Findings Of Fact The following are the facts to which the parties have stipulated: On September 27, 1977, the Circuit Court for the Fourteenth Judicial Circuit of Florida entered an order dissolving the marriage of Petitioner and Debra LaRhea Reynolds and incorporated into that order a stipulation whereby Petitioner agreed to pay child support in the amount of $20.00 per week. On April 13, 1977, Debra LaRhea Reynolds assigned her rights to child support to the Respondent, Department of Health and Rehabilitative Services. On June 25, 1982, the Circuit Court for the Fourteenth Judicial Circuit of Florida entered an order holding Petitioner in contempt for failure to pay accrued arrearages of child support in the amount of $4,280.00, to which Respondent was entitled by virtue of the assignment of rights referred to in paragraph 2. On June 8, 1982, the aforementioned court authorized a payroll deduction of $62.00 by weekly against Petitioner's paycheck. Under the terms of the contempt order, $40.00 of this amount was credited to the arrearage. As of June 23, 1987, the arrearage had been reduced to $1,960.00. On July 10, 1986, Respondent caused to be intercepted Petitioner's Federal Income Tax Refund of $1,080.03.
Recommendation Having considered the foregoing stipulated Findings of Fact, and Conclusions of Law, it is, therefore, RECOMMENDED that Respondent, Department of Health and Rehabilitative Services enter a Final Order providing for the Petitioner's income tax refund in the amount of $1,080.03 to be intercepted and applied against his debt to the State of Florida for past due child support. Respectfully submitted and entered this 8th day of September, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1987. COPIES FURNISHED: Marian Alves, Esquire Legal Services of North Florida, Inc. 400 North Madison St. Quincy, Florida 32351 John R. Perry, Esquire Dept. of HRS, District 2, 2639 N. Monroe St. Tallahassee, Florida 32303 Gregory L. Coler, Secretary Dept. of HRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power, Clerk Dept. of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner, One Watergate Association, Inc. ("One Watergate"), as a prevailing small business party in an adjudicatory proceeding, initiated by a state agency, should be awarded attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Subsection 57.111(4)(a), Florida Statutes (2002).
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: The Commission is the state agency charged with investigating complaints of discriminatory housing practices and enforcing the Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2002). The Commission is charged with investigating fair housing complaints filed with the Commission and with the federal Department of Housing and Urban Development under the Federal Fair Housing Act, 42 U.S.C. Section 3601, et. seq. One Watergate is the duly-incorporated owners' association for the One Watergate condominium building in Sarasota. The Board is the governing body of One Watergate and is responsible for the approval or denial of potential residents and purchasers of units in the One Watergate building. One Watergate is a "prevailing small business party," as that term is employed in Section 57.111, Florida Statutes (2002). Prior to May 2002, prospective buyers or residents at One Watergate were required to complete an application that asked for character references, but did not require the applicant to provide bank references or other financial information. In early 2001, the Board commenced a search process to find a third-party investigative firm to conduct more detailed screenings of potential residents and purchasers at One Watergate. In April 2002, the Board reviewed detailed information regarding one such firm, Renters Reference of Florida, Inc. ("Renters Reference"), an investigative consumer reporting agency operating under the Federal Fair Credit Reporting Act. On April 16, 2002, the Board met in a duly-noticed, regularly scheduled meeting and voted to pursue a contract with Renters Reference to conduct applicant screenings. The minutes of the April 16, 2002, Board meeting also indicated that the Board approved an amendment to the Renters Reference motion to the effect that no new applicants would be rejected until the Board voted on the repeal of the "buy back" provision of the One Watergate by-laws. The "buy back" provision stated that if the Board rejected a bona fide purchaser, the owner of the unit in question could demand that One Watergate itself purchase the unit. On May 2, 2002, One Watergate and Renters Reference entered into an "Agreement for Service" for the conduct of confidential background checks, credit checks, and other screenings of potential One Watergate residents. In cooperation with the Board, Renters Reference established form applications to be completed by potential residents and by potential unit purchasers. The forms required applicants to sign an authorization to release their banking, credit, residence, employment, and police record information to Renters Reference. The forms also required applicants to disclose their Social Security numbers to Renters Reference, which would allow Renters Reference to obtain credit reports directly from the three national credit reporting agencies, TransUnion, Experian, and Equifax. The purchase application form also contained a provision that required the applicant to agree to "hold harmless" Renters Reference and the Board from any claim in connection with the use of information obtained through the Renters Reference investigation. The forms advised applicants that a failure to complete any portion would result in the application being "returned, not processed and not approved." Renters Reference advised One Watergate to strictly enforce the requirement that applicants complete all portions of the forms on the ground that a waiver of application requirements for any one applicant would necessitate such a waiver for any subsequent applicant or else invite a discrimination claim by the subsequent applicant. After completing the investigation, Renters Reference would send a report to One Watergate with its findings. Renters Reference was not authorized to approve or deny the application, and it made no recommendations as to approval of the application. The Board established a screening committee to act upon the applications. The two-person screening committee consisted of Janis Farr, One Watergate's resident manager, along with the sitting Board president. The screening committee's decision to approve or disapprove the application was later subject to a ratification vote by the full Board. On May 16, 2002, potential unit purchaser Marcia Lang submitted a completed form Application for Occupancy/Approval and a completed form Application for Purchase. The application was forwarded to Renters Reference, which performed a background screening that included obtaining a TransUnion credit report dated May 24, 2002. Renters Reference completed its investigation on May 29, 2002, and made its report to One Watergate. The screening committee approved the application and issued an undated Certificate of Approval. Ms. Lang closed on her unit in One Watergate in August 2002. Because the Board does not meet during the months of May through August, the Board did not ratify the screening committee's approval until its October 15, 2002, meeting. On May 29, 2002, Derrick Bhayat, a Sarasota realtor, entered into a contract with Janey and Paul Hess to purchase their One Watergate unit for $315,000. Mr. Bhayat was originally from Capetown, South Africa, where he was considered "colored." His ancestry is Malaysian, Zulu, and French. No party to the underlying proceeding disputed that Mr. Bhayat was a person of color. On May 30, 2002, Mr. Bhayat telephoned Ms. Farr and requested that he not be required to complete the application forms. Mr. Bhayat explained that he had always been cautious about providing personal information, such as his Social Security number to businesses. This general cautiousness became alarm in 2001 when his wife, Nancy Bhayat, was the victim of an identity theft. The thief used Mrs. Bhayat's Social Security number to obtain a Visa card and make $12,000 worth of purchases. Ms. Farr responded that the application would not be accepted unless all the requested information was provided. Nevertheless, on May 31, 2002, Mr. Bhayat submitted to the One Watergate office an application to occupy a unit and an application to purchase a unit. On these applications, Mr. Bhayat did not provide his or his wife's Social Security number. He did not sign the authorization to release his banking, credit, residence, employment, and police record information to Renters Reference, and he struck through the hold harmless provision. Mr. Bhayat's application to purchase was not accepted because One Watergate deemed it incomplete. This event triggered a series of negotiations between One Watergate's attorneys and the lawyer for Mr. Bhayat, the details of which are recited in the Recommended Order in Case No. 04-0816. The parties finally agreed that One Watergate would accept an application from Mr. Bhayat that reinstated the hold harmless provision, include his driver's license number in lieu of his Social Security number for conduct of the Renters Reference background check, and also include a credit report provided by Mr. Bhayat. Pursuant to this agreement, Mr. Bhayat re-submitted his application on or about June 12, 2002. On June 14, 2002, One Watergate's lawyer wrote a letter to Mr. Bhayat's lawyer that stated, in relevant part: It has come to my attention that the credit report submitted by Mr. and Mrs. Bhayat is not a credit report from a national credit reporting bureau but, in fact, is a consumer report which apparently is used quite often by mortgage brokers and realtors to compile only the positive aspects of an individual's credit reports. As a result of Mr. and Mrs. Bhayat's misrepresentation and attempt to deceive the Association, at this point only a complete and accurate application will be accepted by One Watergate Association. A complete and accurate application shall include both applicant's [sic] date of birth and social security numbers, as well as all other information requested on the application. . . . Mr. Bhayat made no further attempts to submit applications to One Watergate. Neither the screening committee, nor the full Board, ever took official action because the application was never deemed complete. Mr. Bhayat's purchase of the unit fell through. On July 19, 2002, Mr. Bhayat filed the Complaint with the Commission, alleging that One Watergate discriminated against him on the basis of national origin and color. The Commission assigned an investigator to the case. In support of his Complaint, Mr. Bhayat submitted a copy of his One Watergate application, including a 13-page credit report generated by MSC Mortgage, a joint venture of Wells Fargo Bank and Mr. Bhayat's employer, Michael Sanders and Company. The credit report was a "tri-merge" report, meaning that it combined information from all three major reporting services into a single report. In response to the investigator's request, One Watergate submitted a position statement on August 22, 2002. One Watergate generally denied Mr. Bhayat's allegations of discrimination and set forth a statement of facts in support of its position. One Watergate explained that Mr. Bhayat's final application was not considered complete because the credit report came from MSC Mortgage, rather than a credit reporting agency, which rendered it unacceptable. In response to Mr. Bhayat's allegation that he was required to provide information not asked of other applicants, One Watergate pointed out that Marcia Lang had applied and been accepted as a unit purchaser, using the Renters Reference application, two weeks before Mr. Bhayat submitted his first application. The Commission's investigator interviewed Jan Gillett, a former resident and Board member of One Watergate. Ms. Gillett told the investigator that the Renters Reference form applications had not been approved at the time Mr. Bhayat applied because the Board had yet to resolve the "buy back" controversy. Ms. Gillett also mentioned that a former Board member, now deceased, believed that Arab terrorists were planning to come into high rise condominiums, such as One Watergate, and blow them up. Ms. Gillett asserted that this former Board member had also stated that Mr. Bhayat's reluctance to disclose his Social Security number indicated that he had something to hide. The Commission's investigator interviewed Ms. Hess, co-owner of the unit Mr. Bhayat attempted to purchase. Ms. Hess told the investigator that Larry Farr, the husband of Janis Farr and "a member of management," had made remarks to her about Mr. Bhayat that could only be interpreted as referring to his skin color. According to Ms. Hess, Mr. Farr stated, "I knew the minute I saw that guy he was going to be trouble." Given that Mr. Bhayat did not have an intimidating physical presence, Ms. Hess assumed that Mr. Farr was referencing Mr. Bhayat's skin color or national origin. The Commission's investigator requested One Watergate to produce copies of all applications submitted by prospective residents during the period May 2002 through December 2002. When One Watergate declined to provide the applications, the Commission issued a subpoena seeking their production. One Watergate again declined on the ground that its residents' privacy interests precluded production of these applications absent a court order setting forth the type and dates of documents to be produced and the information that could be redacted from the documents prior to their production. One Watergate ultimately produced the redacted applications pursuant to an Order of the Circuit Court of the Twelfth Judicial Circuit entered on July 18, 2003. On September 22, 2003, the Commission's investigator produced a Final Investigative Report listing all the witnesses interviewed and documents reviewed during the investigation. The report lists Mr. Bhayat, Ms. Hess, and Ms. Gillett as the only substantive interviewees. On the same date, the investigator also produced a document entitled, "Determination" that set forth his findings and his recommendation that there was cause to believe that a discriminatory housing practice had occurred. On November 14, 2003, the Commission issued a document entitled, "Legal Concurrence: Cause." As the title suggests, this document represented the concurrence of the Commission's legal counsel with the investigator's conclusion that there was reasonable cause to believe that a discriminatory housing practice had occurred. The legal analysis, prepared by the Commission's attorney Vicki Johnson, stated as follows, in relevant part: The Complainant has satisfied all the requirements of a prima facie case. The Complainant has a dark complexion and is from South Africa, therefore he is protected on the basis of color and national origin; he submitted an application to purchase the condominium and had obtained mortgage approval. Once his application was rejected, the condominium remained available for sale. Respondent articulated a non-discriminatory reason for denying the Complainant's application; however, this reason is determined to be pretext. To show pretext, the Complainant need only show that his color and national origin were in some part, the basis for the denial of the sale. . . A landlord has the right to request information about the financial status of prospective tenants; an inadequate or incomplete application form may act as a defense to a discrimination charge by providing a legitimate basis for the action taken. . . However, a violation of the Fair Housing Act can be found even where formal requisites of a contract/application are not satisfied, if the motivation behind rejection of the contract was discriminatory. . . . Respondent states that the Complainant did not submit a complete application because he failed to provide his and his wife's social security number[s]. The Complainant explained that he did not provide the social security numbers because his wife had recently had her identity stolen and was afraid to disclose her social security number. The application which the Complainant was asked to complete was not to take effect until July 1, 2002, when Respondent entered into a contract with Renter's [sic] Reference, who was to provide a credit report for applicants applying to purchase a condominium. The Renter's Reference application form is more detailed than the previous application. While it is true that the Complainant did not disclose his social security number, which would permit Renter's Reference to obtain his credit report, the Complainant did provide a copy of a credit report that was obtained by his mortgage company. This credit report included both positive and negative credit issues and provided similar information as that which would have been generated by Renter's Reference. Moreover, the minutes of the April 2002 meeting of the One Watergate Board of Directors indicates [sic] that the board approved a motion that "no new applicants be turned down until the revision of documents with reference to the obligation of the Association to purchase the unit where an applicant has been rejected." The Complainant's application was submitted after this decision by the board, but was turned down. In addition, Mrs. Hess stated that when she inquired about the Complainant's application, Mr. Farr (the building manager) told her that "I knew from the minute I saw that guy that he was going to be trouble . . . when you see him, you'll know what I mean." This statement is clearly referencing the Complainant's physical appearance. Mr. Farr was acting as an agent for the Respondent, therefore, the Respondent is vicariously liable for his actions and statements. [Citations omitted.] Also, on November 14, 2003, the Commission's executive director issued a Notice of Determination and Administrative Charge finding that there was reasonable cause to believe that a discriminatory housing practice had occurred. Prior to filing the Petition for Relief that initiated the underlying proceeding, the Commission afforded One Watergate an opportunity to submit additional information in its defense. On February 23, 2004, counsel for One Watergate submitted several documents to the Commission. The first was a signed statement by Mr. Farr denying that he made the remarks alleged by Ms. Hess. The second document was the contract between Renters Reference and One Watergate, indicating an effective date of May 6, 2002, not July 1, 2002, as alleged by the Commission. Counsel for One Watergate also included Ms. Farr's version of the sequence of events concerning Mr. Bhayat's application and the minutes of a June 25, 2002, Board meeting at which the Board voted to return the application to Mr. Bhayat for completion, thus indicating that the Board did not "disapprove" that application. Finally, One Watergate included a letter from Warren Plant, the president of Renters Reference, explaining why he considered the credit report submitted by Mr. Bhayat to be unacceptable: At this time in 2002, we could not pull a credit report without an individual's Social Security Number. We obtain our credit reports directly from the national credit bureaus and provide our customer with an exact copy of this credit report. We do not obtain our credit reports from third-party consumer reporting agencies. The credit report submitted by Mr. Bhayat was a concoction put together by a third-party consumer reporting agency, not an exact copy of a credit report from a national credit bureau. A consumer reporting agency takes information from different sources and they make up their own credit report, including or excluding whatever information they want. On March 10, 2004, the Commission filed the Petition for Relief that initiated Case No. 04-0816. At the hearing in that case, it was established that Mr. Farr had nothing to do with management of One Watergate; rather, he was the building's maintenance man. The undersigned credited his denial of the statements attributed to him by Ms. Hess, but also found that even if Mr. Farr made those statements, they could not be attributed to One Watergate because Mr. Farr played no role in the application process and had not discussed Mr. Bhayat with any Board member or with his wife. At the hearing, it was also established that Renters Reference never received the full credit report prepared by MSC Mortgage and submitted by Mr. Bhayat with his last application. Mr. Bhayat produced a 13-page report at the hearing, but witnesses for One Watergate and Renters Reference credibly testified that they received only the first two pages, which summarized the information in the full report. The undersigned credited Mr. Plant's testimony that even the full report did not meet Renters Reference's criteria for a credit report, and thus, the result would have been the same even if Mr. Bhayat had submitted the full credit report. The undersigned also credited Mr. Plant's testimony that his company does not "mess around" with the Fair Housing Act and that he would have immediately canceled the contract with One Watergate if he had had the least suspicion that the Board was basing its actions on Mr. Bhayat's race, color, or national origin. The Recommended Order in Case No. 04-0816 did not directly address the issue of the minutes of the April 16, 2002, Board meeting because the evidence produced by One Watergate at the hearing rendered that issue irrelevant. The undersigned credited the testimonial and documentary evidence produced by One Watergate to show that the referenced minutes were not accurate. No motion was made or adopted regarding the effect of the "buy back" provision on the new applicant screening process. The issue was discussed at the meeting, but no action was taken by the Board. The undersigned found no evidence that any member of the Board or the screening committee discriminated against Mr. Bhayat due to his race, national origin, or for any other reason. Most of them never met Mr. Bhayat and were unaware of his race or national origin during the period in dispute. Mr. Bhayat simply declined to submit a complete application to One Watergate, which, in turn, declined to consider his incomplete application. Prior to filing its Petition for Relief, the Commission did not interview either of the Farrs or any Board member aside from Ms. Gillett. Such interviews might have caused the Commission to question the credibility and/or accuracy of the information provided by Mr. Bhayat, Ms. Gillett, and Ms. Hess. However, nothing that the Farrs or the Board members stated would necessarily have led the Commission to conclude that it lacked cause to proceed. The Commission would have had to make a judgment as to the credibility of the witnesses, as did the undersigned at the final hearing. A more detailed investigation might have revealed that there was a dispute as to whether Mr. Bhayat submitted the full credit report or merely the first two pages. However, at the time the Commission found cause, neither the Commission nor One Watergate apparently realized there was an issue regarding the report. The Commission assumed that One Watergate received the full 13-page report and had no reason to believe otherwise. One Watergate assumed that the two pages it received constituted the full report until Mr. Bhayat produced the full report at the hearing. The matter was resolved at the hearing, essentially as a matter of witness credibility. Mr. Bhayat was adamant that he submitted the full report, but Ms. Farr and Mr. Plant convincingly testified that they received only the first two pages. It is not clear how extensive the Commission's investigation would have to have been in order to learn that the published minutes of the Board's April 16, 2002, meeting were not accurate. According to the published minutes, no applicant would be rejected until the Board voted on the repeal of the "buy back" provision of the One Watergate by-laws, yet Mr. Bhayat was rejected (or more precisely, his application was not considered) prior to any such vote being taken. Thus, the published minutes were a very significant factor in the Commission's judgment that One Watergate was treating Mr. Bhayat differently than other applicants, and the Commission continued to rely on the minutes throughout the underlying proceeding. The Commission argued, strenuously and not unreasonably, that the undersigned should not credit One Watergate's self-serving testimony and documentary evidence indicating that the minutes were inaccurate. An interview with Mr. Farr would have revealed that he disputed Ms. Hess' account of their conversation, but this again would have been a matter of witness credibility and the weighing of corroborating evidence to determine the facts. The Commission had Mr. Farr's written statement of denial in its possession at the time the Petition for Relief was filed indicating that the Commission did not find Mr. Farr persuasive. The mere fact that Mr. Farr denied the allegation would not render the Commission's reliance on Ms. Hess' testimony unreasonable per se. From the outset of the underlying proceeding, the Commission made it clear that it did not intend to rely solely on the alleged statement of Mr. Farr, or the hearsay statements of Ms. Gillett, to establish that One Watergate had discriminated against Mr. Bhayat. Counsel for the Commission acknowledged in her opening statement that this would be a case based on circumstantial evidence of discriminatory motive on the part of One Watergate. The Commission's theory of the case, in a nutshell, was that Renters Reference's "bread and butter" lay in assisting organizations such as One Watergate to keep out "undesirables," and that Renters Reference was always going to find some reason not to accept Mr. Bhayat's application because One Watergate had labeled him an "undesirable." Because Mr. Bhayat was a successful realtor, was financially able to purchase the condominium in question, and lacked a criminal record or other disqualifying attribute, the Commission concluded that the reason for not accepting his application must have been his color or national origin, which was the only obvious distinction between Mr. Bhayat and those applicants whose applications were accepted and approved by Renters Reference and One Watergate. Based on the information before it at the time it found reasonable cause to believe that an act of discrimination occurred, the Commission had a reasonable basis in law and fact to proceed with the case. The Commission's investigation was not perfect, but the overriding factor in the underlying case was witness credibility. The Commission was substantially justified in finding the statements and testimony of Mr. Bhayat, Ms. Hess, and Ms. Gillett credible during its investigation, despite the fact that the undersigned ultimately chose to credit the testimony of One Watergate's witnesses, in light of all the evidence produced at the hearing.
The Issue Is it appropriate for Respondent, Department of Revenue, Child Support Enforcement Program, to garnish funds for past due child support reduced to judgment from a joint account pursuant to Section 409.25656, Florida Statutes (2001)?1
Findings Of Fact On December 20, 1985, an Order of Support was issued in Derrick v. Wright in the Hillsborough County Circuit Court; pursuant to this Order, Petitioner was ordered to pay $25.00 per week for the current support of his minor child, Mesheal Lee Wright, born on April 20, 1983, commencing December 16, 1985. On February 10, 1995, a Recommendation of Hearing Officer and a Findings of Fact and Order on Motion for Contempt in Derrick v. Wright were filed in the Hillsborough County Circuit Court, which adjudicated Petitioner’s child support arrearage in the case to be $10,639.02 as of October 7, 1994. On May 11, 1995, a General Findings and Order of Arrest Instanter in Derrick v. Wright was filed in the Hillsborough County Circuit Court, which adjudicated Petitioner’s child support arrearage in the case to be $9,463.02 as of December 31, 1994. On or about May 13, 2002, a Recommendation of Hearing Officer and a Findings and Establishing Arrears in Derrick v. Wright were filed in the Hillsborough County Circuit Court, which adjudicated Petitioner’s child support arrearage in the case to be $16,121.06 as of April 9, 2002, and ordered Petitioner to pay $167.00 per month in liquidation of his arrearage, commencing May 1, 2002. All the arrearage was owed by Petitioner to the custodial parent of the minor child; none of the arrearage was owed to the state. On October 15, 2001, Respondent mailed a Notice of Freeze in an amount up to $16,121.06 to Suncoast by certified mail, return receipt requested, regarding any accounts of Petitioner with the credit union; Suncoast received the Notice of Freeze on October 18, 2001. Suncoast confirmed a freeze on Petitioner’s joint account in the amount of $5,573.95 as of October 18, 2001. The signature card, produced as an exhibit by the Respondent, stipulated that the account was owned as a joint tenancy with right of survivorship by Petitioner and a non- obligor joint account holder, Petitioner's sister. On October 22, 2001, Respondent mailed a Notice of Intent to Levy in an amount up to $16,121.06 to Petitioner by certified mail, return receipt requested; the Notice of Intent to Levy was received and signed for at the Florida State Hospital, Chattahoochee, Florida, on October 23, 2001. The Notice of Intent to Levy advised that a non- obligor joint owner, who claimed to have an equal right to all of the money levied upon in a joint account, had a right to contest Respondent’s action. The non-obligor joint account holder did not file a petition to contest the levy nor did she appear at the final hearing. On or about November 5, 2001, Petitioner filed a Petition-Disputed Issues of Material Fact with Respondent. Respondent sent a Notice of Extension of Freeze in an amount up to $16,121.06 to Suncoast on November 9, 2001. Pursuant to the official records of the Hillsborough County Circuit Court in Derrick v. Wright, Petitioner’s child support arrearage was $16,121.06 as of November 21, 2003. Petitioner and his sister, Sandra W. Russaw, opened a joint account with survivorship rights at Suncoast on November 21, 1997. The Suncoast account had balances of less than $100.00 for 12 of the first 25 months it was open including the five months immediately preceding January 20, 2000, when $3,900.00 was deposited in the account. On December 27, 1999, Petitioner had $3,655.00 deposited in a Resident Trust Account he maintained at the Florida State Hospital, Chattahoochee, Florida. These funds, which were deposited by the U.S. Treasury, were followed by a deposit of $749.00 from the same source. These funds were initial payments to Petitioner for Veteran's Administration benefits. On January 14, 2000, $4,200.00 was withdrawn in the form of a check from Petitioner's Resident Trust Account at the Florida State Hospital. On January 20, 2000, $3,900.00 was deposited in the Suncoast account. Over the next 23 months, from January 20, 2000, to November 31, 2001, $20,538.00 directly attributable to Petitioner was deposited in the Suncoast account. The money was from Veteran's Administration benefits paid to Petitioner by direct deposit. Not surprisingly, upon notification of the Notice of Freeze the monthly checks from the Veteran's Administration stopped being deposited in Petitioner's Suncoast account. On March 8, 2000, $5,000.00 was withdrawn from the Suncoast account, and on July 10 and 20, 2000, $4,990.00 was deposited in the same account. With the exception of the July 2000 deposits, only $1,490.00 in deposits to the Suncoast account are not directly attributable to Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a final order that: (1) levies upon the funds in Petitioner’s credit union account with Suncoast Schools Federal Credit Union, Tampa, Florida, up to the amount of unpaid child support as of November 21, 2003, i.e., $16,121.06, or to the full amount frozen, whichever is less; (2) applies the funds levied to satisfy all or part of Petitioner’s past due child support obligation; and (3) credits Petitioner for the amount so applied. DONE AND ENTERED this 22nd day of January, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 22nd day of January, 2004.
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
Findings Of Fact The marriage of Ronald Yelvington and Marsha Yelvington was dissolved some time prior to this proceeding. The couple had four children. On December 3, 1982, Ronald Yelvington executed a stipulation to repay arrearages of court-ordered child support due to the State of Florida in the amount of $4,542.00. Repayment was to be made at the rate of $5.00 per week. The stipulation acknowledged the four children and acknowledged that they had received public assistance from November 1, 1978 until October 31, 1981. The Department joined in the stipulation. (Petitioner's Exhibit #2) On February 18, 1983, Circuit Judge E. L. Eastmore entered an order to repay debt and arrears, adopting the terms of the parties' stipulation. Payments were to be made to the Clerk of the Circuit Court and disbursed by the Clerk to the Department, as reimbursement for public assistance paid for the benefit of Yelvington's minor children. (Petitioner's Exhibit #2) Ronald Yelvington has paid regularly, by payroll deduction. As of May 18, 1988, his balance due on the arrearages account was $3,286.70, including an additional arrearage of $119.70. (Petitioner's Exhibit #1) Until this proceeding, Mr. Yelvington was unaware that he was accruing an additional arrearage. He attributes the arrearage to the fact that his company changed to a bimonthly pay period. His current spouse, Carol Yelvington, called HRS and Lew Merryday's office to let them know that the pay period was different. They told her they would let the Yelvingtons know if there was a problem. The next contact was the notice of IRS intercept. HRS has a policy of pursuing IRS intercept even when the party is paying regularly under a stipulation regarding an arrearage, if the funds are available in a tax refund. Linda Bailey, the child Support Enforcement Supervisor, does not know how much is available in Mr. Yelvington's tax refund. She concedes that the policy causes confusion and resentment in a party who is making regular payments. Ronald Yelvington agrees that he owes the arrearage, although he does not understand the basis for the additional $119.70, or why no one informed him that he was getting behind for insufficient payroll deductions. He believes that intercept might be a speedy resolution, but he distrusts the figures stated by HRS. His former and current spouses vehemently object to the intercept, as they feel that the money would otherwise go to them and their children. Neither argues that the refund is partly theirs by virtue of having filed a joint tax return as a wage earner. HRS does not maintain an accounting of payments made under the child support enforcement program. It relies instead on the accounting provided by the Clerk of the Circuit Court, as it is the Clerk's office that is responsible for receiving and disbursing the funds.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That a Final Order be entered finding that the Department should notify the Secretary of Treasury as provided in Title 42, U.S. Code, Section 644(a)(1), that Ronald Yelvington owes past-due support in an amount to be established at the time the notice is provided. That is, the sum of $3,286.70, owed as of May 18, 1988, should be reduced by those amounts paid by Mr. Yelvington since that date. It is further recommended that Ronald Yelvington be provided a copy of the Clerk of Circuit Court accounting of his payments on the arrearage established by Judge Eastmore's February 18, 1983 Order. DONE and RECOMMENDED this 13th day of June, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1988. COPIES FURNISHED: Lew Merryday, Jr., Esquire 425 North Palm Avenue Palatka, Florida 32077 Ronald M. Yelvington 5417 Coyote Trail Orlando, Florida 32308 Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Ms. Marsha Yelvington Martin 5834 Windermere Drive Jacksonville, Florida 32211 Marsha Yelvington Post Office Box 608 Pierson, Florida 32080
The Issue Whether the Department of Revenue, Child Support Enforcement Program, may levy bank accounts held jointly by Petitioner and Donald F. Ziesmer and apply the funds to reduce or satisfy Mr. Ziesmer's past due child support obligation.
Findings Of Fact On September 4, 1992, an Order and Judgment was filed in the case of Shirley Skubish v. Donald F. Ziesmer (Skubish v. Ziesmer), Case No. 85-1368-CA, in the Circuit Court of the 19th Judicial Circuit, in and for Martin County, Florida. Pursuant to this Order and Judgment, Donald F. Ziesmer was ordered to pay $48.00 per week in current child support for two minor children, and an additional $5.00 per week on a child support arrearage of $4,571.00, which was established as being owed by Mr. Ziesmer as of August 19, 1992. (Joint Stipulation). On May 19, 1994, an Order of Contempt was filed in Skubish v. Ziesmer, under which, inter alia, Mr. Ziesmer's child support obligations as set out in the September 4, 1992, Order and Judgment were continued, and a child support arrearage of $6,108.37, was established as being owed by Mr. Ziesmer as of May 5, 1994. (Joint Stipulation). On May 14, 1998, an Enforcement of Child Support Agreement and Order on Stipulation was filed in Skubish v. Ziesmer, under which Mr. Ziesmer's child support obligation, as set out in the September 1992 Order and Judgment were continued, and a child support arrearage of $1,246.08, was established as being owed by Mr. Ziesmer as of May 6, 1998. (Joint Stipulation). On January 29, 1999, a Recommended Order and Order on Motion for Enforcement, Contempt and Income Deduction was filed in Skubish v. Ziesmer, in which Mr. Ziesmer's child support obligation, as set out in the September 1992 Order and Judgment was continued, and a child support arrearage of $2,686.08, was established as being owed by Mr. Ziesmer as of December 2, 1998. (Joint Stipulation). On December 28, 1999, a Recommended Order and Order on Motion for Enforcement, Civil Contempt and IBO was filed in Skubish v. Ziesmer, under which, inter alia, Mr. Ziesmer's child support obligations as set out in the September 4, 1992 Order and Judgement were continued, and a child support arrearage of $5,182.08, was established as being owed by Mr. Ziesmer as of December 1, 1999. (Joint Stipulation). The official payment records of the Martin County Clerk of Court established that Mr. Ziesmer owed past due child support in Skubish v. Ziesmer, in the amount of $7,534.08, as of November 9, 2000. (Joint Stipulation). On or before November 9, 2000, Petitioner and her boyfriend, Donald Ziesmer, opened a joint checking account (account number: 262746-8), and a joint savings account (account number: 262746-0), (hereafter, "the FCU joint accounts") with the Florida Credit Union, Gainesville, Florida. (Joint Stipulation). At the time that the accounts were opened and at all times material, Petitioner and Mr. Ziesmer were living together on Petitioner's Social Security disability income and gifts from her father, and Mr. Ziesmer's Veterans Administration disability income and gifts from his mother and other relatives. At no time material were either Petitioner or Mr. Ziesmer working for a living or earning any income. Petitioner was receiving Social Security disability benefits of about $530.00, per month, during the period of September 2000 through November 2000. Her benefits were deposited into an EBT account in her name, only, with Citicorp Electronic Financial Services, Inc., Tampa, Florida. (Joint Stipulation). Petitioner made a one-time deposit in September 2000, of a lump sum disability payment of $659.00. Her Social Security disability payments were made to Petitioner monthly by an EBT card in an uneven amount which was not a multiple of $20.00. An EBT card works like an ATM card for purposes of withdrawals. Most ATMs only permit withdrawals of cash in 20-dollar increments, with fees attaching to each withdrawal. Because Petitioner's EBT monthly credit was in an amount which was not a multiple of 20-dollars, she could not access the balance of approximately $13.00 each month unless she had a checking account. Also, she needed to write checks so she could prove she had paid certain domestic bills. The accounts were opened primarily to allow Petitioner to access her last $13.00 each month. The accounts were opened as joint accounts because Petitioner's bad credit kept her from being able to open a checking account in her name alone. Petitioner and Mr. Ziesmer both intended that the accounts be used only by Petitioner, and Petitioner is the only one who used the accounts. Petitioner and Mr. Ziesmer have never been married to each other. On November 9, 2000, Respondent mailed a Notice of Freeze to the Florida Credit Union, Gainesville, Florida, by certified mail, return receipt requested, regarding any accounts held by Mr. Ziesmer. The Notice was received by the credit union on November 13, 2000. (Joint Stipulation). Pursuant to the Notice of Freeze, the Florida Credit Union froze the FCU joint accounts on November 13, 2000. On November 16, 2000, Respondent mailed a Notice of Intent to Levy on Mr. Ziesmer, by certified mail, return receipt requested. Mr. Ziesmer received the Notice after November 16, 2000. (Joint Stipulation). The Notice of Freeze and Notice of Intent to Levy satisfied Respondent's statutory notice requirement in Section 409.25656, Florida Statutes. Petitioner filed a timely Petition for Administrative Hearing on November 29, 2000. (Joint Stipulation). Respondent Department's agency representative, Pamela Ellingsworth, Revenue Specialist II, testified that it is the Department's standard procedure to give any joint account holders, who do not owe the back child support, the opportunity to show the source of accounts frozen by the Department. She further testified that the Department normally releases back to the non-debtor/non-obligor joint account holder those funds which the non-debtor can establish are his or her own funds, separate and apart from those of the child support debtor/obligor. According to Ms. Ellingsworth, if a percentage of contributions to the account(s) can be determined, the Department's standard procedure is to release back that percentage of proven funds to the non-debtor/non-obligor. Between October 1, 2000 and November 13, 2000, thirteen deposits were made into the FCU joint accounts. Twelve deposits were of cash only. One deposit, on October 6, 2000, was from a check for $150.00 ($130.00 "net" deposit) written to Petitioner by her father. (Joint Stipulation, modified by testimony as to "father"). Petitioner testified, without refutation, that the funds deposited came only from the two sources: Petitioner's Social Security benefits and gifts by cash or check from Petitioner's father. Petitioner and Mr. Ziesmer testified, without refutation, that no deposits to the accounts were made by Mr. Ziesmer. Although both witnesses have mental disabilities and take heavy medication, they were credible on this issue because credit union statements and other documents regarding the FCU accounts were admitted into evidence, which documents materially mirror their testimony regarding amounts received, deposited, and disbursed. (Petitioner's Exhibits A, B, C, and D). Mr. Ziesmer's income from disability payments at all times material was only $101.00 per month, with one slightly larger one-time lump sum payment. The amounts he received in gifts varied. He did not recall exact amounts. He gave Petitioner cash for food and no monies of his were deposited into the joint accounts. The Department established that in September 2000, the couple signed a lease together on a house for $550.00 per month. However, their testimony shows they were evicted less than two months later for failure to pay, and they no longer live together.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
The Issue Whether Petitioner's Federal Income Tax refund should be intercepted by Respondent?
Findings Of Fact On August 17, 1984, the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, entered an order finding Petitioner to be in arrears in child support payments in the amount of $6,400.49. As of July 21, 1988, Petitioner was in arrears in his child support payments in the amount of $6,954.52. Petitioner does not dispute that he is in arrears in his child support payments, but argues that Respondent should not take the entire refund, but should only take one-half.
Recommendation Therefore, based upon the foregoing, it is RECOMMENDED that Respondent issue a final order affirming the determination that Petitioner owes past-due support. DONE and ORDERED this 24th day of August, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1988. COPIES FURNISHED: Johnny E. Matthews 4435 Kenndle Road Jacksonville, Florida 32208 Warren J. Schulman, Esquire 331 East Union Street, Suite 1 Jacksonville, Florida 32202 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue for consideration in this matter is whether the Department of Revenue should retain Petitioner's lottery winnings in the amount of $1,033.01 because of his obligation to pay child support as ordered by a court of record.
Findings Of Fact By Final Judgement of Paternity dated September 13, 1994, J. Tim Strickland, Circuit Judge for the 10th Judicial Circuit in Polk County, ordered Petitioner, inter alia, to pay child support and retroactive child support to the State of Florida for the dependent child of which Petitioner was adjudged the father, in the amount of $25.00 per week in future child support, and $5.00 per week in retroactive child support until the sum of $5,007.00 has been paid in full. Petitioner thereafter arranged for the payments required as to both future child support and the retroactive child support to be deducted out of his earnings or unemployment compensation payments when he was unemployed. The Department of Revenue agrees that all periodic payments required by the court order have been paid timely. On May 4, 1996, Petitioner purchased a lottery ticket from an agent of the Florida Lottery. One of the number series he purchased on May 4 was a partial winner and Petitioner was entitled to receive the sum of $1,033.00. On May 5, 1996, Petitioner submitted a winner claim form to claim the $1,033.00. Before any money was paid to the Petitioner, however, consistent with the pertinent provisions of the Florida Statutes, the Department of Lottery transmitted the Petitioner's prize money to the Department of Banking and Finance so that any debts due the state by the winner, or unpaid court-ordered child support could be identified and prize money withheld to satisfy all or a part of such claim. Consistent with established procedure, the Department of Revenue informed the Department of Banking and Finance that Petitioner owed $4,305.01 in unpaid retroactive child support assessed by the Circuit Court in May, 1994. Since the amount the Department of Revenue claimed was owing exceeded the amount of Petitioner's prize of $1,033.00, the Department of Banking and Finance advised Petitioner it intended to apply the entire prize amount to the unpaid retroactive child support. Petitioner protests, claiming that since he is fully in compliance with the terms of the Final Judgement of Paternity, and none of the required weekly payments is delinquent, he is not indebted and the state has no basis to withhold his prize.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be issued providing for payment of the $1, 033.00 prize attributable to the ticket held by Petitioner Gary Roberts, to the Department of Revenue on behalf of his minor child. DONE and ENTERED this 23rd day of September, 1996, 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 23rd day of September, 1996. COPIES FURNISHED: Gary Roberts 527 6th Street Northeast Ft. Meade, Florida 33841 Chriss Walker, Esquire Department of Revenue Post Office Box 8030 Tallahassee, Florida 32314-8030 Ellen C. Marino, Esquire Department of Banking and Finance The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Louisa H. Warren, Esquire Department of the Lottery 250 Marriott Drive Tallahassee, Florida 32399 Hon. Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Harry Hooper General Counsel The Capitol, Room 1302 Tallahassee, Florida 32399-0350 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 Dr. Marcia Mann, 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 Case No. 88-1323 On November 10, 1986, the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, entered an order finding Petitioner to be in arrears in child support payments in the amount of $3,099.30. As of July 21, 1988, Petitioner's arrearage for his child support payments was $2,430.71, Case No. 88-1324 On November 26, 1986, the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, entered an order finding Petitioner to be in arrears in child support payments in the amount of $665.00. Also, the court determined that Petitioner owed the State of Florida $3,082.00 as a public assistance obligation which had been previously established by the court. As of July 21, 1988, Petitioner was in arrears in the amount of $3,432.01 in his child support payments and in the public assistance obligation. Petitioner's Case Mr. Brown is currently making all the payments he is required to make under both court orders. He admits he owes the amount at issue in this case, although he believes there may be minor discrepancies in the records and he plans to pursue this with the agency responsible for record keeping.
Recommendation Therefore, based upon the foregoing, it is RECOMMENDED that Respondent issue a final order affirming the determination that Petitioner owes past-due support. DONE and ORDERED this 24th day of August, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1988. COPIES FURNISHED: Billy Lee Brown 3490 Lannie Road Jacksonville, Florida 32201 Warren J. Schulman, Esquire 331 East Union Street, Suite 1 Jacksonville, Florida 32202 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
