STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARRY M. NOLAND, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 84-0838L

)

DEPARTMENT OF HEALTH ) AND REHABILITATIVE HEARINGS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on March 28, 1984 in Merritt Island, Florida.

APPEARANCES

For Petitioner: Harry M. Noland, Jr., pro se

3915 Indian River Drive Cocoa, Florida 32922

For Respondent: Gary Clark, Esquire

400 West Robinson Street, Suite 912 Orlando, Florida 32801

BACKGROUND

On February 15, 1984 respondent, Department of Health and Rehabilitative Services, issued its proposed agency action in the form of a notice wherein it advised petitioner, Harry M. Noland, Jr., that it intended to deny his application for low income energy assistance. By letter dated February 20, 1984 petitioner requested a formal hearing pursuant to Subsection 120.57(1) Florida Statutes, to contest the denial. The matter was forwarded by respondent to the Division of Administrative Hearings on March 16, 1984 with a request that a Hearing Officer conduct a hearing.

By notice of hearing dated March 20, 1984 a final hearing was scheduled for March 28, 1984 in Merritt Island, Florida. At the final hearing petitioner testified on his own behalf. Respondent presented the testimony of Helen S. Hendry, supervisor for low income energy assistance programs in the Cocoa, Florida area. By agreement of the parties, Hearing Officer Exhibit 1 was received in evidence.

The issue herein is whether petitioner's application for low income energy assistance should be approved.

Based upon all of the evidence the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Harry M. Noland, Jr., learned of the low income energy assistance program through a notice received with his telephone bill. That program is administered by respondent, Department of Health and Rehabilitative Services (HRS).

   
   

2. On December 6, 1983 Noland filled out an application for low income energy assistance at the Cocoa office of HRS. He did so after being advised by HRS personnel that he was qualified to do so. The application indicated that Noland resided with his wife at 3915 Indian River Drive, Cocoa, Florida. It also reflected that he and his wife had no income whatsoever at the time the application was filed, but that he had applied for food stamps.

   
   

3. The application was reviewed by a Ms. J. Bunch, an HRS temporary worker, who sent Noland a "request for information" on December 6, 1983. It read as follows:

   
   

   Needed is your income for the month of December, 1983. If you receives (sic) Social Security or SSI a letter from the Social Security office is needed, if you are working a verification of income form is enclosed to be filled out by employer and return it to this office. If you are unemployed a statement is needed explaining how you (are) paying expenses. The statement has to (be) signed and dated and (send) it to this office.

   
   

   The notice stated that the above information had to be brought or mailed to the office no later than December 20, 1983 or the application would be denied.

   
   

4. Noland received the above notice and on December 15 prepared the following written reply:

   
   

   This is to verify that I have been unemployed since September 30, 1983, and presently have no prospects for employment.

   
   

   He hand-delivered his reply to Ms. Bunch the same day. She asked how he was paying his current expenses, and Noland told her he had no funds and was therefore unable to pay any current bills and expenses. Bunch accepted this oral reply, told Noland it was "okay", and gave him the impression that no further information was needed to comply with the notice mailed on December 6.

   
   

5. In December, 1983 HRS policy was for the program workers to make a written notation in an applicant's file when any clarifying information was obtained by telephone or when the applicant (Noland) was personally interviewed. For some unexplained reason, no written notation was made by Bunch in Noland's file. Noland was not told by Bunch that his application was still incomplete, and she did not request him to put his oral reply in writing. Had she done so, Noland would have provided further written information on a timely basis.

   Except for the "incomplete" written reply, Noland otherwise qualified for assistance.

6. At a later undisclosed date, Noland's application was reviewed and found to be deficient because he had not fully responded to the "request for information". Thereafter, it sent a notice of denial to Noland on February 15, 1984. That prompted the instant proceeding.

   
   

7. HRS processed some 3,287 applications at its Cocoa office between November 1 and December 16, 1983, the last day for filing the same. Only three temporary workers were employed to perform this task. The HRS representative testified that workers were extremely busy during the time Noland visited the Cocoa office due to the manpower shortage and time constraints imposed on that office.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

9. Rule 10C-29.11(8), Florida Administrative Code, provides in part as follows:

   
   

   (8) An applicant will be required to explain management during the month of application when he claims to have zero income and is not receiving food stamps. Eligibility cannot be

   determined upon failure to do so. The following shall apply:

   * * *

   (c) If an applicant who claims to have zero income and is not receiving food stamps fails to provide a reasonable explanation of how his basic needs are or were met during the month of application, the case must be referred to the District Program Specialist who shall have discretion on a case-by-case basis in deciding whether to accept the applicant's explanation of management.

   
   

10. Except for the omission concerning how he was paying for December expenses even though unemployed, Noland was otherwise qualified for assistance. He gave an HRS worker what he considered to be a satisfactory written reply to its request for information, and supplemented that reply orally during a face- to-face interview. After being told the application was "okay", and no further information was required, he departed without making any additional written comments on his December 15 reply. Through no fault of his own, the HRS worker failed to make a written notation in the file which would have made his application complete. Under these circumstances, it is concluded that Noland's application should be approved, and that he be given benefits in accordance with Rule 10C-29.19, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Harry M. Noland, Jr. for low income

energy assistance be approved and that he be given the appropriate benefits under Rule 10C-29.19, Florida Administrative Code.

DONE and ENTERED this 3rd day of April, 1984, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 3rd day of April, 1984.

COPIES FURNISHED:

Mr. Harry M. Noland, Jr. 3915 Indiana River Drive Cocoa, Florida 32922

Gary L. Clark, Esquire

400 West Robinson Street Suite 912

Orlando, Florida 32801

David H. Pingree, Secretary 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 84-000838

Orders for Case No: 84-000838