The Issue The issue for determination is whether Petitioner's claim is barred by Section 760.11(7), Florida Statutes (1999), because Petitioner filed a request for hearing more than 35 days after the time prescribed in Section 760.11(3) for a determination of reasonable cause by the Florida Commission on Human Relations (the "Commission"). (All statutory references are to Florida Statutes (1999) unless otherwise stated).
Findings Of Fact Respondent employed Petitioner from May 25, 1995, until September 1, 1995. Petitioner filed a Charge of Discrimination with the Commission on October 3, 1995. The Charge of Discrimination alleges that Petitioner was forced to leave his position of employment because of Petitioner's sex, color, national origin, and age. The Charge of Discrimination contains no more specific factual allegation of an adverse employment action or other act of discrimination. Time Limits The Charge of Discrimination was timely filed pursuant to Section 760.11(1). The filing date of October 3, 1995, fell within 365 days of May 25, 1995, which is the first day on which the alleged discrimination could have occurred. Section 760.11(3) authorizes the Commission to issue a determination of reasonable cause within 180 days of October 3, 1995, the date Petitioner filed the Charge of Discrimination. Counting October 4, 1995, as the first day of the 180-day time limit, Section 760.11(3) authorized the Commission to determine reasonable cause no later than March 31, 1996. The Commission issued a Notice of Determination: No Cause on July 14, 1999. Section 760.11(7) required Petitioner to file a request for hearing within 35 days of March 31, 1996. Counting April 1, 1996, as the first day of the 35-day period, Section 760.11(7) required Petitioner to file a request for hearing no later than May 5, 1996. Petitioner did not timely file a request for hearing. Petitioner first requested a hearing in the Petition for Relief filed on August 13, 1999. Petitioner filed his request for hearing approximately 1,185 days late and 1,220 days after the expiration of the 180-day time limit prescribed in Section 760.11(3). Petitioner delayed the request for hearing because he did not have the form entitled Petition for Relief. Section 760.11(7) statutorily bars Petitioner's claim. Section 760.11(7) expressly provides, in relevant part: If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this proceeding as barred by Section 760.11(7). DONE AND ENTERED this 6th day of June, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 6th day of June, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Luis F. Hernandez 1116 Golden Gate Avenue Orlando, Florida 32808 Charles Williams, Jr., Esquire Scott A. Livingston, Esquire Williams and Davis, P.A. Suite 1220, Suntrust Center Post Office Box 1831 200 South Orange Avenue Olando, Florida 32802-1831
Findings Of Fact Respondent employed Petitioner until June 15, 1995. Petitioner filed a Charge of Discrimination with the Commission on July 10, 1995. The Charge of Discrimination alleges that Petitioner was forced to leave her position of employment because of Petitioner's religion. The Charge of Discrimination alleges, in relevant part, that Respondent terminated Petitioner's employment because she is Christian and "always trying to convert people." Time Limits The Charge of Discrimination was timely filed pursuant to Section 760.11(1). The filing date of July 10, 1995, fell within 365 days of June 15, 1995, which is the date of the alleged discrimination. Section 760.11(3) authorizes the Commission to issue a determination of reasonable cause within 180 days of July 10, 1995; the date Petitioner filed the Charge of Discrimination. Counting July 11, 1995, as the first day of the 180-day time limit, Section 760.11(3) authorized the Commission to determine reasonable cause no later than January 6, 1996. The Commission issued a Notice of Determination: No Cause on January 31, 2000. Section 760.11(7) required Petitioner to file a request for hearing within 35 days of January 6, 1996. Counting January 7, 1996, as the first day of the 35-day period, Section 760.11(7) required Petitioner to file a request for hearing no later than February 10, 1996. Petitioner did not timely file a request for hearing. Petitioner first requested a hearing in the Petition for Relief filed on February 18, 2000. Petitioner filed her request for hearing approximately 1,468 days late and 1,503 days after the expiration of the 180-day time limit prescribed in Section 760.11(3). Petitioner did not respond to the Order to Show Cause to explain why she filed the request for hearing late. Section 760.11(7) statutorily bars Petitioner's claim. Section 760.11(7) expressly provides, in relevant part: If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this proceeding as barred by Section 760.11(7). DONE AND ENTERED this 6th day of June, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 6th day of June, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Maria J. Green 1800 Biscayne Drive, Apartment 4 Winter Park, Florida 32789 Stephen H. Price, Esquire Cramer and Price, P.A. 1420 Edgewater Drive Olando, Florida 32804 Don Reynolds, Director American Home Companions, Inc. Post Office Box 547062 Orlando, Florida 32854
The Issue The ultimate issue for determination is whether Respondent discriminated against Petitioner on the basis of her age by failing to provide equal raises in October 1994 and equal termination benefits in August 1995, in violation of Section 760.10(1), Florida Statutes (1997). (All statutory references are to Florida Statutes (1997) unless otherwise stated).
Findings Of Fact Petitioner did not appear at the administrative hearing and did not submit any evidence. Respondent seeks attorney fees and costs incurred as a result of Petitioner's failure to comply with the Discovery Order. It is uncontroverted that Petitioner is a female born on November 17, 1929, and a member of a protected class. Respondent employed Petitioner up to her dismissal on August 1, 1995. Petitioner filed a Charge of Discrimination with the Commission on or about August 31, 1995. The Commission's date stamp on the Charge of Discrimination is legible only for the month and year of filing. August 31, 1995, is the deemed date. Petitioner's Charge of Discrimination contains two allegations of age discrimination. First, Petitioner alleges that Respondent discriminated against Petitioner on August 1, 1995, by terminating Petitioner's employment without the same severance pay that Respondent paid to one of Petitioner's co- workers. Second, Petitioner alleges that in October 1994 Respondent failed to give Petitioner the same raise as Respondent gave Petitioner's co-workers in the same position, i.e., a laboratory technician. Time Limits The Charge of Discrimination was timely filed in accordance with the requirements of Section 760.11(1). The filing date of August 31, 1995, fell within 365 days of the earliest alleged discrimination on October 1, 1994. Section 760.11(3) authorized the Commission to issue a determination of reasonable cause within 180 days of August 31, 1995, when the Charge of Discrimination was filed. Counting September 1, 1995, as the first day of the 180-day time limit, Section 760.11(3) authorized Commission to determine reasonable cause no later than February 27, 1996. Section 760.11(7) required Petitioner to file a request for hearing within 35 days of February 27, 1996. Counting February 28, 1996, as the first day of the 35-day period and assuming for the benefit of Petitioner that February 1996 had only 28 days, Section 760.11(7) required Petitioner to file a request for hearing no later than April 3, 1996. Petitioner did not timely file her request for administrative hearing. Petitioner first requested an administrative hearing in the Petition for Relief filed on September 10, 1997. Petitioner filed her request for hearing approximately 525 days late and 560 days after the expiration of the 180-day time limit prescribed in Section 760.11(3). Section 760.11(7) statutorily bars Petitioner's claim. Section 760.11(7) expressly provides, in relevant part: If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred. Fees and Costs The Commission referred the request for hearing in the Petition for Relief to DOAH on October 16, 1997. On November 3, 1997, Respondent filed its Answer and Affirmative Defenses and its Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted and Alternative Motion for More Definite Statement with Incorporated Memorandum of Law in Support Thereof (respectively, the "Motion to Dismiss" and "Motion for More Definite Statement"). On October 17, 1997, Respondent served Petitioner with copies of the Motion to Dismiss and Motion for More Definite Statement by United States Mail. Petitioner did not file a response to the Motion to Dismiss and Motion for More Definite Statement within 12 days of the date of service, or anytime thereafter. On November 18, 1997, an Order to Show Cause required Petitioner to file no later than December 15, 1997, a written response stating why the relief requested by Respondent should not be granted. A Notice of Hearing issued on the same date scheduled the administrative hearing for February 9, 1998. On December 8, 1997, Petitioner filed her written response to the Order to Show Cause but did not serve a copy on Respondent. On December 30, 1997, a Notice of Ex Parte Communication provided Respondent with a copy of Petitioner's written response and reminded each party to serve the opposing party with copies of any documents filed with DOAH. On January 15, 1998, Respondent filed a renewed Motion to Dismiss and Motion for More Definite Statement and requested a continuance of the administrative hearing on the ground that Respondent had not received a copy of Petitioner's response to the Order to Show Cause until the first week in January. Petitioner did not respond to either of the renewed motions or to the motion for continuance. On February 3, 1998, the ALJ continued the hearing to a date to be agreed upon by the parties during a telephone hearing scheduled for February 9, 1998. The telephone hearing was scheduled to hear oral argument on Respondent's pending motions and as a case management conference. At the outset of the telephone conference conducted on February 9, 1998, Petitioner stated that she did not wish to proceed without counsel. Petitioner represented that she had been attempting to obtain counsel, without success, and requested additional time in which to obtain counsel. Attorney Robert Hosch, Petitioner's nephew, participated in the motion hearing on February 9, 1998, for the limited purpose of representing that he would assist Petitioner in obtaining counsel. The ALJ granted Petitioner's request for additional time; reserved ruling on Respondent's pending motions for disposition after hearing oral argument during a telephone conference rescheduled for March 2, 1998; instructed Petitioner to have her attorney file a notice of appearance no later than February 19, 1998, and a response to Respondent's renewed Motion to Dismiss and Motion for More Definite Statement no later than March 2, 1998. Pursuant to the agreement of the parties during the telephone conference, the ALJ scheduled the administrative hearing for April 28, 1998. On February 23, 1998, an Order Continuing and Rescheduling Formal Hearing memorialized the foregoing matters. On March 2, 1998, the parties and Mr. Hosch participated in another telephone conference concerning Respondent's Motion to Dismiss and Motion for More Definite Statement. Mr. Hosch stated that he did not represent Petitioner but was assisting her in obtaining counsel. Petitioner requested additional time in which to obtain counsel. The ALJ required Petitioner to file a more definite statement and a notice of appearance from her attorney, if any, no later than March 12, 1998. The ALJ instructed the parties and Mr. Hosch that failure to file a more definite statement and any notice of appearance on or before March 12, 1998, would result in dismissal of the proceeding. On March 6, 1998, an Order Granting Motion for More Definite Statement memorialized the rulings and instructions entered during the March 2 telephone conference. On March 13, 1998, Petitioner filed a one-page letter purporting to be a more definite statement. On March 16, 1998, the undersigned entered a Recommended Order of Dismissal. On April 5, 1999, the Commission entered an Order Remanding Case to Administrative Law Judge for Further Proceedings on the Merits (the "Remand"). In relevant part, the Remand concluded that the Recommended Order of Dismissal denied Petitioner her right to represent herself and that it was an abuse of discretion to do so. The Remand stated, in relevant part: An examination of the DOAH file discloses that Petitioner attempted to file a more definite statement by letter dated 3/11/98, and received by DOAH 3/13/98. It is not known why the Judge does not refer to this letter in his Order. Perhaps it was ignored because it was received one day late. If so, this only strengthens the Commission's finding that the Petitioner was deprived of an essential due process requirement of Florida law, and the Judge abused his discretion. . . . it is necessary that there be a finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard of the order. Petitioner's argument . . . is probably strong enough by itself to remand the Recommended Order, at least on the issue of willful or deliberate default. Remand at fourth unnumbered page. On April 19, 1999, an Order Reopening File required the parties to file a status report no later than May 17, 1999. The Order expressly stated that failure to timely file a status report would result in the dismissal of the case. Neither party timely filed a status report. On May 20, 1999, Respondent filed Respondent's Status Report requesting rulings on the original and renewed Motion to Dismiss and Motion for More Definite Statement and requesting the administrative hearing to be scheduled after January 1, 2000. Petitioner never filed a status report and did not respond to Respondent's request for rulings on the pending motions. On June 9, 1999, the ALJ entered an Order Denying Dismissal. The Order denied Respondent's original and renewed Motion to Dismiss and Motion for More Definite Statement. On the same date, a Notice of Hearing scheduled the administrative Hearing for September 28 and 29, 1999, and a Prehearing Order required the parties to comply with several requirements incorporated herein by this reference. On June 25, 1999, Respondent filed Respondent's Motion for Continuance of the hearing scheduled for September 28-29, 1999, on the ground that counsel for Respondent was scheduled for a four-week trial in circuit court beginning September 21, 1999. Petitioner never responded to the Motion for Continuance. An order dated July 13, 1999, rescheduled the administrative hearing for January 20 and 21, 2000. On November 16, 1999, Respondent served Petitioner with Respondent's First Set of Interrogatories and Respondent's First Request for Production of Documents. Petitioner neither objected to nor answered either discovery request. On November 30, 1999, Respondent served Petitioner with a Notice of Taking Deposition Duces Tecum on December 16, 1999. On December 1, 1999, Petitioner filed a letter requesting a continuance of the administrative hearing and an extension of time to respond to discovery and to attend the deposition. In relevant part, the letter stated that Petitioner continues: . . . to have difficulty finding counsel who will assist me on a contingency fee basis . . . . At this time, it would be impossible for me to pay an attorney for his or her time in assisting me. For the same reason, I am requesting that each of the parties' discovery efforts be halted for a short period of time, in order that I might find counsel to help me with my responses and to attend my deposition. I do understand that the Respondent has a right to gather information about my claim and I plan to fully cooperate with those efforts. However, I need the assistance of an attorney in preparing my case and representing me at deposition and at the hearing. I am diligently trying to secure counsel and I only seek a reasonable continuance of the hearing and of pending discovery. . . . Please allow at least a few extra months before the hearing date and allow me at least an additional month to respond to the Respondent's discovery requests and to attend my deposition, which is currently scheduled for mid-December, 1999. . . . On December 10, 1999, Respondent filed Respondent's Objection to Petitioner's Request for Continuance and Rescheduling of Formal Hearing and Request for Stay of Discovery. On December 14, 1999, Respondent filed Respondent's Limited Withdrawal of Objection to Continuance and Amended Response to Request for Continuance. Respondent agreed to a continuance of the hearing for one month but objected to any extension of the time for responding to discovery requests or for taking the deposition. An order dated December 17, 1999, rescheduled the administrative hearing for February 28 and 29, 2000, and denied Petitioner's request to stay discovery while she sought counsel. Counsel for Respondent made reasonable efforts to conduct discovery at Petitioner's convenience. Subsequent to November 30, 1999, when Respondent's counsel scheduled Petitioner's deposition for December 16, 1999, Petitioner contacted Respondent's counsel to reschedule the December 16 deposition because Petitioner was recovering from a cold. Respondent's counsel rescheduled the deposition for January 4, 2000, and specifically obtained Petitioner's approval of the January 4th-deposition date. During the week of December 27, 1999, Petitioner contacted Respondent's counsel and represented that Petitioner was scheduled to have surgery to remove cancer from Petitioner's mouth on January 3, 2000. Petitioner stated that she would not be able to talk for several weeks and would not be able to appear at the January 4th deposition. Respondent's counsel agreed to reschedule the deposition if Petitioner would provide written confirmation of the scheduled surgery from Petitioner's physician. Petitioner never provided the written confirmation. Respondent's counsel re-noticed Petitioner's deposition for January 17, 2000. Respondent's counsel obtained Petitioner's specific approval of the new deposition date before scheduling the deposition. Petitioner failed to appear for her deposition on January 17, 2000, and Respondent's counsel rescheduled the deposition for February 2, 2000. Respondent's counsel made several requests by telephone to obtain Petitioner's answers to interrogatories and Petitioner's response to the request to produce. Both discovery requests had been served on November 16, 1999. Petitioner never objected to or answered Respondent's interrogatories and never objected to or produced the requested documents. On January 10, 2000, Respondent's counsel filed a Motion to Compel and Motion for Sanctions; and Respondent's Motion to Compel Appearance at Deposition and Responses to Discovery and Motion for Sanctions. The Discovery Order (dated January 28, 2000) reserved ruling on the request for sanctions until an evidentiary hearing could be conducted during the administrative hearing scheduled for February 28, 1999. However, the Discovery Order granted the request to compel Petitioner's appearance at the deposition scheduled for February 2, 2000; required Petitioner to bring to the deposition her answers to interrogatories and any documents in response to Respondent's request to produce; and required Petitioner to file her Prehearing Statement in accordance with the requirements of the Prehearing Order entered on June 9, 1999. On January 28, 1999, the administrative assistant for the ALJ telephoned Petitioner and read paragraphs 1-7 of the Discovery Order. On the same date, Respondent's counsel caused a copy of the Discovery Order to be hand-delivered to Petitioner's residence. Petitioner was not home, and the courier posted the Discovery Order on the front door of Petitioner's residence. On January 29, 2000, Respondent's counsel personally hand-delivered a copy of the Discovery Order to Petitioner at Petitioner's residence and informed Petitioner of the Order's contents. On February 2, 2000, Petitioner failed to appear for her deposition. Petitioner never filed her answers to interrogatories, never filed the documents sought in Respondent's request to produce, and never filed a Prehearing Statement. Respondent's counsel telephoned Petitioner to confirm that Petitioner would be attending a prehearing conference that had been previously scheduled in accordance with the requirements of the Prehearing Order entered on June 9, 1999. Petitioner stated that she would not attend the prehearing conference. When Respondent's counsel asked why Petitioner would not attend the prehearing conference, Petitioner hung up without explanation. When counsel for Respondent made additional attempts to coordinate a prehearing conference, Petitioner refused to speak to counsel for Respondent. Petitioner's refusal to appear at deposition, answer interrogatories, produce documents, and participate in a prehearing conference individually and collectively prejudiced Respondent's ability to prepare a defense. Petitioner's refusal denied Respondent relevant and material information including the identity of Petitioner's witnesses and exhibits as well as Petitioner's current employment and earnings. Petitioner's refusal deprived Respondent's counsel of the ability to fully perform her duties and responsibilities to her client. Respondent incurred attorney's fees and costs as a result of Petitioner's refusal to appear at deposition, answer interrogatories, and produce documents. Respondent incurred court reporter costs of $169.15 as a result of Petitioner's refusal to appear at any of her depositions. Respondent incurred attorney's fees of $499.75 as a result of Petitioner's refusal to appear at her first deposition. Respondent incurred attorney's fees of $1,870.50 as a result of Petitioner's failure to appear at her second deposition, answer interrogatories, and produce documents; and as a result of various motions filed to obtain Petitioner's attendance at deposition and Petitioner's responses to discovery requests. Petitioner willfully and deliberately disregarded the requirements of the Discovery Order. In relevant part, paragraph 6 in the Discovery Order stated: In the absence of competent and substantial evidence of good cause submitted by Petitioner, the failure of Petitioner to timely comply with the requirements of this Order shall be "equivalent to willfulness or deliberate disregard of the order [quoting from the Remand]." Upon Respondent's timely motion and showing of good cause for imposing sanctions, such failure by Petitioner shall subject Petitioner to the imposition of appropriate sanctions including the assessment of fees and costs, the preclusion of evidence, and the dismissal of this proceeding. Petitioner had adequate notice of the terms of the Discovery Order and the opportunity to show good cause for her failure to comply with the Discovery Order. On January 28, 2000, the administrative assistant for the ALJ read to Petitioner over the telephone the contents of paragraphs 1-7 of the Discovery Order. Petitioner received a copy of the Discovery Order on January 28 and 29, 2000. On January 29, 2000, Respondent's counsel explained the Discovery Order to Petitioner. Petitioner chose not to comply with the Discovery Order. Petitioner neither appeared at the administrative hearing to present evidence to prove the merits of her case nor appeared to present evidence to show why the sanctions requested by Respondent should not be granted. Monetary sanctions are appropriate in this case and commensurate with the offense. Dismissal and the preclusion of evidence are neither appropriate nor adequate sanctions because Petitioner did not appear at the administrative hearing and did not present any evidence. Respondent's counsel was required by law and the rules of ethics to make every reasonable effort to prepare an adequate defense of her client for presentation at the administrative hearing. Dismissal is not appropriate for other reasons. The Commission reversed a previous dismissal in this case and remanded the case in an effort to ensure Petitioner's right to represent herself. After the remand, Petitioner sought additional time to obtain counsel. Relevant orders allowed Petitioner additional time to obtain counsel; afforded Petitioner the right to represent herself during discovery, in accordance with the purpose of the Remand; and attempted to balance the competing interests of the parties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this proceeding as untimely filed; finding that Respondent did not discriminate against Petitioner; denying Petitioner's Charge of Discrimination and Petition for Relief; and imposing monetary sanctions against Petitioner in the aggregate amount of $2,539.40. DONE AND ENTERED this 6th day of April, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 6th day of April, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Janet M. Courtney, Esquire Lowndes, Drosdick, Doster, Kantor and Reed, P.A. 215 North Eola Drive Post Office Box 2809 Orlando, Florida 32802 Margaret H. Wilson 5532C Cinderlane Parkway Orlando, Florida 32808
The Issue The issue for determination is whether the original and amended petitions for hearing were filed late and should be dismissed pursuant to Section 120.569(2)(c), Florida Statutes (1997), and Florida Administrative Code Rule 62-110.106(3)(b). (All statutory references are to Florida Statutes (1997) unless otherwise stated. All references to rules are to those promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact On May 10, 1999, Sea Ray filed an application for an air construction permit with the Department. The application seeks a permit to construct a new fiberglass boat manufacturing facility in Merritt Island, Brevard County, Florida. On October 7, 1999, the Department issued an Intent to Issue Air Construction Permit (the "Notice of Intent"). On the same date, the Department mailed copies of the Notice of Intent, a Public Notice of Intent to Issue Air Construction Permit (the "Public Notice"), and a draft permit to interested persons including Sea Ray. On October 11, 1999, Petitioner telephoned the Department's Bureau of Air Regulation and requested a copy of correspondence between Sea Ray and the Department. Petitioner also requested that the Department place Petitioner on the list of interested persons. On October 11, 1999, the Department mailed Petitioner, by certified mail return receipt requested, copies of the Notice of Intent, the Public Notice, and the draft permit. Petitioner received the documents from the Department on October 14, 1999, and executed the return receipt on the same date. Both the Notice of Intent and the Public Notice included a notice of rights to substantially affected parties. In relevant part, the notice of rights stated: A person whose substantial interests are affected by the proposed permitting . . . may petition for an administrative proceeding (hearing) under Sections 120.569 and 120.57 of the Florida Statutes. The petition must contain the information set forth below and must be filed (received) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station #35, Tallahassee, Florida, 32399-3000. . . . Petitions filed by any persons other than those entitled to written notice under Section 120.60(3) . . . must be filed within fourteen days of publication of the public notice or within fourteen days of receipt of this notice of intent, whichever occurs first. . . . The failure of any person to file a petition within the appropriate time period shall constitute a waiver of that person's right to request an administrative determination (hearing) under Sections 120.569 and 120.57, or to intervene in this proceeding and participate as a party to it . . . . (emphasis supplied) Petitioner incorrectly concluded that the 14-day filing requirement did not begin to run when he received the Notice of Intent on October 14, 1999, but began to run on a future date when the Department published the Public Notice in the newspaper. In reaching that conclusion, Petitioner did not rely on any representations by any agent or employee of the Department or Sea Ray. Neither Respondent made any representations to Petitioner. On October 31, 1999, the Department published its Public Notice in The Florida Today. No substantive differences exist between the Public Notice published on October 31, 1999, and the Notice of Intent received by Petitioner on October 14, 1999. Petitioner had 14 days from October 14, 1999, or until October 28, 1999, to file his original petition for hearing. Petitioner filed his original petition on November 15, 1999. The original petition was filed 18 days late. On December 15, 1999, the Department dismissed the original petition on the grounds that the petition failed to provide the information required in Section 120.569(2)(c) and the rules incorporated therein. The dismissal was without prejudice as to the grounds for dismissal as required by Section 120.569(2)(c). The dismissal gave Petitioner 15 days from December 21, 1999, the date in the certificate of service, to file an amended petition curing the informational defects in the original petition. The dismissal gave Petitioner until January 5, 2000, to file an amended petition for hearing. Petitioner filed the amended petition one day late on January 6, 2000. Even if the original petition were deemed timely filed on November 15, 1999, the 14th day after publication of the Public Notice on October 31, 1999, the amended petition was not timely filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing the original and amended petitions as untimely filed. DONE AND ENTERED this 4th day of April, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 4th day of April, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Clarence Rowe 418 Pennsylvania Avenue Rockledge, Florida 32955 Gary Hunter, Jr., Esquire Angela R. Morrison, Esquire Hopping, Green, Sams and Smith, P.A. Post Office Box 6526 123 South Calhoun Street (32301) Tallahassee, Florida 32314
The Issue The sole threshold issue in this bifurcated proceeding is whether Petitioner has met her burden of proving grounds for equitable tolling as a defense to the admitted untimely filing of Petitioner's request for an administrative hearing. Consideration of the merits of Petitioner's challenge to the initial agency action was deferred, pending the threshold determination of whether the challenge can be heard.
Findings Of Fact Petitioner's husband was a State of Florida employee. He passed away in 1999. As the surviving spouse of a former State of Florida employee, Petitioner is entitled to, and has obtained coverage under, the state's group health insurance since 1999. Since sometime in 2002, Petitioner has also had Medicare health care coverage. However, Petitioner continued to pay the individual monthly premium rate for state group health insurance through May 2010, instead of the lower monthly rate applicable to someone who also has Medicare coverage. In May 2010, Petitioner submitted a written request to change her state group health insurance coverage level to accurately reflect the lower monthly Medicare rate and to refund the difference in premiums between the regular premium rate she had been paying and the lower Medicare rate from May 2002 to May 2010. Petitioner's May 2010 written request for changed coverage and reimbursement of overpaid premiums was not offered into evidence. By certified letter dated June 2, 2010, the Department responded to Petitioner's May 2010 written request. The Department advised that it was granting Petitioner's request to change her coverage level to reflect that she has Medicare coverage and that Petitioner's request for a refund was granted, in part, and denied, in part. The letter advised Petitioner of her right to an administrative hearing to contest the partial denial and enclosed an informational page specifying how and when to request such a hearing. In addition, enclosed with the letter were copies of Florida Administrative Code Rules 28-106.201 and 28-106.301, which codify the manner for initiating proceedings when there are disputed issues of material fact and when there are no disputed issues of material fact, respectively. The Department's certified letter was delivered to Petitioner's home on June 5, 2010. Petitioner was at home and personally signed the certified receipt for the Department's letter on June 5, 2010. Petitioner testified that she does not remember answering the door when the Department's certified letter was delivered to her home, nor does she remember signing the certified receipt, even though she acknowledged that she did so on June 5, 2010. Petitioner and her daughter, Ms. Viegas, testified that Petitioner has had mental health issues since 2001, when Petitioner became depressed not too long after her husband died in 1999. Petitioner testified that she has been seeing a psychiatrist since 2008 and has been taking medication prescribed by the psychiatrist for depression. No evidence was presented to establish how frequently or infrequently Petitioner was seeing a psychiatrist, nor was any evidence presented with respect to the type or dosage of medication Petitioner has taken. Neither the psychiatrist whom Petitioner said she had been seeing, nor any other expert testified with respect to Petitioner's medical or psychological condition, and no medical records were offered into evidence. Throughout the years of Petitioner's chronic depression, Petitioner has lived in her own home, at times alone or with a gentleman who lives there now and is now 81 years old. In addition, in June 2009, Ms. Viegas moved in with Petitioner and has lived there continuously since that time. Ms. Viegas is 39 years old and is unemployed. Since Ms. Viegas does not work, she is present at the home 90 percent of the time. Ms. Viegas testified that the reason she moved in with Petitioner was because Petitioner needed her help with business and other needs and, also, because Ms. Viegas broke up with her boyfriend with whom she had been living. Petitioner's other daughter, Cindy, also helps out. Cindy is a regular visitor and helps with household tasks, such as doing laundry, paying bills, and calling banks on Petitioner's behalf. According to Ms. Viegas, Petitioner's chronic depression got worse in late January or early February 2010 and remained bad until sometime in July 2010, when Petitioner's medication was changed. As described by Petitioner and Ms. Viegas, in Petitioner's worsened state for this six- or seven-month period in 2010, Petitioner slept most of the day in addition to at night. Petitioner did not clean the house or cook her own meals, and she did not bathe until Ms. Viegas pushed her to bathe. Because Petitioner was not cooking her own meals, she either ate peanut butter sandwiches or went out to eat at a restaurant. Petitioner testified that during this period when her depression worsened, she frequently went out to eat. Petitioner also acknowledged that she has had a valid driver's license and a car and that she would drive herself around, sometimes alone with no passengers. Despite the fact that Ms. Viegas moved in with Petitioner to help with her business and other needs, Ms. Viegas testified that her mother was able to keep up with her own business affairs pretty well until she got worse in January or February 2010, at which point bills frequently would go missing, and Ms. Viegas would realize that when second notices were received. Even before Petitioner got worse in early 2010, important mail, such as utility bills, would occasionally go missing. Ms. Viegas explained that she was reluctant to impose tighter controls to address this chronic issue, because she did not want to give her mother the impression that she (Ms. Viegas) did not have faith in her mother's ability to handle her own business. In addition, Ms. Viegas was unwilling to restrict her mother's freedom to walk outside to the mailbox to collect the mail or to get the mail while she was out walking their poodle. Instead, Ms. Viegas just dealt with the repercussions of the occasional lost mail. Ms. Viegas acknowledged that the problem of missing important mail, such as bills, became a more frequent occurrence when Petitioner's condition got worse in January or February 2010. Still, Ms. Viegas and Petitioner did nothing different with regard to the mail routine. No evidence was presented that Petitioner's depression ever became so severe that Ms. Viegas and/or Petitioner contemplated hospitalization or some form of more intensive treatments beyond periodic office visits with a psychiatrist. Petitioner has not been adjudicated incompetent of handling her own affairs, and no guardian has been appointed to manage Petitioner's affairs, nor was there evidence that such a step was ever contemplated. The evidence suggested to the contrary-- that Petitioner led an independent lifestyle and that Ms. Viegas was unwilling to, and apparently believed it was unnecessary to, restrict Petitioner's freedoms. Petitioner testified that in July 2010, her psychiatrist changed her medication, and after that, Petitioner felt better and began cleaning house, cooking, and doing other things she had not been doing. Petitioner found the letter from Respondent, showed the letter to Ms. Viegas, and asked Ms. Viegas to help. Ms. Viegas prepared a letter requesting an administrative hearing to dispute the partial denial of Petitioner's overpayment refund request. Ms. Viegas testified that she knew enough to prepare the letter without Petitioner's help, because Ms. Viegas knew all about Petitioner's dispute with the Department. Ms. Viegas had no problems understanding from the Department's notice how to request an administrative hearing for Petitioner. Ms. Viegas reviewed her draft with Petitioner to make sure there was nothing Petitioner wanted to change or add. The request for administrative hearing prepared by Ms. Viegas was signed by Petitioner on August 13, 2010, and sent to the Department where it was filed on August 16, 2010, nearly seven weeks after the 21-day deadline specified in the letter for filing a request for administrative hearing. Petitioner does not assert that she was misled or lulled into inaction by anything said or done by the Department's representatives. Petitioner does not assert that the Department's notice was unclear or confusing with regard to when, whether, or how Petitioner needed to request an administrative hearing to contest the Department's proposed action. Instead, her sole contention is that her "diminished mental capacity"1/ constitutes an extraordinary circumstance that prevented her from timely filing her request for hearing. The greater weight of the credible evidence does not support a finding that during the six- or seven-month period in 2010, when Petitioner's depression worsened, her condition rendered her incapable of functioning. The facts are inconsistent with the suggestion of a debilitated state. Petitioner drove a car, sometimes by herself; collected the mail from the mailbox herself; walked her pet poodle; and went out for meals when she tired of peanut butter sandwiches. Though she did not, herself, clean the house or cook meals, she had the help of two daughters, one of whom lived in the house and had no other job besides helping Petitioner. Moreover, in May 2010, Petitioner was capable of submitting an appropriate written request for change of insurance coverage level and for refund of overpaid premiums; and on June 5, 2010, Petitioner was able to respond to receive the delivery of the certified letter on June 5, 2010, and to sign the certified receipt with a clear, steady signature. Based on the credible evidence, the undersigned is unable to find that Petitioner's condition rose to an extraordinary circumstance, such that she was "prevented" from timely filing a petition. "Prevented" suggests an external factor beyond one's control, something far beyond one's own lack of reasonable prudence. As Petitioner and her live-in daughter observed Petitioner's worsening condition, reasonable prudence would have mandated an adjustment in protocol. It defies credibility to suggest that Petitioner's condition worsened to the point that it was impossible for Petitioner to care for herself and tend to her business and that Ms. Viegas would have stood by unwilling to assume full responsibility for Petitioner, including dealing with day-to-day business affairs. It must be emphasized that no medical testimony and no medical records were offered to support the testimony of Petitioner and her daughter regarding Petitioner's condition during the critical time of June and July 2010. Not only are Petitioner and her daughter lay witnesses who lack the expertise to offer medical opinions, but these two witnesses share an interest in characterizing Petitioner's condition, in this proceeding, as extreme and extraordinary. Instead, the impression given by the inconsistencies noted above is that Petitioner's condition was neither extreme nor extraordinary, but, rather, was chronic and manageable or at least accepted as the norm for the household. If Petitioner's condition were as extreme and debilitating as suggested for purposes of arguing equitable tolling, it would have been reckless for Petitioner to be allowed to continue driving her car. If, in fact, Petitioner was unable to function or comprehend day-to-day occurrences, there would be no excuse, in the exercise of reasonable prudence, for Ms. Viegas, who was not otherwise employed and was living in the home for the expressed purpose of helping Petitioner, to not have assumed full responsibility for her mother's functioning and dealing with day-to-day business affairs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that Respondent, Department of Management Services, enter a final order dismissing the petition for administrative hearing filed by Petitioner, Mary Ann Steadman. DONE AND ENTERED this 26th day of January, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 26th day of January, 2011.
The Issue The issues in this proceeding are whether the petition for administrative hearing is barred by Sections 373.427(2)(c) and 120.569(2)(c), Florida Statutes (2000), or must be accepted by the agency pursuant to the judicial doctrine of equitable tolling. (All chapter and section references are to Florida Statutes (2000).)
Findings Of Fact In January of 2000, Whitley applied to DEP for permits to repair hurricane damage to a marina facility (the "Whitley Marina"). The Whitley Marina is located within sovereign submerged lands in Brevard County on the west side of the Indian River in Cocoa, Florida. On July 24, 2000, DEP issued the Notice of Intent from DEP's Central District office in Orlando, Florida. The permit number is 05-126125-002. The Notice of Intent expressly provided that petitions for an administrative hearing must be filed within 14 days of receipt of the Notice of Intent. Petitioner received the Notice of Intent on July 26, 2000. Counting July 27, 2000, as the first day of the 14-day time limit prescribed in the Notice of Intent, the Notice of Intent required Petitioner to file the Petition no later than August 9, 2000. Petitioner filed the Petition on August 14, 2000, which was 19 days after Petitioner received the Notice of Intent and five days after the expiration of the 14-day time limit prescribed in the Notice of Intent. The 14-day time limit in the Notice of Intent was based on the 14-day time limit prescribed in Section 373.427(2)(c). Unlike the Notice of Intent, however, Section 373.427(2)(c) does not state that the 14-day time limit begins to run on the date that the Notice of Intent is received. Rather, Section 373.427(2)(c) provides, in relevant part: Any petition for an administrative hearing pursuant to ss. 120.569 and 120.57 must be filed within 14 days of the notice of consolidated intent to grant or deny. (emphasis supplied) The literal terms of Section 373.427(2)(c) required the Petition to be filed within 14 days of the Notice of Intent issued on July 24, 2000. Counting July 25, 2000, as the first day of the 14-day time limit prescribed in Section 73.427(2)(c), Section 373.427(2)(c) required the Petition to be filed no later than August 7, 2000. Petitioner filed the Petition August 14, 2000. August 14, 2000, was 21 days after the date of the Notice of Intent on July 24, 2000, and seven days after the expiration of the 14-day time limit. The Notice of Intent also incorporated by reference Florida Administrative Code Rules 28-106.111(2) and 62- 110.106(3)(a) and (4). (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) Apart from the issue discussed in paragraphs 5 and 6, the two rules referred to in the Notice of Intent do not prescribe time limits that modify, enlarge, or contravene the 14-day time limit prescribed in the Notice of Intent and Section 373.427. Rule 28-106.111(2), in relevant part, provides: Unless otherwise provided by law, persons seeking a hearing on an agency decision . . . shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision. (emphasis supplied) The 21-day time limit prescribed in Rule 28-106.111(2) is expressly limited to requests for an administrative hearing for which a time limit is not "otherwise provided by law." The time limit applicable to the Petition is otherwise provided by law in Section 373.427(2)(c) as 14 days rather than the 21 days prescribed in Rule 28-106.111(2). Rule 28-106.111(2) makes the 21-day time limit expressly inapplicable to the Petition filed in this proceeding, and there is no conflict between the 21-day time limit in the Rule and the 14-day statutory time limit in Section 373.427(2)(c). The Notice of Intent also referred to Rule 62- 110.106(3)(a). Rule 62-110.l06(3)(a) prescribes four different time limits for petitions to contest four different types of agency action. Subparagraphs 1-3 in the rule pertain, respectively, to permits governed by Chapter 403, hazardous waste facility permits, and notices of violations. None of the three types of agency action governed by subparagraphs 1-3 are proposed in this proceeding. Therefore, the time limits in subparagraphs 1-3 are inapplicable to the Petition. Subparagraph 4 of Rule 62-110.106(3)(a) prescribes a 21-day time limit for filing petitions to challenge agency action for permits "under statutes other than . . . section 373.427." (emphasis supplied) Like Rule 28-106.111(2), Rule 62-110.106(3) makes its 21-day time limit expressly inapplicable to the Petition because the Petition contests a proposed permit that is governed by Section 373.427. Notwithstanding the 14-day time limit prescribed in Section 373.427(2)(c) and the express inapplicability of the 21- day time limits in Rules 28-106.111(2) and 62-110.106(3)(a)4, the respective attorneys for Petitioner and DEP incorrectly concluded that Petitioner had 21 days to file the Petition. On July 31, 2000, attorneys in DEP's Office of General Counsel received by facsimile a letter from a staff attorney for Petitioner. In relevant part, the letter stated: Page 6 of the . . . [Notice of Intent] indicates that "in accordance with rules 28- 106.111(2) and 62-10.106(3)(a)(4), petitions for an administrative hearing must be filed within 14 days of receipt of this written notice." I have reviewed each of the rules cited, and each provides a period of 21 days within which to file a petition requesting an administrative hearing. Please confirm that pursuant to Fla. Admin. Code R.28-106(2) and 62-110.106(3)(a)(4), this organization has 21 days from receipt of the Department's notice of its intended action within which to file a petition requesting an administrative hearing. . . . (emphasis not supplied) The first paragraph in the letter dated July 31, 2000, was correct. It correctly quoted the Notice of Intent, and the Notice of Intent correctly stated that the applicable time limit for filing the Petition was 14 days. The Notice of Intent also correctly stated that the 14-day time limit was in accordance with Rules 28-106.111(2) and 62-110.106(3)(a)4 because the 21- day time limits prescribed in the two rules do not apply to permits for which time limits are otherwise provided by law in Section 373.427(2)(c). The second paragraph in the letter from Petitioner was a mistake of law. The second paragraph incorrectly concluded as a matter of law that Rules 28-106.111(2) and 62-110.106(3)(a)4 prescribe 21-day time limits for permits governed by Section 373.427. Although the two rules each prescribe a 21-day time limit, the 21-day time limit in Rule 28-106.111(2) is expressly limited to permits for which a time limit is not otherwise provided by law, and the 21-day time limit in Rule 62- 110.106(3)(a) is expressly limited to permits other than those governed by Section 373.427. On August 1, 2000, the staff attorney for Petitioner received a facsimile from DEP that joined in the mistake of law. In a hand-written note, counsel for DEP stated in relevant part: Thank you for your fax/letter of July 31, 2000 regarding the Whitley permit. . . . Your reading of the rules is correct - the time to file a petition should have reflected 21 days, not 14. I have notified Central District staff, who will notify the Whitleys of this error. Thank you for calling this to our attention. (emphasis not supplied) DEP replicated the mistake of law originated by Petitioner. DEP's interpretation of its own statutes and rules was incorrect for reasons previously stated and not repeated here. Petitioner relied on its own mistake of law and that of DEP and filed the Petition within 21 days of the receipt of the Notice of Intent. However, Petitioner filed the Petition seven days after the expiration of the 14-day time limit prescribed in Section 373.427(2)(c) and five days after expiration of the 14-day time limit prescribed in the Notice of Intent. (Compare paragraphs 3 and 4 with paragraphs 5 and 6, supra.) Petitioner's facsimile to DEP on July 31, 2000, was not a request for hearing. The facsimile did not request an administrative hearing but merely inquired into the time for filing such a request. The facsimile on July 31, 2000, was not a petition for administrative hearing. Rule 62-110.106(3)(a) requires a petition for an administrative hearing to be in the form required by Rules 28-106.201 or 28-106.301. The facsimile on July 31, 2000, failed to satisfy the requirements of either rule. The Notice of Intent also referred to Rule 62- 110.106(4). That rule authorizes DEP to grant a request for extension of the 21-day time limit prescribed in the rule. The facsimile on July 31, 2000, did not request an extension of the 21-day time limit prescribed in Rule 62-110.106(3)(a). Even if the facsimile were construed as having the effect of a request for extension of the 14-day time limit prescribed in Section 373.427(2)(c), DEP had no authority to grant such a request. Rule 62-110.106(4) authorizes DEP to grant a request to extend the 21-day time limit in the rule but does not authorize DEP to grant a request to extend the 14-day statutory time limit in Section 373.427(2)(c). As a state agency, neither DEP nor DOAH can enlarge, modify, or contravene the specific provisions of a statute, including the provisions in Section 373.427(2)(c) that prescribe a 14-day time limit for filing the Petition. Nor can a state agency interpret Rule 62- 110.106(4) in a manner that enlarges, modifies, or contravenes the time limit in Section 373.427(2)(c). Sections 120.52(8)(c), 120.56, 120.57(1)(e), and 120.68(7)(d) and (e). The authority in Rule 62-110.106(4) to grant an extension of time is expressly limited in scope to a time limit that is prescribed by an order or rule of an agency or a time limit that is established in any notice given under such a rule. The 14-day time limit at issue in this case is prescribed by statute, rather than by an order or rule of DEP, and DEP issued the 14-day time limit in the Notice of Intent pursuant to the statutory authority in Section 373.427(2)(c) rather than the Rules that prescribe a 21-day time limit. Rule 28-106.111(3) authorizes DEP to grant a request to extend the 21-day time limit in Rule 28-106.111(2). Even if Rule 28-106.111(3) were deemed to authorize an extension of the 14-day time limit prescribed in Section 373.427(2)(c), the Notice of Intent referred to Rule 28-106.111(2) rather than to Rule 28-106.111(3). Moreover, the facsimile on July 31, 2000, failed to comply with the prerequisites in Rule 28-106.111(3) for an extension of time. The facsimile failed to satisfy the requirement in Rule 28-106.111(3) that a request for extension of time: . . . contain a certificate that the moving party has consulted with all other parties . . . concerning the extension and that the agency and any other parties agree to said extension. Petitioner did not consult with Whitley about an extension of time prior to sending the facsimile on July 31, 2000. Petitioner's noncompliance with the 14-day time limit in Section 373.427(2)(c) is not a minor infraction. Enforcement of the delay caused by Petitioner's noncompliance would have the effect of enlarging or modifying the 14-day statutory time limit by five to seven days, or approximately 36 to 50 percent. Enforcement of the delay caused by Petitioner's noncompliance with the 14-day time limit in Section 373.427(2)(c) would prejudice Whitley. It would effectively deny Whitley the right to a defense based on a statutory bar to untimely petitions that the legislature authorized in Section 373.427(2)(c). See also Section 120.569(2)(c)(requiring dismissal of untimely petitions) and relevant discussion in paragraphs 43-48, infra. Whitley did not mislead or lull Petitioner into noncompliance with the 14-day statutory time limit in Section 373.427(2)(c). DEP misled or lulled Petitioner into noncompliance. DEP is a nominal, or facilitating, party in this proceeding rather than an adversarial party with a stake in the outcome of the proceeding. Petitioner and Whitley are the adversarial parties in this proceeding whose substantial interests will be affected by the outcome of the proceeding. Petitioner's adversary in this proceeding did not mislead or lull Petitioner into noncompliance with the 14-day time limit prescribed in Section 373.427(2)(c). The remaining Findings of Fact are based solely on the factual stipulations between the parties. Whitley and DEP had actual knowledge that Petitioner intended to request an administrative hearing to challenge the Notice of Intent. Whitley knew in June of 2000 that Petitioner opposed the proposed permit. DEP knew of Petitioner's intent to request an administrative hearing when DEP received the facsimile from Petitioner on July 31, 2000. The facsimile from Petitioner on July 31, 2000, and the response from DEP on August 1, 2000, were not forwarded to DOAH and were not part of the record before the ALJ when the ALJ issued the original Recommended Order of Dismissal. However, both documents were part of the record when DEP considered the Recommended Order of Dismissal and issued the remand. Prior to referring the matter to DOAH, DEP determined that the matters contained in the facsimile and response from DEP were sufficient to initiate a proceeding conducted pursuant to Sections 120.569 and 120.57(1). No trick, deception, or deceptive practice was utilized to prevent Petitioner from responding to the Motion to Dismiss that Whitley filed after DEP referred the matter to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order dismissing the Petition for noncompliance with the 14-day time limit in Section 373.427(2)(c) and for noncompliance with the requirement for a timely petition in Section 120.569(2)(c). DONE AND ENTERED this 4th day of April, 2001, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 (850) 488-9675 SUNCOM 298-9675 Fax filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2001. COPIES FURNISHED: M. B. Adelson, IV, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Robert Goodwin, Esquire Save the Manatee Club, Inc. 500 North Maitland Avenue, Suite 210 Maitland, Florida 32751 Scott M. Price, Esquire J.A. Jurgens, P.A. 505 Wekiva Springs Road, Suite 500 Longwood, Florida 32779 William E. "Ted" Guy, Esquire John S. Yudin, Esquire Guy and Yudin, P.A. 55 East Ocean Boulevard Stuart, Florida 34995-3386 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether Petitioner is entitled to file a Petition for hearing to challenge the Stop-Work Order (SWO) and Amended Order of Penalty Assessment (AOPA) more than 21 days from the date of the SWO and the AOPA?
Findings Of Fact Based on the evidence presented at the final hearing, the following findings of fact are made: Respondent is the state agency charged with the responsibility of enforcing the requirement that employers, in Florida, secure workers' compensation insurance coverage for their employees. § 440.107 (3) Fla. Stat. (2005).1 Petitioner, J and A Framing, Inc., during all times relevant to these proceedings, is a Florida for profit corporation, and is authorized to do business in this state. On October 20, 2005, Respondent's Investigator personally served a Request for Production of Business Records on a representative of Petitioner. On October 26, 2005, Respondent's Investigator personally served a SWO on Jorge Bernales, President of Petitioner. The SWO contained a Notice of Rights, on the second page, advising Petitioner, in bold print, that it had 21 days within which it may file a petition challenging the SWO. On October 31, 2005, Respondent's Investigator personally served an Amended Order of Penalty Assessment (AOPA) on Jorge Bernales, President of Petitioner, which also contained a Notice of Rights, on the second page, advising Petitioner, in bold print, that it had 21 days within which to file a petition challenging the AOPA. Marisol Hernandez, Bernales' girlfriend, who reads and speaks English fluently, was present when Respondent's Investigator served Bernales with the SWO and the AOPA. Petitioner filed its Petition with Respondent on March 6, 2006, which is more than 120 days from the date of the SWO and AOPA. Jorge Bernales testified that he was Petitioner's only corporate officer. Marisol Hernandez stated her only relationship with Petitioner was as the girlfriend of Jorge Bernales, its President, and that she is carrying Bernales' unborn child, and his income pays her rent and utilities. She was not employed by Petitioner. Counsel for Petitioner elicited testimony from Hernandez that she did "nothing" for the company and was not an employee or officer of Petitioner. The testimony of Bernales and Hernandez conflicts with the corporate records, admitted in evidence as a joint exhibit, and filed with the Florida Secretary of State, Division of Corporations. The accuracy of the corporate records has not been challenged. It is found that, the corporate records are more credible than the testimony of Bernales and Hernandez. Effective October 27, 2005, Hernandez was listed as the Vice President and therefore, was an employee of Petitioner. At all times material hereto, Bernales was the President and an employee of Petitioner. Petitioner's President and Vice President (collectively, "Officers") met with the Respondent's Investigator on several occasions. During their first meeting, Respondent served the Request for Production of Business Records (BRR) on Bernales. During Petitioner's second meeting with Respondent, Bernales and Hernandez were presented and received the SWO. Hernandez was able to read the Notice of Rights on the SWO, and did so at the final hearing when she read aloud, "[f]ailure to file a petition within 21 days of receipt of this Stop-Work Order constitutes a waiver of your right to request a hearing." During Petitioner's third meeting, the Officers received the AOPA. The Officers had every opportunity to read the AOPA, which contains a bold Notice of Rights, virtually identical to the one on the SWO. Bernales concentrated on raising enough money to pay the penalty. Bernales approached several banks, friends, and family members to get enough money in order to put a ten percent down payment on the assessment. Unable to secure sufficient funds, Bernales offered to pay Respondent a lesser amount in exchange for lifting the SWO. This request was denied. Bernales could understand and speak the English language, but was unable to read English. He knew and was present when Hernandez read and spoke English. Bernales did not seek Hernandez's assistance in understanding the SWO or the AOPA. Hernandez had actual possession of the SWO and the AOPA, but chose to read neither. The Officers went to Elisa Barron, Petitioner's accountant, to gather documents responsive to BRR. Both knew she could read and write English. Barron assisted Petitioner in collecting the documents requested on the BRR. Neither Officer asked Barron to assist them in understanding the terms of the SWO or the AOPA. Furthermore, the Officers had the SWO and AOPA with them, but did not show the SWO or the AOPA to Barron while they were at Barron's office. The Officers testified they were unable to recall whether Barron advised them to seek an attorney regarding the penalty assessment. However, Barron testified she advised Bernales to seek an attorney listed in the local Spanish language newspaper. Barron gave Bernales a copy of the newspaper. Barron's testimony is credible. In January 2006, Bernales retained Dan N. Godfrey, Esquire, to advise the company regarding the instant matter. Even after receiving the advice of counsel, Bernales waited until March 3, 2006, to request permission to file an untimely petition. On March 3, 2006, Petitioner filed a Petition for Hearing with Respondent requesting permission to file an untimely petition to challenge the SWO and AOPA. Petitioner presented no credible evidence that Respondent, or any of its employees, misled Petitioner or lulled it into inaction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Financial Services, Division of Workers' Compensation, enter a final order dismissing the Petition, which requests permission to file an untimely petition challenging the SWO and the AOPA. DONE AND ORDERED this 2nd day of February, 2007, 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 2nd day of February, 2007.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as facts stipulated to by the parties, the following relevant facts are found: Central Corporation, formerly known as TFC Teleservices Corporation, is a provider of alternative operator services (AOS). An AOS provider provides operator assisted long distance telecommunications services to various entities including hotels, motels, universities, hospitals and private pay telephone providers. This new AOS telecommunication industry emerged after 1984 when AT&T ceased paying commissions to hotels for toll-traffic from guests and when the Federal Communications Commission authorized privately-owned pay phones. There are currently nine AOS providers in Florida. Central is authorized by Certificate Number 1528, issued by the PSC on November 21, 1986, to operate as an interexchange carrier within the State of Florida. Central currently operates in Florida under an approved tariff on file with the PSC, which tariff became effective on September 15, 1987, and authorizes Central to charge certain amounts for its services. Prior to the challenged action, the PSC never placed any conditions upon Central's approved tariffed rates. Interexchange companies (IXCs) are companies which provide long distance telephone services. They are certificated by the PSC on a statewide basis and engage in competition with each other. Such competition, along with the PSC's fitness screening and approval of tariffed rates, is considered adequate to protect the public. Consequently, the PSC does not regulate the rates of IXCs, at least minor IXCs including AOS providers. The PSC does not set rate levels for minor IXCs and does not set an authorized rate of return on equity for minor IXCs. Indeed, in accordance with Section 364.337, Florida Statutes, which authorizes the PSC to exempt from the requirements of Chapter 364 a telephone company which is in competition with or duplicates the services of another telephone company, the PSC has placed AOS providers under the separate rules and regulations pertaining to IXCs, which are not rate base regulated. The PSC has never established for any minor IXC a rate base or an authorized or required rate of return. Local exchange telephone companies (LECs) serve a franchised monopoly area. The LEC agrees to provide service indiscriminately to the public without competition, and, in return, the PSC guarantees the LEC the opportunity to earn a fair rate of return designed to emulate what might be achieved in a competitive market. The PSC sets rate bases and rate levels for LECs, and authorizes the rate of return on equity. In other words, unlike IXCs, LECs are rate base regulated utilities. LECs and/or the PSC may initiate rate relief or rate decrease proceedings. Interim relief is often necessary and is authorized by statute and case law due to the regulatory lag time pending the conclusion of the proceedings. Such interim rate relief or interim rate decreases are done on an individual case-by-case basis and are based upon the financial condition of the particular LEC. The PSC has never provided interim rate relief or interim rate decreases on an industry-wide basis. It has set a "generic" rate cap, establishing a 25 cent local call rate for privately-owned pay phones, but that was done on a prospective basis. The PSC has never imposed an industry-wide rate cap, with a requirement to hold subject to refund monies in excess of that cap. At the request of PSC staff, the PSC opened, on December 18, 1987, Docket Number 871394-TP styled "In re: Review of Requirements Appropriate for Alternative Operator Services provided from Public Telephones." This was designated as a "generic" proceeding, and emanated from numerous complaints the PSC had received from end users (i.e., guests of hotels and motels, hospital patients and pay telephone users) who had been charged for alternative operator services. The nature of the complaints included end users being charged for AOS without being aware of using the service, lack of prior knowledge of the rates being charged, inability to use the services of their preferred IXC and inability to access the LEC operator. The most significant complaint, however, was the excessive rate being charged by some AOS providers. The evidence demonstrates that the intrastate long distance rates charged by Central are considerably higher than the rates charged by Southern Bell, an LEC. Central entered an appearance in Docket No. 871394-TP on December 30, 1987. At an Agenda Conference held on February 2, 1988, the PSC voted on various recommendations of its staff. As pertinent to this proceeding, the PSC voted to set an expedited hearing to be held as soon as practicable to determine whether AOS are in the public interest and various other issues concerning the provision of AOS. The PSC also voted to require all AOS providers to place all revenues subject to refund that are generated by charges in excess of the AT&T rate for a comparable call. This vote exceeded the staff's recommendation, which did not include a "hold subject to refund" requirement. At an Agenda Conference held on February 16, 1988, the PSC voted to reconsider the rate cap applicable to AOS providers and to hold the Order reflecting their February 2nd vote pending such reconsideration. At its Agenda Conference held on March 15, 1988, the PSC reconsidered and raised the rate cap amount from the AT&T rate for a comparable call to the LEC rate for a comparable call, thereby decreasing the amount of revenues that AOS providers must hold subject to refund. The action taken on March 15, 1988, was embodied in written Order No. 19095 issued on April 4, 1988. This Order is entitled "Order Setting for Hearing the Issue of Whether Alternative Operator Services are in the Public Interest and Placing Revenues Subject to Refund ..." The remainder of the title relates to "proposed agency action" concerning other requirements for AOS providers, which are not challenged in this proceeding. Order No. 19095 declares that paragraph 7, which requires AOS providers to hold subject to refund all charges collected in excess of the approved rate, is effective February 2, 1988. The Order further recites "We are cognizant of the serious impact this action may have on AOS providers and their customers. However, it is our view that we must take immediate and effective action to remedy the abusive situation we perceive exists at this time. It is in consideration of these conflicting concerns that we have chosen the least drastic action available. This action does not require AOS providers to immediately stop charging current rates. It does not suspend or revoke any certificates of public convenience and necessity. It does not levy any fines or penalties. It merely places revenues subject to refund to allow for the return of these monies if it is subsequently decided that they were generated from inappropriate charges." Although not embodied within the terms of Order No. 19095, the parties stipulated that the hearing to determine public interest is scheduled for August 9-12, 1988. Central requested the PSC to hold an evidentiary hearing prior to making the rate cap take effect, but this request was denied. The rate cap requirement and the disposition of the revenues held by AOS providers pursuant to Order No. 19095 are issues to be determined at the hearing to be held August 9- 12, 1988. The rate cap requirement set forth in Order No. 19095 applies to all AOS providers operating in Florida. Central's current tariff authorizes Central to charge more than the rate cap specified in Order No. 19095. Prior to Order No. 19095, there was no rate cap on AOS providers. Regardless of whether the PSC ultimately orders a refund, the "hold subject to refund" requirement which became effective on February 2, 1988, has immediate and significant adverse impacts upon Central. Central is a relatively new company and must use the revenue it generates on a daily basis. Prior to Order No. 19095, Central was able to rely on the unconditional use of revenues it receives under its approved Florida tariff. If Central continues to charge its current tariffed rates, it will have to set aside the difference between what it bills and the rate cap, place it in escrow and will not be able to utilize those funds. It is estimated that the revenues Central might have to refund if it continues to charge its current rates would between $1.2 and $1.7 million. Nonrecoverable commissions and the cost of a actually making the refund would increase the potential cost of the refund. If Central were to reduce its rates to the LEC rate, it would lose a substantial amount of revenue and does not know where it can make up that loss. Even if this option were chosen today, Central would still have to determine to whom it provided services since February 2, 1988, and what the potential refund would be. Additional staffing and/or computer equipment would be necessary to keep track of prior users and charges. A third option is for Central to withdraw from Florida intrastate operations pending the outcome and conclusions of the August PSC proceedings. Central operates in many states. While its Florida business makes up only 8 to 10 percent of its intrastate revenues, some 40 percent of Central's entire business originates at Florida properties. If Central were to cease paying commissions on intrastate revenues, its intrastate business originating from Florida would go to its competitors. While Central has made the decision not to do business in certain states due to those state's methods of rate regulation, such decisions were made on a prospective basis. Other immediate and adverse impacts upon Central include the administrative costs and burdens associated with separate bookkeeping for its Florida operations, as well as separate books within Florida to segregate the difference between the rate cap and its tariffed rates. Central has already experienced delays in loan financing. Lenders want to wait and see what the PSC does with AOS providers. The valuation of the company is affected due to money taken out of the revenue stream and placed in escrow. Central's financial statement must reflect the contingent liability of potential refunds and full disclosure must be made to the Federal Communication Commission.
Findings Of Fact DOT and its predecessors have been charged by statute with the responsibilities to construct, operate, and maintain the Florida Turnpike, which is known as the Sunshine State Parkway. The Parkway is financed through a system of tolls which DOT charges users, through concessions that DOT receives from service facilities that are located on the Parkway, and from interest that DOT receives on deposits of toll revenues. Tolls are the primary source of revenue. Proposed rules 14-61.01 and 14-61.03 would increase the tolls charged by DOT for all Parkway traffic. The Petitioner is a political subdivision of the State of Florida. The Parkway traverses the north-south length of Broward County. Petitioner is a major user of the Parkway. Petitioner has the responsibility to operate and maintain a system of roadways within its boundaries. Changes in traffic patterns on the Parkway affect traffic patterns on other roads within the County. The parties have stipulated that the Petitioner would be substantially affected by the proposed rules. The first section of the Parkway, between Miami and Ft. Pierce, was completed in 1956. The second section, between Ft. Pierce and Wildwood, was completed in 1963. The toll schedule, which sets the rates charged different classes of vehicles for different movements along the Parkway, has not been amended since it was originally adopted and implemented in connection with the opening of the various segments. The original toll schedule was determined based upon local costs of obtaining property and estimated maintenance costs. The present toll structure includes some sharp fluctuations in the rate per mile charged for different movements. The average rate for the entire Parkway is approximately 1.8 cents per mile. For some movements along the Parkway the rate is as high as 4 cents per mile, while for others the rate is 1.6 cents per mile. Different rates are charged for passenger cars, and for trucks. The rate differentials are based upon the number of axles. Thus a five axle heavy truck pays a rate that is 2.5 times the rate charged passenger cars. During 1977, DOT began to consider a revision of the toll structure. Several legislators had expressed a desire that the toll rates be made uniform for all movements on the Parkway. Furthermore, the amount by which revenues obtained from operation of the Parkway exceed the cost of bond payments and operation and maintenance of the Parkway had been decreasing. It appeared at one time that there would be a shortfall of revenues for the 1977 year. There was also a projected shortfall of revenues for the 1978 year. The shortfalls did not occur. In fact there was a slight excess of revenues in 1977, and new projections based upon experience during the first six months of the year indicate that the same will be true for 1978. Excess revenues are, however, considerably less than had been typical in past years. DOT has developed and proposed what it calls a "minimum capital program". The program is labeled "minimum" because it contemplates making expenditures only for items that are needed, and not for items that are merely desirable. Revenue needs have been estimated through the calendar year 1991. The minimum capital program includes payments that will need to be made on revenue bonds; and the cost of major resurfacings, periodic maintenance, updating communications and tolls equipment, safety improvements, rehabilitation or replacement of concessionaire facilities, improving traffic handling facilities and miscellaneous engineering expenses. In addition to its own engineers, DOT employs two engineering firms to assist it in operating and maintaining the Parkway. A traffic engineer is employed to review the financial status of the Parkway on an annual basis, and a general engineer is employed to review the physical condition of the Parkway. Neither the traffic engineer nor the general engineer have mandated the minimum capital program. This program was developed by DOT's own employees The traffic engineer's projections for revenues that will be obtained from operation of the Parkway through 1991 reveal that inadequate revenues would be raised to finance the minimum capital program. DOT thus employed its traffic engineer on a special project basis to propose a toll schedule that would raise sufficient revenues, and that would eliminate the large variations in rate per mile charged for different movements on the Parkway. The traffic engineer proposed several alternative toll schedules. DOT is seeking to adopt the most conservative schedule proposed by the traffic engineer, through proposed rules 14-61.01 and 14-61.03. The traffic engineer sought to propose a schedule so that tolls for all movements on the Parkway would represent a fixed cost for collection of the toll, plus a fee based on usage in terms of mileage. It was decided that tolls would not be reduced for any movements, and that each movement would have an increase of at least five cents. There would be no toll increases greater than one hundred percent, and the smallest toll for any movement would be at least twenty cents. The tolls for all movements would be in five cent increments, so that change would not need to be distributed in pennies. Overall the toll structure set out in the proposed rules represents approximately a twelve percent increase, with per-mile rates being made more uniform. The ratio of the tolls charged to different vehicles has remained almost constant. Heavy trucks with five axles will now pay tolls that are approximately 2.6 times that charged for passenger vehicles. This slight increase in ratio reflects nothing more than a desire to maintain tolls in five cent increments. It does not reflect any desire to change the increments charged for different types of vehicles. Petitioner asserts that the minimum capital program is overstated, and that considerably less money will be needed for resurfacing and for safety improvements. DOT estimates that $110,000,000 will be needed for resurfacing on the Parkway between 1978 and 1991. This estimate is based upon a projection that resurfacing will be required every eight years, and will cost approximately $85,000 per mile to accomplish. The eight-year cycle is a planning tool utilized by DOT. It reflects the average life of pavement on interstate highways. The Parkway's history reflects that repavings are required less than every eight years. Portions of the first section of the Parkway did not need any resurfacing after the initial work for eleven years. With few exceptions, no new resurfacings were required after the first one, which was completed in 1968, until this year. Thus the first resurfacing has lasted from ten to fourteen years. Perhaps as a result of variances in materials, the experience on the second section of the turnpike has not been as good, but it does appear that a resurfacing will last for more than eight years. Despite this favorable history, there is room for considerable speculation on the part of engineers as to how long fly resurfacing will last. Eight years, while conservative, represents a fair estimate in view of the uncertainty. It was estimated by a witness called by the Petitioner that a resurfacing can be accomplished for approximately $40,000 per mile rather than the $85,000 estimated by the Respondent. The witness who made this estimate has not been involved in any resurfacings of this magnitude since 1968. The major reason for his smaller estimate is that he would use considerably less asphalt than proposed by the Respondent. Here again, there is room for variance in the views of engineer. The amount proposed by the Respondent, while again on the liberal side, appears to be reasonable, and based upon current estimates of costs on actual projects, with inflation being considered. As to safety improvements, Petitioner asserts that the improvements proposed by DOT are not essential. The minimum capital program includes proposals to add guard rails, to increase the strength of some existing guard rails, to improve lighting on the Parkway, and to increase the length of several approach lanes. The economic justification for the proposed safety improvements could be a subject for debate, but it does appear that the improvements offered by DOT are reasonable, and do not constitute as high an expenditure for safety as would be ideal. Projected revenues under the present toll schedule would not be adequate to finance the minimum capital program. The total deficit would amount to either $40,000,000 or $73,000,000 depending upon the accounting method utilized. Under the proposed toll schedule an additional $91,700,000 would be raised over the amount that would be raised from the existing toll schedule according to the traffic engineer's projections. There would thus be at least a $20,000,000 estimated total excess of revenues under the proposed schedule. This $20,000,000 must be considered from the perspective that it represents a thirteen-year projection in a project which will have an aggregate budget of approximately $361,000,000. Heavy trucks cause more wear on a highway surface than do passenger automobiles. The amount of increased wear is even greater than would be reflected by weight differentials. Trucks wear out a road surface at a rate of as much as twenty five times greater than automobiles. DOT made no effort to have the differential in tolls charged to trucks and automobiles reflect the amount of wear caused by each type of vehicle beyond the amount the present rate structure reflects such a differential. Neither did the Respondent make any effort to determine the extent to which toll increases could cause trucks to abandon the Parkway and to utilize other highways. The differential that exists in the present toll schedule was accepted by DOT and used for the purpose of developing a new schedule without any inquiry into whether a different ratio might better serve to raise revenue and to maintain the Parkway. The evidence does not reveal any logical basis for setting a ratio based upon that number of axles on the vehicle, but nonetheless DOT made no inquiry into the appropriateness of that ratio. The Economic Impact Statement prepared in support of the proposed rules was developed in June, 1977. The Statement was completed prior to June 16, 1978, the date that the proposed rules were noticed in the Florida Administrative Weekly. The Economic Impact Statement was submitted into evidence at the hearing. It is organized along the lines of Section 120.54(2), Florida Statutes (1977), with numbered paragraphs in which the data required by the statute is putatively set out. Although there was testimony from a competent and qualified expert witness to the effect that the Economic Impact Statement does not meet professionally acceptable methodology, it has not been established that the Statement is other than adequate to meet the requirements of the statute. The Petitioner's expert testified primarily that the Statement does not include a recitation of the data upon which the conclusions set out in the Statement are based. The expert would have preferred that the proposed rule be quoted in the Statement, and that all figures utilized in the Statement be fully explained. The expert did not find any specific fault with she methodology of obtaining data, with the data itself, or with the conclusions.
