Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT City was not preempted from enacting local legislation concerning firefighter pensions Florida Statutes § 175.351 City code provision allowing for termination of firefighter disability benefits upon reemployment of a similar job did not conflict with Florida Statutes § 175.191.  Pension Board followed the essential requirements of law by discontinuing disability benefits in accordance with city code provision allowing for termination of benefits upon reemployment of a similar job.  Competent, substantial evidence supported finding that occupations of firefighter and deputy sheriff were similar and therefore Petitioner was no longer entitled to disability retirement.  Petition denied.  Stubblefield v. City of Clearwater, Florida, Pension Advisory Committee, No. 09-000044AP-88B (Fla. 6th Cir. App. Ct. October 29, 2010).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

THOMAS STUBBLEFIELD,

                  Petitioner,                                                                       

v.                                                                                             Ref. No.: 09-000044AP-88B

                                                                                                UCN: 522009AP000044XXXXCV

CITY OF CLEARWATER,

FLORIDA, PENSION ADVISORY

COMMITTEE,

                  Respondent.

                                                            /

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

            THIS CAUSE is before the Court on an Amended Petition for Writ of Certiorari filed by Petitioner Thomas Stubblefield on December 7, 2009.  Respondent, the Pension Advisory Committee of the City of Clearwater Employees Pension Fund (“PAC”), filed a response, to which Petitioner filed a reply.  Upon consideration, this Court finds that the petition must be denied as set forth below.

            Petitioner was a firefighter employed by the City of Clearwater.  Petitioner suffered a spinal cord injury in the line of duty on June 18, 2003, and fractured his cervical spine on August 23, 2004, also in the line of duty.  On April 7, 2005, Petitioner filed an application requesting service-connected disability benefits.  In August 2005, upon a determination that Petitioner was permanently and totally disabled from the further performance of his duties as a firefighter, and the PAC granted Petitioner a service-connected disability retirement from the City of Clearwater.

            On September 4, 2007, Petitioner became employed as a deputy sheriff in Pasco County.  This came to the attention of the PAC after review of Petitioner’s affidavit of entitlement to disability form, filed each year.  The PAC arranged for an independent medical evaluation of Petitioner by Dr. Michael Wasylik.  In a report dated February 23, 2009, Dr. Wasylik determined that Petitioner continued to be totally disabled from performing his duties as a firefighter/medic and noted in his report that Petitioner’s job as a deputy sheriff “apparently is rather light duty.”             By a letter dated May 27, 2009, the Human Resources Manager of the Pasco County Sheriff’s Office confirmed that Petitioner was employed as a full-time law enforcement deputy and stated, “I do not show him in a light duty position as you spoke of this afternoon.”  Retired Major R.W. Stone advised in a letter dated May 7, 2009, that he had interviewed Petitioner for a position of certified law enforcement deputy and that Petitioner indicated to him that he had a prior neck injury but was recovered from the injury.   At deposition, Dr. Daniel Terrone, the physician who performed the pre-employment physical for the deputy sheriff position, testified that he found Petitioner capable of performing the essential functions of a law enforcement officer.

            On June 11, 2009, the PAC conducted a hearing to determine whether Petitioner continued to be disabled or whether his disability benefits should be recalled.  The PAC accepted into evidence medical reports, the personnel file from the Pasco County Sheriff’s Office, the depositions of Dr. Wasylik and Dr. Terrone, the job descriptions of the positions of firefighter for the City of Clearwater and deputy sheriff for Pasco County, and related documents.  

            By a Final Order Recalling Service-Connected Disability Retirement, the PAC determined that Petitioner’s disability benefits should be discontinued because Petitioner had accepted employment with another employer in an occupation or line of work similar to the occupation or line of work that resulted in Petitioner being eligible for a disability benefit from the City of Clearwater.   Petitioner seeks an order quashing the PAC’s Final Order and directing a continuation of his service-connected permanent total disability retirement benefit previously awarded. 

            In reviewing the PAC’s order, this Court is limited to determining (1) whether procedural due process has been accorded, (2) whether the essential requirements of law have been observed, and (3) whether the administrative findings and judgments are supported by competent substantial evidence.  Haines City Community Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).  In determining whether the PAC observed the essential requirements of law, the Court must consider whether an error occurred and, if so, whether such error resulted in a gross miscarriage of justice.  Id. at 527.

            Petitioner first argues that the PAC’s decision to recall Petitioner’s service-connected disability retirement failed to comport with Florida Statutes chapter 175, which governs Firefighter Pensions.  Specifically, Petitioner cites to § 175.191(2), which provides that “[a] firefighter will be considered totally disabled if . . . he or she is wholly prevented from rendering useful and efficient service as a firefighter; and a firefighter will be considered permanently disabled if . . . he or she is likely to remain so disabled continuously and permanently.”  Id.  Additionally, § 175.191(7) provides as follows: 

If the board of trustees finds that a firefighter who is receiving a disability retirement income is no longer disabled, as provided herein, the board of trustees shall direct that the disability retirement income be discontinued.  “Recovery from disability” as used herein means the ability of the firefighter to render useful and efficient service as a firefighter.

 

§ 175.191(7), Fla. Stat. (2009).

            Instead, the PAC applied the standard set out in § 2.397(c)(4)(b)(1) of the City of Clearwater Pension Ordinance (“Code”):  “[I]f an employee accepts employment with another employer in an occupation or line of work similar to the occupation or line of work that resulted in the employee being eligible for a disability benefit hereunder, he shall forfeit the right to his disability benefit.”  Id.  Petitioner argues that because this section of the city code conflicts with state law, state law governs and the PAC should have applied the standard in § 175.191.

            Florida Statutes § 175.351 recognizes the right of cities to maintain local law plans and still receive State funds as long as they meet the minimum benefits and minimum standards of chapter 175.  Chapter 175, however, only sets a minimum standard for termination of disability benefits if the person may once again work as a firefighter; it does not prohibit additional limitations on disability benefits.  The 1999 amendments to chapter 175 clarify that the chapter applies to both chapter plans and local law plans.  See Ch. 99-1, Laws of Fla. (amending ch. 175, Fla. Stat. (1998)).  Therefore, there is no state preemption that would prevent the City of Clearwater from enacting legislation concerning the field of firefighter pensions.  Moreover, because the Code includes the minimal requirements for discontinuation of disability retirement income under § 175.191(7), the PAC followed the essential requirements of law by recalling Petitioner’s disability benefits in accordance with Code § 2.397(c)(4)(b)(1).

            Petitioner also argues that the PAC’s decision to discontinue Petitioner’s disability benefits was not supported by competent substantial evidence.  The PAC determined that the occupations of firefighter and deputy sheriff were “similar” based on its consideration of the Black’s Law Dictionary definition of “similar”; job descriptions for a Pasco County deputy sheriff and a City of Clearwater firefighter; and testimony of the City’s Human Resources Director  concerning the similar physical requirements of the jobs.  This evidence, coupled with the medical records and testimony of Dr. Wasylik and Dr. Terrone, constitutes competent substantial evidence supporting the PAC’s decision to discontinue Petitioner’s disability benefits based on his employment in a line of work similar to firefighting.

Accordingly, it is

            ORDERED AND ADJUGED that the Petition for Writ of Certiorari is hereby DENIED.

            DONE AND ORDERED in Chambers in St. Petersburg, Pinellas County, Florida, on this                       day of October 2010.

 

Original order entered on October 29, 2010 by Circuit Judges Amy M. Williams, Peter Ramsberger, and Pamela A.M. Campbell.

 

 

 

 

 

Copies furnished to:

 

RICHARD A. SICKING, ESQUIRE

1313 Ponce de Leon Blvd., #300

Coral Gables, Florida 33134

Attorney for Petitioner

 

STUART A. KAUFMAN, ESQUIRE

10059 N.W. 1st Court

Plantation, Florida 33324

Attorney for Respondent