Judges: DIANE D. TREMOR
Agency: Agency for Workforce Innovation
Latest Update: Aug. 20, 1979
Summary: By a petition to determine the invalidity of a rule filed pursuant to Section 120.56, the petitioners herein challenge the respondent's Rule 8B- 5.13(1), Florida Administrative Code. By order of assignment dated April 18, 1979, the matter was assigned to Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings. Pursuant to stipulation of the parties, an administrative hearing was not held and the cause was submitted to the Hearing Officer on stipulated facts, the transcript
Summary: By a petition to determine the invalidity of a rule filed pursuant to Section 120.56, the petitioners herein challenge the respondent's Rule 8B- 5.13(1), Florida Administrative Code. By order of assignment dated April 18, 1979, the matter was assigned to Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings. Pursuant to stipulation of the parties, an administrative hearing was not held and the cause was submitted to the Hearing Officer on stipulated facts, the transcript of a deposition, documentary evidence and memoranda of law submitted by the parties. For Petitioner: Barbara Green and Stephen Maher Legal Services of Greater Miami, Florida, Inc.The challenged rule is invalid exercise of delegated legislative authority b/c it restricts ability of petitioners to call wits. as needed at hearings.
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vs. ) CASE NO. 79-816RX
Respondent. )
By a petition to determine the invalidity of a rule filed pursuant to Section 120.56, the petitioners herein challenge the respondent's Rule 8B- 5.13(1), Florida Administrative Code. By order of assignment dated April 18, 1979, the matter was assigned to Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings. Pursuant to stipulation of the parties, an administrative hearing was not held and the cause was submitted to the Hearing Officer on stipulated facts, the transcript of a deposition, documentary evidence and memoranda of law submitted by the parties.
Legal Services of Greater Miami, Florida, Inc.
For Respondent: Chad J. Motes
Upon consideration of the stipulations of fact, the deposition of Luis Martinez, a senior appeals referee, taken on May 18, 1979, with exhibits and the stipulated documentary evidence adduced in this proceeding, the following relevant facts are found:
At the time of the filing of the instant petition challenging Rule 8B- 5.13(1), both petitioner Cotilla and petitioner Prieto were parties in proceedings before the respondent to obtain unemployment compensation benefits. Their applications for benefits had originally been denied for lack of sufficient wage credits. Both petitioners had been continuously employed by Florida East Coast Deliveries, Inc. from 1974 through December of 1978. The finding of lack of credits was based on the employer's switch from the Florida Unemployment Compensation System to coverage under the Railroad Unemployment Insurance Act.
By letters dated March 29, 1979, the attorney for the petitioners made a request to Manuel M. Garcia, the appeals referee, for subpoenas to produce certain documents and a witness at the hearing scheduled for April 12, 1979.
The letter requesting subpoenas stated that the records and witnesses
are expected to provide evidence to
show that the claimants had in fact been paid sufficient wages for insured work under Fla.
Stat. 443.05(1)(e), during their base periods to qualify for Florida Unemployment
Compensation benefits, which they have earned."
By letter dated March 30, 1979, Appeals Referee Garcia denied the request for subpoenas "at this point in time," stating that
"I will take into consideration your request, and if necessary, subpoenas will be issued later. However, sufficient cause has not
been shown at this point to warrant subpoenas.
There is no indication in your letter that the employer has refused to comply with any request for documents and/or witnesses. In addition, is questionable whether subpoenas can be issued and served prior to the April 12, hearing.
Finally, the documents and information you are requesting are so general in nature, and its relevancy is at best questionable."
Petitioners' attorney requested a reconsideration of her subpoena request by letter dated April 2, 1979. This letter stated in great detail why the attorney for the claimants (petitioners herein) felt that the information and documents requested were relevant to the issue in dispute.
On April 9, 1979, Referee Garcia again denied the request for subpoenas by a letter stating:
Most of the information that you provided as to why these documents should be subpoenaed refer to the instant employer's liability under the Florida Unemployment Compensation Law. In addition, your clients' position, earnings, and weeks of employment with the instant employer are not being disputed, as far as I can tell. My previous denial of your request for subpoenas at this point in time still stands. I will consider a second Hearing near the employer's vicinity, subpoena or a field investigation after the hearing, if such are necessary to comply, with due process.
To clarify one point the subpoenas you are requesting are not being denied because of
the time involved in issuing and serving subpoenas. The matter was mentioned because it is impractical to request documents of unproven relevancy, which in all probability will not be available for the April 12, 1979, Hearing, even if the subpoenas are issued."
A hearing was held in petitioner Cotilla's appeal on April 12, 1979. The employer, Florida East Coast Deliveries, Inc., refused to voluntarily supply the requested information. The petitioners did not have knowledge of or access to the requested information except by the subpoenas which were refused. Thomas
J. Edwards appeared at the April 12th hearing as agent of the employer, but he did not have the information requested in the subpoena request. Other agents of the employer did have the requested information. Petitioner Prieto's hearing was postponed until May 7, 1979. By letter dated April 23rd, his attorney renewed her requests for subpoenas and the request was again denied.
Since the basis for the denial of petitioners' unemployment benefits was the question of the employer's liability under the Florida Unemployment Compensation Act, the information requested was relevant to the proof of their case.
In addition, in petitioner Prieto's case, it was relevant to the issue concerning the timeliness of his appeal, in that the testimony and evidence sought were relevant to the wrongfulness of the respondent's actions in denying him benefits which petitioner Prieto contends was a cause of his failure to file his appeal within ten (10) days.
At their unemployment hearing, the petitioners were unable to prove the circumstances under which their former employer switched coverage from the Florida Unemployment Compensation Act to the Railroad Unemployment Insurance Act.
Petitioner Cotilla has not received any unemployment compensation benefits, and no decision has been rendered in the case of petitioner Prieto.
The basis for all of the denials of the subpoena requests which have occurred in the unemployment compensation proceedings of the petitioners is the challenged Rule 8B-5.13(1). This Rule, which is set forth in full below, provides in pertinent part that subpoenas "may" be issued by the appeals referee upon timely written application and that the application must state the "reason for appearance to include what testimony or evidence the witness is expected to provide."
Pursuant to Rule 8B-5.13(1), it is the current practice of respondent's appeals referees to deny requests for subpoenas which do not contain a written explanation of the reason the subpoena is needed prior to the hearing. The explanation must state, to the satisfaction of the appeals referee, the materiality, relevance and competence of the testimony or evidence sought. Absent such a showing which is deemed satisfactory by the referee, the request for subpoenas will be denied. Even when the request provides an explanation which illustrates that the evidence or testimony sought is material, relevant and competent, it is typical practice for the appeals referee to attempt to use other means of obtaining the facts sought. For example, someone from the referee's office will telephone the person to whom the subpoena request is directed and ask them to voluntarily appear at the hearing. Also, the referees may request a field auditor or field examiner to examine employer
records and file a report at the hearing. If it becomes apparent to the referee at the hearing that a witness or document is needed, the hearing will be continued and a subpoena will be issued.
CONCLUSIONS OF LAW
The portion of Rule 8B-5.13 being challenged herein reads as follows: 8B-5.13 Subpoenas
Subpoenas requiring the attendance
of witnesses or production of records, files and memoranda from any place in the state, at any designated place of hearing before the Appeals Referee for the purpose of taking the testimony of such witnesses or inspection of documents, may be issued upon the timely written application of any party of record, or upon the Referee's own motion. The application for such subpoena shall state the name and address of the witness for whom the subpoena is to be
issued, the party on whose behalf the witness is expected to testify, and the time
and place for the witness to appear and reason for appearance to include what testimony or evidence the witness is expected to provide.
It is the underscored portion of this rule which petitioners contend constitutes an invalid exercise of delegated legislative authority. It is argued that the challenged rule is without statutory authority and, in fact, is in conflict with the Administrative Procedure Act and administrative practice pursuant to the Model Rules of Procedure, Chapter 28-5 of the Florida Administrative Code.
Model Rule 28-5.29 reads substantially identical to the challenged rule with the exception of the language underscored above. The Model Rule contains the word "shall" in lieu of "may" and omits the remaining underscored language at the end.
As a statutory basis for the challenged rule, the respondent cites Florida Statutes, Section 443.12(8). This provision, in pertinent part, reads as follows:
"(8) OATHS AND WITNESSES.-- In the discharge of the duties imposed by this chapter,
the appeals referees . . . shall have power to administer oaths . . . and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with the administration of this chapter."
Respondent asserts that the words "deemed necessary" in the statute quoted above provide the authority for the underscored language in the challenged rule. The undersigned Hearing Officer rejects this contention of the respondent. The words "deemed necessary" must be read in conjunction with the preceding and subsequent words. The "deemed necessary" refers to "other records deemed
necessary as evidence. To apply the words "deemed necessary" to witnesses is illogical because witnesses are not evidence.
The prime question in this proceeding is whether the respondent may, by rule, confer upon its appeals referees the discretionary power and authority to deny subpoenas to litigants in an administrative proceeding. A reading of the case law, the respondent's Chapter 443 and the Administrative Procedure Act leads to the conclusion that to so restrict the litigant's right to compulsory attendance of witnesses and production of documents at a hearing constitutes an invalid exercise of delegated legislative authority.
The appellate courts have specifically held that an employee in an unemployment compensation proceeding has a right to the compulsory attendance of witnesses, and that a denial of this right constitutes a denial of due process and a fair hearing. Drogaris v. Martine's Incorporated and The Florida Industrial Commission, 118 So.2d 95 (Fla. App. 1st, 1960).
Prior to 1978, Chapter 443 of the Florida Statutes contained procedural language applicable to unemployment compensation appeal hearings. Chapter 78-95 Laws of Florida (1978), deleted the language which was superseded or made redundant by Chapter 120, Florida Statutes. Thus, the procedural guarantees of that chapter are applicable to unemployment compensation proceedings. There is nothing in Chapter 443, including Section 443.12(8), which restricts a litigant's rights to the fair hearing mandated by Chapter 120. To attempt to do so by rule ire the absence of specific legislative authority is invalid.
The Administrative Procedures Act (APA), Section 120.57 (1)(b)(4) Florida Statutes, confers upon the trier-of-fact the power to issue subpoenas upon the written request of any party. The only restriction upon the authority to issue subpoenas under the APA is that restriction contained in 120.58(1)(b) relating to information sought from members or employees of the legislature. In short, under the case law and the APA, a party in an administrative proceeding has the right to present at the hearing those documents and witnesses he deems relevant and material to the issues for determination. There is no statutory language in Chapter 443, Florida Statutes, which would authorize a restriction upon this right. To allow the trier-of-fact, to wit: the appeals referees, to make the initial decision as to the presentation of evidence at the hearing in the absence of explicit statutory authority is invalid. The presentation of relevant, competent evidence at an administrative hearing is a right guaranteed to the parties, and the decision to compel the attendance of witnesses or the production of evidence at the hearing is a matter to be decided by the parties. It is only when that right is abused that the discretionary powers of the trier- of-fact are to be called upon.
The testimony as to the typical manner in which appeals referees respond to requests for subpoenas is further indicative of the invalidity of the challenged rule. The obvious purpose of the unemployment compensation law is to relieve economic insecurity by providing temporary income during periods of involuntary unemployment. F.S. 443.02. The speedy receipt of benefits is thus imperative. By the use of the word "may" in the challenged rule, even if the claimant does manage to satisfy the referee that the testimony or evidence sought by subpoena is relevant, material and competent, the referee is still permitted to deny the subpoena if he feels that another means of obtaining the evidence would be preferable. If such an alternative means proves to be insufficient at the hearing, the referee continues the hearing and issues the
subpoena. Such a delay can work a severe hardship on a claimant seeking benefits, as does the remedy of appeal when subpoena requests are denied.
The petitioners being claimants in pending unemployment compensation proceedings in which subpoenas were requested and denied pursuant to the challenged rule, they are substantially affected by the rule and have standing to challenge its validity.
IT IS ORDERED THAT Florida Administrative Code, Rule 8B-5.13(1) constitutes an invalid exercise of delegated legislative authority.
Done and entered this 20th day of August, 1979, in Tallahassee, Florida.
DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Florida, Inc.
Carroll Webb, Executive Director Administrative Procedures Committee Room 120 Holland Building Tallahassee, Florida 32301
Suite 206, Berkeley Building 2590 Executive Circle, East Tallahassee, Florida 32301
