STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVELYN S. WRIGHT, )

)

Petitioner, )

)

vs. ) CASE NO. 75-187

) STATE OF FLORIDA, DEPARTMENT OF ) ADMINISTRATION, DIVISION OF ) RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter cane on to be heard after due notice to the parties at an administrative hearing in Room 315, Carlton Building, Tallahassee, Florida, at 10:00 a.m. on May 23, 1975.

APPEARANCES

For Petitioner: No appearance

For Respondent: L. Keith Pafford, Esquire

530 Carlton Building Tallahassee, Florida 32304

Having listened to testimony and considered the evidence presented in this cause and being fully apprised in the premises, it is found as follows:

FINDINGS OF FACT

1. Petitioner, EVELYN S. WRIGHT, as an employee of Metropolitan Dade County and a member of the State and County Officers and Employees Retirement System, elected to transfer into the Florida Retirement System (FRS) effective December 1, 1970. (Exhibit 3)

   
   

2. On April 10, 1972, Petitioner terminated her employment with Metropolitan Dade County and applied for FRS disability retirement benefits pursuant to Section 121.091(4), Florida Statutes, on May 22, 1972. (Exhibit 2)

   
   

3. Petitioner's application for FRS disability retirement benefits was initially denied by the Administrator of the Florida Retirement System on August 21, 1972. (Exhibit 4)

   
   

4. On January 6, 1975, Petitioner inquired of the Supervisor of the Respondent's Disability Determination Unit, Mr. David Ragsdale, as to the possibility of withdrawing the accumulated contributions in her retirement account. At this time, Petitioner, was advised by Mr. Ragsdale that a

   withdrawal of contributions would cancel her membership rights in the Florida Retirement System. (TR - p.9)

   
   

5. Respondent forwarded to Petitioner, by letter dated January 7, 1975, the appropriate form for making application for a refund of accumulated retirement contributions. The transmittal letter specifically advised the Petitioner that, "Should you complete and return the enclosed card, M81, you would have no further rights or service credit with the Division of Retirement." (Exhibit 5)

   
   

6. On January 14, 1975, Petitioner executed, and her employer verified, an application for refund of accumulated retirement contributions. The application form clearly stipulated:

   
   

   "I hereby make application for refund of my accumulated contributions in the Florida Retirement System. I do hereby waive for myself, my heirs and assignees all rights, title and interest in the Florida Retirement System." (Exhibit 6)

   
   

7. Petitioner's application for refund of contributions was received by the Respondent on January 17, 1975. Respondent refunded to Petitioner her accumulated contributions in the amount of $3,056.02 by Voucher No. 237738, Warrant No. 0309435, dated January 28, 1975. (Exhibit 6)

   
   

8. The attorney for Petitioner, John H. Abramson, was advised by the undersigned hearing officer by telephone that Leave to Take Deposition was granted.

   
   

9. By letter from the said attorney the Division was notified that Petitioner's file was being closed.

   
   

   CONCLUSIONS OF LAW

   
   

10. An individual must be a member of the Florida Retirement System to apply or petition for disability retirement benefits provided under Section 12.091(4), Florida Statutes.

    
    

11. Petitioner, as a terminated member of the Florida Retirement System (see Section 121.091(5)(e), F. S.), who failed to qualify for disability retirement, had two options available to her. The first option allowed Petitioner to leave her accumulated contributions on deposit with the Florida Retirement System and apply for a deferred monthly benefit to commence on the last day of the month of her normal or early retirement pursuant to Section 121.091(5)(b), Florida Statutes. The second option allowed Petitioner to obtain a refund of her accumulated contributions in lieu of any monthly retirement benefit under Section 121.091(5)(c), Florida Statutes.

    
    

12. By making application for, and receiving, a refund of her accumulated retirement contributions, Petitioner waived her membership rights under the Florida Retirement System Act, Chapter 121, Florida Statutes.

RECOMMENDED ORDER

It is the recommendation of the undersigned hearing officer that the Respondent's Motion to Dismiss the captioned cause for Petitioner's lack of

standing to pursue Florida Retirement System disability retirement benefits be granted.

By Delphene Strickland, Hearing Officer, Division of Administrative Hearings, this 16th day of June 1975.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

John M. Abramson, Esquire Feldman & Abramson

402 Ainsley Building Miami, Florida 33132

L. Keith Pafford, Esquire Division Attorney Division of Retirement

530 Carlton Building Tallahassee, Florida 32304

Docket for Case No: 75-000187

Orders for Case No: 75-000187