STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UBANGI HAJJ-MAK, )

)

)

Petitioner, )

)

vs. ) Case No. 99-2527

)

DEPARTMENT OF REVENUE )

and DEPARTMENT OF LOTTERY, )

)

Respondents, )

)

RECOMMENDED ORDER

An administrative hearing was conducted on July 21, 1999, in Orlando, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings. Petitioner and the court reporter attended the hearing in Orlando. Respondent, Department of Revenue ("Respondent"), and the undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Ubangi Hajj-Mak, pro se

Post Office Box 269 2208 Southwest Road

Sanford, Florida 32772-0269

For Respondent: Chris Walker, Senior Attorney Department of Department of Revenue

Revenue Post Office Box 8030 Tallahassee, Florida 32314

For Respondent: No Appearance Department of

Lottery

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent should apply

$5,000 won by Petitioner in the Florida Lottery toward child

support and costs owed by Petitioner pursuant to Section 24.115(4), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).

PRELIMINARY STATEMENT

On April 13, 1999, Respondent notified Petitioner that Respondent had certified to the Department of Lottery (the "Department") that Petitioner owed child support and costs in the amount of $8,389.84, and that Petitioner's lottery prize should be permanently withheld and applied to reduce Petitioner's outstanding obligation for child support and costs. Petitioner timely requested an administrative hearing.

On June 3, 1999, Respondent referred the matter to the Division of Administrative Hearings ("DOAH") to conduct an administrative hearing. The matter was assigned to the undersigned and scheduled for hearing on July 21, 1999.

At the hearing, Petitioner testified in his own behalf and submitted one composite exhibit for admission in evidence.

Respondent presented the testimony of one witness and submitted one composite exhibit for admission in evidence.

The identity of the witnesses and exhibits, and any attendant rulings, are set forth in the record of the hearing. Neither party requested a transcript. Petitioner filed his Proposed Recommended Order ("PRO") on July 26, 1999. Respondent timely filed its PRO on August 2, 1999.

FINDINGS OF FACT

1. On November 7, 1997, the Circuit Court for the Seventh Judicial Circuit, in and for Volusia County, Florida (the "Circuit Court") entered a Final Judgement on Custody (the "Final Judgment"). The Circuit Court awarded custody of the minor child to Petitioner's ex-wife and ordered Petitioner to pay child support of $485.46 on the first day of each month.

2. Petitioner failed to pay child support in accordance with the Final Judgement. Respondent brought an action to enforce the Final Judgement.

3. On February 10, 1999, a Child Support Hearing Officer for Respondent entered a Report and Recommendation of Hearing Officer on Contempt (the "Contempt Report") determining that Petitioner owed an arrearage in the amount of $8,279.81. The Contempt Report required Petitioner to make timely payments of his monthly obligation for child support in the amount of $485.46 and to make a lump sum payment of $1,000 on or before March 12, 1999, to "purge" himself of contempt. An Income Deduction Order required Petitioner to pay child support of $485.46 each month to the clerk of the court.

4. Petitioner filed a Notice of Exceptions to the Contempt Report and Income Deduction Order. On March 29, 1999, the Circuit Court conducted an emergency hearing to consider Petitioner's exceptions, to direct the Department of Revenue to Release Lottery Funds, and to consider Petitioner's motion to

   strike the paragraph in the Contempt Report requiring Petitioner to make a lump sum payment of $1,000.

5. The Circuit Court granted Petitioner's Notice of Exceptions and struck the paragraph requiring Petitioner to pay

   $1,000 on or before March 12, 1999. The Circuit Court also ordered the release of Petitioner's lottery prize to his ex-wife to satisfy part of the arrearage Petitioner owes for child support. In relevant part, the Circuit Court stated:

   2. That the [Petitioner'] lottery funds shall be released over to the [ex-wife]

   . . . . That the Department of Revenue is hereby ordered to release these funds directly to the [ex-wife] in an expedited manner as she is in dire need of said funds.

6. On July 21, 1999, Respondent conducted an audit of the file and determined that Petitioner made some payments between February 10, 1999, and July 21, 1999. As of July 21, 1999, the arrearage of child support and costs owed by Petitioner was

   $7,395.09.

7. Petitioner submitted no evidence that he has satisfied the arrearage in the amount of $7,395.09. Petitioner argues that he has appealed the order of the Circuit Court authorizing Respondent to disburse Petitioner's lottery prize directly to Petitioner's ex-wife and that DOAH is without jurisdiction.

   CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. The parties received

   adequate notice of the administrative hearing. Section 120.57(1).

9. The burden of proof is on Petitioner. Florida Department of Transportation vs. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Petitioner must satisfy his burden of proof by a preponderance of the evidence. Section 120.57(1)(h).

10. In relevant part, Section 24.115(4) provides:

    It is the responsibility of the appropriate state agency and of the judicial branch to identify to the department . . . persons 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 shall transmit the amount of the debt to the agency claiming the debt and shall authorize payment of the balance to the prize winner after deduction of the debt.

11. The preponderance of the evidence shows that Petitioner owes an outstanding obligation of child support in the amount of

    $7,395.09. It is the responsibility of Respondent to identify the outstanding obligation to the Department, for the Department to transmit the amount of the debt to Respondent, and for the Department to authorize Respondent to pay the balance of the lottery prize to Petitioner after Respondent deducts the outstanding obligation for child support from the lottery prize.

12. In this proceeding, the outstanding obligation for child support exceeds the amount of the lottery prize.

Therefore, Respondent is required by statute to transmit the entire lottery prize to Petitioner's ex-wife.

RECOMMENDATION

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

RECOMMENDED that Respondent enter a Final Order finding that Petitioner owes an outstanding obligation for child support in the amount of $7,395.09, through July 21, 1999, and applying the lottery prize to reduce the outstanding obligation of $7,395.09.

DONE AND ENTERED this 2nd day of September, 1999, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1999.

COPIES FURNISHED:

Larry Fuchs, Executive Director Department of Revenue

104 Carlton Building Tallahassee, Florida 32399-0100

Linda Lettera, General Counsel Department of Revenue

204 Carlton Building Tallahassee, Florida 32399-0100

Chris Walker, Senior Attorney Department of Revenue

Post Office Box 8030 Tallahassee, Florida 32314

Ubangi Hajj-Mak Post Office Box 269 2208 Southwest Road

Sanford, Florida 32772-0269

Sue M. Cobb, Interim Secretary Department of Lottery

250 Marriot Drive Tallahassee, Florida 32301

Ken Hart, General Counsel Department of Lottery

250 Marriott Drive Tallahassee, Florida 32301

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: 99-002527

Orders for Case No: 99-002527