STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAMIE WILSON, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1246

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, J. Stephen Menton, held a formal hearing in the above-styled case on May 2, 1989, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Alexander Myers, Esquire

Suite 106 III

1655 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409

Brett M. Findler, Esquire

2090 Palm Beach Lakes Boulevard Executive Suite

West Palm Beach, Florida 33409

For Respondent: Burton M. Michaels, Esquire

Senior Attorney

Office of General Counsel Department of Administration Room 440 Carlton Building Tallahassee, Florida 32399-1550

STATEMENT OF THE ISSUES

The issue in this case is whether Mamie Wilson is entitled to retirement credit for the period January 1952 through September, 1958 when she was employed at the Lantana Tuberculosis Hospital. There is no dispute that Mamie Wilson was employed at the Lantana Tuberculosis Hospital during this time period. However, the Department contends that Ms. Wilson received a refund of her state employee retirement contributions of $449.09 on February 15, 1961 and is therefore not entitled to credit for that period of service. Ms. Wilson claims that she never applied for nor received any refund of retirement contributions and, therefore, her retirement should include credit for her employment at the hospital.

PRELIMINARY STATEMENT

This matter was originally filed with the Division of Administrative Hearings under Case No. 86-2545. A hearing was conducted in that case on July 15, 1987 and a Recommended Order was issued by the Hearing Officer in that case on July 23, 1987. That Recommended Order concluded that Ms. Wilson was entitled to retirement credit for the period in question. On October 16, 1987, the Director of the Division of Retirement entered a Final Order holding that Ms.

Wilson was not entitled to creditable service under the provisions of Chapter 121, Florida Statutes. That Final Order was vacated and remanded by the Fourth District Court of Appeal with directions for a further administrative hearing to be conducted in accordance with the opinion of the Court. Wilson v. Department of Administration, Division of Retirement, 538 So.2d 139 (Fla 4th DCA 1989).

This proceeding was conducted as a result of that opinion.

At the commencement of the May 2, 1989 hearing, the parties stipulated that the entire Record on Appeal from the Fourth District Court of Appeal, Case No.

87-2956, should be placed into evidence and it was accepted into evidence as Composite Exhibit No. 1. The Respondent also offered into evidence the April 28, 1989 deposition of John F. McCarthy, which was received into evidence without objection. The only additional evidence offered by Petitioner was the testimony of Petitioner, who testified on her own behalf. Mr. McCarthy was accepted as a qualified expert witness regarding the examination of questioned documents (commonly known as a handwriting expert) by virtue of his knowledge, his skill, training and education in the field.

No transcript of the May 2, 1989 hearing has been filed. At the conclusion of the hearing, the parties were granted 15 days to file proposed recommended orders including proposed findings of fact and conclusions of law. Respondent has timely filed a proposed recommended order. A specific ruling on each of Respondent's proposed findings of fact is contained in the Appendix attached to and incorporated into this Recommended Order. Petitioner did not submit a proposed recommended order.

FINDINGS OF FACT

1. Ms. Mamie Wilson worked at the Southeast Florida Tuberculosis Hospital in Lantana, Florida from January, 1952 to September, 1958. At that time, she resided at 1109 Sapodilla Avenue. She left the job in 1958 after she became pregnant.

   
   

2. At some point thereafter, Ms. Wilson moved to 1103 Division Street in West Palm Beach. The exact date she moved to this address has not been established.

   
   

3. Ms. Wilson was employed at the county nursing home by Palm Beach County from March, 1964 through August, 1974. She resigned due to injuries that she received in an automobile accident.

   
   

4. In 1983, Ms. Wilson wrote to the Administrator of the Division of Retirement and requested that her retirement beneficiary be changed from her mother, Anna Williams, who had died, to her son, Alonzo Peterson. In response, she received a letter dated November 21, 1983 from the Division of Retirement stating that if she retired as of November 1, 1983 she would be entitled to a retirement benefit of $65.96 per month based upon 10.75 total years of service with average final compensation of $4,788. The letter also told her that her service at the Lantana Tuberculosis Hospital may be creditable and if she wished

   to claim that service she should have her salaries and earnings certified to determine if this service was includable for retirement purposes.

   
   

5. Ms. Wilson never responded to the November 23, 1983 letter from the Division of Retirement because she did not intend to retire at that time; she only wanted to change her beneficiary.

   
   

6. In January, 1986, Ms. Wilson was preparing to retire and went to the county courthouse where she was assisted in preparing a Request for Audit form for retirement effective as of March 16, 1986. On the form, the only employment she listed was the job at the Palm Beach County Nursing Home from 1964 to 1974.

   
   

7. The Division of Retirement prepared an estimate of Retirement Benefits form dated February 1, 1986 estimating her retirement benefits based upon 10.75 total years of service. A subsequent form was prepared by the Division dated February 25, 1986 estimating her service as 16.33 years on the assumption that Ms. Wilson would pay $1,413.82 to repurchase the time she worked at the tuberculosis hospital for which the Division of Retirement contended her contributions had been refunded in 1961. If she did so, her retirement benefit would be $106.41 per month. If her retirement was based solely on the time she worked at the county nursing home, her monthly benefit would be $66.19 per month. Ms. Wilson denied ever requesting or receiving a refund of retirement benefits for the time she worked at the tuberculosis hospital.

   
   

8. The files and records of the Division of Retirement and the Florida Department of Health and Rehabilitative Services reflect that on February 15, 1961, State of Florida warrant No. 063522 in the amount of $449.09 was issued to the Petitioner, Mamie Wilson, as a refund of her retirement contributions covering her service at Southeast Florida Tuberculosis Hospital in Lantana, Florida. The Department has produced a receipt prepared for use in connection with delivery of that warrant. However, that receipt is not signed. It shows Ms. Wilson's address at 1103 Division Street. While Ms. Wilson did not live at that address when she actually worked for the hospital, she did move to that address later.

   
   

9. At the initial hearing regarding this matter in Case No. 86-2545, the Department was unable to produce a copy of the actual warrant purportedly issued to the Petitioner. However, at the hearing on May 2, 1989, the Department introduced into evidence the deposition of John F. McCarthy. An exhibit to that deposition, is a copy of State of Florida warrant No. 063522 dated February 15, 1961 in the amount of $449.09 payable to the order of M. Wilson. There is an endorsement on the back of "M. Wilson, 1103 Division W.P.B.FLA." The copy of the warrant and the endorsement on the back have been certified by the Comptroller of the State of Florida as true and correct copies of the front and back of the original warrant.

   
   

10. Mr. McCarthy, an expert regarding the examination of questioned documents, compared the endorsement on the back of the warrant with known samples of Petitioner's handwriting and testified that, in his opinion, the same individual produced the signatures on each of the documents.

    
    

11. State of Florida warrant No. 063522 was paid by the Treasurer of the State of Florida through normal banking channels.

    
    

12. Although Petitioner vehemently denies ever requesting or receiving a refund of her retirement contributions for the period from January, 1952 to September, 1958, the greater weight of the evidence establishes that the

    Petitioner received and cashed State of Florida warrant No. 0673522 dated February 15, 1961 in the amount of $449.09 as a refund of her retirement contributions covering her period of service at Southeast Florida Tuberculosis Hospital, Lantana, Florida.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

14. As set forth in Wilson v. Department of Administration, Division of Retirement, 538 So.2d 139 (FLA 4th DCA 1989), "it is the burden of the beneficiary to establish his right to creditable service. That includes a requirement to show that all required contributions have been made."

    
    

15. The Petitioner failed to prove by a preponderance of the evidence that all required contributions have been made for any employment that she may have had between January, 1952 and September, 1958 at Southeast Florida Tuberculosis Hospital. Indeed, the evidence establishes that any contributions made Petitioner for this period of time were refunded in February of 1961.

    
    

16. Petitioner is not entitled to creditable service under the provisions of Chapter 121, Florida Statutes, (1987), for the period from January, 1952 to September, 1958 for any employment which she may have had at the Southeast Florida Tuberculosis Hospital.

RECOMMENDATION

It is RECOMMENDED that the Petitioner not be credited with any creditable service under the provisions of Chapter 121, Florida Statutes, for the period from January, 1952 to September, 1958 unless she pays the amount due to claim her refunded prior service as provided in Chapter 121, Florida Statutes, (1987).

DONE AND ENTERED this 27th day of June, 1989, in Tallahassee, Leon County, Florida.

J. STEPHEN MENTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this day of June, 1989.

APPENDIX TO RECOMMENDED ORDER 89-1246

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes on all of the proposed findings of fact submitted by the Respondent in this case. (Petitioner did not submit any proposed findings of fact)

Rulings on Respondent's Findings of Fact

1. Covered in finding of fact 1.

2. Covered in finding of fact 2.

3. Covered in finding of fact 3.

4. Covered in finding of fact 4.

5. Rejected as argument on the evidence rather than proposed finding of fact.

6. Covered in finding of fact 6.

7. Covered in finding of fact 7.

8. Covered in the Preliminary Statement.

9. Rejected as merely a recitation of the testimony.

10. Covered in finding of fact 9.

11. Rejected as argument on the evidence rather than a proposed finding of fact.

12. Rejected as argument on the evidence rather than a finding of fact.

COPIES FURNISHED:

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Alexander Myers, Esquire Suite 106 III

1655 Palm Beach Leggs Blvd. West Palm Beach, Florida 33401

Brett M. Findler, Esquire 2090 Palm Beach Leggs Blvd. Executive Suite

West Palm Beach, Florida 33401

Burton M. Michaels, Esquire Senior Attorney

Office of General Counsel Department of Administration Room 440 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 89-001246

Orders for Case No: 89-001246