STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLYDE BRITT, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2320L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

By agreement of the parties, this case was heard prior to official receipt of the case file by the Hearing Officer. The hearing was held on October 7, 1981, in Miami, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose from the denial of the Petitioner's application for Low Income Energy Assistance Program benefits by the Department of Health and Rehabilitative Services because of failure to meet the financial need requirements.

APPEARANCES

For Petitioner: Clyde Britt, pro se

5307 North East Second Avenue, Apt. P-1220 Miami, Florida 33138

For Respondent: Leonard Helfand, Esquire

Department of Health and Rehabilitative Services

Room 1040, Ruth Rhode Building

401 North West Second Avenue Miami, Florida 33128

ISSUE

The parties stipulated that the sole basis for denial of Petitioner's application for benefits was that his income for the month in which he applied exceeded the maximum income limit for a two-person household. The sole issue is whether the Petitioner was within the maximum income limit.

FINDINGS OF FACT

1. Clyde Britt applied for Low Income Energy Assistance Program benefits in July, 1981. The Department of Health and Rehabilitative Services denied Britt's application solely because Britt's income in July, the month he applied, was

   $419 and exceeded the maximum income limit of $418 for a two-person household.

   
   

2. In the month of June, 1981, Britt received $394.50 and would have qualified had he applied in that month.

3. The increase in Britt's income was due to the automatic cost of living allowance which was paid in July.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Department of Health and Rehabilitative Services was charged with administration of the Low Income Energy Assistance Program by Section 409.508, Florida Statutes, which also granted the Department authority to adopt rules to implement the program.

   
   

5. The Department adopted Rule 10 CER 81-12, Florida Administrative Code, which provided that the application period for benefits would run from June 1 until June 30, 1981. There was initially no anticipation or intent to extend the period of application, as later occurred.

   
   

6. The Department also adopted Rule 10 CER 81-9, Florida Administrative Code, which provides in pertinent part:

   
   

   The total income received by household members during the month of application minus exclusions specified. . .is counted.

   
   

7. Subsequently, the Department extended the application period from June

   30 until July 17, 1981. This was done because of the minimal number of applications received during the initial application period.

   
   

8. The real issue is whether the phrase "during the month of application" refers to June only or, in light of the subsequent amendment, also to July.

   
   

9. The phrase as used in Rule 10 CER 81-9, Florida Administrative Code, was initially intended to designate the specific period of time during which income would be assessed to determine qualification. Pursuant to Rule 10 CER 81-12, Florida Administrative Code, this period happened to be June, 1881.

   However, Rule 10 CER 81-9, supra, is complete and stands alone without reference to any other provisions of the rules.

   
   

10. By amending Rule 10 CER 81-12, Florida Administrative Code, to extend the period of application and not amending Rule 10 CER 81-9, supra, the Department intended for Rule 10 CER 81-9 to apply to the month of July as well as June. Therefore, the income of Petitioner Britt must be computed for the month of July.

    
    

11. In the instant case, Petitioner's income for July, the month of application, exceeded the maximum income limit by $1.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, and having considered the post-hearing letter from Petitioner Britt, the Hearing Officer recommends that Low Income Energy Assistance Program benefits be denied Petitioner.

DONE and ORDERED this 20th day of October, 1981, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 20th day of October, 1981.

COPIES FURNISHED:

Mr. Clyde Britt

5307 North East Second Avenue, Apt. P-1220

Miami, Florida 33138

Leonard Helfand, Esquire Department of HRS

Room 104, Rhode Building

401 North West Second Avenue Miami, Florida 33128

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: 81-002320

Orders for Case No: 81-002320