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 Rules 7D-30.04, 7D-30.06, 7D-31.01(2), 7D-31,01(4), 7D-31.01(5), 7D-31.01(12), 7D-32.01 and 7D-32.02, Florida Administrative Code, constitute an invalid exercise of delegated authority and are arbitrary and capricious?
Findings Of Fact The following findings of fact were stipulated to and are hereby adopted: The following is a Florida non-profit corporation, whose address is 115 N. Calhoun Street, Tallahassee, Florida. The FMHA is organized and maintained for the benefit of its members, which includes approximately 950 mobile home park owners and operators. A substantial portion of these members own or operate parks which contain 10 or more lots and therefore are subject to regulation by the Division of Land Sales, Condominiums and Mobile Homes, Department of Business Regulation. The Division of Land Sales, Condominiums and Mobile Homes, Department of Business Regulation is delegated the authority pursuant to Chapter 723, Florida Statutes, to regulate mobile home parks, including the powers to enforce and ensure compliance with the provisions of the Chapter and rules promulgated pursuant thereto, including the authority to impose a civil penalty against a mobile home park owner for any violation of the Chapter, or a rule or regulation of the Division. Chapter 723, Florida Statutes, was enacted by the Florida Legislature as Chapter 84-80, was signed by the Governor and filed in the office of the Secretary of State on June 4, 1984. Rules 7D-30, 7D-31, and 7D-32, Florida Administrative Code, are rules of the Division of Land Sales, Condominiums and Mobile Homes, Department of Business Regulation, which were properly adopted in accordance with Chapter 120, Florida Statutes. The Petitioner is a trade association the members of which are engaged in business in the mobile home industry in the State of Florida. The Petitioner has members who are mobile home manufacturers, retailers, equipment suppliers and servicers, owners and operators of mobile-home rental parks, developers of mobile home parks and subdivisions, insurance firms and lending institutions. The Petitioner has 1,020 members who develop mobile home parks and subdivisions or are owners and operators of mobile home rental parks. As stipulated to by the parties, approximately 950 of the Petitioner's members are owners and operators of mobile home rental parks. The Petitioner's members are involved in the rental of between 300,000 and 350,000 mobile home spaces. A substantial number of the Petitioner's members are subject to regulation by the Respondent pursuant to Chapter 723, Florida Statutes (1985), the "Florida Mobile Home Act." In July of 1984, subsequent to the effective date of Chapter 723, Florida Statutes (1985), the Bureau of Mobile Homes was created as a part of the Division of Florida Land Sales, Condominiums and Mobile Homes. Dr. Faye Mayberry has been, and continues to be, the Chief of the Bureau of Mobile Homes. Following the enactment of Chapter 723, Florida Statutes (1985), the Bureau of Mobile Homes concluded that there was a need to clarify certain portions of Chapter 723, Florida Statutes (1985), and a need to establish procedures necessary for the filing of prospectuses and other documents. Therefore, the Bureau initiated a process to determine what rules needed to be adopted. The Bureau also received numerous inquiries from mobile home owners and mobile home park owners concerning Chapter 723. The Bureau first looked at Chapter 723 in-house and looked at the nature of inquiries it had received and then drafted a conceptual approach to part of the rules. The conceptual draft, at the invitation of the Bureau, was reviewed by representatives of the Petitioner and the Intervenor. A meeting was held with the Respondent to discuss the conceptual approach. The Respondent left the meeting with the impression that the conceptual approach was not that far off. Following its discussions of the conceptual approach with the Petitioner and Intervenor, the Respondent drafted rules pursuant to Chapter 723. Four workshops, in three locations in Florida, were conducted to receive public input on the draft rules. Advance notice of the workshops was published in the Florida Administrative Weekly. Representatives of the Petitioner had notice of, and participated in, the workshops. Subsequent to the public workshops, in October of 1934, the Respondent published proposed rules under Chapters 7D-30 and 7D-31, in the Florida Administrative Weekly. In November of 1984, the Respondent published proposed rules under Chapter 7D-32. After publication of the proposed rules in the Florida Administrative Weekly, requests for a public hearing were received by the Respondent and public hearings were held. Representatives of the Petitioner attended these hearings and had an opportunity to provide input on the content of the proposed rules. Revisions were made to the proposed rules based upon suggestions from the Joint Administrative Procedures Committee and comments made by the public during the hearings held by the Respondent. The revisions were published in the Florida Administrative Weekly in January of 1985. As revised, the rules contained in Chapters 7D-30 and 7D-31, Florida Administrative Code, became effective on January 10, 1985. The rules contained in Chapter 7D-32. Florida Administrative Code, became effective on February 6, 1085. The Joint Administrative Procedures Committee did not file any challenge to the rules after they became effective. A substantial amount of input and work went into adopting Chapters 7D-30, 7D-31 and 7D-39, Florida Administrative Code. The Petitioner had notice of the promulgation of the rules at issue and has been involved in the development and distribution of information it believed was necessary to assist its members in complying with the requirements of Chapter 723. The Petitioner has distributed memoranda, conducted seminars, distributed prospectuses and communicated with representatives of the Respondent in an effort to assist its members in complying with the requirements of Chapter 723. The Petitioner provided definitions of terms for use in prospectuses and notices required by Chapter 723 and for use in complying with the Respondent's rules. The Petitioner has attempted to assist its members in preparing a prospectus which could be filed with the Respondent and would meet the requirements of Chapter 723. Toward this end, the Petitioner prepared a sample or model prospectus and conducted a seminar on the model prospectus on December 17, 1984. The seminar was conducted in Orlando, Florida, and was attended by over 600 people. In the model prospectus the Petitioner provided three alternative methods of providing for future rental increases to be included in a prospectus. The model prospectus discussed at the December 17, 1984 seminar was for use by those mobile home parks with 100 or more rental spaces. The Petitioner also prepared a model prospectus for mobile home parks with 26 to 99 rental spaces which it distributed in June of 1985. This model prospectus was sent to all members of the Petitioner. A large number of the Petitioner's members used the model prospectus prepared by the Petitioner. Information provided to members by the Petitioner was developed by the Petitioner based in part upon its discussions with the staff of the Respondent. The Petitioner received questions from its members concerning certain aspects of the Respondent's rules and Chapter 723 which the Petitioner attempted to answer. A substantial number of the Petitioner's members advertise their mobile home parks. Mr. Neil Kullman is a member of the Petitioner and is the President of Florida Leisure Communities. Florida Leisure Communities owns and operates 3 mobile home parks in Florida. Florida Leisure Communities waits for the Respondent to approve advertising materials it files with the Respondent because it has decided that it does not want to risk using an advertisement which may be found to be defective by the Respondent. Florida Leisure Communities does not wait for approval of its advertisements by the Respondent because it believes that it is required to do so by the Respondent's rules. Time delays have been experienced in getting advertisements approved. A substantial number of the Petitioner's members have rental agreements in existence at mobile homes parks which have anniversary dates or renewal dates which would allow increases in rent. Most of the rental agreements have renewal dates or anniversary dates of July 1 or January 1. The Petitioner provided information to its members in March of 1985 and August of 1985 concerning the Petitioner's understanding of what constitutes an effective notice of lot rental increase. In explaining how members can provide a concise explanation of the reason for a proposed lot rental increase, the Petitioner told its members the following in a memorandum distributed in March of 1985: You need only to provide a concise explanation of the reason for the proposed change. Be brief! You should only include a list of factors (for rent increases), or a short plain statement for the change in services or rules or regulations. Important! As for rent increases, the rule limits the factors you may consider to those specifically identified in the prospectus. If the homeowners go to mediation or arbitration, or to court, then only those factors identified in the prospectus can be used to justify the reasonableness of the increase. Also, you should only place on the notice of increase the category of factor used to determine the rent increase level. For example: Operating costs; Prevailing market rent; Prevailing economic conditions; or Consumer Price Index (CPI). Be sure to list only those factors which are necessary to fully justify the rent increase. In August of 1985 the Petitioner provided the following guidance to its members with respect to how to provide a concise explanation of the reason for a lot rental increase: 4. You need only to provide a concise explanation of the reason for the proposed increase. Be brief! You should only include a list of factors, or a short plain statement of the reason or reasons for the increase. For example, a response might be: "The reasons for the increase are increased operating costs, prevailing market rent, and prevailing economic [sic] conditions, as set forth in the prospectus." You need not to go [sic] into great detail as to the specific costs which may have increased during the course of the year which you may want to take into consideration, or do you need to explain what is intended to mean [sic] by prevailing market rent or prevailing economic conditions. You need only to include a concise explanation of the reasons for the increase. The recommendation of the Petitioner to its members concerning how to provide a concise explanation of an increase in lot rental was basically that the member refer to factors which might cause a rental increase as provided in the member's prospectus. In the model prospectus recommended by the Petitioner to its members in June of 1985, the Petitioner recommended that the following explanation of the manner in which lot rental could be increased should be used by its members: is as follows: Increase in Lot Rental The manner in which lot rental will be increased, Definitions. As used in this Section VIII: "Lot rental" means all sums paid or to be paid by the mobile home owner in consideration of leasing or renting a mobile home lot or lots in the Park. Such sums include any and all rents, special use fees, pass-through charges, installation and set-up charges, and other fees, charges and assessments imposed by the Owner. "Special use fees" mean those separately itemized amounts for specific services or privileges which are charged in addition to rent, including, but not limited to, such charges as guest fees, pet fees and entrance fees. "Pass-through charges" are defined as those amounts, other than special use fees, which are itemized and charged separately from the rent and which represent the mobile home owner's share of costs charged to the Park Owner by any state or local government or utility company. Notice of Increase. The mobile home owner shall be notified of any increase in the lot rental at least 90 days prior to the effective date of such increase. Lot Rental-Increases. General. The lot rental and each of the categories of charges current Iv or hereafter comprising a part of the lot rental are subject to periodic increases by the Owner. However, except for increases resulting from the imposition of pass-through charges, the lot rental will not be increased more frequently than annually, except for initial tenancies which commence after the beginning of the annual rental term. Factors Affecting Increases. Factors which may affect the level of increases in lot rental are as follows: Increased costs, which refers to any increases experienced by the Owner since the delivery of notice of the last increase in the lot rental in the total costs arising out of the ownership, operation and management of the Park. Prevailing Market Rent--Refers to the lot rental imposed in mobile home parks comparable to this Park, or the lot rental willingly paid from time to time by new residents of this Park. A park will be deemed comparable if it is located in the same general vicinity as this Park, and offers similar densities, amenities and services. Prevailing Economic Conditions--are intended to refer to those factors which bear on the economic viability of a real estate investment and which would be considered by a prudent businessman in establishing the base rent and other charges or any increase in the amount thereof. These factors may include: the costs attendant to the replacement of this Park in the economic environment existing at the time of any rental increase, including land acquisition costs, construction costs, and losses associated with the operation of a park prior to full occupancy, and the level at which the lot rental must be established in order that the Park Owner will realize a reasonable return on the costs referred to in this clause (1); the level of interest rates and other financing charges associated with construction, interim and permanent financing; (3) the availability of alternative forms of real estate investment capital; (4) the levels of the Consumer Price Index, defined as the United States Department of Labor, Consumer Price Index, U.S. City Average--All Urban Consumers, 1967 100, or, in the event of the discontinuation of publication of the Consumer Price Index, then an alternative index which has been reasonably related to the Consumer Price Index in evaluating economic conditions, and which has been, or can reasonably be expected to be, generally accepted as a replacement index for the Consumer Price Index; (5) the level at which the lot rental must be established in order that the Owner will realize a reasonable return on the "Owners's Equity"; for this purpose, the "Owner's Equity" refers to the fair market value of the Park from time to time, less existing mortgage indebtedness; (6) other economic factors which might reasonably be expected to affect-either the value of the Park, the rate of return available to the Owner of the Park at the existing level of rent, the present value of the real estate investment in the then current economic conditions, and which would be taken into consideration by a prudent businessman in considering the amount of rental increase required in the Park in order -to realize a rate of return similar to other at risk real estate ventures from the then current value of the Park. To the extent permitted by law, the mobile home owner may also be required to bear, in the form of increases in the lot rental, the costs incurred by Owner in installing capital improvements or performing major repairs in the Park. Additional Considerations The reasons for the increase in lot rental or other fees and charges will be set forth in the notice of increase. Only those factors set forth in the notice will be relied upon by the Park Owner as justification for the rent increase. The Park Owner reserves the right to amend this Prospectus or any Exhibit thereto from time to time to the extent permitted by law to conform with changes in relevant statutory provisions or changes in relevant rules of the Department of Business Regulation, or any other agency having jurisdiction over the operation of this mobile home park. An increase in one or more of the above- described factors may result in an increase in the mobile home owner's rent or other charges. Tenants assuming the remaining portion of a tenancy as prescribed by Section 723.059(3), F.S., are hereby notified that upon the expiration of the assumed tenancy, the Park Owner expressly reserves the right to increase lot rental amount in an amount deemed appropriate by the Park Owner with such increase being imposed in the manner disclosed in the Prospectus delivered to the initial recipient. A number of the Petitioner's members used the notice of lot rental increase recommended by the Petitioner and the portion of the prospectus quoted in finding of fact 33. The Respondent advised some of the Petitioner's members that the notice recommended by the Petitioner was deficient under the Respondent's rules. The notice was deficient because the Respondent determined that the notice did not provide a concise explanation of the reason for a lot rental increase. The notice used by several members of the Petitioner stated that the reason for the increase was "prevailing market conditions and economic conditions." The Respondent notified members that used this explanation that it was deficient. The Respondent also told those members that "the explanation must include the specific changes in the factors described in the prospectus under prevailing market conditions and economic conditions which were the reasons for the change." The Petitioner challenged the Respondent's interpretation of its rules concerning notices in Leon County Circuit Court. The Court advised the parties to work things out following a preliminary injunction hearing. Representatives of the Petitioner and the Respondent met and discussed the problem with the Petitioner's notice and the Respondent subsequently indicated that several examples of a concise explanation for lot rental increases proposed by the Petitioner were acceptable. The method of increasing rent provided in existing rental agreements at various mobile home parks varies. Because existing tenants have different anniversary dates or renewal dates, if notice of a lot rental increase affecting some tenants is given to all tenants of a park, it is more costly to the park owner. It is possible, however, to mail one notice of rental increase to all tenants of a park at the beginning of each year. Florida Leisure Communities has filed a prospectus for all three of its mobile home parks in Florida. The prospectuses have been approved by the Respondent. At the Colonnades, a Florida Leisure Communities park, 156 lots have been completed and 19 of those lots have been occupied. Improvements to be made by Florida Leisure Communities are specified in the prospectus for the parks. In order to keep pace with market conditions and provide different improvements, a new prospectus has to be filed with the Respondent. At Brittany Estates, another Florida Leisure Communities park, after a prospectus had been distributed to all tenants, a tornado destroyed 50 mobile homes. Most of the tenants of the 50 homes voluntarily terminated their leases. Mr. Bernie Covington is vice-president and director of the parks of Angeles Real Estate Management Company (hereinafter referred to as "Angeles"). Angeles owns and operates 13 mobile home parks in Florida. Angeles has filed a prospectus for Heritage Village, a 436 site park. The prospectus had not been approved or distributed as of the date of the hearing of these cases. Heritage Village owns and operates its own sewage treatment plant and water system. Heritage Village will be required, however, to tie into the County's water and sewage system at substantial costs. Existing leases with tenants of Heritage Village allow the park to pass the impact fees ($1,250.00 for sewage and $1,149.00 for water, per site) and the cost of tieing into the force main ($30,000.00 to $35,000.00) on to the tenants. The cost of tieing into the force main may not be passed on to the tenants under the Respondent's rules, however. Angeles has also filed a prospectus for Pleasant Living Mobile Home Park which has 218 tenants. The prospectus had not been approved or distributed as of the date off the final hearing of these cases. Angeles would now like to provide a secure area for storage of boats, RVs and cars and charge a fee for this service. The prospectus being reviewed by the Respondent, however, does not indicate that a secure area will be provided.
The Issue Did Westside Ridge Adult Mobile Home Community (Westside) violate Rule 10D-26.085, Florida Administrative Code, by having standing water in its mobile home park for more than 48 hours? If so, is this sufficient basis for the Department of Health and Rehabilitative Services (Department) to deny Westside's application for renewal of its mobile home park operating permit?
Findings Of Fact Upon consideration of the deposition testimony and documentary evidence presented by the parties in this case, the following findings of fact are made: Westside Ridge, Ltd., a Florida limited partnership, is the owner of Westside Ridge Adult Mobile Home Community. Under Chapter 513, Florida Statutes, the Department, in conjunction with the representative county public health units, such as the Polk County Public Health Unit, is the agency charged with the responsibility of inspecting mobile home parks such as Westside to assure their compliance with public health laws and rules. On August 14, 1995, the Department inspected Westside and found water underneath some of the mobile homes in the park; water covering some of lots in the park; and water ponding in some of the streets in the park. This water had been standing for more than 48 hours. The Department's inspector issued an Inspection Report dated August 14, 1995. This report indicated that the unsatisfactory condition found at the mobile home park was the park drainage. The report stated that all violations of standing water must be corrected within 14 days. Westside received a copy of the Inspection Report from the August 14, 1995, inspection in a timely manner. Sometime around September 10, 1995, Westside retained the services of J. D. Smith Exterminators, Inc. (Smith), a professional pest control service, to treat any standing water in Westside's mobile home park. Westside has not corrected the conditions which affected the drainage in the mobile home park and resulted in the water standing in the park for over 48 hours. The Department contends that the rule requires Westside correct the conditions - either fill in the depressions in the soil or provide proper drainage of the water - which affect the drainage and results in water standing over 48 hours in the mobile home park. Westside contends that the rule does not prohibit water standing over 48 hours where the water is treated and does not contribute to mosquito or fly breeding. By letter dated September 15, 1995, Westside advised the Department that Westside would retain a professional pest control service to prevent any standing water from contributing to mosquito or fly breeding. Westside also requested that the Department advise it if the Department intended to seek enforcement pursuant to the Department's interpretation of Rule 10D-26.085, Florida Administrative Code. Apparently, the request concerning enforcement was made as a result of a telephone conversation between one of the Department's representatives and Westside's counsel on Thursday, September 14, 1995, concerning the Department's interpretation of the rule and what the Department intended to require Westside to correct the alleged violation of the rule. The Department did not advise Westside or its counsel of its intent to pursue enforcement. On or about September 10, 1995, Smith visited Westside mobile home park and found water standing as reported on the August Inspection Report but did not treat the water because Smith did not have the necessary chemical on hand. On or about September 13, 1995, Smith returned to Westside's mobile home park to treat the standing water but, upon arrival, Smith did not find any standing water at the mobile home park that required treatment. Before Westside's current annual mobile home park operating permit expired, Westside timely filed its application with the Department for the renewal of its mobile home park operating permit. The Department issued a Denial Of Application For Mobile Home Park/Recreational Vehicle Park Operating Permit dated November 26, 1995, denying Westside's application for its annual mobile home park operating permit. The basis of the Department's denial was that Westside mobile home park had violated Rule 10D-26.085, Florida Administrative Code, in that the mobile home park had been found to have standing water in the park in excess of the 48 hour period allowed by the rule. The denial also warned Westside that unless it had requested a hearing, or ceased operating the park, or remit a plan of action to remove all standing water and measures to prevent reoccurrence of the violation that Westside would be cited for operating without a valid permit within 30 days. During the summer of 1995, there was an above-average rainfall in Polk County, Florida which resulted in flooding problems in mobile home parks located throughout Polk County, Florida, including Westside's mobile home park. Based on the testimony of the Department's employees involved with the inspection of mobile home parks, the flooding conditions were the worst seen in Polk County, Florida in 25 years. The is no evidence of how long water had been standing in Westside's mobile home park before the Department's inspection on August 14, 1995, other than it had been standing over 48 hours. There is no evidence of Westside being cited for having water standing in its park for over 48 hours at any time previous to the August 14, 1995, inspection. There is no evidence of any water standing, for any length of time, in Westside's mobile home park, after September 14, 1995. Although the inspection report for January 10, 1996, indicates water standing in drainage ditches along the sides of Westside mobile home park, there is no evidence that these drainage ditches are in fact within the park boundary. The Department did not inspect Westside mobile home park again until January 10, 1996, which was after the issuance of the denial of the permit on November 26, 1995. There were no violations or unsatisfactory conditions, such as drainage, indicated on the Department's January 10, 1996, Inspection Report, notwithstanding that the Department's position is that since Westside has failed to correct the drainage problem which resulted in the standing water it continues to be in violation of Rule 10D-26.085, Florida Administrative Code. Treating standing water with chemicals to prevent mosquito and fly breeding does not solve all of the public health problems that may be associated with water that has been standing for long periods of time. It is the Department's position that water standing in the park for more than 48 hours is a violation of Rule 10D-085, Florida Administrative Code, and, without any other violation, is sufficient to deny the application for the operating permit. Other than the violation for having standing water in the park for over 48 hours and the failure to correct the conditions which resulted in the standing water, the Department concedes that Westside meets all other criteria for granting the application for a mobile home park operating permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order granting Petitioner's application for a mobile home operating permit. However, it is further recommended that the Department monitor the Westside mobile home park so as to determine if conditions presently existing at the park result in water standing in the park in excess of 48 hours under normal rainfall. If water found is to be standing in the park in excess of 48 under normal rainfall, the Department should then move to require Westside to correct the condition. RECOMMENDED this 7th day of May, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0273 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. Proposed findings of fact 1 through 11, 13, 16, 17, 19 through 25, 29, 30, 31 and 33 through 36 are adopted in substance as modified in the Findings of Fact 1 through 22. Proposed findings of fact 12 and 26 through 28 are neither material nor relevant. Proposed findings of fact 14, 15 and 37 through 41 are argument rather than findings of fact. Proposed findings of fact 18 and 32 are not supported by evidence in the record. Department's Proposed Findings of Fact. Proposed findings of fact 1 through 22 are adopted in substance as modified in Findings of Fact 1 through 22. Proposed findings of fact 23 and 24 are argument rather than findings of fact. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Timothy F. Campbell, Esquire Clark, Comparetto & Campbell, P.A. 4740 Cleveland Heights Boulevard Post Office Box 6559 Lakeland, Florida 33807 Jack Emory Farley, Esquire Department of Health and Rehabilitative Services District 14 270 Bartow Municipal Airport Bartow, Florida 33830
The Issue The issue to be determined is whether Respondent engaged in retaliatory conduct against Petitioner in violation of Section 760.37, Florida Statutes (2000), due to assistance rendered by Petitioner to a third party in filing a complaint against Respondent for discriminatory housing practices.
Findings Of Fact Petitioner was, at all times relevant to this proceeding, a tenant of Respondent at the Pink Top Mobile Home Park in Tavares, Lake County, Florida. Purportedly in August 1999, Petitioner filed a Petition for relief with FCHR alleging harassment of Petitioner by Respondent (FCHR No. 99-W396H). Petitioner claims the harassment was in retaliation for assistance he provided to a third party, Joseph Ralabate, in the filing of an earlier complaint with HUD and FCHR dated May 11, 1999, against Respondent for housing discrimination (FCHR No. 99-W241H). Petitioner's claims of harassment included the following: violation notices about his cat; enforcement by Respondent of rules requiring payment of guest fees for additional residents in a mobile home within the park; and notification to Petitioner that he was watering his lawn excessively. Petitioner also claims Respondent deprived him of a storage shed which he purchased from another tenant at the time the other tenant was vacating the park, and denied Petitioner the right to construct a new storage shed of his own. Finally, Petitioner submitted evidence concerning an incident in which he was forcibly removed from the park office by Mr. Carlos Rodriguez, in the course of which Petitioner claims to have sustained physical injuries. Petitioner became a tenant at Pink Top in April 1997. There is no evidence that he experienced any problems with Respondent about his tenancy until January 1999, when Respondent through her counsel sent Petitioner a formal notification that he was in violation of park rules for having a pet cat, and for failing to pay guest fees for an additional person temporarily residing in his home. A second notice was sent to Petitioner concerning the cat, and excessive lawn watering, on March 10, 1999. Although both letters indicated that failure to comply with park rules may lead to eviction, Respondent never filed eviction proceedings, nor followed up on the rule violation notices notwithstanding Petitioner's admission that he kept the cat. Mr. Ralabate's complaint alleging housing discrimination toward his handicap was dated May 11, 1999. Respondent received written notice by FCHR of the Ralabate complaint, in early June 1999. Both correspondence occurred several months after the delivery of the rule violation notices. Although Petitioner testified that he verbally informed Respondent, prior to receiving the rule violation notices, that he had filed, or would be filing, a complaint about her alleged discrimination against Mr. Ralabate, Respondent denied having been told. With regard to the storage shed disputes between the parties, the evidence shows that some time prior to May 13, 1999, before Respondent received written notification of the Ralabate complaint, Petitioner requested approval to demolish his existing storage shed and construct a new one. On May 13, 1999, counsel for Respondent notified Petitioner in writing of the requirements in the park rules for storage sheds, and requested detailed plans and information about the proposed new shed. Shortly thereafter, Respondent became aware of the allegations filed against her, and notified Petitioner that all aspects of Petitioner’s tenancy in the park were being held in abeyance, until the resolution of the pending complaints. Thereafter, Petitioner purchased an existing shed from another tenant in the park, and alleges that Respondent denied him possession of the shed, as retaliation. Petitioner, however, did not obtain a bill of sale or other proof of purchase when he purportedly bought the shed. It was not until May or June 2000, a year after the alleged date of purchase, and after Respondent had denied his undocumented claim to the shed, that Petitioner obtained a bill of sale, on which he wrote in his own handwriting a date of sale which differed significantly from the date on the document itself. Petitioner submitted this post-dated, altered bill of sale to Respondent and again demanded the shed. Respondent denied his request on the basis that when the other tenant vacated the park, he owed outstanding rent which was being partially satisfied by the shed. Petitioner also alleges that retaliation and physical harm occurred when he attempted to persuade Respondent, in her office, to allow him to construct a new shed. He claims he was forcibly thrown out of the office by an individual named Carlos Rodriguez, who was related to Respondent. There are significant factual disputes about the incident, however it was referred to the State Attorney’s office which declined to prosecute The State Attorney’s office conducted a second review and again declined to prosecute. The preponderance of the evidence, including law enforcement reports and documents submitted by Petitioner after the DOAH hearing, suggests Respondent, who is an elderly lady and partially handicapped, was in fear of Petitioner. The reports, including an eyewitness account from a disinterested third party, indicate that Petitioner tripped over an obstruction during his departure from the office. Petitioner finally argues that he was forced out of Pink Top Mobile Home Park by Respondent's continued harassment, lost his investment in the home due to the minimum age requirements, and suffered unknown monetary damages. However, Petitioner admits that he had minimal contact with Respondent after being served with the rule violation notices in early 1999, except for his request to construct a new shed and his attempt to purchase a shed from another tenant and admits being told when he purchased the home that tenants in the park must be over the age of 55. Although it is apparent that Petitioner and Respondent had disagreements and were not cordial with each other, there is insufficient evidence to conclude that Respondent acted in a discriminatory or retaliatory manner against Petitioner.
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 Petitioner’s allegation of retaliatory conduct and Petition for Relief. DONE AND ENTERED this 31st day of July, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 31st day of July, 2001. COPIES FURNISHED: Robert S. McCance 14422 Hibiscus Street Tavares, Florida 32778 Fred A. Morrison, Esquire McLin, Burnsed, Morrison, Johnson Newman & Roy 12000 West Main Street Post Office Box 491357 Leesburg, Florida 34749-1357 Azizi M. Dixon, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149
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 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.
