98-004550 Grady Thomas vs. Division Of Retirement Status: Closed Recommended Order on Thursday, April 29, 1999.

Summary: Ineffective attempt to designate adult daughters as beneficiaries of deceased member`s monthly benefits entitles surviving spouse to monthly benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GRADY THOMAS, )

)

Petitioner, )

)

vs. ) Case No. 98-4550

)

DEPARTMENT OF MANAGEMENT SERVICES, )

DIVISION OF RETIREMENT, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

An administrative hearing was conducted on January 11, 1999,

in Tallahassee, Florida, before Daniel Manry, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For Respondent: Robert B. Button, Senior Attorney

Department of Management Services

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

For Petitioner: Granville E. Petrie, Esquire

1105 North Duval Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Petitioner, as a

surviving spouse, is entitled to the monthly benefits of his

deceased wife pursuant to Chapter 121, Florida Statutes (1995).

(All chapter and section references are to Florida Statutes

(1995) unless otherwise stated.)

PRELIMINARY STATEMENT

By letter dated September 16, 1998, Respondent denied the

Application of Beneficiary for Retirement Benefits submitted by

Petitioner. Petitioner timely filed an Amended Petition For

Formal Hearing on October 2, 1998.

At the hearing, the parties submitted 15 joint exhibits for

admission in evidence. Petitioner testified in his own behalf

and called one witness, and Respondent called one witness. The

identity of the witnesses and exhibits and any attendant rulings

are contained in the Transcript of the hearing filed with the

undersigned on February 3, 1999.

Respondent timely filed its Proposed Recommended Order

("PRO") on February 17, 1999. Petitioner timely filed his PRO on

March 1, 1999.

FINDINGS OF FACT

1. Mrs. Betty Thomas began participation in the Florida

Retirement System ("FRS") on December 19, 1970, when the public

school system that employed her as a teacher converted its

retirement program from the Florida Teachers Retirement Program

to the FRS. At the time, Mrs. Thomas had approximately six years

of previous service for which she received credit in the FRS.

2. The designated beneficiaries of Mrs. Thomas in 1970 were

Mr. Johnny Brown, her husband at the time, and the couple's

dependent children, Shauna Jackson, Peguena Brown, and Romina

Brown. The three daughters were born, respectively, in 1961,

1962, and 1969.

3. The FRS did not become noncontributory until 1975. By

1972, Mrs. Thomas had received $2,322.75 in three separate

refunds representing part of the personal contributions and

accrued interest that she made prior to 1975.

4. Mrs. Thomas and Mr. Brown divorced in 1972. Mrs. Thomas

met Petitioner sometime in 1975, and the two married in 1990.

They remained together until Mrs. Thomas died on September 21,

1996.

5. At the time of her death, Mrs. Thomas was actively

employed as an assistant principal with 28.2 years of creditable

service in the FRS. If her creditable service had not been

reduced by previous refunds of personal contributions, Mrs.

Thomas would have held 31.8 years of creditable service.

6. On May 31, 1992, Mrs. Thomas changed her designated

beneficiary. She deleted Mr. Johnny Brown, her former husband,

and designated her three adult daughters as her beneficiaries

using the From M-10 (the "M-10") required by Respondent for such

purposes. Mrs. Thomas did not designate Petitioner as a

beneficiary.

7. From the time Mrs. Thomas executed the M-10 on May 31,

1992, and thereafter, none of the daughters of Mrs. Thomas

qualified as a "joint annuitant" or a "dependent beneficiary"

within the meaning of Section 121.021(28). None of the daughters

was under age 25, physically or mentally disabled or incapable of

self-support, or otherwise financially dependent on Mrs. Thomas

for at least one-half of their support.

8. From the time Petitioner married Mrs. Thomas in 1990,

Petitioner qualified as a "joint annuitant" within the meaning of

Section 121.021(28)(a). He was the spouse of a member of the FRS

and is now the surviving spouse.

9. Shortly after the death of Mrs. Thomas on September 21,

1996, Petitioner requested the monthly benefits of his deceased

wife. By letter dated November 1, 1996, Respondent advised

Petitioner that the "only benefit" available was a refund of

personal contributions. In relevant part, the letter stated:

Unless one of the beneficiaries qualified as

a joint annuitant of the member at the time

of death . . ., a refund of retirement

contributions is the only benefit payable

from this account. (emphasis supplied) Each

beneficiary is entitled to an equal portion

of the $2,354.05 on deposit and should

complete Form FST-11g, APPLICATION OF

BENEFICIARY FOR REFUND . (emphasis not

supplied)

If all the designated beneficiaries wish to

disclaim interest in this account, you, as

the surviving spouse would qualify as a joint

annuitant. You would be eligible to receive

the Option 3 monthly retirement benefit . The

monthly benefit would be payable for your

lifetime and is estimated to be $1,617.95

effective October 1, 1996. (emphasis

supplied) For you to receive this benefit ,

we need the following (emphasis supplied):

1. Forms DIS-1 completed by Shauna B.

Jackson, Peguena Brown, and Romina Brown.

Disclaimer forms must be filed and recorded

in Circuit Court within two years of the

member's date of death. . . .

10. The daughters of Mrs. Thomas did not disclaim their

interest in the personal contributions that remained in the FRS

account of their deceased mother. Rather, they applied for a

refund. On December 9, 1997, Respondent refunded the remaining

personal contributions of Mrs. Thomas to her three daughters.

11. Petitioner continued his attempts to obtain the

monthly benefits of his deceased wife. By letters dated

January 30 and May 2, 1997, Respondent provided Petitioner with

responses substantially the same as the response contained in the

letter dated November 1, 1996.

12. On July 17, 1998, Petitioner filed an Application of

Beneficiary for Retirement Benefits. Respondent advised

Petitioner that the "benefits" had already been paid to the three

daughters of Mrs. Thomas, and Respondent requested an

administrative hearing.

13. The purpose of the M-10 signed by Mrs. Thomas was to

designate beneficiaries of the retirement benefits earned by Mrs.

Thomas during her years of service. The M-10 executed by Mrs.

Thomas on May 31, 1992, stated, in relevant part:

. . . I CHOOSE TO HAVE BENEFITS PAID . . . AS

FOLLOWS . . .

3. . . . JOINTLY . . . BENEFITS SHALL BE

DIVIDED AND PAYABLE AS INDICATED BELOW. . . .

Shauna Brown Jackson Daughter 11/15/61 F

Peguena Brown Daughter 12/10/61 F

Romina Brown Daughter 3/9/69 F

14. The term "benefits" is not defined in Section 121.021.

However, Respondent's own rule, in relevant part, defines the

term to mean a "monthly payment." Florida Administrative Code

Rule 60S-6.001(10). (Unless otherwise stated, all references to

rules are to rules promulgated in the Florida Administrative Code

in effect on the date of this Recommended Order.)

15. After Mrs. Thomas died on September 21, 1996,

Respondent did not pay "benefits" to anyone, as Respondent

defines the term "benefit" in Rule 60S-6.001(10). On December 9,

1997, Respondent distributed three lump sum payments totaling

$2,354.05, to the designated beneficiaries who were entitled to

the personal contributions of Mrs. Thomas pursuant to Section

121.091(7)(b)2. Respondent distributed one lump sum payment of

$784.69 to Ms. Romina Brown and two equal lump sum payments of

$784.68 to Ms. Peguena Brown and Ms. Shauna Brown.

16. Section 121.091(7)(b)2 authorizes Respondent to pay

only the personal contributions of Mrs. Thomas to her designated

beneficiaries who do not qualify as joint annuitants within the

meaning of Section 121.021(28). However, nothing in Chapter 121

or the evidence of record requires Respondent to withhold monthly

benefits from a surviving spouse who is entitled in Section

121.091(8) to receive retirement benefits.

17. The attempt by Mrs. Thomas to designate beneficiaries

on the M-10 was, in part, effective and, in part, ineffective.

It was an effective attempt to designate the beneficiaries

entitled to a refund of her personal contributions. However, it

was an ineffective attempt to name a beneficiary entitled to the

monthly benefits that accrued independently of any personal

contributions.

18. An ineffective attempt to designate a beneficiary who

is entitled to monthly benefits fails to name a beneficiary

entitled to those benefits. When no beneficiary is named,

Petitioner, as the surviving spouse, is the beneficiary

designated in Section 121.091(8) who is entitled to the monthly

benefits.

19. When Respondent refunded $2,322.75 in personal

contributions to Mrs. Thomas in 1972, the refund reduced the

monthly benefit from $1,617.95 to $1,279.54. The refund resulted

in a reduction in monthly benefit of approximately $338.41.

20. There is no evidence that a $2,354.05 refund of the

remaining contributions in 1997 should have any different effect

on the monthly benefit. In the absence of some legal reason not

to do so, a refund of $2,354.05 in 1997 should reduce the monthly

benefit in the same proportion that the previous refunds in 1972

reduced the monthly benefit. The $2,354.05 refund in 1997 should

reduce the monthly benefit of $1,279.54, by $341.79, to $937.75.

21. Sections 121.091(7)(e) and (f) authorize a surviving

spouse to modify monthly benefits by repaying contributions

refunded to the member. Petitioner can restore the monthly

benefit either to $1,279.54 or to $1,617.95 by electing to pay

either $2,354.05 or $4,676.05 in personal contributions

previously refunded plus accrued interest at the statutorily

prescribed rate.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto. The parties were duly noticed for the formal

hearing.

23. Petitioner has the burden of proof in this proceeding.

The burden of proof in an administrative proceeding is on the

party asserting the affirmative of the issue unless the burden is

otherwise established by statute. Young v. State , Department of

Community Affairs, 567 So. 2d 2 (Fla. 3d DCA 1990); Florida

Department of Transportation v. J.W.C. Co., Inc ., 396 So. 2d 778

(Fla. 1st DCA 1981); Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

24. Petitioner must demonstrate by a preponderance of the

evidence that he is entitled to the monthly benefits not paid by

Respondent to the designated beneficiaries of his deceased wife.

Dileo v. School Board of Dade County , 569 So. 2d 883, 884 (Fla.

3d DCA 1990); Agrico Chemical Co. v. State, Department of

Environmental Regulation , 365 So. 2d 759, 763 (Fla. 1st DCA

1978). Petitioner satisfied his burden of proof.

25. The attempt by Mrs. Thomas to designate her three

daughters as the beneficiaries of her personal contributions was

effective. However, the attempt by Mrs. Thomas to designate her

three daughters as beneficiaries of her monthly benefits was

ineffective. Where an attempt to direct payment to others is

ineffective, there is no basis for denying the benefits to the

surviving spouse. Eaves v. Division of Retirement , 704 So. 2d

140, 143 (Fla. 1st DCA 1997.

26. Respondent unsuccessfully attempts to distinguish the

facts in Eaves from the facts in this procceeding. Respondent

argues that, in Eaves , all of the personal contributions had been

refunded to the member before his death. However, Eaves did not

hold that the designation of beneficiary was ineffective solely

because no contributions were available for distribution to the

designated beneficiaries. Eaves also held that the designation

of beneficiaries was ineffective because the entitlement to

monthly benefits was nonexistent for the beneficiaries designated

by the member.

27. Respondent acknowledges only part of the decision in

Eaves . Respondent notes that the court stated, inter alia :

Because there are no "member's personal

contributions" to be returned, none of the

three [designated beneficiaries] is entitled

to receive benefits under section

121.091(7)(b)2. . . .

Eaves , 704 So. 2d at 142.

28. The court cited another reason why the designation of

beneficiary was ineffective in Eaves . The court said:

The Division must, in any event, determine

whether persons named as beneficiaries are in

fact eligible to receive death benefits

either as "joint annuitants" or otherwise.

Designations may prove ineffective . . ., as

here, because persons named as beneficiaries

do not qualify for benefits under Section

121.091(7)(b). (emphasis supplied)

* * *

The Division proposes to deny substantial

benefits (possibly in excess of nine hundred

dollars a month) to the widow because three

people entitled to nothing refuse to disclaim

nonexistent entitlements . (emphasis supplied)

Id .

29. The court did not engage in a tautology when it

recognized that the Division of Retirement was attempting to deny

benefits because, ". . . three people entitled to nothing refuse

to disclaim nonexistent entitlements ." (emphasis supplied) An

existing entitlement to nothing is not synonymous with a

nonexistent entitlement.

30. Section 121.091(7)(b)2 creates an entitlement to a

member's personal contributions for a designated beneficiary who

does not qualify as a joint annuitant. If there are no personal

contributions in the member's FRS account, either because the

contributions were previously refunded to the member or because

the member began participation in the FRS after the system became

noncontributory in 1975, the entitlement that exists pursuant to

Section 121.091(7)(b)2 entitles the designated beneficiary to

nothing. In comparison, an entitlement to monthly benefits is

nonexistent in Section 121.091(7)(b)2 for a designated

beneficiary who does not qualify as a joint annuitant.

31. The distinction between an "existing entitlement to

nothing" and a "nonexistent entitlement" is not unique to Section

121.091(7)(b). Similar distinctions appear in Sections

121.091(5)(a) and 121.091(7)(a).

32. Entitlements to a member's accumulated contributions

exist in Sections 121.091(5)(a) and 121.091(7)(a), respectively,

for members who do not complete 10 years of creditable service

and for the designated beneficiaries of members who die before

completing 10 years of creditable service. A member's

accumulated contributions are defined in Sections 121.021(26) and

121.071, inter alia , to mean the member's personal contributions

between 1970 and 1975 plus accrued interest at the statutorily

prescribed rate. The entitlements to accumulated contributions

that exist in Sections 121.091(5)(a) and 121.091(7)(a) entitle

members who began service after 1975 and the beneficiaries of

such members to nothing. In comparison, an entitlement to

monthly benefits is a nonexistent entitlement in Sections

121.091(5)(a) and 121.091(7)(a).

33. In Eaves and in this proceeding, it is the nonexistence

of the entitlement to monthly benefits for the designated

beneficiaries that renders ineffective the member's attempt to

direct monthly benefits to those beneficiaries. Eaves , 704 So.

2d at 142-143. Entitlement to monthly benefits was nonexistent

for the designated beneficiaries of Mrs. Thomas pursuant to

Section 121.091(7)(b)2. None of the three daughters qualified as

a joint annuitant within the meaning of Section 121.021(28).

Section 121.091(7)(b)2 entitled the designated beneficiaries of

Mrs. Thomas to receive only her personal contributions.

34. The attempt by Mrs. Thomas to designate beneficiaries

for her monthly benefit was ineffective regardless of whether, as

in Eaves , all of the personal contributions of the member were

refunded to the member during his life; or, as in this

proceeding, all of the personal contributions of the member were

refunded, in part, during the member's life and, in part, after

the member's death. In either event, the attempt to direct

monthly benefits to a designated beneficiary is ineffective if an

entitlement to monthly benefits is nonexistent for the

beneficiary.

35. The entitlements in Section 121.091(7)(b) exist for a

"designated beneficiary." Section 121.091(7)(b)1 entitles the

"designated beneficiary" who is a joint annuitant to the monthly

benefits prescribed in Section 121.091(6)(a)3. Section

121.091(7)(b)2 limits the entitlement of the "designated

beneficiary" who is not a joint annuitant to the member's

personal contributions.

36. Respondent defines the term "designated beneficiary" to

mean only the beneficiary designated by a member on the M-10.

Respondent ignores the designated beneficiary prescribed in

Section 121.091(8).

37. A member's ineffective attempt to designate a

beneficiary who is entitled to monthly benefits fails to name

such a beneficiary. When no beneficiary is named, Section

121.091(8), in relevant part, makes the surviving spouse the

designated beneficiary. As a designated beneficiary in Section

121.091(8) and a surviving spouse, Petitioner is entitled in

Section 121.091(7)(b)1 to the monthly benefits prescribed in

Section 121.091(6)(a)3.

38. The definition of a joint annuitant in Section

121.021(28) lends some support to Respondent's definition of a

designated beneficiary in Section 121.091(7)(b). Section

121.021(28), in relevant part, defines a joint annuitant as a

"person designated by the member."

39. If the "designated beneficiary" in Section

121.091(7)(b) is limited to a person designated by the member,

that definition would lead to a slightly different result in this

proceeding. Under such a definition, the scope of Section

121.091(7)(b) would prescribe death benefits only for a

beneficiary designated by a member and would not prescribe death

benefits for an undesignated beneficiary.

40. Death benefits for an undesignated beneficiary would be

prescribed in Section 121.091(8). See , e.g ., Section

121.091(6)(a)(2) (authorizing payment in accordance with

"subsection (8) as though no beneficiary had been named"). When

no beneficiary is named, Section 121.091(8) provides, in relevant

part, that death benefits are to be paid to the surviving spouse.

41. Section 121.091(8) would not limit death benefits for

an "undesignated beneficiary" to the benefits payable to a

"designated beneficiary" pursuant to Section 121.091(7)(b).

Section 121.091(8) makes it clear that the death benefits payable

to an "undesignated beneficiary" include any of the "benefits

. . . payable in the event of . . . death pursuant to the

provisions of this chapter." Death benefits payable pursuant to

Chapter 121 are not limited to those prescribed in Section

121.091(7)(b) but include any of the monthly benefits authorized

in Chapter 121 for a surviving spouse.

42. Monthly benefits authorized in Chapter 121 for a

surviving spouse include monthly benefits prescribed in Sections

121.091(6)(a)2-4. Section 121.091(6)(a) prescribes monthly

benefits for: a beneficiary, without limitation to a designated

beneficiary; a survivor; and a joint annuitant. Sections

121.091(7)(e)-(f) entitle a surviving spouse to similar monthly

benefits.

43. The legislature intends for the monthly benefits earned

by a deceased member to be distributed when the member does not

designate a beneficiary entitled to those benefits. Section

121.091(8) states that the beneficiary is the person who "shall"

receive the benefits.

44. Section 121.091(8) designates several persons as

contingent beneficiaries of a member's retirement benefits. If a

"designated beneficiary" is limited to a person designated by a

member and if a member's spouse does not survive a deceased

member, the "undesignated beneficiary" in Section 121.091(8) who

"shall" receive the benefits payable pursuant to Sections

121.091(6)(a)2-4 and 121.091(7)(e)-(g) may be the surviving

children, the parents, or the member's estate. If the

"designated beneficiary" in Section 121.091(7)(b) includes a

person designated in Section 121.091(8), the surviving children,

parents, or estate who may be such a "designated beneficiary" are

entitled to receive the benefits prescribed in either Sections

121.091(7)(b)1 or 2, depending on whether the person qualifies as

a joint annuitant.

45. The "designated beneficiary" in Sections 121.091(7)(b)

and 121.091(8), whenever possible, should be construed to

maximize the scope of benefits payable pursuant to Chapter 121.

Statutory provisions regarding pension benefits should be

liberally construed in favor of the person claiming the benefits.

City Of Tampa v. State , 19 So. 2d 697 (Fla. 1944); State ex rel.

Holton v. City Of Tampa , 159 So 292 (Fla. 1934); Adams v.

Dickinson , 264 So. 2d 17 (Fla. 1st DCA 1972); City Of West Palm

Beach v. Holaday , 234 So. 2d 24 (Fla. 4th DCA) affirmed, 240 So.

2d 152 (Fla. 1970); City Of Hialeah v. Willey , 189 So. 2d 194

(Fla. 3d DCA 1966); Fairbank v. Schlesinger , 533 F.2d 586 (D.C.

Cir. 1975).

46. Respondent defines the term "benefits" to mean only the

personal contributions of Mrs. Thomas. In Respondent's letter to

Petitioner dated November 1, 1996, Respondent states, in relevant

part, that, ". . . a refund of retirement contributions is the

only benefit payable from this account. Joint Exhibit 2.

47. Respondent incorrectly limits the term "benefits" to

the lump sum payment of personal contributions. By restricting

the term "benefits" to a lump sum payment and by excluding any

monthly payment, Respondent deviates from Rule 60S-6.001(10);

which defines the term "benefit" to mean a monthly payment.

Respondent has no authority to deviate from its own valid

existing rule. Section 120.68(12)(b); Boca Raton Artificial

Kidney Center, Inc., v. Department Of Health And Rehabilitative

Services , 493 So. 2d 1055, 1057 (Fla. 1st DCA 1986); Gadsden

State Bank v. Lewis , 348 So. 2d 343 (Fla. 1st DCA 1977); Price

Wise Buying Group v. Nuzum , 343 So. 2d 115, 116 (Fla. 1st DCA

1977).

48. Respondent's limited definition of "benefits" not only

deviates from Respondent's own rule but also ignores the "monthly

benefits" described in Sections 121.071, 121.091(1), 121.091(5),

121.091(6), and 121.091(7)(e)-(g). For example, Section

121.091(1) describes the normal retirement benefit as a monthly

benefit. Section 121.071 describes the retirement benefits for

members who began service in the FRS before it became

noncontributory in 1975, to include both personal contributions

and monthly benefits. For members who began service in the FRS

after 1975, however, the term "benefits" can mean only monthly

benefits. By ignoring these statutory provisions, Respondent

reduces each provision to a nullity.

49. Th e legislature does not intend any enactment to be a

nullity. The legislature should never be presumed to pass a

purposeless and useless piece of legislation. Sharer v. Hotel

Corporation of America , 144 So. 2d 813, 817 (Fla. 1962).

Significance and effect must be accorded each section in Chapter

121 in a manner that gives effect to Chapter 121 as a whole.

Villery v. Florida Parole and Probation Commission , 396 So. 2d

1107, 111 (Fla. 1980); State v. Gale Distributors, Inc. , 349 So.

2d 150, 153 (Fla. 1977); Ozark Corporation v. Pattishall , 185 So

333, 337 (Fla. 1938); Topeka Inn Management v. Pate , 414 So. 2d

1184, 1186 (Fla. 1st DCA 1982).

50. Retirement benefits include personal contributions and

monthly benefits. Both types of retirement benefits were enacted

in the same act and relate to the same subject matter. 1970 Laws

Of Florida , Chapter 70-112. Such statutes must be considered in

pari materia in a manner that harmonizes them and gives effect to

legislative intent for the entire act. Major v. State , 180 So.

2d 335, 337 (Fla. 1965); Abood v. City of Jacksonville , 80 So. 2d

443, 444-445 (Fla. 1955); Tyson v. Soutamire , 140 So 454, 456

(Fla. 1932). Such statutes are imbued with the same spirit and

actuated by the same policy. Pfeiffer v. City of Tampa , 470 So.

2d 10, 15 (Fla. 2d DCA 1985).

51. Respondent attempts to justify a forfeiture of the

monthly benefits Mrs. Thomas earned during 31.8 years of service

to the public school system on the grounds that Mrs. Thomas did

not intend for Petitioner to receive those benefits. Respondent

argues that there is no evidence that Mrs. Thomas wanted

Petitioner to receive her "retirement benefits." Respondent's

PRO at 7. According to Respondent:

After her marriage to him, she removed her

former husband as beneficiary, and named her

daughters as beneficiaries. For whatever

reasons, she did not designate him as a

beneficiary. There was no evidence of

oversight, incapacity, illiteracy, or

contrary intent. Likewise, there no [sic]

evidence in the Division's file that she

intended for [Petitioner] to receive her

retirement benefits.

Respondent's PRO at 7-8.

52. It is spurious to suggest that Respondent seeks to

carry out the intent of Mrs. Thomas by forfeiting her monthly

benefits to the state. The suggestion relies on the silent

premise that if the children were not entitled to the monthly

benefits authorized in Chapter 121, Mrs. Thomas preferred for the

state, rather than for Petitioner, to receive those benefits in

the form of a forfeiture. There is no evidence that Mrs. Thomas

wanted the state to receive either type of her "retirement

benefits." After Mrs. Thomas married Petitioner, she named her

daughters as beneficiaries. For whatever reasons, she did not

designate the state as a contingent beneficiary. There is no

evidence that Mrs. Thomas intended to designate the state as a

beneficiary of the monthly benefits she worked 31.8 years to

earn.

53. A forfeiture of the monthly benefits authorized in

Chapter 121 is not clearly required by statute. Where forfeiture

of retirement benefits is not clearly required by statute, no

forfeiture should be inferred. Ireland v. Thomas , 324 So. 2d

146, 147 (Fla. 1st DCA 1975). See also Williams v. Christian ,

335 So. 2d 358, 361 (Fla. 1st DCA 1976) (statutes should be

liberally construed to avoid forfeiture and liberally construed

to avoid and relieve from forfeiture).

54. Respondent has only that power which is expressly or by

necessary implication granted by legislative enactment. Lewis Oil

Co, Inc., v. Alachua County , 496 So. 2d 184, 187 (Fla. 1st DCA

1986); Department of Highway Safety & Motor Vehicles v. German ,

451 So. 2d 1013 (Fla. 3d DCA 1984); State, Department of

Environmental Regulation v. Falls Chase Special Taxing District ,

424 So. 2d 787, 793 (Fla. 1st DCA 1983). Any reasonable doubt as

to the lawful exercise of a particular power should be resolved

in favor of arresting the further exercise of that power.

Edgerton v. International Company , 89 So. 2d 488 (Fla. 1956);

State v. Atlantic Coast Line R. Co. , 47 So 969 (Fla. 1908);

Fraternal Order of Police, Miami Lodge v. City of Miami , 492 So.

2d 1122, 1124 (Fla. 3d DCA 1986).

55. The whole of retirement benefits is divided into two

parts. One part consists of personal contributions made by

members before 1975. The other part consists of monthly benefits

earned before and after 1975.

56. Respondent's proposed agency action rests on the

fallacious, albeit silent, premise that Chapter 121 requires

Respondent to distribute only those benefits to which the

beneficiary designated by the member is entitled in Section

121.091(7)(b). If that beneficiary is entitled in Section

121.091(7)(b) to only the personal contributions of the member,

Respondent erroneously assumes that Chapter 121 requires

Respondent to retain the monthly benefits.

57. Respondent's silent premise ignores the designated

beneficiary in Section 121.091(8) and the legislative intent

expressed therein. In effect, Respondent reduces Section

121.091(8) to a nullity and effectuates a forfeiture of those

retirement benefits comprised of monthly benefits; in

contravention of legislative intent and applicable case law.

Such a result has significant consequences for members who began

service after 1975 and are entitled to retirement benefits

comprised solely of monthly benefits.

58. The better course of action is to construe Sections

121.091(7)(b) and 121.091(8) in pari materia so as to maximize

the retirement benefits which are payable pursuant to Chapter

121. When a member designates a beneficiary who is entitled in

Section 121.091(7)(b)2 to only the member's personal

contributions, Section 121.091(8), in relevant part, makes the

surviving spouse the designated beneficiary entitled to the

monthly benefits which are payable pursuant to Sections

121.091(7)(b)1 and 121.091(6)(a)3. Alternatively, if a member

designates a beneficiary who is entitled in Section

121.091(7)(b)2 to only the member's personal contributions,

Section 121.091(8), in relevant part, makes the surviving spouse

the undesignated beneficiary entitled to the monthly benefits

which are payable pursuant to Sections 121.091(6)(a)2-4 and

121.091(7)(e)-(g).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent enter a Final Order awarding to

Petitioner, for the remainder of his life, the monthly benefits

earned by Mrs. Thomas during 31.8 years of service in an amount

that may range from $937.75 to $1,617.95, depending on the amount

of personal contributions repaid by Petitioner, and shall include

a lump sum payment of all monthly benefits plus accrued interest

from October 1, 1996, to the date of the first payment.

DONE AND ENTERED this 29th day of April, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of April, 1999.

COPIES FURNISHED:

Robert B. Button, Senior Attorney

Department of Management Services

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Granville E. Petrie, Esquire

1105 North Duval Street

Tallahassee, Florida 32303

A. J. McMullian, III, Director

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Emily Moore, Esquire

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

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.