STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KOOLIE OF WEST FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1086

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

Re: Relocation Assistance Appeal ) Parcel 103, Project 57050-2515, ) Okaloosa County. )

)

)

RECOMMENDED ORDER

Pursuant to notice, the above styled cause was heard before Delphene C. Strickland, Hearing Officer, in Courtroom B, Okaloosa County Courthouse, Crestview, Florida, commencing at 1:00 P.M., October 6, 1977.

APPEARANCES

For Petitioner: C. Thomas Holland, Esquire

440 North Main Street Crestview, Florida 32536

For Respondent: Philip S. Bennett, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

ISSUE

Whether the amount awarded Petitioner for relocation was a sufficient and proper award.

FINDINGS OF FACT

1. Prior to the acquisition of a highway right of way for project 57050- 2515 in Okaloosa County, Florida the appellant operated a small business on parcel 103, which was needed for the highway.

   
   

2. The business was known as Koolie of West Florida, Inc., and among other things sold bottle drinks, blue luster products and large round cakes of soybean meal used for fish bait.

   
   

3. On August 23, 1976 the Respondent, Department of Transportation, informed Mr. Dick Carter, the President and Owner of the business of the different options available for reimbursing him for moving expenses. It was

   explained that if he hired a licensed mover the Florida Department of Transportation could pay the mover on an actual cost basis. It was further explained that if he wished to move the business, using his own personnel, he would be reimbursed up to the amount of the lowest of two commercial bids. One commercial bid was obtained but the requirement of two commercial bids was waived for the reason that Crestview, Florida is a small town and has only one licensed mover.

   
   

4. On September 29, 1976, Mr. Carter was informed of the amount of the bid and Mr. Carter chose to move his business himself, although Mr. Carter made known his dissatisfaction with the amount of the low bid. Upon learning of the dissatisfaction with the estimate, the Respondent Department requested Mr. Carter to notify it of the time and date of the move so that any additional moving expenses could be documented. The Department was not informed and the Petitioner moved to its new location.

   
   

5. Thereafter, a claim was made for additional moving expenses and a supplemental move cost claim in the amount of $347.25 was offered to the Petitioner and he was notified that if the amount was not satisfactory, an administrative hearing would be arranged.

   
   

6. The additional amount was refused and Petitioner requested the subject hearing.

   
   

7. The supplemental move cost claim and the supplemental amount allowed,

   $347.25 was based on the certified inventory sent by the Petitioner to the Respondent. The move took place some four months after the inventory was sent to the Respondent and the Petitioner had expressed its dissatisfaction with the moving reimbursement, but although requested by the Respondent, did not notify the Respondent of the time and date of moving so that a representative of the Respondent could be present to assess the additional cost of moving, if any.

   
   

8. Petitioner contends that the inventory sent the Respondent was incorrect and that instead of 200 soybean cakes that had to be moved it was in fact 1000 soybean cakes. Petitioner contends that he should have received

   $625.00 for 250 cakes of soybean meal which he said were destroyed in moving plus a sum of $97.50 which was in addition to the original estimate by the moving company.

   
   

9. Respondent contends that there are provisions for a self move providing the cost is less than a $1000.00 on the lowest of two estimates; that in the City of Crestview there is only one certified mover so a special dispensation was allowed so that the one certified mover would submit an estimate of moving cost; the Petitioner provided an inventory, and an estimate of moving cost was submitted by Shaw, a certified mover. The Petitioner chose to move himself and was offered reimbursement in the amount of the estimate by the certified mover as revised and was also offered reimbursement for one-third loss of 200 cakes of soybean meal inasmuch as this was an uninsurable item. Respondent further shows that all of the inventory except the soybean cakes would have been insured by the mover in the event of breakage or damage and that Petitioner had the choice of being moved by a certified mover or moving himself. Respondent further contends that it properly followed the requirements of law and the Petitioner has been offered payment in accordance with law.

   CONCLUSIONS OF LAW

   
   

10. Relocation assistance benefits are available to compensate those 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 USC Section 4622(a) provides:

    
    

    "4622. Moving and related expenses

    1. General Provision. 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 [Jan. 2, 1971], 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 operation, 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."

          
          

11. Petitioner is entitled to compensation to cover expenses for moving personal property, direct loss of personal property as the result of moving, and actual expenses in searching for a replacement location. The claim was for moving and for direct loss of personal property. Payment was made on the estimate and inventory.

    
    

12. Procedures State of Florida, Department of Transportation number 175- 009, Relocation Assistance C. Method C-Self Move provides:

    
    

    "C. Method C - Self Move: As an additional method, in lieu of being reimbursed as set forth in Method A, is reimbursement for actual moving costs in a "self move." When this option is selected, the payment determination is based upon whether or not firm bids or estimates can be obtained on moving the property and whether or not the property can move for $1,000 or less. The procedure to be followed under the applicable circumstances is discussed in the following paragraphs.

    
    

    1. BUSINESS, FARM, NON-PROFIT ORGANIZATION AND OUTDOOR ADVERTISING SIGNS SELF MOVE - ESTIMATES OBTAINABLE:

       In the case where a self move is selected and bids can be obtained, the owner of a relocated business may be paid an amount to be negotiated between the Department and the business not

       to exceed the lower of two firm bids or estimates obtained. The department shall obtain the bids from qualified moving firms.

       
       

       1. The owner of a relocated business shall prepare a certified inventory of the items to be actually moved. When the Department can obtain two acceptable bids or estimates from qualified moving firms based on the certified inventory list, the owner of a relocated business may be paid an amount equal to the low bid or estimate without negotiation. When circumstances warrant, the Department may negotiate a lower amount not to exceed the lower of two acceptable bids or estimates. The business may still claim removal and reinstallation expenses."

    
    

13. An estimate was received from the certified mover and was then revised upward. An inventory was sent was sent to the Florida Department of Transportation from the Petitioner. Petitioner preferred a"self move" and although requested by the Respondent, did not provide the Respondent with a date and time of moving so that a surveillance could be made in the event the actual moving cost exceeded the estimate and the inventory.

RECOMMENDATION

Deny the petition.

DONE AND ENTERED this 16th day of January, 1978, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

C. Thomas Holland, Esquire

440 North Main Street Crestview, Florida 32536

Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Docket for Case No: 77-001086

Orders for Case No: 77-001086