Prime Orlando Properties, Inc. v. Department of Business Regulation, Div. of Land Sales, Condominiums and Mobile Homes, s. BI-204
| Decision Date | 24 December 1986 |
| Docket Number | Nos. BI-204,BI-203,s. BI-204 |
| Citation | 12 Fla. L. Weekly 27,502 So.2d 456 |
| Parties | 12 Fla. L. Weekly 27 PRIME ORLANDO PROPERTIES, INC., Appellant, v. DEPARTMENT OF BUSINESS REGULATION, DIVISION OF LAND SALES, CONDOMINIUMS AND MOBILE HOMES, Appellee. DEVONWOOD DEVELOPMENT CORPORATION, Appellant, v. DEPARTMENT OF BUSINESS REGULATION, DIVISION OF LAND SALES, CONDOMINIUMS AND MOBILE HOMES, Appellee. |
| Court | Florida District Court of Appeals |
T. Whitney Strickland, Jr., Tallahassee; and Carl A. Bertoch, Tallahassee, for appellants.
Thomas A. Klein, Staff Atty., Dept. of Business Regulation, Tallahassee, for appellee.
Devonwood Development Corporation (Devonwood) and Prime Orlando Properties, Inc. (Prime Orlando), each appeal from a final order of the Division of Land Sales, Condominiums and Mobile Homes (Division). The two issues for our review are (1) whether the Division's administrative order should be reversed due to insufficient notice of an order to show cause, and (2) whether the administrative order should be reversed and remanded as it does not constitute final agency action.
On June 14, 1984, Devonwood and Prime Orlando signed consent orders with the Division acknowledging inadvertent violations of Chapter 498, Florida Statutes. Among other things, the Consent Orders required the corporations to provide to each purchaser in the respective subdivision a notification package which would include a notification letter and a disclosure statement approved by the Division. In addition, the corporations agreed to refund principal and interest to each purchaser requesting same, to report to the Division on a quarterly basis the status of all refund payment accounts, to file with the Division a list of all purchasers receiving the notification package, to report to the Division its total refund liability, and to pay a civil penalty of $2,500.
In each instance, the letter included with the notification package contained the following paragraph:
If you wish to participate in this offering, please make your requests in writing to Carl A. Bertoch, Esquire, P.O. Box 3106, Tallahassee, Florida 32315-0106, Counsel to (Devonwood Development Corp.) (Prime Orlando Properties, Inc.). Your request should include proof of payment on your contract, tax payments and recording fee. Refunds will be paid by installments over a 3 year period.
On March 12, 1985, the Division sent each corporation a Notice to Show Cause and a Notice of Right to Hearing. The certificate of service on each notice reflects that copy was sent to: "Paul W. Cotton 3000 NE 30th Place, Intracoastal Building, Suite 400, Ft. Lauderdale, Florida 33306." A copy of the Notice to Show Cause was not sent to Mr. Bertoch, who represented both corporations during negotiations involving the Consent Order and who was named in the letter included in the documents sent to purchasers from the respective corporations.
Devonwood and Prime Orlando did not request a hearing within the fourteen days provided in the Division's statement of Right to a Hearing. On July 10, 1985, the Division entered a Final Order in each cause. Paragraph 11 of each order provides:
The Respondent shall pay a civil penalty to the Division in the aggregate total amount of Sixty Thousand Dollars ($60,000.00) within thirty (30) days of the entry of this Final Order. However, Petitioner may waive the enforcement of this civil penalty, in whole or in part, to the extent the Respondent complies with the terms of this Final Order.
We affirm the Division's final order, but consider the issues raised by Devonwood and Prime Orlando merit further discussion.
The Division, as an "agency" within the purview of Section 120.52(1)(b), Florida Statutes, may act only in accordance with statutory procedure. See 1 Fla.Jur.2d, Administrative Law s. 38. The notice provisions which govern this case are set forth at section 120.59(4), Florida Statutes (1983), which provides that "[p]arties shall be notified either personally or by mail of any order; and, unless waived, a copy of the final order shall be delivered or mailed to each party or to his attorney of record," and at section 498.005(8), Florida Statutes (1983), which defines "notice" under the Land Sales Practice Law as:
a communication in writing from the division executed by its director or other executive officer. Notice to a subdivider shall be deemed complete when delivered to the subdivider's address currently on file with the division.
Although Chapter 498 is quite specific with regard to the manner in which notice is to be served by the Division, this court has held that "[n]otice of agency action which does not inform the affected party of his right to request a hearing, and the time limits for doing so, is inadequate to 'trigger' the commencement of the administrative process." Henry v. State Department of Transportation, 431 So.2d 677, 680 (Fla. 1st DCA 1983), citing Wahlquist v. School Board of Liberty County, 423 So.2d 471, 473 (Fla. 1st DCA 1982) and Sterman v. Florida State University Board of Regents, 414 So.2d 1102 (Fla. 1st DCA 1982). On the other hand, this court has also held that when a clear point of entry is provided in a notice to show cause, the affected party must affirmatively seek a hearing within the permissible time frame. Failure to do so has been construed as a waiver of the right to a hearing. Mohican Valley, Inc. v. Division of Florida Land Sales and Condominiums, 441 So.2d 1126 (Fla. 1st DCA 1983), pet. for review denied, 449 So.2d 265 (Fla.1984); City of Punta Gorda...
To continue reading
Request your trial
-
O'Donnell's Corp. v. Ambroise
...or interlocutory in nature is whether the case is disposed of by the order....'" Id., quoting Prime Orlando Props., Inc. v. Dept. of Bus. Regulation, etc., 502 So.2d 456, 459 (Fla. 1st DCA 1986). Because the order on appeal simply remands the petition back to the administrative law judge fo......
-
O'Donnell's Corporation v. Ambroise, Case No. 5D03-324 (Fla. App. 5th Dist. 11/7/2003)
...in nature is whether the case is disposed of by the order . . . .'" Id., quoting Prime Orlando Props., Inc. v. Dept. of Bus. Regulation, etc., 502 So. 2d 456, 459 (Fla. 1st DCA 1986). Because the order on appeal simply remands the petition back to the administrative law judge for further pr......
-
Stanberry v. Escambia County
...is final or interlocutory in nature is whether the case is disposed of by the order ....") (quoting Prime Orlando Props. v. Dep't of Bus. Regulation, 502 So.2d 456, 459 (Fla. 1st DCA 1986)). The fact that the trial court granted remittitur without providing the plaintiff the opportunity for......
-
Murphy v. WISU Properties, Ltd.
...and whether a question remains open for judicial determination.") (quoting Prime Orlando Props., Inc. v. Dept. of Bus. Reg., Div. of Land Sales, Condos. and Mobile Stores, 502 So.2d 456, 459 (Fla. 1st DCA 1986)). We therefore address the merits of this We conclude that the trial court erred......