STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICKEY PEPPER LIMOUSINE, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-3859

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 27, 1999, at West Palm Beach, Florida, before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Andrea V. Nelson, Esquire

Ollie Evans, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Roy A. Alterman, Esquire

1901 South Harbor City Boulevard, Suite 600 Melbourne, Florida 32901

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to relocation and/or re- establishment assistance pursuant to Section 421.55, Florida Statutes, Chapter 14-66, Florida Administrative Code, and 49 CFR Part 24.

PRELIMINARY STATEMENT

As part of an eminent domain proceeding, on March 27, 1996, Respondent made an offer to purchase certain real property located in Boynton Beach, Florida, and owned by Mr. and

Mrs. Michael Cain, the owners of the corporate Petitioner. The eminent domain proceeding has been resolved and is not at issue in this proceeding. Supplemental to the eminent domain proceeding, Petitioner applied for relocation and re- establishment assistance pursuant to the provisions of Section 421.55, Florida Statutes, Chapter 14-66, Florida Administrative Code, and 49 CFR, Part 24. The parties agree that Petitioner's entitlement to such benefits is determined as of March 27, 1996. After investigation of Petitioner's claim, Respondent denied Petitioner's application on the grounds that Petitioner was not operating its business out of the subject location on March 27, 1996. Petitioner timely challenged the denial of its claim, and this proceeding followed.

At the formal hearing, Petitioner presented the testimony of Michael Cain and Richard (Bud) Eddleman and presented

18 exhibits, 16 of which were accepted into evidence. Mr. Cain is the president of the corporate Petitioner. Mr. Eddleman is the Respondent's relocation administrator. Respondent presented no witnesses and no exhibits.

A transcript of the proceedings has been filed. The Petitioner and Respondent filed Proposed Recommended Orders,

which have been duly-considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Michael Cain and Marilyn Cain owned a building located in Boynton Beach, Florida, that was taken by Respondent in furtherance of a public transportation project. This building included two store fronts, one with the address of 709 East Ocean Avenue and the other with the address of 711 East Ocean Avenue.

2. In October 1993, Mrs. Cain was hospitalized following an injury. Prior to her hospitalization, Mr. and Mrs. Cain operated out of their building a bridal shop, a tuxedo shop, and Mickey Pepper Enterprises, d/b/a Mickey Pepper Limousine.

3. In 1994, Mr. and Mrs. Cain closed the bridal shop and the tuxedo shop and moved the operation of Mickey Pepper Limousine from their storefront to their home. These actions were necessary because of Mrs. Cain's health problems and because Mr. and Mrs. Cain had a bedridden relative living with them in their home.

4. All books and records pertaining to the business of Mickey Pepper Limousine were moved to the home of Mr. and

   Mrs. Cain prior to or during the year 1994. All telephone calls were received and answered at their home. Their home address was listed as the mailing address for the business.

5. Mr. and Mrs. Cain leased their building to an unrelated party in 1994. Mr. Cain testified that Mickey Pepper continued

   to have the right to make limited use of the 711 East Ocean Avenue premises. Among those uses was the right to maintain a sign advertising Mickey Pepper Limousine that was affixed to the exterior of 711 East Ocean Avenue.

6. In late 1995, Respondent made public its intentions to take certain properties in Boynton Beach, including the building owned by Mr. and Mrs. Cain. Because their tenant abandoned the premises after he learned of Respondent's project, Mr. and

   Mrs. Cain re-took possession of the premises and were in possession of the premises on March 27, 1996. At that time, they were attempting to find tenants for the property and had signs advertising the property for rent posted on the exterior of the building.

7. The parties stipulated that March 27, 1996, the date Respondent began negotiations with Mr. and Mrs. Cain to purchase their building, is the date for which Mickey Pepper Limousine's entitlement to relocation benefits and re-establishment benefits is determined.

8. As of March 27, 1996, the business of Mickey Pepper Limousine was being operated from Mr. and Mrs. Cain's home, which is not part of the property taken by the eminent domain proceedings.

9. As of March 27, 1996, all that remained in the premises were a couple of chairs, a counter, a disconnected telephone, and the advertising sign for Mickey Pepper Limousine affixed to the

   exterior of 711 East Ocean Avenue. As part of the eminent domain proceedings, Respondent compensated Mickey Pepper Limousine for its advertising sign. There was no specific request to compensate Mickey Pepper Limousine for moving the chairs, counter, and telephone, nor were those costs established in this proceeding.

10. There was no evidence as to any written lease agreement between Mr. and Mrs. Cain and their corporate entity, Mickey

    Pepper Enterprises, d/b/a Mickey Pepper Limousine, pertaining to the 711 East Ocean Avenue property.

11. Mr. Cain testified that as of March 27, 1996, he had the right to meet Mickey Pepper Limousine clients at 711 East Ocean Avenue and that he had the right to park his limousines adjacent to the premises. 1/ The evidence established that Mickey Pepper Limousine listed 711 Ocean Avenue with his insurance company as being the location his fleet was garaged and that he listed that location for his occupational license. There was no evidence that Mr. Cain actually met clients at 711 Ocean Avenue or that Mickey Pepper limousines were routinely parked on the premises. 2/

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

13. Section 421.55, Florida Statutes, authorizes Respondent to pay certain relocation and re-establishment costs to businesses such as Petitioner provided that those businesses have been displaced by the acquisition of real property for a public transportation project.

14. Section 421.55(2)(c), Florida Statutes, states that the term "displaced person":

    . . . means any individual, partnership, corporation, or association that is required to move from any real property on or after March 20, 1972, as a result of the

    acquisition of such real property for public purposes, or who, as the result of the acquisition for public purposes of real property on which such person is conducting a business or farm operation . . . is required to move said business or farm operation.

    
    

15. Pursuant to its rulemaking authority, Respondent has enacted Chapter 14-66, Florida Administrative Code, to implement the relocation and re-establishment program. 3/

16. Rule 14-66.001, Florida Administrative Code, provides, in pertinent part, as follows:

    The purpose of this rule chapter is to establish regulations governing the provision of relocation services, moving cost payments, replacement housing cost payments, and other expenses or required provisions stated herein; and to ensure that each person displaced as a direct result of transportation projects is treated fairly, consistently, and equitably so that such person will not suffer disproportionate injuries as a result of projects designed for the benefit of the public as a whole and to ensure that the Florida Department of Transportation implements these regulations in a manner that is efficient and cost effective.

17. Rule 14-66.002, Florida Administrative Code, provides, in part, as follows:

    This rule chapter shall apply to all persons displaced by any transportation project on which negotiations for right-of- way acquisition begin after the effective date of this rule chapter. The provisions of

    49 CFR Part 24, Uniform Relocation Assistance and Real Property Acquisition Regulations (effective October 1, 1990), as modified herein, are incorporated into this Rule Chapter by reference. . . .

18. Rule 14-66.003, Florida Administrative Code, provides the following definitions pertinent to this proceeding:

    The following definitions, as well as those stated in 49 CFR, Part 24, Subpart A, shall be used to interpret the provisions of this rule chapter:

    
    

    * * *

    
    

    (8) "Displaced Person" means any person as defined in 49 CFR, Part 24.2(g) and is synonymous with "displacee" and "relocatee."

    
    

19. Petitioner is a business within the meaning of 49 CFR 24.2.

20. Pursuant to 49 CFR 24.303, a displaced person is entitled to certain expenses related to the relocation of his displaced business. Those costs include the moving of personal property. Because Petitioner had personal property in 711 East Ocean Avenue as of March 27, 1996, it would have been entitled to reimbursement for the reasonable costs of moving that personal property. Petitioner has not specifically requested reimbursement for the reasonable costs of moving the two chairs, the counter, and the disconnected telephone that remained in the premises on March 27, 1996. Moreover, Petitioner failed to prove the reasonable amount of those costs at the formal hearing.

21. Petitioner was compensated for the advertising sign in the eminent domain proceeding and would not be entitled to any further compensation for it.

22. Pursuant to 49 CFR 24.304, a displaced person is entitled to certain expenses related to the re-establishment of his displaced business.

23. The definition of displaced person contained in Section 421.55(2)(c), Florida Statutes, is consistent with the definitions contained in Chapter 14-66, Florida Administrative Code, and 49 CFR Part 24. These definitions require that a

business be operating from the property that is taken before that business is entitled to re-establishment benefits pursuant to

49 CFR 24.304. The evidence established that Petitioner moved its business operation from the subject property to the Cain residence during or prior to the year 1994. Mickey Pepper Limousine was not being operated out of the subject property on March 27, 1996, and it is not entitled to any of the items it claimed as re-establishment expenses pursuant to 49 CFR 24.304.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order that denies Petitioner's claim for relocation and/or re-establishment expenses.

DONE AND ENTERED this 26th day of July, 1999, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1999.

ENDNOTES

1/ Mr. Cain's testimony was not clear whether the area the limousines could park was public or private property. For the purposes of this proceeding, it is assumed that Mr. Cain referred to private property.

2/ Mr. Cain routinely drove one of the limousines. The others were driven by independent contractors.

3/ Rules 14-66.004, 14-66.005, and 14-66.006, Florida

Administrative Code, require Respondent to provide parties that appear to be impacted by a public taking of real property for a transportation project certain information and certain notices. Respondent complied with those requirements.

COPIES FURNISHED:

Andrea V. Nelson, Esquire Ollie Evans, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Roy A. Alterman, Esquire

1901 South Harbor City Boulevard Suite 600

Melbourne, Florida 32901

Thomas F. Barry, Secretary Attn: James C. Myers

Clerk of Agency Proceedings Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Pamela Leslie, General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-003859

Orders for Case No: 98-003859