STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HORST R. FERCHL, )

)

)

Petitioner, )

)

vs. ) CASE NO. 91-6431

) DEPARTMENT OF TRANSPORTATION, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on April 9, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Andrew H. Schuster, Esquire

Brigham, Moore, Gaylord,

Wilson, Ulmer, Schuster & Sachs

333 North New River Drive East

Fort Lauderdale, Florida 33301-2205

For Respondent: Charles G. Gardner, Esquire

Assistant General Counsel 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

Whether Petitioner is entitled to additional benefits as a highway displacee under the Florida relocation assistance program after the residence he was renting was taken by Respondent in connection with the widening of a highway.

PRELIMINARY STATEMENT

Petitioner was the lessee of a residence located on the Miami River in Miami, Florida, where he resided with his wife and four children. As part of the widening of a highway, Petitioner was displaced from his residence.

Respondent calculated the relocation benefits to which it considers Petitioner to be entitled using a replacement residence that it considers to be the functional equivalent of the residence from which he was displaced. Petitioner accepted the relocation benefits calculated by Respondent under protest and reserved the right to challenge his entitlement to additional benefits.

Petitioner contends that the replacement is not the functional equivalent of the residence from which he was displaced because the replacement residence had no access to deep water and because the zoning of the replacement residence did not permit the operation of his import business from the residence.

At the formal hearing, the Petitioner testified on his own behalf and called as additional witnesses Deborah S. Long and Diego Rivadeneira. Ms. Long is Respondent's State Administrator for Relocation Assistance and, prior to her promotion from the district to the state level, worked on the subject project at the district level. Mr. Rivadeneira is one of Respondent's relocation specialists. Respondent called no additional witnesses. Petitioner offered six exhibits and Respondent offered eleven exhibits. All offered exhibits were accepted into evidence. Petitioner's request to submit a seventh exhibit as a late-filed exhibit was granted. That seventh exhibit was not filed on a timely basis. A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner rented the residence at 1881 Northwest 27th Avenue, Miami, Florida (displaced residence), where he lived with his wife and four children for four years prior to being displaced by Respondent in 1990.

   
   

2. The displaced residence was approximately 1100 square feet of livable space and contained two bedrooms and two baths.

   
   

3. Petitioner owned an import business which imported baby strollers from outside the United States for resale in the United States. Petitioner used approximately 150 square feet of space in one of the rooms of the displaced residence to store these baby strollers.

   
   

4. William Sawyer was the owner of the displaced residence and the real property on which it was situated. Mr. Sawyer rented the residence to Petitioner and his wife pursuant to a lease dated July 2, 1986. The monthly rental for the residence was $475.00 (which was later verbally increased to

   $500.00).

   
   

5. In addition to the residence, the property on which the displaced residence was located contained approximately 100 feet of frontage on the south side of the Miami River with a dock that was capable of mooring seagoing vessels. The property also contained a small warehouse.

   
   

6. Pertinent to this proceeding, the lease contained the following provisions:

   
   

   #10. It is understood by Tenant that Landlord must have access through Drive-Way to Warehouse Building on property and that some of Landlord's equipment may be stored on property.

   #11. It is further understood and agreed by Tenants that Warehouse Building and all Dock Space area of property is reserved for the exclusive use and purposes of Landlord & free access to same is to be granted by Tenants at all times. Said Warehouse & Dock

   Space may be rented out by Landlord as he sees fit.

   
   

7. Respondent purchased the subject property from Mr. Sawyer1/ in order to widen Northwest 27th Avenue, Miami, Florida, as part of a federally funded project. Petitioner was displaced from his residence and became entitled to relocation benefits provided by the Federal Uniform Relocation Assistance Program, 49 CFR 24. The program, as it pertains to projects within the State of Florida, is administered by Respondent.

   
   

8. Under the relocation program, Respondent is required to locate a functionally equivalent replacement dwelling taking into consideration the needs and the life-styles of the persons being displaced. The amount of the relocation benefits is calculated pursuant to a formula by which the difference between the rent and utilities for the original residence and the rent and utilities for the replacement residence is determined and thereafter multiplied by 42.

   
   

9. Respondent calculated the benefits to which Petitioner was entitled as being in the amount of $23,821.14. Petitioner accepted that amount under protest and reserved his right to challenge in these proceedings his right to additional benefits, contending that the replacement residence was not functionally equivalent to the Sawyer property for two reasons: First, the replacement residence did not have access to deep water. Second, zoning of the replacement residence did not permit the operation of his import business from his home as did the Sawyer property.2/

   
   

10. Petitioner's testimony that he was initially attracted to the displaced residence because its zoning permitted him to operate his business from his residence and because of the river frontage is found to be credible and is accepted.

    
    

11. At all times pertinent to this proceeding, Petitioner owned a steel- hulled sailboat that is 70 feet in length and 20 feet in beam. The river frontage adjacent to the Sawyer property was important to Petitioner because it gave him deep water access and protection during the hurricane season. The river frontage provided security for his boat and allowed him quick and easy access to it. The depth of the river at the Sawyer property was approximately

    10 feet and was sufficient depth for Petitioner's boat. Petitioner could have sailed his boat from the Sawyer property into the Atlantic.

    
    

12. For one month in either late 1987 or early 1988, Petitioner rented the dock from Mr. Sawyer at the rate of $270.00 per month. Petitioner did not lease the dock from Mr. Sawyer or have the right to moor his sailboat at the dock at any time other than the one-month period in late 1987 or early 1988. At least during part of the time Petitioner resided at the Sawyer property, the sailboat was moored approximately 150 yards from the Sawyer property where it was undergoing a complete overhaul of its masts. The work that was being done on the sailboat could not have been done at the Sawyer property because there was insufficient access for the heavy-duty crane that was required for the work.

    
    

13. Although Petitioner testified that he could have rented the dock at any time he wanted at the rate of $270.00 per month, and that he intended to rent the dock from Mr. Sawyer after extensive repairs had been made to his boat, there was no evidence that Petitioner actually used the dock at the times pertinent hereto or that he had the right to use the dock.

14. Petitioner's ownership of the boat was an important part of his and his family's life-style. Petitioner had built the sailboat himself, he had invested considerable sums in the boat, he and his family had traveled extensively on the boat, and he and his family had lived on the boat at one time.

    
    

15. When Respondent's displacement specialist first met with Petitioner, Petitioner was informed that the river frontage would be included in calculating the displacement benefits.3/ The river frontage of the displaced residence was considered by Respondent to be water view only since Petitioner had no legal right to use the frontage and because Petitioner was not in fact using the dock.

    
    

16. The zoning of the displaced residence permitted Petitioner to operate his import business from the residence. This business consisted of importing items, such as baby strollers, from out of the United States for resale in the United States. Petitioner utilized approximately 150 square feet of the space of the displaced residence to store those items from time to time.

    
    

17. Petitioner located a dwelling that Respondent used as the replacement dwelling in calculating the benefits that were paid to Petitioner. Petitioner used the benefits he received from Respondent as a down-payment on his purchase of that dwelling. All comparables considered by Respondent in determining the displacement benefits to which Petitioner was entitled, including the replacement dwelling purchased by Petitioner, had water view.

    
    

18. The replacement dwelling purchased by Petitioner has no access to deep water on which he can sail his boat. The zoning of the replacement dwelling purchased by Petitioner does not permit the operation of Petitioner's business from the residence.

    
    

19. The replacement dwelling, as compared to the displaced dwelling, is larger (1,400 square feet vs. 1,100 square feet), has more bedrooms (3 vs. 2), and has more total rooms (9 vs. 6). The replacement dwelling also has a garage and a screen porch whereas the displaced residence did not.

    
    

20. Respondent established that Petitioner has been properly compensated for the displacement if Petitioner's claims for additional compensation are rejected.4/

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

22. Section 421.55(1), Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. It is the intent of the Legislature to authorize the state and its departments ... to comply with the provisions and requirements of the ... Uniform Relocation Assistance Act of 1987 ... .

       
       

23. Petitioner is a "displaced person" under the Uniform Relocation Assistance Act and is entitled to benefits under that program. The amount of those benefits turn on what is found to be a "comparable replacement dwelling" which is defined by 49 C.F.R. Section 24.2(d) as being a dwelling which is:

    ... functionally equivalent to the displacement dwelling. The term "functionally equivalent" means that it performs the same function, provides the same utility, and is capable of contributing to a comparable style of living. While a comparable replacement dwelling need not possess every feature of the displacement dwelling, the principal features must be present. Generally, functional equivalency is an objective standard, reflecting the range of purposes for which the various physical features of a dwelling may be used. However, in determining whether a replacement dwelling is functionally equivalent to the displacement dwelling, the Agency may consider reasonable trade-offs for specific features when the replacement unit is "equal to or better than" the displacement dwelling.

    ...

    
    

24. It is apparent that Petitioner was attracted to the Sawyer property because he believed that he would be able to moor his sailboat at the dock on the property after the sailboat was repaired and because he was able to operate his import business from the premises.

    
    

25. The ability to dock the boat was something that Petitioner expected to be able to enjoy at some undefined point in the future, but he had no legal right of access or use of the dock at any time pertinent to this proceeding. Although Petitioner testified as to his understanding of an agreement he had with Mr. Sawyer, that understanding did not give Petitioner any more than an expectation. Mr. Sawyer was under no obligation to rent the dock to Petitioner for the sum of $270.00 or for any other amount. Petitioner properly excluded this expectation from its considerations as to what constituted a "functionally equivalent" dwelling.

    
    

26. The exclusion of the business consideration was proper because compensation for relocation of a business is provided for by another section of the Act and was not properly at issue in this proceeding.

    
    

27. It is concluded that Respondent properly calculated the amount to which Petitioner was entitled under the displacement program. Since Petitioner has received the amount so calculated, he is entitled to no further relief.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Petitioner was

properly compensated under the relocation program and which denies Petitioner's appeal.

DONE AND ORDERED this 9th day of July, 1992, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1992.

ENDNOTES

1/ The entire property owned by Mr. Sawyer, including the residence, the warehouse, and the dock, will be referred to as the Sawyer property. The residence which Petitioner rented from Mr. Sawyer will continue to be referred to as the displaced residence when reference is to the residence only.

2/ The parties stipulated that Petitioner is not seeking compensation for the required relocation of his import business. The additional compensation is based on the loss of convenience of being able to live and work at the same location.

3/ Petitioner testified that he would have gotten a lease from Mr. Sawyer for the dock if he had known that a lease would be required for him to get the benefits he seeks. Petitioner further testified that he was not advised that the value of the docking privileges could be taken into consideration only if Petitioner had a written lease allowing him the use of the dock and that none of the written information provided by Respondent advised him that a written lease would be required. Whether replacement benefits may be based on a verbal lease need not be decided in this proceeding. Petitioner's testimony that many of the leases on the Miami River are verbal is accepted. However, it is clear that the written lease specifically reserved the use of the dock to Mr. Sawyer and there was no verbal lease that existed at any time pertinent to these proceedings. It is also clear that Petitioner was not using the dock at any time pertinent to this proceeding.

4/ If the recommendation contained herein is rejected, the amount of the benefits should be recalculated using appropriate data. The rental values to which Petitioner testified are too speculative upon which to base such a recalculation.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 91-6431

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 16, 17, 18, and 25 are adopted in material part by the Recommended Order.

   
   

2. The proposed findings of fact in paragraphs 12 and 15 are adopted in part by the Recommended Order. The portions of the proposed findings suggesting that the fact that the sailboat was undergoing repairs was the only reason Petitioner did not dock the sailboat at the displaced residence is rejected as being unsubstantiated by the record. Petitioner had no right to use the dock pursuant to any agreement with Mr. Sawyer. That Mr. Sawyer would have agreed to lease Petitioner the right to use the dock was not established. In light of the Respondent's action in taking this property, it is pure speculation as to whether Mr. Sawyer would have leased the dock to Petitioner.

   
   

3. The proposed findings of fact in the first sentence of paragraph 14 are rejected as being unsubstantiated by the evidence. The proposed findings of fact in the second sentence of paragraph 14 are adopted in material part by the Recommended Order.

   
   

4. The proposed findings of fact in paragraphs 20, 21, and 22 are rejected as being unnecessary to the conclusions reached.

   
   

5. The proposed findings of fact in paragraphs 23 and 24 are rejected as being unsubstantiated by the evidence. Petitioner's gross estimates as to these values is not considered by the undersigned to be reliable evidence upon a finding of fact may be based.

   
   

6. The proposed findings of fact in paragraph 26 as to the amount of rent are adopted by the Recommended Order, but the proposed findings of fact as to the amount at which he could rented the dock is rejected as being unsupported by the record.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 4, 5, 7, 8, and 9 are adopted in material part by the Recommended Order.

   
   

2. The proposed findings of fact in paragraph 3 are adopted in part by the Recommended Order, but the referenced guidelines are not attached to the Recommended Order or incorporated therein by reference.

   
   

3. The proposed findings of fact in paragraph 6 are rejected as being a conclusion of law.

COPIES FURNISHED:

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

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Andrew H. Schuster, Esquire Brigham, Moore, Gaylord, Wilson,

Ulmer, Schuster & Sachs Riverwalk Plaza, Suite 3000

333 North New River Drive East

Fort Lauderdale, Florida 33301-2205

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

ATTN: Eleanor F. Turner, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, General Counsel Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

HORST R. FERCHL,

Petitioner,

vs. DOAH CASE NO. 91-6431

DOT CASE NO. 92-0456

DEPARTMENT OF TRANSPORTATION,

Respondent.

/

FINAL ORDER

Petitioner, HORST R. FERCHL (hereinafter FERCHL), filed a claim regarding relocation benefits with the DEPARTMENT OF TRANSPORTATION (hereinafter DEPARTMENT). Upon the DEPARTMENT's notice of intent to deny the benefits

requested, FERCHL requested an administrative hearing, and the matter was referred to the Division of Administrative Hearings.

A hearing was held in this matter on April 9, 1992, in Miami, Florida, before a duly assigned Hearing Officer, Claude B. Arrington, of the Division of Administrative Hearings. The Hearing Officer entered a Recommended Order (copy attached) on July 9, 1992.

Upon a review of the record in its entirety, the following findings are made. The Hearing Officer's findings of fact and conclusions of law are adopted except as specifically set out herein.

Petitioner timely filed exceptions to the hearing officer's recommended order on June 16, 1992. Those exceptions are addressed below.

Petitioner's first exception directed to the Hearing Officer's Findings of Fact Nos. 12 and 13 are rejected. The findings are supported by competent substantial evidence and are not inconsistent with each other. Petitioner did not have the right to use the dock except during the one month period in late 1987 or early 1988 where he did lease the dock and therefore had the right to moor his boat at the dock. The record supports a Finding that no written lease of the dock by Petitioner existed and also supports a finding that there was no evidence of a verbal lease having been entered into for the periods pertinent to this case.

Petitioner's second exception to the Hearing Officer's Finding of Fact No.

15 and the footnote thereto is also rejected for the same reasons set out above. Notwithstanding the fact that the hearing officer accepted as true that many of the dock leases on the Miami River are verbal, the record contained no evidence that Petitioner had a dock lease either verbal or written for the pertinent time period.

Petitioner's third exception is accepted in that the Hearing Officer apparently referred to Petitioner when he intended to refer to Respondent in this finding. However, that error is not relevant to the issues in this case.

Petitioner's fourth exception is rejected as being a misconstruction of the law on relocation benefits.

Petitioner's fifth exception is rejected because the Hearing Officer correctly determined that the issue was not properly before him.

Petitioner's sixth and seventh exceptions are conclusory and are not supported by any alternative legal argument.

Findings of Fact

The Hearing Officer's Findings of Fact Nos. 1-16 are accepted and incorporated as if fully set out herein.

Finding of Fact 17 is not supported by competent substantial evidence and is therefore rejected for the reasons set out above in ruling on Petitioner's third exception.

Findings of Fact 18-20 are accepted and incorporated as if fully set out herein.

Conclusions of Law

The Conclusions of Law contained in the Hearing Officer's Recommended Order are deemed correct and are adopted herein.

Order

Based on the foregoing Findings of Fact and Conclusions of Law, it is specifically found that the Relocation Benefits awarded to FERCHL by the DEPARTMENT, pursuant to Section 421.55(1) and 49 C.F.R. Setion 24.261) were appropriate and FERCHL's appeal of those benefits is hereby DENIED.

DONE AND ORDERED this 30th day of October 1992.

for BEN G. WATTS. P.E.

Secretary

Florida Department of Transportation Haydon Burns Building

605 Suwanne Street Tallahassee

COPIES FURNISHED:

Claud B. Arrington, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3299-1550

Andrew H. Schuster, Esquire Bringham, Moore, Gaylor, Wilson, Ulmer, Schuster & Sachs Attorneys for Horst Ferchel

333 North New River Drive East Riverwalk Plaza - Suite # 3000 Ft. Lauderdale, Florida 33301

Charles G. Gardener, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0458

Deborah S. Long

State Relocation Administrator Office of Right of Way Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

Docket for Case No: 91-006431

Orders for Case No: 91-006431