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.


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8GUSSIE MAE DEMPSON, )

12)

13Petitioner, )

15)

16vs. ) Case No. 96-4216

21)

22DEPARTMENT OF BANKING AND )

27FINANCE; DEPARTMENT OF CHILDREN ) 1

33AND FAMILY SERVICES; and )

38DEPARTMENT OF THE LOTTERY, )

43)

44Respondents. )

46________________________________)

47RECOMMENDED ORDER

49Pursuant to notice, a formal hearing was held in this case

60on August 15, 1997, by video teleconference at Miami, Florida,

70before Errol H. Powell, a duly designated Administrative Law

79Judge of the Division of Administrative Hearings.

86APPEARANCES

87For Petitioner: Gussie Mae Dempson, pro se

94631 Southwest 12th Avenue

98Homestead, Florida 33030

101For Respondents: Josephine A. Schultz

106Chief Counsel

108Department of Banking and Finance

113Fletcher Building, Suite 526

117101 East Gaines Street

121Tallahassee, Florida 32399-0350

124Leah M. Pollard, Esquire

128Department of Children and

132Family Services

134401 NW 2nd Avenue, N-1014

139Miami, Florida 33128

142Louisa Warren, Esquire

145Department of the Lottery

149250 Marriott Drive

152Tallahassee, Florida 32399

155STATEMENT OF THE ISSUE

159The issue for determination is whether Petitioner should

167receive her lottery prize winnings of $2,500.

175PRELIMINARY STATEMENT

177By letter dated July 5, 1996, the Department of Banking and

188Finance, Office of the Comptroller (Banking and Finance) notified

197Gussie Mae Dempson (Ms. Dempson) that, among other things, (a)

207the Department of the Lottery (Lottery) had transmitted her

216lottery prize winnings of $2,500 to Banking and Finance; (b) the

228Lottery made the transfer because the Department of Health and

238Rehabilitative Services, now the Department of Children and

246Family Services, (Children and Family Services) had notified the

255Lottery that she owed $4,622 to Children and Family Services; and

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

278prize winnings to her unpaid debt to Children and Family

288Services. By letter dated July 9, 1996, Ms. Dempson disputed

298that she owed $4,622 to Children and Family Services and

309requested a formal hearing. On September 6, 1996, this matter

319was referred to the Division of Administrative Hearings.

327At hearing Ms. Dempson testified in her own behalf and

337entered two exhibits into evidence. Children and Family Services

346presented the testimony of one witness and entered seven exhibits

356into evidence. Banking and Finance presented no witnesses and

365entered one exhibit into evidence. The Lottery presented no

374witnesses and entered no exhibits into evidence.

381A transcript of the hearing was ordered. At the request of

392the parties, the time for filing post-hearing submissions was set

402for more than ten days following the filing of the transcript.

413Only Children and Family Services filed a post-hearing

421submission, and that submittal has been duly considered.

429FINDINGS OF FACT

4321. On June 17, 1996, Gussie Mae Dempson (Ms. Dempson) won a

444lottery prize in the amount of $2,500.

4522. By letter dated June 18, 1996, the Department of Health

463and Rehabilitative Services, now the Department of Children and

472Family Services (Children and Family Services) notified the

480Department of the Lottery (Lottery) that, among other things,

489Ms. Dempson was indebted to Children and Family Services in the

500amount of $4,622, as of June 18, 1996.

5093. Due to being notified of the debt owed by Ms. Dempson to

522Children and Family Services, the Lottery forwarded Ms. Dempson's

531lottery prize winnings to the Department of Banking and Finance,

541Office of the Comptroller (Banking and Finance).

5484. By letter dated July 5, 1996, the Banking and Finance

559notified Ms. Dempson that, among other things, her entire lottery

569prize winnings were being withheld due to the debt owed by her to

582Children and Family Services and that all of the winnings would

593be applied to the debt.

5985. The debt owed by Ms. Dempson to Children and Family

609Services originates from two accounts for Aid to Families with

619Dependent Children (AFDC) and two accounts for Food Stamps.

628AFDC Account No. 31-01057-52

6326. Ms. Dempson was determined eligible for AFDC by Children

642and Family Services on AFDC Account No. 31-01057-52. She

651received AFDC for numerous months, including the months of

660October 1976, December 1976, February 1997 through July 1997, and

670January 1978, being issued allotments ranging from $119 to $88

680per month.

6827. After issuance of the allotments, a review by Children

692and Family Services determined that Ms. Dempson had received an

702over-issuance through "client error" in the amount of $753.

7118. For October 1976, Ms. Dempson received $119, but was

721eligible for $0, resulting in an over-issuance of $119.

7309. For December 1976, Ms. Dempson received $88, but was

740eligible for $78, resulting in an over-issuance of $10.

74910. For February, March, April, and May 1977, Ms. Dempson

759received $88 per month, but was eligible for $0, resulting in an

771over-issuance of $88 per month or $352.

77811. For July 1977, Ms. Dempson received $92, but was

788eligible for $0, resulting in an over-issuance of $92.

79712. For January 1978, Ms. Dempson received $92, but was

807eligible for $0, resulting in an over-issuance of $92.

81613. Ms. Dempson was notified of the overpayment, her right

826to dispute the overpayment, and her responsibility for the

835overpayment. She made repayments to Children and Family Services

844from February 8, 1980 through April 20, 1981. Ms. Dempson's debt

855to Children and Family Services on this account was reduced to

866$333.

86714. An inference is drawn and a finding is made that

878Ms. Dempson did not dispute the over-issuance of $753 in AFDC.

889AFDC Account No. 31-01057-53

89315. Ms. Dempson was subsequently determined eligible to

901receive AFDC by Children and Family Services on AFDC Account No.

91231-01057-53 for numerous months, including the months of

920April 1992 through December 1992. She received allotments of

929$180 per month from April through November, and two allotments in

940December for $95 and $180.

94516. After issuance of the allotments, a review by Children

955and Family Services determined that Ms. Dempson had received an

965over-issuance through "agency error" in the amount of $1,715.

97517. For the months of March 1992 through November 1992,

985Ms. Dempson received $1,620, but was eligible for $0, resulting

996in an over-issuance of $1,620. In December 1992, Ms. Dempson

1007received $275, but was eligible for $180, resulting in an over-

1018issuance of $95. As a result, Ms. Dempson's total over-issuance

1028for March 1992 through December 1992 was $1,715.

103718. By letter dated January 28, 1994, Children and Family

1047Services notified Ms. Dempson, among other things, of the

1056overpayment, her right to dispute the overpayment, and her

1065responsibility of repayment. The letter was mailed to the last

1075address provided by Ms. Dempson. No response was received by

1085Children and Family Services.

108919. By a second letter dated April 4, 1994, Children and

1100Family Services notified Ms. Dempson, among other things, of the

1110overpayment and of the overpayment being a debt for which she was

1122responsible for paying. The letter was mailed to the same

1132address as the first letter in that no change in address had been

1145provided to Children and Family Services by Ms. Dempson. Again,

1155no response was received.

115920. An inference is drawn and a finding is made that

1170Ms. Dempson did not dispute the over-issuance of $1,715 in AFDC.

118221. Since the notification letters, Children and Family

1190Services has recouped some of the debt from subsequent AFDC

1200checks to Ms. Dempson.

120422. Ms. Dempson does not recall receiving and endorsing the

1214AFDC checks for the months of March 1992 through December 1992,

1225and, therefore, denies receiving and endorsing the checks. The

1234evidence is sufficient to support a finding and a finding is made

1246that Ms. Dempson received and endorsed the checks. 2

1255Food Stamp Account No. 31-01057-42

126023. Ms. Dempson was determined eligible for Food Stamps by

1270Children and Family Services on Food Stamp Account No. 31-01057-

128042. She received Food Stamps for numerous months, including the

1290months of February 1991 through June 1991, November 1991 through

1300January 1992, and October 1992 through December 1992. She

1309received allotments ranging from $143 to $221 per month.

131824. After issuance of the allotments, a review by Children

1328and Family Services determined that Ms. Dempson had received an

1338over-issuance through "client error" in the amount of $1,278.

1348Two separate instances of over-issuance had occurred on this

1357account. One instance resulted in an over-issuance of $935 for

1367the months of February 1991 through June 1991, as well as the

1379months of November 1991 through January 1992. Another instance

1388resulted in an over-issuance of $343 for the months of October

13991992 through December 1992.

140325. For February 1991, Ms. Dempson received $201 in Food

1413Stamps, but was eligible for $90, resulting in an over-issuance

1423of $111.

142526. For March 1991, Ms. Dempson received $201 in Food

1435Stamps, but was eligible for $83, resulting in an over-issuance

1445of $118.

144727. For April 1991, Ms. Dempson received $201 in Food

1457Stamps, but was eligible for $118, resulting in an over-issuance

1467of $83.

146928. For May 1991, Ms. Dempson received $201 in Food Stamps,

1480but was eligible for $32, resulting in an over-issuance of $169.

149129. For June 1991, Ms. Dempson received $201 in Food

1501Stamps, but was eligible for $83, resulting in an over-issuance

1511of $118.

151330. For November 1991, Ms. Dempson received $221 in Food

1523Stamps, but was eligible for $77, resulting in an over-issuance

1533of $144.

153531. For December 1991, Ms. Dempson received $221 in Food

1545Stamps, but was eligible for $136, resulting in an over-issuance

1555of $85.

155732. For January 1992, Ms. Dempson received $213 in Food

1567Stamps, but was eligible for $106, resulting in an over-issuance

1577of $107.

157933. For October 1992, Ms. Dempson received $143 in Food

1589Stamps, but was eligible for $0, resulting in an over-issuance of

1600$143.

160134. For November 1992, Ms. Dempson received $143 in Food

1611Stamps, but was eligible for $33, resulting in an over-issuance

1621of $110.

162335. For December 1992, Ms. Dempson received $143 in Food

1633Stamps, but was eligible for $53, resulting in an over-issuance

1643of $90.

164536. Ms. Dempson was notified of the over-issuance, her

1654right to dispute the over-issuance, and her responsibility for

1663repayment. Through automatic deductions in her Food Stamps,

1671Ms. Dempson has been repaying the over-issuance since March 1994.

1681The automatic deduction began at $11 a month in her Food Stamp

1693allotment until June 1994 when the deduction became and is

1703currently $10 a month.

170737. An inference is drawn and a finding is made that

1718Ms. Dempson did not dispute the over-issuance of $1,278 in Food

1730Stamps.

1731Food Stamp Account No. 31-01057-43

173638. Ms. Dempson was determined eligible for Food Stamps by

1746Children and Family Services on Food Stamp Account No. 31-01057-

175643. She received Food Stamps for numerous months, including the

1766months of August 1992, October 1992 through December 1992, and

1776January 1993 through June 1993, being issued allotments ranging

1785from $203 to $292 per month.

179139. After issuance of the allotments, a review by Children

1801and Family Services determined that Ms. Dempson had received an

1811over-issuance through "agency error" in the amount of $1,692.

182140. For August 1992, Ms. Dempson received $240 in Food

1831Stamps, but was eligible for $0, resulting in an over-issuance of

1842$240.

184341. For October 1992, Ms. Dempson received $262 in Food

1853Stamps, but was eligible for $143, resulting in an over-issuance

1863of $119.

186542. For November 1992, Ms. Dempson received $262 in Food

1875Stamps, but was eligible for $143, resulting in an over-issuance

1885of $119.

188743. For December 1992, Ms. Dempson received $262 in Food

1897Stamps, but was eligible for $143, resulting in an over-issuance

1907of $119.

190944. For January 1993, Ms. Dempson received $292 in Food

1919Stamps, but was eligible for $149, resulting in an over-issuance

1929of $143.

193145. For February 1993, Ms. Dempson received $292 in Food

1941Stamps, but was eligible for $97, resulting in an over-issuance

1951of $195.

195346. For March 1993, Ms. Dempson received $292 in Food

1963Stamps, but was eligible for $109, resulting in an over-issuance

1973of $183.

197547. For April 1993, Ms. Dempson received $203 in Food

1985Stamps, but was eligible for $10, resulting in an over-issuance

1995of $193.

199748. For May 1993, Ms. Dempson received $203 in Food Stamps,

2008but was eligible for $10, resulting in an over-issuance of $193.

201949. For June 1993, Ms. Dempson received $203 in Food

2029Stamps, but was eligible for $15, resulting in an over-issuance

2039of $188.

204150. By letter dated March 11, 1994, Children and Family

2051Services notified Ms. Dempson, among other things, of the over-

2061issuance, her right to dispute the over-issuance, and her

2070responsibility for repayment of the over-issuance. The letter

2078was mailed to the last address provided by Ms. Dempson. No

2089response was received by Children and Family Services.

209751. An inference is drawn and a finding is made that

2108Ms. Dempson did not dispute the over-issuance of $1,692 in Food

2120Stamps.

2121Outstanding Debt

212352. As of the date of the hearing, August 15, 1997, the

2135total amount of the debt owed by Ms. Dempson to Children and

2147Family Services was $4,473, representing AFDC Account No. 31-

215701057-52 at $333, AFDC Account No. 31-01057-53 at $1,583, Food

2168Stamp Account No. 31-01057-42 at $865, and Food Stamp Account No.

217931-01057-43 at $1,692.

2183CONCLUSIONS OF LAW

218653. The Division of Administrative Hearings has

2193jurisdiction over the subject matter of this proceeding and the

2203parties thereto pursuant to Section 120.569 and Subsection

2211120.57(1), Florida Statutes.

221454. Section 24.115, Florida Statues, provides in pertinent

2222part:

2223(4) It is the responsibility of the

2230appropriate state agency and of the judicial

2237branch to identify to the department

2243[Department of the Lottery], in the form and

2251format prescribed by the department, persons

2257owing an outstanding debt to any state agency

2265or owing child support collected through a

2272court. Prior to the payment of a prize of

2281$600 or more to any claimant having such an

2290outstanding obligation, the department may

2295transmit the prize money to the Comptroller

2302who may authorize payment of the balance to

2310the prize winner after deduction of the debt.

2318If a prize winner owes multiple debts subject

2326to offset under this subsection and the prize

2334is insufficient to cover all such debts, the

2342amount of the prize shall be applied in the

2351manner that the Comptroller deems

2356appropriate.

235755. Children and Family Services is authorized to collect

2366the over-issuance of AFDC and Food Stamps, regardless of "client

2376error" or "agency error," from the AFDC recipient and the Food

2387Stamp recipient, respectively. Rule 65A-1.900, Florida

2393Administrative Code, formerly Rule 10C-1.900, Florida

2399Administrative Code.

240156. The general rule is that "the burden of proof, apart

2412from statute, is on the party asserting the affirmative of an

2423issue before an administrative tribunal." Florida Department of

2431Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778, 788 (Fla.

24421st DCA 1981). Here, the Department of Children and Family

2452Services, the Department of the Lottery, and the Department of

2462Banking and Finance, Office of the Comptroller are asserting the

2472affirmative and, therefore, have the burden of proof.

248057. The evidence demonstrates that Ms. Dempson is a

2489claimant of lottery prize winnings exceeding $600.

249658. Moreover, the evidence demonstrates that Ms. Dempson

2504has an outstanding indebtedness to the Department of Children and

2514Families, as of August 15, 1997, in the amount of $4,473. Her

2527indebtedness exceeds the prize winnings.

2532RECOMMENDATION

2533Based on the foregoing Findings of Fact and Conclusions of

2543Law, it is

2546RECOMMENDED that the Department of Banking and Finance,

2554Office of the Comptroller enter a final order providing for

2564payment to the Department of Children and Family Services of the

2575lottery prize winnings of $2,500 claimed by Gussie Mae Dempson.

2586DONE AND ENTERED this 26th day of November, 1997, in

2596Tallahassee, Leon County, Florida.

2600___________________________________

2601ERROL H. POWELL

2604Administrative Law Judge

2607Division of Administrative Hearings

2611The DeSoto Building

26141230 Apalachee Parkway

2617Tallahassee, Florida 32399-3060

2620(904) 488-9675 SUNCOM 278-9675

2624Fax Filing (904) 921-6847

2628Filed with the Clerk of the

2634Division of Administrative Hearings

2638this 26th day of November, 1997.

2644ENDNOTES

26451/ Department of Children and Family Services is substituted for

2655the Department of Health and Rehabilitative Services as a party.

2665Department of Children and Family Services is a newly-created

2674agency pursuant to Section 20.19, Florida Statutes.

26812/ Even though the evidence presented by Ms. Dempson raised

2691questions, it was insufficient to support a finding that she

2701neither received nor endorsed the checks.

2707COPIES FURNISHED:

2709Gussie Mae Dempson, pro se

2714631 Southwest 12th Avenue

2718Homestead, Florida 33030

2721Josephine A. Schultz, Chief Counsel

2726Department of Banking and Finance

2731Suite 526, The Fletcher Building

2736101 East Gaines Street

2740Tallahassee, Florida 32399-0350

2743Leah Pollard, Esquire

2746Department of Children and Families

2751401 Northwest 2nd Avenue, Room N-1014

2757Miami, Florida 33128

2760Louisa Warren, Senior Attorney

2764Department of the Lottery

2768250 Marriott Drive

2771Tallahassee, Florida 32399

2774Harry Hooper, General Counsel

2778Department of Banking and Finance

2783The Capitol, Plaza Level

2787Room 1302

2789Tallahassee, Florida 32399-0350

2792Gregory D. Venz, Agency Clerk

2797Department of Children and Family Services

28031317 Winewood Boulevard

2806Building Two, Room 204

2810Tallahassee, Florida 32399-0700

2813Richard A. Doran, General Counsel

2818Department of Children and Family Services

28241317 Winewood Boulevard

2827Building Two, Room 204

2831Tallahassee, Florida 32399-0700

2834Ken Hart, General Counsel

2838Department of the Lottery

2842250 Marriott Drive

2845Tallahassee, Florida 32301

2848NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2854All parties have the right to submit written exceptions within 15

2865days from the date of this recommended order. Any exceptions to

2876this recommended order should be filed with the agency that will

2887issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
Date: 01/14/1998
Proceedings: Final Order filed.
PDF:
Date: 01/13/1998
Proceedings: Agency Final Order
PDF:
Date: 01/13/1998
Proceedings: Recommended Order
PDF:
Date: 11/26/1997
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 08/15/97.
Date: 10/07/1997
Proceedings: Respondent`s Proposed Recommended Order and Findings of Fact (for Judge signature)(filed via facsimile).
Date: 09/19/1997
Proceedings: Notice of Filing Transcript sent out.
Date: 09/18/1997
Proceedings: CC: Petitioner`s Exhibits 1-2; Cover Letter from L. Naeher sent out.
Date: 09/18/1997
Proceedings: (I Volume) Transcript filed.
Date: 08/15/1997
Proceedings: CASE STATUS: Hearing Held.
Date: 08/15/1997
Proceedings: Respondent DBF`s Composite Exhibit I filed.
Date: 08/04/1997
Proceedings: Letter to EHP from L. Pollard Re: Notice of intent to appear; Submission of Intended Exhibits; Exhibits filed.
Date: 07/28/1997
Proceedings: (Respondent) Notice of Substitution of Counsel (filed via facsimile).
Date: 06/10/1997
Proceedings: Amended Order Granting Continuance and Rescheduling Hearing sent out. (hearing set for 8/15/97; 10:00am; Miami & Tallahassee)
Date: 06/04/1997
Proceedings: Order Granting Continuance and Rescheduling Hearing sent out. (Video Final Hearing set for 8/15/97; 10:00am; Miami & Tallahassee)
Date: 05/09/1997
Proceedings: (Respondent) Notice of Filing filed.
Date: 05/08/1997
Proceedings: Respondent`s Motion for Continuance (filed via facsimile).
Date: 05/05/1997
Proceedings: (From J. Schultz) Notice of Substitution of Counsel filed.
Date: 04/30/1997
Proceedings: Notice of Hearing by Video sent out. (Video Final Hearing set for 5/23/97; 1:00pm; Miami & Tallahassee)
Date: 03/10/1997
Proceedings: Order Requiring Response sent out.
Date: 10/01/1996
Proceedings: Letter to EHP from G. Dempson Re: Response to initial order filed.
Date: 09/20/1996
Proceedings: (Respondent) Response to Initial Order filed.
Date: 09/11/1996
Proceedings: Initial Order issued.
Date: 09/06/1996
Proceedings: Agency referral letter; Request for a Hearing, letter form; Agency Action letter filed.

Case Information

Judge:
ERROL H. POWELL
Date Filed:
09/06/1996
Date Assignment:
09/11/1996
Last Docket Entry:
01/14/1998
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

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