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 =================================================================
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 Whether the proposed repeal of Rule 61B-31.001(5), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority. Further, whether certain agency policies constitute rules and violate the provisions of Section 120.535, Florida Statutes.
Findings Of Fact The Florida Manufactured Housing Association, Inc. (FMHA) is a Florida not for profit corporation organized to represent the interests of the owners of approximately 750 mobile home parks. All of the parks owned by FMHA members are regulated by the Respondent. The FMHA's members will be substantially affected by the proposed repeal of the rule. The FMHA has standing to participate in his proceeding. The Florida Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Respondent), is the state agency charged with implementation, administration and enforcement of Chapter 723, Florida Statutes, relating to Mobile Home Park Lot Tenancies. The Federation of Mobile Home Owners of Florida, Inc. (Federation) is a Florida not for profit corporation organized to represent a substantial number of mobile home owners residing in Florida mobile home parks. The Federation's members will be substantially affected by the proposed repeal of the rule. The Federation has standing to participate in this proceeding. Insofar as is relevant to this case, a mobile home owner commonly rents a mobile home park lot upon which the home is placed. Pursuant to Section 723.011(1)(a), Florida Statutes, the owner of a mobile home park containing 26 or more lots must deliver a prospectus to the home owner prior to entering into an enforceable rental agreement for the mobile home lot. A mobile home park prospectus is intended to provide full and fair disclosure of the terms and conditions of residency and sets forth the regulations to which the home owner will be subjected after signing a lot rental agreement with the park owner. The prospectus must be filed with and approved by the Respondent. The challenged rule was adopted as Rule 7D-31.01(5), Florida Administrative Code, in 1985. Without alteration, it was subsequently renumbered as Rule 61B-31.001(5), Florida Administrative Code, and provides as follows: The Prospectus distributed to a home owner or prospective home owner shall be binding for the length of the tenancy, including any assumptions of that tenancy, and may not be changed except in the following circumstances: Amendments consented to by both the home owner and the park owner. Amendments to reflect new rules or rules that have been changed in accordance with procedures described in Chapter 723, F.S., and the prospectus. Amendments to reflect changes in the name of the owner of the park. Amendments to reflect changes in zoning. Amendments to reflect a change in the person authorized to receive notices and demands on the park owner's behalf. Amendments to reflect changes in the entity furnishing utility or other services. Amendments required by the Division. Amendments required as a result of revisions of Chapter 723, F.S. Amendments to add, delete or modify user fees for prospective home owners. Neither the statute nor the rule defines what is meant by the term "tenancy." Historically, the Respondent has taken the position that the prospectus was binding on the park owner and the mobile home owner until the mobile home no longer occupied the lot or the tenant was evicted, whichever occurred first. In other words, the "tenancy" existed for as long as the mobile home remained on the lot, and the prospectus was binding during the length of the "tenancy", including any assumptions of the "tenancy." However, several legal cases, most recently in 1992, have essentially stated that a mobile home "tenancy" exists for the period of time during which a mobile home rental agreement is effective. The effect of the legal decision is to permit Rule 61B-31.001(5), Florida Administrative Code, to be construed to provide that a prospectus is valid only for the period covered by a rental agreement. The Legislature has not adopted legislation subsequent to the case which would affect the substance of the decision. On January 20, 1995, the Respondent published notice of the proposed repeal of Rule 61B-31.001(5), Florida Administrative Code, in the Florida Administrative Weekly, Vol. 21, No. 3. The Respondent's purpose in repealing the rule is primarily to eliminate the language relating the period of validity for a prospectus to the "tenancy." Although the Respondent asserts that it has no current policy as to the period of validity for a prospectus, the Respondent acknowledges taking the continuing position that the prospectus is binding for longer than the period of a rental agreement. The Petitioner challenges the agency position as being an unpromulgated, and therefore invalid, rule. The Petitioner also challenges as being an unpromulgated and invalid rule, the Respondent's decision to discontinue the review and approval mechanism for amendments to any previously approved prospectus. The Respondent asserts that, notwithstanding prior practice, it has no statutory authority to review and approve amendments to a previously approved prospectus and that it will no longer do so.
The Issue Whether the discriminatory housing practices alleged in Petitioner's amended housing discrimination complaint were committed by Respondents and, if so, what relief should the Florida Commission on Human Relations (Commission) provide Petitioner.
Findings Of Fact Based on the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Petitioner is a woman of Native American heritage. The record evidence, however, does not reveal that, at any time material to the instant case, anyone outside of her family, including Respondents, was aware of Petitioner's Native American background; nor does the record evidence establish that Petitioner was ever subjected to derogatory remarks about being of Native American descent. At all times material to the instant case, Petitioner has suffered from health problems that have substantially limited her ability to walk and have required her to use a motorized wheelchair to ambulate. Petitioner is now, and has been at all times material to the instant case, a resident of Kings Manor Estates (Park), a residential community of single-family mobile homes that is located in Davie, Florida. The Park is one of various mobile home communities that Respondent Uniprop Corporation (Uniprop) owns and operates. Like the other residents of the Park, Petitioner owns the mobile home in which she resides and pays rent to Uniprop for the use of the lot on which home is situated. Petitioner's home occupies lot 78 in the Park. As a resident of the Park, Petitioner has use of the Park's common areas and facilities, which include a swimming pool. There has been no showing that Petitioner has been denied access to any of these common areas or facilities due to her handicap. Residents of the Park must comply with the Park's rules and regulations. These rules and regulations reasonably require, among other things, that residents obtain, in addition to any permits they may need from the Town of Davie, the approval of Uniprop (referred to as "design approval") before constructing any improvements on their lots, including wheelchair ramps. To obtain such "design approval," a resident must submit to Park management a completed "design approval" application form and any supporting documentation. The application form provides a space for the resident to provide a "[d]escription, [d]rawing [l]ocation & [s]ize of [the proposed] [a]ddition." Immediately underneath this space on the form is the following pre-printed language: It is the Resident's responsibility to obtain all governmental approvals, to make certain the proposed improvement is suitable for the purpose intended and that the improvement complies with all applicable codes, standards and governmental requirements. Approval by Management of any improvement is limited to considerations of appearance. Resident agrees to have their home improvements built to the specifications listed above and illustrated in the space above and/or attached drawings, exhibits and permits. It is the responsibility of the Park's property manager, with the help of the Park's assistant property manager, to enforce the Park's rules and regulations. The duties of the Park's property manager and assistant property manager (whose work stations are located in the Park's business office) also include collecting rent from the Park's residents and taking appropriate action when residents are delinquent in their rental payments. There is a "drop off box" located outside the Park's business office in which residents can place their rental payments when the office is closed and the Park's property manager and assistant property manager are unavailable. Neither the property manager nor the assistant property manager is authorized to give residents "design approval." Only the Uniprop regional supervisor has such authority. The property manager and assistant property manager merely serve as "conduits" between the resident and the Uniprop regional supervisor in the "design approval" process. They take the completed "design approval" application form from the resident, provide it to the Uniprop regional supervisor, and, after hearing back from the regional supervisor, communicate the regional supervisor's decision to the resident. At all times material to the instant case, Respondent Delores Maddox was the Park's property manager. Ms. Maddox no longer works for Uniprop. Hazel Crain is now, and has been at all times material to the instant case, the Park's assistant property manager. At all times material to the instant case, Milton Rhines was the Uniprop regional supervisor having authority over the activities at the Park. Mr. Rhines was based in Ft. Myers, Florida, on the other side of the state from the Park. Josephine Patricia Silver is now, and has been at all times material to the instant case, employed as a sales consultant for Uniprop. In this capacity, she engages in activities designed to facilitate the sale of mobile homes manufactured by Uniprop (to be placed in the Park and other mobile home communities Uniprop owns and operates). Although her office is located in the Park, she plays no decision-making role in Park management. Notwithstanding that it is not her job responsibility to accept rental payments, she sometimes will do so as a courtesy to Park residents when she is at the Park on weekends or during the evening hours and the business office is closed. Although Ms. Silver and Petitioner do not get along, Ms. Silver has never threatened to "throw away" Petitioner's rental payments; nor has she ever told any of Park's residents that Petitioner was not paying her rent. Ms. Silver, however, has "gossiped" and made derogatory comments about Petitioner, but no showing has been made that Petitioner's handicap, her Native American heritage, or her having exercised any of her rights under Florida's Fair Housing Act played any role in Ms. Silver's having made these comments. In August of 2002, Petitioner mentioned to Ms. Crain about her interest in having a wheelchair ramp constructed on her lot. Ms. Crain suggested to Petitioner that she contact the Town to discuss the feasibility of such a project. Petitioner subsequently telephoned Brian Dillon, the Town's chief structural inspector. Mr. Dillon not only attempted to assist Petitioner in her efforts to obtain a permit from the Town to construct the wheelchair ramp, he also helped her make arrangements to have a boy scout troop construct the ramp for her with donated materials. The Town would not issue Petitioner a permit for the ramp unless and until she obtained the written approval of the Park owner, Uniprop. The ramp was constructed for Petitioner by the boy scouts during a weekend in mid-November 2002, without Petitioner's having first obtained Uniprop's "design approval" or a permit from the Town. Prior to the construction of the ramp, Petitioner had received a "design approval" application form from Ms. Crain and, on or about November 12 or 13, 2002, with Ms. Crain's assistance, had begun the application process. Petitioner, however, did not wait to receive the "design approval" she had applied for from Uniprop before giving the boy scouts the go ahead to start constructing the ramp. After discovering that the ramp had been constructed, Park management attempted to "work" with Petitioner to enable her to complete the paperwork necessary to obtain (belatedly) "design approval" for the ramp. On November 21, 2002, Petitioner submitted to Park management the following note from her physician, James Milne, D.O.: Due to Medical Necessity, my patient Mary Helen Meacham requires use of a motorized wheelchair, and it is necessary for her to have ramp access. If you have any questions, please feel free to call my office. By December 5, 2002, Petitioner had yet to submit the design plans needed to obtain "design approval" for the ramp. Accordingly, on that date, Uniprop's attorney, Ernest Kollra, Esquire, sent Petitioner, by certified mail, a Notice of Violation of Community Covenants, which read as follows: Please be advised the undersigned represents Kings Manor Estates with respect to your tenancy at the Community. This Notice is sent to you pursuant to Florida Statute, Chapter, 723.061, Et Seq. Park Management has advised the undersigned that you are in violation of the following Community Covenants of Kings Manor Estates: 7. Improvements: Before construction of any type is permitted on the homesite or added to a home, the Resident must obtain written permission from Management in the form of a Design Approval. Additional permits may be required by the municipality in which the Community is located. 10. Handicap Access: Any Residents requiring handicap access improvements such as ramps are permitted. All plans for such ramps must be approved by Management and comply with all other Community Covenants and governmental standards. You are in violation of the above Community Covenants, in that you have failed to submit plans to Management prior to the construction of your ramp. Park Management has been apprised by the Town of Davie that permits are required and none was obtained by you prior to construction, in compliance with Town of Davie governmental standards. In order to correct the above violation, you must within seven (7) days from delivery of this Notice, remove the ramp from your homesite. Delivery of the mailed notice is deemed given five (5) days after the date of postmark. If you fail and/or refuse to comply with this Notice, your tenancy will be terminated in accordance with Florida Statute Chapter 723.061.[2] If you have any questions concerning any of the above, you may contact Park Management at . . . . Petitioner did not remove the ramp by the deadline imposed by the December 5, 2002, Notice of Violation of Community Covenants. Park management, however, took no action to terminate her tenancy. After receiving the December 5, 2002, Notice of Violation of Community Covenants, Petitioner stopped making rental payments to Uniprop and, instead, deposited these monies with the Florida Justice Institute to be held in escrow until the controversy concerning the ramp was resolved. In or around mid-January 2003, Park management received from Petitioner corrected design plans for the ramp (that had been prepared by Doug Amos of Doug Amos Construction). On January 15, 2003, Ms. Maddox sent to Mr. Rhines, by facsimile transmission, a copy of these plans. Petitioner was subsequently granted "design approval" for the ramp. It has not been shown that there was any unreasonable or excessive delay involved in the granting of such approval. On February 19, 2003, Ms. Maddox wrote the following letter to the Town's Building Department: Please be advised that MaryHelen Meacham Woods is authorized to have permits issued for site #78 at 12620 SW 6th Street Davie, Florida 33325 for the Installation of a handicapped ramp. Thank you for your consideration in this matter. Following an inspection, the Town, in March 2003, issued a permit for the ramp. Petitioner has had use of the ramp since mid-November 2002 when it was first built (notwithstanding that she did not obtain Uniprop's "design approval" and a permit from the Town until some months later). On or about May 30, 2003, Petitioner authorized the Florida Justice Institute to deliver to Uniprop the rental payments it was holding (at Petitioner's request) in escrow. Uniprop accepted these rental payments when they were delivered. Petitioner has had raw eggs thrown at her wheelchair ramp. She suspects that Ms. Maddox's children were responsible for this vandalism, but there is insufficient record evidence to identify the culprits, much less ascertain their motives. On or about August 31, 2004, at a time when Hurricane Frances was approaching the Florida peninsula from the southeast, Park management sent Petitioner a Notice of Violation of Community Covenants, which read as follows: Pursuant to Florida Statute 723.061 et seq, you are hereby advised that you are in violation of the following Community Covenant(s) of which the Community first became aware on August 30, 2004. SECTION I: HOME AND SITE MAINTENANCE - Eachresident shall keep his/her site and home in a clean and neat condition and free of any fire hazards, there is no storage permitted around or under the home or in screened rooms. ALL items must be stored inside the home or storage shed. Although you have previously been furnished a copy of the Community Covenants of the park, and said Community Covenants are posted in the recreation center and business office, a copy of the rule(s) of which you are in violation is attached to this notice for your convenience. Specifically, you are in violation of the above Community Covenant(s) in that Your home, trim and utility shed are dirty, there is growth in the gutters and there is a window air conditioner on the home. In order to correct the above violation of the Community Covenant(s) you must Wash your home, trim and utility shed, paint with colors approved by management, clean the growth from the gutters and remove the window air conditioner within seven (7) days from delivery date of this letter. If you fail and/or refuse to correct the violations of the Community Covenant(s) in the manner listed above, the park will pursue all its rights and remedies pursuant to 723.061 et seq. PLEASE GOVERN YOURSELF ACCORDINGLY It has not been shown that Park management took this action to retaliate against Petitioner for having requested permission to construct a wheelchair ramp on her lot or that such action was motivated by any other improper purpose. Park management has not pursued the matter the further. At no time has Park management initiated legal action to terminate Petitioner's tenancy and evict her. The record evidence is insufficient to establish that Respondents, or anyone acting on their behalf, have said or done anything having the purpose or effect of disadvantaging Petitioner based on her handicap, her Native American heritage, or her having asked to be allowed to build a wheelchair ramp on her lot.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that Respondents are not guilty of any "discriminatory housing practice" and dismissing Petitioner's amended housing discrimination complaint based on such finding. DONE AND ENTERED this 5th day of May, 2005, in Tallahassee, Leon County, Florida. S ___ STUART M. LERNER 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 5th day of May, 2005.
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 respondent should refund sales tax petitioners paid on account of their purchase of a manufactured home?
Findings Of Fact On September 12, 1984, petitioners made a $160 down payment on a 75 x 150 foot lot in High Ridge Estates in Bay bounty by a check drawn in favor of Ed Franklin. They wanted the lot in order to put a manufactured home on it. After acquiescing to a request by personnel of the Bay County building department that they pay $21.00 for a mobile home permit, the Baileys improved the property in anticipation of placing a manufactured home on it. They put in a septic tank and poured a concrete pad. On November 21, 1984, the Baileys signed a form "FHMA SALES CONTRACT" as buyers. Petitioners' Exhibit No. 2. Jack Lee signed as seller on behalf of "DD&L Joint Venture." Id. Petitioners gave Lee a down payment of $13,400; DD&L undertook to procure from Fleetwood Homes of Georgia, Inc., a manufactured home to be placed on the High Ridge Estates lot. The form contract, which purported to obligate the Baileys for $53,000, describes the lot, but makes no mention of the manufactured home. In December of 1984, the manufactured home arrived at High Ridge Estates, borne by temporary axles and wheels, which were unbolted after its arrival, and left with the truck that had brought it. Statewide of Florida, Inc., placed it on its new foundation. With an exterior of wood siding and an asphalt-shingled roof, the 25.7 by 54 foot structure met VA and FHA materials requirements for standard housing. Carpet was laid over plywood subflooring. Wall joists stand 24 inches apart. The Baileys added a carport, a driveway, three decks and a separate storage shed. On March 13, 1985, Mr. and Mrs. Bailey borrowed money from Peoples First Financial Savings and Loan Association of Panama City (Peoples) to pay the balances they owed for the lot and home. Of the loan proceeds, $6,100.00 went to "C. Ed Franklin and wife, Frances P. Franklin," Hearing Officer's Exhibit No. 1, to pay for the lot on which the manufactured home stood; and $23,328.80 went to "ITT Comm. Finance." Id. To secure repayment of its loan to the Baileys, Peoples took a mortgage from the Baileys encumbering the lot and the manufactured home affixed to it. Petitioners' Exhibit No. 1. Apparently the payment to "ITT Comm. Finance" retired indebtedness the Baileys incurred in acquiring their 1985 Fleetwood Chadwick 3523D. Mrs. Bailey executed a retail buyer's order for their manufactured home in December of 1986, although the form, which showed Best Home Center, Inc., as the "DEALER," was dated March 22, 1985. Hearing Officer's Exhibit No. 2. The form reflects a total price for the manufactured home of $29,045.87, the sum on which sales tax was computed at $1,452.53. The Baileys paid tax in this amount to Best Home Center, Inc., "upon the sales (sic) of tangible personal property." Hearing Officer's Exhibit No. 2. Best Home Center, Inc., forwarded the taxes they collected from the Baileys, along with other taxes collected in March of 1985, to the Florida Department of Revenue. Hearing Officer's Exhibit No. 2. At the time the Baileys purchased the manufactured home it had no license tag. It never had a license tag and, at the time they purchased it, had never been assessed as real property. Best Home Center, Inc., made a written assignment to the Baileys of its rights, if any, to recover the sales tax the Baileys paid.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny petitioners' application for refund. DONE and ENTERED this 5th day of October, 1987, at Tallahassee, Florida. ROBERT T. BENTON, II 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 5th day of October, 1987. APPENDIX The second sentence of respondent's proposed finding of fact No. 1 and respondent's proposed findings of fact Nos. 3, 4, 6, 8, 9 and 10 have been adopted, in substance, insofar as material. With respect to the first sentence of respondent's proposed finding of fact No. 1, it is not entirely clear who sold the Baileys the manufactured home. The documentation reflected a sale by Best Home Center, Inc., for $29,045. With respect to respondent's proposed finding of fact No. 2, Ed Franklin and his wife conveyed the lot. The down payment was $160 and a $6,100 balance was paid in March. With respect to respondent's proposed finding of fact No. 5, the Peoples Mortgage originated in March, with indebtedness secured by lot and home. With respect to respondent's proposed finding of fact No. 7, the Bay County Building Department required them to purchase a permit on September 20, 1984. COPIES FURNISHED: The Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0305 Charles Stutts, Esquire General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0305 Mr. and Mrs. Bailey 22012 High Ridge Drive Lot 24 Panama City Beach, Florida 32407 D. Alan Burns, Esquire Assistant Attorney General Department of Legal Affairs Tax Section, Capitol Building Tallahassee, Florida 32399-1050
Findings Of Fact Michael Weiss is part owner of Suncoast International, Inc. and general manager of the corporation's only business, a trailer park in Flagler County known as Flagler by the Sea Mobile Home Park. At all pertinent times, the park has leased or offered for lease a total of 44 mobile home lots. In mid-1985, Mr. Weiss received a letter from petitioner Department of Business Regulation (DBR) informing him that park owners were required by law to prepare and distribute prospectuses to mobile home tenants. Efforts to draft a prospectus meeting petitioner's approval began in August of 1985. After several revisions, the petitioner approved a prospectus on June 13, 1986, No. 1802171P, for all lots. Mr. Weiss received written notice of approval, together with a copy of the prospectus to which it pertained, with attachments, on June 26, 1986; and promptly arranged for a copier to produce 50 uncollated copies of everything received from the petitioner, see Petitioner's Exhibit No. 1, including the cover letter. With the assistance of Mr. and Mrs. Whaley, who worked for the company at the park, he tried to assemble at least 44 complete sets of these materials. In late May of 1986, Mr. Weiss had given all tenants notice by registered mail of his intention to raise rents, effective September 1, 1986. Realizing he needed to distribute prospectuses before any rent increase, he had simultaneously informed tenants that a then current (but unapproved) version of the prospectus was available for inspection. Respondent's Exhibit No. 5. Hand Delivery As instructed, Ms. Whaley encouraged tenants to pick copies of the prospectus up when they paid their rent. She kept a list of persons to whom she distributed copies of the prospectus. Part of the list survived and has been received in evidence. Respondent's Exhibit No. 2. One tenant, Mary Oetken, received a copy of the approved prospectus on July 29, 1986. But the prospectus given to Ms. Oetken did not contain rules and regulations, a copy of the lot rental agreement, a lot layout plan, or the number of her lot. Ms. Oetken already had a copy of her lot rental agreement, and park personnel customarily distributed copies of rules and regulations to each tenant, before tenancies began. On August 29, 1986, another tenant, Betty Marinoff, wife of Peter, received a copy of an approved prospectus. Before September 1, 1986, Ms. Whaley hailed Mr. Philip H. Bird, and handed him a copy. Whether these copies of the approved pro-spectus included all attachments the evidence did not disclose. Robert Onusko, who has leased a lot in Flagler by the Sea Mobile Home Park continuously since August of 1981, has had a copy of the park's rules and regulations since he moved in. As did all other tenants, he paid increased rent beginning September 1, 1986. Although Mr. Onusko himself received no copy of an approved prospectus until January of 1989, Petitioner's Exhibit No. 7, Angela Whaley gave his daughter Marilyn a copy of the prospectus when Marilyn paid rent in July or August. Taped to Doors Not all tenants were then in residence at the park. About half lived there full time. (T.127) With respect to lots whose lessees were away, Mr. Weiss directed Mr. and Mrs. Whaley to tape copies of the prospectus on trailer doors. "That was common procedure with late payments or whatever . . . " T.112. In mid-August of 1986, Ms. Whaley told him that prospectuses had been distributed for each lot, either by delivery to a tenant or by posting. Clarence Rainey leased a lot from 1977 to 1989 at Flagler by the Sea Mobile Home Park, where he lived part of the year, returning to Illinois in the summer. Told by a neighbor that they were available, he asked for and received a prospectus in November of 1986. He had not received one earlier. With her husband Roger, Madeline DuJardin resided at Flagler by the Sea from February of 1979 until February of 1988. She did not get a copy of the approved prospectus before the rent increased on September 1, 1986, from $125.00 to $150.00 per month. Neither Mr. and Mrs. Rainey nor Mr. and Mrs. DuJardin received copies when they were originally distributed. Their trailers were among those to which copies were taped, weeks or months before their return in cooler weather. Charles A. Bond, who shared a trailer with a half-brother, resided at Flagler by the Sea from November 21, 1985, until December 31, 1988. While he lived at the park he never received a prospectus. Brothers surnamed Karcher each leased lots from respondent. Ms. Whaley gave one Mr. Karcher a copy of the approved prospectus, before September 1, 1986. But Richard Karcher, who in those days only spent a week at a time in the park, at intervals of several months, did not receive a copy of the approved prospectus before the rent increased. Richard Karcher had obtained a preliminary draft of the prospectus, but it differed in important respects from the draft which was eventually approved. In June of 1988, he obtained another copy of the prospectus, the copy, he testified, which he gave DBR's investigator, which also differs in important respects from the approved version. Attached to the copy Mr. Karcher gave DBR's investigator was a set of the park rules and regulations. It is not clear whether Ms. Whaley told Mr. Weiss that she had taped an approved copy to Mr. Richard Karcher's door. (T. 126, 128) Change of Law Effective July 1, 1986, statutory changes altered prospectus requirements. Petitioner mailed advice concerning the new requirements when it sent out annual fee statements to mobile park owners. Mr. Weiss did not personally receive this advice nor any written notice of the nine workshops petitioner conducted in August of 1986 to acquaint park owners with the statutory changes. Although approved a few days earlier, respondent's prospectus did not conform to all the new requirements. In early 1988, Mr. Weiss heard from Gloria Thompson, a DBR employee in its Tampa office, in connection with a complaint filed by Charles Jagde, the same person whose complaint led to the investigation that gave rise to the present proceedings. Ms. Thompson found no violation on the original complaint. Respondent's Exhibit No. 6. Eventually Mr. Weiss learned that revisions to prospectus No. 1802171 were necessary. On November 18, 1988, he filed another proposed prospectus with petitioner. After its approval on January 30, 1989, park personnel distributed the revised, approved prospectus, No. 1802171P86, to the tenants.
Recommendation It is, accordingly, RECOMMENDED: That DBR enter an order requiring respondent to send complete copies of currently approved prospectuses by registered mail to all tenants who have not received such copies personally and signed receipts so stating. DONE and ENTERED this 30th day of July, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1 through 6, 9, 11 through 14 and 16 through 19 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 7, the evidence did not establish the contents of the copy of the prospectus the Miranoffs received. With respect to petitioner's proposed finding of fact No. 8, Mr. Onusko's adult daughter Marilyn received a copy of the prospectus before the rent increased. Petitioner's proposed finding of fact No. 10 pertains to subordinate matters only. With respect to petitioner's proposed finding of fact No. 15, Mr. Karcher so testified, without contradiction. Respondent's proposed findings of fact Nos. 1 through 5, 7 through 10, 12 through 19, 21, 22, 24, and 27 through 30 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 6, the prospectus had not been approved at that time. With respect to respondent's proposed finding of fact No. 11, she did not personally deliver prospectuses to all tenants. With respect to respondent's proposed finding of fact No. 20, the differences were material. Respondent's proposed findings of fact Nos. 23, 25 and 26 are immaterial. COPIES FURNISHED: Donna H. Stinson, Esquire Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A. The Perkins House, Suite 100 118 North Gadsden Street Tallahassee, FL 32301 Debra Roberts, Esquire Department of Environmental Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Paul Martz, Esquire Martz & Zimmerman 3 Palm Row St. Augustine, FL 32084 Stephen R. MacNamara Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 =================================================================
The Issue 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 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.
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
