STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE V. TOKARSKI and HELEN K. TOKARSKI,

Petitioner,

1. CASE NO. 85-1938L

   
   

   DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

   
   

   Respondent.

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   RECOMMENDED ORDER

   
   

   Pursuant to notice, an Administrative Hearing was held before William R. Cave, Hearing Officer with the Division of Administrative Hearings, on July 31, 1985 in Pompano Beach, Florida. The issue for determination is whether Petitioners qualify for assistance under the Low-Income Home Energy Assistance Program.

   
   

   APPEARANCES

   
   

   For Petitioner: Charlie V. and Helen K.

   Tokarski, Pro Se

   6804 Northwest 29th Street Lot 1, Block 32

   Margate, Florida 33063

   
   

   For Respondent: Linda Peterson

   Human Services Program Administration 1350 South Pompano Parkway

   Pompano Beach, Florida 33069 BACKGROUND

   On November 30, 1985 the Petitioners applied for home energy assistance with the Respondent under the Low-Income Home Energy Assistance Program. Respondent denied the request for assistance based on Petitioners' household income exceeding the allowable monthly limit for a household the size of Petitioners'

   household. Petitioners requested an Administrative Hearing and this hearing was then scheduled and held.

   
   

   At the time of the hearing, Linda Peterson advised the undersigned that, due to an emergency, Harold Braynon, attorney for Respondent, would be unable to attend the hearing but that Linda Peterson was qualified to represent the Respondent as a qualified representative. After examining Linda Peterson, it was decided that she could represent the Respondent as a qualified representative.

   
   

   The Respondent proceeded first and was charged with the initial burden of proof.

   
   

   Linda Peterson submitted Respondent's Exhibits Nos. 1-3 which were received into evidence without objection. Charlie V. Tokarski testified for Petitioners but Petitioners introduced no exhibits.

   
   

   The parties hereto advised the undersigned that they did not intend to submit posthearing proposed findings of fact and conclusions of law as provided for under Section 120.57(1)(b)(4), Florida Statutes (Supp. 1984).

   
   

   FINDINGS OF FACT

   
   

   1. The Petitioner timely applied on November 30, 1984 for home energy assistance under the Low-Income Home Energy Assistance Program as authorized by Title XXVI of the Omnibus Budget Reconciliation Act of 1981 (Public Law 97-35).

      
      

   2. Petitioners' only income was "unearned income" which was their monthly social security benefit payments which totalled $561.00. No monthly medicare premiums were deducted from Petitioners' monthly social security payments.

      
      

   3. The Respondent in calculating Petitioners' verified monthly income added a total of $29.20 back into Petitioners' total monthly income of $561.00 for an adjusted total verified monthly income of $590.20.

      
      

   4. On April 10, 1985 Respondent officially notified Petitioners that the monthly income of $590.20 exceeded the monthly income limit ($560.00) for their household. Respondent upon discovering that medicare premiums were not deducted from

      Petitioners' monthly social security payments readjusted Petitioners' total verified household income to $561.00.

      
      

   5. Petitioners agree that their verified monthly income during the month of application was $561.00.

      
      

   6. The monthly income limit for a household the size of Petitioners' as determined under Rule lOC-29.13, Florida Administrative Code is $560.00.

      
      

   7. Petitioners had no excludable income.

      
      

   8. Other than exceeding the monthly income limit of

      $560.00 for household the size of Petitioners', the Petitioners were eligible for assistance under the Low-Income Home Energy Assistance Program.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   10. The Petitioners do not dispute that their monthly verified income is $561.00 and that the monthly income limit for their household is $560.00 but they question the fact that they were declared to be ineligible because their monthly verified income exceeded the monthly income limit by only one dollar.

       
       

   11. Under Section 409.508(2), Florida Statutes (1983) the Respondent "is designated as the state agency to administer the Low-Income Home Energy Assistance Act of 1981, 42 U.S.C. ss. 8621 et. seq." and "is authorized to provide home energy assistance benefits to eligible. . ." And, in accordance with Section 409.508(4), Florida Statutes, Respondent adopted Chapter 10C-29, Florida Administrative Code to carry out the provisions of this act.

       
       

   12. Rule 10C-29.13(1)(2)(3), Florida Administrative Code sets out the procedure for determining the monthly household income and Rule 10C-29.13(5), Florida Administrative Code sets out the procedure for determining the monthly income limits by household size. Once these determinations are made Rule 10C- 29.13(4), Florida Administrative Code provides that:

A household whose income is equal or is less than the income limit corresponding to the

household's size is income-eligible. A household whose income exceeds the limit is ineligible. (Emphasis supplied)

Upon the household's monthly income being verified and documented in accordance with Rule 10C-29.10, Florida Administrative Code, Rule 10C-29.13(4), Florida Administrative Code does not provide any exceptions if the household's income exceeds the household's income limit. Not even one dollar.

This may appear to be harsh and inequitable but using the Poverty Income Guidelines as set out in the Federal Register adjusted annually to account for increases in the Consumer Price Index as means to determine household size income is reasonable.

RECOMMENDATION

Based upon the findings of facts and conclusions of law recited herein, it is RECOMMENDED that the Respondent enter Final Order denying the Petitioners' application for assistance under the Low-Income Home Energy Assistance Program.

Respectfully submitted and entered this 19th of August, 1985, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 19th day of August, 1985.

COPIES FURNISHED:

Harold Braynon, Esq.

HRS District Ten Legal Counsel

201 West Broward Boulevard

Fort Lauderdale, FL 33301-1885 Charles V. and Helen Tokarski

6804 N.W. 29th Street, Lot 1, Block 32

Margate, FL 33063

Susan Kirkland, Esq. Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32301

David Pingree Secretary

1323 Winewood Boulevard

Tallahassee, FL 32301

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AGENCY FINAL ORDER

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STATE OF FLORIDA

DEPARTMENT OF HEALTH AND EHABILITATIVE SERVICES

CHARLIE V. TOKARSKI and HELEN K. TOKARSKI,

Petitioners,

vs. CASE NO. 85-1938L

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

Respondents.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Heath and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto as Exhibit A.

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The Department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommenced Order.

Based upon the foregoing, it is ADJUDGED that Petitioner's application for assistance under the Low Income Home Energy Assistance Program is denied.

DONE and ORDERED this 3rd day of October, 1985, in Tallahassee, Florida.

DAVID H. PINGREE

Secretary

A PARTY SHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U. S. Mail, at 3:30 p.m. o'clock, this 8th day of October, l985.

LESLEY MENDELSON, Agency Clerk Assistant General Counsel Department of HRS

1323 Winewood Boulevard

Tallahassee, Florida 32301

Harold L. Braynon, Esquire

HRS District Ten Legal Counsel

201 West Broward Boulevard

Fort Lauderdale, Florida 33301-1885

Charles V. and Helen Tokarski

6804 N.W. 29th Street, Lot 1, Block 32

Margate, Florida 33063

William R. Cave, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U. S. Mail, at 3:30 p.m. o'clock, this 6th day of December, l985.

LESLEY MENDELSON, Agency Clerk Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32301 904/488-2381

Docket for Case No: 85-001938

Orders for Case No: 85-001938