STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIKE TAMBURRO, )

)

Petitioner, )

)

vs. ) Case No. 03-1347

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to Section 120.569, Florida Statutes, and Section 120.57(1), Florida Statutes, on June 19, 2003, by video teleconference at sites in Fort Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Mike Tamburro, pro se

40 South 57th Way

Hollywood, Florida 33023-1435

For Respondent: Larry D. Scott, Esquire

Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

STATEMENT OF THE ISSUE

Whether the effective date of Petitioner's retirement should be changed from May 1, 2002, to February 23, 2000, or, in the alternative, August 23, 2000, as requested by Petitioner.1

PRELIMINARY STATEMENT

By letter dated February 5, 2003, the Division of Retirement (hereinafter referred to as the "Division") advised Petitioner, in response to Petitioner's inquiry, that it could not change the effective date of Petitioner's retirement from May 1, 2002, to an earlier date. Petitioner, thereafter, submitted to the Division a petition in which he indicated his desire to "appeal" the determination made by the Division. On April 17, 2003, the matter was referred to the Division of Administrative Hearings (hereinafter referred to as "DOAH") for the assignment of a DOAH Administrative Law Judge "for the purpose of disposing of this [p]etition by Recommended Order."

As noted above, the final hearing in this case was held on June 19, 2003. Two witnesses testified at the hearing: Petitioner and Andy Snuggs, the Division's Benefits Administrator. In addition to Petitioner's and Mr. Snugg's testimony, seven exhibits (Petitioner's Exhibits A and B, and Respondent's Exhibits A through E) were offered, and ultimately received, into evidence.

At the close of the evidentiary portion of the final

hearing, a July 9, 2003, deadline was established for the filing of proposed recommended orders.

Petitioner and the Division filed their Proposed Recommended Orders on July 7, 2003, and July 9, 2003, respectively. The undersigned has carefully considered these post-hearing submittals.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole,2 the following findings of fact are made:

1. Petitioner is a retired member of the Florida Retirement System, who turned 62 years of age earlier this year.

2. He worked for the State of Florida for approximately 11 and a half years.

3. He last worked for the State of Florida in February of 1983.

4. On May 2, 1994, the Division received the following written inquiry, dated April 11, 1994, from Petitioner:

   I was employed by the state from June 1971 until February 1983.

   
   

   Please advise me when I would be eligible to receive retirement benefits and approximately how much my monthly benefits would be.

   
   

   Your assistance in this matter is greatly appreciated.

   
   

5. The Division responded to Petitioner's inquiry by

   sending Petitioner two "Estimates of Retirement Benefit," one based on a retirement date of May 1, 1994 (hereinafter referred to as the "First Estimate") and the other based on a "deferred retirement at age 62" (hereinafter referred to as the "Second Estimate"), along with a pamphlet entitled, "Preparing to Retire" (hereinafter referred to as the "Pamphlet").

6. The First Estimate contained the following "comments" (at the bottom of the page):

   To retain a retirement date of 5/1/94, you must complete and return the enclosed application for service retirement, Form FR- 11, within thirty days of the date this estimate was mailed.

   
   

7. The Second Estimate contained the following "comments" (at the bottom of the page):

   This estimate is based on a deferred retirement at age 62. Refer to the enclosed deferred retirement memorandum, DR-1, for additional information.

   
   

8. The Pamphlet read, in pertinent part, as follows:

   
   

   If you are preparing to retire, you should take certain steps to ensure there will be no loss of benefits to you. Following are some suggestions.

   
   

   * * *

   
   

   3. Apply For Retirement Benefits. Three to six months before your retirement complete an application for retirement, Form FR-11, which is available from either your personnel office or the Division of Retirement. Your personnel office must complete part 2 of the Form FR-11 and then

   they will forward the application to the Division. The Division will acknowledge receipt of your application for benefits and advise you of anything else needed to complete your application.

   
   

   * * *

   
   

   Effective Retirement Date- Your effective date of retirement is determined by your termination date and the date the Division receives your retirement application. You may make application for retirement within 6 months prior to your employment termination date. If your retirement application is received by the Division prior to termination of employment or within 30 calendar days thereafter, the effective date of the retirement will be the first day of the month following receipt of your application by the Division. You will not receive retroactive benefits for the months prior to the effective date of retirement.

   Remember, your application can be placed on file and any of the other requirements (such as option selection, birth date verification, payment of amount due your account, etc.) met at a later date.

   
   

9. Petitioner did not "complete and return the enclosed application for service retirement."

10. Petitioner next contacted the Division in April of 2002, this time by telephone. During this telephone conversation, he was advised that he could apply for retirement immediately.

11. Petitioner requested a "Florida Retirement System Application for Service Retirement" form from the Division.

    Upon receiving it, he filled it out and sent the completed form to the Division.

12. The Division received the completed form on April 26, 2002.

13. On April 29, 2002, the Division sent Petitioner a letter "acknowledging receipt of [his] Application for Service Retirement" and advising him that his effective retirement date was "05/2002."

14. In or around December of 2002, after receiving several monthly retirement payments from the Division, Petitioner requested that his retirement date be made retroactive to 1994 because he was not adequately advised by the Division, in 1994, that he was then eligible, upon proper application, to receive retirement benefits.

15. By letter dated February 5, 2003, the Division advised Petitioner that it was unable to grant his request.

16. By letter dated March 6, 2003, Petitioner "appeal[ed]" the Division's decision.

    CONCLUSIONS OF LAW

    
    

17. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Sections

    120.569 and 120.57, Florida Statutes.

18. Chapter 121, Florida Statutes, contains the Florida Retirement System Act (hereinafter referred to as the "Act"). See Section 121.011(1), Florida Statutes.

19. 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."

20. The issue that the Division must resolve in the instant case is whether it should, as Petitioner has requested, establish February 23, 2000, or, in the alternative, August 23, 2000, instead of May 1, 2002, as the effective date of Petitioner's retirement, notwithstanding that Petitioner did not apply for retirement until April 26, 2002. Petitioner argues that the Division should take such action because he "was not given proper notice as to when [he] was eligible to apply for retirement benefits." The Division, preliminarily,3 has taken a contrary position, with which the undersigned agrees. Given the facts of the instant case and the applicable law, the Division has no choice but to maintain the status quo with respect the Petitioner's effective date of retirement.

21. Pursuant to Section 121.021(41), Florida Statutes, a

    Florida Retirement System member's "[e]ffective date of retirement" is "the first day of the month in which benefit payments begin to accrue pursuant to [Section] 121.091, [Florida Statutes ]." Section 121.091, Florida Statutes, provides that "[b]enefits may not be paid under this section unless the member has terminated employment as provided in [Section] 121.021(39)(a), [Florida Statutes] or begun participation in the Deferred Retirement Option Program as provided in subsection (13), and a proper application has been filed in the manner prescribed by the [Division]." (emphasis supplied.) Subsection

    (3) of the statute specifically addresses "early retirement benefits" (which are the type of retirement benefits that Petitioner has been receiving since his retirement became effective in May of last year). It provides as follows:

    Early retirement benefit.--Upon retirement on his or her early retirement date, the member shall receive an immediate monthly benefit that shall begin to accrue on the first day of the month of the retirement date and be payable on the last day of that month and each month thereafter during his or her lifetime

    
    

    "Early retirement date," as that term is used in the Act, "means the first day of the month following the date a member becomes vested4 and elects to receive retirement benefits in accordance with this chapter." Section 121.021(30), Florida Statutes.

22. The following rule provisions, adopted by the Division

    and published in Florida Administrative Code, also deal with these subjects:

    60S-4.002. Statements of Policy.

    
    

    1. All benefits and refunds of accumulated contributions provided for under this chapter shall be payable only upon termination of employment as defined in 60S- 6.001, and proper application to the Division as provided in 60S-4.0035.

       
       

    2. Benefits provided for in this chapter, except for a refund of contributions and lump-sum benefits payable upon the death of a retired member, shall be payable in monthly installments. Benefits will begin to accrue on the effective date of retirement and will be payable on the last work day of each month.

       
       

       * * *

       
       

       60S-4.0035. Retirement Application and Effective Retirement Date.

       
       

       (1) It shall be the responsibility of the member, or the beneficiary in the event of the member's death, to make proper application to the Division for retirement benefits. A member may apply for retirement benefits within 6 months prior to his date of termination of employment. If a member terminates his employment and elects to defer his retirement to some future date, he may apply for deferred benefits up to 6 months prior to the date he desires his retirement to become effective. Application for normal or early retirement as provided in 60S-4.004 and 4.005 respectively shall be made on Form FR-11, . . . .

       
       

       * * *

       1. The Division shall establish the member's effective retirement date as follows:

          
          

          1. For a member who makes application for a normal or early retirement benefit as provided in 60S-4.004 or 4.005, the effective retirement date shall be the first day of the month following the month in which the member's termination occurs, provided the Division receives such member's application for retirement no later than 30 calendar days after such termination. If a member fails to apply for retirement within 30 calendar days after termination or if the member chooses to defer his retirement to a later date, the effective retirement date shall be the first day of the month following the month in which the Division receives the member's application, or the first day of a later month specified by the member.

             
             

             * * *

             
             

       2. When a member's application for retirement benefits is received, the Division will:

       
       

       * * *

       
       

       1. Establish the effective retirement date as provided in 60S-4.0035(3)(a) for normal or early retirement . . . .

          
          

          60S-4.005. Benefits Payable Upon Early Retirement.

          
          

          1. Upon proper application to the Administrator, a member may receive an early retirement benefit if he has completed 10 or more years of any creditable service, 8 or more years of creditable service as an elected state officer member, or 7 or more years of creditable service as a senior

       management service member, but he has not reached his normal retirement age.5

       * * *

       
       

       (emphasis supplied.) These rules, together with the statutes they implement, put Florida Retirement System members who have "vested," but not reached their "normal retirement date,"6 on notice as to how and when they can receive "early retirement benefits." Cf. Hill v. Derwinski, 2 Vet.App. 451 (Vet. App.

       1991)("Appellant complains on appeal that she was not provided with notice of eligibility for REPS benefits. The Secretary published regulations implementing the REPS program in the Federal Register. . . . Such publication is sufficient notification to appellant.").

23. Petitioner failed to do what was necessary to receive "early retirement benefits" before May of 2002.

24. He explains that he did not know, before his April 2002, telephone call to the Division, that he could apply for and receive "early retirement benefits" and blames the Division for his ignorance, contending that, had the Division provided him with this information when it should have, he would have submitted his retirement application in time to have an "early retirement date" of February 23, 2000 (his 59th birthday) or, at the latest, August 23, 2000, six months later. Petitioner, in essence, is arguing that the Division was equitably estopped

    from establishing an "early retirement date" for him later than August 23, 2000, notwithstanding that he first submitted his retirement application to the Division in April of 2002.

25. "Although equitable estoppel can apply against the state . . . , such claims can be pursued only in rare instances where there are exceptional circumstances." McNamara v.

    Kissimmee River Valley Sportsmans' Association, 648 So. 2d 155, 162-63 (Fla. 2d DCA 1994). "Among the elements that must be proven is a positive act by an authorized official, upon which reliance is based." Id.; see also Bishop v. State, Division of

    Retirement, 413 So. 2d 776, 779 (Fla. 1st DCA 1982)("There is no evidence that the state or its agents have committed an affirmative act by which an equitable estoppel could be declared against the State."); Department of Administration, Division of

    Retirement v. Flowers, 356 So. 2d 14, 15 (Fla. 1st DCA 1978)("The authorities are clear that estoppel cannot be raised against the State unless there are exceptional circumstances and some positive act on the part of a state officer."); and Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So. 2d 517, 524 (Fla. 1st DCA 1971)("The causal and offhand manner in which the bureau chief indicated that he thought it would be satisfactory for Knott to submit a bid cannot be said to constitute such an affirmative and positive representation of fact as to justify reliance thereon by Knott in determining

    whether it should submit a bid for construction of the project."). The mere failure to act does not constitute a "positive act" upon which an estoppel against a state agency can be based. See Monroe County v. Hemisphere Equity Realty, Inc., 634 So. 2d 745, 747-48 (Fla. 3d DCA 1994)("Here, the trial court misconstrued the legal doctrine of equitable estoppel when it ruled that Texas Largo was entitled to proceed with its development based upon the County's failure to act against third parties. The trial court further erred when it found that the Planning Director's 1987 letter to Tamarind, the original developer, was an additional basis for estopping the County from enforcing its regulation against Texas Largo. [T]he

    letter does not, under any conceivable standard, rise to the level of a 'positive act' sufficient to create estoppel. Simply put, the letter says nothing, and suggests nothing by omission, regarding the two-year limitation."); State v. Hadden, 370 So.

    2d 849, 852 ( Fla. 3d DCA 1979)("[E]stoppel will not be applied against the State for an omission to act . . . ."); and U. S.

    Immigration and Naturalization Service v. Hibi, 94 S. Ct. 19, 21-22 (1973)("Here the petitioner has been charged by Congress with administering an Act which both made available benefits of naturalization to persons in respondent's class and established a cutoff date for the claiming of such benefits. Petitioner, in enforcing the cutoff date established by Congress, as well as in

    recognizing claims for the benefits conferred by the Act, is enforcing the public policy established by Congress. While the issue of whether 'affirmative misconduct' on the part of the Government might estop it from denying citizenship was left open in Montana v. Kennedy, 366 U.S. 308, 314, 315, 81 S. Ct. 1336, 6

    L. Ed. 2d 313 (1961), no conduct of the sort there adverted to was involved here. We do not think that the failure to fully publicize the rights which Congress accorded under the Act of 1940, or the failure to have stationed in the Philippine Islands during all of the time those rights were available an authorized naturalization representative, can give rise to an estoppel against the Government."). Accordingly, even if the Division had had an obligation to provide Petitioner the pre-February 23, 2000, notification regarding "early retirement benefits" Petitioner claims he should have received from the Division, and the Division had made no attempt to meet this obligation, the Division's inaction would not have estopped it from applying, as it did, the provisions of the Act and its implementing rules to establish an effective retirement date of May 1, 2002, for Petitioner. Neither would estoppel lie against the Division if it had engaged in the "positive act" of misinforming Petitioner about the provisions of the Act and the Division's rules regarding "early retirement benefits," inasmuch as agencies of "the state cannot be estopped through mistaken statements of the

    law." State Department of Revenue v. Anderson, 403 So. 2d 397,

    
    

    400 (Fla. 1981); see also Austin v. Austin, 350 So. 2d 102, 105 (Fla. 1st DCA 1977)("Administrative officers of the state cannot estop the state through mistaken statements of the law.").

26. Moreover, Petitioner's attempt to place the blame on the Division for his pre-April 2002, ignorance of the law regarding "early retirement benefits" simply misses the mark. First of all, "[n]o less than [the Division], [Petitioner] is charged with knowledge of the law," including both statutory and rule provisions,7 and therefore he should have known, without the Division having to personally notify him, that, upon becoming "vested," he could apply for and receive "early retirement benefits." Department of Transportation v. Lamar Advertising Company, Case No. 88-4047T, 1989 WL 644935 *4 (Fla. DOAH 1989)(Recommended Order); see also State v. Beasley, 580 So. 2d 139, 142 (Fla. 1991)("[P]ublication in the Laws of Florida or the Florida Statutes gives all citizens constructive notice of the consequences of their actions."); Buscher v. Mangan, 59 So. 2d 745, 748 (Fla. 1952)("[E]veryone is charged with knowledge of the law."); Akins v. Bethea, 33 So. 2d 638, 640 (Fla. 1948)("[E]very citizen is charged with knowledge of the domestic law of his jurisdiction."); West v. State, 78 So. 275, 280 (Fla. 1918)("In the first place, we are all charged with knowledge of the law."); Nelson v. State, 761 So. 2d 452, 453 (Fla. 2d DCA

    2000)("Additionally, the due process clause did not require the State to give Mr. Nelson notice of the Act's application at the time he was released from prison. Mr. Nelson is charged with constructive knowledge of the law."); Morey's Lounge, Inc. v.

    State, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, 673 So. 2d 538, 540 (Fla. 4th DCA 1996)("We are all charged with knowledge of existing laws . . . ."); and Reason v. Motorola, Inc., 432 So.

    2d 644, 644-45 (Fla. 1st DCA 1983)("The employer contends the deputy erred in ordering it to pay the bills of various out-of- state doctors, hospitals, and clinics for treatment because they were unauthorized, timely bills and reports were not filed with the employer as required by § 440.13(1), Fla. Stat., and the hospital admissions were not of an emergency nature. The deputy found good cause for their failure to comply with the requirements of § 440.13(1), because they were out-of-state and not familiar with the law. Ignorance of the law is not an excuse and does not constitute good cause for failure to comply with the law. Accordingly, that portion of the order directing payment of these bills is reversed.").

27. In any event, although under no statutory or other legal obligation to personally notify Petitioner of his opportunity to receive "early retirement benefits,"8 the Division did so in 1994, when, in response to an inquiry made by

    Petitioner, it provided Petitioner, not only two "Estimates of Retirement Benefit," one of which was based on a retirement date of May 1, 1994, but also a pamphlet entitled, "Preparing to Retire." It should have been abundantly clear to Petitioner, from reading these materials that the Division sent him, that he could apply for and receive retirement benefits before reaching his "normal retirement date." If Petitioner did not understand this to be the case, it certainly was not the Division's fault.

28. There being no legal or equitable basis to make the effective date of Petitioner's retirement retroactive to February 23, 2000, or, in the alternative, August 23, 2000, as Petitioner has requested, the Division should deny Petitioner's request that it do so.

RECOMMENDATION

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

RECOMMENDED that the Division issue a final order denying Petitioner's request that the effective date of his retirement be changed.

DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 15th day of July, 2003.

ENDNOTES

1/ At the final hearing, Petitioner clarified that this was the relief that he was seeking in the instant case.

2/ This Recommended Order has been prepared without the benefit of a transcript of the final hearing since neither party has provided the undersigned with a copy of the transcript.

3/ No final action has yet been taken on Petitioner's request. See Florida League of Cities, Inc. v. Administration Commission,

586 So. 2d 397, 413 (Fla. 1st DCA 1991)("Until proceedings are had satisfying section 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.").

4/ "Vested," as that term is used in the Act, is defined in Section 121.021(45), Florida Statutes. Since July 1, 2001, when it was amended by Section 4 of Chapter 2000-169, Laws of Florida, Section 121.021(45), Florida Statutes, has read as follows:

1. "Vested" or "vesting" means the guarantee that a member is eligible to receive a future retirement benefit upon completion of the required years of creditable service for the employee's class of membership, even though the member may have terminated covered employment before reaching normal or early retirement date. Being vested does not entitle a member to a disability benefit. Provisions governing entitlement to disability benefits are set forth under s. 121.091(4).

   
   

2. Effective July 1, 2001, a 6-year vesting requirement shall be implemented for the defined benefit program of the Florida Retirement System. Pursuant thereto:

1. Any member employed in a regularly established position on July 1, 2001, who completes or has completed a total of 6 years of creditable service shall be considered vested as described in paragraph (a).

   
   

2. Any member not employed in a regularly established position on July 1, 2001, shall be deemed vested upon completion of 6 years of creditable service, provided that such member is employed in a covered position for at least 1 work year after July 1, 2001. However, no member shall be required to complete more years of creditable service than would have been required for that

member to vest under retirement laws in effect before July 1, 2001

5/ Rule 60S-4.005(1), Florida Administrative Code, has not been amended to reflect the changes made by Section 4 of Chapter

2000-169, Laws of Florida, to Section 121.021(29) and (45), Florida Statutes, to decrease the number of years of creditable service a Florida Retirement System member needs to become "vested." This statutory change was effective July 1, 2001, well after Petitioner had accrued his ten plus years of "regular class" creditable service with the state.

6/ The "normal retirement date" of "regular class" members is defined in Section 121.121(29), Florida Statutes, as "the first day of any month following the date a member . . . [c]ompletes

6 or more years of creditable service and attains age 62; or [c]ompletes 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."

7/ "[A]gency rules and regulations duly promulgated under the authority of law have the effect of law." State v. Jenkins, 469 So. 2d 733, 734 (Fla. 1985).

8/ While the Division, since January of 1993, has had a statutory duty, pursuant to Section 121.136, Florida Statutes, to provide to certain active members of the Florida Retirement System an "annual statement of benefits" containing "basic data about the member's retirement account," including "the member's retirement plan, the amount of funds on deposit in the retirement account, and an estimate of retirement benefits," Petitioner last worked for the State of Florida in February of 1983, well before the Division was assigned this obligation by the Legislature.

COPIES FURNISHED:

Mike Tamburro

40 South 57th Way

Hollywood, Florida 33023-1435

Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

Erin Sjostrom, Director Division of Retirement

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

Monesia Taylor Brown, Acting General Counsel Division of Retirement

Department of Management Services 4050 Esplanade Way

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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.

Docket for Case No: 03-001347

Orders for Case No: 03-001347