STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FERNANDO TORRES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-541L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in Daytona Beach, Florida on April 15, 1981 before the undersigned Hearing Officer of the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Fernando Torres, pro se

222 Lime Tree Drive Edgewater, Florida 32032

For Respondent: No appearance.

ISSUE

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.

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 in Title III, Public Law 96-223, "Home Energy Assistance Act of 980." 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 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's witness offered four (4) composite exhibits which were entered as evidence.

FINDINGS OF FACT

1. Petitioner Fernando Torres requested a hearing by a letter received in the office of Respondent on March 2, 1981. After the required informal conference with a supervisor in the Respondent Department Petitioner requested a formal hearing.

   
   

2. On January 13, 1981 Torres, a Hispanic 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 alone and receives a bill for use of electricity for heating. By Notice of Application Denial mailed February 18, 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. The action was taken by Respondent within 45 days of Petitioner's application, and he as 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, particularly since the cost of living has increased. Petitioner Torres' monthly household income is $847.60. Under Rule 10 CER 80-11.07, Determination of Eligibility Based on Income, Florida Administrative Code, and the applicable chart Petitioner's income exceeds the income limit of $316.00 for a household of one person.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Section 409.508, 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 96-2 3, "Home Energy Assistance Act of 1980," and to provide home energy assistance benefits to eligible households. The Department of Health and Rehabilitative Services promulgated Emergency 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 extend the time period for application to February 13, 1981.

   
   

6. Petitioner made application for benefits for a one person household with a gross income in excess of $316.00. Rule 0 CER 80-11.05, Income, Subsection (2), 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 one person household to $316.00. 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 21st day of May, 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 21st day of May, 1981.

COPIES FURNISHED:

Mr. Fernando Torres 2224 Lime Tree Drive

Edgewater, Florida 32032

Paul C. Doyle, 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: 81-000541

Orders for Case No: 81-000541