STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY WAYNE ROBERTS, )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF BANKING AND FINANCE, ) CASE NO. 96-3212 DIVISION OF ACCOUNTING AND )

AUDITING, DEPARTMENT OF REVENUE, ) AND DEPARTMENT OF LOTTERY, )

)

Respondents. )

)

RECOMMENDED ORDER

A hearing was held in this case in Ft. Meade, Florida, on August 27, 1996, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gary Wayne Roberts, pro se

527 6th Street Northeast Ft. Meade, Florida 33841

For Respondent: Ellen C. Marino, Esquire Department of Office of the Comptroller Banking and The Capitol, Suite 1302

Finance Tallahassee, Florida 32399-0350

For Respondent: Chriss Walker, Esquire Department of Department of Revenue Revenue Post Office Box 8030

Tallahassee, Florida 32314

For Respondent: Not present and not represented Department of at the hearing

Lottery

STATEMENT OF THE ISSUE

The issue for consideration in this matter is whether the Department of Revenue should retain Petitioner's lottery winnings in the amount of $1,033.01 because of his obligation to pay child support as ordered by a court of record.

PRELIMINARY STATEMENT

By letter dated May 30, 1996, Les Pearson, Chief of the Department of Banking and Finance's Bureau of Auditing, advised Petitioner that the Department of Lottery had transmitted his prize of $1,033.01 to it pursuant to Section

24.115(4), Florida Statutes, which requires the Lottery to transmit to the Comptroller any lottery prize of $600.00 or more for payment of any outstanding debt to a state agency or court-ordered child support. Thereafter, Petitioner requested formal hearing and this hearing ensued.

At the hearing, Petitioner testified in his own behalf and introduced the court order requiring him to pay child support as Petitioner's Exhibit A. The Department of Revenue presented the testimony of Patricia Ash, a child support enforcement official, and introduced Revenue Exhibits 1 through 3. The Department of Banking and Finance called no witnesses but introduced Banking and Finance Exhibit 1. The Department of Lottery presented no evidence.

No transcript of the proceedings was furnished. Only counsel for the Respondents submitted proposed Findings of Fact which are hereby accepted and incorporated in this Recommended Order.

FINDINGS OF FACT

1. By Final Judgement of Paternity dated September 13, 1994, J. Tim Strickland, Circuit Judge for the 10th Judicial Circuit in Polk County, ordered Petitioner, inter alia, to pay child support and retroactive child support to the State of Florida for the dependent child of which Petitioner was adjudged the father, in the amount of $25.00 per week in future child support, and $5.00 per week in retroactive child support until the sum of $5,007.00 has been paid in full.

   
   

2. Petitioner thereafter arranged for the payments required as to both future child support and the retroactive child support to be deducted out of his earnings or unemployment compensation payments when he was unemployed. The Department of Revenue agrees that all periodic payments required by the court order have been paid timely.

   
   

3. On May 4, 1996, Petitioner purchased a lottery ticket from an agent of the Florida Lottery. One of the number series he purchased on May 4 was a partial winner and Petitioner was entitled to receive the sum of $1,033.00. On May 5, 1996, Petitioner submitted a winner claim form to claim the $1,033.00.

   
   

4. Before any money was paid to the Petitioner, however, consistent with the pertinent provisions of the Florida Statutes, the Department of Lottery transmitted the Petitioner's prize money to the Department of Banking and Finance so that any debts due the state by the winner, or unpaid court-ordered child support could be identified and prize money withheld to satisfy all or a part of such claim.

   
   

5. Consistent with established procedure, the Department of Revenue informed the Department of Banking and Finance that Petitioner owed $4,305.01 in unpaid retroactive child support assessed by the Circuit Court in May, 1994. Since the amount the Department of Revenue claimed was owing exceeded the amount of Petitioner's prize of $1,033.00, the Department of Banking and Finance advised Petitioner it intended to apply the entire prize amount to the unpaid retroactive child support. Petitioner protests, claiming that since he is fully in compliance with the terms of the Final Judgement of Paternity, and none of the required weekly payments is delinquent, he is not indebted and the state has no basis to withhold his prize.

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Section 24.115(4), Florida Statutes, provides in pertinent part:

   
   

   It is the responsibility of the appropriate state agency and of the judicial branch to identify to the department [the Lottery], in the form and format prescribed by 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 may transmit the prize money to the Comptroller who may

   authorize payment of the balance to the prize winner after deduction of the debt.

   
   

8. The evidence in this case establishes that Mr. Roberts owed child support in the amount of $4,305.01 in court-ordered retroactive support debt as of May 6, 1996, the date he filed his claim against the Lottery, down from the original retroactive support debt of $5,007.00. That none of the ordered weekly payments was delinquent according to the terms of the court's order does not change the fact that the entire sum was determined to be owing by the court as retroactive child support. Such retroactive support is not a future obligation for Mr. Roberts but a current and existing obligation which the court decreed he could pay over a future period of time. The court's order does not, however, preclude the Department from withholding windfall payments such as lottery prizes.

   
   

9. The terms of Section 24.115(4), Florida Statute, do not require that the obligation be delinquent but only that it be outstanding. As of the date of the prize claim, Mr. Roberts had an obligation to his child, which had been collected through the Circuit Court, in an amount which far exceeded the amount of the prize he was claiming. That Mr. Roberts was fully in compliance with the terms of the court order and had made arrangements for automatic collection of the weekly amount payable under the terms of that order is to his credit. It does not, however, obviate the fact that as of May 6, 1996, Mr. Roberts was obligated to pay retroactive support in the amount of $4,305.01, and consistent with the terms of the statute, the Department may collect his prize for the benefit of his child.

   
   

10. The actions of the Lottery, the Comptroller and the Department of Revenue were consistent with Florida law.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be issued providing for payment of the $1, 033.00 prize attributable to the ticket held by Petitioner Gary Roberts, to the Department of Revenue on behalf of his minor child.

DONE and ENTERED this 23rd day of September, 1996, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 23rd day of September, 1996.

COPIES FURNISHED:

Gary Roberts

527 6th Street Northeast Ft. Meade, Florida 33841

Chriss Walker, Esquire Department of Revenue Post Office Box 8030

Tallahassee, Florida 32314-8030

Ellen C. Marino, Esquire Department of Banking and Finance The Capitol, Suite 1302 Tallahassee, Florida 32399-0350

Louisa H. Warren, Esquire Department of the Lottery

250 Marriott Drive Tallahassee, Florida 32399

Hon. Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level

Tallahassee, Florida 32399-0350

Harry Hooper General Counsel

The Capitol, Room 1302 Tallahassee, Florida 32399-0350

Linda Lettera General Counsel

Department of Revenue

204 Carlton Building Tallahassee, Florida 32399-0100

Larry Fuchs Executive Director Department of Revenue

104 Carlton Building Tallahassee, Florida 32399-0100

Dr. Marcia Mann, Secretary Department of Lottery

250 Marriott Drive

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the Final Order in this case concerning their 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: 96-003212

Orders for Case No: 96-003212