STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YELLOW CAB COMPANY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 81-2940

) NEIGHBORLY SENIOR SERVICES, INC.,) and FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Following a hearing conducted herein on July 13 through 16, 1982, in St. Petersburg, Florida, the undersigned considered testimony and other evidence produced by the Petitioner herein concerning the issue as to whether or not the mass transportation services available in the Pinellas County community are unavailable, insufficient and inappropriate for the elderly and handicapped persons.

BACKGROUND

Respondent, Neighborly Senior Services, Inc., applied for and received a capital grant from the Federal government under Section 16 (b)(2) of the Urban Mass Transportation Act (UMTA) of 1964. This grant is administered and disbursed through the Florida Department of Transportation. (Also a Respondent in these proceedings.)

After approval by the Florida Department of Transportation, but prior to actual disbursement of the grant funds, the Petitioner, Yellow Cab Company, Inc., a private transit operator in the St. Petersburg, Pinellas County, community, formally objected to Neighborly Senior Services, Inc.'s receipt of the grant funds.

1. Section 16(b)(2) authorizes the Urban Mass Transportation Administration (UMTA) to make capital grants to private non-profit organizations in urbanized and non-urbanized areas to provide transportation services for elderly and handicapped persons when existing mass transportation services are unavailable, insufficient or inappropriate.

   
   

2. The grant request herein was for funds for the replacement of ten (10) vehicles which had reached their "useful life expectancy." The funds applied for were not to be used to expand the fleet of vehicles currently maintained by Neighborly Senior Services.

   
   

3. Neighborly Services is a private non-profit agency serving the elderly and handicapped citizens of Pinellas County since its formation in 1966. It is responsible for administering, or otherwise providing, inter alia, the following services:

   1. Thirty-six congregate dining programs;

   2. Meals-on-wheels, a program which serves approximately 2,000 homebound clients meals on a daily basis;

   3. An adult day-care program;

   4. Counselling and other supportive services;

   5. Community care for the elderly;

   6. A senior center in Palm Harbor, Florida;

   7. An escort service for the elderly;

   8. A deaf service center; and

   9. An energy program in Clearwater, Florida.

      
      

4. Neighborly submitted its request for approval of a capital grant, which was reviewed initially at the local level. At that time all local private transit operators and providers were afforded an opportunity to provide input into the consideration of, and to otherwise formally object to, the subject grant application. Following a hearing of Neighborly's proposal at the local level, where it was initially approved, the matter was again submitted for review at the district level for approval. Again, the private transit operators and providers in the St. Petersburg, Pinellas County community were afforded an opportunity to provide input or otherwise object to Neighborly's grant application. Again, the grant request was approved. Thereafter the matter was referred to this Division for a Section 120.57(1), Florida Statutes, formal hearing where the Petitioner was again afforded an opportunity to proceed in a de novo hearing. Testimony was received and considered on the issue as to whether or not Respondent, Neighborly, should receive the grant funds as requested in its Section 16 (b)(2) capital grant application.

   
   

5. After consideration of all the evidence introduced herein by Petitioner and the Respondents, the undersigned concludes that the Respondent, Neighborly, is entitled to receive the funds hereby requested inasmuch as the existing mass transportation services are "unavailable, insufficient, or inappropriate."

   
   

6. The evidence herein reveals that Respondent Neighborly has satisfied a showing that it meets all three requirements i.e., unavailable, insufficient, or inappropriate transportation services for the elderly and handicapped and is therefore eligible for, and should receive, the requested grant funds. In this regard, Dave Duffie, the Administrator for Bureau Services, Central Office for the Florida Department of Transportation is in charge of the review procedures for the subject grant applications. Noteworthy was Administrator Duffie's testimony as to the review procedures utilized by the Respondent, Florida Department of Transportation, when it considered the Respondent Neighborly's grant application herein. Initially, Administrator Duffie determined that the subject grant applicant correctly followed the established filing procedures; had provided the requisite assurances and the established review procedures for approval of 16 (b)(2) UMTA grants were followed. (Petitioner's Composite Exhibit 1.) Prior to approval of the subject grant application, the review committee considered the issue as to whether or not approval of the subject grant application unfairly created competition between the public versus the private mass transportation providers. 1/

   
   

7. Evidence herein reveals (1) that there is a need for the transportation services here being provided by Neighborly and (2) the grant application was for the replacement of ten (10) of the vehicles which Neighborly utilized to provide transport services for the elderly and handicapped. The transportation services here provided by Neighborly are unavailable by the existing mass transit service

providers and are otherwise insufficient in that they do not meet Neighborly Services clients' special needs. Finally, the evidence clearly established that the mass transit service providers could not appropriately provide the services here being provided by Neighborly as it was financially prohibitive as evidenced by the financial data submitted on behalf of the existing mass transit services providers. In this regard, evidence here revealed that the clients of Neighborly were all without financial wherewithal to obtain services as they were in the lower income bracket. All of the transit providers testified, in this connection, that there was a marked decrease in the utilization of their services by Neighborly's clients during the latter part of the month when their public assistance monies were exhausted. 2/

For all of these reasons, I shall recommend that the Respondent, Neighborly Senior Services, Inc., receive the funds which have been initially approved by the Respondent, Florida Department of Transportation, as particularly set forth in Neighborly's Section 16(b)(2) grant application.

Accordingly, it is hereby RECOMMENDED:

1. That Respondent's, Neighborly Senior Services, Inc.`s Motion for a Directed Verdict and/or Summary Judgment be GRANTED on the grounds that the mass transportation services available in the Pinellas County community are unavailable, insufficient and inappropriate.

   
   

2. Further, it is hereby RECOMMENDED that the Respondent, Florida Department of Transportation, enter a Final Order declaring Respondent, Neighborly Senior Services, Inc., eligible for receipt of the funds requested herein in its grant application.

DONE AND ORDERED this 1st day of December, 1982, at Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1982.

ENDNOTES

1/ Administrative notice was taken of the guidelines used by the State in implementing UMTA grant applications; Florida Procedures and Guidelines (Petitioner's Exhibits 2 through 6) and consideration was given to other documentary exhibits introduced into evidence at the hearing herein.

2/ As an aside, Administrator Duffie may recommend approval of a grant application even absent a showing that a grant applicant does not satisfy all three requirements as set forth hereinabove. Such requirements, while being

generally required, may be recommended for approval based on urgency when there is a showing that, for example, one of the three above referred to criteria is missing. However, Respondent Neighborly Senior Services, Inc., demonstrated that it satisfied all three criteria, i.e., unavailable, insufficient, or inappropriate provision of transit services for the elderly and handicapped persons by the existing mass transportation services providers.

COPIES FURNISHED:

Douglas A. Mulligan, Esquire Paul A. Pappas, Secretary Post Office Box 13517 Department of Transportation St. Petersburg, Florida 33733 Haydon Burns Building

Tallahassee, Florida 32301

Joseph C. Whitelock, Esquire

447 Third Avenue North

St. Petersburg, Florida 33701 Charles A. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 81-002940

Orders for Case No: 81-002940