STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTHONY T. BLACK and MELISSA ) OWEN, )

)

Petitioners, )

)

vs. ) Case No. 97-4956

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard on March 4, 1998, in Brooksville, Florida, by Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioners: Anthony T. Black, pro se

Melissa Owen, pro se Post Office Box 10868

Brooksville, Florida 34601

For Respondent: Andrea V. Nelson, Esquire

605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

Whether Petitioners maintained a separate household within a multiple occupant displacement dwelling for purposes of calculating the appropriate amount of their relocation assistance benefits.

PRELIMINARY STATEMENT

On November 26, 1997, Respondent, Department of Transportation, issued a letter advising Petitioners, Anthony T. Black and Melissa Owen, that their request for "separate household" relocation assistance benefits had been denied.

Petitioners then requested a formal hearing to contest the agency's decision. The matter was forwarded by Respondent to the Division of Administrative Hearings on October 22, 1997, with a request that an Administrative Law Judge conduct a formal hearing.

By Notice of Hearing dated November 18, 1997, a final hearing was scheduled on March 4, 1998, in Brooksville, Florida. On March 2, 1998, the case was transferred from Administrative Law Judge Stephen F. Dean to the undersigned.

At final hearing, Petitioners testified on their own behalf and presented the testimony of Daniel Lee Bell; Benjamin T. Wainwright; Douglas Treece; and Margie Black. Also, they offered Petitioners' Exhibits A-Q. All exhibits were received in evidence. Respondent presented the testimony of Paula S. Warmath, its deputy district right-of-way manager; Richard Eddleman, state relocation manager; and Robert M. Barrows, a relocation supervisor for Universal Field Services. Also, it offered Respondent's Exhibits 1-10, which were received in evidence.

The transcript of hearing was filed on March 16, 1998. At Respondent's request, the time for filing proposed findings of fact and conclusions of law was extended to April 7, 1998.

Petitioners and Respondent timely filed their proposed orders on March 31 and April 7, 1998, respectively, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Petitioners, Anthony T. Black and Melissa Owen, formerly resided in a mobile home at 5315 Drew Street, Brooksville, Florida. Respondent, Department of Transportation (DOT), recently began acquiring property for the construction of the Suncoast Parkway, a non-federal-aid, limited access toll facility which will run forty miles from just north of Tampa, Florida, to Brooksville, Florida. Among other properties, DOT has acquired parcel number 144.001T on which Petitioners once resided, and they have been forced to relocate to another residence. This controversy concerns a determination as to the appropriate amount of relocation benefits to which Petitioners are entitled.

2. The amount of benefits due a displaced person is determined by a federally-mandated formula codified in 49 Code of Federal Regulations, Part 24, and adopted by DOT. The regulations provide that if multiple persons live in the same

   dwelling, and those persons can establish that they maintained separate households within a single-family dwelling, they are entitled to greater benefits than if all persons are considered a single household. Federal regulations contain no definitive guidelines on this issue, but rather they leave that determination to the discretion of the state agency administering the program. In this unusual case, Petitioners contend that they were a "separate household" within a single-family dwelling which was jointly shared with another person. DOT contends, however, that Petitioners are entitled only to a prorata share of a single payment to all occupants of the dwelling.

3. The seven-room mobile home at 5315 Drew Street was owned by Margie Black, the mother of Anthony T. Black. Beginning in January 1995, she allowed her son, his girlfriend, Melissa Owen, and a friend of her son, Daniel L. Bell, to live in the mobile home rent-free, but the tenants were required to pay for taxes, utilities, and the upkeep of the premises. At different points in time, other persons also shared the home, but they vacated the premises before this dispute arose.

4. There was no written agreement between the three tenants on how to allocate living space or pay expenses, but they informally agreed that they would share in common expenses, such as utilties and maintenance repairs. Bell lived in one of the three bedrooms in the mobile home, while Petitioners shared another.

5. In order to qualify for assistance, a tenant must have occupied the premises for at least 90 days before the displacement occurred, a requirement easily met by Petitioners. Also, replacement housing assistance is restricted to an amount not to exceed $5,250.00 per household. This cap may be exceeded when a person qualifies for a super rent supplement in order to place the displaced person in "last resort housing." In this case, Petitioners qualifed for such a supplement because there were no comparable mobile homes in the area.

6. In calculating the amount of the super rent supplement, DOT is required to ascertain the amount of rent paid by the displaced persons, their income, and their monthly utility bills. To assist it in gathering this information, DOT utilizes a private consulting firm, Universal Field Services (UFS), whose representatives meet with the displaced persons.

7. Although the parties have disagreed as to the degree of cooperation UFS and DOT received from Petitioners in verifying their income, utility bills, and rent, they have ultimately agreed that, if the three tenants are treated as multiple occupants of one displacement dwelling, then based on Petitioners' annual income and utility payments in 1995 and 1996, Petitioners are entitled to $9,027.08 in total relocation assistance payments, including the super rent supplement. This amount represents two-thirds of the total payment of $13,541.22, which is the product of a federally-mandated formula. Bell, the

   other tenant, received the remaining one-third of the payment. The parties also agree that if only a single household existed, DOT's calculation is correct.

8. Petitioners contend, however, that they maintained a separate household from the third tenant, and thus they are entitled to a greater amount of assistance. Although there are no written state guidelines on how to make this determination, as a matter of policy, DOT requires that the tenants provide written

   documentation and other proof to establish that the tenants maintained separate households within a single residence.

9. While it has never been confronted with a "separate household" claim before, to establish a good claim, DOT suggested that, at a minimum, the claimants would need to have a written lease by each of the tenants reflecting the rental of certain space for a specific amount of rent each week or month, and perhaps written rules regarding the use of the space that tenants must comply with. In addition, the dwelling would have to have separate and exclusive living areas for each tenant, such as separate entrances, kitchens or efficiency areas, that would not cross over into any common areas. Examples of such dwellings would be a boarding room, hotel, adult congregate living facility, duplex, or mother-in-law suite.

10. In this case, there was no written lease agreement by any of the tenants concerning each tenant's respective space since all persons lived rent-free on the premises. There was also no formal agreement or rules governing the use of common living areas by the tenants. While it is true that Bell had a separate entrance to his bedroom, he was allowed to keep food in the same refrigerator used by Petitioners, he occasionally cooked or ate meals on the premises, and he was not prohibited from using other common areas of the home. Given these circumstances, and the lack of any documentation to the contrary, it must be found that all persons occupying the dwelling shared a single-

    family dwelling and that a separate household did not exist.

11. Petitioners contended that the process was flawed because UFS personnel made only one visit to the premises before making a recommendation in the case. Petitioners were, however, allowed to submit further documentation after that visit to substantiate their claim, and at least one other UFS representative visited the premises on a later date. In addition, a DOT supervisor visited the home and made the final agency decision. Petitioners also suggested that the allocated benefits are insufficient to cover their new rent. But DOT has no discretion except to follow the federal formula in allocating benefits. Petitioners further asserted that the "comparable" property found by DOT to replace the rent-free mobile home was too expensive. Unfortunately, however, this concern is not an issue in this proceeding. Finally, Petitioners pointed out that other displaced persons have experienced difficulty in dealing with UFS personnel. Even if this were true, it would have no bearing on the issues in this case since all UFS determinations are preliminary in nature and subject to DOT review and an evidentiary hearing if requested by the parties.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.569, Florida Statutes (1997).

13. As the party seeking additional relocation benefits, Petitioners bear the burden of proving entitlement to those

    benefits by a preponderance of the evidence. Fla. Dep't of

    Transportation v. J. W. C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

14. Section 339.09(3), Florida Statutes, provides in part

    
    

    that

    
    

    [t]he department may expend transportation tax revenues, pursuant to rules adopted by the department, on non-federal-aid projects which shall include relocation assistance and moving costs to persons displaced by transportation facilities or other related projects.

    
    

15. To implement the foregoing statute, DOT has promulgated

    
    

    Chapter 14-66, Florida Administrative Code, which contains relocation assistance regulations. Relevant to this controversy is Rule 14-66.002, Florida Administrative Code, which incorporates by reference "[t]he provisions of 49 CFR Part 24, Uniform Relocation Assistance and Real Property Acquisition Regulations" for the purpose of determining the amount of relocation benefits. Also, Rule 14-66.009(5), Florida Adminstrative Code, provides that

    [i]f two or more eligible occupants of the displacement dwelling move to separate replacement dwellings and the Department determines that separate households had been maintained in the displacement dwelling, the replacement housing payment computation shall be based on housing which is comparable to the quarters privately occupied by each individual plus a prorated share of the value of community rooms shared with other occupants.

    Finally, Section 24.207(2)(e) of Title 49 of the Code of Federal Regulations speaks to the same issue and provides that

    [i]f two or more occupants of the displacement dwelling move to separate replacement dwellings, each occupant is entitled to a reasonable prorated share, as determined by the Agency, of any relocation payments that would have been made if the occupants moved together to a comparable replacement dwelling. However, if the Agency determines that two or more occupants maintained separate households within the same dwelling, such occupants have separate entitlements to relocation payments.

16. The foregoing regulations do not contain any definitive guidelines to assist the agency in determining what is or is not a separate household. DOT established, however, that its policy is to require documentation and other appropriate evidence, such as a lease, rental agreement, rules governing the use of common living areas, and a description of the physical characteristics of the dwelling, which would show that the displaced persons were actually maintaining "separate households within the same dwelling," so as to qualify for greater benefits.

17. Here, Petitioners failed to meet this burden. In making this conclusion, the undersigned has considered the accepted facts that the occupants of the single-family dwelling had no written leases spelling out the space which each separate household would occupy for a set amount of rent; there was no formal agreement by the tenants regarding the use of common living areas; and the dwelling did not have the physical characteristics necessary to sustain the contention that separate households were being maintained. As to the latter factor, the undersigned has not found Petitioners' mobile home to be

comparable to a boarding house, hotel, mother-in-law suite, or other similarly configured dwelling. Rather, the more persuasive evidence shows that the three tenants were sharing a single- family dwelling as a single household. Therefore, Petitioners' request for a determination that they maintained a "separate household" within the meaning of Rule 14-66.009(5), Florida Administrative Code, should be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Transportation enter a Final Order denying Petitioners' request for greater relocation benefits, and that it reaffirm the amount previously awarded.

DONE AND ENTERED this 16th day of April, 1998, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675, SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this day 16th of April, 1998.

COPIES FURNISHED:

Diedre Grubbs, Agency Clerk Department of Transportation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-00458

Anthony Black Melissa Owen

Post Office Box 10868 Brooksville, Florida 34603

Andrea V. Nelson, Esquire Department of Transporation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0458

Pamela S. Leslie, Esquire 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 within fifteen days. Any exceptions to this Recommended Order should be filed with the Department of Transportation.

Docket for Case No: 97-004956

Orders for Case No: 97-004956