STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT PANTLIN, d/b/a )

AVANT GUARD, III, )

)

Petitioner, )

)

vs. ) Case No. 99-2258

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Orlando, Florida, on May 3, 2000.

APPEARANCES

For Petitioner: Vanessa Thomas

Forman, Krehl & Montgomery Post Office Box 159 Ocala, Florida 34478

For Respondent: Kelly A. Bennett

Assistant General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to relocation benefits from Respondent after receipt of settlement proceeds, pursuant to a final judgment entered following Petitioner's acceptance of an offer of judgment made during the condemnation action previously prosecuted by Respondent.

PRELIMINARY STATEMENT

By Amended Petition for Formal Administrative Hearing, Petitioner alleged that Respondent had refused to pay Petitioner's claim for relocation benefits associated with Respondent's condemnation of certain real property. The amended petition alleges that Respondent was required to expend

$128,027.70 in moving and reestablishment costs. The amended petition identifies the issue between the parties as whether the final judgment in the condemnation action included the costs sought in the present proceeding.

At the hearing, Petitioner called two witnesses and offered into evidence 25 exhibits. Respondent called three witnesses and offered into evidence three exhibits. All exhibits were admitted.

The court reporter filed the Transcript on May 24, 2000.

FINDINGS OF FACT

1. The parties previously litigated a condemnation action in which Respondent sought to terminate Petitioner's leasehold interest in certain real property in order to construct a federal-assisted road project. As between the two parties, the condemnation action ended in a settlement and stipulated final judgment.

2. In an Offer of Judgment dated May 2, 1997, Respondent offered $30,000 "to settle all claims with said Respondents, exclusive of attorneys fees and costs . . .." By letter dated

   June 6, 1997, Petitioner notified Respondent that it was accepting the offer of judgment, "which was in the amount of

   $30,000 for business damages."

   
   

3. The parties stipulated to the entry of a Final Judgment pursuant to their settlement. By Final Judgment dated June 19, 1997, the court entered final judgment, stating that the payment of $30,000 was "in full payment for any and all business damages for Parcels 136 and 736 herein taken, and for all other damages of any nature, including interest "

4. Paragraph 15 of Petitioner's Answer in Eminent Domain, served December 6, 1994, states that Petitioner "will suffer moving expenses, relocation costs[,] loss of personal property and other expenditures not known at this time, for all of which it seeks recovery from the [Respondent]."

5. In providing Respondent with information to assess the settlement value of the condemnation case, Petitioner included claims that are properly classified as relocation expenses. In a letter from counsel for Petitioner to counsel for Respondent dated April 1, 1997, Petitioner provided "our business damage report . . .." The total claimed was $406,225, which included numerous costs of relocation.

6. Respondent maintains a manual entitled "Relocation Assistance Program" ("Manual"). The Manual contemplates that claims for relocation assistance are separate from takings claims. For example, Manual Section 9.2.18 provides, for owners,

   that relocation claims must be made within 18 months from the latter of the date of displacement or the date of final payment for acquisition of the property.

7. Manual Section 9.2.22 contemplates the possible inclusion of relocation claims within administrative or legal proceedings. Additionally, Manual Section 9.2.24 provides for a formal administrative hearing of unresolved disputes concerning relocation claims.

8. Manual Section 9.2.22 provides that relocation benefits included in a settlement must be accompanied by certain documentation. Manual Section 9.2.22.2 provides that, absent the required documentation, a specific individual within Respondent must grant an exemption. The record does not indicate that Respondent complied with either of these alternative requirements in settling the condemnation action.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

10. Article X, Section 6(a), of the Florida Constitution provides: "No private property shall be taken except for a public purpose and with full compensation . . .." However, the constitutional guarantee of full compensation for the taking of property does not typically extend to business damages, such as lost profits or loss of goodwill, or moving expenses, because

    these items are not tangible property. See, e.g., State Road Department v. Bramlett, 189 So. 2d 481 (Fla. 1966); Department of Transportation v. Rogers, 705 So. 2d 584 (Fla. 5th DCA 1998); Broward County v. Carney, 586 So. 2d 425 (Fla. 4th DCA 1991); and Department of Transportation v. Grant Motor Company, 345 So. 2d 843 (Fla. 2d DCA 1977).

11. The State of Florida has chosen to pay certain claims for business damages arising out of certain condemnations as a matter of legislative grace, not constitutional obligation. See, e.g., Trinity Temple Church of God in Christ, Inc. v. Orange County, 681 So. 2d 765 (Fla. 5th DCA 1996) (state not obligated to pay claim for business damages of not-for-profit entity).

12. Likewise, the State of Florida has chosen to pay relocation benefits, including moving costs, as a matter of legislation. Section 339.09(2) provides that Respondent may pay "relocation assistance. . . and moving costs . . . to the extent

    . . . required by federal law . . .." Section 421.55(4) requires the State of Florida, when taking property in connection with federal-assisted projects, to comply with the Surface Transportation and Uniform Relocation Assistance Act of 1987, Public Law No. 100-17 (Relocation Act).

13. To comply with the cited state and federal legislation, Respondent has adopted the Manual, which establishes a procedure to paying eligible relocation assistance, including moving costs.

14. In coordinating the payments under condemnation actions and typically administrative proceedings for relocation assistance, courts determine, first, if a specific item of claimed relocation assistance is eligible under the Relocation Act (or, presumably, state law, if more generous) and, second, "if the item has been compensated under state law." Robzen's, Inc. v. Department of Housing and Urban Development, 515 F. Supp. 228, 233 (M.D. Pa. 1981). In this case, the latter determination obviates the necessity of making the former determination.

15. The greater weight of the evidence establishes that, despite the fact that relocation assistance is separate from condemnation damages, the Final Judgment included monetary relocation assistance, in all forms, so as to extinguish future claims for such monetary benefits (as distinguished from a request for relocation counseling). The Final Judgment extended to all business damages, and "for all other damages of any nature." The Offer of Judgment, which Petitioner had accepted, was for settlement of "all claims." Although Petitioner's acceptance of the offer implies that the payment will be for "business damages," the Final Judgment erases any doubt that the settlement resolves all claims and all damages. This interpretation is consistent with the reference to "moving expenses" and "relocation costs" in Petitioner's Answer in the condemnation action and the inclusion of relocation expenses in

    the letter inducing settlement of Petitioner's damages claim in the condemnation action.

16. Undoubtedly, the Manual discloses that Respondent has chosen the administrative, rather than judicial, alternative for litigating claims for relocation assistance arising under state law implementing state obligations under the Relocation Act. However, neither the doctrine of exhaustion of administrative remedies nor primary jurisdiction requires that the circuit court hearing the condemnation action defer to the administrative process, especially when, as here, both parties voluntarily submit the relocation claim to the court for adjudication. See, e.g., South Lake Worth Inlet District v. Town of Ocean Ridge, 633 So. 2d 79, 87 (Fla. 4th DCA), rev. denied, 645 So. 2d 454 (1994) ("the question whether a controversy involving an administrative agency lies in the courts or, instead, within the agency itself in a proceeding under section 120.57 is one of policy and not subject matter jurisdiction," citing Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So. 2d 695 (Fla. 1978)).

17. Thus, the circuit court hearing the condemnation action could lawfully incorporate into the condemnation award all claims for relocation assistance, especially in the absence of objection, and the language of the Final Judgment and Offer of Settlement leaves no doubt that the court did exactly that. The apparent failure of Respondent to comply with certain procedural provisions of the Manual does not establish an intention to

exclude relocation assistance from the Final Judgment, especially in light of the strong evidence to the contrary. Nor is this failure material to the present case, as the procedural safeguards seem intended to ensure against overpaying claims for relocation assistance--precluding Petitioner from reasonably claiming injury from Respondent's apparent failure to adhere meticulously to these provisions.

RECOMMENDATION

It is

RECOMMENDED that the Department of Transportation enter a final order dismissing Petitioner's claim for monetary relocation assistance.

DONE AND ENTERED this 16th day of June, 2000, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2000.

COPIES FURNISHED:

Pamela Leslie, General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

James C. Myers

Clerk of Agency Proceedings Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Vanessa Thomas

Forman, Krehl & Montgomery Post Office Box 159 Ocala, Florida 34478

Kelly A. Bennett Assistant General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 99-002258

Orders for Case No: 99-002258