Findings Of Fact Each of the above-named Petitioners have previously filed with the Office of the Comptroller requests for refund of monies paid to the State for cab card fees, identification stamps and road taxes pursuant to the provisions of Chapter 32, Florida Statutes. Thereafter, this Office issued to each Petitioner its Notice of Intention to Deny the Request ford Refund and each Petitioner filed its Petition; requesting a formal hearing pursuant to the provisions of Chapter 120, Florida Statutes, concerning such proposed denial. This Office granted such Petitions and same were forwarded to the Division of Administrative Hearings for formal proceedings. Charles C. Adams was appointed as the Hearing Officer and by stipulation of the parties all of the Requests for Refund were consolidated in one proceeding. On May 10, 1982, Mr. Adams issued his Recommended Order which included Findings of Fact by Stipulation of the Parties, Conclusions of Law and a Recommended Order. Copies of such Recommended Order were furnished to all of the Petitioners. Thereafter, this Office represented by John Browdy, Esquire, Assistant Attorney General, filed a Motion for Clarification which was denied by the Hearing Officer by Order dated June 7, 1982. Mr. Browdy then filed Exceptions to the Recommended Order. Both the Motion for Clarification and the Exceptions are based upon an alleged failure of the Hearing Officer to set forth in his Recommended Order any instruction's as to the fund or appropriation to which refunds, if granted, should be charged. In paragraph five of the Conclusions of Law in the Recommended Order, Hearing Officer Adams entered a conclusion to the effect that the annual assessment of cab card fees and identification stamps collected pursuant to Rule 25-5.14, Florida Administrative Code, was improper as that Rule had been held invalid by Order of the Division of Administrative Hearings in DOAH Case No. 82- 131R captioned Aero Mayflower Transit Co., Inc., et al. v. State of Florida, Public Service Commission and the Comptroller of Florida. Hearing Officer Adams notes that this Order of the DOAH has been appealed to the First District Court of Appeal of Florida. That Court is now considering, in Case No. AL-341, the accuracy of the DOAH Order and may either affirm, reverse; or remand such Order. With the addition of the Findings of Fact set forth above, the Findings of Fact set forth in the Recommended Order of Hearing Officer Adams issued under date of May 10, 1982, are adopted as the Findings of Fact determined by this Office and the same are incorporated and made a part hereof as though fully set forth at length.
Findings Of Fact Petitioner Eli Witt Company is a wholesale dealer in cigarettes in some eight states, including Florida. During the year 1976 and at the present time, Petitioner acts under the authorization of the Division of Alcoholic Beverages and Tobacco as an agent to buy or affix stamps pursuant to Section 210.05, Florida Statutes, and to collect and remit the cigarette tax to the Division after sale to various retailers in the State. Petitioner has some twenty-five branch offices located throughout the State who place orders for cigarettes with Petitioner on a daily basis. The cigarettes are invoiced by Petitioner to each branch and, upon arrival, the various branch offices affix the tax stamps upon the cigarette packages, primarily by means of a stamping machine. Each of Petitioner's stamping offices maintains its own records and files required reports, and is audited individually by employees of the Division. Each branch office is listed separately on a rider to the surety bond of Petitioner which is required under Chapter 210. Monthly checks are signed by each branch manager to remit tax collected to the Division. (Testimony of Hoyland) Since at least 1962, Petitioner had stamped cigarettes and collected cigarette taxes for the State of Florida. It had been allowed a discount as compensation for its services and expenses pursuant to Section 210.05 (3)(a), Florida Statutes, of 2.9 percent on the first two million cigarette packs stamped at each of its stamping locations. On March 1, 1976, the Division promulgated Rule 7A-10.25, Florida Administrative Code, which provided that a wholesaler who stamps cigarettes at more than one location would only be entitled to receive the maximum discount for a single agent doing business at a single location. Accordingly, although each of Petitioner's twenty-five stamping locations purchased more than two million stamps from the Division during the fiscal year July 1, 1976 through June 30, 1977, Petitioner retained the 2.9 percent discount as if it had done business at only one location. It filed a protest against the effect of the rule with the Division on July 1, 1976. A refund claim was filed with the State Comptroller on March 16, 1979, and denied on June 12, 1979. (Testimony of Hoyland, case pleadings, Exhibits 2- 3, 5) In 1977, the state legislature enacted Chapter 77-421, Laws of Florida, effective June 29, 1977, which provided in part in Section 8 thereof that: "Stamping locations approved by the division shall be responsible for computing the discount provided for each and every stamping location by ss. 210.05(3)(a), Florida Statutes . . ." The Division thereafter permitted discounts under the policy in effect prior to the promulgation of Rule 7A-10.25, but did not repeal the rule. On March 16, 1979, Petitioner requested the State Comptroller to refund the $64,800 paid under protest in fiscal year 1976-77 which represented the amount it could have retained as a discount if Rule 7A-10.25 had not been in effect. (Case pleadings, Exhibits 1, 4)
The Issue The issue to be decided in this proceeding is whether the Reimbursement Dispute Dismissal issued by Respondent, Department of Financial Services, Division of Workers’ Compensation (the “Department”), should be reversed due to equitable tolling or some other recognized excuse for untimely submission of the reimbursement dispute.
Findings Of Fact Petitioner is a business operating in Daytona Beach, Florida. The nature of Petitioner’s business was not made part of the record. In approximately June 2017, Petitioner submitted a claim to the Department, claiming payment for certain (undisclosed) services or expenditures. The Department issued an Explanation of Bill Review (“EOBR”) in response to Petitioner’s claim. The EOBR set forth the amount of reimbursement the Department would allow for Petitioner’s claim. The EOBR was received by Petitioner on July 10, 2017. Upon receipt of the EOBR, Petitioner had 45 days, i.e., until August 24, 2017, to challenge the Department’s determination of the reimbursement amount. Not satisfied that the amount allowed by the Department was correct, Petitioner challenged the determination by submitting a Petition for Resolution of Reimbursement Dispute (the “Petition”) on DFS Form 3160-0023. The Petition was signed on August 8, 2017. However, Petitioner did not immediately submit the Petition on that date, despite being aware of the 45-day time limit for submitting such forms for relief. Petitioner did not mail the Petition until August 25, 2017, one day after the deadline for doing so. The Certified Mail Receipt for Petitioner’s mailing is clear and unambiguous, clearly showing the date. Petitioner did not present any evidence as to factors which might excuse the late filing of its Petition. The only reasons cited were that Petitioner was awaiting information from two claims management services, Sedgwick and Foresight, before submitting its Petition. Petitioner, through its witness at final hearing, admitted its error in failing to timely file the Petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent, Department of Financial Services, Division of Workers’ Compensation, enter a Final Order upholding its Reimbursement Dispute Dismissal. DONE AND ENTERED this 11th day of January, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 11th day of January, 2018. COPIES FURNISHED: Taylor Anderson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Barbara T. Hernandez East Coast Surgery Center 1871 LPGA Boulevard Daytona Beach, Florida 32117 (eServed) Thomas Nemecek, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by John D. C. Newton, II, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice of Voluntary Dismissal, which followed the execution of the Settlement Agreement entered into by the parties, which is attached and incorporated by reference in this order. Accordingly, it is hereby ORDERED that this case is CLOSED. DONE AND ORDERED this ENS day of October, 2013, in Tallahassee, Leon County, Florida. é ulie Bakef, (Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety & Motor Vehicles 2900 Apalachee Parkway Neil Kirkman Building, Rm. A338 Tallahassee, Florida 32399 Filed October 28, 2013 11:29 AM Division of Administrative Hearings Filed with the Clerk of the Division of Motorist Services this day of October, 2013. N Nalini Vinayak, Dealer Kicense Adminictres-- NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to the Rules of Appellate Procedure. Copies to: Harrison T. Slaughter, Esq. 126 East Jefferson Street Orlando, FL 32801 Jeff B. Clark, Esq. 1118 Overbrook Drive Orlando, FL 32804 Stephanie H. Park, Esq. 311 North Summit Street Crescent City, FL 32112
Conclusions WHEREFORE, it is ORDERED and ADJUDGED, that the protests are dismissed with prejudice. DONE AND ORDERED this |2__ day of May _, 2010, in Tallahassee, Florida. Fr J> . BR 7 . yamjssioner of Education | COPIES FURNISHED TO: | Christopher McRae Robert Hosay | 2612 Centennial Place 100 E. College Ave., Suite 900 | Tallahassee, FL 32308 Tallahassee, FL 32301 | Clerk William F. Quattlebaum | Division of Administrative Hearings Administrative Law Judge | The DeSoto Building Division of Administrative Hearings | 1230 Apalachee Parkway The DeSoto Building | Tallahassee, FL 32399 1230 Apalachee Parkway Tallahassee, FL 32399-3060
