STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOYCE E. LAYTON,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

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) Case No. 04-0685

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this cause on May 18, 2004, in Dade City, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joyce E. Layton, pro se

5980 Boyette Road

Wesley Chapel, Florida 33544

For Respondent: Thomas E. Wright, Esquire

Division of Retirement Department of Management Services

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

STATEMENT OF THE ISSUE

Whether Petitioner's application for disability retirement benefits should be reinstated.

PRELIMINARY STATEMENT

Petitioner Joyce E. Layton is a member of the Florida Retirement System and applied for disability retirement benefits in November 2002. The Department of Management Services, Division of Retirement (the "Division"), after several attempts to have Ms. Layton submit all the documents necessary to process her application, dismissed her claim by final agency action letter on June 3, 2003. Ms. Layton timely requested a hearing, which is the subject of this Recommended Order.

Ms. Layton did not testify, nor did she present any evidence. The Division presented the testimony of Deena Howell, a benefits administrator for the disability section of the Division. The Division's Exhibits 1 through 7 were admitted into evidence. The Division requested and was granted official recognition of Florida Administrative Code Rule 60S-4.0035.

No transcript of the hearing was provided. The Division timely submitted a Proposed Recommended Order on May 27, 2004. Ms. Layton did not file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner Joyce Layton is a member of the Florida Retirement System.

2. In November 2002, Ms. Layton submitted an application for disability retirement benefits to the Division.

3. The application was not notarized and was incomplete.

   
   

   Several documents were needed to process the application.

   
   

4. By letter dated December 10, 2002, the Division wrote Ms. Layton acknowledging receipt of the disability application and requesting additional information. Enclosed with the letter were two blank FR-13b forms (Physician's Statement Forms), which were necessary to complete the application.

5. Ms. Layton did not respond to the December 10, 2002, letter. The Division mailed another request on January 13, 2003, again, including two blank FR-13b forms with the letter.

6. Ms. Layton did not respond to the January 13, 2003, letter. On February 17, 2003, the Division mailed a third request for information to Ms. Layton. Blank FR-13b forms were also included with this letter.

7. Ms. Layton did not respond to the February 17, 2003, letter. The Division mailed a fourth request to Ms. Layton on March 24, 2003, again, requesting information necessary to complete her application for disability retirement benefits.

8. After the Division did not receive a response to its previous letters, it sent a letter dated April 15, 2003, by certified mail, to Ms. Layton advising her that she had 21 days from the date of the letter to submit the necessary information or her application would be cancelled. Ms. Layton did not respond to this letter.

9. Finally, the Division sent a letter dated June 3, 2003, by certified mail, to Ms. Layton notifying her that her disability application was cancelled and giving her 21 days to request a hearing. She did receive this letter, and this timely appeal followed.

10. The applicant is responsible for ensuring the Division receives the information necessary to process an application for disability retirement benefits. Ms. Layton did not provide the necessary information.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2003).

12. The Florida Retirement System was created by the Legislature in 1970 and is codified in Chapter 121, Florida Statutes (2003).

13. Florida Administrative Code Rule 60S-4.0035(4), "Retirement Application and Effective Retirement Date," provides:

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

    
    

    1. 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, beneficiary designation, option selection as required by Rule

       60S-4.010, F.A.C., spousal acknowledgement if option 1 or 2 is selected as required by subsection 60S-4.010(9), F.A.C., 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.

       
       

    2. Establish the effective retirement date as provided in paragraph 60S-4.0035(3)(a), F.A.C., for normal or early retirement, or as provided in paragraph 60S-4.0035(3)(b), F.A.C., for disability retirement.

       
       

    3. Send follow-up notices, reminding the member of any required information or documents that have not yet been received.

       
       

    4. 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.

       
       

    5. 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 retirement date established upon application.

       
       

14. In November 2002, the Division received Ms. Layton's initial application for disability benefits. The Division mailed more than three follow-up notices to Ms. Layton requesting additional information. Despite the numerous letters

    that were sent to her, Ms. Layton did not provide the requested information.

15. Ms. Layton was notified that if she failed to submit the required information, her application would be cancelled. She was given a final agency action letter, and she still did not supply the requested statements.

16. Petitioner has the burden of providing sufficient evidence to support her case. The burden of proof in an administrative proceeding is on the party asserting the affirmative of the issue unless the burden is otherwise established by statute. Florida Department of Transportation v J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). In this case, Ms. Layton 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. Layton received more than three notices requesting she complete her application. She failed to act. The Division, in accord with its rule, cancelled her application. No evidence was introduced by Ms. Layton to support her request that the Division rescind the cancellation.

17. Based upon a lack of record evidence, there is no basis for the Division to grant Ms. Layton's request to reinstate her disability retirement application.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That the Department of Management Services, Division of Retirement, issue a final order denying the request of Petitioner, Joyce E. Layton, to reinstate her disability retirement application.

DONE AND ENTERED this 16th day of June, 2004, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 16th day of June, 2004.

COPIES FURNISHED:

Thomas E. Wright, Esquire Division of Retirement

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

Joyce E. Layton 5980 Boyette Road

Wesley Chapel, Florida 33544

Sarabeth Snuggs, Interim Director Division of Retirement

Department of Management Services 2639 North Monroe Street Tallahassee, Florida 32399-1560

Alberto Dominquez, General Counsel Department of Management Services 2639 North Monroe Street Tallahassee, Florida 32399-1560

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: 04-000685

Orders for Case No: 04-000685