the proposed, but unapproved prospectus. However, the proposed prospectus was not approved by the Petitioner, and several revisions were made. The final revision was not approved until May 20, 1987. The approved prospectus was not delivered to the homeowners of the Minerva Mobile Home Park until some time in March, 1990.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order requiring that the Respondent refund the illegal rent increases to the homeowners (or former homeowners) in Minerva Mobile Home Park and requiring the Respondent to pay a $1,500 civil penalty. RECOMMENDED this 26th day of November, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 26th day of November, 1990. COPIES FURNISHED: Debra Roberts, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Albert Labossiere, President Haines City Investment, Inc. 2800 Minerva Park Haines City, Florida 33844 E. James Kearney, Director Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee Florida 32399-1007
The Issue This case concerns a Notice to Show Cause served by Petitioner on Respondents, by which Petitioner orders Respondents to cease and desist their activities, to pay statutory fees, and to be assessed penalties. The activities in question are associated with the alleged need for Respondents to pay annual fees for mobile home lots rented within an alleged mobile home park operated by Respondents from the years 1984 through 1991. See, Section 723.007, Florida Statutes. Based upon the alleged nonpayment of the annual fees, Petitioner seeks to impose a civil penalty in accordance with Section 723.006(5)(d)1., Florida Statutes.
Findings Of Fact In 1978, Park T. Brittle purchased property in Leon County, Florida, which had been foreclosed on by Barnett Bank. This property had been originally developed by Miles Salgret. Prior to the purchase by Park T. Brittle, some lots had been sold by Mr. Salgret, approximately four in number. The property in question is known as Briarwood Estates. The Briarwood Estates is for use by mobile home owners who either own or rent lots on this property. Subsequent to his purchase, Park T. Brittle had the property surveyed by Tom Howard, a surveyor. Through this survey, a plat was prepared. The plat was submitted to the Leon County Property Appraiser. Subsequent to that time, beginning in 1980, the lots within Briarwood Estates have been individually assessed by the Property Appraiser for tax purposes. That is to say that the tax assessment is made on the individual lot owners. Park T. Brittle has sold 29 or 30 lots during his ownership. The property that is described in the plat is property in which the individual lot owners own to the center line of the roads which adjoin the lots. Respondents provide water and street lights as amenities within Briarwood Estates. Respondents are billed for these utilities and, in turn, charge individual lot owners for the amenities. In addition to the mobile home lots which have been sold, beginning with 1984 when the Florida Mobile Home Act was passed, the relevant time frame in this inquiry, Respondents have rented 10 or more mobile home lots on the property known as Briarwood Estates. These lots were rented to residential mobile home owners. More specifically, Respondents have continually collected monthly rents for mobile home lots on the property from 16 residential mobile home owners. All 16 of these mobile homes, during the period of 1984 through 1991, were mobile homes which were at least 8 feet by 35 feet in dimension. None of these 16 mobile homes are owned by Respondents. The 16 lots are not for purposes of rental spaces for RVs. In view of an attempt to institute a rental increase for the mobile home lots which Respondents rented at Briarwood Estates, a complaint was made to Petitioner concerning Respondents' intention to increase the rental fees. Respondents deferred to the requirements set forth by Petitioner concerning rent increases for those lots rented to the residential mobile home owners. Respondents complied notwithstanding Respondents' claimed uncertainty concerning the necessity to follow the guidelines and requirements established by Petitioner for adopting rent increases for lots rented to residential mobile home owners at Briarwood Estates. The uncertainty asserted by Respondents concerned the question of whether the 16 lots for which Respondents receive rents are part of a mobile home park, as defined in Section 723.003(6), Florida Statutes. Respondent, Park T. Brittle, testified at page 17 in the hearing transcript: "I attempted to follow those guidelines, not because I felt obligated, but if indeed later on it was determined that I was operating a mobile home park, I wanted to be sure that I was clear on that part of it." This refers to the increases in lot rental fees. Respondents do not concede that they are operating a mobile home park as it pertains to the payment of annual fees for each of the 16 lots in the amount of $1.00 in 1984 and $3.00 from 1985 through 1991, together with a 10% late fee charge for each year and each lot if the fees were not paid prior to December 31st of the year in question. Consequently, the fees for the 16 lots in the years 1984 through 1991 have not been paid. The amount due for the annual lot fees and penalties is $387.20. In addition to the amount assessed for annual fees for the lots and penalties for late payment, historically, Petitioner has assessed a $500.00 fine per year for noncompliance with the requirement to pay annual lot fees. Respondents do not believe that they are operating a mobile home park, rather it is their assertion that they are operating a mobile home subdivision. Respondents have cooperated with the Petitioner in the investigation concerning the payment of annual fees for lot rentals which was occasioned by inquiries by Park Brittle as well as a complaint by a tenant in one of the sixteen lots in question over increases in the monthly mobile home lot rental fees.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law, it is RECOMMENDED that final order be entered which requires Respondents to pay $387.20 in annual fees and penalties for the period 1984-1991, and assesses a civil penalty in the amount of $500. DONE and ENTERED this 7th day of October, 1992, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2961 The following discussion is given concerning the proposed facts of the parties: Petitioner's Facts: Paragraphs 1 through 11 are subordinate to facts found. Paragraph 12 is not necessary to the resolution of the dispute. Paragraph 13 is subordinate to facts found. Respondents' Facts: Paragraphs 1 through 7 are subordinate to facts found. COPIES FURNISHED: E. Harper Field, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 George Carswell, Esquire Post Office Box 508 Monticello, Florida 32344 Henry M. Solares, Director Department of Business Regulation, Florida Land Sales Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, FL 32399-1007 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007
The Issue The issue in the case is whether the Petitioner has been the subject of a discriminatory housing practice by the Respondent through the alleged failure of the Respondent to provide a reasonable accommodation for a disability.
Findings Of Fact At all times material to the case, the Respondent operated an age-restricted mobile home park in Sarasota, Florida. With limited exceptions, residents of the mobile home park are 55 years of age and older. In September 2000, the Petitioner, a woman over 55 years of age, purchased a mobile home located within the Ridgewood Mobile Home Park. The mobile home was purchased through a real estate broker. The mobile home park apparently identifies itself through signage as a community for persons 55 years of age and older. Prior to the purchase the Petitioner had no communication with the Respondent and made no inquiry of the Respondent as to whether her son, who is under 55 years of age, would be allowed to live in the mobile home park. Within a few days of the purchase, the Petitioner was advised that residence in the mobile home park was limited, with certain exceptions, to persons 55 years of age and older. The Respondent advised the Petitioner that her son, who is under 55 years of age, could remain with her only for a period of up to two months to help her "settle in." By lease application dated October 1, 2000, the Petitioner advised the Respondent that her son would remain with her for a period of two months. In November 2000, after the two months had passed, the manager of the mobile home park (Mr. Cobb) informed the Respondent that her son would have to leave the residence. At that time, the Petitioner's son asserted that he was his mother's full-time, live-in caregiver. Prior to this point, the Petitioner had not indicated to the Respondent that she suffered from a handicap or required the services of a full-time, live-in caregiver The evidence fails to establish that, either at the time of the Petitioner's initial residence at the Respondent's mobile home park or by November 2000, the Petitioner suffered from a handicap or from any condition that substantially limited any major life activity, or that the Petitioner required the assistance of a full-time, live-in caregiver. At the time the Petitioner moved into the Respondent's mobile home park, the Petitioner was able to accomplish all major life activities. Although diabetic, the Petitioner was able to walk, drive, and shop for food or other necessities. Her son assisted in house cleaning and in other routine activities, but there is no credible evidence that, prior to August 2002, such assistance was required for performing major life activities. In August 2002, shortly after a medical procedure on the Petitioner's carotid artery, the Petitioner suffered a stroke. She was hospitalized for a period of approximately ten days and then transferred into a rehabilitation hospital for a period of approximately six weeks. Letters submitted from medical professionals involved with the Petitioner's case at the time of her stroke suggest that assistance was needed during the period of incapacity related to the stroke. There is no credible evidence that, subsequent to rehabilitation, the Petitioner needed the services of a full- time, live-in caregiver. After rehabilitation, the Petitioner recovered from the stroke sufficiently to regain her ability to perform major life activities, including driving an automobile. A subsequent automobile accident wherein she ran down a stop sign in the mobile home park after going shopping suggests that driving at night may be inappropriate. Following post-stroke rehabilitation, the Petitioner's son continued to reside with his mother, to assist in household duties and in assuring that the Petitioner followed a medication regimen, but the evidence fails to establish that she currently requires a full-time, live-in caregiver. At the time of the hearing, neither the Petitioner nor her son was residing in the Respondent's mobile home park. The evidence establishes that disabled or handicapped persons in the mobile home park who require full-time, live-in caregivers are accommodated without regard to the age of the caregiver or to the mobile home park's age-related restrictions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the complaint of Dona M. Burgess against the Respondent. DONE AND ENTERED this 29th day of July, 2003, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 29th day of July, 2003. COPIES FURNISHED: Elizabeth M. Boyle, Esquire Gulfcoast Legal Services, Inc. 1750 17th Street, Building 1 Sarasota, Florida 34234 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Kimberly P. Walker, Esquire Kevin Bruning, Esquire Williams, Parker, Harrison, Dietz & Getzen 200 South Orange Avenue Sarasota, Florida 34236-6802 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
