STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES O. SCOTT, )

)

Petitioner, )

)

vs. )

) Case No. 98-4123 DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in New Port Richey, Florida, on January 21, 1999, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James O. Scott, pro se

Post Office Box 11231 Spring Hill, Florida 34610

For Respondent: Kelly A. Bennett, Esquire

Department of Transportation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0450 STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Petitioner’s mother is eligible for a replacement housing payment in addition to funds already received from the Department.

PRELIMINARY MATTERS

By letter dated July 24, 1998, Bud Eddleman, State Administrator for Relocation Assistance within the Department of Transportation, advised Petitioner herein, James O. Scott, that

his appeal of the denial of a replacement housing payment to his mother, Mrs. Frances Scott, had been reviewed and was denied.

Thereafter, on August 11, 1998, Mr. Scott requested a formal hearing and this hearing ensued.

At the hearing, both Petitioner and his wife, Jacqueline V. Scott testified in support of the claim for payment. Respondent presented the testimony of Norris L. Smith, a general consultant for the Florida Turnpike Commission, and Richard Eddleman, State Relocation Assistance Administrator for the Department of Transportation. Respondent also introduced Respondent’s Exhibits

1 through 5.

No transcript of the proceedings was furnished. However, subsequent to the hearing, counsel for the Department submitted a Proposed Recommended Order which was carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Petitioner and his mother, Frances Scott, owned real property owned property located in Pasco County, Florida, some of which was taken, and all of which was affected by the construction of the Department’s project no. 97140-2303. The Respondent, Department of Transportation, is the state agency in Florida responsible for the construction of public roadways in this state.

2. In the acquisition of land for the construction of this project, the Suncoast Parkway, the Department of Transportation utilized Gulf Coast Acquisition Company. Consistent therewith,

   Gulf Coast initiated relocation programs for the individuals whose property was being taken for the construction of the project. Its operation was overseen by an engineering company, PBS&J, to ensure that all relevant policies and procedures were followed correctly.

3. In this as in all acquisition cases, an initial determination was made, prior to any offer being made, as to value of the property to be taken. After the offer was made, an order of taking was entered. Once Final Judgment was entered, the relocation specialists went back to the property owner to see if any modification was necessary.

4. In dealing with relocation of property owners, a replacement payment is defined as the difference between the acquisition price paid for the property and what it costs for an equal replacement of the property.

5. In the instant case, Frances Scott, Petitioner’s mother, an octogenarian not in the best of health, was determined to be eligible for a replacement payment as a 180-day homeowner occupant of the property acquired. Her property consisted of two acres on which a residence was located. The approved appraisal amount for her property was $39,400. The value of the acquired dwelling on the homesite represented 67.9% of the approved appraisal amount, as calculated by the Department, which was

   $26,750. The value of the comparable replacement dwelling offered by the Department was $33,900. Therefore, the replacement housing payment amount was $7,150, the difference

   between the appraisal value of the dwelling and the replacement dwelling cost.

6. However, through mediation, at which the Scotts were represented by counsel, a settlement payment for the entire acquisition in the amount of $114,000 was arrived at. Of this figure, $52,952 was attributable to the land, mobile home, and septic and water systems belonging to Frances Scott. The second mobile home located on the land, an unrelated septic system, the land other than that owned by Frances Scott, and damages relating to the move of Petitioner’s business amounted to a total of

   $61,048. Taken together, the two parcels and accouterments totaled the $114,000. Since that $52,952 figure attributed to Frances Scott’s property exceeded the $33,900 cost of a comparable replacement dwelling, the entitlement to a replacement housing payment was nullified. Because of the taking in issue here, and because of Frances Scott’s advanced age and fragile health, it became necessary to move her residence onto Petitioner’s property to keep the family together.

7. The relocation program is designed to reimburse the expenses of people who are displaced by highway projects. Implementation of the program is governed by both federal and state law. (Public Law 91-646 - the Uniform Relocation Assistance and Real Property Acquisition Act of 1970; and Sections 339.09 and 421.55, Florida Statutes.) These statutory bases and the rules of the Department implemented thereunder spell out how payments are to be calculated.

8. Replacement housing payments relate to housing only. In the instant case, the issue was one of mixed use which had to be distributed. Frances Scott met the criteria for eligibility and was found to be entitled to $7,150 as a replacement payment. She received this amount, and more, as a result of the settlement reached through mediation by means of which she received more than the amount calculated initially.

9. There is an internal Department process through which the determinations of eligibility and payment amounts made at District level can be reviewed at Departmental level. In this case, the Scott file, at their request, was forwarded to the Department’s Relocation Manager, Mr. Eddleman, in Tallahassee. Mr. Eddleman reviewed the file and discussed its contents with District personnel. Based on his review, Mr. Eddelman determined that the calculation made at the District was correct. It is his policy in this process to lean towards the side of the displaced person in those cases where there is some question as to either entitlement or amount. Here, Mr. Eddleman found the District acted properly in denying extra replacement housing payment.

10. It is easy to see the basis for Petitioner’s dissatisfaction. He relates, and there is no basis for doubting him, that at the mediation he was led to believe by the mediator that the relocation payments had nothing to do with the settlement amount to which he agreed. In this, he was misled. Inclusion of the amount for replacement payment in the settlement figure excluded him from further compensation and served to

    increase the settlement amount on which his counsel’s fee was based.

11. Mr. and Mrs. Scott seem to have been poorly served in the process. They did not understand the communications they received from the state, categorizing them as “legal mumbo- jumbo.” They do not understand how the figure upon which the settlement was based and do not understand the 67.9 percent calculation. It was again explained at hearing but they remain unsatisfied with the settlement amount.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

13. Petitioner is seeking a determination that the Department improperly determined his mother’s replacement housing payment regarding the forced relocation from her former residence as a result of the Department’s project. He has the burden of proof to establish his position by a preponderance. Florida Department of Transportation v. J.W.C. Co., Inc. and the Department of Environmental Regulation, 396 So. 2d 778 (Fla. 1st DCA 1981). Petitioner did not present any authority for his appearance on behalf of his mother, but no objection thereto was raised by the Department, and he was determined to be an appropriate representative.

14. The rules for providing relocation assistance on roadway projects are contained in Chapter 14-66, Florida

    Administrative Code, which incorporates by reference 49 C.F.R. Part 24. This provision, known as the Uniform Relocation Assistance and Real Property Acquisition Regulations, was promulgated consistent with Public Law 91-646.

15. Rule 14-66.003(8), Florida Administrative Code, defines a “displaced person” as any person displaced according to

    49 C.F.R. Part 24.2(g), which, itself, defined a displaced person as “any person who moves from the real property or moves his or her personal property from the real property. ”

    Rule 14-66.009, Florida Administrative Code, makes replacement housing payments available to those displaced persons classified as either 180-day homeowner occupants or 90-day occupants.

    Frances Scott, as a 180-day homeowner occupant, was eligible for housing replacement assistance which she received through the amount of the settlement reached at mediation.

16. In the instant case, the Department properly complied with the pertinent rules and regulations relating to relocation assistance payments in its relationship with the Petitioner. It paid what it was obligated to pay Frances Scott under the formulae set down in the pertinent regulations. Unfortunately, the Scotts were not able to understand the method of calculation as explained to them, and the mediation process did not serve them well. The fact is, however, that the Scotts were represented at the mediation by counsel and were awarded the proper amount due consistent with the regulations. It is unfortunate the award process and amount was not to their

satisfaction, but the system as designed was properly applied and the award amount correct.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order affirming the relocation assistance payment (replacement housing) previously calculated for Petitioner’s mother, Frances M. Scott.

DONE AND ENTERED this 12th day of February, 1999, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

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) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1999.

COPIES FURNISHED:

James O. Scott, pro se Post Office Box 11231

Spring Hill, Florida 34610

Kelly A. Bennett, Esquire Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

Thomas F. Barry, Secretary Attention: James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

Pamela Leslie, General Counsel 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 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: 98-004123

Orders for Case No: 98-004123