STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NURRUDIN ALOMGIR, )

)

Petitioner, )

)

vs ) CASE NO. 96-0396

) DEPARTMENT OF BANKING AND FINANCE, ) DEPARTMENT OF REVENUE, and )

DEPARTMENT OF THE LOTTERY )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on May 28, 1996, in Tallahassee, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No appearance

For Respondents: Josephine Schultz, Chief Counsel

Office of the Comptroller The Capitol, Suite 1302

Tallahassee, Florida 32399-0350

Chriss Walker, Esquire Child Support Enforcement Department of Revenue Post Office Box 8030

Tallahassee, Florida 32314-8030

Louisa Warren, Esquire Department of the Lottery

250 Marriott Drive Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

How should the remainder of Petitioner's lottery prize winnings, which are currently held by the Department of Banking and Finance, be distributed in light of the provisions of Section 24.115, Florida Statutes?

PRELIMINARY STATEMENT

By letter dated December 26, 1995, the Department of Banking and Finance (hereinafter referred to as "DBF") notified Petitioner that it intended to deduct $1,319.88 from his $1,560.00 lottery prize. According to the letter, the

$1,319.88 represented the amount the Department of Revenue (hereinafter referred

to as "DOR") claimed that Petitioner owed in past-due, court-ordered child support. (Accompanying the letter was a state warrant in the amount of $240.12 (the difference between the amount of Petitioner's prize and the $1,319.88 Petitioner allegedly owed in child support.) By letter DBF received January 8, 1996, Petitioner denied that he owed $1,319.88 in child support and requested a hearing on DBF's announced intention to deduct that amount from his lottery prize. On January 23, 1996, DBF referred the matter to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a Division hearing officer to conduct a formal Section 120.57 hearing.

As noted above, the formal hearing was conducted on May 28, 1996.

Petitioner did not make an appearance at the hearing. Respondents appeared and participated, through counsel. One witness, Lucille Pate, testified at the hearing. In addition to Pate's testimony, a total of 10 exhibits (DBF's Exhibit 1, DOR's Exhibits 1 through 8 and the Department of the Lottery's Exhibit 1) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised that the parties had the right to file post- hearing submittals and he established a deadline (June 12, 1996) for the filing of such submittals. Respondents timely filed a joint proposed recommended order on June 12, 1996. The Hearing Officer has carefully considered Respondents' proposed recommended order. The "findings of fact" set forth in this proposed recommended order are specifically addressed in the Appendix to this Recommended Order. To date, Petitioner has not submitted any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. On or about November 28, 1995, Petitioner presented for payment a lottery ticket that had a prize value of $1,560.00.

   
   

2. By letter dated November 29, 1995, DOR certified to the Department of the Lottery (hereinafter referred to as "DOL") that Petitioner "owe[d] $1,319.88 in Title IV-D child support arrearages" as of the date of the letter. After receiving the letter, DOL transmitted the prize money to DBF.

   
   

3. On or about December 26, 1995, DBF sent Petitioner a check in the amount of $240.12, along with a letter advising Petitioner that it was DBF's intention to give the balance ($1,319.88) of Petitioner's $1,560.00 lottery prize to DOR "in payment of [Petitioner's] debt."

   
   

4. Petitioner disputed that he owed $1,319.88 in child support and requested an administrative hearing on the matter.

   
   

5. In a Marital Settlement Agreement that Petitioner executed on May 10, 1991, he agreed to pay, through the State of Florida, $52.00 per week for the support of his and his wife's minor daughter.

   
   

6. This Marital Settlement Agreement was approved and incorporated in a Final Judgement of Dissolution of [Petitioner's] Marriage, which was entered on July 29, 1991, in the Circuit Court of the Nineteenth Judicial Circuit in and for Okeechobee County.

7. DOR's records reflect that, as of December 26, 1995, Petitioner owed

   $1,319.88 in past-due, court-ordered child support, and that, as of May 24, 1996 (the most recent date for which records were provided at the May 28, 1996, hearing in this case), Petitioner owed $1,436.72 in past-due, court-ordered child support.

   
   

8. These records, however, do not reflect that, in March of 1994, the State of Florida received from the Internal Revenue Service, a $628.00 tax refund (for the 1993 tax year) owed Petitioner that should have been (but was not) credited to Petitioner's child support payment account.

   
   

9. Accordingly, as of December 26, 1995, and May 24, 1996, Petitioner actually owed $691.88 and $808.72, respectively, in past-due, court-ordered child support.

   
   

   CONCLUSIONS OF LAW

   
   

10. Chapter 24, Florida Statutes, contains the Florida Public Education Lottery Act (hereinafter referred to as the "Act"). Section 24.101, Fla. Stat.

    
    

11. DOL is the state agency responsible for supervising and administering the operation of Florida's lottery "in accordance with the provisions of th[e Act] and rules adopted pursuant thereto." Section 24.105(2)(a), Fla. Stat.

    
    

12. Among the "provisions of th[e Act]" are those of Section 24.115(4), Florida Statutes, which provides as follows:

    
    

    It is the responsibility of the appropriate state agency and of the judicial branch to identify to [DOL], in the form and format prescribed by [DOL], 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 obli- gation, 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 the Comptroller deems appropriate.

    
    

13. The Comptroller is "the chief fiscal officer of the state" and head of the Department of Banking and Finance. Article IV, Section 4(d), Fla. Const; Section 20.12(1), Fla. Stat.

    
    

14. DOR is the state agency responsible for the "administration of the child support enforcement program established by Title IV-D of the Social Security Act 42 U.S.C. ss. 651 et seq." Section 20.21(2)(h), Fla. Stat.

    
    

15. In the instant case, in accordance with the provisions of Section 24.115(4), Florida Statutes, DOL, on or about December 26, 1995, transmitted to the Comptroller $1,319.88 of Petitioner's $1,560.00 lottery prize based upon

    information provided by DOR that Petitioner owed that amount ($1,319.88) in past-due, court-ordered child support.

    
    

16. The information regarding the amount of Petitioner's debt, however, was, as Petitioner contended in his request for an administrative hearing on the matter, erroneous inasmuch as it did not reflect that a $628.00 tax refund to which Petitioner was entitled was withheld by the Internal Revenue Service pursuant to 42 U.S.C. s. 664 and sent to the State of Florida to be used to reduce the amount Petitioner owed in past-due, court-ordered child support.

    
    

17. As of December 26, 1995, Petitioner actually owed only $691.88 in past-due, court-ordered child support.

    
    

18. As of May 24, 1996 (the most recent date for which records were provided at the May 28, 1996, hearing in this case), Petitioner owed $808.72 in past-due, court-ordered child support.

    
    

19. In view of the foregoing, the Comptroller should disburse the

$1,319.88 that remains of Petitioner's lottery prize by issuing a state warrant to Petitioner in the amount of $511.16 and transferring the remaining $808.72 to DOR (which will credit the amount to Petitioner's child support payment account.)

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Comptroller disburse the $1,319.88 that remains of Petitioner's lottery prize by issuing a state warrant to Petitioner in the amount of $511.16 and transferring the remaining $808.72 to DOR.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of June, 1996.

STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SC 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1996.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 96-0396

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by Respondents in their joint proposed recommended order:

1-5. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

1. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Accepted as true and incorporated in substance.

3. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Accepted as true and incorporated in substance.

9-10. Accepted as true and incorporated in substance.

COPIES FURNISHED:

Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350

Harry Hooper, General Counsel Office of the Comptroller

The Capitol, Room 1302 Tallahassee, Florida 32399-0350

Josephine Schultz, Chief Counsel Office of the Comptroller

The Capitol, Suite 1302 Tallahassee, Florida 32399-0350

Chriss Walker, Esquire Child Support Enforcement Department of Revenue Post Office Box 8030

Tallahassee, Florida 32314-8030

Louisa Warren, Esquire Department of the Lottery

250 Marriott Drive Tallahassee, Florida 32399

Nurrudin Alomgir

927 South "G" Street, Apartment 3 Lake Worth, Florida 33460

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 of time 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: 96-000396

Orders for Case No: 96-000396