STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS BOGANSKI, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3587

) DEPARTMENT OF BANKING AND ) FINANCE, DEPARTMENT OF ) REVENUE, AND DEPARTMENT OF ) THE LOTTERY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings, by video teleconference on October 11, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Stephen S. Godwin

Assistant Attorney General Department of Banking and Finance Office of the Comptroller

The Capitol, Suite 1302 Tallahassee, Florida 32399-0350

Chriss Walker, Esquire Department of Revenue Child Support Enforcement Post Office Box 8030

Tallahassee, Florida 32314-8030

Louisa H. Warren, Esquire Department of the Lottery

250 Marriott Drive

Tallahassee, Florida 32399-4011 STATEMENT OF THE ISSUES

The issue for determination at hearing is whether Petitioner's lottery prize winnings of $2,500 should be disbursed to the Department of Revenue for an outstanding child support debt.

PRELIMINARY STATEMENT

Thomas Boganski (Petitioner) had lottery winnings of $2,500 from the Department of the Lottery (Respondent Lottery). By letter dated May 9, 1995, the Department of Banking and Finance, Office of the Comptroller (Respondent Banking and Finance) notified Petitioner that Respondent Lottery had transmitted the $2,500 to it pursuant to Subsection 24.115(4), Florida Statutes. Moreover, the Respondent Banking and Finance notified Petitioner that the Department of Revenue, Child Support Enforcement Program (Respondent Revenue) had informed it that Petitioner had an outstanding child support debt of $9,500 and that, since the debt exceeded the winnings, it (Respondent Banking and Finance) was applying the entire amount to the unpaid debt.

By letter dated May 13, 1995, Petitioner contested the action by Respondent Banking and Finance and requested a formal hearing. On July 9, 1995, this matter was referred to the Division of Administrative Hearings.

At hearing, Petitioner failed to appear. Respondents presented the testimony of one (1) witness and entered three composite exhibits into evidence.

A transcript of the hearing was not ordered. Respondents submitted joint proposed findings of fact which are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. On November 28, 1994, a hearing officer of the Seventeenth Judicial Circuit, Circuit Court for Broward County, Florida (Seventeenth Judicial Circuit) conducted an evidentiary hearing on a petition to determine child support filed against Thomas Boganski (Petitioner). By Report dated November 28, 1994, the hearing officer determined, among other things, that Petitioner was liable for a past public assistance obligation in the amount of $8,871, representing monies received by his children from October 1991 through November 1994 and that payments on the child support obligation would be payable through the court.

   
   

2. By Order dated December 12, 1994, a circuit judge of the Seventeenth Judicial Circuit ratified and approved the hearing officer's Report; thereby, establishing a child support debt, payable through the court.

   
   

3. On June 26, 1995, a hearing officer of the Seventeenth Judicial Circuit conducted an evidentiary hearing on a motion for contempt filed against Petitioner for nonpayment of the child support obligation. By Report dated June 26, 1995, the hearing officer determined, among other things, that Petitioner had a past public assistance obligation and arrears totaling $10,551 as of June 14, 1995.

   
   

4. By Order dated July 14, 1995, a circuit judge of the Seventeenth Judicial Circuit ratified and approved the hearing officer's Report.

   
   

5. On January 9, 1995, Petitioner presented to the Department of the Lottery (Respondent Lottery) a claim for payment of a lottery ticket which he had purchased. The lottery ticket had a prize value of $2,500.

   
   

6. On June 9, 1995, the Department of Revenue (Respondent Revenue) certified to Respondent Lottery that, as of that date, Petitioner had a court- ordered past public assistance debt of $9,500.

7. The $2,500 prize winnings was transmitted to the Department of Banking and Finance, Office of the Comptroller (Respondent Banking and Finance) by Respondent Lottery. Respondent Banking and Finance did not disburse the $2,500 to Petitioner but retained the entire amount.

   
   

8. By letter dated May 9, 1995, Respondent Banking and Finance notified Petitioner that the $2,500 prize winnings had been transmitted to it by Respondent Lottery. Furthermore, Respondent Banking and Finance notified Petitioner that the entire $2,500 was going to be applied to his unpaid past public assistance obligation of $9,500.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings had jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

10. Section 24.115, Florida Statutes, provides in pertinent part:

    
    

    (4) It is the responsibility of the appropriate state agency and of the judicial branch to identify to the department [Department of the Lottery], 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.

    
    

11. The general rule is that "the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal." Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981). Here, Respondents are asserting the affirmative and, therefore, have the burden of proof.

    
    

12. Respondents have demonstrated that Petitioner is a claimant of lottery prize winnings exceeding $600. Moreover, Respondents have demonstrated that Petitioner has an outstanding court ordered public assistance obligation , i.e., owes child support collected through a court, exceeding the prize winnings.

RECOMMENDATION

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

RECOMMENDED that the Department of Banking and Finance, Office of the Comptroller enter a final order providing for payment to the Department of Revenue the lottery prize winnings of $2,500 claimed by Thomas Boganski.

DONE AND ENTERED this 27th day of November, 1995, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

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 27th day of November, 1995.

APPENDIX

Respondents' joint proposed findings of fact 1 - 6 have been adopted in substance in this recommended order.

COPIES FURNISHED:

Thomas Boganski

1519 North 57th Terrace Hollywood, Florida 33021

Stephen S. Godwin Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302

Tallahassee, Florida 32399-0350

Chriss Walker, Esquire Child Support Enforcement Department of Revenue

P.O. Box 8030

Tallahassee, Florida 32314-8030

Louisa Warren, Esquire Department of the Lottery

250 Marriott Drive Tallahassee, Florida 32399

The Honorable Robert F. Milligan Comptroller

State of Florida

The Capitol, Plaza Level 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 ten 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: 95-003587

Orders for Case No: 95-003587