11-005492 Rufus Royal vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Thursday, December 22, 2011.

Summary: The Division of Retirement's denial of Petitioner's request to change his early service retirement benefit to disability retirement was proper.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUFUS ROYAL , )

)

Petitioner, )

)

vs. ) Case No. 11 - 5492

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF RETIRMENT )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hea ring was held in this case

on December 8, 2011 , by video teleconference, with the parties

appearing in Miami , Florida, before June C. McKinney , a duly -

designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahas see, Florida ,

in accordance with the authority set forth in sections 120.569

and 120.57(1), Florida Statutes (2011 ) . 1

APPEARANCES

For Petitioner: Rufus Royal , pro se

3471 Grand Avenue, Ap artment 2

Miami, F lorida 33133 - 5052

For Respondent: Larry Scott

Assistant General Counsel

Department of Management Services

4050 Esplanade Way, Suite 160

Ta llahassee, 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.

PRELIMIN ARY STATEMENT

On June 15 , 2011, the Department of Management Services,

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

denial letter informing Rufus Royal ("Petitioner" or "Royal") ,

that the Division was not able to honor his request for

disa bility benefits because 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 Administrative Hearings on

October 27 , 2011.

The presiding administrative law judge set the final

hearing for December 8 , 2011. The case then proceeded as

scheduled and b oth parties appeared at the appointed place and

time.

At hearing, Petitioner testified on his own behalf and

presented the testimony of one witn ess, Levern Speights.

Petitioner 's Composite Exhibit 1 was offered and received into

evidence. The Division presented the testimony of Debra

Roberts , Benefits Administrator . The Division's Exhibits 1

through 1 4 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(4 ) and section 121.091, Florida Statutes.

The proceedings were recorded but not transcribed . Both

parties filed timely Proposed Recomm ended Orders, which have

been considered in the preparation of the Proposed Recommended

Order.

FINDINGS OF FACT

1. Respondent is charged with managing, governing, and

administering the Florida Retirement System ("FRS").

2. Royal worked for the Flori da Department of

Transportation ("DOT") over 28 years.

3. As a prior employee of DOT, Royal is a member of the

FRS.

4. Royal was injured on his job on July 16, 2002.

5. After being informed by the Social Security

Administration that he was disabled, Ro yal started applying for

line - of - duty disability retirement with the FRS.

6. Since Royal's injury, Royal has gotten his neighbor,

Levern Speights, to prepare his retirement applications and

write letters to the Division on his behalf. Royal signs every

s ubmission.

7. Royal first applied for disability retirement on

December 19, 2003.

8. About three months later , Royal applied for early

service retirement benefits on or about March 9, 2004. Directly

above Royal'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 cannot 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. While the two applications were pending, Royal

contacted the Division to check on the status of his disability

retirement ap plication . During the call, Royal found out that

he could obtain retirement monies immediately if he wr o te a

letter requesting early retirement .

10. On or about April 12, 2004, Royal submitted a letter

to the Division that stated he "wish[ed] to apply f or early

service retirement . "

11. Upon receipt of the April 12, 2004, letter, t he

Division switched Royal's application from a disability

application to early retirement application and Royal went on

the Florida Retirement System payroll effective March 1 , 2004.

12. Royal has been receiving early service retirement

checks and cashing or depositing them since March 2004.

13. However, Royal still believes he is entitled to

disability retirement benefits since he is disabled.

14. Throughout the years, Ro yal has continuously contacted

the Division periodically in an effort to still try and get

disability retirement benefits.

15. In January, April, and May 2006, the Division received

three letters from Royal questioning his receipt of early

service retirem ent benefits and requesting to apply for in - line -

of - duty disability retirement benefits.

16. On May 16, 20 06 , Royal applied for disability benefits

again.

17. On June 3, 2006, the Division responded to Royal's

request by letter stating:

The Division of Retirement has received

you r letter requesting that you receive

disability benefits. Our records indicated

you are receiving a service retirement

benefit. According to Chapter 60S - 4.002(4),

Florida Administrative Code, you cannot

change your option selec tion, purchase

additional service, or change your type of

retirement after you have cashed or

deposited any benefit payment. Therefore

the Division is unable to honor your

request. [ 2 ]

1 8. On December 24, 2008, Royal wrote the Division and

request ed that his "retirement be changed to disability

retirement to reflect my current condition . " 3

19. On January 21, 2009 , t he Di vision informed Royal again

by letter that "Florida law does not have provisions that all ow

the Division of Retirement to change a membe r's retirement type

from service retirement to disability retirement. Therefore,

your service retirement benefit is final and cannot be changed

to disability retirement."

20. Royal contacted the Division on several more occasions

trying to get disability benefits.

21. On or about June 25, 2011, Royal requested a hearing

regarding the issue.

CONCLUSIONS OF LAW

22 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

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

Florida Statutes (2011) .

23. 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); Fla. 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.

24. Section 121.091 sets forth how benefits are payable .

This statute provides, in pertinent part:

Benefits payable under the system. Î

Benefits may not be paid under this section

unless the member has terminated employment

as provided in s. 121.021(39)(a) or begun

participation in the Deferred Retirement

Option Program as provided in subsection

(13), and a proper application has been

filed in the manner prescribed by the

department. The department may cancel an

application for retireme nt benefits when the

member or beneficiary fails to timely

provide the information and documents

required by this chapter and the

departmentÓs rules. The department shall

adopt rules establishing procedures for

application for retirement benefits and for

the cancellation of such application when

the required information or documents are

not received.

25. 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 changed ,

except for the foll owing:

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 retirement

benefits while appeali ng 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 suspen ded and recalculated as

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

F.A.C. (e mphasis added ) .

26. It is unfortunate that Royal suffers from a disability

as a result of an injury suffered while on the job at DOT .

However, the record is clear that Royal elected by letter dated

April 12, 2004, to apply for early service retirement while the

disability application was still pending . Additionally, Royal

has been cashing and / or depositing early service retirement

checks since 2004. While the end result is harsh un der the

circumstances, the law mandates that since Royal's benefit

payment was cashed , his 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).

RECOMMENDATION

Bas ed 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 request to change his early service retirement

benefit to disability retirement.

DONE AND EN TERED this 2 2nd day of December 201 1 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JUNE C. MCKINNEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 323 99 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of December , 20 1 1 .

ENDNOTES

1 / Unless otherwise indicated, all references are to the 200 4

Florida Statutes and 200 4 Florida Administrative Code.

2 / Re spondent's Exhibit 9.

3 / Respondent's Exhibit 10.

COPIES FURNISHED:

Larry D. Scott, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

Rufus Royal

3471 Grand Avenue, Apartment 2

M iami, Florida 33133

Peter M. Capua, Esquire

Lorenzo and Capua

Courthouse Plaza, 11th Floor

28 West Flagler Street

Miami, Florida 33130

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, Suite 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.