STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALDINE GAPINSKI,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

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) Case No. 01-3898RU

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FINAL ORDER OF DISMISSAL

This cause came on for final hearing in Tallahassee, Florida, on October 31, 2001, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stanley M. Danek, Esquire

2114 Great Oak Drive, Suite 200

Tallahassee, Florida 32303

For Respondent: Thomas E. Wright, Esquire

Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUE

Whether Respondent Agency has used an unpromulgated, non- rule policy in connection with its denial of retirement benefits to Petitioner on behalf of her deceased ex-husband.

PRELIMINARY STATEMENT

Those matters normally contained in a Preliminary Statement are more appropriate to the Findings of Fact and Conclusions of Law sections infra.

FINDINGS OF FACT

1. On February 2, 2001, Respondent, the Department of Management Services, Division of Retirement, issued a letter advising Petitioner, Geraldine Gapinski, that she was not entitled to purchase leave of absence retirement credit on the account of James Gapinski, her deceased ex-husband. The notice outlined Petitioner's right to appeal the decision and explained that the Division's determination was based on Petitioner's status as a former spouse of James Gapinski. Petitioner timely challenged this determination and that disputed-fact case was referred to the Division of Administrative Hearings on June 22, 2001. It was assigned DOAH Case No. 01-2478.

2. The disputed-fact hearing on the merits in DOAH Case No. 01-2478, began on September 24, 2001. Thereafter, that hearing was continued, and further discovery was permitted in the interim until the disputed-fact hearing reconvened on October 31, 2001. During the continuance, Petitioner in that case, who is also Petitioner herein, filed a Petition allegedly challenging the Respondent Agency's use of an

   unpromulgated non-rule policy. That Petition was assigned DOAH Case No. 01-3898RU, and became the instant case.

3. The cases were consolidated by agreement.

   
   

4. On October 31, 2001, Respondent's Motion to Dismiss the Petition in the instant DOAH Case No. 01-3898RU was heard and orally granted. The instant case was bifurcated from DOAH Case No. 01-2478, which case proceeded to final hearing on October 31, 2001.

5. The terms of the oral ruling also provided for Petitioner to file an amended petition in the instant case within 10 days.

6. On November 8, 2001, an Order was entered, still under the lowest case number, DOAH Case No. 01-2478, which order read as follows:

   This cause came on for consideration at the commencement of the final hearing of the consolidated cases, DOAH Case No. 01-2478 and 01-3898RU, on October 31, 2001. At that time, oral argument was heard on the Motion to Dismiss the Petition herein and Petitioner's Response to the motion.

   
   

   It was orally ordered from the bench that the Motion was granted and that the Petition in DOAH Case No. 01-3898RU was dismissed with leave to amend within 10 days of October 31, 2001. If no first amended petition is filed by close of business November 13, 2001, a Final Order of Dismissal will be entered.

   
   

   This Order is entered to memorialize the oral ruling of October 31, 2001, because the undersigned has been advised that no

   transcript of the proceedings will be provided.

   
   

7. No first amended petition was filed as of

   
   

   November 13, 2001, in the instant case. None has been filed to date.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of this cause pursuant to Sections 120.54(1)(a) and 120.56(4), Florida Statutes.

9. On October 31, 2001, upon consideration of Respondent's Motion to Dismiss filed October 18, 2001, and Petitioner's Response to Respondent's Motion to Dismiss filed October 29, 2001, and after hearing oral argument on the record on October 31, 2001, the Petition herein was orally dismissed for all of the reasons stated in the Motion to Dismiss, including but not limited to, the failure of the Petition to identify any policy of Respondent which was under challenge.

10. More specifically, upon inquiry by the undersigned, Petitioner was unable to identify any specific statement of the Agency within its February 2, 2001, proposed agency action letter which she challenged as a non-rule policy.

11. To the extent that the Petition herein challenged the decision of Respondent to deny retirement benefits to Petitioner, that issue is subject to the disputed-fact case

    styled Gapinski v. Department of Management Services, Division of Retirement, DOAH Case No. 01-2478, brought pursuant to Section 120.57(1), Florida Statutes.

12. Petitioner was given the opportunity to file an amended petition herein on or before November 13, 2001. Petitioner did not do so. Accordingly, this case stands dismissed.

DONE AND ORDERED this 14th day of December, 2001, in Tallahassee, Leon County, Florida.

___________________________________ ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2001.

COPIES FURNISHED:

Stanley M. Danek, Esquire 2114 Great Oak Drive Suite 200

Tallahassee, Florida 32303

Thomas E. Wright, Esquire Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560

Erin Sjostrom, Director Department of Management Services Division of Retirement

Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560

Emily Moore, Chief Legal Counsel Department of Management Services Division of Retirement

Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560

NOTICE OF RIGHT TO APPEAL

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of the notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 01-003898RU

Orders for Case No: 01-003898RU