STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARAH H. HOYLE, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1111

)

DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Fort Lauderdale, Florida, before the Division of Administrative Hearings and its duly designated Hearing Officer, R.

1. Carpenter, on July 31, 1980. The parties were represented by:

   
   

   APPEARANCES

   
   

   For Petitioner: Mrs. Sarah H. Hoyle, Pro se

   1201 Southwest 17th Street

   Fort Lauderdale, Florida 33315

   
   

   For Respondent: Augustus D. Aikens, Esquire

   Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C, Box 81

   Tallahassee, Florida 32303

   
   

   By letter dated March 6, 1980, Respondent advised Petitioner that she had exceeded the annual maximum of five hundred hours which a retired State of Florida employee is authorized to work for a state agency without loss of retirement benefits. The letter further informed Petitioner that she would be required to return $729.93 in retirement compensation plus interest, or forfeit future retirement benefits until the overpayments and interest were recovered.

   
   

   Petitioner questioned the procedures followed by her employer, as well as the demand for return of retirement compensation and payment of interest. She subsequently requested an administrative hearing to determine her obligations.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner retired from employment with the State of Florida effective January 1, 1976, and began drawing retirement benefits on that date. During 1979, she worked for the South Florida State Hospital, her former employer, on a temporary basis while continuing to receive retirement compensation of $235.46 monthly.

   2. At the request of the South Florida State Hospital, Petitioner worked from June 7 through August 10, and September 7 through December 6, 1979. On September 28, she reached five hundred hours of employment for the calendar year. Therefore, Petitioner exceeded five hundred hours of state employment during the months of September, October, November, and December, 1979.

      
      

   3. Respondent seeks return of retirement compensation for the last three days of September and for all of the months of October, November and December, plus ten percent annual interest. This amounts to $729.93 in retirement compensation plus $36.04 interest through April 30, 1980.

      
      

      CONCLUSIONS OF LAW

      
      

   4. Section 121.091(9), Florida Statutes (1979), provides in part:

      
      

      1. Any person who has 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 retirement 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 employment 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 requested by the employer and approved

         by the administrator.

         * * *

         (c) Any person receiving retirement com- pensation 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 com- pounded annually from date of receipt to date of repayment.

         The above provisions limit persons drawing state retirement benefits to five hundred hours of state employment annually except in special circumstances not applicable here. These provisions further require that retirement benefits be suspended at the five hundred hour point and not be resumed until employment in that calendar year ceases and the overpayments are returned with interest at the annual rate of ten percent.

         
         

   5. Mrs. Hoyle contends she was never informed of these provisions and that she was misled by South Florida State Hospital personnel officials who knew she was receiving retirement compensation. However, the above statute requires the retired employee to have knowledge of the five hundred hour maximum and to notify both the Division of Retirement and the employer in writing of pay and benefit limitations. Since Mrs. Hoyle failed to so notify the Division and the employer in writing, she cannot be relieved of the requirement to return the overpayments plus interest as provided by law.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That Petitioner be ordered to repay the State of Florida retirement compensation in the amount of $729.93 plus ten percent interest compounded annually.

RECOMMENDED this 12th day of August, 1980, in Tallahassee, Florida.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings Department of Administration

Room 101 Collins Building Tallahassee, Florida 32301

(904) 488-1777

Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1980.

COPIES FURNISHED:

Mrs. Sarah H. Hoyle 1201 S.W. 17th Street

Fort Lauderdale, Florida 33315

Augustus D. Aikens, Esquire Division Attorney

Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303

Christopher M. Rundle, Esquire South Florida State Hospital 1000 S.W. 84th Avenue Hollywood, Florida

Mr. A. J. McMullian, III State Retirement Director Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32303

Docket for Case No: 80-001111

Orders for Case No: 80-001111