02-002273 Department Of Business And Professional Regulation, Division Of Florida Land Sales, Condominiums, And Mobile Homes vs. Edmund C. Valentine Status: Closed Recommended Order on Tuesday, December 10, 2002.

Summary: Pass-through charge for emergency vehicle access a legally proper pass-through to mobile home park tenants.

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. 02 - 2273

)

EDMUND C. VALENTINE, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on September 4, 2002, and October 9, 2002, in Vero Beach, Indian

River County, Florida, before Florence Snyder Rivas, a duly -

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Joseph S. Garwood, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399 - 2202

For Respondent: Bradley W. Rossway, Esquire

Lisa R. Hamilton, Esquire

Rossway, Moore & Taylor

The Oak Point Professional Center

5070 North Highway A1A, Suite 200

Vero Beach, Florida 32963

STATEMENT OF THE ISSUE

At issue is whether the Respondent, Edmund C. Valentine

(Respondent or Valenti ne), as owner of Palm Paradise Park (Palm

Paradise or the mobile home park or park) assessed an improper

pass - through charge to the mobile home owners in Palm Paradise

in violation of Section 723.003(10), Section 723.031(5)(b), and

Section 723.037(1), Flor ida Statutes, as set forth in a Notice

to Show Cause issued by the Petitioner, Department of Business

and Professional Regulation, Division of Florida Land Sales,

Condominiums and Mobile Homes (Petitioner or Department) on

May 1, 2002, and if so, what reme dy should be imposed.

PRELIMINARY STATEMENT

By Notice to Show Cause dated May 1, 2002, Petitioner

alleged that the Respondent assessed an improper pass - through

charge to the mobile home owners in Palm Paradise in the amount

of $524.44 each, in violation of Sections 723.003(10),

723.31(5)(b), and 723.037(1), Florida Statutes. (Hereafter, all

statutory references are to the laws of Florida in effect at the

times of the facts to which they relate.)

The Department seeks a final order requiring Valentine to

refund the pass - through charges to each mobile home unit owner,

and imposing a civil penalty in the amount of $5,000.

Valentine timely requested a formal hearing pursuant to

Chapter 120. Thereafter, Valentine filed a Motion for a More

Definite Statement, or in the Alternative, Motion to Dismiss for

Failure to State a Cause of Action, contending that the Notice

to Show Cause was insufficient to apprise him of the nature of

the charges against him, in violation of his due process rights.

By Order Denying M otion for More Definite Statement or to

Dismiss and Motion to Continue, dated July 10, 2002, the motions

were denied without prejudice.

The formal hearing was held over two days, September 4,

2002, and October 9, 2002, at the Indian River County Courthou se

in Vero Beach, Florida. At the hearing, the Department

presented the testimony of Evelyn Clark, Dan Dietz, Roland

DeBlois, and eight Palm Paradise residents. The Department’s

Composite Exhibits 1 - 3 were received into evidence. The

Respondent noted hi s limited objection to the introduction of

the Department’s Investigative Report, Composite Exhibit 3,

acknowledging that the report was admissible for the limited

purpose of supplementing, explaining, or buttressing admissible

evidence. Section 120.58(1) (a).

The Department also moved to offer into evidence the

deposition transcripts of two additional Palm Paradise

residents, Hugh Helton (Helton) and Joseph Beno (Beno). The

Respondent objected to the introduction of Helton’s deposition

transcript on the ground that Helton was present at the trial

and therefore not unavailable to testify as necessary for the

offering of deposition testimony in lieu of live testimony under

Rule 1.330(a)(3), Florida Rules of Civil Procedure. The

Respondent also objected to the introduction of both Helton and

Beno’s deposition transcripts as evidence on the grounds that

the Department failed to provide reasonable notice of the

depositions in less than 24 hours; that the evidence to be

presented was redundant; and that the Dep artment had available

various residents of Palm Paradise, who were either under

subpoena or voluntarily present at the hearing, yet were not

called to testify. Respondent’s objection was overruled and the

deposition transcripts were received into evidence .

The Respondent presented the testimony of the Respondent,

Edmund C. Valentine, Warren W. Dill, and Randall L. Mosby.

Exhibits 1 - 15 were offered by the Respondent as evidence in this

case. A dispute as to the admissibility of the exhibits arose

when Pe titioner objected to Respondent’s exhibits, alleging that

the Respondent failed to provide copies in accordance with the

Order of Pre - Hearing Instructions dated June 21, 2002. The

Respondent disputed that contention and contended that he had

offered oppos ing counsel the opportunity to view the exhibits

upon counsel's arrival in Vero Beach and that when counsel did

not reply to the offer but rather mailed copies of the

Department's Exhibits, the Respondent immediately sent copies of

his exhibits via facsimi le to the counsel. To mitigate any

possible prejudice occasioned by reason of the mutual failure of

counsel to achieve compliance with the Order of Pre - hearing

Instructions, Petitioner's counsel was afforded the opportunity

to review the exhibits, conduct discovery, if necessary, and to

offer any substantive objections or ask any questions of the

Respondent’s witnesses on the second day of trial, one month

away. Because at that time, counsel made no objections to the

Respondent’s exhibits nor did counsel recall any of the

Petitioner’s witnesses for additional questions regarding the

exhibits, the Petitioner was deemed to have waived any

objections and the Respondent’s Exhibits 1 - 15 were therefore

admitted into evidence.

FINDINGS OF FACT

1. The Departme nt is the state agency responsible for

regulating the landlord tenant relationship of mobile home parks

pursuant to Chapter 723, also known as the Florida Mobile Home

Act, and the administrative rules promulgated thereunder.

2. Palm Paradise is, at all times pertinent to this

proceeding, subject to regulation by Petitioner pursuant to

Chapter 723.

3. At all times material to this case, Valentine is the

owner and operator of Palm Paradise.

4. Palm Paradise is located in Indian River County,

Florida, and several agencies of that local government have

regulatory jurisdiction over the mobile home park. The Code

Enforcement Board of Indian River County has jurisdiction to

enforce regulations and compliance with standards for

construction. The Indian River County Fire Rescue has the

authority to approve or disapprove the final configurations for

emergency vehicle access points. The Indian River County

Utilities Department has the authority and responsibility to

install water treatment systems throughout the county. Over the

relevant time frame, each has exercised regulatory authority

over the mobile home park in such a manner as to have

necessitated the improvements at issue in this case.

5. Valentine purchased Palm Paradise in 1980. At that

time, there were five entrances to the park, two primary

entrances along U.S. Highway 1, and three back entrances along

Old Dixie Highway. The back entrance on the southwest portion

of the park along Old Dixie Highway, which was then and remains

now a major thoroughf are, consisted of a narrow path with a

deteriorating asphalt surface covering the foundation of the

road. This entrance, which connected to the south road and

allowed direct access to U.S. 1, was, for the most part, chained

off and not assessable to vehic ular traffic. From time to time

the chains were removed, resulting in complaints from park

residents who were victimized by criminals unable to resist the

easy access and escape route afforded by U.S. 1.

6. In 1981, a representative from the Indian Rive r County

Sheriff’s Department conducted a safety seminar for park

residents. Although he did not have the authority to compel

this outcome, the representative, Deputy McPherson, recommended

that the park permanently close the southwest entrance to deter

c rime by making access slightly more difficult. Valentine

complied in good faith with the recommendation and thereafter

attempted to keep the southwest entrance closed permanently.

Residents were generally supportive of the closing because it

did in fact have a deterrent effect on crime.

7. As time went by and Indian River County grew, the park

was subjected to more detailed regulation about which Valentine

and unit owners had no discretion. For example, in late 1986,

Indian River County mandated that th e Park tie into the County’s

waste water system within five years.

8. In furtherance of this improvement, in late 1989 to

early 1990, the Indian River County Utilities Department, a

branch of the county government, installed sewer lines along Old

Dixie Highway. During the installation process, the County

Utilities Department ripped through and destroyed the foundation

and surface of the park’s existing northwest entrance, center

entrance, and the closed southwest entrance along Old Dixie

Highway. After the sewer lines were laid, the County replaced

the foundation to the existing northwest entrance; however, the

County did not replace the foundation or surface of the center

entrance or the closed southwest entrance. The center and the

southwest entrance s were left as chunks of crumpled - up asphalt

and dirt covering up the county’s sewer lines. The County

Utilities Department then placed a cemented check valve and a

wooden plank, to mark the presence of the check valve, in the

middle of the closed southwe st entrance. Palm Paradise was tied

into the waste water system in 1992 as mandated by Indian River

County.

9. While laying the pipe to prepare for the hook - up to the

county’s sewer system, Valentine installed a culvert pipe in the

area of the former sou thwest entrance to help relieve the

flooding problems which had been exacerbated by all of the

above - noted construction. All of the work associated with the

sewer lines was accomplished with the oversight and approval of

the County Utilities Department.

10. For a time, Palm Paradise was at peace. Then, on

February 5, 2001, the Code Enforcement Board of Indian River

County issued a Notice to Appear directed to Valentine for an

alleged obstruction in the county's right - of - way.

11. A hearing was held on February 26, 2001, and the Board

entered an order requiring Valentine to open the southwest

entrance.

12. At that time, Palm Paradise, viewed by planning

professionals in light of 21st century knowledge, was a

potential threat to the safety of its elder ly population in that

there was insufficient access for modern emergency vehicles.

Thus, appropriate Indian River County officials with authority

to do so further mandated that the entrance be constructed so as

to allow emergency fire and rescue vehicles access to the Palm

Paradise from the southwest.

13. This decision came after public hearings which were

well - attended by residents of the mobile home park, all of whom

understood that it was Valentine's intent to pass - through the

costs of any capital impr ovements which he may be required to

make to the extent permitted by law. The county was empowered

to impose civil fines of $100.00 per day if Valentine failed to

timely comply with county requirements regarding the property.

14. Valentine hired the ser vices of attorney Warren W.

Dill and engineer Randall L. Mosby, first to oppose the county’s

demands and later to negotiate a less obtrusive and costly

alternative to the extremely large “mall type entrance,” as the

parties referred to it, originally propo sed by the county. The

so - called mall type entrance, it was feared, would encourage a

large volume of traffic through the mobile home park for both

emergency and non - emergency purposes.

15. Valentine, in furtherance of his own interests which

coincid ed in this case with those of the residents, instructed

these professionals to oppose the opening of the southwest

entrance. Partly the residents remained concerned about

security, but they were also aroused by the prospect of having

to pay the cost of an y improvements which might be mandated by

county officials.

16. Ultimately, it became clear that the county would

insist upon significant capital improvements to the southwest

entrance.

17. In particular, Valentine was required to comply with

the coun ty’s minimum standards to accommodate the turning

radiuses of modern emergency vehicles, in this case 35° for a

typical 30 foot fire truck and 45° for the 46 foot ladder truck.

18. Litigation ensued between Valentine and the county

over the scale of the required southwest entrance. The parties

subsequently reached a compromise resulting in the entrance

which gives rise to this case.

19. The new southwest entrance was reasonable under the

circumstances. It was constructed to give the appearance of a

clo sed road while being accessible by emergency vehicles only.

The entrance first required the laying of a foundation, being

that the original limited foundation was destroyed by the county

during its sewer installation project and not replaced. The new

lar ger and improved foundation consisted of coquina rock that

was packed down to form a foundation that would withstand the

extreme weight of emergency vehicles. The foundation was then

sprayed with hydroseed to provide a grass surface for the

protection of the foundation from erosion. The grass surface

replaced the concrete surface, which was initially required by

the County. Flexible delineators were installed across the

length of the entrance and cemented in place. The flexible

delineators can be driven over by emergency vehicles without any

damage to the entrance.

20. There was evidence that some emergency vehicle drivers

refuse to drive over the flexible delineators because they fear

damage to their vehicles. The evidence established that this

fea r is unreasonable and Valentine is not responsible for the

acts or omissions of county employees.

21. The new southwest entrance is a substantial

improvement from the entrance at any time during Palm Paradise's

existence. Its usage has been adapted for a completely new

purpose, as mandated by county officials acting in accordance

with modern safety standards.

22. Palm Paradise and its residents enjoy tangible

benefits daily from the newly constructed entrance; this is the

very essence of a capital improv ement. Under the facts and

circumstances of this case, the emergency vehicle entrance is a

capital improvement, which was governmentally mandated, within

the meaning of “pass - through charge” as defined in Section

723.003(10).

23. In this case, the Park’s prospectus provided full

disclosure to the mobile home residents of their potential

obligation to pay for the costs of major repairs and capital

improvements in the Park. While the prospectus states that the

Owner, in this case Valentine, reserves the ri ght not to pass

through to the mobile home owner a lawful pass - through charge,

it does not prohibit him from doing so. In any event, the

Department has not alleged any procedural defect in the pass

through assessment at issue in this case, and the evidenc e

affirmatively establishes that all procedural requirements were

in fact fulfilled.

24. The Department presented testimony from several

residents who stated that they lived on fixed incomes and

regarded the pass - through charge as a financial hardship. O f

course, it is never appropriate to charge people monies they

cannot lawfully be required to pay, and no evidence is necessary

to establish this proposition. The testimony of the resident

witnesses was improvidently admitted and may not properly be

consi dered in that it directs itself only to the passions and

sympathies of the tribunal, and not to any legal issue over

which an administrative law judge has authority.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

this proceeding pursuant to Section 120.57(1).

26. The Department has charged the Respondent with

violations of Sections 723.003(10), 723.031(5)(b), and

723.037(1), asserting that the Respondent assessed an improper

pass - through charge, which fact must be established by a

preponderance of the evidence.

27. First, the Department alleges that the Respondent

assessed an improper pass - through charge by violating Section

723.003(10). This section is the statutory defin ition of “pass -

through charge,” which states as follows:

(10) The term “pass - though charge” means

the mobile home owner’s proportionate share

of the necessary and actual direct costs and

impact or hookup fees for a governmentally

mandated capital improv ement, which may

include the necessary and actual direct

costs and impact or hookup fees incurred for

capital improvements required for public or

private regulated utilities.

28. In Werner v. State, Department of Insurance and

Treasurer , 689 So. 2d 121 1, 1214 (Fla. 1st DCA 1997), the court

vacated the final order, which had adopted the hearing officer’s

recommended order, in part because the orders erroneously

concluded that the appellant had violated a definition of the

Florida Statutes. According to the court, “[t]hese provisions

are merely definitional and do not themselves authorize any

disciplinary action.” Werner , 689 So. 2d at 1214.

29. The lesson of Werner is that definitions simply

provide clarification of terms expressed in the subsequent

provisions of the statute at hand; one cannot be penalized for

"violating" a definition, thus this prong of the administrative

charge must fail, even though the charge at issue is, in fact, a

lawful pass - through charge in the context of this case.

30. Sec ond, the Department alleges that the Respondent

charged an improper pass - through charge in violation of Section

723.031(5)(b), Florida Statutes, which states as follows:

(5) The rental agreement shall contain

the lot rental amount and services included.

An increase in lot rental amount upon

expiration of the term of the lot rental

agreement shall be in accordance with

ss. 723.033 and 723.037 or s. 723.059(4),

whichever is applicable, provided that,

pursuant to s. 723.059(4), the amount of the

lot rental increase is disclosed and agreed

to by the purchaser in writing. An increase

in lot rental amount shall not be arbitrary

or discriminatory between similarly situated

tenants in the park. No lot rental amount

may be increased during the term of the lot

r ental agreement, except:

(b) For pass - through charges as defined

in s. 723.003(10).

31. The Department argued that the improvements to the

Park’s southwest entrance were not “governmentally mandated

capital improvements” as contemplated by the defin ition of pass -

through charge,” and therefore, the costs could not be so

charged. The Department did not present any evidence or make

any argument that the pass - through charge was not based upon the

“necessary and actual direct costs” of the southwest entr ance

construction. Therefore the sole issue to be determined as to

whether there was a violation of Section 723.031(5)(b) turns on

whether the construction of the emergency vehicle entrance on

the southwest portion of Palm Paradise constituted a

“governme ntally mandated capital improvement.”

32. “One of the most fundamental tenets of statutory

construction requires that we give statutory language its plain

and ordinary meaning, unless the words are defined in the

statute or by the clear intent of the legi slature.” WFTV, Inc.

v. Wilken , 675 So. 2d 674, 677 (Fla. 4th DCA 1996) quoting Green

v. State , 604 So. 2d 471, 473 (Fla. 1992). Chapter 723 does not

provide specific definitions for the terms governmentally

mandated or capital improvement.

33. In Hil lsboro Island House Condominium Apartments, Inc.

v. Town of Hillsboro Beach , 263 So. 2d. 209 (Fla. 1972), the

court turned to Black’s Law Dictionary , 890 (4th ed. Rev. 1969)

for the definition of “improvement.”

34. There, the Town of Hillsboro Beach appr oved the

setting aside of funds for the offshore dredging of sand to

extend the beach 75 feet eastward as an anti - erosion measure.

Hillsboro Island House Condominium Apartments, Inc. , 263 So. 2d

at 211. The Supreme Court, relying on Black’s , held that t he

project satisfied the definition of “improvement” in that “[t]he

work will go beyond repair, and will extend the beach area an

additional 75 feet seaward not only to enhance its utility and

beauty, but also to adapt the beach itself as a means of

averti ng erosion damage.” Id. at 213.

35. The evidence in this case is more than sufficient to

establish that the present southwest entrance to Palm Paradise

is a governmentally mandated capital improvement within the

meaning of the Mobile Home Act. There is no evidence that

Valentine sought to make this improvement; instead it was forced

upon him after he had expended considerable effort to resist.

36. Finally, the Department alleges that the Respondent

charged an improper pass - through charge by violating Section

723.037(1). This section addresses the notice requirement of

the “pass - through charge” and states as follows:

(1) A park owner shall give written

notice to each affected mobile home owner

and the board of directors of the

homeowners’ associatio n, 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. The notice shall identify all

other affected homeowners, which may be by

lot number, name, group, or phase. If the

affected homeowners are not identified by

name, the park owner shall make the names

and addresses available upon request. Rules

adopted as a result of restrictions imposed

by governmental entities and requi red to

protect the public health, safety, and

welfare may be enforced prior to the

expiration of the 90 - day period but are not

otherwise exempt from the requirements of

this chapter. Pass - through charges must be

separately listed as to the amount of the

c harge, the name of the governmental entity

mandating the capital improvement, and the

nature or type of the pass - through charge

being levied. Notices of increase in the

lot rental amount due to a pass - through

charge shall state the additional payment

and starting and ending dates of each pass -

through charge. The homeowners’ association

shall have no standing to challenge the

increase in lot rental amount, reduction in

services or utilities, or change of rules

and regulations unless a majority of the

affec ted homeowners agree, in writing, to

such representation.

37. As noted above, the Department did not contend that

there was any deficiency in notice to unit owners, and there is

ample evidence that the owners were well aware of every step of

the proces s.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Petitioner, Department of

Business and Professional Regulation, Division of Florida Land

Sales, Mobile Homes, and Condominiums, enter a final ord er

dismissing the Notice to Show Cause filed in this case.

DONE AND ENTERED this 10th day of December, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrati ve Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of Decemb er, 2002.

COPIES FURNISHED :

Joseph S. Garwood, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399 - 2202

Bradley W. Rossway, Esquire

Lisa R. Hamilton, Esquire

Rossway, Moore & Taylo r

The Oak Point Professional Center

5070 North Highway A1A, Suite 200

Vero Beach, Florida 32963

Ross Fleetwood, Division Director

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Hardy L. Rob erts, III, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from th e 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.