STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERNON TAYLOR BELL, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2499

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, MICHAEL PEARCE DODSON, held the final hearing in this case on April 2, 1982, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Silas R. Eubanks, Esquire

103 North Gadsden Street Post Office Box 4266 Tallahassee, Florida 32303

For Respondent: William Frieder, Esquire

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

BACKGROUND

These proceedings began when Petitioner Vernon Taylor Bell filed a complaint against Respondent Department of Administration, Division of Retirement (Division). On October 8, 1981, the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. The hearing was originally set for February 22, 1982, but was continued at Petitioner's request until April 2, 1982.

At the final hearing Petitioner's Exhibits 1, 2 and 3 were offered into evidence. Exhibits 1 and 2 were admitted. Respondent offered Exhibits A-I, K1, K2, H and L into evidence. Exhibits A-I, K1 and H were admitted.

At the conclusion of the hearing the parties were informed of their right to submitted proposed Findings of Fact and proposed Recommended Orders. Section 120.57(1)(b)4. Florida Statutes (1981). Subsequent to the final hearing, the parties informed the Hearing Officer that they did not desire to make such submissions.

ISSUE PRESENTED

May Petitioner make an application with Respondent for disability retirement benefits when he was already applied for and has received regular retirement payments?

FINDINGS OF FACT

1. Mr. Vernon Taylor Bell voluntarily terminated his employment with the Department of Legal Affairs on February 26, 1980. By that date he had accumulated 23.66 years of service for credit in the Florida Retirement System.

   
   

2. After his termination Mr. Bell had a conference with a retirement benefits specialist, Ms. Taylor, who is an employee of Respondent. At Mr. Bell's request she gave him an estimate of his retirement benefits for a regular retirement. She did not discuss the benefits which a disabled retiree might receive. The testimony of Ms. Taylor and Mr. Bell is in conflict on whether or not she discussed disability retirement benefits with him. Ms. Taylor's testimony is accepted as being more credible because Mr. Bell was shown throughout his testimony to have a poor memory.

   
   

3. Mr. Bell began to receive regular retirement benefits in the monthly amounts of $178.32 on May 30, 1980. Since that date he has continued to receive and accept regular retirement payments. Petitioner has cashed or deposited his first benefit check.

   
   

4. If Mr. Bell were to be granted disability retirement benefits rather than regular retirement benefits, his monthly payment would be substantially increased.

   
   

5. Petitioner did not present credible evidence that he was misinformed or mislead by Respondent about the relative advantages to him in electing to apply for regular retirement as opposed to applying for disability benefits.

   
   

6. On August 26, 1980, Mr. Bell wrote a letter to Mr. Andrew M. McMullian III, who is the State Retirement Director. Mr. Bell stated that he had been given incorrect information about the disability benefits he might be eligible for. He requested that he be allowed to make an application as a disabled retiree.

   
   

7. On October 1, 1980, Mr. McMullian responded to Mr. Bell in a letter which states in part:

   
   

   We have reviewed your retirement account and have determined the information provided to you by this office was correct regarding your retirement eligibility. We regret if there was any misunderstanding on your part re- garding disability retirement; however, we cannot honor your request to be retired with disability at this late date, because you

   applied for regular retirement which was approved for you effective April 1, 1980. Your initial monthly benefit was $178.32 and your July 1980 benefit payment contained a cost-of-living increase, thus your current monthly benefit is $179.73.

   
   

   The Florida Retirement System law requires certification by two licensed physicians in Florida that one is totally and permanently disabled and unable to render any useful and efficient work before this agency can approve an employee for retirement with disability.

   Apparently, you made no attempt to retire with disability, other than discussing the matter in general with us, and according to our records, you made no application for disability retirement. Further, a retiree is not allowed by law to change his type of re- tirement once he begins drawing monthly re- tirement benefits.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1981).

   
   

9. The Florida Retirement System is established in Chapter 121, Florida Statutes (1981). There is no dispute here that Mr. Bell is a member of the system and that he is entitled to regular retirement benefits. There is likewise no dispute between the parties yet, over whether Mr. Bell might ultimately qualify for disability retirement benefits. That issue is premature because the Division asserts that Mr. Bell is foreclosed by operation of law from even applying for disability retirement. The Division's position is set out in Mr. McMullian's October 1, 1980 letter where he states, "Further, a retiree is not allowed by law to change his type of retirement once he begins drawing monthly retirement benefits."

   
   

10. Petitioner seeks to avoid the Division's interpretation of the law by asserting that he was given choice of regular retirement. The evidence does not support his assertion. Even if it did, the Division may not be estopped from applying the correct law to Mr. Bell's situation by incorrect information given him by the Division's employees. In the case of Department of Administration, Division of Retirement v. Flowers, 356 So.2d 14 (Fla. 1st D.C.A. 1978) estoppel was found not to lie against the Division of Retirement. The court in its complete opinion states:

    
    

    The lower court, applying estoppel, ordered the Department to pay retirement benefits to Appellee in accordance with an incorrect estimate that the Division of Retirement's Benefit Calculation Section had mistakenly furnished Appellee in response to his in- quiries about his prospective retirement benefits. The Department contends here that the court erred in applying estoppel against

    the State. We reluctantly agree and reverse. The authorities are clear that estoppel can- not be raised against the State unless there are exceptional circumstances and some posi- tive act on the part of a state officer.

    Gay v. Inter-County Tel. & Tel. Co., 60 So.2d

    22 (Fla. 1952); Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971).

    
    

    REVERSED.

    
    

    Mr. Bell's estoppel argument is therefore rejected on both the law applicable here and on the evidence presented at the final hearing.

    
    

11. The Division's contention that Mr. Bell may not change his retirement election rests on no firmer legal than, does his estoppel argument. At the final hearing, the Division relied on Section 22B-4.10(5), Florida Administrative Code for its "election" argument. It states:

    
    

    A member shall select an option for

    receiving benefits and may select a different option prior to the time the first benefit check has been cashed or deposited. There- after, the member shall not be permitted to change the option he selected, except as pro- vided in Section 22B-4.10(7).

    
    

    Because paragraph (5) cannot be understood without considering other portions of Section 22B-4.10, they will be quoted here:

    
    

    1. A member who is eligible for a retire- ment benefit computed in accordance with Section 22B-4.04, 22B-4.05 or 22B-406 shall elect in the manner prescribed by the Admini- strator, prior to the receipt of his first monthly retirement payment, to receive the retirement benefits for which he is eligible in accordance with one of the following options:

       
       

       1. Option 1. The maximum retirement bene- fit payable to the member during his lifetime.

          
          

       2. Option 2. A retirement benefit payable during his lifetime and, in the event of

          of death within a period of 10 years after his retirement, the same monthly amount to

          be payable to his beneficiary for the balance of such 10-year period.

          
          

       3. Option 3. A retirement benefit which shall be payable during the joint lifetime of both the member and his joint annuitant and shall continue after the death of either during the lifetime of the survivor in the same amount.

       4. Option 4. A retirement benefit payable during the joint lifetime of the member and his joint annuitant, and which shall continue after the death of either during the lifetime of the survivor in an amount equal to 66 2/3 percent of the amount which was payable during the joint lifetime of the member and his joint annuitant.

    
    

    When paragraph (5) is read in pari materia with the remainder of Section 22B- 4.10, it is clear that the "options" mentioned in paragraph (5) are those set out in paragraph (1) at subparagraphs (a), (b), (c) and (d). They refer to normal retirement (Section 22B-4.04), early retirement (Section 22B-4.05) or dual retirement (Section 22B-4.06). Nowhere does Section 22B-4.l0 refer to choosing between regular retirement and disability retirement (Section 22B- 4.07). For this reason, the Division's reliance on paragraph (5) to foreclose Mr. Bell's application for disability benefits is misplaced.

    
    

12. This conclusion was recognized by the Division in the case of Motes v. Department of Administration Division of Retirement, Case No. 78-2105, (Florida, Department of Administration, Division of Retirement, Final Order August 31, 1979). Louise Motes was the surviving spouse of a deputy sheriff who died of a heart attack while arresting a subject who resisted the arrest. Mrs. Motes applied for and was receiving regular retirement benefits as a surviving spouse. She later became aware of the provisions for in-line-of-duty death benefits and asked to receive them pursuant to Section 121.091(7)(c), Florida Statutes (1977) and Section 22B-4.08, Florida Administrative Code. Mrs. Motes' request to apply for in-line-of-duty death benefits was denied by the Division and she sought a Section 120.57(1) hearing. At the conclusion of the final hearing the Hearing Officer relied on paragraph (5) of Section 22B-4.10, Florida Administrative Code to recommend that Mrs. Motes not be allowed to apply for in-line-of-duty death benefits. See Recommended Order, June 1, 1979. This recommendation was rejected by the State Retirement Director in his Final Order. He ordered that Mrs. Motes be permitted to apply for in-line-of-duty death benefits. The Motes decision is strong precedent here. Like disability in-line-of-duty benefits, disability retirement benefits are not one of those options referred to in paragraph (5).

    
    

13. Without either statutory or rule authority on which to rest its decision here (not to allow Mr. Bell's application) the Division could still legally refuse his application if there existed in the record sufficient evidence to support an "incipient policy" to this effect. Florida Cities Water Company v. Florida Public Service Commission, 384 So.2d 1280 (Fla. 1980); Department of Education v. Atwater, So.2d , 7 FLW 1539 (Fla. 1st D.C.A. July 20, 1982). No such evidence was presented here, however. There is therefore no basis for summarily rejecting Mr. Bell's request to apply for disability retirement.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the State Retirement Director enter a Final Order authorizing Mr. Bell is submit an application for disability retirement benefits.

DONE and RECOMMENDED this 24th day of August, 1982, in Tallahassee, Florida

MICHAEL PEARCE DODSON

Hearing Officer

Department of Administration Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24 day of August, 1982.

COPIES FURNISHED:

Silas R. Eubanks, Esquire

103 North Gadsden Street Post Office Box 4266 Tallahassee, Florida 32303

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

Daniel C. Brown, Esquire General Counsel

Department of Administration

530 Carlton Building Tallahassee, Florida 32301

Nevin G. Smith Secretary

Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 81-002499

Orders for Case No: 81-002499