STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NAZARIO and FRANCES LOPEZ, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2038L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on October 7, 1981, in Miami, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose from the denial of Petitioners' application for Low Income Energy Assistance Program benefits by the Department of Health and Rehabilitative Services due to failure to meet the financial need requirements.

APPEARANCES

For Petitioners: Mr. & Mrs. Nazario Lopez, pro se

11250 South West 197th Street, Apt. 134 Miami, Florida 33157

For Respondent: Leonard Helfand, Esquire

Department of HRS

Room 1040, Ruth Rhode Building

401 North West Second Avenue Miami, Florida 33128

ISSUE

The issue is whether Petitioners' household income was within the maximum income limits.

FINDINGS OF FACT

1. Nazario and Frances Lopez applied for Low Income Energy Assistance Program benefits on June 22, 1981, as a two-person household. Their application was denied because their household income for the month of June was $452. The maximum income limit for a two-person household is $418. Mr. and Mrs. Lopez were otherwise qualified for these benefits.

   
   

2. Effective at the end of June, the Social Security disability benefits payable to Frances Lopez in the amount of $203 were discontinued, and they received $249 in July.

   CONCLUSIONS OF LAW

   
   

3. The Department of Health and Rehabilitative Services was charged with administration of the Low Income Energy Assistance Program by Section 409.508, Florida Statutes, which also granted the Department authority to adopt rules to implement the program.

   
   

4. The Department adopted Rule 10 CER 81-12, Florida Administrative Code, which provided that the application period would run from June 1 until June 30, 1981. There was initially no anticipation or intent to extend the period of application, as later occurred.

   
   

5. The Department also adopted Rule 10 CER 81-9, Florida Administrative Code, which provides in pertinent part:

   
   

   The total income received by household members during the month of application minus exclusions specified. . .is counted.

   
   

6. Subsequently, the Department extended the application period from June

   30 until July 17, 1981. This was done because of the minimal number of applications received during the initial period.

   
   

7. The real issue is whether the phrase "during the month of application" refers to June only or, in light of the subsequent amendment, also to July.

   
   

8. The phrase as used in Rule 10 CER 81-9, Florida Administrative Code, was intended to designate the specific period of time during which income would be assessed to determine qualification. Pursuant to Rule 10 CER 81-12, Florida Administrative Code, this period happened to be June, 1981. However, Rule 10 CER 81-9, supra, is complete and stands alone without reference to any other provisions of the rules.

   
   

9. By amending Rule 10 CER 81-12, Florida Administrative Code, to extend the period of application and not amending Rule 10 CER 81-9, supra, the Department intended for Rule 10 CER 81-9 to apply to the month of July, 1981, as well as to June. Therefore, the Petitioners' income must be computed in the month of application, June. In that month the Petitioners received $452, which exceeded the two-person household income limit of $418.

RECOMMENDATION

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

DONE and ORDERED this 20th day of October, 1981, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 20th day of October, 1981.

COPIES FURNISHED:

Mr. and Mrs. Nazario Lopez

11250 South West 197th Street, Apt. 134 Miami, Florida 33157

Leonard Helfand, Esquire Department of HRS

Room 1040, Rhode Building

401 North West Second Avenue Miami, Florida 33128

Alvin J. Taylor, Secretary

Attn: Susan B. Kirkland, Esquire Department of HRS

Building One, Room 405 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 81-002038

Orders for Case No: 81-002038