STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AUDREY COOK, )

)

Petitioner, )

)

vs. ) Case No. 97-2011

)

DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 29, 1998, via video teleconference, with the respondent appearing at Miami, Florida, and the petitioner appearing in Tallahassee, Florida, before Patricia Hart Malono, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Audrey Cook, pro se

6600 Northwest 1st Place Miami, Florida 33150

For Respondent: Larry D. Scott

Senior Attorney Division of Retirement

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

STATEMENT OF THE ISSUES

Whether the Petitioner is entitled to a refund of amounts contributed to the State and County Officers' and Employees' Retirement System.

PRELIMINARY STATEMENT

In response to inquiries from the Petitioner, Audrey Cook, the Division of Retirement ("Division") notified her in a letter dated February 18, 1997, that her request for a refund of contributions she had made to the State and County Officers' and Employees' Retirement System was denied. Ms. Cook timely requested an administrative hearing, and the Division forwarded the case to the Division of Administrative Hearings for assignment of an administrative law judge. After two continuances, the formal hearing was held on May 29, 1998.

At the hearing, Ms. Cook testified in her own behalf; she did not offer any exhibits into evidence. The Division presented the testimony of Andy Snuggs, Retirement Administrator for the Division, and Respondent's Exhibits 1 and 2 were offered and received into evidence. A more legible copy of Respondent's Exhibit 1 was subsequently substituted for the copy that had originally been marked and received into evidence.

No transcript was filed in this case, and the Division timely filed proposed findings of fact and conclusions of law, which have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Division of Retirement is the state agency charged with the responsibility for administering the State and County Officers' and Employees' Retirement System. Section 122.13, Florida Statutes.

2. Ms. Cook worked as a nurse's aide for Jackson Memorial Hospital from November 1960 until September 1968, when she resigned.

3. As an employee of Dade County, Ms. Cook participated in the state retirement system under the State and County Officers' and Employees' Retirement System, which is governed by

   Chapter 122, Florida Statutes, and she made employee contributions to the Retirement System Trust Fund.

4. In October 1968, the Division of Retirement received a "Request for Refund" card bearing Ms. Cook's name, social security number, and address and bearing what purported to be Ms. Cook's signature in two places on the card.

5. On October 23, 1968, the state issued warrant number 66611 in the amount of $904.95, drawn from the State Retirement Trust Fund against Ms. Cook's retirement contributions; on December 15, 1968, the state automatically

   issued warrant number 106270 in the amount of $42.08 drawn from the State Retirement Trust Fund against Ms. Cook's retirement contributions, which closed her retirement account.

6. In December 1997, Ms. Cook contacted the Division requesting information regarding retirement benefits under the

   Florida Retirement System. She was told that she was not a vested member of the system and that she was not eligible for retirement benefits. She was also advised by the Division that its records showed that her accumulated contributions of $947.03 were paid to her in 1968.

7. Ms. Cook denied signing the "Request for Refund" card, and she denied receiving either of the two refund checks.

8. The address on the "Request for Refund" card submitted on October 1968 is listed as "6600 NW 1st Place, Miami, Fla." Ms. Cook currently resides at that address and has resided at that address continuously since in 1968.

9. The signatures on the 1968 "Request for Refund" card differ in some respects from the signatures appearing on the letters and pleadings from 1997 and 1998 that are part of the record in this case. However, there are also substantial similarities between the signatures on the "Request for Refund" card and the signatures appearing on documents in the record of this case.

10. The evidence presented in this case is not sufficient to establish that Ms. Cook is now entitled to a refund of contributions she made to the state retirement system between 1960 and 1968.

    
    

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Section 120.57(1), Florida Statutes (1997).

12. Section 122.10, Florida Statutes, provides in pertinent part:

    1. Should any officer or employee leave the service of the state before accumulating aggregate time of 10 years toward retirement, such officer or employee shall be entitled to a refund of 100 percent of his or her contributions made to the retirement trust fund without interest.

       
       

13. Ms. Cook has the burden of proving by a preponderance of the evidence that she is entitled to a refund of the contributions she made to the state retirement system. See Wilson v. Department of Administration, Division of Retirement,

    538 So. 2d. 139, 141-42 (Fla. 4th DCA 1989); Florida Department of Transportation v. J. W. C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981)("'party asserting the affirmative of an issue before an administrative tribunal'" has the burden of proof); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d. 412, 415 (Fla. 4th DCA 1974)(generally, burden of proof before an administrative agency is by a preponderance of the evidence).

14. On the basis of the findings of fact herein, Ms. Cook has not proven her entitlement to a refund by a preponderance of the evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a final order denying the request of Audrey Cook for a refund of contributions she made to the state Retirement Trust Fund from 1960 to 1968.

DONE AND ENTERED this 13th day of July, 1998, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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

Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1998.

COPIES FURNISHED:

Larry D. Scott, Senior Attorney Division of Retirement

Cedars Executive Center

2639 North Monroe Street, Building C Tallahassee, Florida 32399

Audrey P. Cook

6600 Northwest 1st Place Miami, Florida 33150

Mr. A. J. McMullen, III, Director Division of Retirement

Cedars Executive Center, Building C 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: 97-002011

Orders for Case No: 97-002011