Post on 12-Oct-2020
transcript
Scla -a sos
IN THE SUPREME COURT .
STATE OF FLORIDA 29 .
ROBERT P. BLAESSER, JR.
Petitioner/Appellant,
vs.
STATE BOARD OF ADMINISTRATION,
Re spondent /Appellee .
BY
APPEAL CASE NO.:1D12-285
L.T. NO.: 2011-2106
PETITIONER ROBERT P. BLAESSER, JR . ' s RULE 9 . 120 (d) BRIEF IN
SUPPORT OF PETITION TO INVOKE DISCRETIONARY JURISDICTION OF THE
FLORIDA SUPREME COURT
Robert P. Blaesser, Jr.
2500 Merchants Row Blvd, Apt . 256
Tallahassee, FL 32311
(850) 320-1473
Appellant, Pro Se
1
TABLE OF CONTENTS
Table of Citations Page 3
Statement of the Case and Facts Page 6
Summary of the Argument Page 8
Argument Page 9
Issue I: THIS COURT SHOULD ACCEPT JURISDICTION ANDRECTIFY THE FIRST DISTRICT COURT OF APPEAL'S FAILURETO FOLLOW THE WELL SETTLED PRECEDENTS OF THIS COURTREGARDING THE LAW OF VESTED RIGHTS AND EQUITABLEESTOPPEL. Page 9
Issue II: THIS COURT SHOULD ACCEPT JURISDICTION AND
RECTIFY THE FIRST DISTRICT COURT OF APPEAL'S FAILURETO FOLLOW THE WELL SETTLED PRECEDENTS REGARDING THELAW OF IMPAIRMENT OF CONTRACT. Page 12
Issue III: BECAUSE THIS COURT HAS DISCRETIONARYJURISDICTION TO REVIEW THE IMPAIRMENT OF CONTRACTISSUE(S), IT ALSO HAS COLLATERAL JURISDICTION TOREVIEW THE ISSUE OF WHETHER THE PETITIONER IS A"RETIREE" WITHIN THE MEANING OF SECTION 121.122(2). Page 14
Conclusion Page 16
Certificate of Service/Compliance Page 17
2
TABLE OF CITATIONS
CASES
State:
Bedell v. Lassiter, 143 Fla. 43, 196 So. 699
Beshore v. Department of Financial Services,
So. 2d 411 (Fla. App. 1 Dist. 2006)
City of Fort Lauderdale v. State ex rel. Els
Page No.
(1940) 9
928
15
ton
Bank & Trust Co., 125 Fla. 89, 169 So. 584 (1936) 10
City of Parker v. State, 992 So. 2d 171 (Fla.2008) 14
Coastal Petroleum Co. V. Chiles, 672 So. 2d 571
(Fla. Dist. Ct. App. 1st Dist. 1996) 11
Coral Springs Street Systems, Inc. v. City of
Sunrise, 371 F.3d 1320, 1334 (2004) 11
Dewberry v. Auto-Owners Insurance Co., 360 So.,
!2d 1077, 1080 (Fla. 1978) 13
Fla. Sheriff's Ass'n v. Dep't of Admin., Div.
of Ret., 408 So. 2d 1033, 1037 (Fla. 1981) 9
Florida Beverage Corp. v. Division of Alcoholic
Beverages and Tobacco, Dept. of Business Regulation,
503 So. 2d 396 (Fla. Dist. Ct. App. 1st Dist. 1987) 10
Frizzell v. Bartley, 372 So. 2d 1371 (Fla. 1979) 9
Hollywood v. Hollywood Beach Hotel Co., 283 So.
2d 867, 869 (Fla. Dist Ct. App. 1973) 11
Humphreys v. State, 108 Fla., 92, 145 So. 858 (1933) 10
Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654
So. 2d 911, 914 (Fla. 1995) 15
Louis R. Menendez, Jr., et al., v. Progressive 12
Express Insurance Co., Inc., 35 So.3d 873 (Fla.2010)
Maddox v. State, 923 So. 2d 442, 446 (Fla. 2006) 15
Metro. Dade County, 737 So.2d at 499 (Fla.1999) 12
Old Port Cove Holdings, Inc. v. Old Port Cove
Condo. Ass'n One, Inc., 986 So. 2d 1279 (Fla. 2008) 15
Park Benziger & Co., Inc. v. Southern Wine &
Spirits, Inc., 391 So. 2d 681 (Fla. 1980) 11
Pinellas County v. Banks, 154 Fla.582, 19 So.2d 1 (1944) 13
Sabolsky v. City of Coral Gables, 151 So. 2d
433 (Fla. 1963) 11
Sarasota County v. Andrews, 573 So. 2d 113 (Fla.
Dist. Ct. App. 2d Dist. 1991) 13
4
State ex rel. Melton v. Board of Pub.Instr.
for Dade County, 140 Fla. 31, 191 So. 27 (1939) 10
State ex rel. Stringer v. Lee, 147 Fla. 37, 2 So.
2d 127 (1941) 10
State ex rel. Woman's Ben. Ass'n v. Port of Palm
Beach Dist., 121 Fla. 746, 164 So. 851 (1935) 10
State Farm Mut. Auto Ins. Co. v. Laforet, 658 So.2d
55 (Fla.1995) 12
State v. Leavins, 599 So. 2d 1326 (Fla. Dist. Ct.
App. 1"' Dist. 1992) 13
CONSTITUTIONAL PROVISIONS:
Article I, section 10 of the Florida Constitution 8
Article X, section 6 of the Florida Constitution 8
STATUTES
Section 121.021(60), Florida Statutes 14
Section 121.122(2), Florida Statutes 7-9, 14
Section 121.4501(2) (k), Florida Statutes 15
OTHER SOURCES
In re Advisory Opinion to the Governor, 509 So.
2d 292 (Fla. 1987) 13
5
PETITIONER ROBERT P. BLAESSER, JR.'s RULE 9.120(d) BRIEF INSUPPORT OF PETITION TO INVOKE DISCRETIONARY JURISDICTION OF THE
FLORIDA SUPREME COURT
COMES NOW ROBERT P. BLAESSER, JR. , Petitioner herein, and,
pursuant to Rule 9.120 (d) of the Florida Rules of Appellate
Procedure, petitions this Honorable Court to invoke its
discretionary jurisdiction and review the decision of the First
District Court of Appeal rendered on September 19, 2012, for the
following reasons:
STATEMENT OF THE CASE AND FACTS1
Upon review of this case, this Court will learn that the
Petitioner was previously a covered employee and member of the
Florida Retirement System ("FRS"), Investment Plan, from
September 30, 2005 through November 16, 2006.[R.I,135] On or
about November 16, 2006, the Petitioner terminated his covered
employment and was advised by the FRS that he could either leave
the vested amount in his FRS Investment Plan account or take a
distribution.[R.I,135] On March 29, 2007, at the age of 43, the
Petitioner elected to take a total distribution from his
Investment Plan account.[R.I,136] At that time, the Petitioner
correctly believed that he would be able to reenroll in the FRS
1 Record references are cited as . "R" followed by theappropriate volume and page number(s). The District Courtopinion that is appealed from is cited as "A" followed by theappropriate page number (s) .
6
if he was once again employed at a later date in a covered
position.[R.I,140]
Subsequently, in 2009, after the Petitioner took his
distribution, Section 121.122 was amended to prohibit retirees
who return to work with an FRS-covered agency after July 1, 2010
from participating in the FRS.[R.I,136] Specifically, the
Florida Legislature revised Section 121.122(2) to add the
following language: "(2) A retiree of a state-administered
retirement system who is initially reemployed on or after July
1, 2010, is not eligible for renewed membership."
In April, 2011, the Petitioner returned to state service
with an FRS-covered agency.[R.I,136] After timely making
requests for intervention and an informal proceeding, the SBA
issued a final order denying the Petitioner renewed membership
on the grounds that he was deemed a "retiree" within the meaning
of Section 121.122.[R.I,140-142]
The Petitioner timely appealed the Final Order to the
First District Court of Appeal and on September 19, 2012, the
Court entered its Order affirming the SBA's Final Order. [A.7) In
so ruling, the Court acknowledged that a statute cannot be
constitutionally applied retroactively if it "impairs vested
rights, creates new obligations, or imposes new penalties." [A.
5-6] However, the Court failed to comment on whether the renewed
membership prohibition imposed new penalties or consequences on
7
the Petitioner's 2007 distribution, instead summarily concluding
that "When appellant retired from the FRS, he did not have a
vested right to renewed membership in the FRS." [A.7] The Court
of Appeals went on to surmise that "Even if retirees had a right
to renewed membership in the FRS prior to the 2009 enactment of
Section 121.122(2), the legislature had the inherent authority
to unilaterally alter that right as it applied to retirees who
returned to state service after the amendment." [A.7] In
concluding, the Court held that "Absent the existence of a
vested right to renewed membership in the FRS, appellant cannot
assert the application of Section 121.122(2) impaired his
contractual rights under article I, section 10 of the Florida
Constitution; constituted an improper taking of property under
article X, section 6 of the Florida Constitution; or violated
any other constitutional limitation." [A.7]
SUMMARY OF THE ARGUMENT
Pursuant to Florida Constitution Article V, § 3 (b) (3) , and
Florida Rule of Appellate Procedure 9.030 (a) (2) (A), this Court
has jurisdiction and should accept this case in order to rectify
the First District Court of Appeal' s failure to follow
previously settled precedents regarding impairment of vested
contractual rights and retroactive imposition of burdens,
penalties, and legal consequences. In addressing, this Court
8
should also review the collateral and related question of
whether Section 121.122(2) applies to former members of the FRS
that took an investment plan distribution before enactment of
the statute and are not currently receiving benefit payments.
ARGUMENT
I. THIS COURT SHOULD ACCEPT JURISDICTION AND RECTIFY THE FIRSTDISTRICT COURT OF APPEAL'S FAILURE TO FOLLOW THE WELL SETTLEDPRECEDENTS OF THIS COURT REGARDING THE LAW OF VESTED RIGHTS AND
EQUITABLE ESTOPPEL.
By its ruling, the District Court of Appeal has declared
that renewed membership without penalty was not a benefit of
Petitioner's investment plan distribution. However, this Court
ruled in Fla. Sheri ff's Ass'n v. Dep' t of Admin., Div. of Ret .,
408 So, 2d 1033, 1037 (Fla. 1981) , that, "...once a participating
member reaches retirement status, the benefits under the terms
of the act in effect at the time of the employee's retirement
vest. The contractual relationship may not thereafter be
affected or adversely altered by subsequent statutory
enactment s . "
It is well settled that the laws in force at the time the
parties enter into a contract, especially those laws in
pursuance of which the contract is made, become a part of the
contract as if they had been expressly referred to or
incorporated in its terms. See Bedell v. Lassiter, 143 Fla. 43,
196 So. 699 (1940); see also Frizzell v. Bartley, 372 So. 2d
9
1371 (Fla. 1979) ; Florida Beverage Corp. v. Division of
Alcoholic Beverages and Tobacco, Dept . of Business Regulation,
503 So. 2d 396 (Fla. Dist. Ct. App. 1st Dist. 1987). This
includes all the laws that subsist at the time and place of the
making of a contract and the place where it is to be performed,
and embraces those laws that affect the validity, construction,
discharge, and enforcement of contracts . Humphreys v. State, 108
Fla., 92, 145 So. 858 (1933).
Therefore, if a person has acquired a contractual right
under the terms of a statute, that statute may not be
subsequently altered or repealed until the obligations incurred
pursuant to it are paid and discharged according to their terms.
State ex rel. Stringer v. Lee, 147 Fla. 37, 2 So. 2d 127 (1941);
see also State ex rel. Melton v. Board of Public Instruction for
Dade County, 140 Fla. 31, 191 So. 27 (1939); and also City of
Fort Lauderdale v. State ex rel. Elston Bank & Trust Co., 125
Fla. 89, 169 So. 584 (1936). Statutes creating a contractual
relationship cannot be annulled, diminished, retarded, or
lessened in efficacy by subsequent legislation. State ex rel.
Woman's Ben. Ass'n v. Port of Palm Beach Dist., 121 Fla. 746,
164 So. 851 (1935).
The Court of Appeal compounded the jurisdictional error
through its failure to recognize that vested rights may be
created when a party has reasonably and detrimentally rely on
10
existing law, creating the conditions of equitable estoppel.
Coral Springs Street Systems, Inc. v. City of Sunrise, 371 F.3d
1320, 1334 (2004). Thus, under Florida law, the doctrine of
equitable estoppel may be invoked against the government when a
party " (1) acted in good faith (2) upon some act or omission of
the government (3) [and] has made such a substantial change in
position or has incurred such extensive obligations and expenses
that it would be highly inequitable and unjust to destroy the
right acquired" . Hollywood v. Hollywood Beach Hotel Co., 283 So.
2d 867, 869 (Fla. Dist Ct. App. 1973) (citing Sabolsky v. City
of Coral Gables, 151 So. 2d 433 (Fla. 1963), aff'd in part and
rev'd in part on other grounds, 239 So. 2d 10 (Fla. 1976).
Moreover, if a statute was not in effect at the time of
contracting, it cannot be retroactively applied to alter the
obligations of the contract, even though the act triggering the
obligation, does not occur until after the statute is enacted.
Park Benziger & Co., Inc. v. Southern Wine & Spirits, Inc., 391
So. 2d 681 (Fla. 1980) ; Coastal Petroleum Co. v. Chiles, 672 So.
2d 571 (Fla. Dist. Ct. App. 1st Dist. 1996).
Because this Court's prior opinions establish that vested
rights in the terms and conditions of retirement are created by
the law in effect at the time of retirement and also under the
doctrine of equitable estoppel, this Court should accept
11
jurisdiction of this case in order to ensure that its decisions
in all of those prior cases are followed.
II. THIS COURT SHOULD ACCEPT JURISDICTION AND RECTIFY THE FIRSTDISTRICT COURT OF APPEAL'S FAILURE TO FOLLOW THE WELLSETTLED PRECEDENTS REGARDING THE LAW OF IMPAIRMENT OF CONTRACT.
In its ruling, the Court of Appeal acknowledged that a
statute cannot be constitutionally applied retroactively if it
"impairs vested rights, creates new obligations, or imposes new
penalties." [A. at 5-6] However, conspicuously absent from the
Court's opinion was any opinion on whether the renewed
membership prohibition imposed new penalties or consequences on
the Petitioner's 2007 distribution. This Court has consistently
rejected retroactive application of a statute where it imposes
new penalties or "attaches new legal consequences to events
completed before its enactment." Metro. Dade County, 737 So.2d
at 499 (Fla.1999) (quoting Landgraf, 511 U.S. at 270, 114 S.Ct.
at 1483, 128 L.Ed.2d 229; see also, Louis R. Menendez, Jr., et
al . , v. Progressive Express Insurance Co . , Inc . , 3 5 So . 3à 87 3
(Fla.2010); see also State Farm Mut. Auto. Ins. Co. v. Laforet,
658 So.2d 55, 61 (Fla.1995). Petitioner's option to take a
distribution from his investment plan without forfeiting the
ability to earn future retirement benefits had intrinsic value
which is now diminished, and he never would have taken a
distribution had there been a penalty of ineligibility to renew
12
membership in the FRS. The failure to consider whether the value
of the Petitioner's retirement contract was diminished by the
application of Section 121.122(2), resulted in jurisdictional
error and an unconstitutional denial of due process.
As this Court has ruled,"[i]t is axiomatic that subsequent
legislation which diminishes the value of a contract is
repugnant to our Constitution." Dewberry v. Auto-Owners
Insurance Co., 360 So., 2d 1077, 1080 (Fla. 1978) . In reaching
this decision, this Court stated that"[a]ny conduct on the part
of the legislature that detracts ln any way from the value of
the contract is inhibited by the Constitution" Id. at 1080. It
is well settled that a contract is impaired if its value is
diminished by subsequent legislation. Pinellas County v. Banks,
154 Fla. 582, 19 So. 2d 1 (1944) ; State v. Leavins, 599 So. 2d
1326 (Fla. Dist. Ct. App. 1" Dist. 1992). Any legislative action
that diminishes the value of a contract is repugnant to and
inhibited by the constitution. Sarasota County v. Andrews, 573
So. 2d 113 (Fla. Dist. Ct. App. 2d Dist. 1991) . Thus, a statute
that retroactively turns an otherwise profitable contract into a
losing proposition is a prohibited enactment . In re Advisory
opinion to the Governor, 509 So. 2d 292 (Fla. 1987) .
Because prior opinions establish that a contract is
impaired if its value is diminished by subsequent legislation,
this Court should accept jurisdiction of this case in order to
13
preserve its previous decisions and to correct the Court of
Appeals failure to consider whether the value of the
Petitioner's retirement contract was diminished by the
application of Section 121.122(2).
III. BECAUSE THIS COURT HAS DISCRETIONARY JURISDICTION TOREVIEW THE IMPAIRMENT OF CONTRACT ISSUE (S) , IT ALSO HAS
COLLATERAL JURISDICTION TO REVIEW THE ISSUE OF WHETHER THEPETITIONER IS A "RETIREE" WITHIN THE MEANING OF SECTION121.122 (2) .
Upon further review, this Court will find that the District
Court of Appeal ruled that Section 121.122 (2) applies to any and
all retirees, regardless of whether or not they are currently
receiving benefit payments [A. at 4-5] . In so ruling, the Court
failed to resolve a direct conflict between two competing
statutory definitions of the term "retiree". Because the issue
of statutory interpretation and construction is a question of
law that an appellate court reviews de novo [See City of Parker
v. State, 992 So. 2d 171, 176 (Fla. 2008)], this Court should
accept and exercise jurisdiction over the collateral question of
whether the Petitioner is a "retiree" within the meaning of
section 121.122(2).
The Petitioner contends that since Section 121.021(60)
defines a retiree as "a former member of the Florida Retirement
System or an existing system who has terminated employment and
is receiving benefit payments from the system in which he or she
was a member" [emphasis added), Section 121.122(2) cannot apply
14
in his case. This Court has held that where the Legislature has
used a term in one section of a statute but omitted the term
from another section, the court will not read the term into the
sections where it was omitted. See Beshore v. Department of
Financial Services, 928 So. 2d 411 (Fla. App. 1 Dist. 2006), at
412, citing to Leisure Resorts, Inc. v. Frank J. Rooney, Inc.,
654 So. 2d 911, 914 (Fla. 1995). The Legislature's use of
different terms in different sections of the same statute is
strong evidence that different meanings were intended. Beshore
at 413, citing to Maddox v. State, 923 So. 2d 442, 446 (Fla.
2006). This Court has ruled that, in the absence of clear
legislative intent to the contrary, a law is presumed to operate
prospectively. Old Port Cove Holdings, Inc. v. Old Port Cove
Condominium Ass 'n One, Inc. , 986 So. 2d 1279 (Fla. 2008) .
The Court of Appeal committed jurisdictional error when it
deferred to the SBA's proffered definition of "retiree" at
Section 121.4501(2) (k), and concluded that he was a retiree
within the meaning of Section 121.122(2). The fact that there
are two conflicting definitions of the term "retiree", by itself
creates an ambiguity that requires judicial interpretation.
Therefore, this Court should accept and exercise jurisdiction
over the collateral question of whether the Petitioner is a
"retiree" within the meaning of Section 121.122 (2) .
15
CONCLUSION
For the foregoing reasons, This Court should accept jurisdiction
of this case in an effort to ensure that its prior decisions are
followed by the lower appellate courts of Florida.
Respectfully submitted this 29th day of October, 2012.
Robert P. Bl s , Jr.
2500 Merchan s Row Blvd, Apt. 256
Tallahassee, FL 32311
(850) 320-1473
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October March 29th, 2012, the
foregoing BRIEF IN SUPPOR.T OF PETITION TO INVOKE DISCRETIONARY
JURISDICTION OF THE FLORIDA SUPREME COURT, was filed with the
Court by hand delivery and furnished by U.S. Mail to: Brandice D.
Dickson, Esq. and Brian A. Newman, Esq., Pennington, Moore,
Wilkinson, Bell & Dunbar, P.O. Box 10095, Tallahassee, FL 32302-
2095.
Robert P. sser, Jr.
16
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the foregoing BRIEF IN SUPPORT OF
PETITION TO INVOKE DISCRETIONARY JURISDICTION OF THE FLORIDA
SUPREME COURT, has been drafted, formatted, and executed in
compliance with Florida Rule of Appellate Procedure 9.210.
Robert P. ser, Jr.
17
IN THE DISTRICT COURT OF APPEALFIRST DISTRICT, STATE OF FLORIDA
ROBERT P. BLAESSER, JR., NOT FINAL UNTIL TIME EXPIRES TOFILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D12-285
STATE BOARD OFADMINISTRATION,
Appellee.
Opinion filed September 19, 2012.
An appeal from an order of the State Board of Administration.Ron Poppel, Senior Defined Contribution Programs Officer.
Robert P. Blaesser, Jr., pro se, Appellant.
Brandice D. Dickson of Pennington Moore Wilkinson Bell & Dunbar, P.A.,Tallahassee, for Appellee.
SWANSON, J.
Appellant seeks review of a final order of the State Board of Administration
(SBA) that denied appellant's request for renewed membership in the Florida
Retirement System (FRS) upon concluding appellant was a retiree who was
ineligible for reenrollment in the FRS pursuant to section 121.122(2), Florida
Statutes (2010). We affirm.
On September 30, 2005, appellant was hired by the Seminole County
School Board and enrolled in the Public Employee Optional Retirement Program
(Investment Plan) of the FRS. Appellant terminated his employment on November
16, 2006. On March 29, 2007, appellant took a total distribution from his
Investment Plan account after being advised he could leave the funds in the
Investment Plan and not take a distribution. In 2009, section 121.122(2) was
enacted to prohibit retirees who return to work with an FRS-covered agency on or
after July 1, 2010, from participating in the FRS.
On April 13, 2011, appellant began work as an attorney with the Florida
Department of Financial Services, Division of Legal Services, an FRS-covered
agency. After returning to work, appellant was advised that he could not
participate in the FRS because he was a retiree who came back to FRS-covered
employment after July 1, 2010. Appellant filed an "FRS Investment Plan Request
for Intervention" with the SBA, requesting he be allowed to renew his membership
in the FRS on the ground section 121.122(2) did not apply to him because he did
not qualify as a "retiree" when he took a total distribution from his Investment Plan
account. In response, the SBA issued a denial letter, concluding appellant
2
qualified as a "retiree" and was ineligible for reenrollment in the FRS pursuant to
section 121.122(2).
After appellant filed a timely petition for hearing, a hearing officer held an
informal hearing and issued an order recommending the SBA issue a fimal order
denying appellant's request for relief on the ground section 121.122(2) applied to
Investment Plan members who retired by taking a distribution and did not return to
employment until on or after July 1, 2010. Appellant filed a number of exceptions
to the recommended order. The SBA entered a final order rejecting appellant's
exceptions, adopting the recommended order in its entirety, and denying
appellant's request for renewed membership in the FRS. This appeal follows.
Employees eligible for membership in the FRS may elect to participate in
either the defined benefit retirement program (Pension Plan) or the Public
Employee Optional Retirement Program (Investment Plan). §§ 121.021(3),
121.091 & 121.4501, Fla. Stat. (2010). The Investment Plan is a defined
contribution plan with a shorter one-year vesting requirement. §§ 121.021(3) &
121.4501, Fla. Stat. (2010). "In defined contribution plans such as the Investment
Plan, the employee bears the risk of loss in the value of investments chosen by the
employee." State Bd. of Admin. v. Huberty, 46 So. 3d 1144, 1145 (Fla. 1st DCA
2010). Upon retirement, a vested Pension Plan employee receives a monthly
benefit for his or her lifetime whereas a vested Investment Plan employee receives
3
a distribution of accumulated benefits from his or her account. §§ 121.091 &
121.591, Fla. Stat. (2010). Under both plans, an employee must terminate all FRS-
covered employment in order to receive a benefit. §§ 121.091 & 121.591, Fla.
Stat. (2010). In 2009, the legislature created section 121.122(2), which provides:
"A retiree of a state-administered retirement system who is initially reemployed on
or after July 1, 2010, is not eligible for renewed membership." Ch. 2009-209, §
12, at 2134, Laws of Fla.
Appellant asserts the SBA erred when it concluded he was a retiree who was
precluded from renewed membership in the FRS under section 121.122(2).
Appellant disputes he qualifies as a "retiree" under the statute, relying on section
121.021(60), Florida Statutes (2010), which defines "[r]etiree" as "a former
member of the Florida Retirement System or an existing system who has
terminated employment and is receiving benefit payments from the system in
which he or she was a member." (Emphasis added). Because he received a prior
nonrecurring, lump-sum distribution from his Investment Plan account, appellant
claims he is not a retiree who "is receiving benefit payments." However, the SBA
correctly responds that the statutory prohibition applies to "[a] retiree of a state-
administered retirement system" and that "[s]ystem" is defined by section
121.021(3) as "including . . . the defined benefit retirement program administered
under the provisions of part I of this chapter and the defined contribution
4
retirement program known as the Public Employee Optional Retirement Program
and administered under the provisions of part II of this chapter." Moreover,
section 121.4501(2)(k), which falls under part II of Chapter 121, defines "[r]etiree"
as "a former participant of the optional retirement program who has terminated
employment and has taken a distribution as provided in s. 121.591, except for a
mandatory distribution of a de minimis account authorized by the state board."
Reading all of these related provisions together, the SBA asserts the prohibition of
section 121.122(2) applies to appellant because he retired by taking a total
distribution from his Investment Plan account and did not return to FRS-covered
employment until after July 1, 2010. This court will defer to an agency's
interpretation of a statute that it is charged with administering unless that
interpretation is contrary to the plain meaning of the statute or is clearly erroneous.
Huberty, 46 So. 3d at 1146. We defer to the SBA's interpretation of section
121.122(2), which we conclude is not contrary to the plain meaning of the statute
and is not clearly erroneous.
Assuming he was a retiree under section 121.122(2), appellant asserts the
statute could not apply retroactively to him, who retired prior to its effective date,
without impairing his vested right to renewed membership in the FRS when he
returned to FRS-covered employment. A statute cannot be constitutionally applied
retroactively if it "impairs vested rights, creates new obligations, or imposes new
5
penalties." State, Dep't of Mgmt. Servs. v. City of Delray Beach, 40 So. 3d 835,
840 (Fla. 1st DCA 2010) (quoting State Farm Mut. Auto. Ins. Co. v. Laforet, 658
So. 2d 55, 61 (Fla. 1995)). This court has explained:
Whether a statute has been retroactively applied dependson whether it ascribes new legal consequences to eventspredating the statute. See Chase Fed. Hous. Corp., 737So. 2d at 499. "'A statute does not operate"retrospectively" merely because it is applied in a casearising from conduct antedating the statute's enactment .. . .'" Id. (quoting Landgraf v. USI Film Prods., 511 U.S.244, 269-70, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994))."[T]he concept of vested rights [plays] a central role inthe analysis of retroactivity issues." R.A.M., 869 So. 2dat 1216.
[T]o be vested, a right must be more than a mereexpectation based on an anticipation of thecontinuance of an existing law; it must have become atitle, legal or equitable, to the present or futureenforcement of a demand . . . . Vested rights aredistinguished not only from expectant rights but alsofrom contingent rights . . . . They are vested when theright to enjoyment, present or prospective, has becomethe property of some particular person or persons, as apresent interest. They are expectant when they dependupon the continued existence of the present conditionof things until the happening of some future event.They are contingent when they are only to come intoexistence on an event or condition which may nothappen or be performed until some other event mayprevent their vesting.
Id. at 1218 (citations and quotations omitted).
City of Delray Beach, 40 So. 3d at 840.
6
When appellant retired from the FRS, he did not have a vested right to
renewed membership in the FRS. At most, he had an expectant or contingent right
insofar as his right to renewed membership in the FRS depended on the continued
existence of that right if he ever returned to FRS-covered employment at some
point in the future. Even if retirees had a right to renewed membership in the FRS
prior to the 2009 enactment of section 121.122(2), the legislature had the inherent
authority to unilaterally alter that right as it applied to retirees who returned to state
service after the amendment. See Fla. Sheriff's Ass'n v. Dep't of Admin., Div. of
Ret., 408 So. 2d 1033, 1037 (Fla. 1981) (recognizing that a future legislature is not
precluded from "prospectively altering benefits which accrue for future state
service."). Absent the existence of a vested right to renewed membership in the
FRS, appellant cannot assert the application of section 121.122(2) impaired his
contractual rights under article I, section 10 of the Florida Constitution; constituted
an improper taking of property under article X, section 6 of the Florida
Constitution; or violated any other constitutional limitation. See City of Delray
Beach, 40 So. 3d at 840-42.
AFFIRMED.
MARSTILLER and RAY, JJ., CONCUR.
7