Findings Of Fact Negotiations for the purchase of right-of-way property for construction of Interstate Highway 95 in Palm Beach County, Florida, began on May 1, 1973. On that date the Applicant lived in an apartment at 27 S.W. 15th Avenue, Delray Beach, Florida with Ms. Willie Hendley, and seven children. The Applicant and Ms. Hendley began living together in approximately 1968. Ms. Hendley had five children at that time. The Applicant and Ms. Hendley had two more children between 1968 and 1973. This residence was located within the highway right-of- way. The Applicant was notified by the Agency that it would be necessary for them to relocate. The applicant, Ms. Hendley, and the seven children moved to a house at 230 N. W. 13th Avenue, Delray Beach, Florida, in approximately August, 1973. The Agency found the new living quarters inadequate under the regulations of the Federal Department of Transportation, which require that replacement housing must be decent, safe, and sanitary. An agent of the Agency informed the Applicant that in order to receive relocation benefits, the new residence would need to be made decent, safe, and sanitary, or the family would have to move to a new location that would meet the requirements. Several months after they moved to the house on N.W. 13th Avenue, the Applicant and Willie Hendley separated. The Applicant moved out of the house, and found a home on N. E. 9th Avenue. He anticipated that Ms. Hendley and the children would move into this home, but they did not. The Applicant stayed at this address for approximately one month. He then moved into a room at his sister's home where he stayed until the end of 1975. After they separated, Ms. Hendley and the children moved into a residence at 917 S. W. 3rd Ct., Delray Beach, Florida. This residence met the requirements of the Department of Transportation, and Ms. Hendley received relocation assistance benefits. The Applicant and Ms. Hendley and the seven children were displaced from their residence at 27 S. W. 15th Avenue, Delray Beach, Florida, as a result of the acquisition of right-of-way for Interstate Route 95. The Applicant was later displaced from the family household as a result of his separation from Ms. Hendley. There was no evidence offered at the hearing that the Applicant moved into living quarters that were comparable to the quarters at 27 S. W. 15th Avenue. That was a two bedroom apartment. The Applicant moved into a single room. The Applicant's displacement was in effect the result of his separation from Ms. Hendley, rather than the result of the acquisition of right-of-way.
Findings Of Fact At all times material hereto, respondent was licensed as a registered building contractor having been issued license number RB 00034797 by the State of Florida (see Petitioner's Exhibit 1). On or about January 11, 1982, respondent entered into a contract with Emil and Agnes Gerlt to construct a residence to be located at Singletary Road in Sarasota, Florida. The contract price was $57,420. The home construction agreement was to be part of a trade agreement between the contractor, the respondent, and the Gerlts. Under the terms of the trade agreement, respondent was to receive the Gerlts' existing home, located at 3376 South Seclusion Drive, Sarasota, Florida, in trade for constructing the Gerlts' home. The home was to be completed within one hundred fifty (150) days (see petitioner's Exhibit 6 and Transcript, page 105). By an addendum to the Home Construction Agreement executed by respondent and the Gerlts, the parties to the agreement further agreed that the contract price, $57,420.00, was to be paid as follows: $ 5,742.00 or 10 percent as a down payment $ 5,742.00 or 10 percent when slab is poured $ 8,613.00 or 15 percent when walls are up $14,355.00 or 25 percent when sub roof is on $14,355.00 or 25 percent when drywall is completed $ 8,613.00 or 15 percent when building is completed (see petitioner's Exhibit 6). Emil and Agnes Gerlt had contacted the respondent about construction of a new home through a newspaper ad placed in the Sarasota Herald Tribune. In the ad, respondent had offered to build residences in exchange for the purchaser's existing home. At the time, the Gerlts had been attempting to sell their existing home for some time without success. Mr. Gerlt's health required the relocation from the Gerlts' existing home, a multilevel home, to a single story home. After the Gerlts discussed their requirements with the respondent, a contract was drawn up by the respondent. The Gerlts submitted the contract to their attorney, Robert Johnson, and upon obtaining Johnson's approval, signed the Home Construction Agreement noted above. (See Transcript, pages 28-29). In or about February, 1982, Emil and Agnes Gerlt entered into a trade agreement with respondent to transfer the Gerlts' Seclusion Drive residence to Green. The agreement was subject to the construction, by respondent, of the Gerlts' new home on Singletary Road, in Sarasota County, Florida. As part of the agreement, respondent was to actively seek to sell the Seclusion Drive property. The first $70,000 received from the sale of that property was to go to the Gerlts. Respondent was to receive a 6 percent commission. Any amounts remaining were to go to the Gerlts. If respondent was unable to sell the Seclusion Drive property prior to June 30, 1982, or the date of occupancy for the Singletary Road residence, whichever occurred first, the Seclusion Drive property was to be the sole property of respondent subject to payment in the amount of $70,000 to the Gerlts. (See respondent's Exhibit 1). After the Gerlts and respondent signed the above described agreement, M. Daniel Poling, Nancy Poling and Ethel E. Weathers (Mrs. Poling's mother), came by the Seclusion Drive property, without an appointment, and asked if they could see the residence. Mrs. Gerlt showed the Polings and Weathers the home and then referred them to respondent as the person handling the sale of the home. (See Transcript, pages 37-38). After the Polings and Weathers contacted respondent, respondent drew up a Contract for Sale of Real Estate, dated February 4, 1982, whereby Ethel Weathers was to sell her residence to the Gerlts for the sum of $54,000. At this point a three-way trade was anticipated between the parties. The Gerlts would obtain Weathers' property as well as an additional cash payment in exchange for their own property which would be transferred to the Polings and Weathers. Then the Polings and Weathers' residence, located at Bouganvillea Street, in Sarasota, Florida, would take the place of the Seclusion Drive property in the transaction for construction of a new home between the Gerlts and respondent. The Contract for Sale of Real Estate, dated February 4, 1982, was never fully executed, because Robert Johnson, the Gerlts' attorney, did not approve the agreement. (See petitioner's Exhibit 10 and Transcript pages 109- 110). Subsequent to the time the February 4, 1982 Contract for Sale of Real Estate was prepared, Robert Johnson, as the Gerlts' attorney, prepared another Contract for Sale of Real Estate which was fully executed by the parties. The contract provided that the Gerlts would sell their Seclusion Drive property to the Polings and Weathers for the sum of $84,000. As a special condition of the contract the Polings and Weathers were to execute a Mortgage and Promissory Note in the sum of $42,000, at 15 percent per annum, on Weathers' residence located on Bougainvillea Street, Sarasota, Florida, in favor of the respondent and the Gerlts. In the event that the Mortgage and Promissory Note was not paid off by April 17, 1982, the Polings and Weathers would deed their Bougainvillea property to Green and the Gerlts as a $42,000 credit on the contract. (See petitioner's Exhibit 8). The contract described immediately above further provided that the closing should-occur on the entire transaction on April 17, 1982. However, the Polings and Weathers would remain in the Bougainvillea residence, and the Gerlts would remain in the Seclusion Drive residence until ten days after the respondent obtained a certificate of occupancy for the construction being performed on the Gerlts' Singletary Road residence. Upon completion of the Singletary Road residence the Gerlts were to either assign their interest in the mortgage or quit claim their interest in the Bougainvillea residence to James A. Green. (See petitioner's Exhibit 8). As compensation for his services in the transfer, Green received a transfer fee in the amount of $5,000. (See petitioner's Exhibit 9). On or about March 22, 1982, respondent applied for and obtained a building permit from the Sarasota County, Florida Building and Construction Department for the construction of the Gerlts' new residence at 16700 Singletary Road, in Sarasota County, Florida. (See petitioner's Exhibit 5). In April, 1982, respondent began to perform work on the Gerlts' new home. (See Transcript, page 47). On May 21, 1982, the Gerlts executed an Adjustable Mortgage Loan Note in the amount of $42,000 plus interest, at the rate of 15.75 percent per annum, in favor of Amerifirst Federal Savings and Loan Association. The mortgage was secured by the property located at 2304 Bougainvillea Street. The proceeds of the loan were to be used to pay for the construction of the Gerlts' new home. Under the terms of the original agreement between respondent and the Gerlts, dated February 1982, respondent was to pay all costs related to the financing of construction and he was to hold the Gerlts harmless from said construction mortgage and payments due thereon until the contract was fully completed. (See petitioner's Exhibits 4 and 8, respondent's Exhibit 1 and Transcript pages 48 and testimony of Robert Johnson). Although respondent made one payment of $1,669.02, on October 22, 1982, that check was dishonored and respondent made no further payments on the mortgage for the Bougainvillea property held by Amerifirst Savings and Loan Association. Under the terms of the Adjustable Mortgage Loan Note executed by the Gerlts, mortgage payments were to be made in monthly payments of $556.34 each. (See petitioner's Exhibit 4). Between approximately June 4, 1982 and December, 1982, respondent received the following payments from the Gerlts totaling $33,912: DATE AMOUNT June 4, 1982 $11,484 June 22, 1982 $ 8,613 June 23, 1982 $14,355 Unknown $14,355 (see petitioner's Exhibit 13 and Exhibit 12 and testimony of Johnson) In addition to the amounts noted above, respondent received payment for the following changes or "extras" in construction of the Gerlts' home: DATE AMOUNT WORK PERFORMED June 4, 1982 $ 250.00 Rough-in shower in workroom June 4, 1982 $2,250.00 Complete Porch Sept.3, 1982 $ 98.75 Change kitchen window from awning to slider Sept.3, 1982 $ 35.00 Change present kitchen window TOTAL $2,633.75 In addition to the changes or "extras" in construction noted above, respondent was to perform the following changes or "extras" in construction of the Gerlts home: The front porch area was removed making the front of the house straight across at no extra cost. The cabinets in the kitchen were changed. One set of cabinets and a countertop was changed to eighteen inches and another set was changed to twenty-four inches. There was also a change in the placement of the refrigerator. The Gerlts were to pay for this change. Completion of the shower in the workroom, at owner's expense. The family room was enlarged by two feet six inches resulting in two additional sheets of paneling, at owner's cost. There was an increased amount of tile in the guest bath area resulting in an additional cost of $18.00. The owners selected a more expensive tile for the master bathroom than specified in the contract specifications. The Gerlts were to pay Green $30-$40 to install the more expensive tile. The contractor was no longer obligated to furnish or install the floor covering or carpet. Therefore, the owner was to receive a $3,450 credit on the contract price. (See petitioner's Exhibit 26 and Transcript, pages 59 and 95-98). In approximately August 1982, a dispute arose between the Gerlts and respondent over the extras on the Gerlts new residence. The disputed items included the cost of renting an electric generator for one month, at a cost of $366.30. The Gerlts did not want to pay the rental fee because they had intended to furnish a generator for the project. At the time, Mr. Gerlt worked for a person who owned a distributorship and could easily have obtained a generator for the project. (See Transcript, page 92 and petitioner's Exhibit 21). Respondent asserted that there was a change in the fireplace which resulted in an increased cost on the Gerlts' project. From the beginning, both the Gerlts and the respondent had agreed that the fireplace was supposed to be placed directly on the slab. On March 18, 1982, the Gerlts sent respondent a letter confirming this fact. The respondent constructed the fireplace on a raised hearth and then attempted to charge the Gerlts for the cost of returning the hearth to its original position. (See Transcript, pages 61 and 98). On or about August 10, 1982, Overhead Door Company of Sarasota furnished two garage doors which were used in construction of the Gerlts' Singletary Road residence. The doors were furnished pursuant to an agreement with the respondent. Under the terms of his agreement with Overhead Door Company of Sarasota, respondent was to pay for the doors within thirty days of the invoice date. Inasmuch as respondent failed to timely pay for the doors, Overhead Door Company of Sarasota filed a Claim of Lien in the amount of $514.50 against the Gerlts' property. (See petitioner's Exhibits 17, 13, and 19, and Transcript, pages 76-82 and 132) The dispute between the Gerlts and Green brought work to almost a completed halt. After the receipt of the $14,355 payment due upon completion of the drywall, respondent did little work on the project. Eventually, Green hired an attorney, Frank Calabrese, to represent him in the dispute. On September 2, 1982, the parties and their attorneys met at the job site in an attempt to resolve the dispute. As a result of that meeting, the parties verbally agreed to the items which were changes or extras. The only items designated as changes resulting in an additional cost, to be borne by the Gerlts, were the shower in the workroom, cabinet changes, the additional paneling in the family room, and the changes in amount and quality of tile used in both the guest and master bathrooms. (See petitioner's Exhibit 26 and testimony of Johnson). Nothing was done on the project, despite the agreements of the Gerlts and respondent made on September 2, 1902. Although respondent had agreed to make certain corrections in the home, he did not do so. Finally, at this time the Gerlts discovered that respondent had made no payments on the Amerifirst Savings and Loan mortgage. Therefore, Robert Johnson wrote a letter to respondent's attorney, Calabrese, in attempt to obtain some satisfaction of the problems aforementioned. (See Transcript pages 116-117, 122 and petitioner's Exhibit Number 23). On September 20, 1982, the respondent wrote a letter to Robert Johnson wherein he stated that it was impossible to complete the Gerlts' home until two problems were resolved. Specifically, respondent wanted some written resolution of the amounts to be paid by the Gerlts for extra tile and the extra kitchen cabinets. Respondent further stated, falsely, that Interior Installation, from whom the original cabinets had been ordered, refused to build the cabinets because Mrs. Gerlt had threatened to sue the owner of Interior Installation. Respondent also asserted that the contract between the Gerlts and respondent was breached when the Gerlts refused to pay for the generator on the job. Finally, respondent said that the owners had requested additional outlets which had been installed, but for which the electrician had not been paid. (See petitioners Exhibit 24). In response to this letter from Green, Johnson drafted a letter to Calabrese, on October 4, 1982, on behalf of the Gerlts. By the letter, Johnson agreed to hold the extra amount owing because of changes in amount and quality of tile used on the Gerlts' home until completion of the job, at which time respondent would receive payment. Johnson denied categorically respondent's statements about Interior Installations. Interior Installations agreed to do the work if payment was made in advance. The Gerlts agreed to pay Interior Installations the cost of the cabinet changes. Finally, Johnson indicated that the generator problem could be dealt with in the final resolution of the contract. (See petitioner's Exhibit 25). At this time, respondent already had one other project where respondent had failed to pay Interior Installations for work performed. At the time, he was sixty days late in payment for that project. Inasmuch as Interior Installations was also aware of the conflict between the owners and contractor, they requested full payment prior to beginning the work. They did not receive payment and, therefore, did not do the work. There was no evidence that the Gerlts had threatened to sue the company. Subsequent to this time, a judgment was obtained against respondent for the full amount owing on the other project. (See Transcript, pages 84). On October 14, 1982, respondent talked with Robert Johnson and told him that respondent would order the cabinet work on October 14, 1982, and that the work would be done within two weeks. Respondent told Johnson that he would deliver the Gerlts' house for occupancy by November 4, 1982. Respondent also agreed to attend to the deficit with the Amerifirst Federal Savings and Loan Association Mortgage by October 15, 1982. (See petitioner's Exhibit 27 and Transcript, page 22). Despite his assurances, respondent did not complete those items which he told Johnson he would complete. Respondent did make one payment, by check dated October 18, 1982, to Amerifirst Savings and Loan Association of $1,669.02. However, the check was returned marked "insufficient funds". (See petitioner's Exhibit 4 and Transcript, pages 122-123). On October 28, 1982, Johnson again talked with the respondent. The respondent told Johnson that the paneling in the family room was supposed to be done that day. Respondent also told Johnson that the tile person was supposed to be at the job site that day. Respondent said that Amerifirst Federal Savings and Loan would be paid $1,660. Respondent further stated that he had hired R & M Cabinets to do the cabinetry work on the Gerlts' home. (See Transcript, page 124). Again respondent's promises were not fulfilled. Furthermore, when Johnson called R & M. Cabinets about the cabinetry work on the Gerlts' home, the company requested payment in advance before the work was performed. (See Transcript, page 124). On November 1, 1982, Johnson again spoke to Green about the construction of the Gerlts' residence. Respondent told Johnson that he would have to hire another bricklayer immediately and that the job would be finished by the following Wednesday. (See Transcript, page 124). Again the respondent did not do what he told Johnson he would do on the Gerlts' home. (See Transcript, page 124). On November 24, 1982, the Pollings and Weathers served an eviction notice on the Gerlts, who still resided in their Seclusion Drive residence. Although the Polings and Weathers had agreed to stay in their Bougainvillea residence until 10 days after a certificate of occupancy was issued on the Gerlts' new home, and to allow the Gerlts to remain in their Seclusion Drive residence until the same date, this was with the understanding that the Gerlts' new home would be finished by July, 1982. (See Transcript, page 125 and testimony of Mrs. Gerlt). After the Gerlts received the eviction notice, they contacted Robert Johnson who, in turn, contacted the respondent. According to respondent, the bathroom and the kitchen cabinets were ordered and would be installed by December 8, 1982. By December 10, 1982, the plumbing, air conditioning and cabinetry would be finished. Finally, respondent told Johnson that a certificate of occupancy would be issued by December 15, 1982 for the Gerlts' home. (See Transcript, page 126). On December 8, 1982, respondent told Johnson that the cabinetry in the Gerlts' home would be done by the following Wednesday. Again, however, the respondent failed to perform as promised. (See Transcript, page 127). Although attempts were made to delay eviction, the Gerlts were evicted from their home on December 16, 1982. (See testimony of Mrs. Gerlt). On December 17, 1982, Johnson wrote respondent a letter telling him to finish the Gerlts' home or to be prepared to deliver a cashiers' check. (See Transcript, page 127). On or about December 17, 1982, Generation Electric, Inc., filed a "Claim of Lien" against the Gerlts' Singletary Road property for electrical wiring performed on that residence between June 16, 1982 and December 14, 1982, pursuant to an agreement with the respondent. The Claim of Lien was for the sum of $852.50. (See petitioner's Exhibit 16). Respondent performed no further work on the Gerlts' home. Respondent furnished no notice to the Gerlts or their attorney of his intent to stop work on the Gerlts' home. (See testimony of the Gerlts and Johnson). The Gerlts assumed the completion of the construction project on or about January 14, 1983. At the time respondent ceased work on the Gerlts' home, the construction was only a little over 50 percent completed. The kitchen was not begun; the bathrooms were not begun, with the exception of one bathtub in one bathroom; there was no septic tank; and there was no heat or air conditioning installed in the Gerlts' home. (See Transcript, pages 23-24, 55 and 102). It cost the Gerlts approximately $10,611.60 in labor and materials to complete their home. Mr. Gerlt performed most of the actual work himself. (See Transcript, pages 63-64). At the time respondent ceased work on the Gerlts' property, the mortgage on the Bougainvillea property was in default. Respondent had made no payments on that mortgage even though payments were past due. The Gerlts had to satisfy the mortgage on the Bougainvillea property. (See petitioner's Exhibit 4 and testimony of Mrs. Gerlt).
Recommendation Based on the foregoing findings of Fact and Conclusions of Law, it is recommended that respondent's registered building contractor's license be suspended for a period of three (3) years. RECOMMENDED this 31st day of August, 1984 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1984 COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James A. Green 624 47th Street West Palmetto, Florida 33561 James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether the Florida Commission on Human Relations should grant the Petition for Relief alleging that the Respondent discriminated against the Petitioner on the basis of his marital status, in violation of Section 760.10, Fla. Stat. (1995).
Findings Of Fact The Respondent, Shaker Lakes Apartments Company d/b/a Seasons of Tampa, Limited, is a property management company whose principal place of business is in Cuyahoga County, Ohio. The Respondent owns real property or conducts business in Florida and has 15 or more employees. The Petitioner, Jerry Dolinger, was hired by the Respondent on or about August 14, 1989, as a maintenance supervisor at a starting pay of $12,000 a year. On or about May 1, 1991, the Petitioner was promoted to district manager at an annual salary of $20,541.57 ($395.03 per week), plus hospitalization benefits and the use of a company car. By the end of 1992, the Petitioner was demoted to maintenance supervisor, but his salary and benefits remained the same. The Petitioner's wife, Karen Dolinger, also was employed by the Respondent, as property manager for Seasons of Tampa, Limited. On or about April 1, 1993, the Petitioner's wife resigned due to disputes with and conduct of the Respondent's vice-president of operations, Jacqueline McCullough. Upon her resignation, she distributed a letter to all residents of the apartment complex giving the residents information concerning the change in property management and the names, addresses and telephone numbers of the Respondent's management personnel in Ohio. The Respondent did not wish to have the names, addresses and telephone numbers of the Respondent's management personnel in Ohio given to the tenants at Seasons of Tampa. The Respondent wished to have those individuals remain unknown to the tenants so all tenant complaints and similar issues would have to be resolved locally through the property manager and district manager. On or about April 2, 1993, Jacquelyn McCullough telephoned the Petitioner and asked whether he had any knowledge of his wife's letter to the tenants. The Petitioner denied any knowledge and in fact had no such knowledge. She asked if the Petitioner also intended to resign, and the Petitioner answered that he did not. Later on April 2, 1993, the Respondent terminated the Petitioner's employment. One of the reasons given for the termination--an alleged temporary staff reduction--was a pretext. (Within days of the Petitioner's termination, the Respondent hired someone to take the Petitioner's place as maintenance supervisor.) The other reason--alleged insubordination and disloyalty--was based on the Respondent's belief that the Petitioner knew about and participated in the letter to the tenants. But the only basis for this belief was the Petitioner's marital status. Since there was no evidence to support the Respondent's belief, the basis of the Petitioner's termination was his marital status. The Petitioner was unable to find reemployment until approximately June 11, 1993. However, his new employment was at a salary of only $17,000 a year, a reduction of $68.11 a week. The Petitioner suffered this reduction in salary until November 5, 1993, when he obtain employment at a salary higher than what he earned with the Respondent, together with hospitalization benefits and the use of a company car, for a total of salary loss during this period of $1,430.31. The Petitioner's loss of use of the Respondent's company car from April 2 through November 5, 1993, cost him monetary damages of $295 a month for replacement transportation, or approximately $2,100. (The Affidavit of Petitioner's damages incorrectly multiplies the monthly expense by 31 weeks, resulting in an incorrect alleged total loss of $9,145.) In order to redeem the second mortgage on the Petitioner's home, which went into default as a result of the loss of the Petitioner's salary, the Petitioner and his wife had to refinance, at a cost of $2,033.02. The Petitioner also claims damages due to the loss of life and health and hospitalization insurance from April 2 through November 5, 1993. But the Petitioner's testimony was that he could not afford to replace those insurance coverages, and there was not evidence that he suffered any out-of-pocket uninsured expenses that would have been covered by them. The Petitioner also claims damages for the loss of $3,775 worth of personal items sold to pay necessary living expenses for the period from April 2 through November 5, 1993. But those sums already are accounted for in loss of salary and would result in a double recovery if added to the loss of salary. Based on the Affidavit of Plaintiff's Attorney's Fees, a reasonable attorney fee in this case is $6,492.50. Based on the Certificate of Costs, reasonable costs to be taxed to the Respondent in this case is $178.42.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order: finding the Respondent guilty of illegal discrimination on the basis of the Petitioner's marital status; and (2) requiring that the Respondent pay the Petitioner a total of $9,692.03, together with legal interest from November 5, 1993, plus $6,492.50 as a reasonable attorney fee, together with legal interest from May 1, 1996, as affirmative relief from the effects of the illegal practice. DONE and ENTERED this 6th day of June, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 6th day of June, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5381 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the Petitioner's proposed findings of fact: Conclusion of law. 2.-5. Accepted and incorporated to the extent not conclusion of law, subordinate or unnecessary. Accepted and incorporated. Accepted but subordinate and unnecessary. Annual salary rejected as inconsistent with the Affidavit of Petitioner's Damages; otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 9.-10. Accepted but subordinate and unnecessary. 11.-15. Accepted and incorporated. 16. Accepted but subordinate and unnecessary. 17.-23. Accepted and incorporated to the extent not subordinate or unnecessary. Amount of loss rejected as not proven by the evidence; "mental anguish, loss of dignity, and other intangible injuries" rejected as not relevant in this proceeding; otherwise, accepted and incorporated. Accepted and incorporated. COPIES FURNISHED: David E. Davis, Esquire 620 E. Twiggs Street, Suite 305 Tampa, Florida 33602-3929 Jacqueline McCullough Vice President Shaker Lakes Apartments Company 1422 Euclid Avenue, Suite 1146 Cleveland, Ohio 44115-1951 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether the Applicant is entitled to compensation in the amount of $2,500, to pay for "fill dirt" which was installed on the Applicant's real estate in relocating his homestead, after his former homestead was bought as right-of-way for Interstate Highway 75. This claim is under the guise of a relocation appeal, in accordance with the Uniform Relocation Assistance And Real Property Acquisition Policies Act of 1970 (42 USC, 4601 - 4655).
Findings Of Fact In November, 1974, the Florida Department of Transportation paid the Applicant $32,500 in a negotiated purchase for the Applicant's property which was located in the line of construction for Interstate Highway 75. This price was for a mobile home 24' wide and 40' long, with appurtenances to the mobile home, to include a screen room, privacy paneling and carport. Prior to the November, 1974 sale of the property to the Department of Transportation, the Applicant had purchased another parcel of land in late 1973 or early 1974. It was on this parcel of land that was purchased at that time, that the Applicant relocated his home. The amount of payment for the new lot was between $2,800 and $2,900. In order to comply with certain standards of the DeSoto County, Florida Health Department, ten inches of "fill dirt" were required to be implaced to have the septic tank meet requirements for a drain field. The cost of the application of the "fill dirt" was $2,500. The expenditure of $2,500 for "fill dirt" is the item of controversy between the Applicant and the Respondent. The Applicant is claiming that the $2,500 should be reimbursed to him as part of a relocation assistance payment. The Respondent denies that the $2,500 is a proper item of compensation under the governing law on relocation assistance payments. The Respondent's denial is based upon the fact that it believes that "fill dirt" is not a compensable item. More specifically, the Respondent regards the selection of this piece of property by the Applicant as being a matter of choice, which did not have to be made. The Respondent is persuaded that other parcels of property were available, which did not require "fill dirt" to be brought in, in order to comply with health requirements and the Applicant failed to purchase such a parcel, therefore, the Applicant must defray the expense of his selection, in terms of the $2,500 which was spent to bring the property up to health standards. The history of the payments that were made by the Respondent can be derived by the application of the formula utilized. The Respondent looked at three comparable pieces of land , one for $32,500, a second for $28,500 and a third for $32,900. The closest comparable to the home that the Applicant sold, was the comparable listed at $32,500. The Respondent compared these comparable figures with the so called, "carve out" figure of a typical mobile home with equipment, on a typical mobile home site, which would have been a price of $25,721. Based upon this figure for a "carve out", and taking the figure for the closest comparable $32,500, the amount of maximum relocation reimbursement would have been $6,779. This figure is arrived at by subtracting the amount of the "carve out" figure from the closest comparable. In fact the Respondent spent $27,372 for the land purchased and other compensable items, thus entitling him to $1,651 in relocation reimbursement, according to the Respondent's calculations. Although, in the course of the hearing the Applicant was questioned about taking $1,651 as settlement. The Applicant said that he was only interested in the $2,500 figure. It should be stated that the $1,651, is an amount which does not contemplate the payment for "fill dirt". It is in fact a figure arrived at for payment of other items considered to be compensable. The question then becomes one of whether or not the Applicant is entitled to a $2500 payment for "fill dirt" which is not associated with the $1,651 which the Respondent claims the Applicant is entitled to. One final factual comment should be made. That comment is that the Respondent's acquisition and relocation assistance officer, David Nicholson, saw the Applicant's new property after the twenty five hundred dollars worth of fill dirt had been installed. At that time, Mr. Nicholson said that the property appeared to meet the criteria for a decent, safe and sanitary dwelling. The witness, Nicholson had not seen the property prior to the installation of the "fill dirt". Consequently, the Respondent can not challenge the statement by the Applicant to the effect that the "fill dirt" was necessary in order to achieve a decent, safe and sanitary dwelling.
Recommendation It is recommended that the Respondent deny the payment of $2,500 to the Applicant for installation of "fill dirt" at the Applicant's present homesite. DONE and ENTERED this 4th day of April, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Herman A. Beyer Post Office Box 382 Punta Gorda, Florida 33950 Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32304
The Issue The issue is whether Petitioner's request for nonconforming status on his property at 1607 and 1607 1/2 Northwest 12th Road, Gainesville, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, including the stipulation of facts filed by the parties, the following findings of fact are determined: Mr. Mayhew resides in Hawthorne, which is located in the southeastern portion of Alachua County (County). (Some papers filed in this case identify his residence as being in Cross Creek, rather than Hawthorne, but with the same street address.) Since November 1998, he has owned property at 1607 and 1607 1/2 Northwest 12th Road, Gainesville, Florida. More specifically, the property is in an older, single-family residential neighborhood known as Florida Park which is located several blocks west of U.S. Highway 441, which runs in a north-south direction through the City, and approximately one-quarter mile north of Northwest 8th Avenue. In broader geographical terms, the property is located around one mile north of the University of Florida campus. There are two structures (or units) on Petitioner's property. One is a three-bedroom, two-bath dwelling constructed by the original owner (Mr. Gainous) in 1949, who occupied that dwelling with his wife. That unit's address is listed on the County Property Appraiser's records as 1607 Northwest 12th Road. The second structure, a two-bedroom, one-bath dwelling (also referred to as a "cottage"), was built by Mr. Gainous in 1957, and was apparently used primarily as rental property by the owner. The address of the second unit on the Property Appraiser's records is 1607 1/2 Northwest 12th Road. Separate gas meters and a single water line and electric meter serve the two units. (Although the two units are given separate street addresses by the Property Appraiser, only one tax bill is issued by the County Tax Collector.) When these structures were built, the County did not issue building permits. The property was in the unincorporated area of the County until 1961, when the City annexed the property. In 1964, the City adopted its first zoning plan and placed the property in what was then known as the Single-Family Residential (R-1a) zoning district. This category was used since the property was "closely consistent" with that zoning classification. A few years later, the property was rezoned to the Residential Single-Family zoning district (RSF-1), which apparently replaced the R-1a zoning district, and it still remains in that zoning classification. Under current zoning regulations, unless a property has "legal" nonconforming status, two family dwellings are not permitted in the RSF-1 zoning district. However, if a structure and use of land was in existence before the City annexed the property and adopted its zoning code, and was not otherwise shown to have lost that status, the nonconforming use is grandfathered and allowed "to continue until [it is] removed" or otherwise conflicts with conditions pertaining to nonconforming lots, uses, or structures. See § 30-346, Code of Ordinances. (Nonconforming status allows the owner to rent each unit on the parcel to no more than three unrelated persons. Thus, six unrelated persons could legally occupy Mr. Mayhew's two units. However, Mr. Mayhew has always rented to smaller numbers of tenants, and then only to graduate students or "professionals.") One way a property can lose its status is for the owner to not use the property in a nonconforming status for nine consecutive months. In the case of a rental property, this means that the owner has not rented the property for at least nine consecutive months. If this occurs, the owner is presumed to have abandoned the nonconforming status. See § 30-346(5)(d), Code of Ordinances. The precise date on which the City began using the nine-month time period is unknown. According to Mr. Calderon, this time period has been in the Code of Ordinances for "awhile," it was in the Code of Ordinances when "Citywide zoning" was first used in 1982, and he implied that it was in the first zoning code adopted in the 1960s. The City has no formal process by which it monitors properties to ensure that they continue to meet the requirements for legal nonconforming status. Generally, the issue arises after a complaint is filed by a third party or an inspection is made by City officials, who then require that the owner confirm (or prove) that the property still qualifies for that status. In this case, in October 2006, the tenant who occupied the cottage filed a complaint with the City concerning the installation of a new gas stove and other possible code violations. Prior to that time, no other complaints had been lodged against Mr. Mayhew's property. In response to that complaint, a code enforcement officer, Michael Wohl, inspected the property. During the course of that inspection, Mr. Wohl noticed that there were two rental units on one parcel of land. As a routine part of the inspection process, Mr. Wohl made an inquiry to determine if Mr. Mayhew had a landlord permit for each unit. Under the Code of Ordinances, a landlord permit is required for each rental unit. (The specific provision in the Code of Ordinances which imposes this requirement was not given.) According to Mr. Calderon, this requirement has been in the Code of Ordinances since 1989. Mr. Wohl learned that Mr. Mayhew had purchased one landlord permit for the parcel in the year 2000 (and had renewed that permit each year) but did not have a second permit. (When he purchased the property in late 1998, Mr. Mayhew did not know that such permits were even required. He obtained one as soon as this was brought to his attention.) After Mr. Mayhew advised Mr. Wohl that he was unaware that a permit was needed for each unit on his property, Mr. Wohl spoke with Mr. Calderon, who instructed Mr. Wohl to verify if the property was a legal nonconforming use (and therefore could qualify for two landlord permits) since it was located in a single-family zoning classification. Shortly thereafter, a citation was issued to Petitioner. The specific nature of the citation was not disclosed. In any event, by letter dated September 25, 2006, Mr. Calderon requested that Mr. Mayhew provide documentation to support the nonconforming use of the cottage at 1607 1/2 NW 12th Road as an accessory dwelling unit. In response to Mr. Calderon's request, on October 2, 2006, Mr. Mayhew submitted a lengthy letter with supporting documentation, including photographs of the units; copies of rental agreements of tenants who had rented the cottage since he had purchased the property in November 1998; information regarding the date of construction of the two units; and Property Appraiser records showing two units on the parcel. On December 7, 2006, the Department advised Mr. Mayhew by letter that "[b]ased on the physical evidence, property appraiser records and documents provided by you, the property is therefore classified as an existing non-conforming two-family development and is subject to regulations governing non-conforming uses." However, because the City apparently has a policy of notifying residents who live within 300 feet of the subject property of this type of decision, the City also issued on the same date a Notice of Decision to Issue Non-Conforming Status to Petitioner's Property (Notice)." (The record is unclear whether this notice was given pursuant to a policy or a specific Code provision. Other provisions within the Code of Ordinances provide for such notice when the Board conducts hearings on variances, appeals alleging error by an administrative official, and requests for special zoning exceptions. See § 30-354(h)(6)(i)-(k), Code of Ordinances.) In response to the Notice, affidavits were filed by a number of residents who lived adjacent to, or near, the subject property. After reviewing those affidavits, on December 20, 2006, the Department advised Petitioner by letter that based on "new information . . . submitted by affected persons within 300 feet of your property . . . [the] staff [is going to] reconsider the nonconforming status of your property." On January 25, 2007, Mr. Calderon issued a letter denying Mr. Mayhew's request for the following reasons: I have reviewed the information you submitted and those submitted by surrounding property owners. Based on the information and affidavits, there appears to be no consensus or conclusive data establishing emphatically that the subject property has been used consistently as a two-family development since annexation into the city. Evidence from the property owner would suggest that since 1998, the subject property has been used as a two- family dwelling and that no nine-month period has elapsed where the property was not used as a two-family dwelling. However, due to uncertainty for the period around and prior to 1998, staff cannot make a determination about the status of the development around and prior to 1998. Staff cannot determine whether the subject property was illegal, legal non-conforming or lost its non-conforming status at the time of ownership change in 1998. Since the current zoning of the subject property is RSF-1 (Single-family residential, 3.5 dwelling units per acre), the current use as a two-family dwelling is not permitted. Staff is therefore denying the request on the basis that available information cannot demonstrate continued use of the property as a two-family development, since annexation into the [C]ity of Gainesville. On February 8, 2007, Mr. Mayhew filed his appeal of that decision. Because Mr. Mayhew alleged that there were disputed issues of material fact, the appeal was forwarded to DOAH, rather than the Board. In his appeal, Mr. Mayhew alleged that the City had improperly relied on affidavits from neighbors to reconsider its decision, that there was no new evidence submitted to support a change in the City's initial decision, and that he could not get a fair hearing from the Board because several members of the Board live in the affected neighborhood or are members of a neighborhood association that includes the Florida Park area. Section 30-346(5)(d), Code of Ordinances, as amended in November 2006, provides the following restrictions on nonconforming uses: Whenever a nonconforming use of land or a building or other structure or any portion thereof is abandoned or the use is discontinued for a continuous period of nine months or more, such abandonment or discontinuance shall be presumed to constitute an intention to abandon or discontinue such use, and such use shall no longer be permitted. Any subsequent use of such building or structure or land shall be in conformity with the provisions of this chapter. Although this section was amended in November 2006, the amendment did not affect (or otherwise change) the nine- month time period for losing a nonconforming use. Prior to the amendment, the section provided that if a nonconforming use was lost due to abandonment or discontinuation, the reestablishment of the use could be authorized by the Board, after hearing, if the Board found the design, construction, and character of the building not suitable for the uses in the district in which the nonconforming use is situated. Under the new amendment, that option no longer exists. The history note to this provision indicates that the original ordinance (No. 3777) was adopted on June 10, 1992, and was later amended on July 25, 1994.1 (However, Mr. Calderon indicated that the nine-month period dates back many years before the adoption of this particular Ordinance. See Finding of Fact 5, supra.) When an owner is required to demonstrate that his rental property has continuously retained its nonconforming status, he must show that the property has been continuously rented (with no nine-month breaks) not only for the period of time that he has owned the property, but also for the entire time the property has enjoyed nonconforming status, or in this case since the property was annexed by the City. Thus, Mr. Mayhew was obligated to show that the original owners (Mr. and Mrs. Gainous) rented the property continuously from the time the property was annexed in 1961 until it was sold to Mr. Mayhew in late 1998. The City's practice is to determine nonconforming status on a case by case basis but the burden is on the owner to prove that status through records such as building permits, landlord permits, zoning compliance permits, and occupational licenses, and "records from reputable sources." The parties agree that both units were continuously rented by Mr. Mayhew since the time he purchased the property in November 1998. The dispute here is whether the nonconforming use was abandoned for any nine-month period prior to Mr. Mayhew's purchase of the property. The City contends that Mr. Mayhew has presented no evidence to show that the cottage was rented by the prior owner from 1996 until the property was sold in late 1998. Although Mr. Mayhew clearly established (and the City agrees) that the property has been continuously rented since he purchased the parcel in late 1998, he conceded that the cottage was vacant when he purchased the property, that he had made no inquiry to the seller as to how long the cottage had been vacant, and that he had no personal knowledge regarding the rental history of the property during the three years preceding the purchase. He contended, however, that there are always periods of time when a unit remains vacant while the owner is actively seeking a new tenant or when necessary renovations must be made. While this is true, there is no evidence that this occurred during the years 1996, 1997, or 1998. (It is unknown where Mrs. Gainous presently resides, or even if she is still alive. When the property was sold in late 1998, Mrs. Gainous was described as being elderly and in poor health.) Significantly, City records show that Mrs. Gainous had secured landlord permits to rent the cottage from 1989 (when permits were first required) through 1995, but she had failed to obtain any permits for the years 1996, 1997, or 1998, at which time she sold the property to Mr. Mayhew. This raises a logical inference, not overcome by Mr. Mayhew, that she did not rent the cottage during those years. In addition, Dr. Kosch, who has lived across the street from the subject property for the last twenty years, testified that he personally observed several periods of time before the property was sold to Mr. Mayhew when there were no tenants in the cottage. Although Dr. Kosch could not specifically identify the exact time periods when this occurred (due to the passage of time), his testimony adds further support to a finding that there is insufficient evidence that the cottage was rented continuously (without any nine-month breaks) during the years 1996-1998. Mr. Mayhew purchased the property with the understanding that he could legally rent both units. While it may seem unfair for him to now have to prove that the property has been continuously rented (with no breaks exceeding nine consecutive months) since the 1960s, this interpretation of the Code of Ordinances has always been followed by the City without exception. According to Mr. Wohl, this situation has occurred at least 8 or 9 times in the last few years alone, and in each case, the property owner was required to prove a continued nonconforming use since the property was annexed by the City or placed in a more restrictive zoning classification.
Findings Of Fact By letter dated May 31, 1979 Respondent notified Petitioner that it was acquiring part of the property on which Petitioner's office was located and that it would be necessary for him to relocate. At the time Petitioner worked as a real estate appraiser in the office of the Pickens Agency owned by Philip Pickens. Pickens provided work space, telephones, secretary, data bank and supplies. The data bank contained data on real property throughout Florida and was invaluable to the appraisers in getting comparables to use for appraising like property. Due to the acquisition of additional property for the U.S. 90 right-of- way, it was necessary to move the two-story building in which Petitioner's office was located. This required moving out of this building into different quarters. In the building Petitioner's office, located on the second floor, comprised approximately 800 square feet in which he had desk, telephone and work space. The data bank was also located on the second floor. Philip Pickens owned another building in the Immediate vicinity into which Petitioner moved. The data bank was left in the original building which was jacked up in preparation for its move. Thee data bank remained available for use albeit less convenient for those using it. Petitioner had less space in the one-story building into which the Pickens Agency moved and Petitioner's office was located near the back door through which clients visited the Pickens Agency. He shared a telephone with another appraiser and had a smaller desk and less work space. He also experienced interruptions from visitors entering the office through the back door which opened into Petitioner's office space. During the two years immediately preceding the relocation of the office, Petitioner's appraisal work was performed exclusively for DOT. Part of this work was assigned him by the Pickens Agency and in some cases he was contacted directly by DOT for the appraisal . When employed directly by DOT, Petitioner received 50 percent of the appraisal fee and the Pickens Agency received 50 percent. When assigned work by the Pickens Agency, Petitioner received 45 percent of the appraisal fee. During the five months following Petitioner's move into the new quarters his income dropped substantially from what it had been before the relocation. Petitioner filed application for relocation benefits as soon as he moved his office and before any change in income occurred. Normally, there is a lag of three to six months between tile Line the appraisal work is done and payment is received. Petitioner's income during the first nine months of 1980 (January - October) we $10,622.97. For similar periods in 1979, 1978, and 1977 his income was $29,750, $26,382.50 and $22.252.50, respectively. Petitioner testified that he believes the loss of income was due to his inability to turn out as much work in the more restricted space and less privacy in the one-story building than he had before the move. Petitioner moved some 30 yards from his original location kept the same mailing address and the same telephone number. During the latter half of 1979 and the first half of 1980, the Lake City District of DOT had fewer relocation claims than in comparable periods of the two previous years. Relocation claims are related to appraisals which would indicate fewer appraisals were ordered by DOT in Lake City in 1979-80 than in the two previous years. During the period in question, most of Petitioner's work for DOT was generated by the Bartow office. This would require most of Petitioner's appraisal time out of Lake City with the use of the office primarily for the preparation of his appraisal report. No evidence was submitted to show the effect, if any, on the Pickens Agency's business resulting from the move or the business done by the other appraisers who also moved. During the period 1977-1980 the Pickens Agency employed between two and five appraisers and at the time of the relocation employed two appraisers, one of whom was petitioner. (Tr. p. 31). The number of appraisers employed varied with the volume of business coming into the agency. The appraisal work done by the Pickens Agency was statewide and not concentrated in the vicinity of Lake City.
Findings Of Fact At all times material hereto, Petitioner has been in the business of manufacturing and selling extruded aluminum patio furniture. Petitioner is owned by Robert L. Gass, Jr., who was also the owner of the real estate which Petitioner occupied as a tenant. It was necessary for the Department to acquire the real property owned by Gass and to relocate Petitioner as a result of a federally-funded highway construction project, I-595 in Broward County, Florida. Accordingly, Gass and Petitioner became entitled to benefits pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Pursuant to a contract with the Department, employees of Kaiser Engineers were responsible for both the acquisition of real property and the relocation of personal property of businesses and persons displaced by the I-595 project. Some of Kaiser's employees were involved with acquisition (acquiring ownership of real property) and different employees were responsible for relocation assistance (relocating personal property). An appraisal of the land and improvements at the manufacturing site was performed on behalf of the Department. The Department's real estate appraiser called in a machinery and equipment appraiser to appraise certain "immovable business fixtures and special purpose process systems." The machinery and equipment appraiser prepared an appraisal containing 20 categories/items, consisting primarily of the components of Petitioner's painting machinery and assembly line. A three-page listing of those 20 categories/items was compiled and became entitled "Inventory." Gass and the Department entered into negotiations for the acquisition of his real property. Gass was concerned about the "down time" Petitioner would incur if Petitioner were required to disassemble, move, reassemble, and install its assembly line and painting system process. It was important to Gass that Petitioner have a replacement assembly line and painting system process operational before moving to the relocation site. Gass was aware of the relocation benefit under which a displaced business might be eligible to purchase new equipment and machinery and have it fully installed and operational before the business is physically relocated. On August 22, 1988, Gass entered into a Right-of-Way Purchase Agreement with the Department under which the Department purchased from Gass the real property which was Petitioner's manufacturing site. Exhibit "A" to the Right- of-Way Purchase Agreement was the Inventory of the 20 categories/items prepared by the machinery and equipment appraiser. Petitioner subsequently made application to the Department for relocation benefits to purchase replacement items for the categories/items contained in the Inventory. The Department denied that claim for relocation benefits, and Petitioner timely requested a formal hearing regarding the Department's determination. The matter was thereafter transferred to the Division of Administrative Hearings where it was assigned DOAH Case No. 90-8112. In that dispute, the Department took the position that the 20 items in the Inventory were immovable trade fixtures and, therefore, items of real property, that those items had been purchased by the Department as part of its acquisition of the real property, and that Petitioner was entitled to no relocation benefits relative to those items. Petitioner, on the other hand, contended that the Inventory items were personal property, that they were not converted into real property because the Right-of- Way Purchase Agreement referred to them, and that Petitioner, through Gass, had specifically reserved its right to receive relocation benefits regarding those items due to negotiated language which Gass had required and which was included in the Addendum to the Right-of-Way Purchase Agreement. The threshold issue to be adjudicated in the underlying proceeding was whether the items of property listed in the Inventory were items of personal property, as Petitioner contended, or trade fixtures and items of real property, as the Department contended. Expert real property appraisers and expert machinery and equipment appraisers testified in the evidentiary hearing. The one area of agreement among them was that whether a piece of equipment is considered real property or personal property is a "gray area." On September 12, 1991, a Recommended Order was entered in DOAH Case No. 90-8112. That Recommended Order determined that all of the items listed in the Inventory were items of personal property, that the Right-of-Way Purchase Agreement was ambiguous, and that Petitioner was entitled to relocation benefits for substitute personal property in the amount of $275,900. On December 10, 1991, the Department entered its Final Order essentially adopting the Recommended Order. The Final Order specifically held that all of the items listed in the Inventory were items of personal property and that Petitioner was entitled to relocation payments for substitute personal property in an amount not to exceed $275,900 upon submission of the appropriate documentation. At the time that the Department denied Petitioner's claim for relocation benefits regarding those items listed in the Inventory and advised Petitioner of its right to request an administrative hearing regarding that determination, the Department believed, in good faith, that it had purchased the 20 categories/items listed in the Inventory as part of its acquisition of the real property at Petitioner's manufacturing site. At that same time, the Department believed, in good faith, that the 20 categories/items listed in the Inventory were not items of personal property and that Petitioner was not, therefore, entitled to relocation benefits for that personal property. At the time, the Department's decision to deny Petitioner's claim for relocation benefits was substantially justified. At the time, the Department's determination had a reasonable basis in law and in fact. When the Department and Gass entered into the Right-of-Way Purchase Agreement and Addendum and attached the Inventory as Exhibit "A" thereto, the Department believed that it had paid Petitioner, through Gass, those monies to which Petitioner was entitled related to the 20 categories/items listed in the Inventory. The Department did not foresee that Petitioner would be entitled to additional payments regarding those same items because language added to the Department's standard form contract increased the ambiguity in that document so that there was never a "meeting of the minds" as to whether the 20 categories/items listed in the Inventory were agreed to be real property acquired by the Department in the Right-of-Way Purchase Agreement or were agreed to be personal property and the subject of relocation benefits. Accordingly, circumstances exist which would make the award of attorney's fees and costs in this proceeding unjust.
The Issue Whether Petitioner is entitled to reimbursement for expenses incurred in relocating and reestablishment of his small business pursuant to section 421.55, Florida Statutes (2009),1/ as implemented by Florida Administrative Code Rule 14-66.007, which, in turn, incorporates by reference the provisions of 49 Code of Federal Regulations Part 24, Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally-Assisted Programs (effective October 1, 2006),2/ and the Florida Department of Transportation Right of Way Manual 9.3.15, and, if Petitioner is entitled to reimbursement, the amount owed to him.
Findings Of Fact Based on the evidence and witnesses' testimony, the undersigned found the following facts: The Department is the state agency that has responsibility for paying certain relocation and reestablishment expenses of businesses that have been displaced because of a public transportation project. See § 421.55, Fla. Stat. Sometime in 1999 to 2000, Mr. Carey purchased eight rental units in Hillsborough County, Florida, as an investment property. Mr. Carey managed the rental property and testified that he would advertise vacancies through "word of mouth." The record shows that these rental units were rented weekly and included written and verbal leases. In 2005, the Department informed Mr. Carey that his rental property would be subject of an eminent domain taking and informed Mr. Carey about the law authorizing the Department to pay certain expenses in relocating and reestablishing a small business. On December 6, 2005, Mr. Carey filled out a Business Survey Questionnaire for the Department, stating his desire to relocate his rental business. The Department acquired Mr. Carey's property on April 18, 2009. By mid July 2009, Mr. Carey contacted Mr. Nappi to determine whether or not he was still eligible to receive relocation and reestablishment reimbursement for his small business. Mr. Nappi determined that Mr. Carey remained eligible to apply for reimbursement and informed him of that fact. On August 28, 2009, Mr. Carey purchased a replacement property located at 19002 Apian Way, Lutz, Florida, for $300,000.00. The replacement property contained a house that had been the homestead property of the prior owner. Mr. Carey credibly testified that the purpose of purchasing this replacement property was "to get back into the rental business" and that he advertised the replacement property for rent by "word of mouth." Receipts introduced into evidence show that Mr. Carey began making repairs and purchasing materials as early as the first week in September. Mr. Carey testified, on cross-examination, that he could not remember the exact date when he listed the replacement property for sale, or the exact date when he entered into a contract for the sale of the replacement property. Mr. Carey testified that he would speculate that the contract for sale of the replacement property occurred in early October 2009. On October 15, 2009, Mr. Nappi went to the replacement property with Mr. Carey to review the work that Mr. Carey had already begun on the replacement property and to discuss the expenses eligible for reimbursement. In reviewing Mr. Carey's claimed expenses, Mr. Nappi found that the following expenses would be eligible for reimbursement: (1) the drywall work detailed in Exhibit A; (2) $561.00 worth of the receipts of materials purchased from Home Depot; and (3) the painting expenses detailed in Exhibit C. Mr. Nappi also testified that in reviewing the claimed expenses that Mr. Carey would be eligible for reimbursement of a portion of the replacement property's ad valorem taxes. According to Mr. Nappi, Mr. Carey would have been eligible to receive the difference of the amount of the property taxes between the acquired property and the replacement property in the amount of $849.56. The only expenses that Mr. Nappi identified as not being reasonable were for hauling away yard waste contained in Exhibit D. According to Mr. Nappi, the Department questioned the amount of the charges and determined that an appropriate amount would be $1,200.00 as opposed to the $2,450.00 sought by Mr. Carey. Consequently, the majority of the expenses claimed by Mr. Carey were eligible items for reimbursement. On November 4, 2009, the Department sent Mr. Carey a letter denying his eligibility to receive reimbursement for expenses in relocating and reestablishing his small rental business. The Department denied Mr. Carey's eligibility because the updated TRIM notice for the property tax, that Mr. Carey provided the Department, showed the replacement property was homestead property. Because the replacement property was homestead, the Department reasoned that Mr. Carey had not reestablished a small business. Mr. Carey informed Mr. Nappi that the replacement property was not homestead property and that the TRIM notice was wrong. In response, on November 9, 2009, Mr. Nappi wrote the Hillsborough County Tax Collector to determine whether or not Mr. Carey's replacement property was homestead property. On November 23, 2009, while the Department waited for a response from the Hillsborough County Tax Collector, Mr. Carey closed on the sale of the replacement property for $332,500.00. Mr. Carey did not inform the Department that the replacement property had been sold. In February 2010, the Hillsborough County Tax Collector informed the Department that the replacement property was not homestead. Also, the Department learned for the first time that Mr. Carey had sold the replacement property. After learning that Mr. Carey had sold the replacement property, Mr. Nappi contacted his supervisor Elbert Johnson (Mr. Johnson). Mr. Nappi informed Mr. Johnson that "it did not appear that the reestablishment status of the landlord had been in fact established[,]" and the claim would be denied. Mr. Nappi testified the Department attempted to determine whether or not Mr. Carey had reestablished his rental business by examining Mr. Carey's efforts to rent the replacement property. Mr. Nappi directed a right-of-way specialist for the Department to contact realtors, who were associated with the property, to determine if Mr. Carey had listed the property for rent; to contact the local newspaper to learn if the property had been advertised for rent; and to conduct an internet search of the property. According to Mr. Nappi, the realtor indicated that she was not aware of whether or not Mr. Carey listed the property for rent and learned nothing from the newspaper or internet search. Mr. Nappi admitted that the Department did not contact Mr. Carey to ask him about his efforts to rent the property. The Department did not contact Mr. Carey or ask him to provide any information about his efforts to rent the property. Consequently, the Department did not have before it any information concerning Mr. Carey's efforts as to "word of mouth" advertising of the property. Mr. Knight, the state administrator of Relocation Assistance, testified that asking Mr. Carey about his efforts to rent the property would have been helpful information to have in considering the reimbursement. However, Mr. Knight acknowledged that Mr. Carey's selling of the home prior to determination of whether or not he was entitled to reimbursement made the issue moot. In the Department's estimation, Mr. Carey had simply "flipped a house" and had not reestablished his business. On March 25, 2010, the Department informed Mr. Carey that it was denying his application for reimbursement because he was not eligible because he had not reestablished his small rental business at the replacement property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order affirming its denial of Mr. Carey's application for reimbursement of reestablishment expenses. DONE AND ENTERED this 28th day of February, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2011.
The Issue The issue for consideration in this case is whether Petitioner’s mother is eligible for a replacement housing payment in addition to funds already received from the Department.
Findings Of Fact At all times pertinent to the issues herein, Petitioner and his mother, Frances Scott, owned real property owned property located in Pasco County, Florida, some of which was taken, and all of which was affected by the construction of the Department’s project no. 97140-2303. The Respondent, Department of Transportation, is the state agency in Florida responsible for the construction of public roadways in this state. In the acquisition of land for the construction of this project, the Suncoast Parkway, the Department of Transportation utilized Gulf Coast Acquisition Company. Consistent therewith, Gulf Coast initiated relocation programs for the individuals whose property was being taken for the construction of the project. Its operation was overseen by an engineering company, PBS&J, to ensure that all relevant policies and procedures were followed correctly. In this as in all acquisition cases, an initial determination was made, prior to any offer being made, as to value of the property to be taken. After the offer was made, an order of taking was entered. Once Final Judgment was entered, the relocation specialists went back to the property owner to see if any modification was necessary. In dealing with relocation of property owners, a replacement payment is defined as the difference between the acquisition price paid for the property and what it costs for an equal replacement of the property. In the instant case, Frances Scott, Petitioner’s mother, an octogenarian not in the best of health, was determined to be eligible for a replacement payment as a 180-day homeowner occupant of the property acquired. Her property consisted of two acres on which a residence was located. The approved appraisal amount for her property was $39,400. The value of the acquired dwelling on the homesite represented 67.9% of the approved appraisal amount, as calculated by the Department, which was $26,750. The value of the comparable replacement dwelling offered by the Department was $33,900. Therefore, the replacement housing payment amount was $7,150, the difference between the appraisal value of the dwelling and the replacement dwelling cost. However, through mediation, at which the Scotts were represented by counsel, a settlement payment for the entire acquisition in the amount of $114,000 was arrived at. Of this figure, $52,952 was attributable to the land, mobile home, and septic and water systems belonging to Frances Scott. The second mobile home located on the land, an unrelated septic system, the land other than that owned by Frances Scott, and damages relating to the move of Petitioner’s business amounted to a total of $61,048. Taken together, the two parcels and accouterments totaled the $114,000. Since that $52,952 figure attributed to Frances Scott’s property exceeded the $33,900 cost of a comparable replacement dwelling, the entitlement to a replacement housing payment was nullified. Because of the taking in issue here, and because of Frances Scott’s advanced age and fragile health, it became necessary to move her residence onto Petitioner’s property to keep the family together. The relocation program is designed to reimburse the expenses of people who are displaced by highway projects. Implementation of the program is governed by both federal and state law. (Public Law 91-646 - the Uniform Relocation Assistance and Real Property Acquisition Act of 1970; and Sections 339.09 and 421.55, Florida Statutes.) These statutory bases and the rules of the Department implemented thereunder spell out how payments are to be calculated. Replacement housing payments relate to housing only. In the instant case, the issue was one of mixed use which had to be distributed. Frances Scott met the criteria for eligibility and was found to be entitled to $7,150 as a replacement payment. She received this amount, and more, as a result of the settlement reached through mediation by means of which she received more than the amount calculated initially. There is an internal Department process through which the determinations of eligibility and payment amounts made at District level can be reviewed at Departmental level. In this case, the Scott file, at their request, was forwarded to the Department’s Relocation Manager, Mr. Eddleman, in Tallahassee. Mr. Eddleman reviewed the file and discussed its contents with District personnel. Based on his review, Mr. Eddelman determined that the calculation made at the District was correct. It is his policy in this process to lean towards the side of the displaced person in those cases where there is some question as to either entitlement or amount. Here, Mr. Eddleman found the District acted properly in denying extra replacement housing payment. It is easy to see the basis for Petitioner’s dissatisfaction. He relates, and there is no basis for doubting him, that at the mediation he was led to believe by the mediator that the relocation payments had nothing to do with the settlement amount to which he agreed. In this, he was misled. Inclusion of the amount for replacement payment in the settlement figure excluded him from further compensation and served to increase the settlement amount on which his counsel’s fee was based. Mr. and Mrs. Scott seem to have been poorly served in the process. They did not understand the communications they received from the state, categorizing them as “legal mumbo- jumbo.” They do not understand how the figure upon which the settlement was based and do not understand the 67.9 percent calculation. It was again explained at hearing but they remain unsatisfied with the settlement amount.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order affirming the relocation assistance payment (replacement housing) previously calculated for Petitioner’s mother, Frances M. Scott. DONE AND ENTERED this 12th day of February, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1999. COPIES FURNISHED: James O. Scott, pro se Post Office Box 11231 Spring Hill, Florida 34610 Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
