STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN E. LIVINGSTON, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0739L

)

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 June 18, 1984 at Ocala, Florida.

APPEARANCES

For Petitioner: John E. Livingston, pro se

606 Southwest Broadway

Ocala, Florida 32615

For Respondent: James A. Sawyer, Jr., Esquire

Department of Health and Rehabilitative Services

1000 North East 16 Street, Building H Gainesville, Fl. 32601

By letter dated February 13, 1984, John E. Livingston, Petitioner, seeks an administrative hearing to contest the denial of his application for low-income energy assistance. At the hearing, the parties stipulated to the following facts.

FINDINGS OF FACT

1. John E. Livingston applied for energy assistance on November 16, 1983. From the income shown on his application, Petitioner would be eligible for $84 in benefits.

   
   

2. On December 28, 1983, Respondent mailed a letter to Petitioner requesting he present additional evidence to verify the VA compensation shown on his application. Due to some mix-up in the mail, this letter was not delivered to the mailing address of Petitioner until February 28, 1983. The letter was mailed to the address given by Petitioner as his mailing address. This address is the church at which Petitioner is assistant pastor and to which he goes daily.

3. By notice dated February 1, 1984, Petitioner was notified that his application for assistance was denied because he had failed to present the additional information requested within 10 working days as required by rule.

   
   

4. Petitioner then submitted his request for hearing.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter of, this proceeding.

   
   

6. Rule 10C-29.11(6), Florida Administrative Code, pertains to verification and documentation of income for those applying for energy assistance and generally provides that if additional proof of income is needed to verify the application, such notification will be mailed to the applicant with a 10 working day deadline given for response. Specifically, this rule provides:

   
   

   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.

   
   

7. This rule properly establishes a 10 day window in which an applicant must provide the information requested. The letter notifying Petitioner of this requirement was mailed to Petitioner and entered the U.S. Postal System on December 28, 1983. There is a presumption that letters placed in the U.S. Postal System are delivered within a reasonable period of time to the address shown on the letter. This presumption is rebuttable. In this case, the letter was not delivered to the addressee until February 28, 1984, long after the 10 day window in which Petitioner was required to provide the requested information had been closed. Under these circumstances, the presumption of delivery of the letter is rebutted and Petitioner did not receive notification that additional information was needed until after his application had been denied.

   
   

8. Requiring applicants to present additional information needed to process their application within ten days of notification carries with it a requirement that the applicants receive actual notice or that notice be delivered to the address provided by the applicant. Since notice was not received by the applicant and no conduct or act of Petitioner contributed to this lack of notice, the 10 day period did not start when the letter was postmarked but on February 28, 1984 when the letter was delivered to Petitioner's address. Since the request for hearing preceded that date, Petitioner did timely contact the department and the additional information has been received by the department.

   
   

9. From the foregoing it is concluded that for some inexplicable reason, the letter to Petitioner advising him to provide additional income information, which was postmarked December 28, 1983, was not delivered to the address shown on the envelope until February 28, 1984, and that Petitioner's response to the request for additional information was timely. It is

RECOMMENDED that the application of John E. Livingston for low-income energy assistance be granted in the amount to which he is entitled by his income and size of household.

Entered this 29th day of June, 1984, in 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 29th day of June, 1984.

COPIES FURNISHED:

John E. Livingston

606 Southwest Broadway

Ocala, Florida 32615

James A. Sawyer, Jr., Esquire Department of Health and

Rehabilitative Services

1000 North East 16 Street, Bldg. H Gainesville, Florida 32601

David Pingree Secretary

Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Florida 32301

Docket for Case No: 84-000739

Orders for Case No: 84-000739