Findings Of Fact Petitioner rented the residence at 1881 Northwest 27th Avenue, Miami, Florida (displaced residence), where he lived with his wife and four children for four years prior to being displaced by Respondent in 1990. The displaced residence was approximately 1100 square feet of livable space and contained two bedrooms and two baths. Petitioner owned an import business which imported baby strollers from outside the United States for resale in the United States. Petitioner used approximately 150 square feet of space in one of the rooms of the displaced residence to store these baby strollers. William Sawyer was the owner of the displaced residence and the real property on which it was situated. Mr. Sawyer rented the residence to Petitioner and his wife pursuant to a lease dated July 2, 1986. The monthly rental for the residence was $475.00 (which was later verbally increased to $500.00). In addition to the residence, the property on which the displaced residence was located contained approximately 100 feet of frontage on the south side of the Miami River with a dock that was capable of mooring seagoing vessels. The property also contained a small warehouse. Pertinent to this proceeding, the lease contained the following provisions: #10. It is understood by Tenant that Landlord must have access through Drive-Way to Warehouse Building on property and that some of Landlord's equipment may be stored on property. #11. It is further understood and agreed by Tenants that Warehouse Building and all Dock Space area of property is reserved for the exclusive use and purposes of Landlord & free access to same is to be granted by Tenants at all times. Said Warehouse & Dock Space may be rented out by Landlord as he sees fit. Respondent purchased the subject property from Mr. Sawyer1/ in order to widen Northwest 27th Avenue, Miami, Florida, as part of a federally funded project. Petitioner was displaced from his residence and became entitled to relocation benefits provided by the Federal Uniform Relocation Assistance Program, 49 CFR 24. The program, as it pertains to projects within the State of Florida, is administered by Respondent. Under the relocation program, Respondent is required to locate a functionally equivalent replacement dwelling taking into consideration the needs and the life-styles of the persons being displaced. The amount of the relocation benefits is calculated pursuant to a formula by which the difference between the rent and utilities for the original residence and the rent and utilities for the replacement residence is determined and thereafter multiplied by 42. Respondent calculated the benefits to which Petitioner was entitled as being in the amount of $23,821.14. Petitioner accepted that amount under protest and reserved his right to challenge in these proceedings his right to additional benefits, contending that the replacement residence was not functionally equivalent to the Sawyer property for two reasons: First, the replacement residence did not have access to deep water. Second, zoning of the replacement residence did not permit the operation of his import business from his home as did the Sawyer property.2/ Petitioner's testimony that he was initially attracted to the displaced residence because its zoning permitted him to operate his business from his residence and because of the river frontage is found to be credible and is accepted. At all times pertinent to this proceeding, Petitioner owned a steel- hulled sailboat that is 70 feet in length and 20 feet in beam. The river frontage adjacent to the Sawyer property was important to Petitioner because it gave him deep water access and protection during the hurricane season. The river frontage provided security for his boat and allowed him quick and easy access to it. The depth of the river at the Sawyer property was approximately 10 feet and was sufficient depth for Petitioner's boat. Petitioner could have sailed his boat from the Sawyer property into the Atlantic. For one month in either late 1987 or early 1988, Petitioner rented the dock from Mr. Sawyer at the rate of $270.00 per month. Petitioner did not lease the dock from Mr. Sawyer or have the right to moor his sailboat at the dock at any time other than the one-month period in late 1987 or early 1988. At least during part of the time Petitioner resided at the Sawyer property, the sailboat was moored approximately 150 yards from the Sawyer property where it was undergoing a complete overhaul of its masts. The work that was being done on the sailboat could not have been done at the Sawyer property because there was insufficient access for the heavy-duty crane that was required for the work. Although Petitioner testified that he could have rented the dock at any time he wanted at the rate of $270.00 per month, and that he intended to rent the dock from Mr. Sawyer after extensive repairs had been made to his boat, there was no evidence that Petitioner actually used the dock at the times pertinent hereto or that he had the right to use the dock. Petitioner's ownership of the boat was an important part of his and his family's life-style. Petitioner had built the sailboat himself, he had invested considerable sums in the boat, he and his family had traveled extensively on the boat, and he and his family had lived on the boat at one time. When Respondent's displacement specialist first met with Petitioner, Petitioner was informed that the river frontage would be included in calculating the displacement benefits.3/ The river frontage of the displaced residence was considered by Respondent to be water view only since Petitioner had no legal right to use the frontage and because Petitioner was not in fact using the dock. The zoning of the displaced residence permitted Petitioner to operate his import business from the residence. This business consisted of importing items, such as baby strollers, from out of the United States for resale in the United States. Petitioner utilized approximately 150 square feet of the space of the displaced residence to store those items from time to time. Petitioner located a dwelling that Respondent used as the replacement dwelling in calculating the benefits that were paid to Petitioner. Petitioner used the benefits he received from Respondent as a down-payment on his purchase of that dwelling. All comparables considered by Respondent in determining the displacement benefits to which Petitioner was entitled, including the replacement dwelling purchased by Petitioner, had water view. The replacement dwelling purchased by Petitioner has no access to deep water on which he can sail his boat. The zoning of the replacement dwelling purchased by Petitioner does not permit the operation of Petitioner's business from the residence. The replacement dwelling, as compared to the displaced dwelling, is larger (1,400 square feet vs. 1,100 square feet), has more bedrooms (3 vs. 2), and has more total rooms (9 vs. 6). The replacement dwelling also has a garage and a screen porch whereas the displaced residence did not. Respondent established that Petitioner has been properly compensated for the displacement if Petitioner's claims for additional compensation are rejected.4/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Petitioner was properly compensated under the relocation program and which denies Petitioner's appeal. DONE AND ORDERED this 9th day of July, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 9th day of July, 1992.
The Issue Whether Petitioner committed the violations alleged in the citations he received on February 6, 1997. If so, what amount, if any, should he be fined.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following Findings of Fact are made: At all times material to the instant case, Petitioner owned and operated two apartment buildings located (adjacent to each other) at 732 and 740 Joe Louis Avenue in Pahokee, Florida (hereinafter referred to as the 732 Apartments and the 740 Apartments, respectively). Each building contained ten apartments used to house migrant farmworkers and members of their families, including their children. Among Petitioner's tenants was Speedy Martin. Petitioner paid Martin to help him maintain the buildings and grounds. Michael Menor is a Sanitation and Safety Specialist with the Department. He is assigned to the Department's Belle Glade office. In his capacity as a Sanitation and Safety Specialist, he inspects migrant farmworker housing to ascertain whether there is compliance with applicable statutory and rule requirements. Menor conducted inspections of the 732 and 740 Apartments on January 14, 1997. The inspections revealed the existence of violations at both locations. Following his inspections, Menor prepared inspection reports which accurately described the violations that existed at the two locations at the time of the inspections and which gave notice that these violations needed to be corrected by 8:00 a.m. on January 28, 1997. Before leaving, he handed these inspection reports to one of Petitioner's tenants, Marlo Camble. Approximately a week later, Camble provided the reports to Speedy Martin, who, in turn, notified Petitioner of the contents of the reports. The inspection report describing the condition of the 732 Apartments and grounds at the time of the January 14, 1997, inspection contained the following "comments and instructions": Repair cracks in building, south side. Replace 11 bathroom screens missing from building. Broken window [in] Apt. # 5 and two broken windows [in] Apt. 4. Repair or replace covers for water meters. Clean out garbage, litter and debris from east side of b[ui]ld[ing]. Replace missing screens [in] Apt[s]. #1 [and] 2. Provide or repair heat [in] Apt. #2. Exposed wires [hanging from two] public lighting . . . fixtures [on] west side of b[ui]lding. Exposed wires in meter room. Empty out storage area and repair door under stairs. Repair wall on side of storage area. Repair public lighting on 2nd floor. Repair or replace stove [in] Apt. #9. Repair or replace stove [in] Apt. #2. Note: Smoke detectors missing [from] Apt. #8. Fire extinguisher missing [from] Apt. #2. All fire extinguishers require reinspection and retag. The inspection report describing the condition of the 740 Apartments and grounds at the time of the January 14, 1997, inspection contained the following "comments and instructions": Replace missing screens in Apt[s]. #4 and #5. Repair leak on overhang, [in] front of Apt[s]. #4 and #5. Clean out garbage, litter and debris from east side of building. Repair heater [in] Apt. #4. Repair broken windows [in] Apt. #4. (2 windows broken). Remove or repair screen door [on] Apt. #3. Repair public lighting. Repair screen [in] Apt. #1. Exposed electrical wires [in] front of Apt. #1. Repair door frame and screen in meter room. Clean room. Provide cover for electrical wires in meter room. Repair overhang [on] corner of b[ui]ld[ing's] west side. Remove wooden poles [on] south side of building. Repair broken window [in] Apt. #3 [on] south side of building. Repair wall [on] south side of building. Provide covers for water meters. Replace 2 missing bathroom screens [on] south side of building. Repair public lighting [on] 2nd floor. Replace missing screen [in] Apt. #7. Repair 2 broken windows [in] Apt. #6. Exposed wire [on] west side of Apt. #6. Repair storage door under stairs and clean storage room. Note: All fire extinguishers require retag and reinspection. Replace fire extinguisher and smoke detector [in] Apt. #2. Menor returned to the 732 and 740 Apartments on January 31, 1997, to conduct follow-up inspections.1 The follow- up inspections revealed that, although Petitioner had remedied some of the problems that Menor had discovered during his January 14, 1997, inspections (and had noted in his reports of those inspections), most of the violations found during these earlier inspections had not been corrected. Following his January 31, 1997, inspections, Menor prepared inspection reports which accurately described the violations that existed at the two locations at the time of the inspections and which gave notice that these violations needed to be corrected by 8:00 a.m. on February 4, 1997. Menor, on February 3, 1997, "faxed" Petitioner copies of the inspection reports. He also spoke with Petitioner and advised him of the contents of the reports. The inspection report describing the condition of the 732 Apartments and grounds at the time of the January 31, 1997, inspection contained the following "comments and instructions": Repair cracks in building, south side. Replace 11 bathroom screens missing from building. Broken window [in] Apt. #5 and two broken windows [in] Apt. #4. Repair or replace covers for water meters. Clean out garbage, litter and debris [from] east side of building. Replace missing screens [in] Apt[s]. #1 [and] 2. Provide or repair heat [in] Apt. #2. Repair door to storage area under stairs. Repair or replace stove [in] Apt. #9. Repair or replace stove [in] Apt. #2. Provide effective extermination of rodents. The inspection report describing the condition of the 740 Apartments and grounds at the time of the January 31, 1997, inspection contained the following "comments and instructions": Replace missing screens in Apt[s]. #4 [and] #5. Repair leak on overhang, [in] front of Apt[s]. #4 [and] #5. Clean out garbage, litter and debris from east side of b[ui]ld[ing]. Repair 2 heaters [in] Apt. #4. Repair overhang [on] corner of building['s] west side. Repair broken window [in] Apt. #3 [on] south side of building. Repair wall [on] south side of building. Provide covers for water meters. Replace 2 missing bathroom screens [on] south side of b[ui]ld[ing]. Repair public lighting [on] south side of b[ui]ld[ing]. Repair broken window (2)[in] Apt. #6. Repair storage door und[er] stairs. Provide effective extermination of rodents. Menor next inspected the 732 and 740 Apartments on February 4, 1997. The inspections revealed that none of the violations that Menor had discovered during his January 31, 1997, inspections (and had noted in his reports of those inspections) had been remedied, with the exception of the violation resulting from the broken heater in Apartment number 2 in the 732 Apartments, which had been repaired since the January 31, 1997, inspections. (One of the heaters in Apartment number 9 in the 732 Apartments, however, was now in disrepair.) Although Petitioner had taken steps to address some of these continuing violations, his efforts, as Menor's February 4, 1997, inspections revealed, were inadequate to correct the targeted problems. Petitioner had ordered meter covers from the City of Pahokee, but he had not yet received them nor had he placed any temporary coverings over the uncovered meters. He had attempted to repair the cracks in the building on the south side of the 732 Apartments; the door to the storage area under the stairs in the 732 Apartments; the overhang in front of Apartment numbers 4 and 5 in the 740 Apartments; the overhang on the west side of the 740 Apartments; the wall on the south side of the 740 Apartments; and the door to the storage area under the stairs in the 740 Apartments; but the repairs he had made had not been done properly. He had put rat poison under the buildings and given tenants rat traps in an effort to alleviate the rodent infestation problem at the 732 and 740 Apartments; however, he had not gone to the expense of hiring a professional exterminator to deal with the problem, even though it should have been apparent to him that the services of an exterminator were needed to effectively eliminate the rat population at the two locations. Following the February 4, 1997, inspections, Menor prepared inspection reports which accurately described the violations that existed at the 732 and 740 Apartments at the time of the inspections and which gave notice that these violations needed to be corrected by 8:00 a.m. on February 6, 1997. Menor spoke with Petitioner and advised Petitioner of the contents of the inspection reports and what Petitioner needed to do to remedy the violations noted in the reports. Menor returned to inspect the 732 and 740 Apartments on February 6, 1997. Upon his arrival, Menor met Petitioner, who had also just arrived on the scene. In Petitioner's car were screens and light bulbs that Petitioner intended to install in the apartments and public areas that needed them. Notwithstanding Petitioner's intentions, none of the violations that Menor had discovered during his February 4, 1997, inspections (and had noted in his reports of those inspections) had yet been remedied. Inasmuch as the deadline that Menor had given Petitioner to correct these violations had passed, Menor issued Petitioner two citations, one for the continuing violations at the 732 Apartments and the other for the continuing violations at the 740 Apartments. Each citation directed Petitioner "to pay a fine in the amount of $500.00," but provided that Petitioner could "have the amount of the fine . . . reduced or waived completely by demonstrating good faith in correcting the violations or by presenting 'before and after' evidence to the Palm Beach County Public Health Unit within 48 hours of the time of the issuance of th[e] citation." Menor told Petitioner that he would be back to the apartments on Monday, February 10, 1997, to see if the violations had been corrected and if a reduction or waiver of the fines was warranted. On February 10, 1997, Petitioner telephoned Menor and advised him that he needed an extra day to bring the 732 and 740 Apartments into compliance. Menor responded by telling Petitioner that he would postpone his inspections of the apartments until the following day. The following day, February 11, 1997, Menor paid a return visit to the 732 and 740 Apartments to conduct post- citation inspections. Some of the continuing violations that Menor had discovered during his February 4, 1997, inspections (and had noted in his reports of those inspections) had still not yet been remedied. These unremedied violations created conditions that posed a serious threat to the health and safety of the tenants. Following his February 11, 1997, inspections, Menor prepared inspection reports which accurately described the violations that existed at the two locations at the time of the inspections and which gave notice that these violations needed to be corrected by 8:00 a.m. on February 17, 1997. Menor provided Petitioner, who was present during the inspections, copies of the inspection reports. The inspection report describing the condition of the 732 Apartments and grounds at the time of the February 11, 1997, inspection contained the following "comments and instructions": Replace covers for water meters. . . . Repair door to storage area. Provide effective extermination of rodents. Repair cracks in building, south side. Screens missing from bathroom window[s]. The inspection report describing the condition of the 740 Apartments and grounds at the time of the February 11, 1997, inspection contained the following "comments and instructions": Repair overhang [on] corner of building['s] west side./Repair storage door. Provide covers for water meters. Repair 2 broken windows [in] Apt. #6. Provide effective extermination of rodents. Menor next inspected the 732 and 740 Apartments on February 17, 1997. The inspections revealed that at neither location had Petitioner yet "provide[d] covers for water meters" or "provide[d] effective extermination of rodents," although he had corrected the other violations Menor had discovered during his February 11, 1997, inspections (and had noted in his reports of those inspections). Following his February 17, 1997, inspections, Menor prepared inspection reports which accurately described the violations that existed at the two locations at the time of the inspections. Copies of these inspection reports were "faxed" to Petitioner on February 18, 1997. On February 24, 1997, Menor received a complaint from a tenant living in Apartment number 4 in the 740 Apartments that there were "rats in [her] refrigerator." Later that day, Menor went to the 740 Apartments to investigate the complaint. His investigation revealed evidence that rats had entered the complainant's refrigerator through a hole. Menor spoke with Petitioner following his investigation and emphasized the importance of Petitioner providing his tenants with effective "pest control." Two days later, on February 26, 1997, Petitioner telephoned Menor and told Menor that he (Petitioner) had made arrangements for a "pest control" company, Glades Pest Control, to provide extermination services at the 732 and 740 Apartments, but that it would not be until March 4, 1997, that such services would be rendered. On April 18, 1997, Menor returned to the 732 and 740 Apartments to ascertain whether the continuing violations that he had discovered during his February 17, 1997, inspections (and had noted in his reports of those inspections) had been remedied. The inspections revealed that these violations had been corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order finding Respondent guilty of the violations alleged in the February 6, 1997, citations and fining him a total of $1,000.00 ($500.00 per citation) for these violations. DONE AND ENTERED this 13th day of August, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1997.
The Issue Whether Petitioners maintained a separate household within a multiple occupant displacement dwelling for purposes of calculating the appropriate amount of their relocation assistance benefits.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioners, Anthony T. Black and Melissa Owen, formerly resided in a mobile home at 5315 Drew Street, Brooksville, Florida. Respondent, Department of Transportation (DOT), recently began acquiring property for the construction of the Suncoast Parkway, a non-federal-aid, limited access toll facility which will run forty miles from just north of Tampa, Florida, to Brooksville, Florida. Among other properties, DOT has acquired parcel number 144.001T on which Petitioners once resided, and they have been forced to relocate to another residence. This controversy concerns a determination as to the appropriate amount of relocation benefits to which Petitioners are entitled. The amount of benefits due a displaced person is determined by a federally-mandated formula codified in 49 Code of Federal Regulations, Part 24, and adopted by DOT. The regulations provide that if multiple persons live in the same dwelling, and those persons can establish that they maintained separate households within a single-family dwelling, they are entitled to greater benefits than if all persons are considered a single household. Federal regulations contain no definitive guidelines on this issue, but rather they leave that determination to the discretion of the state agency administering the program. In this unusual case, Petitioners contend that they were a "separate household" within a single-family dwelling which was jointly shared with another person. DOT contends, however, that Petitioners are entitled only to a prorata share of a single payment to all occupants of the dwelling. The seven-room mobile home at 5315 Drew Street was owned by Margie Black, the mother of Anthony T. Black. Beginning in January 1995, she allowed her son, his girlfriend, Melissa Owen, and a friend of her son, Daniel L. Bell, to live in the mobile home rent-free, but the tenants were required to pay for taxes, utilities, and the upkeep of the premises. At different points in time, other persons also shared the home, but they vacated the premises before this dispute arose. There was no written agreement between the three tenants on how to allocate living space or pay expenses, but they informally agreed that they would share in common expenses, such as utilties and maintenance repairs. Bell lived in one of the three bedrooms in the mobile home, while Petitioners shared another. In order to qualify for assistance, a tenant must have occupied the premises for at least 90 days before the displacement occurred, a requirement easily met by Petitioners. Also, replacement housing assistance is restricted to an amount not to exceed $5,250.00 per household. This cap may be exceeded when a person qualifies for a super rent supplement in order to place the displaced person in "last resort housing." In this case, Petitioners qualifed for such a supplement because there were no comparable mobile homes in the area. In calculating the amount of the super rent supplement, DOT is required to ascertain the amount of rent paid by the displaced persons, their income, and their monthly utility bills. To assist it in gathering this information, DOT utilizes a private consulting firm, Universal Field Services (UFS), whose representatives meet with the displaced persons. Although the parties have disagreed as to the degree of cooperation UFS and DOT received from Petitioners in verifying their income, utility bills, and rent, they have ultimately agreed that, if the three tenants are treated as multiple occupants of one displacement dwelling, then based on Petitioners' annual income and utility payments in 1995 and 1996, Petitioners are entitled to $9,027.08 in total relocation assistance payments, including the super rent supplement. This amount represents two-thirds of the total payment of $13,541.22, which is the product of a federally-mandated formula. Bell, the other tenant, received the remaining one-third of the payment. The parties also agree that if only a single household existed, DOT's calculation is correct. Petitioners contend, however, that they maintained a separate household from the third tenant, and thus they are entitled to a greater amount of assistance. Although there are no written state guidelines on how to make this determination, as a matter of policy, DOT requires that the tenants provide written documentation and other proof to establish that the tenants maintained separate households within a single residence. While it has never been confronted with a "separate household" claim before, to establish a good claim, DOT suggested that, at a minimum, the claimants would need to have a written lease by each of the tenants reflecting the rental of certain space for a specific amount of rent each week or month, and perhaps written rules regarding the use of the space that tenants must comply with. In addition, the dwelling would have to have separate and exclusive living areas for each tenant, such as separate entrances, kitchens or efficiency areas, that would not cross over into any common areas. Examples of such dwellings would be a boarding room, hotel, adult congregate living facility, duplex, or mother-in-law suite. In this case, there was no written lease agreement by any of the tenants concerning each tenant's respective space since all persons lived rent-free on the premises. There was also no formal agreement or rules governing the use of common living areas by the tenants. While it is true that Bell had a separate entrance to his bedroom, he was allowed to keep food in the same refrigerator used by Petitioners, he occasionally cooked or ate meals on the premises, and he was not prohibited from using other common areas of the home. Given these circumstances, and the lack of any documentation to the contrary, it must be found that all persons occupying the dwelling shared a single- family dwelling and that a separate household did not exist. Petitioners contended that the process was flawed because UFS personnel made only one visit to the premises before making a recommendation in the case. Petitioners were, however, allowed to submit further documentation after that visit to substantiate their claim, and at least one other UFS representative visited the premises on a later date. In addition, a DOT supervisor visited the home and made the final agency decision. Petitioners also suggested that the allocated benefits are insufficient to cover their new rent. But DOT has no discretion except to follow the federal formula in allocating benefits. Petitioners further asserted that the "comparable" property found by DOT to replace the rent-free mobile home was too expensive. Unfortunately, however, this concern is not an issue in this proceeding. Finally, Petitioners pointed out that other displaced persons have experienced difficulty in dealing with UFS personnel. Even if this were true, it would have no bearing on the issues in this case since all UFS determinations are preliminary in nature and subject to DOT review and an evidentiary hearing if requested by the parties.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Transportation enter a Final Order denying Petitioners' request for greater relocation benefits, and that it reaffirm the amount previously awarded. DONE AND ENTERED this 16th day of April, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this day 16th of April, 1998. COPIES FURNISHED: Diedre Grubbs, Agency Clerk Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-00458 Anthony Black Melissa Owen Post Office Box 10868 Brooksville, Florida 34603 Andrea V. Nelson, Esquire Department of Transporation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Pamela S. Leslie, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue The issue is whether the Department of Transportation's calculation of Petitioner's replacement housing payment determination was correct.
Findings Of Fact The Department is the state agency responsible for acquiring rights-of-way for highway construction and widening in the State of Florida. As part of a federally funded right-of-way acquisition project, the Department acquired the house that the Gheorghes were renting. The Gheorghes thus became eligible for relocation assistance under the Surface Transportation and Uniform Relocation Assistance Act of 1987, Public Law No. 100-17, codified at 42 U.S.C. § 4601 et seq. (Uniform Act).1/ Chris Scodius is a senior right-of-way specialist with American Acquisition Group, a consulting firm that provides acquisition, relocation, appraisal, cost estimating, and property management services. The firm provides these services to the Department pursuant to contract. In November 2011, Mr. Scodius was assigned the task of calculating a revised replacement housing estimate for the Gheorghes' relocation.2/ Mr. Scodius estimated that he has performed a similar function on over 50 relocation projects, including 25 projects involving the Department. Mr. Scodius gathered information on three comparables to the displaced dwelling and chose the one most comparable for the computation of the rental assistance payment. He selected the comparables by browsing websites such as Realtor.com and by visiting local realtors and property management companies to find dwellings that were functionally equivalent to the displaced dwelling. The dwelling from which the Gheorghes were displaced was at 1910 Southampton Road on the south side of Jacksonville, near Atlantic Boulevard and I-95. Mr. Scodius' report described it as follows: The single family house facing Southampton Road is a one-story, wood frame residence, built off-grade on a wood joist floor system with asbestos shingle siding and an asphalt shingle roof on a pitched rafter system, originally constructed 68 years ago in 1943. Interior floor coverings are hardwood and carpet, walls and ceilings are of plaster on lathe. A central system conditions air with heat and cooling. Two window air units supplement cooling capacity of the dwelling. The 1093 square foot conditioned portion of the house is divided into six rooms in addition to the single full bathroom. These six rooms include a living room and a dining room, a kitchen, a small office and three bedrooms. Attached to the front of this conditioned space is a small, covered entry stoop and steps with a small covered entry stoop at the rear behind the garage. There is a one-car enclosed garage attached to the west side of the house with doorway access only to the exterior of the house at the dirt driveway. The appraisal prepared for FDOT indicates that the house is of average quality construction and interior finish, is in average condition and indicates the building structure has a remaining economic life of about 35 years. The described home- site contains 4,495 square feet more or less. Ingress and egress frontage along Southampton Road is 50 feet. This dwelling is served by a public potable water supply and a public wastewater disposal system. The comparable dwellings were located at 7416 Silver Lake Terrace in Arlington; 2427 Sam Road, between University Boulevard and Dean Road; and 7913 Jasper Avenue in Arlington. None of the comparables was in the same neighborhood as the Southampton Road house, but none was more than 5.3 miles away and all were on the south side of Jacksonville in similar neighborhoods. Mr. Scodius chose the Silver Lake Terrace property as the most comparable and used it for the calculation.3/ This was a 1,549 square foot single family home consisting of three bedrooms and 1.5 bathrooms, built in 1980 with a recently renovated interior. Mr. Scodius described it as follows: Similar to the subject, this dwelling has one full bathroom and its conditioned space is further divided into 6 rooms. These rooms consist of a living room, dining room, kitchen and three bedrooms. Accessed from outside the interior space of the dwelling, but enclosed and under the carport roof is a small utility room equipped with connections for a washer and dryer. The general construction and material of the interior is similar to the subject, with hardwood, tile and carpeted floors and painted sheet-rock walls. This home is heated and cooled by an electric, central, ducted system. Potable water is from a public supply and wastewater disposal is by a private septic tank and drainfield system. Exterior features include a fenced back yard with wood storage building at the back property line. Before making his selection, Mr. Scodius visited the Southampton Road and Silver Lake Terrace properties to determine their comparability in person. He calculated that the Silver Lake Terrace property was 4.7 miles from the Southampton Road property and that the Silver Lake Terrace property was within two miles of a variety of shopping, restaurants, banks, schools and community services. He inspected the dwelling and determined that it met the standards of "Decent, Safe and Sanitary" (DS&S) prescribed by the Federal Highway Administration and the Uniform Act. Mr. Scodius concluded his report on the Silver Lake Terrace property as follows: This dwelling has been chosen as the number one comparable dwelling because of its distinct similarity to the subject in terms of overall room count, number of bedrooms, overall living area and close proximity to the subject neighborhood. Given its quiet, residential setting within easy access to shopping and being within 4 miles of the displacee's church of choice, this available rental dwelling appears to be the best suited of the three to this displaced family's particular needs and lifestyle. Mr. Scodius testified that he chose this house in the Arlington area because he believed it to be the most functionally equivalent comparable, and because it was actually superior to the Southampton Road property in which the Gheorghes were currently residing. Mr. Scodius explained that the number one comparable is used only as the basis for computing the amount of the rental assistance payment. Though the number one comparable must be available, the displaced persons are not required to move into it. They may take the rental assistance payment and move into a dwelling of their choosing. After choosing the number one comparable dwelling, Mr. Scodius prepared a computation of the rental assistance payment for the Gheorghes. To arrive at a final rental assistance payment number, the base rent for the current dwelling, including average utility payments over 12 months, is subtracted from the advertised monthly rental rate for the comparable, including information obtained from the Jacksonville Electric Authority (JEA) as to average utility payments for a representative 12-month period. The resulting number is then multiplied by the 42 months for which payments are available in order to arrive at a final lump sum rental assistance payment. In this case, the advertised market rent of $950.00 plus average monthly utilities of $217.50 as provided by the JEA for the Silver Lake Terrace property totaled $1,167.50. The base rent for the Southampton Road property was the actual monthly rental of $525.00 plus average monthly utilities of $437.21 for a total of $962.21. The difference of $205.29 was multiplied by 42 to arrive at a rental assistance payment of $8,622.18. The federal relocation assistance regulations provide that the maximum payment for rental assistance is $5,250.00. 49 C.F.R. § 24.402(a). However, the regulations also provide for "replacement housing of last resort" in situations where replacement dwellings are not available within the prescribed monetary limits. 49 C.F.R. § 24.404. The Department determined that the Gheorghes were eligible for a last resort payment as "the best alternative allowable within the established procedure in order to relocate Mr. Gheorghe and his family into a decent, safe and sanitary replacement dwelling in a timely manner." Therefore, the Gheorghes were paid $8,622.18, plus a $1,500.00 moving assistance fee. At the hearing, the Gheorghes4/ voiced several criticisms of the Department's methodology in selecting the number one comparable and its calculation of the rental assistance payment. First, Ms. Gheorghe complained that the chosen comparables were all several miles from the Southampton Road house despite the fact that there were three available rental properties in her current neighborhood. However, no evidence beyond Ms. Gheorghe's bare assertion was provided as to the existence of these rental properties, and no particulars were offered as to their functional equivalence to the Gheorghes' Southampton Road dwelling. Next, the Gheorghes claimed that the basis for comparison was skewed because the rent they paid on the Southampton Road house was well below market value. In renewing the Gheorghes' lease in 2006, the landlord acknowledged they were good longtime tenants and therefore charged them only $525.00 per month. Mr. Scodius testified that the federal guidelines do not focus on price but on functional equivalence. The amount of rent currently being paid by the Gheorghes was an irrelevant factor in his selection of comparables. Further, if it is true that the Gheorghes' rent was artificially low, this factor worked in their favor by raising the amount of rental assistance to which they were entitled. Under the formula, the current rent is subtracted from the advertised rent of the number one comparable. The lower the current rent, the higher the resulting rental assistance calculation. This objection by the Gheorghes is not a ground for disturbing the calculation made by Mr. Scodius. The Gheorghes complained that the Silver Lake Terrace house could not be considered comparable to the Southampton Road house because the latter was connected to city water and sewage, whereas the former, despite the statement in Mr. Scodius' report that it received potable water "from a public supply," was actually serviced by a well and septic tank. Mr. Knight reasonably testified that a well and septic tank provide the same function as city water and city sewer. The well provides potable water to the dwelling and the septic tank provides a means to discharge the waste. While some people might prefer one to the other, the well and septic tank are functionally equivalent to city water and sewage and meet the DS&S standard.5/ The Gheorghes attacked the comparability of the JEA bills for the Southampton Road house and the Silver Lake Terrace house. They claimed that the latter was unoccupied for a period of the time considered by Mr. Scodius in his calculation, and therefore the utility bill for the house was artificially low. However, Mr. Scodius plausibly testified that he specifically asked JEA for an average utility bill for the last 12 months in which the property was occupied. To the best of his knowledge, JEA gave him information on an occupied dwelling. It is noted that the average monthly utility bill for the Gheorghes' home on Southampton Road was almost exactly double that of the Silver Lake Terrace house. It is also noted that the average utility bills for the comparable houses on Sam Road and Jasper Avenue were $211.25 and $228 respectively, far closer to the Silver Lake Terrace bill than to the Gheorghes' Southampton Road dwelling. Unless JEA provided Mr. Scodius with bad information as to all three comparable houses, it appears that the Gheorghes' utility bill is the outlier among these comparables.6/ Ms. Gheorghe argued that she should have been reimbursed for pet deposits at her new residence because the Department was well aware at the outset of negotiations that she had a dog and more than one cat. However, the Gheorghes could point to no provision of the Uniform Act or its implementing rules that authorize or require the agency to pay the relocation costs for pets. Mr. Knight affirmatively testified that the Department is not authorized to consider pet deposits as expenses eligible for reimbursement. At the hearing, the Department did not contest Ms. Gheorghe's testimony that some of its representatives dealt high-handedly with the Gheorghes during the relocation process. Much of Ms. Gheorghe's presentation had less to do with the financial data in question than with what she considered her family's poor treatment at the hands of certain Department personnel. Ms. Gheorghe's complaints were heartfelt and appeared legitimate. It is hoped that being forced to undertake the time and expense of litigating this matter has demonstrated to the Department that good will and civility are not only desirable qualities in a public agency but cost effective ones as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying the petition of Stefan and Dana Gheorghe for an additional replacement housing payment. DONE AND ENTERED this 30th day of April, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 30th day of April, 2013.
Findings Of Fact The Subject Property. The property at issue in this proceeding consists of approximately 66 lots (hereinafter referred to as the "Subject Property"), located in Highridge Estates Subdivision (hereinafter referred to as "Highridge"). Each lot is approximately one-third acre in size. Highridge and the Subject Property are located in Clay County, Florida. Highridge was filed in the public records of Clay County, Florida, as a platted subdivision in January of 1970. At the time Highridge was platted, each lot met the zoning requirements applicable to Highridge. Pursuant to then-existing zoning, each Highridge lot could be developed as a single-family residence by construction or the placement of a mobile home thereon. Adoption of the Clay County 2001 Comprehensive Plan. Clay County adopted the Clay County 2001 Comprehensive Plan (hereinafter referred to as the "Plan"), on January 23, 1992, as required by the Local Government Comprehensive Planning and Land Development Regulation Act, Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). At the time of the adoption of the Plan, the Plan contained policies which would have permitted lots such as those in Highridge that had not yet been developed to be developed as a single-family residence by the placement of a mobile home thereon. As required by the Act, the Plan was submitted to the Florida Department of Community Affairs (hereinafter referred to as the "Department"), for review and determination of whether the Plan was "in compliance" as defined by the Act. During the time that the Plan was being considered it was publicly known that the policies which would allow the placement of mobile homes on each of the lots in Highridge might not be accepted by the Department. Petitioner's Acquisition of the Subject Property. During the early 1990's William Bitetti began looking for real estate to invest in. Mr. Bitetti, through the services of Century 21 Lakeside Realty, became aware of the availability of lots in Highridge as a possible investment. Mr. Bitetti was assured by Century 21 Lakeside Realty's realtor that Highridge could be developed by the placement of a single mobile home on each lot. On or about March 25, 1992 Mr. Bitetti entered into a Contract for Sale and Purchase of 56 lots in Highridge. The following condition was included in the Contract for Sale and Purchase: this contract is only conditioned upon Buyer being able to place a Doublewide Mobile Home with attendant well, septic tank and system and electric service on each Lot, to be deter- mined by Buyer's attorney within 2 (two) weeks of the effective date of this contract. Mr. Bitetti intended that the lots would be purchased by the Petitioner, St. William Land Company, Inc. Mr. Bitetti is the sole shareholder and the President of Petitioner. Mr. Bitetti intended that the lots would be marketed for sale as single-family mobile home sites. Mr. Bitetti's attorney, Paul D. Newell, had experience with Highridge, having owned lots within Highridge himself. Mr. Newell was also aware of the language of the Plan that would allow development of the lots in Highridge. Mr. Newell had attempted to keep himself informed as to the progress of the Plan. Mr. Newell spoke to an official of the Clay County Planning and Zoning Department to confirm the language that would allow development of the lots in Highridge was included in the Plan and was told that it was. Mr. Newell also confirmed that regulations in existence at the time would allow Mr. Bitetti to market the lots as intended. The evidence failed to prove that any official of Clay County gave Mr. Newell assurances that the Plan would be approved by the Department as written. Mr. Newell was aware that the Plan had been submitted to the Department for review and had not yet been approved by the Department. Mr. Newell was also aware that it was possible that the Department would not accept the portion of the Plan that allowed continued development of developments like Highridge. On May 21, 1992 the Petitioner purchased the 56 lots in Highridge. Two of the 56 lots were subsequently sold by Petitioner. On or about October 12, 1992, Petitioner purchased an additional 12 lots in Highridge. The 12 lots purchased on October 12, 1992 and 54 of the lots purchased on May 21, 1992 constitute the Subject Property. At the time of purchase, the Subject Property lots could be sold for the installation of a mobile home on each lot pursuant to the law then in effect. The Plan was, however, still being reviewed by the Department. The Subject Property lots have direct access to a publicly owned and maintained right-of-way or to a privately owned platted right-of-way. Alleged Government Action Relied Upon by the Petitioner. On or about July 5, 1992, after acquiring the first 56 lots, Petitioner was issued a permit by the Clay County Building Department authorizing Petitioner to place a mobile home sales model on one of the lots. The evidence failed to prove that Clay County made any representation to Petitioner or Mr. Bitetti, or their representatives, that the policies of the Plan which would allow each lot of the Subject Property to be developed as individual sites for mobile homes would be approved by the Department or that, if it was, the law would not subsequently be changed. Nor did the evidence prove that Clay County represented in anyway that the Subject Property could be developed as Petitioner intended. Petitioner's Alleged Detrimental Reliance. Petitioner purchased the Subject Property for approximately $49,048.18, including closing costs. Two of the 68 lots purchased by Petitioner were subsequently sold. Petitioner realized a profit of approximately $2,582.31 on the sale of these lots. During 1992 Petitioner paid $29,515.37 to purchase and locate a mobile home as a model on one of the lots, to furnish the mobile home, and for landscaping, utilities, and the installation of a well, septic tank and power pole associated with the lot the mobile home was placed on. Petitioner also incurred the following expenses: $1,452.29 for postage associated with attempting to sell lots; $250.00 for charitable donations; $167.66 in bank account service fees; $2,957.85 for hazard and liability insurance; $36.50 in "miscellaneous" expenses; $2,355.72 for ad valorem taxes; and $510.00 in legal fees. Similar expenses were also incurred in 1993. The evidence failed to prove that Petitioner incurred any expenses or obligations for the development of the Subject Property. Rights That Allegedly Will Be Destroyed. Subsequent to Petitioner's acquisition of the Subject Property, the issuance of the permit to place a mobile home sales model on one of the lots and the acquisition of the mobile home and placement of the mobile home on one lot, the Plan was determined to not be in compliance with the Act. In particular, it was determined that the policies of the Plan which would have permitted lots such as those in Highridge that had not yet been developed to be developed by the placement of a mobile home on each lot caused the Plan to be "not in compliance". Clay County subsequently amended the Plan to eliminate the policies that would have permitted lots such as those in Highridge that had not yet been developed to be developed by the placement of a mobile home on each lot. The Plan was determined to be in compliance on April 27, 1993. As a result of the elimination of the policies pertinent to this matter, Clay County was required to modify the zoning for the Subject Property. The Subject Property was zoned for use for the smallest lot size allowed pursuant to the Plan: one-half acre. As a result of the foregoing, most of the Subject Property lots are too small to be developed individually. Pursuant to the Plan, lots that stand alone may be developed by the placement of a single mobile home thereon. Two of the 66 lots stand alone and, therefore, may be developed by the placement of a single mobile home thereon. The remaining 64 lots of the Subject Property are located in contiguous groups and, pursuant to the Plan, must be combined into one-half acre lots or larger. As a result, the Petitioner will lose the ability to sell some number of his lots for the placement of a single mobile home thereon. The evidence failed to prove what the actual economic impact will be to Petitioner if it cannot sell each lot for use as a single mobile home lot. Petitioner was notified by a letter dated August 24, 1993 and a letter to its real estate broker dated January 24, 1994 and a letter to Mr. Bitetti dated February 2, 1994, of the restrictions on the use of the Subject Property. The letters were all from Clay County personnel.
The Issue Whether Respondent, Department of Transportation, properly denied Petitioners, Sadrudin and Nury Premji, a replacement housing payment, pursuant to Chapter 14-66, Florida Administrative Code, and 49 Code of Federal Regulations, Part 24.
Findings Of Fact Respondent, Department of Transportation, is the state agency which constructs public roadways in the State of Florida. When Respondent acquires land for the construction of federally- assisted roadway projects and takes residential property, Respondent may be required to provide a replacement housing allowance as a part of relocation assistance dictated by state and federal law. Petitioners, Sadrudin and Nury Premji, were the owners of a motel known as the Garden Motor Lodge located in Polk County, Florida, which was condemned in order to construct a federally-assisted road project. The condemnation action resulted in a Stipulated Final Judgement. The Stipulated Final Judgement as to Defendant Karim Motels, Inc., a Florida Corporation d/b/a Garden Lodge Motel f/k/a Red Carpet Inn, entered in Polk County Circuit Court civil action no.: GC-G-98-109, State of Florida, Department of Transportation vs. Karim Motels, Inc., d/b/a Garden Lodge Motel, et al., states, in part: ORDERED AND ADJUDGED that the Defendant, Karim Motels, Inc., a Florida Corporation d/b/a Garden Lodge Motel f/k/a Red Carpet Inn, does have and recover of and from the Petitioner the sum of one million four hundred ninety-one thousand and no/100 dollars ($1,491,000.00) in full settlement of all claims whatsoever, including statutory interest, but excluding attorney's fees, cost and expenses; and it is further ORDERED AND ADJUDGED that this settlement shall be without prejudice to the right of Defendant to claim any applicable benefits to which the Defendant may be entitled under the Petitioner's relocation assistance procedures, as governed by the Uniform Relocation Assistance Act. All relocation claims shall remain separate and apart from this eminent domain action. Defendant shall cooperate with employees and agents of Petitioner by allowing them immediate reasonable access to the property, during business hours, and to assist Petitioner in conducting an inventory of fixtures and personal property (emphasis added). Petitioners had occupied a "manager's residential apartment" in the motel subject to condemnation and met the criteria under Florida Administrative Code Rule 14-66.09 for "carve out" consideration to determine the value of the residential portion relative to the entire taking and relocation assistance eligibility, if appropriate. In December 1997, Respondent's right-of-way specialist, W.P. Kozsey, determined that Petitioners' manager's residential apartment occupied 1,803 square feet of a total of 16,075 of improvements and represented 11 percent of the total improvements. Respondent's initial appraisal for the motel was $740,000. Trade fixtures (value at $34,700) were excluded from the value of the land and improvements. Multiplying the result, $705,300 by 11 percent (residential portion), it was determined that the value of the portion of the motel used by Petitioners for residential purposes was $77,583.00. Respondent determined, through comparable appraisals, that the cost of "decent, safe and sanitary, fundamentally equivalent" "housing in the same geographic area" was $89,000. As a result, Petitioners were entitled to $12,317.00 in "purchase additive payment" (replacement housing payment). The procedure used by Respondent for "carving out" the residential portion of a joint residential/business use follows the methodology set forth in Rule 14.66.009(2)(d) and (e), Florida Administrative Code, and 49 Code of Federal Regulations Sections 24.2, 24.401, and 24.403. Petitioners refused to accept the $12,317.00 in purchase additive payments (replacement housing payment) and proceeded with litigation which resulted in a mediated settlement and the Stipulated Fund Judgement wherein they reserved "the rights to claim any applicable benefits to which the Defendant [Petitioners] may be entitled under Petitioner's [Respondent] relocation assistance procedures " The Stipulated Final Judgement did not allocate value to any elements of the total settlement award and, as a result, Respondent recalculated the residential portion of the total property value by multiplying 11 percent of $1,491,000.00 which gave the residential portion a value of $164,010.00. The new residential value ($164,010.00) exceeded the cost of "decent, safe and sanitary, fundamentally equivalent" housing of $89,000. As a result, the purchase addition payment (replacement housing payment) was reduced to $0.00. Respondent consistently applied this methodology of valuation to other motels with residential "carve outs" and reassessment of purchase additive payments after conclusion of litigation. Petitioners' expert witness, Donald Trask, testified to a valuation basis which, although it provides an enhanced valuation, does not appear to contemplate the methodology set forth in the Florida Administrative Code or the Code of Federal Regulations regarding assessment of the replacement housing cost and determining entitlement to purchase additive payments.
Recommendation It is hereby RECOMMENDED that the Department of Transportation enter its Final Order denying the claim of Sadrudin and Nury Premji for relocation housing payment and dismissing their claim for same. DONE AND ENTERED this 11th day of December, 2000, in Tallahassee, Leon County, Florida. JEFFREY B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2000. COPIES FURNISHED: Jodi B. Jennings, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450 Jon E. Tileston, Esquire Moran, Tileston and Simon, P.A. 4012 Gunn Highway, Suite 175 Tampa, Florida 33624 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450 James C. Myers Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450
Findings Of Fact In 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 Respondent engaged in an unlawful housing practice in violation of Section 760.23, Florida Statutes.
Findings Of Fact Respondent operated Hickory Hill Mobile Home Park where tenants could rent spaces or lots for the placement of their mobile homes. By notice dated August 26, 1993, all tenants were notified of the closure of the park, effective one year from the date of the notice. On Friday, August 26, 1994, Respondent's representative, Patricia Tripp, preparing for the closure of the park, was notifying persons still in the park that their motor vehicles would have to be moved. She "tagged" cars with notices to owners to the effect that the cars must be moved or the cars would be towed after the conclusion of that day. Extensions were given by Tripp to those persons who requested them if their cars were going to be moved within a few days. At least one extension was granted to a white female tenant who informed Tripp that her car would be gone within a specific number of days of the deadline of August 26, 1994. On August 13, 1994, Petitioner, who is African-American and the former lessee of lot 31, purchased the trailer on lot 25 from the lessee of that lot. The lessee of lot 25 subsequently vacated the premises. Following his purchase, Petitioner then moved into the trailer on lot 25 without formally notifying Respondent. Petitioner moved his original trailer from lot 31 and from Respondent's park on August 18, 1994, continuing to reside at the trailer on lot 25. Under provisions of the form lease between Respondent and tenants of the park, tenants were required to park vehicles in the driveway to individual lots. No parking of vehicles on the street was permitted. Additionally, all motorized vehicles were required to meet state legal requirements to be operated in the park. On August 26, 1996, Petitioner still had a number of vehicles in the park, in addition to his newly acquired mobile home. The vehicles included a bus, manufactured in 1950; a 1978 pickup truck; a 1948 Chrysler automobile; and an ice cream truck. Some of the vehicles were not parked on Petitioner's lot. Tripp questioned Petitioner on August 26, 1994, regarding whether the vehicles belonged to Petitioner. Petitioner responded that they did. Tripp told him that the vehicles would need to be moved since the park was closing and informed him of the deadline. The discussion between the two became heated and eventually Tripp, who felt threatened by Petitioner's attitude and actions, left. Petitioner did not request an extension of the deadline with regard to his vehicles. On Monday, August 29, 1994, Petitioner's vehicles had not been towed. Around 2 p.m. in the afternoon, a tow truck arrived accompanied by a law enforcement officer. After verifying that Petitioner's vehicles met legal requirements and speaking with Respondents' representatives at the scene, the law enforcement officer left. None of Petitioner's vehicles were towed away. Petitioner eventually moved from the park on September 12, 1994, and Respondent's threat to tow Petitioner's vehicles was never realized. Petitioner suffered no quantifiable damages. FCHR's Determination Of No Reasonable Cause was issued on April 5, 1996, documenting FCHR's determination of the non-existence of reasonable cause to believe that a discriminatory housing practice had occurred. Petitioner subsequently filed his Petition For Relief on May 10, 1995.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Florida Commission on Human Relations enter a final order dismissing the Petition For Relief. DONE and ENTERED this 4th day of November, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1996. COPIES FURNISHED: Albert Jerome Lee Post Office Box 1232 Hawthorne, Florida 32640 Claude R. Moulton, Esquire Emmer Development Corporation 2801 Southwest Archer Road Gainesville, Florida 32608 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
