STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE LUTHER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3857

)

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

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on August 27, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: No appearance. For Respondent, Bridget L. Ryan

Department of Assistant General Counsel Banking and Office of the Comptroller Finance: Suite 1302, The Capitol

Tallahassee, Florida 32399-0350

For Respondent, Chriss Walker, Esquire Department of Department of Health and Health and Rehabilitative Services Rehabilitative 1317 Winewood Boulevard

Services: Tallahassee, Florida 32399-0700

For Respondent, Louisa Warren

Department of Department of the Lottery the Lottery: 250 Marriott Drive

Tallahassee, Florida 32399 STATEMENT OF THE ISSUES

At issue in this proceeding is whether petitioner's lottery prize is subject to an outstanding debt to any state agency or owing child support collected through a court.

PRELIMINARY STATEMENT

By letter of May 17, 1991, the Department of Banking and Finance (DBF), notified petitioner that the Department of the Lottery (Lottery) had transmitted

his prize of $3,529.50 to it pursuant to Section 24.115(4), Florida Statutes, based on information received from the Department of Health and Rehabilitative Services (DHRS) that he owed $10,374.81 in Title IV-D child support arrearages, and that it intended to apply his prize to such unpaid claim. Petitioner filed a protest to DBF's action and requested a formal hearing.

At hearing, neither petitioner nor anyone on his behalf appeared.

Respondents called Flory Pfaender as a witness, and respondents' exhibits 1-5 were received into evidence. A transcript of the hearing was not ordered.

At the conclusion of the hearing, the parties were granted leave until September 6, 1991, to file proposed findings of fact. DBF elected to file such proposals, and they have been adopted in substance in this recommended order.

FINDINGS OF FACT

1. On April 15, 1991, petitioner submitted a claim to the Department of the Lottery (Lottery) on a ticket he held for the Lotto drawing of April 13, 1991. Such ticket reflected that petitioner had correctly selected five of the six numbers drawn on that date, and rendered him eligible for a prize of

   $3,529.50.

   
   

2. On May 10, 1991, the Department of Health and Rehabilitative Services (DHRS) certified to the Lottery that petitioner owed $10,374.81 in Title IV-D child support arrearage. Thereafter, by letter of May 15, 1991, the Lottery advised petitioner that DHRS had advised it of such outstanding debt and that, pursuant to Section 24.115(4), Florida Statutes, it had transmitted the prize amount to the Department of Banking and Finance (DBF). Petitioner was further advised that DBF would notify him shortly regarding the distribution of such funds.

   
   

3. By letter of May 17, 1991, DBF notified petitioner that it was in receipt of his prize from the Lottery and that it intended to apply the entire

   $3,529.50 toward the unpaid claim owing for child support. Such letter likewise advised petitioner of his right to request a hearing to contest such action.

   
   

4. By letter of June 3, 1991, petitioner acknowledged receipt of the DBF's letter of May 17, 1991, disputed that any such obligation was outstanding, and requested a formal hearing.

   
   

5. At hearing, the proof demonstrated that on January 29, 1982, the Circuit Court of the Eleventh Judicial Circuit, Dade County, Florida, rendered an order approving a stipulation for payment of child support by petitioner for the support of his children. Such stipulation provided that petitioner would pay the sum of $200.00 per month toward an arrearage of $12,234.91, due as of December 20, 1981. The stipulation further provided that such payments would be made payable to the clerk of that court, which would deduct its fee, and forward the balance to DHRS for transmittal to the State of Ohio, the apparent residence of petitioner's former wife.

   
   

6. DHRS, the agency designated by the Circuit Court to receive the child support payments deposited with the clerk of that court, and to transmit such sums to the State of Ohio, has certified that as of May 10, 1991, petitioner owed $10,374.81 in Title IV-D child support arrearage. On May 16, 1991, DHRS confirmed such arrearage with the Clerk of the Circuit Court, Dade County, Florida, and reconfirmed such arrearage on August 25, 1991. Petitioner, the

   party responsible to make such payments, offered no proof at hearing to controvert such certification.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

   
   

8. Pertinent to this case, Section 24.115(4), Florida Statutes, provides that:

   
   

   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 owning 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. . . .

   
   

9. Here, the uncontroverted proof at hearing demonstrated that petitioner owed $10,374.81 in child support collected through a court. Accordingly, DBF's decision to apply petitioner's prize of $3,529.50 toward such debt was appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department of Banking and Finance enter a final order dismissing the petitioner's request for formal hearing, and that it pay to the Department of Health and Rehabilitative Services petitioner's lottery prize of

$3,529.50, in partial satisfaction of petitioner's debt for child support.

RECOMMENDED in Tallahassee, Leon County, Florida, this 12th day of September 1991.

WILLIAM J. KENDRICK

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 12th day of September 1991.

COPIES FURNISHED:

Mr. George Luther

10900 S.W. 134th Terrace Miami, Florida 33176

Bridget L. Ryan

Assistant General Counsel Office of the Comptroller Suite 1302, The Capitol

Tallahassee, Florida 32399-0350

Chriss Walker, Esquire Department of Health and

Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Louisa Warren

Department of the Lottery

250 Marriott Drive Tallahassee, Florida 32399

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

William G. Reeves General Counsel

Department of Banking and Finance The Capitol

Plaza Level, Room 1302 Tallahassee, Florida 32399-0350

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 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: 91-003857

Orders for Case No: 91-003857