STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK BUSCAGLIA, )

)

Petitioner, )

)

vs. ) CASE NO. 81-448L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in Ocala, Florida on April 2, 1981 before the undersigned Hearing Officer of the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Frank Buscaglia, pro se

Route 1, Box 220

Oklawaha, Florida 32679

For Respondent: James A. Sawyer, Esquire

Department of Health and Rehabilitative Services

3001 Southwest Broadway

Ocala, Florida 32671

ISSUE

Whether Petitioner is eligible for low income energy assistance as provided in Chapter 80-167, Laws of Florida; Rule 10 CER 80-11, amended by Rule 10 CER

81-4.08 through 4.11, Florida Administrative Code.

PRELIMINARY STATEMENT

Respondent Department of Health and Rehabilitative Services was designated in Chapter 80-167, Laws of Florida, as the state agency to administer the Federal Home Energy Assistance Program as provided in Title III, Public Law 96-

223. Pursuant thereto Respondent instituted the Low Income Energy Assistance Program.

A timely Household Application for benefits on an approved form was received from Petitioner. The application was promptly processed by the Respondent Department. A Notice of Application Denial was mailed to Petitioner notifying him that his household income exceeded the monthly income and therefore he was ineligible for benefits. Petitioner made a timely request for a hearing. After an informal conference with a supervisor of the Respondent Department this administrative hearing was scheduled. Petitioner brought no

witnesses or personal representative to the hearing. Immediately prior to commencement of the hearing, in the presence of all parties, Petitioner was advised of his rights and instructed as to the procedures to be followed at the hearing. Petitioner testified and offered one exhibit which was entered into evidence. Respondent called one witness and offered one composite exhibit which was entered as evidence.

FINDINGS OF FACT

1. Petitioner Frank Buscaglia requested a hearing by a letter received in the office of Respondent on April 1, 1981. After the required informal conference with a supervisor in Respondent Department Petitioner requested a formal hearing.

   
   

2. On January 7, 1981 Buscaglia, a white male, filed a Household Application for low income energy assistance. No one in his household is a migrant or migrant farm worker, and no one else has applied for the low income energy assistance. He lives with his wife and receives a bill for use of liquid propane for heating. By Notice of Application Denial mailed February 10, 1981 Petitioner was informed that he was denied assistance for the reason that his monthly income exceeded the maximum income for a household of his size. Action was taken by Respondent within 45 days of Petitioner's application, and he was promptly notified of the reason for denial of benefits.

   
   

3. Petitioner did not dispute the evidence presented by Respondent Department but was convinced the income limit by household size was unfair, especially since the cost of living is so high that his income will not permit so essential an expenditure as hospitalization insurance for his wife. He stated that it appears that if only 25 percent of the eligible needy applied for low income energy assistance that the $19.7 million set aside for Florida's needy should be re-reviewed and the funds used for those whose monthly income slightly exceeded the guidelines. He is a World War II veteran, having been awarded the Silver Star and the Croix de Guerre. Respondent agreed at the hearing to determine whether illegal aliens were eligible for the low income energy assistance.

   
   

4. Under Rule 10 CER 80-11.07, Florida Administrative Code, and the applicable chart Petitioner Huscogiias income exceeds the income limit of

   $418.00 for a household of two (2) persons.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of this matter and the parties thereto pursuant to Section 120.57, Florida Statutes, and Rule

   10 CER 80-11.13, Rules Promulgated by the Department of Health and Rehabilitative Services, Florida Administrative Code.

   
   

6. Chapter 80-167, Laws of Florida, Energy Research and Development Task Force, Section 4, Home Energy Assistance Benefits, authorizes the Department of Health and Rehabilitative Services to administer the Federal Home Energy Assistance Program as provided in Title III, Public Law 90-223 and to provide home energy assistance benefits to eligible households. The Department of Health and Rehabilitative Services promulgated Emergency Rule 10 CER 80-11 to carry out the provisions of the act and amended said rule by Emergency Rule 10 CER 81-4.08 through 4.11, Florida Administrative Code, to extend the time period for application.

7. Petitioner made application for benefits for a two (2) person household with a gross income of $486.73. Rule 10 CER 80 11.07, Florida Administrative Code, Determination of Eligibility Based on Income, Subsection (2) limits monthly income for a two (2) person household to $418.00. Thus the petitioner is not eligible for low income energy assistance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that low income energy benefits be denied Petitioner.

DONE and ORDERED this 7th day of April, 1981, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1981.

COPIES FURNISHED:

Mr. Frank Buscaglia Route 1, Box 220

Oklawaha, Florida 32679

James A. Sawyer, Esquire Department of HRS

3001 SW Broadway

Ocala, Florida 32671

Susan B. Kirkland, Esquire Department of HRS

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 81-000448

Orders for Case No: 81-000448