STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH JUDAH, JR. and )

DIANA JUDAH, his wife, )

)

Petitioners, )

)

vs. ) CASE NO. 93-912

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

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly- designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on April 28, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioners: Carrole R. Ward, Esquire

12029 Majestic Boulevard, Suite 7 Bayonet Point, Florida 34667

For Respondent, Karen M. Camechis, Esquire Department of Assistant General Counsel Banking and Office of the Comptroller Finance: The Capitol, Suite 1302

Tallahassee, Florida 32399-0350

For Respondent, Chriss Walker, Esquire Department of 1317 Winewood Boulevard Health and Building One, Room 407

Rehabilitative Tallahassee, Florida 32399-0700 Services:

For Respondent, Louisa H. Warren, Esquire Department of Capitol Complex

Lottery: Tallahassee, Florida 32399-4011

STATEMENT OF THE ISSUES

The issue in this case concerns the application of Section 24.115(4), Florida Statutes, to a claim for payment filed by a person who owes a child support arrearage but who did not purchase the lottery ticket presented for payment.

PRELIMINARY STATEMENT

On November 2, 1992, Petitioner, Joseph Judah, Jr., filed a claim for payment of a lotto ticket with a prize value of $4,989.50. On November 3, 1992, Respondent, Department of Health and Rehabilitative Services (DHRS), certified to Respondent, Department of Lottery (DOL), that Mr. Judah owed $13,302.00 in child support arrearages. By letter dated November 10, 1992, DOL advised Mr.

Judah that DHRS had advised it of that outstanding debt and that, pursuant to Section 24.115(4), Florida Statutes, the DOL had transmitted the prize amount to the Comptroller's Office. By letter dated November 19, 1992, Respondent, Department of Banking and Finance (DBF), notified Mr. Judah that it was in receipt of his prize from DOL and that the entire amount would be applied to the child support arrearage. Through counsel, Petitioners requested a hearing and contend that the ticket was owned by Petitioner, Diana Judah, solely, and that the prize money should be paid to her. At hearing, Petitioners testified on their behalf. Respondents called no witnesses but introduced into evidence Respondents' exhibits 1 and 2, which were received.

Subsequent thereto, Respondents filed a Joint Proposed Recommended Order, which is substantially incorporated in this Recommended Order. Petitioners, likewise, submitted a proposed order, through counsel, which is in the nature of legal argument and comments on the testimony presented. As such, the arguments and commentary were considered in preparation of this Recommended Order, but no separate rulings are made on the proposed argument and evidentiary commentary.

FINDINGS OF FACT

Based on the testimony of the witnesses and the exhibits received in evidence at the hearing, I make the following relevant findings of fact.

1. On November 2, 1992, Petitioner, Joseph Judah, Jr., the husband of Petitioner, Diana Judah, presented for payment at the DOL's office in St. Petersburg, a lotto ticket which had been purchased by his wife and which had a prize value of $4,989.50.

   
   

2. Mr. Judah placed his name, address and signature on the back of the ticket and completed and signed the winner claim form. Additionally, he presented, as proof of identification, his driver's license and social security card.

   
   

3. Pursuant to procedures set forth in Chapter 53-4, Florida Administrative Code, on November 3, 1992, DHRS certified to DOL that Mr. Judah owed $13,302.00 in child support arrearages as of that date. DOL transmitted the prize amount to the Office of the Comptroller and applied the entire amount of $4,989.50 to Mr. Judah's child support arrearages.

   
   

4. Mr. Judah was notified that the lottery prize would be applied to his outstanding child support arrearages which prompted him to timely request an administrative hearing.

   
   

5. It is undisputed that Mrs. Judah purchased a winning lotto ticket with her money and she is not personally responsible for the support of Mr. Judah's child from a prior marriage.

   
   

6. At all times material hereto, DOL had in effect Rule No. 53ER87-43, Florida Administrative Code, entitled "Procedure for Awarding Prizes". That rule provides, in pertinent part, that:

   (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.

   
   

   CONCLUSIONS OF LAW

   
   

   Based upon the foregoing Findings of Fact and the applicable legal principles, I make the following Conclusions of Law.

   
   

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

   
   

8. Section 24.105(10)(e), Florida Statutes (1987), authorizes DOL to adopt rules regarding "the manner of payment of prizes to holders of winning tickets", and Section 24.115(1), Florida Statutes (1987), provides, inter alia, that "the department shall promulgate rules to establish a system of verifying the validity of tickets claimed to win prizes and to effect payment of such prizes...".

   
   

9. Section 24.115(4), Florida Statutes (1987), provides that:

   
   

   (4) 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 $600.00 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. If a prize winner owes multiple debts subject to offset under this subsection and the prize is insufficient to cover all such debts, the amount of the prize shall be applied in the manner that the comptroller deems appropriate. (emphasis added).

   
   

10. Based upon the evidence adduced at hearing, it is unnecessary to resolve the application of Section 24.115(4), Florida Statutes, herein as Mr. Judah was indisputably the "claimant" of the subject prize, and he had an outstanding debt for child support collected through a court. The statutory provisions impact "any claimant having such an outstanding obligation". The statute also provides that the comptroller can authorize payment of the balance

    to the prize winner only "after deduction of the debt". Here, Mr. Judah's debt, the claimant, is greater than the prize so there is no balance due and owing him.

    
    

11. Furthermore, to the extent that the ticket ownership was material herein, that issue would be resolved by Subsection (6) of Rule No. 53ER87-43, Florida Administrative Code. Pursuant thereto, Mr. Judah became the owner of the ticket when he placed his name on the ticket. Without regard thereto, however, when he completed the ticket as "claimant", he invoked the provisions of Section 24.115(4), Florida Statutes, and the prize would be subject to his entire debt even if he were to be determined to be not the owner at all.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

The Department of Banking and Finance, Office of the Comptroller, issue a Final Order in this case providing for payment to the Department of Health and Rehabilitative Services of the entire $4,989.50 prize money originally claimed by Petitioner, Joseph Judah, Jr.

DONE AND ENTERED this 14th day of July, 1993, in Tallahassee, Florida.

JAMES E. BRADWELL

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 14th day of July, 1993.

COPIES FURNISHED:

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

William G. Reeves, Esq. General Counsel

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

Carrole R. Ward, Esquire

12029 Majestic Boulevard, Suite 7 Bayonet Point, Florida 34667

Karen M. Camechis, Esquire Assistant General Counsel Department of Banking and Finance Office of the Comptroller

The Capitol, Suite 1302 Tallahassee, Florida 32399-0350

Chriss Walker, Esquire Department of Health and

Rehabilitative Services 1317 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

Louisa H. Warren, Esquire Department of Lottery Capitol Complex

Tallahassee, Florida 32399-4011

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE DIVISION OF ACCOUNTING AND AUDITING

JOSEPH K. JUDAH, JR.

and DIANA JUDAH, his wife.,

Petitioners,

DOAH NO.: 93-0912

vs. Administrative Proceeding

No. 2483-A&A-12/92

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

Respondents.

/

FINAL ORDER

This cause has come before Gerald Lewis, the undersigned, as Statutory Head of the Department of Banking and Finance, Division of Accounting and Auditing ("Department"), for the purpose of issuing a Final Order. Pursuant to Notice, a Formal Hearing was conducted in this matter on April 28, 1993 in Tallahassee, Florida, before James E. Bradwell, a duly appointed Hearing Officer of the Division of Administrative Hearings. On or about July 14, 1993, Hearing Officer Bradwell submitted a Recommended Order to the Department, a copy of which is attached hereto as Exhibit "A." Counsel for the Department of Lottery ("DOL") timely filed Exceptions to the Recommended Order, a copy of which is attached hereto as "Exhibit B." No other party filed Exceptions. The Department being authorized and directed to administer and enforce Section 24.115(4), Florida Statutes, hereby rules on the Exceptions and having reviewed the entire record of this proceeding enters this Final Order regarding JOSEPH H. JUDAH, Jr. and DIANA JUDAH, his wife.

RULING ON EXCEPTIONS

1. Respondent Department of Lottery excepts to Paragraph 6 of the Findings of Fact ("Paragraph 6") and Paragraph 11 of the Conclusions of Law ("Paragraph 11"), of the Recommended Order, because each cites to a Department of Lottery rule that was not effective during the pendency of this matter.

Paragraph 6 states that the DOL had in effect, at all times material to this matter, Rule 53ER87-43, Florida Administrative Code, entitled "Procedure for Awarding Prizes." Rule 53ER87-43, Florida Administrative Code, however, was repealed and subsequently replaced by Rule 53ER90-15, 53ER92-51, 53ER92-66 and 53ER93-24, respectively, none of which contained the language quoted in Paragraph 6 of the Recommended Order. Official Recognition was requested and

granted only for Rule 53ER88-40, Florida Administrative Code, and Rule 53ER92- 66, Florida Administrative Code, also entitled "Procedures for Awarding Prizes," which were in effect at all times material to this proceeding.

It is the Hearing Officer's function to evaluate the evidence and determine the ultimate findings of fact based on competent, substantial evidence. Heifetz

v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). An administrative agency may not reject a hearing officer's findings unless there is no competent, substantial evidence from which the finding could be reasonably inferred. The Hearing Officer's finding of fact in Paragraph 6 is not based upon competent, substantial evidence, to wit: Paragraph 6 cited Rule 53ER87-43, Florida Administrative Code, which was repealed and subsequently replaced by Rule 53ER92-66, Florida Administrative Code, which was in effect at all times material to this action. Therefore, the Department rejects Paragraph 6 of the Findings of Fact and accepts Respondent's Exception to the Recommended Order.

The Department has no obligation to state with particularity the reasons it is rejecting the citation to Rule 53ER87-43, Florida Administrative Code, contained in Paragraph 11 of the Conclusions of Law. Harloff v. City of Sarasota, 575 So.2d 1324 (Fla. 2nd DCA 1991). However, to make the record clear, the citation to Rule 53ER87-43, Florida Administrative Code, in the conclusion of law referenced above is improper, to wit: Paragraph 11 cited Rule 53ER87-43, Florida Administrative Code, which was repealed and subsequently replaced by Rule 53ER92-66, Florida Administrative Code, which was in effect at all times material to this action. Therefore, the Department rejects the citation to Rule 53ER87-43, Florida Administrative Code, contained in Paragraph

11 and accepts the Exception to the Recommended Order submitted by Respondent DOL.

Furthermore, while Paragraph 6 and 11 of the Recommended Order cited Rule 53ER87-43, Florida Administrative Code, since repealed, rather than Rules 53ER88-40 and 53ER92-66, Florida Administrative Code, the pertinent language in Rules 53ER88-40 and 53ER92-66, remains consistent with that of Rule 53ER87-43, therefore, because the outcome would be unaffected, the discrepancy in citation is legally insignificant. See Scharrer v. Department of Professional Regulation, 536 So.2d 320 (Fla. 3rd DCA 1988) pet. for rev. dism. 1989.

PRELIMINARY STATEMENT

1. The Department adopts and incorporates by reference the preliminary statement set forth on Pages 2 and 3 of the Recommended Order entered in this proceeding as if set forth at length.

   
   

   FINDINGS OF FACT

   
   

2. The Department adopts and incorporates by reference (except as modified in the Rulings on Exceptions), the Findings of Fact contained in Paragraphs 1-6 of the Recommended Order as if set forth at length.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Department adopts and incorporates by reference (except as modified in the Rulings on Exceptions), the Conclusions of Law contained in Paragraphs 7-

11 of the Recommended Order as if set forth at length.

FINAL ORDER

Having ruled on the Exceptions filed by Respondent DOL and based on the foregoing findings of fact and conclusions of law, it is ORDERED:

1. The Department of Banking and Finance shall remit to the Department of Health and Rehabilitative Services Petitioner's entire lottery prize of

$4,989.50 in partial satisfaction of Petitioner's $13,302.00 debt in outstanding child support arrearage.

GERALD LEWIS, as Comptroller and Head of the Department of Banking and Finance

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF BANKING AND FINANCE AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE RENDITION OF THE ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been sent by regular U.S. Mail to Carrole R. Ward, Attorney for Petitioner, 12029 Majestic Boulevard, Suite 7, Bayonet Point, Florida 34667, this 27th day of October, 1993.

KAREN M. CAMECHIS

Assistant General Counsel Office of Comptroller

The Capitol, Suite 1302 Tallahassee, FL. 32399-0350

(904)488-9896

COPIES FURNISHED:

James E. Bradwell, Hearing Officer Division of Administrative Hearings

Dan McCall, Bureau of Auditing Division of Accounting and Auditing

Chriss Walker, Esquire

Department of Health and Rehabilitative Services

Louisa Warren, Esquire Department of Lottery

Docket for Case No: 93-000912

Orders for Case No: 93-000912