The Issue Whether Respondents, Wayne Jones, manager (Mr. Jones), and Sun Key Village (Sun Key), are entitled to an award of attorney's fees and costs pursuant to sections 57.105(5) and 120.595, Florida Statutes (2010),1/ and ,if entitled to an award, then the determination of a reasonable amount.
Findings Of Fact The Beaulieus are residents of Sun Key, a mobile home park located at 8607 26th Avenue, East, Palmetto, Florida. Mr. Jones is the manager of Sun Key. Sun Key is a mobile home park as defined by section 723.003(6), Florida Statutes. On March 25, 2010, the Beaulieus filed a Petition for Relief with the Commission stating: I still feel this is discrimination-- Mr. Jones states I am violating park rules by having a dog over 20 lbs this dog is a Visitor not a resident pet. It is my sons' dog--visits on occasion. There are many dogs over 20lbs & living in Sun Key. This is selective enforcement!!! Ms. Beaulieu attached to her Petition for Relief a lengthy hand-written document, alleging that other residents were violating Sun Key park rules concerning the size and number of permissible dogs. On March 30, 2010, the Commission forwarded the Beaulieus' petition to DOAH. An Initial Order was issued, requiring the parties to respond concerning, in part, the amount of time required for the hearing and the date and location for the hearing. On April 6, 2010, Carol S. Grondzik, Esquire (Ms. Grondzik), of Lutz, Bobo, Telfair, Eastman, Gabel & Lee, filed a response for Respondents. On April 8, 2010, the Beaulieus, acting as their own attorneys, filed a response. Based on the responses, the Administrative Law Judge set the case for final hearing on August 3, 2010. On April 12, 2010, Respondents filed a Motion to Dismiss. In the Motion to Dismiss, Respondents argued that the Beaulieus "have not alleged they are members of a protected class under fair housing law." Further, the motion referenced Ms. Beaulieu's letter dated March 8, 2010, requesting an appeal of the Commission's no cause determination. Specifically, the Motion to Dismiss stated that the Beaulieus' complaint was for "selective enforcement" and not tied to retaliation based on the prior housing complaint filed by Ms. Beaulieu's sister. Thus, the Motion to Dismiss concluded that: [B]ecause Petitioners do not assert that they are members of a protected class under fair housing law, because they do not pursue a claim of retaliation against Respondents Wayne Jones and Sun Key, and because Bert Blanchard and the Sun Key Village Homeowners Association, Inc., are not providers of housing subject to fair housing laws, this Petition should be dismissed as a matter of law. On April 12, 2010, Ms. Grondzik served, by U.S. mail, a copy of the Motion for Attorney's Fees and Costs, pursuant to section 57.105, with a letter to the Beaulieus. Specifically, Ms. Grondzik's letter states: A Motion for Attorney's Fees and Costs is also enclosed for your review. I will hold this motion for at least 21 days before filing with the Division as required by Florida law. This allows you time to analyze the relevant facts and law, to seek advice as necessary, and to take action. On April 19, 2010, DOAH issued a Notice of Ex-parte Communication after it had received a copy of a letter that had been sent by Kenneth Wiggins (Mr. Wiggins), an attorney for the Beaulieus, to Ms. Grondzik. The terms of the letter sought to settle the dispute between the Beaulieus and Respondents. Mr. Wiggins, however, did not make an appearance for the Beaulieus before DOAH, and it was unclear who mailed the letter to DOAH. In any event, the Beaulieus continued to represent themselves in the proceedings before DOAH. On July 7, 2010, the Beaulieus filed a motion for continuance of the August 3, 2010, hearing date. The Administrative Law Judge denied the motion. On July 19, 2010, the Beaulieus filed a Notice of Voluntary Dismissal of their petition. On July 21, 2010, Respondents filed the Motion for Attorney's Fees and Costs and Notice of Filing Affidavit of Carol S. Grondzik. Ms. Grondzik's affidavit set out the hourly rate and the scope of work performed to date in the case. On July 29, 2010, Respondents filed a Memorandum of Law in Support of Respondent's [sic] Motion for Attorney's Fees and Costs. At the January 14, 2011, hearing, Ms. Beaulieu testified about instances where the mobile home park failed to enforce its rules and regulations concerning the pet size for residents. Further, she testified that she had brought the DOAH proceeding to address the unfair and selective enforcement of the mobile home park's rules. Sun Key Village Mobile Home Park, Park Rules and Regulations provides, in pertinent part, that: 9. Pets: A maximum of two small pets are permitted, which at maturity must not weigh greater than 20 pounds each. Pets must be confined to the interior of the home when the resident is not present and must be on a leash at all times when outside of tenant's home. They must be transported to areas outside of residence or common areas for exercise. The record shows that the Beaulieus were provided a copy of the rule when moving into Sun Key. Mr. Wayne Jones testified that there were instances when exceptions had been made for residents to have dogs larger than 20 pounds. For example, he identified that residents, who had large, elderly dogs when they moved into Sun Key, were allowed to keep their pets. Mr. Peterson, an attorney who has extensive experience in representing mobile home park owners, testified concerning the reasonableness of the attorney's fees and costs. Mr. Peterson testified that he considered the factors outlined in Florida's Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), and reviewed the legal file in this case. Based on his review, Mr. Peterson found that 57.2 hours were reasonable in defense of this case and that the blended hourly rate of $235.92 was reasonable. Therefore, Mr. Peterson testified the reasonable attorney's fees to be $13,494.40 and the amount of taxable costs to be $575.00. Mr. Peterson also testified that Respondents would be entitled to attorney's fees for having to litigate the issue of fee entitlement. Mr. Peterson testified that 14 hours would not be an unreasonable amount of time for preparing and attending a hearing concerning the entitlement to fees, for a total of $3,302.88 using the blended hourly rate of $235.92. Based on a review of the record and testimony offered at trial, 71.2 hours is a reasonable amount of time spent on the defense of the instant case and litigating the issue of entitlement to attorney's fees. A review of the record and testimony shows that $235.92 an hour is a reasonable prevailing blended hourly rate. The parties stipulated that the Beaulieus are not members of a protected class under the fair housing law.
The Issue The issue for determination was whether the Respondent, Trailer Estates Park and Recreation District (Trailer Estates), violated Section 760.23, Florida Statutes (1997), by subjecting the Petitioner, Steven S. Berryman (Berryman), to alleged discriminatory housing practices.
Findings Of Fact The Petitioner, Steven S. Berryman (Berryman) failed to appear at final hearing, either in Tallahassee or in Tampa, Florida, and presented no evidence in support of the Petition for Relief. Berryman's original Complaint alleged housing discrimination but did not specify the basis of the discrimination. FCHR investigated the Complaint and issued a Determination of No Reasonable Cause. Berryman's Petition for Relief alleged housing discrimination but also did not specify the basis of the discrimination. Rather, the Petition for Relief alleged that Trailer Estates: "did not have enough votes to convert the park to 55 or older"; allowed a 39 year-old to live in the park; and allowed "young people to live in their park, however you have to be related to them or be a personal friend of theirs."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 7th day of January, 1999, at Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1999. COPIES FURNISHED: Steven Berryman 4307 Howard Drive Sykesville, Maryland 21784 Robert J. Gill, Esquire Diane K. McClellan, Esquire Ruden, McClosky, Smith, Schuster & Russell 1549 Ringling Boulevard, Suite 160 Sarasota, Florida 34236 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue Whether the Petitioner has been the subject of a discriminatory housing practice.
Findings Of Fact Several years prior to 2007, Petitioner, Wanda Hutcheson, leased one side of a duplex apartment from LGMS. The apartment was located on 3359 Greenbrier Circle, in Gulf Breeze, Florida. During the time that LGMS owned the property, the property manager found her to be a responsible tenant who paid her rent on time. Indeed, the manager felt that she had improved the look and value of the property because she had done extensive landscaping in her front yard. The increase in value was not shown by the evidence. At the time, Petitioner’s landlord knew that she had a mental disorder known as Obsessive Compulsive Disorder (OCD). In part, the extensive yard work done by Petitioner was due to her OCD. She regularly watered her yard with the shared sprinkler system that served both apartments in the duplex. However, the electricity for the water pump that operated the sprinkler system was hooked into the electrical system for the apartment adjoining Petitioner’s apartment. The sprinkler system was operated by a switch located either by or in the electrical box for the adjoining apartment and the electrical box for her apartment. Petitioner was frequently in the area of those boxes. Respondent, Sand Dunes Property, LLC (Sand Dunes), is a limited liability company owned and operated by Respondents, Robert and Justin MacFarland. In 2006, Sand Dunes purchased several parcels of rental property from LGMS, including the apartment leased by Petitioner. In February 2006, prior to Sand Dunes’ purchase of the property, the MacFarlands visited the premises they were about to purchase and met Petitioner. At that time, Petitioner told the Respondents that she had OCD. She neither requested nor indicated the need for any special accommodations from the Respondents regarding her lease. The evidence did not show that the Respondents knew or were aware that OCD could be a disability that might significantly interfere with a person’s life activities. To them, Petitioner did not seem mentally disabled and appeared able to carry out her daily activities. She appeared to live her life as any other person might. In fact, among other things, Petitioner drove a car, occasionally worked cleaning houses, performed yard work, had the electrical part of her apartment’s sprinkler system transferred to her electrical system, paid her lease and cared for other people’s children. Around March 2006, subsequent to the purchase of the property by the Respondents, Peter Bouchard moved into the apartment next to Petitioner’s apartment. Shortly after he moved in, Petitioner was watering her yard with the sprinkler system. Mr. Bouchard saw her and turned off the sprinkler system. He told her he did not believe in watering the grass and that he did not want his yard watered. He told her that as long as the pump was hooked to his electrical box that she could not use the sprinkler system since he was paying for the electricity used in its operation. He suggested that she could have the pump transferred to her electrical box if she wanted to continue to use the system. Petitioner called Respondents and left a message about the need to transfer the electrical connection for the sprinkler system to her electrical box and to make sure it was alright for her to pay to have the system transferred. The evidence did not show that she related the details of Mr. Bouchard’s actions to Respondent’s. She did not receive a response to her message and eventually paid for the system to be transferred to her electrical box. At some point, even though she did not own the sprinkler systems components, she removed the sprinkler heads from Mr. Bouchard’s side of the yard. She capped the pipe where the heads had been and filled the hole. She did not tell anyone that she had removed the sprinkler heads, but kept the sprinkler heads in her apartment. Additionally, during March 2006, Petitioner complained to Santa Rosa Animal Control about Mr. Bouchard’s two dogs being abused by him and barking. She also complained about the two dogs of the neighbor who lived behind her, Jodi Henning. Both of these incidents were investigated by Animal Control and no abuse was discovered. In fact, the dogs never barked or only barked for a short time when the investigator visited the duplex on two occasions. Petitioner’s actions appeared to be in retaliation for Mr. Bouchard’s refusal to permit her to use the sprinkler system. Finally, at some point, Petitioner while on her front porch saw Mr. Bouchard’s son walking to his apartment. She told the boy that she would cause Mr. Bouchard’s dogs to be removed for abuse and then would have him removed for the same reason. The comment upset both the boy and Mr. Bouchard. On April 3, 2006, Sand Dunes mailed a written offer to enter into a new lease with Petitioner. The offer was made to Petitioner because her lease would terminate on May 30, 2006. The offer was conditioned upon an increase in the monthly rent on Petitioner’s apartment. The offer stated, “Please let us know by May 1st of your decision so that we may set up an appointment to review and sign your new lease agreement.” The intent of the letter’s language was to not be contractually bound until a new lease was signed by the parties. There was no evidence that Respondents treated any other potentially continuing tenant differently. Around April 4, 2006, Mr. MacFarland left a message for Petitioner regarding a maintenance check on her apartment’s air conditioner. Petitioner returned the call and left a message that she could not be present at the time suggested and asked that the work be performed at another time. Petitioner received the written offer of renewal on April 5, 2006, and attempted to accept the offer by leaving a message on Respondent’s telephone. After the first message, Petitioner left town to attend a family function out of state. Around April 6, 2006, air-conditioning maintenance checks were performed on nine of ten units owned by the Respondents in the Greenbrier area. Around April 6 or 7, 2006, Respondents were contacted by Mr. Bouchard. Mr. Bouchard complained about Petitioner to the MacFarlands. He told them that Petitioner had stolen the sprinkler heads out of his side of the yard and that she turned off the electricity to his apartment. He showed them a photograph of the unlocked electrical box to his unit. He also relayed to Respondents that Petitioner had repeatedly accused him of abusing his dogs, not properly vaccinating his dogs and had repeatedly reported him to Animal Control for animal abuse and barking dogs. Apparently, Mr. Bouchard complained enough about Petitioner to Respondents to make them believe that Respondent was a particularly disruptive and vengeful tenant. At some point, Respondents became aware of Jodi Henning’s problems with Petitioner. Ms. Henning lived in a different complex from Petitioner. However, her backyard adjoined Petitioner’s backyard. She called the Sheriff's Department on Ms. Hutcheson on a few occasions for problems she had with Petitioner. None of the incidents amounted to an arrest. During an evening in March 2005, Ms. Henning’s dogs were inside with her. They had not been outside. Ms. Henning answered the door. Petitioner, who was quite angry, complained about Ms. Henning’s dogs and told her that she had made an enemy of Petitioner and that she would make Ms. Henning’s life miserable. Ms. Henning called the Sheriff’s Department. The 911 operator asked if Petitioner was drunk. Ms. Henning said that Petitioner was not drunk, but just crazy and mean. Petitioner was told by law enforcement personnel that Santa Rosa County Animal Control should be contacted if she had an issue with a neighbor's dog. She then filed a complaint with Santa Rosa County Animal Control about Ms. Henning’s dogs. Petitioner made a similar complaint in April 2006. Neither complaint was found to have merit by the investigator for Animal Control. Additionally, Ms. Henning felt that she could not go out in her yard without Petitioner coming out to watch her. Petitioner never engaged in any physically, aggressive behavior. However, Ms. Henning felt she became threatening to the point she was afraid. Petitioner had told both Ms. Henning and Mr. Bouchard that she had OCD. However, based on their observation of her, neither thought that Petitioner was disabled by her condition. They both thought that she was simply nosy and mean. On the other hand, there were former neighbors who thought Petitioner was a nice person and a good neighbor. However, the evidence did not demonstrate that these neighbors’ opinions were known to the Respondents during the time the offer to lease was outstanding. Mr. MacFarland obtained copies of "call reports" received by Animal Control regarding Ms. Henning and Mr. Bouchard's dogs. Those reports consisted of complaints in March 2005 about Ms. Henning's two dogs, and in March 2006 concerning Ms. Henning's two dogs and Mr. Bouchard's two dogs. On April 10, 2006, Respondents sent a letter on Sand Dunes' stationary revoking the earlier offer to lease her apartment after expiration of her lease. Based on the Respondents limited knowledge about Petitioner during the time the offer to lease was outstanding, their conclusion was neither unreasonable nor discriminatory. Thereafter, the Respondents were entitled to rely on the expiration of the lease by its terms and the peaceful return of the premises. Petitioner received the revocation letter around April 12, 2007, when she returned home from out of state. No explanation was given in the letter for the withdrawal of the offer to lease. Petitioner called Mr. MacFarland on the date she received the revocation letter. She was very distraught and tearful. During the long conversation, the only explanation Respondent recalled from Mr. MacFarland as to why Respondents withdrew their offer was that he did not like her. Petitioner also was told to communicate with their lawyer, Keri Anne Schultz, Esquire. Petitioner went to Ms. Schultz's law office to discuss the situation with her. Ms. Shultz was not in the office. Petitioner was told by the receptionist that she could not wait in the office for Ms. Schultz to return. Ms. Hutcheson wanted to write Ms. Schultz a note regarding renting the duplex. Mr. Bordelon, Ms. Schultz's partner, threatened to call the police if Petitioner remained at the office. Petitioner left the office. Thereafter, the only communication from the MacFarlands or their attorney was legal notices to vacate the premises. Petitioner did attempt to send them information on OCD. The evidence was not clear whether the Respondents received the information or reviewed it. Petitioner refused to vacate the premises and an eviction action was filed in June 2006. A hearing was held in the Circuit Court in June and July of 2006. By court order dated August 17, 2006, Respondents were awarded possession of the property on August 31, 2006, at 11:59 p.m. Unfortunately, Petitioner, due to ill health, did not begin to vacate the premises until a few days prior to forcible removal. She was not finished moving on September 5, 2006, five days after the Respondents were to be put in possession of the property. The Respondents had the Sheriff’s Deputy remove Petitioner from the premises, telling her that she should have been out a long time ago. The MacFarlands, with a little help from Mr. Bouchard, removed the rest of Petitioner’s possessions to the curb. During the removal, the bottom of a box Mr. Bouchard was carrying came undone and some of the contents fell onto the pavement. One jar of food was broken. All of these events were very distressful to Petitioner. Upon learning that she would be evicted, Petitioner began seeing Dr. Bingham in May 2006. Eventually, she was involuntarily committed for a short time and has been seeing Dr. Bingham every two or three weeks for the last year. The apartment remained vacant for several months after the eviction. Eventually, Mr. Bouchard moved into the unit at a lower rate of rent than he paid for his old apartment but higher than the amount Petitioner would have paid if the new lease had taken effect. As indicated, between February 2006 and April 2006, Mr. and Mrs. MacFarland's only contact with Petitioner was a visit to her duplex apartment with the realtor selling the property and some voice mails exchanged between them concerning the sprinkler and air conditioning systems. Respondents had little knowledge regarding Petitioner. Even though the evidence demonstrates that Respondents could have acted more kindly and could have better informed themselves about the circumstances of Petitioner, there was no evidence that the withdrawal of the offer to renew was made based on an intent to discriminate against Petitioner because of her mental disability. Therefore, the Petition for Relief should be dismissed.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 7th day of December, 2007, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Melissa A. Posey, Esquire Melissa A. Posey, P.A. 201 East Government Street, Suite 36 Pensacola, Florida 32502 Robert and Justyn MacFarland Sand Dune Properties 7173 Blue Jack Drive Navarre, Florida 32566 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Pleasant Living Mobile Home Park (Pleasant Living) is an established park with 245 lots in Riverview, Florida. It has been in existence for a number of years, and has had at least three different owners, according to the records and testimony presented at hearing. One witness who testified at hearing recalls moving into the park between 1974 and 1975. Since at least 1981, Pleasant Living has had written leases with each of its tenants. For purposes of this proceeding there are two different paragraphs in the lease that are important: (1) Paragraph 5 which limits annual rent adjustments to fifteen percent of the existing rental amount. (2) Paragraph 6 which requires the tenant to pay as additional rent its proportionate share of any increases in real estate taxes, utility assessments, or any other governmental costs or taxes if such taxes or costs increase during the term of this lease. In 1981, published park rules and regulations made it clear to park residents that lot rent includes water, sewer and trash collections. On June 4, 1984, Chapter 723, Florida Statutes, which is also known as "The Florida Mobile Home Act", was enacted. The Division is the state agency charged with the responsibility to enforce the statutes involving landlord/tenant relationships in mobile home parks in which homes are owned by the tenants and are affixed to lots owned by the landlord. Pleasant Living is a park which falls in the category of parks regulated by these statutes. Once Chapter 723, Florida Statutes, became law, park owners were required to file a prospectus or offering circular with the Division prior to entering into an enforceable rental agreement with tenants. The Division was to review the prospectus and decide if it meets the requirements of the act. If the prospectus did not meet the requirements, the park owner was to be notified of the deficiencies. Prospectus number 2900243P was prepared by the owner of Pleasant Living in order to comply with the act. It was filed with the Division in November 1984. As part of the prospectus review process, the park owner was required to complete a Park Owner Filing Statement. The owner notified the Division that two hundred and twenty-two mobile home lots would receive the prospectus being filed. The lot designations and the names of the two hundred and twenty-two tenants in the park on December 18, 1984, were given to the Division. In a separate listing, the names and lot designations of the two hundred and eight tenants residing in the park on June 4, 1984, were also provided. Copies of the two different rental agreements to be offered with the prospectus were also filed. One was going to be used for resales, the other would be used for new sales. The lease that applies to resales is the same lease used since 1981. The lease that applies to new sales contains the same wording as the other lease concerning the payment of additional rent for proportionate shares of any increases in real estate taxes, utility assessments, or any other governmental costs or taxes during the term of this lease. Again, this tenant obligation was found in paragraph 6 of the new agreement. Paragraph 5 provided that rent increases would not exceed an average of ten percent annually. The prospectus filed by Pleasant Living went through the review process within the Division, and after some revision, it was determined that the document met the requirements of Chapter 723, Florida Statutes. The prospectus was officially approved on April 26, 1986. The approved prospectus advised tenants that they would receive at least ninety days notice in advance of an increase in rent. Only the new rental agreement originally designated as the one that applies to new sales was referenced in the prospectus. It was emphasized that all lots are governed by this rental agreement, which provides for rental increases not to exceed an average of ten percent annually. The payment of pass through charges by the tenant was also mentioned in the approved prospectus. Tenants were referred to the rental agreement, and were informed that the tenant will be responsible for payment of all costs charged to the park owner as a result of any action by state and local government, or public/private utilities. Tenants were further advised, as follows: The charges may be assessed more often than annually. The costs charged to the Park Owner will be assessed to the tenant on a pro rata basis. Any such increases shall be shared equally by the tenants of all leased lots in the mobile home park. The amount of an increase in pass-through charges shall be limited to the increased costs charged to the Park Owner and maintenance and administrative costs as permitted by Chapter 723, Florida Statutes. As to pass-through charges, the Park Owner cannot with any degree of accuracy disclose the potential financial obligation which the tenant will be responsible for paying. The rent may only be increased as is stated in the above Rental Agreement. The only other increased (sic) to rent will be per the increases that result from pass-through charges created by any governmental (sic) or utility as explained above. Tenancies under the 1981 lease form were still in effect, and the tenants could rely on the representations set forth in them. However, the landlord voluntarily waived his right to any maximum average annual rent increase that exceeded ten percent annually. Pursuant to these leases, which were obligations of contract that could not be impaired by the new laws, these leases were automatically renewed annually. Pursuant to the provisions of Chapter 723, Florida Statutes, the landlord informed all tenants that they would receive ninety days notice before any increases in rent occurred, as opposed to the thirty days set forth in the leases. This was a procedural change in the notice requirements that was governed by the new Florida Mobile Home Act. During the 1986 legislative session, amendments were made to the portions of Chapter 723, Florida Statutes, that set forth the information a prospectus or offering circular is required to contain. More stringent disclosure regarding services, user fees, and lot rental amounts charged by the park owner were required. To reconcile these changes with existing laws, the Legislature allowed previously approved prospectuses delivered to tenants on or before July 1, 1986, to remain valid if the park owner complied with all of the conditions set forth in the newly amended Section 723.011, Florida Statutes [1986 Supp.]. In order to comply with the new disclosure requirements in the laws relating to prospectuses for mobile home parks, the 1986 Pleasant Living park owner filed amendments to the original prospectus with the Division in August of 1986. The amended prospectus was given identification number 2900243P86, and was deemed adequate to meet the 1986 amendments to the statutes on September 26, 1986. When the proposed amendments to the prospectus were examined by the Division on August 28, 1986, the park manager was advised in writing that pursuant to Rule 7D-30.04, Florida Administrative Code, the approved amendments must be delivered to existing tenants prior to the renewal of their rental agreements. The two rental agreements used by the park remained the same after the amended prospectus became the park's disclosure document for tenants who came to the park on or after July 2, 1986. Respondent Wilder purchased Pleasant Living on June 11, 1987. Prior to the purchase, Respondent's predecessor in interest increased the rent to be paid in the 1987 rental year beginning August 1, 1987 by $7.00 per month for the upcoming one year term. Notice was given of the increase on April 24, 1987, to each affected mobile home owner. Notice was also given to the board of directors of the homeowner's association on April 29, 1987. These notices of rental increase complied with all of the procedural and time requirements imposed on the owner by Chapter 723, Florida Statutes. The notices specifically informed the recipients that Hillsborough County increased the ad valorem taxes for the park in the 1986 tax year, during the current term of each lease. The increase per unit was $76.22. Under the annual leases, the increase was payable at $6.35 per month for twelve months, effective August 1, 1987. The pass-through of the increased ad valorem taxes to tenants is authorized by Chapter 723, Florida Statutes, and was disclosed prior to occupancy to tenants who came to the park when the 1981 lease, the 1986 prospectus number 2900243P and the 1986 amended prospectus under number 2900243P86 were in effect. As all tenants who lived in the park prior to 1981 had the same written lease as the 1981 lease, according to the Park Owner Filing Statement completed in December 1984, the landlord had the right to charge additional rent based upon the tax increase. All leases specifically mention the ad valorem taxes, increases in governmental costs, as well as the three utilities: water, sewer and garbage. The notices sent in April 1987 by Respondent Wilder's predecessor in interest, also informed the recipients of the increases in the costs of the following utilities: rubbish pick-up, water charges, and sewer charges. The increase of the cost of rubbish pick-up during 1986 by $20.76 per unit charged by East Bay Sanitation was an increase in a utility charge which occurred during the current term of each lease. Under the leases, the increase was passed on to the mobile home owners. The charges were to be paid as additional rent or pass-through charges for one year at the rate of $.94 per month, effective August 1, 1987. The increase in the cost for water during 1986 by $18.36 per unit charged by Hillsborough County was an increase in a utility charge which occurred during the current term of the annual lease. Under the leases, the increase was passed on to the mobile home owners. The charges were to be paid as additional rent or pass-through charges for one year at the rate of $1.53 per month. The increase in the cost of sewer charges during 1986 by $9.48 per unit charged by Wilder corporation was an increase in a utility charge which occurred during the current term of the annual leases. Under the leases, the increase was passed on to the mobile home owners. The charges were to be paid as additional rent or pass-through charges for one year at the rate of $.79 per month. At the time of the purchase of the park, Respondent Wilder was aware that tenants had been given notice of the additional rent or pass-through charges which increased the payments to the park owner for the use of the lots during the 1987 rental year. The additional rent or pass-through charges were collected by Wilder for the one-year period, as stated in the notices. All of the above listed facts were contained in the agency's files prior to the issuance of the Notice to Show Cause.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended the Division enter a Final Order finding the Respondent not guilty of the alleged violations of Section 723.031(6), Florida Statutes, set forth in the Notice to Show Cause dated July 16, 1990. RECOMMENDED this 20th day of March, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1991. APPENDIX TO RECOMMENDED ORDER,CASE NO. 90-5933 Petitioner's Proposed Findings of Fact are addressed as follows: Accepted. See HO #17. Accepted. See Preliminary Statement. Accepted for purposes of this proceeding. See HO #9. Accepted. See HO #15. Accepted. 6. Accepted. See HO #17, #18, #20 - #23. Accepted. Accepted. 9.-21. Accepted. Accepted. See HO #24. Accepted. See HO #25. Rejected. Contrary to fact. The charges related only to increases in charges. Rejected. Irrelevant. Respondent's Proposed Findings of Fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. Accepted. See HO #9 and HO #15. Accepted. Accepted. Accepted. See HO #2 and HO #12. Accepted. See HO #11 - #12. COPIES FURNISHED: Kathryn E. Price, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 David S. Bernstein, Esquire Robbins, Gaynor & Bronstein, P.A. Post Office Box 14034 St. Petersburg, Florida 33733 E. James Kearney, Director Division of Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1000 General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether Respondent, Century Realty Funds, Inc., violated the Florida Fair Housing Act, Chapters 760.20 through 760.37, Florida Statutes (2006), by failing to install a poolside chairlift as requested by Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner is physically disabled and protected for the purposes of the Florida Fair Housing Act. Respondent is the owner of Plantation Landings Mobile Home Park ("Plantation Landings") in Haines City, Florida. Plantation Landings is a 55-year-old and older community. It owns and leases the lots to the owner-tenants of Plantation Landings. Because Respondent owns the Plantation Landings real estate and the subject swimming pool, it has the sole discretion to approve the requested improvements. The swimming pool area is handicap accessible. It is a public swimming pool and regulated by the State of Florida, Department of Health. It was built approximately 30 years ago; there are no known existing construction plans for the pool. The swimming pool is surrounded by a wheelchair-accessible path, and the pool itself has two separate sets of handrails; one for the deep end and one for the shallow end. There are steps leading into the shallow end of the pool and a ladder leading into the deep end. The swimming pool does not have a poolside chairlift. The swimming pool area is not supervised by life guards. Plantation Landings does not provide any supportive services to its residents, such as counseling, medical, therapeutic, or social services. The owner-tenants of Plantation Landings are members of the Plantation Landings Mobile Home Park Homeowners' Association ("Homeowners' Association"), which is a voluntary homeowners' association. Petitioner and his wife are members of the Homeowners' Association. Petitioner and his wife purchased a home in Plantation Landings and leased a lot from Respondent on February 8, 2001, pursuant to a Lease Agreement of the same date. Petitioner is a paraplegic and is able to move about by wheelchair. He is able to access the swimming pool common area in his wheelchair. However, he is not able to get in and out of the pool by himself. He has attempted to get into the swimming pool with the assistance of other residents. He would like to be able to have access into the swimming pool without relying upon the assistance of other residents so that he can exercise. In April 2003, Petitioner discussed the feasibility of installing a poolside chairlift at the swimming pool with Respondent's agent. Petitioner offered to pay for the poolside chairlift and installation at his own expense. On April 1, 2003, Petitioner submitted a written request to Respondent requesting that Respondent install a poolside chairlift. Petitioner delivered his April 1, 2003, written request, literature, and video regarding the poolside chairlift to Respondent's agent. The request did not include any specifications or engineered drawings, nor did it state the proposed location for the poolside chairlift. The poolside chairlift initially proposed by Petitioner was the Model IGMT, which was an in-ground manually-operated lift with a 360-degree seat rotation. In its consideration of Petitioner's request, Respondent determined that the design and construction of the pool and the surrounding common areas were in compliance with all state and federal statutes and regulations and that the pool area and common areas to the pool were accessible by wheelchair. Respondent determined that it was not required to install a poolside chairlift for access into the pool. Respondent also learned that the IGMT model was not Americans With Disabilities Act compliant. It was Respondent's conclusion that the poolside chairlift was cost-prohibitive and a dangerous hazard. When Petitioner returned to Plantation Landings in November 2003, he was advised of Respondent's decision not to provide the requested poolside chairlift. In March 2004, Petitioner requested the assistance of James Childs, president of the Homeowners' Association, for the purpose of making a second request to Respondent for the installation of a poolside chairlift. On March 7, 2004, Mr. Childs, on Petitioner's behalf, wrote Respondent requesting a poolside chairlift. On May 3, 2004, Respondent wrote Mr. Childs denying the request. Over the several years Petitioner has resided in Plantation Landings, he has requested modifications to accommodate wheelchair accessibility. These requests included modifications to the ramp at the front of the clubhouse, modifications adding an additional wheelchair ramp to the back of the clubhouse for access into the clubhouse, and modifications to the handicap parking spaces in front of the clubhouse. All of Petitioner's requests for modifications were honored. In May 2006, Petitioner, again with the assistance of Mr. Childs, made a third request to install a poolside chairlift. This third request was identical to his two prior requests made in 2003 and 2004. This request was denied by letter on April 27, 2006. On December 23, 2006, Petitioner filed a Complaint with the U.S. Department of Housing and Urban Development alleging that Respondent had discriminated against him on the basis of his disability by refusing to allow him to install a poolside chairlift at his own expense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent, or, alternatively, that the claim is time-barred and that the Commission lacks jurisdiction to consider the Petition for Relief. DONE AND ENTERED this 15th day of February, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2008.
The Issue The issue is whether the Florida Commission on Human Relations (FCHR) properly dismissed this matter for lack of jurisdiction.
Findings Of Fact Petitioner, as a first-time home buyer, applied for and was pre-approved by Cendant Mortgage Corporation d/b/a/ Century 21 Mortgage for a mortgage loan. The loan, in the amount of $28,687.00, was to be insured by the Federal Housing Administration (FHA). In February 2003, Respondent agreed to sell Petitioner his home. They agreed that Petitioner would pay Respondent $29,000.00 for the house. Respondent subsequently stated in writing that he agreed to sell his house to Petitioner for that amount. On March 5, 2003, Petitioner signed a form entitled No Brokerage Relationship Disclosure. The form made it clear that Century 21 Prime Property Resources, Inc., a local real estate agency, and its associates did not have a brokerage relationship with Petitioner. There is no evidence that the professional services of a licensed real estate agent was involved at all in this case. However, the local Century 21 real estate office gratuitously sent a few documents on Petitioner's behalf by facsimile transmission to Century 21 Mortgage in New Jersey. Respondent did not use the sales facilities or services of Century 21 for any purpose. On March 7, 2003, Cheryl Barnes, a certified appraiser, completed an appraisal of the property. The U.S. Department of Housing and Urban Development and/or FHA required the appraisal in order for Petitioner to receive the loan insured by FHA. Neither Petitioner nor Respondent was required to pay for the appraisal. In a letter dated March 10, 2003, Century 21 Mortgage advised Petitioner that the closing date was scheduled for April 16, 2003. The letter enclosed additional forms that Petitioner needed to complete in order to close the loan. The Housing Department, Division of Planning and Development, in Sumter County, Florida, sent Petitioner a letter dated March 19, 2003. The letter advised Petitioner that she was eligible for an award of Supplemental Household Income Protection funds to cover the down payment and closing costs on the loan. Subsequently, Respondent refused to sign any papers related to the sale of the house. The loan could not be closed without Respondent's cooperation. Petitioner had placed $250 in an escrow account with Century 21 Mortgage. The mortgage broker refunded all of the money in the escrow account to Petitioner after Respondent refused to sign any more paperwork. Finally, there is no evidence of the following: (a) that Respondent owned more than three single-family houses at any one time; (b) that Respondent sold more than one single- family home within any 24-month period; (c) that Respondent had an interest in the proceeds from the sale or rental of more than three single-family houses at any one time; and (d) the sale of the subject house did not involve the posting, mailing, or publication of any written notice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 5th day of January, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan M. Parker 3840 East County Road 478 Apartment D-30 Webster, Florida 33597 Paul Moore 2396 County Road 608 Bushnell, Florida 33513
The Issue The issues are whether the respondents engaged in a discriminatory housing practice, in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2007),1 by discriminating against Petitioner, on the basis of her alleged disability, and by harassing Petitioner and retaliating against her.
Findings Of Fact Petitioner is a former resident of Broadview Mobile Home Park (Broadview), located at 1701 Post Road, Melbourne, Florida. Petitioner resided in Broadview for approximately six years from an undisclosed date in 2002 through September 8, 2008. Mr. Lamont Garber holds an ownership interest in Broadview. The record does not quantify the ownership interest of Mr. Garber. Mr. Garber manages Broadview with his brother, Mr. Wayne Garber. Broadview rents sites within the mobile home park to residents who own mobile homes. Each site has access to water and electric service. Each resident arranges his or her water and electric service directly with the respective utility provider. Sometime in 2005, Petitioner purchased a mobile home for approximately $6,500.00 and moved within Broadview to Lot 24. The rental agreement for Lot 24 required rent to be paid on the first day of each month. The rent for July 2008 was due on July 1, 2008. Petitioner failed to pay the rent payment that was due on July 1, 2008. On July 9, 2008, Broadview served Petitioner, by certified mail, with a notice that she had five business days in which to pay the rent due (the five-day notice). Petitioner received the five-day notice on July 10, 2008. The five-day period expired on July 17, 2008, with no rent payment from Petitioner. Petitioner had paid rent late in the past, but Petitioner had never been more than four or five days late. After July 17, 2008, Broadview initiated eviction proceedings. Petitioner tendered the rent payment on July 20, 2008, but Broadview proceeded with the eviction. Petitioner did not appear and defend the eviction proceeding. On August 26, 2008, the County Court for Brevard County, Florida, issued a Final Default Judgment of Eviction awarding possession of Lot 24 to Broadview. Law enforcement officers thereafter executed the Court's order and evicted Petitioner from Broadview on or about September 8, 2008. After Petitioner received the notice of eviction, she filed a complaint with the Florida Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes (DBPR). DBPR is the state agency responsible for regulating mobile home parks, including Broadview. The allegations in the complaint that Petitioner filed with DBPR were substantially similar to the claims of discrimination, retaliation, harassment, and unlawful rent increases Petitioner asserts in this proceeding. DBPR rejected Petitioner's allegations and found that Broadview lawfully evicted Petitioner for non-payment of rent. The final agency action of DBPR is substantially similar to that of HUD and the Commission's proposed agency action in this proceeding. Each agency found that Broadview lawfully evicted Petitioner for non-payment of rent and rejected the allegations of discrimination, harassment, and retaliation. The DOAH proceeding is a de novo consideration of the proceeding before the Commission. A preponderance of the evidence does not establish a prima facie showing that Petitioner is disabled or handicapped. Petitioner has cancer and is receiving chemotherapy and radiation treatment. A preponderance of evidence does not show that the medical condition substantially limits one or more major life activities of Petitioner. Petitioner also alleges that she is disabled and handicapped by a mental condition. Petitioner submitted no medical evidence of the alleged disability or handicap. A preponderance of evidence does not establish a prima facie showing that, if such a mental condition exists, the condition substantially limits one or more major life activities of Petitioner. Assuming arguendo that a preponderance of the evidence showed that Petitioner were disabled or handicapped, a preponderance of evidence does not establish a prima facie showing that either of the respondents discriminated against Petitioner, harassed her, or evicted her in retaliation for Petitioner's disability or handicap. It is undisputed that Petitioner conducted neighborhood organization efforts to protest a rent increase at Broadview and repeatedly called law enforcement officials to report alleged drug and prostitution activity in Broadview.2 However, Broadview did not evict Petitioner for those activities, and Petitioner's testimony to the contrary is neither credible nor persuasive. Rather, Petitioner engaged in other activities that the respondents found objectionable. Petitioner baby sat for one or more dogs in violation of Broadview's prohibition against pets. Some of the dogs were dangerous to other residents. Petitioner also verbally abused Mr. Wayne Garber when he attempted to mediate with Petitioner concerning the presence of dogs and Petitioner's conduct toward management at Broadview. On July 1, 2008, Broadview served Petitioner with a seven-day notice concerning Petitioner's compliance with lease requirements. The notice, in relevant part, alleged that Petitioner harassed management and impaired the ability of management to perform its duties. The testimony of respondents describing the activities of Petitioner that precipitated the seven-day notice is credible and persuasive. A preponderance of the evidence shows that the respondents had legitimate non-discriminatory reasons for requiring Petitioner to comply with the terms of the seven-day notice and for requiring Petitioner to comply with the requirement for rent to be paid on July 1, 2008. Petitioner failed to comply with either requirement, and Broadview evicted Petitioner for legitimate, non-discriminatory reasons. The respondents did not harass or retaliate against Petitioner.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that the respondents did not engage in an unlawful housing practice and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of May, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2009.
The Issue Whether the proposed repeal of Rule 61B-31.001(5), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority. Further, whether certain agency policies constitute rules and violate the provisions of Section 120.535, Florida Statutes.
Findings Of Fact The Florida Manufactured Housing Association, Inc. (FMHA) is a Florida not for profit corporation organized to represent the interests of the owners of approximately 750 mobile home parks. All of the parks owned by FMHA members are regulated by the Respondent. The FMHA's members will be substantially affected by the proposed repeal of the rule. The FMHA has standing to participate in his proceeding. The Florida Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Respondent), is the state agency charged with implementation, administration and enforcement of Chapter 723, Florida Statutes, relating to Mobile Home Park Lot Tenancies. The Federation of Mobile Home Owners of Florida, Inc. (Federation) is a Florida not for profit corporation organized to represent a substantial number of mobile home owners residing in Florida mobile home parks. The Federation's members will be substantially affected by the proposed repeal of the rule. The Federation has standing to participate in this proceeding. Insofar as is relevant to this case, a mobile home owner commonly rents a mobile home park lot upon which the home is placed. Pursuant to Section 723.011(1)(a), Florida Statutes, the owner of a mobile home park containing 26 or more lots must deliver a prospectus to the home owner prior to entering into an enforceable rental agreement for the mobile home lot. A mobile home park prospectus is intended to provide full and fair disclosure of the terms and conditions of residency and sets forth the regulations to which the home owner will be subjected after signing a lot rental agreement with the park owner. The prospectus must be filed with and approved by the Respondent. The challenged rule was adopted as Rule 7D-31.01(5), Florida Administrative Code, in 1985. Without alteration, it was subsequently renumbered as Rule 61B-31.001(5), Florida Administrative Code, and provides as follows: The Prospectus distributed to a home owner or prospective home owner shall be binding for the length of the tenancy, including any assumptions of that tenancy, and may not be changed except in the following circumstances: Amendments consented to by both the home owner and the park owner. Amendments to reflect new rules or rules that have been changed in accordance with procedures described in Chapter 723, F.S., and the prospectus. Amendments to reflect changes in the name of the owner of the park. Amendments to reflect changes in zoning. Amendments to reflect a change in the person authorized to receive notices and demands on the park owner's behalf. Amendments to reflect changes in the entity furnishing utility or other services. Amendments required by the Division. Amendments required as a result of revisions of Chapter 723, F.S. Amendments to add, delete or modify user fees for prospective home owners. Neither the statute nor the rule defines what is meant by the term "tenancy." Historically, the Respondent has taken the position that the prospectus was binding on the park owner and the mobile home owner until the mobile home no longer occupied the lot or the tenant was evicted, whichever occurred first. In other words, the "tenancy" existed for as long as the mobile home remained on the lot, and the prospectus was binding during the length of the "tenancy", including any assumptions of the "tenancy." However, several legal cases, most recently in 1992, have essentially stated that a mobile home "tenancy" exists for the period of time during which a mobile home rental agreement is effective. The effect of the legal decision is to permit Rule 61B-31.001(5), Florida Administrative Code, to be construed to provide that a prospectus is valid only for the period covered by a rental agreement. The Legislature has not adopted legislation subsequent to the case which would affect the substance of the decision. On January 20, 1995, the Respondent published notice of the proposed repeal of Rule 61B-31.001(5), Florida Administrative Code, in the Florida Administrative Weekly, Vol. 21, No. 3. The Respondent's purpose in repealing the rule is primarily to eliminate the language relating the period of validity for a prospectus to the "tenancy." Although the Respondent asserts that it has no current policy as to the period of validity for a prospectus, the Respondent acknowledges taking the continuing position that the prospectus is binding for longer than the period of a rental agreement. The Petitioner challenges the agency position as being an unpromulgated, and therefore invalid, rule. The Petitioner also challenges as being an unpromulgated and invalid rule, the Respondent's decision to discontinue the review and approval mechanism for amendments to any previously approved prospectus. The Respondent asserts that, notwithstanding prior practice, it has no statutory authority to review and approve amendments to a previously approved prospectus and that it will no longer do so.
