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The Florida Senate

2007 Florida Statutes

Section 723.006, Florida Statutes 2007

723.006  Powers and duties of division.--In performing its duties, the division has the following powers and duties:

(1)  The division may make necessary public or private investigations within or outside this state to determine whether any person has violated this chapter or any rule or order hereunder, to aid in the enforcement of this chapter, or to aid in the adoption of rules or forms hereunder.

(2)  The division may require or permit any person to file a statement in writing, under oath or otherwise as the division determines, as to the facts and circumstances concerning a matter to be investigated.

(3)  For the purpose of any investigation under this chapter, the division director or any officer or employee designated by the division director may administer oaths or affirmations, subpoena witnesses and compel their attendance, take evidence, and require the production of any matter which is relevant to the investigation, including the existence, description, nature, custody, condition, and location of any book, document, or other tangible thing and the identity and location of any person having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of material evidence. Upon a person's failure to obey a subpoena or to answer questions propounded by the investigating officer and upon reasonable notice to all persons affected thereby, the division may apply to the circuit court for an order compelling compliance. Financial records of a mobile home park acquired by the division pursuant to any investigation under this section are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution. However, if the division, pursuant to a consent order, final order, or cease and desist order, makes a finding that a violation of this chapter has occurred, the financial records acquired by the division specifically relevant to that finding are no longer exempt as provided for in this subsection, unless otherwise made specifically exempt by law. "Financial records" means any financial information which is owned or controlled by the mobile home park owner and is not otherwise required to be filed with the division under other sections of this chapter.

(4)  The division is authorized to prepare information to assist prospective mobile home owners and mobile home park owners in assessing the rights, privileges, and duties pertaining hereto.

(5)  Notwithstanding any remedies available to mobile home owners, mobile home park owners, and homeowners' associations, if the division has reasonable cause to believe that a violation of any provision of this chapter or any rule promulgated pursuant hereto has occurred, the division may institute enforcement proceedings in its own name against a developer, mobile home park owner, or homeowners' association, or its assignee or agent, as follows:

(a)  The division may permit a person whose conduct or actions may be under investigation to waive formal proceedings and enter into a consent proceeding whereby orders, rules, or letters of censure or warning, whether formal or informal, may be entered against the person.

(b)  The division may issue an order requiring the mobile home park owner, or its assignee or agent, to cease and desist from an unlawful practice and take such affirmative action as in the judgment of the division will carry out the purposes of this chapter. The affirmative action may include the following:

1.  Refunds of rent increases, improper fees, charges and assessments, including pass-throughs and pass-ons collected in violation of the terms of this chapter.

2.  Filing and utilization of documents which correct a statutory or rule violation.

3.  Reasonable action necessary to correct a statutory or rule violation.

(c)  In determining the amount of civil penalty or affirmative action to be imposed under this section, if any, the division must consider the following factors:

1.  The gravity of the violation.

2.  Whether the person has substantially complied with the provisions of this chapter.

3.  Any action taken by the person to correct or mitigate the violation of this chapter.

(d)  The division may bring an action in circuit court on behalf of a class of mobile home owners, mobile home park owners, lessees, or purchasers for declaratory relief, injunctive relief, or restitution.

(e)1.  The division may impose a civil penalty against a mobile home park owner or homeowners' association, or its assignee or agent, for any violation of this chapter, a properly promulgated park rule or regulation, or a rule or regulation promulgated pursuant hereto. A penalty may be imposed on the basis of each separate violation and, if the violation is a continuing one, for each day of continuing violation, but in no event may the penalty for each separate violation or for each day of continuing violation exceed $5,000. All amounts collected shall be deposited with the Chief Financial Officer to the credit of the Division of Florida Land Sales, Condominiums, and Mobile Homes Trust Fund.

2.  If a violator fails to pay the civil penalty, the division shall thereupon issue an order directing that such violator cease and desist from further violation until such time as the civil penalty is paid or may pursue enforcement of the penalty in a court of competent jurisdiction. If a homeowners' association fails to pay the civil penalty, the division shall thereupon pursue enforcement in a court of competent jurisdiction, and the order imposing the civil penalty or the cease and desist order shall not become effective until 20 days after the date of such order. Any action commenced by the division shall be brought in the county in which the division has its executive offices or in which the violation occurred.

(6)  With regard to any written complaint alleging a violation of any provision of this chapter or any rule promulgated pursuant thereto, the division shall periodically notify, in writing, the person who filed the complaint of the status of the investigation, whether probable cause has been found, and the status of any administrative action, civil action, or appellate action, and if the division has found that probable cause exists, it shall notify, in writing, the party complained against of the results of the investigation and disposition of the complaint.

(7)  The division has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement and enforce the provisions of this chapter.

(8)  The division has the authority by rule to authorize amendments permitted by this chapter to an approved prospectus or offering circular.

(9)  The division shall adopt rules establishing a category of minor violations of this chapter or rules promulgated pursuant hereto. A minor violation means a violation which does not endanger the health, safety, or welfare of mobile home residents, which does not involve the failure to make full and fair disclosure, or which does not cause economic harm to mobile home park residents.

(10)  The division is authorized to require disclosures to fully and fairly disclose all matters required by this chapter. If a park owner or operator, in good faith, has attempted to comply with the requirements of this chapter, and if, in fact, the park owner or operator has substantially complied with the disclosure requirements of this chapter, nonmaterial errors or omissions in the disclosure materials shall not be actionable.

(11)  Upon adoption of rules establishing minor violations and a determination by the division that the violation is a minor violation, the division may levy a civil penalty of up to $250 but shall not require a refund of rent increases, fees, charges or assessments, including pass-through and pass-ons collected from mobile home owners. Until rules have been adopted as provided in this section, the enforcement procedures of the division in existence on the effective date of this act shall be in effect.

History.--s. 1, ch. 84-80; s. 3, ch. 86-162; s. 25, ch. 87-102; s. 10, ch. 88-147; s. 30, ch. 93-150; s. 1, ch. 94-78; s. 4, ch. 96-394; s. 415, ch. 96-406; s. 4, ch. 97-291; s. 224, ch. 98-200; s. 1895, ch. 2003-261.