STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK AGOGLIA, )

)

Petitioner, )

)

vs. ) Case No. 01-4329

)

DEPARTMENT OF REVENUE and )

DEPARTMENT OF LOTTERY, )

)

Respondents. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on December 20, 2001, with the Respondents appearing from Tallahassee, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondents: Chriss Walker, Esquire

Department of Revenue

Child Support Enforcement Post Office Box 8030

Tallahassee, Florida 32314-8030 STATEMENT OF THE ISSUE

Whether the Department of Revenue should retain and apply the Petitioner's lottery prize to reduce an outstanding arrearage for child support.

PRELIMINARY STATEMENT

On January 25, 2001, the Department of Revenue issued a Notice of Intent to Intercept Lottery Winnings to the Petitioner, Frank Agoglia. The action was based upon an alleged nonpayment of child support debt. The Department of Lottery proposed to transmit the Petitioner's lottery winnings to be applied by the Department of Revenue, Child Support Enforcement toward the arrearage claimed to be owed by the Petitioner. The Petitioner timely challenged the appropriation of his winnings and filed a request for an administrative review of the decision.

On November 1, 2001, the matter was forwarded to the Division of Administrative Hearings for formal proceedings. The case was then scheduled for hearing.

At the hearing, the Petitioner failed to appear. No evidence was presented on Petitioner's behalf. The Department of Revenue and the Department of the Lottery presented testimony from Patricia Ash along with exhibits that were received into evidence as DOR Exhibits 1-4 and DOL Composite Exhibit 1.

A transcript of the proceeding has not been filed.

The Respondents timely filed a Proposed Recommended Order on December 31, 2001. It has been considered in the

preparation of this order. The Petitioner did not file a proposed order.

FINDINGS OF FACT

1. The Respondents, the Department of Revenue and the Department of Lottery, are agencies of the State of Florida charged with the responsibility of administering and securing lottery prize winnings to apply to child support arrearages.

2. The Petitioner, Frank Agoglia, was one of a group who completed a claim to a lottery prize in the amount of $7,509.50. The claim was timely submitted to the Department of Lottery, and the Petitioner was eligible to receive his share of the lottery prize. Before taxes, the Petitioner's share of the winning prize was $600.00.

3. The Department of Revenue, acting pursuant to law, notified the Department of Lottery that the Petitioner owes court ordered child support in an amount exceeding the claimed prize.

4. As provided in Section 24.115(4), Florida Statutes, the Petitioner's entire share of the lottery prize was transmitted to the Department of Revenue. The Petitioner was timely notified of the transfer.

5. It is the intention of the Department of Revenue to apply the Petitioner's share of the winning prize to the outstanding child support arrearage.

6. By letter dated March 3, 2001, the Petitioner challenged the transfer of the winning share to be applied to the arrearage.

7. The Petitioner has not disputed the paternity of the child nor the child support obligations imposed by a court of law. It is also undisputed that the amount of the arrearage exceeds the Petitioner's share of the lottery prize.

8. The Petitioner presented no evidence to support his contention that the lottery prize winnings should not be applied to the child support arrearage.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57, Florida Statutes.

10. The Petitioner bears the burden of proof in this case to establish why the lottery winnings should not, as a matter of law, be applied to the child support arrearage. He has failed to meet that burden.

11. Section 24.115(4), Florida Statutes, provides:

    
    

    (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, including spousal support or alimony for the spouse or former spouse of the obligor if the child support obligation is being enforced by the Department of Revenue. 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.

    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 transmitted first to the agency claiming that past due child support is owed. If a balance of lottery prize remains after payment of past due child support, the remaining lottery prize amount shall be transmitted to other agencies claiming debts owed to the state, pro rata, based upon the ratio of the individual debt to the remaining debt owed to the state.

    
    

12. In this case, the Petitioner's prize before taxes exceeded $600.00. Therefore, it was appropriate for the Department of Lottery to transmit the winning share to the Department of Revenue to apply same toward the Petitioner's child support arrearage.

13. In fact and law, Section 409.2557, Florida Statutes, authorizes the Department of Revenue to "take

    actions necessary to carry out the public policy of ensuring that children are maintained from the resources of their parents to the extent possible."

14. Under the facts of this case it is concluded that the Petitioner owes child support that is being collected through a court. Further, notwithstanding the fact that other payments may be collected and applied to the arrearage, it is concluded the Department of Revenue is authorized to secure the Petitioner's lottery prize winnings and also to apply such winning share to the arrearage.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order retaining the Petitioner's lottery prize and to apply it to reduce the arrearage of child support owed by the Petitioner.

DONE AND ENTERED this 23rd day of January, 2002, in Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH 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 23rd day of January, 2002.

COPIES FURNISHED:

Frank Agoglia

16460 Southwest 146th Court Miami, Florida 33177-1781

Chriss Walker, Esquire Department of Revenue

Child Support Enforcement Post Office Box 8030

Tallahassee, Florida 32314-8030

Louisa Warren, Esquire Department of Lottery

250 Marriott Drive Tallahassee, Florida 32301

Bruce Hoffmann, General Counsel Department of Revenue

204 Carlton Building Tallahassee, Florida 32399-0100

James Zingale, Executive Director Department of Revenue

104 Carlton Building Tallahassee, Florida 32399-0100

David Griffin, Secretary Department of Lottery

250 Marriott 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: 01-004329

Orders for Case No: 01-004329