STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SIMMIE McNAIR, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1049L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an a administrative hearing was held in Jacksonville, Florida on April 29, 1981 before the undersigned Hearing Officer of the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Simmie McNair pro se

185 East 24th Street Jacksonville, Florida 32206

For Respondent: Leo J. Stellwagen, Esquire

Department of Health and Rehabilitative Services

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

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.

PRELIMINARY STATEMENT

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 for 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 her that her household income exceeded the monthly income limits and

therefore he was ineligible for benefits. Petitioner made a timely request or 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 all parties, Petitioner was advised of her rights and instructed as to the procedures to be followed at the hearing. Petitioner testified in her own behalf. Respondent called one witness and offered one composite exhibit which was entered as evidence.

FINDINGS OF FACT

1. Petitioner Simmie McNair requested a hearing by a letter received in the office of Respondent on March 24, 1981. After the required informal conference with a supervisor in the Respondent Department Petitioner requested a formal hearing.

   
   

2. On January 10, 1981 McNair, 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 four (4) other persons and receives a bill for use of electricity for heating. By Notice of Application Denial mailed February 2, 1981 Petitioner was informed that she was denied assistance for the reason that her monthly household income exceeded the maximum income limits for a household of her size. The 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 felt that assistance should have been based on need. Petitioner McNair's monthly household income during the month of her application was

   $908.60.

   
   

   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, Hearings for Individual Households, Rules Promulgated by the Department of Health and Rehabilitative Services, Florida Administrative Code.

   
   

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 96-223, "Hone 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 19 CER 81- 4.08, Florida Administrative ode, to extend the time period for application to February 13, 1981. Respondent has followed the foregoing statute, act and rules.

   
   

6. Petitioner made application for benefits for a five (5) person household with a gross monthly income in excess of $723.00. Rule 10 CER 80- 11.05, Income, Subsection (2), Florida Administrative Code, requires that the total income received by 11 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) , Florida Administrative Code, limits monthly income for a five

(5) person household to $723.00. 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 2nd day of June, 1981, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

on of Administrative Hearings The Oakland Building

200 Apalachee Parkway Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1981.

COPIES FURNISHED:

Mrs. Simmie McNair 1850 East 24th Street

Jacksonville, Florida 32206

Leo J. Stellwagen, 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: 81-001049

Orders for Case No: 81-001049