Gould v. Division of Florida Land Sales & Condominiums
This text of 477 So. 2d 612 (Gould v. Division of Florida Land Sales & Condominiums) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
This cause is before us on appeal from a final order of the Division of Florida Land Sales and Condominiums (Division), finding appellant Gould guilty of violating Sections 498.023(1) and (2), 498.049(4), 498.051(l)(a), (b), and (d), and 498.035, Florida Statutes [614]*614(1981).1 The order’s penalty provision fined Gould the sum of $10,000 “for each of the foregoing violations,” and included a cease and desist order, and a requirement [615]*615that he offer rescission and full refund to “all purchasers of an interest in subdivided land located at the Indian Woods of Winter Springs subdivision” and to any persons from whom he had directly or indirectly received monies “related to the purchase or lease of an interest in subdivided land at Indian Woods of Winter Springs subdivision.” The issues on appeal are: (1) whether the final order is supported by competent, substantial evidence; (2) whether the Division’s notice to show cause adequately informed Gould of the nature of the charges filed against him; (3) whether there is any evidence that Gould violated Chapter 498, Florida Statutes, in his individual capacity; and (4) whether the final order sufficiently sets forth the penalties imposed upon Gould.
Although a recitation of all the evidence presented is unnecessary, in order that our decision may be understood, we set forth the following evidence regarding Gould’s method of operation. Gould is the President of Vaughn Motors, Inc., a corporation which sells mobile homes. Indian Woods of Winter Springs (Indian Woods) is a residential mobile home community owned by Mohican Valley, Inc. (Mohican), of which Gould is president. The typical operation is that individuals wishing to live in Indian Woods contract to purchase a mobile home from Vaughn Motors, Inc., and then contract to lease a lot from Indian Woods. When the mobile home is delivered and set up on the lot, the transaction is completed.
The first alleged violation in the notice to show cause was that Gould had “participated in the offer and/or disposition of lots, parcels, units, or interests in the Indian Woods subdivision in violation of Section 498.023(1), and/or Section 498.049, and/or Section 498.051, in that the subject real property was neither exempt, registered, nor approved for the taking of reservation deposits as provided by Chapter 498, Florida Statutes.” In connection with this allegation, it must be noted that Section 498.-025(l)(h), Florida Statutes (1981), provides an exemption for any offer or sale of an interest in land on which there is a building or as to which there is a legal obligation on the part of the seller to construct such a building within two years from the date of the disposition. The second alleged violation in the notice to show cause was that Gould had published or caused to be published false and misleading advertising in the offer and/or disposition of subdivided lands in violation of Section 498.035, and/or Section 498.049, and/or Section 498.051, Florida Statutes (1981). The third alleged violation was that Gould had participated in the offer and/or disposition of subdivided lands without delivering to each purchaser a current public offering statement as required by Chapter 498.
In support of the first alleged violation, the Division listed five transactions, [616]*616four of which were individual leases for lots in Indian Woods. The hearing officer found that the four individual transactions were exempt pursuant to Section 498.-025(l)(h). The Division, in its final order, agreed as to the exemption of one lease but found that the other three leases were not exempt. At oral argument, the Division conceded that the second of these individual leases was exempt from the application of Chapter 498. We hold that the hearing officer’s finding that the two remaining leases were exempt is supported by competent, substantial evidence, and, in so holding, we rely on the following definition of competent, substantial evidence set forth by the Florida Supreme Court in De Groot v. Sheffield, 95 So.2d 912, 916 (Fla.1957):
We have used the term “competent substantial evidence” advisedly. Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. In employing the adjective “competent” to modify the word “substantial,” we are aware of the familiar rule that in administrative proceedings the formalities in the introduction of testimony common to the courts of justice are not strictly employed. We are of the view, however, that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the “substantial” evidence should also be “competent.” [citations omitted]
Our review of the record convinces us that the hearing officer’s finding that the two remaining individual transactions at issue were exempt from Chapter 498, comes within the rule that findings in a hearing officer’s recommended order are entitled to great weight and may not be rejected or modified unless they are unsupported by the evidence. Kimball v. Hawkins, 364 So.2d 463 (Fla.1978).
The fifth transaction listed under the first alleged violation concerned 156 leases entered into before Mohican purchased Indian Woods. The Division contended that the assignment of the 156 leases to Mohican was a bulk transfer, such being a transaction within the purview of Chapter 498. The hearing officer found that the assignment of the 156 leases was in fact taken by Mohican but that the assignment was not a disposition under Chapter 498. The Division agreed with the hearing officer’s finding that Gould had no official connection with the subject mobile home subdivision prior to its purchase by Mohican. The only evidence offered in support of the charge that the acceptance of the assignment of the 156 outstanding leases constituted a violation of the Chapter 498 was the assignment itself. We hold that the Division’s proof of a violation was insufficient and find no basis for the Division to reject the hearing officer’s finding that no violation was proved.
As above mentioned, the notice to show cause contained a second alleged violation that Gould had published or caused to be published false and misleading advertising in the offer of subdivided lands. We find that the notice to show cause reasonably informed Gould of the nature of the charges against him, and Gould admitted that he caused advertising to be published concerning the offering of the lot leases in the subdivision after its purchase by Mohican. The hearing officer found that Gould was aware that the entire subdivision was subject to a foreclosure proceeding being litigated in Seminole County. The substantial encumbrance of the title to these lots was not revealed to prospective lessees/purchasers in the advertisements. The hearing officer and the Division found this violation proved, and we find that appellant has not shown error as to this violation.
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477 So. 2d 612, 10 Fla. L. Weekly 2151, 1985 Fla. App. LEXIS 15811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gould-v-division-of-florida-land-sales-condominiums-fladistctapp-1985.