STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OFFICE OF COMPTROLLER, )

DEPARTMENT OF THE LOTTERY )

and DEPARTMENT OF HEALTH )

AND REHABILITATIVE SERVICES, )

)

Petitioners, )

)

vs. ) CASE NO. 89-6731

)

LEROY WISE, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on January 30, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioners: Jo Ann Levin

Senior Attorney

Office of the Comptroller The Capitol, Suite 1302

Tallahassee, Florida 32399-0350

Chriss Walker Senior Attorney

Department of Health and Rehabilitative Services

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Louisa E. Hargrett Senior Attorney

Department of the Lottery

250 Marriott Drive Tallahassee, Florida 32301

For Respondent: Leroy Wise, Jr.

c/o Leon County Jail 2825 Municipal Way

Tallahassee, Florida 32304 STATEMENT OF THE ISSUES

Whether Leroy Wise, Jr., is entitled to the $805.00 prize for a winning lottery ticket presented by Mr. Wise to the Department of the Lottery for collection?

PRELIMINARY STATEMEN

The Respondent, Leroy Wise, Jr., submitted a $805.00 winning lottery ticket to the Department of the Lottery for collection. The Department of the Lottery (hereinafter referred to as the "Lottery") transmitted the $805.00 prize to the Office of the Comptroller (hereinafter referred to as the "Comptroller") based upon information provided to the Lottery from the Department of Health and Rehabilitative Services (hereinafter referred to as "DHRS") that Mr. Wise owed

$4,690.00 in Title IV-D child support arrearages. The Comptroller notified Mr. Wise of this action by letter dated August 10, 1989. Mr. Wise requested an administrative hearing to contest the action of the Lottery and the Comptroller.

Mr. Wise's request for hearing was forwarded to the Division of Administrative Hearings by the Comptroller by letter dated December 4, 1989.

The Petitioners did not present any testimony. One exhibit was offere and accepted into evidence. Mr. Wise testified on his own behalf and presented the testimony of Francis Gillyard. Mr. Wise did not offer any exhibits. The parties stipulated that Mr. Wise owes $4,690.00 in child support arrearages.

By Order dated January 2, 1989, official recognition of Chapters 17 and 24, Florida Statutes, was taken.

The Petitioners have filed a proposed recommended order containing proposed findings of fact. Mr. Wise filed a letter containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. Leroy Wise, Jr.'s Mother purchased lottery ticket number 1888-3620-9444 (hereinafter referred to as the "Ticket") on approximately July 6, 1989. The Ticket was a Fantasy 5 ticket with four correct numbers. The Ticket winnings amounted to $805.00.

   
   

2. Mr. Wise took his Mother to the Department of the Lottery's offices in Tallahassee, Florida on July 10, 1989. Mr. Wise's Mother did not have proper identification required by the Department of the Lottery to cash in the Ticket. Therefore, she allowed Mr. Wise to present the ticket for collection because Mr. Wise had proper identification.

   
   

3. On July 10, 1989, Mr. Wise completed a Florida Lottery Winner Claim Form (hereinafter referred to as the "Form") and submitted the Form and the Ticket to the Lottery.

   
   

4. On the back of the Ticket Mr. Wise listed his name and address on the spaces provided for the person claiming the prize and signed the Ticket.

   
   

5. Mr. Wise listed his name, Social Security Number, address and phone number on the Form. Mr. Wise signed the Form as the "Claimant."

   
   

6. In a letter dated July 10, 1989, the DHRS notified the Lottery that Mr. Wise owed $4,690.00 in Title IV-D child support arrearages as of July 10, 1989.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1989).

   
   

   Section 24.115(4), Florida Statutes (1987), provides:

   
   

   (4) It is the responsibility of the appropriate state agency and of the judicial branch to identify to the department [the Lottery], in the form and format prescribed by the department, persons . . . owing child support collected through a court. Prior to the payment of a prize of $600 or more to any claimant having such an outstanding obligation, the department may transmit the prize money to the

   Comptroller who may authorize payment of the balance to the prize winner after deduction of the debt.

   
   

8. Section 24.105(10)(e), Florida Statutes (1989), authorizes the Lottery to adopt rules providing for the payment of lottery prizes to holders of winning tickets. Section 24.115(1), Florida Statutes (1989), requires that the Lottery adopt rules establishing a system of verifying the validity of lottery tickets submitted to claim prizes. Pursuant to this authority, the Lottery has adopted Rule 53ER87-43, Florida Administrative Code, which provides, in pertinent part, as follows:

   
   

   (6) Until such time as a name is imprinted

   or placed upon the back portion of the lottery ticket in the designated area a lottery ticket shall be owned by the physical possessor of such ticket. When a name is placed on the rear of the ticket in the designated place, the person whose name appears in that area shall be the owner of the ticket and shall be entitled to any prize attributable thereto.

   
   

9. Additionally, the Lottery had in effect Rule 53ER88-37, Florida Administrative Code, during the period of time in question in this case. This rule provides that payment of prizes is to be made only to the person whose signature appears on the back of the winning ticket.

   
   

10. The evidence in this case proved that Mr. Wise owed child support.

    The evidence further proved that Mr. Wise submitted a winning lottery ticket for collection of a $805.00 prize to the Lottery. Mr. Wise's name had been entered on the back portion of the Ticket and Mr. Wise had signed the Ticket. Pursuant to Rules 53ER87-43 and 53ER88-37, Florida Administrative Code, Mr. Wise was the owner of the Ticket and was entitled to any prize attributable thereto.

    
    

11. Pursuant to Section 24.115(4), Florida Statutes (1989), DHRS had notified the Lottery of Mr. Wise's obligation. The amount of Mr. Wise's obligation was more than the amount of the prize.

    
    

12. The actions of the Lottery, the Comptroller and DHRS were consistent with Florida law.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued providing for payment of the

$805.00 prize attributable to the Ticket owed by Mr. Wise as child support arrearages as of the date of the Final Order to DHRS.

DONE and ENTERED this 21st day of February, 1990, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings

this 21st day of February, 1990.

APPENDIX

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioners' Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 1-4

2 6.

3 Not supported by the weight of the evidence. The Petitioner's did not offer any evidence at the formal hearing concerning these proposed findings of fact.

Mr. Wise's Proposed Findings of Fact

Paragraph Number in Recommended Order Sentence in Letter of Acceptance or Reason for Rejection

1, 13-20 Not proposed findings of fact.

2-3 6.

4-6, 11-12 Not supported by the weight of the evidence.

7-10 Not relevant to this proceeding.

Copies Furnished To:

Jo Ann Levin Senior Attorney

Office of Comptroller The Capitol, Suite 1302

Tallahassee, Florida 32399-0350

Louisa E. Hargrett Senior Attorney

Department of the Lottery

250 Marriott Drive Tallahassee, Florida 32301

Chriss Walker Senior Attorney

Department of Health and Rehabilitative Services

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Leroy Wise, Jr.

1526-A Patrick Avenue Tallahassee, Florida 32310

Honorable Gerald Lewis Comptroller, State of Florida The Capitol

Tallahassee, Florida 32399-0350

William G. Reeves General Counsel

Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32399-0350

Docket for Case No: 89-006731

Orders for Case No: 89-006731