Mohican Valley, Inc. v. Division of Florida Land Sales and Condominiums

• Decision Date: 09 November 1983
• Docket Number: No. AS-362,AS-362
• Citation: 441 So.2d 1126
• Parties: MOHICAN VALLEY, INC., d/b/a Indian Woods, Appellant, v. DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, Appellee.
• Court: Florida District Court of Appeals

Page 1126

441 So.2d 1126

MOHICAN VALLEY, INC., d/b/a Indian Woods, Appellant, v. DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, Appellee.

No. AS-362.

District Court of Appeal of Florida,

First District.

Nov. 9, 1983.

Ladd H. Fassett of Smathers, Pleus, Adams, Fassett & Divine, P.S., Orlando, for appellant.

Harold F.X. Purnell, General Counsel, Dept. of Business Regulation, Tallahassee, for appellee.

JOANOS, Judge.

Following preliminary proceedings, including proposal of a consent order by the Division of Land Sales ("the Division") to Mohican Valley, Inc. ("Mohican") and a notice of intent to file administrative charges alleging non-compliance with Chapter 498, Florida Statutes, the Division served Mohican, on December 14, 1982, with a notice to show cause why a cease and desist order should not be issued and civil penalties assessed. This notice provided that Mohican had 21 days within which to request either an informal conference or a formal hearing and gave specific instructions for requesting such procedures in writing. Mohican did not request a hearing within the 21 day period, but instead, in a letter dated December 20, 1982, Mr. Divine on behalf of Mohican wrote to Mr. Mullins of the Division stating that he had received the notice to show cause and was surprised by it because they had been in contact with one another by telephone, although he realized there were a few loose ends to be tied up. After discussing what he understood to be the main concern of the Division, Mr. Divine closed the letter by asking that Mr. Mullins let him know if his understanding of the matter was incorrect. Mr. Divine did not request a hearing of any kind in this letter or at any time during the 21 day period.

On January 18, 1983, after the 21 day period had passed, Mr. Mullins wrote Mr. Divine that Divine had failed to forward a copy of a lease discussed in the December 20, 1982, letter, and asked that a copy be sent to the Division. On March 9, 1983, the Division issued a final order pursuant to the notice to show cause, finding that Mohican had waived its right to an administrative hearing by failing to request one and finding Mohican in violation of Chapter 498, ordering Mohican to cease and desist its operations, and assessing a civil penalty. On March 10, 1983, Mohican filed a request for a formal hearing on the issues raised in the notice to show cause. The Division did not respond to Mohican's request or a later motion for reconsideration and request for hearing, or to a motion to compel ruling and amendments to motion for reconsideration, therefore Mohican filed a notice of appeal in this court.

Mohican argues it did not intentionally waive hearing and that the Division misled them to believe a formal request for hearing was unnecessary because of continuing "vigorous negotiations." Mohican refers...