STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COASTAL STATES CONSULTANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1404

) STATE OF FLORIDA DEPARTMENT OF ) TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, Department of Administration, in Room 104, Collins Building, Tallahassee, Florida, on December 12, 1975.

APPEARANCES

For Petitioner: Peter Guarisco, Esquire

2003 Apalachee Parkway Tallahassee, Florida

For Respondent: George L. Waas, Esquire

Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

The Petitioner operates a professional engineering consultant firm on Thomasville Road having moved to that location in September 1973.

The Petitioner was initially denied "in lieu" payment as the result of an administrative determination made by the Respondent that the Petitioner did not meet the requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act.

ISSUE

Whether the Petitioner is entitled to an "in lieu" payment under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4622) as implemented by I. M. 80-1-71 and amended by P. M. 81-1.2.

FINDINGS OF FACT

1. Respondent, Florida department of Transportation, because of the proposed widening of State Road 61, Thomasville Road in Tallahassee, Florida, notified Petitioner in the spring of 1974 that the property on which the business was located was to be taken by the Respondent for road purposes.

2. Petitioner was offered, but did not accept, relocation assistance to move his business to another location or to reimburse him in the amount that a never would charge. Other relocation assistance by the Respondent to find sites which would be appropriate for Petitioner's business was offered and four such sites were presented to Petitioner.

   
   

3. Petitioner found the sites undesirable and has located a site at which he intends to move his business.

   
   

4. Petitioner contends that the location on Thomasville Road is a good location; that he acquires "walk-in" business from time to time; that the sign on the building is of a type consistent with the limited type of advertising available to members of his profession and is beneficial to him; that the building he rents on Thomasville Road has additional space in which he at one time did rent to other interests, but which rental possibilities were foreclosed upon the general public knowledge that the Respondent would widen Thomasville Road and in the process remove the rental building.

   
   

5. Petitioner operates his business from the location and shows that the operation of his consultant service is his sole business.

   
   

6. The Petitioner filed for in lieu payments after refusing to accept relocation assistance for the moving of his business

   
   

7. Petitioner contends: that nothing in the Act states or implies that a displaced person is required to accept relocation assistance if it is economically unsound; that the Respondent failed to sustain the burden of proof that Petitioner is not entitled to "in lieu" payment under the Act.

   
   

8. Respondent contends: that the Petitioner failed to show he is entitled to "in lieu" payments under the Act; that the losses such as production costs, rental income, and advertising possibilities are not within the contemplation of the Act.

   
   

   CONCLUSIONS OF LAW

   
   

9. 42 U.S.C. 4622 as implemented by I. M. 80-1-71 and amended by P. M. 81- 1.2, provides that for the owner of a business to be entitled to "in lieu" payment, the State, through the Department of Transportation, must determine that:

   
   

   1. The business cannot be relocated without a substantial loss of its existing business as determined by the nature of the business and its clientele and the relative importance of the present and proposed location to the business;

   2. The business is not part of a commercial enterprise having at least one other establishment which is not being acquired by the State or the United States and which is engaged in the same or similar business; and

   3. The business contributes materially to the income of the displaced owner.

10. The State has the discretion and duty to be "satisfied" that Petitioner's business cannot be relocated "without a substantial loss of its existing patronage". Respondent determined Petitioner ineligible.

    
    

11. The Petitioner has shown that he is entitled to reasonable expenses in moving his business, but has failed to show by substantial competent evidence that the business has suffered a substantial loss to its existing patronage or that his business income has been decreased by the required move although Petitioner has shown that he has suffered rental income and other losses such as advertisement by way of a current telephone number, a large and good sign on the building, and other inconveniences.

    
    

12. The business is not part of a commercial enterprise having at least one other establishment which is being acquired by the State or the United States and which is engaged in the same or similar business.

RECOMMENDED ORDER

Deny the petition for the reason that Petitioner has not shown that he is eligible for "in lieu" payment under the Federal Statutes and Rules. Grant reasonable expenses for moving his business as offered heretofore by the Respondent.

DONE and ORDERED this 10th day of March, 1976.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Peter Guarisco, Esquire 2003 Apalachee Parkway Tallahassee, Florida Counsel for Petitioner

George L. Waas, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Counsel for Respondent

Docket for Case No: 75-001404

Orders for Case No: 75-001404