STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWRENCE FOWLER, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3620

)

DEPARTMENT OF BANKING AND ) FINANCE, DEPARTMENT OF LOTTERY, ) and DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, J. Stephen Menton, held a formal hearing in the above-styled case on September 26, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: No appearance. For Respondent, Bridget L. Ryan

Department of Assistant General Counsel Banking and Office of the Comptroller Finance: Suite 1302, The Capitol

Tallahassee, Florida 32399-0350

For Respondent, Chriss Walker, Esquire Department of Department of Health and Health and Rehabilitative Services Rehabilitative 1317 Winewood Boulevard

Services: Tallahassee, Florida 32399-0700

For Respondent, No appearance. Department of

Lottery:

STATEMENT OF THE ISSUES

The issue in this proceeding is whether part of Petitioner's lottery prize should be withheld and used to pay an allegedly outstanding debt for child support.

PRELIMINARY STATEMENT

By letter dated May 15, 1990, the Department of Banking and Finance (DBF), notified Petitioner that the Department of Lottery (Lottery) had transmitted his prize of $4,334.50 to it pursuant to Section 24.115(4), Florida Statutes, based

on information received from the Department of Health and Rehabilitative Services (DHRS) that he owed $3,625.00 to DHRS for child support arrearages. Enclosed with the notification was State of Florida warrant number 2537015 in the amount of $709.50, which represented the difference between the amount of the prize and the purported child support arrearages. DBF advised Petitioner that it intended to apply the remainder of his prize to the debt. Petitioner filed a protest of DBF's proposed action and requested a formal hearing.

The case was referred to the Division of Administrative Hearings which noticed and conducted the hearing. The case was originally scheduled for hearing on July 31, 1990. However, the case was continued on several occasions pending the resolution of a proceeding in the Circuit Court in Dade County, Florida to determine the exact amount of child support owed by Petitioner. In a Status Report filed on June 27, 1991, Respondents advised that the circuit court action had been resolved and requested that a formal hearing be rescheduled in this case. A copy of that Status Report was sent to Petitioner at his last known address. By Notice of Hearing dated July 3, 1991, the case was rescheduled for hearing on July 23, 1991. As set forth in an Order Rescheduling Hearing entered on August 14, 1991, there was some question as to whether the Petitioner received a copy of the July 3, 1991, Notice of Hearing. Therefore, the July 23, 1991, hearing was adjourned and the case was rescheduled for hearing on September 26, 1991. The Order Rescheduling Hearing was sent to Petitioner at his last known address.

At the September 26, 1991 hearing, neither Petitioner, nor anyone on his behalf appeared. Respondents called Floyd Pfaender as a witness and Respondents' exhibits 1-10 were received into evidence. A transcript of the hearing was not ordered.

At the conclusion of the hearing, the parties were granted leave until October 6, 1991, to file proposed findings of fact. Only DBF elected to file such proposals and they have been adopted in substance in this Recommended Order.

FINDINGS OF FACT

1. On April 15, 1990, Petitioner submitted a claim to the Department of the Lottery (Lottery) on a ticket he held for the Lotto drawing of April 14, 1990. The ticket reflected that Petitioner had correctly selected five of the six numbers drawn on April 14 and rendered him eligible for a prize of

   $4,334.50.

   
   

2. On May 4, 1990, the Department of Health and Rehabilitative Services (DHRS) certified to the Lottery that Petitioner owed $3,625.00 in Title IV-D child support arrearage. By letter dated May 9, 1990, the Lottery notified Petitioner that DHRS had advised it of the outstanding debt and that, pursuant to Section 24.115(4), Florida Statutes, it had transmitted the prize amount to the Department of Banking and Finance (DBF). Petitioner was further advised that DBF would notify him shortly regarding the distribution of the funds.

   
   

3. By letter dated May 15, 1990, DBF notified Petitioner that it was in receipt of his prize from the Lottery and that it intended to apply $3,625.00 of the award toward the unpaid claim for child support. Enclosed with that letter was State of Florida warrant number 2537015 in the amount of $709.50 payable to Petitioner. This warrant was a partial payment of the lottery prize and represented the difference between the amount of the prize and the amount of chld support that HRS had certified as being due.

4. In a letter received by DBF on May 30, 1990, Petitioner disputed that any obligation was outstanding and requested a formal hearing.

   
   

5. On July 18, 1990, DHRS notified DBF that Petitioner's child support arrearage had been reduced by $2,154.82 as a result of an IRS tax refund interception. That letter indicated that, as a result of the interception, DHRS had calculated the amount of the Petitioner's outstanding child support obligation to be $1,470.18. In the letter, DHRS specifically relinquished its claim to the additional $2,154.82 it had originally certified.

   
   

6. By letter dated July 30, 1990, DBF transmitted to Petitioner State of Florida warrant number 0129960 in the amount of $2,154.82. This warrant was a partial payment of the lottery prize and reduced the amount of the prize being held by DBF to $1,470.18.

   
   

7. On July 18, 1991, General Master Helen T. Erstling entered a Recommended Order On Determination Of Arrears which concluded that as of July 11, 1991, Petitioner owed $1,568.68 in child support arrearage. That Recommended Order provided that DBF was authorized to release to DHRS up to

   $1,568.68 of Petitioner's lottery proceeds.

   
   

8. On August 13, 1991, Circuit Court Judge George E. Orr of the Eleventh Judicial Circuit in and for Dade County, Florida, entered an Order Upon Recommended Order On Disputed Arrears which ratified and adopted the Recommended Order of the General Master.

   
   

9. The arrearage calculated by the General Master and adopted by the court was calculated as of June 11, 1991, and established that, as of that date, Petitioner owed $1,568.68 in Title IV-D child support arrearage. Petitioner, the party responsible to make such payments, offered no proof at the hearing in this case to establish that such sum has been paid and/or is no longer owing. This arrearage exceeds the remaining amount of the lottery prize being held by DBF.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

    
    

11. Pertinent to this case, Section 24.115(4), Florida Statutes, provides that:

    
    

    It is the responsibility of the appropriate state agency and of the judicial branch to identify to the department, in the form and format prescribed by the department, persons owing an outstanding debt to any state agency or 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....

12. Here, the uncontroverted proof at hearing demonstrated that Petitioner owes $1,568.68 in child support. Accordingly, DBF's decision to apply the

$1,470.18 remainder of Petitioner's prize toward such debt was appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department of Banking and Finance enter a final order dismissing the Petitioner's request for formal hearing, and that it pay to the Department of Health and Rehabilitative Services the $1,470.18 remainder of Petitioner's lottery prize in partial satisfaction of Petitioner's debt for child support.

RECOMMENDED in Tallahassee, Leon County, Florida, this 16th day of October 1991.

J. STEPHEN MENTON 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 16th day of October 1991.

COPIES FURNISHED:

Mr. Lawrence Fowler Apt. 202

9481 Evergreen Place

Fort Lauderdale, Florida 33324

Bridget L. Ryan

Assistant General Counsel Office of the Comptroller Suite 1302, The Capitol

Tallahassee, Florida 32399-0350

Chriss Walker, Esquire Department of Health and

Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Louisa Warren

Department of the Lottery

250 Marriott Drive Tallahassee, Florida 32399

The Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350

William G. Reeves General Counsel

Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-003620

Orders for Case No: 90-003620