Findings Of Fact Lake Waldena Resort is a mobile home park as defined by Section 723.003(6), Florida Statutes. It is located at Route 4, Box 300, Silver Springs, Florida 32688. The mobile home park is subject to regulation pursuant to Section 723.002(1), Florida Statutes. That law is administered by the Petitioner. All Respondents are mobile home park owners as defined by Section 723.003(7), Florida Statutes. The Hilgemans are park owners and have been at all relevant times for this dispute. At the times relevant to the inquiry Pat Montgomery was the park operator, which equates to park owner under the terms of the statute. Pat Montgomery concluded her affiliation with Lake Waldena Resort in May 1989. Pat Montgomery, as the park operator, who had been employed by Donald L. Hilgeman, collected the rent from the mobile homeowners who had lots within the park. She attended any problems that the mobile homeowners confronted her with. She ordered supplies for the operation of the mobile home park. She sold mobile homes for use in the park and ordered them for sale. She was involved with the provision of carports and screen rooms associated with mobile homes in the park. She was responsible for the payroll and basically everything that transpired in the day-to- day operations in the mobile home park. The Hilgemans had limited affiliation with the park. Mr. Hilgeman was involved with doing physical labor at the park and was Montgomery's employer. On July 26, 1988, a notice of lot rental increase was mailed to all tenants in the Lake Waldena Resort Mobile Home Park. This notice was provided in accordance with Rule 7D-32.002(1), Florida Administrative Code. The basis for this increase was associated with the economic pressures on the park owner brought about by increases in real estate taxes, insurance costs, sanitation fees, other fees payable to the Petitioner, and wage increases. An exemplar of the form notice which had been sent out to each mobile home owner may be seen in Respondents' Exhibit 5 admitted into evidence. All notices were dispatched by U.S. Mail. As contemplated by Rule 7D-32.002(4), Florida Administrative Code, official notice was considered to have been made within five days of July 26, 1988, which corresponded to July 31, 1988. A meeting within 30 days of the provision of notice as described in Section 723.037(3), Florida Statutes, would equate to August 30, 1988. The proposed lot increase was from $78 to $88. At the time of notification of the lot increase Lloyd Carter was the vice president of the homeowners' association at Lake Waldena Resort. He was residing in the mobile home park. Gordon Gibson was the president of the homeowner's association who, at the moment of the lot increase, was residing in Minden, Ontario, Canada. Mr. Carter picked up a copy of the notice of lot rental increase from the office at the mobile home park shortly after the notice had been prepared on July 26, 1988. He then called Mr. Gibson in Canada and explained the particulars of that notice. At that time, Mr. Carter stated no concerns to Mr. Gibson about the notice of lot rental increase. He merely informed Mr. Gibson of the pendency of the lot rental increase. Under ordinary circumstances the' expected time for delivery of mail dispatched from the United States to Canada was in the neighborhood of five to seven days; however, in August 1988, the Canadians were undergoing a postal strike which delayed matters. Nonetheless, Mr. Gibson received his copy of the notice and on August 4, 1988, he wrote Mr. Hilgeman. A copy of that correspondence may be seen as Respondents' Exhibit 6 admitted into evidence. Mr. Gibson informed Mr. Hilgeman in that correspondence that he wished to have a meeting to discuss the lot rental increase. The meeting would be attended by a committee of not more than four persons under the direction of Mr. Carter. He asked that the meeting be held at a convenient time prior to August 26, 1988. The basis for Mr. Gibson's action in which he requested a meeting with the park owner was through the process of discussion with his board of directors in independent conversations in which it was decided that a meeting was desired. A meeting to discuss the reasons for the lot rental increase was not held before August 26, 1988, or before August 30, 1988. When Mr. Gibson sent his August 4, 1988 correspondence he was aware of the problems of the postal strike in Canada and the delay that this might promote in the receipt of his letter by the park owner. He had not instructed Mr. Carter to make any contact with the park owner prior to the park owner's receipt of the correspondence which outlined the fact of Mr. Carter's duties as chairman of the committee. The return receipt correspondence from Gibson to Hilgeman dated August 4, 1988, was received by, Pat Montgomery in mid August 1988. By correspondence of August 22, 1988, addressed from Mr. Hilgeman to Mr. Gibson, a copy of which may be seen as Respondents' Exhibit 7 admitted into evidence, Mr. Hilgeman demanded of Mr. Gibson that he confirm that a majority of the Lake Waldena residents had in fact selected Mr. Gibson to represent them. Reference is made in that letter to section 723.078(2)(b), Florida Statutes, having to do with the requirements for bylaws in homeowners' associations. This request of Mr. Gibson is not a prerogative of Mr. Hilgeman as park owner in dealing with the issue of the conduct of the meeting. Nor is it available to Mr. Hilgeman to remind Mr. Gibson that he had to comply Section 723.037(1), Florida Statutes or Section 723.076(1), Florida Statutes. To the extent that those provisions have any relevance to the homeowners' association, the former pertains to standing to challenge increases in such things as the lot rental amount through the homeowners' association, something that the park owner is not called upon to advise the homeowners' association about. This question of standing does not enter in to the matter of the ability to represent mobile home owners at a meeting pursuant to Section 723.037(3), Florida Statutes, for purposes of discussing the lot rental increase. Likewise, the latter statutory reference that describes the idea of incorporation of a homeowners' association and the need to notify the park owner is not associated with the meeting to discuss the purposes of the lot rental increase. On the other hand, when Mr. Hilgeman referred to Rules 7D-32.003(1) and 7D-32.004(2), Florida Administrative Code, those are provisions which have some significance in considering the matter of a meeting to discuss a lot rental increase. Rule 7D-32.004(2), Florida Administrative Codes, states: If requested to do so by the park owner or subdivision developer, the committee shall certify that it has been selected as described Rule 7D-32.003, Florida Administrative Code. The certification shall include a certificate of all members of the committee attesting to its proper formation under the statute in these rules. Significantly, that provision does not describe the relationship of such a request to the obligation of the park owner to meet within 30 days of notice of lot rental increase as contemplated by Section 723.037(3), Florida Statutes. None of the principals, given the statutory scheme and rules that were designed to effectuate the purposes of the statute, could have reasonably understood on what terms the park owner was entitled to make this request taking into account the complications of corresponding back and forth between the United States and Canada in the midst of a mail strike, the consequence of which made it unlikely that the meeting would take place on or before August 30, 1988. In the conclusions of law a discussion is made of the effect of the request for certification and whether it tolls the time for conducting the informational session to discuss the reasons for the lot rental increase. The envelope for the August 22, 1988 correspondence was stamped in the United States on August 23, 1988, in Bradenton, Florida. It also bears a date of August 29, 1988, which is seen as a part of the verification of receipt of that letter in Canada. Mr. Gibson received the Hilgeman correspondence of August 22, 1988 on August 29, 1988. Mr. Carter also received a copy of the August 22, 1988 correspondence by Mr. Hilgeman and had a discussion with Mr. Hilgeman about that letter sometime around August 23 or August 24, 1988. That conversation took place in the mobile home park. This did not lead to the resolution of the certification request made by Mr. Hilgeman to the homeowners' association. It was left to Mr. Gibson to take care of the response to the request for certification. In the conversation being described, between Hilgeman and Carter, Carter made it known that he intended to complain to the Petitioner about the park owner not meeting with the homeowners' committee within 30 days of notice. A complaint was made as may be seen in a copy of that complaint which is Respondent's Exhibit No. 2 admitted into evidence. That complaint was sent out on August 26, 1988. The basis for the homeowners' association complaining to the Petitioner was related to their concern that they preserve their right to have the meeting even if it transpired beyond the 30 days contemplated in the statute. Notwithstanding the complaint's existence, Mr. Gibson went forward with his attempts to try to satisfy Mr. Hilgeman concerning certification and did so with the assistance of Victor Davis a member of the board of directors of the homeowners' association. Mr. Gibson's attitude about this was to the effect that the request by Mr. Hilgeman was a legitimate request that should be complied with. A discussion had also been held between Carter and Hilgeman on August 18, 1988, in which Mr. Hilgeman gave advance notice of the fact that he needed several questions answered and that there would be a delay in the meeting. The indication was made that a letter would be sent to Mr. Gibson to have those questions answered. That eventuated in the August 22, 1988 correspondence from Hilgeman to Gibson. Upon making these matters known to Mr. Carter on August 18, 1988, Mr. Carter's only remark was that this would be "fine." On September 9, 1988, a letter was written from Ralph B. Murray, Jr., Specialist Enforcement Section, Bureau of Mobile Homes within the Petitioner's department which was sent to Mr. Hilgeman reminding him of the necessity to respond to allegations that had been made by the Lake Waldena Resort Homeowners' Association concerning the claim that Mr. Hilgeman had refused to meet with those mobile homeowners in the statutorily prescribed time as announced at Section 723.037(3), Florida Statutes. A copy of this correspondence may be found as Respondent's Exhibit No. 9, admitted into evidence. On September 13, 1988, by correspondence, a copy of which may be found as Respondent's Exhibit No. 10 admitted into evidence, Mr. Hilgeman offered his reply. He tells Mr. Murray that he is not sure whether the homeowners' association is legitimate and that they had not responded to his August 22, 1988 correspondence to Mr. Gibson which he enclosed in his letter to Mr. Murray. He spoke of delays in the mailing time for mail coming from Canada. He makes mention of the fact of having informed Mr. Carter that the manager, who was Ms. Montgomery was on vacation and would not return until August 30, 1988. In fact, Ms. Montgomery was not available to meet with the homeowners' association in the period August 18 through August 30, 1988. This would not have relieved Mr. Hilgeman of the necessity to meet with the homeowners' association on or before August 30, 1988, had they complied with his request for certification prior to that date. They did not. Compliance with the certification process was achieved by correspondence of September 12, 1988 from Gibson to Hilgeman in which he sets out the explanation of certification of the credentials of the homeowners' association to form a committee and meet with the park owner. That was received by the park owner on September 19, 1988, in the person of Pat Montgomery. A copy of this correspondence and the certification of receipt may be found as Respondent's Exhibit No. 11 admitted into evidence. After receipt of the information concerning the certification of the homeowners' association committee, Mr. Hilgeman sent a letter to Mr. Carter on September 29, 1988, to establish a meeting. A copy of that correspondence may be found as Respondent's Exhibit No. 13 admitted into evidence. It outlines the fact that Mr. Hilgeman is sufficiently satisfied concerning the certification to have the meeting and offers a meeting prior to October 4, 1988 or after October 9, 1988, and invites Mr. Carter to consult with Pat Montgomery to establish a mutually convenient time for the meeting. A meeting was held between Mr. Murray and Mr. Hilgeman in October, 1988, in which a discussion ensued concerning whether or not Mr. Hilgeman himself would meet with the homeowners' committee. Mr. Hilgeman held firm in his attitude that his manager Pat Montgomery would be available to meet with the homeowners' committee, but that Mr. Hilgeman would not be meeting with them. As explained in the correspondence of October 14, 1988, addressed from Mr. Carter to Mr. Murray, a copy of which may be found as Respondent's Exhibit No. 14 admitted into evidence, contact was made between Carter and Montgomery and Carter was told on October 11, 1988 that a meeting would be held at 10:00 a.m. on October 14, 1988, between Montgomery and the committee. She was told by Carter that this meeting would not be acceptable unless Mr. Hilgeman was in attendance. Based upon conversations with Mr. Murray, the homeowners' association had been persuaded that it was only appropriate to meet with Mr. Hilgeman. Consequently, by this logic it was not appropriate to meet with Ms. Montgomery. A copy of this correspondence of August 14, 1988 was made available to Mr. Hilgeman. On June 7, 1989, the Petitioner brought an action against the Respondent and he sought a formal hearing which was conducted on February 22, 1990. Prior to that hearing the homeowners did have their meeting with Mr. Hilgeman on November 14, 1989, in which they were made aware of the reasons for the lot rental increase. The homeowners accepted the explanation and the idea of the increase and do not desire to pursue the present complaint against the Respondents. When Mr. Hilgeman sought certification of the credentials of the committee assigned by the homeowners association he was acting in good faith. In addition, he was entitled to look to Pat Montgomery as park operator and by consequence park owner under the definition of Section 723.003(7), Florida Statutes, to speak for him in the course of the meeting to discuss the lot rental increase. The misconception of the committee of mobile home owners concerning the necessity to meet with Mr. Hilgeman and not with his park operator, as fostered by the remarks of Mr. Murray, who lead those mobile homeowners to believe that they could only meet with Mr. Hilgeman, caused a delay in arranging the meeting. Mr. Hilgeman should not be hold accountable for that delay.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered that dismisses these actions against the Respondents. DONE and ENTERED this 18th day of April, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1990. APPENDIX CASE NO. 89-4100 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1-9 are subordinate to facts found. Although Paragraph 10 is an accurate portrayal of the meeting of August 24, 1988 between Mr. Carter and Mr. Hilgeman, it should be stated that any meeting to discuss lot rental increase was contingent upon the response to the certification request made by Mr. Hilgeman and replied to by Mr. Gibson on a date beyond the 30 day period. Paragraphs 11 and 12 are subordinate to facts found. Concerning Paragraph 13, whatever Mr. Hilgeman perceptions would be about the role of Ms. Montgomery, whether she was considered to be the same as an attorney representing or in some other capacity, in law she was a park owner and entitled to act in behalf of the park owners at the meeting. Concerning Paragraph 14, the effect of failing to respond to the request for certification within the 30 day period was tantamount to a waiver or agreement to meet at a time later. Paragraph 15 is subordinate to facts found. Concerning Paragraph 16, to the extent this paragraph suggests that the length of the meeting or breadth of detail in the explanation made by Mr. Hilgeman was inadequate, that idea is rejected in that sufficient explanation was given to comply with the requirements of law. The comments in Paragraph 17 are not relevant. The accommodation that was made between counsel was not a necessary arrangement to mitigate the circumstance in an instance where Respondent Donald L. Hilgeman had violated Chapter 723, Florida Statutes. This meeting was beneficial to the homeowners and park owners alike, but came at this late date based upon the failure of the homeowners to meet with Pat Montgomery over a year earlier. Respondents' Facts Paragraph 1 is subordinate to facts found Paragraph 2 is not necessary to the resolution to the dispute. Paragraph 3 is subordinate to facts found with the exception of those two sentences that come before the last sentence in that paragraph. Paragraphs 4 and 5 and all sentences save the last of Paragraph 6 are subordinate to facts found. That sentence is not necessary to the resolution of the dispute. Paragraphs 7 through 11 with the exception of the second sentence in Paragraph 11 are subordinate to facts found. The second sentence is not necessary to the resolution of the dispute. Paragraph 12 is subordinate to facts found. Paragraph 13 is misleading in that it intimates that Mr. Carter was derelict in his duties to make contact with Mr. Hilgeman to establish a meeting; however, the contacts that were made were in accordance with the expectations of Mr. Hilgeman and Mr. Gibson who were controlling the timing of that meeting. Paragraphs 14 through 16 with the exception of the last sentence to Paragraph 16 are subordinate to facts found. The last sentence to Paragraph 16 is not necessary to the resolution of the dispute. Paragraph 17 is subordinate to facts found with the exception of the last sentence which is not necessary to the resolution of this dispute. Paragraphs 18 and 19 are subordinate to facts found. Paragraph 20 is subordinate to facts found with the exception of the last sentence which is not necessary to the resolution of this dispute. Paragraph 21 is not necessary to the resolution of the dispute and is an inaccurate portrayal of the requirements of law as to gaining the approval of the majority of homeowners before representing them in the course of a meeting to discuss lot rental increases. Paragraphs 22 through 25 are subordinate to facts found. COPIES FURNISHED: Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Joseph A. Sole, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 David D. Eastman, Esquire Parker, Skelding, Labasky & Corry Post Office Box 669 Tallahassee, FL 32302 Susan C. Marvin Pamela Leslie Assistants General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL, 32399-1007
The Issue The issue is whether Respondent is guilty of a discriminatory housing practice based on physical handicap, in violation of the Fair Housing Act, Sections 760.20-760.37, Florida Statutes.
Findings Of Fact Respondent owns and operates McGregor Mobile Home Park in Fort Myers. His wife serves as the office manager. In February 1995, Petitioner met with Respondent and his wife to discuss leasing or purchasing a mobile home at the park. The following month, Petitioner leased a mobile home with an option to purchase. In March 1996, Petitioner purchased the mobile home. At all material times, Petitioner has rented from Respondent a mobile home lot at McGregor Mobile Home Park. Within two months of purchasing the mobile home, Petitioner filed a complaint with the U.S. Department of Housing and Urban Development. The complaint concerned Respondent’s attempt to charge her for an extra person residing in Petitioner’s mobile home. Respondent claimed that she required the person for physical assistance. In May 1996, Petitioner had a fence built around her mobile home lot. She did not obtain a building permit or the permission of Respondent, as was required under the rules of the park. Four to six weeks later, Petitioner had a deck built, again without a building permit or the permission of Respondent. At the time of the construction of the fence and deck, Petitioner had complained to local media about conditions at the park. A local television station broadcast a story about the park. The Lee County building department inspected the park and, on July 15, 1996, cited Respondent for a number of violations for, among other things, Petitioner’s fence and deck. Respondent’s wife immediately told Petitioner to remove these items. The disputes between Petitioner and Respondent seem to involve nothing more than disputes between a mobile home park operator and a park resident. Petitioner produced no credible evidence of discrimination against her on any basis. It does not appear that Respondent treated her any differently than he has treated other park residents. Petitioner also produced no credible evidence of discrimination against her on the basis of physical handicap. Approximately half of the park residents are handicapped. Also, the nature of Petitioner’s handicap is not well defined. At the hearing, she walked with a cane and limped noticeably. However, in the nearly three years that she has resided at the park, she has never used a wheelchair and very rarely used a cane.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 22nd day of December, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1997. COPIES FURNISHED: Linda Hurd 16 Circle Drive Fort Myers, Florida 33908 Terrence F. Lenick Terence F. Lenick, P.A. 12699 New Brittany Boulevard Fort Myers, Florida 33907 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issues are whether the respondents engaged in a discriminatory housing practice, in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2007),1 by discriminating against Petitioner, on the basis of her alleged disability, and by harassing Petitioner and retaliating against her.
Findings Of Fact Petitioner is a former resident of Broadview Mobile Home Park (Broadview), located at 1701 Post Road, Melbourne, Florida. Petitioner resided in Broadview for approximately six years from an undisclosed date in 2002 through September 8, 2008. Mr. Lamont Garber holds an ownership interest in Broadview. The record does not quantify the ownership interest of Mr. Garber. Mr. Garber manages Broadview with his brother, Mr. Wayne Garber. Broadview rents sites within the mobile home park to residents who own mobile homes. Each site has access to water and electric service. Each resident arranges his or her water and electric service directly with the respective utility provider. Sometime in 2005, Petitioner purchased a mobile home for approximately $6,500.00 and moved within Broadview to Lot 24. The rental agreement for Lot 24 required rent to be paid on the first day of each month. The rent for July 2008 was due on July 1, 2008. Petitioner failed to pay the rent payment that was due on July 1, 2008. On July 9, 2008, Broadview served Petitioner, by certified mail, with a notice that she had five business days in which to pay the rent due (the five-day notice). Petitioner received the five-day notice on July 10, 2008. The five-day period expired on July 17, 2008, with no rent payment from Petitioner. Petitioner had paid rent late in the past, but Petitioner had never been more than four or five days late. After July 17, 2008, Broadview initiated eviction proceedings. Petitioner tendered the rent payment on July 20, 2008, but Broadview proceeded with the eviction. Petitioner did not appear and defend the eviction proceeding. On August 26, 2008, the County Court for Brevard County, Florida, issued a Final Default Judgment of Eviction awarding possession of Lot 24 to Broadview. Law enforcement officers thereafter executed the Court's order and evicted Petitioner from Broadview on or about September 8, 2008. After Petitioner received the notice of eviction, she filed a complaint with the Florida Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes (DBPR). DBPR is the state agency responsible for regulating mobile home parks, including Broadview. The allegations in the complaint that Petitioner filed with DBPR were substantially similar to the claims of discrimination, retaliation, harassment, and unlawful rent increases Petitioner asserts in this proceeding. DBPR rejected Petitioner's allegations and found that Broadview lawfully evicted Petitioner for non-payment of rent. The final agency action of DBPR is substantially similar to that of HUD and the Commission's proposed agency action in this proceeding. Each agency found that Broadview lawfully evicted Petitioner for non-payment of rent and rejected the allegations of discrimination, harassment, and retaliation. The DOAH proceeding is a de novo consideration of the proceeding before the Commission. A preponderance of the evidence does not establish a prima facie showing that Petitioner is disabled or handicapped. Petitioner has cancer and is receiving chemotherapy and radiation treatment. A preponderance of evidence does not show that the medical condition substantially limits one or more major life activities of Petitioner. Petitioner also alleges that she is disabled and handicapped by a mental condition. Petitioner submitted no medical evidence of the alleged disability or handicap. A preponderance of evidence does not establish a prima facie showing that, if such a mental condition exists, the condition substantially limits one or more major life activities of Petitioner. Assuming arguendo that a preponderance of the evidence showed that Petitioner were disabled or handicapped, a preponderance of evidence does not establish a prima facie showing that either of the respondents discriminated against Petitioner, harassed her, or evicted her in retaliation for Petitioner's disability or handicap. It is undisputed that Petitioner conducted neighborhood organization efforts to protest a rent increase at Broadview and repeatedly called law enforcement officials to report alleged drug and prostitution activity in Broadview.2 However, Broadview did not evict Petitioner for those activities, and Petitioner's testimony to the contrary is neither credible nor persuasive. Rather, Petitioner engaged in other activities that the respondents found objectionable. Petitioner baby sat for one or more dogs in violation of Broadview's prohibition against pets. Some of the dogs were dangerous to other residents. Petitioner also verbally abused Mr. Wayne Garber when he attempted to mediate with Petitioner concerning the presence of dogs and Petitioner's conduct toward management at Broadview. On July 1, 2008, Broadview served Petitioner with a seven-day notice concerning Petitioner's compliance with lease requirements. The notice, in relevant part, alleged that Petitioner harassed management and impaired the ability of management to perform its duties. The testimony of respondents describing the activities of Petitioner that precipitated the seven-day notice is credible and persuasive. A preponderance of the evidence shows that the respondents had legitimate non-discriminatory reasons for requiring Petitioner to comply with the terms of the seven-day notice and for requiring Petitioner to comply with the requirement for rent to be paid on July 1, 2008. Petitioner failed to comply with either requirement, and Broadview evicted Petitioner for legitimate, non-discriminatory reasons. The respondents did not harass or retaliate against Petitioner.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that the respondents did not engage in an unlawful housing practice and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of May, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 20th day of May, 2009.
The Issue The issue presented is what disciplinary action should be taken against Respondent, if any, based upon the Department's factual allegations which were stipulated to by Respondent and upon the mitigating evidence which was presented during the final hearing in this cause.
Findings Of Fact Prior to August 8, 1991, Respondent had been a mobile home dealer for a number of years. Respondent had had a business relationship with BankAtlantic for five years with special arrangements having been made for the handling of Respondent's accounts. On or about August 8 the bank took money out of Respondent's accounts and used those moneys for payments on loans without advising Respondent in advance that it would do so. There is currently litigation pending between Respondent and the bank regarding the bank's actions. Although the parties stipulated that the Courtneys purchased their mobile home on February 22, 1991, and that they paid for their home in full on August 5, 1991, the testimony was undisputed that the sale closed and the final payment was made on August 8, 1991. The Courtneys contacted Respondent's president, Charles D. Aylor, approximately November 15, 1991, to ascertain why they had not yet received a title to the mobile home. Thereafter, Respondent dealt with the Courtneys' attorney. When Respondent was able to pay its "floor planner," Respondent transmitted the documents to Petitioner in Tallahassee to effectuate the title transfer to the Courtneys. Because one of the required documents was missing, Petitioner returned the documents to Respondent. Respondent then re-submitted all required documents to Petitioner's office in Tallahassee, thereby applying for the title transfer on March 18, 1992. As of the date of the final hearing in this cause, all that remained to be done was the clerical work by Petitioner required to then issue the title to the Courtneys. As with the Courtneys, the MacKinnon transaction closed on August 8, 1991. Respondent had deposited the purchase money from the MacKinnon sale in its bank on July 30, 1991. On August 8, Respondent gave a check to MacKinnon for his portion of the proceeds after being advised by the bank that the check was good. The bank subsequently refused to honor that check. By the date of the final hearing, the amount owed to MacKinnon by Respondent had been increased from $45,084.82 to $180,000 based upon a final judgment. Over the last six months prior to the final hearing in this cause, Respondent had satisfied all outstanding obligations to all of its customers except MacKinnon. Respondent had determined that it was necessary for it to stay in business in order to take care of its obligations to its customers. Respondent knew that if it filed for bankruptcy, its customers would be "stranded." Respondent's president has taken a number of steps to remedy Respondent's financial situation. He has put property he owns on the market for sale and has attempted to sell mortgages. Respondent has reduced its number of employees, and Respondent's president has taken no money out of the company in the last six months prior to the final hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent guilty of failing to timely transfer title and imposing a fine in the amount of $500 to be paid by Respondent by a date certain. RECOMMENDED this 6th day of July, 1992, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1013 Petitioner's proposed findings of fact numbered 4 and 10-12 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 5 and 7-9 have been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner's proposed finding of fact numbered 6 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 2 and 7 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 5 and 6 have been rejected as not being supported by the weight of the competent evidence in this cause. Respondent's proposed findings of fact numbered 1, 3, and 4 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A432 Tallahassee, Florida 32399-0500 Glenn S. McCormick, Esquire 811 East Hillsboro Boulevard Deerfield Beach, Florida 33441 Charles J. Brantley, Director Division of Motor Vehicles Neil Kirkman Building, Room B439 Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue The issue presented is whether subsections (1) and (4) of Rule 7D-32.002, Florida Administrative Code, are an invalid exercise of delegated legislative authority.
Findings Of Fact The land encompassed within the mobile home park known as Mohawk Village was purchased by Winter Springs Mobile Home Corporation, a corporation owned and controlled by the Tanner family. The majority of the stock in Respondent is owned by the oldest son; another son is president of Respondent; and the father, L. William Tanner, served as "consultant" to the corporation. This tract was initially divided into some 700-odd lots which were being sold to the public in 1980 as mobile home sites. The land was purchased from North Orlando Sewer and Water Company, which agreed to provide sewer and water services to the subdivision and to have these facilities in place by January 1, 1981. Respondent never registered with the Petitioner in accordance with Chapter 498, Florida Statutes. North Orlando Sewer and Water Company failed to provide sewer service to this development and none of the home sites were available for occupancy January 1, 1981, as promised to buyers by Respondent. Without sewer service it became necessary to go to septic tanks and this required larger lots per mobile home site. The tract was replatted to provide 300-odd lots despite the previous sale of smaller lots to buyers. These buyers were advised their lots would have to be swapped and when some objected and demanded their money back, without success, Petitioner was made aware of the development and investigated. The investigation led to the entering of a Cease and Desist and Consent Order (Exhibit 1). Therein Petitioner essentially agreed to forego action against Respondent for prior violations of Chapter 498, which Respondent contended it was subject to; and Respondent agreed to cease all leasing until the site was ready for occupancy, to provide Petitioner with copies of all leases in effect, as well as copies of all future leases executed, to deposit funds received from buyers in escrow until after receipt of a certificate of occupancy, and to take necessary steps to ensure all future leases fall within the statutory exemptions set forth in Section 498.025(1)(g), Florida Statutes. L. William Tanner was paid a consulting fee by Respondent "in the ballpark of $100,000." In addition, he was to own the companies that provided utilities to the park (after default by North Orlando Sewer and Water Company), and furnished porches, decks, built walkways, roads, etc. Following the Consent Order funds were received payable to Tanner-controlled companies that were not deposited in the escrow account. These funds were not lease payments but came from the lessees for sewer and water hookups, porches, decks, etc. Mohawk Village received its first certificate of occupancy on 14 January 1982. Between 17 April 1981, when the Consent Order was entered, and 14 January 1982, lot leases were sold to Gould on 30 November 1981; to Herring on 12 September 1981; and to Roberts on 14 January 1982 (Exhibit 6). The sales to Gould and Herring were clearly during the period Respondent had consented not to sell leases. Exhibit 1 authorized Respondent to renegotiate and relocate current lessees to new mobile home sites under a plan to use alternate utility services from those initially to be provided by North Orlando Sewer and Water Company "if such plan is implemented at no additional cost to the individual lessees." Those who had bought leases under the original scheme agreed to pay $29 per month to lessor. Leases sold after the decision to use septic tanks where the number of lots was reduced from 700-odd to 300-odd, provided the lessees would pay the lessor $59 per month. Respondent advised the earlier lessees that they would have to pay $59 per month in lieu of $29. When they objected and demanded refunds of what they had paid, some of them were promised refunds but to date very few have received any refunds. Changing their rental fee from $29 to $59 violated the Consent Order. The only change in the lease before and after the execution of the Consent Order was the change of this monthly rental payment. Since the original lease did not qualify for exemption under Section 498.025(1)(g), Florida Statutes, the amended lease, which merely changed the monthly rental fee, did not qualify for exemption. Leases on these lots were sold at prices ranging from $1,000 to $7,000. At no time relevant hereto did Respondent hold a dealer's license to deal in or sell mobile homes (Exhibit 3) There was no valid reservation program established by Respondent pursuant to Section 498.024, Florida Statutes, nor did Respondent apply for or receive approval of a public offering statement for Mohawk Village (Exhibit 2). All leases sold provided, in addition to a habitable lot, that the seller would provide recreational facilities. Those leases sold in 1980 promised a lot on which the buyer could move his mobile-home by January 1, 1981. Not only was the deadline missed but also Respondent has provided no recreational facilities. One witness who sold her home and bought a mobile home could not move it to the site in accordance with the contract because of lack of utilities and was forced to acquire another residence. Although proper demand was made she has been refunded none of her purchase money. According to his testimony, L. William Tanner has developed about one hundred subdivisions throughout the United States since 1946. Some 20 such subdivisions have been developed by him in Florida. He is aware of the Florida statutes regulating the subdivision and sale of lands, and contends that the Mohawk Village subdivision is exempt because Petitioner does not have jurisdiction over 99-year leases. He further contends that the monthly rental payments of $29 or $59 for 99 years brings the price paid for the lots to more than $50,000, thereby exempting them from the provisions of Chapter 498. Prior to the commencement of this hearing, Mohawk Village was transferred to Gould, who had been involved in supplying mobile homes to lot purchasers in the park. According to Tanner's testimony "it was not much of a sale" with him insisting Gould and Mohician Valley (apparently the new name for the mobile home subdivision) acknowledging existing mortgage, the Consent Agreement with Petitioner, and the obligation to refund the monies. No documentary evidence was presented to show that Tanner or his immediate family does not continue to own controlling interest in this mobile home park.
The Issue Whether Respondent Tardiff committed the violations as set forth in the Notice to Show Cause dated February 24, 1997, and what penalty, if any, should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida charged with the responsibility to administer and to enforce the Florida Mobile Home Act, Chapter 723, Florida Statutes. At all times pertinent to this proceeding, Respondent has been the owner of Pondview Mobile Home Park. At all times pertinent to this proceeding, Respondent has had 10 or more lots offered for rent or lease. Respondent offered for rent or lease at least 22 lots. At all times pertinent to this proceeding, Respondent was a "mobile home park owner," as the term is defined in Section 723.003(7), Florida Statutes. No annual fees were paid by Respondent from 1984 until 1996. Currently, annual fees are $4.00 per lot, per year. Annual fees are payable to the division between July 1 and October 1 of each year. When Respondent increased his rent in 1993, he failed to file a copy of the lot rental increase notice with the Bureau of Mobile Homes. Under Chapter 723, Florida Statutes, the reason for the increase in rent is irrelevant to the filing requirement. When new tenants entered Respondent's mobile home park, Respondent failed to give them a prospectus or written notification of required information. Twelve homeowners have entered into rental agreements without receiving the statutorily required document. Respondent produced a cancelled check at the formal hearing showing that 1996 annual fees had been paid to the division. It is the park owner's responsibility to comply with Chapter 723, Florida Statutes. It is not the duty of the division to pursue park owners in order to obtain compliance with the Florida Mobile Home Act. Respondent has been permitted with the Department of Health (formerly Health and Rehabilitative Services (HRS)) every year since 1983.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That Petitioner enter a Final Order finding Respondent has violated the Sections of Chapter 723, Florida Statutes, as charged in the Notice to Show Cause, and ordering the Respondent to Pay annual fees for the years 1984-1995 in the amount of $814, plus a 10 percent penalty of $81.40 which equals $895.40; Pay a penalty of $1,200 for the violation of Section 723.013., Florida Statutes; Pay a penalty of $5,000 for the violation of Section 723.037, Florida Statutes; and Comply with all provisions of Chapter 723, Florida Statutes, in the future. DONE AND ENTERED this 28th day of August, 1997, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1997. COPIES FURNISHED: Suzanne V. Estrella, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Roland Tardiff Route 12 Box 394 Lake City, Florida 32025 Robert H. Ellzey, Jr., Director Division of Florida Land Sales, Condominiums, and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondents are James Brown and Bianca Brown, his wife. At all times pertinent to these proceedings, Respondents were owners of the mobile home park known as "Carefree Cove Club" located in Hypoluxo, Florida. They have owned the park since 1957. On or about December 28, 1984, Respondents, as operators of the park, filed a prospectus with Petitioner as required by Section 723.011, Florida Statutes. Petitioner approved the prospectus on March 27, 1985. At that time, 195 lots were being offered in the park for lease or rent. The number of lots and approximate sizes were set forth in the prospectus. The prospectus was delivered by Respondents to tenants shortly after notice of approval was received from Petitioner. On or about June 5, 1986, Respondents, pursuant to Chapter 723, Florida Statutes, sent a notice of eviction to tenants residing in the park. The park took no new tenants and was virtually closed after January 1, 1987. Most of the tenants had voluntarily vacated the park with exception of four residents by December 1, 1987. On December 16, 1987, Respondents forwarded notices to the remaining four tenants of an intent to impose "pass through" charges resulting from the park's increased real property taxes. Provision for "pass through" of such charges is made in the prospectus. The taxes which were the subject of the "pass through" were levied on three parcels of property belonging to Respondents. All of the parcels are contiguous. Two of the parcels are divided into lots and are a part of the park as described in the prospectus. The record is unclear as to whether the third parcel was completely or partially platted into lots, but it is established that this property, while not explicitly described in the prospectus, was used for recreational purposes by tenants and parking of recreational vehicles. Further, the property was landscaped and is found to be a part of the park. Respondents' intention to pass the increase in property taxes on to the tenants was consistent with the prospectus and Respondents' previous practice in 1986, when a refund was given to park tenants as the result of a property tax reduction. Respondents' subsequently abandoned their intention, however, and no "pass through" charges were collected from the tenants. Currently, no mobile home tenants reside in the park. Items, including real estate taxes, normally considered as "pass through" charges were customarily included in rental charges to tenants prior to June 4, 1984, as "operating expenses" and not otherwise denominated on rental documents. After the legislative enactment creating Chapter 723, Florida Statutes, Respondent prepared the prospectus which sets forth separate "pass through" charges. Respondents experienced periodic episodes of vandalism of the facilities of the park as the number of residents decreased in 1987. The tenants maintained alternate residences in the northern part of the United States and none were in residence at the park in the summer of 1987, when Respondents locked the clubhouse to prevent vandalism of the facility. As the tenants returned, each of them were informed that a key and access to the clubhouse was available upon request. A written notice dated March 24, 1988, codifying this policy, was sent to club members by Respondents. Closure of the facility by Respondents was in accordance with the prospectus previously distributed to the tenants. The prospectus notes that the facility's hours are from 9:00 a.m. to 9:30 p.m., and that it may be closed earlier if there are no activities. Use of the facility for all activities and all meetings requires advance reservation and written approval of the club management. It is the position of Petitioner that Section 723.002, Florida Statutes, requires the application of the provisions of Chapter 723 to Respondents' park although less than 10 lots were rented or available for rent at the time of Respondents' alleged offenses. Petitioner's policy is that mobile home parks operating under provisions of Chapter 723, Florida Statutes, and having 10 or more lots offered for rent or lease when the tenancy is created, continue to be governed under those statutory provisions as to that tenancy even when the total number of tenants becomes less than the statute's threshold of 10 tenancies. Petitioner's policy also consistently holds that tenancies created prior to the enactment of Chapter 723 in June of 1984, and consequently prior to the requirement of an approved prospectus, continue to be governed for the remainder of the term of that tenancy by the previous understanding or custom established by the rental agreement between tenant and landlord and applicable provisions of law existing at the inception of the agreement.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the charges set forth in the Notice To Show Cause. DONE AND ENTERED this 11th day of October, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 11th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2549 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS 1.-3. Addressed with the exception of the last sentence of finding number three, which is unnecessary to conclusion reached. 4.-5. Addressed. Addressed in part, remainder unnecessary to result reached. Addressed. Addressed in part, remainder unnecessary to result. Addressed. 10 Addressed. RESPONDENTS' PROPOSED FINDINGS Respondents' findings consisted of five unnumbered paragraphs. Numbers 1 through 5 have been assigned to those paragraphs and they are treated as follows: 1.-2. Addressed. Addressed in part. Remainder unnecessary. Addressed. Addressed. COPIES FURNISHED: Debra Roberts, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Alan S. Zangen, Esquire 1601 Belvedere Road, Suite 112 West Palm Beach, Florida 33406 Joseph A. Sole, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 E. James Kearney Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Based upon my observations of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. By its one-count Administrative Complaint filed herein on April 3, 1980, the Petitioner, Department of Professional Regulation, Board of Real Estate, alleged that the Respondent, William O'Brien, violated Section 475.25(1)(d), Florida Statutes (1979), due to his failure to deliver a security deposit to a property owner and that Respondent thereafter tendered a protion of the deposit in the form of a check which, when presented for payment, was not honored due to insufficient funds. During times material, Respondent was licensed by Petitioner and is the holder of Florida Real Estate License No. 168869. Gary ;Heide is the owner of the duplex apartment situated at 2407 Northeast 33rd avenue, Fort Lauderdale, Florida. The pertinent facts surrounding the allegations herein are, for the most part, simple and undisputed. The subject premises had been leased by owner Heide to Maurice L. LaReau. LaReau had leased the premises for approximately eleven (11) months when he found a residence that he intended to purchase and was therefore desirous of subletting the subject property with the owner's permission in an acceptable manner such that he would not incur any losses due to his vacating the premises prior to the expiration of the lease term. He, therefore, approached owner Heide and advised him of his intentions. According to LaReau, Heide gave him "carte blanche" authority to find a tenant to sublease the apartment but that he would appreciate it if he would "screen" the sub-lessee. Heide suggested that LaReau place an ad in the newspaper to secure a tenant and he also made known to LaReau his overall objective of not sustaining any loss of rents due to a vacancy in the apartment. During that conversation Heide also advised LaReau that he would be leaving for a vacation in Germany shortly. When LaReau leased the subject premises from Heide he entered a twelve (12) month lease and paid a $900.00 fee which included the first and last month's rent plus a security deposit. During times material, Respondent was the registered corporate broker for Exclusively Rentals and Management Company (Exclusively). Through the efforts of Respondent and Exclusively, Gregory A. Costa, III, was secured as a tenant to sublet the subject property from Maurice LaReau on or about October 8, 1977. Respondent had been approached by owner Heide to manage the subject property while Respondent was visiting an apartment complex adjacent to the Heide property on which Exclusively had the managing contract. According to the agreed terms for the subletting of the Heide property from LaReau to Costa, Costa agreed upon an occupancy date of October 15, 1977, for a total rental of $150.00 plus payment for the twelfth month rent for a fee of $300.00; a security deposit of $300.00 and a $150.00 commission to Exclusively for a total of $900.00. This amount was paid to tenant Maurice LaRaeau. Exclusively retained the agreed upon commission which represented on- half the monthly rental, or a fee of $150.00 See Respondent's Exhibit 1. Additionally, Messer. LaReau signed an agreement representing that the subletting was done with owner Heide's knowledge and was in accordance with his instructions. (Respondent's Exhibit 2). Upon returning from Germany, owner Heide became upset that LaReau had sublet the premises to Costa and contended that the subletting was only to have been done through the aid and assistance of another rental management firm know as Home Finders Real Estate Brokers. Heide contended that Audrey Lester was the only agent connected with that firm who had the authority to accept tenants or sub-lessees in his absence. Heide, therefore, contended that he was entitled to recoup from Respondent, through its corporate entity, Exclusively Rentals and Management Company, the entire $900.00 in addition to a continued retention of the $900.00 deposit which had been paid by the tenant, LaReau. Although Heide contended that he never used Exclusively to rent or otherwise secure tenants for any of his apartments, he acknowledged that he signed a new lease and accepted Costa as a tenant for the subject property. Heide's other complaint with Respondent is that a check dated November 10, 1977, in the amount of $150.00 and signed by Michael J. Cochran was not honored when presented for payment due to insufficient funds. An examination of that check does not reveal that it was returned by the bank upon which it was drawn or that it was even presented for payment as testified to by Messer. Heide (see Petitioner's Exhibit D). Respondent was approached by owner Heide to act as an agent to secure tenants for his property as vacancies occurred while Respondent was visiting an adjoining rental property through which Respondent's agency represented, the Ocean Gardens Apartment building. Heide also visited Respondent's office building prior to the subject incident (TR. 37 of the June 3, 1981, hearing). Respondent did not sustain any loss of rents due to the subletting of the subject property from LaReau to Costa through the efforts of Respondent and/or Exclusively Rentals and Management. Respondent credibly testified that there were ample monies in the account of Exclusively to pay the $150.00 check drawn by that firm to owner Heide in November of 1977, had it, in fact, been presented for payment. Respondent severed his relations with Exclusively and advised all of the associates of that severance during December of 1977. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: 1. That the Administrative Complaint filed herein be DISMISSED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of July, 1981. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1981.
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
