Findings Of Fact Mac's Auto & Tool Supply, Inc. (Mac's Auto) is a business which was started by Mr. Ralph G. McGlauthen in approximately 1962. The business specialized in automobile and truck equipment, supply, tools, and custom made hydraulic hoses for machinery. It had been located on State Road 84 in Fort Lauderdale, Florida just west of State Road 7. Due to the construction of an interchange for Florida's Turnpike, State Road 7, and State Road 84, the property Mac's Auto leased was acquired by the Department of Transportation. The business moved to 4225 S.W. 57th Avenue in Davie, Florida. Negotiations for the acquisition of the land in Ft. Lauderdale were initiated in November of 1983. The original location had included a main building, and behind it a number of trailers used to store merchandise. Wooden 2' X 4' frames to which pegboard had been attached were used to organize the merchandise in the trailers. Other merchandise was kept in several small storage sheds. This method of maintaining merchandise could not be continued when the business was moved to Davie. The fire code there required the merchandise be stored or displayed on steel framing, rather than on pegboard supported by 2' X 4' wooden framing. The highway interchange project was a federally aided highway project. Relocation benefits were available to Mac's Auto as a tenant of the property acquired by the Department under the Uniform Relocation Assistance and Real Property Acquisition Policy Act of 1970, as amended, 42 U.S.C. Section 4601 et seq. (Uniform Act) and the implementing regulations of the United States Department of Transportation published at 49 Code of Federal Regulations, Part The value of any fixtures left at the site would be reimbursable in the eminent domain proceeding, not under the Uniform Act. Mac's Auto was paid certain costs connected with its search for a new business location. The Florida Department of Transportation obtained estimates of the charges for relocating the stock to the new business location from two commercial movers. Mac's Tool was not required to use a commercial mover, and Mr. McGlauthen ultimately elected a self move. The cost which is reimbursable to a displaced business for a self move is the lowest commercial estimate. 49 C.F.R. Section 25.303(c). In his letter of September 1, 1989 Mr. McGlauthen sought reimbursement of a $3,200 appraisal fee paid to Richard K. Cohen in October of 1985. Mr. McGlauthen maintains that the money was spent to assess the cost of moving the merchandise of the business. A letter dated February 7, 1986 from Mr. Cohen is the only written work product from Mr. Cohen. That letter is a progress report, which states that Mr. Cohen is preparing the "pricing of all of the fixture and machinery items" and projects a "final sound value" of $140,000 to $150,000. No final report was prepared. On the face of the letter, it appears that Mr. Cohen was not evaluating the cost of a move, but was assessing the actual value of the property itself. Mr. McGlauthen did abandon certain fixtures at the old site, and was paid by the Department for those fixtures. There is insufficient evidence that Mr. Cohen's work was ever completed, or if completed that it related to estimates of the cost of the move. That portion of the claim should be denied. Ultimately, Mac's Auto was paid $45,350 for a self move, based upon the lowest estimate from a commercial mover. Mr. McGlauthen abandoned at the hearing the claim in his letter for $6,000 for storage fees for seven trailers, because that amount had been paid by the Department. Mr. McGlauthen claimed $13,000 as the amount needed to build a mezzanine to hold the merchandise which previously had been stored in four of the trailers parked behind the main building at the old site. There was no documentation or itemization offered at the hearing of the actual expense incurred to build the mezzanine. The proof at hearing was insufficient to establish the amount of the expense. Moreover, the claim is one for improvement to real property, that is, for construction at the new place of business. Costs for improvements to real property are not reimbursable under the Uniform Act. The U.S. Department of Transportation specifically considered and rejected a proposal that physical changes to the replacement site be reimbursed when it adopted the rules implementing the Uniform Act. 50 Fed. Reg. 8955, 8965. (March 5, 1985) (Comments on Section 25.305). All of the expenses which were categorized on Mr. McGlauthen's letter under the heading "Monies Spent On Electric Installation" were paid by the Department, and are no longer an issue. The claims of Mac's Auto for $307.19 for a business license at the new location, $60.00 for a second business license, and $115.00 for an E.P.A. license were not reimbursed, because the Department regarded them as "additional operating expenses . . . incurred because of operating in a new location" which are ineligible expenses under 49 C. F. R. Section 25.305(f). Claims for $500.00 to complete the water hook-up to the water system at the town of Davie and $3,634.98 for a permit to hook-up to the Davie water supply were not reimbursed for the same reason. Since the Department's original denial of these fees, such fees have become payable due to an intervening decision of an intermediate Florida appellate court, Skiff's Workingman's Nursery v. Department of Transportation, 557 So.2d 233 (Fla. 4th DCA 1990), and a consequent change in characterization of those costs as permits "required of a displaced [business] at the replacement location" by the federal agency responsible for overseeing the relocation program established by the Uniform Act. 49 C.F.R. Section 25.303(a)(6). All these items therefore should be reimbursed. The claim for labor costs paid to employees based on time cards, and the claim for reimbursement of 40% of the salary paid to Mr. Isaac Theodore in the amount of $1,072.28 were not adequately explained at the hearing. The explanation of the manner in which the claim for the labor of employees was allocated on the time cards was superficial. There is an insufficient basis in the record to find that the employees were working on the move, rather than on other work, and an insufficient explanation of why this work was not compensated by payment for the self move. No records for Mr. Isaac Theodore could be produced at the hearing. Both of these reimbursement claims should therefore be denied. The claim for $903.46 were materials for air, water, and lines to hook-up to the sewer had no documentary support at the hearing, and consequently there is a failure of proof which requires that this reimbursement claim be denied. A number of other items listed in the claim letter filed by Mr. McGlauthen for Mac's Auto on September 1, 1989 have already been paid by the Department, and therefore need not be reimbursed again. These include $287.60 for installation of the telephone service, $900 for an alarm system, $250 to St. Jean Plumbing, $315 to pay for a carpenter's aid to the plumber and $3.25 in plumbing supplies. Mac's Auto also made several claims for lighting fixtures, including 50 fluorescent fixtures at a total cost of $1,250; four emergency exit lights, at a total cost of $340; and five emergency spotlights at a total cost $450. These claims had been denied by the Department as improvements to real property which were not reimbursable under the Uniform Act. Under regulations of the U.S. Department of Transportation published at 49 C.F.R. Section 25.305(j) a displaced person is not entitled to reimbursement for physical changes to the real property at the replacement location, which would include the cost of the lighting fixtures. This claim should be denied.
Recommendation It is RECOMMENDED that the Department of Transportation reimburse Mac's Auto & Tool Supply, Inc. for all items listed in Finding 8, but that all other claims be denied. DONE and ENTERED this 25th day of June, 1991, in Tallahassee, Florida. WILLIAM R. DORSEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1991. APPENDIX TO RECOMMENDED ORDER All findings proposed by the Department have been adopted, except findings 26 and 27. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Ralph McGlauthern Mac's Auto and Tool Supply 4225 S.W. 57th Avenue Davie, FL 33314 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue At issue in this proceeding is whether Respondent failed to abide by the coverage requirements of the Workers' Compensation Law, Chapter 440, Florida Statutes (2002), by not obtaining workers' compensation insurance for her employees; and whether Petitioner properly assessed a penalty against Respondent pursuant to Section 440.107, Florida Statutes (2002).
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying; documentary materials received in evidence; stipulations by the parties; evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2003); and the record evidence submitted, the following relevant and material finding of facts are made: The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation for their employees. § 440.107, Fla. Stat. (2002).1 On August 8, 2003, Respondent was a sole proprietor in the construction industry by framing single-family homes. On that day, Respondent was the sub-contractor under contract with Marco Raffaele, general contractor, providing workers on a single-family home(s) located on Navigation Drive in the Panther Trace subdivision, Riverview, Florida. It is the responsibility of the Respondent/employer to secure and maintain workers' compensation coverage for each employee. During the early morning hours of August 8, 2003, Donald Lott, the Department's workers' compensation compliance investigator, was in the Panther Trace subdivision checking on site workers for potential violations of the workers' compensation statute. While driving down Navigation Drive in the Panther Trace subdivision, Mr. Lott approached two houses under construction. There he checked the construction workers on site and found them in compliance with the workers' compensation statute. Mr. Lott recognized several of the six men working on the third house under construction next door and went over to investigate workers' compensation coverage for the workers.2 At the third house Mr. Lott interviewed Darren McCarty, Henry Keithler, and Mike Sabin, all of whom acknowledged that they worked for Respondent, d/b/a Riopelle Construction. Mr. Lott ascertained through Southeast Leasing Company (Southeast Leasing) that three of the six workers, Messrs. Keithler, Sabin, and McCarthy were listed on Southeast Leasing Company's payroll through a valid employee lease agreement with Respondent as of August 8, 2003. The completed employee lease agreement provided for Southeast Leasing Company to provide workers' compensation coverage for only those employees whose names, dates of birth, and social security numbers are contained in the contractual agreement by which Southeast Leasing leased those named employees to the employing entity, Respondent, d/b/a Riopelle Construction. Mr. Lott talked with the other three workers on site, Ramos Artistes, Ryan Willis, and Robert Stinchcomb. Each worker acknowledged working for (as an employee) Respondent on August 8, 2003, in the Panther Trace subdivision. In reply to his faxed inquiry to Southeast Leasing regarding the workers' compensation coverage status for Messrs. Artistes, Willis, and Stinchcomb, Southeast Leasing confirmed to Mr. Lott that on August 8, 2003, Southeast Leasing did not have a completed employee leasing contractual agreement with Respondent for Messrs. Artistes, Willis or Stinchcomb. Southeast Leasing did not provide workers' compensation coverage for Messrs. Artistes, Willis or Stinchcomb on August 8, 2003.3 Southeast Leasing is an "employee" leasing company and is the "employer" of "leased employees." As such, Southeast Leasing is responsible for providing workers' compensation coverage for its "leased employees" only. Southeast Leasing, through its account representative, Dianne Dunphy, input employment applications into their system on the day such application(s) are received from employers seeking to lease employees. Southeast Leasing did not have employment applications in their system nor did they have a completed contractual employment leasing agreement and, therefore, did not have workers' compensation coverage for Messrs. Artistes and Willis at or before 12:08 p.m. on August 8, 2003. After obtaining his supervisor's authorization, Mr. Lott served a Stop Work and Penalty Assessment Order against Respondent on August 8, 2003, at 12:08 p.m., requiring the cessation of all business activities and assessing a penalty of $100, required by Subsection 440.107(5), Florida Statutes, and a penalty of $1,000, as required by Subsection 440.107(7), Florida Statutes, the minimum penalty under the statute. On August 12, 2003, the Department served a Corrected Stop Work and Penalty Assessment Order containing one change, corrected federal identification number for Respondent's business, Riopelle Construction. Mr. Stinchcomb, the third worker on the construction job site when Mr. Lott made his initial inquiry, was cutting wood. On August 8, 2003, at or before 12:00 p.m., Mr. Stinchcomb was not on the Southeast Leasing payroll as a leased employee covered for workers' compensation; he did not have individual workers' compensation coverage; and he did not have a workers' compensation exemption. On that day and at that time, Mr. Stinchcomb worked as an employee of Riopelle Construction and was paid hourly by Riopelle Construction payroll check(s). Respondent's contention that Mr. Stinchcomb, when he was working on the construction job site between the hours of 8:00 a.m. and 1:00 p.m. on August 8, 2003, was an independent contractor fails for the lack of substantial and competent evidence in support thereof. On August 8, 2003, the Department, through Mr. Lott, served an administrative request for business records on Respondent. Respondent failed and refused to respond to the business record request. An Order requiring Respondent to respond to Petitioner's discovery demands was entered on December 1, 2003, and Respondent failed to comply with the order. On December 8, 2003, Respondent responded that "every effort would be made to provide the requested documents by the end of the day" to Petitioner. Respondent provided no reliable evidence and Mr. Stinchcomb was not called to testify in support of Respondent's contention that Mr. Stinchcomb was an independent contractor as he worked on the site on August 8, 2003. Respondent's evidence, both testamentary and documentary, offered to prove that Mr. Stinchcomb was an independent contractor on the date in question failed to satisfy the elements required in Subsection 440.02(15)(d)1, Florida Statutes. Subsection 440.02(15)(c), Florida Statutes, in pertinent part provides that: "[f]or purposes of this chapter, an independent contractor is an employee unless he or she meets all of the conditions set forth in subparagraph(d)(1)." Subsection 440.02(15)(d)(1) provides that an "employee" does not include an independent contractor if: The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations; The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal requirements; The independent contractor performs or agrees to perform specific services or work for specific amounts of money and controls the means of performing the services or work; The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform; The independent contractor is responsible for the satisfactory completion of work or services that he or she performs or agrees to perform and is or could be held liable for a failure to complete the work or services; The independent contractor receives compensation for work or services performed for a commission or on a per-job or competitive-bid basis and not on any other basis; The independent contractor may realize a profit or suffer a loss in connection with performing work or services; The independent contractor has continuing or recurring business liabilities or obligations; and The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures. The testimony of Respondent and the testimony of her husband, Edward Riopelle, was riddled with inconsistencies, contradictions, and incorrect dates and was so confusing as to render such testimony unreliable. Based upon this finding, Respondent failed to present evidence sufficient to satisfy the requirement of Subsection 440.02(15)(d)1, Florida Statutes, and failed to demonstrate that on August 8, 2003, Mr. Stinchcomb was an independent contractor. Petitioner proved by a preponderance of the evidence that on August 8, 2003, Mr. Stinchcomb, while working on the single-family construction site on Navigation Drive in the Panther Trace subdivision was an employee of Respondent and was not an independent contractor. Petitioner proved by a preponderance of the evidence that Mr. Stinchcomb did not have workers' compensation coverage on August 8, 2003. On August 8, 2003, Mr. Willis was a laborer on the single-family construction site on Navigation Drive in the Panther Trace subdivision as an employee of Respondent, who paid him $7.00 per hour. Mr. Willis was not listed on the employee list maintained by Southeast Leasing, recording those employees leased to Respondent. Mr. Willis did not have independent workers' compensation coverage on August 8, 2003. Mr. Willis had neither workers' compensation coverage nor a workers' compensation exemption on August 8, 2003. Petitioner proved by a preponderance of the evidence that Mr. Willis did not have workers' compensation coverage on August 8, 2003. On August 8, 2003, Mr. Artises was a laborer on the single-family construction site on Navigation Drive in the Panther Trace subdivision and was an employee of Respondent. Mr. Artises had been in the employment of Respondent for approximately one week before the stop work order. Mr. Artises did not have independent workers' compensation coverage on August 8, 2003. Mr. Artises did not have a workers' compensation coverage exemption on August 8, 2003. Petitioner proved by a preponderance of the evidence that Mr. Aristes did not have workers' compensation coverage on August 8, 2003.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleading and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, affirming and adopting the Corrected Stop Work and Penalty Assessment Order dated August 12, 2003. DONE AND ENTERED this 29th day of March, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 29th day of March, 2004.
Findings Of Fact The Petitioner, at times pertinent hereto, was a resident of Scott's Mobile Home Park (Park), located in Duval County, Florida. She lived in the Park with William Scott, the son of the Park owners, their child, and four other children who are Ms. Allen's natural children. The Petitioner, Mr. Scott, and the five children lived in a three-bedroom, double-wide mobile home, at the pertinent time in 1993. It had been provided by Mr. Scott's parents, the owners of the Park. The Department acquired certain property in Duval County, Florida, in 1993, as a result of an inverse condemnation action of which the property known as Scott's Mobile Home Park was a part. The Department, in due course, notified the Park residents that it would be closed and that efforts would be undertaken to relocate the residents. The Department staff obtained information from Ms. Allen and Mr. Scott, as well as from the other Park residents, in order to determine the amount of relocation assistance funds each displaced resident should receive, in accordance with the legal authority cited below. The Allen-Scott family were determined to be "90-day occupants" of the Park, as that term is used in applicable regulatory provisions. In calculating the relocation assistance amount to which the Petitioner may be entitled, the Department follows certain procedures set out in the Code of Federal Regulations, adopted by reference in its own rules and procedures. It must find replacement housing and then pay displaced residents a lump sum equal to 42 months of the difference between the new higher rent, if that be the case, and utility payments and what the displaced residents had been paying for rent and utilities prior to being displaced. The Department initially located replacement housing for the Allen- Scott family on Phillips Highway in Jacksonville, Florida. While the family had been living in a three-bedroom mobile home, the standards adopted by the Department for decent, safe, and sanitary housing for a family of seven required four bedrooms, which is the type residence the Department sought. The rent and utilities amount for the mobile home suitable to those standards, located on Phillips Highway, was $691.00 per month. The Allen-Scott family, however, desired a mobile home on the west side of Jacksonville, Florida. In order to calculate the amount due to the Petitioner, the Department had to subtract from the $691.00 per month figure for the property on Phillips Highway, the rent and utility total amount that the family had been paying at the Park. The evidence shows, however, that the living arrangements under which they occupied that dwelling in the Park were not the result of an arms-length transaction and that, in reality, the family was not paying any rent for the premises. Therefore, the Department had to impute a rental figure for them. Accordingly, Mr. William Kelbaugh, a Property Appraiser for the Department, made that imputed calculation, based upon the square footage of the Allen-Scott mobile home and the amount per square foot paid for other decent, safe, and sanitary dwellings in the same area, or comparable residences. After establishing that the average rent for mobile homes was approximately $.41 per square foot, Mr. Kelbaugh multiplied the square footage of the Allen-Scott family mobile home by that figure and, after making a deduction because of the condition of the Park, in terms of the actual rental value of the premises they had been living in, he arrived at a "market rental" of $375.00 per month. He then reduced the "market rental" figure by 15 percent based upon his observation of the premises, its condition, and his experience of 20 years or more in making such appraisals. The Department also had to include utility payments in its calculation. It received information from two utility companies about the family's utility bill over the prior 12-month period and computed an average monthly utility payment amount of $202.29. The Department also attempted to establish the family's income. It was required to do so because, in calculating the payment to be made for relocation assistance, the Department must subtract from the new rent and utility payment the smaller of the sums equal to the rent paid or, in the Petitioner's case, imputed, or 30 percent of gross monthly family income. In trying to determine their income amount, the Department asked the Petitioner and Mr. Scott to provide income information on its income certification form, which the Petitioner and Mr. Scott signed and dated March 10, 1993. The Petitioner represented that their income came from Aid to Families with Dependent Children and other welfare benefits, which are not considered income for purposes of the Department's calculation of relocation assistance. Mr. Scott represented that he earned $3,764.25 in income and $3,000.00 in "income from rental" for 1992, which is the year used in making the calculation. The Department asked repeatedly for verification of their income figures in the form of tax records, payroll stubs, or statements from employers. Mr. Scott, however, worked for his parents, the former owners of the Park. They were asked to provide pay stubs and other verification of his income but did not do so at any time during 1993. Relocating the family was a protracted affair because the family required a four-bedroom mobile home, and such dwellings for rental are scarce. On September 14, 1993, the Department delivered an updated income certification form, since the one that the Petitioner and Mr. Scott had signed in March 1993 had expired. The Petitioner signed that form on September 14, 1993, and Mr. Scott signed it on September 22, 1993. That form indicated that Mr. Scott's income was certified by him as gross wages and salaries equal to $3,764.25. No verification of this income had been provided, however, so the Department calculated the relocation assistance due the family by using the market rental figure of $375.00, plus $202.29 for utilities. The Petitioner and Mr. Scott refused to accept this figure and appealed the determination to the Department's "central office". While their appeal was pending in the Department's process, the Department, at the Petitioner's request, located another four-bedroom mobile home for rent on Beaver Road in Jacksonville, Florida. This was with the assistance of Robert Scott, Mr. William Scott's father. The Department re- calculated the Allen-Scott family relocation assistance eligibility supplement. The re-calculated amount was $6,161.82. That amount was presented to the Petitioner and Mr. Scott, but they refused to accept it. On December 7, 1993, Mr. Bud Eddleman, the Department's Administrator of Relocation Assistance, made his decision concerning the Petitioner's appeal and concluded that the $6,161.82 sum to be correct. On February 17, 1994, the Department received a handwritten note signed by Vivian Scott, William Scott's mother, stating that William Scott had been paid $842.25 in cash in 1992 and was furnished rent in lieu of salary equal to $3,000.00. (See Exhibit 8 in evidence). The Petitioner, thus, took the position that that was the totality of income of the family during the calculation period in question, as that relates to the calculation of the amount of relocation benefits they felt they should receive. The Department takes the position that this verification is not accurate and acceptable for a number of reasons. The Allen-Scott household had numerous possessions that suggested a lifestyle that could not be supported by a discretionary income of $842.25 annually. The family could apparently afford $202.79 per month as an average utility payment. Further, the family acquired a second car during the time period that Department employees were on the premises in the process of making its calculation and appraisal. The family had the funds to acquire and operate two cars, pay the utilities throughout 1993; and their personal property included certain items of antique furniture, at least four televisions, and three videocassette recorders. The Petitioner contended at hearing that Mr. Scott had no income because of the inverse condemnation proceedings because his work had been as a maintenance man for the operating Park. This is irrelevant in the context of relocation assistance, which concept is not designed to include considerations of whether the displacee is rendered unemployed by the taking of the property involved. It is also irrelevant factually because the year in question was 1992, and the relocation of people from the Park could not begin until 1993. Even then, Mr. Scott's maintenance duties would be needed for a certain period of time. Thirdly, there is also evidence that Mr. Scott worked on projects other than those located in the Park, for which he earned income. Mr. Scott did not provide tax returns, pay stubs, bank records, or a statement from his employer (his parents) despite numerous entreaties by the Department to do so. No more defining, verified evidence of the family income was offered at hearing. Accordingly, the income figures which the Petitioner provided are not credible. The family lifestyle and possessions evidence much more income than Mr. Scott would admit. The only evidence produced to verify Mr. Scott's income was sent from his mother some two months after the Department denied the "appeal". The statement is not credible, as Mrs. Scott alleged that in 1992, her son had been paid $842.25 for his work as a maintenance man. Mr. Scott's parents paid another resident of the Park $4,609.92 for performing the same type of work, at the same time. Further, the Petitioner testified inconsistently at hearing regarding income. She said on the one hand that Mr. Scott's parents "took the rent out of his paycheck", and on the other hand, said that he made approximately $127.00 per week as a maintenance man and Mrs. Scott "sometimes wrote him a check" and "would take out, you know, a little bit each week". This testimony demonstrates that, with the other evidence referenced above, the Allen-Scott family has not been forthcoming concerning its income. The totality of the evidence shows that Mr. Scott and his parents, as his employer, the source of the Petitioner's relevant income, had not been acting in good faith. Accordingly, it is reasonable to compute the relocation assistance payments by ignoring the 30 percent factor and instead merely subtracting the old rent and utilities from the new rent and utilities chargeable at the new premises occupied by the Allen- Scott family. The income figures presented by the Petitioner are simply unverified and are not credible. Another candidate for relocation assistance, Kirk Kostenko, a resident of the Park, refused to provide income verification. In his situation, as in that of the Allen-Scott family, represented by the Petitioner, the income figures presented by the Petitioner were not accepted by the Department. In the Kostenko situation, no relocation assistance was paid. While the Petitioner argued and made reference to other families allegedly receiving much larger sums for relocation assistance from the Park, the Petitioner produced no evidence that different standards or criteria were applied in those situations, as opposed to those applied to her family situation involved in the relocation assistance payment question. She adduced no evidence that would demonstrate that the Department had acted in a manner departing from the standards of its rules and procedures or in a manner aberrant from its normal policy in calculating the relocation assistance payments in the manner found above. The relocation assistance program is not a social welfare program based upon actual financial need of a family or based upon the number of dependents involved. Rather, it is a program to compensate persons forced to find replacement housing because the Department acquires their private property, either through eminent domain or inverse condemnation. The assistance is based upon what the family was paying for its rent and utilities and what it would have to pay for them after relocation. The final figure presented and supported by the Department in this proceeding was calculated by applying the regular, accepted criteria set out in the Department's rules, regulations and procedures.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered finding that the relocation assistance benefit, which the Department proposes to award the Petitioner in the amount of $6,161.82, is reasonable and should be awarded. The Petition should be dismissed in its entirety. DONE AND ENTERED this 1st day of September, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, 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 1st day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4899 Petitioner's Proposed Findings of Fact The Petitioner presented no discreetly set forth proposed findings of fact. Rather, in essence, the Petitioner's post-hearing "pleading", in letter form, consists essentially of argument concerning the quantity and quality of evidence. Therefore, specific rulings on proposed findings of fact cannot be made. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact numbers 1-34 are accepted, to the extent consistent with those made by the Hearing Officer. Those proposed findings of fact which are not consistent with those made by the Hearing Officer are rejected as being either not supported by preponderant evidence of record, being irrelevant, immaterial or unnecessary to the resolution of the disputed issues. COPIES FURNISHED: Ms. Emma Allen 3523-1 Alcoy Road Jacksonville, FL 32221 Thomas H. Duffy, Esq. Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Attn: Diedre Grubbs, M.S. 58 Thornton J. Williams, Esq. General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
Findings Of Fact The Department is an agency of the executive branch of the State of Florida. Mr. Crowell, prior to February, 1990, was employed as a career service employee of the Department for approximately 19 years. Mr. Crowell has worked for the State of Florida for approximately 24 years. Immediately prior to and during part of February, 1990, Mr. Crowell was employed as a Community Assistance Consultant with the Department's Community Development Block Grant Program (hereinafter referred to as the "Grant Program"). Wanda A. Jones, Planning Manager of the Grant Program, was Mr. Crowell's immediate supervisor at all times relevant to this proceeding. The Department has incorporated the provisions of Rule 22A-8.011, Florida Administrative Code, governing the use of leave, in the Department's Policies and Procedures No. 1109.01. Pursuant to Policies and Procedures No. 1109.01, Department employees are required to notify their supervisor of any illness and obtain approval of the use of annual leave. Mr. Crowell was counseled by Ms. Jones in January or February, 1989, concerning his failure to obtain authorization for use of sick leave each day that Mr. Crowell was sick. Ms. Jones also explained this requirement at two or three staff meetings. Mr. Crowell was aware of the Department's requirements concerning the use of leave. Mr. Crowell was required to travel as a part of his employment. Mr. Crowell traveled an average of two times per month. Mr. Crowell submitted an Authorization to Incur Travel Expense dated December 7, 1989 (hereinafter referred to as the "December 7, 1989, Request"), to the Department requesting authorization to travel on State business on December 13, 14 and 15, 1989. The December 7, 1989, Request was approved by the Department. Mr. Crowell indicated in the December 7, 1989, Request that "[p]ersonal car will be used for entire trip." Mr. Crowell did not own a motor vehicle during the period of time at issue in this proceeding. Mr. Crowell intended to rent an automobile, pay the rental charges himself and claim reimbursement only for mileage incurred in travel on State business. Mr. Crowell had been issued a Budget Rent-A-Car (hereinafter referred to as "Budget"), credit card by the Department on October 6, 1989. Mr. Crowell signed a Department form at the time the Budget credit card was issued acknowledging the following: that on the date above I received the above-described credit card; that I, by my signature hereon have acknowledged that I understand all policies and procedures governing the use of said card; and that I have been advised that abuse of the use of this card may result in dismissal from employment with this Department and possible prosecution under the laws of Florida. On December 13, 1989, Mr. Crowell rented an automobile from Budget. Mr. Crowell was given a Lincoln Town Car (hereinafter referred to as the "Lincoln") because of the unavailability of a smaller automobile. Mr. Crowell signed a rental agreement (hereinafter referred to as the "Rental Agreement") for the Lincoln indicating that the rental fees were to be charged to the Department through the Budget credit card issued by the Department to Mr. Crowell. Pursuant to the Rental Agreement, Mr. Crowell was to rent the Lincoln for approximately three weeks, turning it in on January 3, 1990. The Rental Agreement listed the costs of renting the Lincoln for an hour, a day, a week or a month. Mr. Crowell submitted a Voucher for Reimbursement of Traveling Expenses dated December 19, 1989, to the Department for authorized travel on December 12-15, 1989. Mr. Crowell indicated that a "[p]ersonal car was used for entire trip" and he claimed reimbursement of $107.00 for mileage driven. During early January, 1990, Mr. Crowell went to a Budget office with the intent of returning the Lincoln he had rented on December 13, 1989. Mr. Crowell was told that he owed close to $600.00. Mr. Crowell had thought that he would owe approximately $375.00 and, therefore, had not brought enough money to pay the total rental charge. Mr. Crowell left without paying the rental charge or returning the Lincoln. On December 28, 1990, Mr. Crowell submitted three separate Authorization to Incur Travel Expense forms to the Department seeking approval of travel for State business in January and February, 1990. On the three forms "pov" was noted. Mr. Crowell used "pov" as an abbreviation for "privately owned vehicle." Mr. Crowell submitted a Voucher for Reimbursement of Traveling Expenses to the Department for two authorized trips for January, 1990. Mr. Crowell indicated that a "pov was used" on one of the vouchers and he claimed reimbursement for mileage driven on both forms. Mr. Crowell used the Lincoln he had rented on December 13, 1989, for the January, 1990, trips he was reimbursed for. Sometime during January, 1990, the Tallahassee branch manager of Budget, Russell Kennedy, became concerned that Mr. Crowell was late returning the Lincoln. Therefore, Mr. Kennedy contacted Mr. Crowell and inquired about when he intended to return the Lincoln. Mr. Crowell indicated that he would return the Lincoln on February 1, 1990. On January 30, 1990, the Department's personnel director, Mark Helms, was informed by the Director of the Housing and Community Development Division, the Division in which Mr. Crowell was employed, that he had been notified that Mr. Crowell had rented the Lincoln with his Department-issued credit card and that the Lincoln had not been returned or paid for. Mr. Helms contacted Mr. Kennedy. Mr. Kennedy informed Mr. Helms that Budget considered the Department to be liable for the rental of the Lincoln. Mr. Kennedy indicated that Mr. Crowell had agreed to return the Lincoln on February 1, 1990. Mr. Crowell did not return the Lincoln on February 1, 1990. Mr. Helms spoke with Mr. Kennedy on Monday, February 5, 1990, and was informed that Mr. Crowell had not returned the Lincoln. Mr. Helms informed the Division Director. On February 5, 1990, Ms. Jones was told by the Division Director to meet with Mr. Crowell and instruct him to resolve the problem he had created by renting the Lincoln with the Department-issued Budget credit card. Ms. Jones met with Mr. Crowell at approximately 3:00 p.m., Monday, February 5, 1990. Ms. Jones informed Mr. Crowell that the Department was concerned that he had rented the Lincoln using the Budget credit card issued to him by the Department because of the Department's potential liability for the rental. Ms. Jones informed Mr. Crowell that he had to resolve the problem he had created with Budget immediately. She suggested that, although she could not tell him how to use his leave time, he should consider taking time to take care of the matter. Mr. Crowell left the meeting and returned shortly thereafter with his time sheet. Mr. Crowell requested that Ms. Jones approve annual leave from 3:30 p.m. to 5:00 p.m., February 5, 1990, and all day Tuesday, February 6, 1990. Ms. Jones approved Mr. Crowell's request. Mr. Crowell left work at approximately 3:30 p.m., February 5, 1990. Mr. Crowell did not return to work on February 6, 1990. On Wednesday, February 7, 1990, and Thursday, February 8, 1990, Mr. Crowell spoke by telephone to an employee of the Department that worked in another section and got the employee to leave a "Post-It" note on his door both days indicating "O.C./SL". Mr. Crowell did not report to work on February 7 or 8, 1990. Ms. Jones treated Mr. Crowell as having used sick leave for these two days. On February 8, 1990, Ms. Jones sent a letter to Mr. Crowell informing him that his failure to resolve the matter with Budget was a serious disciplinary matter. Ms. Jones did not attempt to telephone Mr. Crowell because he did not have a telephone. Ms. Jones did, however, telephone Cheryl Jamison, whom Ms. Jones believed to be Mr. Crowell's daughter-in-law. Ms. Jones left a message on an answering machine to have Mr. Crowell call her immediately. On Friday, February 9, 1990, and Monday, February 12, 1990, through Thursday, February 15, 1990, Mr. Crowell did not come to work, call in sick or otherwise inform the Department of the reason for his absence or obtain approval for his absence. Mr. Crowell has not returned to work at the Department since February 5, 1990. At the formal hearing Mr. Crowell testified that he did not inform Ms. Jones that he would not be at work on February 9, 1990, or thereafter because she had instructed him to not come back until he resolved the problem with Budget over the rental of the Lincoln. This testimony is inconsistent with Ms. Jones' testimony and Mr. Crowell's actions on February 5, 1990, and February 7 and 8, 1990. If Mr. Crowell had in fact been instructed not to return until he resolved the Budget problem and that he did not have to worry about following established procedures for absences, Mr. Crowell would not have gotten approval for annual leave for February 5 and 6, 1990, or informed the Department that he would not be at work on February 7 and 8, 1990, because he was sick. On February 12, 1990, Ms. Jones telephoned and spoke with Nathan Crowell, Mr. Crowell's son. Ms. Jones indicated that she needed to speak with Mr. Crowell. She was told that Mr. Crowell had been told that she was trying to contact him. Mr. Crowell received the letter sent by Ms. Jones on February 8, 1990. Mr. Crowell was also aware that Ms. Jones had called his son's telephone number attempting to get in touch with him. Mr. Crowell made no effort, however, to respond to Ms. Jones. The Division Director was informed by Ms. Jones on February 15, 1990, that Mr. Crowell had been absent for five days without authorization. The same day Mr. Helms received a memorandum from the Division Director recommending that Mr. Crowell be treated as having abandoned his employment with the Department. Mr. Helms prepared a letter for the Secretary's signature informing Mr. Crowell that the Department was treating Mr. Crowell that he had abandoned his position. At the time that the Department decided to treat Mr. Crowell as having abandoned his position, the Department was aware of efforts by Budget to contact Mr. Crowell and obtain a return of the Lincoln. Budget had sent a certified letter to Mr. Crowell on February 7, 1990, informing Mr. Crowell that criminal charges would be brought against him if he did not return the Lincoln. The return receipt was returned on February 13, 1990, signed by Mr. Crowell. Mr. Crowell still did not return the Lincoln. Mr. Kennedy had also driven by Mr. Crowell's residence several times during early February, 1990, looking for the Lincoln. The Lincoln was not found. The letter from the Secretary was sent to Mr. Crowell by certified mail, return receipt requested, on February 15, 1990. Mr. Crowell received the letter on February 22, 1990. Mr. Crowell returned the Lincoln to Budget on Sunday, February 18, 1990. Mr. Crowell did not pay for the rental of the Lincoln at that time. On February 27, 1990, Mr. Crowell telephoned Mr. Helms. This was his first contact with the Department since February 5, 1990. Mr. Crowell did not indicate that he had not abandoned his position or offer any explanation. Mr. Crowell merely asked Mr. Helms about continued insurance coverage and the payment for his accrued sick and annual leave. Mr. Crowell sent a letter to the Department of Administration dated March 6, 1990, contesting the Department's determination that he had abandoned his employment. On March 7, 1990, Mr. Crowell met with Mr. Helms and Barbara Jo Finer, a Department Senior Attorney. Mr. Crowell discussed payment of the Budget rental charges he had incurred with the payment he was to receive for his unused annual leave as a result of his termination of employment. Budget was paid the rental charges incurred by Mr. Crowell for use of the Lincoln on April 16, 1990. Budget was paid $1,734.03 of Mr. Crowell's payment from the State of Florida for his unused leave. In addition to the inconsistencies in Mr. Crowell's testimony described in Finding of Fact 29, Mr. Crowell evidenced a lack of credibility while testifying on two other matters. First, Mr. Crowell testified at the formal hearing that he did not receive a telephone call from a representative of Budget. This testimony is contrary to Mr. Crowell's testimony during his deposition taken on June 18, 1990. Secondly, Mr. Crowell testified that he was not notified that his deposition was available to read until 5:00 p.m., Thursday, July 5, 1990. This testimony was contradicted by the office manager of Accurate Stenotype Reporters, the firm which had the deposition prepared.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order concluding that Oscar Crowell abandoned his position of employment with the Department and dismissing the petition in this case with prejudice. DONE and ENTERED this 28th day of September, 1990, in Tallahassee, Florida. LARRY J. SARTIN 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 28th day of September, 1990. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Crowell's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Page I: 1st Paragraph 32. 2nd Paragraph Hereby accepted. 3rd Paragraph Not supported by the weight of the evidence. Page II: Not supported by the weight of the evidence. The first sentence is accepted. The rest of the paragraph is not supported by the weight of the evidence. The first sentence is accepted. The rest of the paragraph is not supported by the weight of the evidence. Page III: 1st paragraph Hereby accepted. Although the Department did take the position that it was not liable for the total rental charge incurred by Mr. Crowell for use of the Lincoln, Budget was taking the position that the Department was liable. Therefore, there remained a potential liability which the Department was concerned with. 2nd paragraph Not supported by the weight of the evidence. 3rd paragraph Not supported by the weight of the evidence. 4th paragraph Not supported by the weight of the evidence. 5th paragraph (including part of this paragraph which appears on page IV) Not supported by the weight of the evidence. Page IV: 1st full paragraph Not relevant to this proceeding and not supported by the weight of the evidence. 2nd paragraph The first sentence is not supported by the weight of the evidence. Even if Ms. Jones had told Mr. Crowell to resolve the problem before returning to work, it was unreasonable for Mr. Crowell to not return to work for almost two weeks without obtaining authorization for such an extended absence. The rest of the proposed findings of fact are not supported by the weight of the evidence. 3rd paragraph Not supported by the weight of the evidence. Not relevant or supported by the weight of the evidence. (including part of this paragraph which appears on page V) Not supported by the weight of the evidence. Page V: st paragraph Hereby accepted. nd paragraph The weight of the evidence failed to prove that Mr. Crowell was directed to leave and not return. The rest of this paragraph has been accepted in Finding of Fact 26. rd paragraph Not supported by the weight of the evidence. th paragraph Not supported by the weight of the evidence and argument. Page VI: 1st paragraph Not supported by the weight of the evidence. 2nd paragraph Not supported by the weight of the evidence. 3rd paragraph The first sentence is hereby accepted. The rest of the proposed findings of fact are not supported by the weight of the evidence. 4th paragraph 2. Except for the first sentence, these proposed findings of fact are not supported by the weight of the evidence. 5th paragraph This paragraph is Mr. Crowell's recommendation and not a finding of fact. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2, 27 and 32. 2 1-2. 3 4. 4 3. 5 7. 6 Hereby accepted. 7 5. 8 6. 9 Hereby accepted. 10 12, 23-24. 11 24. 26. The last four sentences are not relevant to this proceeding. The Department treated Mr. Crowell as having taken sick leave on February 7 and 8, 1990. The Department did not treat Mr. Crowell as being absent without authorization on those days. Hereby accepted. 14-15 27. 16 30. 17-18 28. 19 31. 20 Hereby accepted. 21 36. 22 32 and 34. The first two sentences are hereby accepted. The rest of this proposed finding of fact is not relevant to this proceeding. Mr. Crowell requested a formal hearing to contest the Department's decision by letter dated March 6, 1990. His failure to discuss the matter after that date, therefore, does not support a conclusion that Mr. Crowell was abandoning his employment. 38. The last sentence is not relevant to this proceeding for the same reasons the last part of proposed finding of fact 23 is not relevant. See 29. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. It is not clear what Mr. Crowell meant. See 5. Hereby accepted. Subparagraph (b) does not support a conclusion that Mr. Crowell abandoned his position. 29 12. 30 20. 31 23. 32 33. 33-34 33. 35 12, 14, 17-18 and 35. 36 Hereby accepted. 37-44 and 47 Mr. Crowell did make the statements referred to in these proposed findings of fact and they are not consistent. As the trier of fact, I do not find that Mr. Crowell's credibility was called into question by these inconsistencies. 45-46 40. COPIES FURNISHED: Oscar Crowell 1038 Preston Street Tallahassee, Florida 32304 G. Steven Pfeiffer General Counsel Barbara Jo Finer Senior Attorney Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399
Findings Of Fact Negotiations for the purchase of right-of-way property for construction of Interstate Highway 95 in Palm Beach County, Florida, began on May 1, 1973. On that date the Applicant lived in an apartment at 27 S.W. 15th Avenue, Delray Beach, Florida with Ms. Willie Hendley, and seven children. The Applicant and Ms. Hendley began living together in approximately 1968. Ms. Hendley had five children at that time. The Applicant and Ms. Hendley had two more children between 1968 and 1973. This residence was located within the highway right-of- way. The Applicant was notified by the Agency that it would be necessary for them to relocate. The applicant, Ms. Hendley, and the seven children moved to a house at 230 N. W. 13th Avenue, Delray Beach, Florida, in approximately August, 1973. The Agency found the new living quarters inadequate under the regulations of the Federal Department of Transportation, which require that replacement housing must be decent, safe, and sanitary. An agent of the Agency informed the Applicant that in order to receive relocation benefits, the new residence would need to be made decent, safe, and sanitary, or the family would have to move to a new location that would meet the requirements. Several months after they moved to the house on N.W. 13th Avenue, the Applicant and Willie Hendley separated. The Applicant moved out of the house, and found a home on N. E. 9th Avenue. He anticipated that Ms. Hendley and the children would move into this home, but they did not. The Applicant stayed at this address for approximately one month. He then moved into a room at his sister's home where he stayed until the end of 1975. After they separated, Ms. Hendley and the children moved into a residence at 917 S. W. 3rd Ct., Delray Beach, Florida. This residence met the requirements of the Department of Transportation, and Ms. Hendley received relocation assistance benefits. The Applicant and Ms. Hendley and the seven children were displaced from their residence at 27 S. W. 15th Avenue, Delray Beach, Florida, as a result of the acquisition of right-of-way for Interstate Route 95. The Applicant was later displaced from the family household as a result of his separation from Ms. Hendley. There was no evidence offered at the hearing that the Applicant moved into living quarters that were comparable to the quarters at 27 S. W. 15th Avenue. That was a two bedroom apartment. The Applicant moved into a single room. The Applicant's displacement was in effect the result of his separation from Ms. Hendley, rather than the result of the acquisition of right-of-way.
The Issue The issue is whether Islamorada Ordinance 01-05, which amended Policy 1-2.4.7 of Islamorada's comprehensive plan, is in compliance, as provided by Chapter 163, Part II, Florida Statutes.
Findings Of Fact Respondent Islamorada, Village of Islands (Islamorada), was incorporated on December 31, 1997. At the time of its incorporation, the Monroe County comprehensive plan applied to requests for development orders in the jurisdiction of Islamorada. After conducting a number of public hearings and workshops, Islamorada adopted its initial comprehensive plan by Ordinance 00-09 on January 24, 2001 (Plan). On March 15, 2001, Respondent Department of Community Affairs (DCA) published its Notice of Intent to Find the Islamorada Comprehensive Plan not in compliance with Chapter 163, Part II, Florida Statutes, which is the Local Government Comprehensive Planning Act (Act). DCA commenced Department of Community Affairs v. Islamorada, Village of Islands, DOAH Case No. 01-1216GM, to challenge the Plan. As the only parties to DOAH Case No. 01-1216GM, DCA and Islamorada entered into a Stipulated Settlement Agreement, under which Islamorada agreed to adopt certain remedial amendments. Consequently, on April 26, 2001, Islamorada adopted Ordinance 01-05, which contained the remedial amendments. On May 24, 2001, DCA published its Notice of Intent to Find the Comprehensive Plans and Remedial Comprehensive Plan Amendments in compliance with the Act. Consequently, on June 6, 2001, the Administrative Law Judge issued an Order Closing File in DOAH Case No. 01-1216GM. On the same day, Petitioner filed his Petition, which alleges that Policies 1-2.4.7 and 1-2.1.0 are not supported by data and analysis. Ordinance 01-05 did not change Policy 1-2.1.0. For the reasons noted in the Conclusions of Law, Petitioner therefore is unable to challenge Policy 1-2.1.0. With deletions stricken through and additions underlined, Ordinance 01-05 revised Policy 1-2.4.7 as follows: Policy 1-2.4.7: Limit Transient Rental Use of Residential Properties. Islamorada, Village of Islands shall continue to prohibit the transient rental use of 28 days or less, of residential properties within the Village, including properties located within the Residential Conservation (RC), Residential Low (RL), Residential Medium (RM), and Mixed Use (MU) Future Land Use categories, except in tourist commercial Zoning Districts as provided for under Policy 1-2.10 of this Plan. Transient rental use may be allowed continue in multi- family developments with 24-hour on-site security, excluding mobile home parks, in the Residential High (RH) FLUM categories based on an existing use as of May 1, 1999, upon a majority approval of all property owners within a mandatory owner association organized under Florida law, pursuant to the association requirements, and compliance with all applicable State regulations and Village codes. Property owners located in the RL, RM, RC and MU future land use categories with valid transient rental licenses as of May 1, 1999 will have until May 1, 2003 to cease rentals of 28 days or less. Owners of such properties shall register with the Village and shall demonstrate to the Village that: The transient use of 28 days or less of the property in question was existing as of May 1, 1999, and continues to exist; All State and local licenses necessary for the conduct of transient rental use of the property have been secured; and All impact fees have been paid. Property owners permitted transient rental use pursuant to this Policy shall lose their privileges and retire their licenses prior to May 2, 2003 upon: Transfer of ownership of the property at which the transient rental activity takes place; or A combination of two of the any of the following being recorded: Code Violations as determined by the Hearing Officer and/9or Sheriffs Field Contacts and/or substantiated written letters of complaint from neighbors submitted and on record with the Village. the property being determined by nonappealable Final Order on more than two (2) occasions to have violated the Village Code. After Islamorada adopted Ordinance 01-05, Petitioner filed his petition challenging Policy 1-2.4.7. After Petitioner filed his petition, Islamorada adopted Ordinance 01-11, which repealed the amendments contained in Ordinance 01-05 and restored Policy 1-2.4.7 to its original form. However, Islamorada adopted Ordinance 01-11 on July 24, 2001--three weeks prior to the start of the hearing in this case. DCA had not yet issued a notice of intent, and the amended plan language was therefore largely irrelevant in this case. For the same reasons, as explained in the Conclusions of Law, that Petitioner may not challenge Policy 1-2.1.10, he may not challenge Policy 1-2.4.7; Petitioner's challenge is limited to the revisions contained in Ordinance 01-05. The revisions contained in Ordinance 01-05 relax the restrictions governing transient rentals, as contained in the original Plan. In its original form, Policy 1-2.4.7 required the cessation of transient rentals not in compliance with the policy by the earliest of: a) May 1, 2003, b) the conveyance of the rental property, or c) a combination of two Code violations or verified neighborhood complaints. The revisions eliminate the conveyance as an event terminating the right to enter into transient rentals, so, after the adoption of Ordinance 01-05, affected property owners could convey residences without depriving their grantees of the right to make transient rentals prior to May 1, 2003. The revisions also eliminate verified neighborhood complaints as a basis for the loss, prior to May 1, 2003, of the right of affected property owners to make transient rentals prior to May 1, 2003. The ruling that Petitioner may not challenge Policy 1-2.4.7 in its original form moots Petitioner's case. It is evident that Petitioner does not oppose the relaxation of restrictions on transient rentals, as achieved by Ordinance 01-05. In any event, data and analysis amply support the decision of Islamorada to relax the restrictions that it had imposed upon transient rentals. Neighborhood complaints supply a nebulous standard, and substantiation of such complaints, without defining the extent of verification, provides little more guidance. Legal counsel supported the elimination of the restriction on conveyances. Given the close proximity of the ultimate compliance deadline, the restriction on conveyances probably did not substantially affect the market value of affected properties, so Islamorada could find data and analysis supporting the inclusion or exclusion of this condition shortening the timeframe for compliance upon the sale of an affected residence. Even if Petitioner had timely challenged Policy 1-2.4.7, in its original form, data and analysis support the planning decision of Islamorada to restrict transient rentals. Transient rentals in residential neighborhoods facilitate a constant churning of home occupants. To the extent that this process displaces longer-term occupancy, transient rentals impede the process by which neighborhoods and communities form and residents in these neighborhoods and communities connect with each other. The commodification of neighborhoods in the service of tourism provides positive economic development to those property owners seeking to make transient rentals. However, to some extent, these economic gains are offset by those residents who wish to sustain less economically intense lifestyles. The desires of such residents may be ill-served by local merchants who price their goods to the more economically intense lifestyle of the tourist or by the replacement of more prosaic retailers, such as hardware stores, with the more ephemeral retailers, such as t-shirt stores. To find support in data and analysis, the community envisioned by Islamorada in its Plan is not required to achieve the highest and best use for the greatest number of owners of property or the owners of the greatest area of property within the village's planning jurisdiction. On this record, data and analysis clearly support the planning decision initially made by Islamorada in adopting Policy 1-2.4.7, as well as the planning decision later made by Islamorada in relaxing the restrictions contained in this policy.
Recommendation It is RECOMMENDED that the Department of Community Affairs enter a final order dismissing Petitioner's challenge to Ordinance 01-05 and finding the amendments contained in the ordinance to be in compliance with Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2001. COPIES FURNISHED: Steven M. Seibert Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Charles Rossignol 253 Tollgate Boulevard Islamorada, Florida 33036 Nancy Stroud Weiss Serota Helfman Pastoriza & Guedes, P.A. 3107 Stirling Road, Suite 300 Fort Lauderdale, Florida 33312 David L. Jordan Deputy General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 John R. Herin, Jr. Weiss, Serota, Helfman, Pastoriza & Guedes 2665 South Bayshore Drive Suite 420 Miami, Florida 33133
The Issue Whether the Appellant has been paid relocation assistance benefits in accordance with the law and applicable regulations.
Findings Of Fact The Appellant, Mr. Alfred J. Harris, lived in a one bedroom mobile home on property identified as Parcel No. 145 on Interstate 95. The area on which Mr. Harris and his wife and daughter lived was needed for the Interstate Highway and Mr. Harris became eligible for relocation assistance funds. Relocation assistance eligibility was found to be Eleven Thousand One Hundred Fifty Dollars ($11,150.00) which was based on the difference between a comparable home and location and the land of Mr. Harris. The eligibility mistakenly did not include the mobile home on Mr. Harris' land. A comparable mobile home and lot was found for Mr. Harris and his family in the general area where he lived which could have been purchased for Twenty-Six Thousand Five Hundred Dollars ($26,500.00) in relocation benefits as well as receiving payment of Fifteen Thousand Three Hundred Fifty Dollars ($15,350.00) for his land. It was not learned until after the computation for relocation assistance was made and paid that Mr. Harris and his wife had living with them a daughter. The fact that the mobile home was a one bedroom home and three people were living there removed the home from the condition of decent, safe and sanitary housing for the occupants therein. Had the computation been made for relocation assistance with the knowledge that the mobile home in which the Appellant lived did not meet the conditions for decent, safe and sanitary housing, the relocation assistance benefits would have been Nine Thousand Two Hundred Fifty Dollars ($9,250.00) which is less Sixteen Hundred Dollars ($1,600.00), the amount for which Mr. Harris sold his mobile home. Mr. Harris was paid Sixteen Hundred Dollars ($1,600.00) more than he would have been entitled to had the Appellee, the Florida Department of Transportation, not made an error with respect to the mobile home which Mr. Harris later sold by transfer upon the buyer assuming the payments of Sixteen Hundred Dollars ($1,600.00). Mr. Harris and his family decided to buy a conventional type home for the sum of Twenty-Six Thousand Two Hundred Dollars ($26,200.00) rather than the comparable mobile home and land found by the Appellee for the Appellant which was valued at Twenty-Six Thousand Five Hundred Dollars ($26,500.00) . Mr. Harris then refunded Three Hundred Dollars ($300.00) to the Appellee from the Eleven Thousand One Hundred Fifty Dollars ($11,150.00) he had received in relocation assistance. The problem of the overpayment by the Appellee to the Appellant was reviewed by the federal government which refused to absorb the relocation benefits overpaid to Mr. Harris in the amount of Sixteen Hundred Dollars ($1,600.00) but he Appellee, Florida Department of Transportation, agreed that inasmuch as it had made the error and overpaid the Appellant Sixteen Hundred Dollars ($1,600.00), it would absorb the mistake and not collect the amount from the Appellant. The Appellant, Mr. Harris, had misunderstood the error of Appellee and the amount of overpayments and was under the mistaken belief that the Department of Transportation, Appellee, owed him additional relocation assistance monies. Thus, he filed a Complaint on February 18, 1976.
Recommendation Dismiss the appeal inasmuch as the Appellee owes no monies to the Appellant. DONE and ORDERED this 28th day of April, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire George L. Waas, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Alfred J. Harris 509 Tumbling Kling Road Fort Pierce, Florida Mr. Joseph A. Alfes, Chief Bureau of Right of Way Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
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 Whether applicant is eligible for relocation assistance monetary benefits pursuant to Public Law 91-646 and Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Although notice of hearing was provided to Mr. and Mrs. Limegrover on March 26, 1976, they did not appear at the time of hearing. Upon telephonic inquiry on June 8th by a representative of the Department of Transportation, Mr. Limegrover advised that he had received the notice and although he had intended to call the Department of Transportation concerning the matter, he had forgotten to do so. He stated that he desired a continuance of the case. His request was objected to by counsel for the Department of Transportation. The request for continuance was denied as being untimely and good cause not having been shown therefor. The hearing was conducted as an uncontested proceeding.
Findings Of Fact By letter of October 20, 1975, Mr. and Mrs. Richard Limegrover of Courtly Manors Mobile Home Park, Hialeah Gardens, Florida, were advised by the Florida Department of Transportation that it was in the process of acquiring right-of-way for State Road #25 (U.S. 27) in their area, and that the mobile home lot the Limegrovers occupied as tenants would be required for construction of the facility. The letter provided the Department's assurance that they would not be required to move until at least 90 days had elapsed from the date of receipt of the letter, and that they would receive a further notice specifying the actual date by which the property must be vacated at least 30 days prior to the date specified. The letter concluded by an expression of the Department's desire to assist in relocation and to answer any questions concerning such matters. On December 8, 1975, a further letter was sent to the Limegrovers by the Department of Transportation assuring the addressees that the prior letter had not been a notice to move and that no one at the Courtly Manors Mobile Home Park would be required to move until negotiations with the owner had been completed or monies placed with the Clerk of the Circuit Court of Dade County by court order. It further stated that in the interim period relocatees living within Courtly Manors who were eligible and decided to move on their own initiative would be assisted by the Department in their relocation. Limegrover called Mr. Carl Moon, Right-of-Way Agent, Department of Transportation, Ft. Lauderdale, on December 11, requesting assistance in arrangements for moving his mobile home. Moon discovered that Limegrover wanted to move before January 1, 1976, as he had reserved a lot in another mobile home park. However, Limegrover told him that when he advised his current landlord on December 11 of the projected move on December 30, the landlord stated that in the absence of 30 days notice, Limegrover must forfeit his $90.00 security deposit. Limegrover told Moon that he felt the Department of Transportation should pay the $90.00 security deposit since he was being forced to move by that agency. Moon told him that he was not required to move that soon, but Limegrover was unwilling to wait, fearing that he would not be able to find a satisfactory place later on. Accordingly, Moon assisted him in his moving arrangements and Limegrover was paid for his moving expenses in the amount of $640.00 and smaller sums for reinstallation of his telephone and disconnection and reconnection of his gas equipment. Inasmuch as the Department of transportation declined to pay the $90.00 representing alleged forfeiture of the security deposit, Limegrover filed this relocation appeal. (Testimony of Moon, Exhibits 1 & 2).
Recommendation That the appeal of Richard and Jane Limegrover, in the amount of $90.00, be denied. DONE and ENTERED this 13th day of July, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Phillip Bennett, Esquire Department of Transportation Room 562 Haydon Burns Building Tallahassee, Florida Richard S. and Jane E. Limegrover Lot F4, Haven Lakes Mobile Home Park 11201 S.W. 55th Street Miramar, Florida 33025
The Issue Whether Petitioner failed to secure worker’s compensation coverage for seven employees who worked from February 28, 2006, to March 3, 2006, in violation of Chapter 440, Florida Statutes, and whether, as a result, Petitioner should be assessed a penalty in the amount of $1,115.52.
Findings Of Fact Respondent, Department of Financial Services, Division of Workers’ Compensation ("the Division"), is the state agency responsible for enforcing the statutory requirement that employers provide workers' compensation coverage for their employees. Subsection 440.107, Florida Statutes (2006). Petitioner, Boudreau Concrete, Inc. (BCI), was, at all relevant times, an employer and engaged in concrete construction work in Florida. John Cipyak is a vice president with Builders Plus, a Boynton Beach Company hired to work on a Westview Office Building Site, in Port St. Lucie, Florida. Builders Plus subcontracted with BCI to perform pre-concrete form carpentry work at the site, including construction of the foundation and panels into which the concrete slab would be poured. Near the end of February 2006, Mr. Cipyak told Mr. Boudreau that the Westview project was falling behind schedule and that BCI needed more laborers on the job. Mr. Cipyak testified that Mr. Boudreau specifically agreed that his company, BCI, would hire sufficient additional manpower and would not use subcontractors. That agreement was not reduced to writing. In response to the need for additional laborers, the Division claims that BCI violated the applicable statutes and the insurance code by hiring seven carpenters, who worked at the Westview site from February 27, 2006, through March 3, 2006, as employees of BCI without providing workers' compensation insurance coverage for them. The seven carpenters are Dimas Zelaya, Francisco Figueroa, Gerardo Nava, Hector Sevilla, Jeremias Martinez, Carlos Quevedo and Jesse Hernandez. BCI claims that the seven carpenters were employees of a subcontractor, J. A. J. Construction Company, owned by Jose Alfredo Jiminez, and that Mr. Jiminez, BCI believed, carried the required workers' compensation insurance. The arrangements to have the additional workers on the project were made during a telephone call between Mr. Boudreau, Mr. Jiminez and Mr. Zelaya, who got the other six men to come with him and once they reported to the job, served as a translator for them. On March 2, 2006, Lynn Cornelius, a manager with Woodland Construction Company, Inc. (“Woodland”), sent an e-mail to Thomas Puglis, of the Division, listing the names of seven former employees of Woodland who had left Woodland’s employment, on February 24, 2006, to work for a subcontractor on another project. He named the same seven people who started work on the Westview site on the following Monday, February 27, 2006. On March 3, 2006, Mr. Puglis and Lieutenant Vance Akins, both investigators for the Division, visited the construction site where the seven former Woodland employees were working. With the assistance of an interpreter over the telephone, because no Spanish speaker was available for the site visit, the investigators instructed the seven workers to fill out Spanish language questionnaires for public works contractor licensing, provided by St. Lucie County. The investigators also tape recorded a statement from the only one of the seven men who spoke some English, Dimas Zelaya, during which, at best, he could be understood to have recognized and identified a picture of Mr. Boudreau. Lieutenant Akins telephoned another Division investigator Robert Barnes from the work site. Mr. Barnes testified that he telephoned someone who identified himself as Todd Freeman, a BCI employee, from whom he got the name of William Yocum of First Financial Employee Leasing, Inc., as the leasing company that provided workers' compensation coverage for BCI. Although he had no personal knowledge about where the seven carpenters were working from February 27 through March 3, 2006, Mr. Yocum noted that they were not covered on the policy for BCI and that the failure of BCI to report the names of all of its employees to the leasing company would violate the agreement between those two companies. Mr. Boudreau, on behalf of BCI, wrote a check dated March 10, 2006, to J. A. J. Construction Services, Inc., for $3860.00, with the notation "7 men - 2/27-3/3." BCI had no evidence of a written agreement with J. A. J. and the compensation to J. A. J. was solely for the wages earned by the carpenters. The Division's case is essentially based on the inference, without corroborating evidence, that Mr. Boudreau fabricated the subcontractor relationship and furthered that deception by writing the check after he knew BCI was being investigated for failure to secure workers’ compensation insurance. The Division based its assertion on the fact that Mr. Boudreau could not name the subcontractor during his first interviews by Mr. Barnes, saying that he was dealing with the subcontractor through Mr. Zelaya. The Division also presented evidence to demonstrate that the nature of the working relationship between BCI and the seven men was that of employer and employee, not independent contractors. That evidence was inconclusive. Although Mr. Boudreau kept their time sheets and personally supervised the work at the job site everyday from Monday through Thursday, with the assistance of Mr. Zelaya, as a translator, the carpenters brought their own tools and used materials and supplies provided by Builders Plus. The argument that J. A. J.'s role was administrative in nature is not convincing, since the same can be said of the leasing company, with which the Division asserted BCI should have obtained coverage. Mr. Barnes testified that he reviewed records of J. A. J., that someone from his office questioned Mr. Jiminez, and that they determined that the seven carpenters were not covered by J. A. J.'s workers' compensation policy during the time that they were working for Mr. Boudreau, based on some sworn statement made by Mr. Jiminez to the investigators. Mr. Jiminez did not appear as a witness in this case. The Division's investigator conceded that the Division did not determine whether or not the seven workers should have been on the J. A. J. policy. Mr. Zelaya testified that he spoke to Mr. Jiminez about getting more pay and understood that he would ". . . work with the license and insurance of Jose Jiminez. Mr. Boudreau was going to pay Jose and Jose was to pay me." Further, he stated that "Jose gets the workers, Jose makes a dollar off of the pay that we make. Mr. Boudreau was to give Jose a check, and Jose was to pay us, but Jose never paid us." Before he paid Mr. Jiminez, Mr. Boudreau requested and received from J. A. J. a workers' compensation policy, but that certificate of insurance was dated March 6, 2006, and did not appear to cover BCI for the prior week. At the same time, Mr. Boudreau added some of the workers to his own lease company policy, in an apparent attempt to continue the job, but was unable to do so after the stop work order was issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order rescinding the Stop Work Order and Order of Penalty Assessment, Amended Order of Penalty Assessment, and Second Amended Order of Penalty Assessment. DONE AND ENTERED this 8th day of June, 2007, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 8th day of June, 2007. COPIES FURNISHED: John M. Iriye, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Mary Morris, Esquire Morris & Morris, P.A. 224 Datura Street, Suite 300 West Palm Beach, Florida 33401 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
