STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL HUDSON, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1317

)

DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tavares, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on October 1979. On December 20, 1979, the Division of Administrative Hearings received petitioner's reply brief, which closed the record in this matter. At the hearing the parties were represented by counsel:

APPEARANCES

For Petitioner: Brian S. Duffey, Esquire

Post Office Box 1170 Tallahassee, Florida 32302

For Respondent: Stephen S. Mathues, Esquire

2639 North Monroe Street, Suite 207-C Tallahassee, Florida 32303

By petition for an administrative hearing dated June I3, 1979, petitioner alleged that "[commencing in August, 1961, employee retirement contributions were deducted from petitioner's compensation for services rendered as a tag agent . . . [which] deductions were contributed to the State and County Retirement System, pursuant to Chapter 122, Florida statutes . . . on a monthly basis through January, 1962"; that "[c]ontributions from petitioner's compensation were made to the Florida Retirement System, pursuant to Chapter 121, Florida Statutes, in December 1970, and continued until March, 1974"; that petitioner thereafter "tendered payment of the appropriate retirement contributions for the period February, 1962, through November, 1970 . . [but that] respondent has informed petitioner that he is ineligible for membership in the Florida Retirement System and has refunded to petitioner all contributions previously made during his employment as a tag agent for the Lake County Tax Collector." Petitioner "wants to pay all necessary retirement contributions to ensure his membership in the Florida Retirement System and to guarantee his receipt of retirement benefits."

FINDINGS OF FACT

1. A few years after entering the automobile business, but prior to 1950, petitioner Paul V. Hudson, was engaged by the Lake County Tax Collector to serve as the registration and license tag agent in Eustis, Florida. Petitioner served

   as a tag agent until August 20, 1975. On January 1, 1960, petitioner sold his automobile agency, but continued as a tag agent while preparing to open an insurance agency which he did in 1960 or 1961.

   
   

2. As a tag agent, petitioner sold license tags, transferred titles and certificates of registration, collected sales taxes, and performed other clerical and administrative tasks. His duties were the same as those of tag agents physically located in the Lake County Tax Collector's office. Petitioner was authorized to collect Florida sales and wholesale taxes. Petitioner made reports to the tax collector enumerating the number of tags sold, titles transferred and the amount of sales tax collected. When reports were made, petitioner deposited monies he had collected for the tax collector in the tax collector's account. These monies were never commingled with petitioner's personal or business accounts.

   
   

3. Petitioner maintained a separate office within his insurance agency office for tag agent business. At first, the same girl who helped with his insurance business also handled the tag agent duties, but later the volume of business required a separate girl to handle these duties. At various times during the course of petitioner's association with the tax collector, petitioner's wife, children and son-in-law performed the tag agent duties in Eustis.

   
   

4. The tax collector had control over petitioner in the performance of his duties as a tag agent, but the tax collector had no control over petitioner's office hours or his help. Petitioner conversed with the tax collector regularly by telephone. The tax collector supervised petitioner's work and gave petitioner orders pertaining to the job of tag agent. The tax collector kicked back errors if one of the girls working for petitioner made a mistake. The tax collector terminated petitioner's tag agency in August, 1975, and set up a branch office in Eustis to carry out the same duties petitioner had performed.

   
   

5. Until July of 1961, petitioner's compensation consisted of fees charged citizens for the convenience of paying taxes in Eustis. When petitioner forwarded monies to the tax collector, he retained these fees. The tax collector made no report or contributions for retirement benefits prior to 1961.

   
   

6. In July of 1961, the tax collector began paying petitioner a fixed monthly salary, without regard to sales volume. Beginning the following month, employee retirement contributions were deducted from petitioner's compensation and forwarded to the State and County Retirement System, pursuant to Chapter 122, Florida Statutes. This arrangement obtained until January of 1962, when the tax collector stopped paying petitioner a fixed monthly salary and began compensating him on a piecework basis: 32.5 cents for each tag sold to replace an old tag and 65 cents for each out-of-state title transfer and tag sale. These sales were tabulated monthly and the tax collector drew a check for the appropriate amount against his salary account in petitioner's favor.

   
   

7. With the change to a piecework basis, the tax collector stopped deducting employee retirement contributions, on the advice of the State Comptroller's office that petitioner was ineligible for coverage under the retirement system. Petitioner did not himself request that the contribution payments be stopped. For reasons that were not fully developed at the hearing, the tax collector made retirement system contributions on petitioner's behalf from December of 1970, until January of 1974. After petitioner made application for membership in the Florida Retirement System, contributions on account with

   the State and County Retirement System were transferred to the Florida Retirement System, on May 17, 1972, and credited to petitioner's account.

   
   

8. Petitioner was covered under the employees' blanket bond purchased by the tax collector's office to ensure favorable performance of its employees. From 1962 to 1975, the tax collector deducted federal withholding and social security taxes from monthly payments made to petitioner, and reported the payments on Internal Revenue Service form W-2.

   
   

9. When petitioner inquired whether he could tender payments for the period from February of 1962, through November of 1970, and obtain retirement benefit credit, respondent advised petitioner that he was ineligible for membership in the Florida Retirement System and refunded to petitioner all contributions that had been made while he was working for the Lake County Tax Collector as a tag agent.

   
   

   CONCLUSIONS OF LAW

   
   

10. Petitioner contends that he worked as an employee within the meaning of the Florida Retirement System Act, Chapter 121, Florida Statutes (1979) , and within the meaning of the laws governing the State and County Officers and Employees' Retirement System, Chapter 122, Florida Statutes (1979). The Florida Retirement System Act defines an employee as "any person receiving salary payment for work performed in a regularly established position Section 121.021(11). For purposes of Chapter 122, the term employee is defined to "include all full-time . . . employees who receive compensation for services rendered from state or county funds Section 122.02(1), Florida Statutes (1979).

    
    

11. Since petitioner was never employed by the tax collector on a full time basis, he was never eligible for participation in the State and County Officers and Employees Retirement System. See AGO 059-22, February 2, 1959.

    
    

12. With the possible exception of the period from July of 1961, until January of 1962, the tax collector's monthly payments to petitioner, even though drawn from the tax collector's salary account, never constituted "salary payment[s] for work performed in a regularly established position." Some unspecified proportion of the commissions paid to petitioner was a result of work performed not by petitioner, but by petitioner's employees and family members.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent declare petitioner ineligible to participate in the Florida Retirement System.

DONE and ENTERED this 18th day of January, 1980, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Brian S. Duffey, Esquire Post Office Box 1170 Tallahassee, Florida 32302

Stephen S. Mathues, Esquire 2639 North Monroe Street Suite 207-C

Tallahassee, Florida 32303

Docket for Case No: 79-001317

Orders for Case No: 79-001317