89-002455 T. G. Grantham vs. Division Of Retirement Status: Closed Recommended Order on Tuesday, November 21, 1989.

Summary: State retiree who cashes even one benefit warrant thereby forfeits the right to apply for a different type of state retirement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

T. G. GRANTHAM , )

)

Petitioner , )

)

vs. ) CASE NO. 89-2455

)

DEPARTMENT OF ADMINISTRATION )

DIVISION OF RETIREMENT, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before Robert T.

Benton, II, Hearing Officer of the Division of Administrative Hearings, on

October 27, 1989. Mrs. Grantham, who attended the hearing in hopes of

representing her husband, did not qualify as a qualified representative, within

the meaning of Rule 221-6.008, Florida Administrative Code. But the Hearing

Officer called her as a Hearing Officer's witness, in order to give her an

opportunity to share pertinent information about the case.

Petitioner filed a proposed recommended order on November 16, 1989. The

attached appendix addresses proposed findings of fact by number.

APPEARANCES

For petitioner: Larry D. Scott, Esquire

Department of Administration,

Division of Retirement

440 Carlton Building

Tallahassee, Florida 32399-1550

For Respondent : None

STATEMENT OF THE ISSUE

Whether an employee who has retired on ordinary early retirement and cashed

more than 30 retirement checks should be heard on a claim made some two years or

more after he retired that he is entitled to disability retirement benefits?

PRELIMINARY STATEMENT

By letter dated March I5, 1989, Melanie White, a benefits calculation

specialist in respondent's employ, wrote petitioner Grantham, as follows:

Once a member cashes or has deposited the

first benefit warrant for a specific type of

retirement, that member may not submit an

application for another type of retirement.

Since you have chosen to retire under

the provisions of early service retirement

and have cashed your first retirement

warrant, you are therefore not eligible to

change to disability or any other type of

retirement benefit.

If you believe there is some valid legal or

factual basis for challenging this

determination, you may petition Division for

a hearing pursuant to Chapter 120, Florida

Statutes.

Respondent's Exhibit No. 6. In response to this letter, petitioner did file a

request for an administrative hearing, which respondent forwarded to the

Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3.,

Florida Statutes (1987).

FINDINGS OF FACT

1. On January 15, 1983, petitioner Tommy Gene Grantham left the Escambia

County Sheriff's Department after more than 14 years as a deputy sheriff.

2. Respondent gave petitioner notice on April 27, 1983, of its intention

to deny his application for disability benefits, which he had made on grounds he

was "unable to lift, stand, or perform any type of physical exertion."

Respondent's Exhibit No. 7.

3. Petitioner took appropriate steps to cause his application for

disability benefits to be placed on the agenda of the State Retirement

Commission for its December 13, 1983, meeting. On the following day, the

Commission entered a final order dismissing cause, which had the effect of

denying the application.

4. Respondent received petitioner's application for service retirement on

December 4, 1986. Petitioner made this application because he needed the money.

5. He had only recently been released from the Pavilion, a mental ward at

a hospital in Pensacola, where he had been confined in a padded cell from

November 15 to December 1, 1966. On December 10, 1986, respondent acknowledged

receipt of the application. Respondent's Exhibit No. 4.

6. The form acknowledgment said, "[O]nce you retire you can not add

additional service nor change options. Retirement becomes final when the first

benefit check is cashed." Respondent's Exhibit No. 4. By the time of the

hearing in this matter, respondent had cashed more than 30 monthly retirement

checks.

7. Nancy Grantham has been married to the petitioner for 15 1/2 years

although, between September 5, 1986, and February of 1987, she and her husband

were legally separated. Over the years, according to Mrs. Grantham, her husband

has suffered from serious mental problems. It was she who took him to the

Pavilion on November 15, 1986, when, she recalls, he was "talking crazy,"

anxious, depressed, and apparently suicidal.

8. At no time has any court adjudicated the petitioner incompetent.

9. The respondent's policy is to honor elections made by retirement system

members, even members seeking disability retirement on psychiatric grounds, in

the absence of an adjudication of incompetency.

CONCLUSIONS OF LAW

Unless a rule is challenged in accordance with Section 120.56, Florida

Statutes, it is presumed valid in any Section 120.57 proceeding in which it

applies. Central to the present controversy is Rule 22B-4.002(2), Florida

Administrative Code, which provides:

Once the member files an application which is

approved for a specific type of retirement

and the member's first benefit warrant is

issued and cashed or deposited, the member's

right of entitlement to a different type of

retirement is forfeited and a different type

of retirement application may not be submitted.

Under the clear provisions of this rule, petitioner is not entitled to submit an

application for disability retirement, and has not been eligible for more than

two years.

RECOMMENDATION

It is, accordingly,

RECOMMENDED:

That respondent dismiss petitioner's application for disability retirement

benefits.

DONE and ENTERED this 21st day of November, 1989, in Tallahassee, Florida.

___________________________________

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of November, 1989.

APPENDIX

With respect to petitioner's proposed findings of fact Nos. 1 and 6, the

agency actions were not final at those times.

Petitioner's proposed findings of fact Nos. 2, 4 and 5 have been adopted,

in substance, insofar as material.

With respect to petitioner's proposed finding of fact No. 3, it is not

clear when the application was mailed.

COPIES FURNISHED:

Tommy G. Grantham

2266 Berrydale Road

Cantonment, FL 32533

William A. Frieder, Esquire

Department of Administration

Carlton Building

Tallahassee, FL 22399-1550