STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH JAMES,

Petitioner,

vs.

DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT AND DEPARTMENT OF THE LOTTERY,

Respondents.

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) Case No. 03-3346

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RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on October 20, 2003, in Tallahassee, Florida, and conducted by Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph James, pro se

(No appearance)

For Respondent: Chriss Walker, Esquire

Department of Revenue Child Support Enforcement Post Office Box 8030

Tallahassee, Florida 32314-8030 STATEMENT OF THE ISSUE

Whether Respondent Department of Revenue is entitled to intercept $1,000 in proceeds won in the Florida Lottery by

Petitioner and to apply the proceeds to reduce an outstanding administrative debt owed to the Florida Department of Revenue.

PRELIMINARY STATEMENT

Petitioner won $1,000 in a Florida Lottery game sponsored by Respondent Florida Department of the Lottery. On June 11, 2003, Respondent Florida Department of Revenue (Department), notified Petitioner Joseph James (Mr. James) that it intended to intercept the amount won because Petitioner owed $1,307.14 because of nonpayment of child support. On June 30, 2003,

Mr. James demanded an administrative hearing. On September 19, 2003, the matter was filed with the Division of Administrative Hearings. The case was set for hearing on October 20, 2003, and heard as scheduled.

Petitioner did not appear at the hearing. The Department presented the testimony of Patricia Ash, a Revenue Specialist II with the Department. The Department also offered two exhibits that were admitted into evidence.

No transcript was ordered. The Department timely submitted a Proposed Recommended Order that was considered in the preparation of this Recommended Order. Mr. James did not submit a proposed recommended order

Statutory references are to Florida Statutes (2003) unless noted otherwise.

FINDINGS OF FACT

1. Mr. James is a resident of Jacksonville who, prior to June 11, 2003, won $1,000 in one of the Department of Lottery's games of chance.

2. The Department is an agency of the Florida government and is charged with enforcing court orders relating to child support, in addition to other duties.

3. As a result of a Complaint to Determine Paternity filed in the Circuit Court of the Eighth Judicial Circuit in and for Baker County, Florida, a case where Mr. James was named as defendant, a Final Judgment of Paternity for Plaintiffs was entered on October 29, 1992. The Judgment, among other things, required Petitioner to pay to the State of Florida $192.00, no later than six months from the date of the Judgment.

4. In an Order of Contempt entered in the Circuit Court of the Eighth Judicial Circuit in and for Baker County, Florida, dated October 12, 1994, nunc pro tunc to September 26, 1994, Petitioner was ordered to pay to the State of Florida $662.03 within 12 months, which included the amount of $352.00 previously ordered and unpaid.

5. In an Order of Arrearages entered in the Circuit Court of the Eighth Judicial Circuit in and for Baker County, Florida, dated June 28, 1995, nunc pro tunc to June 6, 1995, Petitioner was ordered to pay to the State of Florida $882.09, within

   twelve months. This order recited that the $882.09, amount, included the amount of $772.06, previously ordered but not paid.

6. In an Order of Contempt entered in the Circuit Court of the Eighth Judicial Circuit in and for Baker County, Florida, dated November 20, 1995, nunc pro tunc to October 25, 1995, Petitioner was again ordered to pay to the State of Florida

   $882.09. This order required payment no later than June 31, 1995.

7. In an Order of Commitment for Contempt Commencement Deferred entered in the Circuit Court of the Eighth Judicial Circuit in and for Baker County, Florida, dated October 19, 1998, Petitioner was ordered to pay the sum of $300.00 to the State of Florida within 180 days of the order.

8. In an Order of Commitment for Contempt Commencement Deferred entered in the Circuit Court of the Eighth Judicial Circuit in and for Baker County, Florida, dated December 7, 1998, Petitioner was ordered to pay the sum of $110.03 to the State of Florida within 180 days of the order.

9. In a Money Judgment entered in the Circuit Court of the Eighth Judicial Circuit in and for Baker County, Florida, dated December 7, 1998, Petitioner was ordered to pay the sum of

   $130.03 to the State of Florida within 180 days of the order.

   
   

10. The documentary evidence, which was elucidated by the testimony of Ms. Ash, indicates that Petitioner is currently in

    debt to the State of Florida in the amount of $1422.15, and that amount has not been paid. The debt was in connection with Petitioner's failure to pay sums incurred as part of the effort to collect child support from Petitioner. Petitioner was notified that his debt was $1,307.14. Both the sum he was advised was due and owing, and the sum found by the evidence in this Recommended Order, are greater than the $1,000 won by Petitioner.

11. It is appropriate that the proceeds of. Mr. James' good luck inure to the benefit of the State of Florida.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. See § 120.57(1), Fla. Stat.

13. Because it was uncontraverted that Petitioner won

    
    

    $1,000 in a Florida Lottery game, the Department has the burden to show by a preponderance of the evidence that the State of Florida has the right to apply that sum to debts Mr. James owes to the State of Florida. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981) and § 120.57(1)(j), Fla. Stat.

14. Section 24.103 provides that the word "Department" in Chapter 24, the Florida Public Education Lottery Act, refers to the Department of the Lottery.

15. Section 24.115(4) provides as follows:

    
    

    24.115. Payment of prizes

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    (4) It is the responsibility of the appropriate state agency and of the judicial branch to identify to the department, 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 shall transmit the amount of the debt to the agency claiming the debt and shall authorize payment of the balance to the prizewinner after deduction of the debt.

    
    

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16. Section 409.2554 provides as follows:

    409.2554. Definitions; ss. 409.2551-

    409.2598

    
    

    As used in ss. 409.2551-409-2598, the term:

    
    

    1. "Department" means the Department of Revenue.

       
       

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       (11) "Administrative costs" means any costs, including attorney's fees, clerk's filing fees, recording fees and other expenses incurred by the clerk of the circuit court, service of process fees, or mediation costs, incurred by the IV-D agency in its effort to administer the IV-D program. The administrative costs which must be collected by the department shall be assessed on a case-by-case basis based upon a method for determining costs approved by the Federal Government. The administrative costs shall be assessed periodically by the department. The methodology for determining

       administrative costs shall be made available to the judge or any party who requests it.

       Only those amounts ordered independent of current support, arrears, or past public assistance obligation shall be considered and applied toward administrative costs.

17. Section 409.2557, provides as follows:

    
    

    409.2557. State agency for administering child support enforcement program

    1. The department is designated as the state agency responsible for the administration of the child support enforcement program, Title IV-D of the Social Security Act, 42 U.S.C. ss. 651 et seq.

    2. The department in its capacity as the state Title IV-D agency shall have the authority to take actions necessary to carry out the public policy of ensuring that children are maintained from the resources of their parents to the extent possible.

       The department's authority shall include, but not be limited to, the establishment of paternity or support obligations, as well as the modification, enforcement, and collection of support obligations.

       
       

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18. The Department has lawfully asserted its right to intercept Petitioner's lottery winnings

RECOMMENDATION

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

RECOMMENDED that the Department retain the $1,000.00 won by Mr. James.

DONE AND ENTERED this 24th day of November, 2003, in Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2003.

COPIES FURNISHED:

Joseph James 4121 Clyde Drive

Jacksonville, Florida 32208

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

Tallahassee, Florida 32314-8030

Bruce Hoffmann, General Counsel Department of Revenue

204 Carlton Building Tallahassee, Florida 32399-0100

James Zingale, Executive Director Department of Revenue

104 Carlton Building Tallahassee, Florida 32399-0100

David Griffin, Secretary Department of Lottery

250 Marriott Drive Tallahassee, Florida 32301

Ken Hart, General Counsel Department of 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: 03-003346

Orders for Case No: 03-003346