STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BERNICE MILLER, )

)

Petitioner, )

)

vs. ) CASE NO. 81-545L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in Jacksonville, Florida on April 28, 1981 before the undersigned Hearing Officer of the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Bernice Miller, pro se

4229 Moncrief Road, West, Apartment 26

Jacksonville, Florida 32209

For Respondent: Paul C. Doyle, Esquire

Department of Health and Rehabilitative Services

5920 Arlington Expressway Post Office Box 2417-F Jacksonville, Florida 32231

ISSUE

Whether Petitioner is eligible for low income energy assistance as provided in Chapter 80-167, Laws of Florida, Energy Research and Development Task Force; Rule 10 CER 80-11, Low Income Energy Assistance Program, amended by Rule 10 CER 81-4, Florida Administrative Code.

PRELIMINARY STATEMENT

Respondent Department of Health and Rehabilitative Services was designated in Chapter 80-167, Laws of Florida, Energy Research and Development Task Force, 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 1980." 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 her that her household income exceeded the monthly income and therefore she 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 her rights and instructed as to the procedures to be followed at the hearing. Respondent called one witness and offered two (2) composite exhibits which were entered as evidence.

FINDINGS OF FACT

1. Petitioner Bernice Miller requested a hearing by a letter received in the office of Respondent on March 16, 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 hut appeared at the second hearing.

   
   

2. On January 19, 1981 Miller, a black female, filed a Household Application for low income energy assistance. No one in her household is a migrant or migrant farm worker, and no one else has applied for the low income energy assistance. She lives with two (2) other persons and receives a bill for use of electricity. By Notice of Application Denial mailed February 18, 1981 Petitioner was informed that she was denied assistance for the reason that her monthly income exceeded the maximum income for a household of her size. Action was taken by Respondent within 45 days of Petitioner's application, and she 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. She stated she received a bill for electricity for her freezer and air conditioner. Respondent presented evidence (Respondent's Composite Exhibit 1) which shows that Petitioner lives in a housing project which heats by gas from a central heat unit. Petitioner is not financially affected by the rising cost of energy pursuant to Rule 10 CER 80-11.04, Eligibility Factors Other Than Income, Florida Administrative Code.

   
   

4. Under Rule 10 CER 80-11.07, Determination of Eligibility Based on Income, Florida Administrative Code, and the applicable chart Petitioner Miller's household income exceeds the income limit of $519.00 for a household of three (3) persons.

   
   

   CONCLUSIONS OF LAW

   
   

5. 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 Code.

   
   

6. Chapter 80-167, Laws of 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, 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-II, Low Income Energy Assistance Program, to carry out the provisions of the act and amended said rule by Emergency Sole 10 CSR 81-4.08, Florida Administrative Code, to extend the time period for application to February 13, 1981.

7. Petitioner made application for benefits for a three (3) person household with a combined gross income in excess of $555.00. Rule 10 CER 80- 11.05, Income, Subsection (1), Florida Administrative Code, requires that the total income received by all household members during the month of application he 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 three (3) person household to

   $519.00.

   
   

8. Petitioner lives in a housing project which heats by gas from a central heat unit. Rule 10 CER 80-11.04, Eligibility Factors Other Than Income, Subsection (2), requires that a household must be financially affected by the rising cost of energy by paying some part of its home heating cost through means such as direct payments to utility companies, increases in rent, or excess utility surcharges. 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 4th 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 4th day of May, 1981.

COPIES FURNISHED:

Ms. Bernice Miller

4229 Moncrief Road, West - Apt. 26 Jacksonville, Florida 32209

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: 81-000545

Orders for Case No: 81-000545