The Issue Whether the Petitioner is eligible for relocation assistance benefits pursuant to 42 U.S.C. 4601 et seq. (P.L. 91-646) and the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.
Recommendation Application for relocation assistance benefits by Mrs. Marie Lewis Mims be denied. DONE and ORDERED this 14th day of December, 1976 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Guy Davis, Jr., Esquire 700 Brent Building Post Office Box 12950 Pensacola, Florida 32576 George L. Waas, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Joseph A. Alfes Chief of Right-of-Way Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
Findings Of Fact Dr. Carmen M. Feril was employed by the Florida State Hospital as a psychiatrist II effective March 5, 1976, which appointment was made with full staff privileges. Dr. Feril was offered housing on the hospital grounds when she began employment there in 1976. She was subsequently asked by hospital officials to vacate her house which request dated January 9, 1978 and signed by Daniel Atoman, M.D., acting Clinical Director who on January 9, 1978, requested that Ms. Feril vacate quartes no. 263 by March 1, 1978, since [she] was not occupying the residence full-time". It is based on this request from acting Clinical Director Atoman that the Petitioner initiated the petition here in pursuant to Chapter 120.57(1), alleging that her substantial interests were being affected by the Respondent, Department of Health and Rehabilitative Services. At all times material herein, the housing policy in effect which is the subject matter of this petition, was dated March 31, 1977, and is contained in Petitioner's Exhibit 1. The parties stipulated that the Respondent offers housing to professionals at a reduced and attractive rental as an inducement to secure professionals. Doctors and other professionals at the hospital are given a written contract of employment which includes no provisions for housing nor is there any written contract of housing. The Petitioner introduced no evidence of an oral contract for housing other than her statement that she was told that housing was available and that other inducements of employment such as laundry and dining room services were in effect on a modified basis. More than half of the doctors employed at the hospital live on the grounds and most also maintain private residences. The pertinent part of the housing policy in effect and which is contained Petitioner's Exhibit 1 provides as follows: Should the needs of an employee for housing space change materially, housing assignments will be reviewed to accommodate these needs as nearly as circumstances permit. The Respondent, relying upon such provision asked the Petitioner to leave when the housing committee learned that during May, 1977, Petitioner bought a home in Tallahassee. Based on the Respondent's determination that the Petitioner, having purchased the residence in Tallahassee and was therefore under utilizing the house on the hospital grounds, asked her (Petitioner) to vacate pursuant to provision D-2 of the housing policy. Since the Respondent was involved in on going efforts to attract a new clinical director. Petitioner was offered the opportunity to present her views to the housing committee in a meeting which lasted approximately one hour. Based on the committees unanimous opinion, she was asked to vacate the house on the hospital grounds. Other factors relied upon by Respondent was the committee's unanimous opinion, when was asked to vacate the house on the hospital grounds. Other factors relied upon by Respondent was the committees determination that Petitioners children, ages 14, 15 and 10, were all enrolled in schools in Leon County since September, 1977; Petitioner's substantial amount of time spent at the Leon County residence and the Respondent's need to utilize the facility then occupied by Petitioner to attract a new clinical director. Respondent introduced testimony to the effect that the housing committee was in the process of reviewing all housing assingments in an effort to free up housing for new recruits and that the committee had, in the past, requested a doctor to vacate his hospital quarters because he had other available housing. Based on the foregoing and the absence of any evidence that housing was not a contractual right of employment but was rather a convenience provided by Respondent on an as available and as needed basis as explained in the housing policy plus the fact that the housing policy authorizes the committee to reevaluate an employees housing needs and to make changes based on a change in need, the conclusion is inescapable that Respondent was here authorized to request the Petitioner to vacate the quarters provided her on the hospital grounds pursuant to Section D-2 of the housing policy. The Respondent here afforded Petitioner notice of its intended actions and provided her an opportunity to voice any concern respecting any alleged breach by Respondent of the effective housing policy. Petitioner having failed to introduce any evidence showing that the action by Respondent in implementing the notice provisions of the housing policy to request Petitioner to vacate the quarters afforded her was in any manner arbitrary or capricious, I shall recommend that this agency action be upheld.
Recommendation Based on the foregoing findings of fact and conclusions of law it is hereby recommended that the action of the agency in requesting that the Petitioner vacate the premises cited herein be sustained. RECOMMENDED this 19th day of May, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jon D. Caminez, Esquire 1030 East Lafayette Street Suite 101 Tallahassee, Florida 32304 Donna Stinson, Esquire 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Petitioner, Forman's Dairy Palm Nursery (the "Nursery"), is located in Broward County, Florida and is primarily engaged in the business of raising and wholesaling palm trees. The area in which the Nursery is located was originally settled by the parents of Hamilton Forman and Charles Forman in approximately 1910. The Forman property was developed into a diversified agricultural enterprise which consisted of approximately seven hundred acres. The Nursery was incorporated and began operations in approximately 1956 and is authorized to undertake a wide range of business ventures. The evidence did not establish the initial size of the Nursery or the ownership of the land on which the Nursery has conducted operations. Hamilton Forman is the president of the Nursery and is responsible for filing the tax returns and maintaining the other financial records of the corporation. The Nursery is one of many business ventures in which he is engaged. He owns fifty percent (50%) of the Nursery. His brother, Dr. Charles Forman, owns the other fifty percent (50%) of the Nursery. Charles Forman has been more involved in the agricultural and operational aspects of the Nursery. In approximately 1970, a portion of the Forman property was transferred to one of Hamilton Forman's sons for the purpose of establishing a cemetery. (This property will hereinafter be referred to as the "Cemetery.") Approximately thirty acres of land which had previously been part of the Nursery was conveyed for the establishment of the Cemetery. The Cemetery was subsequently conveyed to an unrelated conglomerate which continues to operate the Cemetery on property immediately adjacent to the Nursery. (The company which acquired the Cemetery will be referred to as the "Cemetery Company".) When the property was transferred for purposes of establishing the Cemetery, a deed reservation was inserted in the conveyance which allowed the Nursery to continue to use a portion of the property conveyed (approximately ten acres) until such time as the Cemetery needed it. (This provision will hereinafter be referred to as the "Deed Reservation.") Pursuant to this Deed Reservation, the Cemetery Company can regain use of the property at any time with a one year notification requirement. The specific provisions of the Deed Reservation were not established. Thus, the exact terms under which the Nursery continued to occupy the property are not clear and there is no evidence as to what rights the Nursery has under the Deed Reservation. Although it appears that approximately ten acres were originally subject to the Deed Reservation, it is unclear how much of the property currently occupied and utilized by the Nursery is actually owned by the Cemetery Company subject to this Deed Reservation. The property owned by the parents of Hamilton and Charles Forman abutted a road for a distance of approximately seven thousand feet. The road has been at its current location since prior to 1926. The road ultimately became State Road 84. There have been ongoing discussions and negotiations regarding the development of a limited access highway in the State Road 84 corridor for over twenty years. Hamilton Forman has closely followed the various proposals during this time period and has supported the development of such a highway The proposals came to fruition with the current on-going construction of the Interstate 595 ("I-595") expressway in the area of the State Road 84 corridor. The I-595 project is a federally assisted highway project undertaken by DOT. The evidence did not establish when the I-595 project was finally approved to begin acquisitions and construction, but the project was the culmination of years of effort. In approximately 1984 or 1985, DOT sent notices to all of the land owners in the area of the proposed limited access highway advising them of the potential need to acquire property for the I-595 project. When the location of the project changed, new notices were sent out in late 1985 or 1986. During this time period, DOT representatives approached Hamilton Forman and the Nursery regarding the acquisitions that were necessary for the I-595 project. Shortly thereafter, a portion of the property occupied by the Nursery was sold to a third party for the construction of a mini-warehouse. (The property sold for the warehouse will hereinafter be referred to as the "DiMar Property.") The transfer of the DiMar Property was completed on March 6, 1986. Hamilton Forman and Miles Austin Forman were the transferors in that transaction. The DiMar Property consisted of just under four acres. The Nursery occupied approximately three and one half of those acres. At the time of the sale of the DiMar Property, Hamilton Forman anticipated that the I-595 project would impact upon the operation of the Nursery and he recognized the possibility that the Nursery might not be able to continue to operate profitably because of that impact. No evidence was presented regarding the effect the transfer of the DiMar Property had on the profitability or sales of the Nursery or how the nursery stock located on the property was disposed of. The transfer of the DiMar property took place prior to the valuation dates for the acquisitions of property in the area by DOT for the I-595 project. Shortly after the transfer of the DiMar Property, DOT began acquiring property in the vicinity of the Nursery for the right-of-way for I-595. The evidence did not establish the exact acreage occupied by the Nursery either before or after the sale of the DiMar property. It appears that after the sale of the DiMar property but prior to any acquisitions for the I-595 project, the area occupied by the Nursery was somewhere between fifteen and eighteen acres. The direct acquisition of property required for the I-595 project included approximately two hundred feet along the southern frontage of State Road 84 which was being utilized by the Nursery. In total, approximately 2.75 acres of land that was occupied by the Nursery along this frontage was acquired for the I-595 project. (The acquisitions of property on which the Nursery was conducting operations will be referred to as the "Taking".) All of the property occupied by the Nursery and acquired as part of the Taking was actually owned by either the Cemetery (and occupied by the Nursery in accordance with the Deed Reservation discussed in Findings of Fact 5 above) or by Di-Mar. The evidence did not establish the terms under which the Nursery was occupying the property owned by DiMar. DOT paid the Nursery for the palm trees and nursery stock located within the area of the Taking. DOT also acquired approximately two acres from the Cemetery that was occupied and being held in reserve for expansion by the Cemetery Company. Prior to the acquisitions of property described in Findings of Fact 14 and 15, the Cemetery had direct access and egress to State Road 84. Because of the planned acquisitions, DOT recognized that a new access to State Road 84 was necessary for the Cemetery. In order to provide this new access for the Cemetery, DOT acquired an additional one half acre of land that was owned by the Cemetery Company but occupied by the Nursery pursuant to the Deed Reservation. (This half acre will be referred to as the "Trapezoidal Area.") The location and design for a new driveway-access to State Road 84 were negotiated with and approved by the Cemetery Company. (This new driveway will be referred to as the "Access Loop.") There is no indication that the Nursery was consulted or provided any input regarding its needs with respect to the Access Loop. The Respondent has completed construction of the Access Loop. It was anticipated that the Access Loop would be connected with the interior roadways of the Cemetery. The Respondent has paid a sum of money to the Cemetery Company as a "Cost To Cure" to enable the Cemetery Company to connect its internal roads with the Access Loop. As of the date of the hearing, the Cemetery Company had not connected its internal roads with the Access Loop. As part of the Cost To Cure, the Respondent paid the Nursery for the trees and Nursery stock located within the Trapezoidal Area where the new Access Loop was built. After the sale of the DiMar Property, the subsequent Taking for I-595 and the acquisition of the Trapezoidal Area for the new driveway, the Nursery continued its operations in an area of approximately twelve to fifteen acres. The evidence did not establish the ownership of the property on which the Nursery has continued operations. However, it is clear that at least a portion of the property, and perhaps as much as ten acres, are owned by the Cemetery Company and subject to the Deed Reservation. By letter dated March 31, 1988, the Cemetery Company advised Hamilton C. Forman that it was reclaiming approximately five acres of the land occupied by the Nursery pursuant to the Deed Reservation. (These five acres will be referred to as the "Reclaimed Land.") The letter states that the Reclaimed Land was necessary because of the taking by DOT of the Cemetery property as set forth in Findings of Fact 15 above. The letter purports to serve as the one year notification required by the Deed Reservation. The Reclaimed Land is among the Nursery's moot productive acreage. The evidence did not establish when, or if, this property was vacated by the Nursery and turned over to the Cemetery Company. No competent evidence was presented to establish when the Cemetery Company would have exercised its rights under the Deed Reservation if no portion of the Cemetery had been taken for the I-595 project. While Hamilton Forman testified that the Cemetery Company would not have needed the property occupied by the Nursery for approximately four or five years from the date it acquired the Cemetery (which was sometime in 1985 or 1986), his testimony is clearly hearsay which is not corroborated by otherwise competent evidence. The amount of land being reclaimed by the Cemetery Company (five acres) exceeds the amount of land acquired by DOT that was actually being utilized and occupied by the Cemetery at the time of acquisition (approximately two acres.) At the time the Forman property was developed, a system of underground water culverts and Sewell locks were established in order to control the surface water in the area and provide irrigation to the farm lands. These drainage and irrigation facilities (including the Sewell locks) were constructed several years prior to the establishment of the Nursery and they provide irrigation and drainage control on both sides of State Road 84. The nearby North New River Canal provides the source of water. The Formans have vested rights to draw water from the North New River Canal and to discharge water below the Sewell locks. The evidence did not establish the terms or duration of these vested rights but it appears that they will continue for a another sixty (60) to seventy (70) years. The Tindall Hammock Irrigation Soil Conservation District ("Tindall Hammock") was created in 1951. Charles Forman is the chairman of Tindall Hammock and Hamilton Forman is a director. Hamilton Forman was also one of the organizers of Tindall Hammock. 25. Tindall Hammock is the owner of some of the drainage facilities in the area of the Nursery. The Sewell locks are owned and controlled by the Central and Southern South Florida Flood Control District (the "Flood Control District.") Tindall Hammock has recently negotiated with the Cemetery Company regarding the relocation of a portion of the drainage facilities. As a result of the discussions between Tindall Hammock and the Cemetery Company, two easements have been granted to Tindall Hammock dated May 5, 1989. Tindall Hammock and the Cemetery determined the size and location of both of the drainage easements without any input from DOT. There are two separate areas involved in the relocation of the drainage facilities. The first consists of roughly .34 acres and runs approximately two hundred and sixty-six feet by fifty-six feet from the western border of the Nursery along the northern boundary of the Nursery following the line of the taking for the I-595 project. (This parcel will hereinafter be referred to as "Relocated Drainage Facility No. 1"). The second drainage easement also runs along the northern border of the Nursery following the boundary of the I-595 Taking. It starts from a point on the eastern boundary of the Nursery bordering the Cemetery, runs to the west for a short distance and then cuts diagonally through the existing Nursery to a point close to the southern border of the Nursery. (This easement will hereinafter be referred to as the "Relocated Drainage Facility No. 2"). Relocated Drainage Facility No. 2 is almost entirely included within the area of the Reclaimed Land. A new drainage ditch is proposed to be constructed in the area of Relocated Drainage Facility No. 2 to replace a drainage ditch which previously ran along the eastern edge of the Nursery and served as the boundary between the Cemetery and the Nursery. The proposed new drainage ditch will enable the Cemetery to make more efficient use of the Reclaimed Land. Tindall Hammock submitted a claim to DOT for the cost of the easements and for relocating the drainage facilities thereon. Tindall Hammock contended that the relocations were due to the I-595 project. DOT denied most of the claim. A portion of the relocated drainage facilities was necessary to replace and relocate drainage facilities that were within the area of the Taking and to replace drainage to the North New River Canal underneath State Road 84 which was severed as part of the construction of I-595. Therefore, DOT did construct or pay for the relocation of a culvert in the Trapezoidal Area and a drainage ditch in the area of Relocated Drainage Facility No. 2. DOT has not paid to relocate any other drainage facilities because it determined that the relocations were not the result of the acquisitions for the I-595 project. Tindall Hammock has not appealed DOT's denial of the claim regarding the rest of the relocated drainage facilities. Other than the facilities constructed or paid for by DOT, no new drainage facilities have been constructed in the area of Relocated Drainage Facility No. 2. It is not clear whether any new facilities have been erected in the area of Relocated Drainage Facility No. 1. The Nursery has been compensated by DOT for the palm trees or nursery stock that was located in the areas where the new drainage facilities have been built as set forth in Findings of Fact 27. Prior to this hearing, the Nursery had not sought payment for the palm trees or nursery stock located in the other areas of the Relocated Drainage Facilities No. 1 and No. 2. The evidence in this case failed to establish that the relocation of the drainage facilities was necessitated by the I-595 project except in those areas where DOT has already constructed or paid for the relocation. Throughout its existence and up until the construction of I-595, the Nursery had direct access to State Road 84. Prior to the Taking, the Nursery had two means of access from State Road 84: one was used primarily for an entrance and the other was used primarily for exiting. These access points were shared with the Cemetery. Prior to the I-595 project, the Nursery's two access points on State Road 84 were approximately six hundred feet apart. Both of these access points allowed persons entering or leaving the Nursery to turn either east or west and both access points provided direct access from east bound or west bound State Road 84 through median openings. After the Taking, the new Access Loop was constructed in the Trapezoidal Area to funnel traffic into the Cemetery as set forth in Findings of Fact 16. The evidence did not establish when this new Access Loop was constructed. The nature of the wholesale palm tree business requires large trucks and/or semi-tractor/trailers to remove the trees from the site. As a result of the Taking and the construction of the Access Loop, access to the Nursery has been significantly altered. The new Access Loop was not designed to accommodate the large trucks and semi-tractor/trailers that typically frequent the Nursery. Access to the Nursery is still possible off the new Access Loop. However, entry to the Nursery is much more difficult for large trucks and semi-tractor/trailers. After the Taking, large trucks and semi-tractors/trailers have a much more difficult time negotiating the turn within the Nursery to properly exit out onto the frontage road. While the new driveway makes access to the Nursery more difficult and causes some internal circulation problems, the Petitioner has not established that a more appropriate access cannot be designed within the remainder of the property. A redesign of the internal traffic circulation system for the Nursery may be necessary. No evidence was presented to demonstrate the viability, cost or effect of such a redesign. However, it appears that this access problem can be cured relatively easily. The new Access Loop was constructed on land now owned by the Respondent. It is not clear what rights, if any, the Nursery will have to the Cost To Cure roadways that are to be constructed to connect the Access Loop to the internal Cemetery property. At this point, the only access that the Nursery has to State Road 84 is off of the Access Loop constructed by Respondent. Prior to the Taking, Nursery customers had direct access to the Nursery from State Road 84. Now, customers are required to take a very circuitous route to reach the Nursery. After the construction of I-595, State Road 84 has become a frontage road adjacent to the interstate. In the after condition, the Nursery has direct access to only the east bound frontage road. In sum, prior to the acquisition, the Nursery had direct frontage on a major arterial road. It now has restricted access on the east bound portion of a frontage road. Only those travelers on the east bound frontage road will be able to access the Nursery in substantially the same manner as they did prior to the acquisitions. While it is clear that access to the Nursery has become more difficult, the evidence did not establish that the Nursery will not be able to operate profitably solely as a result of these conditions. Hamilton Forman testified that, until the I-595 project, the Nursery has been profitable during all of its years of operations. However, no competent evidence was introduced to show the profits that have been earned. No financial records of the Nursery were produced and some of the overhead and other records of the Nursery are shared with other businesses in which Hamilton Forman is involved. The gross sales of the Nursery have declined by approximately fifty percent from the year 1985 to 1988. Gross sales for the year 1985 were $174,364.95. Gross sales for the year 1986 were $163,484.41. Gross sales for the year 1987 were $144,573.87. Gross sales for the year 1988 were $87,116.00. Gross sales for the first nine months of 1989 were $43,909.00 which if annualized would result in total sales for the year of $58,647.00. The overhead costs involved in operating the Nursery have remained relatively constant throughout this time and the Nursery has not significantly changed its advertising efforts during this time period. Some of the lost sales may be attributable to a third party vendor who purchased the trees acquired by DOT following the acquisitions detailed in Findings of Fact 14 and 15. This third party vendor sold the trees which had been acquired from the Nursery at a significant discount over the prices that the Nursery was selling similar stock. The evidence did not establish the time frame during which this vendor was in business. Thus, it is not possible to determine the extent to which the Nursery's drop in sales was attributable to this third party vendor. Petitioner contends that its drop in sales is mainly attributable to the more difficult access to the Nursery. However, Petitioner's own witnesses regarding the value of the nursery stock have testified to the unique types and sizes of the palm trees at the Nursery. The uniqueness of the product sold by the Nursery should help insulate it from problems associated with more difficult access. Moreover, it is clear that a number of other factors have contributed to the decrease in sales including the loss of the DiMar Property, the competition from the purchaser of the palm trees acquired by DOT in the area of the Taking and the temporary disruption that has occurred because of the ongoing construction that has been taking place in the area for several years. After the Nursery learned it would have to turn over approximately five acres to the Cemetery Company as set forth in Findings of Fact 20 above, the Nursery submitted a claim to Respondent for the loss of its palm trees in this area (the "Claim"). The Nursery's Claim also sought reimbursement for all the remaining trees in the Nursery on the grounds that the Nursery could no longer continue to operate after it turned over the Reclaimed Land. Most of the palm trees in the remaining areas of the Nursery are planted in the ground rather than in pots. The value of the palm trees in the ground is approximately the same as the cost to move the trees. Moving the trees would stunt the growth of the trees for a period of eight months to a year after the move. In addition, it is reasonable to expect that a significant number of the trees would be unable to survive a move. The Petitioner has presented two valuations of the Nursery stock currently found within the entire remaining area occupied by the Nursery. The first valuation is dated May 2, 1988 and it includes a total of 6,739 trees which are valued at a total of $289,215.50. The second valuation is dated November 17, 1989 and includes 11,404 trees with a total value of $453,510. The Petitioner has not separated out the value of the trees in any specific area of the Nursery. No acceptable explanation was given for the great disparity between these two valuations completed only one and a half years apart. Therefore, the valuations are rejected. The Respondent has not presented any contrary evidence regarding the value of the trees located in the Nursery. DOT denied Petitioner's Claim on the grounds that the Taking by DOT of the property occupied by the Nursery did not necessitate the relocation of the entire Nursery operation. In making this determination, DOT refused to consider the effect on the Nursery of losing the five acres being reclaimed by the Cemetery Company. DOT has not made a specific assessment of what impact the Taking and the development of the new Access Loop has had on the business of the Nursery. DOT has concluded that the displacement of the Nursery in the area of the Taking (approximately 2.75 acre) in the Trapezoidal area (approximately .5 acres) and in the area of the new drainage ditch (less than .5 acres) do not necessitate the move of the entire Nursery operation. There is a great deal of conflicting evidence regarding the amount of land actually occupied by the Nursery. After thoroughly reviewing this evidence, it is concluded that, including the five acres being reclaimed by the Cemetery Company, the Nursery has approximately twelve to fifteen acres of land in which to carry out its operations. Petitioner has not presented sufficient evidence to establish that this area would be inadequate to continue profitable operations. The evidence presented at the hearing did establish that the economies of scale will no longer be favorable enough to allow the Nursery to continue to operate at a profit if and when it turns over the Reclaimed Land to the Cemetery Company. However, the evidence did not establish that the Nursery would be unable to operate at a profit if the Cemetery Company had not reclaimed the approximate five acres pursuant to the Deed Reservation. In evaluating relocation claims, DOT first determines whether a claimant has been "displaced" in the area of the taking. Prior to evaluating the Claim which is the subject of this proceeding, DOT had determined that the Nursery was displaced in the area of the Taking, in the Trapezoidal Area and in a small portion of the area of Relocated Drainage Facility No. 2 where the new drainage ditch was constructed. Based upon this determination, the Nursery was deemed eligible for relocation, cost reimbursement or reimbursement for actual direct loss of tangible personal property with respect to the palm trees located in those areas. The palm trees in those areas were considered moveable personal property by DOT because the intention was to sell the trees for transplantation off-site. Thus, the trees were deemed eligible for relocation, cost reimbursement or, if the Nursery elected not to move the trees, they were to be treated under the relocation guideline known as "Reimbursement for Actual Direct Losses of Tangible Personal Property." The Nursery stock was processed through relocation procedures and was handled separate and apart from the realty and improvement acquisitions. However, DOT denied the Nursery's subsequent Claim for relocating the palm trees in the remaining area of the Nursery on the grounds that the Nursery was not a displaced person in those areas. In applying the Relocation Act, DOT will, in certain instances, reimburse a claimant for relocating personal property not within the area of the take. DOT has not adopted any rules setting forth the factors that will be considered in determining whether the agency will pay for relocation costs of personal property that is not relocated within the area of the take. Among the factors that are considered when determining whether a displacee is entitled to relocation assistance for a partial taking include whether there has been a total severance of access, whether internal traffic flow in the remainder has been substantially impaired and such internal traffic control was an essential part of the business operation, whether a process system has been disrupted and there is no adequate space on the remainder to put that process system back into operation and whether the visibility of the business had been significantly impaired and the business is largely dependent on impulse buyers as opposed to destination shoppers.
Recommendation Based upon the foregoing findings of facts and conclusions of law, it is RECOMMENDED that a Final Order be entered denying Petitioner's claim for relocation expenses related to the Nursery stock outside the area of the Taking which has not previously been compensated. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of September, 1990. 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 26th day of September, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-0084 Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact and conclusions of law includes seven main sections. Section I is an Introduction, Section II is entitled stipulated Facts, Section III is entitled DOT Admissions, Section IV is entitled Unrebutted Facts in Evidence of the Petitioner, Section V is entitled Disputed Facts, Section VI is entitled Statutes regarding Eligibility for Relocation Assistance, Section VII is entitled Federal Case Law on Relocation-Assistance Eligibility and Section VIII is entitled Proposed Conclusions of Law. All of Petitioner's proposed findings of fact and conclusions of law have been considered in the preparation of this Recommended Order. This Appendix will deal only with the factual proposals set forth in Sections III, IV and v. The Petitioner's Proposed Findings of Fact "DOT ADMISSIONS" Paragraph Number in Paragraph Number in the Findings of Fact Petitioner's Section in the Recommended Order Where Accepted or "III. DOT Admissions" Reason for Rejection Rejected as overly broad and constituting a conclusion of law rather than a finding of fact. While this proposed finding may be true in some instances, the DOT statement which is relied upon for this proposal was limited to a specific factual setting. Rejected as irrelevant. Rejected as irrelevant. The subject matter is addressed in part in Findings of Fact 48. Adopted in substance in Findings of Fact 14 and 47. Adopted in substance in Findings of Fact 30 and 48. Subordinate to Findings of Fact 16 and 17. Subordinate to Findings of Fact 26, 27, 28 and 30 31 Subordinate to Findings of Fact 30, 42 and 47. Subordinate to Findings of Fact 13 and 18. Subordinate to Findings of Fact 14 and 15. Subordinate to Findings of Fact 16 and 30. Subordinate to Findings of Fact 16. Subordinate to Findings of Fact 30. No competent evidence was presented to establish the acreage involved in this "Cost To Cure" area. The evidence did establish that DOT did compensate the Nursery for some trees that were located outside the area of the Taking. Subordinate to Findings of Fact 8 and 9. Rejected as irrelevant. Subordinate to Findings of Fact 20 and 21. Adopted in substance in Findings of Fact 27. Adopted in substance in Findings of Fact 14, 17, 30 and 47. Adopted in substance in Findings of Fact 28, 30, and 47. Adopted in substance in Findings of Fact 28, 30, and 47. Subordinate to Findings of Fact 32, 33, and 34. Rejected as irrelevant. This subject is addressed to some degree in Findings of Fact 35. Rejected as vague and ambiguous. Rejected overly broad. Rejected as constituting a conclusion of law rather than a finding of fact. Rejected as constituting a conclusion of law rather than a finding of fact. Rejected as vague and ambiguous. This subject is addressed to some degree in Findings of Fact 48. Adopted in substance in Findings of Fact 46 and 47. Adopted in substance in Findings of Fact 48. Subordinate to Findings of Fact 48. Subordinate to Findings of Fact 48. Rejected as constituting a conclusion of law rather than a finding of fact. This subject area is related to Findings of Fact 48. Rejected as constituting a conclusion of law rather than a finding of fact. This subject area is related to Findings of Fact 48. Rejected as constituting a conclusion of law rather than a finding of fact. Adopted in substance in Findings of Fact Rejected as overly broad. 37.-38. Rejected as constituting a conclusion of law rather than a finding of fact. Rejected as constituting a hypothetical based upon facts not in evidence. Rejected as irrelevant. Subordinate to Findings of Fact 46. Rejected as constituting argument rather than a Finding of Fact. This subject matter is addressed in Findings of Fact 38. Rejected as irrelevant. Rejected as irrelevant. Rejected as vague. Subordinate to Findings of Fact 46. Subordinate to Findings of Fact 47. Subordinate to Findings of Fact 46 and 48. Subordinate to Findings of Fact 48. 50.-52. Rejected as unnecessary and as constituting legal interpretations rather than findings of fact. Adopted in substance in Findings of Fact 48. Adopted in substance in Findings of Fact 48. Rejected as irrelevant. Subordinate to Findings of Fact 48. Rejected as constituting argument and legal interpretations rather than a finding of fact. This subject area is addressed in Findings of Fact 48. Rejected as vague and ambiguous. The subject area is addressed in Findings of Fact 45, 46 and 47. Subordinate to Findings of Fact 46. Subordinate to Findings of Fact 34 and 46. Rejected as vague and ambiguous and irrelevant. "UNREBUTTED FACTS AND EVIDENCE Paragraph Number in Paragraph Number in the Findings of Fact Petitioner's Section in the Recommended Order Where Accepted "IV Unrebutted Facts or Reason for Rejection and Evidence Adopted in substance in Findings of Fact 4, 5 and 6. Subordinate to Findings of Fact 20. Rejected as vague, overly broad and irrelevant. Adopted in substance in Findings of Fact Subordinate to Findings of Fact 26. Subordinate to Findings of Fact 26. Adopted in substance in Findings of Fact 31, 36 and 37. Subordinate to Findings of Fact 34 and 37. Subordinate to Findings of Fact 37. Subordinate to Findings of Fact 46. Subordinate to Findings of Fact 2. Subordinate to Findings of Fact 23. Adopted in substance in Findings of Fact Subordinate to Findings of Fact 38. Adopted in substance in Findings of Fact 4. Adopted in substance in Findings of Fact 3. Rejected as irrelevant and not necessary. Subordinate to Findings of Fact 5 and 6. 19.-23. The gross sales figures are adopted in substance in Finding of Fact 38. The labor costs are rejected as being irrelevant. Adopted in substance in Findings of Fact 39. Rejected as irrelevant and not established by competent substantial evidence. Subordinate to Findings of Fact 31-41. Adopted in substance in Findings of Fact 33-34. Adopted in substance in Findings of Fact 33-34 and 35 Subordinate to Findings of Fact 46. Subordinate to Findings of Fact 39. Addressed in part in Findings of Fact 41. Adopted in substance in Findings of Fact 33. Subordinate to Findings of Fact 44. Subordinate to Findings of Fact 44. Subordinate to Findings of Fact 33, 34 and 35. Subordinate to Findings of Fact 46. 37-39. Subordinate to Findings of Fact 43. Subordinate to Findings of Fact 20 and 22. Subordinate to Findings of Fact 20 and 22. "DISPUTED FACTS" Paragraph Number in Paragraph Number in the Findings of Fact Petitioner's Section in the Recommended Order Where Accepted "V Disputed Facts" or Reason for Rejection and Evidence Rejected as irrelevant. Subordinate to Findings of Fact 26, 27 and 30. Subordinate to Findings of Fact 46. Subordinate to Findings of Fact 14, 15, 16 and 22. Subordinate to Findings of Fact 14. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 2. Rejected as irrelevant. Rejected as irrelevant. Adopted in substance in Findings of Fact 23. Rejected as irrelevant. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 3 and 38. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 31. Subordinate to Findings of Fact 26 and 27. Adopted in substance in Findings of Fact 25. Subordinate to Findings of Fact 24 and 25. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 4. Subordinate to Findings of Fact 7. Adopted in substance in Findings of Fact 7. Rejected as vague and irrelevant. This subject matter is covered in Findings of Fact 7. Adopted in substance in Findings of Fact 4. Subordinate to Findings of Fact 4, 5 and 6. Subordinate to Findings of Fact 4, 5 and 6. Subordinate to Findings of Fact 9 and 10. Subordinate to Findings of Fact 10 and 12. Subordinate to Findings of Fact 13 and 18. Adopted in substance in Findings of Fact 15. Rejected as vague. This subject matter is addressed in Findings of Fact 14. Rejected as vague. This subject matter is addressed in Findings of Fact 36 and 37. Subordinate to Findings of Fact 16. Adopted in substance in Findings of Fact 16. Subordinate to Findings of Fact 13 and 18. Subordinate to Findings of Fact 25 and 26. Subordinate to Findings of Fact 27, 28 and 30. Subordinate to Findings of Fact 26 and 27. Subordinate to Findings of Fact 29. Adopted in substance in Findings of Fact 26. Adopted in substance in Findings of Fact 20. Subordinate to Findings of Fact 38. Subordinate to Findings of Fact 38 and 46. Adopted in substance in Findings of Fact 21. 41.-44. Rejected as irrelevant and not established by competent substantial evidence. Rejected as vague and irrelevant. Rejected as vague and irrelevant. Rejected as vague and irrelevant. Subordinate to Findings of Fact 19. Rejected as irrelevant. Subordinate to Findings of Fact 46. Rejected as vague and irrelevant. Rejected as vague. Rejected as constituting argument rather than a finding of fact. Rejected as constituting argument rather than a finding of fact. No proposal submitted. Rejected as constituting argument rather than a finding of fact. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Charles R. Forman Atkins, Krehl & Forman 320 Northwest Third Avenue Post Office Box 159 Ocala, Florida 32678 H. Collins Forman, Jr. Watson, Clark & Purdy Post Office Box 11959 Fort Lauderdale, Florida 33339 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Robert Scalan, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issues in each case are whether, pursuant to Sections 489.141 and 489.143, Florida Statutes (2003), a claimant is entitled to payment from the Construction Industries Recovery Fund, and, if so, whether, pursuant to Section 489.143(7), Florida Statutes (2003), Respondent may automatically suspend the residential contractor's license of Petitioner until Petitioner reimburses Respondent for the paid claim.
Findings Of Fact Petitioner is licensed as a certified residential contractor, holding license number CRC 013599. Respondent first issued a residential contractor's license to Petitioner in 1978, and Petitioner has been continually licensed since that time. Petitioner has never been disciplined by Respondent or any local governmental agency. On January 29, 2004, Respondent transmitted to the Division of Administrative Hearings seven files containing administrative complaints alleging disciplinary breaches against Petitioner for many of the transactions covered in the nine subject cases. These seven new cases have not yet been heard, and Respondent has not yet entered any restitution orders against Petitioner. In the past, Petitioner has placed his residential contractor's license with various corporations to qualify them to perform residential construction. In February 1999, Petitioner met with Lori Thomson, president of Thomson Homes, Inc., to discuss placing his license with her residential construction company. Now inactive, Thomson Homes, Inc., had been in the residential construction business since at least 1994, operating out of an office in Palm Beach County, which is also the location of all but one of the residential construction jobs that are the subject of these cases. Since 1994, Thomson Homes, Inc., had used the general contractor's license of Ms. Thomson's husband, Steven Thomson, to qualify to perform residential construction. During the time that his license qualified Thomson Homes, Inc., Mr. Thomson believed that he and his wife owned the corporation equally and that she served as the president and he served as the vice-president. In the summer of 1998, Mr. Thomson filed for divorce from Ms. Thomson. In February 1999, Ms. Thomson fired Mr. Thomson from Thomson Homes, Inc. Shortly thereafter, Mr. Thomson learned that Ms. Thomson had caused all of the stock to be issued to her when the corporation was formed, and that she had assumed all of the officer and director positions. In early March 1999, Mr. Thomson cancelled all of the building permits that he had obtained on behalf of Thomson Homes, Inc., and withdrew his general contractor's license from Ms. Thomson's corporation, effective March 20, 1999. When Mr. Thomson withdrew his license from Thomson Homes, Inc., it was in the process of building or preparing to build about ten homes. At no time during Petitioner's discussions with Ms. Thomson was he aware that Thomson Homes, Inc., was actively involved in construction. Eventually, Ms. Thomson and Petitioner agreed that Petitioner would place his residential contractor's license with Thomson Homes, Inc., and would supervise the corporation's construction activities. In return, Thomson Homes, Inc., would pay Petitioner $500 weekly and 35 percent of the profits. After filing the necessary documentation in April 1999, Petitioner qualified Thomson Homes, Inc. effective April 22 or 26, 1999. Petitioner advised Ms. Thomson that he had other work to do for another month, so he could not start with Thomson Homes, Inc. immediately. Ms. Thomson told him that she had to get financing arranged for several signed contracts and did not have any construction taking place at the time. The record is unclear whether this delay took place after the initial agreement between Petitioner and Ms. Thomson or after Petitioner formally placed his license with Thomson Homes, Inc. However, in either event, from the date that Petitioner formally placed his license with Thomson Homes, Inc., he never had a substantive conversation with Ms. Thomson about any construction activities of Thomson Homes, Inc. Not hearing from Ms. Thomson, Petitioner eventually called her to learn when he would start work. At first, Ms. Thomson took Petitioner's calls and kept explaining that the financing paperwork had been delayed. She promised to call Petitioner when construction was ready to proceed. However, Ms. Thomson never contacted Petitioner, and she later stopped taking or returning Petitioner's calls. In early August 1999, Petitioner called Thomson Homes, Inc., and learned that its telephone had been disconnected. He visited the office of Thomson Homes, Inc., but found it closed and the premises vacated. In fact, Thomson Homes, Inc., discontinued business on or about August 1, 1999. Between the date that Petitioner had qualified Thomson Homes and the point at which Thomson Homes ceased doing business, Thomson Homes, Inc., had entered into construction contracts, taken deposits and draws on construction loans, and performed residential construction--all unknown to Petitioner. Also unknown to Petitioner was the fact that Thomson Homes, Inc., had failed to perform its obligations under many, if not all, of its construction contracts during that period. The record is unclear when Petitioner withdrew his license from Thomson Homes, Inc. Petitioner sent Respondent a letter on August 30, 1999, advising of the withdrawal of his license from Thomson Homes, Inc. Later advised that he needed to file another form to effect the withdrawal, Petitioner did so in March 2000. The difference is not important in these cases. At no time did Petitioner receive any money from Thomson Homes, Inc., or any of the claimants who contracted with Thomson Homes, Inc. At no time did Petitioner enter into any contracts with any of the claimants. Only after Thomson Homes, Inc., had taken the claimants' money and abandoned work or failed to commence work did Petitioner learn that Thomson Homes, Inc., had done construction business under his license. DOAH Case No. 03-3540 involves the claim of Sandra Harvey. Ms. Harvey entered into a construction agreement with Thomson Homes, Inc., on September 9, 1998. Pursuant to the agreement, Ms. Harvey agreed to pay Thomson Homes, Inc., $25,500 for a lot and $115,260 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After pouring the slab, constructing the shell, and completing the rough plumbing, air conditioning, and electrical, Thomson Homes, Inc., stopped work on Ms. Harvey's home in early 1999. Ms. Harvey learned of the problem when Mr. Thomson called her in early 1999 and said that he could not finish the home because Ms. Thomson had taken over the business. This call probably took place no later than late March 1999, when Mr. Thomas withdrew as the qualifier for Thomson Homes, Inc. The record does not reveal the extent of payments from Ms. Harvey or her lender or the extent of completed work at the time that Thomson Homes, Inc., abandoned the job. Although the complaint is not part of this record, Ms. Harvey commenced a legal action against Thomson Homes, Inc., but not Petitioner. She obtained a default final summary judgment against Thomson Homes, Inc., on March 30, 2001, for a total sum of $46,267.32, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant breached its contract by accepting Plaintiff's deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor, services and material provided. As a result of Defendant abandoning the project, Plaintiff was compelled to retain a new contractor to complete her home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, the misapplication of construction funds and financial mismanagement Plaintiff has been forced to borrow additional funds from the construction lender. On May 3, 2001, Ms. Harvey filed a claim with the Construction Industries Recovery Fund (Recovery Fund). In response to a question asking if she had made a diligent effort to collect payment from the contractor, Ms. Harvey answered "yes," explaining she had "filed lawsuit." Ms. Harvey probably filed her claim within two years of when Thomson Homes, Inc., abandoned her job. By the end of March 1999, Mr. Thomson informed Ms. Harvey that his wife had fired him, so he could not work on her home anymore. A change in qualifier does not mean that Thomson Homes, Inc., would necessarily abandon the job, but, as noted in the Conclusions of Law, abandonment presumptively arises upon the expiration of 90 days without work. No work took place on Ms. Harvey's home after Mr. Thomson withdrew as qualifier, so presumptive abandonment took place by the end of June 1999--after May 3, 1999, which is two years prior to the date on which Ms. Harvey filed her claim. By letter dated June 5, 2001, from James Brogan of WEI Consulting Group to Ms. Harvey, Mr. Brogan states that he had investigated the assets of Thomson Homes, Inc. Mr. Brogan found no bankruptcy filing by Thomson Homes, Inc., in Bankruptcy Court in the Southern District of Florida. Thomson Homes, Inc., was a party to 282 legal actions and owed tangible personal property taxes on furniture in a model home, but the furniture was no longer available. On February 28, 2003, Respondent issued an Order approving Ms. Harvey's claim of $25,000 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Harvey is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On March 17, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Harvey and Respondent, contests the payment to Ms. Harvey and the automatic suspension of Petitioner's license. The petition contests the payment of Ms. Harvey's claim because she had made insufficient efforts to satisfy the judgment; she had failed to submit all required exhibits with her claim; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Additionally, the petition contests the automatic suspension because the payment to Ms. Harvey is not authorized, her claim is incomplete, and her judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3541 involves the claim of John and Kathleen Whitesides. The Whitesides, who lived at the time in Juno Beach, Florida, entered into a construction contract with Thomson Homes, Inc., on February 7, 1999. Pursuant to the agreement, the Whitesides agreed to pay Thomson Homes, Inc., $154,094 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After the Whitesides paid Thomson Homes, Inc., $5000 and secured a construction loan, Thomson Homes, Inc., never commenced construction. In a complaint filed April 3, 2000, the Whitesides commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to any construction," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction. The Whitesides obtained a default final judgment against Thomson Homes, Inc., on December 21, 2000, for a total sum of $20,146.67, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: "Defendant is in breach of the Contract dated February 7, 1999, and has received unjust enrichment from Defendant's failure to fulfill the terms of the Contract to build a home for Plaintiffs." On August 9, 2001, David Tassell, the Whitesides' attorney in the circuit court action against Thomson Homes, Inc., stated, in an acknowledged statement, that he had performed "numerous" real property searches in Palm Beach and Martin counties' public records and determined that Thomas Homes, Inc., "owns no real property in Martin County." The omission of Palm Beach County in the statement is unexplained. Mr. Tassell's statement adds that he has retained a private investigator, who confirmed that Thomson Homes, Inc., owns no boats, planes, or automobiles. On August 10, 2001, the Whitesides filed a claim with the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Whitesides answered "yes," but did not supply an explanation in the following blank. The completed questionnaire accompanying the claim states that the Whitesides discovered the violation in September 1999 and that it occurred in July to August 1999. On September 17, 2002, Respondent issued an Order approving the Whitesides' claim of $18,526.67 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Whitesides are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. The Whitesides probably filed their claim within two years of when they reasonably should have discovered that Thomson Homes, Inc., had wrongfully failed to commence construction, as is required for reasons set forth in the Conclusions of Law. As noted in the Conclusions of Law, presumptive abandonment arose when Thomson Homes, Inc., after entering the contract, performed no work for 90 days. Six months elapsed from the signing of the contract to the date that is two years prior to the filing of the claim. Although the record is not well-developed on the point, it is more likely than not that due diligence did not require that the Whitesides discover the abandonment within the first 90 days after it had presumptively arisen. The Whitesides' judgment is probably based on a violation of Section 489.129(1)(g), (j), or (k), Florida Statutes, as is required for reasons set forth in the Conclusions of Law. Although the record is not well-developed on this point either, it is more likely than not that the judgment is based on Thomson Homes' abandonment after entering into the contract. The judgment does not state this basis explicitly, but the complaint, on which the judgment is based, alleges abandonment. On December 23, 2002, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Respondent and the Whitesides' attorney in the circuit court action against Thomson Homes, Inc., contests the payment to the Whitesides and the automatic suspension of Petitioner's license. The petition contests the payment of the Whitesides' claim because they did not file certified copies of the final judgment and levy and execution documents and their judgment did not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes. Additionally, the petition contests the automatic suspension because Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes; Petitioner received no notice of the hearing that resulted in the Order to pay the Whitesides and suspend Petitioner's license; the Whitesides' claim is incomplete; and the Whitesides' judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3542 involves the claim of Richard and Kathleen Beltz. The Beltzes entered into a construction contract with Thomson Homes, Inc., on July 13, 1999. Pursuant to the agreement, the Beltzes agreed to pay Thomson Homes, Inc., $35,500 for a lot and $140,500 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After the Beltzes paid Thomson Homes, Inc., $17,283.70, Thomson Homes, Inc., never appeared at the closing, which had been scheduled for August 10, 1999. Nor did Thomson Homes, Inc., ever commence construction. The record does not disclose the extent, if any, to which Thomson Homes, Inc., completed construction. The Beltzes' discovery of Thomson Homes' failure to commence construction was hampered by the fact that they resided in California at the time. However, the Beltzes had obviously discovered the wrongful acts and omissions of Thomson Homes, Inc., by September 29, 1999, when they sent a letter to Petitioner demanding that he return the money that they had paid Thomson Homes, Inc. On October 19, 1999, the Beltzes signed a claim under the Recovery Fund, but the record contains no indication when the claim was filed. The completed questionnaire attached to the claim does not ask if the claimants had made a diligent effort to collect payment from the contractor. For reasons set forth in the Conclusions of Law, a claim must follow a judgment, so, the Beltzes could not file a valid claim until they had obtained a judgment. Two years from September 29, 1999, at which point the Beltzes obviously knew of a violation, requires that they file the claim, on an already- secured judgment, prior to September 29, 2001. In a complaint filed February 4, 2002, the Beltzes commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to any construction" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Beltzes obtained a default final summary judgment against Thomson Homes, Inc., on May 22, 2002, for a total sum of $23,280.20, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant performed some work on the project. However, Defendant breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and material provided. As a result of Defendant failing to pay Lienors who provided labor, service and materials to Plaintiffs [sic] real property, Construction Liens were recorded against same, which Plaintiffs had to satisfy. As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay Lienors, the misapplication of construction funds and financial mismanagement, Plaintiffs were forced to borrow additional funds from their construction lender. By unacknowledged statement dated August 23, 2002, Ms. Beltz declared that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared that she had found on the internet two pieces of real property owned by Thomson Homes, Inc., but they had been transferred within the past year. Ms. Beltz stated that she searched the database of the "Department of Motor Vehicles in Palm Beach County" in May 2000 and found no vehicles or boats registered to Thomson Homes, Inc. Lastly, she reported that she contacted the "Federal Aviation Association" at an unspecified time and found no "airplanes" registered to Thomson Homes, Inc. On November 26, 2002, Respondent issued an Order approving the Beltzes' claim of $17,222.78 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Beltzes are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On December 27, 2002, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Beltzes and Respondent, contests the payment to the Beltzes and the automatic suspension of Petitioner's license. The petition contests the payment of the Beltzes' claim because they did not submit all of the necessary exhibits with their claim; their judgment is against Thomson Homes, Inc., and not Petitioner; and their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes. Additionally, the petition contests the automatic suspension because Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes; the Beltzes' claim is incomplete; and the Beltzes' judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3543 involves the claim of Keith and Karen Deyo. The Deyos entered into a construction contract with Thomson Homes, Inc., on October 31, 1998. Pursuant to the agreement, the Deyos agreed to pay Thomson Homes, Inc., $25,500 for a lot and $123,400 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. Although the Deyos clearly suffered damages from the acts and omissions of Thomson Homes, Inc., the record does not disclose how much they paid the company, how much they had to pay unpaid suppliers and laborers, and how much construction the company completed before abandoning the job. Thomson Homes, Inc., began construction on the Deyos' home about 30-45 days after the parties signed the contract, but all work stopped in July 1999. In an undated complaint, the Deyos commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment] of the project prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Deyos obtained a final summary judgment against Thomson Homes, Inc., on March 15, 2000, for a total sum of $55,458.64, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant partially performed work under the Contract. However, it breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and material provided. As a result of Defendant failing to pay lienors who provided labor, services and materials to Plaintiffs [sic] residence, construction liens were recorded against same, which Plaintiffs had to satisfy. As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender. On April 27, 2000, the Deyos signed a claim under the Recovery Fund, but the record contains no indication when the claim was filed. A cover letter dated May 8, 2000, suggests that the Deyos mailed their claim a couple of weeks after signing it, so it was probably filed in mid-May 2000, although their questionnaire bears a revision date of November 2001, which would be beyond two years after the violation. In the questionnaire, the Deyos did not respond to the question asking if they had made a diligent effort to collect payment from the contractor. By an undated and unacknowledged statement, Mr. Deyo declared that someone at the Florida Department of State advised him that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. He also declared that he had found on the internet two pieces of real property owned by Thomson Homes, Inc., but they had been transferred within the past year. Mr. Deyo stated that he searched the database of the "department of motor vehicles in Palm Beach County" in on April 14, 2000, and found no motor vehicles or boats registered to Thomson Homes, Inc. Lastly, he reported that he contacted the "Federal Aviation Association" on April 21, 2000, and found no "airplanes" registered to Thomson Homes, Inc. On January 22, 2003, Respondent issued an Order acknowledging the Deyos' claim of $55,458.64, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Mr. Deyo is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On February 3, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Respondent and the Deyos' attorney who represented them in the action against Thomson Homes, Inc., contests the payment to the Deyos and the automatic suspension of Petitioner's license. The petition contests the payment of the Deyos' claim and suspension of Petitioner's license because Petitioner did not receive notice of the hearing at which Respondent entered the Order; the Deyos did not satisfy all requirements for payment from the Recovery Fund; their claim was not accompanied by certified copies of the levy and execution documents; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3544 involves the claim of Sylvia Reinhardt. Ms. Reinhardt entered into a construction contract with Thomson Homes, Inc., on October 14, 1998. Pursuant to the agreement, Ms. Reinhardt agreed to pay Thomson Homes, Inc., $45,000 for a lot and $147,150 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After Ms. Reinhardt paid Thomson Homes, Inc., $144,769, directly and indirectly, by way of her construction lender, the house was little more than half complete when Thomson Homes, Inc., abandoned the job. Thomson Homes also failed to pay various suppliers that filed liens, so Ms. Reinhardt had to pay $8550.41 to RTS Roofing, $882 to Palm Beach Garage Door, and $3421.32 to Woodworks, Inc. In an undated complaint filed in 1999 (actual date illegible), Ms. Reinhardt commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiff's residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. Ms. Reinhardt obtained a final summary judgment against Thomson Homes, Inc., on March 28, 2000, for a total sum of $61,471.15, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant performed work under the Contract. However, it breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and materials provided. As a result of Defendant failing to pay lienors who provided labor, services and materials for the construction of Plaintiff's residence, construction liens were recorded against same, which Plaintiff had to satisfy. As a result of Defendant abandoning the project, Plaintiff was compelled to retain a new contractor to complete their [sic] home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiff has been forced to borrow additional funds from her construction lender. On April 17, 2000, Ms. Reinhardt filed a claim with the Recovery Fund. In response to a question asking if she had made a diligent effort to collect payment from the contractor, Ms. Reinhardt answered "yes" and explained: "Telephone calls were unanswered. Certified mail requesting response were [sic] never answered. Our attorney made written and personal contact with the owner and there was no intention to pay." The claim states that the violation took place in July 1999. By acknowledged statement dated July 21, 2000, Ms. Reinhardt declared that she had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy her judgment. Ms. Reinhardt stated that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared that she had found one parcel of property owned by Thomson Homes, Inc., and valued at $115,387, but this had been sold to "Joan Thomson" on February 1, 2000. Ms. Reinhardt stated that she had found tangible personal property worth $5000. She added that she had not found any motor vehicles registered with the Department of Highway Safety and Motor Vehicles, nor had she found anything registered with the "FAA." On November 26, 2002, Respondent issued an Order acknowledging Ms. Reinhardt's claim of $58,661.44, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Reinhardt is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On December 24, 2002, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Reinhardt and Respondent, contests the payment to Ms. Reinhardt and the automatic suspension of Petitioner's license. The petition contests the payment of Ms. Reinhardt's claim and suspension of Petitioner's license because Ms. Reinhardt did not submit certified copies of the levy and execution documents; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3545 involves the claim of Louis and Ann Mahoney. The Mahoneys entered into a construction contract with Thomson Homes, Inc., on June 28, 1999, for the construction of a home in Martin County. Pursuant to the agreement, the Mahoneys agreed to pay Thomson Homes, Inc., $32,000 for a lot and $149,000 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 150 days from the date of slab pour. After the Mahoneys paid Thomson Homes, Inc., $14,500, directly and indirectly, by way of their construction lender, they suffered damages due to the acts and omissions of Thomson Homes, Inc., although, again, the record does not describe specifically how Thomson Homes caused them damage. In an undated complaint that bears no filing date, the Mahoneys commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Mahoneys obtained a final summary judgment against Thomson Homes, Inc., on April 13, 2000, for a total sum of $43,084.49, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant breached its contract by accepting Plaintiffs' deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor, and/or services provided. As a result of Defendant failing to pay lienor's [sic] who provided labor, services and materials for the construction of Plaintiffs [sic] residence, a construction lien was recorded against Plaintiffs' property, which Plaintiffs will have to satisfy. As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender. On April 30, 2000, the Mahoneys signed a claim under the Recovery Fund. Although the claim form bears no filing date, the completed questionnaire attached to the claim was filed on May 3, 2000, so that is the likely filing date of the claim. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Mahoneys answered "yes" and explained: "This is explained in General Allegations, enclosed with this paperwork." Evidently, the reference is to a copy of the circuit court complaint. By acknowledged statement dated April 8, 2002, Mr. Mahoney declared that he had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy his judgment. Mr. Mahoney stated that someone at the Florida Department of State advised him that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. He also declared that an internet search had disclosed no property owned by Thomson Homes, Inc. Mr. Mahoney stated that the "department of motor vehicles in Palm Beach County" found no motor vehicles or boats registered to Thomson Homes, Inc., and that the "FAA" had found nothing registered to Thomson Homes, Inc. On February 28, 2003, Respondent issued an Order acknowledging the Mahoneys' claim of $38,185, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Mr. Mahoney is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On March 17, 2003, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Mahoneys and Respondent, contests the payment to the Mahoneys and the automatic suspension of Petitioner's license. The petition contests the payment of the Mahoneys' claim and suspension of Petitioner's license because they did not submit all of the required exhibits; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3546 involves the claim of Dennis and Carolyn DeStefanis. The DeStefanises entered into a construction contract with Thomson Homes, Inc., on April 7, 1999. Pursuant to the agreement, the DeStefanises agreed to pay Thomson Homes, Inc., $137,455 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 150 days from the date of slab pour. After the DeStefanises paid Thomson Homes, Inc., $15,765, directly and indirectly, by way of their construction lender, Thomson Homes, Inc. never did any work, except to contract with a surveyor, who, unpaid, filed a claim of lien against the DeStefanises's lot. In an undated complaint bearing no filing date, the DeStefanises commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The DeStefanises obtained a final summary judgment against Thomson Homes, Inc., on March 15, 2000, for a total sum of $36,701.87, including attorneys' fees and costs. The judgment states, in part: Subsequent to entering . . . into the above referenced contract, Defendant, [sic] breached its contract by accepting Plaintiffs [sic] deposits and construction loan disbursements and thereafter abandoning the project. [sic] As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender. On April 19, 2000, the DeStefanises filed a claim with the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the DeStefanises answered "yes" and explained: "Went to DBPR Investigative Services, hired Attorney Barry W. Taylor [attorney in circuit court action], got Final Summary Judgment against Thomson Homes, Inc." On March 20, 2003, Respondent issued an Order acknowledging the DeStefanises' claim of $34,965.52, approving the payment of $15,765 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the DeStefanises are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On April 7, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the DeStefanises and Respondent, contests the payment to the DeStefanises and the automatic suspension of Petitioner's license. The petition contests the payment of the DeStefanises' claim and suspension of Petitioner's license because they did not submit all of the required exhibits; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. The petition contests the suspension of Petitioner's license on the additional ground that he was not the qualifier for Thomson Homes, Inc., when it and the DeStefanises entered into the construction contract. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3547 involves the claim of James and Donna Barr. The Barrs entered into a construction contract with Thomson Homes, Inc., on September 12, 1998. Pursuant to the agreement, the Barrs agreed to pay Thomson Homes, Inc., $30,000 for a lot and $140,900 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. The Barrs paid Thomson Homes, Inc., $8500 in the form of a down payment. They or their construction lender paid Thomson Homes, Inc., considerably more money and suffered the imposition of claims of lien by unpaid subcontractors and suppliers, but, after negotiating with the bank, emerged from the transaction having lost only the $8500 down payment. Thomson Homes, Inc., obtained permits in April 1999 and started construction in May 1999. Before abandoning the job, Thomson Homes, Inc., worked on the home in May, June, and July of 1999. The Barrs and their lender did not make additional payments after the Barrs found the Thomson Homes, Inc., office empty on August 1, 1999. In a complaint filed October 6, 1999, the Barrs commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Barrs obtained a final summary judgment against Thomson Homes, Inc., on May 8, 2000, for a total sum of $45,435.62, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, partially performed work under the Contract. However, Defendant breached the contract by accepting Plaintiffs [sic] deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor services and materials provided. As a result of Defendant failing to pay lienors who provided labor, services and materials for the construction of Plaintiffs [sic] residence, construction liens were recorded against same, which Plaintiffs will have to satisfy. As a result of Defendant abandoning the project, Plaintiffs will be compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienors, the misapplication of construction funds and financial mismanagement Plaintiffs will be forced to borrow additional funds from their construction lender. On June 2, 2000, the Barrs filed a claim under the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Barrs answered "yes" and explained: "I have looked into the assets of Thomson Homes Inc. and they do not have any. My affidavit is attached." The completed questionnaire states that the Barrs discovered the violation on August 11, 1999. They therefore failed to file their claim within two years of the discovery of the violation. By acknowledged statement dated May 23, 2000, Ms. Barr declared that she had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy her judgment. Ms. Barr stated that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared she had found no property owned by Thomson Homes, Inc., in Palm Beach County. Ms. Barr stated that the Department of Highway Safety and Motor Vehicles found no motor vehicles or boats registered to Thomson Homes, Inc., and that the internet site of the "FAA" had revealed nothing registered to Thomson Homes, Inc. On November 26, 2002, Respondent issued an Order approving the payment of the Barrs' claim of $8500 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Barrs are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On December 27, 2002, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Barrs and Respondent, contests the payment to the Barrs and the automatic suspension of Petitioner's license. The petition contests the payment of the Barrs' claim and suspension of Petitioner's license because they did not submit a certified copy of the levy and execution documents; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3633 involves the Joanne Myers. Ms. Myers entered into a construction contract with Thomson Homes, Inc., on February 7, 1999. Pursuant to the agreement, Ms. Myers agreed to pay Thomson Homes, Inc., $29,500 for a lot and $125,400 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. Ms. Myers directly or indirectly paid Thomson Homes, Inc., $12,840. According to Ms. Myers' claim, Thomson Homes, Inc., never commenced construction before going out of business in August 1999. In an undated complaint bearing no filing date, Ms. Myers commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiff's residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. Ms. Myers obtained a final summary judgment against Thomson Homes, Inc., on May 31, 2000, for a total sum of $28,307.77, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering . . . into the above referenced contract, Defendant breached the contract by accepting Plaintiff's deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor services and materials provided. As a result of Defendant failing to pay lienor's [sic] who provided labor, services and/or materials for the construction of Plaintiff's residence, construction liens were recorded against same, which Plaintiff will have to satisfy. As a result of Defendant abandoning the project, Plaintiff will be compelled to retain a new contractor to complete her home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiff will be forced to borrow additional funds from her construction lender. On September 18, 2000, Ms. Myers filed a claim with the Recovery Fund. In response to a question asking if she had made a diligent effort to collect payment from the contractor, Ms. Myers answered "yes" and explained: "Contractor closed corporate office--would not answer telephone calls." By letter dated November 30, 2000, from James Brogan of WEI Consulting Group to Ms. Myers, Mr. Brogan states that he had investigated the assets of Thomson Homes, Inc. Mr. Brogan found no bankruptcy filing by Thomson Homes, Inc., in the Southern District of Florida. Thomson Homes, Inc., was a party to 282 legal actions and owed tangible personal property taxes on furniture in a model home. On February 28, 2003, Respondent issued an Order approving the payment of Ms. Myers' claim of $14,080.66 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Myers is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On March 17, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Myers and Respondent, contests the payment to Ms. Myers and the automatic suspension of Petitioner's license. The petition contests the payment of Ms. Myers' claim and suspension of Petitioner's license because she did not submit evidence of a diligent search for assets; she did not submit all of the required exhibits; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. On January 4, 2004, Ms. Myers died. However, the probate court of Lancaster County, Pennsylvania, issued letters testamentary on her estate to James W. Myers III, in whose name Ms. Myers' claim is now being prosecuted. At the hearing, Petitioner contended that most, if not all, of the claims failed because the claimants had not exercised reasonable diligence in searching for assets, although Petitioner has dropped this contention in its proposed recommended order. In his petitions for hearing, Petitioner raised this contention only as to Ms. Myers. Ms. Myers, as well as the remainder of the claimants, made or caused to be made a reasonable search and inquiry for the assets of Thomson Homes, Inc. It is obvious that Thomson Homes, Inc., had no assets by the first letter from Mr. Brogan, dated November 30, 2000, nor did it have assets when Mr. Brogan issued his later letter on June 5, 2001, or when the attorney issued his affidavit on August 9, 2001. What is reasonable, in terms of a search, is dictated here by the fact that Thomson Homes, Inc., had no discoverable assets against which it could be made to answer for the considerable fraud that it perpetrated against these nine claimants. Respondent provided all of the parties, including Petitioner, with notice of its hearings at which it entered Recovery Fund orders. The petitions contend that Petitioner received no such notice in the Whitesides and Deyos cases. Although not litigated at the hearing, the presumption of notice, pursuant to the recitations set forth in each of Respondent's orders, results in a finding that Petitioner received timely notice in all cases.
Recommendation It is RECOMMENDED that Respondent enter a final order dismissing the claims against the Recovery Fund of the Beltzes and Barrs; paying the claims against the Recovery Fund of the remaining claimants, pursuant to the provisions of the orders of Respondent already issued in these cases and pursuant to the provisions of Section 489.143(1)-(6), Florida Statutes; and dismissing Respondent's request for the automatic suspension of Petitioner's license, pursuant to Section 489.143(7), Florida Statutes, without prejudice to any separate disciplinary proceedings that Respondent has commenced or may commence against Petitioner or others for the acts and omissions involved in these nine cases. DONE AND ENTERED this 17th day of February, 2004, in Tallahassee, Leon County, Florida. S 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 17th day of February, 2004. COPIES FURNISHED: Bruce G. Kaleita Law Office of Bruce G. Kaleita, P.A. 1615 Forum Place, Suite 500 West Palm Beach, Florida 33401 Adrienne C. Rodgers Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1023 Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue is whether the Department of Transportation's calculation of Petitioner's replacement housing payment determination was correct.
Findings Of Fact The Department is the state agency responsible for acquiring rights-of-way for highway construction and widening in the State of Florida. As part of a federally funded right-of-way acquisition project, the Department acquired the house that the Gheorghes were renting. The Gheorghes thus became eligible for relocation assistance under the Surface Transportation and Uniform Relocation Assistance Act of 1987, Public Law No. 100-17, codified at 42 U.S.C. § 4601 et seq. (Uniform Act).1/ Chris Scodius is a senior right-of-way specialist with American Acquisition Group, a consulting firm that provides acquisition, relocation, appraisal, cost estimating, and property management services. The firm provides these services to the Department pursuant to contract. In November 2011, Mr. Scodius was assigned the task of calculating a revised replacement housing estimate for the Gheorghes' relocation.2/ Mr. Scodius estimated that he has performed a similar function on over 50 relocation projects, including 25 projects involving the Department. Mr. Scodius gathered information on three comparables to the displaced dwelling and chose the one most comparable for the computation of the rental assistance payment. He selected the comparables by browsing websites such as Realtor.com and by visiting local realtors and property management companies to find dwellings that were functionally equivalent to the displaced dwelling. The dwelling from which the Gheorghes were displaced was at 1910 Southampton Road on the south side of Jacksonville, near Atlantic Boulevard and I-95. Mr. Scodius' report described it as follows: The single family house facing Southampton Road is a one-story, wood frame residence, built off-grade on a wood joist floor system with asbestos shingle siding and an asphalt shingle roof on a pitched rafter system, originally constructed 68 years ago in 1943. Interior floor coverings are hardwood and carpet, walls and ceilings are of plaster on lathe. A central system conditions air with heat and cooling. Two window air units supplement cooling capacity of the dwelling. The 1093 square foot conditioned portion of the house is divided into six rooms in addition to the single full bathroom. These six rooms include a living room and a dining room, a kitchen, a small office and three bedrooms. Attached to the front of this conditioned space is a small, covered entry stoop and steps with a small covered entry stoop at the rear behind the garage. There is a one-car enclosed garage attached to the west side of the house with doorway access only to the exterior of the house at the dirt driveway. The appraisal prepared for FDOT indicates that the house is of average quality construction and interior finish, is in average condition and indicates the building structure has a remaining economic life of about 35 years. The described home- site contains 4,495 square feet more or less. Ingress and egress frontage along Southampton Road is 50 feet. This dwelling is served by a public potable water supply and a public wastewater disposal system. The comparable dwellings were located at 7416 Silver Lake Terrace in Arlington; 2427 Sam Road, between University Boulevard and Dean Road; and 7913 Jasper Avenue in Arlington. None of the comparables was in the same neighborhood as the Southampton Road house, but none was more than 5.3 miles away and all were on the south side of Jacksonville in similar neighborhoods. Mr. Scodius chose the Silver Lake Terrace property as the most comparable and used it for the calculation.3/ This was a 1,549 square foot single family home consisting of three bedrooms and 1.5 bathrooms, built in 1980 with a recently renovated interior. Mr. Scodius described it as follows: Similar to the subject, this dwelling has one full bathroom and its conditioned space is further divided into 6 rooms. These rooms consist of a living room, dining room, kitchen and three bedrooms. Accessed from outside the interior space of the dwelling, but enclosed and under the carport roof is a small utility room equipped with connections for a washer and dryer. The general construction and material of the interior is similar to the subject, with hardwood, tile and carpeted floors and painted sheet-rock walls. This home is heated and cooled by an electric, central, ducted system. Potable water is from a public supply and wastewater disposal is by a private septic tank and drainfield system. Exterior features include a fenced back yard with wood storage building at the back property line. Before making his selection, Mr. Scodius visited the Southampton Road and Silver Lake Terrace properties to determine their comparability in person. He calculated that the Silver Lake Terrace property was 4.7 miles from the Southampton Road property and that the Silver Lake Terrace property was within two miles of a variety of shopping, restaurants, banks, schools and community services. He inspected the dwelling and determined that it met the standards of "Decent, Safe and Sanitary" (DS&S) prescribed by the Federal Highway Administration and the Uniform Act. Mr. Scodius concluded his report on the Silver Lake Terrace property as follows: This dwelling has been chosen as the number one comparable dwelling because of its distinct similarity to the subject in terms of overall room count, number of bedrooms, overall living area and close proximity to the subject neighborhood. Given its quiet, residential setting within easy access to shopping and being within 4 miles of the displacee's church of choice, this available rental dwelling appears to be the best suited of the three to this displaced family's particular needs and lifestyle. Mr. Scodius testified that he chose this house in the Arlington area because he believed it to be the most functionally equivalent comparable, and because it was actually superior to the Southampton Road property in which the Gheorghes were currently residing. Mr. Scodius explained that the number one comparable is used only as the basis for computing the amount of the rental assistance payment. Though the number one comparable must be available, the displaced persons are not required to move into it. They may take the rental assistance payment and move into a dwelling of their choosing. After choosing the number one comparable dwelling, Mr. Scodius prepared a computation of the rental assistance payment for the Gheorghes. To arrive at a final rental assistance payment number, the base rent for the current dwelling, including average utility payments over 12 months, is subtracted from the advertised monthly rental rate for the comparable, including information obtained from the Jacksonville Electric Authority (JEA) as to average utility payments for a representative 12-month period. The resulting number is then multiplied by the 42 months for which payments are available in order to arrive at a final lump sum rental assistance payment. In this case, the advertised market rent of $950.00 plus average monthly utilities of $217.50 as provided by the JEA for the Silver Lake Terrace property totaled $1,167.50. The base rent for the Southampton Road property was the actual monthly rental of $525.00 plus average monthly utilities of $437.21 for a total of $962.21. The difference of $205.29 was multiplied by 42 to arrive at a rental assistance payment of $8,622.18. The federal relocation assistance regulations provide that the maximum payment for rental assistance is $5,250.00. 49 C.F.R. § 24.402(a). However, the regulations also provide for "replacement housing of last resort" in situations where replacement dwellings are not available within the prescribed monetary limits. 49 C.F.R. § 24.404. The Department determined that the Gheorghes were eligible for a last resort payment as "the best alternative allowable within the established procedure in order to relocate Mr. Gheorghe and his family into a decent, safe and sanitary replacement dwelling in a timely manner." Therefore, the Gheorghes were paid $8,622.18, plus a $1,500.00 moving assistance fee. At the hearing, the Gheorghes4/ voiced several criticisms of the Department's methodology in selecting the number one comparable and its calculation of the rental assistance payment. First, Ms. Gheorghe complained that the chosen comparables were all several miles from the Southampton Road house despite the fact that there were three available rental properties in her current neighborhood. However, no evidence beyond Ms. Gheorghe's bare assertion was provided as to the existence of these rental properties, and no particulars were offered as to their functional equivalence to the Gheorghes' Southampton Road dwelling. Next, the Gheorghes claimed that the basis for comparison was skewed because the rent they paid on the Southampton Road house was well below market value. In renewing the Gheorghes' lease in 2006, the landlord acknowledged they were good longtime tenants and therefore charged them only $525.00 per month. Mr. Scodius testified that the federal guidelines do not focus on price but on functional equivalence. The amount of rent currently being paid by the Gheorghes was an irrelevant factor in his selection of comparables. Further, if it is true that the Gheorghes' rent was artificially low, this factor worked in their favor by raising the amount of rental assistance to which they were entitled. Under the formula, the current rent is subtracted from the advertised rent of the number one comparable. The lower the current rent, the higher the resulting rental assistance calculation. This objection by the Gheorghes is not a ground for disturbing the calculation made by Mr. Scodius. The Gheorghes complained that the Silver Lake Terrace house could not be considered comparable to the Southampton Road house because the latter was connected to city water and sewage, whereas the former, despite the statement in Mr. Scodius' report that it received potable water "from a public supply," was actually serviced by a well and septic tank. Mr. Knight reasonably testified that a well and septic tank provide the same function as city water and city sewer. The well provides potable water to the dwelling and the septic tank provides a means to discharge the waste. While some people might prefer one to the other, the well and septic tank are functionally equivalent to city water and sewage and meet the DS&S standard.5/ The Gheorghes attacked the comparability of the JEA bills for the Southampton Road house and the Silver Lake Terrace house. They claimed that the latter was unoccupied for a period of the time considered by Mr. Scodius in his calculation, and therefore the utility bill for the house was artificially low. However, Mr. Scodius plausibly testified that he specifically asked JEA for an average utility bill for the last 12 months in which the property was occupied. To the best of his knowledge, JEA gave him information on an occupied dwelling. It is noted that the average monthly utility bill for the Gheorghes' home on Southampton Road was almost exactly double that of the Silver Lake Terrace house. It is also noted that the average utility bills for the comparable houses on Sam Road and Jasper Avenue were $211.25 and $228 respectively, far closer to the Silver Lake Terrace bill than to the Gheorghes' Southampton Road dwelling. Unless JEA provided Mr. Scodius with bad information as to all three comparable houses, it appears that the Gheorghes' utility bill is the outlier among these comparables.6/ Ms. Gheorghe argued that she should have been reimbursed for pet deposits at her new residence because the Department was well aware at the outset of negotiations that she had a dog and more than one cat. However, the Gheorghes could point to no provision of the Uniform Act or its implementing rules that authorize or require the agency to pay the relocation costs for pets. Mr. Knight affirmatively testified that the Department is not authorized to consider pet deposits as expenses eligible for reimbursement. At the hearing, the Department did not contest Ms. Gheorghe's testimony that some of its representatives dealt high-handedly with the Gheorghes during the relocation process. Much of Ms. Gheorghe's presentation had less to do with the financial data in question than with what she considered her family's poor treatment at the hands of certain Department personnel. Ms. Gheorghe's complaints were heartfelt and appeared legitimate. It is hoped that being forced to undertake the time and expense of litigating this matter has demonstrated to the Department that good will and civility are not only desirable qualities in a public agency but cost effective ones as well.
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 the petition of Stefan and Dana Gheorghe for an additional replacement housing payment. DONE AND ENTERED this 30th day of April, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 30th day of April, 2013.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was subjected to a discriminatory employment action based upon his having a disability and, embodied within that question, whether he has a physical impairment which meets the legal definition of disability.
Findings Of Fact The Petitioner was employed by the Respondent, Florida Parole Commission, from July 2003 until January 29, 2007, when the Petitioner resigned. He had worked for the Respondent as a clerk on a part-time basis preparing inmate files for imaging. In October of 2003 he was promoted to records technician in charge of the imaging section. He was again promoted in 2004 to the position of Operations and Management Consultant II. He provided supervision for other employees and coordinated the work-load of the part-time workers (OPS workers) employed in the imaging section. The Respondent is an Agency of the State of Florida that determines which convicted criminals receive parole, the setting of the policies and conditions of parole and other supervised inmate release programs. It also investigates violations of supervision, establishing the terms and conditions of an inmate's release and has a reporting function to the Florida Board of Executive Clemency. On March 1, 2005, the Petitioner experienced the first of a serious of incapacitating physical episodes at work. He had to be removed from the office by ambulance for medical attention. Soon thereafter he was diagnosed as having acute dysautotonomia. Dysautotonomia is an incurable dysfunction of the autonomic nervous system, believed to be caused by a virus. The ailment include symptoms of gastrointestinal dysfunction, significant loss of blood pressure, extreme fatigue, panic attacks, as well as clinical depression. The Petitioner received emotional counseling for his depression and, according to Dr. Kepper, his treating physician, his incapacity is "intermittent and unpredictable." The Petitioner adopted a practice of sitting in his chair and elevating his feet when he had a relatively minor episode. The episodes might last for up to an hour. During a minor episode he would become extremely fatigued and dizzy, was unable to eat or speak coherently and could only lie down to rest until the episode has passed. In the event of a major episode he might experience blackouts, was unable to care for himself and required emergency medical assistance in order to receive intravenous fluids. During major episodes he would summon an ambulance, his girlfriend, or his father to take him to an emergency room for medical attention. The Petitioner's supervisor, Linda Summers, knew that the Petitioner was having these episodes and was resting in his office, prior to July 1, 2006. She allowed him to rest in his office with the door closed when he experienced a minor episode. On June 5, 2006, the Petitioner begin feeling badly and felt that he was about to "pass out." His supervisor, Ms. Summer, asked him if she needed to call an ambulance, as had been done in the past, and he declined. She was concerned about him and suggested that he sit in his office with the door closed until he felt better. Sometime between 3:30 and 4:00 p.m., that day he begin feeling better and said he was going to attempt to drive to the emergency room. Ms. Summers was concerned about his safety and tried to dissuade him. He left, however, but shortly thereafter returned and an ambulance was called to take him to the emergency room. After this, during his episodes, he adopted a practice of closing his office door and putting up a "do not disturb" sign. The Respondent accommodated the Petitioner in this practice, although he had not made a formal request for accommodation, over a period of approximately one and one-half years. The Department of Management Services (DMS) has a rule which was in effect prior to the Petitioner's hiring, which requires that an employee be absent for five consecutive days in order to be eligible to receive donated sick leave. The Respondent has followed this rule since before the Petitioner was hired and applied its standard to all employees. The only occasions when the Respondent has waived this rule-based policy for an employee, was twice in favor of the Petitioner in July and in August of 2006. On those occasions he received 132 donated sick leave hours. Even though the Respondent consistently followed this DMS requirement, it did not actually update its procedure in its personnel handbook to reflect the rule. The Respondent takes the position that if there is a discrepancy between its personnel handbook and the adopted administrative rule, then the rule controls. In any event, on October 10, 2006, the Respondent issued a Revised Procedure Directive, Number 2.02.15, entitled: Attendance and Leave. This directive updated the Respondent's sick leave policy to correspond with its actual policy and with the current DMS rules. It updated the Respondent's Americans With Disabilities Act Policy to reflect established agency policy. Pursuant to this policy (or rule interpretation) the Petitioner received donated sick leave from 18 Respondent employees, including donations from the general counsel, and from the Petitioner's supervisor, in a total amount of 273 hours. The Respondent requires a note from a physician if an employee is absent due to illness for three days in a 30-day period. The Respondent does not deem it a good business practice to waive that requirement nor did it choose to waive it as a reasonable accommodation. On June 16, 2006, the Petitioner suffered a debilitating episode at his office at around 9:00 a.m. He went into his office and put up a "do not disturb" sign for about 30 minutes. A birthday party was occurring in the office at that time and several employees commented concerning their wish to go into their offices put up such a sign and take a nap. Ms. Summers discussed this with the Respondent's Chairman, the former Director of Operations, and the former Human Resources Administrator, Beatriz Caballero. Ms. Summers was thus advised that this could not continue. She therefore talked to the Petitioner and told him that she was sorry that he felt badly but that she could no longer allow him to put up a do not disturb sign as other employees were negatively affected by it and, inferentially, she felt that it affected employee morale. Ms. Summers also established that she and the Petitioner had discussed the Petitioner's doctor's note and what it stated concerning the intermittent nature of his episodes. She told him that the doctor needed to make suggestions about what he should do when he suffers one of the episodes. She also suggested to Mr. Duncan that he probably should go home when he has one of the sick episodes. His response was that as long as he could sit down for a while and be quiet he would start feeling better and that he would hate to drive all the way home and then have to come back. He then said that he would simply go out to his truck in the parking lot and recover from an episode if one occurred. Ms. Summers told him that was an acceptable option and that it was a matter for his own decision. She also told him to be sure to tell her where he was going so that if he did not come back within a reasonable time she could go look for him. She was concerned about his condition and safety. She also told him to leave her a note telling where he had gone and the appropriate time when he left. He indicated that he would do so. At the end of June 2006, Ms. Summers informed the Petitioner that his absences were affecting his productivity and negatively affecting his supervision of the imaging section. This was because the OPS staff, mostly college students, were observed sitting around talking, talking on cellular phones, coming in late and leaving early because of a lack of supervision. It was the Petitioner's responsibility to supervise them and the situation had been deteriorating, in relation to the Petitioner's absences. Director of Operations Gina Giacomo found that the imaging section was not operating at an optimal level because the OPS employees, were undisciplined, and good productivity was not being achieved because of a lack of oversight. She attributes this, in part, to the Petitioner's habit of arriving at work at 7:00 a.m. but leaving at 3:30 p.m. After 3:30 p.m. to the end of the day his employees were unsupervised. The OPS employees were taking very long lunch breaks, leaving early and coming in late and not accounting for their work hours properly. It was the Petitioner's duty to approve the employee's time cards. As a result of the Petitioner's lack of oversight, three of the four employees were under-paid. Also, there were over expenditures as to OPS employees, resulting in a deficiency in the Agency's OPS budget, because the Petitioner allowed some OPS employees to work 35-40 hours per week when they were only supposed to work around 20 hours per week. This had an obvious adverse impact on the Agency's budgeting operations. Because of the employee attendance problems and time- keeping problems, the Respondent Agency initiated a time clock procedure for the imaging section around the end of September 2006. On August 1, 2006, the Petitioner sent the Respondent a written request entitled "Request for Reasonable Accommodation Under the Americans With Disabilities Act", requesting that: 1) he not be required to provide a physician's note when sick as it related to his pertinent disorder; 2) that he be permanently exempt from the five-day rule for sick leave donation as it related to his current disorder; and 3) that he be allowed to close his door while having a minor episode. The Respondent's Human Resources Administrator responded to this request by a memo dated August 8, 2006, declaring that the Petitioner's request to receive a permanent exemption from the five-day rule for sick leave donation eligibility was not a reasonable accommodation request and would not be granted. The Respondent also declared, through the Human Resources Administrator, that the sick leave donation policy is designed for all State of Florida employees to follow. The Respondent contends that the Petitioner's request for the Respondent to exempt him from a medical inquiry (i.e. the provision of a doctor's note or explanation for his illness and/or absence) is also unreasonable. The Respondent took the position that requiring the provision of a physician's note, as it relates to the Petitioner's current disorder, is job-related and consistent with business necessity concerning an employee's ability to perform essential job functions and whether he will be impaired by a medical condition. It is therefore important for an employee's physician to document the employee's need to be absent from work, as well as his ability to return to work and his ability to perform his job functions. The Respondent in essence took the position that while the ADA requires reasonable accommodation to enable qualified disabled persons to perform the essential functions of their jobs, that donated sick leave is not related to ADA requirements, but rather is a benefit provided under state personnel rules. The Respondent did however suggest to the Petitioner that he confer with his supervisor and work with her in trying to make up his missed hours so that he would not have to suffer so many leave-without-pay hours. The Respondent informed the Petitioner that the DMS rule involved clearly states that there is a five-day waiting period before donated sick leave can be used. It acknowledged that the Respondent's internal procedure directive did not specify the five-day rule because it was inadvertently omitted. Because of that oversight the Petitioner's last request dated July 28, 2006, was honored. Thereafter, the internal procedure directive was to be corrected by the Respondent in order to reflect enforcement of the five-day rule for sick leave donation. The Respondent informed the Petitioner that he must follow the requirement for sick leave donation requests in the future. Concerning the Petitioner's request for the accommodation of closing his door while he was having a minor episode, the Respondent told the Petitioner that the request would be reviewed further, but that the Respondent needed information from the Petitioner's physician specifying how the accommodation would assist the Petitioner in performing his essential job functions. The Respondent informed the Petitioner that the documentation needed from his physician should specify the duration the door should be closed, as well as providing any useful accommodation suggestion the doctor might have as it relates to the Petitioner's condition and his request. The general counsel for the Respondent made a determination that the Respondent should not allow the Petitioner to shut his door and remain on the premises due to liability concerns as well as concerns for the Petitioner's health. Instead of providing the requested documentation from the physician to support his accommodation request, on August 17, 2006, the Petitioner filed a Complaint of Discrimination with the Florida Respondent on Human Relations. Before filing that Complaint he never made any complaint to his supervisor concerning any perceived discrimination, or as to being treated differently due to his alleged disability. The Petitioner provided a note from Dr. Kepper, his physician, on August 21, 2006, in which the physician stated that the Petitioner was unable to perform his job from August 16, 2006 to August 30, 2006. There were multiple absences from work during that period of time, as well as abbreviated work days due to the Petitioner's medical condition and other reasons. A meeting was held on December 7, 2006, between Linda Summers the Petitioner's supervisor, the Petitioner, and the Director of Operations, Gina Giacomo. Ms. Giacomo discussed with the Petitioner the need for him to communicate better with his supervisor and for him to come to a better understanding about the importance of the "system" and people not being informed of it. She also addressed the fact that his unit was a very undisciplined unit and that the productivity was not what it should be due to lack of oversight. She attributed much of this problem to the fact that the Petitioner came into work at 7:00 a.m. and left at 3:30 p.m. She determined that there was no reason why he had to start his duties at 7:00 a.m. and changed his work hours so that thenceforth he would work from 7:30 a.m. to 4:30 p.m. with an hour for lunch. She did this in order that he might more closely supervise the part-time, OPS, college-student employees who needed more structure and oversight in the work place. Ms. Giacomo also discussed the fact that the Petitioner's supervisor, Ms. Summers, was frustrated concerning his attendance. It caused difficulty when he was absent for frequent days or partial days because it is such a small agency that it was difficult for other staff members to perform his duties with full-time duties of their own to perform as well. She therefore discussed his schedule changing, her concerns about his working more closely with his supervisor, and his need to inform all of his staff that their schedules were going to change. They were going to thereafter perform all their OPS hours between 7:30 a.m. and 4:30 p.m. and to function more as a team. She also informed the Petitioner that the time-sheets which had been used to account for his employee's work hours were not accomplishing their purpose and that all but one of the time-sheets that he had approved were incorrect. Consequently, she announced the inauguration of a punch-clock procedure for people arriving at and leaving work, so that an accurate accounting of work hours and employees' pay could be accomplished. During the discussion at the December 7th meeting, the Petitioner informed Ms. Giacomo concerning when he could address the time sheet problem, the OPS staff schedule change, and certain other issues. She wanted a time period from him as to when the matters could be cleared up and corrected. That meeting lasted approximately 45 minutes. She remained in the building except during the lunch time period that day but carried two cell phones with her at all times, her personal one and an agency-issued phone. When she got back to her office by mid-afternoon, however, the Petitioner had left with her executive assistant a medically-related form that he had to have already had in his possession before the meeting, which indicated that he would not be able to work from approximately December 4th, to January 9th. He had been present at the meeting and talked about the above-referenced issues without ever mentioning to his supervisor or to the director his need to be off from work for more than a month. He never addressed the issues he was instructed to handle with regard to the OPS employee schedule, etc., all of which finally had to be handled by Ms. Giacomo and Ms. Summers. Upon assuming her duties in September 2006, Ms. Giacomo became very concerned with the lack of professionalism and the management of the imaging section under the Petitioner's supervision. She had four different meetings to try to determine a division of the duties of the Petitioner's position which could be performed by other persons in the office who also had their own full-time duties, because of the Petitioner's absences. Over the course of four or five meetings she re-arranged and re-assigned the functions of the office, on an informal basis, so the functions the Petitioner normally would be responsible for were being taken care of by other staff members. The Petitioner never actually requested assignment to other duties in the Agency as an accommodation. Ms. Giacomo, however, as found above re-assigned functions of his position to other people. She had a meeting with all OPS workers and the permanent, full-time staff and announced that she wanted the Petitioner to be able to be at the meeting, but that it had already been delayed for two weeks because of his absence, and that she needed to proceed and restore the full functioning of the office. She announced that he would not be coming back to his supervisory position but would be greeted "with open arms." She also announced that the Petitioner would be given the same amount of pay, with the same job title, but would be re-assigned to as yet undetermined duties with the Agency. She then informed everyone what each person was going to be doing in terms of performing parts of the functions of the Petitioner's position, so that the office and Agency could function better. On January 16, 2007, the Petitioner provided a note from Dr. Kepper excusing him from work beginning January 10, 2007, stating in effect that he should be excused from work from that date forward until Dr. Kepper could determine whether he was fit enough to resume his normal duties. Due to his medical condition and treatment the doctor stated that the Petitioner was unable to perform his regular duties and would continue to be treated. The doctor stated that the Respondent would continue to be provided updates on the Petitioner's work status, but that the Petitioner, at that time, would have to be placed on out-of-work employment status. Thereafter, on January 29, 2007, the Petitioner submitted his resignation letter. The Petitioner was never terminated nor was he asked to resign by the Respondent. No disciplinary action had ever been taken against him. The Petitioner never asked the Respondent concerning the possibility of being moved to another job or position within the Agency. The evidence shows that between March 2005 and January 2007, the Petitioner worked 3,674.25 hours out of 4,064 regularly scheduled work hours.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, and the pleadings and arguments of the party, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 21st day of September, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 21st day of September, 2007. COPIES FURNISHED: Wilton B. Duncan, III 2728 Oakleigh Court Tallahassee, Florida 32399-2350 Bradley R. Bishoff, Esquire Florida Parole Commission 2601 Blair Stone Road, Building C Tallahassee, Florida 32399-2450 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioners are husband and wife. They were required to locate to another home due to the acquisition of right-of-way by Respondent for construction of Interstate Highway 75 in Collier County, Florida. It is undisputed that Petitioners are eligible displacees under the federal government's Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and are displaced persons entitled to relocation assistance within the definition of 49 Code of Federal Regulations, Subtitle A, Section 25.2(f). Petitioners and their children resided in two of three travel trailers which they owned on a five acre tract of land in a rural, wet area of Collier County, Florida. Both Petitioners were employed. He drove daily approximately 80 miles each way to his job as a taxi cab operator in Fort Lauderdale, Florida. She worked part time as a store clerk in a business near their home. On February 23, 1986, an employee of Respondent completed a household survey questionnaire regarding Petitioners' residence. The purpose of the questionnaire was to decide requirements governing assistance to be provided them in view of their future relocation to other housing as a result of their displacement by the interstate highway construction. The survey establishes that Petitioners owed $2,000 on their property, and that replacement housing was required for the husband, wife and two children of opposite sexes. The husband signed the survey instrument. Petitioners' property had an appraised value of $25,950. Of this amount, $17,550 reflected land value and $8,400 was the value of improvements. Petitioners initially received $25,950 when their property was acquired by Respondent through eminent domain proceedings. In the absence of comparable, utility equipped acreage in Collier County where applicable zoning restrictions would permit the placement of mobile homes, Respondent upgraded the type of replacement housing used to determine the amount of relocation assistance due to Petitioners. The effect of such an upgrade, termed "last resort housing," is to permit a higher limit on the payment to be made by Respondent to Petitioners for replacement housing. In this case, the upgrade consisted of Respondent's use of home sites with permanent houses on them in the calculation of the payment to be made to Petitioners. Respondent used three comparable parcels of property in the Golden Gate subdivision near Naples, Florida. The highest priced property was $53,900. This area is approximately 30 miles West of the site of the land previously occupied by Petitioners. A determination of comparable property is generally limited to a 50 mile radius of the dislocatee's property and, when possible, closer to the job of the primary income producer in the family. In this instance, no properties were available in the 50 mile radius to the East of Petitioners' property in the direction of Fort Lauderdale due to the immediate proximity of the Florida Everglades. On April 21, 1986, the comparable properties were selected, approved and determined by Respondent's staff to comply with the relocation program's requirements that comparable housing parcels used to compute the replacement housing payment meet decent, safe and sanitary living standards. Those standards require that comparable properties provide a minimum living area for the number of affected inhabitants, as well as appropriate utilities. The process of computing a replacement housing payment requires that the property appraisal of the dislocatee's property, including improvements less depreciation, be subtracted from the highest priced comparable to provide the amount due to the displaced property owner. Due to the condition of Petitioners' travel trailers, septic tank and well, those items were depreciated 40 per cent which resulted in a value of $4,279. Respondent rounded this amount off to $4,300. This final amount plus the land value of Petitioners' property of $17,500 came to a total of $21,800 for purpose of determining an amount to be subtracted from the highest priced comparable property value of $53,900. The result of this subtraction, or $32,100, reflected the amount of the replacement housing payment which Respondent determined to be due to Petitioners. The net effect of Respondent's depreciation of Petitioners' property improvements resulted in a reduction of the amount to be subtracted from the highest priced comparable property value which, in turn, increased the amount of the replacement housing payment. Dislocatees may acquire new property wherever they wish without regard to the location of comparable properties used to calculate their relocation assistance payment, although such comparable properties must be available to dislocatees who desire to purchase them. Petitioners contracted with a builder to construct a home in Palm Beach County. After payment by them of $4,000 to this individual, he vanished with their money. Subsequent to the experience with the unreliable West Palm Beach builder, Petitioners indicated to Respondent a desire to have their relocation payment computed again, this time on the basis of replacement housing in Broward County, Florida. Three new comparables were selected by Respondent's staff in that county. As had occurred in Collier County, Respondent's staff encountered difficulty finding comparable acreage property due to the lack of availability of such property which would meet restrictions imposed on such acreage with mobile homes. The result was that Respondent's staff determined no comparable acreage to be available in Broward County, Florida. Palm Beach County, Florida, was also searched by Respondent staff for comparable properties, but this effort was abandoned as a result of Petitioners expressed greater desire to relocate in Broward County. On June 26, 1987, three residences were selected by Respondent from the Pembroke Pines area Broward County to serve as comparables in the computation of the amount of the relocation housing payment. The evidence establishes that these homes were either "double wide" trailers or permanently affixed modular homes. These properties were selected because the comparables used in Collier County were no longer available. These residences were an "up grade" from the small travel trailers inhabited by Petitioners. Since the selling value of the highest priced Broward County comparable was only $49,500, the result, after subtraction of the estimated value of $21,800 for Petitioners' property, was a housing payment of $27,700. Since this payment amount is less than the amount originally computed by Respondent's staff, its use is prohibited by relocation program guidelines. Therefore, the previously computed greater amount of $32,100 for the area near Naples, Florida, became the final replacement housing payment. The evidence establishes that Petitioners filed an application and claim for replacement housing payment on March 23, 1987, and were paid $32,100 by state warrant dated April 28, 1987. Advanced moving expenses of $400 were paid to them by state warrant dated September 9, 1987. A state warrant for $1,497.26 to reimburse incidental expenses was issued to Petitioners on December 1, 1987. In total, it is found that Petitioners received $59,947.26 when the complete amount of relocation expense payments is added to the $25,950 amount also paid to them by the State of Florida in initially acquiring their property. Petitioners moved from their property in Collier County during July or August 1987. Petitioners located a house in West Palm Beach, Florida, but were unable to meet mortgage qualifications. However, after a high down payment with approximately half of the funds received from Respondent, they purchased the home. The amount of indebtedness remaining on the home is slightly less than $60,000 and has created a financial problem for Petitioners. Their desire is for Respondent to pay off the remaining mortgage amount or provide an acre of land with trailers in which to live. Respondent is authorized to administer the federal government's Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Respondent also administers a corresponding relocation aid program established by state law. Rules governing the state program are almost a verbatim duplicate of the federal program. Respondent's right-of-way procedures manual, comprised of state rules governing nonfederal relocation assistance, and federal regulations are used in administration of federal relocation aid projects.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioners' claim for further payment. DONE AND ENTERED this 18th day of January, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 18th day of January, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings 1. 2. Unnecessary to result reached. Addressed. Unnecessary to result reached. Not supported by weight of the evidence. 5-6. Unnecessary to result reached. Self-serving assertion; not supported by the weight of the evidence. Addressed. Unnecessary to result reached. 10-14. Addressed. Adopted by reference. Addressed. Unnecessary to result reached. Addressed. Rejected, not supported by weight of the evidence. Rejected as a conclusion or recommendation, not a factual finding. Respondent's Proposed Findings 1-5. Addressed in part; remainder unnecessary to result. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ann Porath, Esquire 12773 West Forest Hill Boulevard Suite 209 West Palm Beach, Florida 33414 Thomas H. Bateman, 111, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Honorable Kaye N. Henderson Secretary Haydon Burns Building Attn: Eleanor F. Turner, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Florida Administrative Code Rule 59C-1.018(3)(c) requires that a request for an extension of a CON's validity period be made 15 days in advance of the period's expiration (the "15-Day Requirement.") The issue is whether the Agency for Health Care Administration should waive the 15-Day Requirement for Miami Jewish Home.
Findings Of Fact CON 9893 and its Construction Timeline On June 29, 2007, AHCA awarded CON 9893 (the "CON") to MJHHA. The CON authorized MJHHA to establish a 30-bed long term acute care hospital (LTCH) in Dade County. The Agency determined that the LTCH authorized by the CON was needed and would be of benefit in the service district (AHCA Acute Care District 11) where it would be located. It also determined that the LTCH would enhance access to health care in conformance with the goals of the Health Facilities and Services Development Act. The determination followed a contested comparative review proceeding at DOAH in which it was found that Miami Jewish Home had "demonstrated need for its project through a thorough and conservative analysis." MJHHA Ex. 26, p. 49, para. 106. All findings of fact and conclusions of law of the administrative law judge in the Recommended Order were accepted by the Agency in its Final Order that approved MJHHA's CON application. Un-rebutted evidence in this proceeding, moreover, establishes that the need for the LTCH continues to exist in AHCA Acute Care District 11. Miami Jewish Home proposed to locate the LTCH on its Douglas Gardens Campus, the site of a broad array of health and social services that span the continuum of health care. The continuum includes services related to community outreach, independent and assisted living facilities, nursing home diversion, chronic illness, outpatient programs, acute care hospital, rehabilitation and post-acute care, Alzheimer's disease, pain management, skilled nursing and hospice. The community surrounding the campus is an area known as "Little Haiti," one of the most densely populated areas of Dade County. The community is primarily low-income. It is a federally-designated "medically underserved area." Miami Jewish Home is a "safety net" provider of health care services, one of only 20 or so in the entire state. Its skilled nursing facility is the largest provider of Medicaid skilled nursing services in the state. Miami Jewish Home operates Florida's only Teaching Nursing Home program. Medical students, interns, and other health professionals rotate through the service program in the nursing home and hospital on a regular basis. In its teaching capacity, Miami Jewish Home serves as a student and resident training site for the University of Miami and Nova Southeastern University Medical Schools and the Barry University, Florida International University and University of Miami nursing schools. The LTCH was proposed as a hospital-in-a-hospital (HIH), that is, it would be part of an existing hospital and constructed within the hospital's existing structure rather than as a free-standing facility. Its status as an HIH meant that the construction required for it to achieve operable status would be more in the nature of renovation as opposed to breaking new ground as in the case of a free-standing LTCH facility. The Construction Deadline Paragraph (a) of Subsection 408.040(2), Florida Statutes, requires successful applicants for CONs to commence construction within 18 months of the CON's issuance. If construction is not timely commenced, the CON validity period expires and the CON terminates. By operation of law, therefore, December 28, 2008, was the deadline for the commencement of construction (the "Commencement of Construction Deadline" or the "Deadline"). See Finding of Fact 1. The Approach of the Deadline In the wake of the issuance of the CON, Miami Jewish Home worked to develop the project approved by the CON and to implement it. Shortly after the award of the CON, Miami Jewish Home contracted for the construction and development work with an architectural firm, Louis Sousa & Associates ("Sousa"). The firm was engaged "to do preliminary drawings to cost out [the] project and get … more detail on … other issues that [might] be encountered in the renovation of the area." Tr. 68. Garrett's Construction was identified as the construction company that would perform the construction on the basis of the Sousa drawings. After the issuance of the CON, a new Chief Executive Officer took the helm at MJHHA. Eventually, Sousa completed a full scale set of drawings that included changes and expansions in the program that had not been shown on the drawings that accompanied the CON application. Among the expansions were the addition of an elevator tower, a drive-through canopy and a second operating room in which the new CEO took an interest because of his development background. The completed drawings were submitted to the City of Miami for approval and Sousa was engaged to be the architect during construction. There were several surprises during the process of developing the drawings. These were described at hearing by Mr. Knight, MJHHA's Chief Financial Officer: It was identified that the backup generator located in the Chernin Building was not sufficient and could not bear the load to support a 30-bed acute care hospital [the LTCH.] * * * In addition . . . , it was identified that the current 02 or oxygen tank farm that we have on the west side of the property was problematic. It was freezing up. . . . it was advised . . . by an external vendor that it would not be able to accommodate the additional 30 beds [beyond] the 30 beds … in operation. *** It was a little over a million two [hundred thousand dollars] for both of those projects . . . , a significant increase over what we had anticipated to be the total cost of the project. Tr. 69-70. Submitted in June of 2008 to the City of Miami, permits for the generator and the 02 farm project were received in December of 2008. The 02 farm project started in the third week of March 2009 and was fully underway at the time of the final hearing in this case. Demolition for the generator project was scheduled to commence within two weeks of the conclusion of the hearing, that is, in April of 2009. By December of 2008, however, none of the construction plans had been submitted for review to AHCA. (In fact, none had been submitted by the last day of final hearing in this case, March 25, 2009.) AHCA's review "of plans . . . is an essential part of implementing a project that requires construction." Tr. 263. Following cross-examination on this point at hearing, Mr. Gregg was asked by AHCA's counsel to review the definition of "commenced construction" in the Health Facility and Services Development Act: "Commenced construction" means initiation of and continuous activities beyond site preparation associated with erecting or modifying a health care facility, including procurement of a building permit applying the use of agency-approved construction documents, proof of an executed owner/contractor agreement or an irrevocable or binding forced account, and actual undertaking of foundation forming with steel installation and concrete placing. § 408.032(4), Fla. Stat. (emphasis added.) After his review of the definition, Mr. Gregg explained that construction cannot be commenced without AHCA plan review because "it's a[]. . . technical . . . area that requires the expertise of the people in [AHCA's] office of plans and construction to give a project an okay from the health care perspective before it proceeds to the point of construction." Tr. 319. Plans were not submitted and construction was not commenced by the Deadline because of difficulty in financing the construction. The more than one million dollars required to update the generator system and the O2 Farm, unanticipated at the time of the CON approval, contributed to the difficulty. In the main, however, the delay was due to what the stipulation of the parties describes as "unique in the history of Florida's CON regulation," that is, the financial crisis of which the public became generally aware in the early fall of 2008. Distress in the Financial Markets In the early autumn of 2008, as the Commencement of Construction Deadline neared, the financial markets in the United States became unstable. World-wide financial markets followed suit. The gravity of the financial situation has been widely acknowledged to be the most serious since the Great Depression that immediately preceded World War II. During the years that Florida's CON regime has been in place, there has been no time period during which economic distress has been as severe as the period that commenced in September of 2008 and continued at least into early 2009, after the expiration of the Deadline. The problems in financial markets made further development of the CON unreasonable. Miami Jewish Home had proposed and was approved to pay for the costs of the implementing the LTCH from its cash on hand and other assets. At the time of the approval, the "cash-on-hand" approach was reasonable. It continued to be achievable, despite cost increases, until the late 2008 financial crisis' serious negative impact on MJHHA's investments. Loss in Investment Income Miami Jewish Home's un-audited balance sheet, admitted into evidence as MJHHA's Ex. 1, shows a steep reduction in Net Assets over the six months from June 30, 2008 to December 31, 2008, the six months in which the financial crisis occurred. The Balance Sheets June 30, 2008 column (audited) shows "Net Assets" of $101,363,000. The 12/31/2008 column shows "Net Assets" of $82,209,000 a reduction in net assets of between $19 million and $20 million. Over $12 million of the loss was due to losses suffered by MJHHA's endowment and foundation account which represents Miami Jewish Homes investments. This "investment account" was $72 million on June 30, 2008 and had shrunk to $50 million by the end of 2008. At the time of hearing, the investment account had lost another $40 million, making MJHHA's decision not to proceed with the LTCH appear to be a prudent one at the time of final hearing. The decision was prudent not merely because of a loss of funds. The impact of the loss of investment funds was compounded for Miami Jewish Home because of the use of income from those funds to keep MJHHA's nursing home operation afloat. Mr. Knight explained, "when the significant decrease in cash occur[red], that also reduced the income potential on that cash and ultimately the subsidy back to the nursing home." Tr. 74. Miami Jewish Home's nursing home operation's financial stability was also threatened by Medicaid reimbursement "looking to be getting worse." Tr. 75. With the Deadline approaching, the situation was summed up by Mr. Knight: [B]etween the incremental costs that were identified [with regard to the generator and the O2 farm] and the significant decrease in our ability to fund from cash [the loss of investment return produced by the investment account] and ultimately the . . . loss on the nursing home operations, in September and October of '08 [MJHHA] began the process of seeking another developer or another potential acquirer of a certificate of need. Tr. 77. Looking for a Purchaser of the CON As Miami Jewish Home became aware of the deterioration of its financial situation, it began to seek alternative means to finance the development of the LTCH, including standard loans and alternative financing. It approached its commercial banker SunTrust. The deterioration of MJHHA's finances, however, was occurring at the same time as "the credit crunch came into place." Tr. 96. SunTrust was not interested in financing the LTCH. With the realization that it could not reasonably fund the development of the LTCH and still believing it to be a needed service, MJHHA began to seek out other operators and developers. At first, MJHHA looked for a known LTCH company or a compatible provider to develop the LTCH on the Miami Jewish Home campus. Promise Health Care and Mt. Sinai were approached. For various reasons, no firm commitments were forthcoming. As autumn wore on, Miami Jewish Home continued to make progress toward the permits necessary to develop the LTCH, but it became clear it was not in a financial position to go forward with construction. It scheduled a call with AHCA for December 18, 2009, to inform AHCA that it would be abandoning the project. Nearly resigned to the loss of the project, MJHHA management met with principals of the Sanderling group in mid- December 2008. Sanderling showed a desire to work through the details of the LTCH project with Miami Jewish Home. A general agreement was reached between Sanderling and Miami Jewish Home by the time of the scheduled call with AHCA. When the call took place on December 18, 2008, instead of relinquishing the CON, MJHHA informed AHCA that there was a provider compatible with Miami Jewish Home that intended to purchase the CON and develop the LTCH. During the call, the Agency responded verbally that MJHHA should do whatever it needed to do to keep the project moving forward. Miami Jewish Home took immediate action. It submitted a written request for the extension of the validity period of the CON. The December 18 Written Request for an Extension On the same day as the call, Miami Jewish Home provided AHCA with written notice of intent to transfer the CON. The letter informed AHCA of MJHHA's financial difficulty due to "additional costs . . . required to develop the LTCH which were material, . . . the large (20%)losses to the Homes endowment . . . and] [g]iven these changed circumstances, . . . [that] the Home . . . cannot justify the development costs to implement [the CON] without impacting other services." MJHHA Ex. 11. Dated December 18, 2009, the letter bears the heading, "Via Electronic Mail". Id. The letter went one step further. It specifically noted that paragraph (c) of Florida Administrative Code Rule 59C-1.018(3) (the "Transfer Extension Paragraph"), provides that a 60-day extension of the life of the CON would be granted upon receipt of a notice and application for a transfer if the notice and application were received 15 days prior to the deadline for commencement of construction. After quoting the paragraph verbatim, the letter asked for relief under the variance and waiver provision of the Administrative Procedure Act, "[p]ursuant to Section 120.542, F.S., we are requesting a waiver of the 15 days prior notice provision." Id. at 2. Noting that "there is no statutory requirement for the 15 days notice," the letter asserted that the notice and proof of the closing of the acquisition would be submitted "with the initial transfer application as soon as possible and before the December 28, 2008 termination date." Id. The written request that comprised the letter (the "December 18 Written Request") was furnished five days later than required by the Transfer and Extension Paragraph. Had it been submitted on December 13, 2008, instead of December 18, 2008, it would have been timely. Before AHCA responded in writing to the December 18 Written Request, Miami Jewish Home took further action. It submitted a more formal request for relief: an emergency petition. The Emergency Petition On December 24, 2008, six days after the submission of the December 18 Written Request, Miami Jewish Home filed with AHCA a document entitled, "Emergency Petition for Variance of Waiver of Rule 59C-1.018(3)(c), F.A.C." (the "Emergency Petition"). See MJHHA Ex. 12. Denominated an emergency "because the CON is scheduled to terminate on December 28, 2008," id. at 2, the Emergency Petition pointed out that "the 90 days typically provided for review of petitions for variance or waiver would not allow the resolution of this petition." Id. Substantially similar to the December 18 Written Request, the petition expressed one new fact and pointed out an additional significant feature for AHCA's consideration. The new fact was that the initial application for transfer of the CON to Sanderling had been submitted to AHCA on December 24, 2009, along with the petition. The featured consideration was asserted in the petition's final paragraph: Granting the waiver will foster the goals of the Health Facility and Services Development Act as stated in the Recommended Order and Final Orders in DOAH Case No. 06-557 (AHCA No. 2006000716) approving CON 9893. Id. at para. 12., p. 4 (emphasis added.) This assertion amounted to the claim that the statute underlying the Transfer Extension Paragraph and the entire Termination and Extension Rule is not merely the law implemented by the rule but the entire Health Facility and Services Development Act. The Act The Act is a subset of one part of Chapter 408, Florida Statutes. The chapter governs "Health Care Administration" and is composed of Parts I - IV. Part I consists of Sections 408.031 through 408.7071. Fifteen sections, Sections 408.031 through 408.045, comprise the Act. "Sections 408.031-408.045 shall be known and may be cited as the "Health Facility and Services Development Act." § 408.031, Fla. Stat. Of the Act's fifteen statutory sections, several stand out as having been applied by the Agency and the DOAH in the process that led to the approval of Miami Jewish Home's application and the award of the CON. These include Section 408.037, which prescribes the content for a CON application, Section 409.035, which delineates the criteria for review of a CON application, and Section 408.039, which establishes the process for review of a CON application. The Act recognizes the transfer of CONs from the holder of a CON to another. See § 408.042, Fla. Stat., the catchline of which is: "Limitation on Transfer." This recognition is reflected in the section's opening sentence: "The holder of a certificate of need shall not charge a price for the transfer of the certificate of need to another person that exceeds the total amount of the actual costs incurred by the holder in obtaining the certificate of need." (emphasis added.) One of the 15 provisions of the Act bears particular relevance to this proceeding: Section 408.040, Florida Statutes, the "Conditions and Monitoring" Section. Section 408.040, Conditions and Monitoring Section 408.040 has two subsections: the first is concerned primarily with "conditions," the second with monitoring." The section, accordingly, bears the catchline, "Conditions and monitoring." Subsection (2), the "monitoring" subsection, is directly at issue in this case because it is cited in Rule 59C- 1.018 as its "law implemented." It provides, in pertinent part: (2)(a) Unless the applicant has commenced construction . . . , a certificate of need shall terminate 18 months after the date of issuance. The agency shall monitor the progress of the holder of a certificate of need in meeting the timetable for project development specified in the application, and may revoke the certificate of need, if the holder of the certificate is not meeting such timetable and is not making a good faith effort, as defined by rule, to meet it. * * * (c) The certificate-of-need validity period for a project shall be extended by the agency, to the extent that the applicant demonstrates to the satisfaction of the agency that good-faith commencement of the project is being delayed by litigation or by governmental action or inaction with respect to regulations or permitting precluding commencement of the project. § 408.040(2), Fla. Stat. Because the subsection is concerned with termination and extension of the deadlines for commencement of construction of CON project, the subsection will be referred to in this order as the "Termination and Extension Subsection." Paragraph (a) of the Termination and Extension Subsection focuses on the 18-month CON validity period during which the agency is to monitor the progress toward project development. It provides for revocation of a CON if a good faith effort is not being made toward meeting the 18-month timetable. It further provides for termination of the CON at the end of the 18-month CON validity period. Paragraph (c) of the Termination and Extension Subsection focuses on when the time for termination may be extended and the circumstances for such an extension: in cases plagued by litigation or when governmental action or inaction causes delay. One observation of the Termination and Extension Subsection is of particular import to this proceeding. It is silent with regard to extensions of a deadline for commencement of construction when a CON is transferred. Although not mentioned as a basis for an extension in the Termination and Extension Statute, transfer of a CON is a basis for an extension under paragraph (c) of Section (3) of Florida Administrative Code Rule 59C-1.018 (the "Termination Rule"). The Termination Rule The Termination Rule is divided into three sections. The first, denominated "Validity Period of Certificate of Need," restates the Termination and Extension Subsection's prescription that a CON shall terminate 18 months after issuance "unless the holder meets the applicable conditions for an extension set forth in Section 408.040(2), F.S., and this rule." Fla. Admin. Code R. 59C-1.018(1). The second section of the Termination Rule, called "Undertaking a Project Authorized by a Certificate of Need," prescribes minimum requirements to prevent termination of a CON and the expiration of its validity period. These requirements govern both new construction or renovation projects and non- construction projects that involve capital expenditures. The third section of the Termination Rule governs extension of a CON's validity period. It is divided into three paragraphs. Paragraph (a) deals with extensions when there is a demonstration that "good faith commencement of the project is being delayed by litigation or governmental action or inaction," Fla. Admin. Code R. 59C-1.018(3)(a), related to regulation which precludes commencement. Delay caused by litigation or government are the two bases for an extension provided by the statutory Termination and Extension Subsection. Unlike the case where extensions are sought because of a transfer, the filing of a request under paragraph (a) does not extend the validity period of a CON. A paragraph (a) extension request requires the Agency to pay close attention to a number of details in its review. The requester must make a showing of good faith. Other details the Agency must examine are revealed by the following provisions: The request must provide the agency a detailed explanation of the problem and a plan of action to be undertaken by the holder to resolve the problem within the time frame requested. Land zoning issues will be considered for extension of the certificate of need validity period beyond the 18 months, if the certificate of need holder can demonstrate that action has been initiated to obtain proper zoning for the proposed site for the facility, and that such action was timely with respect to the requirements for obtaining proper zoning. Untimely filing of submission of plans and requests for local and state permits, based on the processing time required by the state and local governments for such plans and permits, will not be considered as justification for an extension beyond the 18-month period. Fla. Admin. Code R. 59C-1.018(3)(a). Paragraph (b) contains yet another consideration for the Agency in cases of extensions requests on the basis of litigation. The extension "shall be granted for the actual time of the validity period which is equivalent to the period of litigation, including appeal." Fla. Admin. Code R. 59C- 1.018(3)(b). Paragraph (c) (the "Transfer Extension Paragraph") deals with extensions requests in the case of transfers, as in this case: Upon written request from the holder of a certificate of need received at least 15 days prior to the termination date of the certificate of need, and upon submission of a transfer application by the proposed transferee, the agency will extend the validity period of the proposed transferred certificate of need for a period of 60 days to ensure that the certificate of need remains valid throughout the agency's timetable for review of the transfer application. Only one such request for a 60 day extension will be granted under the provisions of this subsection. Fla. Admin. Code R. 59C-1.108(3)(c) (emphasis added.) The terms of the Transfer Extension Paragraph that govern "transfer extensions" are significantly different from the terms of paragraphs (a) for other extensions. For one, there is no showing of "good faith" required on the part of the holder of the CON as there is with paragraph (a). Instead, Paragraph (c) directs extension upon the submission of two documents: a written request and a transfer application ("the agency will extend the validity period . . .", emphasis added). By comparison, paragraph (a) is written in "discretionary" language: "[e]xtensions . . . may be requested by a certificate of need holder . . .". (emphasis added.) Paragraph (a) extensions require much more review by the Agency; the paragraph sets up points at which the Agency may exercise discretion in turning down the request. In addition to the "good faith" demonstration by the holder of the CON, there must be a detailed explanation offered and a plan of action to resolve the problem within the time frame requested. In contrast, review triggered under the Transfer Extension Paragraph by a written extension request is minimal. All the Agency need determine is whether a transfer application has been submitted by the transferee and that no other requests on the basis of a transfer have been granted previously. Miami Jewish Home seeks a waiver from only one clause in the Transfer and Extension Paragraph: that its written request must have been received fifteen days prior to the termination date of the CON (the "15-day Requirement"). It makes the request for the waiver under Section 120.542, Florida Statutes. Section 120.542: the Variance and Waiver Statute Section 120.542, Florida Statutes (the "Variance and Waiver Statute") was enacted in 1996 as part of a major revision to Chapter 120, Florida Statutes. Described as perhaps "the most significant aspect of the revised APA," Loosening the Chains that Bind: the New Variance and Waiver Provision in Florida's Administrative Procedure Act, Vol. 24, at 353, Florida State University Law Review (1997), the section sets forth the legislative intent in two straightforward sentences: Strict application of uniformly applicable rules requirements can lead to unreasonable, unfair and unintended results in particular instances. The Legislature finds that it is appropriate in such cases to adopt a procedure for agencies to provide relief to persons subject to regulation. § 120.542, Fla. Stat. The operative part of the Variance and Waiver Statute is found in subsection (2), the first sentence of which reads, "Variances and waivers shall be granted when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or would violate principles of fairness." The Variance and Waiver Statute provides a process for agencies in dealing with variance and waiver petitions. The agency is to give notice to the Department of State within 15 days of receipt of the petition. The Department of State, in turn, publishes notice of the petition in the first available issue of the Florida Administrative Weekly. See § 120.542(6), Fla. Stat. Within 30 days of receipt of the petition, the agency is to review it and request additional information it is permitted to require, see Section 120.542(7), Florida Statutes, "except for requests for emergency variances or waivers". Id. Agency Response to the December 18 Written Request The Agency did not rule on the December 18 Written Request prior to the expiration of the CON's validity period on December 28, 2008. The December 18 Written Request was hand-delivered to Mr. Gregg's office six days before the filing of the Emergency Petition (December 24, 2008). Mr. Gregg took the December 18 Written Request to the legal staff and said "please respond to this." Tr. 265. Before any response to the December 18 Written Request was issued in writing, the Emergency Petition was filed with AHCA together with the transfer application. Agency Response to the Emergency Petition The timing of the filing of the Emergency Petition, Christmas Eve, was problematic for the Agency. Mr. Gregg explained at hearing: [B]eing the holiday season, various key people were not there . . . The chief facilities counsel had broken his foot. The deputy secretary was out before Christmas. I was out after Christmas. This is a perfect example, apart from the fact that we all are juggling many different subjects, of why we would need [a] review period [as called for by the 15-Day Requirement] in order to develop an opinion about any request for extension or a request for a variance and transfer. Tr. 273. Since Mr. Gregg was not available to review the Emergency Petition the day of its submission, it was reviewed by the Deputy Secretary and Acting General Counsel. They formulated the Agency response: denial. Later, after Mr. Gregg had returned to the office and read the Emergency Petition, "we all agreed it was not something that we could grant." Tr. 266. In the wake of the receipt of the Emergency Petition and the transfer application, the Agency followed prescribed process. It issued a CON application omissions letter to Sanderling. Notice of the receipt of the Emergency Petition was published on January 16, 2009 in the Florida Administrative Weekly. Notice was also published on the Agency internet site. In the meantime, AHCA notified counsel for MJHHA that the CON had expired. The Agency letter, dated January 15, 2009, states: It has been determined that the holder of CON Number 9814 for the above referenced project [CON 9893] has violated the provision of section 408.040(2)(a), Florida Statutes . . . and Rule 59C-1.018(2) Florida Administrative Code in that the project has not commenced continuous construction, as defined in section 408.032(4), F.S., by the December 28, 2008 termination date. Therefore the CON has expired. * * * The final determination on your request for an emergency waiver could have an impact on whether or not this CON remains valid. Exhibit "E" attached to MJHHA Ex. 13. On January 22, 2009, written comments in opposition to the Emergency Petition were received from Victoria Healthcare, Inc., a wholly owned subsidiary of Select Medical Corporation and from Kindred Hospitals East, L.L.C. No comments were received in support of the petition. On January 23, 2009, the Agency issued a Final Order denying the Emergency Petition. The Agency's Final Order The findings of fact in the Final Order relate the history of the CON and the filing of the Emergency Petition. The order does not make reference to the December 18 Written Request. The findings of fact also cite and quote text from relevant statutory and rule provisions. The sixth and last finding of fact in the final order is: Since CON 9893 expired on December 28, 2008, Rule 59C-1.018(3)(c) required . . . the request and transfer application be received by the Agency no later than December 13, 2008. The petition and transfer application were received on December 24, 2008, eleven days late. MJHHA Ex. 13, at 2-3. The Final Order does not identify the specific statute underlying the Termination and Extension Rule. Nonetheless, it concludes with regard to the first prong of the Waiver and Variance Statute that the Emergency Petition comes up short: Beyond the bare, unsupported, and conclusory allegation in paragraph 9 of the Petition that "requiring the CON to terminate would be detrimental to the goals of the Health Facility and Services Development Act and the accessibility and quality of health care services to the community," and a reference in passing to the Recommended and Final Orders in DOAH Case No. 06-0557 CON, the Petition does not address or provide specifics explaining how waiving the 15 day prior notice rule requirement would achieve the purpose of the statute. Id. After its conclusion that MJHHA failed to meet the first prong, the Final Order reflects the Agency's conclusion that it was not necessary to address the second prong of the Variance and Waiver Statute. The order, however, reflects the Agency's decision to deal with the second prong "briefly." MJHHA Ex. 13, at 5. The Final Order finds that MJHHA failed to demonstrate that application of the rule would work create a substantial hardship or that principles of fairness had been violated. Accordingly, the Final Order denies the Emergency Petition. Section 120.57(1) Petition The Final Order's denial of MJHHA's request for a variance was challenged by a petition filed on February 2, 2009 (the "Section 120.57(1) Petition"). In the Section 120.57(1) Petition, MJHHA characterizes the December 18, 2009 Written Request, as a "written request" within the meaning of the term in the Termination Rule and characterizes the Emergency Petition as a "second" written request. The Section 120.57(1) Petition, of course, raises the issue of whether it demonstrated that both prongs of the Variance and Waiver Statute had been met. It also raises a number of issues surrounding the emergency nature of the Emergency Petition, whether the CON terminated, and whether there is a statutory basis for the 15-Day Requirement. See Section 120.57(1) Petition, at 7-9. Stipulated Facts Prior to hearing, the parties filed a joint pre- hearing stipulation. The stipulation contains a section entitled, "Facts Which Are Admitted and Require No Proof at Hearing." The section contains the following: AHCA is the state agency responsible for the administration of the Certificate of Need program in Florida. AHCA did not provide MJHHA copies of the relevant statutes and rules when it was presented with a request for relief (the December 18 letter) from the provisions of the rule. (Item a of the petition) The current financial crisis is unique in the history of the Florida's CON regulation. (Item g of the petition) Joint Pre-hearing Stipulation, at. 4. Final Hearing At final hearing, the Agency identified the statute it believes underlies the Termination and Extension Rule: Section 408.040(2), Florida Statutes, referred to in this order as the Termination and Extension Subsection. The Agency offered further evidence of the context in which its decision was made. Mr. Gregg opined that Miami Jewish Home was not positioned to request an extension. Construction plans had not been submitted for AHCA review. The extension request was first presented to AHCA ten days before the Construction Deadline; normally, AHCA is informed months in advance of the need for an extension. The Agency denied the request in an "attempt to be consistent and treat each situation in the same way." Tr. 274. Mr. Gregg further opined: And in the case of CON, given that we know that the financial situation is very widespread, if we were to be too liberal in our application of these laws and rules, I can guarantee you that we would quickly have other people asking us to do a similar thing, based upon financial problems. And we don't feel we have [that] flexibility . . . . In recognition of that, we have proposed . . . a total extension of the CON validity period that would extend it from 18 month to three years. And that is included in a bill that is generally referred to in this season as the agency's regulatory reform bill. [Without such legislation] we don't think we have authority to [give MJHHA an extension.] Tr. 275-6. Mr. Gregg also mentioned another instance in which a CON holder "had communicated . . . that they have financial problems . . . but they also happen to have local planning and zoning issues and environmental issues as well." Tr. 274. That instance was a case involving Hillsborough Extended Care, LLC. The Hillsborough Case On August 30, 2005, CON 9814 was issued to Hillsborough Extended Care, LLC, ("Hillsborough") to relocate 120 existing community nursing home beds from one facility in Tampa to a new freestanding 120-bed facility. The deadline for commencing construction of the project authorized by CON 9814 was February 28, 2007. Prior to November of 2007, Hillsborough invoked the Termination and Extension Rule on four separate occasions. Extensions were granted each time on February 1, May 17, June 15, and August 13, 2007. The letter granting the last extension informed Hillsborough that the CON validity period expired October 7, 2007 "and specifically stated that to request another extension pursuant to Rule 59C-1.018, Florida Administrative Code, that the extension request must have been received by the Agency no later than October 7, 2007." MJHHA Ex. 21 at 2; see also the fourth page of Exhibit "B" attached to MJHHA Ex. 21. On October 16, 2007, nine days late, Hillsborough filed a fifth extension request. The Agency sent a letter to Hillsborough on October 23, 2007. It denied the request and informed Hillsborough as follows: It has been determined that the holder of CON Number 9814 . . . has violated the provisions of section 408.040(2)(a), Florida Statutes . . . and Rule 59C-1.018(2), Florida Administrative Code in that the project has not commenced continuous construction, as defined in Section 408.032(4), F.S., by the October 22, 2007 termination date. Therefore, the CON has expired. Fifth page of Exhibit "B" attached to MJHHA Ex. 21. Hillsborough filed an emergency petition for a variance from or a waiver of the Termination Rule. The emergency petition invoked the Variance and Waiver Statute. The emergency petition recognized the law implemented by the Termination Rule to be the Termination and Extension Subsection, Section 408.040(2), Florida Statutes. With regard to the "underlying statute," Hillsborough took a position similar to that of Miami Jewish Home in this proceeding, that is, that the underlying statute is the Act. See MJHHA Ex. 20 at 2. The emergency petition asserted that in support of the end promoted by the Act, "the orderly development of health facilities and services in the State," id., the Agency had determined a need for the nursing home beds authorized to be relocated by CON 9814. The Agency issued a Final Order denying Hillsborough's emergency petition on December 28, 2007 (the "Hillsborough Final Order of December 28, 2007.") The Agency found that although a need for the nursing home beds had been determined when CON 9814 was issued, "there is no longer a need for these beds in Hillsborough County." MJHHA Ex. 21. The Agency at first, see Finding of Fact 86, below, concluded that the statute underlying the Termination Rule was the Termination and Extension Subsection not the Act. The Agency in the order further concluded that while "it appears there may have been ongoing litigation or other matters pending relating to permitting which may have justified a fifth extension of CON 9814," id. at 5, that the issue was whether a variance from or waiver should be granted as to the 15-Day Requirement. The Agency recognized that the 15-Day Requirement is not statutory. See MJHHA Exhibit 21 at 6, para. 18: "[i]t is true that there is nothing in the statute explicitly requiring that CON validity extension requests by received at least 15 days prior to the extension date . . .". The Agency further concluded that Hillsborough did not demonstrate that the purpose of the underlying statute, the Termination and Extension Subsection, would be met by a variance from or waiver of the 15-Day Requirement. In fact, the Agency wrote an untimely request "is contrary to the purpose of the underlying statute, which requires the Agency to determine whether an extension is justified before the CON has expired." Id. at 7. The Agency expanded upon the meaning of the term, "underlying statute" when it wrote the following in the Hillsborough Extended Care final order: Moreover, the entire CON statute, found at Chapter 408, Part I, [the Act] is dedicated to the principle that a CON is granted when there is a demonstrated need. * * * Therefore, the purpose of the underlying CON statute [emphasis added] has not been met in this case: this district does not need these beds [any longer.] The issue, always, in the CON program is whether there is a need for a facility or service, not whether it would be desirable to have additional options and choices beyond that need. In this case, the need does not exist. The Petitioners have not demonstrated that they have met the purpose of the underlying statute. [emphasis added.] Id. at 7-8. Thus, the Agency concluded that the Act is the statute underlying the Termination Rule as well as the law implemented, a provision contained within the Act. The Hillsborough Final Order or December 28, 2007, accordingly denied Hillsborough's emergency petition. Hillsborough challenged the decision by filing two petitions for formal administrative hearings. On February 19, 2008, the Agency entered a second final order (the "Hillsborough Final Order of February 19, 2008.") It reports, "[t]he Agency and Hillsborough have reached a settlement by which the AHCA notices are superseded and Hillsborough is given an extension to begin continuous construction pursuant to the time line schedule included in the Settlement Agreement." MJHHA Ex. 22 at 2. The final order approves and adopts the Settlement Agreement as part of the final order. The Settlement Agreement in its "whereas" clauses describes action and inaction of the local government that justified an extension. See MJHHA Ex. 22, Settlement Agreement at 3-4. With regard to the 15-day Requirement that its earlier letter had found Hillsborough to have violated, the Settlement Agreement recites the following in a "whereas" clause: "the parties agree that AHCA has evenly enforced its fifteen day requirement for filing an extension request and did nothing incorrect in denying the late filed extension request and canceling the CON ...". Id. at 5. Neither the Hillsborough Final Order of February 19, 2008 nor the Settlement Agreement attached to it provides any explanation as to why the 15-Day Notice Requirement was no longer to be enforced against Hillsborough. The lack of explanation is particularly worthy of observation in light of the agreement that AHCA did nothing incorrect in enforcing it in the first place. The Settlement Agreement sets out a detailed schedule for plan review, commencing construction and continuing construction. Id. As for future extensions, the Settlement Agreement contained a few additional provisions that relate to circumstances that would support further extensions and timely requests for extensions: The schedule and continuous construction commencement date of CON 9814 may only be extended by agreement of the parties because of governmental action or inaction or for unforeseen natural disasters or Acts of God. If such an extension or extensions become necessary, the Petitioner agrees to timely file the request(s) for extension in full compliance with the requirements of Rule 59C-1.018(3)(a), F.A.C., and upon failure to fully comply with the requirements of said rule, Petitioner agrees that CON 9814 shall become null and void by operation of law, without further action by the agency, and without any further administrative or legal remedies being available to the Petitioner. Id. at 7-8. The Agency's Position at Final Hearing At final hearing, the Agency embellished upon the circumstances that led to its decision to deny the Emergency Petition, including its view of why the outcome in the Hillsborough case is justifiably different from the Agency's preliminary denial in the Final Order in this case. See Finding of Fact 76. In essence, the Agency adhered to the position taken in the Final Order in this case: that MJHHA's Emergency Petition should be denied because it was filed eleven days late and Miami Jewish Home had failed to demonstrate a basis for waiving the 15-Day Requirement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency waive the 15-Day Requirement for Miami Jewish Home with regard to its written request to extend the validity period of CON 9893, revoke the termination of the CON, and grant an extension of 60 days of the CON's validity period upon issuance of a final order. DONE AND ENTERED this 11th day of May, 2009, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 11th day of May, 2009. COPIES FURNISHED: Karl David Acuff, Esquire Watkins & Associates, P. A. 3051 Highland Oaks Terrace, Suite D Post Office Box 15828 Tallahassee, Florida 32317-5828 Shaddrick Haston, Esquire Agency for Health Care Administration Fort Knox Building, Mail Stop 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Holly Benson, Secretary Agency for Health Care Administration Fort Knox Building, Mail Stop 3 2727 Mahan Drive, Suite 3116 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration Fort Knox Building, Mail Stop 3 2727 Mahan Drive, Suite 3116 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration Fort Knox Building, Mail Stop 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308
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
The Issue The issue for consideration in this case is whether the Respondents, individually and jointly, on March 24, 1999, established, maintained, or operated migrant housing on their properties located on Rosebud Lane in Arcadia, Florida, without first obtaining permits from the Department of Health.
Findings Of Fact At all times pertinent to the issues herein, the State of Florida's Department of Health, and the DeSoto County Public Health Unit were the agencies in DeSoto County, Florida, responsible for the management and permitting of migrant labor camps and residential migrant housing within that county. Jack L. Sikes has been an environmental specialist II with the DeSoto County Health Unit for 18 years. His duties comprise the management of the migrant housing program within the county, including permitting and inspection of migrant residential housing units and camps. Migrant housing is defined within the Health Department as any structure housing five or more workers engaged in seasonal work, and who have changed their residence during the preceding year. Inspection standards applied to migrant housing relate to health and safety issues, such as cleanliness, refrigeration, hot and cold water, lights, bedding, and structural problems of the facility which impact safety. For the 1998-1999 growing year, permits were issued for 108 migrant worker camps in the county. In the 1997-1998 year there were only 16-17 permits issued for camps. The increase is due to state emphasis on increased safety for migrant housing. By far the greatest percentage of migrant workers are of Hispanic origin. The migrant population increases significantly in DeSoto County during the citrus harvest period which extends from November through June. On March 23, 1999, Mr. Sikes and a co-worker, as a part of a continuing search for un-permitted migrant housing, conducted a drive-through inspection of several mobile homes situated on Southwest Rosebud Lane in Arcadia, Florida. Eight of the lots on Rosebud Lane have mobile homes on them while the other lots are vacant. On this visit, Mr. Sikes did not see any of the indications normally present when a structure is used for a family home such as toys in the yard, laundry drying, etc. As a result, he suspected the homes, some of which were obviously occupied, were being used as migrant housing. The next day, March 24, 1999, at approximately 5:00 p.m., Mr. Sikes and a Spanish-speaking inspector, Robert Schultz, returned to the area and went to the structure located at 1408 Southwest Rosebud Lane, where in response to the inspectors' knock, the door was opened by an Hispanic individual who identified himself as Mario Hernandez. Through the interpretation services of Mr. Schultz, Mr. Hernandez indicated that he lived at that house with his five cousins, all of whose names were recorded on the "Documentation of Hand Laborer" form on which the answers to the interview questions were written. As recounted by Mr. Sikes, Mr. Hernandez spoke for the group as his cousins were not present when the interview began. Mr. Hernandez indicated that he and his cousins arrived in DeSoto County from another location to pick oranges during the first week of November 1998 and took up residence at 1408 Southwest Rosebud Lane. The mobile home they were occupying was large enough to be permitted for six residents. Mr. Hernandez also indicated he and his cousins were renting the mobile home but did not know from whom. Though this statement is hearsay, it is corroborated by an examination of the electricity billing records and other independent evidence of record. A four-fold November increase in electric usage over the mid-October 1998 electric bill indicates the structure was most likely unoccupied before November 1998 but was occupied for several months thereafter. In fact, just after the inspectors left the home, a bus discharged several other men who appeared to be migrant workers and four of them went in the direction of 1408. When Mr. Sikes and Mr. Schultz went to 1375 Southwest Rosebud Lane they found several Hispanic men getting out of a utility van and going into the mobile home. The inspectors went to the house and were invited in. Mr. Schultz translated. During the course of the conversation, the men indicated they had just returned from the fields where they worked picking oranges. They said they all lived in the mobile home with a sixth man who was not present at the time. They also indicated they had come to DeSoto County from Mexico around the first of the year to pick oranges, and had rented the mobile home from someone whose name they did not know. When the picking season was completed in DeSoto County, they intended to move on to other farm work elsewhere. The inspectors spoke with the driver of the bus who identified himself as a crew leader for Turner Foods for whom the migrant laborers also worked. The driver attempted to interfere with the inspectors' questioning of the workers who got off the bus, and as a result, the inspectors requested that he leave the area. Within five minutes of the driver's departure, Respondent Gary L. Frierson drove up and asked Mr. Sikes what was going on. Mr. Sikes advised Mr. Frierson that he and Mr. Schultz were conducting a housing investigation and that based on what information they had gathered, Mr. Frierson needed to obtain a residential migrant housing permit for the properties. Mr. Frierson did not deny he owned the property, but, by the same token, did not admit to owning it either. Mr. Frierson said he was trying to sell the property, but, due to tax considerations, was restricted to selling a limited number of parcels per year. Taken together, the evidence of record is abundantly clear that the occupants of both 1375 and 1408 Southwest Rosebud Lane on March 24, 1999, were migrant farm workers, and the properties were being used as residential migrant housing without being permitted as such. The question remains, however, as to who owned the property and was utilizing it in the fashion described. The public records of DeSoto County reflect that Alice H. Frierson is the owner of record of the property located at 1408 Southwest Rosebud Lane, and Gary L. and Alice H. Frierson, jointly, are the owners of record of the property located at 1375 Southwest Rosebud Lane. Respondents presented several documents in an effort to establish they did not own the properties in question. As to Lot 14 and Lot 22, Bokara Acres, unrecorded Agreements for Deed dated December 31, 1998, between both Mr. and Mrs. Frierson and Wayne Radloff as to Lot 14, and Ricardo Sanchez as to Lot 22, provide for a future transfer of title to each buyer, providing the buyer pays all amounts due on the purchase price. Identical Agreements for Deed were also issued the same date to Mr. Radloff for four other properties in the subdivision. As to Lot 14, a second Agreement for Deed, dated January 1, 1999, purports to transfer a future interest in the same property to Fernando Gomez, and on that same date, Mr. Radloff executed an Assignment of Agreement for Deed to Fernando Gomez. On January 9, 1999, Mr. Radloff also executed a Quit-Claim Deed for Lots 13 and 14 to Gary L. and Alice H. Frierson. As to Lot 22, on March 28, 1999, Mr. Gomez executed a Rescission of Agreement for Deed and Mutual Release to the Friersons in which the December 31, 1998, transfer of the property to Gomez was rescinded, thereby restoring title to Mr. and Mrs. Frierson. This is four days after the visit on March 24, 1999 by the inspectors, Mr. Sikes and Mr. Schultz. By none of the documents, however, did legal title transfer from Mr. and Mrs. Frierson to Mr. Radloff, Mr. Gomez, or Mr. Sanchez. In fact, Mr. Frierson admitted that he collected the rent from the occupants of both parcels weekly from January through March 24, 1999, though he indicated he had no idea which individuals occupied which property. All Mr. Frierson could recall was that a Hispanic man would come out to the truck each time Mr. Frierson went there and beeped his horn, and would give him the money due. He could not identify the man or even say if it was the same man each time. While the Department contends that the unrecorded Agreements for Deed are a sham designed to isolate Respondents from their legal responsibility to obtain permits for the property which they operate as residential migrant housing, Respondent vehemently denied this and produced a series of witnesses who, over several years past, have purchased real estate from them through the same process. None of these individuals experienced any difficulty in obtaining title to the property when they completed payment in full. It should be noted, however, that while these individuals have had no difficulty with the transactions, they are permanent residents of the area, and the situation regarding the parcels in question differs considerably. On none of the transfer documents in issue are the name and address of the person who prepared the document legible, and other technical deficiencies make the agreements un-recordable. When those factors are considered in conjunction with the coincidental concurrence of the documents with the arrival of the migrant workers, and the fact that all interest in the property reverted to Mr. and Mrs. Frierson immediately after the date of the Department inspection, the inescapable conclusion is that the transfers to Mr. Radloff/Mr. Gomez and Mr. Sanchez were not bona fide transfers of an interest in property, but were an effort to obscure the actual ownership of the property to avoid the responsibilities which go with the ownership of residential migrant housing. Other evidence of record supports that conclusion. For example, Respondents presented no documentary evidence to indicate they had ever received any of the weekly payments called for under the Agreements for Deed as to either property but claim that they received a down payment, and that Mr. Frierson collected "rent" each week. For the five properties sold to Mr. Radloff/Mr. Gomez for a total consideration of $63,000, the total down payment was $300. For the property sold to Sanchez for $20,000, the down payment was $100. Respondent admits he has no records to show the down payment or the monthly rental payments he received on either property. Respondents paid the electricity for both properties during the entire time the properties were under the Agreements for Deed through their account with the utility company and were not reimbursed. They provided water to 1375 Southwest Rosebud Lane free of charge from a well on adjacent property they owned. They paid property, casualty, flood, and hurricane insurance for both properties throughout the entire period and were not reimbursed. They did not advise the county property tax office that they had transferred interest in the property to someone else. Though Respondent gave a key to each property to the respective "purchaser," he never saw either at the property. All but one of the properties in which an interest was transferred to Mr. Radloff, Mr. Gomez, or Mr. Sanchez, are vacant and the location of the "buyers" is unknown. Mr. Frierson indicated that he frequently sells property by unrecorded Agreement for Deed. This is standard procedure for him. He claims he paid the electric bills on the properties when they were previously used as rental properties, and he did not cancel the service -- a thing he has done in the past when the buyer is short of cash or cannot pay the power company deposit. In one case under consideration here, he claims, the tenant paid more than was called for, so he used the accrued overpayment to pay the electric bill. As for insurance, he continued his coverage because he wasn't sure the buyer could get coverage. Respondent asserts he does not want to operate migrant housing and has told this to Mr. Sams of the Health Department. He wants single families, and the family which occupied one of the properties in issue on June 7, 1999, went in after the rescission of the Agreement for Deed. Mr. Frierson claims the family's rental business is far less formal than a normal rental operation. Many renters who terminate usually do so by leaving without notice. Many of the renters are Hispanics, whom he describes as quite naïve about paper work. When Mr. Sanchez advised him he wanted out of their agreement, Respondent prepared a Rescission and Release and a Quit-Claim Deed, though he admits the use of both is probably overkill. As to the transactions with Mr. Radloff, Respondent claims he entered into it on the basis of advice from his tax accountant to avoid a higher tax obligation. When he found that he didn’t have the tax problem after all, he bought the lots back and transferred them to Mr. Gomez, which, he contends was his original intention. Mr. Frierson contends that the money paid to him by Mr. Radloff actually came from Mr. Gomez, which, to Respondent, explains the concurrent transfers. He also contends that shortly after the transfer, Mr. Gomez came to him and wanted out of the deal, as had Mr. Sanchez, and he, Mr. Frierson, agreed. Respondent claims, however, that he had no idea of how the properties were used when Mr. Gomez and Mr. Sanchez had control of them. He overlooks the fact that he collected the rents weekly during that period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health enter a final order in this matter imposing administrative fines of $500.00 on Gary L. and Alice H. Frierson for the proven violation at 1375 Southwest Rosebud Lane, and an additional $500 fine on Alice H. Frierson for the proven violation at 1408 Southwest Rosebud Lane, both in Arcadia, Florida. DONE AND ENTERED this 30th day of September, 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 30th day of September, 1999. COPIES FURNISHED: Susan Mastin Scott, Esquire Department of Health Post Office Box 9309 Ft. Myers, Florida 33902-0309 James M. Beesting, Esquire 207 East Magnolia Street Suite B Arcadia, Florida 34266 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Pete Peterson, General counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701
