Findings Of Fact In accordance with Joint Exhibit 1, the parties have stipulated to the following facts: FLAME MEATS, INC. That Flame Meats, Inc., a corporation for profit was incorporated on February 28, 1973. That in May of 1973 the corporation applied for a certificate of registration from the State of Florida, Department of Revenue and was issued such a certificate under sales tax number 60-23-35552-02. That Flame Meats, Inc., did not hold title to the real property on which it conducted its business at 1141 U.S. Highway No. 1, North Palm Beach, Florida, during the audit period. That the corporation had exclusive occupancy of the premises described above on which it conducted its business during the audit period. That as to Flame Meats, Inc., the real property on which it conducted its business was owned by Peter G. Makris, Trustee, and encumbered by mortgages on which Peter G. Makris, Trustee, joined by Gloria Makris his wife, were mortgagors, both deed and mortgage recorded in OR Book 2137, Pages 1247 through 1251 in the records of the clerk of the circuit court, Palm Beach County, Florida. That Flame Meats, Inc., had not made itself liable for the payment of any encumbrances on said real property on which it conducted its business by either signing, co-signing, endorsement or guarantee during the audit. That Flame Meats, Inc., made payments on the mortgage set forth in (4) above, during the audit period, in monthly amounts of $2,109.19 for a total amount of $82,258.41. Flame Meats, Inc., paid the ad valorem real property tax on said real property as described in the deed in (4) above for the tax years 1973, 1974 and 1975 in the yearly amounts respectively of $42.24, $1,651.79 and $1,740.19 for a total amount during the audit period of $3,834.22. The Flame Meats, Inc., paid insurance premiums monthly to the Home Indemnity Company, P. O. Box 1856, Jacksonville, Florida 32216, Policy Number B0BB8307236, for a total amount of $5,622.63 during the audit period. That Flame Meats, Inc., received a sales tax assessment dated October 27, 1976. That Flame Meats, Inc., received the sales tax revised assessment dated January 10, 1977, after an informal conference held in the West Palm Beach Area Office on January 6, 1977. FLAME OF NORTH PALM BEACH, INC. That the Flame of North Palm Beach, inc., a corporation for profit was incorporated on November 4, 1968. That in November, 1968, the corporation applied for a certificate of registration from the State of Florida, Department of Revenue and was issued such a certificate under sales tax number 60-23-26281-08. That the Flame of North Palm Beach, Inc. as a corporation did not hold title to the real property on which it conducted its business at 200 Yacht Club Drive, North Palm Beach, Florida, during the audit period. The corporation had exclusive occupancy of the premises on which it conducted its business during the audit period. That as to the Flame of North Palm Beach, Inc., the real property on which it conducted its business was owned by Peter G. Makris and Gloria Makris as husband and wife recorded in OR Book 1666, Page 1520 and 1521, in the records of the clerk of the circuit court of Palm Beach County. That the Flame of North Palm Beach, Inc., as a corporation had not made itself liable for the payments of any encumbrances on said real property on which it conducted its business by either signing, co-signing or endorsement or guarantee during the audit period. That the Flame of North Palm Beach, Inc., made payments on the mortgage which encumbered the real property set forth in (14) above, during the audit period, in monthly amounts of $2,920.21 until September, 1974, then in the amount of $3,300.00 for a total of $123,382.94. That the Flame of North Palm Beach, Inc., paid the ad valorem real property tax on said real property as described in the deed in (14) above for the tax years 1973, 1974 and 1975, in the yearly amounts respectively of $6,936.80, $6,342.46, and $6,101.95 for a total amount during the audit period of $19,381.21. That the Flame of North Palm Beach, Inc. paid insurance premiums monthly to the Home Indemnity Company, P. O. Box 1685, Jacksonville, Florida 32216, Policy Number BOP8307327, for a total amount of $4,419.87 during the audit period. That the Flame of North Palm Beach, Inc., received the sales tax assessment dated October 27, 1976, represented in Composite Exhibit 6. That the Flame of North Palm Beach, inc., received the sales tax revised assessment, dated January 10, 1977, after an informal conference held in the West Palm Beach Area Office on January 6, 1977. LORD CHUMLEY'S OF JUPITER, INC. That Lord Chumley's of Jupiter, Inc. a corporation for profit was incorporated on December 12, 1972. That in March of 1973 the corporation applied for a certificate of registration from the State of Florida, Department of Revenue and was issued such a certificate under sales tax number 60-11-17282-09. That Lord Chumley's of Jupiter, Inc. did not hold title to the real property on which it conducted its business at Highway A-1-A, Ocean Drive, Jupiter, Florida, during the audit period. The corporation has exclusive occupancy of the premises described above on which it conducted its business during the audit period. That as to Lord Chumley's of Jupiter, Inc., the real property on which it conducted its business was owned by Peter G. Makris, Trustee, as recorded in OR Book 2099, Page 735 in the records of the clerk of the circuit court of Palm Beach, County, Florida. That Lord Chumley's of Jupiter, Inc., had not made itself liable for the payment of any encumbrances on said real property on which it conducted its business by either signing, co-signing, endorsement or guarantee during the audit period. That Lord Chumley's of Jupiter, Inc. made payments on the mortgage which encumbered the real property set forth in (24) above, during the audit period in monthly amounts of $3,247.24 for a total amount of $126,642.36 during the audit period. That Lord Chumley's of Jupiter, Inc. paid the ad valorem real property tax on said real property as described in the deed in (24) above for the tax years 1973, 1974 and 1975 in the yearly amounts respectively of $1,862.35, $1,756.01 and $1,731.46, for the total amount during the audit period of $5,349.82. That Lord Chumley's of Jupiter, Inc., paid insurance premiums monthly to the Home Indemnity Company, P. O. Box 1685, Jacksonville, Florida 32216, Policy Number BOP8307329, for a total amount of $17,169.75 during the audit period. That Lord Chumley's of Jupiter, Inc., received the sales tax assessment dated October 27, 1976. That Lord Chumley's of Jupiter, Inc., received the sales tax revised assessment dated January 10, 1977, after an informal conference held in the West Palm Beach Area Office on January 6, 1977. LORD CHUMLEY'S OF STUART, INC. That Lord Chumley's of Stuart, Inc., a corporation for profit, was incorporated on November 14, 1973. That in December, 1973, the corporation applied for a certificate of registration from the State of Florida, Department of Revenue and was issued such a certificate under sales tax number 53-07-034130-08. That Lord Chumley's of Stuart, Inc., did not hold title to the real property on which it conducted its business at 52 U.S. No. 1, Stuart, Florida, during the audit period. The corporation had exclusive occupancy of the premises described above on which it conducted its business during the audit period. That as to Lord Chumley's of Stuart, Inc., the real property on which it conducted its business was owned by Peter G. Makris, Trustee, recorded in OR Book 358, Pages 1283 and 1284, the records of the clerk of the circuit court of Palm Beach County, Florida. That Lord Chumley's of Stuart, Inc., had not made itself liable for the payment of any encumbrances on said real property on which it conducted its business by either signing, co-signing, endorsement or guarantee during the audit period. That Lord Chumley's of Stuart, Inc., made payments on the mortgage which encumbered the real property as set forth in (34) above during the audit period in the monthly amounts of $4,923.70 for a total amount of $132,939.90. That Lord Chumley's of Stuart, Inc., paid the ad valorem real property tax on said property as described in the deed in (34) above for the tax years 1974 and 1975 in the yearly amounts respectively of $9,680.49 and $10,519.85 for a total amount during the audit period of $20,200.34. That Lord Chumley's of Stuart, Inc., paid insurance premiums monthly to Home Indemnity Company, P. O. Box 1685, Jacksonville, Florida 32216, Policy Number BOP8307328, for a total amount of $4,274.91 during the audit period. That Lord Chumley's of Stuart, Inc. received the sales tax assessment dated October 27, 1976. That Lord Chumley's of Stuart, Inc., received the sales tax revised assessment dated January 10, 1977, after an informal conference held in the West Palm Beach Area Office on January 6, 1977. The parties have further stipulated that there were no formal trust agreements between the Makrises and any of the four corporations respecting these transactions. Flame Meats, Inc. operates a retail meat market, a butcher shop, and a liquor store. The other three corporations operate restaurants. There are no formal rental or lease agreements between the Makrises and any of the corporations. Peter G. Makris purchased the properties upon which each of the corporations do business. He purchased the properties for the sole purpose of establishing the businesses. It was never his intention to undertake the business of renting or leasing the property to the corporations. Although he took legal title to the properties, and held legal title during the entire period that is the subject of the instant audits, he did not personally enjoy any of the benefits of ownership. The corporations occupied and controlled the properties. They paid no rent to Makris. They did make payments on outstanding mortgages, which were the obligation of Peter G. Makris, and they paid real property taxes and insurance premiums. These payments did not amount to rental payments, but rather reflected the fact that Makris purchased the properties for the corporations. A further reflection of this relationship is the fact that subsequent to the instant audits, Makris conveyed each of the properties to the respective corporations through quitclaim deeds. He received no consideration for the quitclaim deeds, as he had received no consideration for permitting the corporations to do business on the properties while he held legal title. Makris, either in his personal or trustee capacity, never received any compensation or consideration of any kind for owning the properties.
The Issue The issue is whether Ordinance 02-06, as adopted by the City of Key West and approved by the Department of Community Affairs, is consistent with the Principles for Guiding Development for the City of Key West Area of Critical State Concern, as provided in Rule 28-36.003(1), Florida Administrative Code.
Findings Of Fact All Petitioners, except John Abbe, and all Intervenors are substantially affected persons. After the commencement of this proceeding, Petitioner John Abbe sold his property and voluntarily dismissed his claim. The parties agreed that, for mutual convenience, the style of this case would remain unchanged, but references to "Petitioners" or the "parties" below do not include John Abbe. At all material times, each Petitioner owned or managed for rental residential real property in the City of Key West (as an area, Key West). Each Petitioner rented these properties for tourists for terms of less than 30 days or one calendar month. None of these properties was the primary residence of any Petitioner who is a natural person. Petitioners have transient occupational licenses issued by the State of Florida and Monroe County. Petitioners Hein and Klein do not have occupational licenses from Intervenor City of Key West (as a municipality, City) for transient rentals, but five of the 30 properties managed by Petitioner Property Management of Key West, Inc. are properly licensed with City transient occupational licenses. Intervenor Martha DuPont (DuPont) owns a residence in the Truman Annex development in Key West. Members of Intervenor Truman Annex Residents, Inc., (TAR) also own residences in the Truman Annex. Properties adjacent to the Truman Annex are devoted to transient rentals, and DuPont and TAR's members have been disturbed in the enjoyment of their residences by transient renters occupying the properties that they have rented. On February 20, 2002, the City adopted Key West Ordinance 02-06. Ordinance 02-06 amends Section 5-21.2 of the City land development regulations by amending the definition of "Transient Living Accommodations" and adds a new regulation governing transient living accommodations in residential dwellings. The amendment to the definition of "Transient Living Accommodations" adds that advertising or holding out a property as available for rent to transients satisfies the definition, even if no rental occurs, and that "a short-term rental use of or within a single family dwelling, a two family dwelling or a multi-family dwelling . . . shall be deemed a transient living accommodation." The new land use regulation is Section 2-7.21, which is entitled, "Transient Living Accommodations in Residential Dwellings--Regulations." Section 2-7.21 accomplishes the restrictions to which Petitioner object and provides, in part: Intent. These regulations apply only to the transient use of residential dwellings. In 1986, the City enacted former zoning code Section 35.24(44) which provided the following definition of a transient living accommodation: "Commercially operated housing principally available to short-term visitors for less than twenty-eight (28) days." (This definition shall hereinafter be referred to as the "Former Transient Definition.") Some property owners and developers interpreted the Former Transient Definition to mean that an owner could rent his or her residential dwelling for less than half the year without the dwelling losing its residential status, and therefore without the need for a City-issued transient license (so long as State of Florida licensing requirements were met). This interpretation went unchallenged by the City. Three categories of transient use of residential dwellings resulted: (1) some owners obtained a residential license allowing unrestricted transient use; (2) some owners followed the Former Transient Definition and, accordingly, rented their properties less than half the year; and (3) some owners put their residences to a transient use without City or State license and without regard to existing regulations. In addition, many residential dwelling owners never put their properties to a transient use and they no longer have the opportunity to do so under the City's current Rate of Growth Ordinance. The City Commission finds that short-term or transient rentals affect the character and stability of a residential neighborhood. The home and its intrinsic influences are the foundation of good citizenship; although short-term tenants no doubt are good citizens generally, they do not ordinarily contribute to activities that strengthen a community. Therefore, the City of Key West intends by these regulations to establish a uniform definition of transient living accommodations, and to halt the use of residences for transient purposes in order to preserve the residential character of neighborhoods. The City has provided only a brief phase-out period in recognition that in many instances investment expectations have already been met either through rental income or rising market value. * * * Key West is a designated area of critical state concern (ACSC). Therefore, on February 22, 2002, the City submitted Ordinance 02-06 to Respondent, which is legally obligated to review proposed land development regulations in ACSC. By Final Order issued April 2, 2002, Respondent found that Ordinance 02-06 is consistent with the Principles for Guiding Development of the City of Key West Area of Critical State Concern, as set forth in Rule 28-36.003(1), Florida Administrative Code (Principles). (All references to Rules are to the Florida Administrative Code.) Specifically, Respondent found that Ordinance 02-06 is consistent with all of the Principles and "promotes and furthers" Principles a and h. The Principles, which were adopted by the Administration Commission on February 28, 1984, consist of the following objectives: Strengthen local government capabilities for managing land use and development. Protection of tidal mangroves and associated shoreline and marine resources and wildlife; Minimize the adverse impacts of development of the quality of water in and around the City of Key West and throughout the Florida Keys; Protection of scenic resources of the City of Key West and promotion of the management of unique, tropical vegetation; Protection of the historical heritage of Key West and the Key West Historical Preservation District; Protection of the value, efficiency, cost-effectiveness and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities, Sewage collection and disposal facilities, Solid waste collection and disposal facilities, Key West Naval Air Station, The maintenance and expansion of transportation facilities, and Other utilities, as appropriate; Minimize the adverse impacts of proposed public investments on the natural and environmental resources of the City of Key West; and Protection of the public health, safety, welfare and economy of the City of Key West and the maintenance of Key West as a unique Florida Resource. Unlike the other Principles, Principle a derives its importance from the remedial process implicit in the ACSC rules. Pursuant to Rule 28-36.001(3), the necessity of the ACSC designation is obviated, if the City implements the Principles through the adoption and enforcement of a compliant comprehensive plan and land development regulations. The City's comprehensive plan prohibits transient rentals in the following districts: Coastal Low Density Residential Development, the Single Family Residential Development, Medium Density Residential Development, High Density Residential Development, Mixed Use Residential/Office, Limited Commercial Development, Historic High Density Residential Development, Historic Medium Density Residential Development, Historic Residential/Office, Conservation, Military, Public Services, and Historic Residential/Office (as to residential properties not already licensed for transient use prior to the effective date of the comprehensive plan). The City's comprehensive plan allows transient rentals in the following districts: Salt Pond Commercial Tourist, General Commercial Development, and Historic Commercial Tourist. The City's comprehensive plan defers the land-use decision concerning transient rentals to the land development regulations in the following districts: Mixed Use Planned Redevelopment and Development and Historic Planned Redevelopment and Development (Truman Annex is the only area bearing this designation). The City's comprehensive plan allows and prohibits transient rentals in different parts of the following districts: Historic Residential Commercial Core (allowed in subdistricts 1 and 3, but prohibited in subdistrict 2) and Historic Neighborhood Commercial (allowed in subdistricts 1 and 3, but prohibited in subdistrict 2). Ordinance 02-06 is consistent with Principle a because the ordinance implements plan designations that prohibit transient rentals and executes plan designations that defer the land-use decision regarding transient rentals to the land development regulations. Petitioner's contentions to the contrary are unpersuasive. Provisions of the City's comprehensive plan stress the importance of tourism, but the City's decision to restrict transient rentals does not necessarily conflict with the presentation of Key West as an appealing tourist destination. The record does not suggest that the loss of rental homes, many located in established residential neighborhoods, would diminish Key West's tourist appeal. Analysis of Principle a does not require the resolution of such longstanding disputes between the parties, such as whether the prohibition of transient rentals accomplished by Ordinance 02-06 maintains and enhances Key West's charm and tourist appeal, as ordinance proponents contend, or substantially reduces the inventory of rental properties for a particular segment of the tourist market, as ordinance opponents contend. As is more apparent in the discussion below of Principle h, the relevant inquiry is that of consistency, which encompasses a broader range of permissible land use regulations relative to the Principles--not promotion, which, unwisely used by Respondent in its final order, encompasses a narrower range of permissible land use regulations relative to the Principles. Ordinance 02-06 is consistent with the City's comprehensive plan's restrictions on transient rentals and identifies those districts for which the plan defers to the regulations with respect to land use regulation. Therefore, the passage of Ordinance 02-06 clearly demonstrates the City's emerging capability for managing land use and development. As is relevant to this case, Principle h is to protect the welfare and economy and maintain Key West's role as a unique Florida resource. By implication, Petitioners contend that the Principles require the City not to restrict the availability of transient rentals in Key West. Resisting Petitioners' claims, Respondent, the City, and Intervenors contend that the Principles require the City to restrict the availability of transient rentals in Key West. Principle h illustrates the problem with Respondent's finding that Ordinance 02-06 "promotes and furthers" a Principle, when only consistency is required. The concept of consistency contemplates a range of permissible planning solutions, some of which may even be contradictory. The concept of promotion is less amenable to contradictory planning solutions, such as, in this case, the restriction or extension of transient rentals. The protection of the public welfare or economy and maintenance of Key West as a unique Florida resource are concepts that will accommodate a considerably wider range of planning decisions than will the protection of mangroves and water quality. On this record, the City could, consistent with these salutary exhortations imbedded in Principle h, restrict or extend transient rentals. Respondent's finding that Ordinance 02-06 promotes Principle h is an unfortunate departure from the statutory standard of consistency because the erroneous corollary of this finding is that Principle h impliedly discourages, if not prohibits, a later ordinance extending the availability of transient rentals. Principles requiring the protection of natural and historic resources and governing infrastructure are sufficiently demanding, and the range of responsive planning solutions sufficiently narrow, that a specific planning strategy may be mandated or prohibited, even though the standard is only consistency. However, the treatment of transient rentals does not impact these Principles in any meaningful way, so the range of planning solutions available to the City is not significantly restricted. In preempting the rights and responsibilities traditionally accorded local governments in Florida, the Administration Commission explicitly limited itself to matters involving natural and historic resources and infrastructure. Rule 28-36.004(1) states: "The [Principles] are oriented towards [sic] protection of natural and historic resources and public investments of regional and State importance." Obviously, Rule 28-36.004(1) omits any mention of the subjects of Principles a and h, which are the two Principles that Respondent found were promoted by Ordinance 02-06. Among all the Principles, these two have the broadest application, because they are not limited to natural and historic resources and infrastructure, but impose the least restrictions upon the City, because they are not limited to natural and historic resources and infrastructure. Respondent cites these two Principles in defense of Ordinance 02-06, not because Respondent has a weak case, but because a transient rental ordinance has little, if anything, to do with the Principles and their purposes. However annoying the presence of transient rentals may be to some residents or costly the absence of transient rentals may be to some landowners and rental agents, the status of transient rentals immediately prior to this ordinance or immediately after it has no significant impact upon Key West's status as an ACSC. The record does not support a claim that the presence or absence of transient rentals forms a distinctive historical feature in Key West, has any bearing on the natural resources of Key West, or ultimately involves the public welfare or economy of Key West in any measurable way. Thus, Ordinance 02-06 is consistent with Principle h, just as would be an ordinance repealing Ordinance 02-06 and restoring transient rentals to their status just prior to the adoption of Ordinance 02-06. For similar reasons, Ordinance 02-06 is consistent with the remaining Principles.
Recommendation It is RECOMMENDED that the Department of Community Affairs enter a final order finding Ordinance 02-06 consistent with the Principles for Guiding Development in the City of Key West, as set forth in Rule 28-36.003(1), Florida Administrative Code. DONE AND ENTERED this 4th day of August, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2003. COPIES FURNISHED: David J. Audlin, Jr. 415 Eaton Street Key West, Florida 33040 Jeffrey M. Bell Ritter, Chusid, Bivona and Cohen, LLP 7000 West Palmetto Park Road, Suite 400 Boca Raton, Florida 33433 Timothy E. Dennis Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Lee R. Rohe Post Office Box 420259 Summerland Key, Florida 33042 Colleen M. Castillo, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 David L. Jordan, Deputy General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The amount of attorneys' fees and costs to be awarded to Jerry Ann Winters (Petitioner) based on the Order of the Second District Court of Appeals dated November 8, 2002, and pursuant to Subsection 120.595(5), Florida Statutes (2003).
Findings Of Fact The Petitioner retained attorneys Mark F. Kelly and Robert F. McKee to represent her in an administrative proceeding challenging the proposed termination of her employment by USF and in the appeals that followed the issuance of the Final Orders by USF. Petitioner's Exhibit 1 is an invoice dated December 18, 2002, submitted to the Petitioner by her legal counsel. The invoice contains charges billed to the Petitioner for the period between January 17, 2001, and November 22, 2002. The invoice indicates a total of 339.75 hours expended on her behalf. The invoice contains duplicated entries for November 14, 2002. Discounting the duplication reduces the total hours expended to 339.50. The practice of the Petitioner's counsel is to bill in quarter-hour increments and to round up. According to the invoice, the Petitioner was billed at a rate of $275 per hour. Mark F. Kelly graduated from Vanderbilt Law School in 1976. Since then he has practiced labor and employment law in Florida before state and federal agencies and has a substantial appellate practice. He was previously awarded fees in the range of $250 approximately four years ago. Robert F. McKee graduated from Stetson University College of Law in 1979. He received a Master of Laws degree in Labor and Employment Law from Georgetown University Law Center in 1981. Since then he has practiced labor and employment law in Tampa, Florida. He was previously awarded fees in the range of $250 approximately four years ago. At the hearing, the Petitioner presented the testimony of Steven Greg Wenzel. Mr. Wenzel has practiced law in Florida for more than 30 years and is board-certified in Labor and Employment Law. He has extensive trial experience. He has previously provided expert testimony related to the reasonableness of attorneys' fees in approximately 12 cases. Mr. Wenzel is familiar with the fees charged by attorneys representing employees in employment-related cases in central Florida. Mr. Wenzel's testimony related to the experience, reputation, and ability of Petitioner's attorneys. It also indicated that they have substantial experience in the area of labor and employment law and are well-regarded by their peers. No credible evidence to the contrary was presented during the hearing. Mr. Wenzel's testimony adequately addressed the applicable factors set forth in Rule 4-1.5(b)1 of the Florida Bar's Rules of Professional Conduct to be considered in determining the reasonableness of fees. Mr. Wenzel opined that based on their knowledge and experience, the type and complexity of the case, and the aggressive nature of the litigation; a reasonable hourly rate was $290 ranging to $310. Mr. Wenzel's testimony in this regard is credited. The invoiced rate of $275 per hour is reasonable. Mr. Wenzel also opined that the quarter-hour billing practice was reasonable and, in fact, conservative related to other practices with which he was aware. Mr. Wenzel's testimony in this regard is credited. At the same time that the Petitioner was challenging the proposed employment termination, a civil case involving the Petitioner, a number of the basketball players, and USF was proceeding. In that case, different legal counsel represented the Petitioner. Review of Petitioner's Exhibit 1 indicates that the invoice includes charges related to persons and activities involved in the civil case. Neither Mr. Kelly nor Mr. McKee had any official involvement in the civil case. Mr. Kelly participated apparently unofficially in mediation efforts to resolve the pending disputes. The invoice contains daily total charges for billed activity. On some days, activity was recorded for both the administrative case and the civil case. Charges related to the civil case are not reimbursable in this proceeding. Because the invoice precludes an accurate separation of time spent on the administrative case from the civil case, all billings for dates upon which charges were incurred related to the civil case have been excluded from consideration in this Order. The charges related to conversations with John Goldsmith, who represented the Petitioner in the civil case, are excluded. These charges occurred on March 14, 2001; April 2, 2001; April 6, 2001; September 21, 2001; October 19, 2001; and May 13, 2002, and total 8.25 hours. The charges related to conversations with Jonathon Alpert, who represented the basketball players in the civil case, are excluded. The charges occurred on April 10, 2001, and April 11, 2001, and total 6.75 hours. The charge related to a conversation with Tom Gonzalez, who represented USF in the civil case, is excluded. This charge occurred on April 23, 2002, for .50 hours. The charges related to conversations with Mary Lau, who was a mediator assigned to the civil case, are excluded. These charges occurred on April 24, 2002, and May 8, 2002, and totaled 1.25 hours. The invoice includes a charge for May 15, 2002, related to a telephone conference with "Judge Scriven" regarding settlement. Judge Scriven is otherwise unidentified. The charge, for .25 hours, is excluded. The invoice includes a charge for Mr. McKee's attendance at mediation on May 16, 2002, related to the civil case, for 2.5 hours. This charge is excluded. The sum of the excluded time set forth above is 19.50 hours. Deduction of the 19.50 hours from the properly invoiced total of 339.50 results in a total of 320 hours. Based on Mr. Wenzel's testimony that the invoiced hours were reasonable given the nature and complexity of this case, it is found that the reduced level of 320 hours set forth in the invoice and directly applicable to the administrative case is a reasonable expenditure of time. The invoice also sets forth costs that were billed to the Petitioner. The invoice includes numerous routine office expenses (postage, copying, telephone, and facsimile costs) that are not properly recoverable costs in this proceeding. Other billed costs are set forth without sufficient information to determine the relationship of the cost to the administrative proceeding. A filing fee with the District Court of Appeal was billed on January 15, 2001, preceding the administrative hearing in this case. Further the billed charges include witness fees for several witnesses, only one of which testified in the administrative hearing. The invoice also includes service fees for subpoenas that appear to have been charged subsequent to the completion of the administrative hearing. Based on review of the invoice, properly recoverable costs of $307 are found. This sum includes the following items: witness fee and mileage for Paul Griffin ($7) dated April 5, 2001; service fee for subpoena for Paul Griffin ($50) dated April 11, 2001; and filing fee-clerk, District Court of Appeal ($250) dated October 5, 2001. Petitioner's Exhibit 2 is a "Retainer and Fee Agreement" executed by the Petitioner and her counsel which provides as follows: Partial contingency fee. Client will pay for services rendered at the reduced rate of $110 per hour. To compensate attorney for this reduced rate and the risk involved in undertaking a case on these terms, in addition to the $110 hourly rate, attorney will be entitled to 25% of any settlement money or judgment. In the event attorney's fees are awarded to the client by any court or tribunal and collected, attorney will be entitled to such fee (less any amount paid by client, which will be reimbursed pro rata) or the partial contingency fee, whichever is greater. Attorney requires a retainer deposit from client in the amount of $2,500, to be replenished from time-to-time as required to cover outstanding fees and costs. The Retainer and Fee Agreement is dated December 2, 2002, and the Order of the District Court of Appeal for the Second District, which granted the Petitioner's Motion for fees and costs, is dated November 8, 2002. It is unclear whether a written agreement between the Petitioner and legal counsel existed prior to the December 2, 2002, agreement.
Findings Of Fact Petitioners purchased the property here involved in 1961 and occupied it as their residence until April 1991 when they moved to a new home they had just completed. The Hillsborough County Northwest Expressway was in the talking stage for several years before the final route for the Expressway was decided. Numerous public hearings were held before the final route of the Expressway was determined. Throughout most of these meetings and discussions Petitioners' property was deemed likely to be in the right-of-way of the Expressway and subject to taking. Anticipating their property would be taken for the Expressway, Petitioners, in 1989, purchased another lot on which to construct a residence. The Tampa-Hillsborough County Expressway Authority was designated as agent for the Florida Department of Transportation to acquire the necessary rights-of-way for the proposed Northwest Hillsborough County Expressway Project. In turn the Expressway Authority designated O.R. Colon Associates, Inc. (Colon) to serve as its agent in acquiring the property needed for this project. The ultimate route of the Northwest Expressway was determined and property owners on the selected route were sent a letter in January 1991 informing them that their property would probably be taken and that the Expressway Authority would negotiate with the owners of all parcels of property to be acquired to arrive at a fair price to be paid for their property. That letter further provided that: In order to facilitate construction of this project, the Authority will begin the appraisal and relocation survey of your property, after which you will be offered the fair market value of your property based upon an independent appraisal. * * * In addition to receiving payment for the fair market value of your property, you may be entitled to certain relocation assistance payments and other costs payable only during the settlement process. (Emphasis added) Petitioners also had a business occupying the same property on which their residence was situated. This business was incorporated and did not move from the property until after Petitioners had moved into their new residence in April 1991. Subsequent to moving their residence from the property to be taken for the Expressway project Petitioners were shown a relocation brochure (Exhibit 2) prepared by Colon which contained information regarding relocation benefits. The first personal contact with Petitioner was made by an employee of Colon on January 16, 1992 at which time a written offer to purchase the property for $116,400 was presented to Petitioners.
Recommendation It is recommended that a Final Order be entered dismissing Verlyn Spivey's and Sandra Spivey's application for relocation benefits associated with the taking of their property in the right-of-way of the Hillsborough County Northwest Expressway. DONE and ORDERED this 22nd day of December, 1992, in Tallahassee, Leon County, Florida. K. N. AYERS 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 22nd day of December, 1992. COPIES FURNISHED: RONALD R SWARTZ ESQ 610 WATERS AVE - STE J TAMPA FL 33604 CHARLES G GARDNER ESQ ASST GENERAL COUNSEL DEPARTMENT OF TRANSPORTATION HAYDON BURNS BLDG - MS 58 605 SUWANNEE ST TALLAHASSEE FL 32399 0458 THORNTON J WILLIAMS ESQ GENERAL COUNSEL DEPARTMENT OF TRANSPORTATION HAYDON BURNS BLDG - MS 58 605 SUWANNEE ST TALLAHASSEE FL 32399 0458 BEN G WATTS/SECRETARY ATTN: Eleanor F. Turner DEPARTMENT OF TRANSPORTATION HAYDON BURNS BLDG - MS 58 605 SUWANNEE ST TALLAHASSEE FL 32399 0458
Findings Of Fact The Respondent. At all times relevant to this proceeding, the Respondent, George Costage, served as a member of the City Commission of the City of Safety Harbor (hereinafter referred to as the "City"). Mr. Costage was first elected to the City Commission in March of 1986. He was reelected to the City Commission in 1988 and 1990. His bid for reelection in 1992 was unsuccessful. Mr. Costage's service on the City Commission was his only experience holding public office. Mr. Costage had previously worked as a fireman in the City of Detroit until his retirement. Mr. Costage was paid a salary of approximately $400.00 a month for his service on the City Commission. The City of Safety Harbor's Travel Policy and Procedure. Members of the City Commission, including Mr. Costage, were required from time to time to travel on behalf of the City. For example, travel for the City in conjunction with the Florida League of Cities was expected of Commissioners, including Mr. Costage. Mr. Costage served on the Ethics Committee of the Florida League of Cities. Commissioners also incurred expenses dealing with the citizens of the City which they usually were not specifically reimbursed for. In lieu of reimbursing Commissioners for such expenses, all Commissioners were paid $150.00 a month by the City. The $150.00 monthly payment was intended as reimbursement for the otherwise unreimbursed expenses they incurred. Commissioners were paid $150.00 per month regardless of the amount of actual expenses they incurred. The City also paid Commissioners for expenses they incurred for travel out side of the City on City business. For example, travel by Commissioners to an annual Florida League of Cities' meeting in Crystal River, Florida, was paid for by the City. There were several methods by which the City paid for out-of-town travel expenses of Commissioners: The City made payments directly to the vendor on behalf of a Commissioner; A credit card was issued by the City for each Commissioner. Commissioners were allowed to use the credit card to charge expenses which the City then paid directly to the credit card company; Commissioners could obtain reimbursement from the City for expenses they had previously incurred and paid out of their own resources; and The City could advance funds to Commissioners to cover estimated travel expenses to be incurred. The City used a form titled a "Travel Expense Certificate" (hereinafter referred to as the "Travel Form") in conjunction with the payment of travel expenses of Commissioners. The Travel Form was to be used by Commissioners to obtain reimbursement of travel expenses a Commissioner incurred and paid for out of the Commissioner's own resources. See Advocate's exhibit 4A and 4B, a photocopy of Travel Forms used by Mr. Costage. On the back of the Travel Form were instructions concerning how to complete the form and "Travel Expenses Regulations." Among other things, the following was printed on the back of the Travel Form: Traveling expenses shall be limited to those expenses incurred in the performance of a public purpose authorized by law to be performed and must be within the limitations prescribed below. . . . . . . . Certificate: "I certify that the expenses shown herein were necessary and actually incurred during, authorized travel in performance of official duty and the claim made herewith is true and correct in every manner." The City had established policies governing reimbursement of travel incurred by Commissioners. Some of those polices were in writing, having been included on the back of the Travel Form. The evidence failed to prove that the City, however, always strictly enforced its policies. Because of alleged problems associated with travel expenses paid by the City, including the issues in this case, the City adopted more extensive written travel policies by Resolution adopted November 20, 1989. Travel Expenses of Family Members. Commissioners, at times, took family members, including spouses, with them while traveling on City business. The City also, at times, made travel arrangements for family members and made advance payments of travel expenses for family members. It was the policy of the City that travel expenses of family members of Commissioners were not "expenses necessarily incurred in the performance of a public purpose authorized by law to be performed . . . ." Therefore, the City expected reimbursement of travel expenses incurred by family members. Although the City's policy concerning the payment of travel expenses of family members set out in finding of fact 15 was not specifically stated in writing, the general policy contained on the back of the Travel Form is sufficient to put a reasonable person on notice that they should determine whether a family member's travel expenses are "necessarily incurred in the performance of a public purpose authorized by law to be performed " It was not the policy of the City that travel expenses of spouses or other family members of a Commissioner incurred while the Commissioner was traveling on City business were to be borne by the City. The City did not require reimbursement for certain travel expenses incurred by a Commissioner which also benefited a family member of the Commissioner. Those expenses were limited to expenses which would generally have been incurred by the Commissioner regardless of the presence of the family member on the trip, i.e., the cost of a rental vehicle. Travel Expenses Incurred by Mr. Costage's Spouse Paid by the City. At issue in this proceeding is the period of time between March, 1986 and November 20, 1989, when the City adopted a written policy clearing setting out more extensive travel policies of the City. During the period of time at issue in this case, and while Mr. Costage was a Commissioner, his wife of thirty-seven years accompanied him on trips he took on City business. The City paid Mrs. Costage's travel expenses directly to the vendor when making travel arrangements or it paid travel expenses attributable to Mrs. Costage charged on the credit card provided to Mr. Costage by the City for his use. On at least one occasion, the cost of a helicopter trip over the Grand Canyon incurred by Mr. and Mrs. Costage was paid for by the City. Mr. Costage took no immediate action to reimburse the City for travel expenses paid by the City for Mrs. Costage's travel. Not until well after Mr. Costage was questioned publicly about the expenses paid by the City for Mrs. Costage's travel did Mr. Costage reimburse the City for her travel expenses. Mr. Costage's Payment of Mrs. Costage's Travel Expenses to the City. During Mr. Costage's campaign for reelection to the City Commission in the Spring of 1990, the propriety of the payment of the City of travel expenses incurred by Mr. Costage's spouse was questioned. As a result of the issue being raised, Mr. Costage requested that the City Manager determine the amount of travel expenses which the City had paid for Mrs. Costage's travel. This request was made in approximately March, 1990. The City Manager then requested and received an accounting from the City finance department. Based upon the records of the City finance department, it was initially determined that a total of approximately $3,100.00 in travel expenses attributable to Mrs. Costage had been paid by the City and had not been repaid by Mr. Costage. Mr. Costage was apprised of the City finance department's determination in approximately March, 1990. Mr. Costage asserted that the correct amount was about half the $3,100.00 amount arrived at by the City finance department. No reimbursement was made in March, 1990. At about the same time that Mr. Costage was informed of the amount of travel expenses attributable to his spouse, the Pinellas County Sheriff's Office began an investigation into the City's payment of travel expenses on behalf of family members of Commissioners and others. This was a general investigation, not limited to any one Commissioner or individual. As a consequence of the investigation, Mr. Costage took no further action to reimburse the City for the expenses paid on behalf of his spouse. Subsequent to the completion of the Sheriff's Office investigation, Mr. Costage again discussed the amount of his spouse's travel expenses with the City and it was mutually agreed that the correct amount of unreimbursed travel expenses paid by the City for Mrs. Costage was $2,974.63. Mr. Costage reimbursed the City this amount in February, 1991. Mr. Costage's Knowledge of the City's Policy Concerning the Payment of Family Member Travel Expenses. Mr. Costage has suggested that he did not violate Section 112.313(6), Florida Statutes, because of his assertion that the City did not have a policy that required him to pay for his spouse's travel expenses--that the City practice was just the opposite. He also has asserted that, if the City had such a policy, he was never informed that he was required to repay his spouse's travel expenses and he was not otherwise aware of such a requirement. These assertions are not supported by the weight of the evidence. First, the assertion that no policy requiring reimbursement of family- member travel expenses existed is contrary to the weight of the evidence: The statements on the back of the Travel Form are sufficient to place a reasonable person on notice that such expenses should not be paid for by the City. The statements are, at the very least, sufficient that it would be unreasonable for Mr. Costage to simply assume that his spouse's travel was "incurred in the performance of a public purpose authorized by law"; Several other Commissioners who served during at least part of the period that Mr. Costage was a Commissioner were specifically told that travel expenses incurred by family members of Commissioners were required to be repaid to the City by the Commissioner. See the testimony of Commissioners Caldemeyer, Cincota and Baty, City Mayor Dettmer and City Mayor Levine. Mr. Costage's assertion that it was the practice, if not the policy, of the City that travel expenses of family members were to be paid by the City is also not supported by the weight of the evidence: Except for Mr. Costage and former Commissioner McLaughlin, all the City officials who served during the period of time at issue and who testified at the final hearing of this matter indicated that they were aware that they were ultimately responsible for travel expenses incurred by family members and that the City did not pay those expenses; The evidence failed to prove that travel expenses of family members other than those attributable to Mr. Costage's spouse and possibly Mr. McLaughlin's spouse were paid for by the City without reimbursement; If the City had a policy of paying for spouse travel expenses without requiring reimbursement, why then did Mr. Costage ultimately repay the City almost $3,000.00? He repaid the expenses because he knew City policy required reimbursement and because his use of public funds for his spouse's benefit had been exposed; At best, the evidence proved that the City did not strictly enforce the policy that travel expenses were only to be paid with public funds if they were incurred for a public purpose. As a consequence of the City's lack of strict enforcement, Mr. Costage was able to avoid paying for his spouse's travel expenses from March, 1986 until February, 1991. The lack of enforcement of the City's travel policies, however, does not prove that the City had an established policy of paying the travel expenses of Commissioner's spouses. It only proved that City employees failed to question members of the City's governing body about their actions. The weight of the evidence also proved that Mr. Costage, despite his assertions to the contrary, was told and/or was aware of the City's policy requiring reimbursement of travel expenses of spouses: First, it is concluded that Mr. Costage was aware of the instructions on the back of the Travel Form: Mr. Costage filed two Travel Forms for which he received reimbursement of expenses incurred in 1986 and 1987. Although Mr. Costage was not able to say absolutely that the signature on the Travel Forms (Advocate's exhibit 4A and 4B) was his signature, he was also not able to say that it was not his signature and he acknowledged that the signatures could be his. It is, therefore, concluded that the two Travel Forms were signed and submitted by Mr. Costage. This conclusion is further supported by the fact that one other Commissioner witnessed Mr. Costage filing a Travel Form; Although on infrequent occasions a copy of a Travel Form without the back of the form was used by City personnel, it was the prevailing practice, especially of individuals such as Commissioners who were located in City Hall, to file an original three part Travel Form which included the instructions. Secondly, it is inferred from the following that Mr. Costage received instructions from the City Manager shortly after he was elected concerning the City's travel policies, including the policy concerning travel expenses of spouses: It was the City Manager's common practice and procedure to discuss, or cause to be discussed, City policies and procedures, including those governing spouse travel expenses, with all new Commissioners; All of the Commissioners who served during the period of time at issue and who testified in the final hearing, except Mr. Costage, recalled meeting with the City Manager or, at the City Manager's direction, the City's finance director, and discussing travel procedures. All of these Commissioners, except Mr. McLaughlin, recall being told that family travel expenses were to be paid by the Commissioner. Even Mr. McLaughlin admitted that he had been told that travel expenses attributable to his children were to be reimbursed by him. Mr. McLaughlin's testimony that the City policy concerning the payment of spouse travel expenses was not credible, especially in light of the ongoing litigation between Mr. McLaughlin and the City over travel expenses of Mrs. McLaughlin paid for by the City. While on a break during a budget workshop in 1986 or 1987, Mrs. Costage remarked in the presence of Mr. Costage and others that she thought the City should pay for the travel expenses of spouses of Commissioners because of all that the spouses did on behalf of the City. Mr. Costage did not indicate, as he has asserted in this proceeding, that the City already had a policy of paying for spouse travel expenses. The statement is also contrary to Mr. Costage's assertion that he was unaware of the actual policy of the City requiring that Commissioners ultimately pay for their spouse's travel; In 1987, Arthur Levine ran against Alton Dettmer for the position of City Mayor. At some time before the election Mr. Costage advised Mr. Levine to look into Mr. Dettmer's travel expense reports, implying that there was something wrong with the manner in which Mr. Dettmer had been paid for travel expenses. This act by Mr. Costage supports a finding that Mr. Costage was aware that the City had at least some policies governing travel. Benefit of Spouses Travel Expenses to Mr. Costage. Based upon the conclusion that Mr. Costage was aware that the City's policy required that he pay for Mrs. Costage's travel expenses and the fact that Mr. Costage did not pay for almost $3,000.00 in expenses incurred during the period March, 1986 through November 20, 1989, until February, 1991, it is concluded that Mr. Costage was aware that his failure to pay Mrs. Costage's travel expenses would be a financial benefit to him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, George Costage violated Section 112.313(6), Florida Statutes, as alleged in Complaint No. 91-37. It is further RECOMMENDED that Mr. Costage be publicly censured and reprimanded. It is further RECOMMENDED that Mr. Costage be required to pay a civil penalty of $3,000.00. DONE and ENTERED this 24th day of September, 1992, 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 24th day of September, 1992. APPENDIX Case Number 92-1007EC 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. The Advocate's Proposed Findings of Fact A 1 2. 2 3. 3 5. 4 19. 5 12. B 1 4. 2-4 6. 5 7. 6 8. 7 14-15. 8 9. 9 Hereby accepted. 10 9. 11 33. 12 10. C 1 20-21. 2 22. 3 23. 4 24. 5 25. 6 Hereby accepted. 7 25. 8 26. 9 See 27. 10 27. 11 28. The last sentence is hearsay. 12 29. D 1-2 33(a) and hereby accepted. 3-5 33(b). 6 Hereby accepted. 7 31-32 and 33(b). 8 33(b). 9 Hereby accepted. 10 33(c). Not supported by the weight of the evidence. Hereby accepted. 13 33(d). 14 33. Mr. Costage's Proposed Findings of Fact Mr. Costage's proposed "Findings of Fact" consists primarily of a summary of the testimony of the witnesses and not the ultimate facts which the testimony may support. In large part, the summary of testimony is accurate. It has been noted below where testimony has been mischaracterized or where the testimony does not support the ultimate fact which the testimony may or may no support. Advocate's Witnesses: Constitutes a generally accurate summary of testimony. Constitutes a generally accurate summary of testimony. The second sentence is not, however, relevant. The suggestion in the next to the last sentence that "no reimbursement was sought" is not supported by the weight of the evidence. Constitutes a generally accurate summary of testimony. The last sentence is not relevant and/or is not supported by the weight of the evidence. Constitutes a generally accurate summary of testimony. Whether Mr. Caldemeyer's testimony was "repetitious" is not relevant. Constitutes a generally accurate summary of testimony. Constitutes a generally accurate summary of testimony. The last sentence is hearsay. Mr. Costage's Witnesses: Constitutes a generally accurate summary of testimony. Ms. Adkins testimony involved a period of time subsequent to the period of time at issue in this proceeding. Consequently, her testimony was not of much relevance. Nor was her testimony concerning what others did supported by the weight of the evidence. Not supported by the weight of the evidence. Constitutes a generally accurate summary of testimony. Mr. Costage's testimony was generally not supported by the weight of the evidence or was not relevant. The first three sentences are not supported by the weight of the evidence. The fourth sentence has been generally accepted in finding of fact 14. The fifth through seventh sentences are not relevant. With regard to the last sentence, see findings of fact 24- 29. Mr. Costage's proposed findings of fact end on page 7 of Mr. Costage's proposed recommended order. Beginning on page 7, Mr. Costage has provided argument and conclusions of law. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 George A. Routh, Esquire George A. Routh, P.A. 1446 Court Street Clearwater, Florida 34616 Bonnie J. Williams, Executive Director Commission on Ethics The Capitol, Room 2105 P. O. Box 6 Tallahassee, Florida 32302-0006
The Issue Whether the amount awarded Petitioner for relocation was a sufficient and proper award.
Findings Of Fact Prior to the acquisition of a highway right of way for project 57050- 2515 in Okaloosa County, Florida the appellant operated a small business on parcel 103, which was needed for the highway. The business was known as Koolie of West Florida, Inc., and among other things sold bottle drinks, blue luster products and large round cakes of soybean meal used for fish bait. On August 23, 1976 the Respondent, Department of Transportation, informed Mr. Dick Carter, the President and Owner of the business of the different options available for reimbursing him for moving expenses. It was explained that if he hired a licensed mover the Florida Department of Transportation could pay the mover on an actual cost basis. It was further explained that if he wished to move the business, using his own personnel, he would be reimbursed up to the amount of the lowest of two commercial bids. One commercial bid was obtained but the requirement of two commercial bids was waived for the reason that Crestview, Florida is a small town and has only one licensed mover. On September 29, 1976, Mr. Carter was informed of the amount of the bid and Mr. Carter chose to move his business himself, although Mr. Carter made known his dissatisfaction with the amount of the low bid. Upon learning of the dissatisfaction with the estimate, the Respondent Department requested Mr. Carter to notify it of the time and date of the move so that any additional moving expenses could be documented. The Department was not informed and the Petitioner moved to its new location. Thereafter, a claim was made for additional moving expenses and a supplemental move cost claim in the amount of $347.25 was offered to the Petitioner and he was notified that if the amount was not satisfactory, an administrative hearing would be arranged. The additional amount was refused and Petitioner requested the subject hearing. The supplemental move cost claim and the supplemental amount allowed, $347.25 was based on the certified inventory sent by the Petitioner to the Respondent. The move took place some four months after the inventory was sent to the Respondent and the Petitioner had expressed its dissatisfaction with the moving reimbursement, but although requested by the Respondent, did not notify the Respondent of the time and date of moving so that a representative of the Respondent could be present to assess the additional cost of moving, if any. Petitioner contends that the inventory sent the Respondent was incorrect and that instead of 200 soybean cakes that had to be moved it was in fact 1000 soybean cakes. Petitioner contends that he should have received $625.00 for 250 cakes of soybean meal which he said were destroyed in moving plus a sum of $97.50 which was in addition to the original estimate by the moving company. Respondent contends that there are provisions for a self move providing the cost is less than a $1000.00 on the lowest of two estimates; that in the City of Crestview there is only one certified mover so a special dispensation was allowed so that the one certified mover would submit an estimate of moving cost; the Petitioner provided an inventory, and an estimate of moving cost was submitted by Shaw, a certified mover. The Petitioner chose to move himself and was offered reimbursement in the amount of the estimate by the certified mover as revised and was also offered reimbursement for one-third loss of 200 cakes of soybean meal inasmuch as this was an uninsurable item. Respondent further shows that all of the inventory except the soybean cakes would have been insured by the mover in the event of breakage or damage and that Petitioner had the choice of being moved by a certified mover or moving himself. Respondent further contends that it properly followed the requirements of law and the Petitioner has been offered payment in accordance with law.
Recommendation Deny the petition. DONE AND ENTERED this 16th day of January, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: C. Thomas Holland, Esquire 440 North Main Street Crestview, Florida 32536 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
