The Issue Whether Petitioner is entitled to reimbursement for expenses incurred in relocating and reestablishment of his small business pursuant to section 421.55, Florida Statutes (2009),1/ as implemented by Florida Administrative Code Rule 14-66.007, which, in turn, incorporates by reference the provisions of 49 Code of Federal Regulations Part 24, Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally-Assisted Programs (effective October 1, 2006),2/ and the Florida Department of Transportation Right of Way Manual 9.3.15, and, if Petitioner is entitled to reimbursement, the amount owed to him.
Findings Of Fact Based on the evidence and witnesses' testimony, the undersigned found the following facts: The Department is the state agency that has responsibility for paying certain relocation and reestablishment expenses of businesses that have been displaced because of a public transportation project. See § 421.55, Fla. Stat. Sometime in 1999 to 2000, Mr. Carey purchased eight rental units in Hillsborough County, Florida, as an investment property. Mr. Carey managed the rental property and testified that he would advertise vacancies through "word of mouth." The record shows that these rental units were rented weekly and included written and verbal leases. In 2005, the Department informed Mr. Carey that his rental property would be subject of an eminent domain taking and informed Mr. Carey about the law authorizing the Department to pay certain expenses in relocating and reestablishing a small business. On December 6, 2005, Mr. Carey filled out a Business Survey Questionnaire for the Department, stating his desire to relocate his rental business. The Department acquired Mr. Carey's property on April 18, 2009. By mid July 2009, Mr. Carey contacted Mr. Nappi to determine whether or not he was still eligible to receive relocation and reestablishment reimbursement for his small business. Mr. Nappi determined that Mr. Carey remained eligible to apply for reimbursement and informed him of that fact. On August 28, 2009, Mr. Carey purchased a replacement property located at 19002 Apian Way, Lutz, Florida, for $300,000.00. The replacement property contained a house that had been the homestead property of the prior owner. Mr. Carey credibly testified that the purpose of purchasing this replacement property was "to get back into the rental business" and that he advertised the replacement property for rent by "word of mouth." Receipts introduced into evidence show that Mr. Carey began making repairs and purchasing materials as early as the first week in September. Mr. Carey testified, on cross-examination, that he could not remember the exact date when he listed the replacement property for sale, or the exact date when he entered into a contract for the sale of the replacement property. Mr. Carey testified that he would speculate that the contract for sale of the replacement property occurred in early October 2009. On October 15, 2009, Mr. Nappi went to the replacement property with Mr. Carey to review the work that Mr. Carey had already begun on the replacement property and to discuss the expenses eligible for reimbursement. In reviewing Mr. Carey's claimed expenses, Mr. Nappi found that the following expenses would be eligible for reimbursement: (1) the drywall work detailed in Exhibit A; (2) $561.00 worth of the receipts of materials purchased from Home Depot; and (3) the painting expenses detailed in Exhibit C. Mr. Nappi also testified that in reviewing the claimed expenses that Mr. Carey would be eligible for reimbursement of a portion of the replacement property's ad valorem taxes. According to Mr. Nappi, Mr. Carey would have been eligible to receive the difference of the amount of the property taxes between the acquired property and the replacement property in the amount of $849.56. The only expenses that Mr. Nappi identified as not being reasonable were for hauling away yard waste contained in Exhibit D. According to Mr. Nappi, the Department questioned the amount of the charges and determined that an appropriate amount would be $1,200.00 as opposed to the $2,450.00 sought by Mr. Carey. Consequently, the majority of the expenses claimed by Mr. Carey were eligible items for reimbursement. On November 4, 2009, the Department sent Mr. Carey a letter denying his eligibility to receive reimbursement for expenses in relocating and reestablishing his small rental business. The Department denied Mr. Carey's eligibility because the updated TRIM notice for the property tax, that Mr. Carey provided the Department, showed the replacement property was homestead property. Because the replacement property was homestead, the Department reasoned that Mr. Carey had not reestablished a small business. Mr. Carey informed Mr. Nappi that the replacement property was not homestead property and that the TRIM notice was wrong. In response, on November 9, 2009, Mr. Nappi wrote the Hillsborough County Tax Collector to determine whether or not Mr. Carey's replacement property was homestead property. On November 23, 2009, while the Department waited for a response from the Hillsborough County Tax Collector, Mr. Carey closed on the sale of the replacement property for $332,500.00. Mr. Carey did not inform the Department that the replacement property had been sold. In February 2010, the Hillsborough County Tax Collector informed the Department that the replacement property was not homestead. Also, the Department learned for the first time that Mr. Carey had sold the replacement property. After learning that Mr. Carey had sold the replacement property, Mr. Nappi contacted his supervisor Elbert Johnson (Mr. Johnson). Mr. Nappi informed Mr. Johnson that "it did not appear that the reestablishment status of the landlord had been in fact established[,]" and the claim would be denied. Mr. Nappi testified the Department attempted to determine whether or not Mr. Carey had reestablished his rental business by examining Mr. Carey's efforts to rent the replacement property. Mr. Nappi directed a right-of-way specialist for the Department to contact realtors, who were associated with the property, to determine if Mr. Carey had listed the property for rent; to contact the local newspaper to learn if the property had been advertised for rent; and to conduct an internet search of the property. According to Mr. Nappi, the realtor indicated that she was not aware of whether or not Mr. Carey listed the property for rent and learned nothing from the newspaper or internet search. Mr. Nappi admitted that the Department did not contact Mr. Carey to ask him about his efforts to rent the property. The Department did not contact Mr. Carey or ask him to provide any information about his efforts to rent the property. Consequently, the Department did not have before it any information concerning Mr. Carey's efforts as to "word of mouth" advertising of the property. Mr. Knight, the state administrator of Relocation Assistance, testified that asking Mr. Carey about his efforts to rent the property would have been helpful information to have in considering the reimbursement. However, Mr. Knight acknowledged that Mr. Carey's selling of the home prior to determination of whether or not he was entitled to reimbursement made the issue moot. In the Department's estimation, Mr. Carey had simply "flipped a house" and had not reestablished his business. On March 25, 2010, the Department informed Mr. Carey that it was denying his application for reimbursement because he was not eligible because he had not reestablished his small rental business at the replacement property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order affirming its denial of Mr. Carey's application for reimbursement of reestablishment expenses. DONE AND ENTERED this 28th day of February, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2011.
The Issue The issue for consideration in this case is whether Petitioner received appropriate relocation assistance for her home and business as a result of the Department’s taking.
Findings Of Fact For several years during the mid to late 1990’s, and specifically during 1996 and 1997, the Department of Transportation was engaged in acquiring property in Pasco County, Florida, for the construction of the Suncoast Parkway, a new corridor which, when completed, will extend approximately 42 miles from the Veteran’s Expressway in Hillsborough County in the south to a connection with US Highway 98 in Hernando County in the north. In support of that project, it became necessary for the Department to acquire approximately 639 individually owned parcels of land. To facilitate the planning for and purchase of this property, the Department utilized the services of several engineering firms, including the firm of Post, Buckley, Schuh, and Jernigan, Inc., (PBS&J). PBS&J’s manager for this project was Norris Smith, who has been employed with the company in this type of work for approximately eight years. PBS&J, as general consultant for the Turnpike District, also manages other firms working on road construction projects for the Department. Included among these firms utilized on the Suncoast Parkway project were Gulf Coast Property Acquisitions (Gulf Coast), and Universal Field Services (Universal). In acquiring the identified individual parcels which make up a specific project, the procedure usually followed calls for a relocation specialist to make the original calculation of the relocation payment to the property owner. This calculation is then put through a review process during which it is evaluated for approval by the project manager. In the instant case, the initial relocation specialist was Gary South, an employee of Gulf Coast, who made the initial relocation contact with the Petitioner. However, Mr. South took ill in January 1997, and was replaced on this project by David Cole. Mr. Cole has worked with Gulf Coast as a relocation specialist since 1993, and, since 1970, has worked as a relocation specialist under the Uniform Relocation Assistance Act (Act) in five states. He has participated in relocations involved in approximately 70 parcel acquisitions on the Suncoast Parkway project. Relocations of individuals displaced as a result of property acquisitions for road construction are accomplished under the guidelines of the Uniform Relocation Assistance Program memorialized in 24 C.F.R., Part 24. These guidelines have been adopted by the State of Florida and are incorporated in the Department of Transportation’s Rule 14-66. Once the Department is tasked to undertake a construction project in which land is to be acquired or businesses are to be relocated, it conducts one or more public hearings in the area of development to explain the scope and dimensions of the project. After that, relocation specialists visit each residence and business to speak with the resident or business owner and conduct a needs assessment survey which is supposed to be used as a guide to determine the type of relocation assistance necessary. It is at this visit that the relocation specialist provides the resident or business owner with a relocation brochure which explains the process and the displacee’s rights and responsibilities in detail. The displacee’s prior term of tenancy of the property determines his/her eligibility level for relocation assistance payments. If the resident/occupant has been in the property for 180 days or more, he or she is eligible for relocation payments of up to $22,500 in addition to benefits to cover moving personal property to the new dwelling. If the resident/occupant has been a tenant in place for 90 to 179 days, he or she is eligible for a rental assistance payment not to exceed $2,500 which may be used either FOR rent payments on a replacement rental property or as a down payment on the purchase of a new home. Consistent with the described procedure, Gary South conducted the needs assessment survey of Petitioner’s household in February 1996 during which he informed Ms. Dornseif of the relocation services available. It was determined during that survey that there were two residences as well as three business on the Dornseif property. One of the residences was occupied by Petitioner and her family. The other residence was occupied by Petitioner’s father, Mr. DeClue. Mr. DeClue was determined to be a 180-day homeowner/occupant eligible for benefits, while Petitioner was classified as a 90-day tenant and eligible for rental assistance payments and move costs. This information was conveyed to Petitioner by Mr. South. After Mr. South became ill and Mr. Cole took over from him as relocation specialist for this property, Mr. Cole met with Petitioner to update the survey and determine that the information previously developed by Mr. South was still accurate. Cole also reiterated the relevant information regarding the relocation advisory services for which Petitioner was eligible. Included in this advice was the information regarding rental assistance payments, as well as the information necessary to calculate that figure. Mr. Cole specifically advised Petitioner that she could utilize the rental assistance payment as down payment on a home. In connection with this move, Mr. Cole updated the household survey relating to the number of people in the home and the number of rooms contained in the house. He also delivered to Petitioner the residential relocation brochure, explained his participation in the process, and delivered the original Notice of Eligibility. He also delivered a statement of eligibility and gave Petitioner a briefing of the amount of money available as a rent supplement and how it was calculated. In addition, he provided Petitioner with a list of available properties. In addition to the verbal communication by Mr. Cole, all the pertinent and necessary information regarding relocation assistance was also included with a Notice of Eligibility which the Department served on Petitioner on July 19, 1996. By this notice, Petitioner was advised of her eligibility for a relocation assistance payment, but because the specific amount of payment is dependent upon financial input from the individual being displaced, the exact dollar amount of the payment may not be available when the eligibility notice is issued. That was the case here. Ms. Dornseif acknowledged receipt of her Notice of Eligibility on July 19, 1996, but because she had not submitted all relevant and required financial information to the Department by the time of eligibility determination, the exact amount of payment had not been determined. Petitioner was informed of that fact and the reason for it. In fact, the required rental and income information needed to calculate the amount of payment to be made was not received by the Department until approximately one year later, when it was submitted by Petitioner’s attorney. Once the required financial information was received by the Department, however, a revised Notice of Eligibility was issued on June 17, 1997, which included the amount to be paid by the Department. According to the Department’s calculations, based on information submitted by the Petitioner, Ms. Dornseif was to receive a rental assistance payment of $7,440.12. This figure was based on the difference between the rental and utility costs at the former dwelling and the rental plus utility costs at the replacement dwelling. Under the formula for calculating payment, the difference is multiplied by 42 so as to provide displacement costs to cover 42 months. In implementing the formula, the replacement rental is based on the rental costs of a comparable dwelling on the market at the time of the assessment. It appears that though the land on which the mobile home occupied by Petitioner was located was owned by her, her husband, and her father, Mr. DeClue, the actual residence was owned by her father. It was for that reason that Petitioner was eligible for the rental supplement as opposed to the other allowance. She claims she made all this information known to the Department in advance and was assured it was “OK,” but now asserts she did not know, and was not told at the time, that there was a maximum for rental supplements. The maximum cap for rental assistance payments is set by law at $5,250. This is less than the amount received by the Petitioner. However, there is a provision in the law for exceeding the cap upon justification by the Department in writing to the federal government. Because of market conditions at the time of the search for comparables for Petitioner, the comparable used in the calculation was the best available. This information regarding the regulatory cap, the calculations made in this case, and the effect that current market conditions had on the calculations, were explained to Petitioner by Mr. Cole. With regard to the actual move by Petitioner from the former residence to the replacement dwelling, Petitioner after being fully briefed both in writing and by Mr. Cole on the procedure to be followed, chose to be reimbursed for the actual costs of the move by a commercial mover. She was instructed to obtain estimates from two commercial movers and advised she would be reimbursed the lower of the two estimates. This was $5,728.62. After the move was completed, Petitioner submitted receipts for the commercial move totaling approximately $6,074.94, but she was reimbursed the $5,662.94. The reduction was made because of some duplications and claims for ineligible items, but Petitioner was dissatisfied with the amount paid. Petitioner also was eligible for reimbursement for the move of her business. In this case, she chose an “in lieu of” payment instead of actual reimbursement for a commercial move. She elected to do this after she had been personally briefed by Mr. Cole on the options available to her for this part of the move. She claims she was told by Department personnel she would receive a fixed amount for the business plus a reimbursement for the business move, but she now contends she received no reimbursement. Petitioner is not satisfied with the relocation assistance payments made to her, claiming that the amounts finally offered were approximately one-half the amount initially estimated by Department personnel. She asserts that all the original estimates by Department personnel were reduced and cut, and she received far less than she was led to expect. She claims her neighbors, who had resided nearby for a far shorter time than she got far more than she did. Petitioner requested that the Department’s calculations of the amounts to be paid to her be independently reviewed. Niether individual who performed the recalculations made any changes to the amounts determined payable. Petitioner then requested another review by a higher authority, and the matter was referred to Paula Warmath, at the time the Right-of Way Manager for the Turnpike District. After her review of the matter, Ms. Warmath did not make any changes to the payment amounts. Petitioner’s next appeal was to Richard Eddleman, the Department’s State Relocation Administrator, the final review authority for relocation assistance appeals. Mr. Eddleman obtained the complete relocation files maintained by the Department on this case, carefully reviewed it, spoke with relevant Turnpike district personnel, and recalculated the relocation assistance payments. Based on his review of the file, Mr. Eddleman concluded that the relocation assistance payments for Petitioner had been properly calculated according to the established rules. This decision was communicated to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order affirming the relocation assistance payments previously calculated for Petitioner. DONE AND ENTERED this 15th day of December, 1998, in Tallahassee, Leon County, Florida. _ ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1998. COPIES FURNISHED: Vlenda Dornseif 15331 Penny Court Spring Hill, Florida 34610 Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Suite 562 Tallahassee, Florida 32399-0450
Findings Of Fact Respondent Shirley Holland was registered with Petitioner as a real estate salesman in January, 1976, associated with Vern Duncklee Real Estate and Insurance, Inc., Naples, Florida. He is presently registered as a real estate broker. (Stipulation) On January 5, 1976, W. H. Ragan gave the Duncklee firm a listing to sell real property consisting of approximately one and one-quarter acres located in Collier County, Florida, for a selling price of $7,500. Respondent was the listing salesman. (Testimony of Respondent, Ragan, Duncklee, Petitioner's Exhibit 6). Respondent also was a builder who operated as Holland Investment Company. It was his practice to purchase various properties, remodel existing structures on the same, and thereafter sell them at a profit. There was a two- room shed located on the Ragan property that had no inside finishing work, electricity, or septic tank. Respondent decided to take an option on the property in order to remodel it by adding a room and to place it in a habitable condition. He broached the subject to Ragan on January 6, 1976, and Ragan told him on January 7, that he was agreeable to such a contract. On January 8, Respondent and Ragan and his wife entered into a Sales Contract and Option to Buy for $7,500. The contract provided that closing would take place within twelve months and that the seller would give possession of the property to the purchaser on January 8, 1976. This was pursuant to an accompanying rental agreement dated January 8, 1976, between the parties for a period of twelve months which provided that Respondent could exercise his option at any time within the stated twelve-month period whereby all rents paid would be applied toward the down payment on the property of $1,900 which was to be made at closing of the sale. The rental agreement further provided that if Respondent did not exercise his option within the required time, any improvements made by him on the property during that period would be considered liquidated damages of the owner. Pursuant to these agreements, Respondent made a payment of $100 at the time they were executed, which represented an initial deposit on the contracts and as rent for first month of the term. The Option Agreement also gave Respondent authority to remodel the building on the property and it further reflected that Respondent was a registered real estate salesman and would be selling the property for profit. (Testimony of Respondent, Duncklee, Petitioner's Exhibits 5, 7) On January 5, 1976, Respondent showed Harold and Ruby Stacy several houses in the area that were for sale. On January 9, Respondent went by the Stacy residence to see if they were interested in any of the houses he had shown them. They were not interested in those houses and Respondent told them of property that he had recently acquired which was the Ragan property. He showed it to Mr. Stacy that night and the next day Mrs. Stacy went with him to look at the premises. During the course of their conversations, Respondent offered to rent the property to them for $100 for the period January 10 to February 1, 1976. It was his intention to rent it to them for $125 per month commencing in February on the condition that they clean and fix up the property. They also discussed the possibility of purchase at a later date. Respondent told them that he would sell to them for $13,000 if Harold Stacy would do the remodeling work on the shed with Respondent supplying the materials. Respondent quoted a possible sales price of $14,500 if he was obliged to provide both labor and materials for renovating the shed and providing for utility services. Respondent and the Stacys entered into a rental agreement on that day for the initial period of some three weeks and Ruby Stacy gave him a check dated January 10 for $100 with a notation thereon that it was a deposit on land. Respondent explained to Mrs. Stacy that he was merely renting the property at that time and added the word "rent" at the bottom of the check. (Testimony of Respondent, Petitioner's Exhibit 1, 2) Thereafter, the Stacys proceeded to clean the premises and commence installing a ceiling in the building located on the property. They also installed a septic tank. At some undisclosed date, Ragan came to the property to obtain some of his belongings and found the Stacys there. He learned that they supposedly had purchased the property from Respondent, Ragan was of the opinion that Respondent had purported to sell the property before he had obtained the option thereon and that he had therefore defrauded the Stacys. Ragan thereupon filed a complaint against Respondent with the local Board of Realtors in latter January, 1976. About the same time, Respondent had been in the process of obtaining local permits to install the septic tank and do the other work. He discovered that the Stacys had installed a septic tank without his authorization and without obtaining a permit. He thereupon, by letter of January 21, 1976, informed the Stacys that they had done work on the property without a building permit or approval of the County Health Department and therefore was refunding the rental payment of $100. He enclosed his check in that amount, dated January 21, 1976. Although Respondent later attempted to exercise his option to purchase the property, Ragan refused to fulfill the agreement and later sold the property to the Stacys himself for $7,500. (Testimony of Respondent, R. Stacy, Ragan, Petitioner's Exhibits 3,4) Mrs. Stacy testified at the hearing that she was under the impression that she and her husband had purchased the property in question on January 10, 1976, and that the $100 payment had been a deposit for such purchase. She was under the further impression that they were to make a $2,500 down payment in February to consummate the deal. She further testified that they made the improvements on the land because of their understanding that they were going to purchase it. Mrs. Stacy had never been involved in a prior purchase of real property and is unfamiliar with contract documents and terminology. It is found that Mrs. Stacy honestly believed that she and her husband had a valid agreement to purchase the property. Her testimony that she and her husband entered into the rental arrangement in January to enable them to work on the property until they could make the down payment in February is deemed credible. (Testimony of R. Stacy) Ragan and Respondent had been involved in a prior real estate transaction and Respondent testified that Ragan had not been satisfied with that transaction, but Ragan testified to the contrary. However, Ragan talked to Respondent's broker in January, 1976, about the Stacy situation, at which time Ragan stated that he had a chance to get even with Respondent for the prior transaction and that he was going to do so. (Testimony of Respondent, Ragan, Duncklee, D. Holland)
Recommendation That the Administrative complaint be dismissed. DONE and ENTERED this 8th day of March, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph A. Doherty, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Ed R. Miller, Esquire Suite 212 - 1400 Gulf Shore Boulevard Naples, Florida 33940
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
Findings Of Fact At all times material hereto, Petitioner has been in the business of manufacturing and selling extruded aluminum patio furniture. Petitioner is owned by Robert L. Gass, Jr., who was also the owner of the real estate which Petitioner occupied as a tenant. It was necessary for the Department to acquire the real property owned by Gass and to relocate Petitioner as a result of a federally-funded highway construction project, I-595 in Broward County, Florida. Accordingly, Gass and Petitioner became entitled to benefits pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Pursuant to a contract with the Department, employees of Kaiser Engineers were responsible for both the acquisition of real property and the relocation of personal property of businesses and persons displaced by the I-595 project. Some of Kaiser's employees were involved with acquisition (acquiring ownership of real property) and different employees were responsible for relocation assistance (relocating personal property). An appraisal of the land and improvements at the manufacturing site was performed on behalf of the Department. The Department's real estate appraiser called in a machinery and equipment appraiser to appraise certain "immovable business fixtures and special purpose process systems." The machinery and equipment appraiser prepared an appraisal containing 20 categories/items, consisting primarily of the components of Petitioner's painting machinery and assembly line. A three-page listing of those 20 categories/items was compiled and became entitled "Inventory." Gass and the Department entered into negotiations for the acquisition of his real property. Gass was concerned about the "down time" Petitioner would incur if Petitioner were required to disassemble, move, reassemble, and install its assembly line and painting system process. It was important to Gass that Petitioner have a replacement assembly line and painting system process operational before moving to the relocation site. Gass was aware of the relocation benefit under which a displaced business might be eligible to purchase new equipment and machinery and have it fully installed and operational before the business is physically relocated. On August 22, 1988, Gass entered into a Right-of-Way Purchase Agreement with the Department under which the Department purchased from Gass the real property which was Petitioner's manufacturing site. Exhibit "A" to the Right- of-Way Purchase Agreement was the Inventory of the 20 categories/items prepared by the machinery and equipment appraiser. Petitioner subsequently made application to the Department for relocation benefits to purchase replacement items for the categories/items contained in the Inventory. The Department denied that claim for relocation benefits, and Petitioner timely requested a formal hearing regarding the Department's determination. The matter was thereafter transferred to the Division of Administrative Hearings where it was assigned DOAH Case No. 90-8112. In that dispute, the Department took the position that the 20 items in the Inventory were immovable trade fixtures and, therefore, items of real property, that those items had been purchased by the Department as part of its acquisition of the real property, and that Petitioner was entitled to no relocation benefits relative to those items. Petitioner, on the other hand, contended that the Inventory items were personal property, that they were not converted into real property because the Right-of- Way Purchase Agreement referred to them, and that Petitioner, through Gass, had specifically reserved its right to receive relocation benefits regarding those items due to negotiated language which Gass had required and which was included in the Addendum to the Right-of-Way Purchase Agreement. The threshold issue to be adjudicated in the underlying proceeding was whether the items of property listed in the Inventory were items of personal property, as Petitioner contended, or trade fixtures and items of real property, as the Department contended. Expert real property appraisers and expert machinery and equipment appraisers testified in the evidentiary hearing. The one area of agreement among them was that whether a piece of equipment is considered real property or personal property is a "gray area." On September 12, 1991, a Recommended Order was entered in DOAH Case No. 90-8112. That Recommended Order determined that all of the items listed in the Inventory were items of personal property, that the Right-of-Way Purchase Agreement was ambiguous, and that Petitioner was entitled to relocation benefits for substitute personal property in the amount of $275,900. On December 10, 1991, the Department entered its Final Order essentially adopting the Recommended Order. The Final Order specifically held that all of the items listed in the Inventory were items of personal property and that Petitioner was entitled to relocation payments for substitute personal property in an amount not to exceed $275,900 upon submission of the appropriate documentation. At the time that the Department denied Petitioner's claim for relocation benefits regarding those items listed in the Inventory and advised Petitioner of its right to request an administrative hearing regarding that determination, the Department believed, in good faith, that it had purchased the 20 categories/items listed in the Inventory as part of its acquisition of the real property at Petitioner's manufacturing site. At that same time, the Department believed, in good faith, that the 20 categories/items listed in the Inventory were not items of personal property and that Petitioner was not, therefore, entitled to relocation benefits for that personal property. At the time, the Department's decision to deny Petitioner's claim for relocation benefits was substantially justified. At the time, the Department's determination had a reasonable basis in law and in fact. When the Department and Gass entered into the Right-of-Way Purchase Agreement and Addendum and attached the Inventory as Exhibit "A" thereto, the Department believed that it had paid Petitioner, through Gass, those monies to which Petitioner was entitled related to the 20 categories/items listed in the Inventory. The Department did not foresee that Petitioner would be entitled to additional payments regarding those same items because language added to the Department's standard form contract increased the ambiguity in that document so that there was never a "meeting of the minds" as to whether the 20 categories/items listed in the Inventory were agreed to be real property acquired by the Department in the Right-of-Way Purchase Agreement or were agreed to be personal property and the subject of relocation benefits. Accordingly, circumstances exist which would make the award of attorney's fees and costs in this proceeding unjust.
The Issue Whether Respondent, Department of Transportation, properly denied Petitioners, Sadrudin and Nury Premji, a replacement housing payment, pursuant to Chapter 14-66, Florida Administrative Code, and 49 Code of Federal Regulations, Part 24.
Findings Of Fact Respondent, Department of Transportation, is the state agency which constructs public roadways in the State of Florida. When Respondent acquires land for the construction of federally- assisted roadway projects and takes residential property, Respondent may be required to provide a replacement housing allowance as a part of relocation assistance dictated by state and federal law. Petitioners, Sadrudin and Nury Premji, were the owners of a motel known as the Garden Motor Lodge located in Polk County, Florida, which was condemned in order to construct a federally-assisted road project. The condemnation action resulted in a Stipulated Final Judgement. The Stipulated Final Judgement as to Defendant Karim Motels, Inc., a Florida Corporation d/b/a Garden Lodge Motel f/k/a Red Carpet Inn, entered in Polk County Circuit Court civil action no.: GC-G-98-109, State of Florida, Department of Transportation vs. Karim Motels, Inc., d/b/a Garden Lodge Motel, et al., states, in part: ORDERED AND ADJUDGED that the Defendant, Karim Motels, Inc., a Florida Corporation d/b/a Garden Lodge Motel f/k/a Red Carpet Inn, does have and recover of and from the Petitioner the sum of one million four hundred ninety-one thousand and no/100 dollars ($1,491,000.00) in full settlement of all claims whatsoever, including statutory interest, but excluding attorney's fees, cost and expenses; and it is further ORDERED AND ADJUDGED that this settlement shall be without prejudice to the right of Defendant to claim any applicable benefits to which the Defendant may be entitled under the Petitioner's relocation assistance procedures, as governed by the Uniform Relocation Assistance Act. All relocation claims shall remain separate and apart from this eminent domain action. Defendant shall cooperate with employees and agents of Petitioner by allowing them immediate reasonable access to the property, during business hours, and to assist Petitioner in conducting an inventory of fixtures and personal property (emphasis added). Petitioners had occupied a "manager's residential apartment" in the motel subject to condemnation and met the criteria under Florida Administrative Code Rule 14-66.09 for "carve out" consideration to determine the value of the residential portion relative to the entire taking and relocation assistance eligibility, if appropriate. In December 1997, Respondent's right-of-way specialist, W.P. Kozsey, determined that Petitioners' manager's residential apartment occupied 1,803 square feet of a total of 16,075 of improvements and represented 11 percent of the total improvements. Respondent's initial appraisal for the motel was $740,000. Trade fixtures (value at $34,700) were excluded from the value of the land and improvements. Multiplying the result, $705,300 by 11 percent (residential portion), it was determined that the value of the portion of the motel used by Petitioners for residential purposes was $77,583.00. Respondent determined, through comparable appraisals, that the cost of "decent, safe and sanitary, fundamentally equivalent" "housing in the same geographic area" was $89,000. As a result, Petitioners were entitled to $12,317.00 in "purchase additive payment" (replacement housing payment). The procedure used by Respondent for "carving out" the residential portion of a joint residential/business use follows the methodology set forth in Rule 14.66.009(2)(d) and (e), Florida Administrative Code, and 49 Code of Federal Regulations Sections 24.2, 24.401, and 24.403. Petitioners refused to accept the $12,317.00 in purchase additive payments (replacement housing payment) and proceeded with litigation which resulted in a mediated settlement and the Stipulated Fund Judgement wherein they reserved "the rights to claim any applicable benefits to which the Defendant [Petitioners] may be entitled under Petitioner's [Respondent] relocation assistance procedures " The Stipulated Final Judgement did not allocate value to any elements of the total settlement award and, as a result, Respondent recalculated the residential portion of the total property value by multiplying 11 percent of $1,491,000.00 which gave the residential portion a value of $164,010.00. The new residential value ($164,010.00) exceeded the cost of "decent, safe and sanitary, fundamentally equivalent" housing of $89,000. As a result, the purchase addition payment (replacement housing payment) was reduced to $0.00. Respondent consistently applied this methodology of valuation to other motels with residential "carve outs" and reassessment of purchase additive payments after conclusion of litigation. Petitioners' expert witness, Donald Trask, testified to a valuation basis which, although it provides an enhanced valuation, does not appear to contemplate the methodology set forth in the Florida Administrative Code or the Code of Federal Regulations regarding assessment of the replacement housing cost and determining entitlement to purchase additive payments.
Recommendation It is hereby RECOMMENDED that the Department of Transportation enter its Final Order denying the claim of Sadrudin and Nury Premji for relocation housing payment and dismissing their claim for same. DONE AND ENTERED this 11th day of December, 2000, in Tallahassee, Leon County, Florida. JEFFREY B. CLARK 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 11th day of December, 2000. COPIES FURNISHED: Jodi B. Jennings, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450 Jon E. Tileston, Esquire Moran, Tileston and Simon, P.A. 4012 Gunn Highway, Suite 175 Tampa, Florida 33624 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450 James C. Myers Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450
Findings Of Fact In December, 1976, Respondent Murray was registered with Petitioner as a real estate broker and Respondent Doyle was registered as a real estate salesman associated with Murray. Negotiations conducted between Murray, Doyle and representatives of Cameron-Brown led to the execution of an Exclusive Right of Sales Agreement, dated December 1, 1976 (Exhibit 1). This agreement was negotiated between the parties with the final draft prepared by Cameron-Brown legal staff and approved by R.E. Murray and Associated (REMA) by Murray and Cameron-Brown Company by a vice-president. The contract covered condominiums that had been foreclosed on by Cameron-Brown and which they were anxious to sell. In addition to providing commissions to be paid on sales, how down payments were to be handled, how the agreement could be terminated, reports to be submitted, defining responsibility for employees, and establishing the closing agent for Seller, the agreement, and Addendum A, provided that Doyle was to have sole control of managing and marketing the project. This latter provision was interpreted by the principal drafters of the agreement to indicate that Cameron-Brown was interested in having Doyle as sales manager of the project but in all respects working under Murray as broker. Little discretion was left to the agent in executing contracts which were provided by the Seller, handling of the escrow deposits or in preparing closing statements, as the manner of carrying out these duties was established by the agreement which also provided that all deposits were to be placed in escrow with the title company designated as closing agent for the Seller. During the period the condominium units were being sold this was the major, if not sole, real estate function performed by REMA. The agreement was carried out to the satisfaction of Cameron-Brown with all units sold quicker than had been expected. From the summer of 1976 through the selling of the condominiums, Respondent Murray, who is also a licensed broker in Minnesota, was engaged in a real estate development project in Minnesota and spent the major part of his time in Minnesota. Murray was in communication with his Clearwater office by telephone and discussed all aspects of the agreement with Doyle doing the negotiations. After the agreement was executed by Murray, he was also available by telephone and was contacted by Doyle and others in the office when they deemed it necessary. Murray signed all listing agreements and approved all salesmen employed. One sales person, Mrs. McGhan, was interviewed by a REMA salesperson and Doyle and her employment was approved by Murray. Because her registration was close to expiration when she was hired, Murray authorized Doyle to sign his, Murray's name to her application to be forwarded to FREC. No effort to emulate Murray's signature was made by Doyle in signing Murray's name on the McGhan application. During the period involving the sales of these condominiums Murray received weekly reports on the progress of the sales and was in frequent contact with the office. Procedures to be followed in the REMA office had been established by Murray orally and in written memoranda and were, after the charges herein involved were brought, published in a Procedures Manual, a copy of which was admitted into evidence as Exhibit 7. Respondent Doyle at all times here involved was employed by REMA as a salesman. Doyle holds an inactive real estate broker's license in California and has been a licensed Florida real estate salesman since March 1976. He passed the C.P.A. exam in California in 1970 and also holds a Florida Mortgage Broker's license. He has a Master's degree from UCLA in Real Estate and Urban Land Economics, and is a certified teacher at St. Petersburg Junior College, teaching Real Estate Finance since 1977. During the negotiations leading up to the Exclusive Right of Sale Agreement with Cameron-Brown, Doyle did most of the negotiations for REMA and John Sullivan, an employee of Cameron-Brown, did the negotiations for Cameron- Brown. In conducting these negotiations, Doyle was in frequent communication with Murray and Murray was the final approving authority for REMA. Doyle was authorized to sign checks drawn on the REMA escrow account, but no evidence was presented that he ever signed checks on this escrow account or that it would have been wrong had he done so. During the period Murray was spending most of his time in Minnesota, the principal efforts of REMA were involved in the condominium project and none of the earnest money deposits there received were placed in REMA escrow account.
The Issue The issue is whether a request by Reddy Ice for reimbursement of impact fees assessed by the Town of Davie when its ice manufacturing plant was displaced by the Department of Transportation for the construction of Interstate 595 should be granted under the relocation assistance program established pursuant to Section 421.55, Florida Statutes. STIPULATED FACTS 1/ Reddy Ice, Inc., an ice manufacturing company, received relocation assistance and related moving costs from the Florida Department of Transportation (Department) when its plant was moved due to the construction of Interstate 595 in Broward County, Florida. When Reddy Ice relocated its business to the Town of Davie in Broward County, it was paid $108,135.57 in relocation costs by the Department. The Town of Davie had an ordinance which required the payment of impact fees by a business such as Reddy Ice which uses large quantities of water. Payment of the impact fee was a prerequisite to issuance of a certificate of occupancy for the new facility. Reddy Ice was assessed and paid $71,937 as contribution charges to the Town of Davie. The payment was treated as a capital expense in the accounting records of Reddy Ice. The water and sewer service agreement Reddy Ice executed with Town of Davie Utilities Department provided for an upward adjustment of the charges if the actual water flow exceeds the estimated amount. There is no provision in the agreement for a downward adjustment of the impact fee in the event less water is used than was estimated. The impact fees are not reimbursed by the Town if the business moves to another location. Reddy Ice filed a claim with the district office of the Department of Transportation in Fort Lauderdale to recover the impact fees. The district office denied the claim because it was not specifically provided for in the list of eligible move costs categories specified in the Florida Department of Transportation Right-of-Way Policies Manual. See the Manual, Operating Procedures, Relocation Assistance, Section 3-2. The impact fee was considered an additional expense of operating in a new location, which was ineligible for reimbursement under Section 3-3 of the Right-of-Way Manual. The claim was then forwarded to the State relocation office in Tallahassee for review and determination. The State office concurred with the district determination. Because the claim for impact fees presented a relatively unique relocation issue, and federal funds are involved in the repayment of relocation costs for interstate highway construction, a national ruling was requested from the Federal Highway Administration. Ms. Barbara Reichart, Chief, Relocation Division, Federal Highway Administration, Washington, D.C., advised on May 27, 1987, that the Florida Department of Transportation and the Federal Highway Administration Division Office were correct in their determination that impact fees were ineligible for reimbursement as relocation costs under 49 CFR Section 25.305(f). Impact fees are considered by the Federal Highway Administration to be an additional operating expense incurred by a business because of operating in a new location. Reddy Ice was advised of the final determination and denial of the claim by letter dated August 25, 1987, which resulted in this administrative proceeding.
Recommendation It is recommended that the application of Reddy Ice for reimbursement of contribution charges made by the Town of Davie be denied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of May, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division OF Administrative Hearings this 5th day of May, 1988.
