STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SALLIE MAE RAY, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2106T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Fort Lauderdale, Florida, on February 13, 1979, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Sallie Mae Ray

For Respondent: Philip S. Bennett, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

ISSUE PRESENTED

Whether Relocation Assistance Appeal of Petitioner should be granted.

Petitioner was not represented by legal counsel or other representative at the hearing. After an explanation of her rights in administrative hearings conducted under the provisions of Chapter 120, Florida Statutes, Petitioner stated that she wished to proceed in her own behalf.

FINDINGS OF FACT

1. Petitioner moved into an apartment located at 1013 West Broward Boulevard, Fort Lauderdale, Florida on June 9, 1977. (Testimony of Petitioner, supplemented by Exhibit 2)

   
   

2. On August 3, 1977, Petitioner acknowledged receipt of a letter from Respondent which notified her that Respondent was in the process of acquiring right-of-way for a state road project located where she lived and that negotiations for the purchase of the property had begun on June 23, 1977. The letter enclosed an informational brochure entitled "YOUR RELOCATION" and expressed the desire of Respondent to assist in Petitioner's relocation necessitated by the property acquisition. (Exhibit 1)

3. In late November or early December, 1977, Petitioner vacated her apartment upon the request of the landlord for non-payment of the rent. (Testimony of Petitioner, supplemented by Exhibit 2)

   
   

4. Respondent purchased the property where Petitioner had resided from the West Broward Land Corporation on February 8, 1978. The purchase was accomplished pursuant to the Federal Highway Aid Program (PL 91-646) and involved the widening of Broward Boulevard (SR 842). Guidelines under the federally funded program are implemented by the Federal Aid Highway Program Manual and by Chapter 14-14.05, F.A.C., which incorporates by reference Respondent's Right-of-way Bureau Operating Procedures. These procedures include eligibility criteria for receipt of monetary payments by individuals who have been displaced from real property as a result of its acquisition by the state. (Testimony of Moon, Exhibit 3)

   
   

5. On February 15, 1978, Petitioner was present at the residence of another tenant of the apartment building at the time Respondent's right-of-way agent was explaining relocation benefits to that individual. Petitioner asked the agent if she could return to her former apartment and resume occupancy, but he explained that he had no authority to grant such permission. Thereafter, Petitioner moved back into the apartment. She testified at the hearing that one of Respondent's employees named Bill Barnette had told her she could occupy the premises. This alleged authorization however, took place at the time Petitioner was given a check for $320 for moving expenses by Barnette sometime in March, 1978. (Testimony of Way, Petitioner, Crawford, Johnson, supplemented by Exhibits 2, 5)

   
   

6. Thereafter, Petitioner made application with Respondent for rent supplement payments, but by letter of October 2, 1978, Respondent denied any such payment on the ground that Petitioner was not living on Broward Boulevard when the state obtained legal possession of the property. (Testimony of Moon, Case File)

   
   

   CONCLUSIONS OF LAW

   
   

7. Chapter 4 of Respondent's Right-of-Way Bureau Operating Procedures establishes the criteria for eligibility for rent supplement payments to "displaced persons" who move from real property as a result of its acquisition for a federally assisted program or project.

   
   

8. Under Section 1.1C(1) Petitioner qualifies as an "initial occupant" under all three of the alternative criteria listed therein. She was in occupancy of the real property at the initiation of negotiations for its acquisition; she was in occupancy at the time she was given written notice of the state's intent to acquire the property; and she moved from the property subsequent to the earliest dates established in the prior criteria. Her occupancy of the premises commenced on June 9, 1977, but negotiations for the purchase were not begun until June 23, and she was not informed of the intended acquisition until August 3, 1977. However, she did not move originally as a result of the state acquisition, but for non-payment of rent.

   
   

9. Section 4.4-7 of the operating procedures provides that a displaced tenant is eligible for a rent supplement payment not to exceed $4,000, but requires that the tenant must have been in occupancy for at least 90 consecutive days immediately prior to the initiation of negotiations for the purchase of the property. Petitioner does not meet this criterion and therefore is not eligible for rent supplement payments as a "displaced tenant."

10. Section 4.1.1C(2) of the procedures defines a "subsequent occupant" as a person who is in occupancy at the time the property is acquired and subsequently moves there from. The term "acquired" is defined in the procedures as the date on which Respondent obtains legal possession of the real property which, in negotiated settlements such as here, is the date of closing of the transaction. The closing in the instant situation occurred on February 8, 1978, at which time Petitioner was not occupying the premises. She is therefore not entitled to rent supplement payments as a subsequent occupant under Section

    4.4.9 of Respondent's operating procedures.

    
    

11. Although the evidence establishes that Respondent's employee purportedly authorized Petitioner to move back into the apartment in March, 1978, such fact would not serve to entitle her to rent supplement payments under the established criteria.

RECOMMENDATION

That Petitioner's appeal be denied.

DONE and ENTERED this 13th day of March, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1978.

COPIES FURNISHED:

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

Sallie Mae Ray

429 1/2 North West 7th Terrace Ft. Lauderdale, Florida 33311

Also mailed to Ms. Ray at: Apartment 14

North West 10th Avenue and 7th Street Fort Lauderdale, Florida

Docket for Case No: 78-002106

Orders for Case No: 78-002106