06-003302 Martha S. Bofill And Pedro Bofill vs. Department Of Transportation Status: Closed Recommended Order on Friday, May 11, 2007.

Summary: Petitioners failed to prove their entitlement to separate relocation housing payments after Respondent made a single such payment to their mother, with whom they lived, and intended to continue to live.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTHA S. BOFILL and )

PEDRO BOFILL, )

)

Petitioners, )

)

vs. ) Case No. 06-3302

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Miami, Florida, on March 21, 2007.

APPEARANCES

For Petitioner: Susan Schwartz

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

For Respondent: Martha S. and Pedro Bofill

540 Northwest Boulevard

Miami, Florida 33126

STATEMENT OF THE ISSUES

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.

PRELIMINARY STATEMENT

By letter dated June 27, 2006, Respondent informed

Petitioners that they were not entitled to relocation benefits

as tenants in their mother's home. The letter states that,

prior to any payments to the mother, who owned the home,

Respondent explained to Mr. Bofill that any replacement housing

payment to him or his sisters (only one of whom is a party)

would reduce the amount of the replacement housing payment

otherwise payable to his mother. The letter states that, based

on this information, Mr. Bofill and his two sisters decided not

to assert separate claims, but allowed their mother's claim to

proceed as from a single household, which would result in a

larger payment to her.

Petitioners timely requested a formal hearing. In their

petitions, Petitioners claimed entitlement to relocation housing

payments separate from the single relocation housing payment

made to their mother. Petitioner Pedro Bofill also claimed

entitlement to moving and related expenses for his business that

he operated from his mother's home.

At the hearing, Petitioners called eight witnesses and

offered into evidence 10 exhibits: Petitioners Exhibits 1-8 and

10-11. Respondent called five witnesses and offered into

evidence 12 exhibits: Respondent Exhibits 1-3 and 5-13. All

exhibits were admitted except Petitioners Exhibits 5-8, which

were proffered. The Administrative Law Judge admitted one

exhibit--the claim application filed by Petitioner's mother.

The court reporter filed the transcript on April 30, 2007.

The parties filed their post-hearing filings by May 10, 2007.

FINDINGS OF FACT

1. 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.

2. 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.

3. 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.

4. 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.

5. 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."

6. 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.

7. 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.

8. 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.

9. 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.

10. 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."

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stat. (2006) and Fla. Admin. Code Rule 14-66.007(11)

21. Section 339.09(2), Florida Statutes, authorizes

Respondent to expend money for "relocation assistance." Section

421.55(3), Florida Statutes, provides similarly.

22. As applicants, Petitioners bear the burden of proof.

Department of Transportation v. J. W. C. Company, Inc. , 396 So.

2d 778 (Fla. 1st DCA 1981).

23. Florida Administrative Code Rule 14-66.007 creates the

"Relocation Assistance Program." The Relocation Assistance

Program covers two non-acquisition costs: moving expenses and

replacement housing payments. This case does not involve any

dispute about the acquisition payment to Petitioners' mother.

This case involves claims by Petitioners that they are entitled

to replacement housing payments and a claim by Mr. Bofill that

he is entitled to moving and related expenses for his home

perfume business, even though Respondent has already made a full

replacement housing payment to their mother that would have been

reduced if Petitioners had made their claims prior to the

closing on their mother's home.

24. Florida Administrative Code Rule 14-66.007(7)

generally provides for certain moving and related expenses for

displaced persons, including businesses. Florida Administrative

Code Rule 14-66.007(8) recognizes that a person may be entitled

to a replacement housing payments, apart from the acquisition

payment made to acquire his or her residence. A replacement

housing payment eliminates the problem that arises when the

selling price of a comparable replacement dwelling exceeds the

purchase price of the residence being purchased by Respondent.

In the case of a residence on a typically sized tract for the

area, for instance, Florida Administrative Code Rule

14-66.007(8)(b)1. provides that the replacement housing payment

will be equal to the amount by which the probable cost of a

comparable replacement residence exceeds the purchase price paid

by Respondent for the residence that it is acquiring. In

calculating the replacement housing payment, Florida

Administrative Code Rule 14-66.007(8)(b)4. requires Respondent

to carve out any portion of the acquired residence used for

nonresidential purposes, such as a home business.

25. This case raises the issue of the rights of multiple

occupants to replacement housing payments. Two subsections of

the rule address this situation: the first covers a single

household in a single residence, and the second covers two or

more households in a single residence. Florida Administrative

Code Rule 14-66.007(8) provides:

(d) Single Household, Multiple Occupancy:

If two or more eligible occupants of the

displacement dwelling move to separate

replacement dwellings and the Agency

determines only one household existed,

payment shall be as follows:

1. If a comparable replacement dwelling

is not available and the displaced persons

are required to relocate separately, a

replacement housing payment will be computed

for each person separately, based on housing

which is comparable to the quarters

privately occupied by each individual plus

the full value of the community rooms shared

with other occupants.

2. If a comparable replacement dwelling

is available, the displaced persons are

entitled to a prorated share of the singular

relocation payment [i.e., replacement

housing payment] allowable had they moved

together to a single dwelling.

(e) Multiple Household [sic], Multiple

Occupancy: If two or more eligible

occupants of the displacement dwelling move

to separate replacement dwellings and the

Agency determines that separate households

had been maintained in the displacement

dwelling, the replacement housing payment

computation shall be based on housing which

is comparable to the quarters privately

occupied by each individual plus a prorated

share of the value of community rooms shared

with other occupants. If two or more

eligible occupants of the displacement

dwelling move to a single comparable

replacement dwelling, they shall be entitled

to only one replacement housing payment

under this subsection.

26. Ms. Bofill's claim is covered by Florida

Administrative Code Rule 14-66.007(8)(d), as she resided in a

single household with her mother, and Mr. Bofill's claim is

covered by Florida Administrative Code Rule 14-66.007(8)(e), as

he resided in a separate household from his mother.

27. Ms. Bofill's claim is covered by Florida

Administrative Code Rule 14-66.007(8)(d)2. because a comparable

replacement dwelling was available. She was thus entitled to a

prorated share of the replacement housing payment paid to her

mother--if she had timely informed Respondent of her intent to

move to separate replacement dwellings. She did not do so,

likely because she never intended to move to a separate

replacement dwelling, but possibly to allow her mother to obtain

the largest possible total payment from Respondent. As

reflected by her visit to Respondent's office four days before

the closing, Ms. Bofill had ample opportunity to make a claim

prior to Respondent's paying the unprorated replacement housing

payment to her mother, and she elected not to make it. Thus,

Respondent fairly treated her as intending to relocate to the

same residence as her mother and paid "Ms. Bofill's" share of

the replacement housing payment to her mother.

28. Mr. Bofill's claim is covered by Florida

Administrative Code Rule 14-66.007(8)(e)--specifically, the last

sentence. He filled out the first survey and affirmatively

disclosed his intention to relocate to the same residence as his

mother. He never informed Respondent of any change in this

regard prior to the closing. Thus, Respondent properly paid the

single relocation housing payment to Mr. Bofill's mother. His

claim for business moving expenses is covered by Florida

Administrative Code Rule 14-66.007(7). Had he pressed this

claim, his mother's replacement housing payment would have been

reduced to reflect the part of her home used for the business.

But Mr. Bofill declined to claim these expenses at the same time

as he declined to claim a separate relocation housing payment.

29. Florida Administrative Code Rule 14-66.007(5) requires

various notices to displaced persons, which includes

Petitioners. Post Buckley and Respondent did not provide

Petitioner with all of these notices, but the failure is

immaterial because Petitioners had actual notice of the entire

acquisition process at all material times.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.