STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VIRGINIA ANN DASSAW, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1786

)

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

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, Joyous D. Parrish, held a formal video teleconference hearing in the above-styled case on September 16, 1996, with the parties attending in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Virginia Ann Dassaw

10075 Southwest 170th Terrace Perrine, Florida 33157

For Respondents: Andre L. Williams

Assistant District Legal Counsel Department of Health and

Rehabilitative Services

401 Northwest Second Avenue, N-1014 Miami, Florida 33128

Josephine A. Schultz Chief Counsel

Office of the Comptroller Department of Banking and Finance The Fletcher Building, Suite 526

101 East Gaines Street Tallahassee, Florida 32399-0350

Louisa Warren, Esquire Department of the Lottery

250 Marriott Drive Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The central issue in this case is whether the sum of $1,318.00 should be permanently withheld from Petitioner's lottery winning.

PRELIMINARY STATEMENT

This case began on March 14, 1996, when the Department of Banking and Finance, Office of the Comptroller, issued a letter to Petitioner, Virginia Ann Dassaw, advising her that the Department of the Lottery had transmitted Petitioner's prize of $2,500.00 to that Department for distribution. As a result of a claim in the amount of $1,318.00 from the Department of Health and Rehabilitative Services against Petitioner's prize, the Comptroller issued Petitioner a check in the amount of $1,182.00.

The Department of Health and Rehabilitative Services claimed the monies were owed by Petitioner for past amounts unlawfully received by her in connection with aid to families with dependent children. The Petitioner timely requested an administrative hearing to contest the reduced award, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on April 12, 1996.

At the hearing, the Department of Health and Rehabilitative Services presented the testimony of Guillermo Carton, a services analyst who reviews overpayment claims for aid to families with dependent children cases. Its exhibits numbered 1 through 4 were received in evidence. The Department of Banking and Finance's exhibit numbered 1 was received, as was the Department of the Lottery's exhibit 1.

Petitioner testified in her own behalf and was granted twenty days leave to late file an exhibit which she maintained would establish that the amount claimed to be owed to the Department of Health and Rehabilitative Services had been excused. The Petitioner's late filed exhibit which has been marked and received as Petitioner's composite exhibit 1 was filed by the Department of Banking and Finance on October 11, 1996. Respondent, Department of Health and Rehabilitative Services, filed proposed findings of fact and conclusions of law on October 17, 1996.

FINDINGS OF FACT

1. The Petitioner, Virginia Ann Dassaw, was formerly known as Virginia Ann Davis.

   
   

2. In 1979, Petitioner was charged with a criminal violation of Section 409.325, Florida Statutes, welfare fraud. The information alleged Petitioner had received food stamps which she was not entitled to because financial assistance was not available to her.

   
   

3. On May 29, 1979, Petitioner appeared before the court and entered a guilty plea to the charge. As a result of the negotiated plea, Petitioner received two years of unsupervised probation and adjudication was withheld.

   
   

4. Petitioner received $1,318.00 in overpayments from the Department of Health and Rehabilitative Services for the period March, 1977 through June, 1978. Such overpayments, monthly assistance payments, were from aid to families with dependent children; benefits Petitioner was not entitled to receive.

   
   

5. Petitioner did not believe she was required to repay the overpayment amount since the criminal court did not require restitution as part of the conditions of her probation in connection with the food stamp welfare fraud. Petitioner did not, however, aver that she had repaid the obligation at issue

   nor did she dispute that she had received an overpayment. She felt that the criminal proceeding had been sufficient to satisfy the question.

   
   

6. The order granting probation and fixing terms thereof did not, however, excuse Petitioner from the amount claimed in the instant case.

   
   

7. On or about February 26, 1996, Petitioner became a lottery prize winner in the amount of $2,500.00.

   
   

8. In conjunction with its claim for the overpayment described above, the Department of Health and Rehabilitative Services notified the Department of the Lottery of its claim for reimbursement from Petitioner's winnings in the amount of $1,318.00.

   
   

9. The Department of the Lottery transmitted the winning amount to the Office of the Comptroller. The winning amount, less the claim filed by the Department of Health and Rehabilitative Services, was issued to Petitioner by expense warrant number 4-17 700 616 on March 12, 1996, in the amount of

   $1,182.00.

   
   

10. Petitioner timely contested the amount claimed by the Department of Health and Rehabilitative Services.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

12. 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. 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.

    
    

13. The Department of Health and Rehabilitative Services has established that Petitioner had an outstanding financial obligation in the amount of

    $1,318.00.

    
    

14. The Department of the Lottery properly transmitted Petitioner's prize winning to the Comptroller for disbursement.

15. The Department of Banking and Finance, Office of the Comptroller, remitted the correct amount to Petitioner after deducting the obligation owed to the Department of Health and Rehabilitative Services.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of Banking and Finance, Office of the Comptroller, issue a final order finding the Department correctly reduced Petitioner's lottery prize winning by $1,318.00 and dismissing Petitioner's challenge to the amount disbursed.

DONE AND ENTERED this 25th day of October, 1996, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1996.

APPENDIX

Rulings on the proposed findings of fact submitted by Petitioner: None submitted.

Rulings on the proposed findings of fact submitted by the Respondent, Department of Health and Rehabilitative Services:

1. Paragraphs 1 through 6 are accepted.

COPIES FURNISHED:

Virginia Ann Dassaw

10075 Southwest 170th Terrace Perrine, Florida 33157

Andre L. Williams

Assistant District Legal Counsel Department of Health and

Rehabilitative Services

401 Northwest Second Avenue, N-1014 Miami, Florida 33128

Josephine A. Schultz Chief Counsel

Office of the Comptroller Department of Banking and Finance The Fletcher Building, Suite 526

101 East Gaines Street Tallahassee, Florida 32399-0350

Louisa Warren, Esquire Department of the Lottery

250 Marriott Drive Tallahassee, Florida 32399

Robert F. Milligan

Office of the Comptroller Department of Banking and Finance The Capitol, Plaza level Tallahassee, Florida 32399-0350

Harry Cooper General Counsel

Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-00350

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-001786

Orders for Case No: 96-001786