The Issue Whether the State of Florida, through its agencies, collected the money owed it by the Petitioner prior to receipt of a letter from her doctor certifying her disability.
Findings Of Fact On or about June 21, 1990, the Petitioner, Therese L. Hodge, applied for a student loan to pursue educational courses at Career City College in Gainesville, Florida. The loan applied for was a Stafford Loan, a student loan administered by the Department of Education (DOE) through the Office of Student Financial Assistance (OSFA). Under the Stafford Loan program, DOE through OSFA, serves as the guarantee agent performing its responsibilities in accordance with regulations promulgated by the United States Department of Education (USDOE). The essential elements and operation of the loan program are that a participating bank or financial institution agrees to make a loan to a student on the condition that the DOE will issue a written guarantee that it will repay the loan to the lender if the student defaults on the loan. When DOE repays a defaulted loan to the lender, DOE acquires the promissory note and the right to collect from the student. DOE is required by USDOE to pursue collection in order to receive reimbursement from USDOE of the amount paid to the lender. On or about July 7, 1990, OSFA issued its guarantee of a student loan to the Petitioner, and Florida Federal loaned her $1,213.00. While enrolled in her first term at college, the Petitioner suffered a stroke. The Petitioner was observed at the hearing and it was apparent that she had some moderate limitations on her ability to communicate, comprehend, and remember. Petitioner lives on Social Security disability income. Her brother- in-law, who had accompanied her to the hearing, assisted in presentation of Petitioner's case without objection from the Respondents. After the Petitioner defaulted on her student loan, the Petitioner won $5,000 in a Florida lottery game. The Petitioner made demand for payment of the prize money. The Department of Lottery checks winnings of more than $600 to determine if the winner owes any money to the State. In the course of its comparison, the Department of Lottery determined that the Petitioner owed the State money on the defaulted student loan. The Department of Lottery confirmed the indebtedness with the Department of Education, and it was determined that the Petitioner owed $1,231.98 including interest on the defaulted student loan. On January 9, 1993, the Department of Lottery forwarded the $5,000 to the Office of the Comptroller, and notified the Petitioner of her right to request a formal hearing to controvert the Department's collection of the indebtedness. On January 12, 1993, the Petitioner called the Department of Lottery and advised the Department that she was disabled. The Department forwarded to the Petitioner medical forms on January 20, 1993. Subsequently, the Petitioner's physician certified to the state that she was totally and permanently disabled. Documents introduced at hearing show that the Petitioner advised the lending bank on June 17, 1991 that she was disabled due to a stroke and unable to work. The bank sent the Petitioner medical forms in order for her to have her disability certified. The Petitioner did not return the forms due to her financial inability to obtain the required physical. After the Department of Education had repaid the student loan and had turned the matter over to a collection agency, the Petitioner advised the collection agency that she was disabled and the collection agency sent her medical certification forms which she did not have completed due to her financial inability. After she had won the lottery, the Petitioner had the medical certification forms which were forwarded to her by the Department of Education completed by a physician and these were returned to the State after the end of January, 1993 certifying that the Petitioner was totally and permanently disabled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Office of the Comptroller return to the Petitioner the amount $1,231.98. DONE AND ENTERED this 16th day of June, 1993, in 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 16th day of June, 1993. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-1218 The Petitioner's sister wrote a letter in the Petitioner's behalf which was read and considered, and is treated as a final argument. The Department of Education filed a proposed order which was read and considered. The following proposed findings were adopted, or rejected for the reason stated: Respondent's (DOE) Proposed Findings: Recommended Order: Paragraph 1-6 Adopted Paragraph 7 Irrelevant Paragraph 8 Adopted Paragraph 9 The Department was on notice of the Petitioner's disability. Total and permanent disability is a medical determination based upon medical certification. The lender was on notice of Petitioner's disability on June 17, 1991. The purpose of the bank sending Petitioner the medical forms was to confirm the medical determination. Paragraph 10-15 Adopted COPIES FURNISHED: Therese L. Hodge and 5855 West Wood Lawn Street Post Office Box 36 Dunnellon, FL 34433 Ocklawaha, FL 32179 Charles S. Ruberg, Esquire Department of Education 325 West Gaines Street Tallahassee, FL 32399-0400 Louisa Warren, Esquire Department of Lottery 250 Marriott Drive Tallahassee, FL 32301 Leslie A. Meek, Esquire Office of the Comptroller The Capitol, Room 1302 Tallahassee, FL 32399-0350 Gerald Lewis, Comptroller Department of Banking and Finance Tha Capitol Tallahassee, FL 32399-0350
Findings Of Fact On August 11, 1992, Petitioner submitted a claim to the Lottery based on a Play-4 ticket he held for the Lotto drawing of August 9, 1992. The ticket reflected that Petitioner was eligible for a prize of $2,500.00. On August 11, 1992, DHRS certified to the Lottery that Petitioner owed $2,187.24 in Title IV-D child support arrearage. By letter dated August 27, 1992, the Lottery notified Petitioner that DHRS had advised it of the outstanding debt and that, pursuant to Section 24.115(4), Florida Statutes, it had transmitted the prize amount to DBF. Petitioner was further advised that DBF would notify him shortly regarding the distribution of the funds. By letter dated September 4, 1992, DBF notified Petitioner that it was in receipt of his prize from the Lottery and that it intended to apply $2,187.24 of the award toward the unpaid claim for child support. Enclosed with the letter was State of Florida warrant number 0453833 in the amount of $312.76 payable to Petitioner. This warrant was payment of part of the Petitioner's lottery prize and represented the difference between the amount of the prize and the amount of child support that DHRS had certified as being due. In a letter received by DBF on September 28, 1992, Petitioner disputed that any obligation was outstanding and requested a formal hearing. The evidence presented by Respondents established that as of August 9, 1992, the date of Petitioner's lottery winnings, Petitioner owed child support in the amount of $2,187.24. These child support payments were being collected through the Clerk of the Circuit Court, in and for Dade County, Florida, pursuant to a Final Judgment of Paternity entered by Dade Circuit Judge Seymour Gelber on September 30, 1986, in Dade Circuit Court Case No. 86-23681.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance transfer to the Department of Health and Rehabilitative Services the sum of $2,187.24 in satisfaction of Petitioner's debt for child support as of August 9, 1992. DONE and ENTERED this 17th day of December, 1992, at Tallahassee, Florida. CLAUDE B. ARRINGTON 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 17th day of December, 1992. COPIES FURNISHED: Nathaniel Williams 9028 S.W. 97th Avenue, Apt. 3 Miami, Florida 33176-1966 Scott C. Wright Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Honorable Gerald Lewis Comptroller, State of Florida Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking and Finance Room 1302, The Capitol Tallahassee, Florida 32399-0350 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 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Louisa Warren, Esquire Department of Lottery 250 Marriot Drive Tallahassee, Florida 32399-4000 Dr. Marcia Mann, Secretary Department of Lottery 250 Marriot Drive Tallahassee, Florida 32301 Ken Hart, General Counsel Department of Lottery Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
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 issue in this case concerns the application of Section 24.115(4), Florida Statutes, to a claim for payment filed by a person who owes a child support arrearage but who did not purchase the lottery ticket presented for payment.
Findings Of Fact Based on the testimony of the witnesses and the exhibits received in evidence at the hearing, I make the following relevant findings of fact. On November 2, 1992, Petitioner, Joseph Judah, Jr., the husband of Petitioner, Diana Judah, presented for payment at the DOL's office in St. Petersburg, a lotto ticket which had been purchased by his wife and which had a prize value of $4,989.50. Mr. Judah placed his name, address and signature on the back of the ticket and completed and signed the winner claim form. Additionally, he presented, as proof of identification, his driver's license and social security card. Pursuant to procedures set forth in Chapter 53-4, Florida Administrative Code, on November 3, 1992, DHRS certified to DOL that Mr. Judah owed $13,302.00 in child support arrearages as of that date. DOL transmitted the prize amount to the Office of the Comptroller and applied the entire amount of $4,989.50 to Mr. Judah's child support arrearages. Mr. Judah was notified that the lottery prize would be applied to his outstanding child support arrearages which prompted him to timely request an administrative hearing. It is undisputed that Mrs. Judah purchased a winning lotto ticket with her money and she is not personally responsible for the support of Mr. Judah's child from a prior marriage. At all times material hereto, DOL had in effect Rule No. 53ER87-43, Florida Administrative Code, entitled "Procedure for Awarding Prizes". That rule provides, in pertinent part, that: (6) Until such time as a name is imprinted or placed upon the back portion of the lottery ticket in the designated area, a lottery ticket shall be owned by the physical possessor of such ticket. When a name is placed on the rear of the ticket in the designated place, the person whose name appears in that area shall be the owner of the ticket and shall be entitled to any prize attributable thereto.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Banking and Finance, Office of the Comptroller, issue a Final Order in this case providing for payment to the Department of Health and Rehabilitative Services of the entire $4,989.50 prize money originally claimed by Petitioner, Joseph Judah, Jr. DONE AND ENTERED this 14th day of July, 1993, in Tallahassee, Florida. JAMES E. BRADWELL 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 14th day of July, 1993. COPIES FURNISHED: Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, FL 32399-0350 William G. Reeves, Esq. General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, FL 32399-0350 Carrole R. Ward, Esquire 12029 Majestic Boulevard, Suite 7 Bayonet Point, Florida 34667 Karen M. Camechis, Esquire Assistant General Counsel Department of Banking and Finance Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Chriss Walker, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Louisa H. Warren, Esquire Department of Lottery Capitol Complex Tallahassee, Florida 32399-4011
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
The Issue Whether respondent discriminated against petitioner on account of her race in terminating her employment?
Findings Of Fact On May 2, 1985, even before Builders Square, Inc., opened Store No. 1423 at 1412 West Fairfield Drive in Pensacola, Sharon Jackson, an African American woman, started work, putting price tags on merchandise. When the doors opened, on May 22, 1985, she began as a "ticket checker." Stationed by an exit, she punched customers' invoices, once she determined the invoice accurately reflected the merchandise the customer proposed to leave the store with. She continued in this capacity until her employment ended. Builders Square, Inc., hired Ms. Jackson as a "Part Time Non Regular," Respondent's Exhibit No. 1, cashier at an hourly rate of $3.50. On June 7, 1985, she became a regular or permanent part-time employee and received a raise to $4.00 an hour. Respondent's Exhibit No. 2. Effective July 1, 1985, she became a full-time employee, and was reclassified: she went from "CASH I 423628 [to] TKTCMZ 423628." Respondent's Exhibit No. 3. Her wages rose again, on October 21, 1985, this time to $4.50 an hour. Respondent's Exhibit No. 4. In December of 1985, because "sales were not at budget that particular week," (T.56) a pre-Christmas reduction in the work force was decided upon. Denny Dennis, the store manager, and Roger Hittinger, assistant store manager, both white men, "went through the store and looked at areas where [they] could eliminate some employees." (T.44) They decided to abolish one of two ticket checker positions, and to terminate Sharon Jackson's employment. On Friday, December 13, 1985, they informed her she no longer had a job, as of the close of business. Cynthia Priaulx, a white woman, held the only other ticket checker position on December 13, 1985. Ms. Priaulx began work for Builders Square, Inc., on May 13, 1985, as a full-time, permanent salesperson at an hourly rate of $4.75. Respondent's Exhibit No. 9. On August 12, 1985, she became a ticket checker, but her status did not change otherwise, and her wages remained the same. Susan D. Kirkland, another white woman, began working for Builders Square, Inc., as a "Part Time Non Regular," Respondent's Exhibit No. 11, cashier at an hourly rate of $3.50, just as petitioner Jackson had done, although she started some 20 days after Ms. Jackson. Effective July 1, 1985, Susan Kirkland became a regular or permanent part-time employee and received a raise to $4.00 an hour, Respondent's Exhibit No. 12, changes that had occurred, in Ms. Jackson's case, 23 days earlier. Also on July 1, 1985, Ms. Kirkland, like Ms. Jackson, was reclassified: she, too, went from "CASH I 423628 [to] TKTCKR 423628." Respondent's Exhibit No. 12. Effective October 23, 1985, however, she was reclassified from "TKTCKR 423628 [to] CASH 1 423628." Respondent's Exhibit No. 13. Ms. Kirkland had not attained full-time status as of December 13, 1985, as far as the record reveals. Even after October 22, 1985, when ticket checker positions were reduced to two, Ms. Kirkland, who generally worked evenings, sometimes filled in as a ticket checker as did, occasionally, the store managers as well. Even though she did not always work as a cashier, Ms. Kirkland was paid as a cashier after October 22, 1985, and for that reason, missed out on the raise to $4.50 an hour that Ms. Jackson received. The personnel action notice filled out when Builders Square, Inc., discharged Ms. Jackson indicated her eligibility for rehire. Respondent's Exhibit No. 6. Tim Bolt, like Ms. Jackson an African American who was terminated on December 13, 1985, was in fact rehired in 1986. On November 22, 1988, respondent offered to rehire petitioner full-time on unspecified terms, Respondent's Exhibit No. 5, but petitioner declined. She was unwilling to give up her present job at Women's Home, where she has worked 40 hours a week at $3.50 an hour since June 10, 1987. (T.26) On March 11, 1987, she began working at Women's Home for $3.35 an hour, 32 hours a week. Since her employment there she has had "sick leave and insurance." (T.27) The job at Women's Home is the first she has held since working for Builders Square, Inc. For three or four months or maybe for as long as 26 weeks after she lost her job, she received weekly unemployment compensation in the amount of $66. Three of the seven employees who lost their jobs on December 13, 1985, were African Americans. Respondent's Exhibit No. 7. T. 53. Of the three, only Ms. Jackson did not work as a "regular employee." Two of the white employees who lost their jobs in mid-December had worked as regular employees longer than any of the African Americans whose jobs ended. Respondent's Exhibit No. 7. Sixteen of the 84 employees at Builders Square's Store No. 1423 on December 15, 1985, were African American. Of these, three had attained regular employee status later than Ms. Jackson did. Fourteen white employees and a Filipino who still had jobs after Ms. Jackson was discharged attained regular employee status after she did. Respondent's Exhibit No. 8.
The Issue At issue in this proceeding is whether petitioner's lottery prize is subject to an outstanding debt to any state agency or owing child support collected through a court.
Findings Of Fact On June 16, 1993, petitioner submitted a claim to the Department of Lottery (Lottery) on a Black Jack Instant Ticket she held. Such ticket reflected that petitioner was eligible for a prize of $1,000.00. On June 17, 1993, the Department of Health and Rehabilitative Services (DHRS) certified to the Lottery that petitioner owed $1,224.00 in Aid to Families with Dependent Children benefit overpayments and $675.00 in Food Stamp benefit overpayments, for a total of $1,899.00. Thereafter, pursuant to Section 24.115(4), Florida Statutes, the Lottery transmitted the prize amount to the Department of Banking and Finance (DBF). By letter of June 28, 1993, DBF notified petitioner that it was in receipt of her prize from the Lottery and that it intended to apply the entire $1,000.00 toward the unpaid claim owing DHRS. Such letter, likewise, advised petitioner of her right to request a hearing to contest such action. By letter of July 13, 1993, petitioner requested a formal hearing to contest DBF's action, and the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. At hearing, the proof demonstrated that the only state warrants actually negotiated by petitioner, which represented an overpayment of benefits for Aid to Families with Dependent Children, totalled $612.00. All other state warrants which had been issued to petitioner, and upon which DHRS had initially calculated the debt owing to it from petitioner for overpayments of Aid to Families with Dependent Children and Food Stamp benefits, had been returned, unnegotiated, to the state. Accordingly, the total debt shown to be owing DHRS by petitioner was $612.00.
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 applying $612.00 of petitioner's lottery prize of $1,000.00 to satisfy the debt owing DHRS, and remit the balance of $388.00 to petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of October 1993. COPIES FURNISHED: Debra J. Ihasz 1529 61st Trail South West Palm Beach, Florida 33415 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 15th day of October 1993. Scott C. Wright Assistant General Counsel Office of the Comptroller Suite 1302, The Capitol Tallahassee, Florida 32399-0350 Katrina M. Saggio Department of Health and Rehabilitative Services 1335 23 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Louisa Warren Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301 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, Room 1302 Tallahassee, Florida 32399-0350
The Issue Whether the Respondent, the Florida Department of the Lottery, discriminated against the Petitioner, Oscar Jacobs, on account of his race in denying him equal opportunity for training, compensation, use of new equipment, time off from work, leave, retention and advancement?
Findings Of Fact The Parties. The Petitioner, Oscar Jacobs, is an Afro-American. His race is black. The Respondent, the Florida Department of the Lottery (hereinafter referred to as the "Department"), is an agency of the State of Florida. District 2 of the Department. In the fall of 1987 the Department created a district office in Panama City, Florida. The Panama City office of the Department was part of District 2 (hereinafter referred to as the "District"). The District consisted of Bay, Calhoun, Gulf, Jackson, Holmes and Washington Counties. Steve Sumner was hired as the District Manager for the District in October of 1987. Mr. Sumner hired the staff of the District in November of 1987. The District had the following type of positions: District Manager. The District Manager was in charge of the District office and was the immediate supervisor of the employees in the District. Among other things, the District Manager was responsible for: (1) the assignment of the geographic areas LSRs were responsible for including the designation of retailers located therein that the LSRs were to service; (2) the approval of leave; and (3) the assignment of vans. Lottery Sales Representative II (hereinafter referred to as an "LSR II"). LSR IIs were responsible for inventorying lottery ticket stock sold at retail locations, settling accounts with retailers for all lottery tickets sold, ordering lottery ticket books, reviewing settlement calculations, training retailers, completing paperwork necessary for retailers to become a lottery outlet, completing paperwork upon the termination of a retailer as a lottery outlet, ensuring that retailers operated within Department rules, soliciting, conducting and monitoring retailer promotions and recruiting new retail accounts. See Petitioner's exhibit 4 for a complete description of an LSR II's job description. Lottery Sales Representative I (hereinafter referred to as an "LSR I"). LSR Is were responsible for delivering lottery tickets, picking up redemption envelopes from retailers and comparing them with issuance/settlement forms, assisting retailers, maintaining paperwork and daily activity reports and filling in for, and assisting, LSR IIs. See Petitioner's exhibit 4 for a complete description of an LSR I's job description. Each LSR I was assigned to work with one particular LSR II. Storekeepers. Storekeepers were responsible for receiving, verifying and sorting incoming orders for lottery tickets, receiving and verifying ticket redemption envelopes and ticket returns, and insuring that materials were distributed. See Petitioner's exhibit 4 for a complete description of a Storekeeper's job description. A Receptionist. An Accountant I. An Administrative Assistant I. Clerical positions. Relevant History of Mr. Jacobs' Employment at the District. In November of 1987, Mr. Sumner hired three LSR IIs (Sandra Doll, Linda Gray and Debra Chason). All three are white. Mr. Sumner also hired two LSR Is. On November 15, 1987, Mr. Sumner hired the Mr. Jacobs as an LSR I. John Stevens was the other LSR I. Mr. Stevens is white. Danny Edwards was hired in 1987 as the Storekeeper, and Mary Jane Silcox was hired as an Administrative Assistant. Mr. Edwards and Ms. Silcox are white. At the time that Mr. Jacobs was hired, he was married. Mr. Jacobs' wife's race is white. Although Mr. Jacobs subsequently separated and eventually obtained a divorce from his wife, Mr. Sumner was not aware of these events until sometime after he had hired Mr. Jacobs. Mr. Sumner was responsible for evaluating Mr. Jacobs' performance. For the fiscal years November 16, 1987 to November 16, 1988, November 16, 1988 to November 16, 1989 and November 1989 to November 1990, Mr. Sumners rated Mr. Jacobs' performance with an overall rating of "Exceeds At Least One Standard." The possible ratings, from lowest to highest, were "Below Standards," "Achieves Standards," "Exceeds at Least One Standard," "Exceeds Most Standards," and "Sustained Superior Performance." In April of 1988, Mr. Edwards was promoted by Mr. Sumner from Storekeeper to LSR I. In May of 1988, Larry Kissinger was hired by Mr. Sumner as the Storekeeper. Mr. Sumner also hired Hannah Davis as an LSR I. Mr. Kissinger and Ms. Davis are white. In March of 1990, one of the LSR IIs, Sandra Doll, went on maternity leave. Mr. Sumner selected Mr. Jacobs to fill the LSR II position of Ms. Doll during her absence. Mr. Jacobs was selected out of the three LSR Is then working for the District. Mr. Sumner arranged for Mr. Jacobs to receive a 10 percent increase in pay. The increase in pay was to be payable while Mr. Jacobs temporarily filled the LSR II position. At about the same time that Ms. Doll went on maternity leave, another LSR II, Ms. Gray, resigned. Mr. Sumner assigned Ms. Gray's duties jointly to one of the other LSR Is, Ms. Davis, and the Storekeeper, Mr. Kissinger. Ms. Davis and Mr. Kissinger did not receive any increase in pay for their services. During the time that Mr. Jacobs served as a temporary LSR II, he performed satisfactorily, with assistance from other District staff. Prior to August of 1990, Ms. Doll resigned. In August of 1990, Mr. Sumner decided to promote Mr. Jacobs permanently to the position of LSR II. The Department's Personnel Office, however, informed Mr. Sumner that Mr. Jacobs did not appear to meet the minimum qualifications for the position. Therefore, Mr. Sumner assisted Mr. Jacobs to supplement his resume by expanding the description of his prior sales experience in order for Mr. Jacobs to meet the minimum requirements. Mr. Jacobs was subsequently determined to be qualified and Mr. Sumner's decision to promote Mr. Jacobs was accepted. Mr. Jacobs' salary was reduced to the amount he had been paid before he was given the temporary 10 percent increase. Mr. Sumner recommended, and Mr. Jacobs received, a permanent 7 percent increase, the maximum pay increase he could be awarded upon his permanent promotion to LSR II. As of August of 1990, Mr. Jacobs became the highest paid LSR II in the District. Mr. Jacobs remained the highest paid LSR II while he was employed as an LSR II and as an LMR. Mr. Kissinger, the Storekeeper, was promoted in August of 1990 to fill the LSR I position vacated by Mr. Jacobs. Ms. Davis was promoted in September of 1990 to fill the other LSR II position. Ms. Silcox, the Administrative Assistant, was promoted to fill Ms. Davis' LSR I position in September of 1990. Charles Frederick, whose race is black, was hired by Mr. Sumner in February of 1991, as the Storekeeper. In December of 1990, Mr. Jacobs remarried. The woman that Mr. Jacobs married in December of 1990 was white. From the time that Mr. Sumner hired Mr. Jacobs until approximately May of 1991, Mr. Sumner was satisfied with Mr. Jacobs' performance. In March of 1989 Mr. Sumner nominated Mr. Jacobs to the Department as the District employee of the month. In approximately May of 1991, however, Mr. Sumner began to lose faith in Mr. Jacobs. Mr. Jacobs believes that Mr. Sumner's attitude toward him began to change in 1991 and he attributes this change to the fact that he had married a white woman in December of 1990. Mr. Jacobs' belief is not, however, supported by the record. In light of the fact that Mr. Jacobs was married to a white woman when Mr. Sumner initially hired him and during at least part of the time that Mr. Sumner found Mr. Jacobs' performance to be satisfactory, Mr. Jacobs' belief is unfounded. A more logical explanation for the change in the relationship of Mr. Sumner and Mr. Jacobs is Mr. Jacobs' decline in performance and Mr. Sumner's criticism of Mr. Jacobs' performance as an LSR II. After being promoted to the permanent LSR II position, Mr. Sumner found Mr. Jacobs' performance to be lacking. In September of 1990, Mr. Sumner wrote four critical memorandums to Mr. Jacobs. Mr. Jacobs, based upon these memoranda and other comments from Mr. Sumner, began to believe that Mr. Sumner was treating him unfairly. This combination of lesser performance and criticism at least contributed to the rift between Mr. Sumner and Mr. Jacobs. By approximately May of 1991 Mr. Sumner concluded that Mr. Jacobs' performance had noticeably deteriorated and he seemed to lose interest in his job. In September of 1991 Mr. Jacobs and his wife became foster parents of two infants. The infants both suffered from severe medical problems. Mr. Jacobs' relationship with Mr. Sumner became more strained as a result of the stress on Mr. Jacobs caused by the children's condition. In the summer of 1991, a new sales director for the District was hired by the Department. SEE 23. For the November, 1990 to November, 1991 fiscal year, Mr. Sumner evaluated Mr. Jacobs' performance as "Achieves Standards." This rating was one rating lower than the previous ratings Mr. Jacobs had received from Mr. Sumner. The rating was for Mr. Jacobs' first full year as an LSR II and reflected the drop in his performance as an LSR II. The following comment, among others, was made by Mr. Sumner on the evaluation: Over the past years Jake has been an enthusiastic and productive worker. This previous year has seen a deterioration of skills that he is normally capable of doing. I feel this maybe [sic] in part to environmental pressures outside of work. Many changes have been made to improve work environment, yet employee doesn't appear to enjoy his work. This change became more evident after first full year as an LSR II. Petitioner's exhibit 11. At the time of the 1990-1991 evaluation of Mr. Jacobs, Mr. Sumner was not aware that changes in the number of LSR positions in the District would be made by the Department in 1992. Effective January 1, 1992, the Department eliminated the LSR I and LSR II classifications. A single classification, Lottery Marketing Representative (hereinafter referred to as "LMR"), was created. The evidence failed to prove that Mr. Sumner was involved in the decision to make this change. Mr. Jacobs, Ms. Chason and Ms. Gray were reclassified from LSR II to LMR. Mr. Edwards, Mr. Kissinger and Ms. Silcox were reclassified from LSR I to LMR. In March of 1992 Mr. Sumner was notified by the Department that the sales staff of the District was being reorganized. As a consequence, the District LMR positions were to be reduced from six positions to four. As a part of the reorganization, the District was to receive one new position: a Telemarketing Representative, a newly created employee classification. As a result of the reorganization, Mr. Sumner was faced with reclassifying/demoting one LMR and possibly terminating one LMR. Mr. Sumner was only given two weeks to make the changes. In order to minimize the impact of the reorganization on employees of the District, Mr. Sumner successfully convinced the Department to locate the new Telemarketing Representative position at the District office. Mr. Sumner informed the LMRs of the reorganization and sought volunteers to take the Telemarketing Representative position in a meeting of all LMRs. Ms. Silcox subsequently volunteered to take the Telemarketing Representative position. At the time that Mr. Sumner was deciding how to comply with the Department's reorganization, the Administrative Assistant position in the District became vacant. Ms. Silcox subsequently agreed to take the Administrative Assistant position when Mr. Sumner asked her to. As a result of Ms. Silcox taking the Administrative Assistant position, Mr. Sumner did not have to terminate any LMR. The person in the other LMR position eliminated could move into the Telemarketing Representative position. Mr. Sumner spoke to the remaining four LMRs seeking a volunteer to take the Telemarketing Representative position. Mr. Edwards indicated that he would consider taking the position but delayed a decision over night. Mr. Jacobs did the same. Ultimately, none of the remaining five LMRs volunteered to take the Telemarketing Representative position. Mr. Sumner was required to select one of the five LMRs (Ms. Chason, Mr. Edwards, Ms. Gray, Mr. Jacobs or Mr. Kissinger) to be placed in the Telemarketing Representative position. Mr. Sumner decided that Mr. Jacobs should be reassigned/demoted to the Telemarketing Representative position. Mr. Jacobs was informed of the decision and was given the choice of accepting the Telemarketing Representative position with no reduction in salary or moving to Gainesville or Tampa as an LMR. Mr. Jacobs elected to take the Telemarketing Representative position so that he would not have to move. Mr. Jacobs was placed in the Telemarketing Representative position and continued to be paid the same salary he was receiving as an LMR. Mr. Jacobs received no reduction in pay or benefits. The Basis for Mr. Sumner's Decision to Reassign/Demote Mr. Jacobs. Mr. Sumner's decision to place Mr. Jacobs in the Telemarketing Representative position was based on his perception of the performance of the four other remaining LMRs (after Ms. Silcox had agreed to take the Administrative Assistant position) under Mr. Sumner's supervision compared to Mr. Jacobs' performance. Mr. Sumner took into account the past performance of each of the five LMRs and their progress in the various positions they had held under Mr. Sumner's supervision. Mr. Sumner did not base his decision on or consider seniority. Mr. Sumner selected Mr. Jacobs based upon the decline in Mr. Jacobs' performance since being promoted to LSR II, and his perception of the relatively slower development of Mr. Jacobs' abilities as an LSR II when compared with the other LMRs. All of the LMRs (while employed in the various positions under Mr. Sumner's supervision) had experienced problems in their performance and had been criticized by Mr. Sumner. There were no exceptions. Except for Mr. Jacobs, all of the LMRs had received consistently high evaluations of "Exceeds at Least One Standard" or "Exceeds Most Standards" each year while under Mr. Sumner's supervision. These ratings were based on their overall performance and the evidence failed to prove that the ratings were not reasonable. Only the rating given to Mr. Jacobs for his last evaluation period prior to his assignment to the Telemarketing Representative position had declined below those ratings. Two of the five LMRs had held LSR positions for a shorter period of time than Mr. Jacobs: Mr. Edwards: Storekeeper from 1987 to April of 1988, LSR I from April of 1988 to January of 1992, and LMR from January of 1992; and Mr. Kissinger: Storekeeper from May of 1988 to August of 1990, LSR I from August of 1990 to January of 1992 and LMR from January of 1992. Mr. Edwards and and Mr. Kissinger were not selected to be placed in the Telemarketing Representative position because of their consistently high evaluations and because they had both continued to progress and improve in their performance consistently after being employed in the District. Mr. Jacobs had not continued to progress and improve. The Impact of Routes on Mr. Jacobs' Performance. In the fall of 1987, the District was divided into three geographic areas (hereinafter referred to as "Routes"), by Mr. Sumner. Each LSR II was assigned to one of the three Routes and was responsible for servicing the retailers located therein. Each of the three Routes contained a part of Panama City, the largest city in the District, and a part of the rural areas of the District. Ms. Doll was assigned the eastern portion of the District, Ms. Gray was assigned the western portion and Ms. Chason was assigned the rest. Mr. Jacobs was assigned to work with Ms. Chason on the Route assigned to her. When Ms. Doll left the District and Mr. Jacobs was temporarily assigned to replace her, Mr. Jacobs took over Ms. Doll's Route plus a part of Ms. Gray's Route. Mr. Jacobs satisfactorily performed his duties as an LSR I on Ms. Chason's Route and while temporarily replacing Ms. Doll as an LSR II on Ms. Doll's Route. These Routes did not adversely affect Mr. Jacobs' performance. In September of 1990, when Mr. Jacobs was permanently promoted to LSR II and Ms. Davis was promoted to an LSR II position, the Routes were restructured by Mr. Sumner. Mr. Jacobs continued to serve the eastern portion of the District previously serviced by Ms. Doll and by him as a temporary LSR II, Ms. Chason was assigned Panama City Beach and the accounts along part of the Florida border with Georgia and Alabama, and Ms. Davis was assigned the western portion of the District. All three Routes continued to include portions of the greater Panama City area (Lynn Haven, Parker, Callaway and Springfield). The accounts on Panama City Beach were more productive during the summer months. The accounts along the Florida border also tended to be more productive. Ms. Chason was assigned these more productive accounts because she had evidenced greater skills in sales/marketing than the other LSR IIs. Not because she was white. The Routes were not totally restructured again until the January, 1992 consolidation of LSR positions. Prior to January of 1992 changes were, however, made to the Routes. These changes were made because of frequent changes in retailers participating in lottery sales and, on a few occasions, when Mr. Sumner was requested to make changes by the LSR IIs, including Mr. Jacobs. The Route assigned to Mr. Jacobs in September of 1990 was more rural than the other Routes and Mr. Jacobs was required, on average, to drive more miles than the other LSR IIs. The last relevant restructuring of Routes took place in January of 1992 after the consolidation of LSR I and II positions. At that time, the three Routes served by the LSR IIs were divided essentially in half, creating six Routes, one for each LMR. Each LSR II was allowed to select the half of the Route he or she was previously responsible for and the other half was assigned to the LSR I that had previously been assigned to the Route. Immediately prior to January of 1992, Mr. Jacobs was assisted by Ms. Silcox. When their Route was divided, Mr. Jacobs selected the half of the Route he desired and Ms. Silcox was assigned the other half. The evidence failed to prove that Mr. Sumner's evaluation of Mr. Jacobs was unfairly affected by the Route he was assigned to or that Mr. Sumner treated Mr. Jacobs unfairly in the assignment of Routes based upon his race. Sales figures contained on evaluations performed by Mr. Sumner were not always seen by Mr. Sumner when he completed an evaluation. In at least one year, those figures were added to the evaluation after Mr. Sumner completed his part of the evaluation. The suggestion that Mr. Jacobs' Route adversely impacted his evaluations was contradicted by the fact that for three years, Mr. Jacobs and Ms. Chason, who allegedly had the most favorable Route, received the same overall evaluation: "Exceeds at Least One Standard." In the first full year that Mr. Jacobs served as an LSR II, although his overall evaluation declined, the "Other Category," which included Route statistics, on Mr. Jacobs' evaluation was rated "Exceeds at Least One Standard." The suggestion that some LSRs were able to dictate their Routes was also not supported by the evidence. All of the LSRs had some input into the Routes that they handled. For example, Mr. Jacobs and Ms. Davis both requested the assignment of retailers near the Florida border. These requests were honored by Mr. Sumner. Mr. Jacobs was assigned Bascom and Malone, Florida, and Ms. Davis was assigned Campbellton, Florida. Mr. Jacobs accepted the new accounts despite the fact that the mileage he was required to travel increased. All of the LSRs were also allowed to choose between half of their prior Routes in 1992. These incidents did not prove that white LSRs were allowed to select their Routes. Sales generated in each Route had minimal impact on Mr. Sumner's evaluation of Mr. Jacobs or the other LSR's performance. No sales quotas were established and LSRs were not compensated on the basis of their sales during the period of time relevant to this proceeding. While sales had to be taken into account to some extent, performance was evaluated based upon each person's general marketing skills and efforts. Sales goals were established during the summer of 1991 by the new sales director. Each LSR was assigned a sales quota based upon a percentage increase from their last year sales figures. If an LSR failed to meet the quota, there was no consequence. Employees were commended if they did achieve their quota. LSRs were given quotas of new retailers they were to attempt to add each month. All LSR Is were given a quota of one new retailer and all LSR IIs were given a quota of two new retailers. Recruitment of retailers was not necessarily a product of the length of a Route. See Petitioner's exhibit 36. The evidence failed to prove that the Routes assigned to Mr. Jacobs adversely impacted Mr. Sumner's evaluation of his ability to recruit. Based upon the weight of the evidence, Mr. Jacobs failed to prove that the assignment of Routes was made in a discriminatory manner or that Mr. Jacobs' Routes adversely affected his performance because of difficulty caused by the Routes in meeting sales or recruitment quotas. Leave Policies. Mr. Sumner's policy concerning requests for annual leave made was that District employees should request approval at least two weeks in advance of when the employee intended to be off work. The two week notice policy was well known to all employees, including Mr. Jacobs. Mr. Sumner issued several memoranda setting out the policy. Mr. Sumner also notified employees that a telephone call was all that was necessary to take annual leave if there was an emergency. Mr. Sumner's policy concerning giving two weeks notice was not strictly adhered to or enforced. Mr. Sumner recognized there were reasonable circumstances when an employee was not able to request permission to take annual leave two weeks or more in advance. As long as an employee made a reasonable effort and the operation of District would not, in Mr. Sumner's opinion, be harmed by an employee's absence, Mr. Sumner approved leave even when two weeks notice was not given. The two week notice requirement was waived for virtually every employee, including Mr. Jacobs. On one occasion Mr. Sumner denied a request by Mr. Jacobs for annual leave. The evidence failed to prove that Mr. Sumner denied the request without just cause or based upon Mr. Jacobs' race. During the period between April of 1990 and April of 1992, Mr. Sumner approved approximately 400 hours of leave, annual and sick, for Mr. Jacobs. The evidence failed to prove that Mr. Jacobs was treated differently because of his race with regard to leave requests he made while employed by the Department. Part of the leave taken by Mr. Jacobs was attributable to the illness of his two foster care infants. Mr. Jacobs had taken time off on numerous occasions due to their poor health. Mr. Jacobs had been required to take annual leave, rather than sick leave, for the infants because the Department's personnel office had informed Mr. Sumner and Mr. Jacobs that State leave policies did not allow sick leave for foster care children. Mr. Sumner did not strictly enforce the notice policy for annual leave when Mr. Jacobs took annual leave for the foster care children. Nor did Mr. Sumner give Mr. Jacobs any reasonable reason to expect that Mr. Sumner would not approve the use of annual leave when the children were ill because Mr. Jacobs had not given two weeks advance notice. Nor was it reasonable for Mr. Jacobs to not realize that a simple telephone call to the office to inform the office of an emergency with the children would not be sufficient. Between March 17, 1992 and March 18, 1992, one of Mr. Jacobs' foster care infants became extremely ill. This was not the first time that the child had experienced the type of problem experienced at that time, but the problem was more severe. Although Mr. Jacobs could have simply telephoned the office the next morning and reported that there was an emergency, Mr. Jacobs reported to work. Mrs. Jacobs took the infant to a hospital where it was to be determined whether the child would be admitted to the hospital. After arriving at the office, Mr. Jacobs, who was visibly shaken, spoke with Mr. Sumner. What took place during that discussion was disputed by Mr. Jacobs and Mr. Sumner. Mr. Jacobs testified that Mr. Sumner was clearly informed that he wanted to go to the hospital to be with the child but was told he had to attend to his Route first. Mr. Sumner testified that Mr. Jacobs did not specifically request time off, that he had indicated he might be require to go to the hospital sometime during the day, and that Mr. Sumner told Mr. Jacobs to service his five biggest accounts scheduled for that day and then take the rest of the day off even if it was not necessary for him to go to the hospital. Shortly after the conversation between Mr. Sumner and Mr. Jacobs, and after Mr. Jacobs had left on his Route, the child died. Mr. Jacobs was informed at his first stop and he left for the hospital. Based upon the weight of the evidence, it is concluded that Mr. Jacobs, who was tired from the events of the night before and under a great deal of stress because of his concern for the child, was not denied approval of leave by Mr. Sumner to immediately go to the hospital and was not told that he had to complete his Route. At most, there appears to have been an unfortunate miscommunication between Mr. Jacobs and Mr. Sumner about the urgency of the situation. Mr. Sumner's belief that the matter was not as urgent as it turned out to be was supported by the fact that the infants had experienced similar difficulties in the past; the fact that the child had not been taken to the hospital earlier; the fact that Mr. Jacobs had come to the office that morning instead of telephoning; and the fact that Mr. Mr. Jacobs did not insist on going to the hospital immediately. Assignment of Department Vehicles. LSRs were assigned Department vehicles, (vans) for use in servicing Routes. In approximately November of 1987, the District was temporarily assigned one less van than needed. Mr. Jacobs volunteered to drive his personal vehicle, for which he was reimbursed by the State. Mr. Jacobs drove his personal vehicle until approximately December 24, 1987, when he received a new van. Other LSRs were required to use their personal vehicles on occasion, for which they were also reimbursed by the State. Pursuant to a replacement schedule instituted by the Department, 1/3 of all vans were to be replaced every year. In this way, every van would be used a maximum of three years. This schedule was based upon estimates of the time necessary for vans to have accumulated sufficient mileage (80,000 miles) to warrant replacement. To insure that a van was ready for replacement at the end of three years, it was Department policy to assign vans with lower mileage after a year or two years use to high mileage drivers. In November of 1991, five vans in the District exceeded 80,000 miles and were to be replaced with new vans. The District, however, only received three new vans. The other two vans were replaced with two lower mileage vans scheduled to be replaced the next fiscal year. Consistent with Department policy Mr. Sumner was suppose to assign the new vans to persons who drove less miles and the older vans should have been assigned to persons who drove greater miles. In November of 1991, the mileage driven in the previous year by each LSR was as follows: Silcox 16,327 miles Chason 16,426 miles Davis 21,000 miles Jacobs 23,717 miles Edwards 24,000 miles Kissinger 30,000 miles Pursuant to Department policy, the new vans should have been assigned to Ms. Silcox, Ms. Chason and Ms. Davis. The new vans, however, were assigned to Ms. Chason, Ms. Davis and Mr. Kissinger. The vans assigned to Ms. Chason and Ms. Davis were assigned consistent with Department policy. Ms. Silcox, Mr. Jacobs and Mr. Edwards were assigned older vans. The assignment of an older van to Ms. Silcox was inconsistent with Department policy. The assignment of older vans with less mileage to Mr. Jacobs and Mr. Edwards was consistent with Department policy. Had Department policy been followed completely and the third new van had been assigned to Ms. Silcox and not Mr. Kissinger, Mr. Jacobs would still not have received a new van. Mr. Sumner asked Mr. Kissinger and Mr. Edwards if they would drive to another district to pick up two vans. Mr. Sumner indicated that one of the new vans would be assigned to one of them if they agreed. They agreed, and Mr. Sumner awarded a new van to Mr. Kissinger. Mr. Sumner did not give Mr. Jacobs or Ms. Wilcox the opportunity to pick up the two vans located in another district. Marketing Promotions. LSRs, as part of their marketing responsibility, could conduct various types of promotions at retailers intended to increase sales of lottery tickets. LSRs were expected to conduct promotions. Quotas were assigned to each LSR II. They were expected to conduct one promotion per month. Promotions generally did not require much of a financial investment by the retailer and smaller retailers were generally as interested in conducting promotions as larger retailers. The evidence failed to prove that the Route assigned to Mr. Jacobs adversely affected his ability to conduct promotions. The evidence also failed to prove that Mr. Sumner's evaluations of Mr. Jacobs' performance while supervised by Mr. Sumner were adversely impacted by a lack of promotions caused by Mr. Jacobs' Route. Mr. Sumner believed that Mr. Jacobs performed a sufficient quantity of promotions but that he was slow about doing them. Conducting some promotions required overtime. Overtime, however, was required to be requested and approved in writing. Approval of overtime came from the Department and not Mr. Sumner. Mr. Jacobs was aware of this requirement. In December of 1991, Mr. Jacobs requested permission to conduct a promotion which involved the giving away of coffee mugs with the Department logo on them to each customer that bought a minimum number of lottery tickets. This promotion did not involve overtime and none was requested by Mr. Jacobs. Mr. Jacobs claimed that the promotion was changed to one that would require overtime, and that he was told by Mr. Sumner that approval would be obtained from the Department. The weight of the evidence failed to support this claim. In August of 1991, Ms. Chason sought approval to conduct a promotion at a seafood festival to be held in October of that year. The festival required overtime for two employees plus Ms. Chason. Ms. Chason asked for volunteers and accepted the first two persons. Mr. Jacobs did not volunteer and, consequently, was not one of the two persons selected by Ms. Chason. The evidence failed to prove that Mr. Sumner was involved in the failure to select Mr. Jacobs, that the failure to select Mr. Jacobs was somehow unfair or that Mr. Jacobs was not selected by Ms. Chason because of his race. Mr. Jacobs also claimed that he was not given credit for two new retailers he obtained because the forms signing up the retailers were lost. The evidence, however, proved that, although the retailers were lost as Department customers, Mr. Jacobs was given credit for signing them up by Mr. Sumner. The evidence failed to prove that Mr. Sumner was involved with the loss of the forms signing up the retailers or that they were lost to cause Mr. Jacobs to fail to meet his quota for new retailers. The evidence failed to prove that Mr. Sumner or the Department awarded bonuses or that Mr. Jacobs was denied bonuses because of his race. Miscellaneous Charges. The evidence failed to prove that Mr. Jacobs was denied training provided to white employees because of his race. The evidence failed to prove that Mr. Jacobs was denied the use of new equipment provided to white employees because of his race. Mr. Jacobs' Charge of Discrimination. Mr. Jacobs filed a Charge of Discrimination against the Department with the Florida Commission on Human Relations. Mr. Jacbos alleged that he had been discriminated against based upon his race. On March 29, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Mr. Jacobs filed a Petition for Relief with the Commission requesting a formal administrative hearing. In the Petition for Relief filed with the Commission Mr. Jacobs alleged, in response to questions 3, 4 and 5 on the Petition for Relief, the following: Respondent has violated the Human Rights Act of 1977, as amended, in the manner specifically described below: My supervisor, Steve Sumner has systematically and intentionally denied me equal opportunities because of my race (black) for training, compensation, use of new equipment, time off from work, leave and retention and advancement in my position as an LSR. See the attached charge of discrimination incorporated herein. The disputed issues of material fact, if any, are as listed below: Mr. Sumner allowed every other LSR (all who are white) to pick their own routes which were the best routes, leaving the most difficult to me. He has also allowed other LSR's to work for bonuses during promotions but has not allowed me to do so. Mr. Sumner has misplaced some new applications for lottery retailers that I obtained so that my quotas of achievement would be lower. Mr. Sumner retained a coworker in the LSR position when he had been promoted to LSR long after me. Mr. Sumner denied my taking leave when one of my foster children was critically ill and the child died while I was at work. The ultimate facts alleged and entitlement to relief are as listed below: I wish to have a formal post-investigative proceeding. I wish to be reinstated in my LSR position with seniority back to the date of my demotion or receive adequate compensation for the harms I have suffered and reasonable attorneys fees and costs. I am a member of a protected class and Mr. Sumner has singled me out for arbitrary and negative treatment based on my race (black). All the responses Mr. Sumner has provided are pretextual or simply not true. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Mr. Jacobs. At the commencement of the proceeding, Mr. Jacobs indicated that he was seeking a "general injunction", an apology from the Department, monetary compensation for damages in the form of payment for pain and suffering, attorney fees and reinstatement as an LSR II. Alleged Race Discrimination. The evidence in this case failed to prove that any action of Mr. Sumner or the Department was based upon Mr. Jacobs' race. He was not held to any standard or requirement based upon his race and he was not treated in a manner different from the treatment afforded employees of other races. The evidence proved that Mr. Sumner had hired Mr. Jacobs, that Mr. Sumner had given him high evaluations for the first three years he worked, he had temporarily promoted Mr. Jacobs to a higher position with a temporary increase in pay not afforded white employees, he had promoted him with a permanent increase in pay which made Mr. Jacobs the highest paid employee in his class at the District, and he had assisted Mr. Jacobs in insuring that he was qualified for the promotion. Only after Mr. Jacobs' performance began to decline did Mr. Sumner take actions which were somewhat adverse to Mr. Jacobs. Those actions did not take place until after three years of working together. The reasons for taking those actions were reasonably explained by Mr. Sumner and the Department. Mr. Jacobs was unable to explain the foundation for his belief that Mr. Sumner began treating him differently in 1991 on the basis of his race.
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
