STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY LOU BROWN, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5682

)

DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on December 11, 1991, at Bartow, Florida.

APPEARANCES

For Petitioner: Betty Lou Brown, pro se

2290 South Hunt Point

Crystal River, Florida 32629

For Respondent: Larry D. Scott, Esquire

2639 North Monroe Street Cedars Executive Center Building C

Tallahassee, Florida 32399-1560 STATEMENT OF THE ISSUES

Whether Petitioner is entitled to purchase for retirement purposes the five years she was employed by American Legion Post No. 4 between 1967 and 1972, during which period American Legion Post No. 4 acted as agent for the Polk County Tax Collector.

PRELIMINARY STATEMENT

By letter dated July 18, 1991, Betty Lou Brown, Petitioner, requested a formal hearing to challenge the position of the Division of Retirement, Respondent, that she was not eligible to receive credit for the five years she was employed by American Legion Post No. 4 in Lakeland, Florida, between 1967 and 1972, and these proceedings followed. At the hearing, Petitioner called three witnesses, including herself, and four exhibits were admitted into evidence. There is no dispute regarding the operative facts here involved.

Accordingly, proposed findings submitted by Respondent are accepted.

FINDINGS OF FACT

1. Petitioner was employed by the American Legion Post No. 4 on March 17, 1967 and remained so employed through November 15, 1972.

2. During this period, American Legion Post No. 4 was under contract with the Polk County Tax Collector to sell automobile tags, hunting and fishing licenses, boat registrations, etc., as an agent of the Tax Collector; and to remit funds so collected to the Tax Collector. Although these collections were remitted to the Tax Collector, in many instances checks from American Legion Post No. 4 were made payable to the Department of Motor Vehicles.

   
   

3. The contract between the Tax Collector and American Legion Post No. 4 was a five year contract which was renewed for an additional five years on June 1, 1972. At this time, Petitioner was the manager of the tax collection agency run by American Legion Post No. 4.

   
   

4. Irregularities in the operation of this tag agency led to an FBI investigation which culminated in the Tax Collector cancelling the contract with American Legion Post No. 4 on November 15, 1972.

   
   

5. Effective November 16, 1972, the former employees at the American Legion tag agency, including Petitioner, were employed by the Polk County Tax Collector and enrolled in the Florida Retirement System (FRS).

   
   

6. While employed by American Legion Post No. 4, neither Petitioner, nor her employer, contributed to a retirement system; and Petitioner was not entitled to leave benefits prescribed for state or county employees.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. Section 121.081(g), Florida Statutes, provides in pertinent part:

   
   

   When any person, either prior to this act or hereafter, becomes entitled to and does parti- cipate in one of the retirement systems con- solidated within or created by this chapter through the consolidation or merger of govern- ments . . . or through the assumption of func- tions or activities by a state or local unit from an employing entity which was not an employer under the system, and such person becomes a member of the Florida Retirement System, such person shall be entitled to receive post-service credit as defined in

   s. 121.021(18) for the time such person per- formed services for and was an employee of,

   . . [the] other employing entity prior to the transfer, merger, consolidation, or assumption of functions and activities.

   
   

9. Section 121.021(10) defines employer to include only governmental agencies, and the American Legion Post No. 4 was not an employer under the system as used in the above quoted provision.

   
   

10. Rule 22B-1.0075, Florida Administrative Code, establishes guidelines for entering the Florida Retirement System (FRS) when governmental units are merged or consolidated; but does not address the situation here involved where

    the functions performed by one employed by an employing entity, which was not an employer under the system, is taken over by a governmental entity.

    
    

11. In construing a statute, the starting point for interpreting a statute is the language of the statute itself; absent a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive. Consumer Product Safety Commission v. GTE Sylvania, 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed. 2d 776 (1980). In statutory construction legislative intent is the pole star by which courts must be guided, and this intent must be given effect even though it may appear to contradict the strict letter of the statute and well settled canons of construction. Wakulla Co. v. Davis, 395 So.2d 540 (Fla. 1981).

    
    

12. It is elementary that it is the function of the court to ascertain and give effect to the legislative intent in enacting the statute. In applying this principle, certain rules have been adopted to guide the process of judicial thinking. The first of these is that the Legislature is conclusively presumed to have a working knowledge of the English language, and when a statute has been drafted in such a manner as to clearly convey a specific meaning the only proper function of the court is to effectuate this legislative intent. Florida State Racing Commission v. McLaughlin, 102 So.2d 574.578 (Fla. 1958).

    
    

13. A literal interpretation of a statute need not be given when to do so would lead to an unreasonable or ridiculous conclusion. Such a departure from the letter of the statute is permissible only when there are cogent reasons for believing that the letter of the law did not accurately disclosed the legislative intent. Shell Harbor Group v. Division of Alcoholic Beverages and Tobacco, 487 So.2d 1141 (Fla. 1st DCA 1986).

    
    

14. It is a cardinal rule of statutory construction that the entire statute under consideration must be considered in determining legislative intent, and effect must be given to every part of the section and every part of the statute as a whole. From a review of the whole law in para materia the reviewing court will determine legislative intent. State v. Gale Distributors, 349 So.2d 150 (Fla. 1977).

    
    

15. An agency is afforded wide discretion in the interpretation of a statute which it administers and will not be overturned on appeal unless clearly erroneous. The reviewing court will defer to any interpretation within the range of possible interpretations. Natalson v. Dept. of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984), accord DER v. Goldring, 477 So.2d 532, 534 (Fla. 1985); Sans Souci v. Division of Land Sales, 421 So.2d 623 (Fla. 1st DCA 1982).

    
    

16. In interpreting Section 121.081(g), Florida Statutes, the Division of Retirement has promulgated Rule 22B-2.004, Florida Administrative Code, entitled Credit for Prior Service. This rule provides prior service credit may be claimed by any member of the FRS who complies with the provisions of this section when such prior service conforms to specifically named circumstances. These circumstances include (a) refunded services under an existing system; (b) services with an employee who was participating in an existing system at the time the service was performed; (c) service performed prior to 1947, otherwise creditable; (d) refunded FRS service for membership in the FRS between December 1, 1970 and the date the system became non-contributory for the employee; and

    (e) Highway Patrol Training service. Petitioner fits into none of these categories.

17. Under the rule of ejusdem generis used in statutory construction, by naming the circumstances under which a current member of the FRS may claim credit for prior service, all other circumstances are excluded. Since Petitioner's employment by the American Legion Post was not under any retirement system and the American Legion Post was simply under contract with the Polk County Tax Collector to act as the Tax Collector's agent in selling tags, Petitioner was not entitled to claim credit for employment when the contract with the American Legion Post was terminated and Petitioner was employed by the Polk County Tax Collector.

    
    

18. From the foregoing, it is concluded that Petitioner is not eligible to claim credit for FRS retirement purposes for the years she worked for the American Legion Post from 1967 to 1972.

RECOMMENDATION

It is recommended that the Petition of Betty Lou Brown for retirement credit for the period 1967 through 1972 while she was employed by the American Legion Post No. 4 be denied.

RECOMMENDED this 6th day of January, 1992, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1992.

COPIES FURNISHED:

Betty Lou Brown

2290 South Hunt Point Crystal River, FL 32629

Larry D. Scott, Esquire Division of Retirement 2639 North Monroe Street Cedars Executive Center Building C

Tallahassee, FL 32399-1560

A. J. McMullian III Director

Division of Retirement 2639 North Monroe Street Cedars Executive Center Building C

Tallahassee, FL 32399-1560

John A. Pieno Secretary

Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

Augustus D. Aikens, Jr., General Counsel

Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-005682

Orders for Case No: 91-005682