Findings Of Fact In March, 1982, the Petitioner, Eleanor R. Booth, and her husband, Fred E. Booth, owned and lived upon a tract of land located at 4721 State Road 84, Fort Lauderdale, Florida. The tract was taken by the Department of Transportation for road right- of-way, and the issue in this case is whether the Department of Transportation, pursuant to its policies, has properly calculated the amount to be paid to the Petitioner. Mr. Booth is now deceased. Mr. and Mrs. Booth lived on the property for thirty-four years. T. 48. The total tract was 19,593 square feet, which is somewhat less than one-half acre. T. 18, 21; P. Ex. 1. On or about October 15, 1982, which was the date of the appraisal of the property, there were seven trailers or mobile homes on the property. Two trailers were designated by the appraiser as storage and workshop, respectively. One trailer was designated by the appraiser as the mobile home of Mr. and Mrs. Booth. The others were not designated. The appraisal parcel sketch also showed a shed, a restroom, and a laundry. The shower and toilet (restroom) building was made of concrete and contained 58 square feet. A one story frame building of about 215 square feet was used as a laundry. The shed was a metal and frame shed measuring 8.5 by 8.0 feet. The appraiser considered the shower/toilet building and the laundry building to be real property improvements. The trailers were considered to be personal property. P. Ex. 1. The Department of Transportation selected as the comparable replacement dwelling a 1972 mobile home containing about 500 habitable square feet, 750 total square feet, and consisting of a total of 5 rooms, with 2 bedrooms and 1 bathroom. R. Ex. 2; T. 18, 23. The selling price was $29,500. R. Ex. 2. The primary issue in this case is whether the replacement dwelling described above is comparable. This in turn depends upon an analysis of the manner in which Mr. and Mrs. Booth used the various trailers and buildings located on their property. The mobile home which contained the kitchen, bedroom, and bathroom primarily used by Mr. and Mrs. Booth had about 322 habitable square feet and 390 total square feet. R. Ex. 2. It consisted of 4 rooms in total, 1 bedroom, 1 living room, 1 kitchen, and 1 bathroom. T. 71. The only evidence submitted by the Department of Transportation concerning the nature of the "dwelling" of Mr. and Mrs. Booth or the manner in which the additional trailers and other out buildings were used is the household survey, P. Ex. 1, which was signed on March 30, 1982, by Mr. Booth and B.A. Davis for the Department. This form was intended to identify the social and economic status of the family and to identify the number of rooms, number of baths, number of people, and similar data concerning the household, but the evidence shows that in part it was filled out incorrectly. P. Ex. 1 characterizes the "subject dwelling" as a mobile home consisting of 3 rooms, with 1 bedroom and 1 bathroom. Mr. Davis did not testify, and Mr. Booth is deceased. Tracy Graff, who was called by the Department as its only witness, made it clear that he did not personally know the status of uses of the out buildings and trailers, but simply concurred with what he thought was the conclusion drawn by Mr. Davis on P. Ex. 1 as to what was the "dwelling" of Mr. and Mrs. Booth. See T. 35, 39, 41, 42. Mr. Graff did not testify that the tract of land was or had been used as a commercial trailer park with trailers for rent to the public, and neither did any other witness. Mr. and Mrs. Booth routinely used the laundry building, the toilet and shower building, and the shed located on the property for their personal, domestic use. T. 50, 67, 68. Mr. Booth was rarely in the mobile home when visited by his daughter, but was elsewhere on the property working. T. 59. Mr. Booth primarily kept tools, lawn equipment, paint, and other maintenance materials in the shed. T. 62, 68, 75. Two other trailers were used by Mr. and Mrs. Booth for storage of personal belongings. T. 62, 68. This was necessary because there was not room enough in the one mobile home for storage of personal property. T. 64. 68. Mr. Booth "had a flea market." T. 62. Some of the "flea market" materials were stored in the trailers. T. 63, 64, 76. Some of the "flea market" materials may have been stored in the shed but most of the "flea market" materials were stored under canvas covers adjacent to the shed. T. 73-74. There is no evidence in the record to explain the nature of the "flea market" activities of Mr. and Mrs. Booth. It is uncertain where the flea market was. In 1982, Mr. and Mrs. Booth were living on the property. The niece of the daughter of Mr. and Mrs. Booth and her husband and two children, and the sister of the daughter of Mr. and Mrs. Booth were also residing on the property in 1982. T. 54. Additionally, a nephew of the daughter of Mr. and Mrs. Booth had a camper trailer parked on the property, and may have lived in it from time to time. T. 56, 61, 63. Finally, in 1982 Mr. and Mrs. Booth rented a space to a John Schneider to park his trailer, but apparently Mr. Schneider did not live on the property. T. 55. Thus, all of the persons residing on the property in 1982 were relatives of Mr. and Mrs. Booth. Id. Prior to 1982, one of the other trailers in which relatives lived in 1982 was used by Mr. and Mrs. Booth as a bedroom for their daughter, and as a place to live for their son and his two children. T. 64, 65. These family members were not restricted from using the laundry or toilet and shower buildings, T. 55, 56, and at times used these facilities. T. 71. When Mr. and Mrs. Booth moved from the property, they needed a three bedroom, two bath house and a shed measuring 54 by 25 feet (1350 square feet) to house all of the personal property moved to the new house and which they had had in storage and used in the trailers and shed on the original property. T. 65. Mr. and Mrs. Booth and their daughter considered the trailers to be part of their dwelling because they had pictures, books, and other personal item stored in them, T. 64, 65. The Respondent has adopted as policy the Right of Way Operating Procedures found in P. Ex. 2 and set forth in conclusions of law 4, 5, 6, and 8.
Recommendation For these reasons, it is recommended that the Department of Transportation enter its final order recalculating the replacement housing purchase additive due Eleanor Booth by reference to a comparable replacement dwelling the same as the comparable replacement dwelling initially identified by the Respondent, but having the major exterior attribute of another bathroom. WILLIAM C. SHERRILL 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 9th day of December, 1987. APPENDIX TO RECOMMENDED ORDER The following are rulings upon findings of fact proposed by the parties which have been rejected in this Recommended Order. The numbers correspond to the numbers of the proposed findings of fact as used by the parties. Findings of fact proposed by the Petitioner: None. Findings of fact proposed by the Respondent: 1. The second and third sentences are rejected because there is no competent evidence in the record that the trailers were rented to other parties or that the tract of land was operated as a "mobile home park." See finding of fact 8. COPIES FURNISHED: James M. Earls Arrow Consultants 3910 N. 65th Avenue Hollywood, Florida 23024 Vernon L. Whittier, Jr., Esquire Florida Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Kaye H. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 =================================================================
The Issue Whether Respondents retaliated against Petitioner Rita Lynar, in violation of the Florida Fair Housing Act, chapter 760, part II, Florida Statutes (FHA); and, if so, the appropriate penalty.
Findings Of Fact Respondent Westminster Communities, Inc., owns and operates several retirement communities across Florida. The Westminster property in this matter is Respondent Asbury Arms North, Inc., which is located in Cocoa, Florida. Respondent Joseph Downs is the administrator for Westminster’s Cocoa site, and manages its facilities. Ms. Lynar is a resident of Asbury Arms North, Inc. Ms. Lynar previously filed a housing discrimination complaint on August 17, 2017, against Respondents that claimed that Respondents violated the FHA, and contending that Respondents retaliated against her. After FCHR notified Ms. Lynar that no reasonable cause existed to believe that Respondents committed a discriminatory housing practice on February 9, 2018, she filed a Petition for Relief with FCHR. FCHR transmitted the Petition for Relief to the Division on March 6, 2018. The Division’s case number for this matter is 18-1314. ALJ J. Bruce Culpepper conducted a two-day final evidentiary hearing in DOAH Case No. 18-1314 on September 11, 2018, and January 9, 2019. On July 10, 2019, ALJ Culpepper issued a Recommended Order, which concluded that Ms. Lynar failed to meet her burden of proving that Respondents committed a discriminatory housing practice in violation of the FHA, and recommended that FCHR dismiss Ms. Lynar’s Petition for Relief. On October 1, 2019, FCHR entered a Final Order that adopted ALJ Culpepper’s Findings of Fact and Conclusions of Law, and dismissed Ms. Lynar’s Petition for Relief. See Lynar v. Westminster Retirement Communities Foundation, Inc., et al., Case No. 18-1314 (Fla. DOAH July 10, 2019; FCHR Oct. 1, 2019)(Lynar II). As previously noted in the undersigned’s March 18, 2020, Order Denying Respondent’s Motion to Dismiss Based on Res Judicata and Collateral Estoppel and Motion for Sanctions and Attorney Fees, and Extending Time to Respond to Initial Order, the undersigned specifically precluded any attempt by Ms. Lynar to relitigate any matter resolved (or that could have been resolved) in Lynar II in the instant matter. Thus, in the instant matter, the undersigned only considered any alleged acts that occurred after the final hearing in Lynar II commenced, i.e., after September 11, 2018, as possible evidence of FHA retaliation.1 November 7, 2018, Incident and Lease Termination On November 8, 2018—after the commencement of the final hearing in Lynar II, and while that matter remained pending—Ms. Lynar was involved in an incident at Asbury Arms North. Pastor Adkins, who was conducting a regular morning Bible study meeting on November 8, 2018, in the fellowship room, which is a common area in the Asbury Arms North building that has multiple entranceways, noticed Ms. Lynar walk through the fellowship room “at a very fast pace” on multiple occasions that morning. Upon her first pass through the fellowship room, he heard Ms. Lynar screaming in front of Mr. Downs’s office and pounding on his office door. Pastor Adkins did not see Ms. Lynar scream or pound, but heard it. Pastor Adkins next observed Ms. Lynar pass through the fellowship room again, and she went towards her apartment. Then, approximately a minute or two later, she rushed back through the fellowship room, went to the same area in front of Mr. Downs’s office, and began screaming and 1 Additionally, Ms. Lynar, in 2014, filed a charge of discrimination against Respondents, alleging an FHA violation. After receiving a No Cause Determination from FCHR, she filed a Petition with FCHR, alleging gender discrimination. FCHR transmitted that Petition to the Division, which assigned it DOAH Case No. 15-2796 (Lynar I). ALJ Culpepper also conducted a partial hearing in that matter but, on December 15, 2015, the parties filed a Stipulation for Dismissal. Consistent with the undersigned’s March 18, 2020, ruling, the undersigned did not consider any alleged acts that occurred prior to September 11, 2018, in the instant matter. pounding on the same office door. He also heard Ms. Lynar screaming at Ms. Brooks, who was located in close proximity to Mr. Downs’s office. He described Ms. Lynar’s behavior that morning as “unhinged.” Pastor Adkins testified that these incidents disrupted his Bible study meeting for approximately 10 minutes. Ms. Brooks, who is an administrative assistant at Asbury Arms North, works at a desk in that building’s front lobby. Her desk was around the corner from Mr. Downs’s office. She worked at the front desk on the morning of November 7, 2018, and recalled that she heard Ms. Lynar “pounding” on Mr. Downs’s office door; she described it as “[v]ery intentional and very loud.” Ms. Brooks walked around the corner to observe Ms. Lynar, and testified that Ms. Lynar began screaming at her. Ms. Brooks testified that she said nothing to Ms. Lynar, and that Ms. Lynar eventually left. Ms. Brooks then entered Mr. Downs’s office, where there were two other residents and a certified occupational specialist, and explained to Mr. Downs what had transpired outside of his office. Ms. Brooks was inside of Mr. Downs’s office when Ms. Lynar began screaming and pounding on his office door a second time. Ms. Brooks testified that Ms. Lynar’s conduct that morning frightened her. Mr. Downs, the administrator of Westminster’s property in Cocoa, including Asbury Arms North, testified that on the morning of November 7, 2018, he was on a telephone call, but heard a loud pounding on his door, and ended his call. He testified that Ms. Brooks came to his office to explain what had happened, and during this explanation, Ms. Lynar began pounding on the door and screaming again. After answering the door, he stated that Ms. Lynar stormed off. The undersigned observed a video recording of the first of the two “screaming and pounding” incidents that occurred the morning of November 7, 2018. Although the video recording did not also have an audio recording of this incident, it appeared to the undersigned that Ms. Lynar clearly approached an office door and, with her hand and fist, intentionally pounded on the office door. Additionally, Respondents introduced into evidence only one of the two “pounding and screaming” incidents, explaining that the video of the other/second incident was unavailable. On November 20, 2018, Asbury Arms North, Inc., hand-delivered to Ms. Lynar a “Notice of Termination of Tenancy,” which stated, in part: YOU ARE HEREBY NOTIFIED that your tenancy … is terminated, effective at the end of the day on December 20, 2018. You must vacate the premises at or before that time. THIS TERMINATION is based on your material noncompliance with the Lease Agreement, including one or more substantial violations of the Lease Agreement. The specific reason for this termination is as follows: On the morning of November 7, 2018 you committed a substantial violation of the lease by causing a loud commotion by acting aggressive and erratic, banging repeatedly on the office door, and yelling at staff and other residents, including Receptionist Josephine Brooks and Administrator Joe Downs. Your actions were threatening, intimidating, harassing, and violent. Your actions interfered with the quiet and peaceful enjoyment of the other residents living in the apartment property by causing a commotion and disrupting a bible study being conducted by Chaplain Don Adkins and approximately 15 residents. Your actions also disrupted the management of Westminster Asbury by staff. Your actions scared staff and other residents, and have caused continuing fear among staff and other residents. The Lease Agreement contains the following requirement regarding resident conduct: Conduct Residents … will not engage in, or participate in, such conduct which interferes with the quiet and peaceful enjoyment of the other residents living in the apartment property. No act of a resident and/or guest which threatens, intimidates, is deemed as harassing others, is physically violent with or without injury to another person and/or property, or has unacceptable social conduct, will be tolerated. Any such act will be considered a violation of the Community Policies and the Lease. No act of intimidation, harassment, verbal abuse, physical threat or violence, or social misconduct of, or to, and [sic] employee of this apartment property by any person will be tolerated. Any such act is considered a noncompliance of the Lease Agreement and will result in termination of the Lease. Your above-described actions on November 7, 2018 violate the foregoing conduct requirements, in that you engaged in conduct that interfered with the quiet and peaceful enjoyment of the other residents, you intimidated other residents, and you intimidated, harassed, and verbally abused employees of the property. Your actions, pursuant to the Lease, are a noncompliance and have resulted in termination of the Lease. BE ADVISED that if you remain in the leased unit after the date specified for termination, the Landlord may seek to enforce the termination only by bringing a judicial action at which time you may present any defenses. Thereafter, on December 22, 2018, Asbury Arms North, Inc., filed a Complaint for possession of real property, and damages, in county court in Brevard County, Florida. Ms. Lynar testified that she has been the subject of previous eviction actions with Asbury Arms North, Inc., and had never previously received a Notice of Termination. She stated that Asbury Arms North, Inc., delivered this while she was with friends in the fellowship room, and believed this was inappropriate and retaliation for participation in Lynar II. Ms. Lynar testified that she did knock on Mr. Downs’s door, to (again) complain about a group of residents she contends engage in bullying and harassment. She contends that instead of doing something about the bullying and harassment, Asbury Arms North, Inc., instituted the eviction action in Brevard County Court, again, in retaliation for her participation in Lynar II.2 Other Alleged Bases for FHA Retaliation Ms. Lynar testified that she believed Respondents’ decision to issue the Notice of Termination and commence eviction proceedings against her was also in retaliation for her assisting another Asbury Arms North, Inc., resident, Sudhir Kotecha, in bringing an FHA discrimination claim against Respondents. Respondents had also commenced an eviction action against Mr. Kotecha during this time period. Mr. Kotecha’s attorney, Nicholas Vidoni, testified at the final hearing concerning the deposition of Mr. Downs in that eviction proceeding, in which Ms. Lynar (who was not a party to that eviction matter, but was a party to the December 22, 2018, pending eviction matter involving Asbury Arms North, Inc.) attempted to attend. Mr. Downs’s attorney objected, and filed a Motion to Terminate or Limit Examination, requesting that Ms. Lynar not be present for the deposition because of the pending eviction matter and the pending Lynar II matter (in both of which, Mr. Vidoni represented Ms. Lynar), and other reasons. Mr. Vidoni testified that the county judge granted the Motion to Terminate or Limit Examination, in part, and barred Ms. Lynar from attending Mr. Downs’s deposition. Additionally, during this time period, Ms. Lynar testified that Respondents sought to have the county judge assigned to the eviction case 2 The issue of bullying and harassment at the hands of certain residents of Asbury Arms North, Inc., was fully considered and rejected as grounds for a violation of the FHA in Lynar II. removed, because Ms. Lynar allegedly had contact with the county judge at a restaurant. Mr. Vidoni confirmed that Respondents indeed filed such a motion, but did not testify as to its resolution, and Ms. Lynar presented no further evidence about it. Ms. Lynar testified that the actions of Respondents in paragraphs 20 and 21 above are further evidence of Respondents retaliating against her for participation in Lynar II. Ms. Lynar also contends that Mr. Downs reached out to the Department of Housing and Urban Development (HUD), which subsidizes her apartment at Asbury Arms North, Inc., to discuss the non-renewal of Ms. Lynar’s lease in 2014, as an additional form of retaliation. Mr. Downs testified that Respondents had initiated an eviction proceeding in 2014, and that he recalled discussing with a HUD official whether Asbury Arms North, Inc., should renew Ms. Lynar’s lease; Mr. Downs testified that the HUD official questioned why Ms. Lynar’s lease would be renewed if Asbury Arms North, Inc., was in the process of evicting her. This conversation occurred well before the actions that resulted in Lynar II occurred, and are irrelevant. Ms. Lynar failed to provide any credible evidence that Respondents’ decision to issue the Notice of Termination, and subsequently commence eviction proceedings in county court, was retaliation for her participation in Lynar II, in violation of the FHA. The undersigned further finds that the actions that occurred during the Kotecha eviction proceeding, and Mr. Downs’s conversation with a HUD official, are not credible evidence of FHA retaliation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Rita Lynar’s Petition for Relief. DONE AND ENTERED this 4th day of January, 2021, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Stephen G. Henderson, Esquire Henderson Legal Group 5419 Village Drive Viera, Florida 32955 (eServed) Rita Lynar 1200 Clearlake Road #2114 Cocoa, Florida 32922 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
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 Charles D. and Winnie R. Rice owned and occupied a three bedroom, one bath, frame dwelling located on U.S. 29 in Century, Florida, consisting of 1,283 total square feet. This dwelling had no carport or garage. The Department of Transportation needed a right-of-way where their dwelling was located for a highway construction project. Mr. Rice first became aware of the Department's need for his property in 1977. Acquisition of the right-of-way in Mr. Rice's area commenced around 1980. Replacement housing is part of the Relocation Assistance Program administered by the Department of Transportation for persons displaced by the acquisition of real property for the construction of highway projects. The purpose of the Replacement Housing Program is to provide people with comparable replacement housing when they are displaced because of any type of federally funded project. Comparable replacement housing is that which is substantially equal to the housing occupied prior to acquisition. When persons who are displaced buy an established home on the market, any extra features in the existing home that were not in the old one are not considered in determining eligibility payments. When the choice is to build a new structure instead of buying an existing house, the Replacement Housing Program permits the Department to participate only in the cost of a structure of comparable size and similar features to the house being replaced. Cmparable housing in the local market is examined in order to determine what is available for sale in the area. The first comparable housing for sale in the area in this case was priced in the amount of $42,000, and this was selected as the first comparable figure for compensation purposes. A household survey was made of the Rice dwelling on February 4, 1982, to determine the number of rooms, area of living space, age and type of construction, so as to establish the level of eligibility in the Department's Relocation Assistance Program. On July 20, 1982, the Rice dwelling was inspected in order to confirm the information in the February household survey. The inspector measured the rooms and talked with Mr. Rice about the Relocation Program, but there was no discussion about monetary amounts. A Statement of Eligibility was prepared based on the first comparable housing amount of $42,000 which had been selected. This first comparable amount was used in the preparation of the Statement of Eligibility, wherein the approved appraisal for acquisition of the Rice's original dwelling ($19,240) was subtracted from the first comparable amount of $42,000, leaving a balance of $22,760. This figure was shown on the Statement of Eligibility as the maximum amount payable. (Exhibit 4) The Department's first contract with Mr. and Mrs. Rice when money was discussed was on August 19, 1982. The amount of the approved appraisal for the Rice property was discussed, as were subjects such as moving costs, replacement housing, and the Statement of Eligibility showing a maximum amount of $22,760. In addition, Mr. and Mrs. Rice were given a copy of the Department's publication called Your Relocation, which Mr. Rice read. He became familiar with the statement on page 5 about comparable replacement housing. The Rices were instructed to contact the Department before they signed any contract for construction. Mr. and Mrs. Rice signed a contract with Barney E. Seymour on September 29, 1982, to construct for them a three bedroom, two bath, brick veneer residence on their property, consisting of 1,731 square feet for $43,600. Article 4 of the agreement indicated the Department of Transportation was to pay $22,760 upon completion of the construction. However, the Department was not a party to this contract, did not review it, approve it, or indicate concurrence. No representative from the Department was present when the contract was executed. Mr. and Mrs. Rice relied on the contractor to provide copies of the contract and the construction plans to the Department, and he delivered a copy of the contract and a set of the plans to the Department's office. However, the builder had no receipt or acknowledgment to show the date delivery was made. Sometime during the first part of October, 1982, a representative of the Department discussed with the builder on the telephone the matter of the amount of money the Department would pay to the Rices, but during this conversation, there was no discussion about the size of the dwelling or the type of the construction. During the first part of November, 1982, the Department was provided with a copy of the contract between the Rices and the builder, and the plans for the dwelling. A review of these plans disclosed to the Department that there were 448 square feet of additional floor space in the replacement dwelling, and an additional bathroom, that were not in the acquired dwelling. A revised Statement of Eligibility was computed on November 16, 1982, based on the square foot cost of the replacement dwelling. The amount of $400, shown as an estimate from a plumbing supplier in the plans, was subtracted from the contract price of $43,600, for the extra bathroom, leaving an amount of $43,200. This was divided by the 1,731 square footage of the new house, amounting to a cost per square foot of $24.96. This square foot cost was multiplied by the additional 443 square feet, to establish an additional cost of $11,182.08. This amount was subtracted from the contract price less the extra bathroom ($43,200) resulting in an amount of $32,017.92 allotted for the replacement dwelling. Additional allowable costs of $1,473.50 for a replacement lot and $312 for landscaping were added to $32,017.92, increasing this amount to $33,803.42. Deducting the amount of the approved appraisal of the old Rice residence ($19,240) from $33,803.42 resulted in an adjusted entitlement of $14,563.42 for replacement housing. The Rices executed the necessary documents, and they were paid this adjusted amount of eligibility. Mr. Rice contends that he was due the full amount of $22,760 (the difference between the first comparable housing figure set at $42,000, and the approved appraisal figure of $19,240), and that after his payment of $14,563.42 he is still entitled to receive an additional $8,196.58.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter its Order that the proper amount for replacement housing benefits payable to Charles D. Rice and Winnie R. Rice is $14,563.42, and disallowing their claim for an additional amount of $8,196.58. DONE and RECOMMENDED this 16th day of June, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS 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 16th day of June, 1983. COPIES FURNISHED: Gary B. Lane, Esquire Post Office Box 12331 Pensacola, Florida 32581 Vernon L. Whittier, Jr., Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Does the Division of Administrative Hearings have jurisdiction of this housing discrimination petition?
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition herein. DONE AND ENTERED this 29th day of January, 2016, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2016. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Dominick Davis Apartment 46 1605 North Myrtle Avenue Jacksonville, Florida 32209 (eServed) Larry Gonzalez Jacksonville Housing Authority 1300 North Broad Street Jacksonville, Florida 32202 Wendy Leigh Mummaw, Esquire Office of General Counsel City of Jacksonville Suite 480 117 West Duval Street Jacksonville, Florida 32202 (eServed) Wendy Byndloss, Esquire Office of General Counsel City of Jacksonville Suite 480 117 West Duval Street Jacksonville, Florida 32202 (eServed) AlliedBarton Security Service Inc. 9428 Bay Meadows Road, No. 170 Jacksonville, Florida 32256 The Oaks at Durkeeville 1605 North Myrtle Avenue, Suite 10 Jacksonville, Florida 32209 Ina F. Crawford, Esquire Ogletree Deakins 100 North Tampa Street, Suite 3600 Tampa, Florida 33602 (eServed) Phillip B. Russell, Esquire Ogletree, Deakins, Nash, Smoak & Stewart Suite 3600 100 North Tampa Street Tampa, Florida 33602-5867 (eServed) Asa B. Groves, Esquire Groves & Verona, P.A. 7385 Southwest 87th Avenue Miami, Florida 33173 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed)
Findings Of Fact Petitioner R. G. Furniture is in the business of manufacturing and selling extruded aluminum patio furniture. Petitioner is owned by Robert L. Gass, Jr., who was also the owner of the real estate which Petitioner occupies as a tenant. For purposes of this administrative proceeding and for purposes of relocation assistance benefits, the parties have stipulated that R. G. Furniture, Medallion Furniture, Mar-Tec Furniture, R. G. Cushion Co., Robert L. Gass, Jr., and all other related entities, corporations, or persons shall be treated as one party so that there will be no duplicity of claims made or of benefits paid. The patio furniture, umbrellas, and related items are both sold and manufactured by Petitioner on-site. Straight tubes of aluminum are cut to size, bent into shape, welded, finished, and electrostatically painted. Strapping is then applied, and the furniture is then fitted with custom-made cushions. After this process is completed, the furniture is shipped to the customer or sold on the showroom floor. The furniture moves through the system on an overhead conveyor through each stage of the fabrication process. The paint system is extremely complex and critical to the operation of the plant. As the furniture goes through the paint machine, a dry, powdered paint is applied through an electrostatic process which bonds positive and negative charges, after which the dry paint is melted in an oven and cured. Gass was the fee owner of the real property on which Petitioner, a company owned by him, operates. On September 3, 1987, the Department notified Gass that his real property was needed for a new highway, I-595 in Broward County, Florida. The project requiring acquisition of the real property and the relocation of Petitioner is a federally-funded highway construction project. The September 3, 1987, letter also notified Gass of a prenegotiation meeting. Pursuant to a contract with the Department, employees of Kaiser Engineers were responsible for both the acquisition of real property and relocation of personal property of businesses and persons being displaced by the I-595 project. Their duties included advising displacees regarding their rights, negotiating settlements, and approving payment of claims. Some of Kaiser's employees are involved with acquisition (acquiring ownership of real property) and different employees are responsible for relocation assistance (relocating personal property). An appraisal of the land and improvements at the manufacturing site was performed on behalf of the Department. The Department's real estate appraiser called in a machinery and equipment appraiser to estimate the then-current replacement cost new, market value in-place, and salvage value of certain "immovable business fixtures and special purpose process systems". That appraisal was performed by Gary Maehl as of December 19, 1987. The appraisal prepared by Maehl for Kaiser Engineers contained 20 categories/items, consisting primarily of the painting machinery and the assembly line. Although the cover sheet to Maehl's full report is entitled "Immoveable Business Fixtures and Special Purpose Process Systems," there is no evidence that Gass ever saw more of the report than the 3-page listing of the 20 items which was entitled "Inventory." The components of the 20 categories/items are all movable. They are either freestanding or are attached to the building by nuts and bolts. Seventeen of the 20 items are easily movable. The component parts of the painting system and assembly line are bolted together. Those parts are bought and sold new and used on the open market. Even the freight elevator is movable. At all times material hereto, Gass has intended to continue in the furniture manufacturing business at a replacement site. It is not disputed that the painting machinery and assembly line are necessary to the operation of the furniture factory. Gass began receiving correspondence and informational packets from Kaiser Engineers regarding various relocation benefits to which he and his businesses would be entitled as eligible displacees. By March 9, 1988, Gass had been notified of his company's eligibility for relocation benefits, and negotiations for the acquisition of his real property had begun. Using its standard form Right-Of-Way Purchase Agreement, the Department made a written offer to Gass to acquire his property, one of the largest properties involved in the I-595 project. Gass, through his attorney, rejected that offer. One of Gass' concerns involved the "down time" he would incur in his business if he were required to disassemble, move, reassemble and install his assembly line and painting system process. The disassembly, moving, reassembly, and installation would take from 3 to 6 months, or more, essentially putting him out of business for an extended period of time. One of the relocation benefits for which a displaced business may be eligible involves the concept of substitute personal property. Under that concept, a business may purchase new equipment and machinery, such as an assembly line or specialized process, and have it fully installed and operational before relocating the business. At that time, the old machinery and equipment is shut down, and the business moves to the relocation site ready to continue production with its operational replacement equipment. In that manner, a business suffers only the disruption involved in the physical move of its other personal property and its employees. It was important to Gass that he have a replacement assembly line and painting system process operational before moving to the relocation site. On August 22, 1988, Gass entered into a Right-Of-Way Purchase Agreement with the Department to which was attached an Addendum required by him. The Addendum was specifically incorporated by reference. The Agreement also required a higher purchase price than the Department's first offer to Gass. Although the Department contends that the Agreement is used only to purchase real property, paragraph III. (c) of the Department's standard form agreement contains the following language: "All personal property included in the purchase price shall be delivered to PURCHASER in the same condition existing as of the date of this agreement." The Addendum also contained, in part, the following language: Seller shall retain title to all movable items and all items of personal property not identified as fixtures in the attached Exhibit "A". Seller retains his right to relocation benefits under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, and PURCHASER agrees to pay said benefits upon receipts [sic] of appropriate application from Seller. Exhibit "A" was the listing of 20 items prepared by appraiser Gary Maehl. The total purchase price for the land, improvements thereon, and the 20 items on the Maehl inventory was $3,985,000. The parties to the Agreement added a footnote to specify that the total purchase price included all costs and attorneys fees in settlement in lieu of condemnation. Terry E. Morris, the land acquisition director of Kaiser Engineers, who personally handled the acquisition of the manufacturing site since the parcel was one of the largest properties involved in the project, designated $477,000 of the purchase price to be for the items listed on the Maehl inventory. This figure represents their depreciated value in-place. Gass netted $88,000 from the transaction. Although R. G. Furniture has not yet moved to its replacement site, Gass made application to the Department for relocation benefits to purchase replacement items for the items contained in the Maehl inventory, primarily those items needed to begin assembling and installing a new assembly line and painting system process. The Department's denial of that claim is the subject of this proceeding. Although relocation benefits are usually not payable prior to the relocation, except in cases of justified hardship, the concept of substitute personal property would embody payment prior to relocation, and the parties have stipulated that the issue of eligibility regarding the items listed in the Maehl inventory only is ripe for adjudication. The relocation benefit involving substitute personal property is computed using two different formulas. One of those formulas contemplates that the property being replaced will be sold, and the sales price will be deducted from the cost of purchasing and installing the replacement equipment. There is no prohibition against the Department being the purchaser of the property which is being replaced. Petitioner is an eligible displacee. It is an on-going business being displaced as a result of a federally-funded highway project. All of the items listed in Maehl's inventory are items of personal property. Petitioner is entitled to relocation benefits for substitute personal property for those items. At the time of the final hearing in this cause, the cost of substitute items including installation at the replacement site was $752,900. The estimated cost of moving and reinstalling the replaced items, with no allowance for storage, is $494,100.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Petitioner entitled to relocation benefits for substitute personal property and paying Petitioner the sum of $275,900 as partial payment of the relocation benefits to which Petitioner is entitled. DONE and ENTERED this 12th day of September, 1991, at Tallahassee, Florida. LINDA M. RIGOT 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 12th day of September, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's second through fourth, eleventh, and twelfth unnumbered paragraphs have been adopted either verbatim or in substance in this Recommended Order. Petitioner's first, fifth through tenth, and thirteenth through eighteenth unnumbered paragraphs have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel, or recitation of the testimony. Respondent's proposed findings of fact numbered 1, 2, 4-8, and 10-13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 3, 9, 14, 15, 19, 20, 23, and 24 have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel, or recitation of the testimony. Respondent's proposed findings of fact numbered 17, 18, 21, and 22 have been rejected as not being supported by the weight of credible evidence in this cause. Respondent's proposed findings of fact numbered 16 and 25 have been rejected as being unnecessary for determination of the issues herein. COPIES FURNISHED: Ben G. Watts, Secretary Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, M.S. #58 Tallahassee, Florida 32399-0458 Attn: Eleanor F. Turner Charles G. Gardner Assistant General Counsel Florida Department of Transportation 605 Suwannee Street, M.S. #58 Tallahassee, Florida 32399-0458 J. Philip Landsman, Esquire Margaret Z. Villella, Esquire Platt, Haas & Landsman, P.A. Broward Financial Centre 500 East Broward Boulevard, Suite 1850 Ft. Lauderdale, Florida 33394
The Issue Whether Petitioner is entitled to reimbursement for expenses incurred in relocating and reestablishment of his small business pursuant to section 421.55, Florida Statutes (2009),1/ as implemented by Florida Administrative Code Rule 14-66.007, which, in turn, incorporates by reference the provisions of 49 Code of Federal Regulations Part 24, Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally-Assisted Programs (effective October 1, 2006),2/ and the Florida Department of Transportation Right of Way Manual 9.3.15, and, if Petitioner is entitled to reimbursement, the amount owed to him.
Findings Of Fact Based on the evidence and witnesses' testimony, the undersigned found the following facts: The Department is the state agency that has responsibility for paying certain relocation and reestablishment expenses of businesses that have been displaced because of a public transportation project. See § 421.55, Fla. Stat. Sometime in 1999 to 2000, Mr. Carey purchased eight rental units in Hillsborough County, Florida, as an investment property. Mr. Carey managed the rental property and testified that he would advertise vacancies through "word of mouth." The record shows that these rental units were rented weekly and included written and verbal leases. In 2005, the Department informed Mr. Carey that his rental property would be subject of an eminent domain taking and informed Mr. Carey about the law authorizing the Department to pay certain expenses in relocating and reestablishing a small business. On December 6, 2005, Mr. Carey filled out a Business Survey Questionnaire for the Department, stating his desire to relocate his rental business. The Department acquired Mr. Carey's property on April 18, 2009. By mid July 2009, Mr. Carey contacted Mr. Nappi to determine whether or not he was still eligible to receive relocation and reestablishment reimbursement for his small business. Mr. Nappi determined that Mr. Carey remained eligible to apply for reimbursement and informed him of that fact. On August 28, 2009, Mr. Carey purchased a replacement property located at 19002 Apian Way, Lutz, Florida, for $300,000.00. The replacement property contained a house that had been the homestead property of the prior owner. Mr. Carey credibly testified that the purpose of purchasing this replacement property was "to get back into the rental business" and that he advertised the replacement property for rent by "word of mouth." Receipts introduced into evidence show that Mr. Carey began making repairs and purchasing materials as early as the first week in September. Mr. Carey testified, on cross-examination, that he could not remember the exact date when he listed the replacement property for sale, or the exact date when he entered into a contract for the sale of the replacement property. Mr. Carey testified that he would speculate that the contract for sale of the replacement property occurred in early October 2009. On October 15, 2009, Mr. Nappi went to the replacement property with Mr. Carey to review the work that Mr. Carey had already begun on the replacement property and to discuss the expenses eligible for reimbursement. In reviewing Mr. Carey's claimed expenses, Mr. Nappi found that the following expenses would be eligible for reimbursement: (1) the drywall work detailed in Exhibit A; (2) $561.00 worth of the receipts of materials purchased from Home Depot; and (3) the painting expenses detailed in Exhibit C. Mr. Nappi also testified that in reviewing the claimed expenses that Mr. Carey would be eligible for reimbursement of a portion of the replacement property's ad valorem taxes. According to Mr. Nappi, Mr. Carey would have been eligible to receive the difference of the amount of the property taxes between the acquired property and the replacement property in the amount of $849.56. The only expenses that Mr. Nappi identified as not being reasonable were for hauling away yard waste contained in Exhibit D. According to Mr. Nappi, the Department questioned the amount of the charges and determined that an appropriate amount would be $1,200.00 as opposed to the $2,450.00 sought by Mr. Carey. Consequently, the majority of the expenses claimed by Mr. Carey were eligible items for reimbursement. On November 4, 2009, the Department sent Mr. Carey a letter denying his eligibility to receive reimbursement for expenses in relocating and reestablishing his small rental business. The Department denied Mr. Carey's eligibility because the updated TRIM notice for the property tax, that Mr. Carey provided the Department, showed the replacement property was homestead property. Because the replacement property was homestead, the Department reasoned that Mr. Carey had not reestablished a small business. Mr. Carey informed Mr. Nappi that the replacement property was not homestead property and that the TRIM notice was wrong. In response, on November 9, 2009, Mr. Nappi wrote the Hillsborough County Tax Collector to determine whether or not Mr. Carey's replacement property was homestead property. On November 23, 2009, while the Department waited for a response from the Hillsborough County Tax Collector, Mr. Carey closed on the sale of the replacement property for $332,500.00. Mr. Carey did not inform the Department that the replacement property had been sold. In February 2010, the Hillsborough County Tax Collector informed the Department that the replacement property was not homestead. Also, the Department learned for the first time that Mr. Carey had sold the replacement property. After learning that Mr. Carey had sold the replacement property, Mr. Nappi contacted his supervisor Elbert Johnson (Mr. Johnson). Mr. Nappi informed Mr. Johnson that "it did not appear that the reestablishment status of the landlord had been in fact established[,]" and the claim would be denied. Mr. Nappi testified the Department attempted to determine whether or not Mr. Carey had reestablished his rental business by examining Mr. Carey's efforts to rent the replacement property. Mr. Nappi directed a right-of-way specialist for the Department to contact realtors, who were associated with the property, to determine if Mr. Carey had listed the property for rent; to contact the local newspaper to learn if the property had been advertised for rent; and to conduct an internet search of the property. According to Mr. Nappi, the realtor indicated that she was not aware of whether or not Mr. Carey listed the property for rent and learned nothing from the newspaper or internet search. Mr. Nappi admitted that the Department did not contact Mr. Carey to ask him about his efforts to rent the property. The Department did not contact Mr. Carey or ask him to provide any information about his efforts to rent the property. Consequently, the Department did not have before it any information concerning Mr. Carey's efforts as to "word of mouth" advertising of the property. Mr. Knight, the state administrator of Relocation Assistance, testified that asking Mr. Carey about his efforts to rent the property would have been helpful information to have in considering the reimbursement. However, Mr. Knight acknowledged that Mr. Carey's selling of the home prior to determination of whether or not he was entitled to reimbursement made the issue moot. In the Department's estimation, Mr. Carey had simply "flipped a house" and had not reestablished his business. On March 25, 2010, the Department informed Mr. Carey that it was denying his application for reimbursement because he was not eligible because he had not reestablished his small rental business at the replacement property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order affirming its denial of Mr. Carey's application for reimbursement of reestablishment expenses. DONE AND ENTERED this 28th day of February, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2011.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition herein. DONE AND ENTERED this 18th day of January, 2005, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 18th day of January, 2005.
