88-000815RP Florida Manufactured Housing Association, Inc., And Gerry Barding vs. Division Of Land Sales, Condominiums, And Mobile Homes Status: Closed DOAH Final Order on Friday, July 1, 1988.

Summary: Proposed rule held invalid because ""substantially"" cannot be determined in a four sub-part listing

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA MANUFACTURED HOUSING )

ASSOCIATION, INC., a Florida )

incorporated association not for )

profit, and GERRY BARDING, an )

individual, )

)

Petitioners, )

)

vs. ) CASE NO. 88-0815RP

)

DEPARTMENT OF BUSINESS REGULATION, )

DIVISION OF FLORIDA LAND SALES, )

CONDOMINIUMS AND MOBILE HOMES, )

)

Respondent. )

___________________________________)

FINAL ORDER

Upon due notice, formal hearing was held in this cause before Ella Jane P.

Davis, a duly designated hearing officer of the Division of Administrative

Hearings, on March 21, 1988, in Tallahassee, Florida.

APPEARANCES

For Petitioner: David D. Eastman, Esquire

Post Office Box 669

318 North Monroe Street

Tallahassee, Florida 32302

For Respondent: Thomas Presnell, Esquire

The Johns Building

725 South Bronough Street

Tallahassee, Florida 32393-1007

BACKGROUND AND PROCEDURE

The Petitioner, Florida Manufactured Housing Association, Inc. (FMHA),

filed a petition on February 19, 1988, with the Division of Administrative

Hearings, pursuant to Section 120.54(4), F.S. (1987), challenging the validity

of a proposed rule of the Respondent, Department of Business Regulation (DBR)

which had been published in Volume 14, No. 4, Florida Administrative Weekly on

January 19, 1988.

At the present time, Rule 7D-32.005(4), Florida Administrative Code

provides that:

A request for mediation or arbitration may be

denied if the request does not comply with

Chapter 723 Florida Statutes and these rules.

DBR has noticed its intention to amend Rule 7D-32.005(4), Florida

Administrative Code to, read as follows:

A request for mediation or arbitration shall

be denied if the request does not substantially

comply with Chapter 723, Florida Statutes and

these rules.

A hearing was noticed in this cause for March 14, 1988. By stipulation of

the parties, the hearing date was continued until March 21, 1988. At the formal

hearing on that date, the Petitioner presented oral testimony of Mr. Frank

Williams, Executive Director of FMHA, and the parties adopted a prehearing

stipulation encompassing stipulated facts and identifying issues of law.

In addition to those stipulated facts set forth hereafter, the parties have

stipulated to other facts, subject to Respondent's objection that facts relating

to past practices of the Division in reviewing mediation requests under an

existing rule are irrelevant to the issues raised by this petition to determine

the invalidity of a proposed rule. Respondent's practices in reviewing

mediation requests in the past are relevant at least as to standing.

Accordingly, Respondent's objection to that evidence is denied.

No transcript was provided. Both parties have submitted proposed findings

of fact and conclusions of law within the stipulated time frame, the findings of

fact of which are ruled upon in the appendix to this final order, pursuant to

Section 120.59(2), F.S..

FINDINGS OF FACT

1. The Petition filed herein, among other matters, alleges, in pertinent

part, that:

This is a petition for determination of the

invalidity of a proposed rule of the

Department of Business Regulation, Division

of Florida Land Sales, Condominiums, and

Mobile Homes, pursuant to Section

120.54(4), Fla. Stat. (1987).

6. The 1,000 members of the FMHA may be sub-

jected to this rule and Gerry Barding as an

individual are substantially affected in that

the rule has the effect of allowing the DBR to

schedule a mediation or arbitration if the

request "does not substantially comply with

Chapter 723, Fla. Stat., and these rules."

7. Section 723.037 limits the substantial

rights of a party who fails to mediate or

arbitrate a dispute under Section 723.037

with the DBR . . . .

* * *

The substantial rights of the members of FMHA

will be affected if the DBR is allowed to grant

mediation or arbitration requests when the

mobile home owners have not complied with the

provisions of Section 723.037, Fla. Stat. (1987).

8. The proposed rule of the DBR enlarges,

modifies, or otherwise contravenes the statu-

tory authority granted by Chapter 723, Fla.

Stat. (1987), and is unreasonable, arbitrary,

and capricious.

2. Petitioner, FMHA, is an incorporated association not for profit whose

members include approximately 1,000 mobile home park owners.

3. All of the mobile home park members of FMHA own mobile home parks which

contain greater than 25 mobile home lots which are offered for lease.

4. A substantial number of the members of the FMHA on a regular basis

annually increase the lot rental amount in their mobile home parks.

5. The residents of the FMHA members' mobile home parks are entitled to

and may request mediation of lot rental amount increases pursuant to Sections

723.037 and 723.038, F.S. (1987), and the rules of the Florida Department of

Business Regulation.

6. Requests for mediation have been made in the past by homeowners

residing in FMHA members' mobile home parks and many of those mediation

proceedings have not yet been completed.

7. Petitioner, Gerry Barding, is the owner of Pinelake Village Mobile Home

Park located in Jensen Beach, Florida.

8. In the past, Mr. Barding has increased the lot rental amount in

Pinelake Village Mobile Home Park and expects to do so in the future. In

September 1987, a request for mediation from Pinelake Village residents was not

filed within 30 days of the meeting between the park owner and the residents.

The Department of Business Regulation, Division of Florida Land Sales,

Condominiums and Mobile Homes reviewed the request for mediation and determined

that it was willing to mediate the dispute. The Division requested that Mr.

Barding advise it of his willingness or refusal to participate in the mediation.

Mr. Barding declined to agree to mediation of the dispute, and the mediation

file of the Division was closed.

9. Sections 723.037(4), F.S. (1987), provides in pertinent part that:

Within 30 days of the date of the scheduled

meeting described in subsection (3), the home

owners shall request that the dispute be

submitted to mediation pursuant to Section

723.038 if a majority of the affected home

owners have designated, in writing, that:

(a) The rental increase is unreasonable;

(b) The rental increase has made the lot

rental amount unreasonable;

(c) The decrease in services or utilities

is not accompanied by a corresponding decrease

in rent or is otherwise unreasonable; or

(d) The change in the rules and regulations is

unreasonable. [Emphasis supplied].

10. The Department of Business Regulation, Division of Florida Land Sales,

Condominiums, and Mobile Homes does not interpret Section 723.037(4), F.S., as

depriving it of authority to mediate when the request for mediation is filed

more than 30 days after the referenced meeting.

11. Section 723.037(6), F.S., provides that:

No action relating to a dispute described in

this section may be filed in any court unless

and until a request has been submitted to the

Division for mediation and arbitration and

the request has been processed in accordance

with Section 723.038.

12. Section 723.037(7), F.S., provides that:

If a party refuses to agree to mediate or

arbitrate, or fails to request mediation,

upon proper request, that party shall not

be entitled to attorney's fees in any

action relating to a dispute described in

this section.

13. Section 723.004(4), F.S., provides that:

Nothing in this chapter shall be construed to

prevent the enforcement of a right or duty

under this section, Sections 723.022; 723.023;

723.031; 723.033; 723.035; 723.037; 723.038;

723.061; 723.0615; 723.062; 723.063; or

723.081 by civil action after the party has

exhausted its administrative remedies, if any.

14. Existing Rule 7D-32.005(3), F.A.C., provides in pertinent part:

The homeowners' committee shall request

mediation, or the homeowners' committee and

the park owner may jointly request arbitration,

by mailing or delivering the following items

to the Division of Florida Land Sales,

Condominiums and Mobile Homes, 725 South

Bronough Street, Tallahassee, Florida 32399-1007:

(a) A completed Form DBR 405, which becomes

effective on the same date as this rule and

which may be obtained by writing to the

Division at the above address, and

(b) A copy of the written designation

required by Rule 7D-32.005(1), Florida

Administrative Code, and Section 723.037(4),

Florida Statutes; and

(c) A copy of the notice of lot rental

increase, reduction in services or utilities,

or change in rules and regulations which is

being challenged as unreasonable; and

(d) A copy of the records which verify the

selection of the homeowners' committee in

accordance with Rule 7D-32.003, Florida

Administrative Code, and Section 723.037(3),

Florida Statutes. [Emphasis supplied]

15. Proposed Rule 7D-32.005(4), F.A.C., which was published in Volume 14,

No. 4, Florida Administrative Law Weekly (January 29, 1988), and which is here

challenged, provides that:

A request for mediation or arbitration shall be

denied if the request does not substantially

comply with Chapter 723, Fla. Stat., and these

rules.

The word "may," which is struck through, is to be deleted from the existing rule

now in effect. The underlining indicates that the words "shall" and

"substantially" are amendatory language to be added.

16. Rule 7D-32.005(5), Florida Administrative Code, provides:

If the homeowners' committee requests media-

tion, a copy of the four items required by

subsection (3) of this rule shall be furnished

to the park owner by Certified U. S. Mail,

Return Receipt Requested, at the time the

request is filed with the Division. Failure

to comply with this requirement may result in

a delay in scheduling of a mediation meeting

until the required items have been furnished

to the park owner. [Emphasis supplied]

17. Rule 7D-32.005(6), Florida Administrative Code, provides:

Within 10 days from the date that the park

owner or his agent receives copies of the

documents required to be furnished to him

pursuant to subsection (5) of this rule, the

park owner shall advise the Division in

writing of his willingness or refusal to

participate in the requested mediation. If

the park owner is of the opinion that the

home owners or the homeowners' committee

have failed to satisfy the statutory

requirements set forth in Section 723.037,

Florida Statutes, or the requirements of

these rules he may indicate his willingness

to participate in the mediation process

without waiving his objections to the

procedures used by the homeowners'

committee.

18. Rule 7D-32.005(7), Florida Administrative Code, provides:

A decision by the Division to grant or deny a

request for mediation does not constitute an

adjudication of any issues arising under

Section 723.037, Florida Statutes. Any dispute

concerning the applicability of Section

723.037(6)-(7), Florida Statutes, must be

submitted to a court of competent jurisdiction

in the event that judicial proceedings are

initiated.

19. Rule 7D-32.001(5), Florida Administrative Code, provides:

`Mediation' means a process whereby a mediator

provided by the Division of Florida Land Sales,

Condominiums and Mobile Homes partici-

pates in discussions with a homeowners'

committee and a park owner concerning the

reasonableness of an increase in lot rental

amount, change in park rules and regulations,

or a decrease in services or utilities. The

purpose of the mediator's participation is

to assist the parties in arriving at a mutually

agreeable settlement of their differences.

CONCLUSIONS OF LAW

Jurisdiction

20. The Division of Administrative Hearings has jurisdiction over this

proceeding pursuant to Section 120.54(4), F.S.

21. FMHA is an incorporated association consisting of over 1,000 mobile

home park owners who are members of that association. The over 1,000 members of

FMHA, one of whom is Gerry Barding, are all regulated by Chapter 723, F.S., and

the Florida Department of Business Regulation, Division of Land Sales,

Condominiums and Mobile Homes, pursuant to Section 723.006, F.S. (1987)

22. The business of the mobile home park owner members of the Florida

Manufactured Housing Association is the operation and management of mobile home

parks in the State of Florida. In the operation of that business, the park

owners anticipate and regularly do increase the lot rental amount charged in

those mobile home parks.

23. Upon increase in the lot rental amount, or changing the rules and

regulations, or decreasing services or utilities in the mobile home park, the

residents of the mobile home park have a right to request mediation pursuant to

Section 723.037(4), F.S. (1987). The word request," as used in s. 723.037(4),

F.S., is not defined in the statute, but the subparagraphs, which are

alternative in nature, contemplate a "writing." Existing Rule 7D-32.005(3)

interprets that statutory term to require that the request must be in writing,

filed with Department of Business Regulation, Division of Land Sales,

Condominiums, and Mobile Homes, and contain the four items specified in (a)-(d)

of that rule. That rule, by employing the word "and" contemplates that all four

items be included in the mediation request. Existing Rule 7D-32.005(5) provides

for a delay in proceedings if all four items specified in Rule subsection

(3)(a)-(d) are not provided to the park owner by certified mail simultaneously

with filing with the Division of the four items of request. Proposed Rule 7D-

32.005(4) would further interpret the statute to require that those who request

mediation be in substantial compliance with Rules 7D-32.005(3) and (5), among

other rules, as well as with the statute or their request will be

dismissed/denied. It is Petitioners' initial contention that proposed Rule 7D-

32.005(4) modifies the timeliness requirement for a request for mediation or

arbitration by the residents of a mobile home park pursuant to Section

723.037(4), Florida Statutes (1987), and secondly, that the rule amendment

provides no firm guidelines as to what constitutes "substantial" compliance.

24. The Respondent contends that because Petitioner FMHA did not establish

that there is any mediation request which is pending or imminent and which will

positively be processed pursuant to the proposed rule, FMHA is without standing

to challenge the proposed rule amendment. Respondent concedes, apparently, that

it would be impossible to establish that there is any mediation request which is

pending or imminent and which will be processed pursuant to the proposed rule

because the proposed rule has not yet been adopted or applied.

25. Respondent further proposes that Sections 723.037(6), (7), F.S., would

not apply to FMHA's members or Mr. Barding merely as a result of the Division's

willingness to provide a mediator, and since park owners always have the option

of agreeing to participate or not to participate in a requested mediation, those

provisions could only be applied to the park owner if he refused to mediate.

Upon this basis, the agency asserts that because it is each park owner's

unilateral decision whether to mediate or not to mediate at some future date,

and because there is no pending or imminent litigation, the Petitioners' concern

is purely speculative and conjectural. Respondent asserts in favor of this

position the case of Florida Department of Offender Rehabilitation v. Jerry, 353

So.2d 1230 (Fla. 1st DCA 1978). Contrariwise, the case of Professional

Firefighters of Florida, Inc. v. Department of Health and Rehabilitative

Services, 396 So.2d 1194 (Fla. 1st DCA 1981 in distinguishing Jerry, held:

In both Jerry and Alice P., supra, the

challengers were not subject to the rule or

immediately affected by it at the time suit

was filed and were unlikely to be affected

by it in the future. In contrast, in this

case, the individual appellants are

presently affected by the rules . . . .

Although the Firefighters case is distinguishable from the present one because

Firefighters involves a statewide occupational licensing or certification

requirement imposed for the first time upon persons in that occupational field,

the case is analogous here on the issue of standing because the Court in

Firefighters held that the appellants had standing to challenge the rule

"regardless of whether submission to certification or licensing is termed

voluntary or not."

26. Respondent's arguments present conundrums. If either of Respondent's

theories is given credence, it would be impossible for any individual or

association to ever establish standing to challenge a proposed rule pursuant to

Section 120.54(4), F.S., simply because proposed rules, by their very nature,

anticipate only future litigation. Therefore, Respondent's argument is not

persuasive. Moreover, if the agency were to view this rule amendment as

procedural only, it could process pending mediation requests involving FMHA

members pursuant thereto.

27. Additionally, a proper request for mediation impinges upon important,

if not precisely property, rights of the park owner and residents. In Section

723.037(6), F.S. (1987), the statute specifically prohibits the filing of an

action in any court unless and until a request has been submitted to the

Division for mediation. Moreover, in Section 723.037(7), F.S. (1987), if a

party refuses to agree to mediate or arbitrate, or fails to request mediation

upon request, that party is not entitled to attorney's fees in any action

relating to a dispute described in Section 723.037. Therefore, even if the

Division simply closes its file when a park owner declines to mediate with

regard to a late filed request by the homeowners for mediation, it is

conceivable that the park owner could ultimately be denied attorney's fees and

costs should the issue go to court, whereas if the untimely request for

mediation had been denied by the agency upon jurisdictional grounds of

untimeliness as required by the statute, there would be no issue of whether or

not the park owner could be denied attorney's fees in Circuit Court because he

declined to mediate.

28. A substantial number of members of FMHA are affected by the proposed

rule. The impact of the rule is not speculative or conjectural in that the

members of FMHA are in immediate danger of sustaining a direct injury as a

result of the challenged agency's action. See, Village Park v. State Department

of Business Regulation, 506 So.2d 426 (Fla. 1st DCA 1987).

29. FMHA has standing to challenge the proposed rule at issue in this case

upon authority of Village Park v. State Department of Business Regulation,

supra, and Florida Home Builders Association v. Department of Labor and

Employment Security, 412 So.2d 351 (Fla. 1982).

30. Gerry Barding, an individual mobile home park owner, also has standing

to bring this challenge as established by the facts as found, supra.

The Proposed Rule

31. Mediation is an alternative dispute resolution form which is

established pursuant to Section 723.037, F.S. The right to mediation is invoked

when a park owner gives written notice to each affected homeowner in his mobile

home park at least 90 days prior to any increase in the lot rental amount,

reduction of the services or utilities provided by the park owner, or change in

the rules or regulations of the park. A committee, not to exceed five in

number, is designated by a majority of affected homeowners or by the board of

directors of the Home Owners' Association, if applicable. The homeowners are

required to meet at a mutually convenient time with the park owner within 30

days of the notice, to discuss the reason for the increase in lot rental amount,

reduction of services or utilities, or change in rules or regulations. Within

30 days of the date of that scheduled meeting, the homeowners have a right to

request mediation pursuant to the requirements of Section 723.037(4), F.S.

32. Section 723.037(4), F.S., provides:

Within 30 days of the date of the scheduled

meeting described in subsection (3), the home

owners shall request that the dispute be

submitted to mediation pursuant to Section

723.038 if a majority of the affected home

owners have designated, in writing, that:

(a) The rental increase is unreasonable;

(b) The rental increase has made the lot

rental amount unreasonable;

(c) The decrease in services or utilities is

not accompanied by a corresponding decrease

in rent or is otherwise unreasonable; or

(d) The change in the rules and regulations

is unreasonable. [Emphasis supplied].

33. The Department of Business Regulation has stipulated that the Division

does not interpret the above-quoted statutory provision as depriving the

Division of authority to mediate when the request for mediation is filed more

than 30 days after the referenced meeting. That is, Respondent agency does not

now interpret the 30 day provision of Section 723.037(4) to be jurisdictional.

That interpretation may foreshadow how DBR will interpret and apply its proposed

rule amendment but that interpretation is not binding in this de novo

proceeding. What is to be interpreted in this proceeding is the rule as

written. Other alternatives of litigation exist if DBR subsequently applies its

rule contrary to the rule's clear meaning.

34. The existing rule provides for discretionary agency dismissal if a

mediation application is not in total compliance with the statute and other

rules. The amendment to the rule by the use of the word "shall" purports to

make agency dismissal mandatory unless there is substantial compliance by the

homeowners with the statute and other rules. The use of the word "shall" in the

amended rule tracks the use of the word "shall" in the statute, both of which

usages are mandatory language.

35. The term "shall" is normally accorded a mandatory connotation wherever

it is used in generic law, be it statutory or regulatory law. Neal v. Bryant,

149 So.2d 529 (Fla. 1962). See also, Webster's New Collegiate Dictionary page

1056 (1979) stating that, the term "shall" is "used in laws, regulations, or

directives to express what is mandatory . . ." (This connotation to the term

"shall" was referenced in Williams v. State, 378 So.2d 902, 903 (Fla. 5th DCA

1980), and in Murray v. State, 278 So.2d 111 (Fla. 5th DCA 1980).

36. An exception to the mandatory meaning of the word "shall" was

recognized in the case of Reid v. Southern Development Co., 42 So.206 (Fla.

1906). In that case, the court quoted from the decision rendered in Hurford v.

City of Omaha, 4 NEB 366, wherein the Nebraska Supreme Court stated:

When a particular provision of a statute

relates to some immaterial matters, where

compliance is a matter of convenience rather

than substance, or where the directions of

the statute are given with a view to the

proper, orderly, and prompt conduct of business

merely, the provision may be generally be

regarded as directory.

37. The Florida Supreme Court in Neal supra recognized this two-part test

from Hurford, supra, at page 532, and added that:

Most certainly, where the statute provides

for the deprivation of a property right, the

procedural requirements here in question can

not be regarded as an `immaterial matter' or

an `matter of convenience rather than substance.

38. The Third District Court of Appeal addressed the effect of the word

"shall" in the notice provision of Section 120.57(1)(b)2. F.S. (1979), and held

in Guerra v. State, 427 So.2d 1098 (Fla. 3d DCA 1983), at page 1101, that the

conflicting rule of the Department of Labor must give way "in the face of

legislative requirement to the contrary" and stated:

By employing the emphatically mandatory word

"shall," Section 120.57(1)(b)2. simply and

unequivocally requires that every pertinent

notice contain the provisions the statute

specifies. [Emphasis supplied].

The court therein concluded that "the agency has no choice but to amend its

existing rule," Id. at page 1102.

39. Although Respondent argues that in proper cases, the word "shall" may

be construed as permissive or directory only, the cases cited by the Respondent

in support of this construction are distinguishable and not persuasive. These

cases are: Belcher Oil Co. v. Dade County, 271 So.2d 118 (Fla. 1972); Lomelo v.

Mayo, 204 So.2d 550 (Fla. 1967); Schneider v. Gustafson Industries, Inc., 139

So.2d 423 (Fla. 1962); and Brown v. Pumpian, 504 So.2d 481 (Fla. 1st DCA 1987).

40. In Belcher, citing Lomelo, the court held that, ". . . in proper cases

and particularly so where required to conform to constitutional requirements,

[the word shall] may be construed as permissive only." Taken together, the

opinions in both Belcher and Lomelo suggest that a permissive connotation is to

be attributed to the statutory use of the word "shall" only where the statute as

a whole indicates that the time requirement is not intended as a limitation on

the agency's power to act. That is not the case with Section 723.037(4), nor is

there any hint in this case that it is necessary to construe the word "shall" as

permissive only, in order for the statute as a whole to survive constitutional

assault. See, peripherally, Department of Business Regulation v. National

Manufactured Housing Federation, Inc., 370 So.2d 1132 (Fla. 1979). Brown

involved peculiarities of remedies available upon a petition for writ of

mandamus and so is not truly on point for present purposes, but the language

employed with regard to the jurisdictional qualities of timeliness are apropos:

Mandatory language has in a number of cases

been construed as directory, dependent upon

the history and subject matter of the

particular provision, and as a general rule

statutes setting the time when a thing is

to be done are regarded as merely

directory, where no provision restraining

the doing of it after that time is included

and the act in question is not one upon

which jurisdiction depends. Brown, supra

at p. 482.

Contrariwise, the statutory time for filing a "request for mediation" is

analogous to initiation of a lawsuit by filing with the trial court a

"complaint" or filing with an appellate court a "notice of appeal" because the

entire dispute resolution process is initiated thereby.

41. Respondent places great reliance upon Schneider, supra. Therein, the

court construed a rule of the old Industrial Commission which stated that a

transcript "shall" be filed within 45 days and a similar statutory provision

which stated that a transcript "must" be filed within 45 days and the Commission

"shall" dismiss the application for review if it is not. The court concluded

that the statutory language did not amount to an express prohibition against the

exercise of discretion in such dismissal or against the application of a rule of

substantial as opposed to strict compliance. See, Schneider, at page 425.

Respondent's reliance upon the Schneider case is misplaced. The rule in

question was essentially a procedural appellate rule covering how a transcript

should be transmitted, paid for, and filed before an administrative appeals

tribunal. That rule did not impinge upon the earlier time frame established by

statute and rule for actually initiating the appeal itself by timely filing of

the equivalent of a notice of appeal, what was then termed, an "application for

review." Timeliness of applications for review before the old Industrial

Commission were, indeed, jurisdictional.

42. By analogy to the instant situation, the time frame for homeowners to

make a request for mediation as established by the statutory language of Section

723.037(4), Florida Statutes, is jurisdictional in the same sense as a notice of

appeal filed before a District Court of Appeal.

43. The First District Court of Appeal recently discussed provisions of

Section 723.037(2), F.S., in Village Park Mobile Home Association, Inc. v.

Department of Business Regulation, supra. Although that case revolved around

standing of certain mobile home owners to bring that particular action, the

court summarized Section 723.037(2), F.S., with careful regard to mandatory and

permissive phrases therein:

According to Section 723.037(2), F.S., once

the written notice is given by the park owner,

a committee or homeowners' association shall

meet with the park owner to discuss the

intended changes. According to subsection

(3), within 15 days of the meeting, the home-

owners, if they decide to contest the changes,

shall request that the dispute be submitted to

mediation pursuant to Section 723.038 if a

majority of the homeowners have stated, in

writing, that the rental increase is

unreasonable, the decrease in services was not

accompanied by a corresponding decrease in

rent, or the changes in rules or regulations

are unreasonable. According to the Act, if

those parties subsequently agree, arbitration

rather than mediation may be requested.

[Emphasis supplied.]

Id., at page 434. This latter "request" provision is the enabling statute,

Section 723.037(4), Florida Statutes, for the proposed rule here under

challenge.

44. Timely request is indeed mandatory under the statute, regardless of

the interpretation placed upon that language by the agency at the present time.

The proposed rule under challenge clearly employs the word "shall" in compliance

with the statute's use of the word "shall" and is valid upon that point.

45. In their post-hearing submittals, Petitioners also argued that the use

of the word "substantially" within the proposed rule constitutes vagueness

because it does not reveal how many factors within the statute/rules must be

complied with in order to achieve "substantial" compliance. Respondent

countered that because the four corners of the original petition do not

specifically allege vagueness, the proposed rule cannot be held invalid on that

ground.

46. Section 120.54(4), Florida Statutes (1987), provides, in pertinent

part, as follows:

(a) Any substantially affected person may

seek an administrative determination of the

invalidity of a proposed rule on the ground

that the proposed rule is an invalid exercise

of delegated legislative authority.

(b) The request seeking determination

under this . . . must state with particularity

the provisions of the rule alleged to be

invalid with sufficient explanation of the

fact or grounds for the alleged invalidity . . .

47. Section 120.52, Florida Statutes (1987), provides, in pertinent part

as follows:

(8) `Invalid exercise of delegated legislative

authority' means action which goes beyond the

powers, functions, and duties delegated by

the Legislature. A proposed or existing rule

is an invalid exercise of delegated legislative

authority if any one or more of the following

apply:

(a) The agency has materially failed to follow

the applicable rulemaking procedure set forth

in Section 120.54;

(b) The agency has exceeded its grant of rule

making authority, citation to which is required

by Section 120.54(7);

(c) The rule enlarges, modifies, or contravenes

the specific provisions of law implemented,

citation to which is required by Section

120.54(7); and

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency; or

(e) The rule is arbitrary or capricious.

[Emphasis supplied]

48. Paragraph 8 of the Petition herein specifically alleges the language

contained in Section 120.52(8)(c) and (e) as grounds for finding an "invalid

exercise of delegated authority." Although the four corners of the Petition

does not also specifically allege subparagraph (d), that is, "vagueness," the

interaction of the words "shall" and "substantially" has been clearly alleged,

and should the rule be too vague, it would also be rendered "arbitrary and

capricious."

49. The interests of a mobile home park owner and a mobile home park

tenant necessarily compete. Because of the fundamental nature of the conflict

(the owner seeking to maximize profit and the tenant seeking affordable living

accommodations with reasonable services and amenities), and because of the

pervasiveness of mobile home living in Florida, the application of such rules is

of such a great public moment that they require some standard by which

consistency of application may be obtained. As written, the proposed rule's use

of the word "substantially" renders it vague in that it fails to establish

adequate standards for agency decisions. The use of the word "substantially"

attempts to modify and render discretionary the clearly mandatory nature of the

word "shall" as used in terms of the 30 days jurisdictional time frame contained

in the statute. The word "substantially" in the proposed rule may legitimately

be read so as to permit amendments to a timely request for mediation but it

fails to provide any guidelines to enable park owners, mobile home owners, or

DBR to determine when a party has satisfied the requirement of "substantially"

complying with Rule 7D-32.005(3), which has four mandatory conjunctive

requirements for every type of dispute. (The statute specifies only four

disjunctive requirements dependent upon the type of dispute). As written, the

proposed rule gives no hint as to how many factors must be complied with in

order to meet "substantial" compliance. It is thus left to the unbridled

discretion or whim of Division personnel to pronounce when "substantiality" has

been achieved. This would permit arbitrary and capricious decisions.

FINAL ORDER

Upon the foregoing findings of fact and conclusions of law cited here and,

it is

ORDERED that proposed rule 7D-32.005(4), Florida Administrative Code,

constitutes an invalid exercise of delegated legislative authority.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this day of 1st day

of July 1988.

___________________________________

ELLA JANE P. DAVIS, Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1050

Filed with the Clerk of the

Division of Administrative Hearings

this day 1st day of July 1988

APPENDIX TO FINAL ORDER

DOAH Case No. 88-0815RP

The following constitute specific rulings upon the parties' respective

proposed findings of fact (PFOF) pursuant to s. 120.59(2), Florida Statutes.

Petitioner's PFOF:

1. Covered in FOF 2.

2. Covered in FOF 3.

3. Covered in FOF 4.

4. Covered in FOF 5.

5. Covered in FOF 6.

6. Covered in FOF 7.

7. Covered in FOF 8.

8-10. See evidentiary ruling "Background and Procedure." Although various

conditionally stipulated facts were admitted in evidence and are accepted, they

were not all necessary to resolve the issue of this case. The proposals not

adopted are subordinate and unnecessary to the facts as found in FOF 8, 10, 14,

and 16-17. It is noted that FOF 16 and 17 only quote rules and do not depend

upon stipulations of the parties. See also COL 13, 14, and 22.

11. Covered in FOF 9.

12. Covered in FOF 10.

13. Covered in FOF 11.

14. Covered in FOF 12.

15. Covered in FOF 13.

Respondent' s PFOF:

1. Rejected in "Background and Procedure" and FOF 1.

2. Covered in FOF 2.

3. Covered in FOF 7.

4-5. Covered in FOF 15 except to the extent the proposal is subordinate.

6. Covered in FOF 5.

7. Covered in FOF 4, 6,

8. Covered in FOF 9.

9. Covered in FOF 11.

10. Covered in FOF 12.

11. Covered in FOF 19.

12. Covered in FOF 18.

13-14. Covered in FOF 1.

COPIES FURNISHED:

E. James Kearney, Director

Department of Business Regulation

Division of Florida Land Sales,

Condominiums, and Mobile Homes

725 South Bronough Street

Tallahassee, Florida 32393-1000

David D. Eastman, Esquire

Post Office Box 669

318 North Monroe Street

Tallahassee, Florida 32302

Thomas Presnell, Esquire

Department of Business Regulation

725 South Bronough Street

Tallahassee, Florida 32399-1000

Van B. Poole, Secretary

Department of Business Regulation

725 South Bronough Street

Tallahassee, Florida 32399-1000

Liz Cloud, Chief

Bureau of Administrative Code

The Capitol - 1802

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director

Administrative Procedure Committee

120 Holland Building

Tallahassee, Florida 32399-1300