99-002050 Department Of Health vs. Gary L. Frierson And Alice H. Frierson Status: Closed Recommended Order on Thursday, September 30, 1999.

Summary: Department showed that notwithstanding attempt to conceal ownership, Respondents operated residential migrant housing in at least two mobile homes without permit and were, therefore, subject to fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. )

) Case No. 99-2050

GARY L. FRIERSON and ALICE H. )

FRIERSON, )

)

Respondents. )

___________________________________)

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 99-2112

)

ALICE H. FRIERSON, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

A hearing was held in this case in Arcadia, Florida, on

September 3, 1999, before Arnold H. Pollock, an Administrative

Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Susan Mastin Scott, Esquire

Department of Health

Post Office Box 9309

Ft. Myers, Florida 33902-0309

For Respondent: James M. Beesting, Esquire

207 Eas t Magnolia Street

Suite B

Arcadia, Florida 34266

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether the

Respondents, individually and jointly, on March 24, 1999,

established, maintained, or operated migrant housing on their

properties located on Rosebud Lane in Arcadia, Florida, without

first obtaining permits from the Department of Health.

PRELIMINARY MATTERS

By Citation filed on March 30, 1999, in DOAH Case No. 99-

2050, the Department of Health charged Respondents Gary L.

Frierson and Alice H. Frierson, his wife, with unlawfully

operating residential migrant housing at 1375 Southwest Rosebud

Drive in Arcadia, Florida, on March 24, 1999, without first

obtaining a permit to do so from the Department, in violation of

Section 381.0081, Florida Statutes, and Rule 64F-14.004, Florida

Administrative Code, and sought to impose a $500.00 fine.

By a second Citation filed the same day in DOAH Case No. 99-

2112, the Department charged Alice H. Frierson individually with

unlawfully operating migrant residential housing at 1408 S.W.

Rosebud Drive in Arcadia, Florida, on

March 24, 1999, without first obtaining a permit to do so from

the Department, in violation of the same cited statute and rule,

and sought to impose the same fine.

Both Respondents requested a formal hearing on the

allegations and this hearing ensued after the cases were

consolidated. At the hearing, the Department presented the

testimony of Jack L. Sikes, an environmental specialist II with

the DeSoto County Public Health Unit; Robert B. Schultz,

supervisor of the DeSoto County Public Health Unit's septic

program; and Steven Lynn Sams, Director of Environmental Health

Services and an environmental specialist II for the DeSoto County

Health Department. Petitioner also introduced Petitioner's

Exhibits 1 through 14.

Respondent Gary Frierson testified both in his own behalf

and for Respondent Alice H. Frierson. Respondents also presented

the testimony of Sybil Swisher Gianguzzo, personal representative

of the estate of B. Y. Barrera, who previously purchased property

from the Respondents; and Juliana Barrientos, Kathleen Drymon,

Cecelia Dello, Sebastian Damaso, Cuauhtemo Gavila, and Fernando

Nunez, all of whom have purchased or are currently purchasing

property from the Friersons. Respondents also introduced

Respondent's Exhibits A through E, I, J, M, N, O, R and T.

A transcript of the proceedings was not furnished. However,

subsequent to the hearing, counsel for the parties submitted

matters in writing which were carefully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the State

of Florida's Department of Health, and the DeSoto County Public

Health Unit were the agencies in DeSoto County, Florida,

responsible for the management and permitting of migrant labor

camps and residential migrant housing within that county.

2. Jack L. Sikes has been an environmental specialist II

with the DeSoto County Health Unit for 18 years. His duties

comprise the management of the migrant housing program within the

county, including permitting and inspection of migrant

residential housing units and camps. Migrant housing is defined

within the Health Department as any structure housing five or

more workers engaged in seasonal work, and who have changed their

residence during the preceding year. Inspection standards

applied to migrant housing relate to health and safety issues,

such as cleanliness, refrigeration, hot and cold water, lights,

bedding, and structural problems of the facility which impact

safety. For the 1998-1999 growing year, permits were issued for

108 migrant worker camps in the county. In the 1997-1998 year

there were only 16-17 permits issued for camps. The increase is

due to state emphasis on increased safety for migrant housing.

3. By far the greatest percentage of migrant workers are of

Hispanic origin. The migrant population increases significantly

in DeSoto County during the citrus harvest period which extends

from November through June. On March 23, 1999, Mr. Sikes and a

co-worker, as a part of a continuing search for un-permitted

migrant housing, conducted a drive-through inspection of several

mobile homes situated on Southwest Rosebud Lane in Arcadia,

Florida. Eight of the lots on Rosebud Lane have mobile homes on

them while the other lots are vacant. On this visit, Mr. Sikes

did not see any of the indications normally present when a

structure is used for a family home such as toys in the yard,

laundry drying, etc. As a result, he suspected the homes, some

of which were obviously occupied, were being used as migrant

housing.

4. The next day, March 24, 1999, at approximately 5:00

p.m., Mr. Sikes and a Spanish-speaking inspector, Robert Schultz,

returned to the area and went to the structure located at 1408

Southwest Rosebud Lane, where in response to the inspectors'

knock, the door was opened by an Hispanic individual who

identified himself as Mario Hernandez. Through the

interpretation services of Mr. Schultz, Mr. Hernandez indicated

that he lived at that house with his five cousins, all of whose

names were recorded on the "Documentation of Hand Laborer" form

on which the answers to the interview questions were written.

5. As recounted by Mr. Sikes, Mr. Hernandez spoke for the

group as his cousins were not present when the interview began.

Mr. Hernandez indicated that he and his cousins arrived in DeSoto

County from another location to pick oranges during the first

week of November 1998 and took up residence at 1408 Southwest

Rosebud Lane. The mobile home they were occupying was large

enough to be permitted for six residents. Mr. Hernandez also

indicated he and his cousins were renting the mobile home but did

not know from whom. Though this statement is hearsay, it is

corroborated by an examination of the electricity billing records

and other independent evidence of record. A four-fold November

increase in electric usage over the mid-October 1998 electric

bill indicates the structure was most likely unoccupied before

November 1998 but was occupied for several months thereafter. In

fact, just after the inspectors left the home, a bus discharged

several other men who appeared to be migrant workers and four of

them went in the direction of 1408.

6. When Mr. Sikes and Mr. Schultz went to 1375 Southwest

Rosebud Lane they found several Hispanic men getting out of a

utility van and going into the mobile home. The inspectors went

to the house and were invited in. Mr. Schultz translated.

During the course of the conversation, the men indicated they had

just returned from the fields where they worked picking oranges.

They said they all lived in the mobile home with a sixth man who

was not present at the time. They also indicated they had come

to DeSoto County from Mexico around the first of the year to pick

oranges, and had rented the mobile home from someone whose name

they did not know. When the picking season was completed in

DeSoto County, they intended to move on to other farm work

elsewhere.

7. The inspectors spoke with the driver of the bus who

identified himself as a crew leader for Turner Foods for whom the

migrant laborers also worked. The driver attempted to interfere

with the inspectors' questioning of the workers who got off the

bus, and as a result, the inspectors requested that he leave the

area. Within five minutes of the driver's departure, Respondent

Gary L. Frierson drove up and asked Mr. Sikes what was going on.

8. Mr. Sikes advised Mr. Frierson that he and Mr. Schultz

were conducting a housing investigation and that based on what

information they had gathered, Mr. Frierson needed to obtain a

residential migrant housing permit for the properties.

Mr. Frierson did not deny he owned the property, but, by the same

token, did not admit to owning it either. Mr. Frierson said he

was trying to sell the property, but, due to tax considerations,

was restricted to selling a limited number of parcels per year.

9. Taken together, the evidence of record is abundantly

clear that the occupants of both 1375 and 1408 Southwest Rosebud

Lane on March 24, 1999, were migrant farm workers, and the

properties were being used as residential migrant housing without

being permitted as such. The question remains, however, as to

who owned the property and was utilizing it in the fashion

described.

10. The public records of DeSoto County reflect that

Alice H. Frierson is the owner of record of the property located

at 1408 Southwest Rosebud Lane, and Gary L. and Alice H.

Frierson, jointly, are the owners of record of the property

located at 1375 Southwest Rosebud Lane. Respondents presented

several documents in an effort to establish they did not own the

properties in question. As to Lot 14 and Lot 22, Bokara Acres,

unrecorded Agreements for Deed dated December 31, 1998, between

both Mr. and Mrs. Frierson and Wayne Radloff as to Lot 14, and

Ricardo Sanchez as to Lot 22, provide for a future transfer of

title to each buyer, providing the buyer pays all amounts due on

the purchase price. Identical Agreements for Deed were also

issued the same date to Mr. Radloff for four other properties in

the subdivision.

11. As to Lot 14, a second Agreement for Deed, dated

January 1, 1999, purports to transfer a future interest in the

same property to Fernando Gomez, and on that same date,

Mr. Radloff executed an Assignment of Agreement for Deed to

Fernando Gomez. On January 9, 1999, Mr. Radloff also executed a

Quit-Claim Deed for Lots 13 and 14 to Gary L. and Alice H.

Frierson.

12. As to Lot 22, on March 28, 1999, Mr. Gomez executed a

Rescission of Agreement for Deed and Mutual Release to the

Friersons in which the December 31, 1998, transfer of the

property to Gomez was rescinded, thereby restoring title to Mr.

and Mrs. Frierson. This is four days after the visit on March

24, 1999 by the inspectors, Mr. Sikes and Mr. Schultz.

13. By none of the documents, however, did legal title

transfer from Mr. and Mrs. Frierson to Mr. Radloff, Mr. Gomez, or

Mr. Sanchez. In fact, Mr. Frierson admitted that he collected

the rent from the occupants of both parcels weekly from January

through March 24, 1999, though he indicated he had no idea which

individuals occupied which property. All Mr. Frierson could

recall was that a Hispanic man would come out to the truck each

time Mr. Frierson went there and beeped his horn, and would give

him the money due. He could not identify the man or even say if

it was the same man each time.

14. While the Department contends that the unrecorded

Agreements for Deed are a sham designed to isolate Respondents

from their legal responsibility to obtain permits for the

property which they operate as residential migrant housing,

Respondent vehemently denied this and produced a series of

witnesses who, over several years past, have purchased real

estate from them through the same process. None of these

individuals experienced any difficulty in obtaining title to the

property when they completed payment in full.

15. It should be noted, however, that while these

individuals have had no difficulty with the transactions, they

are permanent residents of the area, and the situation regarding

the parcels in question differs considerably. On none of the

transfer documents in issue are the name and address of the

person who prepared the document legible, and other technical

deficiencies make the agreements un-recordable. When those

factors are considered in conjunction with the coincidental

concurrence of the documents with the arrival of the migrant

workers, and the fact that all interest in the property reverted

to Mr. and Mrs. Frierson immediately after the date of the

Department inspection, the inescapable conclusion is that the

transfers to Mr. Radloff/Mr. Gomez and Mr. Sanchez were not bona

fide transfers of an interest in property, but were an effort to

obscure the actual ownership of the property to avoid the

responsibilities which go with the ownership of residential

migrant housing.

16. Other evidence of record supports that conclusion. For

example, Respondents presented no documentary evidence to

indicate they had ever received any of the weekly payments called

for under the Agreements for Deed as to either property but claim

that they received a down payment, and that Mr. Frierson

collected "rent" each week. For the five properties sold to Mr.

Radloff/Mr. Gomez for a total consideration of $63,000, the total

down payment was $300. For the property sold to Sanchez for

$20,000, the down payment was $100. Respondent admits he has no

records to show the down payment or the monthly rental payments

he received on either property. Respondents paid the electricity

for both properties during the entire time the properties were

under the Agreements for Deed through their account with the

utility company and were not reimbursed. They provided water to

1375 Southwest Rosebud Lane free of charge from a well on

adjacent property they owned. They paid property, casualty,

flood, and hurricane insurance for both properties throughout the

entire period and were not reimbursed. They did not advise the

county property tax office that they had transferred interest in

the property to someone else. Though Respondent gave a key to

each property to the respective "purchaser," he never saw either

at the property. All but one of the properties in which an

interest was transferred to Mr. Radloff, Mr. Gomez, or Mr.

Sanchez, are vacant and the location of the "buyers" is unknown.

17. Mr. Frierson indicated that he frequently sells

property by unrecorded Agreement for Deed. This is standard

procedure for him. He claims he paid the electric bills on the

properties when they were previously used as rental properties,

and he did not cancel the service -- a thing he has done in the

past when the buyer is short of cash or cannot pay the power

company deposit. In one case under consideration here, he

claims, the tenant paid more than was called for, so he used the

accrued overpayment to pay the electric bill. As for insurance,

he continued his coverage because he wasn't sure the buyer could

get coverage.

18. Respondent asserts he does not want to operate migrant

housing and has told this to Mr. Sams of the Health Department.

He wants single families, and the family which occupied one of

the properties in issue on June 7, 1999, went in after the

rescission of the Agreement for Deed.

19. Mr. Frierson claims the family's rental business is far

less formal than a normal rental operation. Many renters who

terminate usually do so by leaving without notice. Many of the

renters are Hispanics, whom he describes as quite naïve about

paper work. When Mr. Sanchez advised him he wanted out of their

agreement, Respondent prepared a Rescission and Release and a

Quit-Claim Deed, though he admits the use of both is probably

overkill.

20. As to the transactions with Mr. Radloff, Respondent

claims he entered into it on the basis of advice from his tax

accountant to avoid a higher tax obligation. When he found that

he didn’t have the tax problem after all, he bought the lots back

and transferred them to Mr. Gomez, which, he contends was his

original intention. Mr. Frierson contends that the money paid to

him by Mr. Radloff actually came from Mr. Gomez, which, to

Respondent, explains the concurrent transfers. He also contends

that shortly after the transfer, Mr. Gomez came to him and wanted

out of the deal, as had Mr. Sanchez, and he, Mr. Frierson,

agreed. Respondent claims, however, that he had no idea of how

the properties were used when Mr. Gomez and Mr. Sanchez had

control of them. He overlooks the fact that he collected the

rents weekly during that period.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case. Section 120.57(1), Florida Statutes.

22. The Department of Health cited Respondents for

operating residential migrant housing at 1375 and 1408 Southwest

Rosebud Lane in Arcadia, Florida, without permits to do so, in

violation of Section 381.008, Florida Statutes, and seeks to

impose an administrative fine of $500 in each case. Operating a

residential migrant housing unit without first obtaining a permit

is prohibited by Section 381.008(2), Florida Statutes. The

Department has the burden to prove its allegations by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996).

23. In addition to the criminal sanctions provided, supra ,

Section 381.008(4), Florida Statutes, permits the Department to

impose a fine of up to $1,000 for each violation. This section

also provides for the imposition of a fine against the owner of

the property even if someone other than the owner is responsible

for committing the offense and the owner knew, or should have

known upon reasonable inquiry, that the section was being

violated. For this reason, assuming the property was being used

as residential migrant housing by Sanchez or Gomez after

Respondents transferred an interest in the property to them,

under the law, Respondent were still the owners of legal title to

the property and had conveyed only an interest in it under the

Agreement for Deed. Under the circumstances of this case, they

clearly knew or should have known that the property, in which

they maintained an ownership interest, was being used as migrant

housing.

24. Section 381.008(8), Florida Statutes, defines

residential migrant housing as:

. . . a building, structure, barracks, or

dormitory, and the land appertaining thereto,

that is rented or reserved for occupancy by

five or more migrant workers . . .

and a "migrant farm worker" is defined by Section 381.008(4),

Florida Statutes, as a person who is or has been employed in hand

labor operations in planting, cultivating, or harvesting

agricultural crops within the last 12 months and who has changed

residence for purposes of employment in agriculture within the

last 12 months. Here, while much of the evidence regarding the

occupants of the properties in issue is circumstantial, ample

corroborative evidence exists to make it clear that the property

was being used as residential migrant housing. In addition,

though Respondents have attempted to establish that they were not

the owners of the property at the time the parcels were being so

used, the evidence of record clearly contradicts that assertion.

25. Since the properties were being used as residential

migrant housing at the time of the inspection, and since the

evidence of record is clear and convincing that the Respondent's

were the legal owners of the properties at the time they were

being so used, the suggested fines are well within the limit

authorized by statute for that purpose and are appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Department of Health enter a

final order in this matter imposing administrative fines of

$500.00 on Gary L. and Alice H. Frierson for the proven violation

at 1375 Southwest Rosebud Lane, and an additional $500 fine on

Alice H. Frierson for the proven violation at 1408 Southwest

Rosebud Lane, both in Arcadia, Florida.

DONE AND ENTERED this 30th day of September, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

ARNOLD H. POLLOCK

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 30th day of September, 1999.

COPIES FURNISHED:

Susan Mastin Scott, Esquire

Department of Health

Post Office Box 9309

Ft. Myers, Florida 33902-0309

James M. Beesting, Esquire

207 East Magnolia Street

Suite B

Arcadia, Florida 34266

Angela T. Hall, Agency Clerk

Department of Health

2020 Capital Circle, Southeast

Bin A02

Tallahassee, Florida 32399-1701

Pete Peterson, General counsel

Department of Health

2020 Capital Circle, Southeast

Bin A02

Tallahassee, Florida 32399-1701

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.