STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: RELOCATION ASSISTANCE ) APPEAL MR. ELLIOT PINKNEY )

PARCEL 147 - PROJECT ) CASE NO. 75-1607 93220-2411 )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, G. Steven Pfeiffer, held a public hearing in this case on February 13, 1976, in West Palm Beach, Florida.

APPEARANCES

The following appearances were entered: Justus W. Reid, Howell, Kirby, Montgomery, D'Aiuto & Dean, West Palm Beach, Florida, for Elliot Pinkney; and Philip Bennett, Tallahassee, Florida, for the Department of Transportation.

Elliot Pinkney ("Applicant" hereafter) filed a request with the Department of Transportation District Relocation Officer for relocation assistance benefits in accordance with the Real Property Acquisition Policies Act of 1970 (42 USCA Sec. 4601 et seq) by letter dated June 2, 1975. The State of Florida Department of Transportation, Bureau of Right-of-Way ("Agency" hereafter) reviewed the request and determined that the Applicant did not meet eligibility requirements for relocation payments. The case was referred to the Division of Administrative Hearings on September 17, 1975, so that a hearing could be scheduled. The final hearing was scheduled to be conducted in accordance with a Notice of Hearing dated December 15, 1975.

At the final hearing the Applicant appeared as a witness on his own behalf.

The Agency called Edgar Allen Fisher, a right-of-way agent with the Department of Transportation, as its only witness. Hearing Officer's Exhibits 1 and 2 were received in evidence without objection.

Counsel for the Applicant suggested at the hearing that the Applicant would be entitled to recover a reasonable attorney's fee in the event that he prevails in the case. No citation of of authority was offered in support of this contention, and the agency was not prepared to argue in opposition to it. The parties stipulated that in the event it is later determined the applicant is entitled to collect attorney's fees, the undersigned hearing officer would retain jurisdiction of the case to hear evidence respecting attorney's fees.

FINDINGS OF FACT

1. Negotiations for the purchase of right-of-way property for construction of Interstate Highway 95 in Palm Beach County, Florida, began on May 1, 1973.

   On that date the Applicant lived in an apartment at 27 S.W. 15th Avenue, Delray Beach, Florida with Ms. Willie Hendley, and seven children. The Applicant and Ms. Hendley began living together in approximately 1968. Ms. Hendley had five children at that time. The Applicant and Ms. Hendley had two more children between 1968 and 1973. This residence was located within the highway right-of-

   way. The Applicant was notified by the Agency that it would be necessary for them to relocate. The applicant, Ms. Hendley, and the seven children moved to a house at 230 N. W. 13th Avenue, Delray Beach, Florida, in approximately August, 1973. The Agency found the new living quarters inadequate under the regulations of the Federal Department of Transportation, which require that replacement housing must be decent, safe, and sanitary. An agent of the Agency informed the Applicant that in order to receive relocation benefits, the new residence would need to be made decent, safe, and sanitary, or the family would have to move to a new location that would meet the requirements. Several months after they moved to the house on N.W. 13th Avenue, the Applicant and Willie Hendley separated. The Applicant moved out of the house, and found a home on N. E. 9th Avenue. He anticipated that Ms. Hendley and the children would move into this home, but they did not. The Applicant stayed at this address for approximately one month. He then moved into a room at his sister's home where he stayed until the end of 1975.

   
   

2. After they separated, Ms. Hendley and the children moved into a residence at 917 S. W. 3rd Ct., Delray Beach, Florida. This residence met the requirements of the Department of Transportation, and Ms. Hendley received relocation assistance benefits.

   
   

3. The Applicant and Ms. Hendley and the seven children were displaced from their residence at 27 S. W. 15th Avenue, Delray Beach, Florida, as a result of the acquisition of right-of-way for Interstate Route 95. The Applicant was later displaced from the family household as a result of his separation from Ms. Hendley. There was no evidence offered at the hearing that the Applicant moved into living quarters that were comparable to the quarters at 27 S. W. 15th Avenue. That was a two bedroom apartment. The Applicant moved into a single room. The Applicant's displacement was in effect the result of his separation from Ms. Hendley, rather than the result of the acquisition of right-of-way.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. In order to be eligible for relocation assistance benefits under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 USCA 4601 et seq) it is necessary that the Applicant be displaced as a direct result of the acquisition of real property for a Federal program or project. 42 USCA 4622; 49 CFR Sec. 25.11. In order to be eligible for benefits, an applicant must move into a dwelling which is comparable to the dwelling from which he was displaced, and is decent, safe, and sanitary. 42 USCA Sec. 46.24; 49 CFR Secs.25.15, 25.17.

   
   

5. In view of the fact that the Applicant was displaced as a direct result of the breakup of his relationship with Ms. Hendley, rather than as a direct result of the acquisition of real property for Interstate Highway Route 95, the Applicant is not entitled-to recover relocation assistance benefits. Relocation assistance benefits are not available to establish two households where a single household is displaced.

   
   

6. Since it has been herein determined that the Applicant is not entitled to receive benefits, there is no necessity to consider the applicant's contention that he is entitled to recover a reasonable attorney's fee. In the interest of economizing future action in this case, should this recommended order not be followed, consideration will be given the contention. There is no specific authorization for attorney's fees set out in Part Two of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.

Attorney's fees have been authorized in actions brought under Part Two of the Act where the Plaintiff has advanced the policy inherent in the act on behalf of a significant class of persons. Dasher v. Housing Authority of City of Atlanta, Georgia, 64 FRD 720 (N.D. Ga. 1974). The allowance of attorney's fees in that case was based upon the so-called "private attorney general doctrine". In that case the Plaintiffs secured application of the Act to a program which the agency contended was not covered by the Act. In the instant case the Applicant has neither established nor sought to establish an advancement of the policy of the Act but has rather sought benefits which would be personal to himself. The request for recovery of an attorney's fee should therefore be denied.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

1. That the application for relocation assistance benefits filed by Elliot Pinkney be denied, and that the relocation assistance appeal be dismissed.

DONE and ORDERED this 6th day of April, 1976 in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Docket for Case No: 75-001607

Orders for Case No: 75-001607