00-003795 Department Of Business And Professional Regulation, Division Of Florida Land Sales, Condominiums, And Mobile Homes vs. Orchid Acres Mobile Home Park Status: Closed Recommended Order on Wednesday, March 21, 2001.

Summary: Mobile home park violated the law by failing to provide homeowner with a prospectus at the time of the sale of mobile home and prior to raising lot rental price.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

DIVISION OF FLORIDA LAND SALES , )

CONDOMINIUMS, AND MOBILE HOMES , )

)

Petitioner , )

)

vs. ) Case No. 00-3795

)

ORCHID ACRES MOBILE HOME PARK , )

INC. , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on February 15 and 16, 2001, at Fort Pierce, Florida, before

Florence Snyder Rivas, a designated Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner : Janis Sue Richardson, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent : Brad Culverhouse, Esquire

Post Office Box 4392

Fort Pierce, Florida 33304

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, Orchid

Acres Mobile Home Park (Orchid Acres): (1) failed to deliver a

prospectus prior to entering into an initial lot rental

agreement in May 1996 with mobile homeowner Nancy Lee Johnson

(Johnson) upon her purchase of a mobile home within Orchid

Acres, in violation of Section 723.011, Florida Statutes; and

(2) failed to deliver a prospectus to Johnson prior to

increasing her lot rental amount $10.50 per month, effective

April 1997 in violation of Rule 61B-31.001(12), Florida

Administrative Code (FAC), as set forth in a Notice to Show

Cause issued by Petitioner April 14, 2000.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation,

Division of Florida Land Sales, Condominium and Mobile Homes

(Division) served Orchid Acres with its Notice to Show Cause on

April 14, 2000.

Orchid Acres requested an informal hearing, which took

place on August 2, 2000. At that time, it became clear that

there were disputed issues of material fact, and the matter was

referred to the Division of Administrative Hearings (DOAH) on

September 11, 2000.

On September 18, 2000, Orchid Acres filed a Suggestion of

Bankruptcy. The undersigned entered an Order to Show Cause why

DOAH's file should not be closed in light of the bankruptcy

filing. The Division filed a timely response; Orchid Acres did

not file a response. By Order dated October 13, 2000, Orchid

Acres' Suggestion of Bankruptcy was treated as a motion to

dismiss pursuant to 11 U.S.C. Subsection 362(a) and was denied.

At the final hearing the Division presented the testimony

of Johnson (mobile homeowner and complaining witness); Bernice

Dering (Division Investigation Specialist) ; and Tracy Corbitt

(Division Investigative Supervisor). The Division's Exhibits 1-

5 were admitted into evidence.

Orchid Acres presented the testimony of its Secretary-

Treasurer, Stephen Deutsch. Orchid Acres' Exhibits A-E were

admitted into evidence.

The parties elected not to provide a transcript of the

proceedings.

During the course of the hearing, Orchid Acres made a

variety of ore tenus motions. Orchid Acres' attorney was not

prepared to make legal argument on the motions at the time of

the final hearing. Although at least some of the motions were,

on their face, not well-taken, the undersigned reserved ruling

as to each motion and advised Orchid Acres that if it wished to

pursue any or all of its motions, legal authority should be

submitted in the form of a post-hearing memorandum of law or be

incorporated into its proposed recommended order.

By agreement, a March 6, 2001, deadline for post-hearing

submissions was set.

In a timely filing captioned "Defendant Orchid Acres Mobile

Home Park, Inc.'s Renewed Objection to Agency Investigator's

Report Being Admitted into Evidence Pursuant to the Business

Record Exception and Motion to Strike All Testimony Adduced by

the Agency in Regards to Said Report and Proposed Order," Orchid

Acres elected to renew only two of its ore tenus motions.

The first motion, as the caption suggests, is Orchid Acres'

objection to use at hearing of the Division's investigative

report. Questions concerning whether an agency's investigative

file is properly admitted into evidence, and, if so, whether

information contained therein may be properly considered over

timely hearsay objection(s) are serious matters. This is

especially true, where, as here, the agency's burden of proof is

clear and convincing evidence.

In the absence of a transcript, the undersigned has

carefully reviewed contemporaneous hearing notes and is

satisfied that the Division's investigative report was

admissible for the limited purpose of supplementing, explaining,

or buttressing admissible evidence. Section 120.58(1)(a),

Florida Statutes; BellSouth Advertising and Publishing

Corporation v. Unemployment Appeals Commission , 654 So. 2d 292

(Fla. 5th DCA 1995) ; Harris v. Game and Fresh Water Fish

Commission , 495 So. 2d 806 (Fla. 1st DCA 1986).

However, the findings of fact in this proposed recommended

order do not rely upon the contents of the Division's

investigative report, even for the limited purpose authorized by

statute. Rather, they are based entirely upon the undersigned's

observations regarding the personal knowledge, demeanor, and

credibility of witnesses who testified at the final hearing.

The second matter addressed in Orchid Acres' March 6 filing

is its ore tenus demand for attorney's fees. The demand was

made for the first time at the final hearing. As a matter of

law, the demand is untimely and could not be considered, even if

Orchid Acres were ultimately to prevail in these proceedings.

Stockman v. Downs , 573 So. 2d 835 (Fla. 1991). Additionally, in

light of the findings of fact and conclusions of law reached in

this Recommended Order, the request is moot.

FINDINGS OF FACT

1. The Division is the state agency responsible for

regulating sellers of mobile homes pursuant to Chapter 723,

Florida Statutes, the Florida Mobile Home Act, and the

administative rules promulgated thereunder.

2. Orchid Acres is a 73-lot mobile home park owner and

seller of mobile homes in Fort Pierce, Florida.

3. On April 16, 1996, Orchid Acres sold Johnson a mobile

home in its Fort Pierce mobile home park. Contemporaneously

with the sale of the mobile home, Orchid Acres leased to Johnson

the lot on which the mobile home was situated.

4. At the time of this transaction, Orchid Acres failed to

deliver to Johnson a prospectus.

5. On December 15, 1997, Orchid Acres notified its

residents, including Johnson, of a $10.50 per month lot rental

increase, to take effect April 1, 1997.

6. At the time Orchid Acres notified Johnson of the

increase, it had not delivered a prospectus to her.

CONCLUSIONS OF LAW

7. Pursuant to Chapter 723, Florida Statutes, the Florida

Mobile Home Act, and the administrative rules promulgated

thereunder, the Division is authorized to enforce those sections

of the Act and rules that apply to the rental, development, and

sale of mobile home parks. See Section 723.005, Florida

Statutes (1996). The Division may investigate possible

violations and bring actions to enforce those provisions of the

Act that come within the scope of its enforcement authority.

See id. Section 723.006, Florida Statutes.

8. The Act applies to "any residential tenancy in which a

mobile home is placed upon a rented or leased lot in a mobile

home park in which ten or more lots are offered for rent or

lease." See id. Section 723.002, Florida Statutes.

9. Because the Division seeks to impose an administrative

fine upon Orchid Acres for the violations alleged in its Notice

to Show Cause, it must prove the charges by clear and convincing

evidence. Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern & Company ,

670 So. 2d 932 (Fla. 1996).

10. Section 723.011, Florida Statutes (1996), provides in

pertinent part:

(1)(a ) In a mobile home park containing

26 or more lots, the park owner shall file a

prospectus with the division. Prior to

entering into an enforceable rental

agreement for a mobile home lot, the park

owner shall deliver to the homeowner a

prospectus approved by the division . . .

11. The Act requires actual delivery of a prospectus.

Hobe Assoc. v. Department of Business Regulation , 504 So. 2d

1301, 1305 (Fla. 1st DCA 1987) ; Sun Coast International, Inc. v.

Department of Business Regulation , 596 So. 2d 1118 (Fla. 1st DCA

1992).

12. The testimony of the witnesses, taken as a whole,

constitutes clear and convincing evidence that Orchid Acres did

not deliver a prospectus to Johnson when she purchased her

mobile home from Orchid Acres and entered into the related lot

rental agreement.

13. Rule 61B-31.001(12), Florida Administrative Code,

provides:

The park owner shall deliver the prospectus

to existing home owners prior to the renewal

of their rental agreements, or prior to

entering into a new rental agreement, or

prior to increasing the lot rental amount.

Once a home owner has been given a

prospectus, the park owner shall not be

required to provide another prospectus but

shall provide amendments, as described in

Rule 61B-30.004 and this rule.

14. The Division has shown by clear and convincing

evidence that Orchid Acres violated this Rule by raising

Johnson's rent in 1997 by $10.50 without ever having given her a

prospectus.

15. The Division is authorized to impose a penalty of up

to $5,000 for each day for each violation. Section

723.006(e)(1), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Division impose a civil penalty

of $5,000.

DONE AND ENTERED this 21st day of March, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

FLORENCE SNYDER RIVAS

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of March, 2001.

COPIES FURNISHED:

Janis Sue Richardson, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Brad Culverhouse, Esquire

Post Office Box 4392

Fort Pierce, Florida 33304

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ross Fleetwood, Director

Florida Land Sales, Condominiums

and Mobile Homes

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.