BENJAMIN L. BROWN, )
vs. ) CASE NO. 80-973T
Respondent. )
Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 12 November 1980, Lake City, Florida.
For Petitioner: Terry R. McDavid, Esquire
For Respondent: Charles G. Gardner, Esquire
By Payment Appeal dated January 15, 1980, Benjamin L. Brown, Petitioner, has requested a hearing to contest the Department of Transportation (DOT), Respondent's, denial of his claim for dislocation allowance which resulted from a widening of U.S. 90. As grounds for his claim, Petitioner contends that as a result of having to relocate his office, his income was substantially impaired following the relocation. There is little dispute as to facts here involved.
Petitioner testified in his own behalf, Respondent called two witnesses and five exhibits were admitted into evidence.
By letter dated May 31, 1979 Respondent notified Petitioner that it was acquiring part of the property on which Petitioner's office was located and that it would be necessary for him to relocate.
At the time Petitioner worked as a real estate appraiser in the office of the Pickens Agency owned by Philip Pickens. Pickens provided work space, telephones, secretary, data bank and supplies.
The data bank contained data on real property throughout Florida and was invaluable to the appraisers in getting comparables to use for appraising like property.
Due to the acquisition of additional property for the U.S. 90 right-of- way, it was necessary to move the two-story building in which Petitioner's office was located. This required moving out of this building into different quarters. In the building Petitioner's office, located on the second floor, comprised approximately 800 square feet in which he had desk, telephone and work space. The data bank was also located on the second floor.
Philip Pickens owned another building in the Immediate vicinity into which Petitioner moved. The data bank was left in the original building which was jacked up in preparation for its move. Thee data bank remained available for use albeit less convenient for those using it.
Petitioner had less space in the one-story building into which the Pickens Agency moved and Petitioner's office was located near the back door through which clients visited the Pickens Agency. He shared a telephone with another appraiser and had a smaller desk and less work space. He also experienced interruptions from visitors entering the office through the back door which opened into Petitioner's office space.
During the two years immediately preceding the relocation of the office, Petitioner's appraisal work was performed exclusively for DOT. Part of this work was assigned him by the Pickens Agency and in some cases he was contacted directly by DOT for the appraisal . When employed directly by DOT, Petitioner received 50 percent of the appraisal fee and the Pickens Agency received 50 percent. When assigned work by the Pickens Agency, Petitioner received 45 percent of the appraisal fee.
During the five months following Petitioner's move into the new quarters his income dropped substantially from what it had been before the relocation.
Petitioner filed application for relocation benefits as soon as he moved his office and before any change in income occurred. Normally, there is a lag of three to six months between tile Line the appraisal work is done and payment is received.
Petitioner's income during the first nine months of 1980 (January - October) we $10,622.97. For similar periods in 1979, 1978, and 1977 his income was $29,750, $26,382.50 and $22.252.50, respectively. Petitioner testified that he believes the loss of income was due to his inability to turn out as much work in the more restricted space and less privacy in the one-story building than he had before the move.
Petitioner moved some 30 yards from his original location kept the same mailing address and the same telephone number. During the latter half of 1979 and the first half of 1980, the Lake City District of DOT had fewer relocation claims than in comparable periods of the two previous years. Relocation claims are related to appraisals which would indicate fewer appraisals were ordered by DOT in Lake City in 1979-80 than in the two previous years.
During the period in question, most of Petitioner's work for DOT was generated by the Bartow office. This would require most of Petitioner's appraisal time out of Lake City with the use of the office primarily for the preparation of his appraisal report.
No evidence was submitted to show the effect, if any, on the Pickens Agency's business resulting from the move or the business done by the other appraisers who also moved. During the period 1977-1980 the Pickens Agency employed between two and five appraisers and at the time of the relocation employed two appraisers, one of whom was petitioner. (Tr. p. 31). The number of appraisers employed varied with the volume of business coming into the agency.
The appraisal work done by the Pickens Agency was statewide and not concentrated in the vicinity of Lake City.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Relocation assistance for businesses relocated because of the taking of their property ill connection with federal interstate and primary-aid highways is provided for in the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 USC 4601-4639. This Statute provides in pertinent part:
Any displaced person . . . may receive a fixed payment in an amount equal to the average annual net earnings of the business or farm operation, except that such payment shall not be less than $2,500 nor more
than $10,000. In the case of a business no payment shall be made under this subsection unless the head of the Federal Agency is satisfied that the business (1) cannot be relocated without a substantial loss of its existing patronage . . . .
The carrying out of these provisions had been delegated to the states and Florida had adopted rules establishing various guidelines. Rule 14-15.5, Florida Administrative Code, adopts the Manual of Right-of-Way Bureau Operating Procedures as a rule.
Petitioner is here seeking a fixed payment in lieu of actual moving expenses as provided for in section 4.3.7E, Right-of-Way Manual, which provides in pertinent part:
In lieu of the payments described in 4.37B. 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.
for the owner of a business to be entitled to this pyament, the State must determine that:
The business cannot be relocated
without a substantial loss of its existing patronage . . . . Such determination shall be made by the District only after consideration of all pertinent circumstances, including but not limited to the following factors:
The displaced business occupies rented quarters and the only replacement sites are for sale but not within the financial capabilities of the displaced business. The same situation could occur even though the original business quarters were owned.
Substantial additional expense for the move which may not be compensable such as downtime during the move, the need to borrow additional capital, the inability of the business owner to secure additional financing, the need to use other business resources for a new plant, and any other related costs of this nature.
The business may be located in an area of low rentals which permits the owner of a small low-volume business to be competitive with his large competitors. If the business is required to relocate into a higher rental area, it could incur a substantial loss of customers due to a necessary increase in prices to meet the increased operating costs.
The type of business conducted by the displaced person.
The nature of the clientele of the displaced person.
The relative importance of the present and proposed location to the displaced business and the availability of a suitable replacement location for the displaced person. This is most evident in those instances where the displaced owner is either the elderly, ill or handicapped. There are many situations, particularly in older neighborhoods, where the owner lives next door or within the same building as his business. A replacement location may be unsuitable for these particular owners if they were required to travel any distance to work.
It is significant that no evidence was presented regarding the change in the business of the Pickens Agency resulting from this move. The only claimant is the Petitioner, who received a major portion of his income through the Pickens Agency and with whom he shared commissions on business that came directly to him. While Petitioner's income dropped in the period following the move, no credible evidence was presented that this loss of income was attributable to the move.
Petitioner retained the same telephone number, the same mailing address, and continued to have access to the same data bank for nearly all of the period following the move. The only inconvenience or loss (other than income) which Petitioner claims consists of a slightly smaller office and work space and less privacy. No credible explanation was provided to show how slightly less work space could cause such a drastic loss of production as is claimed by Petitioner.
It is also significant that during the two years preceding the move Petitioner performed appraisals exclusively for DOT. The latter's work in the Lake City District diminished in volume during the period immediately following Petitioner's move; and, although Petitioner worked on appraisals throughout the State, no evidence was presented regarding the location of the appraisals done by Petitioner before the Pickens Agency was relocated.
Petitioner has the burden to prove by a preponderance of the evidence that his loss of income following the relocation of the Pickens Agency was directly or indirectly caused by the relocation. This he has failed to do. All that Petitioner has shown is that his income dropped during the period following the relocation of the Pickens Agency without showing any rational or direct correlation between the relocation and the loss of income. Absent such a connection, there is no basis for a fixed payment in lieu of actual moving expenses. It is therefore
RECOMMENDED that Petitioner's claim for a fixed payment in lieu of actual moving expenses be denied.
Entered this 10th day of December, 1980.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Terry R. McDavid, Esquire
P. O. Box 1328
Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street Room 562
