STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY GOLDPAINT, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1918

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on January 12, 1983, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Jeffrey Goldpaint, pro se

1152 18th Avenue, North Apartment Number 7

Lake Worth, Florida 33460

For Respondent: K. C. Collette, Esquire

Department of Health and Rehabilitative Services

111 Georgia Avenue

West Palm Beach, Florida 33401

This cause was initiated on the petition of Jeffrey Goldpaint for an administrative hearing pursuant to Section 120.57(1), Florida Statutes (1981), whereby he disputes the denial by the Respondent of his request for vocational rehabilitation funding for his enrollment in a curriculum of computer science at Palm Beach Junior College. That request was denied and on June 16, 1982, the Respondent sought a hearing pursuant to Section 120.57(1), Florida Statutes.

The Petitioner testified on his own behalf and presented three exhibits.

Petitioner's Exhibit 2 was not admitted due to its hearsay nature, but was proffered as legal argument only. Petitioner's Exhibit 1 and Exhibit 3 were admitted. The Respondent presented one witness and one exhibit, which was admitted into evidence.

The issue in this cause concerns whether the Petitioner is entitled to funds from the Department of Health and Rehabilitative Services' Office of Vocational Rehabilitation for enrollment in a curriculum of computer science after having already received benefits for vocational training in two other career areas, journalism and real estate sales.

FINDINGS OF FACT

1. The Petitioner, Jeffrey Goldpaint, is a disabled individual as determined by the Social Security Administration and has received funds through the Social Security system for his disability, administered by the Respondent's vocational rehabilitation program. His disability is of a psychiatric nature. During and before 1976, he was enrolled in a journalism curriculum, funding for which was provided by the Respondent. In 1976, the Petitioner elected to withdraw from the program, the reason for which withdrawal is not clear, although the Petitioner remonstrated that it was unavoidable, due to illness.

   
   

2. In any event, after negotiation with the Respondent, the Petitioner obtained additional funding from the Respondent, as administrator of the federal program for vocational rehabilitation contained in Title 34, Code of Federal Regulations, Section 361, for additional rehabilitation training. Pursuant to this second rehabilitation effort, the Petitioner successfully completed training to be a real estate salesman, passed his examination and was licensed. As a part of that rehabilitation effort, the Respondent made available to the Petitioner employment placement assistance in order to help ensure that the petitioner would obtain employment in the real estate sales field. The Petitioner refused to respond and participate in the Respondent's job placement efforts for him and ultimately sought additional funding for a third course of study from the Respondent in the area of computer science, the denial of which instigated this proceeding.

   
   

3. The Petitioner's motivation in seeking entitlement to the subject course of study in computer science lies in his belief that, because be is disabled and because of the moribund state of the real estate market in his geographical area, that he has a right to additional vocational training. The Respondent established, however, that the Petitioner is now employable as a real estate salesman. There is a substantial likelihood of his placement in an employment position in -that field of endeavor.

   
   

4. It was not established that his disability is a hindrance or handicap to his employability in view of his past successfully completed vocational rehabilitation training and education. The Petitioner's voluntary decision to ignore the employment placement assistance afforded him by the Respondent was the direct and proximate cause of his lack of employment in his previously chosen career field at the time of the hearing. His request to be paid for enrollment in a course of study in computer science was motivated by a subjective and personal change in his career goals and not because his disability posed any handicap to his employability as a real estate salesman. It was established by the Respondent that the Petitioner could be successfully employed in a real estate career, especially had he availed himself of the employment placement assistance offered by the Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1981).

   
   

6. A number of provisions of Chapter 413, Florida Statutes, and especially Section 413.24, Florida Statutes (1977), mandate the Department of Health and Rehabilitative Services to cooperate, pursuant to agreement with the Federal Government, in carrying out the purposes of federal statutes pertaining to vocational rehabilitation. That section requires the adoption of methods of

   administration which have been found by the Federal Government to be necessary for proper and efficient operation of plans for vocational rehabilitation and to comply with such conditions as may be necessary to secure the full benefit of federal statutes and federal funds available to the state for vocational rehabilitation purposes. In order to obtain the federal funds involved in the instant case, compliance with Title 34, Code of Federal Regulations, Section 361, is required, which section contains the criteria for eligibility for vocational rehabilitation which are at issue herein.

   
   

7. The criteria for eligibility, as pertinent hereto, appear in Title 34, Code of Federal Regulations, Section 361.31(b)(1) and (2), wherein it is provided that eligibility to receive funds for vocational rehabilitation training is based upon:

   
   

   1. The presence of a physical or mental disability which for the individual constitutes or results in a substantial handicap to employment; and

   2. A reasonable expectation that vocational rehabilitation services may benefit the individual in terms of employability. (Emphasis supplied)

It was not demonstrated by the Petitioner herein that, although he clearly has a disability, that that disability is a substantial handicap to his employment.

Indeed, it was established that the Petitioner's past vocational rehabilitation benefits have resulted in his being thoroughly prepared for a career in real estate, which he chose of his volition at the time he embarked on that course of study, and that his failure to be employed at the time of the hearing in a real estate career is largely due to his own failure to participate in the department's employment placement assistance program. Thus, it was not shown by the Petitioner that the disability itself is a substantial handicap to his employment now that he has been the beneficiary of two efforts at vocational rehabilitation and indeed the Respondent's evidence demonstrates that he is employable in the field he had formerly chosen and for which the Respondent provided his training. Further, with regard to Subsection (2), it was not demonstrated by the Petitioner that the vocational rehabilitation services he now seeks would benefit him in terms of employability any more than those vocational rehabilitation services he has already received. In summary, the Petitioner's present effort to obtain a third award of vocational rehabilitation services and benefits is due to his own subjective change in his choice of career and not due to any remaining substantial handicap to his employment occasioned by his disability. Therefore, the Petitioner's proof has failed to meet the criteria enunciated in the subject rule and thus his entitlement to the disputed vocational rehabilitation benefits has not been established.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, it is, therefore

RECOMMENDED:

That the petition of Jeffrey Goldpaint be DENIED.

DONE and ENTERED this 8th day of April, 1983, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1983.

COPIES FURNISHED:

Jeffrey Goldpaint 1152 18th Ave., North Apartment #7

Lake Worth, Florida 33460

K. C Collette, Esquire Department of Health and

Rehabilitative Services

111 Georgia Avenue

West Palm Beach, Florida 33401

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32301

Docket for Case No: 82-001918

Orders for Case No: 82-001918