STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES BUCHANON, )

)

Petitioner, )

)

vs. ) CASE NO. 77-012

)

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on March 30, 1977, in St. Petersburg, Florida.

APPEARANCES

The following appearances were entered:

For Petitioner: Fred G. Minnis

St. Petersburg, Florida

For Respondent: Philip Bennett

Florida Department of Transportation Tallahassee, Florida

James Buchanon ("Appellant" hereafter) filed a Relocation Payment Appeal with the Florida Department of Transportation ("Respondent" hereafter) in accordance with the Real Property Acquisition Policies Act of 1970 (42 USCA Sections 4601 et seq.) on October 29, 1976. The Chief of the Respondent's Bureau of Right-of-Way reviewed the appeal and determined that it should be denied. On January 6, 1977, the case was referred to the Division of Administrative Hearings so that a hearing could be scheduled. The final hearing was scheduled to be conducted in accordance with a Notice of Hearing dated January 20, 1977.

At the final hearing the Appellant appeared as a witness on his own behalf, and called Roger Williams, a resident of St. Petersburg who has engaged in the barbecue business. The Respondent called the following witnesses: Elbert Johnson, a right-of-way agent employed by the Respondent; and Robert O. Gray, a review appraiser employed by the Respondent. Hearing Officer's Exhibits 1 and 2 and Respondent's Exhibit 1 were received in evidence. The parties have submitted Post-Hearing Memoranda of Law.

The issue presented in this case is whether the Appellant is entitled to relocation assistance monetary benefits in addition to those determined appropriate by the Respondent. At the hearing the Appellant moved that a

reasonable attorney's fee be granted him in the event that he prevails in this matter. The motion was denied at the hearing.

FINDINGS OF FACT

1. Prior to the acquisition of highway right-of-way for Interstate Highway 275, the Appellant operated a barbecue business on the 800 block of 22nd Street South in St. Petersburg, Florida. Appellant rented the premises on an annual lease basis. The rent included the building and the name of the business. It was a very good location for the barbecue business. A barbecue pit had been constructed on the premises. It was constructed of brick and stone, and was part of the building. The barbecue pit was included in the Appellant's lease of the premises. The Appellant's business was known as Geech's Barbecue. Appellant's rent was $200 per month.

   
   

2. Geech's Barbecue was located within the right-of-way for a federal aid highway project, specifically Interstate Highway 275. The Respondent acquired the premises for the highway right-of-way. The Respondent gave the Appellant notice that he would have to vacate the premises. Appellant located a facility diagonally across the street. He arranged a seven-year lease, with an option to renew at a monthly rental of $150. The new premises did not include a barbecue pit. Appellant requested that the owner construct a barbecue pit, but the request was denied. In order to engage in the barbecue business at the new location, it was necessary for the Appellant to construct a new barbecue pit. The total cost of the pit was $4,350 of which $2,750 was for labor. It would not have been possible for the Appellant to engage in the barbecue business at the new location without constructing a barbecue pit. The method of construction of the barbecue pit was largely governed by provisions of local building codes.

   
   

3. Appellant duly requested relocation assistance benefits. Among the requested benefits was the labor cost for the new barbecue pit. The Respondent paid the Appellant all relocation assistance benefits that he requested, except that the Respondent refused to compensate the Appellant for any expenses relating to the construction of the new barbecue pit.

   
   

4. The owner of the old premises was compensated for the loss of the property and building. In appraising the former owner's property, due regard was given to the value of the barbecue pit that was located on the premises.

   The former owner was fully compensated for loss of the premises including the barbecue pit. The barbecue pit at the old facility was attached to the premises and was real property. Appellant's new barbecue pit is also real property.

   
   

5. The Respondent's right-of-way agent who contacted the Appellant respecting the necessity for the Appellant to move and respecting potential relocation assistance benefits, advised the Appellant that he would be reimbursed for the labor cost of constructing a new barbecue pit, but not for materials. This advice is not consistent with the position that the Respondent is now taking, and is not consistent with the advice that the Respondent contends Appellant should have received. The erroneous advice resulted either from erroneous instructions given to the right-of-way agent by his supervisor, or from an erroneous interpretation of the instructions.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to this action and over the subject matter. Section 120.57(1), Florida Statutes (1976 Supp.).

   
   

7. Relocation assistance benefits are available to compensate people who are displaced as a result of a federal highway project. The benefits are not designed to compensate people for the loss of property which falls within a highway right-of-way, but rather to compensate people for expenses and costs incurred as a result of their having to move to another location. Title 42,

   1. Section 4622(a) provides:

      
      

      "Whenever the acquisition of real property for a program or project undertaken by a Federal agency in any State will result in the displacement of any person on or after the effective date of this Act, the head of such agency shall make a payment to any displaced person, upon proper application as approved by such agency head, for -

      1. Actual reasonable expenses in moving himself, his family, business, farm operation, or other personal property;

      2. Actual direct losses of tangible personal property as a result of moving

         or discontinuing a business or farm opera- tion, but not to exceed an amount equal

         to the reasonable expenses that would have been required to relocate such property, as determined by the head of the agency; and

      3. Actual reasonable expenses in searching for a replacement business or farm."

   
   

   A displaced person is entitled to recover expenses for moving personal property, direct losses of personal property as a result of moving, and actual expenses in searching for a replacement location. Nothing in the statute entitles a displaced person to recover any loss of real property as a moving expense.

   Since the barbecue pit that Appellant used at the old facility was attached to the premises and was real property, the Appellant is not entitled to recover for loss of the pit as a moving expense.

   
   

8. Information provided the Appellant by the Respondent's right-of-way agent to the effect that the Appellant could recover for labor costs in constructing a new barbecue pit was erroneous and contrary to law. Insofar as the right-of-way agent made any promise of such payment, the promise was not authorized by law. In order to make a binding offer on behalf of the State, an agent of the State must possess real authority to do so. State v. McLin, 44 Fla. 510, 32 So. 927 (1902). Only under extraordinary circumstances would the doctrine of estoppel apply as against the State, and under no circumstances can the State be estopped by the unauthorized acts or representations of its officers. Dade County v. Bengis Associates, Inc., 257 So.2d 291 (3 DCA Fla. 1972); Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So.2d 417 (1 DCA Fla. 1971); Purdy v. Covert, 151 So.2d 891 (2 DCA Fla. 1963).

9. The Uniform Relocation and Real Property Acquisition Assistance Act contains no provisions for recovery of attorney's fees. Attorney's fees have been authorized in actions brought under the Act only where the plaintiff has advanced the policy inherent in the Act on behalf of a significant class of persons. Dasher v. Housing Authority of City of Atlanta, Georgia, 64 FRD 720 (N.D. Ga. 1974). Even if the Appellant were to prevail in the instant matter, it is apparent that he has not advanced the policy of the Relocation Assistance Act on behalf of any significant class of persons. Under no circumstances would the Appellant be entitled to recover attorney's fees in this matter.

   
   

10. Appellant is not entitled to recover any additional relocation assistance benefits.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a final order be entered finding that the Appellant is not entitled to recover any additional relocation assistance benefits.

RECOMMENDED this 25 day of May, 1977, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Fred G. Minnis, Sr., Esquire Philip Bennett, Esquire

Post Office Box 15002 Department of Transportation St. Petersburg, Florida 33733 Haydon Burns Building

Tallahassee, Florida 32304

Mr. Tom B. Webb, Jr., Secretary Department of Transportation Tallahassee, Florida

Docket for Case No: 77-000012

Orders for Case No: 77-000012