STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELEANOR BOOTH, )

)

Petitioner, )

)

vs. ) Case No. 87-3294

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent )

)

RECOMMENDED ORDER

The formal administrative hearing in this case was held before William C. Sherrill, Jr., in Fort Lauderdale, Florida, on October 8, 1987. The only remaining issue in this case is whether the Department of Transportation has selected the correct comparable replacement dwelling for purposes of calculating the amount due the Petitioner for the replacement housing purchase additive payment. The parties stipulated at the formal hearing that the Petitioner was to receive an additional entitlement of $931.00 as a result of a change in a ratio. T. 7-8. Appearing for the parties were:

For the Petitioner: James M. Earls

Arrow Consultants 3910 N. 65th Avenue

Hollywood, Florida 23024

For the Respondent: Vernon L. Whittier, Jr., Esquire

Florida Department of Transportation 605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

The Petitioner presented 2 exhibits, which were admitted into evidence, and the testimony of Tracy Graff. Respondent presented 2 exhibits, which were admitted into evidence, and the testimony of Sylvia Updike and Eleanor Booth.

There is a transcript. The parties submitted proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. In March, 1982, the Petitioner, Eleanor R. Booth, and her husband, Fred

   E. Booth, owned and lived upon a tract of land located at 4721 State Road 84, Fort Lauderdale, Florida.

   
   

2. The tract was taken by the Department of Transportation for road right- of-way, and the issue in this case is whether the Department of Transportation, pursuant to its policies, has properly calculated the amount to be paid to the Petitioner. Mr. Booth is now deceased.

3. Mr. and Mrs. Booth lived on the property for thirty-four years. T. 48. The total tract was 19,593 square feet, which is somewhat less than one-half acre. T. 18, 21; P. Ex. 1.

   
   

4. On or about October 15, 1982, which was the date of the appraisal of the property, there were seven trailers or mobile homes on the property. Two trailers were designated by the appraiser as storage and workshop, respectively. One trailer was designated by the appraiser as the mobile home of Mr. and Mrs. Booth. The others were not designated. The appraisal parcel sketch also showed a shed, a restroom, and a laundry. The shower and toilet (restroom) building was made of concrete and contained 58 square feet. A one story frame building of about 215 square feet was used as a laundry. The shed was a metal and frame shed measuring 8.5 by 8.0 feet. The appraiser considered the shower/toilet building and the laundry building to be real property improvements. The trailers were considered to be personal property. P. Ex. 1.

   
   

5. The Department of Transportation selected as the comparable replacement dwelling a 1972 mobile home containing about 500 habitable square feet, 750 total square feet, and consisting of a total of 5 rooms, with 2 bedrooms and 1 bathroom. R. Ex. 2; T. 18, 23. The selling price was $29,500. R. Ex. 2.

   
   

6. The primary issue in this case is whether the replacement dwelling described above is comparable. This in turn depends upon an analysis of the manner in which Mr. and Mrs. Booth used the various trailers and buildings located on their property.

   
   

7. The mobile home which contained the kitchen, bedroom, and bathroom primarily used by Mr. and Mrs. Booth had about 322 habitable square feet and 390 total square feet. R. Ex. 2. It consisted of 4 rooms in total, 1 bedroom, 1 living room, 1 kitchen, and 1 bathroom. T. 71.

   
   

8. The only evidence submitted by the Department of Transportation concerning the nature of the "dwelling" of Mr. and Mrs. Booth or the manner in which the additional trailers and other out buildings were used is the household survey, P. Ex. 1, which was signed on March 30, 1982, by Mr. Booth and B.A. Davis for the Department. This form was intended to identify the social and economic status of the family and to identify the number of rooms, number of baths, number of people, and similar data concerning the household, but the evidence shows that in part it was filled out incorrectly. P. Ex. 1 characterizes the "subject dwelling" as a mobile home consisting of 3 rooms, with 1 bedroom and 1 bathroom. Mr. Davis did not testify, and Mr. Booth is deceased. Tracy Graff, who was called by the Department as its only witness, made it clear that he did not personally know the status of uses of the out buildings and trailers, but simply concurred with what he thought was the conclusion drawn by Mr. Davis on P. Ex. 1 as to what was the "dwelling" of Mr. and Mrs. Booth. See T. 35, 39, 41, 42. Mr. Graff did not testify that the tract of land was or had been used as a commercial trailer park with trailers for rent to the public, and neither did any other witness.

   
   

9. Mr. and Mrs. Booth routinely used the laundry building, the toilet and shower building, and the shed located on the property for their personal, domestic use. T. 50, 67, 68.

   
   

10. Mr. Booth was rarely in the mobile home when visited by his daughter, but was elsewhere on the property working. T. 59.

11. Mr. Booth primarily kept tools, lawn equipment, paint, and other maintenance materials in the shed. T. 62, 68, 75. Two other trailers were used by Mr. and Mrs. Booth for storage of personal belongings. T. 62, 68. This was necessary because there was not room enough in the one mobile home for storage of personal property. T. 64. 68.

    
    

12. Mr. Booth "had a flea market." T. 62. Some of the "flea market" materials were stored in the trailers. T. 63, 64, 76. Some of the "flea market" materials may have been stored in the shed but most of the "flea market" materials were stored under canvas covers adjacent to the shed. T. 73-74.

    
    

13. There is no evidence in the record to explain the nature of the "flea market" activities of Mr. and Mrs. Booth. It is uncertain where the flea market was.

    
    

14. In 1982, Mr. and Mrs. Booth were living on the property. The niece of the daughter of Mr. and Mrs. Booth and her husband and two children, and the sister of the daughter of Mr. and Mrs. Booth were also residing on the property in 1982. T. 54. Additionally, a nephew of the daughter of Mr. and Mrs. Booth had a camper trailer parked on the property, and may have lived in it from time to time. T. 56, 61, 63. Finally, in 1982 Mr. and Mrs. Booth rented a space to a John Schneider to park his trailer, but apparently Mr. Schneider did not live on the property. T. 55.

    
    

15. Thus, all of the persons residing on the property in 1982 were relatives of Mr. and Mrs. Booth. Id.

    
    

16. Prior to 1982, one of the other trailers in which relatives lived in 1982 was used by Mr. and Mrs. Booth as a bedroom for their daughter, and as a place to live for their son and his two children. T. 64, 65.

    
    

17. These family members were not restricted from using the laundry or toilet and shower buildings, T. 55, 56, and at times used these facilities. T. 71.

    
    

18. When Mr. and Mrs. Booth moved from the property, they needed a three bedroom, two bath house and a shed measuring 54 by 25 feet (1350 square feet) to house all of the personal property moved to the new house and which they had had in storage and used in the trailers and shed on the original property. T. 65.

    
    

19. Mr. and Mrs. Booth and their daughter considered the trailers to be part of their dwelling because they had pictures, books, and other personal item stored in them, T. 64, 65.

    
    

20. The Respondent has adopted as policy the Right of Way Operating Procedures found in P. Ex. 2 and set forth in conclusions of law 4, 5, 6, and 8.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this case.

    
    

22. The Department of Transportation is authorized to administer a relocation assistance program providing advisory services and payment benefits to persons displaced from their dwellings as a result of highway construction

    projects, pursuant to Rule 14-15.05, Fla. Admin. Code, policies contained in the Department of Transportation Right of Way Manual, and the federal Uniform Relocation Assistance and Real Property Acquisition Act of 1970.

    
    

23. The issue in this case concerns the computation of the "replacement housing payment" "purchase additive" pursuant to Procedure No. RA 4-7, Department of Transportation Right of Way Manual, Right of Way Operating Procedures, P. Ex. 2 (DOT Manual). The purpose of this payment is to compensate for loss of favorable financing on an existing mortgage, and to reimburse expenses incident to the purchase of a replacement dwelling. Id. The payment is limited to $15,000, and is computed as the difference between the acquisition price paid by the Department for the owner-occupied dwelling and the lesser of the price the displacee actually pays for a decent, safe and sanitary dwelling or the amount determined by the Department as necessary to purchase a comparable dwelling. Subparagraph C, RA 4-7, supra. In this case, the lesser will be the amount needed to purchase a comparable dwelling, and hence the need to identify comparables.

    
    

24. Procedure No. RA 4-1, of the DOT Manual provides in part:

    
    

    1. COMPARABLE REPLACEMENT DWELLING: The replacement dwelling(s) used in establishing displacee's maximum replacement housing payment eligibility must be:

       2. Functionally similar and substantially the same as the acquired dwelling, with respect to number of rooms and area of living space. (E.S.)

       
       

25. Procedure No. RA 4-7, DOT Manual, subparagraph C.3., provides that:

    
    

    The basic replacement dwelling used in computing the replacement housing payment must be comparable to the dwelling unit acquired. When the comparable replacement dwelling used in the purchase additive computation is similar but lacks certain major exterior attributes (such as a garage, swimming pool, outbuilding, waterfront lot, golf course lot, or similar attribute), a separate computation may be made, in accordance with procedure RA 4-9. (E.S.)

    
    

26. Procedure No. RA 4-9, DOT Manual, paragraph A, provides in part:

    
    

    1. MAJOR EXTERIOR ATTRIBUTES: A major exterior attribute is defined as any appurtenant structure of substantial value which is exterior to the residential

       dwelling ... which substantially contributes to the value of the property and to the quality or standard of living of the displacee. The following guidelines should help in determining when a supplemental payment to replace the major exterior

       attribute should be computed or when the acquisition price of the acquired dwelling should be reduced to delete the estimated value contribution of the attribute that is not available in the comparable used:

       1. The attribute must be currently in use by, and a part of the lifestyle of, the displaced owner-occupant.

       2. Substantial additional expense would be required to replace with an attribute of like utility.

       3. The attribute must be in use by the displaced residential owner-occupant solely for personal, non-commercial, nonprofit purposes. (E.S.)

          
          

27. In the case at hand, one other section of the DOT Manual, Procedure No. RA 4-5, is involved, since there is a need in this case to carve out a "typical homesite" from the half acre tract upon which Mr. and Mrs. Booth lived. (Both parties cite this section of the DOT Manual, and thus both appear to believe that a carved-out of a typical homesite is required in this case.)

    
    

28. Paragraph E of Procedure No. RA 4-5 is the only section of that Procedure that establishes guidelines for determination of a "typical homesite." (The other paragraphs determine when a carve out of a "typical homesite" is needed). Subparagraph E.2. of Procedure No. RA 4-5 provides:

    
    

    In areas where a typical homesite area cannot be established (e.g., in a rural residential area where tracts may run from one-quarter acre to ten acres), the typical homesite area for purposes of the replacement housing payment computation may be the area actually utilized by the displacee for residential purposes. In determining the actual area of the tract utilized for residential purposes by the displacee, consideration should be given to the location of driveways and fencing; the area occupied by outbuildings, a garden or recreational structures common to residences (such as pools); and, to the area maintained (cleared and mowed) for residential usage. (E.S.)

    
    

29. From the foregoing DOT policies, it is evident that the replacement dwelling must be functionally similar to the dwelling lost by the person displaced. RA 4-1 A.2. Further, where, as in this case, the homesite is a larger tract of land, the determination of the area of the tract actually used for residential purposes should include consideration of outbuildings in use. RA 4-5 E.2. Finally, where, as here, the "dwelling unit" has major exterior attributes that were part of the lifestyle of the owner, and cannot be replaced

    without substantial expense, such attributes should be considered in determining the functional similarity of the replacement dwelling. RA 4-7 C.3. and RA 4-9

    A.1. and 2.

    
    

30. The Petitioner has shown in this case that the "dwelling" formerly occupied by Mr. and Mrs. Booth was more than just the trailer initially

    considered by the Respondent. The "dwelling"' of Mr. and Mrs. Booth included a trailer containing 4 rooms (including 1 bathroom and 1 bedroom), another bathroom exterior to the trailer, a laundry room, and at least two additional trailers used as storage for household goods.

    
    

31. The Respondent argues that Mr. and Mrs. Booth maintained the laundry and exterior bathroom for the common use of tenants of a trailer park, and that these should not be considered to be a part of the "dwelling." The difficulty with this argument is that there is no evidence in the record that the property was used as a commercial trailer park. The only evidence is that the other trailers were used at various times as bedrooms for the son and daughter of Mr. and Mrs. Booth, or as places for other family members to stay. It would appear that such uses are little different from the normal uses of a "dwelling" to house family members as the need arises. Thus, the use of the laundry or the exterior bathroom was consistent with use as a part of the "dwelling" of Mr. and Mrs. Booth.

    
    

32. The Respondent also argues that Mr. and Mrs. Booth used two of the trailers to house flea market materials, and thus used these buildings for commercial purposes. It is clear that two trailers were used in small part to store some flea market materials, and that Mr. Booth was sufficiently engaged in commercial flea market activities for profit that he "had" a flea market.

    
    

33. Procedure RA 4-9 A. 3. states that the major exterior attribute must have been used by the displaced owner "solely" for personal, non-commercial, nonprofit purposes before it may be considered in the calculation.

    
    

34. Since the two storage trailers were not "solely" used by Mr. and Mrs. Booth for nonprofit purposes, these major exterior attributes should be disregarded in the computation.

    
    

35. The comparable replacement dwelling initially used by the Respondent had a kitchen, a living room, a bathroom, and 2 bedrooms. The total square footage was 750 square feet. The trailer used by Mr. and Mrs. Booth for sleeping and cooking had a kitchen, living room, bathroom, and 1 bedroom, and was only 390 square feet. Thus, the comparable replacement dwelling had 1 bedroom more and about 350 square feet more. It would appear equitable to treat the extra 350 square feet and extra bedroom of the comparable replacement dwelling as comparable to the laundry building. Thus, the comparable replacement dwelling initially used by the respondent was not functionally the equivalent of the dwelling of Mr. and Mrs. Booth because it did not have one major exterior attribute: another bathroom. The payment due the Petitioner should be recalculated in this manner.

RECOMMENDATION

For these reasons, it is recommended that the Department of Transportation enter its final order recalculating the replacement housing purchase additive due Eleanor Booth by reference to a comparable replacement dwelling the same as the comparable replacement dwelling initially identified by the Respondent, but having the major exterior attribute of another bathroom.

WILLIAM C. SHERRILL

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 9th day of December, 1987.

APPENDIX TO RECOMMENDED ORDER

The following are rulings upon findings of fact proposed by the parties which have been rejected in this Recommended Order. The numbers correspond to the numbers of the proposed findings of fact as used by the parties.

Findings of fact proposed by the Petitioner:

None.

Findings of fact proposed by the Respondent:

1. The second and third sentences are rejected because there is no competent evidence in the record that the trailers were rented to other parties or that the tract of land was operated as a "mobile home park." See finding of fact 8.

COPIES FURNISHED:

James M. Earls Arrow Consultants 3910 N. 65th Avenue

Hollywood, Florida 23024

Vernon L. Whittier, Jr., Esquire Florida Department of Transportation 605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

Kaye H. Henderson, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thomas H. Bateman, III, Esquire General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

ELEANOR BOOTH,

Petitioner,

vs. CASE NO. 87-3294

DEPARTMENT OF TRANSPORTATION,

Respondent.

/

FINAL ORDER

The record in this proceeding and the Recommended Order of the Hearing Officer have been reviewed. Respondent, Florida Department of Transportation (FDOT), has filed exceptions to the Recommended Order which are considered and addressed below.

The Findings of Fact and Conclusions of Law set forth in the Recommended Order are considered correct and are incorporated as part of this Final Order. This result, in large part, is compelled by judicial admonitions against revisiting or supplementing findings of fact. See Groves-Watkins Const. v.

Department of Transportation, 511 So.2d 323 (Fla. 1st DCA 1987); Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985).

FDOT first takes exception to the Hearing Officer's statement in paragraph

2 of the Findings of Fact to the effect that the issue in the case was the proper calculation of the amount to be paid Petitioner. FDOT contends that the precise issue before the Hearing Officer was the appropriateness of the comparable replacement dwelling utilized by the Department. While it might be said that the propriety of the calculation was placed in issue given the possibility that an improper "comparable" had been used, the record clearly reflects the sole issue presented to the Hearing Officer, by virtue of the

parties' stipulation, was the narrow question of whether the proper comparable was employed. (T: 7, 8; see also T: 27, 28) 1/ This was evidently noted by the Hearing Officer in his Finding of Fact Number 6 where he correctly stated the issue. Since the Findings of Fact contain a correct statement of the issue, to-wit: the appropriateness of the comparable, FDOT's first exception is rejected.

FDOT next takes exception to Finding of Fact Number 6 indicating that the correctness of the comparable depends upon an analysis of how Mr. and Mrs. Booth used the various trailers and buildings located on their property. FDOT claims that whether the comparable is correct is contingent upon how it compares with the household survey as determined by Relocation Assistance procedure BA 4-1.

FDOT's exception is rejected because the household survey is in effect the end product of an analysis of the Booth's utilization of the assorted trailers and buildings situated on the property.

But for the above-noted prescriptions, FDOT's exceptions to the Hearing Officer's findings of fact that the household survey was filled out incorrectly in part and that no witness had testified that the trailers were rented to other persons, would have been well taken. First of all, the survey was signed by the late Mr. Booth attesting to its accuracy and the record is devoid of direct testimony to the effect that he had in fact erred in filling it out.

Nevertheless the Hearing Officer's finding to the contrary is salvaged by the fact that such a finding arguably could be inferred from the testimony of Mrs. Booth and Mrs. Updike. Secondly, the transcript of the final hearing clearly reflects that Sylvia Updike testified that an individual paid to leave his trailer parked on the property (T 55) and that people rented trailers from her father [Mr. Booth]. (T 58) Evidently, the Hearing Officer, in finding that there was no such testimony, must have concluded that this testimony was not credible. This conclusion cannot be supplanted by the Department.

Groves-Watkins Const., supra.

FDOT's exception to Finding of Fact Number 17 on the ground that it omits the fact that other persons were permitted to use the exterior bathroom and laundry facilities also would have been well received. The transcript undeniably demonstrates that "family members" as well as others were allowed to use said facilities without restriction. (T 55, 58, 71) Once again it would appear that the reason for this glaring omission was an unassailable conclusion by the Hearing Officer that said testimony was not credible. In any event this exception must also be rejected since the Department cannot supplement the Hearing Officer's findings. Groves-Watkins Const., supra.

Taking exception to Conclusion of Law Number 3, FDOT correctly states that the sole is sue before the Hearing Officer was the appropriateness of the comparable used by the Department (T 7, 8) - - not the general computation of the replacement housing payment purchase additive. But, since Finding of Fact Number 6 demonstrates that the Hearing Officer had, on at least one occasion, correctly stated the issue, this exception is rejected.

Finally, as noted above, the fact that the transcript of the hearing unequivocally demonstrates that irrespective of the existence of any family ties, the other residents on the property had a distinct commercial relationship to the Booths (T 56) and enjoyed unrestricted utilization of the bathroom and laundry room (T 55, 56, 71), the Hearing officer's failure to so find arguably might have been based upon a credibility determination which cannot be disturbed. Consequently, FDOT's exceptions to Conclusion of Law Numbers 11 and

15 must be rejected.

Accordingly, the Hearing Officer's recommendation is adopted and it is ORDERED that the Department's determination of the subject replacement

housing purchase additive due Eleanor Booth be recalculated with reference to a comparable having an additional bathroom.

DONE AND ORDERED this 25th day of February, 1988, at Tallahassee, Florida.

KAYE N. HENDERSON, P.E.

Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

ENDNOTE

1/ Citations to the transcript of the final hearing conducted on October 8, 1987, will be indicated parenthetically as "T" with the appropriate page number(s).

Copies furnished to:

WILLIAM C. SHERRILL, JR., Hearing Officer Division of Administrative Hearings

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

VERNON L. WHITTIER, JR., ESQUIRE

Department of Transportation 605 Suwannee Street

Haydon Burns Building, MS 58 Tallahassee, Florida 32399-0458

JAMES M. EARLS

Arrow Consultants 3910 N. 65th Avenue

Hollywood, Florida 23024

NOTICE OF RIGHT TO JUDICIAL REVIEW

Judicial review of agency final order may be Pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, MS 58, Tallahassee, Florida 32399-0458, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.

Docket for Case No: 87-003294

Orders for Case No: 87-003294