STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JUAN ALFONSO, )
)
Petitioner, )
)
vs. ) CASE NO. 80-1548RX
) STATE OF FLORIDA, DEPARTMENT ) OF LABOR AND EMPLOYMENT )
SECURITY, and STATE OF ) FLORIDA, DEPARTMENT OF LABOR ) AND EMPLOYMENT SECURITY, ) UNEMPLOYMENT APPEALS )
COMMISSION, )
)
Respondents. )
)
FINAL ORDER
This is a rule challenge under Section 120.56, Florida Statutes, wherein the Petitioner Juan Alfonso seeks to invalidate Rule 38E-5.15(2), Florida Administrative Code, promulgated by the State of Florida Unemployment Appeals Commission. The rule sets forth the required, content of notices of hearing issued in connection with unemployment compensation appeals filed pursuant to Chapter 443, Florida Statutes. The Petition also seeks an administrative determination under Section 120.56 that the Notice of Hearing form issued by the Department of Labor and Employment Security in such cases, LES Form UCA-2, is an invalid rule.
The parties filed a joint request to dispense with a formal hearing wherein they agreed to have the matter determined on the basis of a stipulation of pertinent facts and submission of legal briefs. A Supplement Stipulation was filed subject to a determination of the Hearing Officer that the matters set forth therein are relevant to the proceeding.
The joint request of the parties was granted and the stipulation accepted by the Hearing Officer pursuant to Order issued on September 23, 1980.
The matters contained in the supplemental Stipulation are considered to be relevant to the subject matter of this proceeding and the stipulation is therefore accepted. The contents of both stipulations constitute the factual findings as follow:
FINDINGS OF FACT STIPULATION
State of Florida, Department of Labor and Employment Security, Unemployment Appeals Commission ("Commission") is an agency affected by the petition in this matter. It exists within the Department of Labor and
Employment Security ("Department"), and receives its property, personnel, and appropriations from the Department.
The Commission and the Department are agencies as defined in Section 120.52(1), Florida Statutes.
Petitioner, Juan Alfonso, Social Security Number 034-44-0611, resides at 20082 N.W. 43 Court, Carol City, Dade County, Florida.
Petitioner is a party in proceedings before the Commission to obtain unemployment compensation benefits. His case was Referee Decision Docket No. 80-901OU, and is now on appeal by Petitioner to the Unemployment Appeals Commission, UCA Docket No. 80-2199.
Petitioner was denied unemployment compensation benefits by a claims examiner of the Department, who issued two claims determinations on or about May 1, 1980. The Claims Examiner is not employed by the Commission, but by the Department.
Exhibits B and C attached hereto are true and correct copies of the determinations issued by the claims examiner on or about May 1, 1980.
Petitioner timely appealed both decisions of the Claims Examiner.
A hearing was noticed on Petitioner's appeal.
Notice of the hearing was given pursuant to Form UCA-2 and Rule 38E- 5.15(2), Florida Administrative Code.
Rule 38E-5.15(2), Florida Administrative Code, a rule of the Commission. Form UCA-2 is issued by the Department.
Exhibit A, consisting of two pages, attached hereto, is a true and correct copy of the front and back of the notice of hearing given Petitioner in the hearing regarding his appeal from the Claims Examiner's determination. Petitioner was given no other written notice of hearing.
Hearing was held before an appeals referee, an employee of the Department, on June 11, 1980, pursuant to the notice attached as Exhibit A.
Petitioner appeared at the hearing on June 11, 1980, without counsel.
Petitioner has standing to bring this Rule Challenge.
Exhibit D attached hereto, consisting of four pages, is a true and correct copy of the Referee's decision issued as a result of the hearing held on June 11, 1980, in Docket No. 80-9010U.
Petitioner timely appealed that decision to the Commission. Petitioner's appeal is currently pending before the Commission in UCA Docket No. 80-2199.
Petitioner's case has not yet been decided by the Commission.
Petitioner is not receiving unemployment compensation benefits at this time, due to the adverse decision of the appeals referee resulting from the June
11 hearing.
When a claimant such as Petitioner files a claim with the Department for unemployment compensation benefits, he completes Claim for Benefits LES form UCA-3, which requests the name of the last employer and the reason for separation.
Upon completion of the form, his last employer is furnished LES form UCA-4, which contains the reasons for the separation contained on LES form UCA-
The employer is requested by the Department to provide information regarding the reason for his job separation, whether the claimant has refused an offer of work, and whether the employer would re-employ the claimant.
Upon receipt of the employer's response, a fact finding interview is conducted by a claims interviewer employed by the Department, who inquires into the subject of the termination, offers of work, and work search. The interviewer verbally advises the claimant of the employer's statement. The claimant provides his response. A summary of the interview is recorded on LES form UCA-64.
During or after the interview, the claims interviewer contacts the employer by telephone and advises the employer verbally of the claimant's statements made on the fact finding report. The employer provides his statement to the interviewer. A summary of the telephone interview is recorded on the Fact Finding Report. If the employer raises a new matter not raised in his initial response, the claimant is verbally advised of such matters.
The claimant provides a statement in response. A summary of the claimant's response is recorded on a Fact Finding Report.
A claims determination is then rendered.
If the determination is favorable to the claimant, the employer may appeal. If the determination is adverse to the claimant, the claimant may appeal.
Notice of hearing of the appeal is given pursuant to Rule 38E-5.15(2). If the party resides in Florida, the notice of hearing is provided on form UCA- 2.
The majority of unemployment compensation claimants' are not represented by counsel at any stage of the proceedings; however, Respondent does not concede that whether a claimant is represented by counsel is relevant to the subject matter of the rule challenge hearing.
A claimant who has been determined by a claims examiner to have voluntarily quit his job without good attributable to the employer can be found by an appeals referee to have been discharged for misconduct connected with work.
A claimant who has been determined by a claims examiner to have been discharged can be found by an appeals referee to have voluntarily quit his job without good cause attributable to the employer.
Respondent does not concede that LES Form UCA-2 is a rule.
LES Form UCA-2 has not been adopted pursuant to Chapter 120, Florida Statutes.
In adopting Rule 38E-5.15(2), the Commission did not seek modification of the model rules as described in Section 120.54(10), Florida Statutes.
SUPPLEMENTAL STIPULATION
The parties stipulate as follows regarding the hearing held before the appeals referee on June 11, 1980, in Referee Docket No. 80-9010U, regarding Petitioner's claim for unemployment compensation benefits:
Several times during the hearing, the petitioner asked for clarification of which job was being referred to.
Petitioner stated that he did not understand the paper from the unemployment office.
Petitioner stated that he did not understand what job he was supposed to have quit, or what location he was supposed to be dissatisfied with.
Petitioner had difficulty answering questions about tardiness, stating he could not remember.
The employer raised the issue of misconduct for the first time at the hearing.
CONCLUSIONS OF LAW
This proceeding involves a challenge to the Florida Unemployment Compensation Commission's Rule 38E-5.15(2), Florida Administrative Code, and LES Form UCA-2 of the Department of Labor and Employment Security. The parties have stipulated that Petitioner has standing to contest the existing rule and to challenge the departmental form as an unpublished rule. The parties further acknowledged that the rule in question was adopted pursuant to the procedures of Chapter 120, Florida Statutes, but that the form in question has not been so adopted.
Section 20.171, Florida Statutes, establishes the Unemployment Appeals Commission within the Department of & Labor and Employment Security. Subsection 20.171(5) provides pertinently as follows:
(5)(a) There is created within the Department of Labor and Employment Security an Unemployment Appeals Commission hereinafter referred to as the "commission." . . .
* * *
(c) The commission is vested with all authority, powers, duties, and responsibilities relating to un- employment compensation appeal proceedings under chapter 443.
* * *
(e) The commission shall not be subject to control, supervision, or direction by the Department of Labor and Employment Security in the performance of its powers and duties under chapter 443.
* * *
(k) The Commission shall, in accordance with chapter 120, adopt, promulgate, amend or rescind such rules as it
deems necessary and administratively feasible to carry out its responsibilities.
Section 443.07, Florida Statutes (1979), sets forth the procedure concerning the filing and processing of unemployment compensation claims which includes an initial determination to be made by an examiner designated by the Division of Employment Security of the Department of Labor and Employment Security. Such determination must include a statement as to entitlement to benefits and, if denied, must state the reasons therefor. Notice of the determination is provided to the claimant and employer. Subsection 443.07 (4) permits an appeal of a determination to a referee appointed by the Division of Employment Security. Subsection 443.07(4) (b)2 provides in part that:
". . . the appeals referee, after mailing all parties a notice of hearing at least
14 days prior to the date of hearing, shall affirm, modify, or reverse such determination
. . ."
Subsection 443.07(4)(d) provides that the manner in which appealed claims shall be presented shall be in accordance with rules prescribed by the commission.
However, subsection 443.12(2) states:
(2) RULE'S AND REGULATIONS; DIVISION, SEAL.--
(a) The division shall have the power and authority to adopt, amend or rescind such rules and regulations as are necessary for the administration of this chapter.
The challenged portion of the rule reads as follows: 38E-5.15 Notice of Hearing
* * *
(2) The notice shall include:
A statement of the date, time and place of the hearing;
A statement of the legal authority and jurisdiction under which the hearing is to be held;
A statement of the issues to be decided by the appeals referee with reference to the specific statutory or rule provisions involved. In the event that any party has not been provided a copy of the determination on appeal,
a copy thereof shall be appended to such party's notice;
A statement that failure to attend may result in a decision in favor of the other side;
A statement of the rules regarding requests for continuances and sub-
poenas; and
The address of the office to which all motions, requests or other cor- respondence concerning the hearing should be directed.
Petitioner alleges in his Petition and Amendment to Petition that the challenged portion of the rule is invalid because it fails to require the inclusion of information set forth in subsection 120.57(1)(b)(2)d., Florida Statutes, and therefore is inconsistent and in conflict with that statutory provision. He further claims that the rule is inconsistent with Model Rule of Procedure 28-5.209, Florida Administrative Code, which requires that notices of hearing issued in connection with formal proceedings under Section 120.57(1) shall contain the statements set out in Section 120.57(1)(b)(2), Florida Statutes. Subsection 120.57(1)(b)(2) provides pertinently as follows:
120.57 Decisions which affect substantial interests.--
* * *
(1) FORMAL PROCEEDINGS.--
* * *
(b) In cases to which this subsection is applicable, the following procedure shall apply:
* * *
All parties shall be afforded an opportunity for a hearing after reasonable notice of not less than 14 days . . .
The notice shall include:
A statement of the time, place, and nature of the hearing.
A statement of the legal authority and jurisdiction under which the
hearing is to be held.
A reference to the particular sections of the statutes and rules-involved.
A short and plain statement of the matters asserted by the agency and by all parties of record at the time notice is given. If the agency or any party is
unable to state the matters in sufficient detail at the time initial notice is given, the notice may be limited to a statement
of the issues involved, and thereafter, upon timely written application, a more definite and detailed statement shall be furnished not less than 3 days prior to the date set for the hearing.
Petitioner focuses his attack on the requirement of subsection 120.57(1)(b)(2)d that a notice of hearing shall include "A short and plain statement of the matters asserted by the agency and by all parties of record at the time notice is given." He claims that that requirement is not met by sub- paragraph (2)(c) of the rule which provides only for the inclusion of "A statement of the issues to be decided by the appeals referee with reference to the specific statutory or rule provisions involved. Petitioner contends that such information is deficient and in direct conflict with the statutory
requirement, and constitutes an invalid exercise of delegated legislative authority. Respondents point to the broad rule-making discretion of administrative agencies and answer that the rule must be held valid because it is reasonably related to the purposes set out in subsections 20.171(5)(c) and (k), and Subsection 443.07(4)(d), and is not arbitrary or capricious.
Respondents also note that the extensive procedures under which an unemployment compensation claim is processed whereby the various contentions of employer and employee are submitted to the agency, after which a fact finding interview is conducted by a claims interviewer and rebuttals of the respective contentions are submitted and recorded on a fact finding report, and after which the claims determination is rendered and the claimant notified thereof, establish that the parties are fully apprised of all relevant matters surrounding the appeal.
Respondents further claim that the intent of federal regulations implementing the Social Security Act call for promptness in deciding appeals from benefit determinations and that it would be contrary to the purpose of such law to require that notice be provided twice. Finally, Respondents argue that subsection 120.57(1)(b)(2)d permits the notice to be limited to a statement of issues involved if the agency is unable to state the matters in sufficient detail when initial notice is given. Then, upon timely written application, a more definite and detailed statement is required to be provided not less than three days prior to the hearing date.
The concept of "reasonable notice" is fundamental to procedural due process considerations in the administrative process. The basic purpose of notice, of course, is to inform the parties of the matter in controversy in order that they may properly prepare for hearing. Normally, a generalized summary of the case that clearly indicates what issues and facts the Respondent is to meet is all that can be expected. In discussing the subject of pleadings and notice in administrative proceedings, Professor Davis has stated:
The most important characteristic of pleadings in the administrative process is their unimportance. And experience shows that unimportance of pleadings is a virtue. In the judicial system the long-term movement has been from the
common-law system of pleading to formulate issues, to the early code ideal of stating all material facts, to the view now pre- vailing in the federal courts that fair notice is the objective. Of pleading in the courts, Professor Moore says in his treatise:
"The modern philosophy concerning pleadings is that they do little more than indicate generally the type of litigation that is involved . . . A generalize summary of the case that affords fair notice is all that can be expected." Davis, Administrative Law Text, 8.02(3d ed. 1972).
Here, it is true that paragraph (2)(c) of the Commission's rule does not track subsection 120.57(1)(b)(2)d, but it does adequately meet the statutory intent of providing sufficient notice to the contending parties. Not only does mule require that the issues under consideration be set forth in the notice, but it assures that the determination of the examiner who made the preliminary decision on the claim must have been previously furnished to the parties or that it be appended to the notice of hearing. This incorporation by reference or
attachment to the notice serves to constitute thee "short and plain statement of the matters asserted" referred by the statute. Such claims determination identifies the parties to the proceeding, states the reason for the determination, and makes reference to the statutory provision upon which the determination was based. The incorporation by reference or attachment of such information, together with the identification of the issues contained on the notice form, clearly is sufficient to meet the statutory mandate and to put the parties on notice as to the specific matters to be considered at the hearing on the appeal. It is therefore concluded that the rule provision is in consonance with the statutory provisions which it implements and does not constitute such a modification as would require approval by the Administration Commission under Section 120.54(10), F.S. The adequacy of the notice required under the rule has been demonstrated in two recent decisions wherein the courts have specifically held that the information provided parties in unemployment compensation appeals hearings was sufficient for the purposes of due process. Marion County School Board v. Clark, 378 So.2d 831, 834 (Fla. 1st DCA 1979), Andrus v. Florida Department of Labor and Employment Security, 379 So.2d 468 (Fla. 4th DCA 1980).In Andrus, the Fourth District Court of Appeal stated as follows:
Due process of law requires either proper notice of the issues to be heard or a basis in the record to show an informed and intelligent waiver of the same. Lewis v. Hot Shoppes, 211 So.2d 20, 21 (Fla. 4th DCA 1968). Appellant was advised of the hearing before the Appeals Referee by a form which called her attention to the fact that one of the issues to be heard was whether appellant was able and available for work. The form provided:
ABLE AND AVAILABLE FOR WORK:
Whether claimant has been able to work, as provided in Section
443.05(1)(c)1.2., Florida Statutes. (Hearing may cover the entire claim period. The Courts have ruled that "available for work" means the claimant must be actively seeking and applying for employment. Testimony will be taken on your search for work.)
We find this notice sufficient for purposes of due process, in that appellant was clearly
alerted to the fact that she was required to show that she had been actively seeking and applying for employment.
Although neither of the above decisions concerned a challenge against the rule in question, the specific approval by the courts as to adequate notice necessarily shows that the matters required under the rule which were stated in such notices were sufficient in the administrative proceedings.
The second area of controversy is LES Form UCA-2 constitutes a rule under Chapter 120 which must be promulgated in accordance with statutory procedures. The parties agree that the Departmental form has not been adopted pursuant to Chapter 120. Accordingly, if the form, is found to be a rule, it must necessarily be determined invalid because it has not been adopted pursuant to such rule-making procedures. Florida Department of Offender Rehab. v. Walsh, 352 So.2d 575 (Fla. 1st DCA 1977)
Section 120.52(14), Florida Statutes, defines "rule" as follows:
(14) "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and
includes any form which imposes any require- ment or solicits any information not speci- fically required by statute or by an existing rule.
Petitioner asserts that the notice of hearing form constitutes a rule because it is used to give notice in all unemployment compensation hearings and therefore is an agency statement of general applicability, and that it prescribes procedure or practice requirements of the agency in various respects.
Petitioner further claims that the additional language in Section 120.52(14) concerning forms is merely illustrative and need not be met in order to find that the form in question is a rule. However, Petitioner states that, in any event, LES Form UCA-2 would meet that standard in that it imposes requirements and solicits information not specifically required by statute or an existing rule, to wit: the statement in the form that persons who do not speak and understand English must bring their own interpreter or suffer the possibility that the hearing will not be held and the claim may be subject to dismissal. He further points to the requirements of notification of any change of address, and that parties should provide photocopies of written evidence at the hearing. The Department simply denies these contentions and cites various judicial and administrative decisions in support of its position.
In State, Department of Administration v. Harvey, 356 So.2d 323 (Fla. 1st DCA 1978), the First District Court of Appeal stated:
The breadth of the definition in Section 120.52(14) indicates that the Legislature intended the term to cover a great variety of agency statements regardless of how the agency designates them. Any agency statement is a rule if it "purports in and of itself to create certain
rights and adversely affect others," Stevens, 344 So.2d at 296, or serves "by [its] own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law. McDonald v. Dep't of Banking & Fin, 346 So.2d 569, 581 (Fla. 1st DCA 1977) . . .
When considering the matters set forth on the challenged form in the light of the above statutory and judicial definitions of a "rule," it first is determined that the form is an "agency statement of general applicability" in that it is used uniformly as a notice of hearing in unemployment compensation appeals. The mere fact that the executed form which prompted this proceeding dealt only with Petitioner's appeal or that certain challenged provisions therein were not actually forced in that proceeding does not limit the form's general
applicability to all appellants. It is also clear that the contents of the form are designed to implement the notice requirements of Chapters 120 and 443, and the Commission's Rule 38E-5.15(2). The form further prescribes policies of the Department regarding procedural and practice requirements applicable to unemployment compensation appeals hearings. These are set forth in the block on the form entitled INFORMATION AND INSTRUCTIONS TO THE PARTIES, in addition to the interpreter requirement which also appears on the face of the form.
The crucial question for consideration is whether or not the form meets the other criteria of the definition concerning the imposition of requirements or solicitation of information not specifically required by law. In other words, does the form in itself create or affect rights, require compliance, or otherwise have the "direct and consistent effect of law." It should first be noted that any notice of hearing form, including the one in question, is primarily designed to be informational in nature. LES Form UCA-2 provides necessary information such as identification of the parties, time and place of hearing, the subject matter of the hearing, and procedural information
dealing with postponement, withdrawal, appearance, representation, and the like. The reverse of the form lists a number of "ISSUES INVOLVED" which cover the gamut of possible matters in controversy under Chapter 443, and the specific issues in a particular proceeding are identified by number on the front of the form. The simple statement of issues to be determined does not, in itself, create or adversely affect rights, but simply states the agency's concept of the matter in controversy which is subject to challenge either before or during the course of hearing.
As to the specific aspects of the notice contested by Petitioner, the one dealing with notification of address change is obviously not intended to create or affect rights. The provision requesting the parties to bring a minimum two photocopies of any written material to the hearing for consideration by the referee is a permissive rather than mandatory requirement.
However, the requirement that a party who does not speak and understand English must bring his own interpreter to the hearing or else the hearing will be cancel led and the appeal be subject to dismissal significantly departs from the informational character of the notice, and does indeed impose a requirement which if not met would adversely affect a party's right to be heard. Respondents have not cited any statutory or regulatory authority for such a requirement. Consequently, the form itself purports to create the same and thus have the "direct and consistent effect of law." It is unnecessary to determine whether or not the requirement is advisable or otherwise in consonance with procedural rights in the administrative process. Nevertheless, such a matter, which bears directly upon a person's rights to participate in the adjudicatory process and can possibly impose an economic burden in engaging an interpreter, presents questions properly for determination in a rule-making proceeding under Chapter 120.
Based on the foregoing considerations, it is hereby determined:
Petitioner has failed to establish that Rule 38E-5.15(2), Florida Administrative Code, is an invalid exercise of delegated legislative authority.
The requirement of LES Form UCA-2 which states "If you do not speak and understand English you must bring your own interpreter to the hearing. If you appear without an interpreter the hearing will not be held and your appeal may be subject to dismissal" is a rule which constitutes an invalid exercise of
delegated legislative authority for failure to have been adopted in accordance with the procedures of Section 120.54, Florida Statutes.
The memorandums submitted by the parties have been fully considered, and those portions not adopted herein are deemed to be unnecessary, irrelevant, or unwarranted in fact or law, and are specifically rejected.
DONE and ORDERED this 28th day of October, 1980, in Tallahassee, Florida.
THOMAS C. OLDHAM
Hearing Officer
Division of Administrative Hearings
101 Collins Building Tallahassee, Florida 32301 (904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1980.
COPIES FURNISHED:
Barbara Green, Esquire
Legal Services of Greater Miami 1383 SW 1st Street
Miami, Florida 33135
Ken Hart, Esquire Department of Labor and
Employment Security Suite 31 Montgomery Bldg.
2562 Executive Center Drive E. Tallahassee, Florida 32301
Dana Baird, Esquire Unemployment Appeals Commission Suite Ashley Building
1321 Executive Center Drive E. Tallahassee, Florida 32301
Liz Cloud, Chief
Bureau of Administrative Code 1802 Capitol Building
Tallahassee, Florida 32301
Carroll Webb, Executive Director Administrative Procedures Committee Room 120 Holland Building Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Oct. 28, 1980 | CASE CLOSED. Final Order sent out. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 28, 1980 | DOAH Final Order | Rule challenge was unsuccessful, but form was deficient in requiring parties to provide their own interpreters--invalidly promulgated. |
MIGUEL COTILLA AND DAVID PRIETO vs. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, 80-001548RX (1980)
EARNEST ANTHONY VARVOUTIS vs BOARD OF ACCOUNTANCY, 80-001548RX (1980)
MARY LEE SMITH AND JAMES BUSH vs. DEPARTMENT OF COMMERCE, 80-001548RX (1980)
SUWANEE COUNTY SCHOOL BOARD vs JAMES SEAY, 80-001548RX (1980)
