STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTONIO KING, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6054

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on April 7, 1995, in Perry, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: no appearance

For Respondent: John R. Perry, Esquire

Assistant District Legal Counsel Department of Health and

Rehabilitative Services

2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

Whether or not Petitioner is entitled to developmental services under Chapter 393 F.S.

PRELIMINARY STATEMENT

Antonio M. King applied for and was denied developmental services under Chapter 393 F.S.

On October 3, 1994, Mr. King's mother, Mary Gude Jones, filed a request for formal hearing on his behalf. The case was referred to the Division of Administrative Hearings on or about November 1, 1994.

Only Respondent Department of Health and Rehabilitative Services (DHRS) responded to the Division's Initial Order. On December 8, 1995, a Notice of Hearing was mailed to the parties, scheduling formal hearing in Perry, Florida for April 7, 1995 at 10:30 a.m. C.S.T. An Order of Prehearing Instructions also was entered on December 8, 1995.

Neither party complied with the Order of Prehearing Instruction. The undersigned hearing officer arrived at the location noticed for formal hearing

prior to 10:30 a.m. Eastern Daylight Savings time as did the attorney for DHRS, DHRS' witness, Cyndena Hall, and a court reporter. Petitioner and his mother did not appear at 10:30 a.m. Eastern Daylight Savings Time.

Daylight savings time had gone into effect prior to April 7, 1995. Perry Florida is in the eastern time zone, not the central time zone. Calculations were made to accommodate any misunderstanding occurring as a result of the "10:30 a.m. C.S.T." time listed in the notice. The undersigned hearing officer, the court reporter, and DHRS's attorney and witness remained in the reserved hearing room until the equivalent of 11:00 a.m. C.S.T. No appearance was ever made by or on behalf of Petitioner.

DHRS moved for a recommended order of dismissal. The motion was taken under advisement for disposition in this recommended order.

FINDINGS OF FACT

1. As of September 14, 1994, Antonio M. King applied for and was denied developmental services pursuant to Chapter 393 F.S.

   
   

2. DHRS turned down Mr. King's application because his IQ score exceeded their guidelines.

   
   

3. By and through his mother, Mr. King timely requested formal hearing on whether he is entitled to a program that will teach him basic life skills sponsored by TARC and funded by DHRS, pursuant to Section 393.125 F.S.

   
   

4. As the Petitioner herein and applicant for services, Mr. King bore the burden of proof and duty to go forward to present evidence in this case. Neither Mr. King nor anyone on his behalf appeared at the date and time noticed for formal hearing.

   
   

5. After a grace period of one half hour beyond the time noticed formal hearing, the undersigned inquired of the DHRS attorney and his witness, Cyndena Hall, if they had nay indication that Petitioner had not received the notice of hearing or any knowledge why Petitioner had not appeared. Both reported that the address on the notice of hearing was the last address they had for Petitioner. Because the notice of hearing was not returned by the post office, the presumption is that Petitioner and his mother received notice of formal hearing and chose not to appear to present their case.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), F.S.

   
   

7. Respondent DHRS has moved for a recommended order of dismissal. Since Petitioner failed to appear or put on any evidence in support of his case, it is appropriate to grant that motion. See, Section 120.57(1) F.S. and Rule 60Q-

2.002 F.A.C.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health and Rehabilitative Services enter a final order dismissing Petitioner's September 14, 1994 request for services and specifying when he may reapply for services.

DONE and RECOMMENDED this 10th day of May, 1995, at Tallahassee, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1995.

COPIES FURNISHED:

Antonio M. King c/o Mary G. Jones

121 Beverly Street Perry, Florida 32347

John Perry, Esq Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399

Kim Tucker, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-006054

Orders for Case No: 94-006054