Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT – death benefits – Board was charged with resolving inconsistencies in the City’s Code – Court must defer to City’s interpretation that the estate was entitled to death benefits as such conclusion is not unreasonable or clearly erroneous – Petition denied.  Board of Trustees v. Estate of Margaret Venosh, No. 04-0054AP-88A (Fla. 6th Cir. App. Ct. April 11, 2005). 












vs.                                                                                                Appeal No. 04-0054AP-88A









            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response, and the Reply.  Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.

            The Petitioner, Board of Trustees of the Pinellas Park Retirement System (Board), seeks review of the Final Judgment, entered June 3, 2004, in which the Civil Trial Commission of the City of Pinellas Park (Commission), found that the legal representative of the Respondent, Estate of Margaret S. Venosh (Estate), was entitled to death benefits.  In reviewing the administrative action taken in the proceedings below, the Court must consider whether the Board was afforded procedural due process, whether the essential requirements of law were observed and whether the Final Judgment is supported by competent substantial evidence.  See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995)(setting forth the standard of certiorari review of administrative action). 

            The undisputed facts are that, on May 14, 1979, Margaret S. Venosh was hired by the City of Pinellas Park (City) and became a member of the Pinellas Park Retirement System.  Ms. Venosh had worked for the City in excess of 24 years at the time of her death on January 7, 2004.  Ms. Venosh did not die in the line of duty and had not retired at the time of her death.   Ms. Venosh was not married at the time of her death, had no children, and both parents were deceased.  In 1990, Ms. Venosh filled out a Designation of Beneficiary form designating her mother to be her beneficiary but failed to change the beneficiary following her mother’s death.     

            By letter dated March 4, 2004, the personal representative of the Estate requested death benefits from the Board.  The Board denied the request concluding that non line-of-duty death benefits are payable only to the spouse or other dependent of the deceased employee and the Estate did not meet that standard.  The Estate timely appealed the Board’s decision to the Civil Trial Commission.  After a hearing on the matter, the Commission concluded that the Estate was entitled to death benefits pursuant to the terms of the Retirement Plan at Section 17-215 under the facts and circumstances of this case.  The Commission did not determine what amount would be due to the Estate. 

            Before this Court, the Board’s primary argument is that the Commission departed from the essential requirements of law by applying Section 17-215, Designation of Beneficiaries, instead of Section 17-214, Death Benefits, of the Pinellas Park Retirement System, in concluding that the Estate was entitled to benefits.  The pertinent provision of Section 17-214, Death Benefits, states:

(B)  If the employment of a member is terminated by reason of his death subsequent to the completion of ten (10) years of credible service but prior to his actual retirement, it shall be assumed that the member retired as of his date of death in accordance with Section 17-209 if eligible for normal retirement benefits, Section 17-210 if eligible for benefits payable for dual normal retirement or for early retirement benefits, having elected in accordance with Section 17-214, the optional form of payment most favorable to his beneficiary as determined by the trustees; provided, however, that the value of the benefit determined under this paragraph shall not be less than the value of the benefit determined under paragraph (A) of this Section.  The monthly benefit provided in this paragraph shall be paid to the member’s beneficiary[1] (spouse or other dependent) for his or her lifetime.  (emphasis added).


Section 17- 215, Designation of Beneficiaries, states:


Each member may, on a form provided for that purpose, signed and filed with the trustees, designate a choice of one or more beneficiaries, named in sequence, to receive benefits, if any, which may be payable in the event of the death pursuant to the provisions of this Article.  If no beneficiary is named in the manner provided above, or if no beneficiary designated by the member survives him, the trustees shall direct the payment of such benefits to the spouse of the deceased, if living.  If the member’s spouse is not alive at his death, any payments to which he was entitled shall be paid to the living children of the member, or on their behalf if under eighteen (18) years of age.  If no children survive, any remaining benefits shall be payable to the member’s father and/or mother, if living; otherwise, to the legal representative or [sic] the member’s estate.  (emphasis added).


The Board argues that because Ms. Venosh died prior to her actual retirement, the


Provisions of 17-214(B) control and that 17-214(B) only allows a refund of the member’s accumulated contributions to be paid to the legal representative of the Estate.[2]  The Board argues 17-214(B) specifically limits benefits to the spouse or other dependent for his or her lifetime, which, by the plain and ordinary meaning of the terms, excludes an estate.  Further, since no benefits are available under 17-214(B), then 17-215, which provides how benefits, if any, are to be paid, isn’t applicable. 

            In addressing this argument, the Court states the well-settled law that statutory rules of construction are applicable to municipal ordinances.  See Rinker Materials Corp. v. City of North Miami, 286 So.2d 552, 553 (Fla. 1973).  When interpreting an ordinance to discern the intent, courts must first look at the plain and ordinary meaning of the words used.  See id.; see also Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla. 2000).  However, if the language is unclear, the rules of statutory construction control.  See id.  “In statutory construction a literal interpretation need not be given the language used when to do so would lead to an unreasonable conclusion or defeat legislative intent or result in a manifest incongruity.”  Id.; see also  Beach v. Great Western Bank, 692 So.2d 146, 152 (Fla. 1997)(stating that courts have traditionally avoided readings that would render part of a statute meaningless).

            As discussed during the proceedings before the Commission, there is inconsistency and confusion caused by the language used in Section 17-214 and Section 17-215.  While the words “spouse or other dependent” in 17-214 would appear to preclude the approval of benefits to an estate, the words may also be interpreted to preclude an award to the member’s living children or mother and/or father, if not a dependent.  The language in 17-215 sets forth how available benefits, if any, are to be awarded, leaving the legal representative of the member’s estate as the last option.  While the words “if any” used in 17-215 appears to limit the circumstances in which an employee may be entitled to benefits, this restrictive language could apply to any number of situations, including insufficient years of creditable service, and does not necessarily exclude an estate’s entitlement to benefits.  

            Hence in reviewing the retirement ordinance, the Court finds that it must defer to the Commission’s conclusion that the Estate is entitled to benefits as this interpretation is not unreasonable or clearly erroneous.  See Las Olas Tower Company v. City of Fort Lauderdale, 742 So.2d 308, 312 (Fla. 4th DCA 1999).  Despite the Board’s position to the contrary, the Court finds, as set forth in 17-214(B), that Ms. Venosh’s retirement benefits vested upon her death and that those benefits should not be lost simply because Ms. Venosh failed to execute a new Designation of Beneficiary form following the death of her mother.  Indeed, Section 17-215 contemplates such a scenario by specifically providing the lineage of beneficiaries in the event that “no beneficiary designated by the member survives him.”  Therefore, the Commission did not depart from the essential requirements of law in concluding that a benefit is due to the Estate.

            Lastly, the Court finds no merit in the Board’s argument that the Commission departed from the essential requirements of law in failing to defer to the Board’s interpretation of the retirement ordinance.  Section 17-216(E)6. clearly provides that the Commission’s decision is the final judgment and there is nothing in the Section to suggest that the Commission should defer to the Board’s analysis.  Further, the facts of this case presented a matter of first impression to the Board and the Commission such that there was not a “long standing” interpretation to defer to.

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is denied.  It is further,

            ORDERED AND ADJUDGED that the Respondent’s Motion for Costs and Attorney’s Fees is denied. 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of March 2005.







                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge, Appellate Division







Copies furnished to:


James B. Loper, Esquire

15438 N. Florida Ave., Suite 101

Tampa, FL  33613


Kelley A. Bosecker, Esquire

Michael J. Vitoria, Esquire

Lowell J. Walters, Esquire

Post Office Box 3324

Tampa, FL  33601-3324


George J. Schriefer, Esquire

6075 Park Boulevard, Suite A

Pinellas Park, FL  33781 

[1] Section 17-203 defines beneficiary as “[a]ny person in receipt of, or entitled to, an annuity, retirement allowance or other benefits as provided by this Article.”

[2] As stated by the Board, this position is essentially obsolete as general employees ceased making pension contributions and received a refund of all previous pension contributions following the City’s enactment of Ordinance No. 1808 in 1988.