STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELA V. SANTANA, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1706L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on July 21, 1982, in Tampa, Florida.

APPEARANCES

For Petitioner: Margaret V. Santana

107 West Woodlawn Avenue Tampa, Florida 33603

For Respondent: Janice M. Sortor, Esquire

Department of Health and Rehabilitative Services

4000 West Buffalo Avenue, 5th Floor Tampa, Florida 33614

On April 16, 1982, Petitioner, Angela V. Santana, allegedly mailed a household application for assistance under the Low Income Energy Assistance Program to Respondent, Department of Health and Rehabilitative Services.

Respondent did not reflect receipt of the application at its offices. Thereafter, when the application was submitted a second time, it was denied on the ground it was not timely filed.

Petitioner requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the denial of her request. The matter was referred by Respondent to the Division of Administrative Hearings on June 22, 1982, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated June 30, 1982, the final hearing was scheduled for July 21, 1982, in Tampa, Florida.

At the final hearing, Petitioner's daughter, Margaret Santana, testified on her mother's behalf and offered Petitioner's Exhibits 1-3, each of which was received in evidence. Respondent presented the testimony of Ted Sugarman, unit supervisor for the program, and Howard A. Kornbluth, unit supervisor for clerical and data processing, and offered Respondent's Exhibit 1 which was received into evidence.

The issue herein is whether Petitioner is entitled to assistance under the Low Income Energy Assistance Program.

Based upon the evidence, the following facts are determined:

FINDINGS OF FACT

1. On April 16, 1982, Petitioner, Angela V. Santana, mailed a household application for energy assistance under the Low Income Energy Assistance Program to Respondent, Department of Health and Rehabilitative Services. When she had received no reply for two months, Petitioner's daughter visited the offices of Respondent and was told it had no record of her application being filed. She was also told to request an administrative hearing if she wished to contest the matter. That advice prompted the instant hearing. Thereafter, on June 17, 1982, Petitioner refiled her application and simultaneously requested a hearing. Her second application was later denied on the ground it was received after the program had closed.

   
   

2. The Department processed approximately 8,000 applications at its Tampa District Office between March 15 and April 23, 1982. When the complaint of Santana was received, it reviewed computer forms and printouts, a card catalog system, application log and application log-in sheets in an attempt to locate her application. However, it had no record of Santana's application being filed. The Department was not aware of any other complaints concerning lost or misplaced applications. It has no procedures for allowing persons to refile applications that fall within this category unless they are timely filed.

   
   

3. Petitioner initiated a trace of her letter with the United States Post Office on June 25, 1982. The Post Office was unable to locate the letter.

   
   

4. The application originally mailed on April 16 and refiled on June 16 included a copy of Petitioner's April, 1982 social security check. Since the check was deposited in April, Petitioner necessarily had to photocopy the check that month in order to retain a copy for her records. This corroborates her claim that an application was indeed mailed in April.

   
   

5. The instructions given to applicants advises them that "[i]f (they) have not received a notice of denial or approval by June 17, 1982, (they) should notify th(e) office immediately." However, if an applicant waited until June 17 to contact the Department, the time for filing a second application would have expired.

   
   

6. Petitioner lives in her household with one other person. Her monthly countable income is approximately $348 which falls within the income limitations for households having two persons. Therefore, she is qualified to receive assistance.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

8. Rule 10C-29.13(5)(a), Florida Administrative Code, prescribes the criteria for determination of eligibility of applicants. For households having two persons the countable monthly income may not exceed $474. Because Petitioner's income was less than that amount, she was eligible for assistance.

9. Rule 10C-29.15(1) Florida Administrative Code, provides that the application period is limited to the period of March 15, 1982 through April 23, 1982 and that applications must be received within those dates in order to be considered valid. The application was not officially received within this time period and, under ordinary circumstances, could not be considered valid.

   
   

10. In this case the application was apparently lost in the mails or inadvertently misplaced at the District Office. Had applicant been aware of this situation, she surely would have refiled a second application by April 23, 1982, the last day for participation in the program. But pursuant to instructions by the Department, she made no inquiry until June 16, which was almost two months after the program had closed. By then Department rules prohibited the refiling of an application and effectively foreclosed any opportunity for applicant to remedy the situation.

    
    

11. Applicant's witness was sincere and credible, and presented testimony and documentary evidence to show that the application was indeed mailed on April 16, 1982. Under these circumstances, applicant should be permitted to have her second application considered. Because it reflects she is eligible for assistance, it should be granted. Cf. Re: Lora Henderson v. Department of Health and Rehabilitative Services, Case No. 81-2554L, Recommended Order entered 12/3/81.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Angela V. Santana for energy assistance

be GRANTED.

DONE and ENTERED this 29th day of July, 1982, in Tallahassee, Florida.

COPIES FURNISHED:

Ms. Angela V. Santana

107 West Woodlawn Avenue Tampa, Florida 33603

DONALD R. ALEXANDER

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 29th day of July, 1982.

Janice Sortor, Esquire Department of HRS

4000 West Buffalo Avenue, 5th Floor Tampa, Florida 33614

Docket for Case No: 82-001706

Orders for Case No: 82-001706