STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MRS. LILLIE KELLY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-145L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for final hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings on February 8, 1983, in Gainesville, Florida.

APPEARANCES

For Petitioner: Mrs. Lillie M. Kelly, pro se

Post Office Box 39

High Springs, Florida 32643

For Respondent: James Sawyer, Esquire

District III Legal Counsel Department of Health and

Rehabilitative Services 2002 Northwest 13th Street Gainesville, Florida 32601

The Petitioner herein seeks to obtain benefits under the Respondent's low income home energy assistance program. She filed an application for those benefits and the application was denied because the Respondent maintains it was not timely filed. The Respondent agrees that the Petitioner is financially and otherwise qualified to receive the benefits, had the application been timely.

At the hearing the Petitioner presented her own testimony and the testimony of Charlotte Bright. The Petitioner presented one exhibit which was admitted into evidence and the Respondent presented three exhibits, all of which were admitted into evidence. The Respondent presented no testimony, but requested official notice of Rule 10D-29.15, Florida Administrative Code, which was granted.

The issue to be resolved in this proceeding, inasmuch as the parties have stipulated that the Petitioner is financially eligible for the subject benefits, concerns whether the application was timely pursuant to the authority cited hereinbelow.

FINDINGS OF FACT

1. The Petitioner was the recipient of approximately $50 per month in low income home energy assistance benefits in the assistance period immediately

   prior to the one at issue. She is a grandmother and is raising six grandchildren in her home. Her only income is social security and Aide to Families with Dependent Children (AFDC) benefits. There is no dispute in this proceeding that the Petitioner is financially qualified to receive the subject low income home energy assistance benefits. The Petitioner requires the subject benefits in order to pay for fuel oil and gas for home heating and cooking.

   
   

2. Sometime in December, 1982, the Petitioner received an application form for the subject benefits from the HRS office in Gainesville, Florida. She filled out the form and gave it to her niece, Charlotte Bright, who testified in this proceeding, for mailing. Charlotte Bright mailed the form on the evening of December 26, 1982, in Gainesville. She looked on the mailbox in which she mailed the letter, and observed that the posted times for the Postal Service to pick-up letters from that box were at 3:00 p.m. and 5:00 p.m. that day. Accordingly, she realized that the letter could not be postmarked until December 27, 1982. She had earlier been told by an employee of the Respondent that a postmark of December 27, 1982, was acceptable. Accordingly, being conscious of the requirement that the letter be mailed so as to be postmarked on the 27th and knowing that the 5:00 p.m. pick-up deadline for the 26th had already passed, she wrote on the envelope (which is in evidence in this proceeding as Respondent's Exhibit 2) the following language, "I mailed this letter December 27, 1982, before 12:00 midnight, please accept this letter."

   
   

3. In fact, although she mailed the letter on the 26th and wrote the notation regarding its mailing time to the effect that it was mailed effectively on December 27, the letter was shown to have been picked-up in Gainesville, taken to Jacksonville where it was postmarked on December 28, 1982, and then returned to Gainesville for ultimate delivery to the Respondent, which occurred on approximately December 29 or 30, 1982. It was Ms. Bright's belief, in acting on behalf of the Petitioner, that by mailing the letter in such a way for delivery in Gainesville, that it should have been postmarked the 27th and delivered that day, or at least the following day, but with a postmark which would have complied with the rule cited below, which effectively sets the deadline for posting at midnight December 27, 1982.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. The parties hereto were duly noticed pursuant to the notice provision of Chapter 120, Florida Statutes.

   
   

6. The Department of Health and Rehabilitative Services is charged with administration of this program pursuant to Section 409.508, Florida Statutes (Supp. 1980). Pursuant to the rules promulgated for this program, the cut-off or deadline date for applications for such benefits was established to be midnight December 27, 1982. The subject Rule, 10C-29.15, Florida Administrative Code, was adopted, effective November 11, 1982. It provides that applications must be postmarked no later than midnight of the fourth Friday in December. The fourth Friday in December fell on a legal holiday, December 24, 1982, and the rule provides that the following business day shall be the last day upon which an application may be received or postmarked for delivery to the Respondent.

   
   

7. Through no fault of the Petitioner, the subject application was actually postmarked in Jacksonville on Dulcimer 28, 1982. The Petitioner had

deposited the subject application in the mail on December 26, 1982, after pick- up and delivery hours and therefore expected and indeed wrote on the face of the envelope (Respondent's Exhibit 2) that this letter had been mailed in time for postmarking on December 27, 1982. The Petitioner's evidence to this effect is unrefuted. She reasonably believed that if she posted the letter in Gainesville for delivery in Gainesville, that it should be delivered the following day, or at least postmarked on the 27th for delivery on Tuesday, the 28th. A reasonable person similarly situated would not assume or believe that posting a letter in Gainesville for delivery in Gainesville would necessitate that letter being transferred to Jacksonville for postmarking and re-delivery to Gainesville by the United States Postal Department, adding at least an unforeseen extra day in postmarking and delivery. In any event, the purpose of a postmark, to show the date on which a letter is deposited in the mail for delivery to the intended recipient, was certainly served by Ms. Bright's posting of the application with the above-cited notation, which shows that indeed it was deposited in the mail no later than December 27, 1982, and in actual fact was deposited after pick-up and delivery hours on December 26, 1982. It is obvious that these facts demonstrate that the intent of the above rule concerning deadlines for application for these benefits was certainly complied with by the Petitioner and the fact that the vagaries and inefficiencies of the United States Postal Service in transferring the application to a different city for postmarking for re-delivery to Gainesville were unforeseen by the Petitioner, should not be used to penalize her by denying her benefits. It is concluded that the application was timely filed and the benefits are due the Petitioner.

RECOMMENDATION

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

RECOMMENDED:

That Mrs. Lillie Kelly be declared eligible for participation in the home energy assistance program and that the appropriate benefits for which she is financially entitled be awarded her.

DONE and ENTERED this 28th day of February, 1983, in Tallahassee, Florida.

P. MICHAEL RUFF 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 28th day of February, 1983.

COPIES FURNISHED:

Mrs. Lillie M. Kelly

P.O. Box 39

High Springs, Florida 32643

James Sawyer, Esquire District III Legal Counsel Department of HRS

2002 NW 13th Street Gainesville, Florida 32601

David H. Pingree, Secretary Department of HRS

1323 Winewood Blvd.

Tallahassee, Florida 32301

Docket for Case No: 83-000145

Orders for Case No: 83-000145