STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREEN ENTERPRISES, INC. )

d/b/a A-BOKAY FLORIST, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7265

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on July 14, 1993, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: James R. Clodfelter

Authorized Representative

Acquisition Consultant Enterprises, Inc. Boca Bank Corporate Center

7000 West Palmetto Road, Suite 503 Boca Raton, Florida 33433

For Respondent: Charles Gardner, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

The issue presented is whether Petitioner is entitled to relocation benefits.

PRELIMINARY STATEMENT

Petitioner applied for benefits pursuant to the Uniform Relocation Assistance and Real Property Acquisition Regulations and the Florida Department of Transportation Right-of-Way Operating Procedures for relocation assistance. The Department denied that application determining that the Petitioner was not a displacee and was, therefore, not eligible for relocation benefits, and Petitioner timely requested a formal hearing regarding that determination. This cause was subsequently transferred to the Division of Administrative Hearings to conduct a formal proceeding.

Petitioner presented the testimony of John Donaldson and John S. Green. Deborah S. Long testified on behalf of the Respondent. Additionally, Joint Exhibits numbered 1 and 2 and Petitioner's Exhibits numbered 1 and 2 were

admitted in evidence, and official recognition was granted as to the version of Chapter 14-66, Florida Administrative Code, in effect at the time that this dispute arose.

Although both parties were granted leave to file proposed findings of fact in the form of proposed recommended orders, only Respondent did so. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. In January, 1985, Petitioner acquired an existing retail florist business located at 416 Indiantown Road, Jupiter, Florida. Petitioner's business occupied one-half of the building located at that address. The remainder of the building housed La Casa Mexican Restaurant and a Metro Cellular Phone business.

   
   

2. At the time that Petitioner acquired the business, the parking lot for the building consisted of 15 spaces and was shared by all three businesses. Six of those spaces were located behind the building and were accessible from an alley. Nine of those spaces, including the handicapped space, were located in front of the building and were accessible from Indiantown Road. The parking lot for the building constituted a legal non-conforming use, that is, it was permitted to exist without meeting current code requirements of the local government.

   
   

3. The business lease entered into by the Petitioner on January 21, 1985, for a term of thirty months was essentially a "standard form" lease. However, Petitioner as Lessee and Petitioner's Lessor specifically added to the standard lease language a twenty-fourth clause which provided as follows:

   
   

   Twenty-Fourth: In the event Indiantown Road is widened during the term of this lease and the widening project results in a loss of more than two of the present ten [sic] parking spaces in front of the building, then the rental payments under this lease can be renegotiated by the parties, and if such renegotiations do not result in terms satisfactory to the tenant, the tenant will have the right to cancel this lease with thirty days notice to the landlord.

   
   

   Accordingly, Petitioner specifically retained the right to either stay or vacate the leased premises if the road-widening project resulted in a loss of more than two of the parking spaces in front of the building.

   
   

4. The Department subsequently commenced its road-widening project which resulted in the Department's "taking" of two of the parking spaces in front of the building. The Department paid Petitioner's claim for business damages as a result of the loss of two parking spaces in the condemnation proceeding involving Petitioner and the property owner.

   
   

5. After the loss of the two parking spaces, the front parking lot was re- designed so as to more closely comply with local code requirements. That re- design of the parking spaces reduced the number of spaces in front of the building by an additional two, resulting in a total reduction of parking spaces

   in front of the building by four. The re-design left a total of five spaces in front of the building, including a handicapped space.

   
   

6. Although a local government can require a legal non-conforming use to be made conforming under certain circumstances, there is no evidence that the local government required the owner of the property leased by Petitioner to re- design the front parking lot according to code requirements. Accordingly, there is no showing that the deletion of the two additional parking spaces was a direct result of the road-widening project.

   
   

7. On approximately July 1, 1991, Petitioner moved its retail florist business to 323 West Indiantown Road, Jupiter, Florida. Petitioner relocated its business at that time because Petitioner's president believed that business "...was at a point where it was just going to be falling off." (R. 37).

   
   

8. The relocation of Petitioner's business was caused by Petitioner's decision to conduct its business from a different location. Petitioner did not move its business as a direct result of the Department's acquisition of two parking spaces. Accordingly, Petitioner is not eligible for relocation benefits.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

   
   

10. The Department administers its relocation assistance program pursuant to the federal government's Uniform Relocation Assistance and Real Property Acquisition Regulations found at 49 C.F.R., Part 24, and the grant of authority found in Section 334.044(2), Florida Statutes. The Department has enacted Section 14-66.003(3), Florida Administrative Code, to define a "relocated or displaced person" who would be eligible to receive reimbursement for moving expenses. The only dispute remaining in this proceeding is the determination as to whether Petitioner moved its business as a direct result of the Department's acquisition of two parking spaces. Petitioner has failed to meet its burden of proving that its move was a direct result of the Department's acquisition.

    
    

11. The evidence in this cause reveals that Petitioner moved because of an anticipated reduction in business and not because of the Department's acquiring two parking spaces. Petitioner's ability to operate at the same level is not an issue in this proceeding involving Petitioner's claim for moving expenses; rather, any impact on the profitability of Petitioner's business is an element of business damages, an issue properly included in the condemnation proceeding, and an item for which Petitioner has already been reimbursed.

    
    

12. Further, the potential loss of two parking spaces in front of the building was a factor considered by the Petitioner at the time that Petitioner purchased the business and entered into the lease for the portion of the building housing Petitioner's retail florist business. Petitioner included in its lease agreement provision for Petitioner to move, if it chose to do so, if the road-widening project resulted in the loss of more than two parking spaces; Petitioner likewise retained the right to stay under the same circumstances. Petitioner offered no evidence that it could no longer do business at its former location. Since Petitioner's business was not displaced as a direct result of the Department acquiring two parking spaces, Petitioner is not eligible for relocation benefits.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application

for relocation benefits.

DONE and ENTERED this 3rd day of November, 1993, at Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7265

1. The Department's proposed findings of fact numbered 5-8 and 10 have been adopted in substance in this Recommended Order.

2. The Department's proposed findings of fact numbered 1 and 2 have been rejected as being subordinate to the issues involved herein.

3. The Department's proposed findings of fact numbered 3, 4, and 9 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law.

COPIES FURNISHED:

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Attn: Eleanor F. Turner, Mail Station 58 Tallahassee, Florida 32399-0458

James R. Clodfelter Authorized Representative

Acquisition Consultant Enterprises, Inc. Boca Bank Corporate Center

7000 West Palmetto Road, Suite 503 Boca Raton, Florida 33433

Charles Gardner, Esquire Department of Transportation

605 Suwannee Street, Mail Station #58

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-007265

Orders for Case No: 92-007265