STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FOOD SPOT #29, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4474

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on December 21, 1994, in West Palm Beach, Florida by video teleconference.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0450

For Respondent: James R. Clodfelter

Acquisition Consultant Enterprises, Inc. Boca Bank Corporate Center

7000 West Palmetto Park Road, Suite 503 Boca Raton, Florida 33433

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to a fixed payment for moving expenses as a relocation benefit.

PRELIMINARY STATEMENT

By letter dated June 8, 1992, Respondent, Department of Transportation, denied Petitioner's, Food Spot #29, request for a fixed payment for relocation expenses. On August 7, 1992, Petitioner requested an administrative hearing concerning the Respondent's denial. The case was forwarded to the Division of Administrative Hearings for assignment to a Hearing Officer. The case was originally assigned to Hearing Officer Claude B. Arrington. The case was scheduled for final hearing on November 17, 1993 and was transferred to Hearing Officer Susan B. Kirkland for final hearing. On November 16, 1993, James Clodfelter, representative for Petitioner, was notified of a death in his family. Petitioner moved for a continuance, which was granted. The hearing was rescheduled for January 20, 1994. Respondent moved for a continuance which was granted and the final hearing was rescheduled for April 12, 1994. A hearing was held on April 12, 1994, but no one appeared on behalf of Petitioner. The

Hearing Officer entered a Recommended Order, recommending that the request for relocation expenses be dismissed for failure of Petitioner to appear at hearing. Petitioner advised Respondent that it did not receive a notice of the April 12 hearing. Respondent remanded the case to the Division of Administrative Hearings to reset the case for hearing.

At the final hearing, James Clodfelter was deemed to be a qualified representative of Petitioner. Petitioner presented the testimony of Craig Fetherman and Petitioner Exhibits 1-3, 5, and 6 were admitted in evidence. Respondent presented the testimony of Richard Eddleman and Respondent Exhibits 1-7 were admitted in evidence.

The parties stipulated at the final hearing that the only issue remaining to be litigated is whether Petitioner is a member of a commercial enterprise having more than three other entities which are being acquired by Respondent and which are under the same ownership and engaged in the same or similar business. The parties stipulated that the amount at issue is $20,000.

At the final hearing the parties agreed to submit proposed recommended orders within ten days of the date the transcript was filed. The transcript was filed on January 17, 1995. Respondent filed a proposed recommended order on January 23, 1995. Petitioner did not file a proposed recommended order.

Respondent's proposed findings of fact are addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding Petitioner, Food Spot #29, was a displaced business eligible for a commercial or self-move, and actual reasonable re-establishment expenses.

   
   

2. Food Spot #29 was located in Broward County at 8350 Griffin Road.

   
   

3. Food Spot #29 was owned by the following persons and entities in the following percentages: (a) Mindy Harris-Wilner--12 percent, (b) Stuart Harris--

   12 percent, (c) Andrea Shosfy--12 percent, (d) Larry J. Harris--12 percent, (e) EH Trust--26 percent, and (f) DH Trust--26 percent.

   
   

4. Food Spot #39 and Food Spot #48 are located in Broward County and are owned by the same persons and entities in the same percentages as Food Spot #29. These businesses are not being acquired by Respondent and are similar to Food Spot #29.

   
   

5. Food Spot #34 was located in Broward County and was condemned and taken by the Department of Transportation three or four years prior to final hearing. It was not in existence at the time Food Spot #29 was closed.

   
   

6. Food Spot #63 is located in Broward County and was opened several months after Food Spot #29 was closed.

   
   

7. A Food Spot Store located on University Drive in Plantation was also condemned and taken by the Department of Transportation. The store was already taken at the time that Food Spot #29 was closed.

8. In determining whether a displaced business is part of a commercial enterprise having more than three other entities which are not being acquired by the Respondent, Respondent does not include businesses which were not in existence at the time of the displacement of the business requesting the fixed payment.

   
   

9. The parties stipulated that the amount of the fixed payment at issue is

   $20,000.

   
   

10. The officers and directors of Food Spot #29 were Ernest E. Harris, Larry J. Harris, Dolores L. Harris, Elliot J. Deutsch and Bruce S. Wilner.

    
    

11. The officers and directors of Food Spot #55, which is an active corporation, are Ernest Harris, Larry J. Harris, Delores Harris, and Bruce S. Wilner.

    
    

12. The officer and directors of Food Spot #56, which is an active corporation, are Ernest Harris, Larry J. Harris, Dolores Harris, and Bruce S. Wilner.

    
    

13. The officers and directors of Food Spot #60, which is an active corporation, are Ernest Harris, Delores A. Harris, Bruce S. Wilner, and Larry J. Harris.

    
    

14. The officers and directors of Food Spot #62, which is an active corporation, are Ernest Harris, Larry J. Harris, Dolores Harris, and Bruce S. Wilner.

    
    

15. No evidence was presented to establish the ownership of Food Spot #s 55, 56, 60, and 62.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceedings. Department of Transportation v. J.W.C. Co.,Inc., 396 So.2d 778 (Fla. 1st DCA 1981) and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    349 (Fla. 1st DCA 1977). In this proceeding, it is Food Spot #29 that is asserting the affirmative: that Food Spot #29 is entitled to a fixed payment for moving expenses. Therefore, the burden of establishing by a preponderance of the evidence its entitlement to the fixed payment is on Food Spot #29.

    
    

18. The parties have stipulated that the applicable provision of the Federal Register which is involved in this case is 49 CFR, Section 24.306(a)(3) which provides:

    
    

    1. Business. A displaced business may be eligible to choose a fixed payment in lieu of the payments for actual moving and related expenses, and actual reasonable reestablish- ment expenses provided by [Sections] 24.303

       and 24.304.... The displaced business is eligible for the payment if the Agency determines that:

       * * *

       (3) The business is not part of a commercial enterprise having more than three other entities which are not being acquired by the Agency, and which are under the same ownership and engaged in the same or similar business activities . . .

       
       

19. Food Spot #29 is not part of a commercial enterprise having more than three other entities which are not being acquired by the Respondent, which are under the same ownership and which are engaged in similar business activities. "Food Spot # 29, Food Spot #39, and Food Spot #48 have the same ownership and are engaged in similar business activities. Food Spot #39 and Food Spot #48 are not being acquired by Respondent. Thus, the evidence established that there were two other entities that were not being acquired by the Respondent and which had the same ownership and were engaged in similar business activities.

    
    

20. Food Spot #63 was not open at the time that Food Spot #29 was closed. Thus, Food Spot #63 should not be counted in determining the size of the commercial enterprise.

    
    

21. Food Spot #34 and the Food Spot located at University Drive in Plantation were already condemned and taken by Respondent at the time Food Spot #29 was closed. Thus, these two businesses should not be included in determining size of the commercial enterprise.

    
    

22. No evidence was presented to establish that Food Spot #s 55, 56, 60 and 62 were under the same ownership. That the businesses may have had the same officers and directors does not establish that the businesses also had the same ownership.

    
    

23. Food Spot #29 has established that it is entitled to $20,000 as a fixed payment for moving expenses.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered awarding Food Spot #29 $20,000 as

a fixed payment for moving expenses.

DONE AND ENTERED this 9th day of February, 1995, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 February, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4474

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Respondent's Proposed Findings of Fact.

1. Paragraphs 1-2: Accepted in substance.

2. Paragraphs 3-4: Rejected as constituting conclusions of law.

3. Paragraph 5: Rejected as irrelevant as to what the name may imply. The standard which must be met is actual ownership, whether the business is being acquired by Respondent, and whether the business activities are similar.

4. Paragraph 6: Accepted in substance.

5. Paragraph 7: Rejected as subordinate to the facts actually found.

6. Paragraph 8: Rejected as irrelevant. Food Spot #29 admitted that the ownership of #29, #39 and #48 were the same.

7. Paragraph 9: Rejected as subordinate to the facts actually found.

COPIES FURNISHED:

Charles G. Gardner Assistant General Counsel

Department of Transportation 605 Suwannee Street, MS-58

Tallahassee, Florida 32399-0458

James R. Clodfelter

Acquisition Consultant Enterprises, Inc. Boca Bank Corporate Center

7000 West Palmetto Park Road Suite 503

Boca Raton Florida 33433

Ben G. Watts, Secretary

Attn: Diedre Grubbs, M.S. 58 Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thornton J. Williams General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

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 ten 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.

Docket for Case No: 93-004474

Orders for Case No: 93-004474