STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH B. DUNCAN, )

)

Petitioner, )

)

vs. ) CASE NO. 81-386L

)

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: Kenneth B. Duncan, pro se

9313 Spring Road

Ocala, Florida 32672

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. 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. Respondent called one witness and offered one composite exhibit which was entered as evidence.

FINDINGS OF FACT

1. Petitioner Kenneth B. Duncan requested a hearing by a letter received in the office of Respondent on February 9, 1981. After the required informal conference with a supervisor in Respondent Department Petitioner requested a formal hearing. Petitioner failed to appear at the first hearing scheduled but appeared at the second hearing.

   
   

2. On January 6, 1981 Duncan, a black 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 one other person and receives a bill for use of electricity for heating. By Notice of Application Denial mailed February 5, 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 his son, who is a member of his household, does not contribute any money he makes from the CETA Program to the home but uses all the home facilities.

   
   

4. Under Rule 10 CER 80-11.07, Florida Administrative Code, and the applicable chart Petitioner Duncan's household 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 96-223 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 combined gross income of $533.44. Rule 10 CER 80-11.05(1), Florida Administrative Code, requires that the total income received by all household members during the month of application be considered (excluding only specified funds not pertinent to the facts of this case). Rule 10 CER 80-11.07, 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 8th 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 8th day of April, 1981.

COPIES FURNISHED:

Mr. Kenneth B. Duncan 9313 Spring Road

Ocala, Florida 32672

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: 81-000386

Orders for Case No: 81-000386