STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORMA I. BROWN and ALBERT S. ) BROWN, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1679

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came before the undersigned upon an agreement by the parties to waive the final hearing and submit memoranda of law in support of their respective positions.

The case was spawned by a request for retirement benefits filed by Petitioners, Norma I. and Albert S. Brown, with Respondent, Department of Administration, Division of Retirement, wherein they sought "normal" retirement benefits for Norma Brown, who retired due to a disability seven months prior to attaining the age of 60. The request was subsequently denied by Respondent and her benefits were reduced by using an early retirement factor.

Thereafter, Petitioners requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes to contest Respondent's decision. The matter was forwarded by Respondent to the Division of Administrative Hearings on June 22, 1982 with a request that a Hearing Officer be assigned to conduct a formal hearing. By notice of hearing dated August 4, 1982, the final hearing was scheduled for October 15, 1982, in Tampa, Florida.

Prior to the final hearing the parties agreed to waive the hearing, and stipulated that all pertinent facts were recited in the prehearing stipulation filed with the undersigned on October 8, 1982. They further agreed to submit memoranda of law on the legal issue involved in this case; the same were filed by Petitioner and Respondent on November 8 and 9, 1982, respectively, and have been considered by the undersigned in the preparation of this order.

The issue herein is whether Norma I. Brown is entitled to retirement benefits that she would have received at age 60 even though she retired at the age of 59 years and five months due to a disability.

Based on the prehearing stipulation and the pleadings filed herein the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Norma I. Brown, was a public school teacher for over twenty years in the Hillsborough County School System. Her last renewal of membership to the Retirement System for School Teachers occurred prior to July 1, 1963.

   
   

2. During her tenure with the school system, Petitioner was covered under Plan E and made all contributions required under the Plan.

   
   

3. Norma Brown retired on October 1, 1981. At the time of her retirement, she had accrued 21.67 years of creditable service under Plan E, and was 59 years and 5 months of age. The normal retirement age under Plan E is age 60.

   
   

4. The retirement was an approved disability retirement.

   
   

5. Petitioner's claim for full retirement benefits was denied by Respondent. Department of Administration, Division of Retirement. Instead, she was given benefits which were reduced by using an early retirement factor. The denial of her claim precipitated this proceeding.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

7. Subsection 238.07(2)(e), Florida Statutes, sets forth three forms of retirement for members of the school retirement system. As is pertinent here:

   
   

   (2) The provisions of the retirement of a (Plan E) member are as follows:

   * * *

   1. To retire:

      1. At normal retirement age which shall be age 60 for those persons whose membership date, or last renewal thereof, occurred prior to July 1, 1963, and age 62 for those persons whose membership date, or last renewal thereof, occurred on or after July 1, 1963; or

      2. Prior to normal retirement age but at or subsequent to age 55, provided that upon such date the member has completed 10 years

         of creditable service, which shall be the early retirement age; or

      3. Subsequent to normal retirement age, which shall be the delayed retirement age; (this provision shall be known and referred to throughout this chapter as plan E).

   
   

   Accordingly, the three forms of retirement under Plan E are "normal retirement", "early retirement", and "delayed retirement". Because Petitioner retired prior to age 60, which is the normal retirement age under this Plan, her retirement falls within the category of "early retirement" as described in the foregoing statute.

8. Subsection 238.07(11)(e), Florida Statutes, provides as follows:

   
   

   (11) Upon retirement on account of disability, a member shall be paid his service retirement allowance if he is eligible for a service retirement allowance; otherwise, he shall receive a

   retirement allowance which shall consist of:

   * * *

   (e) if he is making contributions for retirement under plan E, he shall receive a retirement allowance which shall consist of 100 percent of the retirement allowance to which he would be entitled if his date of disability retirement were his otherwise normal retirement date; provided, however that the retirement allowance payable upon

   disability retirement shall not be less than

   25 percent of average final compensation or, if disability retirement occurs prior to the date on which the member is first eligible for service retirement, shall it be greater than the service retirement allowance to which the member would be entitled if he continued in active service to such date at the same rate of compensation effective on the date of disability retirement.

   
   

   Petitioner retired under an approved disability, and therefore the provisions of the foregoing statute come into play.

   
   

9. The dispute between the parties arises over the proper interpretation to be placed upon Subsection 238.07(11), supra. In brief, Petitioner contends that paragraph (11)(e) is applicable to her situation, and clearly provides that she "shall receive a retirement allowance which shall consist of 100 percent of the retirement allowance to which (s)he would be entitled if (her) date of disability retirement were (her) otherwise normal retirement date". Therefore, Petitioner asserts that her benefits should be computed as if she had retired at the normal retirement age of 60. Respondent generally counters that Petitioner is entitled only to her "service retirement" benefits as stated in subsection (11), and that the alternative provisions in paragraph (11)(e) do not apply. Neither party has cited a final agency order or decisional law that interprets the statute in question.

   
   

10. Because Petitioner retired prior to age 60, her retirement must be classified as "early retirement" with in the meaning of the law. Subsection 238.07(e)2., supra. Further, since her retirement was due to an approved disability, the statutory rules in Subsection 238.07(11), supra, must be followed. That subsection provides two alternatives for calculating retirement benefits when a teacher retires on account of disability. First, the member "shall be paid (her) service retirement allowance if (s)he is eligible for a service retirement . . ." Second, if the member is not eligible to be paid her service retirement, the provisions of paragraph (11)(e) apply. Because Norma Brown was eligible on October 1, 1981 to be paid her service retirement, the first alternative is controlling. 1/

11. Such a result is in conformity with the clear and express terms of the law. Moreover, it is consistent with the interpretation placed upon the law by the agency, and must be accorded considerable weight. State ex rel. Bennett v. Lee, 123 Fla. 252, 166 So.565 (1936). Therefore, the petition of Norma Brown for increased retirement benefits should be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Norma I. and Albert S. Brown for increased

retirement benefits be DENIED.

DONE and ORDERED this 30th day of November, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1982.

ENDNOTE

1/ Petitioner's benefits have been calculated in accordance with this alternative.

COPIES FURNISHED:

Marc I. Sachs, Esquire BRIGHAM MOORE MUIR GAYLORD

SCHUSTER & SACHS

One Mack Center, Ste. 1606 Tampa, Florida 33602

Augustus D. Aikens, Jr., Esquire Division of Retirement

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: 82-001679

Orders for Case No: 82-001679