The Issue The issues in the case are whether Respondents committed fraud and/or misrepresentation in entering into various retail installment contracts in violation of Section 520.995(1)(b), Florida Statutes; and whether the Department of Banking and Finance is entitled to an Order against Respondents, including fines and a Cease and Desist Order.
Findings Of Fact At all times material hereto, Lynn Haven Home Center, Inc. (Lynn Haven), was a licensed motor vehicle retail installment seller with locations at 3250 Highway 77, Panama City, Florida 32405; and 161 Racetrack Boulevard, Fort Walton, Florida 32547. Christopher Wilson was an employee of Lynn Haven Home Center, Inc. Doyce Lindley was allegedly a director of Lynn Haven at its Fort Walton office. However, no competent evidence was submitted at the hearing supporting these allegations and no witness was familiar with Mr. Lindley, his role in Lynn Haven, or his association with any sales of Lynn Haven. Since no relationship with the company was established and no relationship with any of the sales of the company was established, no findings can be made regarding Mr. Lindley. Therefore, the Administrative Complaint should be dismissed in regards to him. Lynn Haven had a dealer agreement with Bombadier Capital Company (Bombadier) under which Bombadier would finance the purchase of a mobile home by a qualified buyer based, in part, on the buyer's credit application, credit history and manner of financing the mobile home, including the amount of the down payment. The dealer agreement between Lynn Haven and Bombadier stated, in part, as follows: Each consumer will have paid any specified down payment in cash or by trade-in prior to delivery of Home, and no part of such down payment will have been loaned or otherwise provided directly or indirectly by Dealer or, to Dealer's knowledge, any other person; any property received by Dealer in trade on a Home which secures a Security Instrument shall be free from any liens, security interests, encumbrances or any other claims, and each Consumer at the time of execution of the Security Instrument shall be the legal owner of such Collateral. The agreement also required Lynn Haven to give truthful information on retail installment contracts. If the dealer did not supply truthful information, the deal would be cancelled prior to funding. If the false information was discovered after the loan was funded, the dealer would be pursued for repayment of the loan. Around May 1998, Bombadier financed one loan for Royal Gaddy which had been originated by Lynn Haven. Mr. Gaddy did not testify at the hearing. Therefore, no competent evidence regarding the negotiations between or the exact home purchased or seen by Mr. Gaddy was introduced at the hearing. The purchase documents reflect that the serial number of the home was the same on all the purchase documents, indicating that one particular home was being purchased by Mr. Gaddy. However, the invoice for the home and the purchase agreement for the home disagree as to the width of the home. The invoice reflects a width of 24 feet and the purchase agreement reflects a width of 27 feet. It is unclear what documents Bombadier reviewed in agreeing to make the loan to Mr. Gaddy. There was no competent evidence presented at the hearing on how the documents for this purchase and loan were prepared or why there was a discrepancy in the home width among the documents. Collin McGowan, the alleged owner of Lynn Haven, submitted the loan to Bombadier. For unknown reasons, Mr. Gaddy defaulted on his loan and the mobile home was repossessed by Bombadier. The lender discovered by visual inspection that the trailer was not the size represented on the retail installment contract. The trailer was, in fact, 24 feet in width instead of the 27 feet indicated on the sales agreement. No competent evidence was introduced which indicated that Respondent Wilson filled out any document possessed by Bombadier as it relates to Royal Gaddy. Likewise, there was no competent evidence that Respondent Wilson had anything to do with the Gaddy purchase or loan. The documents themselves do not constitute evidence of fraud or misrepresentation since the width discrepancy could just as reasonably be due to a typographical error. Therefore, this allegation of the Administrative Complaint against the Respondents should be dismissed. Around January 1998, Donna Huff bought a home from Lynn Haven. Mrs. Huff talked to Respondent Wilson about the purchase of a mobile home. At some point, she spoke with a salesperson that she could not afford a five percent down payment on a home. She did not know if the salesperson she told this to was Respondent Wilson or another salesperson. The salesperson told her not to worry about it and that she could get into a new mobile home. Ms. Huff put down $100.00 cash on the mobile home. She purchased the mobile home under an installment contract. The installment contract was later assigned to Green Tree Financial Center, Inc. No one from Green Tree testified at the hearing regarding this loan, any dealer agreement it had with Lynn Haven, or the representations, if any, Green Tree relied on to take assignment of this installment contract. Nor did anyone from Green Tree or elsewhere testify as to the standards in the industry regarding borrowing a cash down payment. Ms. Huff’s retail installment contract states that she paid $3,602.92 as a cash down payment. Ms. Huff did not notice the amount of the down payment until this investigation, several years after her purchase. She does not know where the amount of the down payment in the installment contract came from. From a review of the documents, it appears that the remainder of the down payment came from money remaining after the seller closed the sale with Ms. Huff. The down payment was generated by adding $2,003.00 to the setup and delivery costs for the mobile home under the heading "TI over allowance." The setup and delivery costs were included in the total sales price of the home. The cash sale price was $33,665.00 plus $2,069.90 in taxes for a total of $35,734.90. The difference between the cash sale price of $33,665.00 and the unpaid balance of the loan of $32,131.98 is $1,534.92. The difference of $1,534.92 plus $2,003.00 equals $3,602.92 or the down payment amount listed in the retail installment contract for Ms. Huff's home. In effect the money for the down payment came from the amount financed under the installment contract. No evidence was introduced by Petitioner demonstrating that any document Mrs. Huff signed was submitted to any lending institution. No evidence was introduced by Petitioner demonstrating that any document Mrs. Huff signed was utilized by any lending institution for any purpose. No evidence was introduced by Petitioner demonstrating that Respondent Wilson wrote anything on any document submitted to a lending institution regarding the source of any down payment funds provided by Mrs. Huff for the purchase of her home or that the source for such down payment was from borrowed funds. Without such evidence, none of the Respondents are guilty of fraud or misrepresentation and the parts of the Administrative Complaint regarding Ms. Huff's transaction should be dismissed. Around March 1998, Rick Laux bought a mobile home from Lynn Haven. Mr. Laux dealt with Respondent Wilson, but did not recognize him at the hearing. Mr. Laux traded in a mobile home to Lynn Haven towards the purchase of a new mobile home. Mr. Laux's equity of $9,472.68 in the mobile home he traded in was used as a down payment on the new mobile home. No cash down payment was made by Mr. Laux. Lynn Haven set up the new mobile home on ten acres that Mr. Laux owned. Lynn Haven also installed a well, septic system, and power pole on Mr. Laux's ten acres. The land had already been cleared by Mr. Laux. No clearing was done by Lynn Haven. The ten acres also served as collateral on the mortgage used in part to buy the mobile home from Lynn Haven. Mr. Laux had no knowledge of who arranged for financing of his mobile home. However, the home was financed by Unicor Mortgage. The loan was closed by Stewart Title of Northwest Florida, a third-party loan closing agent. A review of the HUD statement, a federally required loan closing document, shows that Lynn Haven was paid $9,996.00 for costs associated with land improvements. The purchase agreement, signed by Mr. Laux, shows that Mr. Laux was charged $3,500.00 for land preparation that was not done by Lynn Haven. The $3,500.00 charge was part of the $9,996.00 in land improvement costs paid to Lynn Haven at closing. The remainder of the land improvement costs were a well ($3,850.00), septic system ($1,350.00), and power pole ($1,296.00). The $3,500.00 charge appears along with other figures which eventually yield an estimated total cost and an estimated loan amount, which estimated amount became the final amount financed by Mr. Laux and funded by Unicor. The purpose for the $3,500.00 charge could only have been to increase the estimated loan amount for the transaction in order to pull money out of the transaction to balance against the equity down payment allowed on the trade in. However, it is unclear that Unicor relied on or even saw the purchase agreement between Lynn Haven and Mr. Laux. Further, it is unclear whether the amount allowed for the trade in was accurate or inaccurate. What is clear is that the $3,500.00 figure was a made-up figure. Mr. Laux had no knowledge of who filled out any form relating to his purchase. No one from Unicor or Stewart Title testified as to who filled out the loan closing documents or who supplied the numbers and information used therein. Likewise, there was no evidence introduced by Petitioner demonstrating that Respondent Wilson wrote anything on any document submitted to a lending institution regarding the source of any down payment funds provided by Mr. Laux for the purchase of his home or that Respondent Wilson filled out the purchase agreement associated with this transaction. However, it is clear an agent of Lynn Haven prepared the sales agreement in which the land improvement costs were included and that underlies the eventual loan amount for the Laux transaction. The $3,500.00 amount is a fictitious amount and a misrepresentation on the part of Lynn Haven. Therefore, Lynn Haven is guilty of misrepresentation in an installment loan transaction. In 1998, Brian Withey purchased a mobile home in a home package from Lynn Haven. The package included a lot, well, septic tank, and power pole, as well as permits and other necessities for setting up the home. The salesperson for Mr. Withey was Respondent Wilson. Mr. Withey paid $900.00 as a cash down payment for the mobile home. The purchase agreement reflects a proposed cash down payment of $13,075.00. The amount is very hard to read and may actually be a different amount, but the down payment does appear to be over $10,000.00. It is unclear from the documents exactly where the amount of the proposed cash down payment came from or if it was the amount of payment actually used to close the loan. The HUD Settlement Statement was unreadable. Therefore, it is impossible to determine the closing costs involved in the loan or to trace through other documents the amounts used in the HUD statement. A new home closeout sheet reflects an over-allowance of $12,225.00 and an item labeled "extra gross" of $7,075.00. The extra gross item was made up of amounts for a well ($900.00), power ($710.00), septic system ($700.00), and driveway ($4,765.00). Lynn Haven did not install a driveway for Mr. Withey. The extra gross amounts were the differences between dollar figures listed in a column labeled "charged" and dollar figures listed in a column labeled "actual." The figures appear to be related to costs. However, there was no evidence to support that conclusion. The figure in the charged column for the driveway was $4,765.00, but the figure in the actual column was $0. There was no evidence regarding this extra gross sheet and the document was not recognized by Mr. Withey at the hearing. Likewise, there was no evidence regarding how these two documents were used in closing the loan, what the loan amount was, or even who the lender was. No evidence was introduced by Petitioner demonstrating that any document introduced into evidence was submitted to any lending institution or utilized by any lending institution for any purpose. Likewise, none of these documents can be linked to Respondent Wilson as providing any of the information on any documents submitted to a lending institution regarding the source of any down payment funds provided by Mr. Withey for the purchase of his home. Therefore, Respondent Wilson is not guilty of fraud or misrepresentation and the portions of the Administrative Complaint relating thereto should be dismissed. The evidence regarding whether Lynn Haven charged Mr. Withey for a driveway which he did not receive is not clear since how the extra gross sheet was used in the eventual loan or purchase is not clear. The suspicion is that the driveway value was used to inflate the requested loan amount in order to yield enough cash for a down payment. However, there was insufficient evidence to support such a conclusion since the HUD statement was unreadable. Therefore, the portions of the Administrative Complaint related to the Withey transaction against Lynn Haven should be dismissed. Betty Brown bought a home from Lynn Haven in March of 1998. The salesperson she dealt with was Randy, last name unknown. Respondent Christopher Wilson had no involvement with her purchase. Ms. Brown traded in her mobile home for a new mobile home, and she was allowed $7,000.00 for her trade in. No other cash was deposited by Ms. Brown. The new mobile home was placed on the lot owned by her where the old mobile home had been. No land improvements were required and no septic system, power pole, or well was required since those items were already present on the property. However, the salesperson for Lynn Haven told her they would add charges for a septic tank and well to account for a $10,000.00 down payment. In essence, false charges or allowances for improvements would be added to the loan amount to increase the loan amount to balance against a $10,000.00 cash down payment. Ms. Brown was uncomfortable with this process and questioned the salesperson about it. She was told that it was standard practice in purchasing a mobile home. The lender for Ms. Brown’s transaction was Unicor Mortgage, Inc., and the closing agent was Stewart Title of Northwest Florida, Inc. No one from either of these corporations testified as to this loan or who supplied the figures used in the HUD closing statement. No evidence was introduced by Petitioner demonstrating that any document signed by Ms. Brown was submitted to any lending institution. Likewise, no evidence was introduced by Petitioner demonstrating that any document Ms. Brown signed was utilized by a lending institution for any purpose. No evidence was introduced by Petitioner which demonstrated that Respondent Wilson wrote anything on any document submitted to a lending institution regarding the source of any down payment funds provided by Ms. Brown for the purchase of her home. Therefore, Respondent Wilson is not guilty of fraud or misrepresentation and the portions of the Administrative Complaint relating thereto should be dismissed. The evidence did show Lynn Haven charged or included in the purchase agreement amounts for a well, power pole, and septic system which were already present on her property in order to inflate the value of the loan so that a $10,000.00 down payment could be reflected for the loan. This practice is at worst fraud, at best an intentional misrepresentation of the actual down payment for the mobile home. Therefore, Lynn Haven is guilty of fraud and misrepresentation in an installment contract. Around June 1998, Maureen Pooler purchased a mobile home from Lynn Haven. The salesperson she dealt with was Randy, last name unknown. Ms. Pooler never dealt with Respondent Wilson. Ms. Pooler did not discuss any down payment requirements with the salesperson, but did tell him that she only had $2,000.00 to put down on a mobile home. While looking at the homes on Lynn Haven’s sales lot, the salesperson told Ms. Pooler that Lynn Haven would reduce the price of any mobile home on the lot because the business was moving down the road. Ms. Pooler picked out two mobile homes and gave the salesperson a check for $2,000.00. Lynn Haven ran a credit history on Ms. Pooler. Later, the salesperson called to inform Ms. Pooler that she had been approved for a loan on the lesser of the two mobile homes. The evidence did not demonstrate if any sales contract or other paperwork was submitted to gain such approval. The retail installment contract shows a down payment of $13,000.00. A separate document titled “Purchase agreement” lists no amounts for a down payment. The purchase agreement does contain a net trade amount of $13,000.00. The New Home Washout Sheet reflects a $10,000.00 over allowance. However, none of these figures can be traced through to the installment contract and the evidence did not demonstrate the relationship, if any, among these various documents. The installment contract was assigned to Green Tree Financial Center, Inc. No one from Green Tree testified at the hearing regarding this loan, any dealer agreement it had with Lynn Haven, or the representations, if any, Green Tree relied on to take assignment of this installment contract. Nor did anyone from Green Tree or elsewhere testify as to the standards in the industry regarding borrowing a cash down payment. No evidence was introduced by Petitioner demonstrating that any document signed by Ms. Pooler was submitted to any lending institution. Likewise, no evidence was introduced by Petitioner demonstrating that any document Ms. Pooler signed was utilized by any lending institution for any purpose. No evidence was introduced by Petitioner which demonstrated that Respondent Wilson wrote anything on any document submitted to a lending institution regarding the source of any down payment funds provided by Ms. Pooler for the purchase of her home. Therefore, the portions of the Administrative Complaint relating to the Pooler transaction against the Respondents should be dismissed. Around April 1998, Larry Laux purchased a mobile home from Lynn Haven. The salesperson he dealt with was Randy Wilson. Mr. Laux never dealt with Respondent Wilson in any material manner. Mr. Laux did not make a cash down payment on the mobile home. He did use some land he owned and had been living on as collateral. Mr. Laux told the salesperson that he could not make a cash down payment. The salesperson replied that, given Mr. Laux’s credit rating, the lack of a down payment should not be a problem. The alleged purchase agreement for the mobile home contained two signatures for Mr. Laux and his wife. However, the signatures were not those of the Laux’s, and Mr. Laux did not recognize the purchase agreement. In any event, the home was purchased and a loan was closed by Mr. Laux. The lender was Green Tree Financial Services and the closing agent was Stewart Title of Northwest Florida, Inc. No one from either corporation testified as to the Laux loan or the paperwork relied on for that loan. The HUD statement for the loan does not reflect a down payment. However, the HUD statement does reflect a disbursement of funds to Lynn Haven for land improvements in the amount of $4,450.00. The land improvement figure consisted of charges for a power pole ($1,000.00), water, and sewer hookups ($3,000.00) and land clearing ($450.00). Except for the power pole, Lynn Haven did not provide these items to Mr. Laux, and Mr. Laux was never given the money for the hookups or land clearing. Lynn Haven kept the money for services it did not provide. Therefore, Lynn Haven is guilty of fraud in a financial transaction for home improvements. No evidence was introduced by Petitioner demonstrating that any document signed by Mr. and Mrs. Laux was submitted to any lending institution. Likewise, no evidence was introduced by Petitioner demonstrating that ay document Mr. and Mrs. Laux signed was utilized by any lending institution for any purpose. No evidence was introduced by Petitioner which demonstrated that Respondent Wilson wrote anything on any document submitted to a lending institution regarding the source of any down payment funds provided by Mr. and Mrs. Laux for the purchase of their home. Therefore, the portions of the Administrative Complaint related to the Laux transaction against the Respondent Wilson should be dismissed. In December 1997, Terries Mesiner bought a home from Lynn Haven. Respondent Wilson was the salesperson who dealt with Mr. Mesiner. The facts surrounding the Mesiner negotiations and eventual sale are unclear. There appears to have been some sort of prequalification or approval for a purchase of a mobile home. However, there were two different mobile homes involved. The first was the one the Mesiner’s wanted but did not purchase. At some point there were discussions for additions to a mobile home they wanted to purchase which included a whirlpool tub, large deck, and extra insulation. However, the evidence did not show to which mobile home the discussion of these additions pertained. Likewise the evidence did not demonstrate that these discussions resulted in a contractual agreement that Lynn Haven would provide these additions. What is clear is that Respondent Wilson told Mr. Mesiner he needed 15 percent of the purchase price as a down payment on the purchase of mobile home. Mr. Mesiner indicated he could only pay $3,000.00 as a down payment. Respondent Wilson told him they would "work around it." Mr. Mesiner paid $3,000.00 as a down payment on the mobile home. The down payment shown on the HUD settlement statement was $13,001.83. There was no evidence which demonstrated where the figure used for the down payment in the HUD statement came from. Neither the lender nor the closing agent testified at the hearing and none of the documents introduced into evidence pertaining to this transaction seem to relate to this figure. Moreover, the HUD statement does not list Lynn Haven as the seller, but some other individuals whose roles were not identified at the hearing. Mr. Mesiner performed a walk-through of his newly-purchased home and approved of everything as being appropriate that was included in his home. Mr. Mesiner further signed all closing documents, none of which mentioned a deck, a whirlpool, or extra insulation or charges for such items. No evidence was introduced by Petitioner demonstrating that any document signed by Mr. Mesiner was submitted to any lending institution or utilized by any lending institution for any purpose. No evidence was introduced by Petitioner which demonstrated that Respondent Wilson wrote anything on any document submitted to a lending institution regarding the source of any down payment funds provided by Mr. Mesiner for the purchase of his home. Therefore, the portions of the Administrative Complaint regarding the Mesiner transaction should be dismissed.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Banking and Finance enters a final order as: That Lynn Haven Home Center, Inc., cease and desist any and all further violations of Chapter 520, Florida Statutes, and the rules duly promulgated thereunder, including, but not limited to Section 520.995(1)(b), Florida Statutes; and That Lynn Haven Home Center, Inc., pay a fine in the amount of $1,000.00 (one thousand dollars) per violation; and That the Administrative Complaint filed against Christopher Wilson and Doyce Lindley be dismissed. DONE AND ENTERED this 6th day of November, 2002, in Tallahassee, Leon County, Florida. 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 6th day of November, 2002. COPIES FURNISHED: Clyde C. Caillouet, Esquire Department of Banking and Finance 4900 Bayou Boulevard, Suite 103 Pensacola, Florida 32503 Brant Hargrove, Esquire Law Office of Brant Hargrove 2984 Wellington Circle, West Tallahassee, Florida 32309 Doyce Lindley 13 Warwick Drive Shalimar, Florida 32579 Michael A. Reichman, Esquire Post Office Box 41 Monticello, Florida 32345 Honorable Robert F. Milligan Office of the Comptroller Department of Banking and Finance The Capitol, Plaza Level 09 Tallahassee, Florida 32399-0350 Robert Beitler, General Counsel Department of Banking and Finance Fletcher Building, Suite 526 101 East Gaines Street Tallahassee, Florida 32399-0350
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order imposing on Respondent, J. Kent Staley, a $1500 fine, payable within six months, and, starting in six months, suspending his license as a real estate broker for up to 10 years or until the fine is paid in full, whichever first occurs. RECOMMENDED this 9th day of June, 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 9th day of June, 1987.
The Issue The issues in this case concern the attempt by Petitioner to collect $11,684.62 in attorneys fees and costs associated with the defense of the case of State of Florida, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, Petitioner, vs. Donald L. Hilgeman and Marilyn Hilgeman, d/b/a DLH Enterprises; and Pat Montgomery, as park owners of Lake Waldena Resort, Respondents, DOAH Case No. 89-4100, and $931.50 in attorneys fees and costs attributable to the pursuit of the present case to collect those attorneys fees and costs attributable to the defense of the administrative prosecution. See Section 57.111, Florida Statutes.
Findings Of Fact At all times relevant to this inquiry Petitioner was a mobile home park owner as defined by Section 723.003(7), Florida Statutes (1987). Petitioner, Marilyn Hilgeman, his former wife, and Pat Montgomery had administrative charges brought against them through a notice to show cause. In that notice to show cause those three individuals were identified as park owners of Lake Waldena Resort in Silver Springs, Florida. In particular the present Respondent charged the Petitioner and the others with violating Section 723.037(3), Florida Statutes (1987) for having refused to meet with a designated mobile home owners committee within 30 days of giving notice of a lot rent increase and having been requested to conduct that meeting for purpose of discussing the reasons for the increase in the lot rental amount. The accused sought a formal hearing as envisioned by Section 120.57(1), Florida Statutes. That hearing was conducted by the undersigned and a recommended order entered on April 18, 1990, in the aforementioned DOAH Case No. 89-4100. For reasons set out in the conclusions of law found within the recommended order, the suggested disposition of that case was one which found the several Petitioners innocent of any wrong doing and called for the dismissal of the administrative prosecution. On July 25, 1990 the prosecuting agency entered its final order in DOAH Case No. 89-4100. It accepted the fact-finding in the recommended order; however, it modified the conclusions of law and recommended disposition. Unlike the recommended order, the final order in its conclusions of law specifically found that the present Petitioner and the others accused had violated Section 723.037(3), Florida Statutes, wherein at page 17 it was held "Therefore, it is concluded Respondent violated Sections 723.037(3), Florida Statutes." The conclusions of law in the final order went on to say that in mitigation of the violation the prosecuting agency had considered the apparent confusion of those Respondents regarding the affect of Rule 7D-32.004(2), Florida Administrative Code, as it might influence the actions of the accused and in particular, the present Petitioner. In the final order concerning the mitigating affects of Rule 7D-32.004(2), Florida Administrative Code, it was decided that notwithstanding any misunderstanding the accused had as to the significance of the Rule it could not alter the statutory requirements of having a meeting within 30 days of the notice of lot rental increase as described in Section 723.037(3), Florida Administrative Code (1987). The language within Rule 7D-32.004(2), Florida Administrative Code, stated: If requested to do so by the park owner or subdivision developer, the committee shall certify that it has been selected as described in Rule 7D-32.003, Florida Admin- istrative Code. This certification shall include a certificate of all members of the committee attesting to its proper formation under the statute and these rules. For reasons expressed in the recommended order that rule was seen as tolling the 30-day requirement for meeting expressed in Section 723.037(3), Florida Statutes (1987) on the facts found in both the recommended and final orders. This was based upon a recognition that the present Petitioner had employed the rule in an attempt to gain a certification from the committee of mobile home owners prior to the conduct of a meeting to discuss the increase in lot rentals. Again, this belief that the rule tolled the requirement for conducting the meeting within 30 days of the notice of lot rental increase expressed in the recommended order was rejected in the final order. The final order controls absent further relief by resort to the appellate court process. In describing the reasons why the prosecution maintained that the rule could not alter the statutory requirement for holding a meeting within 30 days, the final order states that there are policy considerations that make it important for the committee and the park owner to meet within 30 days and those reasons concern the fact that the rent increase becomes effective within 90 days over the notice, the informational value of having the reasons explained for the lot increase as a prelude to any request to having a dispute about lot rental increases submitted to mediation within 30 days following the scheduled meeting. The final order goes on to describe, through its conclusions of law, that the meeting to discuss lot rental increase was not held until November 14, 1989 over a year after the notice of lot rental increase. That statement comes immediately before the conclusion of law that the present Petitioner had violated Section 723.037(3), Florida Statutes. In the conclusions of law set out in the final order the prosecuting agency in its paragraph describing the mitigating circumstances acknowledges the possible confusion on the part of the accused as well as the mobile home owners committee when it describes, as did the recommended order, the filing of a complaint by the committee as a means of ostensibly preserving the right to have the meeting envisioned by Section 723.037(3), Florida Statutes (1987), when taken against the background of the opportunity to have a credential check of mobile home owners committee members as envisioned by Rule 7D-32.004(2), Florida Administrative Code. This refers to the issue of whether a meeting could be held after 30 days from the notice of intended lot rental increase absent such a complaint. In the statement on mitigation the final order recognizes that the administrative prosecution was penal in nature and that Section 723.037(3), Florida Statutes (1987) and Rule 7D-32.004(2), Florida Administrative Code needed to be read in context and should be strictly construed with ambiguities favoring the accused. The final order cites to State v. Pattishall, 99 Fla. 296, 126 So. 147 (1930) and Davis v. Dept. of Professional Regulation, 457 So.2d 1074 (Fla. 1DCA 1984). The treatment of those cases and the resolution of the dispute through final order is one which finds the accused in violation of Section 723.037(3), Florida Statutes (1987), but mitigates the disposition in the way of the penalty based upon the reading given Pattishall and Davis, supra. That factual impression is given when the order in disposition is examined wherein it is stated through the final order, "Based upon the consideration of the facts found, the conclusions of law reached, and the mitigation evidence, it is ordered that the notice to show cause is hereby dismissed." On August 22, 1990, the present Petitioner noticed an appeal of the final order in the administrative prosecution but later abandoned that appeal before the court had the opportunity to speak to its merits. On October 22, 1990, the present Petitioner filed a petition for collection of attorneys fees and costs spoken to in the statement of issues. The petition for attorneys fees and costs were subjected to a motion to dismiss based upon a claim of untimeliness and that motion was denied by order of December 10, 1990. The present Respondent requested an evidentiary hearing as contemplated Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code, and the evidentiary hearing was conducted on the date described before. When the present Petitioner abandoned his appeal to the District Court, he necessarily was placed in the position of arguing that the final order drawn by the prosecuting agency constituted the basis for the claim that he was a small business party who had prevailed in the dispute related to DOAH Case No. 89-4100. See Section 57.111(3)(c)1, Florida Statutes. Contrary to his assertion the final order as described in these facts did not favor the present Petitioner. Although the prosecuting agency did not choose to impose a penalty against the present Petitioner based upon its assessment of matters in mitigation and dismissed the case without exacting a penalty, it had found the present Petitioner in violation of a substantiative provision of law, i.e. Section 723.037(3), Florida Statutes (1987). Thus, the disposition cannot be said to favor the present Petitioner. Having decided this mixed question of fact and law against the present Petitioner, it is not necessary to make findings of fact concerning whether the present Petitioner is a small business party as defined at Section 57.111(3)(d), Florida Statutes and whether the present Respondent was substantially justified in this administrative prosecution related to law and fact as contemplated by Sections 57.111(3)(e) and (4)(a), Florida Statutes, or to examine whether special circumstances exist that would make the award of attorneys fees and costs unjust.
Findings Of Fact This matter arose from the sale of a certain apartment building in Dunedin, Florida, known as Piper's Ten. This building was owned by two foreign corporations, the principals of which are represented by a Mr. Eugene Morgan of Boston, Massachusetts. Douglas S. Kennedy, Defendant, is a registered real estate salesman whose license was registered with Lockhart Realty, Inc., of Seawalls Point, Florida, the broker for which was his then wife Trude Kennedy. The Defendant and his wife were involved in domestic difficulties which eventually lead to a divorce. When the Defendant and his wife separated sometime in late 1972, he sought out his friend and business associate, Eugene Morgan, who suggested that the Defendant move to Dunedin, Florida and reside in the model apartment at Piper's Ten. The Defendant heeded the suggestion and took on the assignment as resident manager of the Piper's Ten Apartments at a final salary of approximately $1,000 per month. According to the Defendant and Mr. Morgan, his prime responsibility was seeing that Morgan and his co-investors in the property "receive a fair shake with the local people in and around Dunedin, Florida." At the time the property was registered with a real estate broker of Dunedin, Florida, whose name is Mr. Woodrow Register, and he had an exclusive listing on the sale of Piper's Ten Apartments. The initial arrangement between Morgan and the Defendant was that the Defendant would live in the apartment rent free and he would be paid an amount to defray his expenses for the management responsibility. When the Defendant became dissatisfied with this arrangement approximately 3 weeks later, he notified Mr. Morgan that he could no longer remain in Dunedin under that arrangement. This set the stage for the new arrangement referred to above whereby the Defendant was to be paid $1,000 per month payable out of the proceeds, when and if the building was sold. According to Morgan, this arrangement was to last for at least 4 to 5 months or until such time as a purchaser was located to purchase the apartment building. During April 1973, Kelly Prior Realty of Dunedin produced a proposed purchaser for the property at the purchase price of $400,000 which was the amount set by the owners who had agreed to pay a real estate commission of 5 percent. Kelly Prior Realty prepared a proposed contract of sale and purchase and submitted it to the offices of the attorney for the seller, Raymond Argyros, who after certain modifications, submitted the contract to the sellers for their approval. At the closing in May 1973, Kelly Prior, the selling broker, received a full commission of 5 percent as agreed upon by their sellers in their open listing of the property. According to attorney Argyros, the Defendant received a check for $5,000 as agreed upon between the Defendant and Morgan and according to him, the contract erroneously referred to such payment as a commission. It is this $5,000 payment which is the matter of controversy in this hearing. According to Morgan, Defendant was hired to "see if he could get Morgan and his associates a fair shake with the local people in Dunedin respecting the management of the apartment building." Originally the two story building was primarily an office space on the lower level and approximately ten apartments on the upper level. The plan was to rent the upper level as a condominium and to lease the office space on the lower level. Morgan was unable to sell the condominiums on the upper level based on the fact that prospective purchasers did not want to buy condominiums in a building approximately 50 percent comprised of office space. With this fact, Morgan and his associates made the decision to convert the lower level to apartments as well. When this was done, the Defendant saw to it that the building was properly managed and provided feedback to Morgan in order to keep him advised at all times of the situation with the apartment building. When the building was sold, Kelly Prior Realty Company received the commission of $20,000 which represented 5 percent of the total purchase price and the Defendant received $5,000 for his efforts. In this regard, the Defendant received a check drawn in the amount of $5,000 and the check bore a notation that the amount represented a commission. When the Defendant noted this, he changed the face of the check to reflect that the amount paid was intended to be an agency fee for the sale of Piper's Ten. The Defendant played no part in the drafting of the purchase and sales agreement. After the closing, the Defendant also was given the furniture from the model apartment and he thereafter departed for Puerto Rico. Trude Kennedy, the Defendant's former wife, testified that Lockhart Realty was in no way associated with the sale of Piper's Ten. Trude Kennedy had several conversations with Mr. Morgan regarding the sales and problems which he encountered with Piper's Ten. However the basis of these statements involved other businesses which she had with Morgan regarding the sale and subdivision of other properties in and around Dunedin. Mrs. Kennedy was unaware of the amount paid to the Defendent and she made no claim for such funds when the payment was disbursed. Morgan denied that the amount in any way reflected a commission but rather was payment for the services which the Defendant rendered in the general upkeep and management of the building such that he could be fully advised at all times of the progress, if any, that the local realtors were having with the sale of the apartment building. With these facts, the undersigned is of the opinion that the $5,000 sum given to Kennedy represented the amount as per the agreement he had with Morgan. There was no evidence that he participated in any way with the sale of the building other than to advise Morgan of any efforts that the other local realtors played in locating purchasers. It was noted that the check which represented payment for these services indicated that the amount originally was a commission. However, the Defendant, when noting that the designation of a commission was included on the check, immediately advised Mr. Argyros, the seller's agent, to correct that mistake by placing a designation that the amount represented was intended to be a "seller's agent" fee. This correction was made prior to the time the check was deposited and it was done with the consent of attorney Argyros. There was no evidence that the Defendant demanded such amount as a commission for his efforts as a salesman or that he showed the property to prospective purchasers as a real estate salesman. Thus it appears that the amount paid to the Defendant was an amount given him for his services as testified to by Morgan. The amount paid also appears to correspond with the arrangement as testified to by Morgan. I therefore find that the $5,000 sum paid the Defendant represented an amount for services that he rendered, not as a real estate salesman, but rather, as a property manager of the Piper's Ten Apartment building.
The Issue Whether Respondents Alfred Homes and Felicia Homes Foster1 subjected Petitioner Nidia Cruz to discriminatory housing practices based on Ms. Cruz’s national origin, in violation of the Florida Fair Housing Act, chapter 760, part II, Florida Statutes (FHA).
Findings Of Fact Ms. Cruz, who is Hispanic in national origin, rented and occupied a mobile home at lot #9 in Pine Grove Trailer Park (Pine Grove), in an unincorporated area adjacent to Fernandina Beach, Florida. Respondent Alfred Homes owns Pine Grove. His daughter, Respondent Felicia Homes Foster, oversees the business operations of Pine Grove. Ms. Foster lives in a mobile home at Pine Grove, and owns two other mobile homes that are rental units. Ms. Cruz rented one of these mobile homes from Ms. Foster. The remaining mobile homes in Pine Grove are owner-occupied, with those owners renting their lots from Respondents. Neither party could produce a lease between Respondents and Petitioner concerning the mobile home. Based on the parties’ testimony and other evidence presented at the final hearing, the undersigned finds that Petitioner’s tenancy for the mobile home commenced on or about October 15, 2016, for an approximately one-year term ending November 30, 2017. Respondents charged a $500 security deposit, and $600 per month for rent, which included water and sanitary sewer that Pine Grove’s well and septic system provided. Ms. Cruz was responsible for electrical services to the mobile home. After the expiration of the lease on November 30, 2017, the parties did not renew the lease, and Ms. Cruz continued to occupy the mobile home under a month-to-month agreement, until she vacated the mobile home on or about September 29, 2018. Ms. Cruz sought out Respondents to rent a mobile home, as her previous landlord had terminated the lease for her previous residence because of her unauthorized possession of pets. Ms. Foster informed Ms. Cruz that she had an available mobile home to rent, but as the previous tenants had just moved out, she needed to make repairs to the mobile home before it could be occupied. Ms. Cruz requested to move in immediately while the Respondents repaired the mobile home, because she and her daughter were, at that point, homeless. Respondents employed Michael Hamilton to repair and provide maintenance work to the mobile homes in Pine Grove. Mr. Hamilton worked for Respondents on weekends, as he had a full-time job during the week. Within approximately one month of Ms. Cruz moving into her mobile home, Mr. Hamilton made the needed repairs to its interior, including replacing the refrigerator, carpet, commode, and door locks. After moving into the mobile home, Ms. Cruz was involved in an incident at a nearby McDonald’s restaurant with an employee. That employee, Theresa McKenzie, was a tenant of Pine Grove and resided in lot #10, which was adjacent to Ms. Cruz’s mobile home. Ms. Cruz and her daughter, Ms. Burgos, complained to Ms. Foster that Ms. McKenzie and her co-tenant Earnest Roberts made loud, harassing, and defamatory statements about Ms. Cruz and her national origin. Respondents, individually, warned Ms. McKenzie and Mr. Roberts to refrain from calling Ms. Cruz and Ms. Burgos names. The feud between Ms. Cruz and Ms. McKenzie was interrupted when Ms. Cruz was arrested on November 18, 2016. Ms. Cruz was charged with, among other offenses, aggravated stalking arising from a violation of an order of protection and filing a false police report. The victim of these offenses was a previous landlord from whom Ms. Cruz had rented a room. While in pretrial detention, a psychologist evaluated Ms. Cruz, and determined her to be incompetent to proceed in the criminal proceeding. The trial court subsequently committed Ms. Cruz to a mental health facility, and she pled guilty to filing a false police report. The trial court sentenced Ms. Cruz to a split sentence of two years with special conditions, which included enrollment into the mental health court program. After acceptance into the mental health court program, Ms. Cruz was released from the Nassau County Jail. On February 13, 2017, Ms. Foster hand delivered a letter to Ms. McKenzie and Mr. Roberts, which warned them that if they did not refrain from verbal attacks against Ms. Cruz, Respondents would evict them from Pine Grove and obtain a no trespassing order. Chris Cummings, who was a Pine Grove resident at lot #4, testified he was aware of the incident at McDonald’s involving Ms. Cruz and Ms. McKenzie, as his wife also worked at that McDonald’s. Mr. Cummings observed, but could not hear, Ms. Cruz and Ms. McKenzie “squaring off” against each other. Mr. Cummings recounted that he observed Ms. Cruz lift her skirt and bend over, in a manner that he interpreted to mean that Ms. McKenize could kiss her rear end. In August 2017, Hurricane Irma caused a large branch from a pine tree to fall on top of Ms. Cruz’s mobile home, puncturing the exterior metal skin of the mobile home’s roof, which allowed water to intrude into the interior of the mobile home. The water intrusion caused significant damage to the ceilings, walls, and floor coverings of the mobile home. It is undisputed that Hurricane Irma inflicted serious damage to the mobile home, and that Ms. Cruz resorted to using buckets to catch water leaking from the roof. Shortly after Hurricane Irma passed, Mr. Hamilton placed a tarp over the top of the mobile home to stop the water intrusion. He then began repairs to Ms. Cruz’s mobile home over the course of several weekends, which included removing and replacing damaged sheet rock, patching the metal roof, and installing new carpet and linoleum flooring. Mr. Hamilton testified that Ms. Cruz, on several occasions, frustrated his ability to complete these repairs by denying him entry into the mobile home. Ms. Cruz presented evidence that her mobile home required extensive repairs upon moving in, and that it sustained severe damage from Hurricane Irma. However, she presented no credible evidence to rebut the testimony that Mr. Hamilton, on behalf of Respondents, completed all necessary repairs. Additionally, Ms. Cruz presented no credible evidence that Respondents treated her differently than other Pine Grove tenants in responding to and completing any necessary repairs to other tenant’s mobile homes. Neither the passage of time, incarceration, nor the trauma of Hurricane Irma, ended the feud between Ms. Cruz and Ms. McKenzie. The Nassau County Sheriff’s Office had regular call-outs to Pine Grove regarding Ms. Cruz and Ms. McKenzie. The feud escalated when, on January 4, 2018, Ms. McKenzie filed a petition for an injunction for protection against Ms. Cruz, and the circuit court entered a temporary injunction that same day. The next day, January 5, 2018, Ms. Cruz and Ms. Burgos each filed petitions for an injunction for protection against Ms. McKenzie. Then, on January 16, 2018, Ms. Cruz sought a petition for an injunction for protection against Mr. Roberts, which the circuit court granted, as a temporary injunction, that same day. On January 17, 2018, the circuit court held a hearing on the petition against Ms. Cruz and Ms. Burgos’s petition against Ms. McKenzie, and on January 18, 2018, granted a final injunction in each case. On January 18, 2018, Ms. Burgos filed a petition for an injunction for protection against Mr. Roberts, which the circuit court denied. On January 24, 2018, the circuit court heard Ms. Cruz’s petitions against Ms. McKenzie and Mr. Roberts; the circuit court denied the injunction against Ms. McKenzie, but granted a final injunction against Mr. Roberts. On January 29 and February 9, 2018, the circuit court entered orders to show cause in Ms. Burgos’s injunction against Ms. McKenzie, and after hearing argument, dismissed them on February 15, 2018. Despite these multiple injunction proceedings, Ms. Cruz and Ms. McKenzie continued their feud. On January 22, 2018, Ms. Cruz was arrested for violation of the protection order in favor of Ms. McKenzie. Ms. Cruz’s arrest triggered a violation of her felony probation. While in pretrial detention, she was again evaluated by a psychologist, who determined her to be incompetent to proceed. The circuit court committed Ms. Cruz to a mental health facility. She subsequently returned to court and pled guilty to a violation of probation. The circuit court sentenced Ms. Cruz to a split sentence of time served, reinstated probation, and extended probation with an added special condition for 12 months. Ms. Cruz was released from the Nassau County Jail on July 27, 2018. On July 31, 2018, Ms. Foster hand delivered a notice to terminate the lease, stating that the lease will end on August 31, 2018, and that Ms. Cruz should vacate the mobile home no later than September 1, 2018. Ms. Cruz and Ms. Burgos continued to hold over in the mobile home until they moved out on September 29, 2018. Ms. Cruz failed to provide any credible evidence that Respondents, or Mr. Hamilton, made any disparaging statements to Ms. Cruz regarding her national origin. Ms. Cruz failed to provide any credible evidence that Respondents treated her less favorably than other tenants with regard to her feud with Ms. McKenzie. Put differently, Ms. Cruz failed to provide any credible evidence that Respondents treated any other tenant disputes differently than the way they treated the dispute between Ms. Cruz and Ms. McKenzie. Ms. Foster attempted to intervene on behalf of Ms. Cruz to end the feud, when she hand-delivered the letter to Ms. McKenzie on February 13, 2017, that threatened eviction. The credible evidence presented demonstrated that Ms. Cruz often created or exacerbated this feud, which ultimately led to her incarceration. Ms. Cruz failed to provide any credible evidence that Respondents’ decision to end the month-to-month holdover of the lease of the mobile home was based on her national origin, or that Respondents treated Ms. Cruz differently than any other tenants who resided at Pine Grove in ending the month-to-month holdover of a lease.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Nidia Cruz’s Petition for Relief. DONE AND ENTERED this 1st day of July, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 1st day of July, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Nidia Cruz Post Office Box 1923 Callahan, Florida 32011 (eServed) James Pratt O'Conner, Esquire James Pratt O'Conner, P.A. Post Office Box 471 Fernandina Beach, Florida 32035 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether respondent should refund sales tax petitioners paid on account of their purchase of a manufactured home?
Findings Of Fact On September 12, 1984, petitioners made a $160 down payment on a 75 x 150 foot lot in High Ridge Estates in Bay bounty by a check drawn in favor of Ed Franklin. They wanted the lot in order to put a manufactured home on it. After acquiescing to a request by personnel of the Bay County building department that they pay $21.00 for a mobile home permit, the Baileys improved the property in anticipation of placing a manufactured home on it. They put in a septic tank and poured a concrete pad. On November 21, 1984, the Baileys signed a form "FHMA SALES CONTRACT" as buyers. Petitioners' Exhibit No. 2. Jack Lee signed as seller on behalf of "DD&L Joint Venture." Id. Petitioners gave Lee a down payment of $13,400; DD&L undertook to procure from Fleetwood Homes of Georgia, Inc., a manufactured home to be placed on the High Ridge Estates lot. The form contract, which purported to obligate the Baileys for $53,000, describes the lot, but makes no mention of the manufactured home. In December of 1984, the manufactured home arrived at High Ridge Estates, borne by temporary axles and wheels, which were unbolted after its arrival, and left with the truck that had brought it. Statewide of Florida, Inc., placed it on its new foundation. With an exterior of wood siding and an asphalt-shingled roof, the 25.7 by 54 foot structure met VA and FHA materials requirements for standard housing. Carpet was laid over plywood subflooring. Wall joists stand 24 inches apart. The Baileys added a carport, a driveway, three decks and a separate storage shed. On March 13, 1985, Mr. and Mrs. Bailey borrowed money from Peoples First Financial Savings and Loan Association of Panama City (Peoples) to pay the balances they owed for the lot and home. Of the loan proceeds, $6,100.00 went to "C. Ed Franklin and wife, Frances P. Franklin," Hearing Officer's Exhibit No. 1, to pay for the lot on which the manufactured home stood; and $23,328.80 went to "ITT Comm. Finance." Id. To secure repayment of its loan to the Baileys, Peoples took a mortgage from the Baileys encumbering the lot and the manufactured home affixed to it. Petitioners' Exhibit No. 1. Apparently the payment to "ITT Comm. Finance" retired indebtedness the Baileys incurred in acquiring their 1985 Fleetwood Chadwick 3523D. Mrs. Bailey executed a retail buyer's order for their manufactured home in December of 1986, although the form, which showed Best Home Center, Inc., as the "DEALER," was dated March 22, 1985. Hearing Officer's Exhibit No. 2. The form reflects a total price for the manufactured home of $29,045.87, the sum on which sales tax was computed at $1,452.53. The Baileys paid tax in this amount to Best Home Center, Inc., "upon the sales (sic) of tangible personal property." Hearing Officer's Exhibit No. 2. Best Home Center, Inc., forwarded the taxes they collected from the Baileys, along with other taxes collected in March of 1985, to the Florida Department of Revenue. Hearing Officer's Exhibit No. 2. At the time the Baileys purchased the manufactured home it had no license tag. It never had a license tag and, at the time they purchased it, had never been assessed as real property. Best Home Center, Inc., made a written assignment to the Baileys of its rights, if any, to recover the sales tax the Baileys paid.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny petitioners' application for refund. DONE and ENTERED this 5th day of October, 1987, at Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1987. APPENDIX The second sentence of respondent's proposed finding of fact No. 1 and respondent's proposed findings of fact Nos. 3, 4, 6, 8, 9 and 10 have been adopted, in substance, insofar as material. With respect to the first sentence of respondent's proposed finding of fact No. 1, it is not entirely clear who sold the Baileys the manufactured home. The documentation reflected a sale by Best Home Center, Inc., for $29,045. With respect to respondent's proposed finding of fact No. 2, Ed Franklin and his wife conveyed the lot. The down payment was $160 and a $6,100 balance was paid in March. With respect to respondent's proposed finding of fact No. 5, the Peoples Mortgage originated in March, with indebtedness secured by lot and home. With respect to respondent's proposed finding of fact No. 7, the Bay County Building Department required them to purchase a permit on September 20, 1984. COPIES FURNISHED: The Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0305 Charles Stutts, Esquire General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0305 Mr. and Mrs. Bailey 22012 High Ridge Drive Lot 24 Panama City Beach, Florida 32407 D. Alan Burns, Esquire Assistant Attorney General Department of Legal Affairs Tax Section, Capitol Building Tallahassee, Florida 32399-1050
The Issue The issue is whether Respondent violated the Florida Fair Housing Act (“the Act”) by failing to provide Petitioner with a reasonable accommodation.
Findings Of Fact The following Findings of Fact are based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding. Scottish Highlands is a deed-restricted community in Leesburg, Florida. The Association is responsible for the daily operations and management of Scottish Highlands. Since at least February 16, 2015, Scottish Highlands’ bylaws have provided that “[f]ences and/or continuous hedges are not permitted except along the perimeter of Association property. Approved fencing shall be of pressure treated pine ‘shadow box,’ not exceeding six (6) feet in height.” The Association’s governing documents also require that “[a]ny and all improvements, alterations, or additions to units by parcel owners” must be reviewed by an architectural review committee. The architectural review committee then recommends to the Board of Directors whether the proposed improvement, addition, or alteration should be allowed. The Board of Directors, within 60 days after the parcel owner’s initial request, approves or disapproves the proposal. Ms. Almonte and her husband moved into Scottish Highlands in May of 2010. In 2013, Ms. Almonte was diagnosed with fibromyalgia. Ms. Almonte described her experience with fibromyalgia as follows: The exact cause of fibromyalgia is not known. Symptoms include widespread pain, fatigue, cognitive difficulties, and migraine headaches. Treatments include medication and lifestyle changes. Many people describe fibromyalgia as feeling like a persistent flu. I discovered self-care was one of my best options, by exercising regularly, by gardening, using raised bed planters, because I can’t do ground level gardening because of my hips, back, and knees. I have had a hip replacement and have broken my knee. Reducing emotional and mental stress by using techniques such as meditation, relaxation, and aromatherapy in my herb garden. By eating a balanced diet, by growing my own organic vegetables, fruits, and herbs [sic]. I see a psychologist, a psychiatrist, a rheumatologist, and my primary care physician on a regular basis. When I have severe flare-ups, I am homebound for days. Stressful situations exacerbate her conditions. The Social Security Administration ruled on May 5, 2016, that Ms. Almonte is disabled. While there was no testimony or documentation describing why the Social Security Administration determined that Ms. Almonte was disabled, an October 14, 2016, letter from Dr. Eleanor Davina of Adult Medicine of Lake County, Inc., states that “due to underlying medical conditions, Ms. Lourdes is unable to do ground level yard work to include gardening or weeding, unless she has raised garden beds.”1/ It is not surprising that Ms. Almonte uses gardening to mitigate the symptoms of fibromyalgia. Ms. Almonte has over 25 years of experience with gardening. She has been a certified Florida master gardener and a member of the Florida Nursery Growers and Landscape Association. Ms. Almonte is also a founding member of the Scottish Highlands Garden Club. On approximately July 1, 2016, the Almontes paid $2,850 for 12 planter beds that were placed in their backyard. Each bed is made from pressure-treated lumber and is two feet high and six feet long. Recent photographs indicate that several of the beds include lattices that are considerably higher than the beds themselves. Initially, Ms. Almonte used 10 of the beds for gardening and the remaining two as a work bench. Depending on what she is growing at any particular time, Ms. Almonte typically has six of the beds in use. Soon after placing the planter beds in their backyard, the Almontes received at least one letter from the Association ordering their removal. Rather than contacting the Association and explaining that the planter beds were part of Ms. Almonte’s treatment, the Almontes hired an attorney. Via a letter dated July 28, 2016, the Association invited the Almontes to address the Board of Directors at the Board’s next public meeting on September 20, 2016. However, the Association barred the Almontes from bringing their attorney unless they provided a 10-day advance notice that they were doing so. Ms. Almonte declined the Association’s invitation because she did not want to discuss her health issues in public. On August 4, 2016, the Association received a “Trespass Warning” from the Almontes stating that it was not “authorized, permitted, or invited to enter or remain on” their property. The Trespass Warning also stated that the Almontes would pursue criminal charges through the Lake County Sheriff’s Office if the Association disregarded the warning. On September 26, 2016, the Association filed a Petition for Mandatory Non-Binding Arbitration with the Florida Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes.2/ The Almonte’s Answer to the Petition stated the following: The Almontes did not “construct” large wooden planter boxes with 4X8 lattice panels and bamboo curtains. At significant expense, the Almontes hired a professional carpenter to construct several portable wooden planter boxes. The pre-constructed planter boxes were then transported to the Almontes property and situated on their back-yard patio. Mrs. Almonte is medically disabled and has been diagnosed with an anxiety disorder. Mrs. Almonte is a master gardener who has worked in the gardening industry for over 30 years. Based on her disability and her background, Mrs. Almonte’s medical doctor recommend[ed] Mrs. Almonte continue gardening to get physical exercise and to help her relieve the unbearable stress she deals with while coping with her physical and mental disability. Since Mrs. Almonte is no longer able to continuously bend or stoop to the ground to tend to a garden grown on the ground, it was recommended that Mrs. Almonte utilize raised bed gardens to accommodate her disability. Mrs. Almonte’s psychologist agrees with her medical doctor’s recommendation to utilize gardening as a means to cope with and mitigate the symptoms associated with her disability. The portable planter boxes are not positioned in a straight line and do not have the appearance of a fence or a continuous hedge. Instead, they are positioned and repositioned on the patio according to the type of plant growing in a particular planter and the time of year. As plants mature and the weather changes, the planter boxes are repositioned on the patio to where the plants can thrive. Planter boxes with plants that require their growth to be supported are equipped with wood lattice panels until the growth has died or the plants are harvested. There are no “bamboo curtains” on the Almontes’ property. They did, at one time, have a single bamboo curtain screening part of their property from their neighbor’s property. However, that curtain has long since been removed. The planter boxes were professionally constructed of pressure treated pine. Many members of the community have commented on how beautiful the planters (and plants) are and how they add beauty to the community. The Almontes’ neighbor even wrote a letter stating that she thought the planter boxes are beautiful and aesthetically pleasing to view. As stated above, the planter boxes do not constitute a fence or a continuous hedge. However, if said planter boxes were considered a fence or a hedge, which they are not, fences, raised planter boxes, and continuous hedges already exist throughout the community. * * * Under the governing documents, the Almontes are not required to seek approval from the Board of Directors because their planter boxes are not an improvement, alteration or addition to their unit. An “improvement” to real property is synonymous with a “fixture” to real property. Fixtures are typically affixed to the land and become part of the real property. Alterations alter the land in some way. And additions are typically fixtures that are added to the real property that become part of the land. Here, the planter boxes are not affixed to the real property in any way. In fact, the planter boxes are regularly moved about the Almontes’ back patio depending on the growing season. Therefore, the planter boxes are not an improvement, alteration, or addition to the real property. Accordingly, the Almontes were not required to seek approval to bring in the planter boxes.[3/] On November 16, 2016, Ms. Almonte filed a complaint with the Department of Housing and Urban Development (“HUD”), and the complaint was ultimately referred to the Commission. Ultimate Findings The unrebutted evidence demonstrates that Ms. Almonte’s major life activities of bending, stooping, kneeling, and rising from one’s knees have been substantially limited. Therefore, the undersigned finds that Ms. Almonte proved by a preponderance of the evidence that she is disabled within the meaning of the Act. While there is insufficient evidence to support a finding that Ms. Almonte expressly requested a reasonable accommodation from the Association prior to her complaint being received by HUD and the Commission,4/ the Almonte’s Answer to the Association’s Petition for Arbitration was sufficient to demonstrate by a preponderance of the evidence that the Association was on notice that Ms. Almonte wanted a reasonable accommodation. The preponderance of the evidence demonstrates that: the planter beds were a reasonable accommodation; and those planter beds were necessary to afford Ms. Almonte an opportunity to use and enjoy her home in Scottish Highlands. The planter beds were a reasonable accommodation because they cost the Association nothing and did not materially impact any of the other residents. The planter beds were a necessary accommodation because they were an important aspect of Ms. Almonte’s efforts to mitigate the effects of fibromyalgia. There is no dispute that the Association objected to Ms. Almonte having the planter beds in her backyard. The Association has not articulated a legitimate, non- discriminatory reason for withholding approval of the planter beds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Scottish Highlands Condominium Association, Inc., violated the Florida Fair Housing Act by failing to provide Lourdes Almonte with a reasonable accommodation, and requiring Scottish Highlands Condominium Association, Inc., to provide Ms. Almonte with a reasonable accommodation. DONE AND ENTERED this 26th day of November, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 26th day of November, 2018.
The Issue The issue presented is whether subsections (1) and (4) of Rule 7D-32.002, Florida Administrative Code, are an invalid exercise of delegated legislative authority.
