STATE OF FLORIDA

DIVISION OF ADMINSTRATIVE HEARINGS

MIKE ANAGNOSTAKIS, )

)

Petitioner, )

)

vs. ) Case No. 85-0543

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on June 13, 1986 in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: James R. Clodfelter, Esquire

Suite 207

1701 West Hillsboro Boulevard Deerfield Beach, Florida 33442

For Respondent: Vernon L. Whittier, Jr., Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Petitioner timely requested a formal hearing regarding the Department's determination that Petitioner was not eligible for a fixed relocation payment under the provisions of the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Public Law 91-646); Section 421.55, Florida Statutes; 49 C.F.R. 2, and Department of Transportation Relocation Assistance Procedures. Accordingly, the issue to be determined herein is whether Petitioner is entitled to a fixed relocation payment in lieu of actual reasonable moving cost.

Petitioner Mike Anagnostakis testified on his own behalf and presented the testimony of Joseph Earls and Paul W. McMahon. Additionally' Petitioner's Exhibits numbered l and 2 were

admitted in evidence. Respondent presented the testimony of Paul W. McMahon, and Respondent's Exhibits numbered 1-6 were admitted in evidence.

Although both parties requested and were granted leave to file proposed findings of fact in the form of proposed recommended orders, only the Respondent did so. Respondent's proposed findings of fact numbered 1-4 are rejected as not constituting findings of fact but rather as constituting recitations of the conflicting testimony.

FINDINGS OF FACT

1. In October, 1973, Petitioner Mike Anagnostakis began operating a Texaco service station on South State Road 7 in Broward County, Florida. At that station, gasoline was pumped, and automobiles were washed and repaired.

   
   

2. In October, 1981, Petitioner purchased a Shell service station located on South State Road 7 in Broward County, Florida, approximately four miles south of his Texaco station. At the Shell station, gasoline was pumped, and automobiles were repaired.

   
   

3. On April 1, 1982, Respondent contacted Petitioner in conjunction with a Relocation B Plan and completed a business survey questionnaire.

   
   

4. A Relocation A Plan generally describes the businesses and residences that could possibly be displaced by a number of alternative highway alignments. After the Federal Highway Administration makes the final determination on which alignment a road will take, the Department of Transportation acquires the maps necessary for that particular alignment. Then the Relocation Section personnel go out and perform the Relocation B Plan survey identifying the persons who will be displaced based upon the final road alternative chosen. Business survey questionnaires are compiled and contracts are entered into for appraisals for the purchase of the property affected. Thereafter, the Department of Transportation commences the actual acquisition process. Years may elapse between the Relocation A Plan which includes all possible alternatives for the proposed road and the actual acquisition by the Department of Transportation of the specific properties finally affected.

   
   

5. No notice to vacate or notice that a parcel is going to be acquired is given until the beginning of negotiations with

   the occupants of those properties. If a business relocates prior to the beginning of negotiations, that business is not eligible for moving costs. Under Department procedures, an offer must be made before an occupant is considered eligible for any relocation payments.

   
   

6. On April 1, 1982, when Respondent made its first contact with Petitioner relative to the determination that Petitioner's business would be displaced in conjunction with the property acquisition for the proposed roadway, the business survey questionnaire involved only the Texaco service station since the Shell service station was not being acquired by the Department of Transportation.

   
   

7. In September, 1983, Petitioner's gas lease with Texaco expired. Although a new lease was entered into between Petitioner and Texaco, that new lease authorized Petitioner to use the premises only as an automotive garage and no further gasoline was supplied by Texaco to Petitioner. At that time Petitioner ceased pumping gasoline at that site.

   
   

8. At the Texaco site, Petitioner continued washing . and repairing automobiles. At some undisclosed time he also commenced selling used cars from that site.

   
   

9. Follow up contact between Respondent and Petitioner occurred at the end of 1983, and an offer to the real estate owner may have been made at that time. When that contact occurred, Petitioner was physically working at the Shell station and not at the Texaco site. However, cars were being sold at both locations, and the same repairs were being performed at the Texaco and at the Shell sites.

   
   

10. Since Petitioner did not own the real property on which the Texaco station was situated, on February 27, 1984, Respondent delivered to Petitioner an offer relative to the improvements on the real estate. At the same time other written materials were delivered to Petitioner advising him as to the procedures involved in the relocation program, including a letter advising Petitioner that he would be afforded no less than so days notice of the date on which he would be required to vacate the property.

    
    

11. On February 27, 1984 automobiles were being sold and repaired at both the Texaco and the Shell service stations. Petitioner presented no evidence to compare the cars available for sale at the Texaco site compared to the Shell site or the

    rate of repairs being accomplished to the automobiles at either of those two sites.

    
    

12. The initiation of negotiations between Petitioner and Respondent occurred on February 27, 1984.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57 (1), Florida Statutes.

    
    

14. The Department of Transportation is authorized to administer a Relocation Program providing advisory services and payment benefits to certain persons displaced 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); Section 421.55, Florida Statutes; Title 49, Code of Federal Regulations; and Department of Transportation relocation assistance procedures. Procedure No. RA 3-9, State of Florida Department of Transportation Right of Way Operating Procedures, provides, in part, as follows:

    
    

    1. PAYMENT DETERMINATION: Subject to the payment limitations and special eligibility criteria for farms and nonprofit organizations discussed in procedure RA 3-10 nonresidential displaces may elect, in lieu of any other moving expense payments, a Fixed Payment equal to the average annual net earnings of the operation, but not less than $2,500 nor more than $10,000.

       
       

       1. For a displace to be eligible for a Fixed Payment, it must be determined that the operation cannot be relocated without a substantial loss of existing patronage.

          
          

       2. In order to qualify for the Fixed Payment, the operation must not be part of a commercial enterprise (engaged in the same or similar business) having at least one other establishment not being acquired by a State or Federal project.

          
          

       3. A part-time individual or family occupation conducted on the property, which

       does not contribute materially to the income of the displacee, is not eligible for the Fixed Payment.

       
       

15. See also 49 C.F.R. Section 2S.157. Further, the Department's brochure entitled Your Relocation, admitted as Respondent's Exhibit numbered 2, provides on page two as follows:

    
    

    OCCUPANCY CONDITIONS:

    
    

    There are two basic eligibility conditions for reimbursement of moving expenses to businesses, farms and nonprofit organizations:

    
    

    1. The displaced business, farm or nonprofit organization must be in occupancy at the initiation of negotiations for the purchase of the subject property; or

       
       

    2. The displaced business, farm or nonprofit organization; must be in occupancy at the time the Department obtains legal possession of the subject property.

    
    

    Under condition #1, the displaced operation would be considered an initial occupant.

    Under condition #2, the displaced operation would be considered a subsequent occupant.

    
    

16. Petitioner is not eligible for a fixed relocation payment, in lieu of any other moving expense payments, under the applicable statutes, regulations, and procedures. At the time that Respondent initiated negotiations with the owner of the real estate (the end of 1983) and/or at the time that the Department initiated negotiations with Petitioner (February 27, 1984), Petitioner was operating a commercial enterprise having at least one other establishment not being acquired which was engaged in the same or similar business: automobiles were being repaired and automobiles were being sold at both the Shell service station site and at the Texaco service station site. Since Petitioner testified that the same repairs were done at Texaco as at Shell and since Petitioner admits automobiles were being sold although he contends the circumstances were different, Petitioner was engaged in the same business at two locations even though more services were performed at the Shell

    site, i.e., gas was also being pumped and sold to customers. Additionally, Petitioner presented no evidence to show that he suffered a loss of existing patronage as a result of relocating his auto repair business from the Texaco to the Shell service station sites.

    
    

17. Petitioner contends that his right to receive a fixed payment arose in 1981 as a result of two unidentified persons coming to the Texaco service station and advising him verbally only that the state would take over his business and he had to move within a year; therefore, Petitioner contends he had a reasonable expectation of moving several years before any need arose. Petitioner cannot, however, name the persons to whom he allegedly spoke, no longer has their business card, received nothing in writing from them and cannot specify when they appeared at his site. Further, that conversation allegedly took place prior to the formulation of the Relocation B Plan. Even if Petitioner were correct that some type of right vested in 1981 rather than in 1984 when the department initiated negotiations with him, between those two dates Petitioner was the owner and operator of two service stations at which gas was pumped and automobiles were repaired. Accordingly, under Petitioner's theory of an earlier vesting of his eligibility rights, at that time he would also have been engaged in a commercial enterprise having at least one other establishment not being acquired by the State and engaged in the same or similar business.

    
    

18. During the final hearing in this cause, the parties stipulated that Petitioner need not present any financial documentation in support of his claims. Assuming that the parties could legally bifurcate the proceeding in this cause, Petitioner failed to present any evidence that his business could not be relocated without a substantial loss of his existing patronage. Petitioner erroneously interprets that requirement for eligibility to mean that the customers at either location must be the identical persons. Such an interpretation is illogical. That provision must mean, if it is to have any meaning, the same level of patronage and not the exact patron. Under Petitioner's interpretation if some persons stopped doing business with him whether or not he ever moved, he would suffer a loss of existing patrons. Although Petitioner did testify briefly as to the loss of identical customers, no evidence was presented that there was a lower level of patronage by persons in general at the Shell site than at the Texaco site.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered determining that Petitioner Mike Anagnostakis does not qualify for a fixed relocation payment in lieu of any other moving expense payments.

DONE and RECOMMENDED this 8th day of August, 1986 in Tallahassee, Florida.

LINDA M. RI60T, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway Tallahassee, Florida (904) 488

Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1986.

COPIES FURNISHED:

Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

James R. Clodfelter, Esquire Suite 207

1701 West Hillsboro Boulevard Deerfield Beach, Florida 33442

Docket for Case No: 85-000543

Orders for Case No: 85-000543