12-001266 Jake Fisher vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Thursday, August 30, 2012.

Summary: Petitioner did not prove, by a preponderance of the evidence, that he did not receive a refund of his retirement contributions. Therefore, he was not entitled to receive retirement benefits for the service period for which he received the refund.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAKE FISHER , )

)

Petitioner, )

)

vs. ) Case No. 1 2 - 1266

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

_________________________________)

RECOMMENDED ORD ER

Pursuant to notice, a hearing was cond ucted in this case

pursuant to s ections 120.569 and 120.57(1), Florida Statutes

(2011) , before Cathy M. Sellers , a n Administrative Law Judge of

the Division of Administrative Hearings ( " DOAH " ) , on June 20,

2012, by video t eleconference at sites in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Jake Fisher , pro se

Post Office Box 694762

Miami, Florida 33269 - 1762

For Respondent: Larry D. Scott, Esquire

Assistant General Counsel

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

Whether Petitioner received a refu nd of retirement

contributions made to the Florida Retirement System ( " FRS " ) for

his service from June 1969 to September 1975, thereby waiving

his right to receive additional retirement benefits represented

by the refunded contributions.

PRELIMINARY STATEM ENT

In response to Petitioner ' s inquiry, Respondent Department

of Management Services , Division of Retirement issued a letter

dated February 28, 2012, to Petitioner stating that he

previously had requested , and was issued , a refund of

contributions he had made to the FRS between June 1969 and

September 1975 , so that had he waived his right to the service

credit and retirement benefits represented by the refunded

contributions. On or about March 16, 2012, Petitioner timely

filed a request for formal admini strative hearing challenging

Respondent ' s determination regarding his service credit and

retirement benefits .

Th e final hearing was held on June 20, 2012 . Respondent put

on its case first , presented the testimony of Charlene Fansler and

John Nicholson , and offered Respondent ' s E xhibits 1 through 18 and

22, which were admitted into evidence without objection.

Petitioner testified on his own behalf , presented the testimony of

Gloria Fisher, and offered Petitioner ' s Exhibits 1 and 2 , which

were admitted i nto evidence over objection .

A transcript of the final hearing was not filed. The parties

were given until July 23, 2012, to file their proposed recommended

orders. Petitioner timely filed its Proposed Recommended Order on

July 12, 2012, and Responden t timely filed his Proposed

Rec ommended Order on July 23, 2012; b oth were considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a member of the FRS. He was hired by

Miami - Dade County ( " County " ) in 1969, and termin ated his

employment with the County in 1989.

2. At all times relevant to this proceeding , Respondent,

Division of Retirement Services, 1 / was the state agency charged

with administering the FRS. § 121.031(1), Fla. Stat. (1989). 2 /

3 . Prior to 1975, the FRS was a contributory system. 3 /

Under this system, members paid a portion of their salaries into

the FRS Trust Fund ( " Trust Fund " ) as a contribution toward

future retirement benefits. Members who contributed to the

Trust Fund could request a refund of th ose contributions at the

time they left their FRS - eligible employment. Receipt of a

refund constituted a waiver of the right to service credit for

the employment period for which the contribution was paid.

4. At the time Petitioner terminated his empl oy ment with

the County , he had accrued 18. 77 years of service credit . He

had contributed $2,708.94 to the Trust Fund for creditable

employment service from June 1969 through September 1975.

5. In April 1990, Petitioner requested an audit of his FRS

accoun t. Specifically, he requested an estimate of his

retirement benefits based on his total service credit consisting

of both contributory and non - contributory service, and an

estimate of his retirement benefits based only on his non -

contributory service from October 1975 to August 1989.

6. On May 17, 1990, Respondent responded t o Petitioner ' s

request. The response letter provided the requested estimates

and further informed Petitioner that he had $2,708.94 in

contributions in his retirement account for th e period betwe en

June 1969 and September 1975 , that he had 18. 77 total years of

service , and that he had 12.52 years of non - contributory service

credit. The letter explained that if Petitioner wished to

receive a lump sum refund of his contributions, he must submit a

completed Request F or R efund Form, FRS M - 81.

7. The letter was mailed to Petitioner at his then - current

address 4 / of 2221 Northw est 51st Street, Miami, Florida 33142.

8 . In addition to the May 17, 1990 , letter explaining

Petitioner ' s o ptions , Respondent ' s staff engaged in several

documented telephone discussions with Petitioner to e xplain the

process for obtain ing a refund of his contributions and the

consequences of doing so.

9 . In September 1990, Petitioner submitted a completed

Re quest F or Refund Form, FRS M - 81, requesting a lump sum refund

of the $2,708.94 in retirement contributions he made for the

period of June 1969 through September 197 5. The form provided

in pertinent part: " I give up all rights to receive any

benefits from FRS based on service represented by this refund. "

Petitioner listed his address as 2221 Northwest 51st Street,

Miami, Florida 33142, and signed the form.

10 . Upon receiving the completed Request F or Refund form,

Respondent provided pertinent informati on from the form to the

Department of Banking and Finance 5 / and requested issuance of a

warrant in the amount of $2,708.94, the full amount of

Petitioner ' s retirement contributions for his service between

June 1969 and September 1975 .

1 1 . The Departmen t of Banking and Finance issued the

warrant, dated September 19, 1990, and returned it to Respondent

w ith a computer - generated label listing Petitioner ' s name and

social security number, refund amount, voucher number, and date

of the warrant . On September 26, 1990, the warrant was mailed

to 2221 Northwest 51st Street, Miami , Florida 33142 . 6 /

12 . Respondent maintains a list of outstanding warrants.

This list does not show the warrant sent to Petitioner as being

outstanding; thus, Respondent ' s records es tablish that t he

warrant was cashed.

1 3 . In June 1993, Pet itioner applied to receive his

service retirement benefits. In the course of processing the

retirement benefits application, Respondent provided Petitioner

an estimate of the service benefits he would receive based on

12.52 years of creditable service.

14. At that time, Petitioner did not question the estimate

or that his benefit was based on 12.52 years of creditable

service .

15. On February 16, 2012 ÏÏ almost 22 years after the

contributi ons refund warrant was sent to Petitioner and almost

19 years after Petitioner began receiving his retirement

benefits based on 12.52 years of service ÏÏ Petitioner contacted

Respondent to inquire why he was not receiving retirement

benefits based on 18 year s of creditable service. Respondent ' s

staff advised Petitioner that he was not entitled to benefits

for 18 years because he had requested and received a refund of

the contributions he had paid into the FRS Trust Fund between

June 1969 and September 1975. 7 /

16. Petitioner insists that h e did not submit the Request

F or Refund Form in 1990 and claims that the signature on the

form was forged . 8 / He further claims that he never received the

warrant because Respondent mailed the warrant to an address

using a n incorrect zip code . He posits that an employee of

Respondent forged his signature and cashed the warrant.

However, t he credible evidence in the record does not support

these claims.

17. The credible, persuasive evidence in the record

establishes that Petitioner request ed and receive d a refund of

his retirement contributi ons in the amount of $2,708.94 for his

employment service between June 1969 and September 1975 , thereby

waiv ing his right to receive retirement benefits for this

period.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties to, and subject matter of, this

proceeding pursuant to sections 120.569 and 120.57(1).

19. Petitioner bears the burden in this proceeding to

prove, by a preponderance of the evidence, that he did not

receive a refund of his contributions paid between June 1969 and

September 1975, so t hat he is entitled to receive retirement

benefits for this period. See Wilson v. Dep ' t of Admin . , 538

So. 2d 139 (Fla. 4th DCA 1989)(burden is on the beneficiary to

establish his right to creditable service); see also Delores F.

Johnson v. Dep ' t of Mgmt. Servs. , Case No. 04 - 1685 (Fla. DOAH

Sept. 22, 2004; Fla. DMS Nov. 2, 2004). This evidentiary

standard requires proof by the " greater weight of the evidence, "

or evidence that " more likely than not " tends to prove a certain

proposition. Green v. Lyons , 763 So. 2d 276, 280 (Fla. 2000).

20 . Prior to 1975, the FRS was contributory. Beginning

October 1, 1975, employers of specified persons part icipating in

the FRS were required to contribute to the FRS on behalf of the

participating employee. See § 121.075(2)(a), Fla . Stat . (1989).

21 . Section 121.071(2)(b), Florida Statutes (1989),

provided in pertinent part : " Upon termination of employmen t for

any reason other than retirement, a member shall be entitled to

a full refund of the contributions he has made prior or

subsequent to his participa tion in the noncontributory

plan . . . . "

2 2 . Florida Administrative Code Rule 22B - 4.09(5) (1989 ) 9 /

p rovided in pertinent part: " By obtaining a refund of

contributions a member waives all rights, title and interest

under the Florida Retirement System except the right to purchase

his prior service credit in accordance with Section 22B - 2.04. "

2 3 . Petition er did not meet his burden of proof to show

that he did not request and receive a refund of his retirement

contributions for his service between June 1969 and June 1975 ,

so that he is entitled to receive benefits for this period.

Rather, t he persuasive ev idence establishes that Petitioner

requested and received a refund of his contributions for this

time period , and, a ccordingly, waived his right to receive

retirement benefits for his service for this period.

RECOMMENDATION

Based upon the foregoing Findi ngs of Fact and Conclusions

of Law, it is hereby RECOMMENDED that the Department of

Management Services, Division of Retirement, issue a Final Order

determining that Petitioner is not entitled to receive

retirement benefits for his service between June 196 9 and

September 1975.

DONE AND ENTERED this 30 th day of August , 20 12 , in

Tallahassee, Leon County, Florida.

S

__________________________________

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 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 30 th day of Au gust , 20 1 2 .

ENDNOTE S

1 / In 1990, the Division of Retirement Services was a division

within the Florida Department of Administration.

2 / Respondent asserts that Petitioner re quested and received the

refund of his contributions in 1990. At that time, the Florida

Legislature only published Florida Statutes in odd - numbered

years, with supplements containing only the statutes amended

published in even - numbered years. Because Pet itioner is alleged

to have received the refund of contributions in 1990, Florida

Statutes 1989 applies to this proceeding.

3 / On October 1, 1975, the FRS became non - contributory for

employees of entities participating in the FRS , other than

employees of s tate agencies, school districts, and community

colleges. See Ch. 74 - 302, Laws of Fla.

4 / Petitioner provided this address to Respondent ' s staff during

his telephone inquiries regarding obtaining a refund of his

retirement contributions.

5 / The Depa rtment of Banking and Finance, which was the precursor

of the Department of Financial Services, existed in 1990, when

Petitioner is alleged to have requested a refund of his

retirement contributions.

6 / P etitioner provided this address to Respondent dur ing his

telephone conferences with Respondent ' s staff and on the

completed Request F or Refund form. No evidence was presented

regarding whether the warrant was sent to Petitioner by

certified mail.

7 / Respondent contacted the Department of Financial Ser vices

( " DFS " ) to obtain a copy of the cancelled warrant to provide to

Petitioner; however, pursuant to DFS ' records retention

schedule, warrants older than ten years are not retained and are

destroyed.

8 / Neither party presented testimony of a handwri ting expert

regarding Petitioner ' s signature. However, the undersigned

notes that the signature on the Request For Refund form appears

identical to that in an affidavit signed by Petitioner in 1988

that was admitted into the record as part of Petitioner ' s

Exhibit 2, as well as on the Application For Service Retirement

admitted into evidence as Respondent ' s Exhibit 11; Petitioner

does not dispute that the signature on these two exhibits is

his.

9 / This rule was in effect in 1990, when Petitioner requested and

received the refund of contributions for his employment service

between June 1969 and September 1975.

COPIES FURNISHED :

Larry D. Scott, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

[e-mail]

Jake Fisher

Post Office Box 694762

Miami, Florida 33269

[e-mail]

Sarabeth Snuggs, Director

Department of Management Services

Division of Retirement

Post Office Box 9000

Tallahassee, Florida 32315 - 9000

Jason Dimitris, General Counsel

Department of Management Services

4050 Esplana de Way, Suite 160

Tallahassee, Florida 32399 - 0950

N OTICE OF RIGHT TO SU BMIT 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 f iled with the agency that

will issue the Final Order in this case.