STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: RELOCATION ASSISTANCE APPEAL )

Mrs. Marie Lewis Mims ) CASE NO. 76-330

Parcel 170 )

Project No. 48270-2407 )

Escambia County )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in the above styled case in Room 314, Federal Building, Pensacola, Florida, at 9:45 a.m., August 25, 1976.

APPEARANCES

For Petitioner: George L. Waas, Esquire

Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: William Guy Davis, Jr., Esquire Marie Lewis Mims 700 Brent Building

Post Office Box 12950 Pensacola, Florida 32576

ISSUE

Whether the Petitioner is eligible for relocation assistance benefits pursuant to 42 U.S.C. 4601 et seq. (P.L. 91-646) and the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.

FINDING OF FACT

1. Petitioner Marie Lewis Mims was the owner of a house at 238 Chase Street from 1947 to 1971. Voluntarily she moved from this address on or about October 2, 1971. At that time, Mrs. Mims had not received notice of acquisition of her 238 Chase Street property and was not involved in negotiations with the Department to purchase her property. She had, however, heard rumors that an interstate might be built in the vicinity. She received her first official notice on January 9, 1973 - more than fifteen (15) months after she had moved. She had not informed the Florida Department of Transportation of her intentions to move or of her actual move prior to October 2, 1971. The Florida Department of Transportation did not learn of Mrs. Mims move until August 20, 1974. Mrs. Mims filed her first formal request for relocation assistance in October, 1975, four years after she had moved into another residence.

   
   

2. The design hearing on the road property was held on July 18, 1972. Residents were notified not to move until notified by the Florida Department of Transportation.

3. Mrs. Mims visited a Department trailer after September, 1973, located near Avery and Hayne on numerous occasions and was advised that the I-10 project was coming by the house on 238 Chase Street. Mrs. Mims had long since moved from her 238 Chase Street residence to a new residence and never informed the Department of her move. The Department advised all concerned residents in newspapers and through community communications, including word through organizations and churches, not to move until the road plans were certain and they were contacted by a representative of the Department.

   
   

4. The Department's first contact with Mrs. Mims for the purpose of purchasing her 238 Chase Street house was on August 22, 1974. Mr. Rick S. Cosson, for Respondent Department of Transportation, informed Mrs. Mims of the Department's offer of $4,500 and Mrs. Mims made a counteroffer of $12,000.

   
   

5. Thereafter, Mrs. Mims was awarded approximately $13,000 as a result of eminent domain proceedings for her 238 Chase Street property.

   
   

   CONCLUSIONS OF LAW

   
   

6. "Displaced person" for relocation assistance purposes is defined in 42

   U.S.C. 4601(6) as:

   
   

   "The term "displaced person" means any person who, on or after the effective date of this Act [Jan. 2, 1971], moves from real property, or moves his personal property from real property, as a result of the acquisition of such real property, in whole or in part, or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency, or with Federal financial assistance; and solely for the purposes of sections 202(a)

   and (b) and 205 of this title [42 USCS 4622(a), (b), 4625], as a result of the acquisition of or as the result of the written order of the acquiring agency to vacate other real property, on which such person conducts a business or farm operation, for such program or project."

   
   

7. The law does not allow relocations assistance benefits for departure in anticipation of acquisition unless there has been a notice to vacate or an acquisition of property. These provisions are conditions precedent to eligibility for relocation assistance benefits.

   
   

   42 U.S.C. 4622 provides as follows: "(a) General provision. Whenever the

   acquisition of real property for a program or project undertaken by a Federal agency in any State will result in the displacement of any person on or after the effective date of this Act [Jan. 2, 1971], the head of such agency shall make a payment to any displaced person, upon proper application as approved by such agency head, for -

   (1) actual reasonable expenses in moving

   himself his family, business, farm operation, or other personal property;"

   
   

8. The record establishes that on October 2, 1971, Mrs. Mims officially permanently moved from her 238 Chase Street address to another house in Pensacola. There had been no acquisition of her property by any entity and no written order had been issued by the Department of Transportation informing Mrs. Mims to vacate her property. The move was voluntary.

   
   

9. The activities of the Department leading up to acquisition and vacation of property did not begin until after July 18, 1972 and, by this time, Mrs. Mims had been out of her former residence more than nine months.

RECOMMENDATION

Application for relocation assistance benefits by Mrs. Marie Lewis Mims be denied.

DONE and ORDERED this 14th day of December, 1976 in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

William Guy Davis, Jr., Esquire 700 Brent Building

Post Office Box 12950 Pensacola, Florida 32576

George L. Waas, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Joseph A. Alfes

Chief of Right-of-Way Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Docket for Case No: 76-000330

Orders for Case No: 76-000330