STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARK H. FELDMAN, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1485T
) DEPARTMENT OF TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
This case was heard pursuant to notice on August 30, 1979, in Fort Lauderdale, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. The Transcript in this cause was received by the Division of Administrative Hearings on October 3, 1979. This case arose on an appeal by Dr. Mark H. Feldman on the Department's denial of a fixed payment in lieu of moving costs as a relocation benefit.
APPEARANCES
For Petitioner: Dr. Mark H. Feldman, pro se
6468 Racket Club Drive Lauderhill, Florida 33319
For Respondent: Charles G. Gardner, Esquire
Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
ISSUE
Dr. Mark H. Feldman maintained a practice in podiatry at 1101 West Broward Boulevard, Fort Lauderdale, Florida. A widening and upgrading of Broward Boulevard resulted in a taking of a portion of the building in which Dr. Feldman maintained his practice. Because the widening of this highway was a part of a federal aid project, the doctor became eligible for certain payments to businesses as provided in the manual of Right-of-Way Bureau operating procedures and incorporated by reference into the Florida Administrative Code as Chapter
14-1. The provisions concerning payments to businesses include payment of actual reasonable expenses in moving the business and personal property, direct loss of tangible personal property in moving or discontinuing the business and actual reasonable expenses in searching for a replacement business. Further, in lieu of payment for actual moving and losses as indicated above, a fixed payment may be paid. Dr. Feldman applied for a fixed payment and was denied by the Department of Transportation. The Department of Transportation based its denial on two grounds: Dr. Feldman had already received payments for reasonable expenses, direct less of personal property and discontinuing his business, and for search of a replacement business site; and Dr. Feldman was ineligible for a fixed payment because the doctor maintained a commercial enterprise with more
than one establishment, which was not being acquired by the State or the United States and was engaged in the same or similar business. Dr. Feldman asserted that he accepted payment because of the representation of employees of the Department and that he did not maintain two (2) business locations.
FINDINGS OF FACT
Dr. Mark H. Feldman maintained a practice in podiatry at 1101 West Broward Boulevard in Fort Lauderdale, Florida. A portion of the building in which Dr. Feldman maintained his practice was taken by the State under a construction project, which was partially federally funded, to widen Broward Boulevard. As a result of this taking, it was necessary for Dr. Feldman to move his practice. Dr. Feldman became eligible for certain payments to businesses required to move because of such construction.
Dr. Feldman asserted that prior to receipt of the Department's notice, he engaged in discussions with representatives of the Department regarding his options. Dr. Feldman requested consideration for fixed payment in lieu of actual moving expenses, which resulted in a preliminary investigation by the Department of Transportation. This investigation revealed that in addition to maintenance of his practice at 1101 West Broward Boulevard. Dr. Feldman also was listed in the telephone directory and in the building directory as maintaining offices at 7301 North University Drive, Tamarack, Florida. This second location was not affected by any taking. Based upon this information, the Department made a determination that the doctor was not eligible for fixed payment in lieu of actual moving expenses because Dr. Feldman's business affected by the taking was part of a commercial enterprise having at least one other establishment which was not being acquired by the State or the United States and which was engaged in the same or similar business. See Right-of-Way Bureau Operating Procedures Manual, 4.3.7E(1)(b).
Based upon this initial denial, and having received notice that he could only be guaranteed 90 days' occupancy, Dr. Feldman applied for actual expenses, which were paid. Thereafter, Dr. Feldman submitted his application for fixed payment in lieu of actual moving expenses, which was denied on the basis that he had received actual moving expenses.
Approximately one year prior to the announcement by the Department of the incipient taking of the property of 1101 West Broward Boulevard, Dr. Feldman had been in practice with another podiatrist, Harry Westridge. Dr. Westridge originally maintained his practice at 1101 West Broward Boulevard. Dr. Westridge had joined Dr. Feldman's practice at 7301 North University Drive in Tamarack several years ago. In April of 1977, Dr. Westridge purchased Dr. Feldman's practice at North University Drive. As a part of their agreement, Dr. Feldman took over the lease and personal property located at 1101 West Broward Boulevard. Further, as a part of their agreement, Dr. Feldman agreed to permit Dr. Westridge to utilize his name in conjunction with the Tamarack practice. Both doctors explained that this was because Dr. Westridge was a newcomer to the area and was purchasing the "good will" in Dr. Feldman's practice, and it protected Dr. Feldman's investment if Dr. Westridge was unable to meet his obligations under the purchase agreement. However, both doctors testified that subsequent to Dr. Westridge's purchase of the practice Dr. Feldman did not maintain regular office hours at the Tamarack address, did not regularly see patients at the Tamarack address, and had seen approximately twelve (12) patients at the Tamarack address between April of 1977, and April of 1978. This included consultations and referrals to Dr. Feldman by Dr. Westridge.
The nature of his surgical practice in podiatry prevented Dr. Feldman from waiting to move his practice until the Department of Transportation took his property where he was located. Further, Dr. Feldman could not afford to move his practice without assistance. Dr. Feldman only applied for payment of his actual expenses, which he received, when he was initially told he did not qualify for in-lieu of payment.
CONCLUSIONS OF LAW
As presented, the instant case raises two (2) issues. The first is whether, having accepted actual expenses, Dr. Feldman may now assert a claim for fixed payment in lieu of actual expenses. In considering this issue, the fact that the Department of Transportation served notice on Dr. Feldman that they could guarantee him no more than 90 days' occupancy, and the fact that the Department of Transportation notified him that they had made an initial determination that he was not eligible for fixed payment in lieu of actual expenses must be considered. Dr. Feldman could have initially applied for fixed payment in lieu of actual expenses, which the Department would have denied on the basis that he had two (2) commercial addresses. Dr. Feldman could have sought informal resolution of the denial and ultimately appealed the Department'S final determination. Based on the time taken to prosecute the instant appeal Dr. Feldman would have been required to move from his premises and bear the cost of this move himself. Rather than do this, Dr. Feldman took what the Department would give him and, after the fact, pressed his claim for fixed payment in lieu of actual expenses.
The Department bases its defense to Dr. Feldman's assertion of the instant claim on the basis that he has already accepted payment and, by accepting this payment, has waived any right to fixed payment in lieu of actual expenses. If both parties were dealing at arm's length, this defense would be adequate; however, under the instant circumstances it cannot be said that Dr. Feldman and the Department dealt at arm's length. The facts are that the Department sought to take Dr. Feldman's business establishment, the Department had made an initial determination that he was not qualified for fixed payment in lieu of actual expenses, and it had advised Dr. Feldman that he had no more than a guarantee of not more than 90 days' further occupancy. Considering these facts, the acceptance of actual expenses should not bar the presentation of Dr. Feldman' s claim for fixed payment in lieu of actual expenses, but actual expenses paid should be set off against fixed payment.
The next issue involved is whether Dr. Feldman maintained two (2) commercial establishments. The facts show that Dr. Feldman maintained a telephone listing at the Tamarack address, maintained his name on the building directory at the Tamarack address, and maintained occupational licensure in the City of Tamarack. The facts also show that Dr. Westridge had purchased Dr. Feldman's practice in Tamarack, Dr. Feldman saw approximately one patient per month at the Tamarack address, and the maintenance of his name on the practice was pursuant to the purchase agreement with Dr. Westridge. Dr. Feldman, upon leaving 1101 West Broward Boulevard, did not move to Dr. Westridge's office, but relocated to Miami, Florida. The specific determination required under the procedure manual, 4.3.7(1), is that the State must determine that the business is not part of a commercial enterprise having at least one other establishment which is not being acquired by the State or the United States and which is engaged in the same or similar business. "Commercial enterprise" is not defined by the procedure manual. Black's Law Dictionary does not define "commercial enterprise;" however, Black's does define "commercial," "commercial establishment" and "commerce." "Commercial" is defined by Black's as relating
to or connected with trade and traffic or commerce in general. "Commerce" is defined as the exchange of goods, productions, or property of any kind. "Commercial establishment" is defined by Black's as a place where commodities are exchanged, bought or sold. The practice of medicine is a contract for a personal service. It does not involve the purchase of a product or property or the exchange of goods. Therefore, Dr. Feldman not only did not maintain a practice at 7301 North University Drive but was not engaged in a commercial enterprise.
Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation pay Dr. Feldman a fixed payment in lieu of actual expenses and offset any amounts paid to Dr.
Feldman against the fixed payment.
DONE and ORDERED this 2nd day of November, 1979, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Dr. Mark H. Feldman 6468 Racket Club Drive
Lauderhill, Florida 33319
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARK H. FELDMAN,
Petitioner,
vs. CASE NO. 79-1485T
DEPARTMENT OF TRANSPORTATION,
Respondent.
/
FINAL ORDER
A Hearing in this case was held August 30, 1979, before a Hearing Officer assigned by the Division of Administrative Hearings. The Hearing Officer entered a Recommended Order upholding the claim of the Petitioner against the Agency, Respondent. Exceptions to the Recommended Order were filed by the Respondent; a memorandum responding to the Exceptions was filed by Petitioner.
The record in this case has been reviewed; the Recommended Order, Exceptions and reply thereto, the transcript of testimony received at the Hearing, and the exhibits which were received into evidence.
The statements of the Hearing Officer under the heading ISSUE constitutes a fair statement of the case. The facts set out therein and under the heading FINDINGS OF FACT are supported by the record and are adopted as a part of this Order. They are set out verbatim below, except that reference to Chapter 14-1 of the Florida Administrative Code as incorporating the Right-of-Way Manual is corrected to read Chapter 14-15.
ISSUE
Dr. Mark H. Feldman maintained a practice in podiatry at 1101 West Broward Boulevard, Fort Lauderdale, Florida, A widening and upgrading of Broward Boulevard resulted in a taking of a portion of the building in which Dr. Feldman maintained his practice. Because the widening of this highway was a part of a federal aid project, the doctor became eligible for certain payments to businesses as provided in the manual of Right-of-Way Bureau operating procedures and incorporated by reference into the Florida Administrative Code as Chapter
14-15. The provisions concerning payments to businesses include payment of actual reasonable expenses in moving the business and personal property, direct loss of tangible personal property in moving or discontinuing the business and actual reasonable expenses in searching for a replacement business. Further, in lieu of payment for actual moving and losses as indicated above, a fixed payment may be paid. Dr. Feldman applied for a fixed payment and was denied by the Department of Transportation. The Department of Transportation based its denial on two grounds. Dr. Feldman had already received payments for reasonable
expenses, direct loss of personal property and discontinuing his business, and for search of a replacement business site; and Dr. Feldman was ineligible for a fixed payment because the doctor maintained a commercial enterprise with more than one establishment, which was not being acquired by the State or the United States and was engaged in the same or similar business. Dr. Feldman asserted that he accepted payment because of the representation of employees of the Department and that he did not maintain two (2) business locations.
FINDINGS OF FACT
Dr. Mark H. Feldman maintained a practice in podiatry at 1101 West Broward Boulevard in Fort Lauderdale, Florida. A portion of the building in which Dr. Feldman maintained his practice was taken by the State under a construction project, which was partially federally funded, to widen Broward Boulevard. As a result of this taking, it was necessary for Dr. Feldman to move his practice. Dr. Feldman became eligible for certain payments to businesses required to move because of such construction.
Dr. Feldman asserted that prior to receipt of the Department's notice, he engaged in discussions with representatives of the Department regarding his options. Dr. Feldman requested consideration for fixed payment in lieu of actual moving expenses, which resulted In a preliminary investigation by the Department of Transportation. This investigation revealed that in addition to maintenance of his practice at 1101 West Broward Boulevard Dr. Feldman also was listed in the telephone directory and in the building directory as maintaining offices at 7301 North University Drive, Tamarack, Florida. This second location was not affected by any taking. Based upon this information, the Department made a determination that the doctor was not eligible for fixed payment in lieu of actual moving expenses because Dr. Feldman's business affected by the taking was part of a commercial enterprise having at least one other establishment which was not being acquired by the State or the United States and which was engaged in the same or similar business. See Right-of-Way Bureau Operating Procedures Manual, 4.3.7E(1)(b).
Based upon this initial denial, and having received notice that he could only be guaranteed 90 days' occupancy, Dr. Feldman applied for actual expenses, which were paid. Thereafter, Dr. Feldman submitted his application for fixed payment in lieu of actual moving expenses, which was denied on the basis that he had received actual moving expenses.
Approximately one year prior to the announcement by the Department of the incipient taking of the property of 1101 West Broward Boulevard, Dr. Feldman had been in practice with another podiatrist, Barry Westridge. Or. Westridge originally maintained his practice at 1101 West Broward Boulevard. Or. Westridge had joined Dr. Feldman's practice at 7301 North University Drive in Tamarack several years age. In April of 1977, Dr. Westridge purchased Dr. Feldman's practice at North University Drive. As a part of their agreement, Dr. Feldman took over the lease and personal property located at 1101 West Broward Boulevard. Further, as a part of their agreement, Dr. Feldman agreed to permit Dr. Westridge to utilize his name in conjunction with the Tamarack practice. Both doctors explained that this was because Dr. Westridge was a newcomer to the area and was purchasing the 'good will' in Dr. Feldman's practice, and it protected Dr. Feldman's investment if Dr. Westridge was unable to meet his obligations under the purchase agreement. However, both doctors testified that subsequent to Dr. Westridge's purchase of the practice Dr. Feldman did not maintain regular office hours at the Tamarack address, did not regularly see patients at the Tamarack address, and had seen approximately twelve (12)
patients at the Tamarack address between April of 1977, and April of 1978. This included consultations and referrals to Dr. Feldman by Dr. Westridge.
The nature of his surgical practice in podiatry prevented Dr. Feldman from waiting to move his practice until the Department of Transportation took his property where he was located. Further, Dr. Feldman could not afford to move his practice without assistance. Dr. Feldman only applied for payment of his actual expenses, which he received, when he was initially told he did not qualify for in-lieu-of payment.
However, the Conclusions of Law set out by the Hearing Officer in his Recommended Order do net necessarily follow from the facts established by the record, and such Conclusions of Law set out below are not accepted by this Agency. Accordingly, the Recommendation of the Hearing Officer that the Department of Transportation pay Or. Feldman a fixed payment is rejected. The CONCLUSIONS OF LAW are as follows:
CONCLUSIONS OF LAW
As presented, the instant case raises two (2) issues. The first is whether, having accepted actual expenses, Dr. Feldman may new assert a claim for fixed payment in lieu of actual expenses. In considering this issue, the fact that the Department of Transportation served notice on Dr. Feldman that they could guarantee him no more than 90 days' occupancy, and the fact that the Department of Transportation notified him that they had made an initial determination that he was not eligible for fixed payment in lieu of actual expenses must be considered. Dr. Feldman could have initially applied for fixed payment In lieu of actual expenses, which the Department would have denied on the basis that he had two (2) commercial addresses. Dr. Feldman could have sought informal resolution of the denial and ultimately appealed the Department's final determination. Based on the time taken to prosecute the instant appeal, Dr. Feldman would have been required to move from his premises and bear the cost of this move himself. Rather than do this, Dr. Feldman took what the Department would give him and, after the fact, pressed his claim for fixed payment in lieu of actual expenses.
The Department bases its defense to Dr. Feldman's assertion of the instant claim on the basis that he has already accepted payment and, by accepting this payment, has waived any right to fixed payment in lieu of actual expenses. If both parties were dealing at arm's length, this defense would be adequate; however, under the instant circumstances it cannot be said that Dr. Feldman and the Department dealt at arm's length. The facts are that the Department sought to take Dr. Feldman's business establishment, the Department had made an initial determination that he was not qualified for fixed payment in lieu of actual expenses, and it had advised Dr. Feldman that he had no more than a guarantee of not more than 90 days' further occupancy. Considering these facts, the acceptance of actual expenses should not bar the presentation of Dr. Feldman's claim for fixed payment in lieu of actual expenses, but actual expenses paid should be set off against fixed payment.
The next issue involved is whether Dr. Feldman maintained two (2) commercial establishments. The facts show that Dr. Feldman maintained a telephone listing at the Tamarack address, maintained his name on the building directory at the Tamarack address, and maintained occupational licensure in the City of Tamarack. The facts also show that Dr. Westridge had purchased Dr.
Feldman's practice in Tamarack, Or. Feldman saw approximately one patient per month at the Tamarack address, and the maintenance of his name on the practice
was pursuant to the purchase agreement with Dr. Westridge. Dr. Feldman, upon leaving 1101 West Broward Boulevard, did not move to Dr. Westridge's office, but relocated to Miami, Florida. The specific determination required under the procedure manual, 4.3.7(1), is that the State must determine that the business is not part of a commercial enterprise having at least one other establishment which is not being acquired by the State or the United States and which is engaged in the same or similar business. 'Commercial enterprise' is not defined by the procedure manual. Black's Law Dictionary does not define 'commercial enterprise'; however, Black's does define 'commercial', 'commercial establishment' and 'commerce'. 'Commercial' is defined by Black's as relating to or connected with trade and traffic or commerce in general. 'Commerce' is defined as the exchange of goods, productions, or property of any kind. 'Commercial establishment' is defined by Black's as a place where commodities are exchanged, bought or sold. The practice of medicine is a contract for a personal service. It does not involve the purchase of a product or property or the exchange of goods. Therefore, Dr. Feldman not only did not maintain a practice at 7301 North University Drive but was not engaged in a commercial enterprise.
The Exceptions to Recommended Order filed by Respondent are well taken and are reflected in this Order. The reply memorandum of Petitioner is limited to an assertion that ". . . evidence of occupational licenses in Exhibit 13 should not be used as evidence against the Petitioner since purchase of such license is based on city and county requirements which are beyond control of Petitioner".
No legal basis is offered for excluding such evidence. The acquisition of an occupational license by Petitioner is evidence hearing directly on the question at issue, whether or not Petitioner maintained an office at the subject location. The exhibit was properly admitted into evidence and should be considered.
The Hearing Officer discusses two issues, as set out above, deciding both in favor of Petitioner. Respondent, in filing Exceptions to Recommended Order, made no exceptions as to the Hearing Officer's finding, on the first issue and in effect abandoned it. Only the second issue will be considered here, since the finding in this Order, contrary to the conclusion reached by the Hearing Officer, disposes of the case.
This issue is framed by the Hearing Officer as follows: "The next issue involved is whether Dr. Feldman maintained two (2) commercial establishments". There is no question that Dr. Feldman maintained an office in Fort Lauderdale, for which he has been paid relocation costs and now seeks further payment. The question then is whether or not he also maintained an office in Tamarack, Florida, putting him in the position of maintaining two "commercial establishments" within the meaning of the words as used in Department Right-of- Way Manual.
The Hearing Officer states that the facts show that Dr. Feldman:
Maintained a telephone listing at the Tamarack address.
Maintained his name on the Building Directory at the Tamarack address.
Maintained occupational licensure in the City of Tamarack.
Saw patients at the Tamarack address, although approximately only one patient per month.
An additional relevant fact not mentioned by the Hearing Officer is that Dr. Feldman's business card carried the address of both the Fort Lauderdale office and the Tamarack office. (Exhibit No. 15, photostatic copy of Dr.
Feldman's business card.)
The above facts clearly establish that Dr. Feldman did, contrary to the finding of the Hearing Officer, maintain a practice at 7301 North University in the City of Tamarack. Although the evidence suggests that the number of patients treated was small, there is nothing to indicate that Dr. Feldman was not free to accept as many patients as sought his services at this location.
The Hearing Officer found that the refusal of the Department to pay Dr. Feldman a Fixed Payment in lieu of actual moving expenses is not justified on the basis that Dr. Feldman was not engaged in a "commercial enterprise" within the meaning of Section 4.3.7E(1)(b) of the Right of Way Manual, relied on by the Agency. This section reads as follows:
(b) The business is not part of a commercial enterprise having at least one other establishment which is not being acquired by the State or the United States and which is engaged in the same or similar business.
In the first instance, Petitioner's claim for a fixed payment is based on the provisions of Section 4.3.7E of the Right-of-Way Manual which reads:
In lieu of the payments described in 4.3.7B, C, and D above, an owner of a discontinued or relocated business (including a business that is a rental of real property) may be eligible to receive a Fixed Payment equal to the average annual net earnings of the business; such payment shall not be less than $2,500 nor more than $10,000. A business need not have personal property to move in order to be considered for the Fixed Payment.
In making application under this provision, Petitioner accepts that his practice of medicine constitutes a "business" for the purpose of relocation payments.
It is clear that the intent of Section 4.3.7E(1)(b) is that a Fixed Payment not be made in a situation where the business being relocated is part of an operation maintaining a second establishment which is engaged in the same or similar business.
The practice of medicine is not ordinarily considered a "business" and neither is it considered a "commercial enterprise". But the terms must be considered in the context in which they are used.
The term "business" is defined in Webster's International Dictionary as: "A commercial or industrial establishment or enterprise", and that is evidently the sense in which it is used here. The Petitioner is seeking payment for relocation of a business, a commercial enterprise in this context, and at the same time is attempting to say that his operation of two offices ". . . engaged in the same or similar business. . ." does not constitute a "commercial
enterprise" within the meaning of Section 4.3.7E(1)(b). He cannot have it both ways.
I find that under the facts of this case the State cannot, in connection with the business of Petitioner being relocated, make the determination required by Section 4.3.7E(1)(b). Such a determination is necessary for Petitioner to be eligible for the additional payment he seeks.
The application of Petitioner for a Fixed Payment, in lieu of actual moving costs of relocating his business, is denied and this case dismissed.
DONE AND ORDERED this 14th day of December, 1979.
WILLIAM N. ROSE SECRETARY
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301
COPIES FURNISHED:
Stephen F. Dean, Esquire Dr. Mark H. Feldman
Hearing Officer 6468 Racket Club Drive Division of Administrative Lauderhillp, Florida 33319
Hearings
101 Collins Building Tallahassee, Florida 32301
Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Dec. 20, 1979 | Final Order filed. |
| Nov. 02, 1979 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 14, 1979 | Agency Final Order | |
| Nov. 02, 1979 | Recommended Order | Doctor should be given fixed payment for relocating business offset by amount of actual expenses already paid. |
