Findings Of Fact Mac's Auto & Tool Supply, Inc. (Mac's Auto) is a business which was started by Mr. Ralph G. McGlauthen in approximately 1962. The business specialized in automobile and truck equipment, supply, tools, and custom made hydraulic hoses for machinery. It had been located on State Road 84 in Fort Lauderdale, Florida just west of State Road 7. Due to the construction of an interchange for Florida's Turnpike, State Road 7, and State Road 84, the property Mac's Auto leased was acquired by the Department of Transportation. The business moved to 4225 S.W. 57th Avenue in Davie, Florida. Negotiations for the acquisition of the land in Ft. Lauderdale were initiated in November of 1983. The original location had included a main building, and behind it a number of trailers used to store merchandise. Wooden 2' X 4' frames to which pegboard had been attached were used to organize the merchandise in the trailers. Other merchandise was kept in several small storage sheds. This method of maintaining merchandise could not be continued when the business was moved to Davie. The fire code there required the merchandise be stored or displayed on steel framing, rather than on pegboard supported by 2' X 4' wooden framing. The highway interchange project was a federally aided highway project. Relocation benefits were available to Mac's Auto as a tenant of the property acquired by the Department under the Uniform Relocation Assistance and Real Property Acquisition Policy Act of 1970, as amended, 42 U.S.C. Section 4601 et seq. (Uniform Act) and the implementing regulations of the United States Department of Transportation published at 49 Code of Federal Regulations, Part The value of any fixtures left at the site would be reimbursable in the eminent domain proceeding, not under the Uniform Act. Mac's Auto was paid certain costs connected with its search for a new business location. The Florida Department of Transportation obtained estimates of the charges for relocating the stock to the new business location from two commercial movers. Mac's Tool was not required to use a commercial mover, and Mr. McGlauthen ultimately elected a self move. The cost which is reimbursable to a displaced business for a self move is the lowest commercial estimate. 49 C.F.R. Section 25.303(c). In his letter of September 1, 1989 Mr. McGlauthen sought reimbursement of a $3,200 appraisal fee paid to Richard K. Cohen in October of 1985. Mr. McGlauthen maintains that the money was spent to assess the cost of moving the merchandise of the business. A letter dated February 7, 1986 from Mr. Cohen is the only written work product from Mr. Cohen. That letter is a progress report, which states that Mr. Cohen is preparing the "pricing of all of the fixture and machinery items" and projects a "final sound value" of $140,000 to $150,000. No final report was prepared. On the face of the letter, it appears that Mr. Cohen was not evaluating the cost of a move, but was assessing the actual value of the property itself. Mr. McGlauthen did abandon certain fixtures at the old site, and was paid by the Department for those fixtures. There is insufficient evidence that Mr. Cohen's work was ever completed, or if completed that it related to estimates of the cost of the move. That portion of the claim should be denied. Ultimately, Mac's Auto was paid $45,350 for a self move, based upon the lowest estimate from a commercial mover. Mr. McGlauthen abandoned at the hearing the claim in his letter for $6,000 for storage fees for seven trailers, because that amount had been paid by the Department. Mr. McGlauthen claimed $13,000 as the amount needed to build a mezzanine to hold the merchandise which previously had been stored in four of the trailers parked behind the main building at the old site. There was no documentation or itemization offered at the hearing of the actual expense incurred to build the mezzanine. The proof at hearing was insufficient to establish the amount of the expense. Moreover, the claim is one for improvement to real property, that is, for construction at the new place of business. Costs for improvements to real property are not reimbursable under the Uniform Act. The U.S. Department of Transportation specifically considered and rejected a proposal that physical changes to the replacement site be reimbursed when it adopted the rules implementing the Uniform Act. 50 Fed. Reg. 8955, 8965. (March 5, 1985) (Comments on Section 25.305). All of the expenses which were categorized on Mr. McGlauthen's letter under the heading "Monies Spent On Electric Installation" were paid by the Department, and are no longer an issue. The claims of Mac's Auto for $307.19 for a business license at the new location, $60.00 for a second business license, and $115.00 for an E.P.A. license were not reimbursed, because the Department regarded them as "additional operating expenses . . . incurred because of operating in a new location" which are ineligible expenses under 49 C. F. R. Section 25.305(f). Claims for $500.00 to complete the water hook-up to the water system at the town of Davie and $3,634.98 for a permit to hook-up to the Davie water supply were not reimbursed for the same reason. Since the Department's original denial of these fees, such fees have become payable due to an intervening decision of an intermediate Florida appellate court, Skiff's Workingman's Nursery v. Department of Transportation, 557 So.2d 233 (Fla. 4th DCA 1990), and a consequent change in characterization of those costs as permits "required of a displaced [business] at the replacement location" by the federal agency responsible for overseeing the relocation program established by the Uniform Act. 49 C.F.R. Section 25.303(a)(6). All these items therefore should be reimbursed. The claim for labor costs paid to employees based on time cards, and the claim for reimbursement of 40% of the salary paid to Mr. Isaac Theodore in the amount of $1,072.28 were not adequately explained at the hearing. The explanation of the manner in which the claim for the labor of employees was allocated on the time cards was superficial. There is an insufficient basis in the record to find that the employees were working on the move, rather than on other work, and an insufficient explanation of why this work was not compensated by payment for the self move. No records for Mr. Isaac Theodore could be produced at the hearing. Both of these reimbursement claims should therefore be denied. The claim for $903.46 were materials for air, water, and lines to hook-up to the sewer had no documentary support at the hearing, and consequently there is a failure of proof which requires that this reimbursement claim be denied. A number of other items listed in the claim letter filed by Mr. McGlauthen for Mac's Auto on September 1, 1989 have already been paid by the Department, and therefore need not be reimbursed again. These include $287.60 for installation of the telephone service, $900 for an alarm system, $250 to St. Jean Plumbing, $315 to pay for a carpenter's aid to the plumber and $3.25 in plumbing supplies. Mac's Auto also made several claims for lighting fixtures, including 50 fluorescent fixtures at a total cost of $1,250; four emergency exit lights, at a total cost of $340; and five emergency spotlights at a total cost $450. These claims had been denied by the Department as improvements to real property which were not reimbursable under the Uniform Act. Under regulations of the U.S. Department of Transportation published at 49 C.F.R. Section 25.305(j) a displaced person is not entitled to reimbursement for physical changes to the real property at the replacement location, which would include the cost of the lighting fixtures. This claim should be denied.
Recommendation It is RECOMMENDED that the Department of Transportation reimburse Mac's Auto & Tool Supply, Inc. for all items listed in Finding 8, but that all other claims be denied. DONE and ENTERED this 25th day of June, 1991, in Tallahassee, Florida. WILLIAM R. DORSEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1991. APPENDIX TO RECOMMENDED ORDER All findings proposed by the Department have been adopted, except findings 26 and 27. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Ralph McGlauthern Mac's Auto and Tool Supply 4225 S.W. 57th Avenue Davie, FL 33314 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File and relinquishing jurisdiction in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK. BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DCA11-GM-008 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished to the persons listed below jn the manner described, on this — day of January, 2011. yy A fas 4 Paula Ford, Agency Clerk DEPARTMENT OF COMMUNITY AFFAIRS 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 By U.S. Mail and electronic mail: Thomas A. Cloud, Esq. Clayton Bricklemeyer, Esq. City Attorney, Polk City David Smolker, Esq. GRAY ROBINSON, P.A. Bricklemeyer & Smolker, P.A. Post Office Box 3068 500 East Kennedy Boulevard, Suite 200 Orlando, Florida 32802-3068 Tampa, Florida 33602-4708 tcloud@gray-robinson.com claytonb@bsbfirm.com davids@bsbfirm.com Jack P. Brandon, Esq. Michael T. Gallaher, Esq. Peterson & Myers, P.A. Post Office Box 1079 Lake Wales, FL 33859-1079 jbrandon@petersonmyers.com mgallaher@petersonmyers.com STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner, Case Nos. 10-0045GM 10-2797DRI vs. CITY OF POLK CITY, Respondent, and POLK CITY ASSOCIATES, LLC, AND COLE'S PROPERTY, LLC, Intervenors. ORDER CLOSING FILES This cause having come before the undersigned on the Notice of Voluntary Dismissal, filed January 10, 2011, and the undersigned being fully advised, it is, therefore, ORDERED that the files of the Division of Administrative Hearings in the above-captioned matter are hereby closed. DONE AND ORDERED this llth day of January, 2011, in Tallahassee, Leon County, Florida. Blac aad J. LAWRENCE JOHNSTON 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 EXHIBIT Filed with the Clerk of the Division of Administrative Hearings this llth day of January, 2011. COPIES FURNISHED: David L. Jordan, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 Jeffery Sullivan, Esquire Stidham & Stidham, P.A. 150 East Davidson Street Bartow, Florida 33831 Jack P. Brandon, Esquire Peterson & Myers Post Office Box 1079 Lake Wales, Florida 33859-1079 K. Clayton Bricklemyer, Esquire Bricklemyer, Smolker & Bolves, P.A. 500 East Kennedy Boulevard, Suite 200 Tampa, Florida 33602 Thomas A. Cloud, Esquire Gray Robinson, P.A. 301 East Pine Street, Suite 1400 Post Office Box 3068 Orlando, Florida 32802-3068
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE. AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA10-GM-044 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this S 1 say of { (low Ane , 2018. Paula For Agency Clerk The Honorable J. Lawrence Johnston Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By U.S. Mail W. James Gooding, III, Esquire Gilligan, King, Gooding & Gifford, P.A. 1531 Southeast 36th Avenue Ocala, Florida 34471 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs Page 4 of 4
Findings Of Fact The Petitioner owned property in Charlotte County, Florida which laid within the right of way of proposed Federal Highway 1-75. The Petitioner's property was required for the highway right of way. The Petitioner lived on the property in a mobile home for more than ninety (90) days prior to the time that officials of the Florida Department of Transportation initiated negotiations for acquisition of the property. During February, 1975, David L. Nicholson, a Right of Way Agent with the Department of Transportation, contacted the Petitioner in order to negotiate the acquisition of the Petitioner's property, and to explain the amount of relocation assistance benefits that the Petitioner might be entitled to receive in order to compensate him for his having to move his residence. Petitioner was offered $3,500.00 in relocation benefits. This offer was predicated on the Petitioner's remaining an owner/occupant of new property to which he moved. When Mr. Nicholson was advised that the Petitioner was going to be renting new property, rather than purchasing it, Mr. Nicholson advised the Petitioner that he could receive up to $4,000.00 in rent supplements. The Petitioner construed the $4,000.00 figure as the amount that he would receive. The $4,000.00 was actually the highest figure that the Petitioner could receive, and was considerably more than the Petitioner was entitled to receive. The Department of Transportation compensated the Petitioner for the cost of moving his mobile home, and setting it up on the lot which the Petitioner was renting. The amount provided the Petitioner for this purpose was $970.15. Petitioner concedes that he was adequately compensated for moving and setting up his mobile home. The rental value of the Petitioner's property in Charlotte County, without the mobile home on it was $50.00 per month. This figure is called the "economic rent" of the property. A comparable lot in Charlotte County, Florida, would have cost the Petitioner $55.00 per month to rent. The difference between the monthly rental of a comparable lot, and the economic rent of the Petitioner's property was $5.00. If the Petitioner received this amount for four years, he would be entitled to $240.00. The Department of Transportation offered to pay this amount to the Petitioner, but he refused it, contending that he is entitled to $4,000.00. No evidence was offered at the hearing from which it could be concluded that Petitioner was entitled to receive more than the $970.15 provided him to move and set up his mobile home, and $240.00, the difference between the rental value of a comparable lot, and the economic rent of the Petitioner's property for four years as relocation assistance benefits.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That an order be entered finding the Petitioner entitled under the provisions of 42 U.S.C. 4624 to $240.00 in relocation assistance benefits above and beyond the $970.15 already provided; and that this amount be forwarded to the Petitioner. RECOMMENDED this 18th day of February, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings The Carlton Building, Room 530 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1977. COPIES FURNISHED: Philip Bennett, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32304 Veltie A. Dodson Route 5, Box 268 Rocky Mount, Virginia 24151 Tom B. Webb, Jr., Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32304
The Issue Whether the Petitioner is eligible for relocation assistance benefits pursuant to 42 U.S.C. 4601 et seq. (P.L. 91-646) and the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.
Recommendation Application for relocation assistance benefits by Mrs. Marie Lewis Mims be denied. DONE and ORDERED this 14th day of December, 1976 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Guy Davis, Jr., Esquire 700 Brent Building Post Office Box 12950 Pensacola, Florida 32576 George L. Waas, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Joseph A. Alfes Chief of Right-of-Way Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
