STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES P. CAREY, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5120

)

DEPARTMENT OF REVENUE and )

DEPARTMENT OF LOTTERY, )

)

Respondents. )

)

RECOMMENDED ORDER

On February 21, 1997, and April 23, 1997, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes (1996 Supp.). The hearing location was the offices of the Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. The hearing was recorded by video. All parties participated at the hearing location on the first date. On the second date all parties participated at the hearing location with the exception of Petitioner, who participated by telephone.

APPEARANCES

For Petitioner: James P. Carey

2528 Centerville Road

Tallahassee, Florida 32308

James P. Carey 720 Thomas Street

Key West, Florida 33040

For Respondents: Chriss Walker, Esquire

Department of Revenue Child Support Enforcement Post Office Box 8030

Tallahassee, Florida 32314-8030

Louisa Warren, Esquire Department of Lottery

250 Marriott Drive Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

Should Petitioner have $8,812.78 deducted from his lottery prize of $19,091.96 to meet his child support obligation? See Section 24.115(4), Florida Statutes (1996 Supp.).

PRELIMINARY STATEMENT

Petitioner participated in a game run by the Department of Lottery (the Lottery) and won a lottery prize of $19,091.96.

Subsequently, it was determined that Petitioner owed the Department of Revenue, Child Support Enforcement Section (DOR)

$8,812.78, which was deducted from the lottery prize. On October 2, 1996, DOR notified Petitioner that $8,812.78 of the lottery prize had been transmitted to DOR in accordance with Section 24.115(4), Florida Statutes, the balance of the lottery prize being paid to Petitioner. DOR advised Petitioner of his right to contest the preliminary decision withholding the $8,812.78 in child support claimed. On October 18, 1996, Petitioner took advantage of that opportunity by requesting a hearing pursuant to Section 120.57(1), Florida Statutes. On October 30, 1996, the case was transmitted to the Division of Administrative Hearings

for conduct of a formal hearing pursuant to Section 120.57(1), Florida Statutes, to resolve factual disputes between the parties. The hearing ensued.

At hearing Petitioner testified in his own behalf.

Petitioner requested that the record be left open for five days to file two exhibits that were described in the latter session of the hearing. Those exhibits were not presented within the time allotted. The exhibits have not been presented to this date.

DOR called as its witnesses Patricia Ash, Mary Young and John Mitchell. DOR exhibits nos. 1-7 were admitted. The Lottery exhibit no. 1 was admitted.

Following the conclusion of the hearing, the parties were granted 10 days to file proposed recommended orders consistent with the opportunities in law. No party has submitted a proposed recommended order.

FINDINGS OF FACT

1. In the case of Glenda Carey vs. James P. Carey, in the Circuit Court in and for Gadsden County, Florida, Case No. 91-24, related to the dissolution of their marriage, a final judgment was entered which obligated Petitioner to pay child support to his minor son. Over time Petitioner failed to faithfully meet the child support obligation. By April 23, 1997, the amount of arrearage for child support was $8,485.13.

2. Petitioner had owed a similar amount on September 9, 1996.

3. On September 9, 1996, Petitioner made a claim for a lottery prize with the Lottery in the amount of $19,091.96, which he had won through participation in a lottery game.

4. Being mindful of the existence of the overdue child support payments that have been referred to, the Lottery transmitted $8,812.78 of that lottery prize of $19,091.96, to the DOR, Child Support Enforcement Section, and notified Petitioner of that decision by correspondence dated October 2, 1996.

5. Petitioner contested that decision by requesting a formal hearing on October 18, 1996.

6. The proper amount of child support for which Petitioner is obligated effective September 9, 1996, when he claimed his lottery prize and April 23, 1997, the concluding hearing date, was $8,485.13. Consequently, Petitioner is entitled to an additional $327.65 in prize money over and above the prize money already received.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and .57(1), Florida Statutes (1996 Supp.)

8. Section 24.115, Florida Statutes (1996 Supp.) grants authority to the Lottery to determine the manner in which Lottery prizes will be paid to recipients who have won the prizes.

9. Section 24.115(4), Florida Statutes (1996 Supp.) makes it incumbent upon appropriate state agencies and the judicial branch of Florida government to identify for the benefit of the Lottery those persons who owe child support collected through a court. Before paying any prize of $600.00 or more to a claimant who has an outstanding obligation of child support, the Lottery shall transmit the outstanding amount of child support to DOR and pay any balance to the prize winner. The prize winner may contest that decision by requesting a hearing in accordance with Chapter 120, Florida Statutes.

10. After notification of the child support claim Petitioner sought a hearing. At the hearing the Lottery and DOR had to prove the debt claim for child support.

11. As the facts establish, Petitioner won a lottery prize of $19,091.96, but he owed and continued to owe through the hearing date $8,485.13 in overdue child support. Initially, in accordance with Section 24.115(4), Florida Statutes (1996 Supp.), the Lottery had transmitted to DOR $8,812.78 in claimed child support. That amount should be reduced to the correct figure of

$8,485.13. This results in $327.65 in additional payments to the Petitioner above the amount that he has already received as his lottery prize.

RECOMMENDATION

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

RECOMMENDED:

That a Final Order be entered which upholds payment of

$8,485.13 in past due child support and remits to the Petitioner

$327.65 in additional lottery prize winnings.

DONE AND ENTERED this 20th day of May, 1997, at Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 20th day of May, 1997.

COPIES FURNISHED:

James P. Carey

2528 Centerville Road

Tallahassee, Florida 32308

James P. Carey 720 Thomas Street

Key West, Florida 33040

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

Tallahassee, Florida 32314-8030

Louisa Warren, Esquire Department of Lottery

250 Marriott Drive Tallahassee, Florida 32399

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

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: 96-005120

Orders for Case No: 96-005120