The Issue The issue for determination is whether Respondent committed the violations as alleged and, if so, what civil penalty is appropriate.
Findings Of Fact Respondent, T. Cayton Enterprises, Inc. is the owner and operator of Four Oaks Mobile Home Village, a mobile home park located in Titusville, Brevard County, Florida. On or around June 27, 1986, Thomas Cayton, as President of T. Cayton Enterprises, Inc. filed a prospectus for the park with Petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes. The filing statement provided that 49 lots would be offered for rent, and that none of the lots were occupied. The $10.00 per lot filing fee ($490.00) was paid. The filing was rejected as the form was deficient. Between the end of June 1986, and August 26, 1987, the date of the approval letter, eight versions of the prospectus were filed by the park owner and were reviewed by staff of the division. After each review, the owner was sent a letter outlining the deficiencies. At one point, sometime around June 1987, Mr. and Mrs. Cayton travelled to Tallahassee to meet with Selena Einwechter, the Supervisor of the Examination Section in the agency's Bureau of Mobile Homes. The prospectus submittals and correspondence to and from the Bureau comprise 425 pages. Between the filing of the first version of the prospectus and the final approval, approximately 14 months later, twelve lots were rented at Four Oaks Mobile Home Village. The lot numbers and dates of the rentals are: Lot #3 August 1, 1986 Lot #2 August 2, 1986 Lot #44 August 15, 1986 Lot #46 August 30, 1986 Lot #12 November 1, 1986 Lot #4 November 30, 1986 Lot #19 January 15, 1987 Lot #7 March 9, 1987 Lot #6 June 1, 1987 Lot #15 June 1, 1987 Lot #5 June 6, 1987 Lot #9 June 30, 1987 Six of the recitals are evidenced by written leases; the remainder were oral agreements, reflected in the office records of the park. All of the tenants commenced paying rent upon occupancy of the lot and no one was told that the leases were unenforceable. At the beginning of the process, on July 29, 1986, Thomas Cayton was sent a letter from the Bureau of Mobile Homes confirming that his prospectus filing had been received and was being examined. The bottom of the letter includes this statement, clearly displayed: NOTE: Section 723.011, Florida Statutes, and Rule 7D-31.01, Florida Administrative Code, requires the delivery of a prospectus which has been deemed adequate by the Division prior to entering into enforceable rental agreements or renewal of existing rental agreements. Renewals of existing rental agreements or entering into new rental agreements without delivery of a prospectus which has been deemed adequate will constitute a violation of the Florida Mobile Home Act. (Petitioner's Exhibit #1, composite) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes. Subsection 723.005(d)1., F.S. authorizes the Division of Florida Land Sales, Condominiums and Mobile Homes to impose a civil penalty not to exceed five thousand dollars ($5,000) against a mobile home park owner for each separate violation of Chapter 723, F.S. or regulation promulgated pursuant thereto. The statute and rule allegedly violated by Respondent provides as follows: 723.011 Disclosure prior to rental of a mobile home lot; prospectus, filing, approval.-- (1)(a) In a mobile home park containing 26 or more lots, the park owner shall file a prospectus with the diversion. Prior to entering into an enforceable rental agreement for a mobile home lot, the park owner shall deliver to the home owner a prospectus approved by the division. This subsection shall not be construed to invalidate those lot rental agreements for which an approved prospectus was required to be delivered and which was delivered on or before July 1, 1986, if the mobile home park owner had: Filed a prospectus with the division prior to entering into the lot rental agreement; Made a good faith effort to correct deficiencies cited by the division by responding within the time limit set by the division, if one was set; and Delivered the approved prospectus to the mobile home owner within 45 days of approval by the division. This paragraph shall not preclude the finding that a lot rental agreement is invalid on other grounds and shall not be construed to limit any rights of a mobile home-owner from seeking any remedies allowed by this chapter, including a determination that the lot rental agreement or any part thereof is unreasonable or unconscionable. (emphasis added) * * * 7D-31.001 Prospectus and Rental Agreement. * * * (13) The park owner shall deliver the prospectus to existing tenants prior to the renewal of their rental agreements or prior to entering into a new rental agreement. Once a tenant has been given a prospectus, the park owner shall not be required to provide another prospectus but shall provide amendments, as described in Rule 7D-30.004 and this rule. Because Four Oaks' prospectus was not approved until the end of August 1987, the 12 rental agreements entered between August 1, 1986 and June 30, 1987, violated the above provisions. Respondent claims that he thought that as long as the prospectus had been filed, he could enter into rental agreements. This would have been true under the original version of the Florida Mobile Home Act, passed by the Legislature in 1984. The relevant provision of that act is found in Section 720.302(1), F.S. (1984) as follows: Every mobile home park owner of a park which contains 26 or more lots shall file a prospectus or offering circular with the division prior to entering into an enforceable rental agreement. Chapter 84-80, Laws of Florida, Part III) This section took effect on January 1, 1985, for parks with more than 100 lots, and on July 1, 1985 for parks with less than 100 lots. (Chapter 84-80, Laws of Florida) The current version, reflected in Section 723.011, F.S., cited above, took effect on July 1, 1986. (Chapter 86-162, Laws of Florida) Respondent cannot avail himself of the "grand-father" provision of Section 723.011, since his rental agreements and prospectus approval occurred after July 1st. Further, the explicit language of the note on the July 29, 1986, letter should have put him on notice of the new requirements of the law. There are no guidelines for the imposition of a penalty, other than the $5,000.00 maximum per violation found in Section 723.006(5)(d)1. F.S. No evidence was presented as to prior violations by this Respondent. The extensive file evidences a good faith attempt to comply with a law that was still relatively new.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That Respondent be found guilty of violation of Section 723.011(1)(a), F.S. (1986), as charged, and that a civil penalty of $100.00 per violation be imposed, for a total of $1,200.00. DONE and RECOMMENDED this 13th day of September, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 1988. COPIES FURNISHED: Richard Coates, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas Cayton, Registered Agent 2475 Cheney Highway Titusville, Florida 3270 Debra Roberts, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Bell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
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
Findings Of Fact At all pertinent time Country Meadows Estates, Ltd. (Country Meadows), a Florida limited partnership, has been the park owner of Country Meadows Mobile Home Park (the Park) which is located in Plant City, Florida. Century Realty Funds, Inc. (Century), is the general partner of Country Meadows Estates, Ltd. Century has been in the business of operating adult and retiree mobile home parks for approximately seven years. It operates over 20 different parks. Country Meadows has been in existence for approximately five years. Approximately 510 lots have been offered for rent or lease in the Park. When the last phase of the Park is completed, approximately 750 lots will have been offered for rent or lease. Yearly rental increases at Country Meadows equate to the increase in the consumer price index, or a $5 minimum increase, whichever is greater. This rental agreement is guaranteed by Century for the lifetime of the mobile home owners as long as they reside in the Park. Charge Of Failure To Deliver Approved Prospectus. Century retained a law firm to provide assistance in securing approval of its proposed prospectus, lease agreement and park rules and regulations and paid the law firm a fee for its services. On November 27, 1984, Country Meadows filed with the Department of Business Regulation, Division of Land Sales, Condominiums and Mobile Homes (the Division), a prospectus for the Park. In order to be able to increase rent in January, 1985, as provided in existing lot leases, Country Meadows tried to get a copy of the filed prospectus to all existing lot lessees by the end of 1984. Starting December 31, 1984, Country Meadows began delivering a copy of this prospectus to each new lessee of lots in the Park. On January 7, 1985, the Division notified Country Meadows of deficiencies in the prospectus. Century, often through its supervisor of property management operations, and its legal counsel held numerous telephone conferences with the Division and numerous conferences among themselves regarding the notice of deficiencies. On February 25, 1985, Country Meadows sent the Division a revised prospectus addressing the deficiencies. Country Meadows substituted the revised prospectus as the prospectus delivered to new lessees of lots in the Park after February 25, 1985. On March 13, 1985, the Division sent Country Meadows another notice of deficiencies. The deficiencies found this time were in the original prospectus but were not noted in the first notice of deficiencies. On March 15, 1985, Country Meadows stopped delivering a prospectus to new lessees of lots in the Park after March 15, 1985. Country Meadows believed the law prohibited it from delivering an unapproved prospectus after that date but did not believe that it was prohibited from continuing to do business until a prospectus was approved. Rather, Country Meadows believed the law allowed it to continue to enter into new lot leases in the Park without an approved prospectus after March 15, 1985, but that it would have to deliver a prospectus when approved and give lessees the right to rescind their lot leases after review of the approved prospectus. On May 22, 1985, Country Meadows sent the Division a second revised prospectus. On November 6, 1985, Country Meadows sent the Division yet another revised prospectus that distinguished between increase in base rent on a lot and increase in other fees associated with rental of a lot. On November 21, 1985, the Division approved Country Meadows' last revised prospectus for the Park. Between March 16 and November 5, 1985, Country Meadows entered into 79 new Park lot rental agreements without delivering a prospectus to the lessee. Instead, the applicable filed but not yet approved prospectus was made available for inspection. Within 45 days after approval of the third revised prospectus on November 21, 1985, Country Meadows distributed an approved prospectus to all lessees, including those who entered into leases between March 16 and November 5, 1985. Century made a good faith effort to correct the deficiencies the Division cited in its proposed prospectuses. Charge Of Failure To File Advertising. In late summer or early fall, 1985, William and Nancy Hines responded to an advertisement in a magazine and asked for information. Century sent them documents. Some were not identified. One was entitled Greetings From Sunny Florida! (Petitioner's Exhibit 7). Century generally gives this document to persons who express an interest in Country Meadows, inviting them to pursue their interest and make a visit to the Park, free of charge. Later, Century sent a follow-up letter giving new information, further "selling" the benefits of Century parks, and finally asking the Hineses to indicate if they were still interested. (Petitioner's Exhibit 10). The Hineses arranged to make a visit to the park on November 15, 1985. At the Park, a County Meadows sales representative spoke with the Hineses and gave them a document entitled "Approximate Monthly Living Expenses At Country Meadows" (Petitioner's Exhibit 9). Country Meadows gives this document to persons who request information about Country Meadows. During the visit, the Hineses also were given a document entitled "Before You Purchase A Home: Questions And Answers You Should Know" (Petitioner's Exhibit 8). Country Meadows (and Century in general) usually sends this document to persons who express an interest in Country Meadows (or another Century park). It poses and answers general questions about mobile home parks and, in so doing, touts Century and its mobile home park developments. None of the documents (Petitioner's Exhibits 7, 8, 9 and 10) were filed with the Division. The Hineses entered into a lease agreement on November 15, 1985. In late winter or early spring of 1985, Elmer and Adele Johnson also saw an advertisement in a magazine and arranged to visit Country Meadows. At the visit, a Country Meadows sales representative gave the Johnsons a copy of a document entitled "Century: Mobile Home Communities, Affordable, Award-Winning, Adult Mobile Home Living-Now offering 11 outstanding Central Florida Mobile Home Communities for your inspection!" (Petitioner's Exhibit 11). It identified and listed information on each of the eleven parks, including Country Meadows. After the visit, Country Meadows sent the Johnsons a follow-up letter giving new information, further "selling" the benefits of Century parks and finally asking the Johnsons to indicate if they were still interested. (Petitioner's Exhibit 10). The letter is a standard letter (addressed "Dear Friend") used to re- contact prospective customers who have visited a Century park (as, for example, hundreds have visited Country Meadows). On March 15, 1985, the Johnsons returned to Country Meadows. They were given a copy of Petitioner's Exhibit 8 and entered into a lease agreement. None of these documents (Petitioner's Exhibits 8, 10 and 11) were filed with the Division. Petitioner's Exhibit 11 also was used and given to Myre Lutha Tillman, a prospective purchaser, in approximately July, 1985. From at least May 29, 1984, through October 6, 1986, a billboard sign advertising Country Meadows (a picture of which is Petitioner's Exhibit 4) was located on Frontage Road and could be seen from Interstate 4, approximately six miles east of Plant City. Century admits the billboard was advertising that was not filed with the Division. The billboard was removed some time after October 6, 1986, and no longer is in use. Country Meadows also placed newspaper advertisements of the Park in the Tampa Tribune on Sunday, February 2, and Sunday, February 26, 1986 (Petitioner's Exhibits 5 and 6, respectively). Century admits that this advertising was not filed with the Division. Some of the information Century gave prospective purchasers including Petitioner's Exhibits 7, 8, 9, 10 and 11-- was given only to persons who expressed an interest in a Century mobile home park or at least requested information. Century's supervisor of property management operations did not think this information was "public" and therefore not "advertising" under the mobile home park statutes. This partially explains why Century did not file this information with the Division. Charge Of False Or Misleading Advertising. Century admits that it used a pamphlet entitled "Country Meadows: The Golden Dream" (Petitioner's Exhibit 12), which it properly filed with the Division, as advertising distributed to the public. The pamphlet advertises "Exercise Facilities & Locker Rooms" and "Security with Access Gatehouse." The only locker rooms ever at Country Meadows were small package lockers located in the mailroom. The pamphlet, while technically not false, was misleading because it gives the impression of a locker room that would be used to change clothes in conjunction with the exercise room. There always has been "Security with Access Gatehouse" at Country Meadows. Initially, the gatehouse was placed at the entrance of the Park and was manned by paid residents of the Park. The gatehouse was manned during the day until early evening hours and on weekends (in part to direct visitors and guests to residents.) Later, approximately in early 1986, the gatehouse was moved back from the entrance and was equipped with automatic security gate arms. The residents were given an access code which, when punched in at the gatehouse, would automatically open the gate arm on either entering or leaving the Park. Country Meadows no longer hired residents to man the gatehouse but hired a full- time security guard who roves Country Meadows and an adjacent Century park that now has approximately 100 home sites leased. The security guard's hours of employment include the early morning and the evening hours. Sometime after installation of the new gatehouse (no witness could say when), lightning struck the gate and blew out the computer that controls the gate arm. The computer was fixed and was operative for a while without access codes. It was anticipated that the access code mechanism would be operative and new access codes would be given to the residents by the end of August, 1987. Again, no witness could testify to more precise time frames in which these events took place. Century also admits that it used another pamphlet or brochure, similar to Petitioner's Exhibit 12 but not filed with the Division, for advertising to the general public. This other pamphlet or brochure was entitled "The Golden Dream: Country Meadows" (Petitioner's Exhibits 13). It was given to Gerald Gott, among others, at a seminar in Merrillville, Indiana, sometime between October 10 and December 20, 1985. Like Petitioner's Exhibit 12, Petitioner's Exhibit 13 includes a color-coded map of Country Meadows showing: (1) "Home Sites Sold"; (2) "Home Sites Available"; and (3) "Final Phase, Future Home Site." In other colors, the map shows one clubhouse and one pool located between the first two color-coded areas (and bordered on the third side by golf course), and a second clubhouse and second pool nestled inside the third color- coded area (the "Final Phase"). Neither of the two pamphlets (or brochures) use the word "proposed" to describe the second clubhouse or second pool. The "Final Phase" of Country Meadows now is underway, and it will include a clubhouse and pool. The clubhouse will be a closed pavilion with a patio. The billboard advertising Century used for at least from May 29, 1984, through October 6, 1986, (Petitioner's Exhibit 4) stated: "Price [$29,900] Includes: Golf-Lakes-Pool- Clubhouse." However, Country Meadows actually was selling homes (and leasing lots) in the Park without golf included in that price. (Golf is optional for purchasers who pay an additional golf membership fee.) When prospective purchasers made an issue of the billboard advertising, Country Meadows on at least one occasion made an accommodation, including in the purchase price two years of free golf on the "gold card program" and charging $240 per year for golf privileges after that. The Tampa Tribune newspaper advertising (Petitioner's Exhibits 5 and 6) included the statement: "Free *Golf For 5 Years [under certain conditions]." The asterisk was intended to refer the reader to an asterisk near the bottom of the ad that said: "*No Free Golf On $32,900 Homes." Mitigation. Century has made reasonably diligent efforts in many respects both to cooperate with the Division to achieve compliance with the statutes and rules and to address and resolve the complaints and desires of residents of the Park.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Petitioner, Department of Business Regulation, Division of Land Sales, Condominiums and Mobile Homes, enter a final order: Dismissing the first and fourth charges alleged in the Notice To Show Cause; Holding the Respondent, Century Realty Funds, Inc., d/b/a Country Meadows Estates, Ltd., guilty of the violations alleged in the second and third charges in the Notice To Show Cause; Ordering the Respondent to cease and desist from the use of unfiled and false or misleading advertising; and Ordering the Respondent to pay to the Petitioner a total civil penalty in the amount of $5000 for the violations for failure to file advertising and false or misleading advertising. RECOMMENDED this day of September, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0165 Explicit rulings on the parties' proposed findings of fact are made to comply with Section 120.59(2), Florida Statutes (1985): Petitioner's Proposed Findings Of Fact: 1.-4. Accepted and incorporated. 5.-6. Subordinate and unnecessary. 7.-26. Accepted and incorporated to the extent necessary and not subordinate. Accepted and incorporated. Rejected as not within the charges in the Notice To Show Cause. 29.-30. Rejected as contrary to facts found. Subordinate to facts found. Accepted and incorporated. Rejected as irrelevant and not within the charges in the Notice To Show Cause. Accepted and incorporated. Subordinate to facts contrary to those found. 36.-38. Subordinate to facts found. 39.-41. Accepted and incorporated. 42.-44. Subordinate to facts found. 45.-47. Accepted and incorporated to the extent necessary and not subordinate. 48.-53. Accepted and incorporated. Rejected as contrary to facts found. There are lockers in the mailroom, but the advertising is misleading. Subordinate to facts found. Subordinate. Respondent's Proposed Findings Of Fact: 1-8 Accepted and incorporated. Unnecessary. Except that the reasonableness of the fee was not the subject of any evidence, accepted and incorporated. 11.-12. Accepted and incorporated. 13. Unnecessary. 14.-18. Accepted and incorporated. 19. Rejected as not proven if, when or why a third revision was demanded. The evidence proves only that the third revision provides some information the Division had requested. 20.-21. Accepted and incorporated. Rejected as contrary to fact found. (It was not simply a matter of Century waiting for the Division to approve a filed prospectus.) Accepted and incorporated. 24.-31. Irrelevant and unnecessary. (As to 29. to 31., the issues were not the same as in this case.) 32.-35. Subordinate to facts found (except it was not proven that every reasonable effort was made.) 36.-40. Accepted and incorporated except, as to 38, "financial security" was not an issue in the Notice To Show Cause and is irrelevant.) 41. Accepted and incorporated (but the lockers were in the mailroom, and the advertisement of them is misleading.) 42.-43. Accepted and incorporated. Irrelevant and unnecessary. Subordinate to facts found. Rejected as contrary to facts found. Irrelevant and unnecessary. Accepted and incorporated. See 47, above. Rejected as contrary to facts found. (Petitioner's Exhibit 12 was.) Accepted and incorporated. Accepted and incorporated (although the first notice of deficiency, while incomplete, was timely.) Rejected as not proven precisely what Century's decision, i.e., the understanding of its supervisor of property management operations, was based on. 54.-59. Accepted and incorporated. Unnecessary. Accepted and incorporated. Rejected as conclusion of law. 63.-64. Accepted and incorporated except to the extent conclusion of law. 65. Rejected as not proven. COPIES FURNISHED: Debra Roberts, Esquire Paul Thomas Presnell, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1927 Ronald L. Clark, Esquire Michael A. Tewell, Esquire MURPHY & CLARK, P.A. Post Office Box 5955 Lakeland, Florida 33807-5955 Richard Coats, Director Division of Florida Land Sales, Condominiums and Mobile Homes The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1927 James Kearney, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1927 Thomas A. Bell, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1927
The Issue 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 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 =================================================================
Findings Of Fact (As established by the Stipulation of Facts) Chapter 77-49, Laws of Florida (Sections 83.770 to 83.794, Florida Statutes.) Created the Mobile Home Tenant-Landlord Commission. Section 6 thereof required the registration of all mobile home parks containing 100 or more dwelling units. A registration fee of $1.00 for each dwelling unit contained in the mobile home park , was required to accompany the application for registration. Pursuant to the Act Respondent, Authority, the owner and operator of a 742 unit mobile home park, filed its application for registration together with $742.00 on March 3, 1978. On April 26, 1979, subsequent to the foregoing payment by Respondent, Chapter 77-49, Laws of Florida was held unconstitutional in the case of Department of Business Regulation v. National Manufactured Housing Federation, 370 So.2d 1132 (Fla. 1979). Thereafter, on July 16, 1979, Respondent requested a refund of $742.00 from the Office of the Comptroller. The Comptroller denied the request on October 26, 1979. On November 13, 1979, Respondent requested an administrative hearing on the Notice of Intent to Deny Refund. The State Mobile Home Tenant-Landlord Trust Fund lacked sufficient monies from which to make a refund at the time of the request by Respondent. The funds received by the State Mobile Home Tenant-Landlord Trust Fund had been disbursed for the payment of salaries, travel expenses of its employees, postage expenses, office supplies, etc. and for the payment of $9.664.96 to the General Revenue Fund of the State of Florida (GRF). This payment was made on June 25, 1979 to repay sums appropriated from the GRF to the Mobile Home Tenant-Landlord Commission for start up costs prior to the collection of registration fees. On October 18, 1977, the State Administration Commission granted a loan of $19,627 from the GRF to the Department of Business Regulation for the purpose of providing start up funds for the administration of the State Mobile Home Tenant-Landlord Act, Chapter 77-49, Laws of Florida. In making the loan the Administration Commission provided that it be repaid on or before June 30, 1978. No evidence has been presented on why the loan was not repaid at that time.
Recommendation In light of the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED: That the application of the City of Melbourne, Melbourne Regional Airport Authority for a refund from the State Treasury in the amount of $742.00 be denied. DONE and RECOMMENDED this 25th day of November, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1980. COPIES FURNISHED: William C. Potter, Esquire NABORS POTTER McCLELLAND GRIFFITH & JONES, P.A. 1380 Sarno Road Post Office Box 977/EG Melbourne, Florida 32935 Michael Basile, Esquire Deputy General Counsel Office of the Comptroller The Capitol Tallahassee, Florida 32301
Findings Of Fact Oak Park Village is a mobile home park which is owned and operated by the COOPERATIVE. All of the one hundred and thirty three (133) corporate shareholders are former renters who formed the corporation in order to purchase the park from Mr. Paster and Mr. Perrault, the previous park owners. When the purchase was made, the remaining sixty-six (66) mobile home owners who rented lots within the park did not participate in the purchase. These mobile home owners remained within the park in their status as renters. The COOPERATIVE'S predecessors in title filed a mobile home park prospectus and an amended prospectus with the DIVISION, as required by law. The renters who received the initial prospectus between April 1985 and October 1986, continued their relationship with the park under this prospectus. All of the newer renters were subject to the amended prospectus, which became effective October 1986. Each prospectus contains a copy of the lease form. All of the renters had to sign a written lease before they could enter the park. The term of a lease within the park was normally for a one year period, which ended on December 31st. However, if a tenancy did not begin on January 1st of any year, the first term would end on December 31st of the year the lease was made. Each lease contains an automatic renewal clause. Unless the renter notifies the mobile park owner in writing sixty (60) days in advance of the automatic renewal on December 31st of his intention to leave the park, the lease is automatically renewed for another one year period. In the lease and in each prospectus, only the renters can prevent the automatic renewal from taking effect. On September 19, 1986, the mobile home park owners, Mr. Paster and Mr. Perrault gave written notice to the renters of their intent to increase the lot rental amount effective January 1, 1987, from one hundred and fifty dollars ($150.00) a month to one hundred and fifty six dollars and forty cents ($156.40) per month for a one year period. This advance notice gave the renters the opportunity to terminate their leases and relocate before the automatically renewal or January 1, 1987, which would include this lot rental price increase. None of the renters gave the owners a sixty (60) day advance written notice of their intention to leave the park at the end of the term. Therefore, potential purchasers were on notice that sixty-six (66) renters intended to automatically renew their written leases on January 1, 1987, for a one year term. On January 1, 1987, the automatic renewal went into effect. Under the lease terms and each prospectus, every renter owed one thousand eight hundred seventy six dollars and eighty cents ($1,876.80) as lot rent for the year 1987. The renters had the option to pay this amount in equal monthly installments of one hundred and fifty six dollars and forty cents ($156.40) over the twelve month period. However, the mobile home park owner's right to the one thousand eight hundred seventy six dollars and eighty cents ($1,876.80) vested on January 1, 1987. Contrary to the stipulation of the parties, the law and the evidence shows that written leases were in effect on January 1, 1987. On December 26, 1986, the COOPERATIVE purchased Oak Park Village. At the time of purchase, the COOPERATIVE took the property subject to the existing leases, and the automatic renewals which were inchoate on December 26, 1986, but which would become operative on January 1, 1987. After the sale was completed, Mr. Paster attempted to rescind the notice of rent increase, which was to take effect on January 1, 1987. As Mr. Paster no longer owned the property at the time he attempted this recision, he was unable to effectuate a recission. On December 30, 1986, the COOPERATIVE mailed written notices to its sixty-six (66) renters. The notices informed the renters that the rent would remain at one hundred and fifty dollars ($150.00) for three months and would then increase to one hundred and eighty seven dollars ($187.00) per month from April 1, 1987, to December 31, 1987. This came to an annual rental amount of two thousand one hundred and thirty three dollars ($2,133.00). This was an annual increase of two hundred and fifty six dollars and twenty cents ($256.20) per renter during the 1987 lease term, when the increase initiated by the prior owners is compared with the proposed increase. In comparing the notice of increase dated September 19, 1986, and the notice dated December 24, ,1986, it appears that the first three reasons listed for the proposed increases are identical. The only additional reason for an increase which is listed on the notice dated December 24, 1986, from the new owners is "Maintenance needs of the park." The notices sent by the new owners, the COOPERATIVE, were postmarked December 30, 1986, and were placed in the individual post office boxes of all of the tenants on the same day. Page twelve of each prospectus defines "notice" as follows: Unless otherwise provided by statute, administrative rule, or this Prospectus, any notice shall be deemed given by posting by first class mail or by actual hand delivery. Rule 7D-32.02(3), Florida Administrative Code, the applicable rule to these proceedings, provides as follows: Notice given by personal delivery shall be deemed given when actually delivered to the homeowner. Notice by U.S. Mail shall be deemed given five days after notice is placed in the U.S. Mail addressed to the mobile homeowner's last known address. As the prospectus and the amended prospectus both defer to the administrative rule in effect which defines the term "notice," the COOPERATIVE's notice did not occur within a ninety day period, even under the COOPERATIVE's theory of the case, as set forth in its Proposed Recommended Order.
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 Chapter 723, Florida Statutes, the Florida Mobile Home Act, became law on June 4, 1984, created by Chapter 84-80, Laws of Florida. Chapter 723 expressly preempts to the state all regulation and control of mobile home lot rents in mobile home parks and all those matters relating to the landlord-tenant relationship treated by or falling within the purview of the chapter. The statute regulates any residential tenancy in which a mobile home is placed upon a rented or leased lot in a mobile home park in which 10 or more lots are offered for rent or lease. The statute requires that every owner of a mobile home park containing 26 or more lots shall file a prospectus with the Respondent prior to entering into an enforceable rental agreement. Respondent has the power and duty to enforce and ensure compliance with the provisions of the chapter and rules promulgated pursuant to the chapter relating to the rental of mobile home lots. Respondent is further authorized to promulgate rules, pursuant to Chapter 120, which are necessary to implement, enforce and interpret the chapter. The proposed rule at issue in this proceeding was first published in the Florida Administrative Weekly, Volume 14, Number 7, February 19, 1988. The parties have requested official recognition of the proposed rule and its date of publication, and that request is hereby granted. Proposed rule 7D-31.002, Florida Administrative Code, provides: 7D-31.002 Fees, Charges and Assessments. For tenancies in existence before June 4, 1984, including any assumptions of those tenancies pursuant to Section 723.059, Florida Statutes, the mobile home owner is not obligated to pay any fees, charges or assessments which were not disclosed fully in writing prior to occupancy, any provision to the contrary in a prospectus notwithstanding, unless the park owner can establish that the fees, charges or assessments have been collected as a matter of custom as defined in subsection (4) of this rule. Furthermore, the mobile home owner is not obligated to install any permanent improvements at all, including those mandated by governmental entities or utility companies. For tenancies created on or after June 4, 1984, pass through charges, as defined in Section 723.003(9), Florida Statutes, may be imposed by the mobile home park owner if the mobile home owner's obligation to pay such charges was disclosed in general terms pursuant to Sections 723.011 and 723.012, Florida Statutes, or pursuant to Section 723.013, Florida Statutes, even though the charge being imposed was not disclosed specifically, and the imposition of such pass through charges is not a violation of Section 723.042, Florida Statutes. However, pass through charges may not be imposed if the mobile home owner's obligation to pay such charges was not disclosed generally and prior to occupancy as required by Section 723.042, Florida Statutes and by Sections 723.011(2) and 723.012, Florida Statutes or Section 723.013, Florida Statutes, whichever is applicable. No fee, charge or assessment shall be imposed by a mobile home park owner on the purchaser of a mobile home situated in the park that is offered for sale by a resident of the park and as a condition to the purchaser being reviewed or approved for residency in the park. A fee, charge or assessment has been collected as a matter of custom if it was collected prior to July 1, 1976. Petitioner is a not-for-profit incorporated association, whose members include approximately 1,000 mobile home park owners and operators who own and operate mobile home parks in the State of Florida. Petitioner's members each lease at least 25 or more lots for the placement of mobile homes within each of their mobile home parks. Each of the members is therefore required to file and receive approval of a prospectus from Respondent prior to entering into an enforceable rental agreement for the lease of lots in those mobile home parks. Tom Coon, owner and operator of Hillsboro Mobile Home Park, located at Route 3, Box 801, Pompano Beach, Florida 33067, has "passed through" and charged for the hook-up fees and installation of sewer and water lines for hook-up to the Coconut Creek City Utility System. The cost to Mr. Coon for hook-up was $116,808 which includes fees which were not disclosed prior to occupancy and permanent improvements which were mandated as a result of actions by state and local government and the utility company. David Zell, owner of Colony Mobile Home Park, 2301 North 29th Avenue, Hollywood, Florida 33020, has "passed on" real estate tax increases in 1987 and 1988, as a result of entering into a three year negotiated agreement with the home owners negotiating committee, pursuant to mediation in 1986. The agreement allows for pass-on of increases in taxes and limits rent increases during that three year term. The total cost of pass-on charges for ad valorem property tax increases was $6,417.62 over that two year period. There is at least a $3,337.62 ad valorem property tax increase which will be passed-on in 1989. This pass-on charge for real estate taxes would be prohibited in that the real estate taxes were not disclosed to the residents prior to occupancy, nor were they collected prior to July 1, 1976. Charles Aultman is the owner and operator of Plantation Manor Mobile Home Park, 3032 South U.S. Route 1, Fort Pierce, Florida 33450. Aultman passed-on ad valorem property tax and utility increases for the years 1984, 1985, 1986, 1987 and 1988 for all residents of the park. The total amount passed-on was $33,872.57. This charge would be prohibited as not disclosed prior to occupancy or charged as a matter of custom as defined in the proposed rule. Jim Dale, owner of Rexmere Village Mobile Home Park, 11300 Rexmere Boulevard, Fort Lauderdale, Florida 33325-4099, has passed-on increases to ad valorem property taxes for the mobile home park to each of his residents in 1987 and 1988. The approximate cost of the pass-ons at this point is $120,000 per year. The pass-on charge for increased ad valorem property taxes is based upon an agreement entered into between the mobile home owners and the park owner that limits the increases in lot rental amount in the park, but allows for pass-ons of increased ad valorem property taxes. In addition, the mobile home park prospectus includes a charge for parking which limits the on-street parking in the mobile home park. This charge was not collected prior to July 1, 1976, and was not disclosed prior to occupancy, but has been collected since the prospectus was delivered in the mobile home park. There is a collection rate of approximately $8,000 per year parking charges in the mobile home park. Pauline Mantwil is the owner of Sunshine Mobile Manor, which had its sewage treatment plant condemned by the Department of Environmental Regulation. The park was required to tie into the Martin County Sewage Treatment System (Dixie Plant). The cost to each mobile home owner was allocated at $730 per space. The park owner passed-through this cost. The cost was disclosed in the prospectus, but was not disclosed prior to occupancy in the mobile home park. The total cost for impact fees and other costs associated with tie-in to the system is approximately $150,000. This pass-on of tie-in and other costs to hook up to the sewage treatment plant would be prohibited under the proposed rule because it was not disclosed prior to occupancy and because, in part, the costs include some permanent improvements to the sewage treatment system within the park. Mike Pond is the owner of Palm Shores Mobile Village, Inc., a mobile home park located at Number 1, East Lane, Lake Alfred, Florida 33850. The mobile home park consists of 97 lots. The park owner has no records of the fees and charges which were collected prior to July 1, 1976, and there was no disclosure of fees and charges prior to occupancy to the residents who moved in prior to the time the prospectus was approved and delivered. The prospectus was approved August 21, 1985, and delivered shortly thereafter. The mobile home park was mandated to enlarge its sewage treatment plant by the Department of Environmental Regulation. The park passed-through the costs of the sewage treatment plant enlargement to each resident within the park, at a cost of $218.25 per lot. In addition, there is an ad valorem property fire tax which is passed-on to each resident of $34.05 per lot. The fire tax is included within the November 1 tax bill and is paid March 31 of the next year. Neither the charge for sewer enlargement or the fire tax was disclosed prior to occupancy. The park owner has no record as to whether these types of fees and charges were collected prior to July 1, 1976. Clayton, Williams and Sherwood is a partnership doing business in the State of Florida, which operates the Coral Lakes Mobile Home Park located in Broward County, Florida. Clayton, Williams and Sherwood has passed-on increases in ad valorem property taxes in 1986 and 1987 to each resident within the mobile home park. The total pass-on charges for those two years is $15,600. There are 118 lots in the park that were occupied by residents prior to June 4, 1984. Each of these lots was charged a pass-on charge for taxes. Clayton, Williams and Sherwood is not aware of whether ad valorem tax increases were passed-on to residents prior to July 1, 1976, nor are they aware as to what disclosures were made to the residents in the mobile home park prior to occupancy. Clayton, Williams and Sherwood is the park owner of Shadow Hills Mobile Home Park in Orange County, Florida. Orange County has mandated that the mobile home park hook-up to the county sewer system. The cost of hook-up is $829,000 for hook-up fees, $50,000 to install a lift station for the purpose of complying with regulations for hook-up to the county sewage system, and $50,000 to eliminate percolation ponds which are currently on site. The owner of the mobile home park intends to pass-through the cost of the hook-up to the Orange County sewer system by amortizing that cost over a fourteen-year period. The mobile home park prospectus provides that the mobile home park may pass-through costs incurred due to the actions of state and local governments or utility companies. The park owner does not know whether these charges were collected prior to July 1, 1976. Clayton, Williams and Sherwood is also the park owner of Lakewood Mobile Home Park in Indian River County, Florida. Indian River County has mandated that Lakewood Mobile Home Park hook-up to the county sewer system at a cost of $484,000 to the mobile home park. This $484,000 includes hook-up fees and approximately $50,000 for a lift station to be installed as part of the hook-up. The prospectus for Lakewood Mobile Home Park provides that the park owner may pass-through costs incurred due to actions by state and local governments or utility companies as a separate charge. However, the park owner does not know whether a pass-through charge was disclosed to the residents of the park prior to occupancy nor whether such charge was collected prior to July 1, 1976. Charles Metcalf is the owner of Woodall's Trailer Park, located at 2121 New Tampa Highway, Lakeland, Florida 33801. Woodall's Trailer Park was required by the City of Lakeland to upgrade the electric utility system in the park. The approximate cost of this upgrade, which is presently being installed, is $35,000. The park owner operated the mobile home park based upon oral leases prior to the submission and approval of the prospectus of the mobile home park. The prospectus was approved June 4, 1985, by Respondent. The mobile home park owner intends to pass-through the cost of upgrading the electrical utility system to 253 mobile home lots located in the park. Those 253 mobile home lots are occupied by residents who were residents of the park as of June 4, 1984. The park owner did not disclose a pass-through or pass-on charge to any of those residents prior to occupancy, nor has a pass-through or pass-on charge been collected in the park prior to July 1, 1976. A pass-through charge is allowed in the mobile home park prospectus for costs incurred as the result of actions of state or local governments or utility companies. Jack Zieaer is the manager of Gulfstream Harbor, a 383 unit mobile home park, which began development in 1980. Approximately 235 lots were occupied on June 4, 1984 and approximately 260 lots were occupied on December 31, 1984. The prospectus for the mobile home park, which was filed on December 31, 1984, and distributed to existing tenants in the park, authorizes the imposition of separate charges on the home owners in addition to the basic lot rental amount, which separate charges were not disclosed in advance of occupancy. One hundred and twenty-three residents of the park received advance disclosure of all the charges set forth in the prospectus prior to occupancy. The tenancies of those 123 residents began after June 4, 1984. James F. Gould is the resident manager of Mobile Home Country Club, which contains 269 lots and which has been in operation for approximately 25 years. Twenty to twenty-five residents apply for residency in the park each year. The park imposes an application fee of $50 to screen the residents. Approximately $32,000 per year is collected for separate water and sewer charges plus an administrative fee. The separate charge for water was disclosed to people when they moved into the park. William Hart is the owner and operator of seven mobile home parks, including Havenwood Adult Mobile Home Community. In 1981, 1986 and 1987, Hart passed-through to the residents at Havenwood tax increases in addition to the basic lot rental amount. All of Hart's prospectuses authorize the pass-through of charges billed by state or local governments or utility companies and provide for a $50 investigation fee to investigate proposed residents. The total investigative fees collected from all seven of Hart's parks in 1987 was approximately $9,400. The taxes passed-on in Havenwood in 1981, 1986 and 1987 total approximately $850, $1,300, and $2,100 respectively. DeAnza Corporation owns eight mobile home parks in Florida with about 5,300 spaces, including Mobil Americana Mobile Home Park in St. Petersburg, Florida. Mobil Americana Mobile Home Park was in operation prior to June 4, 1984, and was developed beginning about 22-23 years ago. DeAnza purchased Mobil Americana in 1976, at which time there was a lease in place in the park. There were 758 residents in the park at the time it was purchased of whom 275 continue in occupancy today. DeAnza charges an application fee in all of its parks of $50, except for one park which charges an application fee of $20. Five hundred and forty-eight of the 758 lots presently occupied at Mobil Americana are occupied by residents who moved in before June 4, 1984. The City of St. Petersburg has instructed DeAnza to install 11 new fire hydrants in Mobil Americana, and DeAnza has responded by proposing to install two. An engineer has estimated that it would cost approximately one-half million dollars to install 11 hydrants in the park and that it would cost approximately $68,500 to install only two. DeAnza and the City are continuing to negotiate concerning the fire hydrants. The park intends to pass-through the costs of any fire hydrants to the residents. Rents are increased in the park yearly, and every two years the rental level is set by the market. The park owner determines the market. A substantial number of Petitioner's members will experience an adverse and/or substantial economic impact as a result of the proposed rule, if adopted. The past practice of collecting pass-through and pass-on charges by the park owners will be illegal under the proposed rule. In addition, the past collections of fees, charges and assessments which were not disclosed prior to occupancy or collected prior to July 1, 1976, will be illegal and subject to Respondent's enforcement jurisdiction. Those illegal charges may be required to be paid back to the homeowners. As such, there is a substantial economic impact from the proposed rule. Petitioner has standing to challenge proposed rule 7D-31.002, pursuant to sections 120.54(4) and 120.57, Florida Statutes. Petitioner's Executive Director conducted a partial survey of Petitioner's members. Over 5 percent of the surveyed parks have already charged pass-through charges for governmentally mandated capital improvements to their residents, including residents of the parks prior to June 4, 1984, and a substantial number of others intend to in the future. The term "entrance fee," as that term is commonly understood in the mobile home industry, is a fee charged for moving a mobile home onto a vacant mobile home lot in a mobile home park, whether that is done by a dealer or a home owner. The term "application fee" as that term is commonly understood in the mobile home industry, is a charge for recouping the costs associated with credit checks, screening, and criminal background checks in qualifying a potential resident of the park. It applies to someone who purchases an existing home in the park. The Respondent acknowledges that there is an economic impact from the statute as interpreted by the proposed rule and that the economic impact of the proposed rule on regulated persons was pointed out to the Respondent during workshops on the proposed rule. However, the Respondent did not conduct any investigation of the economic impact of the proposed rule. No economist conducted the economic impact analysis; rather, the economic impact statement supporting the proposed rule was prepared by Respondent's legal section. No consideration was given by Respondent to the amount of monies involved in pass- through charges. Further, no review was made by Respondent of the prospectuses contained in its own files in order to determine the kind or extent of economic impact on the persons regulated by Respondent, i.e., the park owners. The parties have stipulated that there is no provision in chapter 723, Florida Statutes, which expressly provides that all fees, charges and assessments have to be fully disclosed in writing. Pass-through charges or pass-on charges are not prohibited by chapter 723, Florida Statutes; rather, that chapter specifically defines pass-through charges and even requires that all prospectuses contain a description of the manner in which pass-through charges will be assessed. It is the common understanding in the mobile home industry that park owners cannot require mobile home owners to install permanent improvements on their individual lots, such as driveways, etc. However, mobile home owners can be contractually obligated to pay the cost of installing capital improvements required by local governments or utility companies--pass-through charges by statutory definition.
Findings Of Fact The Subject Property. The property at issue in this proceeding consists of approximately 66 lots (hereinafter referred to as the "Subject Property"), located in Highridge Estates Subdivision (hereinafter referred to as "Highridge"). Each lot is approximately one-third acre in size. Highridge and the Subject Property are located in Clay County, Florida. Highridge was filed in the public records of Clay County, Florida, as a platted subdivision in January of 1970. At the time Highridge was platted, each lot met the zoning requirements applicable to Highridge. Pursuant to then-existing zoning, each Highridge lot could be developed as a single-family residence by construction or the placement of a mobile home thereon. Adoption of the Clay County 2001 Comprehensive Plan. Clay County adopted the Clay County 2001 Comprehensive Plan (hereinafter referred to as the "Plan"), on January 23, 1992, as required by the Local Government Comprehensive Planning and Land Development Regulation Act, Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). At the time of the adoption of the Plan, the Plan contained policies which would have permitted lots such as those in Highridge that had not yet been developed to be developed as a single-family residence by the placement of a mobile home thereon. As required by the Act, the Plan was submitted to the Florida Department of Community Affairs (hereinafter referred to as the "Department"), for review and determination of whether the Plan was "in compliance" as defined by the Act. During the time that the Plan was being considered it was publicly known that the policies which would allow the placement of mobile homes on each of the lots in Highridge might not be accepted by the Department. Petitioner's Acquisition of the Subject Property. During the early 1990's William Bitetti began looking for real estate to invest in. Mr. Bitetti, through the services of Century 21 Lakeside Realty, became aware of the availability of lots in Highridge as a possible investment. Mr. Bitetti was assured by Century 21 Lakeside Realty's realtor that Highridge could be developed by the placement of a single mobile home on each lot. On or about March 25, 1992 Mr. Bitetti entered into a Contract for Sale and Purchase of 56 lots in Highridge. The following condition was included in the Contract for Sale and Purchase: this contract is only conditioned upon Buyer being able to place a Doublewide Mobile Home with attendant well, septic tank and system and electric service on each Lot, to be deter- mined by Buyer's attorney within 2 (two) weeks of the effective date of this contract. Mr. Bitetti intended that the lots would be purchased by the Petitioner, St. William Land Company, Inc. Mr. Bitetti is the sole shareholder and the President of Petitioner. Mr. Bitetti intended that the lots would be marketed for sale as single-family mobile home sites. Mr. Bitetti's attorney, Paul D. Newell, had experience with Highridge, having owned lots within Highridge himself. Mr. Newell was also aware of the language of the Plan that would allow development of the lots in Highridge. Mr. Newell had attempted to keep himself informed as to the progress of the Plan. Mr. Newell spoke to an official of the Clay County Planning and Zoning Department to confirm the language that would allow development of the lots in Highridge was included in the Plan and was told that it was. Mr. Newell also confirmed that regulations in existence at the time would allow Mr. Bitetti to market the lots as intended. The evidence failed to prove that any official of Clay County gave Mr. Newell assurances that the Plan would be approved by the Department as written. Mr. Newell was aware that the Plan had been submitted to the Department for review and had not yet been approved by the Department. Mr. Newell was also aware that it was possible that the Department would not accept the portion of the Plan that allowed continued development of developments like Highridge. On May 21, 1992 the Petitioner purchased the 56 lots in Highridge. Two of the 56 lots were subsequently sold by Petitioner. On or about October 12, 1992, Petitioner purchased an additional 12 lots in Highridge. The 12 lots purchased on October 12, 1992 and 54 of the lots purchased on May 21, 1992 constitute the Subject Property. At the time of purchase, the Subject Property lots could be sold for the installation of a mobile home on each lot pursuant to the law then in effect. The Plan was, however, still being reviewed by the Department. The Subject Property lots have direct access to a publicly owned and maintained right-of-way or to a privately owned platted right-of-way. Alleged Government Action Relied Upon by the Petitioner. On or about July 5, 1992, after acquiring the first 56 lots, Petitioner was issued a permit by the Clay County Building Department authorizing Petitioner to place a mobile home sales model on one of the lots. The evidence failed to prove that Clay County made any representation to Petitioner or Mr. Bitetti, or their representatives, that the policies of the Plan which would allow each lot of the Subject Property to be developed as individual sites for mobile homes would be approved by the Department or that, if it was, the law would not subsequently be changed. Nor did the evidence prove that Clay County represented in anyway that the Subject Property could be developed as Petitioner intended. Petitioner's Alleged Detrimental Reliance. Petitioner purchased the Subject Property for approximately $49,048.18, including closing costs. Two of the 68 lots purchased by Petitioner were subsequently sold. Petitioner realized a profit of approximately $2,582.31 on the sale of these lots. During 1992 Petitioner paid $29,515.37 to purchase and locate a mobile home as a model on one of the lots, to furnish the mobile home, and for landscaping, utilities, and the installation of a well, septic tank and power pole associated with the lot the mobile home was placed on. Petitioner also incurred the following expenses: $1,452.29 for postage associated with attempting to sell lots; $250.00 for charitable donations; $167.66 in bank account service fees; $2,957.85 for hazard and liability insurance; $36.50 in "miscellaneous" expenses; $2,355.72 for ad valorem taxes; and $510.00 in legal fees. Similar expenses were also incurred in 1993. The evidence failed to prove that Petitioner incurred any expenses or obligations for the development of the Subject Property. Rights That Allegedly Will Be Destroyed. Subsequent to Petitioner's acquisition of the Subject Property, the issuance of the permit to place a mobile home sales model on one of the lots and the acquisition of the mobile home and placement of the mobile home on one lot, the Plan was determined to not be in compliance with the Act. In particular, it was determined that the policies of the Plan which would have permitted lots such as those in Highridge that had not yet been developed to be developed by the placement of a mobile home on each lot caused the Plan to be "not in compliance". Clay County subsequently amended the Plan to eliminate the policies that would have permitted lots such as those in Highridge that had not yet been developed to be developed by the placement of a mobile home on each lot. The Plan was determined to be in compliance on April 27, 1993. As a result of the elimination of the policies pertinent to this matter, Clay County was required to modify the zoning for the Subject Property. The Subject Property was zoned for use for the smallest lot size allowed pursuant to the Plan: one-half acre. As a result of the foregoing, most of the Subject Property lots are too small to be developed individually. Pursuant to the Plan, lots that stand alone may be developed by the placement of a single mobile home thereon. Two of the 66 lots stand alone and, therefore, may be developed by the placement of a single mobile home thereon. The remaining 64 lots of the Subject Property are located in contiguous groups and, pursuant to the Plan, must be combined into one-half acre lots or larger. As a result, the Petitioner will lose the ability to sell some number of his lots for the placement of a single mobile home thereon. The evidence failed to prove what the actual economic impact will be to Petitioner if it cannot sell each lot for use as a single mobile home lot. Petitioner was notified by a letter dated August 24, 1993 and a letter to its real estate broker dated January 24, 1994 and a letter to Mr. Bitetti dated February 2, 1994, of the restrictions on the use of the Subject Property. The letters were all from Clay County personnel.
