Findings Of Fact Petitioner, Forman's Dairy Palm Nursery (the "Nursery"), is located in Broward County, Florida and is primarily engaged in the business of raising and wholesaling palm trees. The area in which the Nursery is located was originally settled by the parents of Hamilton Forman and Charles Forman in approximately 1910. The Forman property was developed into a diversified agricultural enterprise which consisted of approximately seven hundred acres. The Nursery was incorporated and began operations in approximately 1956 and is authorized to undertake a wide range of business ventures. The evidence did not establish the initial size of the Nursery or the ownership of the land on which the Nursery has conducted operations. Hamilton Forman is the president of the Nursery and is responsible for filing the tax returns and maintaining the other financial records of the corporation. The Nursery is one of many business ventures in which he is engaged. He owns fifty percent (50%) of the Nursery. His brother, Dr. Charles Forman, owns the other fifty percent (50%) of the Nursery. Charles Forman has been more involved in the agricultural and operational aspects of the Nursery. In approximately 1970, a portion of the Forman property was transferred to one of Hamilton Forman's sons for the purpose of establishing a cemetery. (This property will hereinafter be referred to as the "Cemetery.") Approximately thirty acres of land which had previously been part of the Nursery was conveyed for the establishment of the Cemetery. The Cemetery was subsequently conveyed to an unrelated conglomerate which continues to operate the Cemetery on property immediately adjacent to the Nursery. (The company which acquired the Cemetery will be referred to as the "Cemetery Company".) When the property was transferred for purposes of establishing the Cemetery, a deed reservation was inserted in the conveyance which allowed the Nursery to continue to use a portion of the property conveyed (approximately ten acres) until such time as the Cemetery needed it. (This provision will hereinafter be referred to as the "Deed Reservation.") Pursuant to this Deed Reservation, the Cemetery Company can regain use of the property at any time with a one year notification requirement. The specific provisions of the Deed Reservation were not established. Thus, the exact terms under which the Nursery continued to occupy the property are not clear and there is no evidence as to what rights the Nursery has under the Deed Reservation. Although it appears that approximately ten acres were originally subject to the Deed Reservation, it is unclear how much of the property currently occupied and utilized by the Nursery is actually owned by the Cemetery Company subject to this Deed Reservation. The property owned by the parents of Hamilton and Charles Forman abutted a road for a distance of approximately seven thousand feet. The road has been at its current location since prior to 1926. The road ultimately became State Road 84. There have been ongoing discussions and negotiations regarding the development of a limited access highway in the State Road 84 corridor for over twenty years. Hamilton Forman has closely followed the various proposals during this time period and has supported the development of such a highway The proposals came to fruition with the current on-going construction of the Interstate 595 ("I-595") expressway in the area of the State Road 84 corridor. The I-595 project is a federally assisted highway project undertaken by DOT. The evidence did not establish when the I-595 project was finally approved to begin acquisitions and construction, but the project was the culmination of years of effort. In approximately 1984 or 1985, DOT sent notices to all of the land owners in the area of the proposed limited access highway advising them of the potential need to acquire property for the I-595 project. When the location of the project changed, new notices were sent out in late 1985 or 1986. During this time period, DOT representatives approached Hamilton Forman and the Nursery regarding the acquisitions that were necessary for the I-595 project. Shortly thereafter, a portion of the property occupied by the Nursery was sold to a third party for the construction of a mini-warehouse. (The property sold for the warehouse will hereinafter be referred to as the "DiMar Property.") The transfer of the DiMar Property was completed on March 6, 1986. Hamilton Forman and Miles Austin Forman were the transferors in that transaction. The DiMar Property consisted of just under four acres. The Nursery occupied approximately three and one half of those acres. At the time of the sale of the DiMar Property, Hamilton Forman anticipated that the I-595 project would impact upon the operation of the Nursery and he recognized the possibility that the Nursery might not be able to continue to operate profitably because of that impact. No evidence was presented regarding the effect the transfer of the DiMar Property had on the profitability or sales of the Nursery or how the nursery stock located on the property was disposed of. The transfer of the DiMar property took place prior to the valuation dates for the acquisitions of property in the area by DOT for the I-595 project. Shortly after the transfer of the DiMar Property, DOT began acquiring property in the vicinity of the Nursery for the right-of-way for I-595. The evidence did not establish the exact acreage occupied by the Nursery either before or after the sale of the DiMar property. It appears that after the sale of the DiMar property but prior to any acquisitions for the I-595 project, the area occupied by the Nursery was somewhere between fifteen and eighteen acres. The direct acquisition of property required for the I-595 project included approximately two hundred feet along the southern frontage of State Road 84 which was being utilized by the Nursery. In total, approximately 2.75 acres of land that was occupied by the Nursery along this frontage was acquired for the I-595 project. (The acquisitions of property on which the Nursery was conducting operations will be referred to as the "Taking".) All of the property occupied by the Nursery and acquired as part of the Taking was actually owned by either the Cemetery (and occupied by the Nursery in accordance with the Deed Reservation discussed in Findings of Fact 5 above) or by Di-Mar. The evidence did not establish the terms under which the Nursery was occupying the property owned by DiMar. DOT paid the Nursery for the palm trees and nursery stock located within the area of the Taking. DOT also acquired approximately two acres from the Cemetery that was occupied and being held in reserve for expansion by the Cemetery Company. Prior to the acquisitions of property described in Findings of Fact 14 and 15, the Cemetery had direct access and egress to State Road 84. Because of the planned acquisitions, DOT recognized that a new access to State Road 84 was necessary for the Cemetery. In order to provide this new access for the Cemetery, DOT acquired an additional one half acre of land that was owned by the Cemetery Company but occupied by the Nursery pursuant to the Deed Reservation. (This half acre will be referred to as the "Trapezoidal Area.") The location and design for a new driveway-access to State Road 84 were negotiated with and approved by the Cemetery Company. (This new driveway will be referred to as the "Access Loop.") There is no indication that the Nursery was consulted or provided any input regarding its needs with respect to the Access Loop. The Respondent has completed construction of the Access Loop. It was anticipated that the Access Loop would be connected with the interior roadways of the Cemetery. The Respondent has paid a sum of money to the Cemetery Company as a "Cost To Cure" to enable the Cemetery Company to connect its internal roads with the Access Loop. As of the date of the hearing, the Cemetery Company had not connected its internal roads with the Access Loop. As part of the Cost To Cure, the Respondent paid the Nursery for the trees and Nursery stock located within the Trapezoidal Area where the new Access Loop was built. After the sale of the DiMar Property, the subsequent Taking for I-595 and the acquisition of the Trapezoidal Area for the new driveway, the Nursery continued its operations in an area of approximately twelve to fifteen acres. The evidence did not establish the ownership of the property on which the Nursery has continued operations. However, it is clear that at least a portion of the property, and perhaps as much as ten acres, are owned by the Cemetery Company and subject to the Deed Reservation. By letter dated March 31, 1988, the Cemetery Company advised Hamilton C. Forman that it was reclaiming approximately five acres of the land occupied by the Nursery pursuant to the Deed Reservation. (These five acres will be referred to as the "Reclaimed Land.") The letter states that the Reclaimed Land was necessary because of the taking by DOT of the Cemetery property as set forth in Findings of Fact 15 above. The letter purports to serve as the one year notification required by the Deed Reservation. The Reclaimed Land is among the Nursery's moot productive acreage. The evidence did not establish when, or if, this property was vacated by the Nursery and turned over to the Cemetery Company. No competent evidence was presented to establish when the Cemetery Company would have exercised its rights under the Deed Reservation if no portion of the Cemetery had been taken for the I-595 project. While Hamilton Forman testified that the Cemetery Company would not have needed the property occupied by the Nursery for approximately four or five years from the date it acquired the Cemetery (which was sometime in 1985 or 1986), his testimony is clearly hearsay which is not corroborated by otherwise competent evidence. The amount of land being reclaimed by the Cemetery Company (five acres) exceeds the amount of land acquired by DOT that was actually being utilized and occupied by the Cemetery at the time of acquisition (approximately two acres.) At the time the Forman property was developed, a system of underground water culverts and Sewell locks were established in order to control the surface water in the area and provide irrigation to the farm lands. These drainage and irrigation facilities (including the Sewell locks) were constructed several years prior to the establishment of the Nursery and they provide irrigation and drainage control on both sides of State Road 84. The nearby North New River Canal provides the source of water. The Formans have vested rights to draw water from the North New River Canal and to discharge water below the Sewell locks. The evidence did not establish the terms or duration of these vested rights but it appears that they will continue for a another sixty (60) to seventy (70) years. The Tindall Hammock Irrigation Soil Conservation District ("Tindall Hammock") was created in 1951. Charles Forman is the chairman of Tindall Hammock and Hamilton Forman is a director. Hamilton Forman was also one of the organizers of Tindall Hammock. 25. Tindall Hammock is the owner of some of the drainage facilities in the area of the Nursery. The Sewell locks are owned and controlled by the Central and Southern South Florida Flood Control District (the "Flood Control District.") Tindall Hammock has recently negotiated with the Cemetery Company regarding the relocation of a portion of the drainage facilities. As a result of the discussions between Tindall Hammock and the Cemetery Company, two easements have been granted to Tindall Hammock dated May 5, 1989. Tindall Hammock and the Cemetery determined the size and location of both of the drainage easements without any input from DOT. There are two separate areas involved in the relocation of the drainage facilities. The first consists of roughly .34 acres and runs approximately two hundred and sixty-six feet by fifty-six feet from the western border of the Nursery along the northern boundary of the Nursery following the line of the taking for the I-595 project. (This parcel will hereinafter be referred to as "Relocated Drainage Facility No. 1"). The second drainage easement also runs along the northern border of the Nursery following the boundary of the I-595 Taking. It starts from a point on the eastern boundary of the Nursery bordering the Cemetery, runs to the west for a short distance and then cuts diagonally through the existing Nursery to a point close to the southern border of the Nursery. (This easement will hereinafter be referred to as the "Relocated Drainage Facility No. 2"). Relocated Drainage Facility No. 2 is almost entirely included within the area of the Reclaimed Land. A new drainage ditch is proposed to be constructed in the area of Relocated Drainage Facility No. 2 to replace a drainage ditch which previously ran along the eastern edge of the Nursery and served as the boundary between the Cemetery and the Nursery. The proposed new drainage ditch will enable the Cemetery to make more efficient use of the Reclaimed Land. Tindall Hammock submitted a claim to DOT for the cost of the easements and for relocating the drainage facilities thereon. Tindall Hammock contended that the relocations were due to the I-595 project. DOT denied most of the claim. A portion of the relocated drainage facilities was necessary to replace and relocate drainage facilities that were within the area of the Taking and to replace drainage to the North New River Canal underneath State Road 84 which was severed as part of the construction of I-595. Therefore, DOT did construct or pay for the relocation of a culvert in the Trapezoidal Area and a drainage ditch in the area of Relocated Drainage Facility No. 2. DOT has not paid to relocate any other drainage facilities because it determined that the relocations were not the result of the acquisitions for the I-595 project. Tindall Hammock has not appealed DOT's denial of the claim regarding the rest of the relocated drainage facilities. Other than the facilities constructed or paid for by DOT, no new drainage facilities have been constructed in the area of Relocated Drainage Facility No. 2. It is not clear whether any new facilities have been erected in the area of Relocated Drainage Facility No. 1. The Nursery has been compensated by DOT for the palm trees or nursery stock that was located in the areas where the new drainage facilities have been built as set forth in Findings of Fact 27. Prior to this hearing, the Nursery had not sought payment for the palm trees or nursery stock located in the other areas of the Relocated Drainage Facilities No. 1 and No. 2. The evidence in this case failed to establish that the relocation of the drainage facilities was necessitated by the I-595 project except in those areas where DOT has already constructed or paid for the relocation. Throughout its existence and up until the construction of I-595, the Nursery had direct access to State Road 84. Prior to the Taking, the Nursery had two means of access from State Road 84: one was used primarily for an entrance and the other was used primarily for exiting. These access points were shared with the Cemetery. Prior to the I-595 project, the Nursery's two access points on State Road 84 were approximately six hundred feet apart. Both of these access points allowed persons entering or leaving the Nursery to turn either east or west and both access points provided direct access from east bound or west bound State Road 84 through median openings. After the Taking, the new Access Loop was constructed in the Trapezoidal Area to funnel traffic into the Cemetery as set forth in Findings of Fact 16. The evidence did not establish when this new Access Loop was constructed. The nature of the wholesale palm tree business requires large trucks and/or semi-tractor/trailers to remove the trees from the site. As a result of the Taking and the construction of the Access Loop, access to the Nursery has been significantly altered. The new Access Loop was not designed to accommodate the large trucks and semi-tractor/trailers that typically frequent the Nursery. Access to the Nursery is still possible off the new Access Loop. However, entry to the Nursery is much more difficult for large trucks and semi-tractor/trailers. After the Taking, large trucks and semi-tractors/trailers have a much more difficult time negotiating the turn within the Nursery to properly exit out onto the frontage road. While the new driveway makes access to the Nursery more difficult and causes some internal circulation problems, the Petitioner has not established that a more appropriate access cannot be designed within the remainder of the property. A redesign of the internal traffic circulation system for the Nursery may be necessary. No evidence was presented to demonstrate the viability, cost or effect of such a redesign. However, it appears that this access problem can be cured relatively easily. The new Access Loop was constructed on land now owned by the Respondent. It is not clear what rights, if any, the Nursery will have to the Cost To Cure roadways that are to be constructed to connect the Access Loop to the internal Cemetery property. At this point, the only access that the Nursery has to State Road 84 is off of the Access Loop constructed by Respondent. Prior to the Taking, Nursery customers had direct access to the Nursery from State Road 84. Now, customers are required to take a very circuitous route to reach the Nursery. After the construction of I-595, State Road 84 has become a frontage road adjacent to the interstate. In the after condition, the Nursery has direct access to only the east bound frontage road. In sum, prior to the acquisition, the Nursery had direct frontage on a major arterial road. It now has restricted access on the east bound portion of a frontage road. Only those travelers on the east bound frontage road will be able to access the Nursery in substantially the same manner as they did prior to the acquisitions. While it is clear that access to the Nursery has become more difficult, the evidence did not establish that the Nursery will not be able to operate profitably solely as a result of these conditions. Hamilton Forman testified that, until the I-595 project, the Nursery has been profitable during all of its years of operations. However, no competent evidence was introduced to show the profits that have been earned. No financial records of the Nursery were produced and some of the overhead and other records of the Nursery are shared with other businesses in which Hamilton Forman is involved. The gross sales of the Nursery have declined by approximately fifty percent from the year 1985 to 1988. Gross sales for the year 1985 were $174,364.95. Gross sales for the year 1986 were $163,484.41. Gross sales for the year 1987 were $144,573.87. Gross sales for the year 1988 were $87,116.00. Gross sales for the first nine months of 1989 were $43,909.00 which if annualized would result in total sales for the year of $58,647.00. The overhead costs involved in operating the Nursery have remained relatively constant throughout this time and the Nursery has not significantly changed its advertising efforts during this time period. Some of the lost sales may be attributable to a third party vendor who purchased the trees acquired by DOT following the acquisitions detailed in Findings of Fact 14 and 15. This third party vendor sold the trees which had been acquired from the Nursery at a significant discount over the prices that the Nursery was selling similar stock. The evidence did not establish the time frame during which this vendor was in business. Thus, it is not possible to determine the extent to which the Nursery's drop in sales was attributable to this third party vendor. Petitioner contends that its drop in sales is mainly attributable to the more difficult access to the Nursery. However, Petitioner's own witnesses regarding the value of the nursery stock have testified to the unique types and sizes of the palm trees at the Nursery. The uniqueness of the product sold by the Nursery should help insulate it from problems associated with more difficult access. Moreover, it is clear that a number of other factors have contributed to the decrease in sales including the loss of the DiMar Property, the competition from the purchaser of the palm trees acquired by DOT in the area of the Taking and the temporary disruption that has occurred because of the ongoing construction that has been taking place in the area for several years. After the Nursery learned it would have to turn over approximately five acres to the Cemetery Company as set forth in Findings of Fact 20 above, the Nursery submitted a claim to Respondent for the loss of its palm trees in this area (the "Claim"). The Nursery's Claim also sought reimbursement for all the remaining trees in the Nursery on the grounds that the Nursery could no longer continue to operate after it turned over the Reclaimed Land. Most of the palm trees in the remaining areas of the Nursery are planted in the ground rather than in pots. The value of the palm trees in the ground is approximately the same as the cost to move the trees. Moving the trees would stunt the growth of the trees for a period of eight months to a year after the move. In addition, it is reasonable to expect that a significant number of the trees would be unable to survive a move. The Petitioner has presented two valuations of the Nursery stock currently found within the entire remaining area occupied by the Nursery. The first valuation is dated May 2, 1988 and it includes a total of 6,739 trees which are valued at a total of $289,215.50. The second valuation is dated November 17, 1989 and includes 11,404 trees with a total value of $453,510. The Petitioner has not separated out the value of the trees in any specific area of the Nursery. No acceptable explanation was given for the great disparity between these two valuations completed only one and a half years apart. Therefore, the valuations are rejected. The Respondent has not presented any contrary evidence regarding the value of the trees located in the Nursery. DOT denied Petitioner's Claim on the grounds that the Taking by DOT of the property occupied by the Nursery did not necessitate the relocation of the entire Nursery operation. In making this determination, DOT refused to consider the effect on the Nursery of losing the five acres being reclaimed by the Cemetery Company. DOT has not made a specific assessment of what impact the Taking and the development of the new Access Loop has had on the business of the Nursery. DOT has concluded that the displacement of the Nursery in the area of the Taking (approximately 2.75 acre) in the Trapezoidal area (approximately .5 acres) and in the area of the new drainage ditch (less than .5 acres) do not necessitate the move of the entire Nursery operation. There is a great deal of conflicting evidence regarding the amount of land actually occupied by the Nursery. After thoroughly reviewing this evidence, it is concluded that, including the five acres being reclaimed by the Cemetery Company, the Nursery has approximately twelve to fifteen acres of land in which to carry out its operations. Petitioner has not presented sufficient evidence to establish that this area would be inadequate to continue profitable operations. The evidence presented at the hearing did establish that the economies of scale will no longer be favorable enough to allow the Nursery to continue to operate at a profit if and when it turns over the Reclaimed Land to the Cemetery Company. However, the evidence did not establish that the Nursery would be unable to operate at a profit if the Cemetery Company had not reclaimed the approximate five acres pursuant to the Deed Reservation. In evaluating relocation claims, DOT first determines whether a claimant has been "displaced" in the area of the taking. Prior to evaluating the Claim which is the subject of this proceeding, DOT had determined that the Nursery was displaced in the area of the Taking, in the Trapezoidal Area and in a small portion of the area of Relocated Drainage Facility No. 2 where the new drainage ditch was constructed. Based upon this determination, the Nursery was deemed eligible for relocation, cost reimbursement or reimbursement for actual direct loss of tangible personal property with respect to the palm trees located in those areas. The palm trees in those areas were considered moveable personal property by DOT because the intention was to sell the trees for transplantation off-site. Thus, the trees were deemed eligible for relocation, cost reimbursement or, if the Nursery elected not to move the trees, they were to be treated under the relocation guideline known as "Reimbursement for Actual Direct Losses of Tangible Personal Property." The Nursery stock was processed through relocation procedures and was handled separate and apart from the realty and improvement acquisitions. However, DOT denied the Nursery's subsequent Claim for relocating the palm trees in the remaining area of the Nursery on the grounds that the Nursery was not a displaced person in those areas. In applying the Relocation Act, DOT will, in certain instances, reimburse a claimant for relocating personal property not within the area of the take. DOT has not adopted any rules setting forth the factors that will be considered in determining whether the agency will pay for relocation costs of personal property that is not relocated within the area of the take. Among the factors that are considered when determining whether a displacee is entitled to relocation assistance for a partial taking include whether there has been a total severance of access, whether internal traffic flow in the remainder has been substantially impaired and such internal traffic control was an essential part of the business operation, whether a process system has been disrupted and there is no adequate space on the remainder to put that process system back into operation and whether the visibility of the business had been significantly impaired and the business is largely dependent on impulse buyers as opposed to destination shoppers.
Recommendation Based upon the foregoing findings of facts and conclusions of law, it is RECOMMENDED that a Final Order be entered denying Petitioner's claim for relocation expenses related to the Nursery stock outside the area of the Taking which has not previously been compensated. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of September, 1990. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-0084 Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact and conclusions of law includes seven main sections. Section I is an Introduction, Section II is entitled stipulated Facts, Section III is entitled DOT Admissions, Section IV is entitled Unrebutted Facts in Evidence of the Petitioner, Section V is entitled Disputed Facts, Section VI is entitled Statutes regarding Eligibility for Relocation Assistance, Section VII is entitled Federal Case Law on Relocation-Assistance Eligibility and Section VIII is entitled Proposed Conclusions of Law. All of Petitioner's proposed findings of fact and conclusions of law have been considered in the preparation of this Recommended Order. This Appendix will deal only with the factual proposals set forth in Sections III, IV and v. The Petitioner's Proposed Findings of Fact "DOT ADMISSIONS" Paragraph Number in Paragraph Number in the Findings of Fact Petitioner's Section in the Recommended Order Where Accepted or "III. DOT Admissions" Reason for Rejection Rejected as overly broad and constituting a conclusion of law rather than a finding of fact. While this proposed finding may be true in some instances, the DOT statement which is relied upon for this proposal was limited to a specific factual setting. Rejected as irrelevant. Rejected as irrelevant. The subject matter is addressed in part in Findings of Fact 48. Adopted in substance in Findings of Fact 14 and 47. Adopted in substance in Findings of Fact 30 and 48. Subordinate to Findings of Fact 16 and 17. Subordinate to Findings of Fact 26, 27, 28 and 30 31 Subordinate to Findings of Fact 30, 42 and 47. Subordinate to Findings of Fact 13 and 18. Subordinate to Findings of Fact 14 and 15. Subordinate to Findings of Fact 16 and 30. Subordinate to Findings of Fact 16. Subordinate to Findings of Fact 30. No competent evidence was presented to establish the acreage involved in this "Cost To Cure" area. The evidence did establish that DOT did compensate the Nursery for some trees that were located outside the area of the Taking. Subordinate to Findings of Fact 8 and 9. Rejected as irrelevant. Subordinate to Findings of Fact 20 and 21. Adopted in substance in Findings of Fact 27. Adopted in substance in Findings of Fact 14, 17, 30 and 47. Adopted in substance in Findings of Fact 28, 30, and 47. Adopted in substance in Findings of Fact 28, 30, and 47. Subordinate to Findings of Fact 32, 33, and 34. Rejected as irrelevant. This subject is addressed to some degree in Findings of Fact 35. Rejected as vague and ambiguous. Rejected overly broad. Rejected as constituting a conclusion of law rather than a finding of fact. Rejected as constituting a conclusion of law rather than a finding of fact. Rejected as vague and ambiguous. This subject is addressed to some degree in Findings of Fact 48. Adopted in substance in Findings of Fact 46 and 47. Adopted in substance in Findings of Fact 48. Subordinate to Findings of Fact 48. Subordinate to Findings of Fact 48. Rejected as constituting a conclusion of law rather than a finding of fact. This subject area is related to Findings of Fact 48. Rejected as constituting a conclusion of law rather than a finding of fact. This subject area is related to Findings of Fact 48. Rejected as constituting a conclusion of law rather than a finding of fact. Adopted in substance in Findings of Fact Rejected as overly broad. 37.-38. Rejected as constituting a conclusion of law rather than a finding of fact. Rejected as constituting a hypothetical based upon facts not in evidence. Rejected as irrelevant. Subordinate to Findings of Fact 46. Rejected as constituting argument rather than a Finding of Fact. This subject matter is addressed in Findings of Fact 38. Rejected as irrelevant. Rejected as irrelevant. Rejected as vague. Subordinate to Findings of Fact 46. Subordinate to Findings of Fact 47. Subordinate to Findings of Fact 46 and 48. Subordinate to Findings of Fact 48. 50.-52. Rejected as unnecessary and as constituting legal interpretations rather than findings of fact. Adopted in substance in Findings of Fact 48. Adopted in substance in Findings of Fact 48. Rejected as irrelevant. Subordinate to Findings of Fact 48. Rejected as constituting argument and legal interpretations rather than a finding of fact. This subject area is addressed in Findings of Fact 48. Rejected as vague and ambiguous. The subject area is addressed in Findings of Fact 45, 46 and 47. Subordinate to Findings of Fact 46. Subordinate to Findings of Fact 34 and 46. Rejected as vague and ambiguous and irrelevant. "UNREBUTTED FACTS AND EVIDENCE Paragraph Number in Paragraph Number in the Findings of Fact Petitioner's Section in the Recommended Order Where Accepted "IV Unrebutted Facts or Reason for Rejection and Evidence Adopted in substance in Findings of Fact 4, 5 and 6. Subordinate to Findings of Fact 20. Rejected as vague, overly broad and irrelevant. Adopted in substance in Findings of Fact Subordinate to Findings of Fact 26. Subordinate to Findings of Fact 26. Adopted in substance in Findings of Fact 31, 36 and 37. Subordinate to Findings of Fact 34 and 37. Subordinate to Findings of Fact 37. Subordinate to Findings of Fact 46. Subordinate to Findings of Fact 2. Subordinate to Findings of Fact 23. Adopted in substance in Findings of Fact Subordinate to Findings of Fact 38. Adopted in substance in Findings of Fact 4. Adopted in substance in Findings of Fact 3. Rejected as irrelevant and not necessary. Subordinate to Findings of Fact 5 and 6. 19.-23. The gross sales figures are adopted in substance in Finding of Fact 38. The labor costs are rejected as being irrelevant. Adopted in substance in Findings of Fact 39. Rejected as irrelevant and not established by competent substantial evidence. Subordinate to Findings of Fact 31-41. Adopted in substance in Findings of Fact 33-34. Adopted in substance in Findings of Fact 33-34 and 35 Subordinate to Findings of Fact 46. Subordinate to Findings of Fact 39. Addressed in part in Findings of Fact 41. Adopted in substance in Findings of Fact 33. Subordinate to Findings of Fact 44. Subordinate to Findings of Fact 44. Subordinate to Findings of Fact 33, 34 and 35. Subordinate to Findings of Fact 46. 37-39. Subordinate to Findings of Fact 43. Subordinate to Findings of Fact 20 and 22. Subordinate to Findings of Fact 20 and 22. "DISPUTED FACTS" Paragraph Number in Paragraph Number in the Findings of Fact Petitioner's Section in the Recommended Order Where Accepted "V Disputed Facts" or Reason for Rejection and Evidence Rejected as irrelevant. Subordinate to Findings of Fact 26, 27 and 30. Subordinate to Findings of Fact 46. Subordinate to Findings of Fact 14, 15, 16 and 22. Subordinate to Findings of Fact 14. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 2. Rejected as irrelevant. Rejected as irrelevant. Adopted in substance in Findings of Fact 23. Rejected as irrelevant. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 3 and 38. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 31. Subordinate to Findings of Fact 26 and 27. Adopted in substance in Findings of Fact 25. Subordinate to Findings of Fact 24 and 25. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 4. Subordinate to Findings of Fact 7. Adopted in substance in Findings of Fact 7. Rejected as vague and irrelevant. This subject matter is covered in Findings of Fact 7. Adopted in substance in Findings of Fact 4. Subordinate to Findings of Fact 4, 5 and 6. Subordinate to Findings of Fact 4, 5 and 6. Subordinate to Findings of Fact 9 and 10. Subordinate to Findings of Fact 10 and 12. Subordinate to Findings of Fact 13 and 18. Adopted in substance in Findings of Fact 15. Rejected as vague. This subject matter is addressed in Findings of Fact 14. Rejected as vague. This subject matter is addressed in Findings of Fact 36 and 37. Subordinate to Findings of Fact 16. Adopted in substance in Findings of Fact 16. Subordinate to Findings of Fact 13 and 18. Subordinate to Findings of Fact 25 and 26. Subordinate to Findings of Fact 27, 28 and 30. Subordinate to Findings of Fact 26 and 27. Subordinate to Findings of Fact 29. Adopted in substance in Findings of Fact 26. Adopted in substance in Findings of Fact 20. Subordinate to Findings of Fact 38. Subordinate to Findings of Fact 38 and 46. Adopted in substance in Findings of Fact 21. 41.-44. Rejected as irrelevant and not established by competent substantial evidence. Rejected as vague and irrelevant. Rejected as vague and irrelevant. Rejected as vague and irrelevant. Subordinate to Findings of Fact 19. Rejected as irrelevant. Subordinate to Findings of Fact 46. Rejected as vague and irrelevant. Rejected as vague. Rejected as constituting argument rather than a finding of fact. Rejected as constituting argument rather than a finding of fact. No proposal submitted. Rejected as constituting argument rather than a finding of fact. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Charles R. Forman Atkins, Krehl & Forman 320 Northwest Third Avenue Post Office Box 159 Ocala, Florida 32678 H. Collins Forman, Jr. Watson, Clark & Purdy Post Office Box 11959 Fort Lauderdale, Florida 33339 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Robert Scalan, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether the Department of Transportation's intended action to reject all quotes and re-advertise Lease No. 550:0318 was illegal, arbitrary, fraudulent, or dishonest.
Findings Of Fact In October of 1999, the Department advertised for office space for use as the Toll Data Center - Audit Section, Office of Toll Operations (Toll Office) located in Broward County. The lease was clearly advertised as a negotiated lease. It was not advertised as a competitive bid lease. Under the negotiated lease process before letting any lease, the Department must submit to the Department of Management Services (DMS) a Request for Space Need (RSN) and Letter of Agency Staffing (LAS). From DMS the Department receives the authority to directly negotiate a lease for space under 5,000 square feet with prospective lessors. 1/ Consistent with procedure, the Department received approval of the RSN on October 18, 1999. Pursuant to statute, DMS has strongly suggested that prior to selection of the apparent successful lessor, the Department should obtain a minimum of three documented quotes for a lease that has not been competitively bid. The Department has consistently followed that suggestion in negotiated leases. Under special circumstances, where it is clear it is improbable that three quotes cannot be obtained, the Department may waive its requirement that three documented quotes be received. However, the agency must certify to DMS that attempts to receive the required number of documented quotes were unsuccessful and/or special circumstances exist to negotiate the lease with less than three quotes. In this case, no special circumstances exist. In an effort to obtain more than the minimum three documented quotes, the Department opted to advertise for lease space on the Internet. The Internet is utilized by the DMS, among other state agencies, to disseminate information provided in the RSN to the private sector. Additionally, the Internet site may also be used by the private sector to provide notice of space they have available for review by the agency seeking space. A total of three submittal packages were distributed for Lease No. 550:0318. Despite the Department's advertisement over the Internet, only two requests for quote submittal packages were received. Of the three quote submittal packages distributed, the Department received only one documented quote in response to the advertisement for the Toll Office. Atlantic Investment submitted a Quote Submittal Form to the Department in late October for office space in North Fort Lauderdale. Atlantic Investment became aware of the Department's advertisement for lease space from Sheldon M. Schermer, employed by Atlantic Investment as its real estate agent. Mr. Schermer learned of the Department's need for lease space from an advertisement placed on the Internet. On November 8, 1999, the Department informed Atlantic Investment via Sheldon M. Schermer, Real Estate Agent for Atlantic Investment, of the Department's intent to reject all quotes and re-advertise for Lease No. 550:0318. This decision was not arbitrary, capricious, fraudulent, or dishonest and well within the Department's discretion and procedures for negotiated leases. The basis for the decision was the Department's modification of the lease specifications pursuant to a recommendation by DMS to modify the lease space terms to hopefully generate more interest and more quotes. In a competitive negotiation, DMS was aware of agencies who modified leases and advertised as many as five times before three documented quotes were received. Moreover, the evidence showed that the Broward County commercial real estate market could easily generate three quotes for the space required by the Toll Office.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered dismissing the Petitioner's protest. DONE AND ENTERED this 14th day of April, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 14th day of April, 2000.
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.
Findings Of Fact Respondent is a registered real estate salesman who holds license no. 005499. He was employed as a "listing solicitor" three days per week by World Wide Property Services, Inc., a registered real estate broker (now dissolved) from December 1, 1975 to June 1, 1976, soliciting listings for real estate in Florida. The solicitation was by telephone nationwide except Florida. Seymour L. Rottman was President of World Wide Property Services, Inc. and Lee Small was Vice President of the corporation during the time Respondent was employed. The purpose of World Wide Property Services, Inc. was to secure listings of and purchasers for various Florida properties. Mr. Rottman was a subpoenaed witness for Petitioner at subject hearing. During Respondent's period of employment he and Mr. Small were in charge of hiring salesmen for the company and hired Respondent. Respondent was employed to obtain listings by telephone from property owners who lived out of state but owned Florida property. The procedure followed was for a salesman to call an out of state land owner picked from a list of prospects and inquire if he or she would be interested in selling their property at a higher price than it had been purchased for. This was termed a "front" call and the salesman was termed as a "fronter". If the prospect expressed interest in listing the property, his or her name was provided to World Wide Property Services, Inc. who then mailed literature to the property owner describing the efforts that would be made by that organization to sell the property. Enclosed with this material was a listing and brokerage agreement. This agreement provided that the owner of the property would pay a prescribed listing fee to World Wide Property Services, Inc. which would be credited against a 10 percent commission due that firm upon sale of the property. In return, the corporation agreed to include the property in its "listing directory" for a one year period, direct its efforts to bring about a sale of the property, advertise the property as deemed advisable in magazines or other medium of merit, and to make an "earnest effort" to sell the property. The accompanying literature explained that the listing fee was necessary in order to defray administrative costs of estimating the value of the property, merchandising, advertising, brochuring and cateloging the information. The material also stated, that advertising would be placed in various foreign countries and cities of the United States. In addition, it stated that the property would be "analyzed", comparing it to adjacent property to arrive at a price based on recent sales of neighboring property and also review the status of development and zoning in the immediate area of the property to assist in recommending a correct selling price for approval by the owner. During the course of the calls to prospects Respondent advised them that the property would be advertised internationally and in the United States and that bona fide efforts would be made to sell the property. He represented himself as a salesman for that organization. After the promotional literature was sent to the prospect, the salesmen including Respondent, made what was called a "drive" call to answer any questions and to urge that the property be listed. After making these calls Respondent had no further contact with the property owner. The listing fee was $325. The salesmen received approximately one-third of the fee, about $100 per listing. The salesmen, including Respondent, telephoned the prospects and then read from the script entitled "front" and "drive". The instructions from the broker was to stay within the script but Respondent was not monitored at all times. During the course of operation of less than a year World Wide Property Services, Inc. secured about 200 listings and grossed approximately $80,000 to $90,000 in the "advance fee" listings, but no sales were made. Respondent made no sales but did secure a limited number of listings making a total of $2,400 during the six months employment at the rate of approximately $100 per listing. Respondent said he never visited the properties World Wide Property Services, Inc. had for sale in Florida except properties in Port St. Lucie and in the Grand Bahamas. He felt that property in those two areas was salable. Respondent testified that he read from the script heretofore referred to as "front" and "drive" and did not vary from it. He worked in a "listing office" which was one of the two offices of the employer. He was unaware of articles stating foreign investors were interested in buying Florida property. Respondent did not attempt to make sales inasmuch as it was not the job for which he was employed. He had no knowledge or information that the advance fee operation of which he was a part was an illegal operation or an unethical operation. Respondent had no supervisory capacity in the corporation for which he worked and he testified that he never guaranteed the sale of property to anyone, a fact which was borne out by a deposition of a client Respondent solicited. Petitioner contends: that while a salesman for World Wide Property Services, Inc. Respondent solicited and obtained listings by telephone of property owners and that as an inducement to list the property, falsely represented that the property could be sold for a price far in excess of its purchase price; that a bona fide effort would be made to sell the property and that it would be listed nationally and internationally and that the company had foreign investors wanting to purchase United States property. Respondent contends: that he did not know the "advance fee" operation was fraudulent; that World Wide Property Services, Inc. was a registered broker; that at the time of his employment the actions of his employer had not been held illegal; that he never misrepresented or fraudulently induced any potential customer to get his money.
Recommendation Reprimand the Respondent in writing. DONE AND ENTERED this 15th day of June, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Tom Bush, Esquire Murray & Bush, P.A. Suite 1602-One Financial Plaza Ft. Lauderdale, Florida 33394 Salvatore A. Carpino, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, Petitioner, PROGRESS DOCKET NO. 3110 vs. DADE COUNTY DOAH CASE NO. 77-1582 LEONARD P. MARCUS, Respondent. /
The Issue Whether the decision to award the bid for Parcel No. 93S101, State Road 84 Spur, was in accordance with the governing rules and statutes or was arbitrary, capricious, or contrary to competition.
Findings Of Fact In October of 1993 the Respondent declared that a spur property located at State Road 84 (the subject matter of these proceedings) was a surplus parcel. Such property is comprised of two identifiable tracts identified in this record as parcel 101-A and parcel 101-B. The Respondent utilizes a manual entitled "Disposal of Surplus Real Property" as its guide for the procedures used to comply with statutory and rule provisions regarding the disposal of surplus parcels. Since 1993 the Department has made several attempts to market the spur property. Such attempts included offering parcel 101-A to the Petitioner for no consideration. As recently as October of 2000 the Department offered the spur property to the Petitioner at no cost. The offer did include some conditions but same did not materially affect whether or not Davie would or could accept the transfer. For whatever reasons, the Petitioner did not accept the offer. Subsequently, the Respondent withdrew the offer in writing. Additionally, the Respondent notified the Petitioner that it intended to make the spur property (both parcels) available to the public through the competitive bid process. It was contemplated that the bid process would allow any person from the public to competitively place bids for the subject property. Nevertheless, the Petitioner was advised that it would be given an opportunity to acquire the property. A letter of February 7, 2001, from the Department to the Petitioner advised the town of its right to acquire the property but did not in any manner prohibit or prevent the Town of Davie from bidding on the spur property. In fact, the Petitioner did not bid on the subject property. Further, the Petitioner did not and does not intend to purchase the subject property. The only way the Intervenor seeks to acquire the property is without cost. The Petitioner had actual knowledge of the Department's intention of making the property available through competitive bid. The Town of Davie did nothing to oppose the bid process. On May 30, 2001, the spur properties were advertised for competitive bidding with sealed bids to be opened by the Department on June 14, 2001. On June 21, 2001, the Town of Davie by and through its town administrator contacted the Department in order to exercise the town's right of refusal on the property. Accordingly, on June 25, 2001, the Respondent posted a notice stating it would reject all bids. On July 12, 2001, the Respondent notified the Petitioner that it had ten days to exercise its right to purchase the property. In connection with the proposed sale the Department offered the property to the Town of Davie at the approved appraised value of $1.9 million. The Petitioner made no counter-offer. Instead, on July 27, 2001, the Town of Davie responded to the offer stating it would accept the parcel for a public purpose for no consideration. Thereafter, the Respondent posted a "Revised Bid Tabulation" indicating it would award the spur property to the highest responsive bidder, the Intervenor. The Petitioner has not proposed to pay for the spur property. The Petitioner did not have an appraisal of the spur property prepared. The Petitioner did not bid on the spur property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order confirming the award of the spur property to the Intervenor. DONE AND ENTERED this 7th day of February, 2002, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 7th day of February, 2002. COPIES FURNISHED: Michael T. Burke, Esquire Johnson, Anselmo, Murdoch, Burke & George, P.A. 790 East Broward Boulevard, Suite 400 Post Office Box 030220 Fort Lauderdale, Florida 33303-0220 Joseph W. Lawrence, II, Esquire Vezina, Lawrence & Piscitelli, P.A. 350 East Las Olas Boulevard Suite 1130 Fort Lauderdale, Florida 33301 Brian F. McGrail, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street 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 Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue in this case is whether the Florida Real Estate Commission should discipline Respondent, Michael J. James (James), for the reasons set forth in the Administrative Complaint filed against him by Petitioner, Department of Professional Regulation, Division of Real Estate (Department). Count I of the Administrative Complaint alleges that James is guilty of fraud, misrepresentation, concealment, false promises, false pretense, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes (1983), in connection with his handling of an escrowed real estate purchase deposit. Count II of the Administrative Complaint alleges that James failed to account and deliver the $5,000 deposit to the rightful owners in violation of Section 475.25(1)(d), Florida Statutes (1983). Finally, Count III of the Administrative Complaint alleges that James, while licensed as a salesman, operated as a broker or as a salesman for someone not registered as his employing broker in violation of Sections 475.42(1)(b) and 475.25(1)(a), Florida Statutes (1983).
Findings Of Fact Respondent, Michael J. James (James), has been at all relevant times a licensed real estate salesman having been issued license number 0361739. On or about November 6, 1983, James solicited and obtained two $2,500 earnest money deposits from Skarian M. Kakkanatt and K. Thomas Idiculla, as purchasers, who entered into two different sales contract offers to purchase two separate motel properties, one in Kissimmee and the other in Osceola County. The total deposits of $5,000 were placed in the escrow account of International Marketing and Manufacturing Services, Inc. (International), by its registered broker, Harold C. Jacobsen, who was also James' registered employing broker. On or about November 14, 1983, being dissatisfied with the inspection of the financial records of the two motel operations, the purchasers, sent a telegram to International and all interested parties providing notice that the two sales contract offers were cancelled under the terms of the contracts and that all monies deposited by the purchasers should be refunded. On December 8, 1983, the purchasers reiterated their demand for a refund of all deposits by letter to James. Between November 1983 and April 1984, Jacobsen became increasingly seriously ill. To a greater and greater extent, James assumed Jacobsen's responsibilities to International under the increasingly general supervision of Jacobsen. Jacobsen and James agreed that International was entitled to the deposit under the contracts as brokerage commission, rationalizing that the purchasers were not entitled to cancel the contracts because their two checks in the amount of $22,500 each for additional deposits were returned unpaid because of insufficient funds. Jacobsen and James therefore agreed to disburse the $5,000 from escrow and did so over the course of time through January 1984. The contracts negotiated by James on behalf of International for the purchase of the two motel properties clearly entitled the purchasers to inspect the financial records of the two motel operations and to cancel the contracts on or before November 15, 1983. Payment of the deposits was not a condition precedent to their entitlement to cancel. Having exercised their option to cancel, the purchasers were no longer obligated to make any deposits. The contracts having been cancelled, no brokerage commission was due to International. While Jacobsen was James' employing broker, both c James and Jacobsen worked for International. International, in turn, was wholly owned by American Paper Company, which was wholly owned by James. Under Jacobsen's employment contract with International, Jacobsen was entitled to only 2% of any broker's commission earned by James. The balance of such broker's commissions would go to International or, in effect, to James. James, therefore, had a greater pecuniary interest in the $5,000 deposit than Jacobsen. Between November 1983 and April 1984, James hoped the purchasers would not vigorously assert their rights to the $5,000 deposit. The purchasers resided in New York, and assertion of their rights was not easy. James obtained from the selling broker a waiver of any interest of the seller or the selling broker to the deposit. By April 1984, it became evident to James that the purchasers were indeed going to assert their rights to the deposit. Concerned that the escrowed deposit already had been disbursed, James decided to redeposit $5,000 in escrow, using a $5,000 broker's commission he had earned on behalf of International on another sale. By this time, Jacobsen was only coming into the office approximately once a week to sign checks and look over sales contracts and bank records. By this time, James was handling the matter of the deposit on his own, with Jacobsen's consent and trust. On May 8, 1984, James notified the Department of Professional Regulation that a dispute had arisen with the purchasers concerning the $5,000 deposit but that James would be filing an interpleader action on behalf of International according to the instructions of Jacobsen. On or about May 14, 1984, James filed against the purchasers a complaint for interpleader in the Osceola County Circuit Court on behalf of International seeking half of the $5,000 deposit. James signed the complaint and used a signature stamp to ascribe Jacobsen's signature as broker for International. Jacobsen had authorized James to use the signature stamp in his absence because of his illness. James had the $5,000 deposit transferred into the depository of the Circuit Court in and for Osceola County, Florida, when the complaint was filed. On June 11, 1984, Jacobsen died. On June 23, 1984, James filed a voluntary dismissal of the interpleader action, in part because of Jacobsen's death. The clerk of the court returned the $5,000 deposit to International on June 22, 1984. On June 25, 1984, James reopened International's escrow account at the Community National Bank in Kissimmee by depositing the 55,000 in that account. On or about July 11, 1984, James requested an escrow disbursement order from the Department of Professional Regulation regarding the disposition of the $5,000. Between June 25 and July 27, 1984, the Community National Bank deducted amounts from the escrow account to reimburse the bank for overdrafts on James' personal checking account. James complained about this, and some of the amounts were reinstated in the escrow account. However, the bank requested that James remove all accounts. On July 27, 1984, James withdrew the balance of the account and redeposited the $4,809.48 balance in International's real estate escrow account with the Barnett Bank of Kissimmee on or about August 31, 1984. However, James soon began writing checks on the account, and by September 10, 1984, the balance was down to $2,775. On September 10, 1984, James reiterated his request to the Department for an escrow disbursement order and indicated that he was scheduled to meet with one of the purchasers to resolve the deposit dispute. On September 12, 1984, the Florida Real Estate Commission advised James that it would not be issuing an escrow disbursement order. On September 24, 1984, the Department's investigator, Charles E. Kimmig, Sr., wrote James to inquire whether a settlement had been reached with the purchasers. Respondent did not reply to Kimmig's letter. By October 3, 1984, James had spent all but $298.11 of the escrow account. James never has returned to the purchasers any of the $5,000 deposit to which they are entitled.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Real Estate Commission hold Respondent, Michael J. James, guilty of Counts I and II of the Administrative Complaint in this case and revoke his real estate salesman's license, to be automatically reinstated after a one year suspension if James makes restitution to Skarian M. Kakkanatt and K. Thomas Idiculla within one year in the amount of $5,000 plus simple interest at the rate of 12% per year from November 14, 1983. RECOMMENDED this 18th day of April, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1986. COPIES FURNISHED: Arthur R. Shell, Esq. Department of Professional Regulation 400 W. Robinson Street Orlando, Florida 32801 Michael J. James P. O. Box 3801 Longwood, Florida 32750 Harold Huff, Executive Director Division of Real Estate Department of Professional Regulation 400 W. Robinson Street Orlando, Florida 32801 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact For a period of 24 years, Petitioner, Richard M. Sellars, owned and operated a business under the name of Durable Concrete Products at 1331 - 26th Avenue East, Bradenton, Florida. The business site was leased by Petitioner from Seaboard Coast Line Railroad Company and was used by Petitioner for a concrete products manufacturing plant, principally manufacturing concrete storm sewers and concrete slabs. The manufacturing facilities at Durable Concrete were located on a triangular-shaped tract of land fronting on 26th Avenue East. The premises were fenced for security. Access to the plant was through a gate and driveway on 26th Avenue East. The flowage of products, materials, and equipment was past the office building and around to the side of the property. The office was utilized for usual administrative and clerical activities and as a checkpoint for trucks entering and leaving the premises. Raw materials were placed on the rear of the property. A materials silo was used for sand and gravel storage and transfer to the concrete mixer, weighing approximately eight tons, which was housed in an open steel unit or shell. Neither the mixer nor the steel shell was attached to the land. Some of the equipment stood on concrete slabs specifically constructed by Petitioner. The manufacturing process for the concrete pipe involved the mixing of raw materials into the rear of the concrete mixer, the pouring of the mix into molds that were in turn moved by a monorail approximately 60-80 feet long into the open air where the pipes were taken from the molds and transported to various drying and storage areas located throughout the premises. The concrete pipe was moved over an extended system of constructed shell roadways by large forklifts. The manufacture of concrete slabs was performed at several different locations to the west of the concrete mixer and office building. Concrete was moved from the mixer to various forms by forklifts. The concrete was poured into forms and allowed to dry. These forms were then removed, creating concrete slabs that were then stockpiled in several separate locations. Throughout the site, various pipes and slabs were stored for individual projects or as inventory for future sales. It was commercially necessary that Petitioner have immediately available several different types of pipe that are not standard sizes and therefore being continuously produced. In approximately 1970, Petitioner learned that Respondent was locating the route of a proposed limited access highway through the immediate area in which his leasehold was located. Although the exact location of the route remained undetermined, Petitioner regularly conferred with county officials to discover the location of the proposed construction. Petitioner determined that he could not continue in business at his site when the highway was constructed and began to seek an alternative location for his business. In late 1972 or 1973, Petitioner located the closest suitable site with zoning appropriate for a concrete manufacturing plant and purchased two adjacent five-acre sites. Petitioner purchased the property to protect himself from the anticipated expropriation of his leasehold when the highway was ultimately constructed. Prior to Respondent's acquisition of the right-of-way, Petitioner's business had prospered. It was located at an advantageous location and was well suited for Petitioner's business activities. The property was properly zoned, commercially accessible, and economical in that the rental to the Railroad was less than the taxes assessed upon Petitioner's replacement site. He had no desire to move his business location. Respondent formally located and designated the highway route and project location on November 12, 1976. On May 1, 1978, Petitioner and the Railroad entered into their next lease agreement. On May 22, 1978, the Respondent commenced formal negotiation with the Railroad for the acquisition of Railroad property, including the Petitioner's leasehold. Petitioner was officially notified of these negotiations on October 16, 1979, upon receipt of the Respondent's form notice. On November 19, 1979, the Secretary of the Florida Department of Transportation, by Resolution, directed the commencement of condemnation of certain lands, part of which included the Petitioner's leasehold. On December 4, 1979, the Railroad gave the Petitioner 30 days' notice that his lease was cancelled because the property was being acquired by the Respondent. On November 12, 1980, Petitioner was directed by Respondent to vacate the right-of-way acquired by Respondent by December 13, 1980. Petitioner's actual move from the site was completed by March 2, 1981. The right-of-way acquired by Respondent included Petitioner's property fronting on 26th Avenue East, his fence, driveway, office building, and yard improvements. A part of the monorail and slab area were also taken. The acquisition amounted to approximately 40 percent of the leasehold. Additionally, the acquired area had been used for storage of inventory products, and the taking required moving a large number and variety of these items. Respondent's own appraiser Klusza determined that the taking rendered the balance of the property entirely useless and adversely affected the interior flow of products and movement of equipment. Additionally, the remainder of the leasehold not acquired by Respondent was, after Respondent's taking, landlocked, i.e., there was no available route for ingress to or egress from the remainder of Petitioner's leasehold after acquisition by Respondent of the right-of-way for the limited access highway. Petitioner requested relocation assistance from Respondent's representatives. He secured two bids or estimates for relocating his plant from certified movers approved by the Respondent. The Meade House Moving, Inc., estimate was prepared May 21, 1980, and totaled $69,500-72,500. This estimate included moving the office building at a cost of $4,500. The R. E. Johnson & Son, Inc., estimate was prepared June 2, 1980, and totaled $70,285. This estimate included moving the office building at a cost of $5,450. These estimates were submitted to the Respondent's representative but were rejected as they included property located outside the acquired right-of-way. Respondent's representative made a physical inventory of the concrete pipe located in the acquired right-of-way. Petitioner was then allowed to solicit estimates from three qualified movers for moving the items on the inventory only. These estimates were prepared by Jan Guidry Trucking in the amount of $9,772.88, Gould Trucking, Inc., in the amount of $10,000, and Burns Equipment Company for $9,780. On March 27, 1981, Respondent's representative delivered to Petitioner a completed application and claim for reimbursement of moving costs. This application accepted the lowest of the three estimates as the basis for payment to Petitioner for his self-move of the designated items, in accordance with Respondent's standard policy of permitting the direct payment to a displaced occupant for a self-move equal to the amount of low bid of at least two certified movers. Petitioner did not sign or submit that application for benefits. Between February, 1980, and March, 1981, the Petitioner moved his manufacturing plant to his new location. This move was made as a result of Respondent's construction project and the expropriation proceeding brought by the State of Florida. Petitioner was unable to feasibly continue to operate at his prior site due to the acquisition of the right-of-way. Even had Petitioner been able to "re-arrange" the manufacturing shed, monorail, and other equipment, the amount of land remaining after Respondent acquired the right-of-way was not sufficient for Petitioner's needs for flowage of products or storage of inventory. The taking of 40 percent of his leasehold destroyed the utility of his improvements, severely limited the area in which he would have to operate, and rendered his continued operation impossible without regard to the desires of his landlord. In other words, it was not his landlord's cancellation of the lease which caused Petitioner to move but rather the acquisition of part of his leasehold for the highway project. The disassembly and reassembling of Petitioner's equipment, and the disconnection and reconnection of the electrical and plumbing facilities to the plant equipment were not improvements to his operation. These changes constituted the duplication of the plant and its necessary connections equivalent to his former location. The actual cost to Petitioner for the relocation of his business was $75,997.50. This total included moving the office building at a cost of $6,400. The office building constituted real property, even though Petitioner's lease with the Railroad required him to move the building at the time of vacating the premises. Reimbursement or payment for moving the office building is not authorized, but Petitioner is entitled to benefits for the remainder of the equipment and property set forth on the respective bids or estimates. Petitioner is a displaced person as defined by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 and applicable federal and state regulations thereunder. The project for which Petitioner's leasehold was acquired in part was a federally financed project for which relocation assistance for displaced persons is mandated under the Act. At the time the property was acquired, Petitioner was an initial occupant as defined under the appropriate guidelines established by the Respondent's right-of-way manual. Where a displaced person elects to make a self-move, as opposed to utilizing a commercial mover, that person, under the various applicable statutes and regulations, is entitled to receive as direct payment the lowest of the actual cost of the move or the lower of any two bids secured from qualified movers for moving the property, as well as removal and reinstallation expenses at the new business site. The lower of the two qualified bids submitted, after excluding the cost for moving the real property and after taking the low of $15,000 on the Meade bid that provided a $15,000-18,000 range for moving hundreds of concrete pipes, is the Johnson & Son bid in the amount of $64,835. Each of these bids itemized the property that was to be moved from the former leasehold to the new business location and included the cost for the removal and reinstallation of the equipment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Petitioner entitled to relocation benefits for moving his business from the entire leasehold, finding the cost of moving the office building to be ineligible for reimbursement, and determining Petitioner entitled to the amount of $64,835 as direct payment for his self- move. RECOMMENDED this 13th day of November, 1981, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1981. COPIES FURNISHED: Donald B. Hadsock, Esquire 1806 Manatee Avenue, West Bradenton, Florida 33505 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, Room 562 Tallahassee, Florida 32301 Mr. Jacob D. Varn Secretary Department of Transportation Haydon Burns Building, MS 57 Tallahassee, Florida 32301
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
