STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MOUNT CARMEL GARDENS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 81-1132L

) FLORIDA DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in the above matter before the undersigned Hearing Officer on May 15, 1981, in Jacksonville, Florida. The following appearances were entered: Charles C. Caplan appeared on behalf of the Petitioner; and Leo J. Stellwagen, Jacksonville, Florida appeared on behalf of the Respondent.

The Petitioner, Mount Carmel Gardens, Inc., has filed an application for low income energy assistance program benefits with the Respondent, Department of Health and Rehabilitative Services. The Department initially denied the application, and the Petitioner requested a hearing. The final hearing was scheduled to be conducted as set out above by notice dated May 1, 1981.

At the final hearing Rowland Williams, a programs specialist assigned to the Respondent's low income energy assistance program in District IV testified on behalf of the Respondent. Charles C. Caplan, the administrator of the Petitioner, testified on behalf of the Petitioner. Exhibits 1 and 2 were received into evidence.

The issue in this proceeding is whether Mount Carmel Gardens, Inc. is eligible to receive low income energy assistance benefits under Chapter 30-167, Laws of Florida.

FINDINGS OF FACT

1. The Petitioner is a building operator of a residential housing project which has been established under the provisions of the National Housing Act of 1968 (1 U.S.C. 1715Z-1) and/or the Housing and Community Development Act of 1974 (42 U.S.C. 1437P). The heating costs of tenants in the project are included in their rent. The Petitioner has assured the Department of Health and Rehabilitative Services that payments received under the program would serve to provide additional heat or energy related benefits to the tenants.

   
   

2. The statement of profit and loss submitted by the Petitioner in support of its application reveals total income of $372,144.49. Total project expenses are shown to be $476,847.22. These figures reveal an operating loss of

   $104,702.73. Included as expense items in the profit and loss statement are

   $70,931.03 for depreciation on buildings, and $49,819.16 as depreciation on

   fixed building equipment. If these depreciation figures are eliminated as expense items, then the profit an loss statement would reveal that the Petitioner has operated at a profit of $16,047.46.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.57(1), Florida Statutes.

   
   

4. The Department of Health and Rehabilitative Services is charged with administering the Federal Home Energy Assistance Program in Florida. Chapter

   80-167, Laws of Florida. The Department has promulgated emergency rule to carry out provisions of the Act. Department Rule 10 CER 80-11.10 sets eligibility requirements for building operator applicants. The Petitioner in this case meets all the requirements except that set out in paragraph (2) of the rule which provides:

   
   

   The project must not be fully compensated. A low rent housing public housing authority project is not fully compensated when the sum of the project's reserve and approved

   subsidy does not equal or exceed the project's expenses less revenue. Other projects are

   not fully compensated when the sum of the project's approved subsidy and revenue does not equal or exceed the project's expenses.

   
   

   The Petitioner's revenues exceed its expenses. Only if depreciation of buildings and fixed building equipment are considered as expense items could it be determined that the Petitioner's expenses exceed revenues. Depreciation of buildings and fixed building equipment are not, however, out-of-pocket expense items, but rather items which reflect the overall value of the Petitioner's property for tax purpose . If these items were included as expense items, the Petitioner would in effect be able to count then twice because repairs to the buildings and the fixed building equipment would clearly be out-of- pocket expense items.

   
   

5. Since the Petitioner is fully compensated, it is not eligible to receive benefits under the low income energy assistance program

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That a final order be entered denying the Petitioner's application for benefits under the low income energy assistance program.

DONE and ORDERED this 25th day of May, 1981, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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 28th day of May, 1981.

COPIES FURNISHED:

Charles C. Caplan Mr. Alvin J. Taylor, Secretary

Administrator Department of Health and Mount Carmel Gardens, Inc. Rehabilitative Services 5846 Mount Carmel Terrace 1323 Winewood Boulevard Jacksonville, Florida 32216 Tallahassee, Florida 32301

Leo Stellwagen, Esquire Department of Health and Rehabilitative Services 5920 Arlington Expressway Post Office Box 2417-F Jacksonville, Florida 32231

Docket for Case No: 81-001132

Orders for Case No: 81-001132