The Issue The issue for determination is whether Respondent committed the violations as alleged and, if so, what civil penalty is appropriate.
Findings Of Fact Respondent, T. Cayton Enterprises, Inc. is the owner and operator of Four Oaks Mobile Home Village, a mobile home park located in Titusville, Brevard County, Florida. On or around June 27, 1986, Thomas Cayton, as President of T. Cayton Enterprises, Inc. filed a prospectus for the park with Petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes. The filing statement provided that 49 lots would be offered for rent, and that none of the lots were occupied. The $10.00 per lot filing fee ($490.00) was paid. The filing was rejected as the form was deficient. Between the end of June 1986, and August 26, 1987, the date of the approval letter, eight versions of the prospectus were filed by the park owner and were reviewed by staff of the division. After each review, the owner was sent a letter outlining the deficiencies. At one point, sometime around June 1987, Mr. and Mrs. Cayton travelled to Tallahassee to meet with Selena Einwechter, the Supervisor of the Examination Section in the agency's Bureau of Mobile Homes. The prospectus submittals and correspondence to and from the Bureau comprise 425 pages. Between the filing of the first version of the prospectus and the final approval, approximately 14 months later, twelve lots were rented at Four Oaks Mobile Home Village. The lot numbers and dates of the rentals are: Lot #3 August 1, 1986 Lot #2 August 2, 1986 Lot #44 August 15, 1986 Lot #46 August 30, 1986 Lot #12 November 1, 1986 Lot #4 November 30, 1986 Lot #19 January 15, 1987 Lot #7 March 9, 1987 Lot #6 June 1, 1987 Lot #15 June 1, 1987 Lot #5 June 6, 1987 Lot #9 June 30, 1987 Six of the recitals are evidenced by written leases; the remainder were oral agreements, reflected in the office records of the park. All of the tenants commenced paying rent upon occupancy of the lot and no one was told that the leases were unenforceable. At the beginning of the process, on July 29, 1986, Thomas Cayton was sent a letter from the Bureau of Mobile Homes confirming that his prospectus filing had been received and was being examined. The bottom of the letter includes this statement, clearly displayed: NOTE: Section 723.011, Florida Statutes, and Rule 7D-31.01, Florida Administrative Code, requires the delivery of a prospectus which has been deemed adequate by the Division prior to entering into enforceable rental agreements or renewal of existing rental agreements. Renewals of existing rental agreements or entering into new rental agreements without delivery of a prospectus which has been deemed adequate will constitute a violation of the Florida Mobile Home Act. (Petitioner's Exhibit #1, composite) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes. Subsection 723.005(d)1., F.S. authorizes the Division of Florida Land Sales, Condominiums and Mobile Homes to impose a civil penalty not to exceed five thousand dollars ($5,000) against a mobile home park owner for each separate violation of Chapter 723, F.S. or regulation promulgated pursuant thereto. The statute and rule allegedly violated by Respondent provides as follows: 723.011 Disclosure prior to rental of a mobile home lot; prospectus, filing, approval.-- (1)(a) In a mobile home park containing 26 or more lots, the park owner shall file a prospectus with the diversion. Prior to entering into an enforceable rental agreement for a mobile home lot, the park owner shall deliver to the home owner a prospectus approved by the division. This subsection shall not be construed to invalidate those lot rental agreements for which an approved prospectus was required to be delivered and which was delivered on or before July 1, 1986, if the mobile home park owner had: Filed a prospectus with the division prior to entering into the lot rental agreement; Made a good faith effort to correct deficiencies cited by the division by responding within the time limit set by the division, if one was set; and Delivered the approved prospectus to the mobile home owner within 45 days of approval by the division. This paragraph shall not preclude the finding that a lot rental agreement is invalid on other grounds and shall not be construed to limit any rights of a mobile home-owner from seeking any remedies allowed by this chapter, including a determination that the lot rental agreement or any part thereof is unreasonable or unconscionable. (emphasis added) * * * 7D-31.001 Prospectus and Rental Agreement. * * * (13) The park owner shall deliver the prospectus to existing tenants prior to the renewal of their rental agreements or prior to entering into a new rental agreement. Once a tenant has been given a prospectus, the park owner shall not be required to provide another prospectus but shall provide amendments, as described in Rule 7D-30.004 and this rule. Because Four Oaks' prospectus was not approved until the end of August 1987, the 12 rental agreements entered between August 1, 1986 and June 30, 1987, violated the above provisions. Respondent claims that he thought that as long as the prospectus had been filed, he could enter into rental agreements. This would have been true under the original version of the Florida Mobile Home Act, passed by the Legislature in 1984. The relevant provision of that act is found in Section 720.302(1), F.S. (1984) as follows: Every mobile home park owner of a park which contains 26 or more lots shall file a prospectus or offering circular with the division prior to entering into an enforceable rental agreement. Chapter 84-80, Laws of Florida, Part III) This section took effect on January 1, 1985, for parks with more than 100 lots, and on July 1, 1985 for parks with less than 100 lots. (Chapter 84-80, Laws of Florida) The current version, reflected in Section 723.011, F.S., cited above, took effect on July 1, 1986. (Chapter 86-162, Laws of Florida) Respondent cannot avail himself of the "grand-father" provision of Section 723.011, since his rental agreements and prospectus approval occurred after July 1st. Further, the explicit language of the note on the July 29, 1986, letter should have put him on notice of the new requirements of the law. There are no guidelines for the imposition of a penalty, other than the $5,000.00 maximum per violation found in Section 723.006(5)(d)1. F.S. No evidence was presented as to prior violations by this Respondent. The extensive file evidences a good faith attempt to comply with a law that was still relatively new.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That Respondent be found guilty of violation of Section 723.011(1)(a), F.S. (1986), as charged, and that a civil penalty of $100.00 per violation be imposed, for a total of $1,200.00. DONE and RECOMMENDED this 13th day of September, 1988, in Tallahassee, Florida. MARY CLARK 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 13th day of September, 1988. COPIES FURNISHED: Richard Coates, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas Cayton, Registered Agent 2475 Cheney Highway Titusville, Florida 3270 Debra Roberts, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Bell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Hiram Bowden, age 65 years, has owned the property and lived for 25 years at Bowden's Trailer Park, 514 Glen Road, Orlando, Orange County, Florida. He resides with his wife, Deana, and adult son, Joe. Bowden's Trailer Park is licensed as a mobile home park by the Department of Health and Rehabilitative Services, pursuant to Chapter 513, F.S. The permit allows 21 mobile homes and several recreational vehicles. The park is served by an on-site sewage disposal system, also known as septic tanks. This system provides anaerobic treatment, with waste solids settling out and liquids passing through filters and into a drain field. Because of the high water table in the area, the Bowdens' system is above ground. That is, the tank is below ground and the effluent is pumped up to a treatment box and into perforated drain tile pipes. The drainfields, including the drain tiles, are above ground, covered with earth, with cement block walls. The Bowdens have two drainfields, a large one serving about three-fourths of the trailers and a laundry, and a smaller field serving the rest of the trailers. Tom Yurchenco has been an environmental health specialist with the Orange County Health Department since 1983. He has a 4-year undergraduate degree in environmental studies and is a certified Class B Wastewater Treatment System Operator. He was first assigned to inspect Bowden's Trailer Park on July 25, 1988. On that date he found both drainfields overgrown and cluttered with debris. There was a distinct odor, but it was impossible to tell what the problem was. His inspection report, left at the site, required the area to be mowed. The mowing was accomplished, and on August 8, 1988, Yurchenco found the drainfields leaking. The Bowdens were given a sanitary nuisance citation and a week to correct the problem. Another inspector visited the site on August 16, 1988. Yurchenco returned on September 1, 1983 and found the large field was no longer leaking. The repair job appeared, however, to be make-shift, with dirt piled and packed in. The small drainfield was leaking. On October 26, 1988, Yurchenco found the large drainfield was leaking again, with effluent flowing into a county ditch. The small drainfield was too overgrown for a close inspection. On November 4, 1988, there was no change in the conditions. A letter was sent to the Bowdens reminding them of the August 8, 1988, notice to abate, and warning them of legal action. On December 13, 1988, Thomas Yurchenco found no change in the drainfields, and referred the case for legal action. He made other inspections on January 30, 1989; February 2, 1989; February 16 and 17, 1989; April 5, 1989; and May 3, 10 and 18, 1989. On each occasion one or the other or both drainfields were leaking sewer effluent, on some days draining into the county drainage ditch. Some, but not all, of the inspection reports are signed by the Bowdens- -Deana, Hiram or Joe. The health department inspector tried to deliver the reports, but a dog guarded the Bowden's trailer and when the inspector drove up and honked his horn, sometimes there would be no response. On those occasions he left the report at the pump house. He also spoke with the Bowdens by telephone, and numerous letters were sent describing the problem and urging correction. It was obvious that some work was done from time to time in response to the requests, but nothing of lasting significance. Jim Craigo, an inspection supervisor with the Orange County Health Department, visited the site most recently on October 10, 1989, and December 11, 1989. On both days the large drainfield was operating but the smaller (northside) drainfield was leaking. Defective sewage treatment facilities are a serious health hazard. Pathogenic enteric diseases are spread by exposure to sewage effluent. The drainfields at Bowdens Trailer Park are near the trailers, where children play and pets are allowed to wander. The organisms from the effluent are also transmitted to humans indirectly by flies and roaches. Failure in a sewage disposal system such as the Bowdens' can be caused by faulty construction, poor soil, misuse of detergents, grease-laden products, driving vehicles over the drainfield or too much water. When Bowden closed the laundry, the conditions in the system serving that facility improved. The inspectors also noted that the leakage was worse when the pumps were operating, thus indicating that the system could not handle the volume being generated. Health department staff can make suggestions to owners regarding corrections to the system but the owner is ultimately responsible for identifying the cause of the failure and for taking all necessary corrective action. Hiram Bowden made some repairs to his system, but he did not consult an engineer as suggested by Inspectors Yurchenco and Craigo. He used to install septic tanks, although he does not claim that he has ever been registered by the department as required in Rule 10D-6.070, F.A.C. The repairs made to the Bowdens' system have been effective in preventing the leakage continually noted by the inspectors for approximately eighteen months. Dean Bodager is an HRS Environmental Health Consultant Environmental Health Consultant in District 7. He helps the county health units prepare legal cases. After the Bowden complaint was drafted and signed, he gave it to his secretary to send certified mail. The complaint itself is not dated, but the post office return receipt was received at Bodager's District 7 Health Program Office on April 18, 1988, with a signature "Deana Bowden", and date of delivery of April 15, 1989. Hiram Bowden admits that he received the official notice to abate dated August 8, 1988. He also admits that he received the Administrative Complaint. He claims that he called someone at HRS, but he did not respond in writing within 30 days, as required in the complaint, as he did not understand that this was a form of legal action at the time. He admits there are still problems with the small drainfield, but claims that he keeps trying to fix them and to do what the inspectors suggest.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a Final Order be entered revoking Respondents' mobile home park permit. DONE AND RECOMMENDED this 16th day of February, 1990, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1990. COPIES FURNISHED: Sonia N. Burton, Esquire HRS-District 7 Legal Office 400 W. Robinson St., Suite 701 Orlando, FL 32801 J. Thomas Bowden, Esquire P.O. Box 3187 Orlando, FL 32801-3187 R. Sam Power, Agency Clerk HRS 1323 Winewood Blvd. Tallahassee, FL 32399-0700 John Miller, General Counsel HRS 1323 Winewood Blvd. Tallahassee, FL 32399-0700 =================================================================
Findings Of Fact Respondent Toby Chapel is a co-owner of and operates DeSoto Mobile Home Park located at 132 DeSoto Park, Sebring, Florida, 33870. Robert Wolgast is employed as an environmental specialist at Highlands County Health Department. On November 10, 1983, Wolgast inspected the DeSoto Mobile Home Park as part of relicensing. During the inspection, Wolgast observed that a washing machine was discharging wastewater into the ground. Upon questioning the lady who was washing her clothes, he determined that the discharge was into a dry well. (Tr. 5) A dry well is an unapproved system that is generally made out of concrete blocks and which has no drainfield. The untreated wastewater ferments into the soil. (Tr. 8, 23, 27, 37) Dry wells have not be permitted for at least 20 years (Tr. 24). Prior to the existing rule, a waterproof tank with a drainfield was permitted for the disposal of gray water. Wolgast observed a dry well being installed at the trailer park and one being repaired on Lot 25 in the trailer park. These dry wells were made from concrete blocks and did not have drainfields. There were drains from the clothes washing areas to similar installations throughout the park. Respondent admitted to Wolgast that dry wells were being used in the trailer park. (Tr. 5, 11, 20) The subject trailer park has a central sewage system approved by the Department of Environmental Regulation and has the capacity to handle all its wastewater to include the gray water being disposed into the dry wells. (Tr. 31, 34) The wastewater from washing machines could be piped into the central sewage system. The costs of disposing of the gray water in the central sewage system would be the pipe and labor to connect up to the system. (Tr. 19) Petitioner offered to give Respondent one year until relicensing to come into compliance. (Tr. 19) George A. Wolfe, Highlands County Environmental Health Director, testified that no employee under his supervision permitted dry wells at the DeSoto Mobile Home Park. Prior to November 1983, Wolfe was not aware that dry wells were being used in any trailer park in Highlands County (Tr. 25, 26) If Wolfe had been so advised, he would have had a notice issued for correction of this deficiency (Tr. 25). James Brooks, a health department employee between April 1973 and March 1979, testified that he never had a conversation with Respondent regarding dry wells and that dry wells were not permitted. (Tr. 31, 32) Howard E. Short testified that he was employed by the health department from October 1973 through October 1977, that dry wells were not permitted, and that he never had a conversation with Respondent regarding dry wells. (Tr. 36, 38) No evidence was received that dry wells at the subject trailer park had ever been inspected or approved prior to the promulgation of the existing rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the mobile home park not be licensed until the system for the disposal of wastewater is inspected and approved by DHRS upon being determined that it complies with the applicable rules and regulations for the disposal of the gray water. DONE and ENTERED this 3rd day of August, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1984. COPIES FURNISHED: David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Amelia M. Park Department of Health and Rehabilitative Services 4000 West Buffalo Avenue Tampa, Florida 33614 James W. Kelly P. O. Box 1880 Avon Park, Florida 33825
Findings Of Fact Respondent owns and operates a mobile home park in Winter Haven, Florida, known as Swiss Village Mobile Home Park, in which lots are leased to mobile home owners on an annual lease. There are 383 lots in this park and this park has held a permit issued by the Department of Health and Rehabilitative Services since 1980 (Exhibit 1). Edward G. Ackerman and his wife entered into a lease with Respondent for the use of a mobile home lot for the period January 15, 1981 until December 31, 1981, at a monthly rental of $75.07 (Exhibit 2). That lease provides for year-to-year renewal with rent for future years based on the Cost of Living Index as determined by the U.S. Government at the nearest reporting period to the end of each calendar year (Exhibit 2). A Guaranteed Lifetime Rent Agreement (Exhibit 3) was executed by the lessor concurrently with the lease in Exhibit 2, which guarantees the rental on the lot leased to Ackerman shall not be increased more than the U. S. Cost of Living Index as long as Ackerman resides in a mobile home located on the leased lot. Using the annual change and CPI to recompute Ackerman's monthly rental has resulted in the rent increasing from $75.00 per month in 1981 to $89.50 per month in 1985 (Exhibit 4). Prior to the time of this hearing Ackerman had purchased a condominium to which he had moved and he was no longer a tenant at the Swiss Village Mobile Home Park. All leases negotiated in years subsequent to 1981, have a similar escalation clause in the rent with the additional proviso that the monthly rent would be increased each year a minimum of $5.00 per month, with the maximum increase not exceeding the CPI. Respondent has used the October All Items Consumer Priced Index For All Urban Consumers (CPI-U) in determining the annual rent increase since operations commenced. This report is received in November and by promptly advising tenants the amount their rent will change, because of changes in the CPI-U, each. tenant receives approximately 30-days notice prior to the January 1 effective date. If the terms of the lease agreement are literally complied with and the December CPI is used, Respondent would have to calculate the rent due January 1 on the CPI which it receives in January. By the time tenants are notified of the effects of the CPI on their rent for the coming calendar year, they would already have paid an inadequate sum for the January rental, and perhaps for the month of February also, and would be billed for the deficiency. There is an active Home Owners Association at Swiss Village Mobile Home Park. This association has not complained of the failure of Respondent to provide 90 days notice prior to the automatic rent change which comes every January, nor have they requested arbitration. In order to insure tenants receive 90 days notice of the rental change, due to changes in the CPI, Respondent would have to use the July Consumer Price Index, which it receives in August. Had Respondent used the July CPI report and given tenants 90 days notice of the annual rental increases since 1981, these increases would have exceeded the increase computed using the October CPI (Exhibit 6). Exhibit 6 indicates the actual adjustments of rentals since 1981, has been $5.00 per month or the CPI, whichever is less.
The Issue The issue is whether Respondent is guilty of a discriminatory housing practice based on physical handicap, in violation of the Fair Housing Act, Sections 760.20-760.37, Florida Statutes.
Findings Of Fact Respondent owns and operates McGregor Mobile Home Park in Fort Myers. His wife serves as the office manager. In February 1995, Petitioner met with Respondent and his wife to discuss leasing or purchasing a mobile home at the park. The following month, Petitioner leased a mobile home with an option to purchase. In March 1996, Petitioner purchased the mobile home. At all material times, Petitioner has rented from Respondent a mobile home lot at McGregor Mobile Home Park. Within two months of purchasing the mobile home, Petitioner filed a complaint with the U.S. Department of Housing and Urban Development. The complaint concerned Respondent’s attempt to charge her for an extra person residing in Petitioner’s mobile home. Respondent claimed that she required the person for physical assistance. In May 1996, Petitioner had a fence built around her mobile home lot. She did not obtain a building permit or the permission of Respondent, as was required under the rules of the park. Four to six weeks later, Petitioner had a deck built, again without a building permit or the permission of Respondent. At the time of the construction of the fence and deck, Petitioner had complained to local media about conditions at the park. A local television station broadcast a story about the park. The Lee County building department inspected the park and, on July 15, 1996, cited Respondent for a number of violations for, among other things, Petitioner’s fence and deck. Respondent’s wife immediately told Petitioner to remove these items. The disputes between Petitioner and Respondent seem to involve nothing more than disputes between a mobile home park operator and a park resident. Petitioner produced no credible evidence of discrimination against her on any basis. It does not appear that Respondent treated her any differently than he has treated other park residents. Petitioner also produced no credible evidence of discrimination against her on the basis of physical handicap. Approximately half of the park residents are handicapped. Also, the nature of Petitioner’s handicap is not well defined. At the hearing, she walked with a cane and limped noticeably. However, in the nearly three years that she has resided at the park, she has never used a wheelchair and very rarely used a cane.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 22nd day of December, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1997. COPIES FURNISHED: Linda Hurd 16 Circle Drive Fort Myers, Florida 33908 Terrence F. Lenick Terence F. Lenick, P.A. 12699 New Brittany Boulevard Fort Myers, Florida 33907 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondents imposed upon mobile home owners an invalid "pass-through" charge to pay for the cost of work on the park's electrical distribution system, in violation of Section 723.031(5), Florida Statutes.
Findings Of Fact Tanglewood Mobile Home Park, Inc., owns the Tanglewood Mobile Home Park located at 345 Weatherbee Road, Fort Pierce, St. Lucie County, Florida (Tanglewood). The Patricia Yu Irrevocable Trust owns Tanglewood Mobile Home Park, Inc. Respondents Chester Yu and Ronald Yu are the trustees of the trust; Respondent Carol Yu is not a trustee. References to "Respondents" shall include only Chester Yu and Ronald Yu. Tanglewood was developed in 1969. The park was originally owned and operated for many years by Respondents' father. An undated prospectus for Tanglewood Mobile Home Park (Prospectus) contains several provisions that have some bearing on this case. Prospectus Section VI.A.1 requires each mobile home owner to bear the expense of "electrical connections." Prospectus Section VI.A.2.a states that, "to the extent permitted by law, the mobile home owner may also be required to bear, in the form of increases in the lot rental, the costs incurred by Owner in installing capital improvements or performing major repairs in the Park." Prospectus Section VIII.3 states that the Owner may assess, on a pro rata basis, "pass-through charges" as rent increases. Prospectus Section VIII.3.a prohibits more than one increase in lot rental annually, except for "pass-through charges." Section VIII.1.c defines "pass-through charges" as "those amounts, other than special use fees, which are itemized and charged separately from the rent and which represent the mobile homeowner's share of costs charged to the Park Owner by any state or local government or utility company." Section VIII.3.b.4 states: "To the extent permitted by law, the mobile home owner may also be required to bear, in the form of increases in the lot rental, the costs incurred by Owner in installing capital improvements or performing major repairs in the Park." The Prospectus states that Tanglewood has 158 lots. In reality, only 148 lots are improved and available for rent. One of these lots is the park office. At present, 139 lots are leased. In October 1999, Hurricane Irene caused flooding in Tanglewood. After the flooding had receded, the power company restored power to the area, but a submerged transformer blew out and damaged part of the Tanglewood's electrical distribution system, leaving 16 mobile homes without power. After repairing or replacing the transformer, the power company employee responsible for reconnecting Tanglewood's electrical distribution system reenergized eight mobile homes, but refused to reenergize the remaining eight due to the deteriorated condition of their meter bank. Meter banks are located in groups at various points in the park. Power enters the park either above- or below-ground and is fed into individual meters for each mobile home. Each meter bank typically contains eight meters, and each meter typically has a junction box and a disconnect box. The concern of the power company employee was that the mechanical force required to reconnect power to one meter bank could possibly be too great for the deteriorated supports to withstand. As was typical of many meter banks at Tanglewood, the meter bank for these eight lots was poorly supported due to the deterioration of its support structure. Most supports at Tanglewood were made of wood, which required close monitoring and careful maintenance. Exposed to the elements, wood suffered considerable damage over time from wood rot. If the support failed, a meter bank would fall over to the ground, exposing live electrical lines in close proximity to the mobile homes and their occupants. Many meter banks throughout Tanglewood also suffered from deteriorated supports. Many meter banks were deficient because of the use of plumbing-grade PVC pipes as conduit, which are of a decreased thickness, when compared to PVC pipes approved for outdoor electrical use and, when exposed to sunlight, tend to deteriorate faster than the type of PVC pipes approved for outdoor electrical use. The use of plumbing-grade PVC pipes may not have been legal at the time it was used. Other meter banks also suffered from rusted and missing components, which might allow rainwater to enter the system and damage the parts. Some of the larger missing components left gaps large enough to allow a child's finger to penetrate and touch a live wire. Meter cans were damaged, masts (for above-ground supply lines) were inadequately supported, and drop wires (for above-ground supply lines) were too low. Confronted with the problem of eight lots without electrical service, Respondents contacted a local electrical contractor, who replaced the meter bank and its supports, using new pressure-treated wood. He also increased the service for these eight meters from 100 amps to 150 amps. The power company promptly restored electrical service after these repairs were completed. Respondents did not try to assess the mobile home owners a pass-through charge for this work. Instead, on January 28, 2000, Respondents sent the mobile home owners a notice that their monthly rent would increase by $15 (net, $12, after relieving the tenants of the obligation to pay a $3 monthly administration fee for water and sewer). The notice states that the rent increase is effective May 1, 2000, which may reflect a common commencement date on all lot leases. The letter notes that the park owner "has expended and will expend substantial sums for improvements and upgrades in the park," but warns that the park owner does not know if "any additional tax, utility or assessment prorations will be necessary." The rent increase covered, among other things, the cost of the work to restore electrical service to the eight lots whose meter bank required replacement. On February 12, 2000, the St. Lucie County Building Inspector inspected the electrical distribution system at Tanglewood. He noted the conditions described above and issued numerous citations, which were submitted to the St. Lucie County Code Enforcement office. In 1998, St. Lucie County adopted the National Fire Protection Association code, which is based on the 1996 National Electrical Code. The new code requirements prohibit a wood support system, require the placement of meters within 30 feet of the mobile home, and require underground wiring, but do not require service above 100 amps, which was the minimum level of service at Tanglewood prior to any electrical work following Hurricane Irene. On May 25, 2000, the County Code Enforcement Officer issued a notice of citations to Respondents for unsafe electrical equipment. The officer required the replacement of the remainder of the electrical distribution system. When work stopped at Tanglewood, the County Code Enforcement Officer issued other notices of citations in June 2000. Respondents responded to these demands from the County by undertaking extensive work to Tanglewood's electrical distribution system. The result was a modern electrical distribution system--at a cost of $161,912, plus $28,977.76 in finance charges, for a total of $190,889.76. By Notice of Pass-Through Charge dated August 14, 2000, Respondents advised the mobile home owners of a monthly pass-through charge of $28.61 per lot from December 1, 2000, through November 1, 2004. The notice discloses that the reason for the pass-through charges is the electrical distribution system upgrade that had recently been completed. The evidence is clear that, except for the upgrade to 200-amp service, the electrical work done in this case was governmentally mandated. This finding is supported by the reluctance of Respondents to attend to the electrical system unless a mobile home was without electricity. Despite Respondents' electrical invoices, their park-management policy obviously deferred maintenance, at least with respect to the electrical distribution system. The closer question in this case is whether the work was a capital improvement or a repair. The addition of 50-100 amps of service was a capital improvement, but it was not mandated by the government. So the capital improvement versus repair question applies to the remainder of the work. In their proposed recommended order, Respondents contend that the electrical distribution system was "completely functional" prior to the inspection and citations. This is true as to the function of conducting electricity; this is untrue as to the function of conducting electricity safely. Weakened and sometimes nonexistent supports, rusted holes, holes from missing components, and occasionally exposed wiring substantially undermined the safety of the electrical distribution system at Tanglewood. Respondents argue that new code requirements forced them to relocate disconnects closer to the mobile homes, use four-wire (not three-wire) feeder line to all mobile homes, use electrical-grade conduit, and use metal supports for meter banks. However, these are subsidiary costs of repair, not capital improvements. As contrasted to the expansion of service, the remaining work does not enlarge the capacity of the electrical distribution system. The remaining work repairs the system to make it safer, with some additional work required to meet current code requirements. Respondents argue that the work increases the value of the land. The record does not support this assertion. Even if such evidence were present in this case, it would not be determinative. Although a capital improvement normally adds value, a residential safety hazard subtracts value, so its elimination would have the appearance of adding value. Respondents argue that the work substantially extends the life of the electrical distribution system. This argument would be more appealing in the presence of an effective preventative maintenance program covering such basic needs as replacing wooden supports and metal covers when needed. However, the nature of the work, other than raising the service from 100 amps, is more retrospective than prospective; the work is really only catching up on preventative repairs and maintenance that was not done for years. Once Respondents allowed the system to fall into such a state of disrepair, the secondary costs of bringing the system up to code, such as adding four-wire feeds and relocating disconnects, do not change the nature of the expenditures; they are repair expenses, not capital improvements. Respondents have proved that a portion of the work was clearly the responsibility of individual mobile home owners. For instance, about two-thirds of the mobile homes required $150-$200 of work to separate the grounded conductors from the grounding conductors. However, it is unclear that any of such work, for which individual mobile home owners were directly responsible, was performed on all lots. Even if this work were a capital expenditure, which it is not, it could not be passed "proportionately" among all of the mobile home owners, if only some of them required the work. Respondent contends correctly that the pass-through charges are a minor violation, as defined in Section 723.006(9), Florida Statutes. Respondents fully disclosed the pass-through charges prior to assessing them. The pass-through charges did not endanger the health, safety, or welfare of the mobile home owners; to the contrary. The charges arose from a substantial expenditure by Respondents to enhance the health, safety, and welfare of the mobile home owners. The pass-through charges caused no economic harm to the mobile home owners because Respondents were authorized by the Prospectus to raise the rent by a sufficient amount to compensate for the entire cost of the work on the electrical distribution system. For these reasons, alone, neither a penalty nor a refund is appropriate; a cessation of the assessment of further pass-through charges and the imposition of the maximum civil penalty for a minor violation are sufficient. An order requiring a refund of any portion of the collected pass-through charges may have a disproportionately disturbing effect on Respondents and the mobile home owners. Respondents borrowed the full cost of the work on the electrical distribution system, and this note is payable in 48 equal monthly instalments ending on August 4, 2004. An order requiring a refund of any portion of the monies already collected may result in a significant disruption in the anticipated cash flow to Respondents, necessitating an even greater increase in rent to cover the loss of these funds. Mobile home owners who have left the park between the time of the electrical work and the time of the rent increase would unfairly be relieved of their proportionate share of the cost of this work, and mobile home owners coming to the park after this rent increase would unfairly be imposed with a disproportionately larger share of the cost of this work.
Recommendation It is RECOMMENDED that the Division of Florida Land Sales, Condominiums, and Mobile Homes enter a final order dismissing the Amended Notice To Show Cause against Respondent Carol Yu. It is further RECOMMENDED that the Division of Florida Land Sales, Condominiums, and Mobile Homes enter a final order finding that Chester Yu and Ronald Yu have assessed a pass-through charge in violation of Section 723.031(5), Florida Statutes; that Chester Yu and Ronald Yu shall cease and desist from assessing this pass-through charge upon the effective date of the final order; that the violation is a minor violation and no refund is appropriate under the circumstances; and that Chester Yu and Ronald Yu shall pay a single civil penalty of $250, for which they are jointly and severally liable. DONE AND ENTERED this 19th day of September, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 19th day of September, 2001. COPIES FURNISHED: Ross Fleetwood Division Director Division of Florida Land Sales, Condominiums, and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Janis Sue Richardson Attorney for Petitioner Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Bernard A. Conko Attorney for Respondent Cohen, Norris, Scherer, Weinberger & Wolmer 712 U.S. Highway One Fourth Floor North Palm Beach, Florida 33408
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 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 The Subject Property. The property at issue in this proceeding consists of approximately 66 lots (hereinafter referred to as the "Subject Property"), located in Highridge Estates Subdivision (hereinafter referred to as "Highridge"). Each lot is approximately one-third acre in size. Highridge and the Subject Property are located in Clay County, Florida. Highridge was filed in the public records of Clay County, Florida, as a platted subdivision in January of 1970. At the time Highridge was platted, each lot met the zoning requirements applicable to Highridge. Pursuant to then-existing zoning, each Highridge lot could be developed as a single-family residence by construction or the placement of a mobile home thereon. Adoption of the Clay County 2001 Comprehensive Plan. Clay County adopted the Clay County 2001 Comprehensive Plan (hereinafter referred to as the "Plan"), on January 23, 1992, as required by the Local Government Comprehensive Planning and Land Development Regulation Act, Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). At the time of the adoption of the Plan, the Plan contained policies which would have permitted lots such as those in Highridge that had not yet been developed to be developed as a single-family residence by the placement of a mobile home thereon. As required by the Act, the Plan was submitted to the Florida Department of Community Affairs (hereinafter referred to as the "Department"), for review and determination of whether the Plan was "in compliance" as defined by the Act. During the time that the Plan was being considered it was publicly known that the policies which would allow the placement of mobile homes on each of the lots in Highridge might not be accepted by the Department. Petitioner's Acquisition of the Subject Property. During the early 1990's William Bitetti began looking for real estate to invest in. Mr. Bitetti, through the services of Century 21 Lakeside Realty, became aware of the availability of lots in Highridge as a possible investment. Mr. Bitetti was assured by Century 21 Lakeside Realty's realtor that Highridge could be developed by the placement of a single mobile home on each lot. On or about March 25, 1992 Mr. Bitetti entered into a Contract for Sale and Purchase of 56 lots in Highridge. The following condition was included in the Contract for Sale and Purchase: this contract is only conditioned upon Buyer being able to place a Doublewide Mobile Home with attendant well, septic tank and system and electric service on each Lot, to be deter- mined by Buyer's attorney within 2 (two) weeks of the effective date of this contract. Mr. Bitetti intended that the lots would be purchased by the Petitioner, St. William Land Company, Inc. Mr. Bitetti is the sole shareholder and the President of Petitioner. Mr. Bitetti intended that the lots would be marketed for sale as single-family mobile home sites. Mr. Bitetti's attorney, Paul D. Newell, had experience with Highridge, having owned lots within Highridge himself. Mr. Newell was also aware of the language of the Plan that would allow development of the lots in Highridge. Mr. Newell had attempted to keep himself informed as to the progress of the Plan. Mr. Newell spoke to an official of the Clay County Planning and Zoning Department to confirm the language that would allow development of the lots in Highridge was included in the Plan and was told that it was. Mr. Newell also confirmed that regulations in existence at the time would allow Mr. Bitetti to market the lots as intended. The evidence failed to prove that any official of Clay County gave Mr. Newell assurances that the Plan would be approved by the Department as written. Mr. Newell was aware that the Plan had been submitted to the Department for review and had not yet been approved by the Department. Mr. Newell was also aware that it was possible that the Department would not accept the portion of the Plan that allowed continued development of developments like Highridge. On May 21, 1992 the Petitioner purchased the 56 lots in Highridge. Two of the 56 lots were subsequently sold by Petitioner. On or about October 12, 1992, Petitioner purchased an additional 12 lots in Highridge. The 12 lots purchased on October 12, 1992 and 54 of the lots purchased on May 21, 1992 constitute the Subject Property. At the time of purchase, the Subject Property lots could be sold for the installation of a mobile home on each lot pursuant to the law then in effect. The Plan was, however, still being reviewed by the Department. The Subject Property lots have direct access to a publicly owned and maintained right-of-way or to a privately owned platted right-of-way. Alleged Government Action Relied Upon by the Petitioner. On or about July 5, 1992, after acquiring the first 56 lots, Petitioner was issued a permit by the Clay County Building Department authorizing Petitioner to place a mobile home sales model on one of the lots. The evidence failed to prove that Clay County made any representation to Petitioner or Mr. Bitetti, or their representatives, that the policies of the Plan which would allow each lot of the Subject Property to be developed as individual sites for mobile homes would be approved by the Department or that, if it was, the law would not subsequently be changed. Nor did the evidence prove that Clay County represented in anyway that the Subject Property could be developed as Petitioner intended. Petitioner's Alleged Detrimental Reliance. Petitioner purchased the Subject Property for approximately $49,048.18, including closing costs. Two of the 68 lots purchased by Petitioner were subsequently sold. Petitioner realized a profit of approximately $2,582.31 on the sale of these lots. During 1992 Petitioner paid $29,515.37 to purchase and locate a mobile home as a model on one of the lots, to furnish the mobile home, and for landscaping, utilities, and the installation of a well, septic tank and power pole associated with the lot the mobile home was placed on. Petitioner also incurred the following expenses: $1,452.29 for postage associated with attempting to sell lots; $250.00 for charitable donations; $167.66 in bank account service fees; $2,957.85 for hazard and liability insurance; $36.50 in "miscellaneous" expenses; $2,355.72 for ad valorem taxes; and $510.00 in legal fees. Similar expenses were also incurred in 1993. The evidence failed to prove that Petitioner incurred any expenses or obligations for the development of the Subject Property. Rights That Allegedly Will Be Destroyed. Subsequent to Petitioner's acquisition of the Subject Property, the issuance of the permit to place a mobile home sales model on one of the lots and the acquisition of the mobile home and placement of the mobile home on one lot, the Plan was determined to not be in compliance with the Act. In particular, it was determined that the policies of the Plan which would have permitted lots such as those in Highridge that had not yet been developed to be developed by the placement of a mobile home on each lot caused the Plan to be "not in compliance". Clay County subsequently amended the Plan to eliminate the policies that would have permitted lots such as those in Highridge that had not yet been developed to be developed by the placement of a mobile home on each lot. The Plan was determined to be in compliance on April 27, 1993. As a result of the elimination of the policies pertinent to this matter, Clay County was required to modify the zoning for the Subject Property. The Subject Property was zoned for use for the smallest lot size allowed pursuant to the Plan: one-half acre. As a result of the foregoing, most of the Subject Property lots are too small to be developed individually. Pursuant to the Plan, lots that stand alone may be developed by the placement of a single mobile home thereon. Two of the 66 lots stand alone and, therefore, may be developed by the placement of a single mobile home thereon. The remaining 64 lots of the Subject Property are located in contiguous groups and, pursuant to the Plan, must be combined into one-half acre lots or larger. As a result, the Petitioner will lose the ability to sell some number of his lots for the placement of a single mobile home thereon. The evidence failed to prove what the actual economic impact will be to Petitioner if it cannot sell each lot for use as a single mobile home lot. Petitioner was notified by a letter dated August 24, 1993 and a letter to its real estate broker dated January 24, 1994 and a letter to Mr. Bitetti dated February 2, 1994, of the restrictions on the use of the Subject Property. The letters were all from Clay County personnel.
