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 By letter dated May 31, 1979 Respondent notified Petitioner that it was acquiring part of the property on which Petitioner's office was located and that it would be necessary for him to relocate. At the time Petitioner worked as a real estate appraiser in the office of the Pickens Agency owned by Philip Pickens. Pickens provided work space, telephones, secretary, data bank and supplies. The data bank contained data on real property throughout Florida and was invaluable to the appraisers in getting comparables to use for appraising like property. Due to the acquisition of additional property for the U.S. 90 right-of- way, it was necessary to move the two-story building in which Petitioner's office was located. This required moving out of this building into different quarters. In the building Petitioner's office, located on the second floor, comprised approximately 800 square feet in which he had desk, telephone and work space. The data bank was also located on the second floor. Philip Pickens owned another building in the Immediate vicinity into which Petitioner moved. The data bank was left in the original building which was jacked up in preparation for its move. Thee data bank remained available for use albeit less convenient for those using it. Petitioner had less space in the one-story building into which the Pickens Agency moved and Petitioner's office was located near the back door through which clients visited the Pickens Agency. He shared a telephone with another appraiser and had a smaller desk and less work space. He also experienced interruptions from visitors entering the office through the back door which opened into Petitioner's office space. During the two years immediately preceding the relocation of the office, Petitioner's appraisal work was performed exclusively for DOT. Part of this work was assigned him by the Pickens Agency and in some cases he was contacted directly by DOT for the appraisal . When employed directly by DOT, Petitioner received 50 percent of the appraisal fee and the Pickens Agency received 50 percent. When assigned work by the Pickens Agency, Petitioner received 45 percent of the appraisal fee. During the five months following Petitioner's move into the new quarters his income dropped substantially from what it had been before the relocation. Petitioner filed application for relocation benefits as soon as he moved his office and before any change in income occurred. Normally, there is a lag of three to six months between tile Line the appraisal work is done and payment is received. Petitioner's income during the first nine months of 1980 (January - October) we $10,622.97. For similar periods in 1979, 1978, and 1977 his income was $29,750, $26,382.50 and $22.252.50, respectively. Petitioner testified that he believes the loss of income was due to his inability to turn out as much work in the more restricted space and less privacy in the one-story building than he had before the move. Petitioner moved some 30 yards from his original location kept the same mailing address and the same telephone number. During the latter half of 1979 and the first half of 1980, the Lake City District of DOT had fewer relocation claims than in comparable periods of the two previous years. Relocation claims are related to appraisals which would indicate fewer appraisals were ordered by DOT in Lake City in 1979-80 than in the two previous years. During the period in question, most of Petitioner's work for DOT was generated by the Bartow office. This would require most of Petitioner's appraisal time out of Lake City with the use of the office primarily for the preparation of his appraisal report. No evidence was submitted to show the effect, if any, on the Pickens Agency's business resulting from the move or the business done by the other appraisers who also moved. During the period 1977-1980 the Pickens Agency employed between two and five appraisers and at the time of the relocation employed two appraisers, one of whom was petitioner. (Tr. p. 31). The number of appraisers employed varied with the volume of business coming into the agency. The appraisal work done by the Pickens Agency was statewide and not concentrated in the vicinity of Lake City.
The Issue Whether the Appellant has been paid relocation assistance benefits in accordance with the law and applicable regulations.
Findings Of Fact The Appellant, Mr. Alfred J. Harris, lived in a one bedroom mobile home on property identified as Parcel No. 145 on Interstate 95. The area on which Mr. Harris and his wife and daughter lived was needed for the Interstate Highway and Mr. Harris became eligible for relocation assistance funds. Relocation assistance eligibility was found to be Eleven Thousand One Hundred Fifty Dollars ($11,150.00) which was based on the difference between a comparable home and location and the land of Mr. Harris. The eligibility mistakenly did not include the mobile home on Mr. Harris' land. A comparable mobile home and lot was found for Mr. Harris and his family in the general area where he lived which could have been purchased for Twenty-Six Thousand Five Hundred Dollars ($26,500.00) in relocation benefits as well as receiving payment of Fifteen Thousand Three Hundred Fifty Dollars ($15,350.00) for his land. It was not learned until after the computation for relocation assistance was made and paid that Mr. Harris and his wife had living with them a daughter. The fact that the mobile home was a one bedroom home and three people were living there removed the home from the condition of decent, safe and sanitary housing for the occupants therein. Had the computation been made for relocation assistance with the knowledge that the mobile home in which the Appellant lived did not meet the conditions for decent, safe and sanitary housing, the relocation assistance benefits would have been Nine Thousand Two Hundred Fifty Dollars ($9,250.00) which is less Sixteen Hundred Dollars ($1,600.00), the amount for which Mr. Harris sold his mobile home. Mr. Harris was paid Sixteen Hundred Dollars ($1,600.00) more than he would have been entitled to had the Appellee, the Florida Department of Transportation, not made an error with respect to the mobile home which Mr. Harris later sold by transfer upon the buyer assuming the payments of Sixteen Hundred Dollars ($1,600.00). Mr. Harris and his family decided to buy a conventional type home for the sum of Twenty-Six Thousand Two Hundred Dollars ($26,200.00) rather than the comparable mobile home and land found by the Appellee for the Appellant which was valued at Twenty-Six Thousand Five Hundred Dollars ($26,500.00) . Mr. Harris then refunded Three Hundred Dollars ($300.00) to the Appellee from the Eleven Thousand One Hundred Fifty Dollars ($11,150.00) he had received in relocation assistance. The problem of the overpayment by the Appellee to the Appellant was reviewed by the federal government which refused to absorb the relocation benefits overpaid to Mr. Harris in the amount of Sixteen Hundred Dollars ($1,600.00) but he Appellee, Florida Department of Transportation, agreed that inasmuch as it had made the error and overpaid the Appellant Sixteen Hundred Dollars ($1,600.00), it would absorb the mistake and not collect the amount from the Appellant. The Appellant, Mr. Harris, had misunderstood the error of Appellee and the amount of overpayments and was under the mistaken belief that the Department of Transportation, Appellee, owed him additional relocation assistance monies. Thus, he filed a Complaint on February 18, 1976.
Recommendation Dismiss the appeal inasmuch as the Appellee owes no monies to the Appellant. DONE and ORDERED this 28th day of April, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire George L. Waas, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Alfred J. Harris 509 Tumbling Kling Road Fort Pierce, Florida Mr. Joseph A. Alfes, Chief Bureau of Right of Way Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
The Issue Whether applicant is eligible for relocation assistance monetary benefits pursuant to Public Law 91-646 and Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Although notice of hearing was provided to Mr. and Mrs. Limegrover on March 26, 1976, they did not appear at the time of hearing. Upon telephonic inquiry on June 8th by a representative of the Department of Transportation, Mr. Limegrover advised that he had received the notice and although he had intended to call the Department of Transportation concerning the matter, he had forgotten to do so. He stated that he desired a continuance of the case. His request was objected to by counsel for the Department of Transportation. The request for continuance was denied as being untimely and good cause not having been shown therefor. The hearing was conducted as an uncontested proceeding.
Findings Of Fact By letter of October 20, 1975, Mr. and Mrs. Richard Limegrover of Courtly Manors Mobile Home Park, Hialeah Gardens, Florida, were advised by the Florida Department of Transportation that it was in the process of acquiring right-of-way for State Road #25 (U.S. 27) in their area, and that the mobile home lot the Limegrovers occupied as tenants would be required for construction of the facility. The letter provided the Department's assurance that they would not be required to move until at least 90 days had elapsed from the date of receipt of the letter, and that they would receive a further notice specifying the actual date by which the property must be vacated at least 30 days prior to the date specified. The letter concluded by an expression of the Department's desire to assist in relocation and to answer any questions concerning such matters. On December 8, 1975, a further letter was sent to the Limegrovers by the Department of Transportation assuring the addressees that the prior letter had not been a notice to move and that no one at the Courtly Manors Mobile Home Park would be required to move until negotiations with the owner had been completed or monies placed with the Clerk of the Circuit Court of Dade County by court order. It further stated that in the interim period relocatees living within Courtly Manors who were eligible and decided to move on their own initiative would be assisted by the Department in their relocation. Limegrover called Mr. Carl Moon, Right-of-Way Agent, Department of Transportation, Ft. Lauderdale, on December 11, requesting assistance in arrangements for moving his mobile home. Moon discovered that Limegrover wanted to move before January 1, 1976, as he had reserved a lot in another mobile home park. However, Limegrover told him that when he advised his current landlord on December 11 of the projected move on December 30, the landlord stated that in the absence of 30 days notice, Limegrover must forfeit his $90.00 security deposit. Limegrover told Moon that he felt the Department of Transportation should pay the $90.00 security deposit since he was being forced to move by that agency. Moon told him that he was not required to move that soon, but Limegrover was unwilling to wait, fearing that he would not be able to find a satisfactory place later on. Accordingly, Moon assisted him in his moving arrangements and Limegrover was paid for his moving expenses in the amount of $640.00 and smaller sums for reinstallation of his telephone and disconnection and reconnection of his gas equipment. Inasmuch as the Department of transportation declined to pay the $90.00 representing alleged forfeiture of the security deposit, Limegrover filed this relocation appeal. (Testimony of Moon, Exhibits 1 & 2).
Recommendation That the appeal of Richard and Jane Limegrover, in the amount of $90.00, be denied. DONE and ENTERED this 13th day of July, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Phillip Bennett, Esquire Department of Transportation Room 562 Haydon Burns Building Tallahassee, Florida Richard S. and Jane E. Limegrover Lot F4, Haven Lakes Mobile Home Park 11201 S.W. 55th Street Miramar, Florida 33025
The Issue Section 321.051, Florida Statutes authorizes the creation of a system for utilizing qualified wrecker operators to remove wrecked, disabled, or abandoned vehicles. The Department of Highway Safety and Motor Vehicles has created a rotation system in which wrecker operators within designated zones are called on a rotating basis to respond to Florida Highway Patrol (FHP) calls. This rule challenge attacks the "place of business" rule as promulgated in Rule 15B-9.003(2), Florida Administrative Code and the non-rule policy interpreting the "place of business" requirement of the duly promulgated rule, on the basis that they are invalid exercises of delegated legislative authority and are arbitrary, capricious, and violative of constitutional equal protection with respect to these Petitioners, Murphy's and Lyons. With regard to the non- rule policy, it is also attacked because it has not been adopted pursuant to Section 120.54, Florida Statutes. BACKGROUND AND PROCEDURE The parties stipulated that there would be a unified record; that is, all evidence and testimony would be applicable to the Administrative Complaint proceeding and to the rule challenge proceeding. Oral testimony was received from Lt. Col. Carmody, FHP; Lt. Wessels, FHP; Howard Kauff, Harold Murphy, and Donald Lyons. DHSMV's Exhibits 2-9 were admitted. DHSMV withdrew its proposed Exhibit 1. Murphy's and Lyons' Exhibits 1-4 were admitted in evidence. A transcript of proceedings was provided and the parties have submitted proposed findings of fact and conclusions of law, the proposed findings of fact of which have been ruled upon in the appendix hereto pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact The parties do not dispute that DHSMV's grant of authority stems from Section 321.051, Florida Statutes (1987) which in its entirety provides as follows: 321.051 A wrecker operator system for removal of wrecked, disabled, or abandoned vehicles.-- The Division of Florida Highway Patrol of the Department of Highway Safety and Motor Vehi- cles is authorized to establish within areas designated by the Patrol a system utilizing qualified, reputable wrecker operators for removal of wrecked or disabled vehicles from an accident scene or for removal of abandoned vehicles, in the event that the owner or operator is incapacitated or unavailable or leaves the procurement of wrecker service to the officer at the scene. All reputable wrecker operators shall be eligible for use in the system provided their equipment and dri- vers meet recognized safety qualifications and mechanical standards set by rules of the Division of Florida Highway Patrol for the size of vehicle it is designed to handle. Duly promulgated Rule 15B-9.003(2), Florida Administrative Code, which has been challenged in this proceeding, provide: To be eligible for approval to tow in a particular zone, the wrecker operator's place of business must be located in that zone, except that if there are no qualified opera- tors in a particular zone, the Division Director or his designee may designate qualified out of zone wrecker operators to be called in that zone. Some other subparagraphs of Rule 15B-9.003 which were duly promulgated and which have not been challenged in this proceeding are: ... Wrecker operators shall have one day and one night telephone number ... Wrecker operators shall be on call twenty-four hours a day, seven days a week. Out-of-zone wrecker requests are permitted in the event of an emergency or the absence of a wrecker of proper classification within the accident or removal zone. The "specific authority" listed in the Florida Administrative Code for this rule is Section 321.051, Florida Statutes. The "law implemented" is Sections 321.051 and 321.05(1), Florida Statutes. Duly promulgated and also unchallenged Rule 15B-9.004, Florida Administrative Code provides in pertinent part: (1) The wrecker operator shall respond to all requests for service made through the Florida Highway Patrol duty officer within a reasonable time under the existing conditions and circumstances. If response cannot be made within a reasonable time, the wrecker operator shall notify the Florida Highway Patrol duty officer representative of the estimated time of delay and reasons therefore and the duty officer, if he determines that the delay is unreasonable, may cancel the request for service and use the services of another participating wrecker operator. * * * (4) When a vehicle is released at the scene by the investigating trooper or representative of the division, the wrecker operator shall tow to any location the owner requests within the limits of the zone. The "specific authority" listed in the Florida Administrative Code for this rule is Section 321.051, Florida Statutes. The "law implemented" is Section 321.051 and 321.05(1), Florida Statutes. The non-rule policy complained of has been reduced to writing by the Florida Highway Patrol (FHP) in the Administrative Complaints against these Petitioners, and interprets the term "place of business" as provided by challenged Rule 15B-9.003(2), Florida Administrative Code to mean: A business establishment which meets the following criteria: There must be a sign on the building that identifies it to the general public as a wrecker establishment; There must be office space; They must have personnel on duty at least from 9:00 a.m. to 4:00 p.m., Monday- Friday. There must be a phone at the place of business; Tow trucks must be stationed at the place of business; The tow trucks must have the zone address and phone numbers on them. Petitioners are both engaged in the business of removing wrecked, disabled, stolen or abandoned motor vehicles on Florida highways. Pursuant to Section 321.051, Florida Statutes, Petitioners are eligible for, and participate in, the system established by the DHSMV for utilizing qualified, reputable wrecker operators for removal of wrecked or disabled vehicles from accident scenes or the removal of abandoned vehicles when the owner or operator is incapacitated, unavailable, or leaves the procurement of wrecker service to the officer at the scene (hereafter referred to as "FHP wrecker rotation system"). Petitioners are each charged in an Administrative Complaint indicating that the Respondent intends to remove Petitioners from the FHP wrecker rotation system for alleged failure, among other offenses, to comply with the "place of business" requirement of Rule 15B-9.003(2), Florida Administrative Code, and the unpromulgated "policy" interpreting the term, "place of business" as used in that rule. Petitioners received such notice by hand delivery of the respective Administrative Complaints dated July 22, 1987, bearing case numbers 87-02-FHP and 87-04-FHP now, DOAH Case Nos. 87-3962 and 87-4011, respectively. Those Administrative Complaints are the subject of the Section 120.57(1), Florida Statutes hearing consolidated with this rule challenge. The FHP wrecker rotation system includes designated zones and qualified wrecker operators within those zones. When a wrecker is needed to respond to an accident or to a motorist, FHP calls the wrecker at the top of the list and then rotates this wrecker down to the bottom of the list. By rotating each wrecker on the rotation list following dispatch by FHP, each participating wrecker service is afforded an equal opportunity to service a call. See unchallenged Rule 15B-9.003(3), Florida Administrative Code. Presently, FHP maintains more than two hundred zones statewide. The purpose of the zone system is to provide adequate service levels to the motoring public. The wrecker's response time to a accident scene or to a motorist in need is a primary consideration of FHP. Actual designation of a zone's boundaries is left up to each respective local FHP troop commander, subject to Division Review. See unchallenged Rule 15B-9.003(1), Florida Administrative Code. Designations are within county borders and do not overlap county borders. FHP has designated the size of a zone according to the types of roadways, the number of businesses, and also the weather conditions to anticipate response times within the zones. In Palm Beach County, FHP designated six zones; twenty-two wrecker businesses have qualified to participate as rotation wreckers. These wrecker companies vary according to their size and operation; qualified wrecker operators include companies with as few as one or two wreckers to as many as thirty trucks. Murphy's Towing, Lyons' Auto Body, and Kauff's Towing are among those currently operating in Palm Beach County in one or more zones of the FHP wrecker rotation system. Petitioner Murphy's Towing has participated in the wrecker FHP rotation system for eight years. Murphy's Towing maintains approximately thirty trucks and operates in four zones in Palm Beach County. It maintains storage areas in each zone. As a result of its fleet of wreckers, Murphy's is able to use a roving patrol operation. When a call is received by Murphy's Towing from FHP, a central dispatcher operating 24 hours per day assigns a Murphy's truck which is patrolling in an assigned zone to respond to the call. In individual instances, this system may actually cut or increase response time within zones from what it might be if a truck were dispatched each time from a stationary place of business within the zone. Presently, wrecker services in Palm Beach County will dispatch the closest vehicle, regardless of the address of the wrecker truck or the location of the wrecker, even across zone lines. Petitioner Lyons' Auto Body, Inc., has participated in the FHP wrecker rotation system for twenty years. Lyons' Auto Body, Inc. maintains seventeen trucks and operates in three zones in Palm Beach County. Lyons' Auto Body, Inc. also uses a central dispatch operation similar to that employed by Murphy's Towing. Until FHP promulgated rules which took effect January 22, 1986, including the challenged Rule 15B-9.003(2), Florida Administrative Code, the general operation of the wrecker rotation system was governed by written guidelines and policies established by the local troop commanders, but these written guidelines apparently never embraced the term "place of business" nor defined it. (TR-67-69,102). However, by unwritten policy, troop commanders were responsible for enforcing the location of a wrecker company's actual place of business and storage lot within the zone in which he operated. For thirty-two years, Lt. Col. Carmody, now Deputy Director of FHP, understood the unwritten policy to be that a place of business was required for each zone in which an operator operated, i.e., was listed for rotation. Palm Beach County FHP had represented orally to Mr. Kauff for at least nineteen years that he must have a place of business in each zone in which he operated and that "place of business" meant the facility where the wreckers were dispatched, personnel were assigned, phone calls were received, and vehicles were stored after towing. Murphy's and Lyons' principals deny ever receiving such oral information from FHP prior to the current litigation. As Deputy Director of the Florida Highway Patrol, Lt. Col. John W. Carmody is responsible for all field operations and for determining the policy for the patrol. In addition, Lt. Col. Carmody supervises the troops and reviews reports with regard to the wrecker rotation system that come to his attention. In 1982, Lt. Col. Carmody was assigned responsibility by the Director of the Florida Highway Patrol to promulgate rules for administering the FHP wrecker rotation system. Among other rules, he was responsible for drafting Rule 15B- 9.003(2). In so doing, he participated in public hearings, researched other Florida rules currently in force and criteria from other states. At formal hearing, Lt. Col. Carmody demonstrated no analogies or similarities between the challenged rule or the acknowledged non-rule policy and any other agency's or jurisdiction's rules or statutes, but neither did Petitioners, who bear the burden of proof, demonstrate any dissimilarity. The relationship of the challenged rule and policy to other FHP rules also promulgated January 22, 1986, is noted throughout this Order. The unwritten place of business policy was carried forward into the administrative rules promulgated January 22, 1986. The purpose of Rule 15B- 9.003(2) was to assure timely response by wrecker operators to telephone calls from FHP in the interest of the safety and convenience of the public. As the author of the rule, Lt. Col. Carmody was primarily concerned with providing for a reasonable response time to the scene of an accident, reducing traffic disruption at the accident scene, and allowing owners to recover their vehicles or personal property within the zone without undue delay. In addition, it was felt that requiring the business to be located within the zone it served would facilitate the inspection of wreckers by FHP. In promulgating the rule, Lt. Col. Carmody retained the place of business requirement due to the agency's favorable experience with its use in implementing the zone system over thirty- two years. At the time of the promulgation of Rule 15-9.003(2), Florida Administrative Code, in January, 1986, "place of business," as the term is used in that rule, was not defined under Chapter 321, Florida Statutes or Chapter 15- 9, Florida Administrative Code. Because Lt. Col. Carmody believed "place of business" was already defined by common sense and thirty-two years of common FHP interpretation so as to already include a sign, office space, personnel on location in the zone, wreckers on location in the zone, and zone addresses and phone numbers painted on each wrecker, Lt. Col. Carmody did not feel that it was necessary to promulgate an additional rule defining "place of business." Instead, Lt. Col. Carmody gave his "common sense" definition over the phone when occasional inquiries were made. In February of 1986, Lt. Ernest Wessels, newly promoted to the post of District Lieutenant of FHP Troop L, Palm Beach County, and newly in charge of Troop L's wrecker rotation system, became aware that several wrecker services on the local list had failed to letter their vehicles with zone address and phone number and that some were operating in multiple zones. In March, 1986, he met with those he thought were all the wreckers and advised them of the requirement that signs be posted on their trucks; however it is not clear that Murphy's or Lyons had any representative at that meeting or whether the sign requirement discussed had to do with the wrecker rotation system or had to do with the Section 715.07(2)(a)7, Florida Statutes, sign requirement for trucks towing from private property (TR-173). Through the chain of command, Wessels requested by a May 16, 1986 memorandum, a definition of "place of business" and instructions on how to deal with specific presumed offenders against the new "place of business" rule, 15B-9.003(2). One presumed offender indicated in that correspondence is Murphy's. Contrary to Lt. Col. Carmody's assumption in 1986 and his testimony at formal hearing, this correspondence does not indicate that any firm agency policy was known throughout FHP at that time as to how the term "place of business", as used in the new rule, was to be defined or interpreted. Otherwise, Lt. Wessels would not have had to ask for clarification. Carmody never saw Wessels' correspondence but sent oral instructions on how to deal with one business about which Wessels had inquired. That business was not owned by either Lyons or Murphy's. At that time, no specific overall criteria were set forth by Lt. Col. Carmody either orally or in writing with regard to defining "place of business" as used in the rule. By letter dated January 19, 1987, Howard Kauff, Chairman of the Board of Palm Beach Services, Inc., d/b/a, Kauff's Towing in three FHP zones in Palm Beach County requested of FHP the definition of "place of business." His letter set out six criteria stating what he understood to be the definition of "place of business." Lt. Col. Carmody responded to Howard Kauff by memorandum dated February 5, 1987. Carmody sent a copy of that memorandum to Inspector William A. Clark, Bureau Chief in charge of Troop L and to Major William R. Driggers, Troop Commander, Troop L, for the purpose of enforcing Rule 15B-9.003(2) and correcting alleged violations, but he intended for the six criteria identified in his memorandum to have statewide effect. The six non-rule policy criteria incidental to Rule 15B-9.003(2), which were identified by Lt. Col. Carmody in his memorandum to Howard Kauff, and circulated to all of Troop L, are set out in Finding of Fact 4 supra. The non-rule policy in Carmody's memorandum, which for the first time interprets, in writing, the term, "place of business" as used in the rule, virtually adopts the criteria suggested in Mr. Kauff's letter, with only two exceptions. Some of Kauff's suggestions were similar also to Lt. Wessels' earlier suggestions, specifically, name and address on a building, a building manned during normal business hours, and not including lease storage. Lt. Col. Carmody did not disseminate a similar memorandum to all troop commanders throughout the State of Florida until January 8, 1988. He did circulate such a memorandum on that date, but only after his deposition had been taken in the instant case and its companion Administrative Complaint cases. At the time Lt. Col. Carmody corresponded with Howard Kauff on February 5, 1987, Palm Beach County was the only area, to his knowledge, which had experienced problems with the "place of business" interpretation because of the use of multiple zone wreckers. Lt. Col. Carmody had no knowledge of similar problems in any other area of the state at that time. Testimony of Carmody and Wessels at formal hearing confirmed this to also currently be the case. Specifically, there is affirmative evidence that FHP has experienced no similar use of wreckers in multiple zones in the Fort Myers area and no requests for interpretation of the rule from that area of the state or any other. Carmody's January 8, 1988 memorandum was intended to insure uniform application of the six "place of business" criteria which Carmody had previously assumed where generally known and applied throughout FHP. The January 8, 1988 statewide memorandum contained some further refinements and embellishments of the language contained in the earlier memorandum to Kauff and Troop L in Palm Beach County, but the only substantive changes were that for the fifth criterion, the wrecker operator was required to "maintain at least one tow truck at the place of business" and for the sixth criterion, the zone address and phone numbers must be "clearly visible to the public." The 1988 memorandum also contained the further directive that: I recommend that you correspond with each wrecker operator to give the wrecker service notice that the above criteria must be met for the wrecker to comply with the requirements of Rule 15B-9.003(2). Subsequent inspections by FHP personnel of wrecker service shall require compliance with these criteria. Violations shall be noted and the wrecker service given an opportunity to correct any deficiency. If the wrecker operator fails to correct any violation after notice by FHP personnel, Order to Show Cause should be issued to the wrecker service advising that noncompliance will result in the removal of the wrecker service from the rotation list. Following the issuance of the Order to Show Cause, the Office of General Counsel should be advised to take action to remove the wrecker service from the rotation list if the wrecker service has failed to comply with the place of business criteria. [Emphasis supplied, Exhibit P-4.] The non-rule policy appears then to have evolved at least by that point in time to clearly include written warnings prior to enforcing the criteria at a subsequent inspection. The parties have, however, stipulated that as to the six enumerated criteria, the language employed in February 1987, not January 1988, is the non-rule policy FHP is enforcing and intends to enforce. Other evidence suggests that it was always the Patrol's practice that warnings precede an Order to Show Cause. No studies or any other form of field research was conducted as to the necessity or propriety of the non-rule policy. Prior to Lt. Col. Carmody's response to Mr. Kauff's letter, no written document existed requiring the six "place of business" criteria of the non-rule policy. The non-rule policy is admittedly not related to reputability, mechanical standards, or safety qualifications set by the FHP for the size of the vehicle the wrecker is intended to handle. However, the agency's primary purpose behind the place of business non-rule policy, as is its purpose for the published "place of business" rule itself, is to insure prompt response time, which Lt. Col. Carmody and Lt. Wessels view as impacting on overall traffic safety. Specifically, the concerns of FHP are that without a sign on the place of business, the wrecker operator is difficult to locate. Lt. Wessels' personal experience in being unable to locate certain operators during his subsequent investigation in preparation for the Administrative Complaint proceedings demonstrates this concern is valid. (See Finding of Fact 26) A sign assists the public in locating the wrecker service for retrieval of towed vehicles or personal property. It assists in accident investigation and reconstruction by providing quick access to the towed vehicle by insurance investigators/appraisers and by FHP. The office space requirement, the requirement of a telephone on the premises, and the requirement of the presence of office personnel during reasonably specified business hours encourages wrecker services to serve the public by receiving phone calls, permitting payment of towing bills or securing the release of vehicles or personal property, and assists in dispatching wreckers in timely response to FHP rotation calls made by telephone. It was established that in Palm Beach County, at least, FHP rotation calls are, in fact, made by telephone. It is noted that these foregoing criteria relating to telephone contact are also consistent with unchallenged Rule 15B-9.003(8) and (9) and that the hours of 9:00 a.m. to 4:00 p.m. are considerably less for office personnel than the 24 hours per day "on call" status specified in Subparagraph (9). These foregoing requirements help to insure a reasonable response time, as does the requirement that the wrecker be stationed at the place of business within the zone. The requirement that the wrecker be stationed at the place of business within the zone also facilitates timely inspections of each vehicle by the FHP. Painting the name, address, and telephone number on each truck fosters accountability of the wrecker operators, insures the reasonable response time due to their presence within the zone, and it may be inferred from all other evidence that it discourages vehicle equipment from being moved from truck to truck. It is further noted that the truck sign requirement is also consistent with Section 715.07(2)(a)7, Florida Statutes, regulating the towing of vehicles from private property. From FHP's perspective, a reasonable response time is a public safety qualification, although it is admittedly not a qualification geared to the size of the vehicles to be towed. Petitioners assert that Rule 15B-9.004(1), providing that an operator will lose a call if a reasonable response time is not evident, is sufficient to ensure reasonable response by wrecker operators and renders both the challenged rule and non-rule policy redundant and unnecessary because Rule 15B-9.007(1) provides for removal from the wrecker rotation list for failure to comply with any other rule. FHP maintains that although FHP is encountering only sporadic problems in Palm Beach County with wrecker response time under the current operation of Rule 15B-9.003(2), without a place of business requirement, wreckers would be encouraged to race from one zone to another to avoid violating Rule 15B-9.004, and the public would thereby be endangered by traffic hazards created by wreckers hurriedly responding to a call. Wrecker services are reluctant to turn down a rotation call. Murphy's, for instance, charges up to twice as much for an FHP list tow as for other tows. If a wrecker does not respond to a call from FHP, substantial revenues may be lost. Lt. Col. Carmody and Lt. Wessels opined that absence of an enforceable "place of business" rule would largely obliterate the statutory areas/zones concept altogether. See Section 321.051, Florida Statutes, supra. Eliminating the place of business requirement would cause significant operational problems for FHP. Timely response by wreckers could not be effectively enforced on the authority of Rule 15B-9.004 alone. If a wrecker were sent from one zone into another and the wrecker were delayed, an excuse given to the Patrol, such as weather or traffic congestion could never be verified. Eliminating the place of business requirement would allow wreckers to cross zones so that timely response would have to be judged on a case by case basis. In view of the difficulty of judging the reasonableness of each response by a wrecker and problems incurred in locating the business for the purpose of inspecting the wreckers or releasing the vehicle or personal property to the motorist, eliminating the place of business requirement would create what Lt. Col. Carmody described as "an administrative nightmare for FHP." It is found that this is a fair assessment of the situation, despite Lt. Wessels' testimony that he knew of no specific facts showing that the public has yet been adversely affected in response time or retrieval of vehicles by the method in which Murphy's and Lyons' operate their businesses. Upon receiving Lt. Col. Carmody's response of February 5, 1987, Howard Kauff wrote Captain Hardin of Troop L, asking for removal of several wrecker operators, among them, Murphy's and Lyons, whom Kauff had identified as allegedly failing to comply with the six "place of business" criteria specified by Lt. Col. Carmody. Lt. Wessels subsequently conducted an investigation to determine if any of the wrecker services identified by Howard Kauff were in fact in violation of Rule 15B-9.003(2), as interpreted by Lt. Col. Carmody's memorandum of February 5, 1987. For varied reasons, including being unable to locate some satellite business addresses, Lt. Wessels concluded that eight companies did not comply with the criteria and recommended their removal from the appropriate rotation list. Petitioners Murphy's Towing and Lyons Auto Body, Inc. were included in the eight wrecker services identified by Lt. Wessels. Following Lt. Wessels' investigation, FHP issued to the eight wrecker companies Orders to Show Cause why they should not be removed from the appropriate rotation list. Three of the wrecker services complied with the "place of business" requirement. Wessels recommended that the remaining five, which included both Petitioners Murphy's and Lyons be removed. Pursuant to Wessels' recommendations, the Department issued Administrative Complaints against the five wrecker operators. Three wrecker operators were removed from the respective lists--two voluntarily and one by Order of the DHSMV. Murphy's has participated in the wrecker rotation system for eight years without any complaint, citation, or criticism for untimely response. Its main place of business and wreckers have been inspected each of the years immediately prior to service of the Order to Show Cause without any FHP comment on its failure to comply with the "place of business" rule or non-rule policy, despite Lt. Wessels' being aware of Murphy's multi-zone operation as early as May 16, 1986. The July 22, 1987, Administrative Complaints against the Petitioners enunciate only the non-rule policy as it had evolved up to February 5, 1987 and as set out in Finding of Fact 4 supra., not as it had evolved as of the January 8, 1988 statewide memorandum described in Finding of Fact 20 supra. Lyons has participated in the wrecker rotation system for twenty years without any FHP concerns over untimely response. Its history of successful yearly inspections and no FHP comment concerning the "place of business" rule and non- rule policy has been identical to Murphy's for the last three years immediately preceding the Order to Show Cause. Murphy's and Lyons are two of Kauff's largest competitors. Of the ten multi-zone wrecker operators in Palm Beach County, only Mr. Kauff and one other met the criteria suggested by Kauff's letter and enforced by non-rule policy prior to the Orders to Show Cause. See Finding of Fact 27. In January, 1988, FHP learned that Kauff's Towing did not maintain office personnel at its business location in Lake Worth, Zone 4 from 9:00 a.m. to 4:00 p.m., Monday through Friday. Kauff was verbally advised by FHP of the noncompliance. This notice was followed by written confirmation on January 20, 1988 and February 10, 1988. In response to this notice by FHP, Howard Kauff directed his terminal manager to provide personnel at the location during the required time period. Kauff was advised that noncompliance with the criteria would result in removal of Kauff's from the rotation list in Zone 4, Palm Beach County. At formal hearing, Lt. Col. Carmody stated that his memoranda did not address whether outside or inside storage must be available in a zone. In his opinion, FHP could not regulate that aspect due to prior Attorney General Opinion 85-60. (See the Conclusions of Law supra.) He opined that a wrecker operator using a central dispatch may be sufficient although the criteria he seeks to enforce requires a phone at each place of business. Lt. Wessels essentially concurred. Lt. Wessels was unsure how response time would be adversely affected if a truck were maintained in the assigned zone but there was not a building located in the assigned zone or if a tow truck were not physically located at the building location designated as a place of business in the zone but was either patrolling in the zone or parked elsewhere in the zone. Lt. Wessels was unable to testify whether ownership or rental of a building by an operator had significance with regard to the "place of business" rule or the six non-rule policy criteria. Lt. Wessels would accept, within the six criteria, an operator's use of a storage lot maintained by the lot's owner who was not an employee of the wrecker operator. However, it was not demonstrated that Lt. Wessels is in a policy making position for the agency, and his testimony as to the foregoing matters at best demonstrates some further confusion as to how the six interpretative non-rule policy criteria are to be applied on a case by case basis. It does not demonstrate that those six criteria have been applied to Petitioners in any unequal fashion, merely that application of the six criteria is best made on a case by case basis. In the course of discovery, Respondent agency denied the following Request for Admission, "2. Admit that the interpretation of the place of business requirement has not been equally applied to all wrecker operators in the State of Florida." The evidence as a whole does not demonstrate such unequal application of the promulgated rule or the non-rule policy to Petitioners in this cause, so as to invalidate either the rule or the non-rule policy upon that ground. Apparently, as of the date of formal hearing, both rule and non-rule policy are being applied evenhandedly in Palm Beach County where violations have been documented. The testimony of Lt. Col. Carmody and Lt. Wessels demonstrates that no reports of violation have been made from other counties. Petitioners did nothing to refute this testimony nor did they provide any evidence of multiple zone operators in other counties or zones outside of Palm Beach County who were systematically permitted to evade the rule and/or non-rule policy.
The Issue The issue is whether a request by Reddy Ice for reimbursement of impact fees assessed by the Town of Davie when its ice manufacturing plant was displaced by the Department of Transportation for the construction of Interstate 595 should be granted under the relocation assistance program established pursuant to Section 421.55, Florida Statutes. STIPULATED FACTS 1/ Reddy Ice, Inc., an ice manufacturing company, received relocation assistance and related moving costs from the Florida Department of Transportation (Department) when its plant was moved due to the construction of Interstate 595 in Broward County, Florida. When Reddy Ice relocated its business to the Town of Davie in Broward County, it was paid $108,135.57 in relocation costs by the Department. The Town of Davie had an ordinance which required the payment of impact fees by a business such as Reddy Ice which uses large quantities of water. Payment of the impact fee was a prerequisite to issuance of a certificate of occupancy for the new facility. Reddy Ice was assessed and paid $71,937 as contribution charges to the Town of Davie. The payment was treated as a capital expense in the accounting records of Reddy Ice. The water and sewer service agreement Reddy Ice executed with Town of Davie Utilities Department provided for an upward adjustment of the charges if the actual water flow exceeds the estimated amount. There is no provision in the agreement for a downward adjustment of the impact fee in the event less water is used than was estimated. The impact fees are not reimbursed by the Town if the business moves to another location. Reddy Ice filed a claim with the district office of the Department of Transportation in Fort Lauderdale to recover the impact fees. The district office denied the claim because it was not specifically provided for in the list of eligible move costs categories specified in the Florida Department of Transportation Right-of-Way Policies Manual. See the Manual, Operating Procedures, Relocation Assistance, Section 3-2. The impact fee was considered an additional expense of operating in a new location, which was ineligible for reimbursement under Section 3-3 of the Right-of-Way Manual. The claim was then forwarded to the State relocation office in Tallahassee for review and determination. The State office concurred with the district determination. Because the claim for impact fees presented a relatively unique relocation issue, and federal funds are involved in the repayment of relocation costs for interstate highway construction, a national ruling was requested from the Federal Highway Administration. Ms. Barbara Reichart, Chief, Relocation Division, Federal Highway Administration, Washington, D.C., advised on May 27, 1987, that the Florida Department of Transportation and the Federal Highway Administration Division Office were correct in their determination that impact fees were ineligible for reimbursement as relocation costs under 49 CFR Section 25.305(f). Impact fees are considered by the Federal Highway Administration to be an additional operating expense incurred by a business because of operating in a new location. Reddy Ice was advised of the final determination and denial of the claim by letter dated August 25, 1987, which resulted in this administrative proceeding.
Recommendation It is recommended that the application of Reddy Ice for reimbursement of contribution charges made by the Town of Davie be denied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of May, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division OF Administrative Hearings this 5th day of May, 1988.
The Issue Whether Respondent, Great Southwest Corporation, discriminated against the Petitioner, Demetrio A. Walters, when Respondent terminated Petitioner's employment.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing the following relevant findings of fact are made: Petitioner, a black, hispanic male, was employed by Respondent sometime around September 1, 1988 as a journeyman carpenter on the Respondent's Tampa Bay Convention Center Project. Respondent is an employer within the meaning of the Section 760.02(6), Florida Statutes. Petitioner's employment was terminated on March 31, 1989, and Respondent's stated reason for Petitioner's discharge was insubordination and failure to follow instructions necessary to carry out his daily activities. Respondent is not a party to any formal collective bargaining agreement. Therefore, it was not unusual for the Respondent to require carpenters to perform work which normally would have been otherwise performed by laborers or some other craft. However, this policy was applied to all carpenters working on the Tampa Bay Construction Project regardless of the race or national origin. Petitioner resented being required to perform work normally reserved for laborers or other crafts, and, as a result, this created problems between the Petitioner and his immediate supervisor. Petitioner did not always follow instructions given to him by his immediate supervisor to perform a certain task or to perform a certain task in a certain way, and on occasion would be absent from his work station during working hours without permission from his immediate supervisor. At all times material to this proceeding, Gene Raulerson was the Petitioner's immediate supervisor while working with Respondent on the Tampa Bay Construction Center Project. Gene Raulerson frequently directed profanity at all of his subordinates, and treated all of his subordinates in a rude and disrespectful manner. Raulerson cursed and called Petitioner offensive names, and even called Petitioner's mother an offensive name, and treated Petitioner in a rude and disrespectful manner. However, there was no evidence that Raulerson treated Petitioner any differently that other carpenters on the project because of his race or national origin or that Raulerson discharged the Petitioner because of his race or national origin. Respondent has an affirmative action program that prohibits discrimination against any individual based upon inter alia race or national origin.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That the Florida Commission on Human Relations enter a Final Order finding that the Petitioner, Demetrio A. Walters, was not discharged due to his race or national origin in violation of Section 760.10, Florida Statutes, and that the Petition for Relief be dismissed. DONE and ENTERED this 8th day of March, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Petitioner has submitted a notarized statement that he is black and hispanic and has no problems working with people of any color or race, with a list of names of people attached that he has worked with. Although it would be stretching it to consider this as Proposed Findings of Fact, I have found the Petitioner to be black and hispanic and the balance of this statement is not relevant or material. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. - 3. Adopted in Findings of Fact 2, 1, and 3, respectively. 4. Adopted in Findings of Fact 8 and 9. 5. - 7. Adopted in Finding of Fact 4. 8. Adopted in Finding of Fact 6 but modified. 9. - 10. Adopted in Findings of Fact 9 and 10, respectively. COPIES FURNISHED: Dana Baird, General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Ronald M. McElrath Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Demetrio A. Walters 1716 Hartley Road Tampa, FL 33619 Charles R. Nixon, Esquire Vice President/General Counsel Rooney Enterprises, Inc. 3333 Lee Parkway P.O. Box 19000 Dallas, TX 75219 James Clemmenen, Vice President Great Southwest Corporation Post Office Box 24748 Tampa, FL 33623-4748
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
