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