STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAYMOND J. HOLMES, )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF BANKING AND ) CASE NO. 93-5341 FINANCE, DEPARTMENT OF LOTTERY, )

and DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondents. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tallahassee, Florida on December 7, 1993 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Was not present and was not represented For the Department Louisa Warren, Esquire

of Lottery : Department of Lottery

250 Marriot Drive Tallahassee, Florida 32301

For the Department Scott C. Wright, Esquire of Banking and The Capitol, Suite 1302

Finance : Tallahassee, Florida 32399-0350

For the Department Chriss Walker, Esquire of Health and 1317 Winewood Boulevard

Rehabilitative Tallahassee, Florida 32399-0700 Services :

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Petitioner, Raymond J. Holmes, is entitled to the entire $5,000.00 won by him in the Florida Lottery or whether a portion thereof should be withheld for reimbursement of public assistance payments previously paid for the support of his child.

PRELIMINARY MATTERS

On August 2, 1993, Petitioner, Raymond J. Holmes, made claim against the Florida Lottery for $5,000.00 as the result of his purchase of a winning ticket in the Lottery's 5th Anniversary scratch-off game. Thereafter, by letter dated August 24, 1993, the Chief of the Florida Comptroller's Bureau of Auditing, in the Division of Accounting and Auditing, advised Petitioner that a portion of his winnings was being withheld to satisfy an outstanding obligation he had to the Department of Health and Rehabilitative Services for the reimbursement of public assistance payments previously paid for the support of his child.

Petitioner thereafter demanded formal hearing in this matter and the file was forwarded to the Division of Administrative Hearings where, by Notice of Hearing dated October 12, 1993, Hearing Officer William F. Quattlebaum set the matter for hearing in Tallahassee on December 7, 1993.

The matter was thereafter transferred to Hearing Officer Mary W. Clark who, in a telephone conversation with the Petitioner on December 1, 1993, offered him the opportunity to participate in the hearing by telephone conference call in lieu of traveling to Tallahassee. Petitioner indicated that he had time off and intended to be in Tallahassee for the hearing. The hearing was thereafter convened as scheduled on December 7, 1993 by the undersigned to whom the matter was transferred in the interim.

Petitioner was not present at the time noticed for convening the hearing and the undersigned delayed convening the hearing for an additional 15 minutes to allow Petitioner time to appear in the event he had been unavoidably delayed. He did not thereafter appear nor was he represented by counsel or qualified representative. No request for delay was received.

At the hearing, Respondent, Department of Lottery introduced DOL Exhibit 1; Respondent, Department of Banking and Finance, introduced DBF Exhibit 1; and Respondent, Department of Health and Rehabilitative Services introduced HRS Exhibits 1 - 4. The Department of Health and Rehabilitative Services also presented the testimony of Patricia K. Ash, a Fiscal Assistant II. Petitioner presented no evidence.

No transcript was provided nor did any party submit Proposed Findings of Fact.

FINDINGS OF FACT

1. On May 7, 1993, a Judge of the Circuit Court of the 20th Judicial Circuit In and For Collier County, Florida, entered, in case No. 93-1327, an Order Determining Obligation And Repayment of Public Assistance for the repayment of support and repayment of foster care payments, made on behalf of Petitioner's child, Allen J. Holmes, against Petitioner, "Ray" Holmes and his wife, Rachel Holmes, in the amount of $5,439.46 plus costs in the amount of

   $88.20 and attorneys fees of $176.40, This amount was to be paid at a rate of

   $80.00 plus $3.20 clerk's fee ($83.20) per month, beginning on June 1, 1993, payments to continue until "all prior public assistance has been completely repaid." This Order was acknowledged in writing by both Petitioner and his wife.

2. The Order also provided:

   
   

   ... the State of Florida, or any political subdivision thereof, or the United States, is directed to deduct from all moneys due and payable to the Respondent [Petitioner, Holmes] the amount of child support ordered above. This income deduction shall be effective immediately, and shall become binding on ... [a] comptroller or disbursing officer, the State of Florida, ... two weeks after receipt of service of this order.

   
   

3. None of the money called for under the Court's Order has been repaid. Petitioner's one-half of the joint obligation was $2,807.93.

   
   

4. On or about August 2, 1993, Petitioner purchased a scratch-off lottery ticket which carried a prize of $5,000.00. Petitioner immediately submitted a claim form for the award of the prize. He listed his social security number as 144-53-7433 on the form. The social security account card issued in his name reflects the correct number to be 144-52-7433 but there is no doubt the Petitioner was the individual who purchased the winning ticket. The claim form was submitted for payment to Lottery headquarters in Tallahassee.

   
   

5. In the course of routine coordination between agencies to determine if any obligations to the state were owing by a lottery winner, the above-noted Court Order was identified and when the Petitioner's winnings were transmitted to the Department of Banking and Finance for payment, his half of the obligation was withheld and only the net amount of $2,192.07 forwarded. Thereafter, by state warrant 4-02 909 875, dated August 20, 1993, this net amount was paid to Petitioner. This figure was arrived at by deducting the amount owed by Petitioner, ($2,807.93) from the gross winnings, ($5,000.00). Petitioner was notified by letter dated August 24, 1993 accompanying the warrant of the reason for the deduction. Petitioner thereafter demanded hearing and this hearing ensued.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

7. While Petitioner has the burden to establish his entitlement to the amount claimed by a preponderance of the evidence, the Departments in issue here must first establish a legitimate basis for withholding lottery winnings. Section 24.115(4), Florida Statutes, provides:

   
   

   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.

   
   

8. The evidence of record, uncontroverted by Petitioner, clearly demonstrates that Petitioner and his wife, jointly, were indebted to the State of Florida for public assistance payments previously paid in the total amount of

   $5,615.86. Petitioner's share of that total obligation was $2,807.93. When it was determined he had won a lottery prize of $5,000.00, and subsequent coordination disclosed that debt, the prescribed procedures for debt collection were initiated and carried out, and the Petitioner's court-determined obligation to the state was deducted prior to payment of the net amount due. Petitioner failed to show any reason to overturn this action.

   
   

9. The action appears proper in that Petitioner has failed to make any payments required under the court Order subsequent to the entry thereof and the inception of the time for commencement of periodic payments, June 1, 1993. In his demand for hearing, Petitioner denies he is in debt to the Department of Health and Rehabilitative Services because "there was no order of support issue [sic] by the court system in Collier County" until June 1, 1993 at which time he was to start paying $80.00 per month.

   
   

10. Accepting that there was no court order requiring payment issued until May 7, 1993, and accepting that only periodic payments were called for starting on June 1, 1993, this does not mean the state cannot offset, in its entirety, any total amount owed by the Petitioner from funds available at any given time they become available until the debt is completely satisfied. In other words, the state is not required to collect only the periodic payment if funds become available to satisfy the entire obligation. In addition, it is noted that Petitioner failed to make the payments due on June 1, July 1 and August 1, 1993, giving rise to the conclusion that unless satisfied in this way, the debt would not be satisfied by Petitioner or his wife by the periodic payments called for in the Court Order.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered denying Petitioner, Raymond J. Holmes' request for payment of $2,807.93 withheld from his lottery prize of

$5,000.00 by the Department of Banking and Finance.

RECOMMENDED this 9th day of December, 1993, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 9th day of December, 1993.

COPIES FURNISHED:

Raymond J. Holmes 3397-2 Sacramento Way

Naples, Florida 33942

Scott C. Wright, Esquire Department of Banking & Finance The Capitol, Suite 1302 Tallahassee, Florida 32399-0350

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

William G. Reeves General Counsel

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

Louisa Warren, Esquire Department of Lottery

250 Marriot Drive Tallahassee, Florida 32301

Dr. Marcia Mann, Secretary Department of Lottery

250 Marriot Drive Tallahassee, Florida 32301

Ken Hart General Counsel

Department of Lottery

250 Marriot Drive Tallahassee, Florida 32301

Chriss Walker, Esquire Department of Health and

Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 93-005341

Orders for Case No: 93-005341