STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD R. SWARTZ, )

)

)

Petitioner, )

)

vs. ) CASE NO. 92-4256

) DEPARTMENT OF TRANSPORTATION, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on October 30, 1992 at Tampa, Florida.

APPEARANCES

For Petitioner: Ronald R. Swartz, pro se

610 West Waters Avenue, Suite J Tampa, Florida 33604

For Respondent: Charles G. Gardner, Esquire

Department of Transportation

205 Suwannee Street

Tallahassee, Florida 32399-0450 STATEMENT OF THE ISSUES

Whether Petitioner was wrongfully denied a relocation allowance following the taking of his property for the right-of-way of the Northwest Hillsborough Expressway Project.

PRELIMINARY STATEMENT

By letter dated April 7, 1991 and delivered to O.R. Colan Associates, Inc. May 9, 1991, Ronald R. Swartz, Petitioner, requested relocation benefits for his property in the process of being acquired for the Northwest Hillsborough Expressway. This preliminary request was supplemented by letter dated April 10, 1992. The request for relocation benefits was denied by O.R. Colans' letter dated April 20, 1992 on allegations that Swartz was not in occupancy of the subject dwelling at the initiation of negotiations. Petitioner's appeal to the Department of Transportation (DOT), Respondent, was denied by DOT by letter dated May 29, 1992 on grounds that Petitioner was not in occupancy of the property to be acquired at the initiation of negotiations.

That letter advised Petitioner of his right to challenge that determination by requesting an administrative hearing. On June 10, 1992 Petitioner filed a

notice of appeal which was forwarded to the Division of Administrative Hearings and these proceedings followed.

At the hearing Petitioner called two witnesses, including himself.

Respondent called one witness and 10 exhibits were admitted into evidence. There is no real dispute regarding the operative facts here involved. Proposed findings submitted by the parties are accepted except to the extent they are rejected or modified in the appendix attached hereto. Having fully considered all evidence presented, I submit the following.

FINDINGS OF FACT

1. The Tampa-Hillsborough County Expressway Authority was designated as agent for the Florida Department of Transportation to acquire the necessary rights-of-way for the proposed Northwest Hillsborough County Expressway Project.

   
   

2. In turn the Expressway Authority contracted with O.R. Colan Associates, Inc. to serve as its agent in acquiring the property needed for this project.

   
   

3. Several public meetings were held by the Expressway Authority before the final route was accepted and a map or maps of reservations was or were filed.

   
   

4. The ultimate route of the Northwest Expressway was determined and property owners on the selected route were sent a letter similar to Exhibit 2, which was sent to Petitioner dated January 17, 1991 advising him that the Expressway Authority would negotiate with the owners of all parcels of property to be acquired to arrive at a fair price to be paid for their property. Exhibit

2 further provided that:

[I]n order to facilitate construction of the project, the Authority will begin the

appraisal and relocation survey of your property, after which you will be offered the fair market value of your property based upon an independent appraisal.

* * *

In addition to receiving payment for the fair market value of your property, you may be entitled to certain relocation assistant payments and other costs payable only during the settlement process.

1. Several years earlier Petitioner had purchased property on which he intended to construct a new residence in which to live.

   
   

2. Based upon the fact that Petitioner received a certificate of occupancy dated January 24, 1991 for this new residence, it is obvious that construction of this residence commenced before Petitioner received Exhibit 2.

   
   

3. Petitioner visited the office of Colan in April 1991 and discussed some of the procedures to be followed in his property being acquired. No offer to purchase at an offering price was made to Petitioner at this time or by any of Colan's employees until January 7, 1992.

   
   

4. On January 7, 1992 a personal contact was made with Petitioner by David

   A. Patrick, an agent for Colan, in which Petitioner was offered $108,725 for his property (Exhibit 7).

5. A subsequent offer to purchase the property was made by David A. Patrick for $201,125 (Exhibit 9).

   
   

6. Petitioner occupied the new residence shortly after receiving the certificate of occupancy and entered into a lease for the former residence on March 18, 1991.

   
   

7. During Petitioner's visit to Colan's office in April 1991 he requested and was given a copy of a Relocation Brochure (Exhibit 1) prepared by Colan who had distributed copies to approximately 10 property owners of affected property before being advised by DOT not to distribute them to any other property owners.

   
   

8. At the bottom of page 1 and top of page 2 of Exhibit 1 the following appears:

Are there "Basic" payment eligibility requirements that are applicable to all relocatees?

Yes - to be eligible for any relocation payment you must at least meet each of the following basic requirements:

1. You must - with the following noted exception - be in legal occupancy of the property being acquired by the Authority at the initiation of negotiations for that particular property - unless you have personally received a written notice from the Authority advising that it is the intent of the Authority to acquire the property. (Negotiations will be initiated on the date that the Authority representatives present a written offer for the subject property to the property owner or to his designated representative).

EXCEPTION: The one and only exception to this specific occupancy requirement is that you can qualify for a moving cost payment - if you were not in occupance at the initiation of the negotiations and if you did not personally receive a written notice of intent to acquire PROVIDED THAT you were in legal occupancy at the time the property was actually acquired (paid for) by the Authority or at the time you received written notice from the Authority.

You should never - whether you are a tenant or an owner - vacate or move from any property scheduled for acquisition by the authority prior to receiving a written vacancy notice from the Authority (even though you may have a written notice of the Authority's intent to acquire the property) without first checking with the Authority officials to see if you can do so without losing your eligibility for relocation payments which you would otherwise be entitled to receive. You will thereafter not jeopardize your eligibility if you move any time after your Acquisition payment is delivered to you.

1. The property acquired from Petitioner consists of a duplex in which one unit (occupied by Petitioner) was comprised of 3 bedrooms, one bath, kitchen, etc., and the other unit had one bedroom, one bath, etc., which Petitioner held as rental property. There were also two sheds on the property in which Petitioner stored personal property. Petitioner's testimony that some of his personal property remained on the acquired premises for over a year after he vacated the dwelling was not contested.

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

3. Rule 14-66.003 provides the following definitions:

   
   

   (3) A "relocatee or displaced person" is any person who: (a) is in occupancy on the required property at the initiation of negotiations for the

   acquisition of the real property in whole or in part;

   (b) moves from the real property (which is subsequently acquired) after the date established in (a); (c) moves his personal property from the real property (which is subsequently acquired) after the date established in (a).

   (4) The "date of initiation of negotiations" for the parcel is the date the department makes the first personal contact for purposes of discussing the price

   of the parcel or property to be acquired for a project with the owner or his designated representative.

   
   

4. Petitioner's contention that the January 17, 1991 letter from the Tampa Hillsborough County Expressway Authority (Exhibit 2) constituted a written notice from the Authority advising that it is the intention of the Authority to acquire the property and thereby relieved him from being in occupancy at the initiation of negotiations, is without merit. Although the initial language quoted in Finding 11 above, if taken out of context, could be so construed, a reading of all of paragraph 1 and Finding 11 clearly repudiates such construction.

   
   

5. Furthermore, Exhibit 1 was not a position presented to affected owners by Respondent. That position is contained in Rule 14-66.003(3) and (4), Florida Administrative Code, above cited. Accordingly, even if Exhibit 1 is construed as incorrect statements on the law regarding entitlement to relocation benefits, collateral estoppel against Respondent cannot be found.

   
   

6. First, the Agency is not bound by an inaccurate statement of the law by its agent or employee as administrative officers of the state cannot estop the state through mistaken statements of the law. Austin v. Austin, 350 So.2d

   102 (Fla 1st DCA 1977). Further, equitable estoppel will be applied against the state only in rare instances and under exceptional circumstances. State v. Anderson, 403 So.2d 397 (Fla 1981).

   
   

7. In order to demonstrate estoppel the following elements must be shown:

   (1) a representation as to a material fact that is contrary to a later asserted position; (2) reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel caused by the representation and reliance thereon. Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So.2d

   517 (Fla 1st DCA 1971).

   
   

8. Since Petitioner ceased occupying the premises involved in this taking no later than March 1991 and did not receive a copy of Exhibit 1 before April 1991, he could not have relied on his interpretation of Exhibit 1 to his detriment in moving from the property before the initiation of negotiations.

9. Petitioner's contention that receipt of Exhibit 2 constituted personal contact for the purposes of discussing the price of the parcel or property is also without merit. "Personal" is defined in Webster's New Collegiate Dictionary (1977) as: "done in person without the intervention of another; carried out between individuals directly." Receipt of a letter sent registered or certified mail does not constitute personal notice. Further, no offer was made in Exhibit 2 which under any interpretation could be considered as personal contact for the purpose of discussing the price of the parcel or property to be acquired.

   
   

10. The law pertaining to relocation benefits is as explained in DOT Rule 14-66.003, Florida Administrative Code. This rule is binding until such time as it is determined invalid in a Section 120.56 proceeding, or declared unconstitutional by a court having subject matter jurisdiction. According to Rule 14-66.003(3) Petitioner does not qualify as a relocatee or displaced person because he was not in occupancy of the required property at the initiation of negotiations which occurred January 7, 1992 (Exhibit 7).

    
    

11. From the foregoing it is concluded that Petitioner was not occupying the property acquired from Roland R. Swartz as part of the right-of-way for the Northwest Expressway and therefore, is not eligible for relocation benefits.

    
    

12. Since Petitioner has failed to prove eligibility for any relocation benefits a determination of those benefits to which he would be entitled, if eligible, would be futile. Further, insufficient evidence was presented by either party for a factual determination of which of those benefits claimed Petitioner would otherwise be eligible.

RECOMMENDATION

It is recommended that a final order be entered dismissing Ronald R. Swartz's application for relocation benefits associated with the taking of his property in the right-of-way of the Hillsborough County Northwest Expressway.

ENTERED this 11th day of December, 1992, in Tallahassee, Florida.

K. N. AYERS 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 11th day of December, 1992.

APPENDIX

Petitioner's proposed findings are accepted as noted below. Those neither noted below or included in the Hearing Officer's findings were deemed unnecessary to the conclusions reached.

9. Accepted as unrebutted testimony of Petitioner. However, it is noted that Petitioner received the "599 letter" subsequent to its date of January 17, 1991 and his certificate of occupancy for his new residence on January 24, 1991.

20. Accepted as unrebutted testimony of Petitioner, however, this brochure was received by Petitioner long after he had moved from the condemned property so his move could not have been made in reliance on this relocation brochure.

23. Accepted as testimony of Petitioner. However, reliance on Chapter 14- 66, Florida Administrative Code, would show his ineligibility for relocation benefits since he was not in occupancy at the time of initiation of negotiations as defined in the rule.

Respondent's proposed findings are accepted. Those proposed findings not included in the Hearing Officer's finding were deemed unnecessary to the conclusions reached.

COPIES FURNISHED:

Ronald R. Swartz

610 West Waters Avenue Suite J

Tampa, Florida 33604

Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399

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

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF TRANSPORTATION WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF TRANSPORTATION CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 92-004256

Orders for Case No: 92-004256