STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF NURSING,

Petitioner,

vs.

DAPHNEY D. WILLIAMS, C.N.A.,

Respondent.

/

Case No. 18-2826PL

RECOMMENDED ORDER

On July 23, 2018, a video teleconference hearing was held at sites in Lauderdale Lakes and Tallahassee, Florida, before Administrative Law Judge F. Scott Boyd of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Philip A. Crawford, Esquire

Ann L. Prescott, Esquire Department of Health Prosecution Services Unit

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399

For Respondent: Kenneth S. Mair, Esquire

Kenneth S. Mair, P.A.

3500 North State Road 7, Suite 479 Fort Lauderdale, Florida 33319

STATEMENT OF THE ISSUE

The issue is whether Respondent's request for a substantial interests hearing under section 120.57(1), Florida Statutes (2017),1/ should be dismissed as untimely.

PRELIMINARY STATEMENT

The Department of Health (Petitioner or the Department) filed an Administrative Complaint dated December 20, 2017, with respect to the certified nursing assistant (CNA) license of Ms. Daphney D. Williams (Respondent or Ms. Williams), alleging violations of statutes and administrative rules governing CNA

practice. Disputing the allegations, Respondent filed a request for an administrative hearing. Petitioner asserted the request for hearing was untimely, a claim disputed by Respondent. On May 31, 2018, Petitioner forwarded the case to the Division of Administrative Hearings (DOAH) for assignment of an administrative law judge. Following a status conference, an Order Granting Motion to Bifurcate Proceedings was issued in response to Petitioner's request to initially and separately consider the issue of the timeliness of Respondent's request for hearing.

At the hearing on timeliness of the request, held on July 23, 2018, Petitioner offered one exhibit, Exhibit P-1, consisting of records of the Department along with an attached

affidavit of the custodian of records offered for authentication,

which was admitted over objection of Respondent. Petitioner also offered the testimony of Ms. Katie Carraway and Mr. Chadd Thomas, both employees at the Department. Respondent testified and offered a composite exhibit, Exhibit R-A, which was admitted with the exception of an authentication page ruled as irrelevant in response to Petitioner's objection. The agreed facts contained in the Joint Pre-hearing Stipulation filed by the parties were accepted at hearing and are reflected in the Findings of Fact below.

A one-volume Transcript of the proceeding was filed on August 13, 2018. Both parties timely submitted proposed recommended orders on August 23, 2018. A Revised Transcript was filed on August 27, 2018. Petitioner filed a Notice of Filing Corrected Proposed Recommended Order, which corrected references to pages in the Revised Transcript, on August 29, 2018. Both proposed recommended orders were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department is the agency of the state of Florida charged with regulating the practice of CNAs pursuant to section 20.43, chapter 456, and chapter 464, Florida Statutes.

2. Ms. Williams holds Department certificate number CNA20004. As a CNA, she is subject to regulation by the Department.

   
   

3. A copy of the Department's filed Administrative Complaint was served on Ms. Williams, via certified mail, on January 5, 2018.2/

4. Attached to the Administrative Complaint was a Notice of Rights which included the following language:

   A request or petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to

   Rule 28-106.111(2), Florida Administrative Code. If Respondent fails to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in this Administrative Complaint pursuant to Rule 28-106.111(4), Florida Administrative Code.

   
   

5. The copy of the Administrative Complaint, Notice of Rights, and Election of Rights form gave Ms. Williams written notice of intended agency action that affected her substantial interests.

6. As Ms. Williams credibly testified, she completed the Election of Rights form requesting a hearing at her attorney's office and signed that form on January 18, 2018.

7. Ms. Williams testified that her attorney's secretary put the request for hearing form in the mail to the Department, but admitted she did not actually see the secretary do so. There was no testimony at the hearing from a secretary or other person as to when or how the document was placed into the mail, or even as

   
   

   to the usual procedures for mailing similar documents. There was no evidence as to the date the request for hearing was actually mailed.

8. It was undisputed that Ms. Williams's counsel did not send an Election of Rights form to counsel for the Department via e-mail on January 18, 2018.

9. It was also undisputed that Ms. Williams's counsel did not send a document entitled "The Respondent, Daphne Williams Answer to Petitioner's Complaint" to counsel for the Department via e-mail on January 18, 2018, despite the certificate of service on the document purporting to show service by

   Ms. Williams's counsel on counsel for the Department via e-mail on January 18, 2018.

10. Ms. Carraway and Mr. Thomas testified convincingly from their personal knowledge as to their usual procedures in receiving and stamping the incoming mail at the Department.

    Mr. Thomas stated that he worked in the mail room and delivered mail to 12 different locations at the Department (three separate locations in each of four different buildings) on the same day that it arrived from the mail carriers. Ms. Carraway testified that she opened mail delivered to her location from the mail room and stamped it with the date and time on the same day she received it.

    
    

11. Neither witness gave any credible testimony regarding Ms. Williams's specific request for hearing. There was no indication that either witness remembered that particular piece of mail, or remembered the day upon which it arrived at the Department. However, it is a reasonable inference that Ms. Williams's request was date-stamped on the date it was received.

12. It is undisputed that the date stamp on Ms. Williams's request for hearing is January 29, 2018.

13. Ms. Williams's request for hearing was received by the Department on January 29, 2018.

    CONCLUSIONS OF LAW

    
    

14. DOAH has jurisdiction over the subject matter and the parties to this proceeding in accordance with sections 120.569 and 120.57(1), Florida Statutes (2018).

15. The Administrative Complaint alleges that Respondent violated provisions of the Florida Statutes and administrative rules that would subject her to the imposition of penalties. Respondent has standing to request a hearing on whether her request for hearing was timely, and if that is shown, on the allegations of the Administrative Complaint. Phillip v. Univ. of

    Fla., 680 So. 2d 508, 509 (Fla. 1st DCA 1996).

    
    

16. The requirement that a hearing must be requested within

    
    

    21 days of receipt of the notice of agency action is clear.

    
    

    Florida Administrative Code Rule 28-106.111 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.

    
    

    * * *

    
    

    (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. This provision does not eliminate the availability of equitable tolling as a defense.

    
    

17. Respondent maintains that the terms "file" or "filing" are ambiguous as to whether the filing of a request for hearing takes place when the request for hearing is mailed or alternatively when that request is received by the agency. Respondent correctly notes that any ambiguity should be interpreted in favor of Respondent. Liner v. Workers Temp.

    Staffing, Inc., 990 So. 2d 473, 477 (Fla. 2008)(in penal case, ambiguity in civil statute construed in favor of the party alleged to have violated it, even when statute is remedial).

18. However, there is no ambiguity. Florida Administrative Code Rule 28-106.104(1) provides:

    In construing these rules or any order of a presiding officer, 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.

    
    

19. Rule 28-106.104(1) clearly indicates that filing takes place when the document is received, not when it is sent. The law on this issue is settled. See Riverwood Nursing Ctr., LLC v. Ag.

    for Health Care Admin., 58 So. 3d 907, 911 (Fla. 1st DCA 2011)(written petition for hearing must be received by the agency clerk within 21 days).

20. In Respondent's Objection to Petitioner's Motion for Determination of Waiver and for Final Order After a Hearing Not Involving Disputed Issues of Material Fact, Respondent cited to the "mail box rule," which is that portion of Florida Administrative Code Rule 28-106.103 providing that five days should be added to the 21-day time limit when service has been made by regular U.S. mail.

21. Any suggestion that this rule might be applicable is rejected. Rule 28-106.103 itself specifically provides that these additional days shall not be added when the period of time begins pursuant to a type of notice described in rule 28-106.111, relating to the initial point of entry, as is the case here. See Watson v. Brevard Cnty. Clerk, 937 So. 2d 1264, 1266 (Fla. 5th

    DCA 2006). As Respondent received the Administrative Complaint on January 5, 2018, the 21-day deadline to file a request for hearing with the clerk was January 26, 2018.

    
    

22. There was no testimony at hearing as to when Respondent's specific request for hearing was received by the clerk. Ms. Carraway and Mr. Thomas admitted that they had no recollection of Respondent's specific request, and their testimony, while convincing, showed only that mail is "stamped in" on the day it is received. Although Ms. Carraway and Mr. Thomas do not remember stamping it, Respondent's request for hearing was clearly date-stamped as received on January 29, 2018.

23. Section 90.406, Florida Statutes, provides: "Evidence of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice." See Shands Teaching Hosp. & Clinics, Inc. v. Dunn, 977 So. 2d 594, 599 (Fla. 1st DCA 2007)(existence of a routine practice creates an inference that an agent or employee of the organization acted according to the practice).

24. While section 90.406 is not strictly applicable to administrative proceedings, the logic behind it applies equally here. Reasonably prudent persons in the conduct of their affairs would rely upon evidence that incoming mail was systematically and routinely stamped on the same day it was received to logically infer, in the absence of any evidence to the contrary, that a particular piece of mail was also stamped on the day it was

    
    

    received. Such evidence is admissible in an administrative proceeding. § 120.569(2)(g), Fla Stat. It is sufficient to support an inference that Respondent's request was received on the date that it was date-stamped. Heifetz v. Dep't of Bus. Reg., Div. of Alcoholic Beverages & Tobacco, 475 So. 2d 1277, 1283

    (Fla. 1st DCA 1985)(factual inferences may be drawn by the hearing officer as trier-of-fact). Respondent's request for hearing was received by the agency clerk on January 29, 2018. This was three days beyond the deadline.

25. Section 120.569(2)(c) provides that a request for hearing "shall be dismissed . . . if it has been untimely filed."

    (emphasis added). The statute goes on to expressly note that this does not eliminate the availability of equitable tolling as a defense. See Pro Tech Monitoring, Inc. v. Dep't of Corr.,

    72 So. 3d 277, 281 (Fla. 1st DCA 2011).

    
    

26. No evidence was introduced as to the circumstances surrounding the mailing of the request for hearing. In fact, there was not even testimony as to the date the request was mailed. Respondent only testified that she signed the Election of Rights on January 18, 2018.

27. Even had there been evidence that the request for hearing was mailed on that very same day, January 18, 2018, equitable tolling would not automatically excuse the "too ordinary occurrence of a party's attorney failing to meet a

    
    

    filing deadline." Envtl. Resource Assoc. v. Dep't of Gen.

    
    

    Servs., 624 So. 2d 330, 331 (Fla. 1st DCA 1993)(equitable tolling not applied to excuse late-filing of petition sent by certified mail one day prior to deadline). As the Florida Supreme Court described in Machules v. Department of Administration, 523 So. 2d

    1132, 1134 (Fla. 1988), "[g]enerally, 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." There was no evidence introduced at hearing that would suggest any of these possibilities.

28. The doctrine of equitable tolling does not apply to excuse the late filing of the Respondent's request for an administrative hearing.

29. The defect in Respondent's request for hearing--its untimeliness--cannot be cured, and, therefore, dismissal of the request for hearing with prejudice is appropriate. Section 120.569(2)(c) provides: "Dismissal of a petition shall, at least once, be without prejudice to petitioner's filing a timely amended petition curing the defect, unless it conclusively appears from the face of the petition that the defect cannot be cured."

30. Respondent's request for hearing must be dismissed because it was filed with Petitioner more than 21 days after

Respondent received the Administrative Complaint. Under rule 28- 106.111(4), Respondent waived her right to a hearing.

RECOMMENDATION

In view of the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Ms. Daphney D. Williams's request for a substantial interests hearing under section 120.57(1) should be dismissed as untimely.

DONE AND ENTERED this 6th day of September, 2018, in Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 2018.

ENDNOTES

1/ All citations to the Florida Statutes are to the 2017 compilation, except as otherwise indicated.

2/ Respondent testified that she received two copies of the Administrative Complaint and Election of Rights form, one set earlier than January 5, 2018. However, the parties stipulated to receipt on the later date, which is also more advantageous to

Respondent for purposes of computing a timely response, so that date is relied upon.

COPIES FURNISHED:

Philip A. Crawford, Esquire Ann L. Prescott, Esquire Department of Health Prosecution Services Unit

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed)

Kenneth S. Mair, Esquire Kenneth S. Mair, P.A.

3500 North State Road 7, Suite 479 Fort Lauderdale, Florida 33319 (eServed)

Louise Wilhite-St Laurent, Interim General Counsel Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed)

Joe Baker, Jr., Executive Director Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-3252 (eServed)

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: 18-002826PL

Orders for Case No: 18-002826PL