STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GUSSIE MAE DEMPSON, )

)

Petitioner, )

)

vs. ) Case No. 96-4216

)

DEPARTMENT OF BANKING AND ) FINANCE; DEPARTMENT OF CHILDREN ) AND FAMILY SERVICES;1 and ) DEPARTMENT OF THE LOTTERY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 15, 1997, by video teleconference at Miami, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gussie Mae Dempson, pro se

631 Southwest 12th Avenue Homestead, Florida 33030

For Respondents: Josephine A. Schultz

Chief Counsel

Department of Banking and Finance Fletcher Building, Suite 526

101 East Gaines Street Tallahassee, Florida 32399-0350

Leah M. Pollard, Esquire Department of Children and

Family Services

401 NW 2nd Avenue, N-1014 Miami, Florida 33128

Louisa Warren, Esquire Department of the Lottery

250 Marriott Drive Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner should receive her lottery prize winnings of $2,500.

PRELIMINARY STATEMENT

By letter dated July 5, 1996, the Department of Banking and Finance, Office of the Comptroller (Banking and Finance) notified Gussie Mae Dempson (Ms. Dempson) that, among other things, (a) the Department of the Lottery (Lottery) had transmitted her lottery prize winnings of $2,500 to Banking and Finance; (b) the Lottery made the transfer because the Department of Health and Rehabilitative Services, now the Department of Children and Family Services, (Children and Family Services) had notified the Lottery that she owed $4,622 to Children and Family Services; and

(c) Banking and Finance would apply the entire amount of her prize winnings to her unpaid debt to Children and Family Services. By letter dated July 9, 1996, Ms. Dempson disputed that she owed $4,622 to Children and Family Services and requested a formal hearing. On September 6, 1996, this matter was referred to the Division of Administrative Hearings.

At hearing Ms. Dempson testified in her own behalf and entered two exhibits into evidence. Children and Family Services presented the testimony of one witness and entered seven exhibits into evidence. Banking and Finance presented no witnesses and

entered one exhibit into evidence. The Lottery presented no witnesses and entered no exhibits into evidence.

A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript.

Only Children and Family Services filed a post-hearing submission, and that submittal has been duly considered.

FINDINGS OF FACT

1. On June 17, 1996, Gussie Mae Dempson (Ms. Dempson) won a lottery prize in the amount of $2,500.

2. By letter dated June 18, 1996, the Department of Health and Rehabilitative Services, now the Department of Children and Family Services (Children and Family Services) notified the Department of the Lottery (Lottery) that, among other things, Ms. Dempson was indebted to Children and Family Services in the amount of $4,622, as of June 18, 1996.

3. Due to being notified of the debt owed by Ms. Dempson to Children and Family Services, the Lottery forwarded Ms. Dempson's lottery prize winnings to the Department of Banking and Finance, Office of the Comptroller (Banking and Finance).

4. By letter dated July 5, 1996, the Banking and Finance notified Ms. Dempson that, among other things, her entire lottery prize winnings were being withheld due to the debt owed by her to Children and Family Services and that all of the winnings would be applied to the debt.

5. The debt owed by Ms. Dempson to Children and Family Services originates from two accounts for Aid to Families with Dependent Children (AFDC) and two accounts for Food Stamps. AFDC Account No. 31-01057-52

6. Ms. Dempson was determined eligible for AFDC by Children and Family Services on AFDC Account No. 31-01057-52. She received AFDC for numerous months, including the months of October 1976, December 1976, February 1997 through July 1997, and January 1978, being issued allotments ranging from $119 to $88 per month.

7. After issuance of the allotments, a review by Children and Family Services determined that Ms. Dempson had received an over-issuance through "client error" in the amount of $753.

8. For October 1976, Ms. Dempson received $119, but was eligible for $0, resulting in an over-issuance of $119.

9. For December 1976, Ms. Dempson received $88, but was eligible for $78, resulting in an over-issuance of $10.

10. For February, March, April, and May 1977, Ms. Dempson received $88 per month, but was eligible for $0, resulting in an over-issuance of $88 per month or $352.

11. For July 1977, Ms. Dempson received $92, but was eligible for $0, resulting in an over-issuance of $92.

12. For January 1978, Ms. Dempson received $92, but was eligible for $0, resulting in an over-issuance of $92.

13. Ms. Dempson was notified of the overpayment, her right to dispute the overpayment, and her responsibility for the overpayment. She made repayments to Children and Family Services from February 8, 1980 through April 20, 1981. Ms. Dempson's debt to Children and Family Services on this account was reduced to

    $333.

    
    

14. An inference is drawn and a finding is made that

    
    

    Ms. Dempson did not dispute the over-issuance of $753 in AFDC.

    
    

    AFDC Account No. 31-01057-53

    
    

15. Ms. Dempson was subsequently determined eligible to receive AFDC by Children and Family Services on AFDC Account No. 31-01057-53 for numerous months, including the months of

    April 1992 through December 1992. She received allotments of

    
    

    $180 per month from April through November, and two allotments in December for $95 and $180.

16. After issuance of the allotments, a review by Children and Family Services determined that Ms. Dempson had received an over-issuance through "agency error" in the amount of $1,715.

17. For the months of March 1992 through November 1992, Ms. Dempson received $1,620, but was eligible for $0, resulting in an over-issuance of $1,620. In December 1992, Ms. Dempson received $275, but was eligible for $180, resulting in an over- issuance of $95. As a result, Ms. Dempson's total over-issuance for March 1992 through December 1992 was $1,715.

18. By letter dated January 28, 1994, Children and Family

    Services notified Ms. Dempson, among other things, of the overpayment, her right to dispute the overpayment, and her responsibility of repayment. The letter was mailed to the last address provided by Ms. Dempson. No response was received by Children and Family Services.

19. By a second letter dated April 4, 1994, Children and Family Services notified Ms. Dempson, among other things, of the overpayment and of the overpayment being a debt for which she was responsible for paying. The letter was mailed to the same address as the first letter in that no change in address had been provided to Children and Family Services by Ms. Dempson. Again, no response was received.

20. An inference is drawn and a finding is made that

    
    

    Ms. Dempson did not dispute the over-issuance of $1,715 in AFDC.

    
    

21. Since the notification letters, Children and Family Services has recouped some of the debt from subsequent AFDC checks to Ms. Dempson.

22. Ms. Dempson does not recall receiving and endorsing the AFDC checks for the months of March 1992 through December 1992, and, therefore, denies receiving and endorsing the checks. The evidence is sufficient to support a finding and a finding is made that Ms. Dempson received and endorsed the checks.2

    Food Stamp Account No. 31-01057-42

    
    

23. Ms. Dempson was determined eligible for Food Stamps by Children and Family Services on Food Stamp Account No. 31-01057-

1. She received Food Stamps for numerous months, including the months of February 1991 through June 1991, November 1991 through January 1992, and October 1992 through December 1992. She received allotments ranging from $143 to $221 per month.

   1. After issuance of the allotments, a review by Children and Family Services determined that Ms. Dempson had received an over-issuance through "client error" in the amount of $1,278. Two separate instances of over-issuance had occurred on this account. One instance resulted in an over-issuance of $935 for the months of February 1991 through June 1991, as well as the months of November 1991 through January 1992. Another instance

      resulted in an over-issuance of $343 for the months of October 1992 through December 1992.

   2. For February 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $90, resulting in an over-issuance of $111.

   3. For March 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $83, resulting in an over-issuance of $118.

   4. For April 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $118, resulting in an over-issuance of $83.

   5. For May 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $32, resulting in an over-issuance of $169.

   6. For June 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $83, resulting in an over-issuance of $118.

   7. For November 1991, Ms. Dempson received $221 in Food Stamps, but was eligible for $77, resulting in an over-issuance of $144.

   8. For December 1991, Ms. Dempson received $221 in Food Stamps, but was eligible for $136, resulting in an over-issuance of $85.

   9. For January 1992, Ms. Dempson received $213 in Food Stamps, but was eligible for $106, resulting in an over-issuance of $107.

   10. For October 1992, Ms. Dempson received $143 in Food Stamps, but was eligible for $0, resulting in an over-issuance of

       $143.

       
       

   11. For November 1992, Ms. Dempson received $143 in Food Stamps, but was eligible for $33, resulting in an over-issuance of $110.

   12. For December 1992, Ms. Dempson received $143 in Food Stamps, but was eligible for $53, resulting in an over-issuance of $90.

   13. Ms. Dempson was notified of the over-issuance, her right to dispute the over-issuance, and her responsibility for repayment. Through automatic deductions in her Food Stamps,

       Ms. Dempson has been repaying the over-issuance since March 1994. The automatic deduction began at $11 a month in her Food Stamp allotment until June 1994 when the deduction became and is currently $10 a month.

   14. An inference is drawn and a finding is made that

       
       

       Ms. Dempson did not dispute the over-issuance of $1,278 in Food Stamps.

       Food Stamp Account No. 31-01057-43

   15. Ms. Dempson was determined eligible for Food Stamps by Children and Family Services on Food Stamp Account No. 31-01057-

2. She received Food Stamps for numerous months, including the months of August 1992, October 1992 through December 1992, and January 1993 through June 1993, being issued allotments ranging from $203 to $292 per month.

1. After issuance of the allotments, a review by Children and Family Services determined that Ms. Dempson had received an over-issuance through "agency error" in the amount of $1,692.

2. For August 1992, Ms. Dempson received $240 in Food Stamps, but was eligible for $0, resulting in an over-issuance of

   $240.

   
   

3. For October 1992, Ms. Dempson received $262 in Food Stamps, but was eligible for $143, resulting in an over-issuance of $119.

4. For November 1992, Ms. Dempson received $262 in Food Stamps, but was eligible for $143, resulting in an over-issuance of $119.

5. For December 1992, Ms. Dempson received $262 in Food Stamps, but was eligible for $143, resulting in an over-issuance of $119.

6. For January 1993, Ms. Dempson received $292 in Food Stamps, but was eligible for $149, resulting in an over-issuance of $143.

7. For February 1993, Ms. Dempson received $292 in Food

   Stamps, but was eligible for $97, resulting in an over-issuance of $195.

8. For March 1993, Ms. Dempson received $292 in Food Stamps, but was eligible for $109, resulting in an over-issuance of $183.

9. For April 1993, Ms. Dempson received $203 in Food Stamps, but was eligible for $10, resulting in an over-issuance of $193.

10. For May 1993, Ms. Dempson received $203 in Food Stamps, but was eligible for $10, resulting in an over-issuance of $193.

11. For June 1993, Ms. Dempson received $203 in Food Stamps, but was eligible for $15, resulting in an over-issuance of $188.

12. By letter dated March 11, 1994, Children and Family Services notified Ms. Dempson, among other things, of the over- issuance, her right to dispute the over-issuance, and her responsibility for repayment of the over-issuance. The letter was mailed to the last address provided by Ms. Dempson. No response was received by Children and Family Services.

13. An inference is drawn and a finding is made that

    
    

    Ms. Dempson did not dispute the over-issuance of $1,692 in Food Stamps.

    Outstanding Debt

    
    

14. As of the date of the hearing, August 15, 1997, the total amount of the debt owed by Ms. Dempson to Children and

    Family Services was $4,473, representing AFDC Account No. 31- 01057-52 at $333, AFDC Account No. 31-01057-53 at $1,583, Food Stamp Account No. 31-01057-42 at $865, and Food Stamp Account No. 31-01057-43 at $1,692.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

16. Section 24.115, Florida Statues, 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.

17. Children and Family Services is authorized to collect the over-issuance of AFDC and Food Stamps, regardless of "client error" or "agency error," from the AFDC recipient and the Food Stamp recipient, respectively. Rule 65A-1.900, Florida

    Administrative Code, formerly Rule 10C-1.900, Florida Administrative Code.

18. 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, the Department of Children and Family Services, the Department of the Lottery, and the Department of Banking and Finance, Office of the Comptroller are asserting the affirmative and, therefore, have the burden of proof.

19. The evidence demonstrates that Ms. Dempson is a claimant of lottery prize winnings exceeding $600.

20. Moreover, the evidence demonstrates that Ms. Dempson has an outstanding indebtedness to the Department of Children and Families, as of August 15, 1997, in the amount of $4,473. Her indebtedness exceeds 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 Children and Family Services of the lottery prize winnings of $2,500 claimed by Gussie Mae Dempson.

DONE AND ENTERED this 26th day of November, 1997, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1997.

ENDNOTES

1/ Department of Children and Family Services is substituted for the Department of Health and Rehabilitative Services as a party. Department of Children and Family Services is a newly-created agency pursuant to Section 20.19, Florida Statutes.

2/ Even though the evidence presented by Ms. Dempson raised questions, it was insufficient to support a finding that she neither received nor endorsed the checks.

COPIES FURNISHED:

Gussie Mae Dempson, pro se 631 Southwest 12th Avenue Homestead, Florida 33030

Josephine A. Schultz, Chief Counsel Department of Banking and Finance Suite 526, The Fletcher Building

101 East Gaines Street Tallahassee, Florida 32399-0350

Leah Pollard, Esquire

Department of Children and Families

401 Northwest 2nd Avenue, Room N-1014 Miami, Florida 33128

Louisa Warren, Senior Attorney Department of the Lottery

250 Marriott Drive Tallahassee, Florida 32399

Harry Hooper, General Counsel Department of Banking and Finance The Capitol, Plaza Level

Room 1302

Tallahassee, Florida 32399-0350

Gregory D. Venz, Agency Clerk

Department of Children and Family Services 1317 Winewood Boulevard

Building Two, Room 204 Tallahassee, Florida 32399-0700

Richard A. Doran, General Counsel Department of Children and Family Services 1317 Winewood Boulevard

Building Two, Room 204 Tallahassee, Florida 32399-0700

Ken Hart, General Counsel Department of the 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: 96-004216

Orders for Case No: 96-004216