Findings Of Fact Chapter 723, Florida Statutes, the Florida Mobile Home Act, became law on June 4, 1984, created by Chapter 84-80, Laws of Florida. Chapter 723 expressly preempts to the state all regulation and control of mobile home lot rents in mobile home parks and all those matters relating to the landlord-tenant relationship treated by or falling within the purview of the chapter. The statute regulates any residential tenancy in which a mobile home is placed upon a rented or leased lot in a mobile home park in which 10 or more lots are offered for rent or lease. The statute requires that every owner of a mobile home park containing 26 or more lots shall file a prospectus with the Respondent prior to entering into an enforceable rental agreement. Respondent has the power and duty to enforce and ensure compliance with the provisions of the chapter and rules promulgated pursuant to the chapter relating to the rental of mobile home lots. Respondent is further authorized to promulgate rules, pursuant to Chapter 120, which are necessary to implement, enforce and interpret the chapter. The proposed rule at issue in this proceeding was first published in the Florida Administrative Weekly, Volume 14, Number 7, February 19, 1988. The parties have requested official recognition of the proposed rule and its date of publication, and that request is hereby granted. Proposed rule 7D-31.002, Florida Administrative Code, provides: 7D-31.002 Fees, Charges and Assessments. For tenancies in existence before June 4, 1984, including any assumptions of those tenancies pursuant to Section 723.059, Florida Statutes, the mobile home owner is not obligated to pay any fees, charges or assessments which were not disclosed fully in writing prior to occupancy, any provision to the contrary in a prospectus notwithstanding, unless the park owner can establish that the fees, charges or assessments have been collected as a matter of custom as defined in subsection (4) of this rule. Furthermore, the mobile home owner is not obligated to install any permanent improvements at all, including those mandated by governmental entities or utility companies. For tenancies created on or after June 4, 1984, pass through charges, as defined in Section 723.003(9), Florida Statutes, may be imposed by the mobile home park owner if the mobile home owner's obligation to pay such charges was disclosed in general terms pursuant to Sections 723.011 and 723.012, Florida Statutes, or pursuant to Section 723.013, Florida Statutes, even though the charge being imposed was not disclosed specifically, and the imposition of such pass through charges is not a violation of Section 723.042, Florida Statutes. However, pass through charges may not be imposed if the mobile home owner's obligation to pay such charges was not disclosed generally and prior to occupancy as required by Section 723.042, Florida Statutes and by Sections 723.011(2) and 723.012, Florida Statutes or Section 723.013, Florida Statutes, whichever is applicable. No fee, charge or assessment shall be imposed by a mobile home park owner on the purchaser of a mobile home situated in the park that is offered for sale by a resident of the park and as a condition to the purchaser being reviewed or approved for residency in the park. A fee, charge or assessment has been collected as a matter of custom if it was collected prior to July 1, 1976. Petitioner is a not-for-profit incorporated association, whose members include approximately 1,000 mobile home park owners and operators who own and operate mobile home parks in the State of Florida. Petitioner's members each lease at least 25 or more lots for the placement of mobile homes within each of their mobile home parks. Each of the members is therefore required to file and receive approval of a prospectus from Respondent prior to entering into an enforceable rental agreement for the lease of lots in those mobile home parks. Tom Coon, owner and operator of Hillsboro Mobile Home Park, located at Route 3, Box 801, Pompano Beach, Florida 33067, has "passed through" and charged for the hook-up fees and installation of sewer and water lines for hook-up to the Coconut Creek City Utility System. The cost to Mr. Coon for hook-up was $116,808 which includes fees which were not disclosed prior to occupancy and permanent improvements which were mandated as a result of actions by state and local government and the utility company. David Zell, owner of Colony Mobile Home Park, 2301 North 29th Avenue, Hollywood, Florida 33020, has "passed on" real estate tax increases in 1987 and 1988, as a result of entering into a three year negotiated agreement with the home owners negotiating committee, pursuant to mediation in 1986. The agreement allows for pass-on of increases in taxes and limits rent increases during that three year term. The total cost of pass-on charges for ad valorem property tax increases was $6,417.62 over that two year period. There is at least a $3,337.62 ad valorem property tax increase which will be passed-on in 1989. This pass-on charge for real estate taxes would be prohibited in that the real estate taxes were not disclosed to the residents prior to occupancy, nor were they collected prior to July 1, 1976. Charles Aultman is the owner and operator of Plantation Manor Mobile Home Park, 3032 South U.S. Route 1, Fort Pierce, Florida 33450. Aultman passed-on ad valorem property tax and utility increases for the years 1984, 1985, 1986, 1987 and 1988 for all residents of the park. The total amount passed-on was $33,872.57. This charge would be prohibited as not disclosed prior to occupancy or charged as a matter of custom as defined in the proposed rule. Jim Dale, owner of Rexmere Village Mobile Home Park, 11300 Rexmere Boulevard, Fort Lauderdale, Florida 33325-4099, has passed-on increases to ad valorem property taxes for the mobile home park to each of his residents in 1987 and 1988. The approximate cost of the pass-ons at this point is $120,000 per year. The pass-on charge for increased ad valorem property taxes is based upon an agreement entered into between the mobile home owners and the park owner that limits the increases in lot rental amount in the park, but allows for pass-ons of increased ad valorem property taxes. In addition, the mobile home park prospectus includes a charge for parking which limits the on-street parking in the mobile home park. This charge was not collected prior to July 1, 1976, and was not disclosed prior to occupancy, but has been collected since the prospectus was delivered in the mobile home park. There is a collection rate of approximately $8,000 per year parking charges in the mobile home park. Pauline Mantwil is the owner of Sunshine Mobile Manor, which had its sewage treatment plant condemned by the Department of Environmental Regulation. The park was required to tie into the Martin County Sewage Treatment System (Dixie Plant). The cost to each mobile home owner was allocated at $730 per space. The park owner passed-through this cost. The cost was disclosed in the prospectus, but was not disclosed prior to occupancy in the mobile home park. The total cost for impact fees and other costs associated with tie-in to the system is approximately $150,000. This pass-on of tie-in and other costs to hook up to the sewage treatment plant would be prohibited under the proposed rule because it was not disclosed prior to occupancy and because, in part, the costs include some permanent improvements to the sewage treatment system within the park. Mike Pond is the owner of Palm Shores Mobile Village, Inc., a mobile home park located at Number 1, East Lane, Lake Alfred, Florida 33850. The mobile home park consists of 97 lots. The park owner has no records of the fees and charges which were collected prior to July 1, 1976, and there was no disclosure of fees and charges prior to occupancy to the residents who moved in prior to the time the prospectus was approved and delivered. The prospectus was approved August 21, 1985, and delivered shortly thereafter. The mobile home park was mandated to enlarge its sewage treatment plant by the Department of Environmental Regulation. The park passed-through the costs of the sewage treatment plant enlargement to each resident within the park, at a cost of $218.25 per lot. In addition, there is an ad valorem property fire tax which is passed-on to each resident of $34.05 per lot. The fire tax is included within the November 1 tax bill and is paid March 31 of the next year. Neither the charge for sewer enlargement or the fire tax was disclosed prior to occupancy. The park owner has no record as to whether these types of fees and charges were collected prior to July 1, 1976. Clayton, Williams and Sherwood is a partnership doing business in the State of Florida, which operates the Coral Lakes Mobile Home Park located in Broward County, Florida. Clayton, Williams and Sherwood has passed-on increases in ad valorem property taxes in 1986 and 1987 to each resident within the mobile home park. The total pass-on charges for those two years is $15,600. There are 118 lots in the park that were occupied by residents prior to June 4, 1984. Each of these lots was charged a pass-on charge for taxes. Clayton, Williams and Sherwood is not aware of whether ad valorem tax increases were passed-on to residents prior to July 1, 1976, nor are they aware as to what disclosures were made to the residents in the mobile home park prior to occupancy. Clayton, Williams and Sherwood is the park owner of Shadow Hills Mobile Home Park in Orange County, Florida. Orange County has mandated that the mobile home park hook-up to the county sewer system. The cost of hook-up is $829,000 for hook-up fees, $50,000 to install a lift station for the purpose of complying with regulations for hook-up to the county sewage system, and $50,000 to eliminate percolation ponds which are currently on site. The owner of the mobile home park intends to pass-through the cost of the hook-up to the Orange County sewer system by amortizing that cost over a fourteen-year period. The mobile home park prospectus provides that the mobile home park may pass-through costs incurred due to the actions of state and local governments or utility companies. The park owner does not know whether these charges were collected prior to July 1, 1976. Clayton, Williams and Sherwood is also the park owner of Lakewood Mobile Home Park in Indian River County, Florida. Indian River County has mandated that Lakewood Mobile Home Park hook-up to the county sewer system at a cost of $484,000 to the mobile home park. This $484,000 includes hook-up fees and approximately $50,000 for a lift station to be installed as part of the hook-up. The prospectus for Lakewood Mobile Home Park provides that the park owner may pass-through costs incurred due to actions by state and local governments or utility companies as a separate charge. However, the park owner does not know whether a pass-through charge was disclosed to the residents of the park prior to occupancy nor whether such charge was collected prior to July 1, 1976. Charles Metcalf is the owner of Woodall's Trailer Park, located at 2121 New Tampa Highway, Lakeland, Florida 33801. Woodall's Trailer Park was required by the City of Lakeland to upgrade the electric utility system in the park. The approximate cost of this upgrade, which is presently being installed, is $35,000. The park owner operated the mobile home park based upon oral leases prior to the submission and approval of the prospectus of the mobile home park. The prospectus was approved June 4, 1985, by Respondent. The mobile home park owner intends to pass-through the cost of upgrading the electrical utility system to 253 mobile home lots located in the park. Those 253 mobile home lots are occupied by residents who were residents of the park as of June 4, 1984. The park owner did not disclose a pass-through or pass-on charge to any of those residents prior to occupancy, nor has a pass-through or pass-on charge been collected in the park prior to July 1, 1976. A pass-through charge is allowed in the mobile home park prospectus for costs incurred as the result of actions of state or local governments or utility companies. Jack Zieaer is the manager of Gulfstream Harbor, a 383 unit mobile home park, which began development in 1980. Approximately 235 lots were occupied on June 4, 1984 and approximately 260 lots were occupied on December 31, 1984. The prospectus for the mobile home park, which was filed on December 31, 1984, and distributed to existing tenants in the park, authorizes the imposition of separate charges on the home owners in addition to the basic lot rental amount, which separate charges were not disclosed in advance of occupancy. One hundred and twenty-three residents of the park received advance disclosure of all the charges set forth in the prospectus prior to occupancy. The tenancies of those 123 residents began after June 4, 1984. James F. Gould is the resident manager of Mobile Home Country Club, which contains 269 lots and which has been in operation for approximately 25 years. Twenty to twenty-five residents apply for residency in the park each year. The park imposes an application fee of $50 to screen the residents. Approximately $32,000 per year is collected for separate water and sewer charges plus an administrative fee. The separate charge for water was disclosed to people when they moved into the park. William Hart is the owner and operator of seven mobile home parks, including Havenwood Adult Mobile Home Community. In 1981, 1986 and 1987, Hart passed-through to the residents at Havenwood tax increases in addition to the basic lot rental amount. All of Hart's prospectuses authorize the pass-through of charges billed by state or local governments or utility companies and provide for a $50 investigation fee to investigate proposed residents. The total investigative fees collected from all seven of Hart's parks in 1987 was approximately $9,400. The taxes passed-on in Havenwood in 1981, 1986 and 1987 total approximately $850, $1,300, and $2,100 respectively. DeAnza Corporation owns eight mobile home parks in Florida with about 5,300 spaces, including Mobil Americana Mobile Home Park in St. Petersburg, Florida. Mobil Americana Mobile Home Park was in operation prior to June 4, 1984, and was developed beginning about 22-23 years ago. DeAnza purchased Mobil Americana in 1976, at which time there was a lease in place in the park. There were 758 residents in the park at the time it was purchased of whom 275 continue in occupancy today. DeAnza charges an application fee in all of its parks of $50, except for one park which charges an application fee of $20. Five hundred and forty-eight of the 758 lots presently occupied at Mobil Americana are occupied by residents who moved in before June 4, 1984. The City of St. Petersburg has instructed DeAnza to install 11 new fire hydrants in Mobil Americana, and DeAnza has responded by proposing to install two. An engineer has estimated that it would cost approximately one-half million dollars to install 11 hydrants in the park and that it would cost approximately $68,500 to install only two. DeAnza and the City are continuing to negotiate concerning the fire hydrants. The park intends to pass-through the costs of any fire hydrants to the residents. Rents are increased in the park yearly, and every two years the rental level is set by the market. The park owner determines the market. A substantial number of Petitioner's members will experience an adverse and/or substantial economic impact as a result of the proposed rule, if adopted. The past practice of collecting pass-through and pass-on charges by the park owners will be illegal under the proposed rule. In addition, the past collections of fees, charges and assessments which were not disclosed prior to occupancy or collected prior to July 1, 1976, will be illegal and subject to Respondent's enforcement jurisdiction. Those illegal charges may be required to be paid back to the homeowners. As such, there is a substantial economic impact from the proposed rule. Petitioner has standing to challenge proposed rule 7D-31.002, pursuant to sections 120.54(4) and 120.57, Florida Statutes. Petitioner's Executive Director conducted a partial survey of Petitioner's members. Over 5 percent of the surveyed parks have already charged pass-through charges for governmentally mandated capital improvements to their residents, including residents of the parks prior to June 4, 1984, and a substantial number of others intend to in the future. The term "entrance fee," as that term is commonly understood in the mobile home industry, is a fee charged for moving a mobile home onto a vacant mobile home lot in a mobile home park, whether that is done by a dealer or a home owner. The term "application fee" as that term is commonly understood in the mobile home industry, is a charge for recouping the costs associated with credit checks, screening, and criminal background checks in qualifying a potential resident of the park. It applies to someone who purchases an existing home in the park. The Respondent acknowledges that there is an economic impact from the statute as interpreted by the proposed rule and that the economic impact of the proposed rule on regulated persons was pointed out to the Respondent during workshops on the proposed rule. However, the Respondent did not conduct any investigation of the economic impact of the proposed rule. No economist conducted the economic impact analysis; rather, the economic impact statement supporting the proposed rule was prepared by Respondent's legal section. No consideration was given by Respondent to the amount of monies involved in pass- through charges. Further, no review was made by Respondent of the prospectuses contained in its own files in order to determine the kind or extent of economic impact on the persons regulated by Respondent, i.e., the park owners. The parties have stipulated that there is no provision in chapter 723, Florida Statutes, which expressly provides that all fees, charges and assessments have to be fully disclosed in writing. Pass-through charges or pass-on charges are not prohibited by chapter 723, Florida Statutes; rather, that chapter specifically defines pass-through charges and even requires that all prospectuses contain a description of the manner in which pass-through charges will be assessed. It is the common understanding in the mobile home industry that park owners cannot require mobile home owners to install permanent improvements on their individual lots, such as driveways, etc. However, mobile home owners can be contractually obligated to pay the cost of installing capital improvements required by local governments or utility companies--pass-through charges by statutory definition.
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
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 The issue in this case is whether state use tax is due and payable on transactions wherein the taxpayer rented mobile homes to persons for use as private residences (which the lessees were required to maintain, repair, and insure), pursuant to leases under which the lessee would acquire title to his home upon payment in full of the total rent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order withdrawing the tax assessment against Park Place. DONE AND ENTERED this 25th day of June, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2004.
The Issue Whether Respondent Tardiff committed the violations as set forth in the Notice to Show Cause dated February 24, 1997, and what penalty, if any, should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida charged with the responsibility to administer and to enforce the Florida Mobile Home Act, Chapter 723, Florida Statutes. At all times pertinent to this proceeding, Respondent has been the owner of Pondview Mobile Home Park. At all times pertinent to this proceeding, Respondent has had 10 or more lots offered for rent or lease. Respondent offered for rent or lease at least 22 lots. At all times pertinent to this proceeding, Respondent was a "mobile home park owner," as the term is defined in Section 723.003(7), Florida Statutes. No annual fees were paid by Respondent from 1984 until 1996. Currently, annual fees are $4.00 per lot, per year. Annual fees are payable to the division between July 1 and October 1 of each year. When Respondent increased his rent in 1993, he failed to file a copy of the lot rental increase notice with the Bureau of Mobile Homes. Under Chapter 723, Florida Statutes, the reason for the increase in rent is irrelevant to the filing requirement. When new tenants entered Respondent's mobile home park, Respondent failed to give them a prospectus or written notification of required information. Twelve homeowners have entered into rental agreements without receiving the statutorily required document. Respondent produced a cancelled check at the formal hearing showing that 1996 annual fees had been paid to the division. It is the park owner's responsibility to comply with Chapter 723, Florida Statutes. It is not the duty of the division to pursue park owners in order to obtain compliance with the Florida Mobile Home Act. Respondent has been permitted with the Department of Health (formerly Health and Rehabilitative Services (HRS)) every year since 1983.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That Petitioner enter a Final Order finding Respondent has violated the Sections of Chapter 723, Florida Statutes, as charged in the Notice to Show Cause, and ordering the Respondent to Pay annual fees for the years 1984-1995 in the amount of $814, plus a 10 percent penalty of $81.40 which equals $895.40; Pay a penalty of $1,200 for the violation of Section 723.013., Florida Statutes; Pay a penalty of $5,000 for the violation of Section 723.037, Florida Statutes; and Comply with all provisions of Chapter 723, Florida Statutes, in the future. DONE AND ENTERED this 28th day of August, 1997, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1997. COPIES FURNISHED: Suzanne V. Estrella, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Roland Tardiff Route 12 Box 394 Lake City, Florida 32025 Robert H. Ellzey, Jr., Director Division of Florida Land Sales, Condominiums, and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact 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 The issues are whether, pursuant to section 393.0673(1), Florida Statutes (2018), Respondent, which holds a license to operate a group home facility, was identified in a verified report by the Department of Children and Families (DCF) as the perpetrator of exploitation of a vulnerable adult, failed to disclose on a renewal application a perpetrator of "the . . . abuse, neglect, or exploitation of a vulnerable adult" (Maltreatment),1 and allowed a new employee to begin working at the group home before completing all of the background screening requirements; and, if so, what penalty should be imposed against Respondent's license.
Findings Of Fact At all material times, as authorized by the License, Respondent, a Florida not-for-profit corporation, has provided services to intellectually disabled persons residing at the Group Home. At all material times, Respondent's directors have been Etha Griffith, her daughter Kim Griffith, and Francis Griffith. The record does not disclose if Respondent has any members. Etha Griffith, who is 79 years old, serves as an officer and the onsite manager of the group home, for which Kim Griffith and Francis Griffith serve as the backup managers or supervisors of the Group Home. Petitioner presented no admissible evidence in support of Count I. Prominent among the excluded evidence is the Verified Report, as to which Petitioner failed to demonstrate its relevance, as explained in the Conclusions of Law, or its authenticity, given that it is unsigned and bears other indicia of an investigation that, although closed, was never completed.5 In support of Count II, Petitioner introduced the Application,6 which was filed on November 12, 2018. Etha Griffith7 completed the Application by providing the information requested on Petitioner's application form, which serves a natural person or legal entity who or that is an applicant or licensee seeking the issuance or renewal of a group home facility license (Application Form). Etha Griffith signed the Application as Respondent's designated representative, and her signature was notarized on November 8, 2018. The Application states the answer, "no," to the question posed in Section V, Item 2: "Have you or ownership controlling entity affiliated with this application ever been identified as responsible for the abuse, neglect, or abandonment of a child or the abuse, neglect, or exploitation of a vulnerable adult?" For several reasons, Petitioner failed to prove by clear and convincing evidence the material facts in support of Count II. First, "no" was correct because the question refers to a determination, not allegation, of Maltreatment. The Application Form does not define "identified," whose common meaning is not "alleged," but "established,"8 such as after a completed investigation. As explained in endnote 5, the evidence fails to establish that DCF determined that Etha Griffith is the perpetrator of Maltreatment. Second, even if there had been a determination of Maltreatment in the Verified Report by November 12, 2018, "no" was not a willful or intentional misstatement or a false statement because neither Etha Griffith nor any other agent of Respondent knew about the Verified Report or DCF's determination of Maltreatment--and not for a lack of inquiry. Aware that an investigation had taken place during the summer of 2018, in October 2018, Kim Griffith contacted the DCF protective investigator who had conducted the investigation and asked for any findings. The investigator returned to her, not the Verified Report, but a Notice of Conclusion, stating only that the investigation was "complete" and "closed," and DCF had recommended no additional services. Etha Griffith has never received a copy of the Verified Report. No agent of Respondent knew anything about the Verified Report until preparing for the hearing in this case. On these facts, Etha Griffith and Respondent's other agents had no reason to think, as of November 12, 2018, that DCF had determined that Etha Griffith had perpetrated Maltreatment. Third, even if, by November 12, 2018, Etha Griffith were aware that DCF had determined that she had perpetrated Maltreatment, the failure to disclose this fact or the Verified Report was not material. An audit of the Group Home by Petitioner led to DCF's protective investigation, and the findings of the protective investigation, such as they were,9 implied that any misappropriation involved substantially smaller sums than those specified in the audit.10 Knowledge of the audit findings would thus include knowledge of the protective investigation findings. Fourth, as discussed in the Conclusions of Law, "no" is correct because, in the question posed in Section V, Item 2, "you" refers to the applicant or licensee, and "ownership controlling entity affiliated with this application" does not effectively refer to Etha Griffith. The Application Form does not define these terms. Items 1, 3, and 4 also contain questions posed to "you." The questions in Items 1 and 3 alternatively address a "controlling entity affiliated with this application," so, except for dropping "ownership," the questions in Items 1 and 3 are directed to the same addressee as is the question in Item 2. The question in Item 4 is directed only to "you." All four of these items frame questions seeking potentially important information about past license discipline and adverse action involving the Medicaid and Medicare programs.11 Judging from her testimony at the hearing, Etha Griffith possesses modest language skills. Given the level of analysis required to determine the meaning of "you" and "ownership controlled entity affiliated with this application," Etha Griffith could not possibly have understood that the question in Section V, Item 2 addressed her. The two key issues in Count III are whether Ms. Meliard was an employee or a covered volunteer, as defined in the Conclusions of Law, and, if so, whether she had completed her local screening. Ms. Meliard did not testify, nor did Petitioner direct any questions to Kim Griffith as to Count III. Petitioner's investigator testified that, upon his unannounced arrival at the Group Home at 2:05 p.m. on January 1, 2019, he found Ms. Meliard "seated in a chair by the front window," presumably in a common area of the house, such as a living room. Tr., p. 63. Ms. Meliard was alone in the Group Home, as the residents typically returned from their day programs around 3:00 p.m. Tr., p. 63. On the investigator's arrival, Ms. Meliard called Etha Griffith, who arrived at the Group Home very shortly after the call. Tr., p. 64. On her arrival, Etha Griffith told the investigator that she was "trying to give [Ms. Meliard] a job." Tr., p. 64. The testimony recited in this paragraph is credited. Petitioner's witnesses were in conflict as to the screening that Ms. Meliard had cleared. Petitioner's operations management consultant testified that Ms. Meliard had not cleared level 1 or 2 screening. Tr., p. 44. Petitioner's investigator testified to the same effect, but immediately corrected himself by saying that she had cleared Level 2 screening, but not local screening. Tr., pp. 65-66. Petitioner is unable to produce documentary evidence of screenings because this material is confidential, even in hearings of this type, according to Petitioner's counsel. Tr., p. 46. When asked if Ms. Meliard had cleared her level 2 screening, Etha Griffith testified, "That is the one we got, yeah." Tr., p. 95. No one asked Etha Griffith directly if Ms. Meliard had not yet passed her local screening. In a clear-and-convincing case, no finding is possible based on the negative implication inherent in Etha Griffith's statement. Her modest communication skills and laconic communication style betray a lack of mental acuity, so no inference is possible by Etha Griffin's use of the definite article, "the." A personnel file, which may be opened for a candidate for employment, typically contains evidence of a local screening, which comprises an inquiry to the relevant local law enforcement agency and a response from the agency. Tr., p. 83. Proof of a failure to obtain a local screening thus depends on a negative-- the absence of documentation in the personnel file. Unable to recall clearly whether he had seen evidence of a level 2 screening, Petitioner's investigator testified that he recalled not seeing evidence in Ms. Meliard's personnel file of clearing the local screening. Tr., p. 83. The testimony on the issues of employment and local screening is too vague and uncertain to support findings by clear and convincing evidence that, on January 10, 2019, Ms. Meliard was employed by Respondent and had not passed her local screening. The investigator presented himself as exceptionally capable and articulate, but nothing in the record suggests that he investigated with any diligence the employment or local screening issues involving Ms. Meliard.
Recommendation It is RECOMMENDED that the Agency for Persons with Disabilities enter a final order finding Respondent not guilty of all counts set forth in the Administrative Complaint. DONE AND ENTERED this 26th day of November, 2019, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 2019.
Findings Of Fact Oak Park Village is a mobile home park which is owned and operated by the COOPERATIVE. All of the one hundred and thirty three (133) corporate shareholders are former renters who formed the corporation in order to purchase the park from Mr. Paster and Mr. Perrault, the previous park owners. When the purchase was made, the remaining sixty-six (66) mobile home owners who rented lots within the park did not participate in the purchase. These mobile home owners remained within the park in their status as renters. The COOPERATIVE'S predecessors in title filed a mobile home park prospectus and an amended prospectus with the DIVISION, as required by law. The renters who received the initial prospectus between April 1985 and October 1986, continued their relationship with the park under this prospectus. All of the newer renters were subject to the amended prospectus, which became effective October 1986. Each prospectus contains a copy of the lease form. All of the renters had to sign a written lease before they could enter the park. The term of a lease within the park was normally for a one year period, which ended on December 31st. However, if a tenancy did not begin on January 1st of any year, the first term would end on December 31st of the year the lease was made. Each lease contains an automatic renewal clause. Unless the renter notifies the mobile park owner in writing sixty (60) days in advance of the automatic renewal on December 31st of his intention to leave the park, the lease is automatically renewed for another one year period. In the lease and in each prospectus, only the renters can prevent the automatic renewal from taking effect. On September 19, 1986, the mobile home park owners, Mr. Paster and Mr. Perrault gave written notice to the renters of their intent to increase the lot rental amount effective January 1, 1987, from one hundred and fifty dollars ($150.00) a month to one hundred and fifty six dollars and forty cents ($156.40) per month for a one year period. This advance notice gave the renters the opportunity to terminate their leases and relocate before the automatically renewal or January 1, 1987, which would include this lot rental price increase. None of the renters gave the owners a sixty (60) day advance written notice of their intention to leave the park at the end of the term. Therefore, potential purchasers were on notice that sixty-six (66) renters intended to automatically renew their written leases on January 1, 1987, for a one year term. On January 1, 1987, the automatic renewal went into effect. Under the lease terms and each prospectus, every renter owed one thousand eight hundred seventy six dollars and eighty cents ($1,876.80) as lot rent for the year 1987. The renters had the option to pay this amount in equal monthly installments of one hundred and fifty six dollars and forty cents ($156.40) over the twelve month period. However, the mobile home park owner's right to the one thousand eight hundred seventy six dollars and eighty cents ($1,876.80) vested on January 1, 1987. Contrary to the stipulation of the parties, the law and the evidence shows that written leases were in effect on January 1, 1987. On December 26, 1986, the COOPERATIVE purchased Oak Park Village. At the time of purchase, the COOPERATIVE took the property subject to the existing leases, and the automatic renewals which were inchoate on December 26, 1986, but which would become operative on January 1, 1987. After the sale was completed, Mr. Paster attempted to rescind the notice of rent increase, which was to take effect on January 1, 1987. As Mr. Paster no longer owned the property at the time he attempted this recision, he was unable to effectuate a recission. On December 30, 1986, the COOPERATIVE mailed written notices to its sixty-six (66) renters. The notices informed the renters that the rent would remain at one hundred and fifty dollars ($150.00) for three months and would then increase to one hundred and eighty seven dollars ($187.00) per month from April 1, 1987, to December 31, 1987. This came to an annual rental amount of two thousand one hundred and thirty three dollars ($2,133.00). This was an annual increase of two hundred and fifty six dollars and twenty cents ($256.20) per renter during the 1987 lease term, when the increase initiated by the prior owners is compared with the proposed increase. In comparing the notice of increase dated September 19, 1986, and the notice dated December 24, ,1986, it appears that the first three reasons listed for the proposed increases are identical. The only additional reason for an increase which is listed on the notice dated December 24, 1986, from the new owners is "Maintenance needs of the park." The notices sent by the new owners, the COOPERATIVE, were postmarked December 30, 1986, and were placed in the individual post office boxes of all of the tenants on the same day. Page twelve of each prospectus defines "notice" as follows: Unless otherwise provided by statute, administrative rule, or this Prospectus, any notice shall be deemed given by posting by first class mail or by actual hand delivery. Rule 7D-32.02(3), Florida Administrative Code, the applicable rule to these proceedings, provides as follows: Notice given by personal delivery shall be deemed given when actually delivered to the homeowner. Notice by U.S. Mail shall be deemed given five days after notice is placed in the U.S. Mail addressed to the mobile homeowner's last known address. As the prospectus and the amended prospectus both defer to the administrative rule in effect which defines the term "notice," the COOPERATIVE's notice did not occur within a ninety day period, even under the COOPERATIVE's theory of the case, as set forth in its Proposed Recommended Order.
The Issue Whether Petitioners' applications to license their group home facilities should have been approved by Respondent, Agency for Persons with Disabilities ("APD" or "Respondent").
Findings Of Fact The undersigned makes the following findings of fact: APD is the state agency that licenses foster care facilities, group home facilities, residential habilitation centers, and comprehensive transitional education programs. § 393.067, Fla. Stat. APD is charged with reviewing all applications and ensuring compliance with the requirements for licensure. Id. Stipulated Facts Submitted by the Parties The parties stipulated to the following facts. Loving Touch Dynamic Group Home and Loving Touch A Brighter Future Group Home are owned and operated by Loving Touch Adult Family Care, Inc. Zulia Brenovil is Loving Touch Adult Family Care, Inc.'s sole shareholder. Loving Touch's applications for licensure of the A Brighter Future and Dynamic homes were ultimately complete and met all requirements for licensure. However, APD exercised its discretion to deny the applications pursuant to Section 393.0673(2)(b), Florida Statutes. The parties dispute whether such discretion was correctly applied in this case. Until the denial of the A Brighter Future and Dynamic home applications, APD had not previously denied a license application submitted by Loving Touch Adult Family Care, Inc. Loving Touch Adult Family Care, Inc., has never had a license revoked or suspended by APD. The Notice of License Application Denial/Administrative Complaint does not charge Loving Touch Adult Family Care, Inc., with making false statements or omitting material facts in its license application under Section 393.0635(2)(a)1, Florida Statutes. Loving Touch Adult Family Care, Inc., also owns three additional homes licensed by APD: Loving Touch "My Place," Loving Touch "Transition," and Loving Touch "Unity." See also (Pet. Exs. 24-26.) APD renewed the licenses of My Place, Transition, and Unity after March 2, 2018. APD had previously renewed and/or issued the licenses of My Place, Transition, and Unity after the alleged verified findings by the Florida Department of Children and Families. Petitioners are the applicants for licensure of two group home facilities. Resp. Exs. 1 and 3. Petitioners' corporate officer and operator is Zulia Brenovil. She prepared and submitted both group home licensure applications for Loving Touch "A Brighter Future" Home and Loving Touch "Dynamic" Home to APD in December of 2017. Pre-Hr'g Stip. 3.(e); Resp. Exs. 1 and 3. Upon receipt, APD reviewed Petitioners' applications for licensure and took steps to verify the accuracy of the information provided in the applications. As part of the review, APD conducted a search of the Department of Children and Families ("DCF") records on the Florida Safe Families Network. Resp. Ex. 2, pp. 80-81; Resp. Ex. 3, pp. 186-197. APD's search of DCF records revealed four DCF reports that contained verified findings of abuse, neglect, or exploitation against Brenovil. Resp. Exs. 6, 7, 8, and 10. Those cases are outlined in more detail below. DCF Case Number 2015-147636 DCF case number 2015-147636 resulted in a verified finding of maltreatment/threatened harm against Brenovil. Resp. Ex. 6, p. 190. Tiffany Perry was the DCF investigator assigned to investigate the allegations in this case. The initial report to DCF alleged that minor child E.L., a resident of one of Brenovil's group homes, was being bullied by other children and was not receiving enough food. Perry began her investigation by performing background checks on the persons involved in the report. Perry then visited Brenovil's group home. Perry interviewed all the children in the home. Perry noted that E.L.'s bedroom door had locks on the outside of the door that would allow someone to lock E.L. inside his bedroom. Initially, Brenovil denied knowing that the locks had been switched, but Brenovil ultimately admitted to Perry that Brenovil's maintenance man had switched the locks. Resp. Ex. 6, p. 191. Perry verified the findings against Brenovil because the locks on E.L.'s bedroom were on the outside of the door and this allowed E.L. to be locked in his bedroom. Resp. Ex. 6, p. 191. This also resulted in the other children locking E.L. in his bedroom. Resp. Ex. 6, p. 191. Additionally, if E.L. was locked in his bedroom she concluded that his ability to quickly and safely escape the house in the event of an emergency, such as a fire, would be impaired. Resp. Ex. 6, p. 191. DCF Case Number 2016-297713 DCF case number 2016-297713 resulted in a verified finding of maltreatment/inadequate supervision against Brenovil. Resp. Ex. 7, pp. 209-210. Charlie Parker was the DCF investigator assigned to investigate the allegations in this case. The initial report to DCF alleged that minor child L.K., a resident of one of Brenovil's group homes, was using a cell phone to send pictures of L.K. cutting herself and to send other explicit pictures. Resp. Ex. 7, p. 209. There was also an allegation that another minor child resident, O.W., was not being closely monitored. Parker began his investigation by visiting Petitioners' group home. Upon inspection, Parker found that L.K.'s safety plan was not in L.K.'s file, as required. Parker testified that L.K.'s status was "to be seen, sight and sound." "Sight and sound" means that L.K. was supposed to be within sight of the house parents at Petitioners' group home at all times, and L.K. was never to be left unsupervised. Parker stated that he made verified findings against Brenovil because the safety plans for O.W. and L.K. were not properly located in the group home as required, and that staff members of the group home did not know the contents of the plans. Brenovil admitted to Parker that she was aware that the proper information was not available to the staff members at the group home. Based on Brenovil's comments and Parker's investigation and interviews of other staff members, Parker closed the case with a verified finding of maltreatment/inadequate supervision against Brenovil. Resp. Ex. 7, p. 211. DCF Case Number 2017-125783 DCF case number 2017-125783 resulted in five verified findings of maltreatment/inadequate supervision against Brenovil. Resp. Ex. 8, pp. 228-229. Virginia Snyder was the DCF investigator assigned to investigate the allegations in this case. The initial report to DCF alleged that five minor children at two of Brenovil's group homes were not being adequately supervised. Resp. Ex. 8, pp. 227-228. Snyder began her investigation by interviewing the minor children residents of the group homes and the staff members, including Brenovil. Part of the allegations involved a child not receiving a ride back to the group home. The child alleged that she called the group home and no one would pick her up. Brenovil informed Snyder the staff member at the group home could not pick the child up, and Brenovil could not pick the child up because she had taken headache medicine. Brenovil and Brenovil's staff member both admitted to the investigator that the minor child had been dropped off at another foster home without contacting the foster mother of that foster home in advance. Snyder verified findings against Brenovil that children were going between Brenovil's group home and another group home without staff adequately determining or knowing where the children were going or located. Additionally, one child was left at a home and neither Brenovil, nor her employees, were able to pick the child up. DCF Case Number 2009-146042 DCF case number 2009-146042 resulted in a verified finding of maltreatment/inadequate supervision against Brenovil. Resp. Ex. 10, pp. 248-249. In that case, two residents of Brenovil's group home had improper sexual relations, due to inadequate supervision. Resp. Ex. 10, p. 248. Brenovil's Response to the DCF Verified Findings Brenovil denied switching or having someone switch the locks with respect to DCF case number 2015-147636. Brenovil testified that the safety plans for O.W. and L.K. were properly in the group home during Investigator Parker's investigation in DCF case number 2016-297713. Brenovil denied talking to an investigator with respect to DCF case number 2017-125783. Brenovil testified that she submitted both applications to APD in full in December of 2017. However, the Comprehensive Emergency Management Plans, submitted as part of the applications, were dated January 2018. Resp. Ex. 2, p. 23. Brenovil did not sign the Comprehensive Emergency Management Plan until February 16, 2018. Resp. Ex. 2, p. 37. Similarly, the Sexual Activities Policy, another document submitted as part of the licensure application, was not signed by Brenovil until January 18, 2018. Resp. Ex. 2, p. 103. Similarly, the Sexual Activity Policy submitted as part of A Brighter Future's application for licensure was not signed by Brenovil until January 18, 2018. Resp. Ex. 4, pp. 184-185. After being confronted with the late documents, Brenovil admitted that the completed applications were not submitted until after December of 2017.3/ As part of the DCF investigation in case number 2015- 147636, Perry interviewed Brenovil's board member, Mr. Phillip Alexander ("Alexander"). Resp. Ex. 6, p. 194. Alexander informed Perry that the locks had been reversed for years. Resp. Ex. 6, p. 194. When confronted with this at the hearing, Brenovil stated that Alexander did not make this statement to DCF. Brenovil later testified that she knew Alexander did not make that statement because Brenovil was present for the conversation between Alexander and Perry. However, on re-direct, Brenovil acknowledged that she was not present for the conversation between Alexander and Perry. Brenovil testified that she voluntarily gave up her licenses for her DCF licensed group homes, and that there had been no threat of administrative action from DCF. However, Michelle Windfelder, a DCF licensing specialist, testified that Brenovil relinquished her licenses in lieu of revocation. Windfelder testified that, because of problems in Brenovil's home, DCF contacted Brenovil and advised Brenovil that she had the option of relinquishing her licenses, otherwise DCF was going to revoke the licenses. Windfelder testified that because of the impending revocation by DCF, Brenovil decided to voluntarily relinquish the licenses. Petitioners offered no compelling or persuasive evidence to show that APD wrongly denied their license applications, or abused the discretion afforded to it under section 393.0673(2)(b), Florida Statutes. The undersigned finds the testimony and evidence of the DCF investigators and the DCF licensing specialist more compelling and credible than that of Brenovil. Ultimately, the Petitioners did not carry their burden of proof to show that APD abused its discretion or when it denied their initial applications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order denying the license applications of Petitioners, Loving Touch "A Brighter Future" and Loving Touch "Dynamic." DONE AND ENTERED this 28th day of May, 2019, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2019.
