STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES C. GRAHAM, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2224L

)

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 23, 1984, at Orlando, Florida.

APPEARANCES

For Petitioner: James C. Graham, pro se

498 North Orange Blossom Trail Orlando, Florida 32805

For Respondent: Gary Clark, Esquire

Suite 911, 400 West Robinson Street

Orlando, Florida 32801

By letter dated March 15, 1984, James C. Graham, Petitioner, contends that the information he submitted in his Application for Home Energy Assistance is wrong and he needs all the help he can get. Based on this letter the case was forwarded by Respondent to the Division of Administrative Hearings for a formal hearing. No facts were alleged in this letter other than Petitioner was not getting $1,110.12 per month.

At the hearing, Petitioner testified in his own behalf, Respondent called one witness, and eight exhibits were admitted into evidence. There is no dispute as to the facts here involved and this case should have been resolved by Respondent in informal proceedings under Section 120.57(2), Florida Statutes.

FINDINGS OF FACT

1. On November 1, 1983, Petitioner submitted Household Application for Home Energy Assistance on which he listed as income VA benefits in the amount of

   $118 per month; unemployment compensation of $597.12 per month; and cash from his family of $300-$400 per month.

   
   

2. Petitioner is a one-member household. He was involved in a motorcycle accident in May, 1983, and has been unable to return to his job at Martin Marietta since that time. He received benefits of $160 per week from Martin Marietta's insurer from date of his accident until January 6, 1984, when his

   benefits were reduced to $80 per week because of his possible entitlement to Social Security disability benefits. Payments were suspended on January 13, 1984, pending Petitioner's submission to the insurance carrier a statement of continuing total disability (Exhibit 1).

   
   

3. Petitioner acknowledged on the witness stand that he receives VA disability compensation which is mailed to his bank monthly; however, he testified he has authorized the diversion of those funds to pay debts he owes, so that money is not available to him for daily living expenses.

   
   

4. The maximum monthly income a one-member household can receive and be eligible for home energy assistance is $405 (Exhibit 3).

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. Rule 10C-29.17, Florida Administrative Code, establishes procedures to be followed before a case is forwarded to the Division of Administrative Hearings. Subsection (4) thereof provides:

   
   

   (4) Prior to the hearing being conducted by the Department of Administration, an HRS supervisor will review the action taken and arrange for an interview with the applicant to determine whether the complaint can be resolved locally. If the supervisor determines an error was made by the Department and sufficient funds for assistance are available, then action will be taken immediately to correct the error. Following the interview, the applicant can choose not to pursue the hearing further and submit a statement of withdrawal of the hearing request. However, when the applicant wishes to pursue the hearing, the hearing process will be continued.

   
   

7. Section 120.57, Florida Statutes, contains the procedures to be followed to render decisions which affect substantial interests. This section provides in part:

   
   

   The provisions of this section shall apply in all proceedings in which the substantial interests of a party are determined by an agency. Unless waived by all parties, subsection (1) shall apply whenever the proceedings involve a disputed issue of material fact. Unless otherwise agreed, subsection (2) shall apply in all other cases.

   
   

8. Subsection (1) provides for formal proceedings which were requested by the Department of Health and Rehabilitative Services in this case when the file was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer. However, at this hearing no dispute existed regarding the facts material to this case. Petitioner submitted no evidence that his income

   was different on November 1, 1983, than he reported on his application. In fact, the evidence submitted by Petitioner shows that, if he is totally disabled and unable to return to work at Martin Marietta, as he contends, all he needs to do is submit evidence of this disability to Connecticut General Life Insurance Company and his payments of $80 per week will resume. These payments plus his VA compensation exceed the $405 per month minimum income required to establish eligibility for home energy assistance payments.

   
   

9. Subsection (2) of Section 120.57 contains the procedures for informal hearings. Since there were no disputed issues of material fact in this case, Petitioner was not entitled to a Section 120.57(1) proceeding and this case should have been resolved in informal proceedings in accordance with Section 120.57(2), Florida Statutes.

   
   

10. From the foregoing it is concluded that James C. Graham had income exceeding $405 per month during the months an applicant could receive low income home energy assistance and his application for such assistance should be denied. It is

RECOMMENDED a Final Order be entered denying the application for home energy assistance to James C. Graham for the reason his income exceeds the minimum required for eligibility.

ENTERED this 20th day of August, 1984, at Tallahassee, Florida.

K. N. AYERS 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 20th day of August, 1984.

COPIES FURNISHED:

James C. Graham

498 North Orange Blossom Trail Orlando, Florida 32805

Gary Clark, Esquire Department of Health and

Rehabilitative Services

Suite 911, 400 West Robinson Street

Orlando, Florida 32801

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1321 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 84-002224

Orders for Case No: 84-002224