       Third District Court of Appeal
                                State of Florida

                           Opinion filed August 6, 2014.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D13-1069
                           Lower Tribunal No. 3-09584
                              ________________


                            Richard L. Menendez,
                                     Appellant,

                                           vs.

                           City of Hialeah, Florida,
                                     Appellee.


     An Appeal from the Circuit Court for Miami-Dade County, Marc
Schumacher, Judge.

      Richard A. Sicking, for appellant.

      William M. Grodnick; Ogletree, Deakins, Nash, Smoak & Stewart, P.C., and
William R. Radford, for appellee.


Before SUAREZ, EMAS and SCALES, JJ.

      SCALES, J.
       Richard L. Menendez (Menendez), Plaintiff below, appeals from an order

granting final summary judgment in favor of the City of Hialeah, Florida (the City)

for lack of subject matter jurisdiction based on Menendez’s failure to exhaust

administrative remedies. We affirm.

       I.     The City of Hialeah’s Retirement System

       The City has, by ordinance, created a Retirement System. HIALEAH, FLA.,

CODE    OF   ORDINANCES ch. 70 (2002) (Hialeah’s Code). To administer its

Retirement System, section 70-131 establishes an independent board of trustees

(Retirement Board of Trustees or Retirement Board or the Board) “in whom is

vested the general administration, management and responsibility for the proper

operation of the retirement system.” § 70-131, Hialeah Code.

       If an employee of the City, including a firefighter, becomes unable to work

because of a job-related disability, he or she may apply for permanent and total

disability benefits with the Retirement Board of Trustees. § 70-248, Hialeah Code.

The member’s medical condition is then evaluated by the medical committee,

which reports its written conclusions to the Retirement Board. §§ 70-138, -248. If

the medical committee determines that the member is physically or mentally totally

and permanently incapacitated from further performance of duty in the member’s

classified position “and the Board of Trustees concurs[,]” the member is medically

retired. § 70-248.



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      Hialeah Code further provides that a member retired due to total and

permanent disability “shall be subject to a review of the member’s condition by the

medical committee at the request of the board of trustees as often as the board shall

deem it advisable . . . .” § 70-248.

      II.    Factual Background

      The City hired Menendez as a firefighter on June 3, 1991. On November 28,

1995, Menendez applied for total and permanent disability retirement with

Hialeah’s Retirement System. On December 12, 1995, Menendez’s application for

disability retirement was approved by the Retirement Board of Trustees and he

began receiving job-related disability payments.1

      A few years later, pursuant to section 70-248 of Hialeah’s Code, the

Retirement Board decided to review Menendez’s disability status. The medical

committee reexamined Menendez, and, in 2002, concluded that Menendez was no

longer totally and permanently disabled. The medical committee found that

Menendez was capable of performing administrative or light duties. Menendez did

not challenge these findings before the Retirement Board.

      On January 6, 2003, the City wrote Menendez, informing him that it could

accommodate Menendez within his medical limitations and/or restrictions as a Fire

1Menendez’s annual job-related disability benefits had two pay components. The
City itself paid a portion of Menendez’s disability benefits, and the remaining
payment came from Hialeah’s Retirement System.


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Dispatcher in the Fire Department. The City instructed Menendez to report to work

on March 3, 2003. Menendez did not report to work on March 3, 2003.

      Upon being recalled by the City, and having failed to report for work as

scheduled, Menendez was terminated for job abandonment. On March 28, 2003,

the City informed Menendez that it would be discontinuing its portion of his job-

related disability benefits.2 Rather than seek administrative review by the

Retirement Board of Trustees, Menendez filed a complaint seeking declaratory

relief with respect to the rights of the parties and the legality of the City’s

discontinuance of its portion of his disability payments. The trial court found that

Menendez’s failure to exhaust his administrative remedies before the Retirement

Board deprived it of subject matter jurisdiction to hear Menendez’s case.

      III.   Analysis

      The City has, by its code of ordinances, delegated plenary powers to the

Retirement Board of Trustees for the Retirement System’s administration. § 70-

131. The Retirement Board’s determinations regarding entitlement to disability

retirement under section 70-248 are among the principal functions of the Board. §

70-248. The Retirement Board has sole jurisdiction to confirm or reject the medical



2The City did not seek discontinuance of the portion of Menendez’s benefits paid
by Hialeah’s Retirement System. Due to an administrative error, the City’s portion
of Menendez’s disability benefits were not actually terminated until March 2005.


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committee’s conclusions regarding the total and permanent disability status of an

employee. Id.

      Thus, the trial court correctly concluded that it lacked subject matter

jurisdiction over the action since, before filing his lawsuit in the trial court,

Menendez failed to seek administrative review by the Retirement Board of the

following (i) the medical committee’s determination that Menendez was no longer

totally and permanently disabled, and (ii) the City’s subsequent decision to cease

paying Menendez its portion of his disability payments. See De Carlo v. Town of

W. Miami, 49 So. 2d 596, 596-97 (Fla. 1950) (holding that a party is required to

exhaust administrative remedies prior to turning to the circuit court for relief); see

also City of Coral Gables v. Fortun, 785 So. 2d 741, 742 (Fla. 3d DCA 2001)

(“Administrative remedies must be exhausted, subject to certain exceptions not

present in this case, before seeking alternative judicial remedies.”).

      Affirmed without prejudice to Menendez seeking review with the

Retirement Board of Trustees.




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