The Issue Whether Respondent Tardiff committed the violations as set forth in the Notice to Show Cause dated February 24, 1997, and what penalty, if any, should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida charged with the responsibility to administer and to enforce the Florida Mobile Home Act, Chapter 723, Florida Statutes. At all times pertinent to this proceeding, Respondent has been the owner of Pondview Mobile Home Park. At all times pertinent to this proceeding, Respondent has had 10 or more lots offered for rent or lease. Respondent offered for rent or lease at least 22 lots. At all times pertinent to this proceeding, Respondent was a "mobile home park owner," as the term is defined in Section 723.003(7), Florida Statutes. No annual fees were paid by Respondent from 1984 until 1996. Currently, annual fees are $4.00 per lot, per year. Annual fees are payable to the division between July 1 and October 1 of each year. When Respondent increased his rent in 1993, he failed to file a copy of the lot rental increase notice with the Bureau of Mobile Homes. Under Chapter 723, Florida Statutes, the reason for the increase in rent is irrelevant to the filing requirement. When new tenants entered Respondent's mobile home park, Respondent failed to give them a prospectus or written notification of required information. Twelve homeowners have entered into rental agreements without receiving the statutorily required document. Respondent produced a cancelled check at the formal hearing showing that 1996 annual fees had been paid to the division. It is the park owner's responsibility to comply with Chapter 723, Florida Statutes. It is not the duty of the division to pursue park owners in order to obtain compliance with the Florida Mobile Home Act. Respondent has been permitted with the Department of Health (formerly Health and Rehabilitative Services (HRS)) every year since 1983.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That Petitioner enter a Final Order finding Respondent has violated the Sections of Chapter 723, Florida Statutes, as charged in the Notice to Show Cause, and ordering the Respondent to Pay annual fees for the years 1984-1995 in the amount of $814, plus a 10 percent penalty of $81.40 which equals $895.40; Pay a penalty of $1,200 for the violation of Section 723.013., Florida Statutes; Pay a penalty of $5,000 for the violation of Section 723.037, Florida Statutes; and Comply with all provisions of Chapter 723, Florida Statutes, in the future. DONE AND ENTERED this 28th day of August, 1997, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1997. COPIES FURNISHED: Suzanne V. Estrella, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Roland Tardiff Route 12 Box 394 Lake City, Florida 32025 Robert H. Ellzey, Jr., Director Division of Florida Land Sales, Condominiums, and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether state use tax is due and payable on transactions wherein the taxpayer rented mobile homes to persons for use as private residences (which the lessees were required to maintain, repair, and insure), pursuant to leases under which the lessee would acquire title to his home upon payment in full of the total rent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order withdrawing the tax assessment against Park Place. DONE AND ENTERED this 25th day of June, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2004.
The Issue Whether the Agency for Persons with Disabilities (APD) properly denied the application for licensure renewal sought for the group home facility license held by Tracy Court Group Home, owned and operated by V-Agape, LLC.
Findings Of Fact Petitioner is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential habitation centers pursuant to section 20.197 and chapter 393, Florida Statutes. At all times material to this complaint, Respondent held foster or group home facility licenses issued by APD. The current group home license issued for V-Agape, LLC, located at 19103 Tracy Court, Lutz, Florida 33548, is owned by Tonya Nelson, the sole managing member. Respondent has contracted with APD to provide the residents with Medicaid waiver developmental disability residential habitation services. HCSO conducts investigations of reports of abuse, neglect, abandonment, and threats of harm to children on behalf of DCF. Investigations of abuse, neglect, abandonment, and threats of harm are initiated by reported incidents through the Florida Abuse Hotline. Karen Gonzalez is the supervisor of the Specialized Investigating Unit. She supervises the CPIs who perform the abuse hotline investigations. Ms. Gonzalez supervised Robert Hoon and Jennifer Campbell, both CPIs. A report was made to the Florida Abuse Hotline on January 24, 2014, that a minor female resident of Respondent’s Tracy Court Group Home sustained bruising and a red mark on the back of her hand from being struck on her hands by Tonya Nelson. The resident is non-verbal and intellectually disabled. The subsequent investigation by CPI Hoon, on behalf of DCF, was ultimately closed with verified indicators for physical injury upon the minor resident living in the Tracy Court Group Home, but did not identify the caregiver responsible. CPI Hoon reviewed and discussed the investigation with Supervisor Gonzalez before he prepared the Investigative Summary (IS). When conducting investigations, the CPI reviews the prior history of incidents reported on a group home and its owner/operator. In subsection “D. Prior Reports and Service Records Implications for Child Safety,” CPI Hoon reported that: There are prior reports on the facility that include concerns for physical discipline in the foster home and to her o[w]n children. There is a verified report in 2012 for physical injury and the aps [adult perpetrators] where [sic] Tonya Nelson and the aunt as it is unknown who caused the injuries. Ms. Gonzalez testified that prior reports are reviewed in conducting their investigations to determine whether a pattern of concern for the health and safety of the children placed in that home and for the caretakers caring for the children in the home exists. The CPIs utilize DCF Operating Procedure (CFOP) 175-28, Child Maltreatment Index, as a guideline in conducting their investigations. A “verified finding” is made when a preponderance of the credible evidence results in a determination that the specific harm or threat of harm was the result of abuse, abandonment, or neglect. CPI Campbell explained the application of CFOP during an investigation: [I]t . . . breaks down the different maltreatments that are investigated under the umbrella of abuse, neglect, and abandonment, and it provides a guideline for the definitions of what the different maltreatments are, and the different types of supporting evidence and documents that may be needed when supporting a maltreatment when the investigator comes up with the findings. It’s basically a guideline for investigations, because when a report comes in it may not be just one maltreatment, there may be a number of different maltreatments; or an investigator may identify a maltreatment during the course of an investigation, and so this provides a guideline for the investigator. On May 20, 2014, a report was made to the Florida Abuse Hotline about a minor resident of Respondent’s Tracy Court Group Home. An investigation was commenced concerning unexplained bruises observed on the resident, a vulnerable minor. CPI Campbell completed the investigation and prepared the IS. She discussed the verified findings with Supervisor Gonzalez. CPI Campbell is an experienced investigator, having had 11 years of service with HCSO following five years’ experience as a CPI in Michigan. The report of May 20, 2014, was a “Supplemental” report since, according to Supervisor Gonzalez, it came in right after the initial risk sequence. Rather than creating an entire new report, this one became supplemental to the prior one. The IS stated that the resident had a large bruise on her left thigh and bruises on her left arm and the back of her leg. Ms. Nelson was not able to explain how the minor resident sustained the bruises on her leg and arm. CPI Campbell became involved with Ms. Nelson and the investigation of the group home when Supervisor Gonzalez gave her the task of completing the investigation initiated by CPI Krisita Edwards. At the time CPI Campbell took over the investigation, CPI Edwards had been assigned to other duties. CPI Campbell explained that it was not unusual for a second investigator to complete work begun by another since all their notes are kept on a central database known as the Florida Safe Families Network (FSFN), where all contacts are noted, as well as the investigative summary. CPIs Edwards and Campbell collaborated on the investigation in this case. CPI Edwards entered her initial findings in the FSFN, which was picked up and continued by CPI Campbell when she took over the case. The two CPIs have collaborated on other cases in a similar fashion. The initial documentation by CPI Edwards was performed within 48 hours of the call coming into the abuse hotline as required. CPI Campbell’s completion of the report and investigation occurred after she had spoken with CPI Edwards and discussed the matter with Supervisor Gonzalez. The result of the investigation concerning the bruises on the minor resident was that the bruises were “indeterminate for physical abuse” and “indeterminate for supervisory neglect” due to the fact that a specific cause of the injuries could not be determined. Further, since the minor resident had been removed to another group home, the report concluded that there existed no continuing threat to the resident’s well-being. Even though the resident had been removed from the Tracy Court Group Home and, therefore, was not in any danger of being further harmed, CPI Campbell continued to have serious concerns about the care of residents in the group home. She believed that several allegations of the same type of harm were being made in the group home and that they could not ask the resident how she received her injuries since she was non-verbal. Myra Leitold, an APD residential licensing supervisor, had monitored the Tracy Court Group Home for the previous nine and one-half years. On December 28, 2012, she observed that a door lock to the office and bedroom was keyed so that it could be readily opened from the inside which, she believed, created a safety hazard. Between December 2012 and August 2014, the group home was cited for ten violations of Medication Administration Procedures. On one of her visits, in December 2012, Ms. Leitold noted that no current prescription was present for one of the residents, and that the label on the prescription bottle did not match the prescription drugs inside the bottle. Additionally, she found that the accounting for one of the resident’s finances was not current and that the temperature inside the group home was a chilly 65 degrees Fahrenheit. Mitchell Turner, human services program specialist for APD, recorded numerous medication administration violations at the group home. He noted on May 30, 2013, that the medication prescriptions and instructions for the Medical Administration Record (MAR) did not match. On June 18, 2013, he discovered that the wrong dosage of prescription was being given to a resident, and Ms. Nelson admitted this mistake. Mr. Turner grew so concerned about the prescription irregularities that he requested Pamela Lassiter, a medical case management registered nurse, to review the group home. Nurse Lassiter was sent to the home where she discovered and cited the home for three additional prescription violations. Even following Nurse Lassiter’s visit, on another trip to the group home on April 9, 2014, Mr. Turner cited an additional MAR violation. He believed these violations posed a health and safety risk to the residents affected and exhibited a pattern of neglect by Respondent to the health and safety of vulnerable children. During the period when prescription and other violations were noted, on January 11, 2013, Ms. Nelson exceeded the maximum licensed capacity of three in the group home when she accepted a fourth resident. She did not have prior written approval from APD to exceed her licensed capacity of residents. On September 25, 2013, Mr. Turner issued a Notice of Non-Compliance (NNC) because Ms. Nelson again exceeded the licensed capacity for the number of residents in the group home without prior written approval from APD. Mr. Turner expressed his concerns over the repeated violations by Respondent. Ms. Nelson testified that she had received verbal approval for the placements in excess of the home’s licensed capacity from Meisha Stewart, residential placement coordinator for APD, and that on a prior occasion in 2012, she had accepted a resident after receiving verbal approval. This testimony was rebutted by both Geraldine Williams, the former regional operations manager for APD’s Suncoast Region, and Ms. Leitold, who testified she had never known APD to give verbal approval for a placement of a resident in a group home. With the high volume of referrals APD makes to group homes, they cannot operate in a system where verbal placements occur. All placements must be made in writing. When a provider receives a NNC, the provider is required to submit and successfully complete a Corrective Action Plan (CAP). Mr. Turner testified that Ms. Nelson did not submit or successfully complete a CAP for the MAR violations. On January 17, 2013, Ms. Leitold visited the group home and observed the following violations: volatile materials were not stored in approved metal containers and three prescriptions for a resident’s medications were not present. The gasoline, charcoal, and lighter fluid found by Ms. Leitold were required to be stored in approved metal containers. Keeping these materials in the open posed a safety hazard for the minor residents by giving them access to volatile materials. On November 4, 2014, Ms. Nelson sent an email to Meisha Stewart advising her she intended to accept a non-APD client for placement in the Tracy Court Group Home without APD’s prior approval. Ms. Nelson testified that since that same resident had been placed in the Tracy Court Group Home for a six-month period in 2013, she believed she did not need a new approval in 2014.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying V-Agape, LLC, d/b/a Tracy Court Group Home’s application for license renewal. DONE AND ENTERED this 6th day of November, 2015, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2015. COPIES FURNISHED: Brian F. McGrail, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Lindsey Ann West, Esquire The Plante Law Group, PLC 806 North Armenia Avenue Tampa, Florida 33609 (eServed) Gerald D. Siebens, Esquire Agency for Persons with Disabilities 1313 North Tampa Street, Suite 515 Tampa, Florida 33602-3328 (eServed) Barbara Palmer, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) David De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
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
The Issue This is a consolidated case involving both the present and prior owners of the Country Retreat Mobile Home Park: (f/k/a Christian Retreat Mobile Home Park). The case involves the issue of whether the prior owner, Respondent, Gospel Crusade, Inc., (hereinafter Gospel) is guilty of the violations alleged in the Notice to Show Cause dated June 6, 1990, issued against Gospel by the Petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (hereinafter the Division) Gospel has been charged with renewing the existing rental agreements of at least thirty-seven (37) mobile homeowners by implementing a lot rental amount increase. Gospel has also been charged with increasing the lot rental amount on May 1, 1986, with a rent increase notice that did not provide for an effective date or disclose the present rental charge for the mobile home lot. Gospel has also been charged with increasing the lot rental amount of at least forty-six mobile homeowners on February 1, 1988, without the delivery of an approved prospectus prior to the Increase. The case also involves the issue of whether the present park owner, Respondent Country Retreat, Inc. (hereinafter `Country') is guilty of the violations alleged in the Notice to Show Cause dated June 11, 1990, issued by the Division. Respondent, Country, has been charged with increasing the lot rental amount of at least forty-six mobile homeowners on February 1, 1989, by twenty-three dollars ($23.00) per month without delivering each affected mobile homeowner a prospectus approved by the Division. Country also has been charged with collecting lot rental amount increases from at least forty-six mobile homeowners which increases were imposed by the previous owner, Gospel Crusade, Inc. prior to the delivery of an approved prospectus. The homeowners' lot rental amounts were increased on May 1, 1986 and February 1, 1988, prior to delivery of an approved prospectus. At the final hearing in this matter, the Division presented the testimony of six (6) witnesses: Faye Mayberry, Chief of the Bureau of Mobile Homes; Warren Schoder, General Manager of Gospel Crusade, Inc.; and the following homeowners: Harold Hines, Martha Potteiger, Thomas Reinecke and Carmella Campora. The Division introduced six (6) exhibits into evidence which are referred to herein as Petitioner's Exhibits 1-6. Gospel presented the testimony of five (5) witnesses; Phillip Derstine, Robert Friedrich, Walt Wirries, Crystal Milligan, and Jean Mulholland. Gospel introduced two (2) exhibits into evidence which are referred to herein as Gospel Crusade Exhibits A and B. Country presented the testimony of Mr. Robert Ruggles and did not introduce into evidence any exhibits. After examining the Recommended Order and reviewing the record, it is HEREBY ORDERED:
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Division, has been the state agency responsible for the regulation of mobile home parks in Florida. Gospel was the developer and former owner and operator of a facility, located on church property in Manatee County, Florida, on which mobile homes were parked, owned and operated by individuals other than Gospel members, and known as Christian Retreat. Country is the present owner and operator of the facility in question, having purchased it from Gospel on December 15, 1988. The mobile home park in question contains 76 mobile home lots which are all rented or leased by the park owner to mobile home owners under oral rental agreements. As of June 13, 1986, all lots had been leased. Occupants of the lots do and did not have to belong to the owning church nor be a part of its ministry. No formal lease was required, but it was understood that the occupant would pay the required lot rental for as long as the lot was occupied. Because of this loose arrangement, Gospel claims it was not offering mobile home lots for rent or lease and was not, therefore, a "mobile home park owner" as defined by the statute. The evidence is clear, however, that the arrangement was formalized between the park and the lot occupants and the land was owned by Gospel. Though the occupant could remain as long as he or she desired, so long as the lot rental was paid if the party was capable of paying, and the community's standards were met, the occupant did not own the lot and paid rent to Gospel for the use of the space. There is also some indication that the amount paid by the occupants to Gospel was no more than was required to meet operating costs and included no profit to Gospel or return on equity. This payment was, however, except in those few cases where the occupant could not pay, a condition precedent to the occupant's remaining on the site and regardless of by what name called, was compensation for the use of the property. This is rent. On June 13, 1986, the Division approved Prospectus No. 4102545P, submitted by Gospel. Gospel had previously delivered to park residents a notice of increase in monthly lot rental from $82.00 to $90.00 which was to be effective on May 1, 1986, but which did not so state in its body. It was a defective notice. The prospectus was not delivered by hand, sent by certified mail or left at the lot prior to the effective date of the increase and at least 46 of the 76 occupants did not receive it. According to Reverend Derstine, Gospel's minister and leader of the congregation, some discussion took place between Gospel personnel and some owners regarding those matters contained in the prospectus, and a copy was kept in the park office for review by anyone who wanted to look at it. Further, the park's communication system, both written and electronic, may have carried notices of the availability of the prospectus. However, no copies were ever distributed to the residents in general as is required by law. The monthly lot rental was again increased, from $90.00 to $127.00, effective on February 1, 1988. This increase was preceded by written notice to all 76 lot occupants by Gospel prior to its implementation. Again, on February 1, 1989, Gospel, for the third time, increased lot rentals, this time from $127.00 to $150.00 per month. No prospectus was delivered for either the February 1, 1988 or the February 1, 1989 increases by either Gospel or Country, which purchased the park from Gospel on December 15, 1988. Though the February 1, 1989 increase was implemented by Gospel, which collected all monthly rentals paid by occupants through December, 1988, as of January 1, 1989, monthly lot rentals were collected by the new owner, Country. Prior to December 15, 1988, Country was not in any way involved in the operation, management or administration of the park. Prior to purchasing the park on December 15, 1988, Mr. Robert K. Ruggles, III, sole stockholders of Country, solicited from Mr. Schoder, then manager of Christian Retreat, proof that the prospectus for the impending lot rate increase scheduled for February 1, 1989 had been approved by the State. That proof was delivered to him. Mr. Ruggles insists that he did all he could do, from a practical standpoint, to determine that the prospectus had been appropriately sent out to the lot occupants, short of actually polling all occupants to determine it had been received. While the Division does not agree with Ruggles' position, it presented no evidence to demonstrate what further actions he could have taken, and in light of his sworn evidence regarding approval of the prospectus, it is found he did all he could do, reasonably, to insure the correctness of the procedure. When Mr. Ruggles subsequently found out there was a problem, even the Division concedes he took immediate steps to rectify it and agrees he was not enriched by the error. He has been cooperative with the Division at all times, and on February 5, 1990, the Division approved an amended prospectus for the February 1, 1989 rent increase. This approved prospectus was subsequently delivered to all residents by Country Retreat, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered herein directing that: The Notice to Show Cause against Country Retreat, Inc. be dismissed. That Gospel Crusade, Inc. pay a civil penalty of $2,500.00. RECOMMENDED this 1st day of February, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASES NO. 90-4916 & 90-4917 The following constituted my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: I. Accepted and incorporated herein. & 3. Accepted Accepted and incorporated herein. - 7. Accepted and incorporated herein. Accepted. & 10. Accepted and incorporated herein. - 13. Accepted and incorporated herein except for the names of individual residents specified which are not included. II. Accepted. - 5. Accepted and incorporated herein. FOR THE RESPONDENT, COUNTRY: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. 5. First sentence accepted and incorporated herein. Balance accepted. 6. - 8. Accepted and incorporated herein. 9. - 12. Accepted and incorporated herein. 13. Accepted and incorporated herein. 14. - 16. Accepted. 17. Accepted and incorporated herein. 18. Accepted. 19. Accepted and incorporated herein. COPIES FURNISHED: Kathryn E. Price, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1550 Joseph C. Ferrell, Esquire Ferrell and Ferrell, Chartered 1402 Third Avenue West Bradenton, Florida 34205 Robert M. Fournier, Esquire 1800 Second Street, Suite 806 Sarasota, Florida 34236 James L. Turner, Esquire Williams, Parker, Harrison Deitz & Getzen 1550 Ringling Blvd. Sarasota, Florida 34236 E. James Kearney Director Division of Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact As of June 4, 1984, ten or more spaces in Southwinds Mobile Home Park were being leased by individuals who owned the mobile homes in which they resided on the property. Some of those ten or more residents were Beverly Leight, William Daniel, Frank Addison, Keith Hellstrom, Faye Koch, and Helen Sutton. As of May 25, 1986, ten or more spaces in Southwinds Mobile Home Park were being leased by individuals who owned the mobile homes in which they resided. On May 25, 1986, Johnny Owens owned the mobile home in which he resided on leased Lot 10. As of October 28, 1986, ten or more spaces in Southwinds Mobile Home Park were being leased by individuals who owned the mobile homes in which they resided. On that date, Charles and Pauline Murphy owned the mobile home in which they resided on leased Lot 26. Upon paying the annual fee for southwinds Mobile Home Park, pursuant to Section 723.007 F.S., for the period of October 2, 1987 through October 1, 1988, Respondent Hugh D. Rowles, the park owner, advised Petitioner agency that he had dropped below ten lots available for rent. Respondent had reached this stage by simply not leasing out lots to new tenants as lots were voluntarily vacated by old tenants, and a natural attrition had occurred. The Petitioner's Fees Section accepted Respondent's word on the matter without further investigation, and Petitioner sent Respondent no more statements for the payment of the annual fee. In its business and public records, Petitioner listed Respondent and his park as not under jurisdiction of Chapter 723 F.S. On December 27, 1988, Respondent Rowles still owned Southwinds Mobile Home Park. As of that date, Beverly Leight, William Daniel, Frank Addison, Keith Hellstrom, Faye Koch, Helen Sutton, Johnny Owens, and the Murphys (8 tenants) were still residing in their respective mobile homes on the lots they were leasing from Respondent in Southwinds Mobile Home Park, as described supra. On that date, Leight, who had sold the park to Respondent in 1980, and Daniel, Addison, Hellstrom, Koch, and Sutton had been residents of Southwinds Mobile Home Park for at least three and a half years each; Owens had been a resident approximately two and a half years, and the Murphys had been residents approximately two years. In the park there were also some mobile homes owned' by Respondent which were rented as units--lot and mobile home together. To those individuals who owned their mobile homes and were leasing lots in Southwinds Mobile Home Park, Respondent sent a letter dated December 27, 1988, which provided in pertinent part: To those of you who own your own homes, I want to give you as much advance notice as possible. Sometime within the next few weeks, you will begin seeing land surveyors, soil testing people and others in the park. There is a VERY STRONG possibility that the property will be sold in JUNE of 1989. If and when the property is sold, there will NO LONGER be a trailer park here. It is STRONGLY SUGGESTED that you start making plans NOW for the removal of your trailer. If there is any way that I can assist you in relocating, I will be glad to help you. Until further notice, everything remains as usua1. After serving the letter f December 27, 1988, Respondent served the mobile home owners in Sothwinds Mobile Home Park with no other notice prior to June 1989. Faye Koch interpreted the letter of December 27, 1988 as requiring her to leave southwinds Mobile Home Park. Beverly Leight, on the other hand, understood it to mean that the park might be sold, but not that it definitely would be sold. In January 1989, Mr. Rowles offered Mrs. Koch $1,000 to leave the park by February 1, 1989. She moved out to a larger, better mobile home, after paying Respondent her overdue rent. Respondent rented the mobile home purchased from Mrs. Koch and the lot it was on, as a unit, to another person foil a short while. Rowles also purchased the mobile home of Keith Hellstrom for $1,000, which he likewise rented to someone else as a unit with his lot for a short time, He purchased Johnny Owens' mobile home for $1,000. Thereafter, Rowles sold each of these mobile homes at a loss. The Koch, Hellstrom, and Owens mobile homes were sold by Rowles for $100, $500, and $100, respectively. In March 1989, Respondent Rowles was contacted by a representative of Petitioner, apparently from the Enforcement Section, who had been contacted by Mrs. Leiht, and who advised Rowles of Petitioner agency's position that the tenancies of the remaining mobile home owners in Southwinds Mobile Home Park were subject to the protections of Chapter 723 F.S. Respondent advised Petitioner's representative that he did not regard his park as covered by Chapter 723 F.S. Respondent also requested Petitioner's representative to show Respond.ent that Chapter 723 FS was applicable to him and his park and advised the agency representative that, if he was subject to the agency's jurisdiction, he would comply. Respondent received no written response from the agency until the Notice to Show Cause was filed on July 18, 1989. On April 6, 1989, Respondent and his wife entered into a contract for the sale of the property comprising Southwinds Mobile Home Park to a third party. An addendum to the contract required Respondent to remove or pay for the removal of all personal property (that is, the mobile homes) located on the parcel upon being given thirty days notice from the third party buyer. The contract c6ntemplated that the property would continue to operate as rental property until the new owners elected to close it down or change its function. The closing on this contract for sale still had not occurred as of the date of formal hearing. The purchasers of the property comprising Southwinds Mobile Home Park have never given Respondent notice to remove any personal property from the park, nor has permitting of the property occurred such as would entitle the buyers to demand removal of such personal property. At the time Respondent entered into the April 6, 1989 contract for sale of Southwinds Mobile Home Park, only four mobile home owners were still leasing lots in the park. It may be inferred from the testimony as a whole that these were month to month tenancies. Respondent attempted to negotiate purchase of those four mobile homes. He did not suggest to any residents that they had any other options besides moving their mobile homes out of his park or selling them to him. Mrs. Leight held out for $2,500 and refused to move. She was joined in her refusal by Mr. Daniel, Ms. Sutton, and a Miss Warnock, all of whom were residing in their own mobile homes on Respondent's lots. On June 1, 1989, Respondent notified the fourmobile home owners remaining in Southwinds Mobile Home Park toremove their mobile homes no later than June 30, 1989. Thisnotification is in accord with the standards of Section 83.03(3)F.S. for month-to-month tenancies. At that point, Leight, Daniel, and Sutton were four-year residents There is noinformation as to Warnock's term of residency at southwindsMobile Home Park. On August 4, 1989, Respondent shut off waterservice to the mobile home owners remaining in southwinds MobileHome Park. As a result of Respondent's action, Beverly Leightwas compelled to move out of her mobile home in order to complywith health department requirements. In so doing, she incurredcosts of 4,486, for which she has not been reimbursed; however,she is one of the four remaining mobile homed owners (Leight,Daniel, Sutton, and Warnock) who left the subject property on orbefore October 30, 1989, pursuant to a stipulation with the Respondent whereby the Respondent deposited $10,000 with their attorney pending a judicial determination as to whether themobile home lot tenancies were governed by Chapter 723 or by Chapter 83, Parts II F.S. The Circuit Court action wherein the stipulation was filed had not yet resulted in such adetermination as of the date of formal hearing.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes enter a final order dismissing the Notice to Show Cause. DONE and ENTERED this 6th day of March, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 6th day of March, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-4572 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Accepted: 1-17, 19. Rejected as mere characterization of testimony and argument of counsel: 18 (with footnote) Respondent' s PFOF: Accepted: 1-3, 5-10, 12 Except for irrelevant, immaterial, subordinate or unnecessary material, the following PFOF are accepted: 4 Rejected as containing a conclusion of law: 11 COPIES FURNISHED: Eric H. Miller Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 F.A. Ford, Jr., Esquire Post Office Box-48 DeLand, Florida 32721-0048 E. James Kearney, Director Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 =================================================================
Findings Of Fact At all pertinent time Country Meadows Estates, Ltd. (Country Meadows), a Florida limited partnership, has been the park owner of Country Meadows Mobile Home Park (the Park) which is located in Plant City, Florida. Century Realty Funds, Inc. (Century), is the general partner of Country Meadows Estates, Ltd. Century has been in the business of operating adult and retiree mobile home parks for approximately seven years. It operates over 20 different parks. Country Meadows has been in existence for approximately five years. Approximately 510 lots have been offered for rent or lease in the Park. When the last phase of the Park is completed, approximately 750 lots will have been offered for rent or lease. Yearly rental increases at Country Meadows equate to the increase in the consumer price index, or a $5 minimum increase, whichever is greater. This rental agreement is guaranteed by Century for the lifetime of the mobile home owners as long as they reside in the Park. Charge Of Failure To Deliver Approved Prospectus. Century retained a law firm to provide assistance in securing approval of its proposed prospectus, lease agreement and park rules and regulations and paid the law firm a fee for its services. On November 27, 1984, Country Meadows filed with the Department of Business Regulation, Division of Land Sales, Condominiums and Mobile Homes (the Division), a prospectus for the Park. In order to be able to increase rent in January, 1985, as provided in existing lot leases, Country Meadows tried to get a copy of the filed prospectus to all existing lot lessees by the end of 1984. Starting December 31, 1984, Country Meadows began delivering a copy of this prospectus to each new lessee of lots in the Park. On January 7, 1985, the Division notified Country Meadows of deficiencies in the prospectus. Century, often through its supervisor of property management operations, and its legal counsel held numerous telephone conferences with the Division and numerous conferences among themselves regarding the notice of deficiencies. On February 25, 1985, Country Meadows sent the Division a revised prospectus addressing the deficiencies. Country Meadows substituted the revised prospectus as the prospectus delivered to new lessees of lots in the Park after February 25, 1985. On March 13, 1985, the Division sent Country Meadows another notice of deficiencies. The deficiencies found this time were in the original prospectus but were not noted in the first notice of deficiencies. On March 15, 1985, Country Meadows stopped delivering a prospectus to new lessees of lots in the Park after March 15, 1985. Country Meadows believed the law prohibited it from delivering an unapproved prospectus after that date but did not believe that it was prohibited from continuing to do business until a prospectus was approved. Rather, Country Meadows believed the law allowed it to continue to enter into new lot leases in the Park without an approved prospectus after March 15, 1985, but that it would have to deliver a prospectus when approved and give lessees the right to rescind their lot leases after review of the approved prospectus. On May 22, 1985, Country Meadows sent the Division a second revised prospectus. On November 6, 1985, Country Meadows sent the Division yet another revised prospectus that distinguished between increase in base rent on a lot and increase in other fees associated with rental of a lot. On November 21, 1985, the Division approved Country Meadows' last revised prospectus for the Park. Between March 16 and November 5, 1985, Country Meadows entered into 79 new Park lot rental agreements without delivering a prospectus to the lessee. Instead, the applicable filed but not yet approved prospectus was made available for inspection. Within 45 days after approval of the third revised prospectus on November 21, 1985, Country Meadows distributed an approved prospectus to all lessees, including those who entered into leases between March 16 and November 5, 1985. Century made a good faith effort to correct the deficiencies the Division cited in its proposed prospectuses. Charge Of Failure To File Advertising. In late summer or early fall, 1985, William and Nancy Hines responded to an advertisement in a magazine and asked for information. Century sent them documents. Some were not identified. One was entitled Greetings From Sunny Florida! (Petitioner's Exhibit 7). Century generally gives this document to persons who express an interest in Country Meadows, inviting them to pursue their interest and make a visit to the Park, free of charge. Later, Century sent a follow-up letter giving new information, further "selling" the benefits of Century parks, and finally asking the Hineses to indicate if they were still interested. (Petitioner's Exhibit 10). The Hineses arranged to make a visit to the park on November 15, 1985. At the Park, a County Meadows sales representative spoke with the Hineses and gave them a document entitled "Approximate Monthly Living Expenses At Country Meadows" (Petitioner's Exhibit 9). Country Meadows gives this document to persons who request information about Country Meadows. During the visit, the Hineses also were given a document entitled "Before You Purchase A Home: Questions And Answers You Should Know" (Petitioner's Exhibit 8). Country Meadows (and Century in general) usually sends this document to persons who express an interest in Country Meadows (or another Century park). It poses and answers general questions about mobile home parks and, in so doing, touts Century and its mobile home park developments. None of the documents (Petitioner's Exhibits 7, 8, 9 and 10) were filed with the Division. The Hineses entered into a lease agreement on November 15, 1985. In late winter or early spring of 1985, Elmer and Adele Johnson also saw an advertisement in a magazine and arranged to visit Country Meadows. At the visit, a Country Meadows sales representative gave the Johnsons a copy of a document entitled "Century: Mobile Home Communities, Affordable, Award-Winning, Adult Mobile Home Living-Now offering 11 outstanding Central Florida Mobile Home Communities for your inspection!" (Petitioner's Exhibit 11). It identified and listed information on each of the eleven parks, including Country Meadows. After the visit, Country Meadows sent the Johnsons a follow-up letter giving new information, further "selling" the benefits of Century parks and finally asking the Johnsons to indicate if they were still interested. (Petitioner's Exhibit 10). The letter is a standard letter (addressed "Dear Friend") used to re- contact prospective customers who have visited a Century park (as, for example, hundreds have visited Country Meadows). On March 15, 1985, the Johnsons returned to Country Meadows. They were given a copy of Petitioner's Exhibit 8 and entered into a lease agreement. None of these documents (Petitioner's Exhibits 8, 10 and 11) were filed with the Division. Petitioner's Exhibit 11 also was used and given to Myre Lutha Tillman, a prospective purchaser, in approximately July, 1985. From at least May 29, 1984, through October 6, 1986, a billboard sign advertising Country Meadows (a picture of which is Petitioner's Exhibit 4) was located on Frontage Road and could be seen from Interstate 4, approximately six miles east of Plant City. Century admits the billboard was advertising that was not filed with the Division. The billboard was removed some time after October 6, 1986, and no longer is in use. Country Meadows also placed newspaper advertisements of the Park in the Tampa Tribune on Sunday, February 2, and Sunday, February 26, 1986 (Petitioner's Exhibits 5 and 6, respectively). Century admits that this advertising was not filed with the Division. Some of the information Century gave prospective purchasers including Petitioner's Exhibits 7, 8, 9, 10 and 11-- was given only to persons who expressed an interest in a Century mobile home park or at least requested information. Century's supervisor of property management operations did not think this information was "public" and therefore not "advertising" under the mobile home park statutes. This partially explains why Century did not file this information with the Division. Charge Of False Or Misleading Advertising. Century admits that it used a pamphlet entitled "Country Meadows: The Golden Dream" (Petitioner's Exhibit 12), which it properly filed with the Division, as advertising distributed to the public. The pamphlet advertises "Exercise Facilities & Locker Rooms" and "Security with Access Gatehouse." The only locker rooms ever at Country Meadows were small package lockers located in the mailroom. The pamphlet, while technically not false, was misleading because it gives the impression of a locker room that would be used to change clothes in conjunction with the exercise room. There always has been "Security with Access Gatehouse" at Country Meadows. Initially, the gatehouse was placed at the entrance of the Park and was manned by paid residents of the Park. The gatehouse was manned during the day until early evening hours and on weekends (in part to direct visitors and guests to residents.) Later, approximately in early 1986, the gatehouse was moved back from the entrance and was equipped with automatic security gate arms. The residents were given an access code which, when punched in at the gatehouse, would automatically open the gate arm on either entering or leaving the Park. Country Meadows no longer hired residents to man the gatehouse but hired a full- time security guard who roves Country Meadows and an adjacent Century park that now has approximately 100 home sites leased. The security guard's hours of employment include the early morning and the evening hours. Sometime after installation of the new gatehouse (no witness could say when), lightning struck the gate and blew out the computer that controls the gate arm. The computer was fixed and was operative for a while without access codes. It was anticipated that the access code mechanism would be operative and new access codes would be given to the residents by the end of August, 1987. Again, no witness could testify to more precise time frames in which these events took place. Century also admits that it used another pamphlet or brochure, similar to Petitioner's Exhibit 12 but not filed with the Division, for advertising to the general public. This other pamphlet or brochure was entitled "The Golden Dream: Country Meadows" (Petitioner's Exhibits 13). It was given to Gerald Gott, among others, at a seminar in Merrillville, Indiana, sometime between October 10 and December 20, 1985. Like Petitioner's Exhibit 12, Petitioner's Exhibit 13 includes a color-coded map of Country Meadows showing: (1) "Home Sites Sold"; (2) "Home Sites Available"; and (3) "Final Phase, Future Home Site." In other colors, the map shows one clubhouse and one pool located between the first two color-coded areas (and bordered on the third side by golf course), and a second clubhouse and second pool nestled inside the third color- coded area (the "Final Phase"). Neither of the two pamphlets (or brochures) use the word "proposed" to describe the second clubhouse or second pool. The "Final Phase" of Country Meadows now is underway, and it will include a clubhouse and pool. The clubhouse will be a closed pavilion with a patio. The billboard advertising Century used for at least from May 29, 1984, through October 6, 1986, (Petitioner's Exhibit 4) stated: "Price [$29,900] Includes: Golf-Lakes-Pool- Clubhouse." However, Country Meadows actually was selling homes (and leasing lots) in the Park without golf included in that price. (Golf is optional for purchasers who pay an additional golf membership fee.) When prospective purchasers made an issue of the billboard advertising, Country Meadows on at least one occasion made an accommodation, including in the purchase price two years of free golf on the "gold card program" and charging $240 per year for golf privileges after that. The Tampa Tribune newspaper advertising (Petitioner's Exhibits 5 and 6) included the statement: "Free *Golf For 5 Years [under certain conditions]." The asterisk was intended to refer the reader to an asterisk near the bottom of the ad that said: "*No Free Golf On $32,900 Homes." Mitigation. Century has made reasonably diligent efforts in many respects both to cooperate with the Division to achieve compliance with the statutes and rules and to address and resolve the complaints and desires of residents of the Park.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Petitioner, Department of Business Regulation, Division of Land Sales, Condominiums and Mobile Homes, enter a final order: Dismissing the first and fourth charges alleged in the Notice To Show Cause; Holding the Respondent, Century Realty Funds, Inc., d/b/a Country Meadows Estates, Ltd., guilty of the violations alleged in the second and third charges in the Notice To Show Cause; Ordering the Respondent to cease and desist from the use of unfiled and false or misleading advertising; and Ordering the Respondent to pay to the Petitioner a total civil penalty in the amount of $5000 for the violations for failure to file advertising and false or misleading advertising. RECOMMENDED this day of September, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0165 Explicit rulings on the parties' proposed findings of fact are made to comply with Section 120.59(2), Florida Statutes (1985): Petitioner's Proposed Findings Of Fact: 1.-4. Accepted and incorporated. 5.-6. Subordinate and unnecessary. 7.-26. Accepted and incorporated to the extent necessary and not subordinate. Accepted and incorporated. Rejected as not within the charges in the Notice To Show Cause. 29.-30. Rejected as contrary to facts found. Subordinate to facts found. Accepted and incorporated. Rejected as irrelevant and not within the charges in the Notice To Show Cause. Accepted and incorporated. Subordinate to facts contrary to those found. 36.-38. Subordinate to facts found. 39.-41. Accepted and incorporated. 42.-44. Subordinate to facts found. 45.-47. Accepted and incorporated to the extent necessary and not subordinate. 48.-53. Accepted and incorporated. Rejected as contrary to facts found. There are lockers in the mailroom, but the advertising is misleading. Subordinate to facts found. Subordinate. Respondent's Proposed Findings Of Fact: 1-8 Accepted and incorporated. Unnecessary. Except that the reasonableness of the fee was not the subject of any evidence, accepted and incorporated. 11.-12. Accepted and incorporated. 13. Unnecessary. 14.-18. Accepted and incorporated. 19. Rejected as not proven if, when or why a third revision was demanded. The evidence proves only that the third revision provides some information the Division had requested. 20.-21. Accepted and incorporated. Rejected as contrary to fact found. (It was not simply a matter of Century waiting for the Division to approve a filed prospectus.) Accepted and incorporated. 24.-31. Irrelevant and unnecessary. (As to 29. to 31., the issues were not the same as in this case.) 32.-35. Subordinate to facts found (except it was not proven that every reasonable effort was made.) 36.-40. Accepted and incorporated except, as to 38, "financial security" was not an issue in the Notice To Show Cause and is irrelevant.) 41. Accepted and incorporated (but the lockers were in the mailroom, and the advertisement of them is misleading.) 42.-43. Accepted and incorporated. Irrelevant and unnecessary. Subordinate to facts found. Rejected as contrary to facts found. Irrelevant and unnecessary. Accepted and incorporated. See 47, above. Rejected as contrary to facts found. (Petitioner's Exhibit 12 was.) Accepted and incorporated. Accepted and incorporated (although the first notice of deficiency, while incomplete, was timely.) Rejected as not proven precisely what Century's decision, i.e., the understanding of its supervisor of property management operations, was based on. 54.-59. Accepted and incorporated. Unnecessary. Accepted and incorporated. Rejected as conclusion of law. 63.-64. Accepted and incorporated except to the extent conclusion of law. 65. Rejected as not proven. COPIES FURNISHED: Debra Roberts, Esquire Paul Thomas Presnell, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1927 Ronald L. Clark, Esquire Michael A. Tewell, Esquire MURPHY & CLARK, P.A. Post Office Box 5955 Lakeland, Florida 33807-5955 Richard Coats, Director Division of Florida Land Sales, Condominiums and Mobile Homes The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1927 James Kearney, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1927 Thomas A. Bell, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1927
The Issue The issues for consideration in this case concern the petition and challenge to the validity of Rule 7D-32.001(4); Rule 7D-32.003 and Rules 7D- 32.004(1) and (2), Florida Administrative Code. The basis for the challenge is premised upon an alleged vagueness, inadequacy in the establishment of standards for agency decisions, the vesting of unbridled discretion in the agency and the contention that the rules are arbitrary and capricious.
Findings Of Fact Petitioner is the owner of Lake Waldena Resort, a mobile home park located in Marion County, Florida. That park is regulated under the provisions of Chapter 723, Florida Statutes. Petitioner is a mobile home park owner within the definition set out in Section 723.003(7), Florida Statutes. In addition, Petitioner is presently charged, through a notice to show cause/administrative complaint, with violating Section 723.037(3), Florida Statutes and Rule 7D- 32.004(1), Florida Administrative Code, by his alleged refusal to meet with a designated homeowners' committee within 30 days of the giving of notice of a proposed increase of lot rental. That disciplinary case was heard on the same date as the present case and is awaiting disposition through a recommended order. If Petitioner is found to have violated provisions within Chapter 723, Florida Statutes and Chapter 7D-32, Florida Administrative Code, he may be subjected to a civil penalty or have other administrative sanctions imposed. The rules that are under challenge are related to the formation of the homeowners committee; the activities of that committee in ascertaining the basis for the park owners' reason for a lot rental increase; the obligation of the park owner to meet with the committee and the opportunity of the park owner to request certification of the committee's selection to participate in the meeting envisioned by Section 737.0037(3), Florida statues. Respondent by the authority set forth in Section 732.006(6), Florida Statutes, is authorized to promulgate rules which it deems to be necessary to implement, enforce, and interpret the provisions of Chapter 723, Florida Statutes. In accordance with that authority and the authority set forth in Section 723.037, Florida Statutes, it enacted the rules which are the subject of this dispute. Intervenor is a Florida non-profit corporation which represents over 150,000 mobile home owners and tenants in Florida and has as its purpose the representation of those mobile home owners in various activities, to include legal issues. The Petitioner and Respondent and the mobile home owners whom the Intervenor represents are substantially affected by the decision concerning the validity of the aforementioned rules.
The Issue Whether the amount collected from the tenants of Corley Island Mobile Manor by the Respondent for improvement and repairs to its sewage treatment plant was a "pass-through charge" as defined in Section 723.003(10), Florida Statutes, or was it collected as a matter of custom between the mobile home park owner and the mobile home owner or disclosed prior to tenancy in accordance with Section 723.031 (6), Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Petitioner is the state agency governing the landlord tenant relationship in mobile home parks subject to Chapter 723, Florida Statute. The Park is, and at all times pertinent to this proceeding, has been a mobile home park subject to Chapter 723, Florida Statutes. The Park is owned equally by Respondents, Dale B. Downing, R. E. Downing and H. W. Whitcomb. The Park is operated under the name of Corley Island Mobile Manor. The Park's wastewater is handled through a package treatment plant owned and operated by the Respondents (the WWTF). Under its original configuration, wastewater entered the WWTF through an aeration tank. The Park utilized two separate aeration tanks where the wastewater was agitated and allowed to come in contact with oxygen and enzymes. This started the treatment process. After the wastewater flowed through the first and the second aeration tanks, it spilled into a clarifier. The clarifier is a quiet tank where solids are allowed to settle into a hopper shaped bottom for removal or additional treatment. The clear wastewater at the top of the clarifier flows into a chlorine contact chamber and then out to percolation ponds which allow the wastewater to filter into the ground water through the bottom of the ponds. Prior to November of 1987, the Park was experiencing increased flows of wastewater through the WWTF. The Respondents first investigated the collection system for the infiltration of ground water into the system. The Park also inspected the mobile homes and fixed any leaky faucets, toilets, etc. The Respondents retained Altair Maintenance to examine the collection system using television cameras and to make necessary repairs. On July 8, 1983, Altair Maintenance invoiced the Park for $3,450.00 for these services. Altair Maintenance was called back for additional work in December of 1985 for the repair of manholes at a total charge of $4,124.25. Altair was again called on July 1, 1992 for maintenance of the WWTF at a cost of $1,898.75. Extensive repairs to the manholes and other parts of the WWTF were completed by Roto-Rooter Plumbing. Roto-Rooter was paid $24,090.00 for a May 13, 1983 invoice and $5,891.50 for a July 22, 1983 invoice. Even further repairs to the Park's WWTF were made by Superior Asphalt. It was paid $3,413.00 for replacement of a manhole. The above-described sums were not charged to the residents of the Park. In spite of the maintenance activities described above, the Park continued to experience problems with increased wastewater flows into the WWTF. During peak flow hours (approximately 11:00 A.M.) the normally clear wastewater flowing out of the clarifier into the chlorine contact chamber would become cloudy. This wash through of solids resulted from increased flows during peak flow hours. Wastewater would not remain in the clarifier for a sufficient period of time for the solids to settle out. These solids would spill out of the clarifier or "wash through" causing the wastewater flowing into the chlorine contact chamber to become dark due to the heavy solids content. The agency of state government having jurisdiction over the permitting and operation of wastewater treatment facilities is the Department of Environmental Regulation ("DER"). On November 3, 1987, the DER issued a warning notice to the Park because of an abnormally high amount of solids content and a high BOD level in the wastewater flowing from the WWTF. The DER issued a notice of violation on the same grounds on December 1, 1987. The agency of local government having jurisdiction over the WWTF is the Lake County Pollution Control Department. Respondent, Dale Downing, spoke with an employee of the Lake County Pollution Control Department, Roy Green, to determine the measures necessary to resolve this "wash through" of solids. Green told Dale Downing that he would not be able to make the plant perform unless the Park modified the WWTF by adding a digester and surge tank. A digester is a holding tank for solids, a by-product of the treatment process. Solids remain in the holding tank until removed by a removal service. A surge tank is a large tank placed at the front of a wastewater treatment facility which catches the initial inflow of wastewater. Regardless of the rate of flow into the surge tank, pumps release the wastewater from the tank at a uniform rate. A surge tank allows an operator to balance the flow of wastewater through the WWTF eliminating these peak flow problems. The DER permit for the Park's WWTF was due to expire in January of 1988. The Respondents applied for a new permit but were told that the standard five year operating permit could not be issued because of the warning notices and notices of violation the Park had received because of high suspended solids and BOD levels in the effluent. The DER suggested that the Park get a temporary permit while corrections were being made to bring the plant up to performance standards. Respondent, Dale Downing, traveled to the DER's office in Orlando for a meeting with its permitting supervisor, Lee Miller. Miller confirmed that the Park's only options to alleviate its WWTF problems were a connection to the City of Leesburg's municipal system or the addition of a surge tank and digester to the existing plant. The Park's engineer, Richard Newman, prepared plans and specifications for the addition of a surge tank and digester to the WWTF which were submitted to the DER for approval. The DER accepted the modifications on the condition that the Park eliminate its single-cell percolation pond and construct a two-cell percolation pond system. The modifications were completed by the Respondents. As a result, the DER issued a standard five year permit. The WWTF has been trouble free since the modifications were placed in service. The actual expenses necessary for the plant modifications and the construction of the two-cell percolation ponds were passed through to the Park residents. The total costs of these improvements were divided by the Park's 151 lots and charged to each resident on a pro rata basis ($61,644.31/151= $408.24). The Respondents considered this charge as a "pass-through charge". The maintenance, or lack of maintenance, of the Park's WWTF had no impact on the need for the modifications (capital improvements) to the Park's WWTF. There is competent substantial evidence to establish facts to show that the capital improvements, including the two-cell percolation pond, made to the Park's WWTF by the Respondents were governmentally mandated in that DER would not have granted a permit to the Respondents for the operation of the Park's WWTF without these minimum capital improvements. And, the costs of such capital improvements come within the definition of "pass-through charges" as defined in Section 723.003(10), Florida Statutes. The prospectus for the park discloses in Article VIII that each resident's lot rental amount could be increased to recover the cost of the modifications to the WWTF.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order dismissing the Notice To Show Cause filed in this case and any enforcement action against the Respondents. RECOMMENDED this 1st day of June, 1993, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5692 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. Proposed Findings of Fact 1 through 4, 8 through 13 and 15 through 21 are adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant or immaterial. Proposed Findings of Fact 5 through 7 and 14 are rejected as not being supported by competent substantial evidence in the record. Respondent's Proposed Findings of Fact. Proposed Findings of Fact 1 through 26 and 28 through 35 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant or immaterial. Proposed Findings of Fact 27 and 28 are covered in the Preliminary Statement and Conclusions of Law, respectively. COPIES FURNISHED: E. Harper Field, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 J. Allen Bobo, Esquire LUTZ, WEBB, PARTRIDGE, BOBO & BAITTY, P. A. Suite 504, One Sarasota Tower Two North Tamiami Trail Sarasota, Florida 34236 Janet Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Henry M. Solares, Director Division of Florida Land Sales, Condominiums And Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Donald D. Conn, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact The Petition filed herein, among other matters, alleges, in pertinent part, that: This is a petition for determination of the invalidity of a proposed rule of the Department of Business Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, pursuant to Section 120.54(4), Fla. Stat. (1987). The 1,000 members of the FMHA may be sub- jected to this rule and Gerry Barding as an individual are substantially affected in that the rule has the effect of allowing the DBR to schedule a mediation or arbitration if the request "does not substantially comply with Chapter 723, Fla. Stat., and these rules." Section 723.037 limits the substantial rights of a party who fails to mediate or arbitrate a dispute under Section 723.037 with the DBR . . . . * * * The substantial rights of the members of FMHA will be affected if the DBR is allowed to grant mediation or arbitration requests when the mobile home owners have not complied with the provisions of Section 723.037, Fla. Stat. (1987). The proposed rule of the DBR enlarges, modifies, or otherwise contravenes the statu- tory authority granted by Chapter 723, Fla. Stat. (1987), and is unreasonable, arbitrary, and capricious. Petitioner, FMHA, is an incorporated association not for profit whose members include approximately 1,000 mobile home park owners. All of the mobile home park members of FMHA own mobile home parks which contain greater than 25 mobile home lots which are offered for lease. A substantial number of the members of the FMHA on a regular basis annually increase the lot rental amount in their mobile home parks. The residents of the FMHA members' mobile home parks are entitled to and may request mediation of lot rental amount increases pursuant to Sections and 723.038, F.S. (1987), and the rules of the Florida Department of Business Regulation. Requests for mediation have been made in the past by homeowners residing in FMHA members' mobile home parks and many of those mediation proceedings have not yet been completed. Petitioner, Gerry Barding, is the owner of Pinelake Village Mobile Home Park located in Jensen Beach, Florida. In the past, Mr. Barding has increased the lot rental amount in Pinelake Village Mobile Home Park and expects to do so in the future. In September 1987, a request for mediation from Pinelake Village residents was not filed within 30 days of the meeting between the park owner and the residents. The Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes reviewed the request for mediation and determined that it was willing to mediate the dispute. The Division requested that Mr. Barding advise it of his willingness or refusal to participate in the mediation. Mr. Barding declined to agree to mediation of the dispute, and the mediation file of the Division was closed. Sections 723.037(4), F.S. (1987), provides in pertinent part that: Within 30 days of the date of the scheduled meeting described in subsection (3), the home owners shall request that the dispute be submitted to mediation pursuant to Section if a majority of the affected home owners have designated, in writing, that: The rental increase is unreasonable; The rental increase has made the lot rental amount unreasonable; The decrease in services or utilities is not accompanied by a corresponding decrease in rent or is otherwise unreasonable; or The change in the rules and regulations is unreasonable. [Emphasis supplied]. The Department of Business Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes does not interpret Section 723.037(4), F.S., as depriving it of authority to mediate when the request for mediation is filed more than 30 days after the referenced meeting. Section 723.037(6), F.S., provides that: No action relating to a dispute described in this section may be filed in any court unless and until a request has been submitted to the Division for mediation and arbitration and the request has been processed in accordance with Section 723.038. Section 723.037(7), F.S., provides that: If a party refuses to agree to mediate or arbitrate, or fails to request mediation, upon proper request, that party shall not be entitled to attorney's fees in any action relating to a dispute described in this section. Section 723.004(4), F.S., provides that: Nothing in this chapter shall be construed to prevent the enforcement of a right or duty under this section, Sections 723.022; 723.023; 723.031; 723.033; 723.035; 723.037; 723.038; 723.061; 723.0615; 723.062; 723.063; or 723.081 by civil action after the party has exhausted its administrative remedies, if any. Existing Rule 7D-32.005(3), F.A.C., provides in pertinent part: The homeowners' committee shall request mediation, or the homeowners' committee and the park owner may jointly request arbitration, by mailing or delivering the following items to the Division of Florida Land Sales, Condominiums and Mobile Homes, 725 South Bronough Street, Tallahassee, Florida 32399-1007: A completed Form DBR 405, which becomes effective on the same date as this rule and which may be obtained by writing to the Division at the above address, and A copy of the written designation required by Rule 7D-32.005(1), Florida Administrative Code, and Section 723.037(4), Florida Statutes; and A copy of the notice of lot rental increase, reduction in services or utilities, or change in rules and regulations which is being challenged as unreasonable; and A copy of the records which verify the selection of the homeowners' committee in accordance with Rule 7D-32.003, Florida Administrative Code, and Section 723.037(3), Florida Statutes. [Emphasis supplied] Proposed Rule 7D-32.005(4), F.A.C., which was published in Volume 14, No. 4, Florida Administrative Law Weekly (January 29, 1988), and which is here challenged, provides that: A request for mediation or arbitration shall be denied if the request does not substantially comply with Chapter 723, Fla. Stat., and these rules. The word "may," which is struck through, is to be deleted from the existing rule now in effect. The underlining indicates that the words "shall" and "substantially" are amendatory language to be added. Rule 7D-32.005(5), Florida Administrative Code, provides: If the homeowners' committee requests media- tion, a copy of the four items required by subsection (3) of this rule shall be furnished to the park owner by Certified U. S. Mail, Return Receipt Requested, at the time the request is filed with the Division. Failure to comply with this requirement may result in a delay in scheduling of a mediation meeting until the required items have been furnished to the park owner. [Emphasis supplied] Rule 7D-32.005(6), Florida Administrative Code, provides: Within 10 days from the date that the park owner or his agent receives copies of the documents required to be furnished to him pursuant to subsection (5) of this rule, the park owner shall advise the Division in writing of his willingness or refusal to participate in the requested mediation. If the park owner is of the opinion that the home owners or the homeowners' committee have failed to satisfy the statutory requirements set forth in Section 723.037, Florida Statutes, or the requirements of these rules he may indicate his willingness to participate in the mediation process without waiving his objections to the procedures used by the homeowners' committee. Rule 7D-32.005(7), Florida Administrative Code, provides: A decision by the Division to grant or deny a request for mediation does not constitute an adjudication of any issues arising under Section 723.037, Florida Statutes. Any dispute concerning the applicability of Section 723.037(6)-(7), Florida Statutes, must be submitted to a court of competent jurisdiction in the event that judicial proceedings are initiated. Rule 7D-32.001(5), Florida Administrative Code, provides: `Mediation' means a process whereby a mediator provided by the Division of Florida Land Sales, Condominiums and Mobile Homes partici- pates in discussions with a homeowners' committee and a park owner concerning the reasonableness of an increase in lot rental amount, change in park rules and regulations, or a decrease in services or utilities. The purpose of the mediator's participation is to assist the parties in arriving at a mutually agreeable settlement of their differences.
