99-000780 Florida Land Sales, Condominiums, And Mobile Homes vs. George Lempenau, President; Four Marna, Inc.; And Arcadia Peace River Campground Status: Closed Recommended Order on Wednesday, June 16, 1999.

Summary: Petitioner presented sufficient evidence to establish facts upon which its allegations were based by clear and convincing evidence that Respondent had violated Section 723.037 (1), Florida Statutes.

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. 99-0780

)

GEORGE LEMPENAU, PRESIDENT, )

FOUR MARNAN, INC., ARCADIA )

PEACE RIVER CAMPGROUND, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law

Judge for the Division of Administrative Hearings, held a formal

hearing in this matter on April 26, 1999, in Arcadia, Florida.

APPEARANCES

For Petitioner: Eric H. Miller, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: George Lempenau, Qualified Representative

2998 Northwest Highway 70

Arcadia, Florida 34266

STATEMENT OF THE ISSUE

Did Respondent violate Section 723.037(1), Florida Statutes,

by failing to give timely written notice of rent increase on

mobile home lots, and, if so, what penalty should be imposed?

PRELIMINARY STATEMENT

By a Notice to Show Cause issued on February 1, 1999, the

Department of Business and Professional Regulation, Division of

Florida Land Sales, Condominiums, and Mobile Homes (Division)

made the following allegations: 1. Respondent Four Marnan,

Inc., failed to pay annual fees, to the Division, for the years

1996 and 1997 by December 31 of each year, in violation of

Section 723.007, Florida Statutes; and 2. Respondent implemented

and collected a lot rent increase of $30 a month without giving

written notice of at least 90 days prior to any increase, in

violation of Subsection 723.037(1), Florida Statutes. By letter

dated February 5, 1999, Respondent denied the allegation

contained in the Notice to Show Cause and requested a formal

hearing. Additionally, Respondent challenged the Division's

authority to regulate its business. By letter dated

February 18, 1999, the Department referred this matter to the

Division of Administrative Hearings for the assignment of an

Administrative Law Judge and for the conduct of a formal hearing.

On March 12, 1999, the Division filed an Amended Notice to Show

Cause and Petitioner's Motion to Amend Notice to Show Cause.

The Amended Notice to Show Cause dismissed the first

allegation contained in the Notice To Show Cause and added the

following allegation: Respondent, Four Marnan, Inc., implemented

and collected a lot rent increase of $15.00 per month, effective

on January 1, 1998, without giving written notice at least 90

days prior to any increase, in violation of Subsection

723.037(1), Florida Statutes. Without objection from the

Respondent, the motion to amend was granted and the matter

proceeded forward on the Amended Notice to Show Cause as the

charging document.

At the hearing, the Division presented the testimonies of

Charles Collins, Arthur McRae, and John Floyd. The Division's

Exhibits Numbered 2-8 were received as evidence. Respondent

presented the testimony of George Lempenau but offered no

documentary evidence. The Final Order in Department of Business

and Professional Regulation, Division of Florida Land Sales,

Condominiums, and Mobile Homes vs. Four Marnan, Inc., d/b/a

Arcadia Peace River Campground , Docket No. 98-007, dated June 26,

1998, was officially recognized.

There was no transcript of this proceeding filed with the

Division of Administrative Hearings. Petitioner, the Division,

filed its Proposed Recommended Order. Respondent filed a two-

page letter which will be considered as its Proposed Recommended

Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of fact

are made:

1. At all times pertinent to this proceeding, Respondent

owned the Arcadia Peace River Campground (Campground) located in

DeSoto County, Florida, whose mailing address is 2988 Northwest

Highway 70, Arcadia, Florida 34266.

2. From October 3, 1996 through March 21, 1998, the

Campground had 14 or more of its mobile home lots occupied by

mobile homes.

3. From October 3, 1996 through March 21, 1998, seven or

more of the mobile homes located in the Campground were owned by

residents of the Campground other than Respondent. Furthermore,

these mobile homes were placed on lots leased by the mobile home

residents from the Campground.

4. From October 3, 1996 through March 21, 1998, four or

more of the mobile homes located in the Campground were owned by

Respondent's employees and placed on lots in the Campground. The

rental for these lots was considered as part of the employees'

compensation.

5. On January 1, 1997, Respondent implemented and began

collecting a $30.00 increase in the monthly lot rental from those

mobile home owners leasing spaces in the Campground.

6. Respondent gave the affected mobile home owners written

notice of the January 1, 1997, monthly lot rental increase on

November 26, 1996, some 36 days prior to the effective date

(January 1, 1997) of the increase. No other notice of the lot

rental increase was given to the affected mobile home owners.

7. Respondent collected the $30.00 lot rental increase from

the affected mobile home owners during the period from January 1,

1997, through March 21, 1998.

8. On January 1, 1998, Respondent implemented and began

collecting a $15.00 increase in the monthly lot rental from

those mobile home owners leasing spaces in the Campground.

9. Respondent gave the affected mobile home owners written

notice of the January 1, 1998, monthly lot rental increase on

October 28, 1997, some 65 days prior to the effective date of the

increase.

10. Respondent collected the $15.00 monthly lot rental

increase from January 1, 1998, through March 21, 1998.

11. Each of the following affected mobile home owners paid

both the $30.00 monthly lot rental increase from January 1, 1997,

through March 21, 1998 and the $15.00 monthly lot rental increase

from January 1, 1998, through March 21, 1998:

(a) Charles Collins;

(b) Arthur P. McRae;

(c) Harold Martin;

(d) Maurice W. Jackson;

(e) Robert F. Martin;

(f) Irene K. Apps and;

(g) Reba Conner.

12. On March 21, 1998, the Peace River flooded the

Campground. The mobile homes located in the Campground were

damaged. Subsequently, the mobile homes were removed from the

Campground, purchased by Respondent, or were purchased by one or

more new employees of Respondent.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.57(1), Florida Statutes.

14. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal.

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 2d DCA 1981). To meet this burden, the

Division must establish facts upon which its allegations are

based by clear and convincing evidence. Department of Banking

and Finance, Division of Securities and Investor Protection vs.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996).

15. Section 723.002(1), Florida Statutes, provides in

pertinent part as follows:

The provisions of this chapter apply to any

residential tenancy in which a mobile home is

placed upon a rented or leased lot in a

mobile home park in which 10 or more lots are

offered for rent or lease. . . . (Emphasis

furnished)

16. The Campground comes within the definition of "mobile

home park" as that term is defined in Section 723.003(6), Florida

Statutes, and at all times pertinent to these proceedings, the

Campground was renting or leasing 10 or more spaces for the

placement of "mobile homes" as that term is defined in Section

723.003(3), Florida Statutes. Without question, the Respondent

comes under the jurisdiction of the Division to be regulated

under Chapter 723, Florida Statutes. See Department of Business

and Professional Regulation, Division of Florida Land Sales,

Condominiums, and Mobile Homes vs. Four Marnan, Inc., d/b/a

Arcadia Peace River Campground , Docket No. 98-007, Final Order

entered June 26, 1998.

17. Section 723.037(1), Florida Statutes, provides in

pertinent part as follows:

(1) A park owner shall give written notice

to each affected mobile home owner and the

board of directors of the homeowners'

association, if one has been formed, at least

90 days prior to any increase in lot rental

amount or reduction in services or utilities

provided by the park owner or change in rules

and regulations. (Emphasis furnished)

Respondent failed to comply with Section 723.037(1), Florida

Statutes, by imposing a lot rental increase on January 1, 1997,

and January 1, 1998, without a timely notice of that increase to

the affected mobile home owners in the Campground.

18. Section 723.006(5) and (9), Florida Statutes, provides

in pertinent part as follows:

In performing its duties, the division has

the following powers and duties:

* * *

(5) Notwithstanding any remedies available

to mobile home owners, mobile home park

owners, and homeowners' associations, if the

division has reasonable cause to believe that

a violation of any provision of this chapter

or any rule promulgated pursuant hereto has

occurred, the division may institute

enforcement proceedings in its own name

against a developer, mobile home park owner,

or homeowners' association, or its assignee

or agent, as follows:

* * *

(b) The Division may issue an order

requiring the mobile home park owner, or its

assignee or agent, to cease and desist from

an unlawful practice and take such

affirmative action as in the judgment of the

division will carry out the purposes of this

chapter. The affirmative action may include

the following:

1. Refunds of rent increases , improper fees,

charges and assessments, including pass-

throughs and pass- ons collected in violation

of the terms of this chapter.

* * *

3. Reasonable action necessary to correct a

statutory or rule violation.

(c) In determining the amount of civil

penalty or affirmative action to be imposed

under this section, if any, the division must

consider the following factors

1. The gravity of the violation.

2. Whether the person has substantially

complied with the provisions of this chapter.

3. Any action taken by the person to correct

or mitigate the violation of this chapter.

* * *

(e)1. The division may impose a civil

penalty against a mobile home park owner or

homeowners' association, or its assignee or

agent, for any violation of this chapter, a

properly promulgated park rule or regulation,

or rule or regulation promulgated pursuant

hereto. A penalty may be imposed on the

basis of each separate violation and, if the

violation is continuing one, for each day of

continuing violation, but in no event may the

penalty for each separate violation or for

each day of continuing violation exceed

$5,000. . . .

* * *

(9) A minor violation means a violation

which does not endanger the health, safety,

or welfare of mobile home residents, which

does not involve the failure to make full and

fair disclosure, or which does not cause

economic harm to mobile home park residents .

(Emphasis furnished)

19. Although Respondent's failure to give a timely notice

of the lot rental increase does not fall within those violations

listed in Rule 61B-35.002, Florida Administrative Code as being

minor violations, the rule does not preclude the Division from

considering other violations as minor violations provided those

violations fall within the definition of a minor violation as

defined in Section 723.006(9), Florida Statutes. However, since

Respondent's failure to give the affected mobile home owners a

timely notice of lot rental increase resulted in his failure to

make full and fair disclosure and therefore resulted in economic

harm to the affected mobile home owners, it does not constitute a

minor violation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, and having specifically reviewed the factors set out in

Section 723.006(5)(c), Florida Statutes, it is recommended that

the Division enter a final order assessing Respondent with an

administrative fine of $500.00. It is further recommended that

Respondent be ordered to refund to Charles Collins, Arthur P.

McRae, Harold Martin, Maurice W. Jackson, Robert F. Martin, Irene

K. Apps, and Reba Conner all sums collected from these

individuals as increases in lot rental during the period of

January 1, 1997 through March 21, 1998.

DONE AND ENTERED this 16th of June, 1999, in Tallahassee,

Leon County, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of June, 1999.

COPIES FURNISHED:

Philip Nowick, Director

Division of Florida Land Sales,

Condominiums, and Mobile Homes

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

William Woodyard, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Eric H. Miller, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-1007

George Lempenau, Qualified Representative

2998 Northwest Highway 70

Arcadia, Florida 34266

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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.