CARLOS O. COTO, )
vs. ) Case No. 02-2832
Respondent. )
Pursuant to notice, a hearing was conducted in this case pursuant to Section 120.57(1), Florida Statutes, on
September 12, 2002, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly- designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).
For Respondent: Thomas E. Wright, Esquire
Whether Petitioner's application to participate in the Deferred Retirement Option Program should be approved.
By letter dated May 29, 2002, the Division of Retirement (Division) advised Petitioner of the Division's intention not to approve Petitioner's application to participate in the Deferred Retirement Option Program (DROP). Petitioner thereafter submitted to the Division a "formal appeal." On July 18, 2002, the matter was referred to the Division of Administrative Hearings (DOAH) for the assignment of an Administrative Law Judge "for the purpose of disposing" of Petitioner's "formal appeal."
The hearing was scheduled for September 12, 2002, commencing at 1:00 p.m.. Petitioner and the Division were provided with written notice of the scheduled hearing in accordance with Subsection (2)(b) of Section 120.569, Florida Statutes. Such notice was in the form of a Notice of Hearing by Video Teleconference mailed on July 31, 2002, to the Division's counsel of record, Thomas E. Wright, Esquire, and to Petitioner (at the address indicated on Petitioner's "formal appeal").
The Division appeared at the hearing, which was held as scheduled on September 12, 2002, through its counsel of record, Mr. Wright. Petitioner, on the other hand, did not make an appearance at the hearing, either in person or through counsel or any other authorized representative.
At the hearing, the Division presented the testimony of one witness, Doug Cherry, the Division's Benefits Administrator. In addition to Mr. Cherry's testimony, the Division offered into evidence 11 exhibits (Respondent's Exhibits 1 through 11), all of which were admitted.
At the close of the evidentiary portion of the final hearing on September 12, 2002, a September 25, 2002, deadline was established for the filing of proposed recommended orders.
On September 13, 2002, the undersigned issued the following Order of Post-Hearing Instructions:
The final hearing in this matter was held, as scheduled, on September 12, 2002, by video teleconference at sites in Miami and Tallahassee, Florida. Because Petitioner failed to appear at either of the locations at the appointed time despite having been afforded proper notice, the following post- hearing instructions are hereby given:
On September 25, 2002, the Division filed a Proposed Recommended Order, which the undersigned has carefully considered.
By letter filed September 30, 2002, Mr. Wright notified the undersigned of his "compliance with [the undersigned's] Post- Hearing Instructions." In his letter, Mr. Wright also "apologize[d] for the delay" and stated he "ha[d] no objection to [the undersigned] extending the time for Petitioner to file post-hearing submissions."
Upon receiving Mr. Wright's letter, the undersigned, on October 1, 2002, issued an Order extending the deadline for Petitioner to file a proposed recommended order to October 11, 2002.
To date, Petitioner has not filed any post-hearing submittal.
Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
On August 24, 2001, Petitioner submitted to the Division a Florida Retirement System Application for Service Retirement and the Deferred Retirement Option Program (DROP), Form FRS DP-11.
On the form, Petitioner indicated his name, social security number, birth date (June 22, 1946), his position title (guidance counselor), present Florida Retirement System employer (Miami-Dade County Public Schools), work phone, home phone, and home mailing address.
These entries were followed by the a printed statement, which read as follows:
I have resigned my employment on the date stated below and elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.). My DROP participation cannot exceed a maximum of 60 months from the date I first reach my
normal retirement date as determined by the Division of Retirement .
I understand that I must terminate all employment with FRS employers to receive a monthly retirement benefit and my DROP benefit. I cannot add additional service, change options, or change my type of retirement after the DROP begin date. If I fail to terminate my employment in accordance with s. 121.021(39)(b), F.S., on my DROP termination date, my retirement will be null and void and my FRS membership shall be established retroactively to the date I began DROP. I have read and understand the DROP Accrual and Distribution information on the reverse side of this form.
The "DROP begin date" and the "DROP termination and resignation date" that were filled in the form were August 1, 2001, and July 31, 2006, respectively.
On the "Beneficiary Designation" portion of the form, Petitioner named his wife, Marianne F. Coto, as his "primary" beneficiary, and his daughter, Claudine Coto, as his "contingent" beneficiary. Their birth dates (but not their social security numbers) were noted on the form.
At the bottom of the form was the following "Employer Certification," signed and dated (August 24, 2001), by Miami- Dade County Public Schools personnel officer, Maria Perez:
This is to certify that the above named member will be enrolled as a DROP participant on the date stated and will terminate his or her employment on the date stated.
On August 24, 2001, Petitioner also submitted to the Division a Florida Retirement System Notice of Election to Participate in the Deferred Retirement Option Program (DROP) and Resignation of Employment, Form FRS DP-ELE.
On the form, Petitioner indicated his name, social security number, birth date, his position title, present Florida Retirement System employer, work phone, home phone, and home mailing address.
These entries were followed by a printed statement, which read as follows:
Resignation From Employment to Participate in the DROP:
I elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.), as indicated below, and resign my employment on the date I terminate from the DROP. I understand that the earliest date my participation in the DROP can begin is the first date I reach my normal retirement date as determined by law and that my DROP participation cannot exceed a maximum of 60 months from the date I reach my normal retirement date, although I may elect to participate in the DROP for less than 60 months. Participation in the DROP does not guarantee my employment for the DROP period.
I understand that I must terminate all employment with FRS employers to receive a monthly retirement benefit and my DROP benefit under Chapter 121, F.S. I cannot add additional service, change options, or change my type of retirement after my DROP begin date.
On the form, Petitioner indicated that his "DROP begin date" and his "DROP termination and resignation date" were August 1, 2001, and July 31, 2006, respectively.
Also on the form was an "Employer Certification," signed and dated (August 24, 2001), by Ms. Perez, the aforementioned Miami-Dade County Public Schools personnel officer, which was identical to the "Employer Certification" on the Form FRS DP-11 that Petitioner had submitted.
Petitioner did not submit to the Division (along with Forms FRS DP-11 and DP-ELE) Form FRS 11o, on which he was required to indicate the form of payment of retirement benefits he desired. (Pursuant to the Division's Rule 60S-4.010, Florida Administrative Code, there are four optional forms of payment from which to choose.) Neither did Petitioner furnish the Division with any proof of age. In addition, Petitioner, in September of 1998, had submitted to the Division an Application to Purchase Retirement Credit for a Leave of Absence, but had not yet paid the amount necessary to purchase the credit.
Accordingly, by letter dated September 8, 2001, the Division advised Petitioner of the following:
This will acknowledge receipt of your Application for Service Retirement and the Deferred Retirement Option Program (DROP) You will be notified should we need additional information. If there is an amount due your account, please make your check payable to the Florida Retirement
System (FRS) and reference your social security number on all future correspondence with this office.
Date Received: 08/24/2001 Member SSN: . . . .
Drop Begin Date: 08/2001 Drop End date: 07/31/2006 Amount Due, if any: $1,126.78 Option Selected: None
The following items must be received.
Please provide Birth date verification of joint annuitant if Option 3 or 4 is selected. (Read the enclosed Request for Proof of Age, BVR-1).
Your birth date verification is required. (Read the enclosed Request for Proof of Age, BVR-1.)
Completion of the Option Selection for FRS members, Form FRS-11o is required.
The amount due is to purchase service for your leave of absence from 1975-76. If you do not elect to pay the above amount due and purchase the service it represents, we must have written notification of your intent.
A Final Salary Certification, FC-1, with current year salary and terminal leave payments (excluding sick leave payments) must be received from your employer. Your employer is aware of this requirement.
AFTER YOUR FIRST MONTH OF DROP PARTICIPATION YOU CANNOT ADD ADDITIONAL SERVICE, CHANGE OPTIONS, CHANGE YOUR DROP BEGIN DATE OR CHANGE YOUR TYPE OF RETIREMENT.
Petitioner did not provide the Division with the items listed in the September 8, 2001, letter.
The Division therefore sent Petitioner a follow-up letter, dated October 24, 2001, which read as follows:
DROP RETIREMENT APPLICATION TO BE EFFECTIVE: 08/2001
The item(s) listed below must be received to complete your DROP application and retain the above retirement date:
Please provide Birth date verification of joint annuitant if Option 3 or 4 is selected. (Read the enclosed Request for Proof of Age, BVR-1).
Your birth date verification is required. (Read the enclosed Request for Proof of Age, BVR-1.)
Completion of the Option Selection for FRS members, Form FRS-11o is required.
Payment of $1,126.78. Please make your check payable to the Florida Retirement System and note your social security number on the face. Otherwise, provide a written statement indicating that you do not wish to purchase this service.
Not having received any response from Petitioner, the Division sent Petitioner an identical letter on November 29, 2001.
Still not having received any response from Petitioner, the Division sent Petitioner another letter, dated January 3, 2002, requesting that Petitioner provide the items that had been requested from him in the previous correspondence.
The January 3, 2002, letter warned that the items "must be received immediately to avoid cancellation [of Petitioner's] DROP application."
The items were not provided by Petitioner.
Accordingly, the Division sent him the following letter, dated February 14, 2002:
For your Florida Retirement System (FRS) Application for Service Retirement and Deferred Option Program (DROP), DP-11 to be effective 08/2001, the following item(s) previously requested, must be received within 21 calendar days from the date you receive this letter:
Please provide Birth date verification of joint annuitant if Option 3 or 4 is selected. (Read the enclosed Request for Proof of Age, BVR-1). You should place your social security number on any documentation provided.
Your birth date verification is required. (Read the enclosed Request for Proof of Age, BVR-1.) You should place your social security number on any documentation provided.
Completion of the Option Selection for FRS members, Form FRS-11o is required.
Payment of $1,126.78. Please make your check payable to the Florida Retirement System and note your social security number on the face. Otherwise, provide a written statement indicating that you do not wish to purchase this service.
It is our intent to disapprove your application for the DROP if the requested information and documents are not received within the 21-day period. Should we
disapprove your DROP application, the following will be applicable to you:
You will be deemed to not have retired and the DROP application will be null and void.
If you are eligible to participate in the DROP in the future, you will be required to submit a New Notice of Election to participate in the Deferred [Retirement] Option Program and Resignation of Employment and a new Application for Service Retirement and the Deferred Retirement Option Program during the 12-month period of your latest DROP eligibility date.
You will be required to repay your employer for any annual leave payments you received as the result of applying for DROP.
Your FRS membership will be reestablished retroactively to the effective date of DROP for which you applied.
Your employer will be required to pay the FRS Trust Fund any difference between the DROP contributions and the contributions required for the applicable FRS class of membership.
Also you submitted a Notice of Election to Participate in the Deferred Retirement Option Program and Resignation of Employment, DP-ELE, with a resignation date to take effect in the future. Because it is discretionary with the employer as to whether such resignation can be rescinded, you should contact your employer for further information.
The beneficiary you designated on the retirement application you filed will remain in effect unless changed by you at a later date. Please call me if you have any questions.
Petitioner received this February 14, 2002, letter from the Division on February 25, 2002, but, as of April 9, 2002, had not provided any of the items listed in the letter.
Accordingly, on that date (April 9, 2002), Doug Cherry, the Division's Benefits Administrator, telephoned Ms. Perez, and asked her to attempt to make contact with Petitioner and remind him that that if he did not submit the
items listed in the February 14, 2002, letter, his application to participate in DROP would be denied.
On April 18, 2002, Ms. Perez faxed Mr. Cherry a copy of Petitioner's passport, along with a note that Petitioner would make additional submissions at a later date.
No additional submissions were made by Petitioner.
Accordingly, on May 29, 2002, the Division sent Petitioner the following letter:
We have not received the items that were requested in our February 14th letter (copy enclosed) to you. Accordingly, your Florida Retirement System (FRS) Application for Service Retirement and the Deferred Retirement Option Program (DROP), DP-11, cannot be approved. Therefore, the following are applicable to you:
You are deemed to not have retired and the DROP election is null and void.
If you are eligible to participate in the DROP in the future, you will be required to submit a New Notice of Election to participate in the Deferred [Retirement] Option Program (DROP) and Resignation of
Employment and a new Application for Service Retirement and the Deferred Retirement Option Program (DROP) during the 12-month period of your latest DROP eligibility date.
You will be required to repay your employer for any annual leave payments you received as the result of your having applied for the DROP.
Your FRS membership is being reestablished retroactively to 08/2001, the date of your DROP participation.
Your employer will be required to pay to the FRS Trust Fund the difference between the DROP contributions (12.50%) and the contributions required for the applicable FRS class of membership during the period you participated in the DROP.
Also you submitted a Notice of Election to Participate in the Deferred Retirement Option Program and Resignation of Employment, DP-ELE, with a resignation date to take effect in the future. Because it is discretionary with the employer as to whether such resignation can be rescinded, you should contact your employer for further information.
By copy of this letter, we are advising your employer that immediate action is required by the employer to correct your FRS retirement plan on the next payroll reported to the Division. Your employer will be billed for the appropriate FRS contribution adjustments, if any, based on you not having joined the DROP.
This letter constitutes final agency action. If you do not agree with this decision and wish to appeal this action, you must file a formal petition for review in accordance with the enclosed Rule 28-106.201, Florida Administrative Code (F.A.C.) within 21 days of receipt of this letter. Your petition
should be filed with the Division of Retirement at the above address. Upon receipt of the petition, you will be notified by the Division or the Administrative Law Judge of all future proceedings and hearings. If you do not file an appeal within the 21-day period, you will waive your right to request a hearing or mediation in this matter in accordance with Rule 28-206.111, F.A.C.
You may contact Doug Cherry at . . . should you desire additional information.
Petitioner responded by sending the following letter to Mr. Cherry:
I received a certified letter signed by Maurice Helms for Erin B. Sjostrom, which asks to contact you regarding a formal appeal to the action of your agency to cancel my D.R.O.P benefits for this 2001 to 2002 school year. Please allow this to serve as the formal appeal.
Needless to say I am very frustrated and upset and would like to request your help to sort through this process.
A bit of background history first I believe will help. I started working for Miami-Dade County Public Schools in 1970. At that time I was told it was necessary to be a U.S. citizen to be able to work as a teacher in the school system. I had already decided that and since I had officially turned 22, I became a naturalized U.S. citizen and submitted a copy of the Certificate of Naturalization to the School Board through the Dade County office. Where is that record and why am I being asked to produce it again after having accumulated 31 years of service and after I explained to the local retirement officer in charge, Maria Perez, that I had lost the original when I
lost almost the entire contents of my house to Hurricane Andrew in 1992?
Honestly since I had submitted [a] copy of my U.S. passport with birth-date and all other pertinent information and I also have my Florida Driver's License, which I have had since 1963 or so, and has been what I have used to verify my age and for identification purposes since I was a kid, (although now I am told by your office that this is not a valid acceptable proof, kindly explain why not?) I never thought it was necessary for me to obtain a copy of the Certificate of Naturalization (U.S. citizenship). Also please tell me why passport and driver's license and 31 years of continuous service on record is not sufficient. It is not as if I were trying to retire after a short time of service. I do have 31 years of service! I do not feel this is the right way to treat a dedicated teacher at the end of his career and I hope you agree with me and will help.
To comply with the requirement of another piece of proof of age (which I fail to see the need of in my case where I already have
31 years of verifiable and documented service to Miami-Dade County Public Schools as stated before) I requested a copy of my child's birth certificate from the Bureau of Vital Statistics. This was also a frustrating experience. I requested one copy to be sent to me and one to Dade County Public Schools to the attention of Maria Perez. I was told that the copy would arrive in approximately 10 to 14 days. I have not yet received it. I assume that Ms. Perez never received it either.
After thirty-one years of faithful service to the State of Florida, which you have on record, and my birth date established with you over 31 years ago, I find it ludicrous that, after having submitted my passport, having requested, although not having been
able to get a copy from the Bureau of Vital Statistics, of my child's birth certificate within a number of days, that your office does not find this to be sufficient proof and that based on the technicality that you have only one instead of two forms of verification of my age, now you will cancel my D.R.O.P., which in essence means forfeiting close to $30,000 that I should have accumulated in my account.
Please see the circumstances and kindly reconsider the action taken. I will be extremely grateful.
Mr. Cherry responded to Petitioner's letter by sending the following letter, dated June 10, 2002, to Petitioner:
This is in response to your letter received in our office on June 6th concerning cancellation of your DROP application. The letter from the Division dated May 29th canceling your DROP application was sent only after several prior notices were also sent. The birth date verification issue raised in your letter was only one of the pending items on your application.
We sent an acknowledgment of your application dated September 8, 2001, informing you that we needed an option selection, your birth date verification, your spouse's birth date verification if you selected option 3 or 4 and either payment for your leave of absence or a statement that you did not wish to purchase the service.
After receiving no response, we sent memos on October 24, 2001, November 29, 2001 and January 3, 2002, all requesting the same information. We never received any response to these notices. We then sent our February 14th letter by certified mail (which you signed for on February 25, 2002) informing you of our intent to cancel because your
application was not complete. A copy of all of this correspondence is enclosed.
Again, we received no response [to] this letter. Before sending our cancellation letter, I personally called the Dade School Board and asked them to contact you in one last effort to avoid cancellation. It was only then that we received (on April 18th) a copy of your passport but none of the other required documentation was submitted. After waiting until May 29th for the remaining items to be submitted, we sent the final cancellation letter.
It was approximately eight months from our first notice to you of items pending on your application, to the May 29th letter of cancellation. That was certainly sufficient time to submit the needed information and also explain about the difficulty you might have obtaining additional birth date verification. However, during those eight months we had no contact or response from you despite our repeated notices.
To summarize, your DROP application is not being cancelled because of birth date verification, but because you did not submit all of the items needed to complete your application, even though you had eight months to do so.
Your letter will be forwarded to our Legal section and they will contact you concerning the appeal process.
The "Legal Section," after receiving Petitioner's letter, referred the matter to DOAH.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections
120.569 and 120.57, Florida Statutes.
Chapter 121, Florida Statutes, contains the Florida Retirement System Act. Section 121.011(1), Florida Statutes.
Section 121.1905, Florida Statutes, "create[s] the Division of Retirement within the Department of Management Services," and it further provides that "the mission of the Division of Retirement is to provide quality and cost-effective retirement services as measured by member satisfaction and by comparison with administrative costs of comparable retirement systems."
DROP is a program administered by the Division. It is described in Subsection (13) of Section 121.091, Florida Statutes, as follows:
DEFERRED RETIREMENT OPTION PROGRAM.--In
general, and subject to the provisions of this section, the Deferred Retirement Option Program, hereinafter referred to as the DROP, is a program under which an eligible member of the Florida Retirement System may elect to participate, deferring receipt of retirement benefits while continuing employment with his or her Florida Retirement System employer. The deferred monthly benefits shall accrue in the System Trust Fund on behalf of the participant, plus interest compounded monthly, for the specified period of the DROP participation, as provided in paragraph (c). Upon
termination of employment, the participant shall receive the total DROP benefits and begin to receive the previously determined normal retirement benefits. Participation in the DROP does not guarantee employment for the specified period of DROP.
Subsection (13)(a) of Section 121.091, Florida Statutes, addresses "[e]ligibility of [Florida Retirement System] member[s] to participate in the DROP." It provides, in pertinent part, as follows:
6. Effective July 1, 2001, for instructional personnel as defined in s. 228.041(9)(a)-(d), 1/ election to participate in the DROP shall be made at any time following the date on which the member first reaches normal retirement date. The member shall advise his or her employer and the division in writing of the date on which the Deferred Retirement Option Program shall begin. When establishing eligibility of the member to participate in the DROP for the 60-month maximum participation period, as provided in subparagraph (b)1., the member may elect to include or exclude any optional service credit purchased by the member from the total service used to establish the normal retirement date. A member with dual normal retirement dates shall be eligible to elect to participate in either class.
"Normal retirement date," as that term is used in Chapter 121, Florida Statutes, with respect to "regular class" members, is defined in Subsection (29)(a) of Section 121.021, Florida Statutes, as follows:
"Normal retirement date" means the first day of any month following the date a member attains one of the following statuses:
(a) If a Regular Class member, the member:
Completes 6 or more years of creditable service and attains age 62; or
Completes 30 years of creditable service, regardless of age, which may include a maximum of 4 years of military service credit as long as such credit is not claimed under any other system.
Subsection (13)(b) of Section 121.091, Florida Statutes, explains how eligible members can "participat[e] in the DROP." It provides, in pertinent part, as follows:
An eligible member may elect to participate in the DROP for a period not to exceed a maximum of 60 calendar
months . . . .
Upon deciding to participate in the DROP, the member shall submit, on forms required by the division:
A written election to participate in the DROP;
Selection of the DROP participation and termination dates, which satisfy the limitations stated in paragraph (a) and subparagraph 1. Such termination date shall be in a binding letter of resignation with the employer, establishing a deferred termination date. The member may change the termination date within the limitations of subparagraph 1., but only with the written approval of his or her employer;
A properly completed DROP application for service retirement as provided in this section; and
Any other information required by the division. . . .
Subsection (4) of the Division's Rule 60S-4.0035, Florida Administrative Code, describes what the Division will do upon its receipt of a "member's application for retirement benefits":
Acknowledge the receipt of the member's application and advise him of any required information or documents that have not yet been received. Such information may include but is not limited to birthdate verification, 2/ beneficiary designation, option selection as required by 60S-4.010, spousal acknowledgment if option 1 or 2 is selected as required by 60S-4.010(9), any payments due the member's account for purchase of additional service credit or a written statement from the member that the member does not wish to claim such service credit, and final certification of earnings.
Establish the effective retirement date as provided in 60S-4.0035(3)(a) for normal or early retirement, or as provided in 60S- 4.0035(3)(b) for disability retirement.
Send follow-up notices, reminding the member of any required information or documents that have not yet been received.
If all the required information or documents have not been received by the Division after 3 follow-up notices have been sent to the member, a certified letter will be sent advising the member he has 21 days to provide such information or documents without loss of benefits.
If all the required information or documents have not been received by the Division after the 21 days specified in the certified letter, a final agency action letter will be sent to the member advising the member that his application is canceled and he must reapply to receive benefits,
with a new effective retirement date established upon application.
If the Division decides to deny a member's application to participate in DROP, it must advise the member of its proposed action and of the member's opportunity to request an administrative hearing pursuant to Chapter 120, Florida Statutes, at which the member will be able to make a presentation in an attempt to change the Division's mind. See Florida League of Cities v. Administration Commission, 586 So. 2d 397, 413 (Fla. 1st DCA 1991)("Until proceedings are had satisfying [S]ection 120.57, or an opportunity for them is clearly offered and waived, there can be no agency action affecting the substantial interests of a person."); Capeletti Brothers, Inc. v. Department of General Services, 432 So. 2d 1359, 1363 (Fla. 1st DCA 1983)("Capeletti misconceives the purpose of the [Section] 120.57 hearing. The rejection of bids never became final agency action. As we have previously held, APA hearing requirements are designed to give affected parties an opportunity to change the agency's mind."); Capeletti
Brothers, Inc. v. Department of Transportation, 362 So. 2d 346,
348 (Fla. 1st DCA 1978)("[A]n agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under Section
120.57."); and Couch Construction Company, Inc. v. Department of Transportation, 361 So. 2d 172, 176 (Fla. 1st DCA 1978)("APA hearing requirements are designed to give affected parties an opportunity to change the agency's mind.").
If the Division provides such a "clear point of entry" and the member fails to timely request an administrative hearing, the Division may proceed to take final agency action without such a hearing being conducted. See Fortune Life Insurance Company v. Department of Insurance, 569 So. 2d 1325, 1327 (Fla. 1st DCA 1990)("[T]he department could have followed non-emergency procedure by announcing intended agency action, giving the adversely affected party a clear point of entry and the opportunity to elect formal or informal proceedings. If that election is not made, of course, the intended action will become final.").
Where "there is a disputed issue of material fact which formed the basis for the proposed final action," the member is entitled to an evidentiary hearing held in accordance with Section 120.569, Florida Statutes, and Subsection (1) of 120.57, Florida Statutes. Florida Sugar Cane League v. South Florida Water Management District, 617 So. 2d 1065, 1066 (Fla. 4th DCA 1993).
At the hearing, the member bears the burden of establishing, by a preponderance of the evidence, his or her
entitlement to participate in DROP. See Department of Banking and Finance, Division of Securities and Investor Protection v.
Osborne Stern and Company, 670 So. 2d 932, 934 (Fla. 1996); Espinoza v. Department of Business and Professional Regulation, 739 So. 2d 1250, 1251 (Fla. 3d DCA 1999); Pershing Industries Inc., v. Department of Banking and Finance, 591 So. 2d 991, 994 (Fla. 1st DCA 1991); and Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute. . . ."). The member, however, need address only those entitlement issues raised in the Department's notice of denial. See Woodholly Associates v. Department of Natural Resources, 451 So. 2d 1002, 1004 (Fla. 1st DCA 1984).
In the instant case, after receiving notice sufficient to afford him a "clear point of entry" to pursue an administrative hearing on the Division's proposed denial of his application to participate in DROP, Petitioner requested such an administrative hearing.
The Division referred the matter to DOAH and the requested hearing was held.
Both Petitioner and the Division were furnished with written notice of the hearing in accordance with Subsection (2)(b) of Section 120.569, Florida Statutes, but only the
Division made an appearance. The Division's evidentiary presentation affirmatively established that Petitioner had not provided the Division with what he had needed to, pursuant to Subsections (13)(b)2.c. and d. of Section 121.091, Florida Statutes, in order gain the Division's approval of his application to participate in DROP and that, in rejecting his application, the Division had acted in accordance with the provisions of Subsection (4) of the Division's Rule 60S-4.0035, Florida Administrative Code.
In view of the foregoing, the Division should decline to approve Petitioner's application to participate in DROP. See Shepherd v. Department of Management Service, Division of Retirement, Case No. 02-2522, 2002 WL 31100280 (Fla. DOAH 2002)(Recommended Order)("Petitioner must demonstrate by a preponderance of the evidence that she is entitled to the agency action she proposes, that is, the reinstatement of her disability retirement application. Ms. Shepherd received more than three notices requesting she complete her application. She failed to act, so the Division, in accord with its rule [Rule 60S-4.0035, Florida Administrative Code], cancelled her application. No evidence was introduced by the Petitioner to support her request of the Division to rescind the cancellation.").
RECOMMENDED that the Division issue a final order denying Petitioner's application to participate in DROP.
DONE AND ENTERED this 15th day of October, 2002, in Tallahassee, Leon County, Florida.
STUART M. LERNER
Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 2002.
1/ "Instruction personnel," as defined in Subsection (9) of Section 228.041, Florida Statutes (2001), includes "guidance counselors."
2/ A "[p]roper application for [retirement] benefits" must "include proof of age for the member and for the joint annuitant," pursuant to Subsection (2) of Rule 60S-4.0035, Florida Administrative Code, which further provides as follows:
Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260
Carlos O. Coto
Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
