STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN D. LAWRENCE, )

)

Petitioner, )

)

vs. ) CASE NO. 82-529

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on June 30, 1982, in Palmetto, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: John D. Lawrence

Appeared on his own behalf c/o Manatee Tropical Foliage Post Office Box 206

Parrish, Florida 33564

For Respondent: Charles G. Gardner

Department of Transportation Haydon Burns Building Tallahassee, Florida

The Petitioner is entitled to receive relocation assistance program benefits on account of the acquisition of property by the Department of Transportation for construction of an interstate highway. Petitioner and the Department disagreed as to the amount of benefits Petitioner should receive, and Petitioner requested a formal administrative hearing. The matter was forwarded to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was scheduled as set out above by notice dated March 30, 1982.

At the final hearing, Petitioner testified on his own behalf. The Department called Ronald Allen Crew, the Department's District Administrator of Relocation Assistance, as its only witness. Petitioner's Exhibits 1 and 2, and Respondent's Exhibits 1 and 2 were offered into evidence and received. The parties have submitted post-hearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the evidence, irrelevant to the issues, or legally erroneous.

The issue in this proceeding is whether the Petitioner is entitled to relocation assistance benefits in excess of those which he has already received from the Department. Petitioner specifically contends that he is entitled to be compensated for an "origination fee" and for incidental expenses in the total amount of $3,932.73, and that these amounts were not included in payments that have already been made by the Department to the Petitioner.

FINDINGS OF FACT

1. The Petitioner owned property including structures used for his dwelling and for his business which was located within the right-of-way of an interstate highway being constructed by the Respondent, Department of Transportation. The Petitioner and the Department negotiated with respect to the amount of compensation that Petitioner was entitled to receive.

   
   

2. The Department located a residential dwelling which it contended was comparable to Petitioner's. Petitioner accepted the dwelling located by the Department as comparable for the purpose of determining the amount of compensation that Petitioner was entitled to receive. Petitioner elected, however, to construct a new dwelling on other property that he owned. Petitioner was compensated as if he had purchased the comparable dwelling and was compensated an additional $829 for "incidental expenses" beyond the replacement value as established by the comparable dwelling.

   
   

3. Petitioner contends that he is entitled to be compensated for the cost of a "origination fee" which resulted from Petitioner's having to arrange financing. Although improperly labeled, it appears that Petitioner did receive adequate compensation for the loan origination fee. Petitioner received a check from the Department for a "replacement housing payment" which included the origination fee which Petitioner contends he was entitled to receive. While the replacement housing payment was not broken up so as to reflect these fees, it was calculated to include them.

   
   

4. Petitioner contends that he is entitled to receive incidental expenses beyond those that he has already received in the amount of $2,068.23.

   Petitioner has received a payment for incidental expenses in the amount of $829, which includes expenses for a survey, sketch and description, loan application fee, title insurance, attorney's fees, and recording fees. Petitioner actually incurred incidental expenses beyond those for which he was compensated. These additional fees resulted, however, from the fact that Petitioner elected to construct a new residence rather than to accept the comparable residence located by the Department. Because Petitioner was constructing a new residence, it was necessary for him to incur some expenses which would not have been incurred had he accepted the comparable dwelling located by the Department. These expenses included costs of obtaining a rezoning of his property, costs of various construction permits, the cost of obtaining a construction loan, and the cost of a builder's risk insurance policy. While the Petitioner actually incurred these costs, they were costs that he would not have incurred if he had elected to accept the comparable dwelling located by the Department. Petitioner did accept the comparable dwelling for the purpose of setting the amount of benefits that he was entitled to receive.

   
   

   CONCLUSIONS OF LAW

   
   

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

6. Petitioner is not entitled to receive additional moneys for an "origination fee," as he has contended. The cost of such fees was included by the Department in its "replacement housing payment," which was made to the Petitioner.

   
   

7. Petitioner is not entitled to receive the additional incidental benefits that he has claimed. Petitioner is entitled to incidental expenses incurred beyond the "replacement housing payment," including expenses for closing costs, appraisal fees, loan application fees, credit reports, title insurance policies, escrow agent's fees, and documentary stamp taxes. See: Paragraph 4.4.3 of the Federal Highway Administration Federal Aid Highway Program Manual, as incorporated into the rules of the Department of Transportation through Rule 14-15.05, Florida Administrative Code. Petitioner was compensated for these costs. The additional incidental expenses for which Petitioner is seeking compensation are expenses that he incurred as a result of his election to construct a new dwelling rather than to accept the comparable dwelling located by the Department. Since Petitioner accepted the comparable dwellings for the purpose of establishing the amount of compensation that he was entitled to receive, and since the additional incidental expenses resulted from his election to construct a new residence, he is not entitled to be compensated for them.

RECOMMENDATION

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

That a final order be entered by the Department of Transportation denying the application of the Petitioner, John D. Lawrence, for additional relocation assistance benefits.

RECOMMENDED this 2nd day of August, 1982, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1982.

COPIES FURNISHED:

Mr. John D. Lawrence

c/o Manatee Tropical Foliage Post Office Box 206

Parrish, Florida 33564

Charles G. Gardner Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Mr. Paul N. Pappas Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 82-000529

Orders for Case No: 82-000529