LOU J. LAMONTE, )
vs. ) CASE NO. 77-2216
Respondent. )
This matter came on for hearing in Tampa, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Delphene C. Strickland, on January 12, 1978.
For Petitioner: David A. Townsend, Esquire
For Respondent: Stephen S. Mathues, Esquire
Assistant Division Attorney Division of Retirement Department of Administration Cedars Executive Center Tallahassee, Florida
Whether the Petitioner should be permitted to return his retirement contributions and be reinstated in the Florida Retirement System so that he can apply for disability benefits from the Florida Retirement System.
Petitioner is a thirty-four year old man, having left high school in the eleventh grade in order to get married, but later took the GED test to qualify as a high school graduate. Some years later he was informed by an Ophthalmologist that he had fallen into the bracket of being legally blind, a status which categorizes a person who has ten percent (10%) or less vision.
Petitioner can and does read.
He worked for a bakery which entailed work with machinery and required extensive reading, but was advised by the ophthalmologist to find a job where he
would not be required to work with machinery and which did not require extensive reading.
Petitioner began participating in the State and County Officers and Employees Retirement System on July 1, 1969, when he became a partner in a blind vending stand. He elected to become a member of the Florida Retirement System on December 1, 1970.
Petitioner attended two (2) agency meetings at which retirement was discussed. He stated that he had changed from the State and County Officers and Employees Retirement System (Chapter 122, Florida Statutes) to the Florida Retirement System (Chapter 121, Florida Statutes), and was prompted to make the change because a senior partner in the business who had been there for many years said that it was a good idea for him and for the younger partner to sign into the new system. He stated that there probably was a discussion relative to the merits of the new retirement system but that he did not remember anything about it. He did, however, sign the card to change retirement systems.
On June 1, 1971, Petitioner suffered some type of injury to his back which was subsequently diagnosed as a sprain. Petitioner received medical treatment and returned to work where he continued to work for the Bureau of Blind Services for approximately three years, resigning November 11, 1974.
On March 5, 1975, Petitioner obtained a lump sum as a settlement for this disputed claim under the Florida Workmen's Compensation Act.
Petitioner went on leave February 5, 1974, after supplying his supervisor, Mr. Eurgil G. Crawford, Administrative Vending Stand Section, Bureau of Blind Services, with a letter from the physician stating that Petitioner had a "nervous condition." In a letter of October 10, 1974, Mr. Crawford advised Petitioner to either return to work or to contact them if it was not possible. He also stated that the Petitioner would have sixty (60) days in which he might come back to work if he so desired, but that after that time his position would have to be filled permanently by another employee. Petitioner had had some employment problems with the other two (2) members of the three (3) man working team. The problems involved the work at the stand, cleanliness and the lifting necessary to operate the stand. He stated that he and the other two (2) members just could not get together as far as working as a team was concerned.
After termination of employment, which was voluntary on the part of Petitioner, Petitioner contacted the supervisor, Mr. Crawford, and asked whether he was entitled to benefits he had contributed and was told that he was. Thereupon, Mr. Crawford sent him the necessary forms to apply for a refund. A refund was made after Petitioner had signed the proper forms and returned them to Mr. Crawford. Two (2) state warrants were issued to Petitioner, one on December 19, 1974, and a subsequent one to close out his account.
Petitioner did not work after leaving the Blind Services and has not attempted to find work but receives disability benefits from Social Security based on a 15 percent permanent partial disability rating. He stated that "I have come up with a couple of not so advantageous jobs, you know, its a possibility of getting hurt and one thing and another, I haven't done anything."
Subsequently, Petitioner requested information from the Respondent and, after receiving literature from them in 1976, tendered a sum of money equal to the refund he had received so he could apply for disability retirement benefits. The tender of the repayment of his contributions was denied.
Petitioner applied for this administrative hearing.
Petitioner contends:
That he was unaware of a choice to apply for a disability rating when he signed the waiver to obtain a refund.
That the supervisor owed Petitioner a special duty to inform him of the possibility of applying for disability benefits before requesting a return of his contributions.
Respondent contends:
That Petitioner was present at meetings at which the retirement system was discussed; he had information that caused him to transfer to the Florida Retirement System; that he knew of eligibility requirements under the Florida Retirement System and that requirements for eligibility were written in a booklet he had obtained from an employee of the retirement system and that he testified he knew of the five year eligibility requirement.
That Petitioner voluntarily signed the waiver, that he had due notice and that the tender of the refund was properly denied.
CONCLUSIONS OF LAW
Section 121.031, Florida Statutes, provides in part:
121.031 Administration of system; appro- priation.--The Department of Administration, through the Division of Retirement, shall make such rules as are necessary for the effective and efficient administration of this system.
Rule 22B - 4.09(5), Florida Administrative Code, provides:
In order to receive a refund of contributions under the Florida Retirement System, a member must become a terminated member as defined in 22B-6.01(44), and submit a request for refund (Form FRS-M81) to the Administrator through his employer of his termination of employment.
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 accor- dance with Section 22B-2.04.
Rule 22B-6.01(44), Florida Administrative Code, provides:
TERMINATED MEMBER - Means any former member of the Florida Retirement System who is no longer receiving salary payments for work performed in a regularly established position and is not on a leave of absence creditable under the Florida Retirement System.
Form FRS-M81 provides:
TO THE DIVISION OF RETIREMENT: I hereby make
application for refund of my accumulated con- tributions in the Florida Retirement Systems.
1 do hereby waive for myself, my heirs and assignees all rights, title and interest in the Florida Retirement Systems.
Petitioner voluntarily requested the forms to withdraw his contributions and subsequently signed Form FRS-M81 and obtained his refund.
More than a year later he tendered the refund to Respondent in order to then purchase "prior service" and apply for a disability rating in lieu of the refund.
The signing of the waiver was voluntary and Petitioner had either actual or constructive notice that he was waiving "all rights, title and interest in the Florida Retirement System." He could have and may have read the waiver as well as the various bulletins and information relative to the Florida Retirement System.
Section 121.021(19), Florida Statutes, provides:
(19) "Prior service" under this chapter mean's:
(a) Service for which the member had credit under one of the existing systems and received a refund of his contributions upon termination of employment. Prior service shall also include that service between December 1, 1970, and the date the system becomes noncontributory for which the member had credit under the Florida Retirement System and received a refund of his contributions upon termination of employment. After the date the Florida Retirement System becomes noncontributory, prior service shall also include that service for which the member had credit under the noncontributory provisions upon termination of employment.
Section 121.081(2), Florida Statutes, provides:
Prior service, as defined in s. 121.021(19), may be claimed as creditable service under the Florida Retirement System after a member has been reemployed for 12 continuous months. The member shall not
be permitted to make any contributions for prior service until after the 12-month period. The required contributions for claiming the various types of prior service are:
For prior service performed prior to the date the system-becomes noncontributory for the member and for which the member had credit under one of the existing retirement systems and received a refund of contributions upon termination of employment, the member shall contribute 4 percent of all salary received during the period being claimed, plus 4 per- cent interest compounded annually from date
of refund until July 1, 1975, and 6.5 percent interest compounded annually thereafter, until full payment is made to the Retirement Trust Fund.
Petitioner has not been reemployed for 12 continuous months and has not sought employment.
For the orderly administration of the Florida Retirement System, the Respondent must process claims for refund in compliance with the statutes and rules promulgated thereunder. Respondent has shown it followed an education program to inform employees of their rights as well as the notice given by the statute, rules and the written forms furnished to Petitioner. To grant an exception to Petitioner would open the door to a miscellany of abuses.
Petitioner has shown that he was given ample opportunity to learn of the requirements of the law and the rights he had thereunder. He has failed to show his waiver was not valid or that he had no notice of his rights. Cf. 12 Fla. Jur. Estoppel and Waiver, sec.7; Applefield v. Commercial Standard Insurance Co., 176 So.2d 366.
Petitioner's waiver in 1974 was valid although he may have actually learned of his disability rights under the Florida Retirement System possibly through his obtaining a Workman Compensation award in 1975 and a disability rating under the Social Security Act. He retains the right under the statute to purchase "prior service" he desires in this proceeding provided he becomes employed again for a period of 12 months.
Deny the Petition.
DONE and ORDERED this 18th day of April, 1978, in Tallahassee, Florida.
DELPHENE C. STRICKLAND
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
David A. Townsend, Esquire Albritton, Sessums & Di Dio
Stephen S. Mathues, Esquire Assistant Division Attorney Division of Retirement Department of Administration Cedars Executive Center Tallahassee, Florida
