The Issue The issue is whether a request by Reddy Ice for reimbursement of impact fees assessed by the Town of Davie when its ice manufacturing plant was displaced by the Department of Transportation for the construction of Interstate 595 should be granted under the relocation assistance program established pursuant to Section 421.55, Florida Statutes. STIPULATED FACTS 1/ Reddy Ice, Inc., an ice manufacturing company, received relocation assistance and related moving costs from the Florida Department of Transportation (Department) when its plant was moved due to the construction of Interstate 595 in Broward County, Florida. When Reddy Ice relocated its business to the Town of Davie in Broward County, it was paid $108,135.57 in relocation costs by the Department. The Town of Davie had an ordinance which required the payment of impact fees by a business such as Reddy Ice which uses large quantities of water. Payment of the impact fee was a prerequisite to issuance of a certificate of occupancy for the new facility. Reddy Ice was assessed and paid $71,937 as contribution charges to the Town of Davie. The payment was treated as a capital expense in the accounting records of Reddy Ice. The water and sewer service agreement Reddy Ice executed with Town of Davie Utilities Department provided for an upward adjustment of the charges if the actual water flow exceeds the estimated amount. There is no provision in the agreement for a downward adjustment of the impact fee in the event less water is used than was estimated. The impact fees are not reimbursed by the Town if the business moves to another location. Reddy Ice filed a claim with the district office of the Department of Transportation in Fort Lauderdale to recover the impact fees. The district office denied the claim because it was not specifically provided for in the list of eligible move costs categories specified in the Florida Department of Transportation Right-of-Way Policies Manual. See the Manual, Operating Procedures, Relocation Assistance, Section 3-2. The impact fee was considered an additional expense of operating in a new location, which was ineligible for reimbursement under Section 3-3 of the Right-of-Way Manual. The claim was then forwarded to the State relocation office in Tallahassee for review and determination. The State office concurred with the district determination. Because the claim for impact fees presented a relatively unique relocation issue, and federal funds are involved in the repayment of relocation costs for interstate highway construction, a national ruling was requested from the Federal Highway Administration. Ms. Barbara Reichart, Chief, Relocation Division, Federal Highway Administration, Washington, D.C., advised on May 27, 1987, that the Florida Department of Transportation and the Federal Highway Administration Division Office were correct in their determination that impact fees were ineligible for reimbursement as relocation costs under 49 CFR Section 25.305(f). Impact fees are considered by the Federal Highway Administration to be an additional operating expense incurred by a business because of operating in a new location. Reddy Ice was advised of the final determination and denial of the claim by letter dated August 25, 1987, which resulted in this administrative proceeding.
Recommendation It is recommended that the application of Reddy Ice for reimbursement of contribution charges made by the Town of Davie be denied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of May, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division OF Administrative Hearings this 5th day of May, 1988.
The Issue The issue in this case is whether Respondents discriminated against Petitioners based on race regarding the renting of a house.
Findings Of Fact LM Rentals owns 80 houses, which it rents. Mr. Peeples manages LM Rentals. LM Rentals contracts with Vantage to provide management of the rental properties, and Ms. Mossow is employed by Vantage. LM Rentals rented a house to the Odoms for approximately eight years, beginning in 2003. Mrs. Odom is a Native American. Mr. Odom is White and is not a Native American. No evidence was presented to establish that either anyone from LM Rentals or Ms. Mossow was aware that Mrs. Odom is a Native American. Mrs. Odom's physical appearance, her speech, and her surname could reasonably lead one to think that she is not a Native American. Her appearance would lead one to believe that she is White. The application which the Odoms filled out to rent the house did not require the Odoms to state their race. Mrs. Odom never informed employees of LM Rentals or Ms. Mossow that she is a Native American. Mrs. Odom claims that her children have darker skin than she, and, therefore, Ms. Mossow and employees of LM Rentals should have known that she is a Native American by looking at her children. However, no testimony was presented that Ms. Mossow or anyone from LM Rentals ever met Mrs. Odom's children prior to the filing of the discrimination complaint. Ms. Mossow did not meet any of Mrs. Odom's children until a short time before the final hearing when she delivered copies of exhibits to the Odoms' home. Mr. Peeples, the representative of LM Rentals, did not meet the Odoms' children and never met the Odoms until a few days before the final hearing. The house which the Odoms rented from LM Rentals developed a mold problem. Instead of bringing the mold problem to the attention of Ms. Mossow or anyone at LM Rentals, the Odoms contacted the Polk County Health Department (Health Department), which sent an environmental specialist to investigate the mold situation in January 2010. LM Rentals received a letter from the Health Department concerning the mold. LM Rentals hired a third-party testing company to test the house for mold. The coils on the air conditioner were replaced. The Odoms were not satisfied and requested that Ms. Mossow find them another rental house in the same school district in which they currently resided. LM Rentals has an average vacancy rate of five percent, which equates to about four houses at any given time. At the time that the Odoms requested to be relocated, there was only one house vacant in the school district which the Odoms wanted. The Odoms did not like the house and refused to relocate. Mrs. Odom claims that there were other houses available, but could not point to any specific house. Her claim is based on sheer speculation. The Odoms requested that the carpet be replaced, but, based on the tests of the third-party testing company, LM Rentals refused to do so. About the time they were having the mold problems, the Odoms' daughter was suspended from school. Mrs. Odom attributes the suspension to discrimination by Respondents. Mrs. Odom called, as a witness, the teacher who made the referral which resulted in Mrs. Odom's daughter being suspended. The teacher did not know Ms. Mossow and did not know Mr. Peeples. The teacher, who is also an attorney, was not sure if she had ever represented LM Rentals in the past as an attorney. The suspension was totally unrelated to any mold problems and any alleged discrimination. Mrs. Odom also claims that her son was arrested for disorderly conduct about the time of the mold problem, and she lays the arrest at the door of Respondents. Her rationale for her claim is that the arrest happened at the time they were dealing with the mold issues and that LM Rentals knew people. There is not a scintilla of evidence to connect the arrest of the Odoms' son to any actions by Respondents. In April 2010, during the period in which the mold was an issue, a code enforcement inspector saw a small grill on the Odoms' driveway, which was apparently a code violation. The inspector told the Odoms that the grill needed to be removed. LM Rentals received a letter from the code enforcement department stating that LM Rentals would be fined if the violation was not corrected. Ms. Mossow contacted the Odoms in an attempt to get the grill removed in order to avoid being fined. Mrs. Odom claims that Ms. Mossow and LM Rentals caused the code enforcement inspector to come to the Odoms' home and ask that the grill be removed. Mrs. Odom's claim is without merit. It is unlikely that Ms. Mossow or LM Rentals would request a code enforcement inspector to find a code violation which would result in LM Rentals, as owner of the property, being fined. No evidence was presented to show that Respondents treated non-minorities any differently than the Odoms were treated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Lawrence and Candace Odom's Petition for Relief. DONE AND ENTERED this 6th day of December, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2011.
The Issue The issue for consideration in this case is whether Petitioner’s mother is eligible for a replacement housing payment in addition to funds already received from the Department.
Findings Of Fact At all times pertinent to the issues herein, Petitioner and his mother, Frances Scott, owned real property owned property located in Pasco County, Florida, some of which was taken, and all of which was affected by the construction of the Department’s project no. 97140-2303. The Respondent, Department of Transportation, is the state agency in Florida responsible for the construction of public roadways in this state. In the acquisition of land for the construction of this project, the Suncoast Parkway, the Department of Transportation utilized Gulf Coast Acquisition Company. Consistent therewith, Gulf Coast initiated relocation programs for the individuals whose property was being taken for the construction of the project. Its operation was overseen by an engineering company, PBS&J, to ensure that all relevant policies and procedures were followed correctly. In this as in all acquisition cases, an initial determination was made, prior to any offer being made, as to value of the property to be taken. After the offer was made, an order of taking was entered. Once Final Judgment was entered, the relocation specialists went back to the property owner to see if any modification was necessary. In dealing with relocation of property owners, a replacement payment is defined as the difference between the acquisition price paid for the property and what it costs for an equal replacement of the property. In the instant case, Frances Scott, Petitioner’s mother, an octogenarian not in the best of health, was determined to be eligible for a replacement payment as a 180-day homeowner occupant of the property acquired. Her property consisted of two acres on which a residence was located. The approved appraisal amount for her property was $39,400. The value of the acquired dwelling on the homesite represented 67.9% of the approved appraisal amount, as calculated by the Department, which was $26,750. The value of the comparable replacement dwelling offered by the Department was $33,900. Therefore, the replacement housing payment amount was $7,150, the difference between the appraisal value of the dwelling and the replacement dwelling cost. However, through mediation, at which the Scotts were represented by counsel, a settlement payment for the entire acquisition in the amount of $114,000 was arrived at. Of this figure, $52,952 was attributable to the land, mobile home, and septic and water systems belonging to Frances Scott. The second mobile home located on the land, an unrelated septic system, the land other than that owned by Frances Scott, and damages relating to the move of Petitioner’s business amounted to a total of $61,048. Taken together, the two parcels and accouterments totaled the $114,000. Since that $52,952 figure attributed to Frances Scott’s property exceeded the $33,900 cost of a comparable replacement dwelling, the entitlement to a replacement housing payment was nullified. Because of the taking in issue here, and because of Frances Scott’s advanced age and fragile health, it became necessary to move her residence onto Petitioner’s property to keep the family together. The relocation program is designed to reimburse the expenses of people who are displaced by highway projects. Implementation of the program is governed by both federal and state law. (Public Law 91-646 - the Uniform Relocation Assistance and Real Property Acquisition Act of 1970; and Sections 339.09 and 421.55, Florida Statutes.) These statutory bases and the rules of the Department implemented thereunder spell out how payments are to be calculated. Replacement housing payments relate to housing only. In the instant case, the issue was one of mixed use which had to be distributed. Frances Scott met the criteria for eligibility and was found to be entitled to $7,150 as a replacement payment. She received this amount, and more, as a result of the settlement reached through mediation by means of which she received more than the amount calculated initially. There is an internal Department process through which the determinations of eligibility and payment amounts made at District level can be reviewed at Departmental level. In this case, the Scott file, at their request, was forwarded to the Department’s Relocation Manager, Mr. Eddleman, in Tallahassee. Mr. Eddleman reviewed the file and discussed its contents with District personnel. Based on his review, Mr. Eddelman determined that the calculation made at the District was correct. It is his policy in this process to lean towards the side of the displaced person in those cases where there is some question as to either entitlement or amount. Here, Mr. Eddleman found the District acted properly in denying extra replacement housing payment. It is easy to see the basis for Petitioner’s dissatisfaction. He relates, and there is no basis for doubting him, that at the mediation he was led to believe by the mediator that the relocation payments had nothing to do with the settlement amount to which he agreed. In this, he was misled. Inclusion of the amount for replacement payment in the settlement figure excluded him from further compensation and served to increase the settlement amount on which his counsel’s fee was based. Mr. and Mrs. Scott seem to have been poorly served in the process. They did not understand the communications they received from the state, categorizing them as “legal mumbo- jumbo.” They do not understand how the figure upon which the settlement was based and do not understand the 67.9 percent calculation. It was again explained at hearing but they remain unsatisfied with the settlement amount.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order affirming the relocation assistance payment (replacement housing) previously calculated for Petitioner’s mother, Frances M. Scott. DONE AND ENTERED this 12th day of February, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1999. COPIES FURNISHED: James O. Scott, pro se Post Office Box 11231 Spring Hill, Florida 34610 Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
The Issue Whether Respondents retaliated against Petitioner Rita Lynar, in violation of the Florida Fair Housing Act, chapter 760, part II, Florida Statutes (FHA); and, if so, the appropriate penalty.
Findings Of Fact Respondent Westminster Communities, Inc., owns and operates several retirement communities across Florida. The Westminster property in this matter is Respondent Asbury Arms North, Inc., which is located in Cocoa, Florida. Respondent Joseph Downs is the administrator for Westminster’s Cocoa site, and manages its facilities. Ms. Lynar is a resident of Asbury Arms North, Inc. Ms. Lynar previously filed a housing discrimination complaint on August 17, 2017, against Respondents that claimed that Respondents violated the FHA, and contending that Respondents retaliated against her. After FCHR notified Ms. Lynar that no reasonable cause existed to believe that Respondents committed a discriminatory housing practice on February 9, 2018, she filed a Petition for Relief with FCHR. FCHR transmitted the Petition for Relief to the Division on March 6, 2018. The Division’s case number for this matter is 18-1314. ALJ J. Bruce Culpepper conducted a two-day final evidentiary hearing in DOAH Case No. 18-1314 on September 11, 2018, and January 9, 2019. On July 10, 2019, ALJ Culpepper issued a Recommended Order, which concluded that Ms. Lynar failed to meet her burden of proving that Respondents committed a discriminatory housing practice in violation of the FHA, and recommended that FCHR dismiss Ms. Lynar’s Petition for Relief. On October 1, 2019, FCHR entered a Final Order that adopted ALJ Culpepper’s Findings of Fact and Conclusions of Law, and dismissed Ms. Lynar’s Petition for Relief. See Lynar v. Westminster Retirement Communities Foundation, Inc., et al., Case No. 18-1314 (Fla. DOAH July 10, 2019; FCHR Oct. 1, 2019)(Lynar II). As previously noted in the undersigned’s March 18, 2020, Order Denying Respondent’s Motion to Dismiss Based on Res Judicata and Collateral Estoppel and Motion for Sanctions and Attorney Fees, and Extending Time to Respond to Initial Order, the undersigned specifically precluded any attempt by Ms. Lynar to relitigate any matter resolved (or that could have been resolved) in Lynar II in the instant matter. Thus, in the instant matter, the undersigned only considered any alleged acts that occurred after the final hearing in Lynar II commenced, i.e., after September 11, 2018, as possible evidence of FHA retaliation.1 November 7, 2018, Incident and Lease Termination On November 8, 2018—after the commencement of the final hearing in Lynar II, and while that matter remained pending—Ms. Lynar was involved in an incident at Asbury Arms North. Pastor Adkins, who was conducting a regular morning Bible study meeting on November 8, 2018, in the fellowship room, which is a common area in the Asbury Arms North building that has multiple entranceways, noticed Ms. Lynar walk through the fellowship room “at a very fast pace” on multiple occasions that morning. Upon her first pass through the fellowship room, he heard Ms. Lynar screaming in front of Mr. Downs’s office and pounding on his office door. Pastor Adkins did not see Ms. Lynar scream or pound, but heard it. Pastor Adkins next observed Ms. Lynar pass through the fellowship room again, and she went towards her apartment. Then, approximately a minute or two later, she rushed back through the fellowship room, went to the same area in front of Mr. Downs’s office, and began screaming and 1 Additionally, Ms. Lynar, in 2014, filed a charge of discrimination against Respondents, alleging an FHA violation. After receiving a No Cause Determination from FCHR, she filed a Petition with FCHR, alleging gender discrimination. FCHR transmitted that Petition to the Division, which assigned it DOAH Case No. 15-2796 (Lynar I). ALJ Culpepper also conducted a partial hearing in that matter but, on December 15, 2015, the parties filed a Stipulation for Dismissal. Consistent with the undersigned’s March 18, 2020, ruling, the undersigned did not consider any alleged acts that occurred prior to September 11, 2018, in the instant matter. pounding on the same office door. He also heard Ms. Lynar screaming at Ms. Brooks, who was located in close proximity to Mr. Downs’s office. He described Ms. Lynar’s behavior that morning as “unhinged.” Pastor Adkins testified that these incidents disrupted his Bible study meeting for approximately 10 minutes. Ms. Brooks, who is an administrative assistant at Asbury Arms North, works at a desk in that building’s front lobby. Her desk was around the corner from Mr. Downs’s office. She worked at the front desk on the morning of November 7, 2018, and recalled that she heard Ms. Lynar “pounding” on Mr. Downs’s office door; she described it as “[v]ery intentional and very loud.” Ms. Brooks walked around the corner to observe Ms. Lynar, and testified that Ms. Lynar began screaming at her. Ms. Brooks testified that she said nothing to Ms. Lynar, and that Ms. Lynar eventually left. Ms. Brooks then entered Mr. Downs’s office, where there were two other residents and a certified occupational specialist, and explained to Mr. Downs what had transpired outside of his office. Ms. Brooks was inside of Mr. Downs’s office when Ms. Lynar began screaming and pounding on his office door a second time. Ms. Brooks testified that Ms. Lynar’s conduct that morning frightened her. Mr. Downs, the administrator of Westminster’s property in Cocoa, including Asbury Arms North, testified that on the morning of November 7, 2018, he was on a telephone call, but heard a loud pounding on his door, and ended his call. He testified that Ms. Brooks came to his office to explain what had happened, and during this explanation, Ms. Lynar began pounding on the door and screaming again. After answering the door, he stated that Ms. Lynar stormed off. The undersigned observed a video recording of the first of the two “screaming and pounding” incidents that occurred the morning of November 7, 2018. Although the video recording did not also have an audio recording of this incident, it appeared to the undersigned that Ms. Lynar clearly approached an office door and, with her hand and fist, intentionally pounded on the office door. Additionally, Respondents introduced into evidence only one of the two “pounding and screaming” incidents, explaining that the video of the other/second incident was unavailable. On November 20, 2018, Asbury Arms North, Inc., hand-delivered to Ms. Lynar a “Notice of Termination of Tenancy,” which stated, in part: YOU ARE HEREBY NOTIFIED that your tenancy … is terminated, effective at the end of the day on December 20, 2018. You must vacate the premises at or before that time. THIS TERMINATION is based on your material noncompliance with the Lease Agreement, including one or more substantial violations of the Lease Agreement. The specific reason for this termination is as follows: On the morning of November 7, 2018 you committed a substantial violation of the lease by causing a loud commotion by acting aggressive and erratic, banging repeatedly on the office door, and yelling at staff and other residents, including Receptionist Josephine Brooks and Administrator Joe Downs. Your actions were threatening, intimidating, harassing, and violent. Your actions interfered with the quiet and peaceful enjoyment of the other residents living in the apartment property by causing a commotion and disrupting a bible study being conducted by Chaplain Don Adkins and approximately 15 residents. Your actions also disrupted the management of Westminster Asbury by staff. Your actions scared staff and other residents, and have caused continuing fear among staff and other residents. The Lease Agreement contains the following requirement regarding resident conduct: Conduct Residents … will not engage in, or participate in, such conduct which interferes with the quiet and peaceful enjoyment of the other residents living in the apartment property. No act of a resident and/or guest which threatens, intimidates, is deemed as harassing others, is physically violent with or without injury to another person and/or property, or has unacceptable social conduct, will be tolerated. Any such act will be considered a violation of the Community Policies and the Lease. No act of intimidation, harassment, verbal abuse, physical threat or violence, or social misconduct of, or to, and [sic] employee of this apartment property by any person will be tolerated. Any such act is considered a noncompliance of the Lease Agreement and will result in termination of the Lease. Your above-described actions on November 7, 2018 violate the foregoing conduct requirements, in that you engaged in conduct that interfered with the quiet and peaceful enjoyment of the other residents, you intimidated other residents, and you intimidated, harassed, and verbally abused employees of the property. Your actions, pursuant to the Lease, are a noncompliance and have resulted in termination of the Lease. BE ADVISED that if you remain in the leased unit after the date specified for termination, the Landlord may seek to enforce the termination only by bringing a judicial action at which time you may present any defenses. Thereafter, on December 22, 2018, Asbury Arms North, Inc., filed a Complaint for possession of real property, and damages, in county court in Brevard County, Florida. Ms. Lynar testified that she has been the subject of previous eviction actions with Asbury Arms North, Inc., and had never previously received a Notice of Termination. She stated that Asbury Arms North, Inc., delivered this while she was with friends in the fellowship room, and believed this was inappropriate and retaliation for participation in Lynar II. Ms. Lynar testified that she did knock on Mr. Downs’s door, to (again) complain about a group of residents she contends engage in bullying and harassment. She contends that instead of doing something about the bullying and harassment, Asbury Arms North, Inc., instituted the eviction action in Brevard County Court, again, in retaliation for her participation in Lynar II.2 Other Alleged Bases for FHA Retaliation Ms. Lynar testified that she believed Respondents’ decision to issue the Notice of Termination and commence eviction proceedings against her was also in retaliation for her assisting another Asbury Arms North, Inc., resident, Sudhir Kotecha, in bringing an FHA discrimination claim against Respondents. Respondents had also commenced an eviction action against Mr. Kotecha during this time period. Mr. Kotecha’s attorney, Nicholas Vidoni, testified at the final hearing concerning the deposition of Mr. Downs in that eviction proceeding, in which Ms. Lynar (who was not a party to that eviction matter, but was a party to the December 22, 2018, pending eviction matter involving Asbury Arms North, Inc.) attempted to attend. Mr. Downs’s attorney objected, and filed a Motion to Terminate or Limit Examination, requesting that Ms. Lynar not be present for the deposition because of the pending eviction matter and the pending Lynar II matter (in both of which, Mr. Vidoni represented Ms. Lynar), and other reasons. Mr. Vidoni testified that the county judge granted the Motion to Terminate or Limit Examination, in part, and barred Ms. Lynar from attending Mr. Downs’s deposition. Additionally, during this time period, Ms. Lynar testified that Respondents sought to have the county judge assigned to the eviction case 2 The issue of bullying and harassment at the hands of certain residents of Asbury Arms North, Inc., was fully considered and rejected as grounds for a violation of the FHA in Lynar II. removed, because Ms. Lynar allegedly had contact with the county judge at a restaurant. Mr. Vidoni confirmed that Respondents indeed filed such a motion, but did not testify as to its resolution, and Ms. Lynar presented no further evidence about it. Ms. Lynar testified that the actions of Respondents in paragraphs 20 and 21 above are further evidence of Respondents retaliating against her for participation in Lynar II. Ms. Lynar also contends that Mr. Downs reached out to the Department of Housing and Urban Development (HUD), which subsidizes her apartment at Asbury Arms North, Inc., to discuss the non-renewal of Ms. Lynar’s lease in 2014, as an additional form of retaliation. Mr. Downs testified that Respondents had initiated an eviction proceeding in 2014, and that he recalled discussing with a HUD official whether Asbury Arms North, Inc., should renew Ms. Lynar’s lease; Mr. Downs testified that the HUD official questioned why Ms. Lynar’s lease would be renewed if Asbury Arms North, Inc., was in the process of evicting her. This conversation occurred well before the actions that resulted in Lynar II occurred, and are irrelevant. Ms. Lynar failed to provide any credible evidence that Respondents’ decision to issue the Notice of Termination, and subsequently commence eviction proceedings in county court, was retaliation for her participation in Lynar II, in violation of the FHA. The undersigned further finds that the actions that occurred during the Kotecha eviction proceeding, and Mr. Downs’s conversation with a HUD official, are not credible evidence of FHA retaliation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Rita Lynar’s Petition for Relief. DONE AND ENTERED this 4th day of January, 2021, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Stephen G. Henderson, Esquire Henderson Legal Group 5419 Village Drive Viera, Florida 32955 (eServed) Rita Lynar 1200 Clearlake Road #2114 Cocoa, Florida 32922 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether applicant is eligible for relocation assistance monetary benefits pursuant to Public Law 91-646 and Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Although notice of hearing was provided to Mr. and Mrs. Limegrover on March 26, 1976, they did not appear at the time of hearing. Upon telephonic inquiry on June 8th by a representative of the Department of Transportation, Mr. Limegrover advised that he had received the notice and although he had intended to call the Department of Transportation concerning the matter, he had forgotten to do so. He stated that he desired a continuance of the case. His request was objected to by counsel for the Department of Transportation. The request for continuance was denied as being untimely and good cause not having been shown therefor. The hearing was conducted as an uncontested proceeding.
Findings Of Fact By letter of October 20, 1975, Mr. and Mrs. Richard Limegrover of Courtly Manors Mobile Home Park, Hialeah Gardens, Florida, were advised by the Florida Department of Transportation that it was in the process of acquiring right-of-way for State Road #25 (U.S. 27) in their area, and that the mobile home lot the Limegrovers occupied as tenants would be required for construction of the facility. The letter provided the Department's assurance that they would not be required to move until at least 90 days had elapsed from the date of receipt of the letter, and that they would receive a further notice specifying the actual date by which the property must be vacated at least 30 days prior to the date specified. The letter concluded by an expression of the Department's desire to assist in relocation and to answer any questions concerning such matters. On December 8, 1975, a further letter was sent to the Limegrovers by the Department of Transportation assuring the addressees that the prior letter had not been a notice to move and that no one at the Courtly Manors Mobile Home Park would be required to move until negotiations with the owner had been completed or monies placed with the Clerk of the Circuit Court of Dade County by court order. It further stated that in the interim period relocatees living within Courtly Manors who were eligible and decided to move on their own initiative would be assisted by the Department in their relocation. Limegrover called Mr. Carl Moon, Right-of-Way Agent, Department of Transportation, Ft. Lauderdale, on December 11, requesting assistance in arrangements for moving his mobile home. Moon discovered that Limegrover wanted to move before January 1, 1976, as he had reserved a lot in another mobile home park. However, Limegrover told him that when he advised his current landlord on December 11 of the projected move on December 30, the landlord stated that in the absence of 30 days notice, Limegrover must forfeit his $90.00 security deposit. Limegrover told Moon that he felt the Department of Transportation should pay the $90.00 security deposit since he was being forced to move by that agency. Moon told him that he was not required to move that soon, but Limegrover was unwilling to wait, fearing that he would not be able to find a satisfactory place later on. Accordingly, Moon assisted him in his moving arrangements and Limegrover was paid for his moving expenses in the amount of $640.00 and smaller sums for reinstallation of his telephone and disconnection and reconnection of his gas equipment. Inasmuch as the Department of transportation declined to pay the $90.00 representing alleged forfeiture of the security deposit, Limegrover filed this relocation appeal. (Testimony of Moon, Exhibits 1 & 2).
Recommendation That the appeal of Richard and Jane Limegrover, in the amount of $90.00, be denied. DONE and ENTERED this 13th day of July, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Phillip Bennett, Esquire Department of Transportation Room 562 Haydon Burns Building Tallahassee, Florida Richard S. and Jane E. Limegrover Lot F4, Haven Lakes Mobile Home Park 11201 S.W. 55th Street Miramar, Florida 33025
The Issue Whether respondent should refund sales tax petitioners paid on account of their purchase of a manufactured home?
Findings Of Fact On September 12, 1984, petitioners made a $160 down payment on a 75 x 150 foot lot in High Ridge Estates in Bay bounty by a check drawn in favor of Ed Franklin. They wanted the lot in order to put a manufactured home on it. After acquiescing to a request by personnel of the Bay County building department that they pay $21.00 for a mobile home permit, the Baileys improved the property in anticipation of placing a manufactured home on it. They put in a septic tank and poured a concrete pad. On November 21, 1984, the Baileys signed a form "FHMA SALES CONTRACT" as buyers. Petitioners' Exhibit No. 2. Jack Lee signed as seller on behalf of "DD&L Joint Venture." Id. Petitioners gave Lee a down payment of $13,400; DD&L undertook to procure from Fleetwood Homes of Georgia, Inc., a manufactured home to be placed on the High Ridge Estates lot. The form contract, which purported to obligate the Baileys for $53,000, describes the lot, but makes no mention of the manufactured home. In December of 1984, the manufactured home arrived at High Ridge Estates, borne by temporary axles and wheels, which were unbolted after its arrival, and left with the truck that had brought it. Statewide of Florida, Inc., placed it on its new foundation. With an exterior of wood siding and an asphalt-shingled roof, the 25.7 by 54 foot structure met VA and FHA materials requirements for standard housing. Carpet was laid over plywood subflooring. Wall joists stand 24 inches apart. The Baileys added a carport, a driveway, three decks and a separate storage shed. On March 13, 1985, Mr. and Mrs. Bailey borrowed money from Peoples First Financial Savings and Loan Association of Panama City (Peoples) to pay the balances they owed for the lot and home. Of the loan proceeds, $6,100.00 went to "C. Ed Franklin and wife, Frances P. Franklin," Hearing Officer's Exhibit No. 1, to pay for the lot on which the manufactured home stood; and $23,328.80 went to "ITT Comm. Finance." Id. To secure repayment of its loan to the Baileys, Peoples took a mortgage from the Baileys encumbering the lot and the manufactured home affixed to it. Petitioners' Exhibit No. 1. Apparently the payment to "ITT Comm. Finance" retired indebtedness the Baileys incurred in acquiring their 1985 Fleetwood Chadwick 3523D. Mrs. Bailey executed a retail buyer's order for their manufactured home in December of 1986, although the form, which showed Best Home Center, Inc., as the "DEALER," was dated March 22, 1985. Hearing Officer's Exhibit No. 2. The form reflects a total price for the manufactured home of $29,045.87, the sum on which sales tax was computed at $1,452.53. The Baileys paid tax in this amount to Best Home Center, Inc., "upon the sales (sic) of tangible personal property." Hearing Officer's Exhibit No. 2. Best Home Center, Inc., forwarded the taxes they collected from the Baileys, along with other taxes collected in March of 1985, to the Florida Department of Revenue. Hearing Officer's Exhibit No. 2. At the time the Baileys purchased the manufactured home it had no license tag. It never had a license tag and, at the time they purchased it, had never been assessed as real property. Best Home Center, Inc., made a written assignment to the Baileys of its rights, if any, to recover the sales tax the Baileys paid.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny petitioners' application for refund. DONE and ENTERED this 5th day of October, 1987, at Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1987. APPENDIX The second sentence of respondent's proposed finding of fact No. 1 and respondent's proposed findings of fact Nos. 3, 4, 6, 8, 9 and 10 have been adopted, in substance, insofar as material. With respect to the first sentence of respondent's proposed finding of fact No. 1, it is not entirely clear who sold the Baileys the manufactured home. The documentation reflected a sale by Best Home Center, Inc., for $29,045. With respect to respondent's proposed finding of fact No. 2, Ed Franklin and his wife conveyed the lot. The down payment was $160 and a $6,100 balance was paid in March. With respect to respondent's proposed finding of fact No. 5, the Peoples Mortgage originated in March, with indebtedness secured by lot and home. With respect to respondent's proposed finding of fact No. 7, the Bay County Building Department required them to purchase a permit on September 20, 1984. COPIES FURNISHED: The Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0305 Charles Stutts, Esquire General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0305 Mr. and Mrs. Bailey 22012 High Ridge Drive Lot 24 Panama City Beach, Florida 32407 D. Alan Burns, Esquire Assistant Attorney General Department of Legal Affairs Tax Section, Capitol Building Tallahassee, Florida 32399-1050
Findings Of Fact In April, 1993, Respondent took over operation of a residential facility known as the Linton Group Home. From that date until May 31, 1995, Respondent and her staff cared for developmentally disabled children in that facility on a permanent basis. The facility was located in Marion County, Florida. The facility operated in accordance with Chapter 393, Florida Statutes and in Chapter 10F-6, Florida Administrative Code. Historically, Respondent had assisted her mother in running the group home in the years 1987 and 1988 on a part-time basis. Respondent's involvement with the group home became permanent in 1989. The group home was opened by Respondent's mother in 1985. Respondent began operating the group home when her mother died. Respondent and two or three employees routinely worked at the group home. Respondent's principle income in the time period at issue was derived from the operation of the group home facility. Following a facility inspection by Petitioner's employee conducted on May 8, 1995, to consider license renewal, the group home was granted a conditional license for the period June 1, 1995 through June 30, 1995. The license was not renewed beyond June 30 based upon the allegations previously described. The decision not to renew the facility license for the annual period was made on June 29, 1995 and notice was provided to Respondent. As of June 30, 1995, seven boys were in residence in the group home ages 13 to 18, with varying levels of disability concerning their level of function both physically and mentally. The clients residing in the facility required and had been given constant supervision. However, they were not a threat to run away from the home. At relevant times, in the event that a client was home from school someone was available to supervise the client. At relevant times Respondent's personal residence was one and a half miles from the group home. Respondent lived there with her children and husband, Willie Smith. The children were not those of Respondent and Mr. Smith. When Respondent took over ownership and operation of the group home she and other existing employees at the facility had been qualified to provide direct services to the clients through a background screening process. To successfully complete the background screening a prospective direct service provider must submit a fingerprint card, and affidavit on good moral character, undergo screening by local law enforcement, the Florida Department of Law Enforcement, and the FBI through use of the fingerprint card and prior to October 1, 1995 scrutiny by the Petitioner concerning the State child abuse registry. At relevant times Respondent understood that she was responsible for securing all the necessary information to do a background screening. She further understood that she had seven days from the time at which a person was employed at the group home to submit the background screening information for assessment. For a time she did not realize that the operator was responsible for paying a fee for processing the fingerprint card. When the May 8, 1995 inspection was made Respondent became aware that a fee was assessed for that process. At relevant times Respondent was aware that appropriate background screening was necessary to maintain the group home license to operate the facility in Florida. Respondent understood that if background screening information was not submitted that an existing license to operate the facility could be revoked or the license could be denied upon the annual request for renewal. In relevant times to the proceeding Hilda Spotts worked in the Petitioner's Developmental Services Program Office. That office serves developmentally disabled children ages 3 to adult and is involved with group homes in which those children reside. Ms. Spotts was involved with the licensure of group homes in District 13, to include Respondent's group home. In June, 1994, Respondent called Ms. Spotts to inform Ms. Spotts that Respondent had married Mr. Smith. In that conversation Ms. Spotts asked Respondent for information to perform a background assessment on the husband to include a fingerprint card and a completed HRS Form 1651 which is associated with the screening process. Ms. Spotts did not receive the information to perform the background screening in 1994. Instead, there was a second conversation in which Respondent told Ms. Spotts that the husband would not be involved in the daily activities of the group home as an employee of the home. On that occasion Ms. Spotts gave a packet to the Respondent that would be needed to perform the background assessment. However, Ms. Spotts told the Respondent that Ms. Spotts would check with another employee of Petitioner to see if the husband needed to complete those forms. The conversation was concluded on the basis that Ms. Spotts would inform the Respondent concerning the necessity for Mr. Smith to undergo background screening. Within the first six months of the marriage between Respondent and Mr. Smith, the husband did not work at the group home. His employment began before the May 8, 1995 survey at which the Respondent stated that the husband was doing lawn work and maintenance at the group home. At that time Respondent held to the opinion that the situation with her husband was no different than other maintenance people who worked at the group home and who were not required to have background screening conducted. Later Ms. Spotts called the Respondent to tell her that the husband did not need screening but Ms. Spotts reminded the Respondent that the husband needed to be listed for purposes of the annual license review. The next annual review beyond that point in time was performed on May 8, 1995. Ms. Spotts had made the determination that the husband did not need screening at that time based upon her analysis and conversations with personnel at Petitioner's District 3 office in Gainesville, Florida. Ms. Spotts had further stated that if the husband began working in the home he would need to be screened. Respondent added Mr. Smith to the list of employee names on Form 1651 in the annual renewal application dated April 20, 1995 and signed by Respondent. This was consistent with the request by Ms. Spotts that Respondent report Mr. Smith's name on the annual renewal request. Beyond those persons who were working at the group home when Respondent became the owner/operator, Respondent submitted three additional names for background screening. Among the persons who were screened was Brenda Wilson whose screening information was submitted to Pat Joyner an employee of Petitioner at District 3 who is responsible for background screening compliance in that district and District 13. Ms. Wilson was qualified and there exists no dispute concerning her background. Ms. Joyner performs background screens based upon the availability of the person's name, date of birth, social security number and fingerprints. Another employee for whom Respondent submitted background screening information was Sam Graham. This information was sent to Ms. Spotts. Mr. Graham worked for only one week at the facility. No response was received concerning his background screening. Before information was submitted for background screening on Mr. Graham Respondent was told by Ms. Spotts that the Petitioner's Districts had been separated. That referred to Districts 3 and 13. In fact in approximately the spring of 1994 five counties were separated from District 3 and placed within District 13. Marion County was among those counties. After the District separation, Ms. Spotts told Respondent that in the future that the Linton Group Home would not have any dealings with District 3 and that Respondent should deal with District 13. At that time Ms. Spotts did not tell the Respondent where to send screening requests. Respondent assumed that the screening requests should be forwarded through Ms. Spotts in that Ms. Spotts, had provided Respondent with forms needed to perform the background screening. Another employee for whom information on background screening was submitted was Michael Ivey. The information for Michael Ivey was sent to District 13. Before that information was sent Respondent did not call Ms. Spotts to ask where to send the information. Respondent again operated on the assumption that the Linton Group Home was no longer under the regulatory auspices of District 3 in Gainesville as Ms. Spotts had indicated. Therefore Respondent thought that the information for Mr. Ivey should be sent to Ms. Spotts in Belleview, Florida, where Ms. Spotts had her office. Ms. Spotts has no record of receiving the background screening information on Mr. Ivey, nor does the Petitioner. Prior to the submission in the Ivey case requests for background screening had been sent to the District 3 office in Gainesville, Florida, responsible for background screening. Mr. Ivey worked at the Linton Group Home as a direct service provider from late December, 1994 until mid May, 1995. The record of submission of materials to perform the background screening on Mr. Ivey are as reflected in the files maintained by the group home and examined by Ms. Spotts in the May 8, 1995 inspection for license renewal. In that file there is a copy of a document referred to as a law enforcement check which establishes that Mr. Ivey's record was cleared by the Alachua County Sheriff's Office. Mr. Ivey had also executed an affidavit contained in his personnel file at the group home related to his good moral character. In the group home the files is a copy of the Form 1651 shows that Michael Ivey signed as a applicant for the background screening check and included his name, date of birth and social security number together with his present address. The second part of Form 1651 that is "to be completed by employer, HRS representative or facility requesting background check" and characterizes the nature of the employment was not executed nor signed. Moreover, the requestors name, telephone number, street address, county in which the requester is located and the date upon which the applicant had been employed was not executed. There are occasions in which Petitioner's employees and counselors submit requests for background screens as opposed to that information being requested by the employer. However, it was necessary for Respondent to execute the Ivey documents as the requesting employer in that no prior arrangement had been made to have Ms. Spotts or some other employee for the Petitioner execute the form as a requesting entity. Although it may have been appropriate to assume that the proper place to transmit the request for background screening for Mr. Ivey was through Ms. Spotts, it would be inappropriate to assume that Ms. Spotts would understand or be expected to complete Form 1651 to include information as the requestor for background screening. The practice of not executing Part II to Form 1651 which calls for the employer or an HRS representative or the facility to request the background screening check and sign that request was a practice that Respondent had learned from her mother who formerly operated the Linton Group Home. That practice was carried forward in the submission of the Ivey request for background screening. Respondent did not believe that she needed to indicate that she was requesting the background screening for Mr. Ivey by indicating that Respondent was the employer. Notwithstanding the fact that Part II to Form 1651 was not routinely executed, it was the custom by the Linton Group Home to send other information with the request for background screening to indicate that the screening request related to employment with the Linton Group Home. Related to the request for background screening Respondent acknowledges that the expectation was that information would be returned from Petitioner indicating whether the employee had cleared screening. Within the group home files inspected on May 8, 1995, was found a copy of Mr. Ivey's fingerprints. The law enforcement check made by Alachua County bore an address for Petitioner in Wildwood, Florida. The fingerprint card bore an address for Petitioner in Gainesville, Florida. Both addresses were affixed to forms provided by Petitioner. Although information for Mr. Ivey's background screening had Petitioner's address at Wildwood, Florida, and Gainesville, Florida, on the forms provided by the Petitioner, Respondent recognized that the information for background screening on Mr. Ivey was to be sent to one location. She chose to send it to Ms. Spotts. Respondent was aware that compliance information concerning the background screening request was customarily received from the background agencies notifying the Respondent whether an employee had a "cleared" background. Nonetheless, Respondent did not receive information concerning clearance for Mr. Ivey beyond the clearance by the Alachua County Sheriff's Office which was received on December 7, 1994, the same date that the law enforcement check form provided to that department was signed by Mr. Ivey. In the May 8, 1995 inspection the information that was found concerning background screening for Mr. Ivey did not indicate that he had been cleared by appropriate authorities by placing a stamp on all pertinent requests with the word "clear". The exception being the return from Alachua County Sheriff's Office. When Ms. Spotts conducted the May 1995 inspection at the group home, she asked Respondent about the person or persons who was responsible for conducting repair work at the home. Respondent answered that her husband performed those duties. Respondent indicated that her husband worked both inside and outside the group home, to which Ms. Spotts responded that the husband needed to be screened during this relicensure. Respondent told Ms. Spotts that the husband cut grass at the group home. Respondent told Ms. Spotts that Respondent's husband was repairing walls and halls inside the house. In discussion concerning the need to do a background check for the husband the Respondent told Ms. Spotts that the husband did work at the home when the children were not there. In response Ms. Spotts told the Respondent that children might come back from school while the husband was there. Following this conversation about the need to have the husband checked for his background Ms. Spotts was persuaded that the Respondent had agreed to those arrangements. Those remarks were followed by correspondence dated May 16, 1995, in which Ms. Spotts informed Respondent that the Respondent needed to have a complete background screening check performed on the husband. With this correspondence Ms. Spotts enclosed a local law enforcement check form and advised the Respondent to sign the background check form and have her husband sign and return the executed information within ten days with an appropriate fee of $32.00 for processing the fingerprint card. The correspondence reminded the Respondent that the issue of background screening for the husband was important and needed prompt attention. Respondent received the correspondence. Respondent did not send Ms. Spotts the background screening information as requested. Ms. Spotts had in mind promptly processing the information on the husband to facilitate granting the Respondent a 90-day license pending the processing of information about the husband's background. When Ms. Spotts conducted her inspection Mr. Ivey was present on that day. After Ms. Spotts had examined the information in the personnel file for Mr. Ivey that has been described she asked the Respondent about Mr. Ivey's employment status. Respondent indicated that Mr. Ivey had been employed since January, 1995. Ms. Spotts noted that there was no abuse registry clearance information or local information other than Alachua County Sheriff's Office information or FBI information concerning clearance of Mr. Ivey available in the records at the group home. The group home is expected to maintain clearance information. Petitioner does not maintain clearance information concerning group home employees. In response to Ms. Spotts' questions about Mr. Ivey's status Respondent told Ms. Spotts that Respondent had sent the clearance request forms to Ms. Spotts. The information sent by Respondent to Ms. Spotts when seeking background screening for Mr. Ivey included an application form provided by HRS, an affidavit of good moral character, a Sheriff's statement, a fingerprint card, HRS Form 1651 and information concerning rules of the Linton Group Home. On May 8, 1995, when Ms. Spotts informed Respondent that the information related to Michael Ivey's background screening was incomplete this was the first time that Respondent realized the deficiency. Ms. Spotts' view is that information concerning background screening and clearance for employees in a group home is sent to Ms. Joyner in District 3, whereas information concerning the owner/operator clearance goes to Ms. Spotts at District 13. It is not clear that Respondent understood this distinction. It is not clear whether the Ms. Spotts eventual instruction to Respondent to send background information to screen employees to Ms. Joyner occurred before or after information was sent to Ms. Spotts related to screening for Mr. Ivey. Notwithstanding the special disposition of the background screening for the husband which was requested in May, 1995, to be processed through Ms. Spotts to accommodate the issuance of a 90-day license to the Respondent, earlier in 1995 Ms. Spotts had told the Respondent that the background screening for employees at the group home should be processed through Ms. Joyner. Ms. Spotts was not sure what the Respondent's understanding of the appropriate place to send background screening information for employees prior to this 1995 conversation. Not finding sufficient information concerning Mr. Ivey, Ms. Spotts asked the Respondent to re-submit the request for clearance for that employee. As with the information pertaining to the husband, Respondent was instructed to send the information to Ms. Spotts to accommodate the issuance of a 90-day license pending the processing of information about Mr. Ivey's background. Respondent did not re-submit information for background screening for Mr. Ivey. Ms. Spotts provided Respondent with necessary forms to submit for background screening for employees. At the end of May, 1995, Ms. Spotts called Respondent to inquire concerning the submission of background screening information for the husband and Mr. Ivey. Respondent told Ms. Spotts that the husband had gone to Nevada around May 19, 1995, and that Mr. Ivey had quit on that date. During this conversation at the end of May, Respondent told Ms. Spotts that Respondent was not sure when the husband would return from Nevada. In fact, Respondent knew that her husband was in jail based upon the domestic violence complaint that Respondent had placed against her husband. In this conversation Respondent did not wish to talk with Ms. Spotts because Respondent had visitors in her home. She did not tell Ms. Spotts about the husband's incarceration in this conversation because she did not want the people who were visiting and standing in the room where she was on the phone to hear that her husband was in jail. In the conversation in late May, 1995, Ms. Spotts told Respondent that Respondent had 30 days to "rectify the problem" or loose the license for the group home. This is taken to mean obtaining background information for the husband and Mr. Ivey. In a subsequent conversation around June 7, 1995, the Respondent told Ms. Spotts that the husband had been in jail and was no longer living in the family home. Respondent also told Ms. Spotts that the Respondent was involved with paying for a motel in Ocala, Florida, for the husband's residence. In this conversation, Respondent informed Ms. Spotts that her husband had been in jail because of a domestic dispute. Respondent also told Ms. Spotts that she did not know when she could get the necessary information from the husband to process the background screening requested by Ms. Spotts. The problem which Respondent explained to Ms. Spotts concerning the background screening for the husband was the inability to get a copy of the husband's fingerprints. Respondent remarked in that conversation that the husband had been doing a little work around the house and working in the yard. Respondent also remarked that she did not think that it was necessary to have background screening but she would have it done when her husband was released from jail. Respondent made no mention concerning the possibility that her husband would return to work at the group home. The husband was released from incarceration on June 8, 1995 and returned to jail on June 13, 1995 and was released again on August 25, 1995. In the June 7, 1995 conversation, Respondent asked if Elsa Alvarez from the Petitioner agency had contacted Ms. Spotts about the pending investigation of Respondent and her children associated with the domestic violence case. In the conversation the Respondent told Ms. Spotts that the Respondent had a restraining order against her husband but that the restraining order did not pertain to the husband and his ability to access the group home. Ms. Spotts suggested that the restraining order be modified to place the additional prohibition on the husband. Respondent indicated that she would pursue this suggestion with her lawyer. The restraining order was never modified to prohibit the husband from having access to the group home. Once Ms. Spotts found out that the Respondent had acted to restrain or enjoin the husband from acts directed to the Respondent she asked that a copy of the injunction be posted at the group home. Respondent complied with that request. In addition to placing the May 31, 1995 restraining order on a bulletin board at the group home, Respondent told the staff members that her husband was not to "come around". Given the pendency of the background screening for the husband, a conditional license was issued to the group home effective June 1, 1995, with a 30-day license period. The basis for this decision was premised upon Ms. Spotts' belief that the husband would return from his trip to Nevada and be employed at the group home. On June 5, 1995, Ms. Spotts sent Respondent correspondence indicating that the license for the group had been renewed for the 30-day period pending completion of the background information on Respondent's husband. That correspondence indicated that a meeting would be held with the Respondent on June 13, 1995, to discuss the future licensing of the group home beyond the expiration of the conditional license. Respondent received this correspondence. The correspondence was sent before Ms. Spotts became aware that Respondent's husband had been placed in jail. Ms. Spotts continued to insist on a background check on Mr. Smith because she was persuaded by the June 7, 1995 conversation with the Respondent that the Respondent and the husband would reconcile their differences. Throughout the licensing process Ms. Spotts is without knowledge concerning the husband staying in the group home or serving or supervising the clients at that home. Ms. Spotts is not aware of any complaints about Mr. Ivey while he served as a provider at the group home. Respondent's husband never stayed at the group home or had any direct contact with the residents clients. In addition to the work previously described, the work that he did at the group home included changing air- conditioning vents, and light bulbs and one plumbing repair. The husband also moved a bed at the group home while the Respondent was in attendance. On June 13, 1995, Ms. Spotts was informed that the Respondent was getting a dissolution of the marriage to Mr. Smith. In that conversation Respondent told Ms. Spotts that the Respondent did not want the husband around her daughters in their family home. In that connection, the husband's background had been checked in association with the domestic violence situation in the Respondent's home, during which it was discovered that the husband was on the child abuse registry for sexual abuse. Before that time Respondent was unaware that her husband had been named in the abuse registry. That discovery contributed to the decision by the Respondent to seek dissolution of their marriage. Ms. Spotts in conjunction with Carole Perez, Program Administrator for Developmental Services at District 13, decided to not hold the June 13, 1995 meeting to discuss further licensure in view of problems perceived with the background screening related to Mr. Ivey and Respondent's husband, having in mind the high level of dependency by the clients that were served by the group home, some of whom were unable to communicate. In their opinion those circumstances demanded providers who met all necessary requirements to include background screening. In determining to deny license renewal Ms. Spotts and her supervisor Carol Perez were concerned about Respondent's honesty in cooperating with Petitioner in having a background screen performed on the husband, and whether the cooperation was not forthcoming as a means by Respondent to avoid the possibility that the husband would not be cleared and the possibility that Respondent's husband would have continuing contact with the group home. The Petitioner in the person of Ms. Spotts and Ms. Perez decided to cancel the June 13, 1995 meeting to consider license renewal after consultation with representatives of the children and families program who were conducting an investigation about the group home. Respondent was notified of the cancellation. The children were removed from the home and placed in other licensed facilities or returned to their respective homes on June 20, 1995. At hearing Respondent admitted that there was a possibility that the husband would have returned to her personal home following his incarceration. That possibility ended when the Respondent learned for the first time that her husband was a confirmed child abuser as recognized by the child abuse registry in Florida. This knowledge came about based upon an investigation into the domestic violence situation that has been described. Respondent's husband had been incarcerated based upon the alleged domestic violence against Respondent. That circumstances arose in May, 1995, before Respondent's husband was served with an injunction for protection. The service was made on May 22, 1995. On May 31, 1995, an injunction order for protection was entered in the Circuit Court, Fifth Judicial Circuit in and for Marion County, Florida. In operative terms the injunction enjoined and restrained the husband from threatening, assaulting, harassing or otherwise physically or mentally abusing the Petitioner. The order was not intended to enjoin the Respondent's husband from contact with her. The order describes that those parties (husband and wife) could have peaceful, non-threatening, nonviolent contact. The court had entered a preliminary injunction on May 20, 1995, as modified by the May 31, 1995 order. On June 19, 1995, Respondent petitioned for dissolution of marriage from Mr. Smith. On August 14, 1995, the final judgement of dissolution was entered. The final order dissolving the marriage kept in place the injunction entered on May 31, 1995, and awarded exclusive possession of the personal residence to Respondent and enjoined her former husband from coming to that premises. Respondent assumed that the necessity to obtain background information ended when the Respondent made the decision to seek dissolution of the marriage. At present Respondent does not have the Linton Group Home in her control.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which grants Respondent permission to renew the group home license upon the payment of a $750.00 fine. DONE and ENTERED this 14th day of February, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 14th day of February, 1996. APPENDIX CASE NO. 95-3741 The following discussion is given concerning the proposed findings of fact by the parties: Petitioner's Facts: Paragraph 1 is acknowledged in the preliminary statement to the recommend order. Paragraph 2 is subordinate to facts found. Paragraph 3 is subordinate to facts found with the exception of the sentence pertaining to the affidavit of good moral character. The affidavit was available. Paragraphs 4 through the first two sentences in Paragraph 16 are subordinate to facts found. The last sentence in Paragraph 16 is not necessary to the resolution of the dispute. Paragraphs 17 through 23 are subordinate to facts found. Respondent's Facts: Paragraphs 1 through 9 are subordinate to facts found. Paragraph 10 is not necessary to the resolution of the dispute. Paragraphs 11 through 25 are subordinate to facts found. COPIES FURNISHED: Ralph J. McMurphy, Esquire HRS District 13 Legal Office 1601 West Gulf-Atlantic Highway Wildwood, FL 34785 Frederick E. Landt, III, Esquire 445 NE 8th Avenue Post Office Box 2045 Ocala, FL 34478 Sandy Coulter, Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
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.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.
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
