STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIANELA PENA, )

)

Petitioner, )

)

vs. ) CASE NO. 83-759L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly- designated Hearing Officer, William B. Thomas, held a formal hearing in this case on June 23, 1983, in Miami, Florida.

APPEARANCES

For Petitioner: None

For Respondent: Morton Laitner, Esquire

Ruth Rhode Building, Suite 1040

401 Northwest Second Avenue Miami, Florida 33128

The Respondent, Department of Health and Rehabilitative Services, denied the application of the Petitioner, Marianela Pena, for benefits under the Low Income Home Energy Assistance Program because it determined from the material submitted with the application that she was financially ineligible for benefits. By letter dated February 23, 1983, the Petitioner requested a formal administrative hearing on the matter of the agency's denial of her application.

FINDINGS OF FACT

At the final hearing in this case on June 23, 1983, the Petitioner failed to appear and present evidence in support of her contention that her application for low income home energy assistance was improperly denied. Notice of the time and place set for the hearing had been furnished to all parties to this case, including the Petitioner, at the address where other notices had been sent, in accordance with applicable statutory and rule provisions. This hearing notice was not returned by the post office. Counsel for the Respondent was present with a witness and was prepared to represent the Department as its interests might require.

CONCLUSIONS OF LAW

Section 28-5.211, Florida Administrative Code, authorizes the entry of a default with subsequent dismissal when the default is entered against a party who has the burden of proof in a proceeding. In this case, the Petitioner has

the burden of proof to demonstrate that she is qualified for low income home energy assistance; but at the final hearing, which was scheduled for this purpose, she declined to appear and present evidence of her eligibility. Thus, a default is appropriate and should be entered.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Department of Health and Rehabilitative

Services, enter a default against the Petitioner, Marianela Pena, and deny her application in this proceeding.

DONE and ENTERED this 27th day of June, 1983, in Tallahassee, Florida.

WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1983.

COPIES FURNISHED:

Ms. Marianela Pena 2160 S.W. 16th Avenue Apt. 116

Miami, FL 33145

Morton Laitner, Esq. Ruth Rhode Building Suite 1040

401 N.W. Second Avenue Miami, FL 33128

David Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32301

Docket for Case No: 83-000759

Orders for Case No: 83-000759