STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES A. BURGESS, )

)

Petitioner, )

)

vs. ) CASE NO. 76-640

) STATE OF FLORIDA, DEPARTMENT OF ) TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to Notice in the 2nd Floor Conference Room of the District Offices, District IV, 24th Street - South West, Fort Lauderdale, Florida, at 2:00 p.m. on May 20, 1976. This case arose upon the Petition of Charles Burgess which alleged that in denying his request for continued employment after age 65 years the Department of Transportation had discriminated against him on the basis of age.

The matter was referred to the Department of Administrative Hearings by the Department of Transportation to conduct a formal hearing pursuant to s.

120.57(1) Florida Statutes.

APPEARANCES

For Petitioner: Francis K. Buckley, Esquire

Suite 2212, One Financial Plaza Fort Lauderdale, Florida 33394

For Respondent: George L. Wass, Esquire

State of Florida Department of Transportation

Hayden Burns Building Tallahassee, Florida 32304

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. The parties stipulated that the Petitioner submitted a request for extension of employment after reaching age 65 and that the Agency routinely processed said request, which was denied by the Agency. The Petitioner testified that he was over 65 years of age, eligible for retirement benefits, a career service system employee, was in good health, had a fine employment record, and desired to continue work until November 1976. Continuing work until November 1976, according to the Petitioner, would allow him to meet certain financial obligations which he had. He further testified that he had thought that the general policy of the Department of Transportation was to allow such extentions until the January following to an employee's 65th birthday and that

   he had planned on that additional employment. Without an extention, the Petitioner would retire effective May 28, 1976.

   
   

2. The Agency did not controvert these facts, but pointed out that there was no policy regarding retention of personnel until the end of the year in which an employee reached age 65.

   
   

3. The Hearing Officer notes that s. 112.051, Florida Statutes, creates the right in a state agency to retire personnel who are members of a merit system or similar tenure system on the basis of age and without specifying charges if the employee has reached age 65 and is eligible for retirement. The right to continue to employ such an employee is discretionary with the Agency.

   
   

4. The facts establish that Petitioner is over 65 years of age and eligible for state retirement benefits. Therefore, Petitioner's retention was totally discretionary. There was no evidence that the Agency abused its statutory discretion in denying the Petitioner's request, or discriminated against the Petitioner in any fashion.

RECOMMENDATION

Based on the foregoing findings of fact and conclusion of law, the Hearing Officer recommends that the Agency take no further action on the Petition, and not reconsider the Petitioner's request for retention.

DONE and ORDERED this 26th day of May, 1976.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Docket for Case No: 76-000640

Orders for Case No: 76-000640