       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                                  A.N.,
                                Appellant,

                                    v.

            DEPARTMENT OF CHILDREN AND FAMILIES,
                          Appellee.

                              No. 4D17-704

                            [March 14, 2018]

  Appeal from the Department of Children and Families; L.T. Case Nos.
16F-07199 and 1371323542.

   A.N., Fort Lauderdale, pro se.

   Edmund M. Haskins, Fort Lauderdale, for appellee.

GERBER, C.J.

   The appellant appeals from a final order issued by the Department of
Children and Families, finding that the appellant’s receipt of a Florida
Retirement System (FRS) pension disqualified him from being eligible to
compromise an overpayment which he received from the Department for
food assistance. The appellant argues, among other things, that the final
order is incorrect as a matter of law. We agree with the appellant, and
conclude that the appellant’s receipt of an FRS pension did not disqualify
him from being eligible to compromise the overpayment. Thus, we reverse.

    The Department sent the appellant a notice informing him that for an
eleven month period, he received $1,958.00 more in food assistance
benefits than he was entitled to receive. The notice further informed the
appellant that he could enter into a repayment agreement with the
Department or request the Department to compromise the overpayment.

   The notice referred to Florida Administrative Code Rule 65A-1.900,
which outlines the procedure by which an individual may request the
Department to compromise an overpayment. Rule 65A-1.900 states, in
pertinent part:
(6) Compromising Food Stamp Claims. . . .

(a) Individuals with an overpayment claim in the Food Stamp
Program may request a compromise of their claim at any time
after they are notified of the claim.

(b) For purposes of a compromise request made pursuant to
this rule, the Department will determine [if] the economic
household circumstances reasonably demonstrate the
overpayment claim will not be paid within three years of being
notified of the overpayment claim and will compromise to zero
dollars when at least one of the following is present:

1. The death or prognosis of death of any liable individual
within three years of being notified;

2. Pending litigation in a court, including a bankruptcy
court, that involves any liable individual’s obligation to repay
the overpayment within three years of being notified;

3. Any liable individual is sentenced to a period of
incarceration that will expire after the three-year period the
overpayment is expected to be paid; or

4. The liable individual(s) sole household’s income is based
only on either age or disability projecting a fixed, limited
economic potential to repay the overpayment within three
years.

(c) The Department requires verification of subparagraphs 1.
through 4. above. When a decision is made concerning the
compromise request, the Department will provide written
notice of the decision including information about hearing
appeal rights.

(d) Liable individual(s) can request a compromise even if
subparagraphs (b)1. through 4. above do not apply. The
request and any other related information provided must
clearly show the overpayment claim will not be paid within the
three-year period. The Department will not speculate about
the liable individual’s ability to repay the overpayment. If the
Department must speculate about the liable individual’s
ability to repay the overpayment, the Department will deny
the request and provide written notice of the decision.

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Fla. Admin. Code. R. 65A-1.900(6) (2016) (emphasis added).

   The appellant requested a compromise under rule 65A-1.900(6)(b)4.
(“The liable individual(s) sole household’s income is based only on either
age or disability projecting a fixed, limited economic potential to repay the
overpayment within three years.”) and rule 65A-1.900(6)(d) (“The request
and any other related information provided must clearly show the
overpayment claim will not be paid within the three-year period.”).

   The Department notified the appellant that it denied his request for
compromise, and that he remained liable for the full amount of the
overpayment claim.

   The appellant appealed the denial to the Department’s Office of Appeal
Hearings. One of the Department’s hearing officers convened a hearing to
consider the appellant’s appeal.

    At the hearing, the appellant indicated that he was seventy years old,
had retired at age sixty-eight from a position with the Miami-Dade Public
Schools, was receiving a Miami-Dade Public Schools pension of $257 per
month, and was receiving Social Security payments of $957 per month,
for a total fixed monthly income of $1,214. The appellant also submitted
records indicating his necessary monthly expenses exceeded his fixed
monthly income. Based on these facts, the appellant argued he was
entitled to a compromise under rule 65A-1.900(6)(b)4. and rule 65A-
1.900(6)(d).

   The Department did not challenge the appellant’s circumstances.
Instead, the Department’s compromise specialist testified that the
appellant did not qualify for a compromise under either rule 65A-
1.900(6)(b)4. or rule 65A-1.900(6)(d). More specifically, the Department’s
compromise specialist repeatedly testified that the appellant’s receipt of
his pension disqualified him from being eligible to compromise an
overpayment because, according to the compromise specialist, the
appellant’s pension is not based on age or disability.

  The appellant responded that his pension was solely based on his age.
The hearing officer then asked the appellant to clarify whether his pension
was based on his age or the amount of time he had been working. The
appellant responded: “[I]t is based on age.”

  The hearing officer later entered a final order denying the appellant’s
appeal. In the final order, the hearing officer quoted the four compromise

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criteria specified in rule 65A-1.900(6)(b) and found: “The [appellant] did
not meet any criteria in subparagraphs one through four above, especially
number four (4), because his pension is not based on age or disability.”
(emphasis added).

   This appeal followed. The appellant argues, among other things, that
the final order is incorrect as a matter of law because neither the
Department nor the hearing officer cited any statute or rule supporting the
finding that the appellant’s receipt of an FRS pension disqualified him from
a compromise on the overpayment. The appellant requests that pursuant
to rule 65A-1.900(b)(6), he should be granted a full compromise resulting
in his food assistance overpayment being reduced to zero.

   Our review is de novo. See Nikolits v. Haney, 221 So. 3d 725, 728 (Fla.
4th DCA 2017) (“Statutory construction and interpretation of
administrative rules are . . . legal issues subject to de novo review.”).

   We agree with the appellant’s argument. The Florida Retirement
System provides retirement income to a county employee upon the
employee attaining a specified age. See generally § 122.08(1)(a), (2)(a), Fla.
Stat. (2016). Thus, the appellant’s receipt of an FRS pension based on his
age did not disqualify him from a compromise on the overpayment under
rule 65A-1.900(6)(b)(4)’s plain language.

    Based on the foregoing, the Department and the hearing officer erred
as a matter of law in denying the appellant’s request for a compromise on
the overpayment under rule 65A-1.900(6)(b)4. We reverse the hearing
officer’s final order, and remand for the Department to compromise the
appellant’s overpayment claim to zero dollars.

   Reversed and remanded for proceedings consistent with this opinion.

GROSS and KUNTZ, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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