STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMMA GONZALES, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4710

)

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

)

Respondents. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tallahassee, Florida on November 22, 1994 before Suzanne F. Hood, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearances

For Respondent: Mindy K. Raymaker, Esquire Department of Assistant General Counsel Banking and Office of the Comptroller Finance The Capitol, Suite 1302

Tallahassee, Florida 32399-0350

For Respondent: Jorge Cruz-Bustillo, Esquire Department of Department of Health and Health and Rehabilitative Services Rehabilitative 1317 Winewood Boulevard Services Building E, Room 200

Tallahassee, Florida 32399-0700

For Respondent: Louisa H. Warren, Esquire Department of Department of Lottery Lottery 250 Marriot Drive

Tallahassee, Florida 32399-4000 STATEMENT OF THE ISSUE

The issue is whether Petitioner's lottery prize in the amount of $10,000 is subject to offset a debt she owes to a state agency.

PRELIMINARY STATEMENT

By letter dated June 8, 1994, Respondent Department of Banking and Finance (DBF) notified Petitioner Emma Gonzales (Petitioner) that the Respondent Department of Lottery (Lottery) transferred $7,200 of her $10,000 prize ($10,000 less federal income tax of $2,800) to DBF pursuant to Section 24.115(4), Florida Statutes. The Lottery made the transfer based on certification by the Respondent Department of Health and Rehabilitative Services (DHRS) that Petitioner owed $10,553.00 to DHRS for overpayments of Aide to Families with Dependent Children (AFDC) benefits and Food Stamp benefits. Petitioner received this notice on or about June 17, 1994, but failed to respond until she filed a petition requesting a formal hearing on July 14, 1994.

At the formal hearing on November 22, 1994, neither Petitioner nor anyone on her behalf made an appearance. DHRS presented the testimony of one (1) witness and offered ten (10) exhibits which were received into evidence. DBF and the Lottery each offered one (1) composite exhibit, both of which were received into evidence.

A transcript of the hearing was not ordered. On December 16, 1994, DHRS filed a proposed recommended order. To date, no other party has filed proposed findings of fact and conclusions of law. The attached Appendix to this Recommended Order contains a ruling on each of the facts proposed by DHRS.

FINDINGS OF FACT

1. Petitioner's current address is 3195 East Atlantic Drive, Boynton Beach, Florida 33435.

   
   

2. At all times material to this proceeding, Petitioner received AFDC and Food Stamp benefits.

   
   

3. At all times material to this proceeding, Petitioner worked for Winn Dixie, 1565 S. Congress Ave., West Palm Beach, Florida, but failed to timely and/or accurately report her income to DHRS.

   
   

4. By letters dated April 14, 1993, DHRS notified Petitioner that her failure to timely and/or accurately report her income resulted in an overissuance of $3,889 in Food Stamp benefits and an overpayment of $6,664 in AFDC benefits for the period of June, 1991 through November, 1992.

   
   

5. On or about April 21, 1994, Petitioner filed a winning ticket in the face amount of $10,000 with the Lottery.

   
   

6. On or about April 26, 1994, DHRS certified to the Lottery that Petitioner owed an arrearage in the amount of $10,533.00 for overpayments of AFDC and Food Stamp Benefits.

   
   

7. On April 29, 1993, Petitioner acknowledged her liability and signed a Repayment Agreement for the AFDC and Food Stamp debts.

   
   

8. On or about June 2, 1994, the Lottery transmitted Petitioner's $7,200 net prize ($10,000 less federal income tax in the amount of $2,800) to DBF with a request that DBF apply the funds as directed by Section 24.115(4), Florida Statutes.

9. By letter dated June 8, 1994, DBF notified Petitioner that it intended to apply $7,200 of Petitioner's winnings to her unpaid debt. Said notice informed Petitioner of her right to a formal hearing pursuant to Section 120.57(1), Florida Statutes.

   
   

10. Petitioner received DBF's June 8, 1994, letter by certified mail on or about June 17, 1994. However, Petitioner failed to request a formal hearing until July 14, 1994.

    
    

11. Record evidence established Petitioner's debt for overissuance of Food Stamps and overpayment of AFDC benefits.

    
    

12. Petitioner did not make an appearance at the formal hearing held on November 22, 1994. At that time, Petitioner had not repaid DHRS any portion of her $10,533 debt.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

14. Pursuant to Section 24.115(4), Florida Statutes, DHRS must certify to the Lottery the names and addresses of individuals who owe an outstanding debt for AFDC or Food Stamp benefits. "Prior to the payment of a prize of $600 or more to any claimant having such an outstanding obligation, the [Lottery] may transmit the prize money to the Comptroller who may authorize payment of the balance to the prize winner after deduction of the debt." Section 24.115(4), Florida Statutes.

    
    

15. Federal regulations governing public assistance programs require states to take all steps necessary to "promptly correct any overpayment." 45 C.F.R. 233.20(a)(13)(i)(A).

    
    

16. Section 409.335(1), Florida Statutes, requires DHRS to take all necessary steps to recover overpayments of AFDC and Food Stamp benefits.

    
    

17. Uncontroverted record evidence indicates that as of November 22, 1994, Petitioner owed a total debt of $10,553: $3,889 for overissued Food Stamps and

    $6,664 for overpaid AFDC benefits.

    
    

18. DHRS is entitled to recover $7,200 ($10,000 less $2,800 payable for federal income tax) of Petitioner's prize to reduce her total debt of $10,533.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that DBF enter a Final Order dismissing Petitioner's petition and transferring Petitioner's net prize in the amount of $7,200 to DHRS for credit to Petitioner's account in partial satisfaction of her debts to the state.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of December, 1994.

SUZANNE F. HOOD, Hearing Officer 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 29th day of December, 1994.

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Petitioner's Proposed Findings of Fact

The Petitioner did not file proposed findings of fact.

Respondent's Proposed Findings of Fact

1. Accepted in Findings of Fact (FOF) #1.

2. Accepted in FOF #5.

3. Accepted in FOF #6.

4. Accepted in FOF #8.

5. Accepted in FOF #9.

6. Accepted in FOF #10.

7. Accepted in FOF #10 except as modified. The record does not contain a copy of a Final Order dated July 14, 1994.

8. Accepted in FOF #10 except as modified. The record does not contain a copy of a Final Order date July 14, 1994.

9. Accepted in FOF # 11.

10. Accepted in FOF #6.

11. Accepted in FOF #4.

12. Accepted in FOF #7.

13. Accepted in FOF #11.

14. Accepted in FOF #11.

15. Accepted in FOF #12 except as modified to eliminate subordinate information.

COPIES FURNISHED:

Emma Gonzales

3195 East Atlantic Drive Boynton Beach, Florida 33435

Mindy K. Raymaker, Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302

Tallahassee, Florida 32399-0350

Jorge Cruz-Bustillo, Esquire Department of Health and

Rehabilitative Services 1317 Winewood Blvd.

Bldg. E, Room 200

Tallahassee, Florida 32399-0700 Continued next page.

Louisa H. Warren, Esquire Department of Lottery

250 Marriot Drive

Tallahassee, Florida 32399-4000

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, Room 1302 Tallahassee, Florida 32399-0350

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Dr. Marcia Mann, Secretary Department of the Lottery

250 Marriot Drive Tallahassee, Florida 32301

Ken Hart, General Counsel Department of the Lottery

250 Marriot Drive Tallahassee, Florida 32301

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: 94-004710

Orders for Case No: 94-004710