Haw. Code R. § 15-24-21 - Optional relocation payments for displaced persons - businesses

(a) In the case of a self-move, the business may be paid an amount to be negotiated between the displacing governmental agency and the displaced business not to exceed the lower of two firm bids or estimates obtained by the displacing governmental agency.

(b) In lieu of the payment authorized by § 15-24-4, an owner of a displaced business who moves or discontinues his business may elect to receive a fixed relocation payment in an amount equal to the average annual net earnings of the business, or $5,000, whichever is less.

(1) For payments to be made under this subsection, the displacing governmental agency shall determine that:

(A) The business cannot be relocated without a substantial loss of its existing patronage; and

(B) The business is not part of a commercial enterprise having at least one other establishment, not being acquired by the displacing governmental agency, which is engaged in the same or similar business.

(2) 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 displaced. "Average annual net earnings" include any compensation paid by the business to the owner, the owner's spouse, or the owner's dependents during the two-year period. Earnings and compensation may be established by federal or state income tax returns filed by the business and its owner and owner's spouse and dependents during the two-year period. In the case of a corporate owner of a business, earnings shall include any compensation paid to the spouse or dependents of the owner of a majority interest in the corporation. For the purpose of determining majority ownership, stock held by an owner, owner's spouse and their dependent children shall be treated as one unit.

(3) If the displaced business affected can show that it was in business for twelve consecutive months during the two taxable years prior to the taxable year in which it was displaced, had income during the period and is otherwise eligible, the displaced business is eligible to receive the payment in accordance with subsection (b) and paragraph (b)(2) of this section. Where the business was in operation for twelve consecutive months or more but was not in operation during the entire two preceding years, the payment shall be computed by dividing the net earnings by the number of months the business was operated and multiplying by twelve.

(4) For multi-family structures leased for business, where the displacing governmental agency reasonably determines that comparable replacement structures to the structure being acquired are not available, the owner may be entitled to the in-lieu-of moving payment authorized by subsection (b). If a multi-family structure is available that has lesser units than the affected structure, the "substantial loss of existing patronage" determination is based not on the loss of living units but upon the estimated net annual average dollar volume difference in net earnings between the two structures. If the net income is not expected to decrease from that derived on the subject property, an in-lieu-of moving payment may not be made even though there may be a loss in the number of living units.

(5) For the owner of a displaced business to be entitled for payment, the business shall provide information to support its net earnings.

(c) The owner of a business displaced by a governmental agency may be reimbursed for the actual reasonable expenses in searching for a replacement business location, not to exceed $500. Such expenses may include transportation expenses, meals, and the reasonable value of time actually spent in search, including the fees of real estate agents or real estate brokers. All expenses claimed except value of time actually spent in search shall be supported by receipted bills. Payment for time actually spent in search shall be based on the applicable hourly wage for the person(s) conducting the search but shall not exceed $10 per hour. A certified statement of time spent in search and hourly wage rate(s) shall accompany the claim.

(d) A business displaced by a governmental agency shall be eligible for actual direct losses of tangible personal property, not to exceed $5,000 for all items combined, if it is entitled to relocate said property in whole or in part but elects not to do so. Payments for actual direct losses shall only be made after a bona fide effort has been made by the owner to sell the item(s) involved. When the item(s) is sold, the payment shall be determined in accordance with § 15-24-21(d) (1) or (2). If the item(s) cannot be sold, the owner shall be compensated in accordance with § 15-24-21(d) (3). The sales prices, if any, and the actual reasonable cost of advertising and conducting the sale shall be supported by a copy of the bills of sale or similar documents and by copies of any advertisements, offers to sell, auction records and other data supporting the bona fide nature of the sale. Any business receiving an in-lieu-of payment in accordance with § 15-24-21(b) shall not be eligible for an actual direct loss payment.

(1) If the business is to be reestablished and an item of personal property which is used in connection with the business is not moved but promptly replaced with a comparable item at the new location, the reimbursement shall be the lesser of:

(A) The replacement costs minus the net proceeds of the sale. "Trade in value" may be substituted for net proceeds of sale where applicable, or

(B) The estimated cost of moving the item to the replacement site but not to exceed 50 miles.

(2) If the business is being discontinued or the item is not to be replaced in the reestablished business, the payment shall be the lesser of:

(A) The difference between the fair market value of the personal property for continued use at its location prior to displacement less the net proceeds of the sale, or

(B) The estimated cost of moving the item to the replacement site but not to exceed 50 miles.

(3) If a bona fide sale is not affected under § 15-24-21(d) (1) or (2) because no offer is received for the property, and the property is abandoned, payment for actual direct loss of that item may not be more than the fair market value of the item for continued use at its location prior to displacement or the estimated cost of moving the item to the replacement business location not exceeding 50 miles, whichever is less, plus the cost of the attempted sale, irrespective of the cost to the displacing governmental agency of removing the item. In no event shall the total amount compensated to any business for actual direct loss of tangible personal property exceed $5,000.

(4) When personal property is abandoned with no effort being made by the owner to dispose of the property by sale, the owner shall not be entitled to moving expenses, or losses, for the items involved.

(5) The cost of removal of personal property shall not be considered as an offsetting charge against other payments to the displaced persons.

(e) A business displaced by a governmental agency shall be reimbursed its actual reasonable expenses of reconnecting trade fixtures in the replacement site. Reimbursement shall be limited to that work needed to enable the business to operate at the replacement site in a manner comparable to its operations in the former site.

(1) Expenses for reconnection of trade fixtures may include the utility connection of trade fixtures within the new premises. The adequacy and availability of the utilities in the replacement site and the expenses to resolve any deficiencies or in bringing required utilities from the right-of-way to the replacement premises, or modifications required to be made to trade fixtures or the replacement premises to meet governmental codes shall not be reimbursable items.

(2) All expenses claimed shall be preapproved by the displacing governmental agency. The claim shall be supported by receipted bills or, in the case of a self-move, the payment shall not exceed the lower of two firm bids or estimates obtained by the displacing governmental agency for the authorized work.

(3) If the displacing governmental agency determines that the cost to relocate and reconnect a trade fixture is excessive as compared to replacing it with a comparable item, the agency has the option of replacing the item. In this case, the business will not be charged for the removal of the abandoned trade fixture from the displacement site.

(f) A business displaced by a governmental agency shall be compensated for miscellaneous expenses associated with relocation, such as time spent by employees in the coordination, supervision and assistance in relocation, architectural or engineering services which may be necessary for the reconnection of trade fixtures, and other expenses. This amount shall be 20 per cent of the actual reasonable expenses to be compensated by the displacing agency in accordance with this chapter for the basic mover's charges, and, if applicable, the charges associated with relocating trade fixtures which may include expenses for specialized movers or technicians, and the charges associated with reconnecting trade fixtures as authorized in § 15-24-21(e). In the case of a self-move, these costs shall be based upon the lowest bids or estimates obtained by the displacing agency. This subsection shall not apply to businesses electing optional payments defined in §§ 15-24-6(b) and 15-24-21(b).

Notes

Haw. Code R. § 15-24-21

[Eff 2/11/91] (Auth: HRS §§ 206E-4, 206E-10.5) (Imp: HRS §§ 206E-4, 206E-10.5)
§ 15-24-21 is based substantially upon § 15-18-3. [Eff 9/22/84; am 5/11/85; R 2/11/91]