STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THERON J. OWEN, )

)

Petitioner, )

)

vs. ) CASE NO. 79-485

)

DIVISION OF RETIREMENT, ) DEPARTMENT OF ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter after due notice, at Winter Park, Florida, on June 19, 1979, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Theron J. Owen

818 San Juan Boulevard Orlando, Florida 32807

For Respondent: L. Keith Pafford, Esquire

Division Attorney Division of Retirement

Department of Administration Cedars Executive Center

2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32302

ISSUE PRESENTED

Whether Petitioner's retirement benefits should be suspended pursuant to Section 121.091(9)(c) , Florida Statutes.

Petitioner appeared at the hearing unaccompanied by counsel or other representative. His rights in administrative proceedings conducted pursuant to Chanter 120, F.S., were explained to him and he elected to represent himself in the matter.

FINDINGS OF FACT

1. Petitioner Theron J. Owen was employed by the Department of Transportation, State of Florida, for a period of 13 years, and made contributions under the applicable retirement system during that period. On March 1, 1977, at the age of 56, he retired under the Florida Retirement System, Chapter 121, Florida Statutes, with a monthly benefit of $88.79. (Testimony of Petitioner, Respondent's Exhibit 1)

2. Petitioner was reemployed by the Department of General Services as a security guard at the State Office Building in Winter Park, Florida, on Nay 19, 1978. In December, 1978, Respondent received from Petitioner an executed Form FR23 "Application of Retiree for Suspension of Retirement Benefit and Return to Service" wherein he advised the Director of Retirement of his employment with the Department of General Services and that he had reached 500 hours of reemployment on August 15, 1978. Petitioner previously had provided verbal notice of his reemployment to Respondent in November, 1978. (Respondent's Exhibits 1-2)

   
   

3. Petitioner's retirement benefits were suspended by Respondent in November, 1978, pursuant to Section 121.091(9) Statutes. However, December, benefit was inadvertently paid to Petitioner. During the period August- December, 1978, Respondent received $314.70 in retirement benefits. (Respondent's Exhibit 1, Stipulation of Parties)

   
   

4. Petitioner elected to take "early" retirement, but obtained reemployment with the state for financial reasons. He acknowledges his indebtedness to the state, but has been unable to obtain a loan to repay the overnayments. He has not received retirement benefits during 1979. He is of the opinion that the statutory provision which limits a retired state employee to state benefits only during the first 500 hours of reemployment with the state shows a punitive intent on the part of the legislature to prevent retired personnel from returning to gainful state employment. During his one-year tenure with the Department of General Services, he has been promoted and received an "above-satisfactory" performance rating. (Testimony of Petitioner, Petitioner's Exhibit 1)

   
   

   CONCLUSIONS OF LAW

   
   

5. Chapter 121, Florida Statutes, "Florida Retirement System," states pertinently in Section 121.091(9) as follows:

   
   

   121.091 Benefits payable under the system.--

   (9) EMPLOYMENT AFTER RETIREMENT; LIMITATION.

   (a) Any person who is accepted and is receiving retirement compensation under this chapter may be employed by an employer only if the employer is unable to employ a qualified individual who has not retired, and such employment shall not affect

   the rights of such retired member under this retire- ment system, including, without limiting the general terms thereof, his right to receive his retirement allowance. Said total employment by one or more employers, is limited and shall not exceed employ- ment in excess of 500 hours during any one calendar year without suspending his retirement benefits

   -as provided in Paragraph (c) of this subsection, except when a longer period of employment is re- quested by the employer and approved by the adminis- trator.

   (c) Any person receiving retirement compensation under this chapter who is employed by an employer covered under this chapter in excess of 500 hours, as provided in paragraph (a) of this subsection shall furnish timely notice in writing to the employer by which he is being or becoming employed

   and to the administrator of the fact that he is or would be receiving retirement compensation and

   employment compensation or salary at the same time.

   Should he fail to do so, and should he receive

   and retain both benefits and compensation in excess of that provided in paragraph (a) of this subsection, he shall forfeit all of the benefits of this chapter until full restitution has been made to the trust fund of all such excess benefits with interest at

   10 percent compounded annually from date of receipt to date of payment.

   
   

6. The Department of General Services, a department of the state, is an "Employer" under subsection 121.021(10), F.S., and consequently the provisions of subsection 121.091(9) are applicable to Petitioner's employment with that agency. Inasmuch as Petitioner exceeded the 500 hour reemployment limitation specified in the statute on August 15, 1978, Respondent was required to suspend retirement benefits thereafter. Subsection 121.091(9)(c) requires that the affected employee furnish timely notice in writing to both his employer and the Director of the Division of Retirement of his reemployment status in order that retirement benefits can be suspended after 500 hours have been accrued. Petitioner failed to provide such timely notification, and as a consequence, the overpayments in question were made and benefits have been suspended since November, 1978, except for the inadvertent payment of the December benefit by Respondent. Until reimbursement of the overpayment, with interest as provided by the statute, is made by Petitioner, retirement benefits must be suspended and forfeited. Accordingly, approval of Petitioner's request that retirement payments be made for the year 1979 is unauthorized.

RECOMMENDATION

That Respondent suspend payment of retirement benefits to Petitioner until restitution has been made of excess benefits paid in the amount of $314.70, plus accrued interest at 10 percent compounded annually from date of receipt of such excess benefits until date of repayment.

DONE and ENTERED this 29th day of June, 1979, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Theron J. Owen

818 San Juan Boulevard Orlando, Florida 32807

L. Keith Pafford, Esquire Division Attorney Division of Retirement

Department of Administration Cedars Executive Center2639 North Monroe Street

Suite 207C, Box 81 Tallahassee, Florida 32302

Docket for Case No: 79-000485

Orders for Case No: 79-000485