STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES EARL PICKETT, )

)

Petitioner, )

)

vs. ) Case No. 06-3291

) DEPARTMENT OF REVENUE and ) DEPARTMENT OF LOTTERY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case on October 27, 2006, before Carolyn S. Holifield, a duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted by video conference at sites in Tallahassee and Tampa, Florida.

APPEARANCES

For Petitioner: James Earl Pickett, pro se

2721 North 46th Street Tampa, Florida 33605

For Respondents: Chriss Walker, Esquire

Department of Revenue Child Support Enforcement Post Office Box 8030

Tallahassee, Florida 32314-8030

Louisa Warren, Esquire

Florida Department of the Lottery

250 Marriott Drive Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner has an outstanding arrearage for child support and, if so, whether the Department of Revenue is authorized to retain and apply the Petitioner’s $1,471.00 lottery prize to reduce an outstanding arrearage for child support.

PRELIMINARY STATEMENT

On or about July 8, 1999, the Department of Revenue (Department) notified the Petitioner, James Earl Pickett (Petitioner or Mr. Pickett), by certified mail that it had certified to the Department of Lottery that Petitioner owed a child support obligation exceeding his $1,471.00 lottery prize and that the prize had been sent to the Department to be applied to reduce James Pickett’s arrearage. Petitioner timely requested a hearing. Petitioner's request for a hearing was misplaced by the Department. However, the Department eventually referred the matter to the Division of Administrative Hearings (Division) on September 1, 2006, and a hearing was scheduled and conducted as noted above.

At the final hearing, Respondents, the Department and the Department of Lottery, presented the testimony of two witnesses and had four Exhibits admitted into evidence. Although Petitioner was present at the hearing, he did not present any testimony or documentary evidence. At the conclusion of the

hearing, the record was kept open to allow Respondents to submit certified copies of Respondents' Exhibits 1, 2, and 3. The Exhibits were filed with the Division on November 9, 2006.

The hearing was recorded but was not transcribed. Petitioner did not file a proposed recommended order.

Respondents filed a Proposed Recommended Order on December 4, 2006, which has been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. On November 22, 1995, Petitioner, James Earl Pickett, was ordered to pay monthly ongoing child support of $175.00 per month, $5.25 clerk’s fee, $29.00 per month for retroactive support arrears of $7,395.00 and $5.25 clerk’s fee for a total monthly child support obligation of $179.00 per month.

2. On or about February 8, 2002, Petitioner entered into a Stipulation for Increased Pay Back on Arrears (Stipulation) with the Department, acting on behalf of Delores Griffin-Pickett.1

   The Stipulation provided in part the following:

   
   

   I, James E. Pickett, do swear that I am the Respondent in this cause, and recognize my obligation to provide support for the dependent(s) named.

   
   

   * * *

   
   

   I swear that I am the natural father of the above-child(ren)

   
   

   * * *

   
   

   I agree to payment of the following amounts:

   
   

   $145.00 per month as current support

   $50.00 toward arrears of $8357.25 as of 02/07/2002

   
   

   * * *

   
   

   for a TOTAL PAYMENT OF $195.00 per

   month, commencing next charge date. All payments shall be made payable to the State of Florida Disbursement Unit . . . Tallahassee, Fl 32314-8500.

   
   

   * * *

   
   

   I agree that this Court shall reserve Jurisdiction over arrears due and owing, if any.

   
   

   I agree to entry of an Income Deduction Order effective immediately. I understand it is my obligation to pay child support when it is not being deducted from my pay check. . . .

   
   

   * * *

   
   

   I have executed this Stipulation FREELY AND VOLUNTARILY, and with full knowledge of its contents.

   
   

3. By executing the Stipulation described and quoted in paragraph 3 above, Mr. Pickett agreed to the terms and conditions therein.

4. The Stipulation was approved and adopted in an Order issued on March 11, 2002, by the Circuit Court of the Thirteenth Judicial Circuit of Florida in and for Hillsborough County, in State of Florida, in the case of Department of Revenue, on behalf of Delores Griffin-Pickett v. James E. Pickett, Civil Circuit

   
   

   Number 95-9901. In adopting the Stipulation, the Order provided that "Respondent shall pay $145.00 monthly as current support, plus $50.00 monthly towards arrears of $8,357.25 as of 2/7/02, for a total payment of $195.00 monthly, commencing the next charge date."

5. On December 11, 2002, Mr. Pickett and the Department executed a Stipulation and Final Order Approving Stipulation on Suspension of Driver License and/or Motor Vehicle Registration (Stipulation on Suspension of Driver License). Pursuant to the Stipulation on Suspension of Driver License, Mr. Pickett:

   1. agreed that, as of December 11, 2002, there was a delinquency in the child support obligation of $1,255.00 and a total past due balance of $8,416.29; and (2) agreed to make lump sum payment of

      $300.00 toward the child support obligation on or before December 11, 2002. According to a notation next to this provision, Petitioner paid this $300.00 on December 11, 2002.

6. The Stipulation on Suspension of Driver License also provides that Respondent agrees and understands that the periodic child support obligation is $145.00 per month, as on-going child support, plus $60.00 per month, toward the past due balance until paid in full, for a total periodic payment of $205.00 per month, with such payments to begin on January 1, 2003. In addition to the foregoing, Mr. Pickett agreed to pay administrative and court costs of $258.00 within 365 days.2

   
   

7. The Stipulation on Suspension of Driver License provides that "[t]he parties agree that this stipulation may be entered into evidence in a court of competent jurisdiction and shall be binding on the parties." Furthermore, pursuant to the terms of that stipulation, "[a]ll conditions and terms of the previous court orders not changed by this agreement remain in full effect."

8. The Stipulation on Suspension of Driver License provides that Mr. Pickett "executes this Stipulation [on Suspension of Driver License] freely and voluntarily, and with full knowledge of its contents.

9. At this proceeding, Mr. Pickett testified that he executed the Stipulation on Suspension of Driver License in order to retain his driver’s license.3 However, notwithstanding his reason for signing the Stipulation on Suspension of Driver License, Mr. Pickett never denied that he was obligated to pay child support, that he was delinquent in that child support obligation, and that there was a past due balance of the child support obligation. Moreover, at this proceeding, Mr. Pickett presented no evidence that he had paid the child support and the past due child support obligation as reflected in the Stipulation on Suspension of Driver License.

   
   

10. By executing the Stipulation on Suspension of Driver License, Mr. Pickett agreed to the terms and conditions set forth therein.

11. The Stipulation on Suspension of Driver License was approved and adopted in an Order Approving Stipulation [Order] entered on December 29, 2002. See State of Florida, Department of Revenue, on behalf of Delores Griffin-Pickett, vs. James E. Pickett, Circuit Civil Number 95-9901, in the Thirteenth Judicial Circuit of the State of Florida in and for Hillsborough County. The Order specifically found that Mr. Pickett freely and voluntarily entered into the Stipulation on Suspension of Driver License. Additionally, the Order adopted and incorporated the Stipulation on Suspension of Driver License.

12. In connection with the Order entered December 29, 2002, the court also entered an Income Deduction Order directing present and subsequent employer/payers. One provision of the Income Deduction Order requires employers/payers "to deduct 100% of any income paid in the form of a bonus other similar one-time payment, up to the amount of arrearage reported in the income deduction notice or the remaining balance thereof and forward to the court depository."

13. On October 23, 2006, the Clerk of the Circuit Court of Hillsborough County prepared and issued an Arrearage Affidavit (Affidavit) in Case No. 95-9901. The Affidavit noted that as of

    
    

    the date of the Affidavit, Mr. Picket had remaining established arrears for child support of $7,416.54.

14. As of the date of the final hearing, Petitioner's outstanding arrearage for child support was $7,416.54.

15. Mr. Pickett appeared at this proceeding. However, he did not present any evidence to establish that he does not owe the outstanding arrearage, as alleged by the Department, or that he has paid the outstanding arrearage for child support. Instead, Mr. Pickett argued that he was unaware of the Order issued on March 11, 2002, and the Order issued on December 29, 2002, requiring him to make the payments discussed in the above findings.

16. At the time of this proceeding, and at all times relevant to this proceeding, Mr. Pickett has resided at 2721 North 46th Street in Tampa, Florida.4 This is the address that is listed on the Stipulation, the Stipulation on the Suspension of Driver license, and the Orders related thereto, and discussed above. Moreover, both the Order issued March 11. 2002, and the Order Approving Stipulation entered December 29, 2002, show that copies of those orders were furnished to Mr. Pickett at 2721 North 46th Street in Tampa, Florida.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2006).

18. The Department is the state agency responsible for the administration of the Child Support Enforcement Program.

    § 409.2557, Fla. Stat. (1997). In accordance with this responsibility, the Department is authorized to establish child support obligations and to modify, enforce, and collect child support obligations. See § 409.2557(2), Fla. Stat. (1997).5

19. Subsection 409.2557(2), Florida Statutes (1997), provides in pertinent part the following:

    1. 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.

    
    

20. State agencies are responsible for identifying to the Department of Lottery any persons owing an outstanding debt to the state agency or owing child support collected through a court. If a person who has an outstanding obligation wins a lottery prize of $600.00 or more, prior to paying the prize to the person/claimant, the Department of Lottery is required to

    
    

    transmit the amount of the debt to the agency claiming the debt and authorize payment of any remaining balance to the prize winner after the debt is paid. See § 24.115(4), Fla. Stat. (1997).

21. Section 24.115(4), Florida Statutes (1997), provides in pertinent part the following:

    It is the responsibility of the appropriate state agency and of the judicial branch to identify to the department [Department of 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 [Department of Lottery] shall transmit the amount of the debt to the agency claiming the debt and shall authorize payment of the balance to the prize winner after deduction of the debt.

    
    

22. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in this proceeding. Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. DCA 1977). In this proceeding, the Department seeks to retain Mr. Pickett's lottery prize of $1,471.00, which was transmitted to the Department by the Department of Lottery, and to apply the entire amount of that prize to his unpaid arrearage of child support from Mr. Pickett's lottery winnings/prize.

    
    

    Therefore, to prevail in this proceeding, the Department must establish by a preponderance of evidence the alleged facts necessary to show that the proposed action is authorized.

23. The evidence established that Petitioner has a past-due or overdue child support obligation that was subject to enforcement by the Department. Further, it was undisputed that as of October 23, 2006, Petitioner's past-due child support obligation was $7,416.54.

24. Petitioner argues that he was unaware of the child support arrearages and how they were established. He further asserts that he was unaware of the court orders that required him to make the child support payments and arrearages. These arguments and assertions are not credible, persuasive, or supported by the record in this case. Contrary to Petitioner's assertions, the evidence established that he not only knew of his child support obligations, but he also executed two separate stipulations in which he acknowledged and agreed to pay those obligations. Both of the court orders, which Petitioner asserts he was unaware of, adopted and approved the stipulations that Petitioner freely and voluntarily entered into, as indicated by his executing the stipulations.6

25. In light of the foregoing conclusions, the Department has met its burden of proof in this proceeding. Therefore, the Department is authorized to intercept Petitioner's lottery prize

of $1,471.00 and apply that entire amount to partially satisfy his accrued child support arrearage.

RECOMMENDATION

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

RECOMMENDED that the Department of Revenue enter a final order that authorizes it to retain Petitioner's lottery prize of

$1,471.00 and apply that total amount to reduce Petitioner's accrued child support arrearage of $7,416.54 .

DONE AND ENTERED this 3rd day of Januuary, 2007, in Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

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

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2007.

ENDNOTES

1/ The Stipulation was executed by Petitioner on February 7, 2002, and by Ms. Griffin-Pickett on February 8, 2002.

2/ According to the Stipulation on Suspension of Driver License, Mr. Pickett understands that failure to comply with the

obligations noted in this paragraph shall result in the Department's pursuing the suspension of Mr. Pickett's driver license and/or motor vehicle registration.

3/ Next to this provision is a hand-written comment, "under duress losing [sic] my driver license." Nonetheless, in the Order adopting the Stipulation on Suspension of Driver License found that Mr. Pickett, in fact, freely and voluntarily entered into that stipulation. See paragraph 9 of Findings of Fact.

4/ Petitioner testified that his address has not changed and he has lived at this address for about 14 years.

5/ This current version of this statutory provision still authorizes the Department to perform these duties related to child support.

6/ As indicated in paragraph 5 of Findings of Fact, Petitioner even made a $300.00 payment on the day the Stipulation on Suspension of Driver License was entered, in accordance with a provision in that stipulation.

COPIES FURNISHED:

James Pickett

2721 North 46th Street Tampa, Florida 33605

Chriss Walker, Senior Attorney Department of Revenue

Post Office Box 8030 Tallahassee, Florida 32314

Louisa Warren, Esquire Department of Lottery

250 Marriott Drive Tallahassee, Florida 32301

Bruce Hoffmann, General Counsel Department of Revenue

The Carlton Building, Room 204 Tallahassee, Florida 32399-0100

James Zingale, Executive Director Department of Revenue

The Carlton Building, Room 104 Tallahassee, Florida 32399-0100

Rebecca D. Mattingly, 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: 06-003291

Orders for Case No: 06-003291