11-004534 Colleen Hylton-Julius vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Thursday, February 9, 2012.

Summary: The Division of Retirement properly denied Petitioner's request to change Petitioner's retirement in the Florida Retirement System from an early retirement service benefit to disability retirement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COLLEEN HYLTON - JULIUS , )

)

Petitioner, )

)

vs. ) Case No. 11 - 4534

)

DEPARTMENT OF MANAGEMENT SERVICES , )

DIVISION OF RETIR E MENT , )

)

Respondent. )

_________________________________ _ )

RECOMMENDED ORDER

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

on December 7 , 2011 , by video teleconference, with the parties

appearing in Lauderdale Lakes , Florida, before June C. McKinney ,

a duly - designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida ,

in accordance with the authority set forth in sections 120.569

and 120.57(1), Florida Statutes .

APPEARANCES

For Petitioner: Mark J. Berkowitz, Esquire

1620 W. Oakland Park B oulevard

Suite 300

Ft. Lauderdale, Florida 33311

For Respondent: Kristin M. Klein , Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

Whether the Division properly denied Petitioner ' s request

to change Petitioner ' s retirement in the Florida Retirement

System from an early retirement service benefit to disability

retirement.

PRELIMINARY STATEMENT

On June 23 , 2011, the Department of Management Services,

Division of Retirement ( " Respondent " or " D ivision " ), issued a

denial letter informing Colleen Hylton - Julius ( " Petitioner " or

" Hylton - Julius " ) , that the Division was not able to honor her

request to change to a disability benefit because s he was

receiving a service retirement benefit . Petitioner timely

requested a formal hearing to contest these allegations, and the

matter was referred to the Division of Administrati ve Hearings

on September 8 , 2011.

The presiding administrative law judge set the final

hearing for December 7 , 2011. The case then proceeded as

scheduled and b oth parties appeared at the appointed place and

time.

At hearing, Petitioner testified on her ow n behalf .

Petitioner ' s Exhibit s 1 through 5 were offered and received into

evidence. The Division presented the testimony of Ira Gaines ,

Benefits Administrator . The Division ' s Exhibits 1 through 8

were offered and received into evidence.

At the request of the Division, the undersigned took

official recognition of Florida Administrative Code Rule 60S -

4.002 and section 121.091, Florida Statutes.

The proceedings were recorded and transcribed . The

T ranscript was filed at the Division of Administrative Hea rings

on January 12, 2012. Both parties filed Proposed Recommended

Orders, which have been considered in the preparation of th is

Recommended Order.

FINDINGS OF FACT

1. Respondent is charged with managing, governing, and

administering the Florida Retire ment System ( " FRS " ).

2. Petitioner worked for Miami Dade Transit from August

1990 to March 2004 , and was a member of FRS while employed

there .

3. Afterwards, Petitioner went to work as an auditor with

a private employer, Robert Half , in New York .

4 . In 2007, Petitioner sustained an injury while working

for Robert Half.

5. In 2008, the Division generated an Estimate of

Retirement Benefits for Petitioner detailing what her benefit

amounts would be if she decided to retire.

6. In February or Mar ch 2009, Petitioner informed the

Division by telephone t hat she could no longer work and wanted

to retire. Subsequently, the Division mailed Petitioner a

retirement application.

7. On April 13, 2009, the Division received Petitioner ' s

filled - out applicati on for service retirement.

8. Directly above P etitioner ' s signature, the application

stated:

I understand I must terminate all employment

with FRS employers to receive a retirement

benefit under Chapter 121, Florida Statutes.

I also understand that I ca nnot add

additional service, change options, or

change my type of retirement (Regular,

Disability, and Early) once my retirement

becomes final. My retirement becomes final

when any benefit payment is cashed or

deposited.

9. Petitioner ' s application was incomplete and could not

be processed upon receipt.

10. On or about April 17, 2009, the Division sent

Petitioner an Acknowledgment of Service Retirement Application

requesting that Petitioner send " birth date verification of your

joint annuitant " if she chose O ption 3 or 4 and " The Option

Selection for FRS Members, Form FRS - 11o " to finalize the

application. The acknowle d gment stated at the bottom:

ONCE YOU RETIRE, YOU CANNOT ADD SERVICE

CHANGE O PT IONS, CHANGE YOUR RETIREMENT DATE,

CHANGE YOUR TYPE OF RET IREMENT OR ELECT THE

INVESTMENT PLAN. RETIRMENT BECOMES FINA L

WHEN ANY BENEFIT PAYMENT IS C AS H ED OR

DEPOSITED.

11. In April 2009, the Division generated a second

Estimate of Benefits for Petitioner , which she received .

12. On or about May 8, 2009, Peti tioner completed her

retirement application by providing the Division the option

selection form, which notified the Divisio n that she selected

Option 2 .

13. Directly above Petitioner ' s signature, the selection

form FRS - 11o stated:

I understand I must term inate all employment

with FRS employers to receive a retirement

benefit under Chapter 121, Florida Statutes.

I also understand that I cannot add

additional service, change options, or

change my type of retirement (Regular,

Disability, and Early) once my r etirement

becomes final. My retirement becomes final

when any benefit payment is cashed or

deposited.

14. When Petitioner received the estimate and saw the

early retirement benefit amount, she called the Division to

question what she considered a small amount. It was explained

to Petitioner that she lost a certain percentage because she was

retiring early and that her retirement was either " being

processed, or it was processed. "

15. Petitioner ' s application for retirement was approved

by the Division and Petitioner was awarded the O ption 2

retirement benefit she requested with the effective date of

May 1, 2009.

16. Petitioner ' s first retirement check was dated

April 23, 2010, and was cashed by Petitioner on July 28, 2010.

17. Petitioner ' s ret irement status was final when she

cashed her benefit payment.

18. O n June 6, 2011, Petitioner contacted the Secretary of

Division of Management Services by email and requested that she

receive disability retirement for the first time. 1

19. On, June 23, 2011, the Division informed Petitioner by

letter that her retirement status was final when she cashed or

deposited a benefit payment and that the request to change her

retirement from regular service retirement to disability

retirement could not be honore d .

20. On or about July 19 , 2011, Petitioner requested a

hearing regarding the issue.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to s ect ions 120.569 and 120.57(1),

Florida Statutes (2011) .

2 2 . The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal.

Wilson v. Dep ' t of Admin., Div. of Ret. , 538 So. 2d 139, 141 - 142

(Fla. 4th DCA 1989); Fl a. Dep ' t of Transp. v. J.W.C. Co., Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Dep ' t of HRS , 348

So. 2d 349 (Fla. 1st DCA 1977). Accordingly, Petitioner bears

the burden of proof in this proceeding by a preponderance of the

evidence. § 120.57(1)( j), Fla. Stat.

23. Section 121.091 (6)(h) sets forth how benefits are

payable. This statute provides, in pertinent part:

(6) (h) The option selected or determined for

payment of benefits as provided in this

section shall be final and irrevocable at

the ti me a benefit payment is cashed or

deposited or credited to the Deferred

Retirement Option Program as provided in

subsection

24. Rule 60S - 4.002(4) provides in pertinent part:

After a retirement benefit payment has been

cashed or deposited or after a DROP payment

is credited:

(a) No additional service, which remained

unclaimed at retirement, may be claimed or

purchased;

(b) The selection of an option may not be

changed; and

(c) The type of retirement, i.e., normal,

early, or disability, may not be ch anged,

except for the following:

1. When a member recovers from

disability and subsequently applies for

normal or early retirement as provided

in subsections 60S - 4.007(7) and (8),

F.A.C.

2. When a member begins receiving

normal or early service retirem ent

benefits while appealing a denial of

his application for disability

retirement and such disability

application is subsequently approved as

provided in paragraph 60S - 4.007 (3)(g),

F.A.C., or

3. When an elected officer requests,

prior to July 1, 1990, that his benefit

be suspended and recalculated as

provided in parag raph 60S - 4.012(6)(b),

F.A.C.

25. Petitioner asserts the Division was notified by a

letter dated March 11, 2010, that Hylton - Julius wanted to cancel

her retirement benefits application and pursue a claim for

disability benefits and the Division had an obligation to tell

her where to get information about converting her regular

retirement to disability retirement . T he record is void of any

credible evidence that the Division received such n otice ; thus,

Petitioner failed to prove such an allegation .

26. Petitioner further contends that the doctrine of

equitable estoppel should be applied in this matter because

Respondent provided Petitioner erroneous information that her

application was proc essed and she relied on that information .

Equitable estoppel is applied against the state only in rare

instance s and under exceptional circumstances. To prevail under

estoppel Petitioner has to prove the following elements: (1) a

representation as to mat erial fact that is contrary to a later -

asserted position; (2) reliance on that representation; and (3)

a change in position detrimental to the party claiming estoppel,

caused by the representation and reliance thereon. Lewis v.

Dep't of HRS , 659 So. 2d 12 55, 1256 (Fla. 4th DCA 1995); Nelson

Richard Adver. V. Dep't of Transp. , 513 So. 2d 181, 182 (Fla.

1st DCA 1987); Assoc. Indus. Ins. Co. v. DOL & Empl. Sec. (Dep't

of Fin. ), 923 So. 2d 1252, 1255 (Fla. 1st DCA 2006).

27. In this case, Petitioner failed to present sufficient

credible evidence that the Division made any statement of fact

that misled Petitioner during her application process.

Therefore, estoppel is not appropriate in this matter .

28. It is unfortunate that Hylton - Julius suffers from a

di sability as a result of an injury suffered . However, the

record is clear that Petitioner elected by application , to apply

for early service retirement without ever requesting disability

benefits . Additionally, Petitioner has been cashing and / or

depositin g early service retirement checks since 2010 . Further,

Petitioner was informed on at least two documents she signed and

submitted to the Division that her retirement was not final

until she cashed her retirement benefit. While the end result

is harsh und er the circumstances, the law mandates that since

Petitioner ' s benefit payment was cashed , her early service

retirement benefit cannot be changed under the FRS . The record

is void of Petitioner asserting any exceptions to rule 60S -

4.002(4).

RECOMMENDATI ON

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Management

Services, Division of Retirement, enter a Final Order d enying

Petitioner ' s re quest to change her early service retirement

benefit to disa bility retirement.

DONE AND EN TERED this 9th day of February , 20 12 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JUNE C. MCKINNEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florid a 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Divisi on of Administrative Hearings

this 9 th day of February , 20 12 .

ENDNOTE

1 Petitioner ' s testimony that she requested disability benefits

prior to the June 6, 2011, email is rejected as not be ing

credible.

COPIES FURNISHED :

Kristin M. Klein, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

Mark J. Berkowitz, Esquire

Mark J. Berkowitz, P.A.

1620 West Oakland Park Boulevard, Suite 300

Fo rt Lauderdale, Florida 33311

Sarabeth Snuggs, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32315 - 9000

Jason Dimitris, General Counsel

Department of Management Services

4050 Esplanade Way, S uite 160

Tallahassee, Florida 32399 - 0950

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.