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
The Issue The issues are whether Petitioners are entitled to replacement housing payments in connection with Respondent's acquisition of their mother's home, at which both Petitioners also reside, and whether Petitioner Pedro Bofill is entitled to business moving expenses for the business that he operates from his mother's former home.
Findings Of Fact Petitioners are siblings. By permission of Respondent, Petitioners presently reside in a single-family home at 540 Northwest Boulevard in Miami. Once part of a larger neighborhood, Petitioners' home now stands alone, as the other homes have been cleared in preparation for the construction of improvements to the nearby Dolphin and Palmetto Expressways. Until purchased by Respondent, the home at 540 Northwest Boulevard was owned by Petitioners' mother. For at least 20 years, Petitioner Pedro Bofill (Mr. Bofill) has resided in the home, which was divided so that he could live in one section and operate a small retail perfume business, and his mother and one or two sisters could live in the other section of the home. Petitioner Martha S. Bofill (Ms. Bofill) lived in the home up until the early 1990s, when she moved out after becoming married, but she returned a few years later after a divorce. The side occupied by Mr. Bofill has its own exterior entrance, kitchen, and bathroom, and the side occupied by Petitioners' mother and her two daughters has its own exterior entrance, kitchen, and bathrooms. One of Respondent's agents, an employee of Post, Buckley, Schuh, and Jernigan, Inc. (Post Buckley), first observed the home in 1988, as she was preparing the initial public information campaign for the Palmetto Expressway Improvements Project. Respondent identified nearly 40 residences to be demolished and over 80 families to be displaced by the project. On June 25, 2004, the Post Buckley representative knocked on the door of the residence located at 540 Northwest Boulevard. She was met by Mr. Bofill. The representative explained that Respondent would be purchasing this and surrounding homes and asked if they could speak. During their conversation, the representative told Mr. Bofill that the purpose of her visit was to determine the needs of the persons who would be displaced by the road project. Mr. Bofill informed the representative that the residence comprised two separate dwellings: his and that of his mother and sisters. The Post Buckley representative asked Mr. Bofill to complete a survey, and he agreed to do so. As reflected by the completed survey, which was filled out by the representative, pursuant to Mr. Bofill's responses, and signed by Mr. Bofill, Mr. Bofill stated that he paid $150- $250 monthly in utilities and $1200 monthly in "contract rent." He added that he "wants to move into same setting w/mother and continue to have home office." The Post Buckley representative asked to speak with Mr. Bofill's mother, but she was unprepared to receive a visitor. Mr. Bofill did not offer to take the representative to the other side of the house. However, he provided the information to the representative so she could complete a survey for Mr. Bofill's mother. This survey discloses that Ms. Bofill lives with her mother, the mother is retired, and Ms. Bofill is unemployed, as she is a student. This form indicates that Mr. Bofill pays for the utilities for both sides of the house. From this information, Post Buckley prepared a Needs Assessment Survey Report. This document helped Respondent determine the number of impacted families, the existence of any special needs, and whether sufficient properties in the market were available to accommodate the displaced persons. In September 2004, Post Buckley notified Petitioners' mother of the acquisition and relocation program that was now underway. The notification informs the homeowner of the right to obtain an independent appraisal, at Respondent's expense. On the same date, Respondent sent a letter to Petitioners' mother informing her of the process, including her entitlement to full compensation for the property acquired by Respondent and relocation assistance benefits. Although Petitioners are bilingual, their mother speaks only Spanish. The Post Buckley representative is bilingual, and the two letters sent to Petitioners' mother in September were sent in English and Spanish. By letter dated July 14, 2005 (English only), Respondent conveyed an offer to purchase the fee simple interest in the property owned by Petitioners' mother for $340,000. This is the acquisition payment and does not include relocation assistance, such as a replacement housing payment, which is described in greater detail below. A separate letter in English bearing the same date informed Petitioners' mother of her right to receive a replacement housing payment, if, among other things, "a comparable replacement dwelling costs more than the amount you are paid for your current dwelling." On August 11, 2005, the Post Buckley representative updated the surveys by forwarding them to the attorney of Petitioners' mother, as the attorney had asked the representative not to contact his client. The information did not change from the earlier surveys. On October 6, 2005, the Post Buckley representative and two representatives of Respondent met at the attorney's office with Mr. Bofill's sister. The meeting lasted 30-45 minutes and addressed the special needs of Petitioners' mother, such as that she required an outside walkway to reduce the risk of falling in the yard and needed to live near a hospital due to her age and medical condition. At this point, Post Buckley and Respondent assessed the information available and determined that Respondent should pay a single housing replacement payment to Petitioners' mother and no housing replacement payments to Petitioners. The available information was not limited to Mr. Bofill's survey response concerning his intent to relocate with his mother. Post Buckley and Respondent were aware that Petitioners, as adult children, had lived with their mother for many years, their mother was in poor health and living on a fixed income, Ms. Bofill has not been employed at anytime during this matter, and Mr. Bofill pays all of the utilities at the residence. Concluding from these circumstances that it was unlikely that Petitioners would establish separate residences from their mother, Respondent justifiably interpreted the absence of a request for separate residential housing payments from either Petitioner as evidence that they would continue to live with their aged mother. The decision of Respondent to proceed with a single housing relocation payment was further justified by later events. On November 15, 2005, a representative of Respondent spoke with Mr. Bofill by telephone about the effect of the payment of a separate housing relocation payment to him and his sisters, in terms of reducing the payment to their mother. Mr. Bofill said that he and his sisters would not pursue separate housing relocation payments. On December 1, 2005, Respondent signed a Statement of Eligibility for Supplementary Replacement Housing Payment for Owner (Statement of Eligibility). The Statement of Eligibility states that Petitioners' mother is eligible for a replacement housing payment of $120,000, based on the difference between the $460,000 cost of comparable replacement housing and the $340,000 acquisition price. By letter dated December 16, 2005, Petitioners' mother rejected the comparable replacement housing used in the December 1 letter, noting, among other things, that she lived solely on her Social Security payments of $550 per month and suggesting that comparable replacement housing would need to be in the range of $600,000 to $750,000. The clear implication of this letter, given the disparity between the mother's annual income of about $6000, and the substantial costs of maintaining a house in this price range, in terms of property taxes and utilities, for instance, was that she would continue to receive assistance from her children, who had lived with her, paid some rent, and helped her with the activities of daily living. By Revised Offer and Purchase Agreement, signed by Post Buckley and Petitioners' mother on December 22, 2005, and accepted by Respondent on March 8, 2006, Respondent agreed to acquire the home for $411,400. By Replacement Housing Payment Computation Explanation of the same date, Respondent's Relocation Project Manager stated to Respondent's Relocation Administrator that the home contained only one residential dwelling, the acquisition price would be $411,400, the selection of the proper comparable--with similar square footage and number of rooms to the acquired property--resulted in a replacement housing payment of $123,600, so that Respondent would pay Petitioners' mother an additional $123,600 in the form of a replacement housing payment. Petitioners' mother signed a new Statement of Eligibility--in both English and Spanish--on the same date, reflecting these new figures. The closing eventually took place on March 13, 2006. According to a letter written by Ms. Bofill, in February 2006, she learned that Respondent would pay a single housing relocation payment to her mother. She retained an attorney. Four days prior to the closing, she met with two representatives of Respondent and complained about not receiving any housing relocation payments. At the closing, the attorney sat with Ms. Bofill and her mother and explained each of the documents that she was signing, and at no time did Petitioners' mother indicate an intent not to proceed with a single housing relocation payment, payable to her. Respondent's finding of a single household is probably based on the extent to which Petitioners' mother and Petitioners necessarily pooled their resources to pay for basic necessities. However, the configuration of the home suggests separate households, so this Recommended Order will treat the home as comprising two households (although the ultimate result is the same under either analysis). One household was occupied by Mr. Bofill and the other was occupied by Petitioners' mother and her two daughters. However, neither Petitioner was entitled to a separate replacement housing payment under the present facts. As noted above, Mr. Bofill affirmatively stated his intent to relocate with his mother, and Respondent reasonably inferred the same intent by Ms. Bofill, based on the financial circumstances of her and her mother, their prior history of living together, and Ms. Bofill's failure to take affirmative action to claim a separate housing replacement payment until after the closing, at which Respondent obligated itself to pay a single such payment to Petitioners' mother. For the reasons explained below, Respondent's failure to pay a separate housing relocation payment to Mr. and Ms. Bofill was thus proper.
Recommendation It is RECOMMENDED that the Department of Transportation enter a final order denying the requests of Petitioners for housing relocation payments and business moving expenses. DONE AND ENTERED this 11th day of May, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 May, 2007. COPIES FURNISHED: James C. Meyers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Interim Secretary Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Susan Schwartz Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Martha S. and Pedro Bofill 540 Northwest Boulevard Miami, Florida 33126
The Issue Whether Respondent, Whitehall Enterprises, Inc., d/b/a Villas Des Chenes, discriminated against Matthew Les Foris, deceased, on the basis of his race in violation of 42 U.S.C. Section 3604(a) and/or (b), and Sections 70-77 and 70-176, Pinellas County Code, by not renewing Les Foris’ lease when it expired.
Findings Of Fact Matthew Les Foris, the complainant in this case, was an African-American male and a member of a protected class. Following initiation of the proceedings before the Commission, he passed away on August 23, 2003. Les Foris' granddaughter, Crisella Winder, was appointed as personal representative of his estate, and she was substituted as Petitioner in this matter. Respondent, Whitehall Enterprises, Inc. ("Whitehall or Respondent"), rents dwelling units to the public at various apartment communities in the Clearwater, Florida, area. Among others, Whitehall operates a 38-unit apartment community commonly known by the name Villas Des Chenes Apartments ("Villas Des Chenes"). These units are rented to adults over the age of 55 on a yearly lease basis. Maxine Chartier is general manager and vice-president of Whitehall. She has held this position since 1998, and prior to this position, worked as an assistant to Whitehall’s general manager. James Yopp is the property manager at Villas Des Chenes, as well as at four of the other Whitehall properties in the Clearwater area. He has held this position for about six years, and prior to this position, worked as a maintenance man for the Whitehall properties. He has attended fair housing training. Whitehall does not have a written policy regarding renewals or non-renewal of leases. It does not keep records of incidents at its properties. However, there were regular practices regarding renewals. At Villas Des Chenes, there are fair housing posters in the office and the laundry room describing fair housing practices. They were present when Les Foris lived there and are presently still on display. It was Yopp’s practice to visit Villas Des Chenes on an almost daily basis. He would talk with Chartier nearly every day, reporting events and problems, as needed. The two would discuss what problems there were and, where possible, reach resolutions. Chartier had a process she used in determining when to non-renew a tenancy. She would consider whether there had been problems in the previous year and consider what would work best for the property. Factors considered by Chartier included whether the tenant was unhappy and "bad-mouthing" the company, mistreating staff, getting along with others, doing damage, paying rent late, or an accumulation of those factors. She would rely on what was reported to her by the property manager and her own observations, if any. The ultimate decision to non- renew a tenancy rested with her. On November 13, 2000, Les Foris applied for an apartment at Villas Des Chenes. Yopp accepted the application, along with Les Foris’ advance payment of $200.00. The application was approved, and Les Foris and Respondent entered into a lease for a one-year term commencing December 1, 2000, and ending November 30, 2001. The leasing procedure for Les Foris was the same as that used for other tenants. Approximately 30 days prior to the end of the initial lease’s term, Yopp offered to renew the lease for another one- year term. Yopp and Les Foris signed a renewal on November 30, 2001. Under the terms of the renewal, the lease term was to end on November 30, 2002. Neither the lease nor the renewal provides for an automatic renewal of its terms. Beginning sometime in May 2002, management noticed problems involving Les Foris’ tenancy. In May 2002, Yopp received a call from a tenant who reported that Les Foris was upset with another resident. Yopp subsequently talked with Les Foris, and he complained about an upstairs neighbor on two occasions. Yopp could see no evidence of the causes for the complaints by Les Foris. A couple of days later, Les Foris complained again about the same neighbor. This time, Les Foris threatened to harm the neighbor. Yopp told Les Foris that such conduct by Les Foris would be inappropriate. Although Yopp had handled numerous tenant squabbles during his career as property manager, in none of them had a tenant threatened to harm someone. However, after this incident, Les Foris and the neighbor had no further problems. Subsequently, the neighbor moved out of the complex for unrelated reasons. In addition, Les Foris repeatedly parked his car in spaces not reserved for him. On an almost daily basis when he was not working, Les Foris would park his car in spaces reserved for other tenants. The tenants would call Yopp, who would then ask Les Foris to move the car. Les Foris would then return his car to his proper parking space. The next day, the scenario would repeat itself. Les Foris would explain that he was moving his car so that it could be in the shade. Yopp told Les Foris that such conduct was inappropriate. Yopp testified that he received complaints from two residents about Les Foris. The complaints were from Ruth Poetter and Carmella Eichen. Each of the women complained that Les Foris made them feel uncomfortable, without offering greater explanation. It was a customary practice for many of the residents at Villas Des Chenes to sit outside their units at tables and chairs. Poetter followed this custom. About the time of her complaint to Yopp, Yopp observed that Poetter ceased sitting outside. When Yopp visited the property, Les Foris would complain about Whitehall. Ralph Agliano, a former tenant of Villas Des Chenes, testified that Les Foris would routinely complain about things, and Agliano would attempt to explain them. Yopp reported all problems, including those involving Les Foris, to Chartier. On or about September 15, 2002, Yopp delivered a notice to all tenants, including Les Foris, regarding proposed rent increases that management intended to implement beginning in December 2002. The delivery of that notice was not triggered by the end date of any tenant’s lease and was not an offer to renew. As of September 15, 2002, when the notice about proposed rent increases was delivered to all tenants, no decision had yet been made to renew or not renew Les Foris’ lease. Yopp and Chartier subsequently discussed whether to renew Les Foris’ lease. Chartier decided that, based on the complaints relayed to her about Les Foris in the preceding months, Les Foris' lease would not be renewed when it expired at the end of November 2002. Chartier felt that it was not in the best interest of Whitehall to continue with a tenant who was unhappy with the company, made a threat to harm another tenant, and who made other residents uncomfortable. She did not want the residents of Villas Des Chenes to be afraid. It was an accumulation of things that formed her decision. This process by Chartier, as applied to Les Foris, was the same as that which she used for others. Yopp prepared and issued a notice of non-renewal to the tenant. The notice did not set forth a reason for the non- renewal. Yopp admitted that other tenants also parked in parking spaces other than those assigned to the tenant. In addition, it is anticipated that other tenants have disputes with their neighbors. In the six years Yopp had been property manager at the complex, no residents were non-renewed specifically for either reason. When Les Foris received the notice, he became upset. He asked Yopp to explain the reason for the decision. Yopp declined to give an explanation. In the year that Les Foris received his notice of non-renewal, Yopp delivered notices of non-renewal to three other tenants. In none of them did Yopp give a reason for the non-renewal. The notice of non-renewal given to Les Foris did not differ in form or substance from that used for other tenants. Les Foris spoke with Chartier by phone about the non-renewal. Les Foris asked Chartier the reason for the non-renewal. Chartier also declined to give one stating that she was not required to give a reason. At the hearing, Chartier explained that it was her practice not to explain the reasons for non-renewals. Because the lease did not require a reason, she did not offer one. Discussions about the reasons for non- renewal often lead to arguments and to Chartier, they serve no purpose. During the phone conversation, Les Foris requested reconsideration and, if that failed, then additional time to find a new place to live. He explained to Chartier that he lacked funds and had no one to help him move. Chartier offered to allow some extra time to remain on the premises and to make an early refund of the security deposit. Chartier returned the security deposit to Les Foris by way of a letter dated November 15, 2002. Les Foris filed his complaint of housing discrimination on November 7, 2002. Chartier learned of it after sending him the November 15, 2002, letter. Les Foris moved out of Villas Des Chenes in November 2002. Winder had lost touch with her grandfather for sometime and had "found" him only about two years prior to his death. At the time she formed a bond with Les Foris, he was a tenant at Villas Des Chenes. Les Foris was happy there because he resided close to Winder and her children and was within walking distance of the grocery store where he worked part-time. Winder testified that when Les Foris was informed of the non-renewal, he became upset. He expressed to her his distress at being made to move. However, she helped him find a new apartment and helped him move. Winder found movers and paid them on Les Foris' behalf. She also arranged for storing his property in a commercial facility. The move cost less than $400.00. The rent was higher at the new complex, where Les Foris lived for just a few months before becoming ill. Winder saw her grandfather regularly after he received the non-renewal notice. He frequently called her after having anxiety problems at his new apartment. Les Foris was disoriented about the location of items in his new apartment. He was definitely inconvenienced by the move. He was also humiliated and ashamed in front of his neighbors for being forced to move out. His daily routine was disrupted, and he was unable to make friends at the new complex.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Administrative Law Judge will enter a final order dismissing Petitioner, Crisella Winder, as the Personal Representative of the Estate of Matthew Les Foris’ Petition for Relief for failure to prove a case of housing discrimination against Respondent, Whitehall Enterprises, Inc., d/b/a Villas Des Chenes, after the period for submission of exceptions has expired. DONE AND ENTERED this 17th day of December, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 17th day of December, 2004. COPIES FURNISHED: Leon W. Russell, Human Rights/EEO Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue Fifth Floor Clearwater, Florida 33756 W. Oliver Melvin, Compliance Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue Fifth Floor Clearwater, Florida 33756 Matthew P. Farmer, Esquire Farmer & Fitzgerald, P.A. 708 East Jackson Street Tampa, Florida 33602 Lynn Hanshaw, Esquire Gulfcoast Legal Services 314 South Missouri Avenue, Suite 109 Clearwater, Florida 32756 Cathy L. Lucrezi, Esquire Law Offices of Heist, Weisse & Lucrezi, P.A. 1661 Estero Boulevard, Suite 20 Post Office Box 2514 Fort Myers Beach, Florida 33932
