STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Petitioner,

vs.

ADOPTIONS BY CHOICE, INC.,

Respondent.

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) Case No. 04-3596

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RECOMMENDED ORDER OF DISMISSAL

This cause came on to be heard on November 2, 2004, by telephone conference call on Petitioner's Motion to Dismiss and Respondent's Motion to Dismiss Administrative Complaint before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings. The parties filed responses, through counsel, to the motions. Respondent filed an Affidavit in support of his response to Petitioner's motion, as well as two Florida Supreme Court Administrative Orders. The arguments of counsel made on the conference call and the arguments presented in the motions have been fully considered. The following appearances were entered:

APPEARANCES

For Petitioner: Raymond Deckert, Esquire

Jennifer Lima-Smith, Esquire Department of Children and

Family Services

Regional Headquarters, Suite 902 9393 North Florida Avenue

Tampa, Florida 33612

For Respondent: Ron Smith, Esquire

8293 86th Avenue, North Largo, Florida 33777

STATEMENT OF THE ISSUES

Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Section 120.569 and Subsection 120.57(1), Florida Statutes (2004), if the written request for a formal hearing was not timely filed pursuant to Subsection 120.569(2)(c), Florida Statutes (2004), and Florida Administrative Code Rule

28-106.111(2).

Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Section 120.569 and Subsection 120.57(1), Florida Statutes (2004), if the Administrative Complaint issued by Petitioner, Department of Children and Family Services, fails to advise Respondent, Adoptions By Choice, Inc., whether mediation under Section 120.573, Florida Statutes (2004), is available as an alternative remedy as required by Section 120.573, Florida

Statutes (2004), and Florida Administrative Code Rule 28-106.111(1).

PRELIMINARY STATEMENT

On August 19, 2004, Petitioner issued an Administrative Complaint directed to Respondent, wherein it sought to revoke Respondent's license to operate an adoption agency. The Administrative Complaint was sent by certified mail, return receipt requested, and received by Respondent on August 23, 2004. At the end of the Administrative Complaint, under the legend, Hearing Rights and Procedures, it stated in pertinent

part:

In General: You have the right to request within twenty-one (21) days from receipt of this complaint, an administrative hearing pursuant to Section 120.57, Florida Statutes (2003); . . . [The hearing request was to be delivered to Petitioner's SunCoast Region Legal Office in Tampa, Florida].

Your hearing request must be in writing and should include your address and a telephone number where you may be reached during weekdays. You have twenty-one (21) days from the date you receive this complaint to request a hearing. The written request must be received by the department no later than the close of business of the 21st day (not counting the date of receipt) in order to be a timely request for a hearing. If a request is received after the 21st day, you will be deemed to have waived your right to a hearing per rule 28-106.111(4), Florida Administrative Code.

The Notice did not advise Respondent whether mediation under Section 120.573, Florida Statutes (2004), was available as an alternate remedy to an administrative hearing.

Petitioner retained counsel on August 25, 2004. Petitioner requested a formal hearing under the provisions of Subsection 120.57(1), Florida Statutes (2004), through counsel. The request was mailed by U.S. Postal Service Express Mail on September 15, 2004, and received by Petitioner on September 16, 2004. The 21st day (not counting the date of receipt), after receipt of the Administrative Complaint by Respondent, was September 13, 2004. Petitioner referred this matter to the Division of Administrative Hearings on October 1, 2004, for a formal hearing. Petitioner filed its Motion to Dismiss on October 12, 2004. On October 14, 2004, Respondent filed a response to the motion; Petitioner filed a Rebuttal to Respondent's Response to Motion to Dismiss on October 19, 2004, and the motion hearing followed. Following the hearing, at the Administrative Law Judge's request, Respondent's counsel filed an Affidavit in support of his response to Petitioner's Motion to Dismiss. It is, therefore,

FOUND AND DETERMINED that counsel for Respondent was retained on August 25, 2004, two days after Respondent was served with the Administrative Complaint. Respondent's attorney, who is a solo practitioner, was involved in a weeklong

jury trial in federal court in the Middle District of Florida and could not prepare a response to the Administrative Complaint during that period. However, both Petitioner's and Respondent's offices were open and operating during the business week of August 30, 2004, through September 3, 2004. Hurricane Frances came through the Tampa Bay area on Sunday, September 5, 2004.

As a result of that storm, counsel for Respondent suffered office closure and other damages, including the loss of electricity to his office resulting in the complete inability to utilize his computer resources to research or prepare a response to the Administrative Complaint for a period of approximately four days. Further, as a result of the same storm, Respondent's counsel's residence was severely damaged, including the destruction of the home's screen enclosure, the loss of

40 percent of the roof, and the loss of electrical power.

Subsequent to the storm, Respondent's counsel could not work for a period of approximately one week at his office due to the damage and loss of electrical power, as well as his need to safeguard his residence and his family. This was the period from Monday, September 6, 2004 (Labor Day, a legal holiday), through Friday, September 10, 2004. The detailed ten-page response filed by Respondent's counsel took over one week to prepare, taking into consideration research, file review, multiple meetings, and consultations with his client. The

response was mailed on September 15, 2004, and received by Petitioner on September 16, 2004.

Petitioner's SunCoast Region Headquarters, 9393 North Florida Avenue, Tampa, Florida, was open for the conduct of state business on all business days with respect to Hurricanes Charley, Frances, Ivan, and Jeanne except for Friday, August 13, 2004, due to the impending Hurricane Charley, and Monday, September 6, 2004, a legal holiday. Mail deliveries were received on all days the state offices were open for state business. Petitioner's offices were open on Tuesday,

September 7, 2004, through Friday, September 10, 2004; and

Monday, September 13, 2004, through Friday, September 17, 2004.

CONCLUSIONS OF LAW

1. Subsection 120.569(2)(c), Florida Statutes (2004), provides, in relevant part:

   A petition shall be dismissed if . . . it has been untimely filed. . . .

   
   

2. Florida Administrative Code Rule 28-106.111(2) and (4) provides in relevant part:

   (2) Unless otherwise provided by law, persons seeking a hearing on an agency decision which does or may determine their substantial interests shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision.

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   (4) Any person who receives written notice of an agency decision and who fails to file a written request for a hearing within 21 days waives the right to request a hearing on such matters. . . .

   
   

3. Respondent relies on Machules v. Department of Administration, 523 So. 2d 1132 (Fla. 1988), in which the Florida Supreme Court held that the doctrine of equitable tolling could be applied to extend a similar administrative time limit and that a late request for an administrative hearing is not a jurisdictional defect. However, the requirements of equitable tolling were not met in this case. In Machules, the Court stated, "Generally, the tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum." Id. at 1134. In this case, none of these three circumstances exist. Petitioner's notice was proper, but for its failure to advise Respondent whether mediation was available as an alternate remedy to an administrative hearing. However, the failure to include said notice did not affect the 21-day filing requirement because Section 120.573, Florida Statutes (2004), allows for the election of mediation within ten days after the time period for an election of an administrative hearing. Respondent and its counsel knew the proper forum in

   which to file the request for hearing. The delay in preparation time caused by the hurricane and the loss of electrical power was not "extraordinary" in view of the time available to counsel to prepare the request between the end of his trial commitment and the arrival of the hurricane and the period between the restoration of electrical power to his office on September 9

   or 10, 2004, and September 16, 2004, the date of delivery of the request to Petitioner. Especially when Petitioner's offices were, in fact, open to conduct state business on each business day during that period.

4. Respondent has demonstrated excusable neglect for the delay; however, Cann v. Department of Children and Family Services, 813 So. 2d 237 (Fla. 2d DCA 2002), is the controlling case in this area, and the court held in Cann that

   [S]ection 120.569(2)(c), Florida Statutes (2000), provides: "A petition shall be dismissed if . . . it has been untimely filed." This language, requiring the dismissal of an untimely request, was added by chapter 98-200, section 4, at 1831, Laws of Florida. We conclude that this amendment overruled [two prior district court cases] to the extent those cases held that an untimely administrative appeal could proceed if the delay was the result of excusable neglect. (Citations omitted.)

   
   

   Id. at 239.

   
   

5. Therefore, although the result will be legally correct but unjust, the Answer and Petition is time-barred for failure

   to file the Petition within 21 days of the date of service of the Administrative Complaint on Respondent.

6. Respondent's Motion to Dismiss the Administrative Complaint based on the delay in notifying Respondent to the availability of mediation as an alternate remedy under Section 120.573, Florida Statutes (2004), is moot in view of the above

ruling.

RECOMMENDATION

Based on the foregoing facts and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the

Answer and Petition of Respondent, Adoption by Choice, Inc., in DOAH Case No. 04-3596 and DCF Case No. 04-0001, for failure to timely file its Answer and Petition; and Petitioner may proceed to final agency action.

DONE AND ENTERED this 3rd day of December, 2004, in Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2004.

COPIES FURNISHED:

Raymond R. Deckert, Esquire Department of Children and

Family Services

Regional Headquarters, Suite 902 9393 North Florida Avenue

Tampa, Florida 33612

Ron Smith, Esquire 8293 86th Avenue North Largo, Florida 33777

Paul F. Flounlacker, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 04-003596

Orders for Case No: 04-003596