STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSLYN MOODY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1052L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in Daytona Beach, Florida on May 26, 1981 before the undersigned Hearing Officer of the Division of Administrative Hearings, Department of Administratio

APPEARANCES

For Petitioner: Roslyn Moody, pro se

225 West New York Avenue Hotel Putman, Apartment 419 Deland, Florida 32720

For Respondent: Leo J. Stellwagen, Esquire

Department of Health and Rehabilitative Services

5920 Arlington Expressway Post Office Box 2417-F Jacksonville, Florida 32231

Whether Petitioner is eligible for low income energy assistance as provided in Section 409.508, Florida Statutes (1980) Home Energy Assistance Program Rule

10 CER 80-11, Low Income Energy Assistance Program, amended by Rule 10 CER 81-4, Florida Administrative Code.

PRELIMINARY STATEMENT

Respondent Department of Health and Rehabilitative Services was designated in Section 409.508, Florida Statutes (1980), Home Energy Assistance Program, as the state agency to administer the Federal Home Energy Assistance Program as provided for in Title III, Public Law 96 223, "Home Energy Assistance Act of 1980." Pursuant thereto and upon submittal to and approval by federal authorities of the "Low Income Energy Assistance Program State Plan for the State of Florida for Fiscal Year 1980-81," 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 her that she is not responsible for paying her heating bills and therefore she was ineligible for benefits. Petitioner made a timely request for a hearing. After an informal conference with a supervisor of Respondent Department this administrative hearing was scheduled. Immediately prior to commencement of the hearing, in the presence of all parties, Petitioner was advised of her rights and instructed as to the procedures to be followed at the hearing. Petitioner testified in her own behalf. Respondent called one witness and offered one composite exhibit which was entered as evidence.

FINDINGS OF FACT

1. Petitioner Roslyn Moody requested a hearing by a letter received in the office of Respondent on May 7, 1981. After the required informal conference with a supervisor in the Respondent Department Petitioner requested a formal hearing.

   
   

2. On January 6, 198 Moody, a white female, filed a Household Application for low income energy assistance. She lives alone in an apartment in the Hotel Putman for which she pays $225.00 rent each month. She cleans her own apartment, does her own laundry and pays for the soap and other necessary items. She receives no bill for heating fuel, and her rent has not increased during the past year. The hotel in which she lives is subsidized by HUD, and Petitioner is charged a flat rental fee. She is not charged for excess utilities or a utility surcharge which includes heating costs. By Notice of Application Denial mailed January 6, 1981 Petitioner was informed that she was denied assistance for the reason that she is not responsible for paying her heating bill and therefore is not eligible for the program benefits. The vulnerability of Hotel Putman and Petitioner was provided by the hotel operator upon inquiry by the Respondent. The action was taken by Respondent within 45 days of Petitioner's application, and she was promptly notified of the reason for denial of benefits.

   
   

3. Petitioner did not dispute the evidence presented by Respondent Department but as convinced that she should be eligible since she pays rent and the cost of her own upkeep and her income is low.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of this matter a d the parties thereto pursuant to Section 120.57, Administrative Procedures Act, Florida Statutes, and Rule 10 CER 80-11.13, Hearings for Individual Households, Rules Promulgated by the Department of Health and Rehabilitative Services, Florida Administrative Code.

   
   

5. Section 409.50 , Florida Statutes (1980), Home Energy Assistance Program, Section 2, designates the Department of Health and Rehabilitative Services as the state agency to administer the Federal Home Energy Assistance Program as provided for in Title III, Public Law 6-223, "Home Energy Assistance Act of 1980," and to provide home energy assistance benefits to eligible households. The Department of Health and Rehabilitative Services promulgated Emergence Rule 10 CER 80-11, Low Income Energy Assistance Program, to carry out the provisions of the act and amended said rule by Emergency Rule 10 CER 81- 4.08, Florida Administrative Code, to exten the time period for application to February 13, 1981. Respondent has followed the foregoing statute, act and rules.

6. Rule 10 CER 80-11.10, Eligibility for Building Operator Applicants, Florida Administrative Code, provides eligibility for low income energy benefits to building operator applicants. Subsection (3) of tie foregoing rule provides inpart, "Tenants are not vulnerable when all their heating costs are included in the rent," and "The vulnerability of tenants in privately owned projects subsidized by HUD ... is determined based on information provided by the building operator." Rule 10 CER 80-11.08, Application Procedures and Processing, Subsection (7)(a), provides that "Applicants found ineligible on any factor will be mailed a written notice of denial." Respondent discussed the vulnerability of Petitioner with he building operator and found that all the heating costs of the hotel in which Petitioner lives are included in the rent. Therefore 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 8th day of June, 1981, in Tallahassee, Leon County, Florida

DELPHENE C. STRICKLAND

Hearing Officer

on of Administrative Hearings The Oakland Building

200 Apalachee Parkway Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1981.

COPIES FURNISHED:

Ms. Roslyn Moody

225 West New York Avenue Hotel Putman - Apt. 419 Deland, Florida 32720

Leo J. Stellwagen, Esquire Department of HRS

5920 Arlington Expressway Post office Box 2417-F Jacksonville, Florida 32231

Alvin J. Taylor, Secretary

Attn: Susan B. Kirkland, Esquire Department of HRS

Building One, Room 406 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 81-001052

Orders for Case No: 81-001052