STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ETHEL M. TATUM, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2464L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on January 27, 1982, in Avon Park, Florida.

APPEARANCES

For Petitioner: Ethel M. Tatum in pro se

1416 South Carolina Drive Avon Park, Florida 33825

For Respondant: Anthony N. DeLuccia, Jr., Esquire

Department of Health and Rehabilitative Services

8800 Cleveland Avenue, South Fort Myers, Florida 33907

On June 3, 1981, Petitioner, Ethel Tatum, filed a household application for cooling assistance under the Low Income Energy Assistance Program. The application was denied by Respondent Department of Health and Rehabilitative Services, on August 24, 1981, on the ground Petitioner had not furnished verification of her monthly earned income.

Petitioner requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the denial of her application. The matter was referred by Respondent to the Division of Administrative Hearings on September 25, 1981, with a request that a Hearing Officer be assigned to conduct a hearing. The matter was held in abeyance while the Department confirmed that Petitioner wished to have a formal hearing in lieu of an informal conference with Department officials. This confirmation was supplied on December 8, 1981. By Notice of Hearing dated January 11, 1982, the final hearing was scheduled for January 27, 1982, in Avon Park, Florida.

At the final hearing, Petitioner testified on her own behalf and presented the testimony of Ollie Mae Hawkins. Respondent offered Respondent's Exhibit 1, which was received into evidence. This exhibit is a copy of a portion of the application filed by Tatum.

The issue herein is whether Petitioner is entitled to cooling assistance under the Low Income Energy Assistance Program.

Based upon all the evidence, the following facts are determined:

FINDINGS OF FACT

1. On June 3, 1981, Petitioner, Ethel Tatum, filed a household application for cooling assistance under the Low Income Energy Assistance Program with Respondent, Department of Health and Rehabilitative Services. Petitioner resides in Highlands County, Florida, which is part of Abe Central Cooling Climatic Region for purposes of determining the level of assistance to be given claimants. After reviewing the application, Respondent requested applicant to furnish "....verification of (her) earned income..." on July 14, 1981, in order to complete processing of the application. In response to this request, a representative of the Agriculture and Labor Program, Inc. sent copies of Mr. & Mrs. Tatum's check stubs for June, 1980 through May, 1981, to verify the household's monthly income. The application was ultimately denied by Respondent on August 24, 1981, on the ground Petitioner had failed to furnish verification of her income as required by Department rule.

   
   

2. When the application was filed, petitioner and two other persons lived in her household. She disclosed that her total countable monthly income for June, 1981, was 558, which exceeds the $519 income limitation for households having three persons. Accordingly, even though the Department based its action on lack of verification of income, Petitioner was ineligible for assistance because she exceeded the income limitations prescribed by Department rule.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes, and Rule 10 CER 00-11.13, Florida Administrative Code.

   
   

4. Rule 10 CER 81-17(3), Florida Administrative Code, specifies the level of assistance for eligible households in Highlands County, Florida, where Petitioner resides. For households having three persons with countable monthly income not exceeding $519 the level of assistance is $142. Petitioner's income exceeded this limitation for the month of June, 1981.

   
   

5. At the request of the parties, the record was left open for ten days in order that Petitioner's income for June, 1981, could be verified by her employer in Sebring, Florida. A subsequent inquiry by the Department reflected no record of earnings from the employer for that month. However, verification of income in June, 1981, is immaterial since Petitioner has already acknowledged in her application that her income was $550, or $31 in excess of Department limitations. Therefore, her application must be denied.

   
   

6. Petitioner should not be faulted for requesting an administrative hearing to appeal the initial determination by Respondent. Had she been given a pre-hearing "interview" with HRS representatives as required by Rule 10 CER 81- 13(4), Florida Administrative Code, and explained the real basis for denial, she would not have been led to believe that assistance could be granted by merely furnishing verification of income.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Ethel M. Tatum for cooling assistance

be DENIED.

DONE and ENTERED this 8th day of February, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 Hearing this 8th day of February, 1982.

COPIES FURNISHED:

Ethel M. Tatum

1416 South Carolina Drive Avon Park, Florida 33825

Anthony N. DeLuccia, Jr., Esquire Department of HRS

8800 Cleveland Avenue, South Fort Myers, Florida 33907

Ms. Ollie Mae Hawkins

Agricultural & Labor Program, Inc. 1650 Highlands Avenue

Avon Park, Florida 33825

Docket for Case No: 81-002464

Orders for Case No: 81-002464