Findings Of Fact On April 15, 1991, petitioner submitted a claim to the Department of the Lottery (Lottery) on a ticket he held for the Lotto drawing of April 13, 1991. Such ticket reflected that petitioner had correctly selected five of the six numbers drawn on that date, and rendered him eligible for a prize of $3,529.50. On May 10, 1991, the Department of Health and Rehabilitative Services (DHRS) certified to the Lottery that petitioner owed $10,374.81 in Title IV-D child support arrearage. Thereafter, by letter of May 15, 1991, the Lottery advised petitioner that DHRS had advised it of such outstanding debt and that, pursuant to Section 24.115(4), Florida Statutes, it had transmitted the prize amount to the Department of Banking and Finance (DBF). Petitioner was further advised that DBF would notify him shortly regarding the distribution of such funds. By letter of May 17, 1991, DBF notified petitioner that it was in receipt of his prize from the Lottery and that it intended to apply the entire $3,529.50 toward the unpaid claim owing for child support. Such letter likewise advised petitioner of his right to request a hearing to contest such action. By letter of June 3, 1991, petitioner acknowledged receipt of the DBF's letter of May 17, 1991, disputed that any such obligation was outstanding, and requested a formal hearing. At hearing, the proof demonstrated that on January 29, 1982, the Circuit Court of the Eleventh Judicial Circuit, Dade County, Florida, rendered an order approving a stipulation for payment of child support by petitioner for the support of his children. Such stipulation provided that petitioner would pay the sum of $200.00 per month toward an arrearage of $12,234.91, due as of December 20, 1981. The stipulation further provided that such payments would be made payable to the clerk of that court, which would deduct its fee, and forward the balance to DHRS for transmittal to the State of Ohio, the apparent residence of petitioner's former wife. DHRS, the agency designated by the Circuit Court to receive the child support payments deposited with the clerk of that court, and to transmit such sums to the State of Ohio, has certified that as of May 10, 1991, petitioner owed $10,374.81 in Title IV-D child support arrearage. On May 16, 1991, DHRS confirmed such arrearage with the Clerk of the Circuit Court, Dade County, Florida, and reconfirmed such arrearage on August 25, 1991. Petitioner, the party responsible to make such payments, offered no proof at hearing to controvert such certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department of Banking and Finance enter a final order dismissing the petitioner's request for formal hearing, and that it pay to the Department of Health and Rehabilitative Services petitioner's lottery prize of $3,529.50, in partial satisfaction of petitioner's debt for child support. RECOMMENDED in Tallahassee, Leon County, Florida, this 12th day of September 1991. WILLIAM J. KENDRICK 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 12th day of September 1991. COPIES FURNISHED: Mr. George Luther 10900 S.W. 134th Terrace Miami, Florida 33176 Bridget L. Ryan Assistant General Counsel Office of the Comptroller Suite 1302, The Capitol Tallahassee, Florida 32399-0350 Chriss Walker, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Louisa Warren Department of the Lottery 250 Marriott Drive Tallahassee, Florida 32399 The Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Department of Banking and Finance The Capitol Plaza Level, Room 1302 Tallahassee, Florida 32399-0350
Findings Of Fact Leroy Wise, Jr.'s Mother purchased lottery ticket number 1888-3620-9444 (hereinafter referred to as the "Ticket") on approximately July 6, 1989. The Ticket was a Fantasy 5 ticket with four correct numbers. The Ticket winnings amounted to $805.00. Mr. Wise took his Mother to the Department of the Lottery's offices in Tallahassee, Florida on July 10, 1989. Mr. Wise's Mother did not have proper identification required by the Department of the Lottery to cash in the Ticket. Therefore, she allowed Mr. Wise to present the ticket for collection because Mr. Wise had proper identification. On July 10, 1989, Mr. Wise completed a Florida Lottery Winner Claim Form (hereinafter referred to as the "Form") and submitted the Form and the Ticket to the Lottery. On the back of the Ticket Mr. Wise listed his name and address on the spaces provided for the person claiming the prize and signed the Ticket. Mr. Wise listed his name, Social Security Number, address and phone number on the Form. Mr. Wise signed the Form as the "Claimant." In a letter dated July 10, 1989, the DHRS notified the Lottery that Mr. Wise owed $4,690.00 in Title IV-D child support arrearages as of July 10, 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued providing for payment of the $805.00 prize attributable to the Ticket owed by Mr. Wise as child support arrearages as of the date of the Final Order to DHRS. DONE and ENTERED this 21st day of February, 1990, in Tallahassee, Florida. LARRY J. SARTIN 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 21st day of February, 1990. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioners' Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-4 2 6. 3 Not supported by the weight of the evidence. The Petitioner's did not offer any evidence at the formal hearing concerning these proposed findings of fact. Mr. Wise's Proposed Findings of Fact Paragraph Number in Recommended Order Sentence in Letter of Acceptance or Reason for Rejection 1, 13-20 Not proposed findings of fact. 2-3 6. 4-6, 11-12 Not supported by the weight of the evidence. 7-10 Not relevant to this proceeding. Copies Furnished To: Jo Ann Levin Senior Attorney Office of Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Louisa E. Hargrett Senior Attorney Department of the Lottery 250 Marriott Drive Tallahassee, Florida 32301 Chriss Walker Senior Attorney Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Leroy Wise, Jr. 1526-A Patrick Avenue Tallahassee, Florida 32310 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32399-0350
The Issue The issue for consideration in this case is whether Petitioner, Raymond J. Holmes, is entitled to the entire $5,000.00 won by him in the Florida Lottery or whether a portion thereof should be withheld for reimbursement of public assistance payments previously paid for the support of his child.
Findings Of Fact On May 7, 1993, a Judge of the Circuit Court of the 20th Judicial Circuit In and For Collier County, Florida, entered, in case No. 93-1327, an Order Determining Obligation And Repayment of Public Assistance for the repayment of support and repayment of foster care payments, made on behalf of Petitioner's child, Allen J. Holmes, against Petitioner, "Ray" Holmes and his wife, Rachel Holmes, in the amount of $5,439.46 plus costs in the amount of $88.20 and attorneys fees of $176.40, This amount was to be paid at a rate of $80.00 plus $3.20 clerk's fee ($83.20) per month, beginning on June 1, 1993, payments to continue until "all prior public assistance has been completely repaid." This Order was acknowledged in writing by both Petitioner and his wife. The Order also provided: ... the State of Florida, or any political subdivision thereof, or the United States, is directed to deduct from all moneys due and payable to the Respondent [Petitioner, Holmes] the amount of child support ordered above. This income deduction shall be effective immediately, and shall become binding on ... [a] comptroller or disbursing officer, the State of Florida, ... two weeks after receipt of service of this order. None of the money called for under the Court's Order has been repaid. Petitioner's one-half of the joint obligation was $2,807.93. On or about August 2, 1993, Petitioner purchased a scratch-off lottery ticket which carried a prize of $5,000.00. Petitioner immediately submitted a claim form for the award of the prize. He listed his social security number as 144-53-7433 on the form. The social security account card issued in his name reflects the correct number to be 144-52-7433 but there is no doubt the Petitioner was the individual who purchased the winning ticket. The claim form was submitted for payment to Lottery headquarters in Tallahassee. In the course of routine coordination between agencies to determine if any obligations to the state were owing by a lottery winner, the above-noted Court Order was identified and when the Petitioner's winnings were transmitted to the Department of Banking and Finance for payment, his half of the obligation was withheld and only the net amount of $2,192.07 forwarded. Thereafter, by state warrant 4-02 909 875, dated August 20, 1993, this net amount was paid to Petitioner. This figure was arrived at by deducting the amount owed by Petitioner, ($2,807.93) from the gross winnings, ($5,000.00). Petitioner was notified by letter dated August 24, 1993 accompanying the warrant of the reason for the deduction. Petitioner thereafter demanded hearing and this hearing ensued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered denying Petitioner, Raymond J. Holmes' request for payment of $2,807.93 withheld from his lottery prize of $5,000.00 by the Department of Banking and Finance. RECOMMENDED this 9th day of December, 1993, 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 9th day of December, 1993. COPIES FURNISHED: Raymond J. Holmes 3397-2 Sacramento Way Naples, Florida 33942 Scott C. Wright, Esquire Department of Banking & Finance The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza level Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Department of Banking & Finance Room 1302, The Capitol Tallahassee, Florida 32399-0350 Louisa Warren, Esquire Department of Lottery 250 Marriot Drive Tallahassee, Florida 32301 Dr. Marcia Mann, Secretary Department of Lottery 250 Marriot Drive Tallahassee, Florida 32301 Ken Hart General Counsel Department of Lottery 250 Marriot Drive Tallahassee, Florida 32301 Chriss Walker, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this case are (a) whether Respondent committed fraud in seeking to obtain funds from the McKay Scholarship Program, thereby warranting Petitioner's summary suspension of payments to Respondent; and (b) whether Petitioner should revoke Respondent's participation in the McKay Scholarship program for failing to comply with applicable laws.
Findings Of Fact Respondent Muskateer's Academy, Inc. ("MAI") is a Florida corporation that, at all times relevant to this case, operated a private school known as Muskateer's Academy ("Muskateer's"). MAI was closely held by Erick and Jacqueline Cermeno, a married couple. Together, they ran the school, holding (and sometimes swapping) various titles of importance, such as "principal" and "superintendent," which signified their supervisory roles. Located in Hialeah, Florida, Muskateer's served mainly at-risk students who, for one reason or another, were unable or unlikely to succeed in the public school system. On paper, the school's tuition was quite steep. The undersigned infers, however, that few parents, if any, actually paid the "sticker price" for tuition and other expenses that Respondent reported to the Florida Department of Education ("Department") in its student fee schedules, which charges totaled $24,000 per year, per child. Rather, the undersigned infers that, for most students at least, Respondent agreed to accept as payment in full whatever amount was available annually for a particular student under the John M. McKay Scholarships for Students With Disabilities Program ("McKay Scholarship Program"). Respondent operated two separate high schools at Muskateer's. One was a "regular," four-year high school that followed the traditional model, where instructors taught various academic subjects to classes of students, who attended classes for the purpose of learning academic subjects from their teachers. In this high school, tests were given periodically, as a means of measuring the students' mastery of the material. The other program was an "accelerated" high school where each student worked individually, at his own pace. Teachers played a relatively small part in this program, doing little but overseeing the "testing room" in which the students took tests——their primary scholastic activity. Students received course credit for passing tests.1 At the relevant times, there were three or four teachers at Muskateer's. To be a teacher there, a person did not need a bachelor's degree. Instead, MAI was willing to hire individuals having some type of educational background, preferably including at least 40 college credits, more or less. One of the teachers at Muskateer's was Amneris Mesa, whose brother, O. F., attended the school for some period of time. As will be seen, O. F. is one of the key figures in the instant dispute. In August 2006, the Department's Office of Independent Education and Parental Choice ("Choice Office") received a complaint about Muskateer's, the gravamen of which was that MAI was continuing to receive funds under the McKay Scholarship Program for former students who had stopped attending the school. The Choice Office, which administers the McKay Scholarship Program, referred the complaint to the Department's Office of Inspector General ("OIG") for investigation. The OIG's investigation led to the discovery of evidence sufficient to persuade the Commissioner of Education ("Commissioner") that MAI had engaged in fraudulent activity with regard to the McKay Scholarship Program. Consequently, on November 1, 2006, the Commissioner issued an Administrative Complaint against MAI, which charged MAI with fraud and other violations of the laws governing the McKay Scholarship Program. At the same time, the Commissioner immediately suspended all payments to MAI under the McKay Scholarship Program. Being thus cut off from its primary source of revenue, MAI closed Muskateer's on November 18, 2006. As of the final hearing, the school had not reopened. The Commissioner's present case against MAI hinges on allegations that, to induce the payment of funds under the McKay Scholarship Program, the company falsely represented to the Department that three students——O. F., N. P., and C. M.——had "reenrolled" at Muskateer's for the 2006-07 school year, when in fact two of them (O. F. and N. P.) previously had graduated, and the third (C. M.) had dropped out midway through the preceding school year. MAI disputes these allegations, and hence the focus of the hearing largely was on whether the three individuals in question had attended Muskateer's during the 2006-07 school year. Before addressing the contested factual issues, however, a brief examination of the McKay Scholarship Program is in order, to provide context for the findings of fact that will follow. The McKay Scholarship Program affords a disabled student the option of attending a different public school from the one to which he is assigned, or, if he is eligible, the opportunity to receive a scholarship to defray the cost of attending a private school of choice. Once awarded, a McKay scholarship remains in force until the student returns to a public school, graduates, or turns 22, whichever first occurs; provided, however, that he does not drop out, which would render the student ineligible for the scholarship, at least during the period of non-enrollment. To participate in the McKay Scholarship Program, a private school must meet certain conditions as well. Inasmuch as the Commissioner has alleged that MAI failed to comply with some conditions of continued eligibility, the relevant ones will be discussed in greater detail below. For the moment, however, it is sufficient to note that McKay scholarship funding is potentially available to most private schools operating lawfully in the state, for the program is designed to be inclusive in this regard. A private school that wants to participate in the McKay Scholarship Program must notify the Department of its interest and submit information demonstrating compliance with the eligibility requirements. This information——and other data necessary to secure the disbursement of scholarship funds——must be transmitted to the Department electronically, through forms available online to registered users, at a secure website maintained by the Department. To access this site, a private school must first obtain a unique code and establish a confidential password, both of which must be entered correctly in order to logon to the Department's secure web page. If the parent of an eligible student chooses the private school option and secures a place for his child at the private school of choice, then the parent must notify the Department of his decision before the child begins attending the private school. After receiving such notice, the Department verifies the student's enrollment in the private school, obtains from the private school a schedule of the tuition and fees, and receives from the student's school district a "matrix of services" reflecting the student's special educational needs. The maximum amount of the McKay scholarship for a particular student is the lesser of (a) the "calculated amount" (which is roughly equal to the estimated cost of educating the student in the public school to which he is assigned) or (b) the actual amount of the private school's tuition and fees.2 The amount of the student's scholarship is deducted from his public school district's total funding entitlement.3 McKay scholarship payments are made in four equal amounts during the school year to which the scholarship applies. The payment dates are September 1, November 1, February 1, and April 1. Payments are made by warrant payable to the student's parent. The Department mails each warrant to the private school of the parent's choice. The parent is required restrictively to endorse the warrant, authorizing the funds to be deposited only in the private school's account.4 To remain eligible for the McKay scholarship, the student must have regular and direct contact with his teacher(s) at the private school's physical location. Thus, ahead of each payment (after the initial payment), the private school must verify, through the Department's secure, password-protected website, that the student continues to be enrolled in, and to attend, the private school. It is in connection with this ongoing duty to verify continued enrollment and attendance at the private school that MAI is alleged to have engaged in fraudulent activity, namely, reporting to the Department that O. F., N. P., and C. M. were still enrolled in, and attending, Muskateer's when, in fact, they were not. The undersigned will now turn to these allegations, which lie at the heart of this matter. But first: It must be acknowledged that the evidence is in conflict concerning the historical facts relevant to the allegations of fraudulent activity. Given the evidential conflicts, the undersigned supposes that reasonable people might disagree about what happened here. Ultimately, however, it falls to the undersigned, rather than a group of hypothetical "reasonable people," to resolve the evidential conflicts and settle the disputed issues of material fact. Thus, to the extent that any finding below (or herein) is inconsistent with the testimony of one witness or another, or with some documentary evidence, the finding reflects a rejection of all such inconsistent testimony and evidence (none of which was overlooked, disregarded, or ignored) in favor of proof that the undersigned deemed, in the exercise of his prerogatives as the fact-finder, to be more believable and hence entitled to greater weight. O. F. In January 2006, halfway through the 2005-06 school year, O. F. was enrolled as a student of Muskateer's. He began attending the accelerated high school on January 26, 2006. At the same time, his sister, Ms. Mesa, started working for MAI as a teacher in the regular high school. About five months later, O. F. graduated from Muskateer's. O. F. participated in a graduation ceremony on June 3, 2006, and, according to the transcript maintained in his student file, O. F. was awarded a diploma or certificate on that date. The transcript notwithstanding, it is undisputed that O. F. did not actually receive his diploma until several months after his graduation date. MAI contends that it withheld O. F.'s diploma because he had not finished all the tests necessary for graduation. The undersigned finds, however, that the evidence is insufficient to support a finding that O. F. had not finished his degree requirements as of June 3, 2006; indeed, the greater weight of the persuasive evidence is to the contrary. Accordingly, MAI's assertion that O. F. did not graduate from high school at the end of the 2005-06 school year is rejected. On May 26, 2006, MAI reported to the Department, through the Department's secure, password-protected website, that O. F. had reenrolled in Muskateer's for the 2006-07 school year, and that he would resume attending the school on July 1, 2006. On the same date and in the same manner, MAI reported that O. F.'s tuition and fees for the upcoming school year would total $24,000. These representations were made for the purpose of obtaining funds from the McKay Scholarship Program. The foregoing representations regarding O. F.'s reenrollment in Muskateer's for the 2006-07 school year were false. Moreover, the greater weight of the evidence persuades the undersigned that, more likely than not, the individuals responsible for making these representations——namely Mr. And Mrs. Cermeno——actually knew that the representations were false, or they recklessly disregarded the truth or falsity of the matters asserted.5 Despite having graduated, O. F. returned to Muskateer's on three or four occasions in September and October 2006, at which times he took a few tests that he had previously taken and passed. This happened because the Cermenos refused to give O. F. his diploma unless he retook these tests——a condition that was repeated both to O. F.'s mother and his sister (the teacher).6 The undersigned infers that, more likely than not, the Cermenos used the threat of withholding O. F.'s diploma as a means of coercing his "attendance" at Muskateer's during the 2006-07 school year, to create plausible deniability in the event the charge were brought (as it was) that MAI had fraudulently sought to obtain McKay scholarship funds for O. F. At any rate, post-graduation "attendance" such as O. F.'s——to retake exams for no apparent legitimate reason——is not the kind of regular attendance that would support the reasonable inference that the student had enrolled for the 2006-07 school year.7 N. P. N. P. enrolled in Muskateer's on May 3, 2004, and began attending classes in the accelerated high school on August 16, 2004. He graduated (at least in the ceremonial sense) at the end of the 2004-05 school year but never received a diploma. N. P. testified that he never returned to Muskateer's as a student after he (ceremonially) graduated. In other words, N. P. claims that he was not a student of Muskateer's during either the 2005-06 school year or the 2006-07 school year. N. P.'s testimony in this regard is corroborated by the testimony of his aunt (and legal guardian), Altagracia Moreta. Additionally, N. P.'s testimony is corroborated by the absence of well-kept, reliable documentation——such as enrollment registers and attendance records——attesting to his ongoing attendance at Muskateer's after the 2004-05 school year. The undersigned considers the lack of such documentation to be a telling fact. Consequently, although there is conflicting evidence, the undersigned finds that, more likely than not, N. P. did not attend Muskateer's during the 2005-06 and 2006-07 school years, as he testified. On May 4, 2005, MAI reported to the Department, through the Department's secure, password-protected website, that N. P. had reenrolled in Muskateer's for the 2005-06 school year, and that he would resume attending the school on August 8, 2005. On the same date and in the same manner, MAI reported that N. P.'s tuition and fees for the 2005-06 school year would total $24,000. These representations were made for the purpose of obtaining funds from the McKay Scholarship Program. On May 26, 2006, MAI reported to the Department, through the Department's secure, password-protected website, that N. P. had reenrolled in Muskateer's for the 2006-07 school year, and that he would resume attending the school on July 1, 2006. On the same date and in the same manner, MAI reported that N. P.'s tuition and fees for the 2006-07 school year would total $24,000. These representations were made for the purpose of obtaining funds from the McKay Scholarship Program. The foregoing representations regarding N. P.'s reenrollment in Muskateer's for the 2005-06 and 2006-07 school year were false. Moreover, the greater weight of the evidence persuades the undersigned that, more likely than not, the individuals responsible for making these representations——namely Mr. And Mrs. Cermeno——actually knew that these representations were false, or they recklessly disregarded the truth or falsity of the matters asserted. C. M. In July 2004, C. M. registered to attend Muskateer's. He began attending the accelerated high school on August 16, 2004. C. M. testified at hearing (via deposition) that he continued to attend Muskateer's while this proceeding was pending, having been in class there as recently as "yesterday" (January 17, 2007). C. M. did not know what courses he was currently taking or how many other students currently were attending Muskateer's. (Recall that Muskateer's closed its doors on November 18, 2006, and, as of the final hearing, had not reopened).8 Whatever credibility C. M. still possessed after giving testimony such as that just described was shredded when Petitioner impeached him with a prior inconsistent (actually, contradictory) statement. On August 22, 2006, C. M. told the OIG's investigator that he had stopped attending Muskateer's in December 2005 and never returned. The investigator made an audio recording of C. M.'s statement, which was received in evidence, but C. M. was not under oath at the time he gave the statement. The undersigned finds that C. M. is not a believable witness, and his testimony, being unreliable and unpersuasive, is given no weight.9 The documents in C. M.'s disorderly (and seemingly incomplete) student file are likewise insufficient to establish, to the required degree of persuasiveness (namely, that the fact is more likely true than not), the dates on which C. M. attended Muskateer's as an enrolled student. The bottom line is that the evidence is insufficient to permit the undersigned to make a finding as to when (or whether) C. M. stopped attending Muskateer's (prior to its closure on November 18, 2006).10 Lacking sufficient proof regarding the dates during which C. M. attended Muskateer's as a duly enrolled student, it is impossible to determine whether MAI engaged in any fraudulent activity with regard to C. M. Determinations of Ultimate Fact The greater weight of the evidence establishes that, to induce the state to disburse McKay scholarship funds for the benefit of O. F., MAI engaged in fraudulent activity, to wit: MAI intentionally reported to the Department that O. F. had reenrolled in Muskateer's for the 2006-07 school year, while either (a) knowing that this representation of material fact was false or (b) recklessly disregarding the truth or falsity of this material representation, which was, in fact, false. The greater weight of the evidence establishes that, to induce the state to disburse McKay scholarship funds for the benefit of N. P., MAI engaged in fraudulent activity, to wit: MAI intentionally reported to the Department, on separate occasions, that N. P. had reenrolled in Muskateer's for the 2005-06 and 2006-07 school years, while either (a) knowing that these representations of material fact were false or (b) recklessly disregarding the truth or falsity of these material representations, which were, in fact, false. The greater weight of the evidence is insufficient to establish that MAI engaged in fraudulent activity in connection with its efforts to obtain McKay scholarship funds for the benefit of C. M. The greater weight of the evidence establishes that, by failing to keep and maintain complete and orderly records of enrollment and attendance, MAI failed to meet its obligation under Section 1002.39(8)(a), Florida Statutes, to comply with all of the requirements set forth in Section 1002.421, which mandates that private schools participating in the McKay Scholarship Program must, among other things, conform to all the requirements outlined in Section 1002.42, Florida Statutes, including Section 1002.42(4), which directs that private schools must prepare and keep attendance records in accordance with the provisions of Section 1003.23(2), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner enter a final order (a) suspending payment of McKay Scholarship funds to MAI in connection with the 2006-07 school year (b) revoking MAI's participation in the McKay Scholarship Program. DONE AND ENTERED this 2nd day of April, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 2nd day of April, 2007.
The Issue How should the remainder of Petitioner's lottery prize winnings, which are currently held by the Department of Banking and Finance, be distributed in light of the provisions of Section 24.115, Florida Statutes?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On or about November 28, 1995, Petitioner presented for payment a lottery ticket that had a prize value of $1,560.00. By letter dated November 29, 1995, DOR certified to the Department of the Lottery (hereinafter referred to as "DOL") that Petitioner "owe[d] $1,319.88 in Title IV-D child support arrearages" as of the date of the letter. After receiving the letter, DOL transmitted the prize money to DBF. On or about December 26, 1995, DBF sent Petitioner a check in the amount of $240.12, along with a letter advising Petitioner that it was DBF's intention to give the balance ($1,319.88) of Petitioner's $1,560.00 lottery prize to DOR "in payment of [Petitioner's] debt." Petitioner disputed that he owed $1,319.88 in child support and requested an administrative hearing on the matter. In a Marital Settlement Agreement that Petitioner executed on May 10, 1991, he agreed to pay, through the State of Florida, $52.00 per week for the support of his and his wife's minor daughter. This Marital Settlement Agreement was approved and incorporated in a Final Judgement of Dissolution of [Petitioner's] Marriage, which was entered on July 29, 1991, in the Circuit Court of the Nineteenth Judicial Circuit in and for Okeechobee County. DOR's records reflect that, as of December 26, 1995, Petitioner owed $1,319.88 in past-due, court-ordered child support, and that, as of May 24, 1996 (the most recent date for which records were provided at the May 28, 1996, hearing in this case), Petitioner owed $1,436.72 in past-due, court-ordered child support. These records, however, do not reflect that, in March of 1994, the State of Florida received from the Internal Revenue Service, a $628.00 tax refund (for the 1993 tax year) owed Petitioner that should have been (but was not) credited to Petitioner's child support payment account. Accordingly, as of December 26, 1995, and May 24, 1996, Petitioner actually owed $691.88 and $808.72, respectively, in past-due, court-ordered child support.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Comptroller disburse the $1,319.88 that remains of Petitioner's lottery prize by issuing a state warrant to Petitioner in the amount of $511.16 and transferring the remaining $808.72 to DOR. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of June, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1996. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 96-0396 The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by Respondents in their joint proposed recommended order: 1-5. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Accepted as true and incorporated in substance. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Accepted as true and incorporated in substance. 9-10. Accepted as true and incorporated in substance. COPIES FURNISHED: Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Harry Hooper, General Counsel Office of the Comptroller The Capitol, Room 1302 Tallahassee, Florida 32399-0350 Josephine Schultz, Chief Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Chriss Walker, Esquire Child Support Enforcement Department of Revenue Post Office Box 8030 Tallahassee, Florida 32314-8030 Louisa Warren, Esquire Department of the Lottery 250 Marriott Drive Tallahassee, Florida 32399 Nurrudin Alomgir 927 South "G" Street, Apartment 3 Lake Worth, Florida 33460
The Issue The issue in this proceeding is whether Petitioner's lottery prize should be withheld and used to pay an outstanding debt for child support.
Findings Of Fact The Petitioner did not appear and no evidence was presented.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Banking and Finance enter a final order dismissing the Petitioners request for a formal hearing, and transferring Petitioner's lottery prize to the Department of Revenue in partial satisfaction of Petitioner's debt for past public assistance obligation. DONE and ENTERED this 20th day of October, 1995, at Tallahassee, Florida. STEPHEN F. DEAN, 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 20th day of October, 1995. COPIES FURNISHED: James Merriweather 1333 7th Street West Jacksonville, FL 32209 Chriss Walker, Esquire Child Support Enforcement Department of Revenue P. O. Box 8030 Tallahassee, FL 32314-8030 Louisa Warren, Esquire Department of the Lottery 250 Marriott Drive Tallahassee, FL 32399 Stephen S. Godwin, Esquire Office of the Comptroller Suite 1302, The Capitol Tallahassee, FL 32399-0350 Hon. Robert F. Milligan, Comptroller Department of Banking and Finance The Capitol, Plaza Level Tallahassee, FL 32399-0350 Harry Hooper, Esquire Department of Banking and Finance The Capitol - Room 1302 Tallahassee, FL 32399-0350
The Issue At issue in this proceeding is whether Petitioner's lottery prize is subject to an outstanding debt to a state agency.
Findings Of Fact By letter of June 9, 1997, the Department of Education, Office of Student Financial Assistance (Department), notified the Department of the Lottery (Lottery) that Petitioner owed the Department $26,356.28, as of June 9, 1997, as a consequence of outstanding defaulted student loans. Thereafter, pursuant to Section 24.115(4), Florida Statutes, the Lottery transmitted the prize amount ($24,781.66), less Federal income tax withheld ($6,938.86), to the Department. By letter of June 10, 1997, the Department notified Petitioner that it was in receipt of his prize money, less Federal income tax withheld, and that, since the amount owed the Department exceeded the amount of the prize, it planned to apply the entire sum it had received ($17,842.80) to the outstanding indebtedness. The Department's letter also advised Petitioner of his right to request a formal hearing pursuant to Section 120.57, Florida Statutes, to contest the Department's decision. Petitioner filed a timely request for a formal hearing to contest the Department's decision, and the matter was referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct the formal hearing Petitioner had requested. At hearing, the proof demonstrated that Petitioner was the recipient of three student loans, each of which was funded by Centrust Savings Bank (Centrust) and guaranteed by the Department. The first loan (No. 7701) was in the amount of $3,000, which was disbursed on December 19, 1986. The second loan (No. 557720) was in the sum of $5,000, which was disbursed on January 29, 1987. The third loan (No. 631534) was for $5,000; however, only $2,500 was disbursed. That disbursement occurred on November 26, 1987. Petitioner defaulted on the student loans, and Centrust filed a claim with the Department. The Department, as guarantor, paid the lender the amounts due on the loans as follows: A.) On August 12, 1993, the Department paid the claim on Loan No. 557720. At the time, the principal due was $5,021.562 and interest due was $1,942.59, for a total of $6,964.15. B.) Also on August 12, 1993, the Department paid the claim on Loan No. 631534. At the time, the principal due was $2,510.78, and interest due was $971.29, for a total of $3,482.07. C.) Finally, on January 20, 1994, the Department paid the claim on Loan No. 7701. At the time, the principal due was $3,118.28, and interest due was $2,458.40, for a total of $5,576.68. As of June 9, 1997, the date the Department received the proceeds of Petitioner's lottery prize, the balance due on the defaulted loans, with accrued interest, was as follows: Loan No. 7701, $7,842.80; Loan No. 557720, $9,096.52; and Loan No. 631534, $4,548.25. In total, as of June 9, 1997, Petitioner owed the Department $21,487.57, as principal and accrued interest owing on the defaulted loans.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which approves the application of the $17,842.80 of Petitioner's lottery prize the Department received toward the partial satisfaction of the debt owing the Department. DONE AND ENTERED this 21st day of January, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 21st day of January, 1998.
Findings Of Fact On January 7, 1994, the Petitioner, Idarue Pearl Jackson, executed and submitted a Winner Claim Form to the Respondent, the Department of the Lottery (hereinafter referred to as the "Lottery"). Ms. Jackson filed a lottery ticket with the Winner Claim Form worth a cash prize of $2,500.00. On January 7, 1994, the Respondent, the Department of Health and Rehabilitative Services (hereinafter referred to as "DHRS"), informed the Lottery that Ms. Jackson owed the State of Florida $3,237.00 for excessive Aid to Families with Dependent Children (hereinafter referred to as "AFDC"), payments she had previously received. On or about January 26, 1994, Ms. Jackson was informed that the $2,500.00 prize would be applied in payment of her outstanding AFDC debt. On or about January 31, 1994, Ms. Jackson requested a formal administrative hearing to contest the decision of the Respondents. Prior to August of 1987 Ms. Jackson, then known as Idarue Shepard, began receiving AFDC payments from the Department of Health and Rehabilitative Services. Ms. Jackson signed an information and consent form provided by DHRS prior to receiving AFDC payments. In executing the form, Ms. Jackson agreed, among other things, to the following: C. I KNOW PUBLIC ASSISTANCE RECIPIENTS (APPLICANTS) HAVE THE RESPONSIBILITY TO: . . . . Repay the Department for any assistance received for which they are ineligible. The assistance owed will be deducted for each monthly grant amount until the entire amount is paid back. Ms. Jackson also agreed by executing the DHRS exhibit 3, to inform DHRS of any changes in her employment status which would impact her entitlement to AFDC payments. Beginning in August of 1987 Ms. Jackson began employment for which she earned a sufficient amount that she was no longer eligible for AFDC payments. Whether Ms. Jackson informed DHRS of this change is not clear. From August of 1987 through December of 1988 (excluding June of 1987), Ms. Jackson, continued to receive AFDC payments. Because of her employment, she was not entitled to the payments she received from August of 1987 to December of 1988. Ms. Jackson received a total of $3,336.00 in AFDC payments for which she was not eligible. Whether she received these payments because she failed to inform DHRS of her employment or because DHRS made an error in continuing to send her the payments is not relevant. What is relevant is that Ms. Jackson received the payments by check and that she cashed the checks. DHRS investigated the payments made to Ms. Jackson between August of 1987 and December of 1988 and determined that Ms. Jackson was not eligible for the amounts she received during that period of time. By letter dated November 4, 1989, DHRS informed Ms. Jackson that she owed DHRS for the payments she improperly received. In May of 1993, DHRS began withholding a part of other benefits Ms. Jackson was receiving in payment of the excessive AFDC payments she had received. As of the date of the final hearing of this case, Ms. Jackson still owed $3,192.00 to DHRS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Ms. Jackson's petition and transferring Ms. Jackson's $2,500.00 lottery prize to the Department of Health and Rehabilitative Services in partial satisfaction of Ms. Jackson's debt to the Department of Health and Rehabilitative Services. DONE AND ENTERED this 24th day of May, 1994, in Tallahassee, Florida. LARRY J. SARTIN 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 24th day of May, 1994. APPENDIX Case Number 94-0772 Ms. Jackson and DHRS have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Ms. Jackson's Proposed Findings of Fact The first paragraph (other than the first sentence) is not supported by the weight of the evidence. The first sentence is a statement of the position of the Respondents. The first three sentences of the second paragraph are statements of law. The fourth sentence of the second paragraph is not supported by the weight of the evidence. See finding of fact 13. The fifth sentence of the second paragraph is a statement of law. The sixth sentence of the second paragraph is not supported by the weight of the evidence. The third paragraph is argument. DHRS' Proposed Findings of Fact Accepted in 1 and 2. Accepted in 3. Accepted in 4. Accepted in 6. Accepted in 13 and hereby accepted. Accepted in 7 and 8. See 9 and 11. Accepted in 14 and 15. Accepted in 11. 10-11 Hereby accepted. COPIES FURNISHED: Idarue Pearl Jackson 17011 NW 37th Avenue Miami, Florida 33054 Honorable Gerald Lewis Comptroller, State of Florida Department of Banking and Finance The Capitol, Plaza Level Tallahassee, FL 32399-0350 William G. Reeves, Esquire General Counsel Department of Banking and Finance Room 1302, The Capitol Tallahassee, FL 32399-0350 Kim Tucker, Esquire General Counse Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Scott C. Wright Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Louisa Warren Senior Attorney Department of the Lottery Capitol Complex Tallahassee, Florida 32399-4011 Katrina Saggio, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Department of Revenue should retain and apply the Petitioner's lottery prize to reduce an outstanding arrearage for child support.
Findings Of Fact The Respondents, the Department of Revenue and the Department of Lottery, are agencies of the State of Florida charged with the responsibility of administering and securing lottery prize winnings to apply to child support arrearages. The Petitioner, Frank Agoglia, was one of a group who completed a claim to a lottery prize in the amount of $7,509.50. The claim was timely submitted to the Department of Lottery, and the Petitioner was eligible to receive his share of the lottery prize. Before taxes, the Petitioner's share of the winning prize was $600.00. The Department of Revenue, acting pursuant to law, notified the Department of Lottery that the Petitioner owes court ordered child support in an amount exceeding the claimed prize. As provided in Section 24.115(4), Florida Statutes, the Petitioner's entire share of the lottery prize was transmitted to the Department of Revenue. The Petitioner was timely notified of the transfer. It is the intention of the Department of Revenue to apply the Petitioner's share of the winning prize to the outstanding child support arrearage. By letter dated March 3, 2001, the Petitioner challenged the transfer of the winning share to be applied to the arrearage. The Petitioner has not disputed the paternity of the child nor the child support obligations imposed by a court of law. It is also undisputed that the amount of the arrearage exceeds the Petitioner's share of the lottery prize. The Petitioner presented no evidence to support his contention that the lottery prize winnings should not be applied to the child support arrearage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order retaining the Petitioner's lottery prize and to apply it to reduce the arrearage of child support owed by the Petitioner. DONE AND ENTERED this 23rd day of January, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 23rd day of January, 2002. COPIES FURNISHED: Frank Agoglia 16460 Southwest 146th Court Miami, Florida 33177-1781 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 32301 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
Findings Of Fact Everett Stapleton held a winning ticket from the December 9, 1989, Florida Lotto drawing, and claimed his prize of $4,312.50 on December 12, 1989. The Office of the Comptroller searched the records of state agencies to determine whether Mr. Stapleton was indebted to the state, or owed child support which was being collected through a court. It determined that Mr. Stapleton owed $5,896 in child support, and therefore withheld paying the prize. By an Amended Final Judgment Dissolving Marriage dated November 29, 1983, Mr. Stapleton had been required to make child support payments of $50 per week through the Clerk of the Circuit Court in Dade County. During the hearing, the parties had conflicting payment records from the Clerk of the Circuit Court. After a recess, during which Mr. Stapleton and representatives of the Department of Health and Rehabilitative Services consulted, they came to an agreement, which they announced when the hearing reconvened. The parties agreed that as of Friday, April 20, 1990, Mr. Stapleton owed $6,796 in back child support, under the Amended Final Judgment Dissolving Marriage dated November 29, 1983.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Office of the Comptroller requiring the payment of the $4,312.50 to the Department of Health and Rehabilitative Services, to be applied to reduce Mr. Stapleton's current obligation for past due child support. DONE and ENTERED this 26th day of April, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 30th day of April, 1990. COPIES FURNISHED: Chriss Walker, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Louisa Warren, Esquire Department of the Lottery 205 Marriott Drive Tallahassee, Florida 32301 Jo Ann Levin, Esquire Office of the Comptroller Suite 1302, The Capitol Tallahassee, Florida 32399-0350 Everett Stapleton 17600 Northwest 27 Court Miami, Florida 33056 Honorable Gerald Lewis, Comptroller Department of Banking & Finance The Capitol Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking & Finance The Capitol Plaza Level, Room 1302 Tallahassee, Florida 32399-0350
