STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORA LEE ANDREWS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1461L

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on July 14, 1983, at Lakeland, Florida.

APPEARANCES

For Petitioner: Ora Lee Andrews, pro se

530 West Magnolia Street Lakeland, Florida 32801

For Respondent: Anthony N. DeLuccia, Jr., Esquire

Department of Health and Rehabilitative Services

Post Office Box 06085

Fort Myers, Florida 33906

By letter received May 13, 1983, at the Department of Health and Rehabilitative Services Energy Assistance Office, District XI, Ora Lee Andrews contests the determination that she receive only $13 in low income energy assistance payments for a household of 13 people including herself. At the hearing one witness was called by Respondent, Petitioner testified in her own behalf, and three exhibits were admitted into evidence.

FINDINGS OF FACT

1. By application for Home Energy Assistance dated November 16, 1982 (Exhibit 1) , Ora Andrews, Petitioner, listed her name, the names of her three daughters, and four of their nine children on the eight lines on the application form as occupants of the same household. She also included total family income of $1,239 per month.

   
   

2. On a separate page she listed the names of her other five grandchildren living in her household and mailed these documents to Respondent.

   
   

3. When the energy benefits for Petitioner were computed, the second sheet had become separated from the application, the benefit was computed for an

   eight-member household (including the applicant), and Petitioner was forwarded a

   check for $13, presumably the low income home energy assistance to which an applicant with the income reported by Petitioner in an eight-member household was entitled.

   
   

4. Maximum income below which a household may be eligible for home energy assistance is $1,288 per month. Accordingly, Petitioner qualified for such assistance.

   
   

5. By the time thin application was submitted, Respondent had sufficient funds for only partial payment of the maximum amount authorized and had established, by emergency rule, the amounts to be paid under modified tables similar to the tables listed in 10C-29.19(4), Florida Administrative Code. The amount payable under this emergency rule was not presented at the hearing.

   
   

6. Neither Respondent's sole witness nor Respondent's attorney presented any evidence to show how the benefit received by Petitioner was computed, the rules under which the benefit was computed, or other evidence to show the $13 paid to Petitioner was, indeed, correct.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. Rule 10C-29.19(2), Florida Administrative Code, provides that after a household has been determined eligible for assistance, $25 will be deducted for each member of the household, other than the applicant, from the monthly income. Here, the monthly income was $1,239 and there were 12 members of the household other than the applicant. Multiplying this number by $25 equals $300 and when this is substracted from $1,239, a balance of $939 remains.

   
   

9. Polk County, where Petitioner resides, is located in Climatic Region 4 (Rule 10C-28.19(3)). According to the tables in Rule 10C-28.19(4), the maximum amount payable for a household with an income of $750 or more is $34.

   Apparently this amount was reduced by the emergency rule which was only referred to at the hearing. However, the computation of Petitioner's benefits with an eight-member household or a 13-member household would result in Petitioner having more than $750 per month after a deduction of $25 for each member of the household, other than the applicant, from the $1,239 per month received.

   
   

10. Since no evidence was presented regarding the amounts payable under the emergency rule in effect at the time of this application, it cannot be said the $13 is correct or incorrect.

    
    

11. It further appears that this case should not have been referred to the Division of Administrative Hearings for a formal hearing as there were no facts in dispute, but should have gone to informal proceedings pursuant to Section 120.57(2), Florida Statutes. If the putative dispute involved the number of members in Petitioner's household, this could have been resolved from Respondent's records which showed benefits paid Petitioner's daughters in aid to families with dependent children. At the hearing Petitioner's complaint appears to be that the benefits paid to her were based on an eight-member household rather than a 13-member household. No one had explained to Petitioner that reducing the extra $125 (for the five additional children) from her monthly income would not move her below the $750 and over bracket and thereby increase the amount to which she was entitled. As a result of this formal hearing, the state will pay for the Hearing Officer's time and travel expenses to attend the

    hearing, the time and travel expenses of HRS District VIII Legal Counsel, the time and travel expenses of one witness, and an appearance fee for a reporter.

    
    

12. From the foregoing it is concluded the only factual issue in this case, i.e., whether there are eight or 13 members in Petitioner's household, is immaterial in determining the amount of the low income energy assistance payments to which an applicant with an income of $1,239 a month is entitled; and no evidence was presented that the $13 paid is incorrect. It is therefore

RECOMMENDED that the petition of Ora Lee Andrews for increased low income energy assistance payments be dismissed and this case CLOSED.

ENTERED this 1st day of August, 1983, at Tallahassee, Florida.

K. N. AYERS, 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 1st day of August, 1983.

COPIES FURNISHED:

Ora Lee Andrews David H. Pingree, Secretary

530 West Magnolia Street Department of Health and Lakeland, Florida 32801 Rehabilitative Services

1321 Winewood Boulevard

Tallahassee, Florida 32301

Anthony N. DeLuccia, Jr., Esquire Department of Health and

Rehabilitative Services Post Office Box 06085

Fort Myers, Florida 33906

Docket for Case No: 83-001461

Orders for Case No: 83-001461