JOSEPH H. CLEMPSON, )
vs. ) CASE NO. 84-0281
Respondent. )
A hearing was held in this case on June 6, 1984, in Ft. Lauderdale, Florida, before the Division of Administrative Hearings by its designated Hearing Officer, Diane K. Kiesling.
For Petitioner: Donald H. Benson, Esquire
For Respondent: Vernon L. Whittier, Esquire
The issue in this case is whether Petitioner, Joseph H. Clempson, is eligible for and entitled to relocation benefits, and if so, in what amount.
The Petitioner presented the testimony of five witnesses: Bernard A. Davis, Kathleen Roach, Thomas J. O'Brien, William H. Brown, and Jospeh H. Clempson. The Petitioner also submitted five (5) exhibits into evidence. The Respondent, Department of Transportation, called Joseph H. Clempson as a witness and submitted four (4) exhibits. The parties filed proposed findings of fact and conclusions of law as permitted by law. All proposed findings of fact and conclusions of law have been considered. To the extent that the proposed finding and conclusions submitted are in accordance with the Findings, Conclusions and views submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
It was stipulated that Joseph H. Clempson had resided in the trailer park long enough to come with the purview of the Uniform Relocation Assistance Act.
Joseph H. Clempson owned and occupied a one bedroom, one bath, trailer with a living room, located on a 30x40 foot lot (1200 sq. ft.) in Port Everglades Over Night Trailer Park. The Department of Transportation was acquiring real estate (for highway construction) in the area where Mr. Clempson's trailer was located. The trailer was a 1978 model, with exterior dimensions of 8x31 feet. The Department's Household Survey indicated the trailer was in good condition, met the decent, safe and sanitary standards and could be moved.
Mr. Clempson had lived in his trailer for approximately 5 years and had resided at the Port Everglades Park for 7 years. He paid $130 monthly for the lot when he first moved there and was paying $130 monthly when he left. Rent included water, garbage and septic utilities.
Mr. Clempson worked as a night manager at the park the last two years he was there. He was paid $4.00 per hour and worked approximately 15 hours per week. The rent for anyone new coming into the park would be $170.00 per month. William H. Brown, former operations manager for the Port Everglades Park acknowledged that Mr. Clempson received special consideration for rent because he was a long-standing good tenant. Mr. Clempson did not receive special consideration because he worked there. It is noted that Mr. Clempson did not work for the park during his first five years there and his rent was not increased. Mr. Brown testified that Mr. Clempson's rent would have stayed at
$130.00 even if Mr. Clempson had stopped working for the park.
Bernard Davis, Right of Way Specialist, Department of Transportation, did the evaluation of comparable locations for the relocation of Mr. Clempson. His income was not low enough to come under the 25 percent factor because 25 percent of Mr. Clempson's gross monthly income exceeded his monthly rent at the trailer park. It was Mr. Davis' responsibility to find a park that would be similar or comparable to the subject park, close to commercial and public facilities. He went to other parks but found a park, Mobile Home Country Club, where three comparables were computed to be the best in all respects. Mobile Home Country Club had 25x55 foot lots available for a monthly rental of $145, water and sewer included. There were no common bathing facilities at the park and the park did not allow pets. The Mobile Home Country Club was selected because it was close to commercial and public facilities within a reasonable distance from the subject, approximately 8 miles. The Household Survey indicated Mr. Clempson's trailer met decent, safe and sanitary standards, it was in good condition and could be moved. It had a toilet and bath facilities. It was standard procedure with the Department that all three comparables could be determined at the same general location for mobile home (trailer) parks, residential or apartments. The park where the comparables were determined would accept mobile homes or trailers. The size of the lot in the park was a little larger than the lot Mr. Clempson had at Port Everglades Park.
Kathleen Roach, Right of Way Specialist, Department of Transportation, inspected Mr. Clempson's trailer at the Port Everglades Park and updated the Household Survey on March 15, 1983. She met with Mr. Clempson and measured the trailer to determine how many square feet were inside. Ms. Roach went through the trailer and noted the bathroom was in very good condition. Mr. Clempson informed her the bathroom facilities functioned but he preferred to use the common bathrooms at the park because of his size. She noted the trailer was
four years old, structurally sound, decent, safe and sanitary and could be moved. Ms. Roach was aware that Mr. Clempson had a cat but could not recall the exact date when she was so informed. The pet would not change the calculations of Mr. Clempson. This was due to an instructional memorandum from the Federal Highway Administration that indicated pets cannot be considered in raising the rent supplement. Also, there is no requirement that a location be used in determining comparables where pets can stay.
Mr. Clempson purchased a single wide mobile home, 51 feet long, with 3 bedrooms, a living room and a bath and a half in Rexmere Village where he is presently living. The Department did not determine (pursuant to federal and state standards) that the lot in this mobile home park was comparable to his prior accommodation and did not tell Mr. Clempson to move to this park. Rexmere Village allows pets but has no common bathing facilities. Mr. Clempson's current location has a front yard and back yard. The current lot would be considerably larger than his Port Everglades lot to accommodate a larger dwelling (three bedroom mobile home 51 feet long), and to provide a front and back yard. Mr. Clempson pays a rent of $180 plus approximately $27 a month for water and sewer. The lot at Rexmere Village is not comparable to the lot at Port Everglades Park.
Mr. Clempson sold his trailer at the first park before he bought his new mobile home. Mr. Clempson indicated he had to sell his trailer at a
$3000.00 loss because of its condition. He said that the roof leaked and it had termites (or ants) in it in late 1982. He did nothing to correct the problem except set off some bug bombs. He did not call in any pest control services.
He did nothing because he intended to get rid of the trailer. Mr. Clempson told Ms. Roach about the termites but was unsure about when she was told. He thought he told her in telephone conversations when he was telling her about a mobile home he wanted to buy but he could not recall a specific time. He testified that Ms. Roach was in his trailer several times but he never pointed out to her where the termites were. Ms. Roach testified that the trailer was structurally sound when she inspected it and indicated there was nothing in her contact notes to show she had received information from Mr. Clempson about problems with the trailer. Having weighed the credibility of the witnesses, it is found that the trailer was decent, safe and sanitary when it was inspected and that any economic loss suffered by Mr. Clempson was the result of his actions and not those of the Department.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case, Section 120.57(1), Florida Statutes. The Department of Transportation is authorized to administer a Relocation Assistance Program, providing advisory services and payment benefits to persons displaced from their dwellings as a result of highway construction projects, pursuant to the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Public Law 91-646) and Section 421.55, Florida Statutes, and Section 14-15.05, Florida Administrative Code.
Section 14-15.05, Florida Administrative Code, provides in part: This manual of Right of Way Bureau Operating
Procedures is hereby incorporated by this rule
and made a part of the rules of this department. . .
Section 4.4.3,B., Department of Transportation Right of Way Manual provides in part:
Amount of Payment.
The replacement housing payment is the amount, if any, which when added to the amount for which the Department acquired his dwelling, equals the actual cost which the owner is required to pay for a decent, safe, and sanitary dwelling or the amount
determined by the Department as necessary to purchase a comparable dwelling, which ever is less.
It is the State's responsibility to make available a comparable replacement dwelling unit and relocate the displaced person to his original ownership status if this is his desire. If the alternate tenancy status is desired by the displacee the State will be expected to make a reasonable effort to accomplish the request. If the optional housing is available, the rent supplement, if any, will be based on the specified option and computed in accordance with 4.4.4.
Further, Section 4.4.4, provides:
General. An owner-occupant eligible for a replacement housing payment under 4.4.3 who elected to rent a replacement dwelling is eligible for a rent supplement payment not to exceed $4,000.
Computation and Disbursement of Payment. The payment shall be computed and disbursed in accordance with the provisions of 4.4.7B,C,D, except that the present rental rate shall be economic rent.
Section 4.4.7B., Department of Transportation Right of Way Manual provides in part:
Except as provided in paragraph (2) below, the payment, not to exceed $4,000, shall be determined by subtracting from the amount which the tenant actually pays for a replacement dwelling or, if lesser, the amount determined by the State as necessary to rent a comparable dwelling for the next 4 years:
48 times the average monthly unit rental paid for the unit acquired during the last 3 months or such other appropriate time as may be proper. The "monthly rental paid" shall include any rent supplements supplied by others except when, by law, such supplement
is to be discontinued upon vacation of the property. For example, if an additional person moves to or from the unit acquired
during the three month period prior to the initiation of negotiations, the total unit rental -- not the displacee's portion thereof
-- shall be used in making the computation.
If such average monthly rental is not reasonably equal to market rentals for similar dwellings, the economic rent as established by the State shall be used.
When the average monthly rental being paid by the displacee, not including supplemental rent by public agencies, exceeds
25 percent of the monthly gross income of such individual or family, the payment, not to exceed $4,000, shall be determined by subtracting 12-times the average monthly income of the displacee from: (a) 48 times the monthly rental the tenant actually pays for his replacement unit or, if lesser, the amount determined by the State as necessary
to rent a comparable dwelling if he relocates into private housing, or (b) 48 times the monthly rental the displacee is required to pay if he relocates in a unit of public subsidized rental housing.
Further, Section 4.4.7,C. provides:
Department Determination of Amount Necessary to Rent. The Department may determine the rental rates of comparable housing by a schedule; comparable method; or an approved alternate in accordance with the principles set forth in 4.4.3B above.
Section 4.1.1G Department of Transportation Right of Way Manual provides in part:
Comparable Replacement Dwelling - a dwelling - which is:
decent, safe and sanitary .
functionally equivalent and substantially the same as the acquired dwelling with respect to:
number of rooms,
area of living space,
type of construction, and
age,
fair housing open to all persons regardless of race, color, religion, sex or national origin .
In areas not generally less desirable than the dwelling to be acquired in regard to:
public utilities, and
public and commercial facilities, . .
reasonably accessible to the relocatee's place of employment; .
adequate to accommodate the relocatee;
in an equal or better neighborhood which is not subject to unreasonably adverse environmental factors, . . .
available on the market to the displaced person: . . .
within the financial means of the displaced family or individual. .
if replacement dwellings meeting the above requirements are not available on the market, dwellings which exceed those requirements may be treated as comparable replacement dwellings.
Volume 7, Chapter 5, Section 1, paragraph 4.g., Federal Aid Highway Program Manual says substantially the same thing.
Further, Section 4.1.2, A. provides in part:
a decent, safe and sanitary dwelling is one which conforms with all applicable provisions for existing structures that have been established under State or local
building, plumbing, electrical, housing and occupancy codes and similar ordinances or regulations.
Volume 7, Chapter 5, Section 1, Paragraph 5.a., Federal Aid Highway Program Manual says substantially the same thing.
Mr. Clempson paid an actual rent of $130 per month for his trailer lot which included water and septic utilities, while residing in Port Everglades Trailer Park. The Department found that he paid an economic rent of $170.00 based on his employment at the park. It is concluded that the market value of his trailer lot was $130.00 and that he did not received any special consideration or lower rent because of his employment.
While residing at the Port Everglades Park Mr. Clempson's trailer was located on a 30 x 40 foot lot (1200 sq. ft.). Mr. Clempson's trailer was 8 feet by 31 feet long with a bathroom, 1 bedroom and a living room. He had a pet in his trailer and elected to use the public bathing facilities rather than use the shower in his trailer because of his size. Representatives of the Department inspected his trailer and determined it was decent, safe and sanitary for single occupancy, in accordance with state and federal standards, was in good condition and could be moved. At the hearing Mr. Clempson alleged the trailer had termites, was in poor condition and he had to sell the trailer at a sacrifice. However, insufficient evidence was introduced to show it was necessary to sell rather than move the trailer.
Comparable replacement trailer lots size 25 x 55 (1375 sq. ft.) were determined by a representative of the Department to be available at the Mobile Home Country Club at a rental of $145 per month. The rent included water and sewer. It is concluded that these lots were comparable as defined above. Mr. Clempson had chosen the type of trailer he was living in, which had bathing
facilities, and met decent, safe and sanitary standards. It was his choice to use external facilities and the regulations do not require the department to provide more than decent, safe and sanitary standards. The policy of the Federal Highway administration precludes consideration of pets in raising rent supplements. Therefore, the fact that Mr. Clempson got a pet cannot be used to raise the benefits to which he is entitled.
Mr. Clempson moved to Rexmere Village and purchased a single wide mobile home 51 feet long that has 3 bedrooms, a living room and a bath and a half. It is located on a lot that is considerably larger than his lot in Port Everglades Park because he presently has a front and back yard and his mobile home is 51 feet long. His lot in Port Everglades was 30x40 feet. Mr. Clempson pays $180 a month rent for his current lot. Water and sewer are not furnished which requires him to pay approximately $27 a month additional. His current park permits pets but does not have common bathing facilities. No determination was made by the Department that the park was comparable pursuant to state and federal standards. Mr. Clempson chose to move to this particular park. He was not advised by the Department to do so. Additionally, his current living accommodations far exceed his previous accommodations going beyond the measure of comparability. Therefore, it is concluded that Mr. Clempson's current location does not meet the test of being comparable under state and federal requirements and cannot be used for purposes of computing a replacement housing payment.
The replacement housing payment is computed by subtracting the average monthly rental established by the Department from the monthly amount to paid for a location providing comparable accommodations as defined by federal and state standards, multiplying the balance times 48, not to exceed an amount of $4,000. In the instant case, the monthly rental of $130 established for Mr. Clempson is less than the comparable monthly rental of $145. Using the above formula, it is concluded that Mr. Clempson is entitled to a replacement housing benefit of
$720.00.
It is also concluded that any loss which Mr. Clempson took on selling his trailer is not the responsibility of the Department. His trailer was movable and was decent, safe and sanitary at the time of inspection. Any loss was voluntary or the responsibility of Mr. Clempson. He is not entitled to reimbursement for any loss incurred upon sale of his trailer.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order
authorizing payment of replacement housing benefit of $720.00.
DONE and ENTERED this 27th day of August, 1984, in Tallahassee, Florida.
DIANE K. KIESLING
Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1984.
Donald H. Benson, Esquire
Vernon L. Whittier, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
