STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, ) CASE NO. 76-2186

) In re: Relocation Assistance

vs. ) Appeal Parcel 156-A-3

) Project Number 72220-2501

JOSEPH A. SALEM, ) Duval County

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held in the above styled case at the Department of Transportation Right-of-Way Office, 7322 Normandy Boulevard, Jacksonville, Florida, at 3:00 P.M. on February 16, 1977, before Delphene C. Strickland, Hearing Officer, Department of Administration, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Philip S. Bennett, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: John Paul Howard, Esquire

Post Office Box 7189 Jacksonville, Florida 32210

ISSUE

Whether the proper period of time was used by the Florida Department of Transportation in arriving at the Appellant's, Joseph A. Salem, entitlement to payment under The Uniform Relocation Assistance and Real Property Acquisition Act, as implemented by 175-009 Procedure, State of Florida Department of Transportation.

FINDINGS OF FACT

1. The parties stipulated that Mr. Salem, a relocatee, relocated from a federal aid highway project, is entitled to "in lieu of moving expenses". It was stipulated that it was impossible to relocate Mr. Salem inasmuch as there was no other suitable area for relocation.

   
   

2. The Appellant, Mr. Salem, had asked that the years 1971 and 1972 be used as an income guideline rather than the years that were used, 1974 and 1975.

   
   

3. Mr. Salem commenced the operation of his store in 1968 on Timuquana under a lease providing for a monthly installment of Ninety Dollars ($90.00) per

   month. The lease was for a term of six (6) years ending on April 30, 1974 and a renewal was commenced on those terms for a six (6) year period. Notice to vacate was given and Mr. Salem sought to relocate and found that there was nothing in the area that he could afford to operate as a one-owner grocery, so it was necessary for him to close out his business as of June 1, 1976.

   
   

4. Mr. Salem sought to have the Florida Department of Transportation use the income for the years 1971 and 1972 in considering the amount of relocation expense due Mr. Salem inasmuch as Mr. Salem had an illness in 1973 so that his income for 1973, 1974 and a portion of 1975 did not properly reflect his earning capacity and earnings from the business at the time of the taking in 1976. He contended that when he was properly and fully operating the store in 1971 and 1972 was more realistic than his actual income in the years 1974 and 1975 when he was working at a reduced speed because of an illness in 1973.

   
   

5. The Florida Department of Transportation in figuring the benefits based its final computation for payment under the Relocation Assistance Act on average of the last two (2) years earnings prior to the date that he was required to vacate. The average annual net income during those years was Two Thousand Three Hundred Eighty Dollars and Nine Cents ($2,380.09). This figure was offered "in lieu of" payments and Mr. Salem's claim was paid for Two Thousand Three Hundred Eighty Dollars and Nine Cents ($2,380.09) plus that amount required to make the payment Twenty-Five Hundred Dollars ($2,500.00) which is the minimum amount paid for relocation assistance under the Uniform Relocation Act.

   
   

6. Mr. Salem applied for an exception based on his illness so that his income for the year 1971 and 1972 could be used rather than the years 1974 and 1975. The exception was denied inasmuch as the payment was the minimum payment under the Relocation Act and the rules and regulations only allow an exception to use other years than the two (2) next preceding the taking of the property when the construction project itself causes the vacating of the store's clients. The Florida Department of Transportation determined that the construction did not cause the loss of income but the illness of Mr. Salem caused his loss of income and therefore there could be no exception to using the two (2) years income previous to the taking.

   
   

   CONCLUSIONS OF LAW

7. 42 U.S. Code Annotated, Section 4622, paragraph c, provides in part: "For purposes of this subsection, the

   term 'average annual net earnings' means one-half of any net earnings of the busi- ness or farm operation, before Federal, State, and local income taxes, during the two taxable years immediately preceding the taxable year in which such business or farm operation moves from the real

   property acquired for such project, "

   
   

8. Mr. Salem moved in July of 1976.

   
   

   Federal C.P.M., 81-1.2 provides:

   
   

   "The term 'average annual net earnings' means one half of any net earnings of the business before federal, state and

   local income taxes during the two taxable years immediately preceding the taxable year in which the business is relocated. If the two taxable years immediately pre- ceding the displacement are not represen- tative the state with prior approval from the division engineer may use a two year period beginning with two years prior to the negotiations for the project.

   
   

   It must be determined that the proposed construction has been the cause of the out flow of residents, thereby resulting in a decline of net income from the business prior to utilizing this alternative pro- cedure."

   
   

9. The Florida Department of Transportation properly used the years 1974 and 1975 and properly disallowed the exception to the rule inasmuch as the decrease in income in the Appellant's business was due to personal illness and not to the outflow of customers of his store caused by the construction project.

RECOMMENDATION

Dismiss the appeal.

DONE and ORDERED this 6th day of May, 1977, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

John Paul Howard, Esquire Post Office Box 7189 Jacksonville, Florida 32210

Docket for Case No: 76-002186

Orders for Case No: 76-002186