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.
Recommended Order on Wednesday, March 21, 2001.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF BUSINESS AND )
13PROFESSIONAL REGULATION , )
16DIVISION OF FLORIDA LAND SALES , )
22CONDOMINIUMS, AND MOBILE HOMES , )
27)
28Petitioner , )
30)
31vs. ) Case No. 00-3795
36)
37ORCHID ACRES MOBILE HOME PARK , )
43INC. , )
45)
46Respondent. )
48__________________________________)
49RECOMMENDED ORDER
51Pursuant to notice, a formal hearing was held in this case
62on February 15 and 16, 2001, at Fort Pierce, Florida, before
73Florence Snyder Rivas, a designated Administrative Law Judge of
82the Division of Administrative Hearings.
87APPEARANCES
88For Petitioner : Janis Sue Richardson, Esquire
95Department of Business and
99Professional Regulation
1011940 North Monroe Street, Suite 60
107Tallahassee, Florida 32399-2202
110For Respondent : Brad Culverhouse, Esquire
116Post Office Box 4392
120Fort Pierce, Florida 33304
124STATEMENT OF THE ISSUES
128The issues in this case are whether Respondent, Orchid
137Acres Mobile Home Park (Orchid Acres): (1) failed to deliver a
148prospectus prior to entering into an initial lot rental
157agreement in May 1996 with mobile homeowner Nancy Lee Johnson
167(Johnson) upon her purchase of a mobile home within Orchid
177Acres, in violation of Section 723.011, Florida Statutes; and
186(2) failed to deliver a prospectus to Johnson prior to
196increasing her lot rental amount $10.50 per month, effective
205April 1997 in violation of Rule 61B-31.001(12), Florida
213Administrative Code (FAC), as set forth in a Notice to Show
224Cause issued by Petitioner April 14, 2000.
231PRELIMINARY STATEMENT
233The Department of Business and Professional Regulation,
240Division of Florida Land Sales, Condominium and Mobile Homes
249(Division) served Orchid Acres with its Notice to Show Cause on
260April 14, 2000.
263Orchid Acres requested an informal hearing, which took
271place on August 2, 2000. At that time, it became clear that
283there were disputed issues of material fact, and the matter was
294referred to the Division of Administrative Hearings (DOAH) on
303September 11, 2000.
306On September 18, 2000, Orchid Acres filed a Suggestion of
316Bankruptcy. The undersigned entered an Order to Show Cause why
326DOAH's file should not be closed in light of the bankruptcy
337filing. The Division filed a timely response; Orchid Acres did
347not file a response. By Order dated October 13, 2000, Orchid
358Acres' Suggestion of Bankruptcy was treated as a motion to
368dismiss pursuant to 11 U.S.C. Subsection 362(a) and was denied.
378At the final hearing the Division presented the testimony
387of Johnson (mobile homeowner and complaining witness); Bernice
395Dering (Division Investigation Specialist) ; and Tracy Corbitt
402(Division Investigative Supervisor). The Division's Exhibits 1-
4095 were admitted into evidence.
414Orchid Acres presented the testimony of its Secretary-
422Treasurer, Stephen Deutsch. Orchid Acres' Exhibits A-E were
430admitted into evidence.
433The parties elected not to provide a transcript of the
443proceedings.
444During the course of the hearing, Orchid Acres made a
454variety of ore tenus motions. Orchid Acres' attorney was not
464prepared to make legal argument on the motions at the time of
476the final hearing. Although at least some of the motions were,
487on their face, not well-taken, the undersigned reserved ruling
496as to each motion and advised Orchid Acres that if it wished to
509pursue any or all of its motions, legal authority should be
520submitted in the form of a post-hearing memorandum of law or be
532incorporated into its proposed recommended order.
538By agreement, a March 6, 2001, deadline for post-hearing
547submissions was set.
550In a timely filing captioned "Defendant Orchid Acres Mobile
559Home Park, Inc.'s Renewed Objection to Agency Investigator's
567Report Being Admitted into Evidence Pursuant to the Business
576Record Exception and Motion to Strike All Testimony Adduced by
586the Agency in Regards to Said Report and Proposed Order," Orchid
597Acres elected to renew only two of its ore tenus motions.
608The first motion, as the caption suggests, is Orchid Acres'
618objection to use at hearing of the Division's investigative
627report. Questions concerning whether an agency's investigative
634file is properly admitted into evidence, and, if so, whether
644information contained therein may be properly considered over
652timely hearsay objection(s) are serious matters. This is
660especially true, where, as here, the agency's burden of proof is
671clear and convincing evidence.
675In the absence of a transcript, the undersigned has
684carefully reviewed contemporaneous hearing notes and is
691satisfied that the Division's investigative report was
698admissible for the limited purpose of supplementing, explaining,
706or buttressing admissible evidence. Section 120.58(1)(a),
712Florida Statutes; BellSouth Advertising and Publishing
718Corporation v. Unemployment Appeals Commission , 654 So. 2d 292
727(Fla. 5th DCA 1995) ; Harris v. Game and Fresh Water Fish
738Commission , 495 So. 2d 806 (Fla. 1st DCA 1986).
747However, the findings of fact in this proposed recommended
756order do not rely upon the contents of the Division's
766investigative report, even for the limited purpose authorized by
775statute. Rather, they are based entirely upon the undersigned's
784observations regarding the personal knowledge, demeanor, and
791credibility of witnesses who testified at the final hearing.
800The second matter addressed in Orchid Acres' March 6 filing
810is its ore tenus demand for attorney's fees. The demand was
821made for the first time at the final hearing. As a matter of
834law, the demand is untimely and could not be considered, even if
846Orchid Acres were ultimately to prevail in these proceedings.
855Stockman v. Downs , 573 So. 2d 835 (Fla. 1991). Additionally, in
866light of the findings of fact and conclusions of law reached in
878this Recommended Order, the request is moot.
885FINDINGS OF FACT
8881. The Division is the state agency responsible for
897regulating sellers of mobile homes pursuant to Chapter 723,
906Florida Statutes, the Florida Mobile Home Act, and the
915administative rules promulgated thereunder.
9192. Orchid Acres is a 73-lot mobile home park owner and
930seller of mobile homes in Fort Pierce, Florida.
9383. On April 16, 1996, Orchid Acres sold Johnson a mobile
949home in its Fort Pierce mobile home park. Contemporaneously
958with the sale of the mobile home, Orchid Acres leased to Johnson
970the lot on which the mobile home was situated.
9794. At the time of this transaction, Orchid Acres failed to
990deliver to Johnson a prospectus.
9955. On December 15, 1997, Orchid Acres notified its
1004residents, including Johnson, of a $10.50 per month lot rental
1014increase, to take effect April 1, 1997.
10216. At the time Orchid Acres notified Johnson of the
1031increase, it had not delivered a prospectus to her.
1040CONCLUSIONS OF LAW
10437. Pursuant to Chapter 723, Florida Statutes, the Florida
1052Mobile Home Act, and the administrative rules promulgated
1060thereunder, the Division is authorized to enforce those sections
1069of the Act and rules that apply to the rental, development, and
1081sale of mobile home parks. See Section 723.005, Florida
1090Statutes (1996). The Division may investigate possible
1097violations and bring actions to enforce those provisions of the
1107Act that come within the scope of its enforcement authority.
1117See id. Section 723.006, Florida Statutes.
11238. The Act applies to "any residential tenancy in which a
1134mobile home is placed upon a rented or leased lot in a mobile
1147home park in which ten or more lots are offered for rent or
1160lease." See id. Section 723.002, Florida Statutes.
11679. Because the Division seeks to impose an administrative
1176fine upon Orchid Acres for the violations alleged in its Notice
1187to Show Cause, it must prove the charges by clear and convincing
1199evidence. Department of Banking and Finance, Division of
1207Securities and Investor Protection v. Osborne Stern & Company ,
1216670 So. 2d 932 (Fla. 1996).
122210. Section 723.011, Florida Statutes (1996), provides in
1230pertinent part:
1232(1)(a ) In a mobile home park containing
124026 or more lots, the park owner shall file a
1250prospectus with the division. Prior to
1256entering into an enforceable rental
1261agreement for a mobile home lot, the park
1269owner shall deliver to the homeowner a
1276prospectus approved by the division . . .
128411. The Act requires actual delivery of a prospectus.
1293Hobe Assoc. v. Department of Business Regulation , 504 So. 2d
13031301, 1305 (Fla. 1st DCA 1987) ; Sun Coast International, Inc. v.
1314Department of Business Regulation , 596 So. 2d 1118 (Fla. 1st DCA
13251992).
132612. The testimony of the witnesses, taken as a whole,
1336constitutes clear and convincing evidence that Orchid Acres did
1345not deliver a prospectus to Johnson when she purchased her
1355mobile home from Orchid Acres and entered into the related lot
1366rental agreement.
136813. Rule 61B-31.001(12), Florida Administrative Code,
1374provides:
1375The park owner shall deliver the prospectus
1382to existing home owners prior to the renewal
1390of their rental agreements, or prior to
1397entering into a new rental agreement, or
1404prior to increasing the lot rental amount.
1411Once a home owner has been given a
1419prospectus, the park owner shall not be
1426required to provide another prospectus but
1432shall provide amendments, as described in
1438Rule 61B-30.004 and this rule.
144314. The Division has shown by clear and convincing
1452evidence that Orchid Acres violated this Rule by raising
1461Johnson's rent in 1997 by $10.50 without ever having given her a
1473prospectus.
147415. The Division is authorized to impose a penalty of up
1485to $5,000 for each day for each violation. Section
1495723.006(e)(1), Florida Statutes.
1498RECOMMENDATION
1499Based on the foregoing Findings of Fact and Conclusions of
1509Law, it is RECOMMENDED that the Division impose a civil penalty
1520of $5,000.
1523DONE AND ENTERED this 21st day of March, 2001, in
1533Tallahassee, Leon County, Florida.
1537___________________________________
1538FLORENCE SNYDER RIVAS
1541Administrative Law Judge
1544Division of Administrative Hearings
1548The DeSoto Building
15511230 Apalachee Parkway
1554Tallahassee, Florida 32399-3060
1557(850) 488- 9675 SUNCOM 278-9675
1562Fax Filing (850) 921-6847
1566www.doah.state.fl.us
1567Filed with the Clerk of the
1573Division of Administrative Hearings
1577this 21st day of March, 2001.
1583COPIES FURNISHED:
1585Janis Sue Richardson, Esquire
1589Department of Business and
1593Professional Regulation
15951940 North Monroe Street, Suite 60
1601Tallahassee, Florida 32399-2202
1604Brad Culverhouse, Esquire
1607Post Office Box 4392
1611Fort Pierce, Florida 33304
1615Hardy L. Roberts, III, General Counsel
1621Department of Business and
1625Professional Regulation
16271940 North Monroe Street
1631Tallahassee, Florida 32399-0792
1634Ross Fleetwood, Director
1637Florida Land Sales, Condominiums
1641and Mobile Homes
1644Department of Business and
1648Professional Regulation
16501940 North Monroe Street
1654Tallahassee, Florida 32399-0792
1657NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1663All parties have the right to submit written exceptions within
167315 days from the date of this Recommended Order. Any exceptions
1684to this Recommended Order should be filed with the agency that
1695will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 03/21/2001
- Proceedings: Recommended Order issued (hearing held February 15 and 16, 2001) CASE CLOSED.
- PDF:
- Date: 03/21/2001
- Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
- PDF:
- Date: 03/13/2001
- Proceedings: Petitioner`s Response to Respondent`s Post-Hearing Renewed Objection to Admission of Agency Investigator`s Report and to Strike All Testimony Adduced by the agency in Regards to Said Report filed.
- PDF:
- Date: 03/06/2001
- Proceedings: 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 (filed via facsimile).
- Date: 02/26/2001
- Proceedings: Exhibits filed.
- PDF:
- Date: 02/20/2001
- Proceedings: Notice of Filing Petitioner`s Notary Affidavit (filed via facsimile).
- Date: 02/15/2001
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
- PDF:
- Date: 01/22/2001
- Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for February 15 and 16, 2001; 2:00 p.m.; Fort Pierce, FL).
- PDF:
- Date: 01/22/2001
- Proceedings: Letter to Judge F. Rivas from J. Richardson In re: available dates for hearing (filed via facsimile).
- PDF:
- Date: 01/17/2001
- Proceedings: Notice of Substitution of Counsel (filed by J. Richardson via facsimile).
- PDF:
- Date: 11/22/2000
- Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for January 22, 2001; 9:00 a.m.; Fort Pierce, FL).
- PDF:
- Date: 11/14/2000
- Proceedings: Letter to S. Deutsch from S. Edmonds In re: order of prehearing instructions (filed via facsimile).
- PDF:
- Date: 11/09/2000
- Proceedings: Amended Notice of Hearing issued. (hearing set for November 20, 2000; 8:30 a.m.; Fort Pierce, FL, amended as to Room Number ).
- PDF:
- Date: 10/24/2000
- Proceedings: Notice of Hearing issued. (hearing set for November 20, 2000; 8:30 a.m.; Fort Pierce, FL,).
- PDF:
- Date: 10/23/2000
- Proceedings: Notice of Withdrawal of Attorney Pursuant to Bankruptcy Proceeding filed.
- PDF:
- Date: 10/13/2000
- Proceedings: Order on Pending Motions and Filings and Setting Final Hearing issued (hearing set for November 20, 8:30 a.m., at a location to be stated in a separate order).
- PDF:
- Date: 09/29/2000
- Proceedings: Order to Show Cause issued. (parties to respond within ten days from the date of this order)
- PDF:
- Date: 09/21/2000
- Proceedings: Notice of Withdrawal of Attorney Pursuant to Bankruptcy Proceedings filed by S. Squire.
- PDF:
- Date: 09/18/2000
- Proceedings: Ltr. to S. Edmonds from S. Squire In re: no longer authorized to represent Orchid Acres Mobile Home Park; Suggestion of Bankruptcy (In the Circuit Court of the Nineteenth Judicial Circuit in and for St. Lucie River County, Florida) filed.
- PDF:
- Date: 09/15/2000
- Proceedings: Petitioner`s Response to Revised Initial Order (filed via facsimile).
- Date: 09/11/2000
- Proceedings: Initial Order issued.
Case Information
- Judge:
- FLORENCE SNYDER RIVAS
- Date Filed:
- 09/11/2000
- Date Assignment:
- 09/11/2000
- Last Docket Entry:
- 07/15/2004
- Location:
- Fort Pierce, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Brad Culverhouse, Esquire
Address of Record -
Steven Deutsch
Address of Record -
Janis Sue Richardson, Esquire
Address of Record -
Steven Squire, Esquire
Address of Record