Bruce Culpepper, Administrative Law Judge of the Division of Administrative Hearings, pursuant to sections 120.569 and 120.57(1), Florida Statutes (2016),1/ on May 6, 2016, by video teleconference sites in Tallahassee and Tampa, Florida.
For Petitioner: Trevor S. Suter, Esquire
Whether Respondent timely filed a written request for an administrative hearing, and, if not, whether the doctrine of equitable tolling provides a defense to the applicable deadline for filing a petition for hearing.
The Department of Financial Services, Division of Workers’ Compensation (the “Department”), served a Stop-Work Order and Order of Penalty Assessment on Respondent, Tampa Bay Roofing, Inc. (“Respondent”), on September 10, 2015. The Department subsequently served an Amended Order of Penalty Assessment on Respondent on October 15, 2016, and a 2nd Amended Order of Penalty Assessment on Respondent on December 14, 2015.
On January 12, 2016, the Department received a written petition from Respondent disputing the $35,311.42 penalty amount assessed in the 2nd Amended Order of Penalty Assessment.
The Department referred this matter to the Division of Administrative Hearings (“DOAH”) on March 4, 2016, and requested assignment of an Administrative Law Judge (“ALJ”) to conduct a formal evidentiary hearing. With its referral, the Department filed a Motion to Dismiss Petition asserting a threshold issue regarding whether Respondent filed its petition for hearing with the Department within 21 days after Respondent received notice of the Department’s 2nd Amended Order of Penalty Assessment.
The final hearing was held on May 6, 2016. The Department presented the testimony of Dale Russell, Compliance Investigator with the Department. Department Exhibits 1 through 5 and 7 were admitted into evidence. Jose Fuentes testified on behalf of Respondent. Respondent offered no exhibits.
A one-volume Transcript of the final hearing was filed with DOAH on May 23, 2016. At the close of the hearing, the parties were advised of the ten-day deadline following DOAH’s receipt of the hearing transcript to file post-hearing submittals. The Department filed its Proposed Recommended Order, which was duly considered in preparing this Recommended Order.
The Department is the state agency charged with enforcing workers’ compensation coverage requirements in Florida, including the requirement that employers secure workers’ compensation coverage for their employees. See
§ 440.107(3), Fla. Stat.
Following an investigation to determine whether Respondent had secured sufficient workers’ compensation insurance coverage, the Department served a Stop-Work Order and Order of Penalty Assessment on Respondent on September 10, 2015. The Department served an Amended Order of Penalty Assessment on Respondent on October 15, 2015. The Department served a 2nd
Amended Order of Penalty Assessment (the “Penalty Assessment”) on Respondent on December 14, 2015.
With the Penalty Assessment, the Department also provided Respondent a document entitled “Notice of Rights.” The Notice of Rights advised, in pertinent part:
You have a right to administrative review of this action by the Department under sections
120.569 and 120.57, Florida Statutes.
To obtain review, you must file a written petition requesting review.
* * *
You must file the petition for hearing so that it is received by the Department within twenty- one (21) days of your receipt of this agency action. The petition must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building,
200 East Gaines Street, Tallahassee, FL 32399-0390.
FAILURE TO FILE A PETITION WITHIN THE TWENTY- ONE (21) DAYS CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THE AGENCY ACTION.
Dale Russell, Compliance Investigator with the Department, personally served the Penalty Assessment along with the Notice of Rights on Respondent. As established by the Certificate of Service on the Penalty Assessment, as well as
Mr. Russell’s testimony, Mr. Russell hand-delivered the documents to Respondent on December 14, 2015. Mr. Russell personally served the documents on Jose Fuentes, Respondent’s owner and general
manager. Mr. Russell also reviewed with Mr. Fuentes the Notice of Rights. Mr. Russell discussed the import of the 21-day deadline to request a hearing to dispute the Penalty Assessment.
Twenty-one days after December 14, 2015, is January 4, 2016.
Respondent submitted to the Department a letter requesting review of the Penalty Assessment. Respondent’s letter is dated January 11, 2016.
The Department received Respondent’s letter on January 12, 2016.
At the final hearing, Mr. Fuentes testified regarding his handling of the Penalty Assessment and request for a hearing on behalf of Respondent. Mr. Fuentes acknowledged that he personally received the Penalty Assessment from Mr. Russell on December 14, 2015. Mr. Fuentes explained that his delay in submitting his letter to the Department was based on difficulties his family was experiencing at that time. His wife was facing surgery. Consequently, he was focused on her medical concerns, as well as caring for their three children. Unfortunately, he lost track of the time in which to file the petition.
Based on the evidence set forth at the final hearing, the Department established that Respondent did not file its petition requesting administrative review with the Department within 21 days of Respondent’s receipt of the Penalty Assessment.
Therefore, the legal issue to determine is whether Respondent’s petition should be dismissed as untimely filed.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to and subject matter of this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.
Unless otherwise provided by law, persons seeking a hearing regarding an agency decision shall file a petition for hearing with the agency within 21 days of receipt of the agency’s written notice. See Fla. Admin. Code R. 28-106.111(2). Any
person who fails to file a written request for a hearing within
21 days waives the right to request a hearing on such matters.
See Fla. Admin. Code R. 28-106.111(4). A request for hearing
that has been untimely filed shall be dismissed. See
§ 120.569(2)(c), Fla. Stat.
As detailed above, to meet with the 21-day filing requirement, Respondent’s petition for hearing was to be filed with the Department no later than January 4, 2016. The facts establish that Respondent mailed his petition on January 11, 2016, which is 28 days after the Department hand-delivered the Penalty Assessment to him.
Further, Florida Administrative Code Rule 28-106.104(1) provides that “filing shall mean received by the office of the agency clerk during normal business hours or by the presiding
officer during the course of a hearing.” The Department did not receive Respondent’s petition until January 12, 2016. Under rule 28-106.104, Respondent’s petition was deemed “filed” with the Department on that date, which is 29 days after Respondent received the Penalty Assessment.
Respondent failed to timely request a hearing to dispute the Penalty Assessment. Therefore, pursuant to section 120.569(2)(c), Respondent’s petition for hearing must be dismissed. See e.g., Cann v. Dep’t of Child. and Fam. Servs., 813 So. 2d 237 (Fla. 2d DCA 2002)(request for administrative hearing untimely filed where request filed with Department one day late); and Whiting v. Fla. Dep’t of Law Enf., 849 So. 2d 1149 (Fla. 5th DCA 2003)(dismissal of employee’s administrative appeal from notice of final agency action upheld where appeal was filed one day late).
Notwithstanding the above, rule 28-106.111(4) states that equitable tolling is a defense to a person’s failure to request an administrative hearing within 21 days. “Equitable tolling requires that the party be misled or lulled into inaction; that he was prevented from asserting his rights in some extraordinary way; or that he has timely asserted his rights in the wrong forum.” Whiting, 849 So. 2d at 1151 (citing Machules v. Dep’t of Admin., 523 So. 2d 1132 (Fla. 1988).
The undersigned concludes that Respondent’s testimony is insufficient to support a claim of equitable tolling of the 21-day filing deadline. The Department’s Notice was proper, and Respondent knew the proper forum. Respondent’s explanation as to why it failed to timely file a petition for hearing did not establish that it was misled or lulled into inaction, was prevented from asserting its rights in some extraordinary way, or that it timely asserted its rights in the wrong forum. See e.g.,
Jancyn Mfg. Corp. v. State, Dep’t. of Health, 742 So. 2d 473, 476 (Fla. 1st DCA 1999)(in which the court refused to apply the equitable tolling doctrine where the failure “was the result of appellant's own inattention, and not the result of a mistake or agency misrepresentation”).
Accordingly, because section 120.569(2)(c) compels the dismissal of untimely petitions, and because equitable tolling provides no exception in this case, Respondent’s request for an administrative hearing must be dismissed.
