96-004216 Gussie Mae Dempson vs. Department Of Banking And Finance, Department Of Revenue, And Department Of Lottery Status: Closed Recommended Order on Wednesday, November 26, 1997.

Summary: Petitioner's lottery prize winnings to be paid to Department of Children and Family Services for debt owed by Petitioner to the agency.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GUSSIE MAE DEMPSON, )

)

Petitioner, )

)

vs. ) Case No. 96-4216

)

DEPARTMENT OF BANKING AND )

FINANCE; DEPARTMENT OF CHILDREN ) 1

AND FAMILY SERVICES; and )

DEPARTMENT OF THE LOTTERY, )

)

Respondents. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on August 15, 1997, by video teleconference at Miami, Florida,

before Errol H. Powell, a duly designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gussie Mae Dempson, pro se

631 Southwest 12th Avenue

Homestead, Florida 33030

For Respondents: Josephine A. Schultz

Chief Counsel

Department of Banking and Finance

Fletcher Building, Suite 526

101 East Gaines Street

Tallahassee, Florida 32399-0350

Leah M. Pollard, Esquire

Department of Children and

Family Services

401 NW 2nd Avenue, N-1014

Miami, Florida 33128

Louisa Warren, Esquire

Department of the Lottery

250 Marriott Drive

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner should

receive her lottery prize winnings of $2,500.

PRELIMINARY STATEMENT

By letter dated July 5, 1996, the Department of Banking and

Finance, Office of the Comptroller (Banking and Finance) notified

Gussie Mae Dempson (Ms. Dempson) that, among other things, (a)

the Department of the Lottery (Lottery) had transmitted her

lottery prize winnings of $2,500 to Banking and Finance; (b) the

Lottery made the transfer because the Department of Health and

Rehabilitative Services, now the Department of Children and

Family Services, (Children and Family Services) had notified the

Lottery that she owed $4,622 to Children and Family Services; and

(c) Banking and Finance would apply the entire amount of her

prize winnings to her unpaid debt to Children and Family

Services. By letter dated July 9, 1996, Ms. Dempson disputed

that she owed $4,622 to Children and Family Services and

requested a formal hearing. On September 6, 1996, this matter

was referred to the Division of Administrative Hearings.

At hearing Ms. Dempson testified in her own behalf and

entered two exhibits into evidence. Children and Family Services

presented the testimony of one witness and entered seven exhibits

into evidence. Banking and Finance presented no witnesses and

entered one exhibit into evidence. The Lottery presented no

witnesses and entered no exhibits into evidence.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was set

for more than ten days following the filing of the transcript.

Only Children and Family Services filed a post-hearing

submission, and that submittal has been duly considered.

FINDINGS OF FACT

1. On June 17, 1996, Gussie Mae Dempson (Ms. Dempson) won a

lottery prize in the amount of $2,500.

2. By letter dated June 18, 1996, the Department of Health

and Rehabilitative Services, now the Department of Children and

Family Services (Children and Family Services) notified the

Department of the Lottery (Lottery) that, among other things,

Ms. Dempson was indebted to Children and Family Services in the

amount of $4,622, as of June 18, 1996.

3. Due to being notified of the debt owed by Ms. Dempson to

Children and Family Services, the Lottery forwarded Ms. Dempson's

lottery prize winnings to the Department of Banking and Finance,

Office of the Comptroller (Banking and Finance).

4. By letter dated July 5, 1996, the Banking and Finance

notified Ms. Dempson that, among other things, her entire lottery

prize winnings were being withheld due to the debt owed by her to

Children and Family Services and that all of the winnings would

be applied to the debt.

5. The debt owed by Ms. Dempson to Children and Family

Services originates from two accounts for Aid to Families with

Dependent Children (AFDC) and two accounts for Food Stamps.

AFDC Account No. 31-01057-52

6. Ms. Dempson was determined eligible for AFDC by Children

and Family Services on AFDC Account No. 31-01057-52. She

received AFDC for numerous months, including the months of

October 1976, December 1976, February 1997 through July 1997, and

January 1978, being issued allotments ranging from $119 to $88

per month.

7. After issuance of the allotments, a review by Children

and Family Services determined that Ms. Dempson had received an

over-issuance through "client error" in the amount of $753.

8. For October 1976, Ms. Dempson received $119, but was

eligible for $0, resulting in an over-issuance of $119.

9. For December 1976, Ms. Dempson received $88, but was

eligible for $78, resulting in an over-issuance of $10.

10. For February, March, April, and May 1977, Ms. Dempson

received $88 per month, but was eligible for $0, resulting in an

over-issuance of $88 per month or $352.

11. For July 1977, Ms. Dempson received $92, but was

eligible for $0, resulting in an over-issuance of $92.

12. For January 1978, Ms. Dempson received $92, but was

eligible for $0, resulting in an over-issuance of $92.

13. Ms. Dempson was notified of the overpayment, her right

to dispute the overpayment, and her responsibility for the

overpayment. She made repayments to Children and Family Services

from February 8, 1980 through April 20, 1981. Ms. Dempson's debt

to Children and Family Services on this account was reduced to

$333.

14. An inference is drawn and a finding is made that

Ms. Dempson did not dispute the over-issuance of $753 in AFDC.

AFDC Account No. 31-01057-53

15. Ms. Dempson was subsequently determined eligible to

receive AFDC by Children and Family Services on AFDC Account No.

31-01057-53 for numerous months, including the months of

April 1992 through December 1992. She received allotments of

$180 per month from April through November, and two allotments in

December for $95 and $180.

16. After issuance of the allotments, a review by Children

and Family Services determined that Ms. Dempson had received an

over-issuance through "agency error" in the amount of $1,715.

17. For the months of March 1992 through November 1992,

Ms. Dempson received $1,620, but was eligible for $0, resulting

in an over-issuance of $1,620. In December 1992, Ms. Dempson

received $275, but was eligible for $180, resulting in an over-

issuance of $95. As a result, Ms. Dempson's total over-issuance

for March 1992 through December 1992 was $1,715.

18. By letter dated January 28, 1994, Children and Family

Services notified Ms. Dempson, among other things, of the

overpayment, her right to dispute the overpayment, and her

responsibility of repayment. The letter was mailed to the last

address provided by Ms. Dempson. No response was received by

Children and Family Services.

19. By a second letter dated April 4, 1994, Children and

Family Services notified Ms. Dempson, among other things, of the

overpayment and of the overpayment being a debt for which she was

responsible for paying. The letter was mailed to the same

address as the first letter in that no change in address had been

provided to Children and Family Services by Ms. Dempson. Again,

no response was received.

20. An inference is drawn and a finding is made that

Ms. Dempson did not dispute the over-issuance of $1,715 in AFDC.

21. Since the notification letters, Children and Family

Services has recouped some of the debt from subsequent AFDC

checks to Ms. Dempson.

22. Ms. Dempson does not recall receiving and endorsing the

AFDC checks for the months of March 1992 through December 1992,

and, therefore, denies receiving and endorsing the checks. The

evidence is sufficient to support a finding and a finding is made

that Ms. Dempson received and endorsed the checks. 2

Food Stamp Account No. 31-01057-42

23. Ms. Dempson was determined eligible for Food Stamps by

Children and Family Services on Food Stamp Account No. 31-01057-

42. She received Food Stamps for numerous months, including the

months of February 1991 through June 1991, November 1991 through

January 1992, and October 1992 through December 1992. She

received allotments ranging from $143 to $221 per month.

24. After issuance of the allotments, a review by Children

and Family Services determined that Ms. Dempson had received an

over-issuance through "client error" in the amount of $1,278.

Two separate instances of over-issuance had occurred on this

account. One instance resulted in an over-issuance of $935 for

the months of February 1991 through June 1991, as well as the

months of November 1991 through January 1992. Another instance

resulted in an over-issuance of $343 for the months of October

1992 through December 1992.

25. For February 1991, Ms. Dempson received $201 in Food

Stamps, but was eligible for $90, resulting in an over-issuance

of $111.

26. For March 1991, Ms. Dempson received $201 in Food

Stamps, but was eligible for $83, resulting in an over-issuance

of $118.

27. For April 1991, Ms. Dempson received $201 in Food

Stamps, but was eligible for $118, resulting in an over-issuance

of $83.

28. For May 1991, Ms. Dempson received $201 in Food Stamps,

but was eligible for $32, resulting in an over-issuance of $169.

29. For June 1991, Ms. Dempson received $201 in Food

Stamps, but was eligible for $83, resulting in an over-issuance

of $118.

30. For November 1991, Ms. Dempson received $221 in Food

Stamps, but was eligible for $77, resulting in an over-issuance

of $144.

31. For December 1991, Ms. Dempson received $221 in Food

Stamps, but was eligible for $136, resulting in an over-issuance

of $85.

32. For January 1992, Ms. Dempson received $213 in Food

Stamps, but was eligible for $106, resulting in an over-issuance

of $107.

33. For October 1992, Ms. Dempson received $143 in Food

Stamps, but was eligible for $0, resulting in an over-issuance of

$143.

34. For November 1992, Ms. Dempson received $143 in Food

Stamps, but was eligible for $33, resulting in an over-issuance

of $110.

35. For December 1992, Ms. Dempson received $143 in Food

Stamps, but was eligible for $53, resulting in an over-issuance

of $90.

36. Ms. Dempson was notified of the over-issuance, her

right to dispute the over-issuance, and her responsibility for

repayment. Through automatic deductions in her Food Stamps,

Ms. Dempson has been repaying the over-issuance since March 1994.

The automatic deduction began at $11 a month in her Food Stamp

allotment until June 1994 when the deduction became and is

currently $10 a month.

37. An inference is drawn and a finding is made that

Ms. Dempson did not dispute the over-issuance of $1,278 in Food

Stamps.

Food Stamp Account No. 31-01057-43

38. Ms. Dempson was determined eligible for Food Stamps by

Children and Family Services on Food Stamp Account No. 31-01057-

43. She received Food Stamps for numerous months, including the

months of August 1992, October 1992 through December 1992, and

January 1993 through June 1993, being issued allotments ranging

from $203 to $292 per month.

39. After issuance of the allotments, a review by Children

and Family Services determined that Ms. Dempson had received an

over-issuance through "agency error" in the amount of $1,692.

40. For August 1992, Ms. Dempson received $240 in Food

Stamps, but was eligible for $0, resulting in an over-issuance of

$240.

41. For October 1992, Ms. Dempson received $262 in Food

Stamps, but was eligible for $143, resulting in an over-issuance

of $119.

42. For November 1992, Ms. Dempson received $262 in Food

Stamps, but was eligible for $143, resulting in an over-issuance

of $119.

43. For December 1992, Ms. Dempson received $262 in Food

Stamps, but was eligible for $143, resulting in an over-issuance

of $119.

44. For January 1993, Ms. Dempson received $292 in Food

Stamps, but was eligible for $149, resulting in an over-issuance

of $143.

45. For February 1993, Ms. Dempson received $292 in Food

Stamps, but was eligible for $97, resulting in an over-issuance

of $195.

46. For March 1993, Ms. Dempson received $292 in Food

Stamps, but was eligible for $109, resulting in an over-issuance

of $183.

47. For April 1993, Ms. Dempson received $203 in Food

Stamps, but was eligible for $10, resulting in an over-issuance

of $193.

48. For May 1993, Ms. Dempson received $203 in Food Stamps,

but was eligible for $10, resulting in an over-issuance of $193.

49. For June 1993, Ms. Dempson received $203 in Food

Stamps, but was eligible for $15, resulting in an over-issuance

of $188.

50. By letter dated March 11, 1994, Children and Family

Services notified Ms. Dempson, among other things, of the over-

issuance, her right to dispute the over-issuance, and her

responsibility for repayment of the over-issuance. The letter

was mailed to the last address provided by Ms. Dempson. No

response was received by Children and Family Services.

51. An inference is drawn and a finding is made that

Ms. Dempson did not dispute the over-issuance of $1,692 in Food

Stamps.

Outstanding Debt

52. As of the date of the hearing, August 15, 1997, the

total amount of the debt owed by Ms. Dempson to Children and

Family Services was $4,473, representing AFDC Account No. 31-

01057-52 at $333, AFDC Account No. 31-01057-53 at $1,583, Food

Stamp Account No. 31-01057-42 at $865, and Food Stamp Account No.

31-01057-43 at $1,692.

CONCLUSIONS OF LAW

53. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes.

54. Section 24.115, Florida Statues, provides in pertinent

part:

(4) It is the responsibility of the

appropriate state agency and of the judicial

branch to identify to the department

[Department of the Lottery], in the form and

format prescribed by the department, persons

owing an outstanding debt to any state agency

or owing child support collected through a

court. Prior to the payment of a prize of

$600 or more to any claimant having such an

outstanding obligation, the department may

transmit the prize money to the Comptroller

who may authorize payment of the balance to

the prize winner after deduction of the debt.

If a prize winner owes multiple debts subject

to offset under this subsection and the prize

is insufficient to cover all such debts, the

amount of the prize shall be applied in the

manner that the Comptroller deems

appropriate.

55. Children and Family Services is authorized to collect

the over-issuance of AFDC and Food Stamps, regardless of "client

error" or "agency error," from the AFDC recipient and the Food

Stamp recipient, respectively. Rule 65A-1.900, Florida

Administrative Code, formerly Rule 10C-1.900, Florida

Administrative Code.

56. The general rule is that "the burden of proof, apart

from statute, is on the party asserting the affirmative of an

issue before an administrative tribunal." Florida Department of

Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778, 788 (Fla.

1st DCA 1981). Here, the Department of Children and Family

Services, the Department of the Lottery, and the Department of

Banking and Finance, Office of the Comptroller are asserting the

affirmative and, therefore, have the burden of proof.

57. The evidence demonstrates that Ms. Dempson is a

claimant of lottery prize winnings exceeding $600.

58. Moreover, the evidence demonstrates that Ms. Dempson

has an outstanding indebtedness to the Department of Children and

Families, as of August 15, 1997, in the amount of $4,473. Her

indebtedness exceeds the prize winnings.

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 enter a final order providing for

payment to the Department of Children and Family Services of the

lottery prize winnings of $2,500 claimed by Gussie Mae Dempson.

DONE AND ENTERED this 26th day of November, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of November, 1997.

ENDNOTES

1/ Department of Children and Family Services is substituted for

the Department of Health and Rehabilitative Services as a party.

Department of Children and Family Services is a newly-created

agency pursuant to Section 20.19, Florida Statutes.

2/ Even though the evidence presented by Ms. Dempson raised

questions, it was insufficient to support a finding that she

neither received nor endorsed the checks.

COPIES FURNISHED:

Gussie Mae Dempson, pro se

631 Southwest 12th Avenue

Homestead, Florida 33030

Josephine A. Schultz, Chief Counsel

Department of Banking and Finance

Suite 526, The Fletcher Building

101 East Gaines Street

Tallahassee, Florida 32399-0350

Leah Pollard, Esquire

Department of Children and Families

401 Northwest 2nd Avenue, Room N-1014

Miami, Florida 33128

Louisa Warren, Senior Attorney

Department of the Lottery

250 Marriott Drive

Tallahassee, Florida 32399

Harry Hooper, General Counsel

Department of Banking and Finance

The Capitol, Plaza Level

Room 1302

Tallahassee, Florida 32399-0350

Gregory D. Venz, Agency Clerk

Department of Children and Family Services

1317 Winewood Boulevard

Building Two, Room 204

Tallahassee, Florida 32399-0700

Richard A. Doran, General Counsel

Department of Children and Family Services

1317 Winewood Boulevard

Building Two, Room 204

Tallahassee, Florida 32399-0700

Ken Hart, General Counsel

Department of the Lottery

250 Marriott Drive

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.