STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAMIE McBRIDE, )

)

Petitioner, )

)

vs. ) CASE NO. 83-769L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, ARNOLD H. POLLOCK, held a hearing in this case on April 12, 1983, in Orlando, Florida.

APPEARANCES

For Petitioner: Barry Laboda, Esquire

880 North Orange Avenue Orlando, Florida 32801

For Respondent: Gerry L. Clark, Esquire

Assistant District Counsel Department of Health and

Rehabilitative Services

400 West Robinson Street Orlando, Florida 32801

ISSUE

Whether Petitioner was properly denied home energy assistance.

FINDINGS OF FACT

1. Petitioner holds two employment positions: one as a cleaning lady for Mr. Harry Schuttlekotte, who resides in Longwood, Florida, and from whom she earns $30 per week; and Mr. J. W. Schuttlekotte, who resides in Altamonte Springs, Florida, from whom she earns $60 per week as a cleaning lady. Both figures are net income (take home pay). In addition to the above, she receives

   $127 per month from AFDC, which started in August, 1982, and food stamps in the amount of $90 per month.

   
   

2. Petitioner's family unit consists of herself, her 21-year-old student daughter (no income), and her 5-year-old grandson. She is buying her own home (with a mortgage) and owns her own car. She has no other property worth over

   $500.

3. On November 22, 1982, she applied for Low Income Energy Assistance Program (LIEAP) assistance by filing an HRS-ES Form 1036 with the Respondent's office on South Orange Blossom Trail in Orlando. On the form, she listed the members of her family unit, her earned income as $300 per month, and denied receiving AFDC payments. Her testimony, as outlined in Paragraph (1) above, reveals these entries to be false.

   
   

4. When Theodora Bookhardt, an employee of Respondent, was processing Petitioner's application a short while later, she saw where Petitioner indicated she was receiving food stamps and decided to verify Petitioner's employment income through the food stamp computer which would have that information. She could find no verification in that computer. As a result, on December 8, 1982, she wrote to Petitioner requesting her to furnish verification of her employment and income. Petitioner did not respond to that letter, so on December 29, 1982, she sent petitioner another letter requesting the same information, and again received no response. In each case, the letter sent to Petitioner contained a deadline for response which, in the latter case, was January 11, 1983. On January 17, 1983, six days beyond the deadline, having received no visit, calls or messages from the Petitioner, or verification of income as requested, Ms. Bookhardt denied Petitioner's application.

   
   

5. Petitioner acknowledges receipt of the first letter from Ms. Bookhardt, but denies timely receipt of the second. While it arrived at her home in a timely fashion, her daughter misplaced it without her seeing it when it arrived. Petitioner states that when she received the first letter, she tried to call Ms. Bookhardt, but could not reach her. She also states that when she found the second letter she again tried to reach Ms. Bookhardt several times to explain that she was having difficulty getting verification statements from her employers, but could not do so. I find that Ms. McBride did make some effort to reach Ms. Bookhardt, but did not follow up to ensure the Respondent had the information or an explanation that was required.

   
   

6. She finally received her verification letters from her employers in February, 1983, though they were dated January 18, 1983, in both cases. Coincidentally, the LIEAP assistance was denied on January 17, 1983, and the verification letters are both dated one day later though they came from different people in different locations and appear to be typed on the same typewriter. The day after she received them, on February 17, 1983, she took them to Respondent's office where she made her application for assistance and gave them to a man who was working there.

   
   

7. Dominic Leone was unit manager for the Orlando LIEAP program for Respondent from November, 1982, to February, 1983. He was familiar with Ms. McBride's situation from having talked with Ms. Bookhardt. Ms. McBride contacted him on February 17, 1983, to submit the letters from her employers. By that time, the LIEAP staff had been all but disbanded and consisted only of himself and a clerk. Though he had the discretion to grant the assistance, in

   light of the two unanswered requests for information, the lateness of filing the verification, and the fact that a search of the office files revealed no record of any contact by Petitioner regarding her difficulty in securing the verification, to grant her the assistance requested would be unfair to other applicants who had been denied, because their verification was late.

   
   

8. In light of the false information on the application form submitted by Ms. McBride regarding her receipt of AFDC payments and the amount of her income, the coincidental dating of the verification forms one day after denial of her request, the late filing of those forms even after denial, and the unlikely

   chance that Ms. Bookhardt would fail to receive or fail to return at least one call from Ms. McBride, I find that she made no substantial effort to provide the requested verification information or to explain her failure until faced with the fact that her request was denied.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Respondent has promulgated certain rules for terminating the eligibility of applicants who apply for assistance under LIEAP.

    
    

11. Rule 10C-29.11(6), Florida Administrative Code, provides:

    
    

    When sufficient verification or documentation of income other than that given in (4) and (5) above is not presented with the Household Application for Home Energy Assistance, HRS-ES Form 1036, a request for the necessary information will be mailed to the applicant with a ten working day deadline given for response. If the income needed to be verified is from employment, the applicant will be required to ask his employer to complete the form Verification of Income from Employment, HRS (Temp) Form 112, DEC 80, which is incorporated by reference. The applicant will be ineligible for assistance and his application will be denied if the applicant does not provide the information or contact the worker by the date of the deadline. The worker will attempt to assist the individual in securing the information if the individual contacts the worker by the date of the deadline and indicates he has been unable to secure the information.

    
    

12. The evidence here reveals that verification of Petitioner's income was required from her employers since it could not be acquired any other way. She was advised of the need for this information and, in accordance with the terms of the rule, given the required ten-day deadline. When she failed to respond within that first deadline, she was sent a second request and given a second

    ten-day deadline. She was then given an additional five days after the expiration of the second deadline without response before denial action was taken.

    
    

13. The evidence also reveals that Petitioner failed to exercise a reasonable degree of effort and cooperation with Respondent's attempts to verify her income as required. In fact, her application also contains some substantive inaccuracies.

    
    

14. Based on Petitioner's failure to reasonably cooperate with Respondent and Respondent's extraordinary patience and forbearance here, it is clear that Petitioner forfeited her opportunity to collect energy assistance for this period.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That the Department of Health and Rehabilitative Services deny Petitioner's application for low income energy assistance benefits.

RECOMMENDED this 11th day of May, 1983, in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 11th day of May, 1983.

COPIES FURNISHED:

Barry Laboda, Esquire 880 North Orange Avenue Orlando, Florida 32801

Gerry L. Clark, Esquire Assistant District Counsel Department of Health and Rehabilitative Services

400 West Robinson Street Orlando, Florida 32801

Mr. David Pingree Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-000769

Orders for Case No: 83-000769