STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTHEASTERN COMMERCIAL )

FINISHING, INC., )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF FINANCIAL ) SERVICES, DIVISION OF WORKERS’ ) COMPENSATION, )

)

Respondent. )

Case No. 07-2764

)

RECOMMENDED ORDER OF DISMISSAL

On July 20, 2007, Respondent Department of Financial Services, Division of Workers’ Compensation (Respondent), filed a Motion to Dismiss. The motion alleges that this case should be dismissed because Petitioner Southeastern Commercial Finishing, Inc. (Petitioner) failed to file a timely hearing request pursuant to Section 120.56(2)(c), Florida Statutes (2006), and Florida Administrative Code Rule 28-106.1112(2).

Petitioner has not filed a response in opposition to the motion.

Petitioner admitted in the Petition for Hearing that it was untimely. It is undisputed that Petitioner received a hand- delivered copy of a Stop Work Order and the Amended Order of Penalty Assessment on March 3, 2007. Both of these documents advised Petitioner that a request for an administrative hearing must be filed with 21 days and that failure to do so constitutes a waiver of the right to a hearing.

Respondent did not receive the Petition for Hearing until May 2007. The Amended Petition for Hearing dated June 19, 2007, raises excusable neglect as a defense to Petitioner’s untimely filing of the hearing request. Excusable neglect is not a valid defense in this case. See Cann v. Department of Children and Family Services, 813 So. 2d 237, 239-240 (Fla. 2d DCA 2002).

Section 120.569(2)(c), Florida Statutes (2006), acknowledges that equitable tolling may be raised in defense of

an untimely filed hearing request. However, Petitioner has not alleged facts that entitle him to a defense based on equitable tolling. See Machules v. Dept. of Administration, 523 So.2d 1132, 1134 (Fla. 1988); J. and A. Framing v. Department of Financial Services, DOAH Case No. 0602648 (Feb. 2, 2007)(citations omitted).

For the reasons set forth above, it is RECOMMENDED:

That Respondent enter a final order finding that Petitioner waived his right to an administrative hearing by filing an untimely hearing request.

DONE AND ENTERED this 12th day of July, 2007, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 12th day of July,2007.

COPIES FURNISHED:

Thomas H. Duffy, Esquire Department of Financial Services

200 East Gaines Street, 6th Floor Tallahassee, Florida 32399

Wesley R. Douglas, Esquire

Law Office of Wesley R. Douglas, P.A.

318 East Duval Street Lake City, Florida 32055

Honorable Alex Sink Chief Financial Officer

Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307

Docket for Case No: 07-002764

Orders for Case No: 07-002764