The Issue The issue in this case is whether the defense of equitable tolling applies to excuse Respondent's untimely request for a disputed-fact administrative hearing on an Administrative Complaint.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of nursing pursuant to section 20.43, Florida Statutes, and chapters 456 and 464, Florida Statutes. At all times material to the Complaint, Respondent was a licensed registered nurse (R.N.) within the state of Florida. On or about February 19, 2016, Respondent retained CLG to represent him in Petitioner's Case 2016-08658, the number assigned by Petitioner to an investigation that ultimately led to issuance of the Complaint. In late May 2018, Attorney Leikam assumed the role as the CLG attorney with primary responsibility for Respondent's case, and informed Petitioner. At that time, the status of the case was characterized as "pre- probable cause." Attorney Leikam represented then to Petitioner that she "will be representing this client in all matters pending before the Department." On November 9, 2018, CLG legal assistant Katherine Kalinowski testified that she closed CLG's file on Respondent's case. However, she did not follow CLG procedures, in that she did not ensure that a withdrawal letter was sent to Respondent before CLG closed its file. On July 1, 2019, Petitioner filed its Complaint against Respondent. Although Attorney Leikam was still counsel of record for Respondent for all matters pending before the Department, including Case 2016-08658, the Department sent the Complaint and Election of Rights form to Respondent directly. When Respondent received the Complaint package, he called CLG and was referred to Attorney Leikam. Attorney Leikam determined that, although CLG had attempted to close its file, since no withdrawal letter was sent to Respondent, "we are still on it." Attorney Leikam sent an email to counsel for Petitioner to complain of the improper attempt to serve Respondent with the Complaint, when she was still counsel of record for Respondent, as she had previously informed Petitioner. Petitioner acknowledged and rectified this mistake by serving the Complaint and Election of Rights form by certified mail to Attorney Leikam, which she received on July 19, 2019. The parties agree that this second attempt to serve the Complaint constitutes the proper service on Respondent. The last page of the Complaint—page 11—set forth the NOTICE OF RIGHTS in bold type, informing Respondent that a written request for an administrative hearing must be received by Petitioner within 21 days after receipt of the Complaint. There is no claim by Respondent in this case that the Notice of Rights was unclear regarding the deadline to request a hearing or the manner in which a hearing must be requested. Respondent knew that there was a deadline to request an administrative hearing, but he did not know when the actual deadline was. He admitted he only "vaguely" reviewed the Complaint, and probably did not make it to the last page. (Tr. 126-27). Instead, he relied on Attorney Leikam to timely submit whatever was necessary to protect his rights.2 2 Upon determining that CLG had not effectively terminated its representation of Respondent, Attorney Leikam immediately notified Respondent that further retainer payments were required. As of July 22, 2019, Attorney Leikam noted as follows in CLG's internal File Notes: "Client never paid but now that we've been served [with the Complaint], I don't want to miss the deadline. I completed only the election of rights form. I am not sending the answer to the [Complaint] until the client pays." To meet the 21-day deadline, a completed Election of Rights or other written hearing request had to be received by Petitioner no later than Friday, August 9, 2019 (21 days after July 19, 2019). The 21-day window to request an administrative hearing was closed on and after Monday, August 12, 2019.3 Neither Respondent nor Attorney Leikam submitted a completed Election of Rights or other written request for an administrative hearing to Petitioner by any means—electronic mail, in-person delivery, U.S. mail, or facsimile—within 21 days after the Complaint and Election of Rights form were received by Attorney Leikam. On November 6, 2019—89 days after the deadline to request an administrative hearing—Petitioner's counsel sent an email to Attorney Leikam to serve Petitioner's Motion for Waiver, which was attached. The Motion for Waiver, filed with the Board of Nursing, sought a determination that Respondent waived his right to a disputed-fact administrative hearing by not timely filing an Election of Rights or other written request for a disputed-fact hearing. That same day, after receiving the Motion for Waiver, Attorney Leikam responded by email to Petitioner's counsel, submitting for the first time a completed Election of Rights form on Respondent's behalf to dispute the facts alleged in the Complaint. 3 The parties stipulated that the 21-day period to request an administrative hearing "expired" August 12, 2019. The stipulation is not entirely clear. The ambiguity was reconciled based on the parties' other stipulation that the Complaint was properly served on Attorney Leikam on July 19, 2019. As a simple application of the computation of time rule, 21 days after Friday, July 19, 2019, was Friday, August 9, 2019. Thus, August 9, 2019, was the last day to file the request for hearing; the 21-day time period was "expired" as of Monday, August 12, 2019. See Fla. Admin. Code R. 28-106.103. Petitioner's PRO interpreted the ambiguous stipulation differently, proposing a finding that the 21-day deadline to file a hearing request was on Monday, August 12, 2019. (Pet. PRO ¶ 5). Respondent's PRO adhered to the ambiguous stipulation, proposing a finding that the 21-day response time "expired on August 12, 2019." (Resp. PRO ¶ 8). This discrepancy is inconsequential, as the findings herein demonstrate, because no hearing request was filed by August 9, 2019, August 12, 2019, or on any date close to either of those dates (if "close" mattered). Attorney Leikam represented to Petitioner's counsel that she had completed the Election of Rights form on or about July 21, 2019, and that her then-legal assistant, Tawanna Hackley, had submitted the completed form by email to Petitioner on July 23, 2019. Petitioner ran email searches and reported to Attorney Leikam that no emails were received from Ms. Hackley or from anyone else at CLG submitting a completed Election of Rights or otherwise requesting an administrative hearing to dispute the Complaint against Respondent. On December 3, 2019, Attorney Leikam sent an email to Petitioner's counsel, transmitting an Answer to the Complaint for filing on Respondent's behalf.4 Attorney Leikam also sent an email attaching Respondent's response to the Motion for Waiver. The response invoked the doctrine of equitable tolling as a defense to the admitted untimely filing of the Election of Rights. The Motion for Waiver and response were presented to the Board of Nursing on December 5, 2019. As a result of Attorney Leikam's request that the Board defer review of the case pending a hearing on equitable tolling, the matter was referred to DOAH to hear the equitable tolling defense. The equitable tolling defense asserted by Respondent is predicated on the circumstances surrounding Attorney Leikam having entrusted the filing of the Election of Rights to her then-assistant, Tawanna Hackley, who failed to complete the assigned task. Tawanna Hackley was not a lawyer or a paralegal; her position at CLG was a "legal assistant," and she worked under the supervision of Attorney Leikam. Ms. Hackley began working at CLG on November 12, 2018. Just over eight months later, on July 24, 2019, she was fired for inadequate performance. 4 As noted above, Attorney Leikam had recorded in the File Notes that as of July 22, 2019, Respondent had not yet paid the requested retainer fee, and that until Respondent paid, she was only going to file the Election of Rights and not the Answer. No evidence was offered to establish when Respondent paid, but based on Attorney Leikam's July 22, 2019, File Notes entry, presumably Respondent did not pay until shortly before Attorney Leikam filed the Answer on December 3, 2019. Attorney Leikam testified candidly that during Ms. Hackley's short tenure at CLG, she had a lot of performance issues, described as follows: It was really—it was really everything from not completing tasks, not documenting tasks, or then doing tasks but having multiple repeated errors in the format or the spelling or the language. It was— it was really a constant issue one way or another. But to me, the biggest issue was that when I would confront these things with her, she just denied all responsibility. (Tr. 25-26). Ms. Hackley was primarily trained by another legal assistant, Katherine Kalinowski, who acknowledged that Ms. Hackley did not seem to grasp what she was taught. When asked how long it took Ms. Kalinowski to train Ms. Hackley, of the eight months she was employed, Ms. Kalinowski responded, "Eight months." (Tr. 108). Nonetheless, Ms. Kalinowski testified that after the first month or so, she stopped checking over Ms. Hackley's work, limiting her involvement to answering Ms. Hackley's questions. Attorney Leikam communicated in telephone calls with CLG's director of human resources, Kristin Teague, regarding the consistent performance problems she was having with Ms. Hackley. However, no specific steps to address these problems were documented in Ms. Hackley's personnel file until her last few weeks at CLG. In particular, her personnel file contains one "coaching" document, prepared by Ms. Teague from information given to her by Attorney Leikman to facilitate a performance-related meeting between Attorney Leikam and Ms. Hackley on July 8, 2019; and one formal corrective action in the form of a counseling warning, issued on July 12, 2019. The July 8, 2019, coaching document listed specific performance issues to be addressed in discussion with Ms. Hackley, all of which fell within the broad categories of performance issues to which Attorney Leikam testified at the hearing: not completing tasks assigned to her, not documenting tasks, and committing multiple repeated errors in the work she did complete. The coaching document ended with a list of specific behavior changes needed from Ms. Hackley, and item two on the list was: "Complete tasks given by attorneys and/or ask a question if she does not understand." The next step in CLG's performance review process if an employee does not meet the expectations communicated in a coaching discussion is formal corrective action in the form of a counseling warning. A corrective action counseling warning was issued to Ms. Hackley on July 12, 2019, only four days after the scheduled performance discussion. The corrective action document was signed by Ms. Teague on July 12, 2019, and by Ms. Hackley and Attorney Leikam on July 15, 2019. The document warned Ms. Hackley that her performance needed to improve because she was making too many mistakes of the type identified by Attorney Leikam in her testimony: not completing assignments given to her by her attorneys, not following the CLG procedures for documenting tasks, not scanning documents into the electronic files, and making a lot of spelling and formatting errors. A confidential version of the corrective action document contained a heading identifying the reason for the action as "Unsatisfactory Work Performance." (Jt. Ex. 1, Pet. Depo. Ex. 2, Bates page 0028). The corrective action defined a time period for improvement of six months from the date it was issued, during which Ms. Hackley was expected to have weekly meetings with Attorney Leikam to discuss her performance. Almost immediately after the corrective action counseling warning was signed by Ms. Hackley, though, Ms. Teague testified that she and Attorney Leikam made the decision that Ms. Hackley needed to be terminated. Together, they informed Ms. Hackley that she was fired on Wednesday, July 24, 2019, but the decision was made either on Monday, July 22, 2019, or Tuesday, July 23, 2019. Ms. Teague explained when and why the decision was made: "Earlier that week I think we had decided that we could no longer risk her continuing to work on our files." (Jt. Ex. 1 at 53). That was because of the errors Ms. Hackley kept making. The precursor to this joint decision appears to have occurred on Friday, July 19, 2019 (the day on which Attorney Leikam received the Complaint by certified mail from Petitioner). Attorney Leikam apparently spent her morning in several rounds of email exchanges with Ms. Hackley. In each of these rounds, Attorney Leikam pointed out errors in Ms. Hackley's work, to which Ms. Hackley responded by blaming someone or something else for the errors. Attorney Leikam then forwarded each round of these email exchanges to Ms. Teague at CLG's Michigan office, and the email strings were placed in Ms. Hackley's personnel file. Attorney Leikam testified that she completed Respondent's Election of Rights on July 22 or 23, 2019, and physically handed it to Ms. Hackley with verbal instructions to scan and email the Election of Rights to Petitioner.5 Attorney Leikam exercised questionable judgment by entrusting to Ms. Hackley the critical step of transmitting the Election of Rights to Petitioner without verifying for herself that the email was sent and received, when at the same time she and Ms. Teague had jointly concluded that Ms. Hackley had to be fired because they "could no longer risk her continuing to work on our files." But according to Attorney Leikam, it is standard CLG practice for legal assistants to transmit by email these time-critical documents to the opposing party for filing. That this is the standard practice is not so clear in the CLG policies and procedures manual, which seems to assign to attorneys the responsibility for all communications of any kind with opposing parties. Further, as to deadlines, the CLG manual is quite clear that "[w]hile legal assistants should remind attorneys daily of their upcoming deadlines/events, both parties are responsible for ensuring that deadlines and events are not missed." 5 Attorney Leikam told Petitioner in the early November 2019 email exchanges that she completed the Election of Rights form on July 21, 2019, and gave it to Ms. Hackley to submit to Petitioner, but that is unlikely, since July 21, 2019, was a Sunday. More likely, Attorney Leikam completed the Election of Rights form on Monday, July 22, 2019, or possibly Tuesday, July 23, 2019, and gave it to Ms. Hackley to scan and email to Petitioner. Attorney Leikam acknowledged that when CLG's legal assistants send emails to opposing parties regarding a case, CLG's standard practice also dictates that the legal assistant must copy the attorney handling the case on the email. Attorney Leikam did not receive a copy of an email sent by Ms. Hackley to Petitioner transmitting the Election of Rights for filing. Despite not getting a copy of an email from Ms. Hackley transmitting the Election of Rights to Petitioner, Attorney Leikam believed Ms. Hackley completed the assigned task by sending the completed Election of Rights form by email to counsel for Petitioner on July 23, 2019. Attorney Leikam believed that the filing was made on July 23, 2019, because an entry dated July 23, 2019, in the File Notes document maintained for Respondent's case stated: "Sent election of right to Dirlie McDonald @ DOH place in G:drive. TH." The File Notes document is a Microsoft Word document. File Notes documents are maintained for each case, with contact information for parties and counsel, and entries reporting on events and communications relevant to the case. The File Notes documents can be accessed by any CLG employee. In theory, and in accordance with CLG procedures, an entry's date should be the date the entry is actually made, but no date or time stamp is automatically generated to ensure accuracy. As such, an entry can be made either before or after the typed date. Likewise, in theory, and in accordance with CLG procedures, the initials at the end of a File Notes entry should identify the person who made the entry, but the initials are not automatically generated to identify who accessed the File Notes to record a particular entry. Attorney Leikam testified that she checked the File Notes for Respondent's case sometime on July 24, 2019, and saw the entry for July 23, 2019, by "TH" stating that the "election of right" was "sent" to "Dirlie McDonald @ DOH." Attorney Leikam later made the following entry in the File Notes: "7/24/19: Client left a message worried about payment and election of rights. I played phone tag and left him a message saying it was covered. Sent f/u [follow-up] email. LAL." According to Attorney Leikam, the sequence of events, as recorded in her File Notes entry, was that, first, Respondent called and left a message expressing concern about whether the election of rights had been filed. Then, after Attorney Leikam received the message, she investigated the status of the Election of Rights assignment by reviewing the File Notes and finding the July 23, 2019, entry by TH. Attorney Leikam drew the inference from the entry and the initials that Ms. Hackley had completed her assigned task of sending the Election of Rights by email to Petitioner on July 23, 2019 (even though the entry does not state how the Election of Rights was sent, and even though Attorney Leikam did not receive a copy of an email from Ms. Hackley to Petitioner). Then, Attorney Leikam "played phone tag" with Respondent, and ultimately left a message saying "it was covered." Attorney Leikam then drafted a "follow-up" email to Respondent and sent it to him. The follow-up email prepared by Attorney Leikam stated: "We submitted the Election of Rights form on 7/23/19. We received it on 7/19/19, so it is timely. This is because we were still counsel of record[, so] the Department should have sent the Administrative Complaint to our office. Thus, the Complaint you received [earlier] is not considered properly served." This email was sent to Respondent at 3:16 p.m., on July 24, 2019. Of necessity, then, all of the preceding steps in the sequence occurred sometime earlier on July 24, 2019, if not before July 24, 2019. Attorney Leikam offered no explanation as to why she did not just ask Ms. Hackley if she completed the assignment so Attorney Leikam could answer Respondent's inquiry. Ms. Hackley was still in the office on July 24, 2019, until nearly the time that the follow-up email was sent at 3:16 p.m. Attorney Leikam's review of the File Notes entry ostensibly made by Ms. Hackley on July 23, 2019, was inadequate to support the inference drawn by Attorney Leikam. Reasonable prudence dictated that she ask Ms. Hackley to confirm that she sent the Election of Rights by email, before assuring the client that "we" submitted the Election of Rights on July 23, 2019, and that it was timely filed. The File Notes entry itself did not identify how the Election of Rights was "sent," and Attorney Leikam was not copied on an email from Ms. Hackley to Petitioner transmitting the Election of Rights, as was the standard CLG practice.6 Meanwhile, Attorney Leikam also spent time on July 24, 2019, dealing with Ms. Hackley's termination. Attorney Leikam testified that she spoke with Ms. Teague during the morning of July 24, 2019, to confirm the plan to schedule a meeting with Ms. Hackley at 3:00 p.m., and that Ms. Teague would attend by telephone. Sometime between 12:00 p.m. and 1:00 p.m., Attorney Leikam used Microsoft Outlook to schedule the 3:00 p.m. meeting, sending "invitations" to Ms. Hackley and Ms. Teague.7 Ms. Hackley's receipt of an "invitation" to a meeting with Attorney Leikam and Ms. Teague was not well received, coming on the heels of the corrective action counseling warning Ms. Hackley had signed nine days earlier, and the multiple rounds of criticizing emails from Attorney Leikam five days earlier. According to Attorney Leikam, rather than accepting the invitation, Ms. Hackley "stormed" into her office and started yelling that they 6 Attorney Leikam attempted to justify the reasonableness of her inference by explaining Ms. Hackley did not always follow procedure by copying her on emails. Even if true, that would not support the reasonableness of inferring Ms. Hackley completed the email filing assignment from an entry that did not say the Election of Rights was sent by email. Moreover, Attorney Leikam's explanation as to why she was unconcerned by the fact that she did not receive a copy of an email was impeached by Respondent's own evidence. According to an audit of Ms. Hackley's emails, not done until November 2019, all outgoing emails from July 10, 2019, through July 24, 2019, from Ms. Hackley to Petitioner or another party outside of CLG were copied to Attorney Leikam and/or Ms. Bazzigaluppi. If this was a performance issue for Ms. Hackley previously, it apparently was not a problem in July 2019. 7 Ms. Teague had a somewhat different, but much less clear, recollection of the timing. She repeatedly said she was not sure of the various times to which she hesitantly testified. Ms. Leikam, in contrast, did not express the same hesitancy in her testimony. To the extent their testimony differed as to when certain steps occurred, Ms. Leikam's more certain recollection is generally credited. It would stand to reason that she would have a clearer recollection of the timing of events that occurred in her physical presence than Ms. Teague's admittedly uncertain recollection of the timing of events in which she participated remotely by telephone from Michigan. were going to fire her and she was not going to sit around and wait for a meeting. Ms. Hackley then left Attorney Leikam's office, and Attorney Leikam said she heard "a lot of slamming for a little while." (Tr. 57). Then Ms. Hackley returned and said she was going to wait for Ms. Teague. Attorney Leikam said after this exchange, she called Ms. Teague immediately, who made herself available for a meeting "within about an hour's time." (Tr. 57). Given Attorney Leikam's description of the events that started at between noon and 1:00 p.m., the meeting must have begun no earlier than 1:30 p.m. and possibly as late as 2:30 p.m. The termination meeting was relatively uneventful, as Ms. Hackley was already expecting to hear that she was fired, and she was. No reasons for dismissal were discussed. Ms. Teague asked Ms. Hackley to give her key to Attorney Leikam, and she did. Ms. Teague than asked Ms. Hackley to delete her CLG email account from her phone while Attorney Leikam observed her doing so, and she did. Inexplicably, Ms. Hackley was not instructed to leave, nor was she instructed to pack up her personal things while a witness observed her doing so. Attorney Leikam testified that she does not know whether Ms. Hackley left the building right away, but believes that she heard Ms. Hackley at her desk for almost an hour after she was fired. Ms. Hackley's desk was just outside of Attorney Leikam's office, but not within her line of sight. Ms. Kalinowski testified that her work station was approximately six feet away from Ms. Hackley's station. Ms. Kalinowski was out to lunch when the termination meeting started in Attorney Leikam's office, but returned before it ended. Ms. Kalinowski testified that when Ms. Hackley left the meeting, she was a little teary-eyed and gave Ms. Kalinowski a hug, telling her she had been fired. Ms. Kalinowski told her she was sorry. Ms. Kalinowski testified that Ms. Hackley went to her work station and was "doing something on the computer," though Ms. Kalinowski could not say if it was work or something else, as she could not see what was on the screen. Ms. Kalinowski said she gave Ms. Hackley "a few minutes," then asked what she was doing, and Ms. Hackley said she was "cleaning things up." (Tr. 110). Ms. Kalinowski told Ms. Hackley she did not think she needed to worry about that, so Ms. Hackley got her things and went outside to wait for her ride. Ms. Kalinowski testified that it was between 2:30 p.m. and 3:00 p.m. when Ms. Hackley left the building.8 Attorney Leikam confirmed that Ms. Hackley was terminated because of performance issues. Ms. Teague agreed, stating that the decision was made to fire Ms. Hackley because of all the errors she continued to make. As such, when Ms. Hackley applied for unemployment compensation, CLG did not contest it. To do so, CLG would have had to show that Ms. Hackley had engaged in gross misconduct, and there was no evidence of that. Despite Ms. Hackley's performance inadequacies recounted by Attorney Leikam, there was no immediate undertaking after Ms. Hackley's termination to audit the files on which she had been working to determine whether there were additional instances in which she failed to complete assigned tasks. That was negligent. Attorney Leikam's acceptance at face value of an internal file notation as sufficient proof that Ms. Hackley completed an assignment just given to her on July 22, 2019, was negligent. Even if Attorney Leikam was unwilling or unable to ask Ms. Hackley before she left the building on July 24, 2019, whether she completed the assignment, there was an easy and simple solution. Attorney Leikam could 8 Among other evidence relied on by Respondent, testimony regarding conversations with Ms. Hackley is hearsay. At the outset of the hearing, the parties were informed that to the extent their evidence constituted or contained hearsay, the hearsay evidence would not be relied on as the sole basis for a finding of fact, whether objected to or not, unless the hearsay would be admissible in a civil action in Florida, i.e., that it would fall within a hearsay exception under the Florida Evidence Code. See § 120.57(1)(c), Fla. Stat. (2019); and Fla. Admin. Code R. 28-106.213(3). The parties were instructed to identify on the record any hearsay exceptions they intended to rely on so that argument could be presented by both parties. Neither party raised a hearsay exception on which they were relying. Accordingly, the testimony regarding conversations with Ms. Hackley is recounted not for the truth of what was said, but rather, to portray an approximate timeline of the events on July 24, 2019. have, and should have, called or emailed counsel for Petitioner to ask whether Respondent's Election of Rights had been submitted. As of July 24, 2019, there were still 16 days remaining—more than two-thirds of the 21-day window—to timely file an Election of Rights. It would have been easy to verify whether the just-fired employee who constantly made errors during her short tenure at CLG had, or had not, made another error on this assignment. Reasonable prudence and due diligence required that Attorney Leikam do so, particularly since she and Ms. Teague, the human resources director, had concluded together earlier that week that the firm could not risk having Ms. Hackley continue to work on their files. Attorney Leikam did nothing to check on the status of Respondent's case until she received the Motion for Waiver on November 6, 2019. Then, with the clarity of belated hindsight, the forces were marshalled as they should have been in late July 2019. Ms. Hackley's emails were searched and audited in November 2019, something that should have been done in late July 2019. And, as would have been confirmed in late July 2019 had the audit been requested then, the resulting audit report was that no email was sent by Ms. Hackley to counsel for Petitioner transmitting Respondent's Election of Rights. Respondent, through counsel, contends that Ms. Hackley's actions and inaction constituted intentional sabotage and, as such, extraordinary circumstances beyond Respondent's control and beyond Attorney Leikam's control that could not have been discovered in the exercise of due diligence. The credible non-hearsay evidence, with reasonable inferences drawn therefrom, does not support a finding that Ms. Hackley engaged in intentional sabotage. Instead, that evidence only establishes that Ms. Hackley did not complete an assignment verbally conveyed to her shortly before she was fired. At most, the evidence supports a finding that she was negligent, as she apparently had been throughout her tenure at CLG. Respondent, through counsel, argues that the entry dated July 23, 2019, in the CLG internal File Notes document by "TH" must have been intentionally made by Ms. Hackley after she knew she was fired, out of anger for being fired, to sabotage Attorney Leikam. Of course, this same entry was considered by Attorney Leikam on July 24, 2019, to be solid evidence that Ms. Hackley, in fact, completed her assignment by emailing the Election of Rights to Petitioner on July 23, 2019. Just as the latter inference was not reasonable, as previously found, the opposite inference of intentional sabotage is not fair, reasonable, or supported by the credible evidence. To begin with, the evidence is inconclusive regarding the timeline. Although Attorney Leikam was fairly specific in recalling the timeline related to Ms. Hackley's termination, she testified only in generalities as to the sequence of events on July 24, 2019, with regard to her investigation to respond to Respondent's telephone message. If anything, the sequence of events suggests that Attorney Leikam discovered the File Notes entry dated July 23, 2019, before Ms. Hackley became aware between 12:00 p.m. and 1:00 p.m. on July 24, 2019, that she was likely going to be terminated. Even if the timing predicate had been established, Attorney Leikam candidly admitted that the only basis for inferring that Ms. Hackley had intentionally falsified the File Notes entry to sabotage her was the fact, discovered in early November, that the File Notes entry was false. Respondent argues that the only reasonable inference from the false entry is that Ms. Hackley intentionally falsified the records. But another equally reasonable, if not more reasonable, inference from the July 23, 2019, entry is that Ms. Hackley may have been trying to respond to the recent criticism of her failure to document events in File Notes, by making an entry before she actually completed the task. The completed Election of Rights had also been scanned and saved to the G:drive, something else that Ms. Hackley had been criticized for not doing. Ms. Hackley may well have intended to follow through by preparing an email to counsel for Petitioner to transmit the already-scanned, already-saved Election of Rights form, but may have gotten sidetracked after making the File Notes entry on July 23, 2019. Had Attorney Leikam asked Ms. Hackley on July 24, 2019, when she saw the July 23, 2019, File Notes entry, the matter may have been resolved. Instead, Ms. Hackley was fired and left the building mid-afternoon on July 24, 2019.9 Respondent, through counsel, also points to the short time that Ms. Hackley was seen at her computer after she was fired, when she was seen doing something for a few minutes before she packed up her things and left. The suggestion is that the only, or most reasonable, inference is that Ms. Hackley must have been making the July 23, 2019, false entry in File Notes out of anger for being fired. Alternatively, the argument is that Ms. Hackley made the false entry between learning of the meeting at which she was pretty sure she was going to be fired and the actual meeting. These arguments are speculative, unsupported by competent substantial evidence, and not proven to be more likely than not. Once again, the suggested inference is not the only possible or reasonable explanation. Another reasonable inference is that Ms. Hackley may have been spending the little time she had at her computer, after learning she would likely be fired, to delete personal emails and/or documents that she did not want to leave behind on her work station. In the absence of supporting evidence, therefore, Respondent's suggested inference is rejected. Before the Board of Nursing, in the response opposing Petitioner's Motion for Waiver filed December 3, 2019, Attorney Leikam represented that the inference that Ms. Hackley had intentionally falsified the July 23, 2019, entry would be supported by evidence showing that in more than 30 other instances at CLG, Ms. Hackley had falsely documented performing work when she had not. (Resp. Ex. 4, ¶ 16). No such evidence was offered at the 9 Neither Respondent's inference nor the alternative inference suggested here is supported by evidence sufficient for a finding of fact. The point here is that Respondent's suggested inference is not the only possible or reasonable explanation for the false entry. In the absence of supporting evidence in the record, the inference offered by Respondent is rejected. hearing. Instead, according to Ms. Teague, Attorney Leikam's suspicion that Ms. Hackley intentionally sabotaged CLG's internal file for Respondent's case was the only time in which there was a suspicion of that kind during her tenure at CLG. She confirmed that Attorney Leikam first expressed her suspicion that the File Notes entry was intentionally falsified when she discovered well after Ms. Hackley was fired that no Election of Rights was filed. That is consistent with Attorney Leikam's testimony: the fact that the entry was false was the basis for inferring that it was intentionally falsified. She admitted she has no proof that Ms. Hackley intentionally falsified or sabotaged CLG's internal records for Respondent's case. As a final argument to bolster the missing evidence of nefarious intent, Respondent, through counsel, asserted that an inference of intentional falsification is supported by other evidence from Ms. Hackley's prior job at the Department of Health. However, to make the desired argument, Respondent mischaracterized the evidence. A fair review of the evidence undermines Respondent's argument. Respondent's argument is based on an excerpt of Ms. Hackley's personnel file from the Department of Health in evidence (subject to the hearsay caveat given at the outset of the hearing). The excerpt includes personnel forms indicating that Ms. Hackley was dismissed on July 29, 2016, from a "regulatory specialist II" career service position. Respondent's PRO asserts that the personnel file excerpt shows that "Ms. Hackley had been previously fired from her employment with the Department for what appears to be falsification of internal documents; specifically timesheets[.]" (Resp. PRO ¶ 49). Respondent's PRO refers to documentation within the personnel file claimed to support "the contention that Ms. Hackley was falsifying her timesheets." (Resp. PRO ¶ 51). Contrary to these characterizations, the personnel file excerpt contains no evidence establishing the reason why Ms. Hackley was dismissed from employment as of July 29, 2016. The documents referred to in Respondent's PRO were what appears to be a single written reprimand memorandum, dated July 14, 2008, plus a few pages containing handwritten notes that appear to relate to timesheets in August 2008. The memorandum indicates that Ms. Hackley was issued a written reprimand on July 14, 2008, for two reasons: attendance, including excessive tardiness; and "errors on your timesheet." (Resp. Ex. 15, Bates page 424). The written reprimand does not state that Ms. Hackley intentionally falsified timesheets; it states that as of July 14, 2008, she was making errors on her timesheets. The last few pages of the personnel file excerpt cannot be characterized at all without a witness to explain what the handwritten notes represent. All that can be gleaned is that information was written down by someone apparently in reference to Ms. Hackley's timesheets during one week in August 2008. Whatever this information represents, it apparently did not result in any formal action such as a written reprimand, which presumably would have been included in the exhibit. Without a witness to explain these documents, they are plainly hearsay with no predicate to support a hearsay exception, and as such, cannot be the sole basis for a finding of fact.10 Importantly, Respondent's PRO fails to point out the eight-year gap in time between the timesheet errors for which Ms. Hackley was apparently reprimanded in July 2008, and her dismissal for unstated reasons in July 2016. The only fair inference is that any attendance and timesheet error problems Ms. Hackley had in 2008 were considered minor and were corrected. Presumably falsification of timesheets, had that occurred in 2008, would have been met with serious disciplinary action such that Ms. Hackley would not have rebounded and continued with no adverse personnel records for an eight-year employment span between 2008 and 2016. 10 The handwritten notes appear to only indicate that Ms. Hackley may have made more errors on her timesheets in August 2008. In an attempt to suggest something worse than mere errors, Respondent's PRO contains a glaring misquote, asserting that one note stated "8-11-08 Now the week 8-1/8-7 has codes but 0 hours! This was faked again today 8-11." (Resp. PRO at 14, ¶ 51) (emphasis added). The quoted note actually ends as follows: "This was faxed again today 8-11." (Resp. Ex. 15, Bates page 00427) (emphasis added). In sum, Respondent mischaracterized a minor disciplinary action in 2008, and compounded that misfire by ignoring the huge time gap between the action and Ms. Hackley's dismissal, to advance an unsupportable claim that the timesheet issue in 2008 was somehow the reason for dismissal in 2016. That effort failed. Ms. Hackley's Department of Health personnel file adds nothing to Respondent's attempt to infer nefarious intent or bolster the claim that Ms. Hackley intentionally falsified CLG's internal records. Regardless of the nature, timing, or intent of Ms. Hackley's File Notes entry, the evidence clearly establishes that there was ample time and opportunity, with the exercise of even a modicum of due diligence, for Attorney Leikem to have discovered before the expiration of the filing period that the Election of Rights had not been filed. The circumstances did not prevent her from timely filing the Election of Rights.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing issue a final order dismissing Respondent's Election of Rights request for a disputed-fact administrative hearing as untimely and not excused under the equitable tolling doctrine. DONE AND ENTERED this 20th day of July, 2020, 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 20th day of July, 2020. COPIES FURNISHED: Dirlie Anna McDonald, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Sara A. Bazzigaluppi, Esquire Chapman Law Group 6841 Energy Court Sarasota, Florida 34240 (eServed) Philip Aaron Crawford, Esquire Department of Health Prosecution Services Unit Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health Bin C-02 4052 Bald Cypress Way Tallahassee, Florida 32399-3252 (eServed) Kathryn Whitson, MSN, RN Board of Nursing Department of Health Bin D-02 4052 Bald Cypress Way Tallahassee, Florida 32399-3252 Louise St. Laurent, General Counsel Department of Health Bin C65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)
Findings Of Fact 9. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on March 18, 2009, and the Amended Order of Penalty Assessment issued on April 7, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
The Issue The issue to be determined is whether the doctrine of equitable tolling should excuse the late filing of a Petition for Administrative Hearing filed with Respondent by Petitioner Florists Mutual Insurance Company.
Findings Of Fact Respondent, the Department, is the state agency charged with resolving disputes over reimbursement for costs of medical services provided to injured workers under workers? compensation law. Petitioner Florists was in a reimbursement dispute with Kendall. The Department issued a Determination that Florists should reimburse Kendall the sum of $100,894.54. Florists received notice of the Reimbursement Dispute Determination on April 8, 2013, via United States Postal Service certified mail. The Reimbursement Dispute Determination included a Notice of Rights advising Florists that a request for an administrative hearing on the Determination had to be received by the Department within 21 days of Florists? receipt of the Determination. It noted in bold print that failure to file a petition within that time period constituted waiver of the right to a hearing. Florists? Initial Petition was sent via certified mail from the Tallahassee office of Petitioner?s counsel located at 1701 Hermitage Boulevard, Suite 103, Tallahassee, Florida, on or about Thursday, April 25, 2013. The filing deadline was the following Monday. The Initial Petition was appropriately addressed to “Julie Jones, CP, FRP, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida.” The Initial Petition was received by the Department on Wednesday, May 1, 2013, at 10:11 a.m. The Department determined that the Initial Petition was untimely, as it was received on the twenty-third day after Florists received notice, making it two days late. Petitioner is a workers? compensation insurance carrier whose substantial interests are affected by Respondent?s Reimbursement Dispute Determination that it must reimburse health care provider Kendall $100,894.54. That determination will become final if Petitioner is determined to have waived its right to a hearing. The distance between the Tallahassee office of Petitioner?s counsel and the office of the Department is approximately four miles. From review of the United States Postal Service tracking information, it appears that after the Initial Petition was mailed, it was processed in Louisville, Kentucky, before it returned to Tallahassee, Florida, for delivery, indicating a journey of some 1,050 miles over the course of six days. Late delivery of the Petition by the United States Postal Service did not prevent Florists from asserting its rights.
Findings Of Fact Six signs were described in a violation notice to Respondent Dandy Signs from Petitioner, Florida Department of Transportation dated July 7, 1977. The notice stated the signs were alleged to be in violation of Chapter 479 and rules 14-10.04; rule 14-10.03. By stipulation of the parties the charges on the signs listed were dropped except for the following two signs: a sign located one mile west of U.S. 1, State Road 44, Mile Post 28.25 with copy "Bob's Sandpiper Restaurant" and a sign located at Junction 17-92 Deland, U.S. Highway 17 (Section 35 Mile Post .02) with copy "Buddy Sheats". The foregoing signs have no permit and evidence was presented to show that each sign is nearer to a permitted sign than 500 feet. The Respondent admits that neither sign has been permitted and that both signs violate the spacing requirements. Respondent was given time to submit evidence that the signs had at one time been permitted, but no evidence was submitted to this hearing officer although the hearing was held in excess of three months before this order is being entered.
Recommendation Remove the subject signs and invoke penalty under Section 479.18, Florida Statutes. DONE and ENTERED this 3rd day of March, 1978. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1978. COPIES FURNISHED: Philip S. Bennett, Esquire Florida Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Dan Richardson, Owner Dandy Signs 324 Flagler Street New Smyrna Beach, Florida 32069
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.
Findings Of Fact The "Stipulated Statement of the Facts" is set out in the order for clarity, but a copy of the Stipulation and the Exhibits is attached hereto and made a part hereof. Stipulated Statement of the Facts Lehigh Acres Properties, Inc. (hereinafter called the Respondent) was originally registered with the Division of Florida Land Sales & Condo- miniums (hereinafter called the Division) on or about February 20, 1967. Respondent's registration was renewed every year through 1972. Respondent renewed its registration in an inactive status for the years 1973 through 1976. Division records reveal that Respondent had failed to renew its inactive registration for the years 1977 and 1978 as required by Section 478.131(2)(b), Florida Statutes (1977). (See attached Exhibit No. (1)). Respondent has sold property utilizing a Guaranteed Agreement for Deed which was approved by the Division as part of Respondent's registra- tion. In the Guaranteed Agreement for Deed, the Respondent promised lot purchasers that the taxes would be paid by the Respondent until the Agree- ment for Deed was paid in full. (See attached Exhibit No. (2)). A search of the Public Records in Hendry County, Florida reveals that Respondent has failed to pay the taxes as promised for the years 1976, 1977 and 1978. (See attached Exhibit No. (3)). As a result of Respondent's failure to renew its registration and pay the taxes on property subject to Agreement for Deed, the Division filed a Notice to Show Cause against Respondent on August 11, 1978. (See attached Exhibit No. (4)). The Notice to Show Cause also alleged that Respon- dent has failed to deliver warranty deeds to various lot purchasers at the completion of the Agreements for Deed as promised. The Division has since determined that those deeds were eventually delivered. Respondent filed a reply to the Notice to Show Cause dated November 7, 1978 alleging that Respondent was no longer engaged in active sales and therefore was not required to be registered. The reply further stated that taxes were paid at such time that individual deeds were due to be issued and that late warranty deeds had in fact been issued. (See attached Exhibit No. (5)). WHEREFORE, the parties agree that these facts be considered by the hearing officer in lieu of the administrative hearing scheduled for February 6, 1980 and that an appropriate recommended order be entered.
Recommendation Based on the foregoing Findings and Conclusions of Law the Hearing Officer recommends that a penalty be imposed against the Respondent, Lehigh Acres Properties, Inc., in the amount of $5,000 for failure to pay taxes on properties sold under the Agreements for Deed. The Hearing Officer also recommends that the registration of Respondent be revoked if renewal fees and penalties required by statute for delinquent registration are not paid within thirty (30) days from the date of final order. DONE and ORDERED this 1st day of April, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Andrew C. Hall, Esquire Suite 200, Brickell Concours 1401 Brickell Avenue Miami, Florida 33131 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, Petitioner, CASE NO. 78-2207 LEHIGH ACRES PROPERTIES, INC., Respondent. /
The Issue The issue to determine in this matter is whether equitable tolling applies to excuse Respondent Mac Mar, LLC’s, late-filed petition for administrative review.
Findings Of Fact The Department is the state agency charged with enforcing the requirement of chapter 440, Florida Statutes, that employers in Florida secure workers’ compensation insurance coverage for their employees. See § 440.107(3), Fla. Stat. Respondent is a corporation located in Clermont, Florida, engaged in the roofing industry. On March 5, 2018, Department Investigator Keith Howe conducted a workers’ compensation compliance check at a residence located in Daytona Beach, Florida, where Petitioner was installing a new roof. The purpose of Mr. Howe’s visit was to determine whether Petitioner had workers’ compensation coverage for its employees, as required under chapter 440. Mr. Howe made a preliminary determination that persons working at the residence were not covered by workers’ compensation insurance. After Mr. Howe’s visit, on March 6, 2018, the Department issued and served on Respondent (via hand-delivery) a Stop-Work Order and Request for Production of Business Records for Penalty Assessment Calculation. The Stop-Work Order alleged that Respondent failed to secure the payment of workers’ compensation insurance for those individuals at the Daytona Beach worksite, in violation of sections 440.10(1), 440.38(1), and 440.107(2). On June 27, 2018, the Department served Respondent with the Amended Order via certified mail. The Amended Order includes two deadlines. The deadline referenced on the first page of the Amended Order states: Pursuant to Rule 69L-6.028, Florida Administrative Code, if the Division imputes the employer’s payroll, the employer shall have twenty days after service of the first amended order of penalty assessment to provide business records sufficient for the Division to determine the employer’s payroll for the period requested in the business records request for the calculation of the penalty. The employer’s penalty will be recalculated pursuant to subsection 440.107(7)(d), F.S., only if the employer provides all such business records within the twenty days after service of the first amended order of penalty assessment. Otherwise, the first amended order of penalty assessment will remain in effect. The Amended Order’s other deadline is found in the “Notice of Rights” on the second page, and states: You must file the petition for hearing so that it is received within twenty-one (21) calendar days of this agency action. The petition must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399- 0390. FAILURE TO FILE A PETITION WITHIN THE TWENTY- ONE (21) DAYS OF RECEIPT OF THIS AGENCY ACTION CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THE AGENCY ACTION. Ms. Anderson, who previously served as an attorney for the Department, testified that the Department assigned her to a separate workers’ compensation matter involving Respondent (case 18-069-D7). Ms. Anderson testified that she contacted Ms. Lairsey, Respondent’s chief operating officer, on July 20, 2018, to discuss whether Respondent would agree to waive the 21- day deadline to file the petition in that matter. By that date more than 21 days had already passed from Respondent’s receipt of the Amended Order. Ms. Lairsey’s testimony confirms this conversation. Ms. Lairsey testified that she returned Ms. Anderson’s call, to discuss case 18-069-D7, as well as the instant case. At the time and date of this phone call, Respondent had not filed a petition for relief in the instant case, and the Department had therefore not assigned it to a Department attorney. During this telephone conversation, both Ms. Anderson and Ms. Lairsey testified that they discussed the potential for settlement in case 18-069-D7, and that Ms. Lairsey asked Ms. Anderson if the Department would consider consolidating that case with the instant case. Ms. Anderson testified that, during this telephone conversation, she was unaware of the instant case because Respondent had not yet filed a petition. After reviewing the Department’s database, Ms. Anderson testified that she discovered the Amended Order, but noted to Ms. Lairsey that Respondent had not yet filed a petition, and that if it did, the Department would consider it to be beyond the 21-day deadline, and thus late. Ms. Lairsey’s testimony is consistent with Ms. Anderson’s testimony concerning the discussion of the presumed lateness of the yet-to-be-filed petition in the instant case. Ms. Lairsey testified: So I understood that I was going to be late with the petition, or actually, I didn’t realize—I don’t remember—I didn’t know until that time that I was going to be late, but I wanted to know if I could get an extension of time or somehow find out a way to respond with why it was going to be late because of all the documentation that I needed to create the response. Ms. Anderson testified that she explained to Ms. Lairsey that because the Department would consider a petition in the instant case to be late-filed, it would issue an order to show cause, which “would give her a chance to respond to the Department and tell us why she believed her petition was late and to see if any of those reasons would amount to anything under the law where the Department could, in fact, look at the petition.” Ms. Lairsey testified that she believed that Ms. Anderson told her that a “response” would be accepted after the filing deadline. Ms. Lairsey also testified that she needed to obtain, review, and provide documentation concerning the allegations in the Amended Order to provide the Department with an “honest answer.” Ms. Lairsey also testified that she did not understand the deadlines stated in the Amended Order, although she ultimately testified, “Yes. I knew that it was—this is the one that was the 21 days from filing[.]”1/ Ms. Anderson testified that Respondent’s deadline for filing a petition in the instant matter was July 18, 2018. The undersigned finds that the Department served the Amended Order by certified mail that was received on June 27, 2018, and that July 18, 2018, is 21 days after the service of the Amended Order. The Department received Respondent’s petition for hearing on July 25, 2018, which was seven days after the filing deadline.2/ Thereafter, on August 7, 2018, the Division issued an Order to Show Cause, providing Respondent 21 days to show cause why the petition should not be dismissed as untimely, and to address whether any basis existed for the Department to equitably toll the 21-day deadline for filing the petition. On August 28, 2018, Respondent responded to the Order to Show Cause. The response states, in part: In this instance, there is sufficient evidence to support equitable tolling. Amanda Lairsey, Chief Operations Officer of MAC MAR, LLC, has been in continuous contact with the Division of Worker’s Compensation regarding matters that had arisen with MAC MAR, LLC. Specifically, Ms. Lairsey had been in communication with Taylor R. Anderson, Attorney for Workers Compensation. It is imperative that it be stressed in abundant clarity that MAC MAR, LLC does not believe that there was any responsibility or inaction or inappropriate action undertaken by Attorney Anderson. In Ms. Lairsey’s experience, she had been extremely helpful and professional in helping MAC MAR, LLC resolve its issues for which she was representing the Division. No representative of the Division was appointed or communicated for MAC MAR, LLC for the present matter. When Ms. Lairsey received the amended Order of Penalty Assessment on June 27, 2018, she asked Attorney Anderson whether or not she could be the assigned representative for the Division in this matter and explained that MAC MAR, LLC would need additional time to provide adequate information to the Division. Attorney Anderson indicated that she could not be the representative. Attorney Anderson stated that Ms. Lairsey would need to respond to the Order and that, if she failed to do so timely, that MAC MAR, LLC would receive a letter (which is apparently the Order to Show Cause) and would have to explain why it was filed untimely. Although it is apparent now that Attorney Anderson was properly communicating the requirements, Ms. Lairsey understood the statement to mean that MAC MAR, LLC could respond, and if it failed to do so timely, an explanation would be sufficient. Although it appears that it was not Attorney Anderson’s intention to lull Ms. Lairsey into thinking she could respond even if it was untimely, that is the unfortunate effect of Ms. Lairsey’s understanding of the communication from Ms. Anderson. Ms. Lairsey is not an attorney and did not appreciate the significance of the requirements of Equitable Tolling. The undersigned finds that Ms. Lairsey’s testimony at the final hearing contradicts Respondent’s response to the Order to Show Cause. Ms. Lairsey testified that she understood that Respondent’s petition in the instant matter was late. She testified that she did not understand the deadlines contained in the Amended Order, although Respondent apparently was able to timely file a petition in case 18-069-D7. And, Ms. Lairsey testified that she was aware that she would have an opportunity to respond to the Department’s Order to Show Cause to explain why the Respondent was filing a late petition--not that she believed she had the opportunity to have the Department accept a late- filed petition. Ms. Lairsey testified that she needed additional time to obtain, review, and provide documentation concerning the allegations in the Amended Order, in order to submit an accurate petition. However, the undersigned finds that Florida Administrative Code Rule 28-106.2015(5)(a) through (e) sets forth the substantive requirements for a petition for hearing. The subsections of this rule do not require a respondent to submit or identify documents or records relevant to the dispute. The undersigned finds that neither the Department nor Ms. Anderson lulled Respondent into inaction. Rather, the evidence adduced at hearing demonstrated that Ms. Anderson adequately explained to Ms. Lairsey that any petition filed in this matter was beyond the filing deadline, which Ms. Lairsey acknowledged she understood. Ms. Anderson explained that if Respondent filed a petition beyond the deadline, it would have an opportunity to respond to an Order to Show Cause, which it did. The undersigned further finds that Respondent has provided no evidence that it was, in some extraordinary way, prevented from exercising its rights, or that it timely asserted its rights mistakenly in a wrong forum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned RECOMMENDS that the Department dismiss Respondent’s petition for hearing as untimely. DONE AND ENTERED this 31st day of May, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 31st day of May, 2019.
The Issue The issue is whether Petitioner, U.S. Builders, L.P. (USB), timely and effectively requested a final hearing on the issues related to the Order of Penalty Assessment issued by the Department of Financial Services, Division of Workers’ Compensation (Department) in accordance with the requirements of Chapter 120.57, Florida Statutes.
Findings Of Fact USB is a general contractor engaged in the construction industry and is properly registered to conduct business in the State of Florida. The Department is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation coverage for the benefit of their employees and corporate officers. § 440.107, Fla. Stat. On May 30, 2007, Department Investigator Teresa Quenemoen conducted an investigation or compliance check of USB to determine liability for workers’ compensation coverage. As a result of that investigation, an Order of Penalty Assessment was issued on June 18, 2007, assessing USB a penalty in the amount of $14,983.95. Attached on the opposite side of the page from the Order was a Notice of Rights directing the recipient how to properly respond if he wished to contest the penalty. Quenemoen received a letter, dated June 21, 2007, from J. Roland Fulton, President of USB, which states that he “strongly disagrees” with the Department’s allegations that USB failed to secure adequate workers’ compensation coverage and he wants to “resolve” the matter and “void the Order of Penalty.” If the Department could not make that happen, he wanted to have the “Appeal Procedures.” In a consultation with her Supervisor, Robert Lambert, regarding how to respond to Fulton’s letter, Quenemoen was advised to immediately contact USB and advise them of the Notice of Rights and timeline requirements for any petition they may wish to file. This conversation took place well within the 21-day period for request of formal administrative proceedings. Quenemoen was also advised to provide a copy of the Notice of Rights to USB. Quenemoen, however, delayed taking any action until she contacted USB via letter on August 3, 2007, after the expiration of the timeline requirements for timely filing which occurred on July 9, 2007. Quenemoen indicated within her August 3, 2007 letter to USB that the original date of the Order was the operative date. Robert Lambert testified that the June 21, 2007, letter of USB’s president contained most of the requirements considered necessary for the letter to have been viewed as a petition for administrative proceedings and would have been so considered had the words “Petition for Hearing” appeared at the top of the page. He is also unaware of any prejudice that would result to the Department if the matter of penalty assessment against USB were permitted to proceed to a hearing on the merits of the matter. Quenemoen, in her deposition, opines she did not consider the June 21, 2007, letter to be a petition because she thought it lacked crucial items, such as an explanation of how the party’s substantial interests would be affected by the agency’s decision; disputed items of material fact; and a concise statement of ultimate facts alleged. Quenemoen’s August 3, 2007 letter to USB, inquired why USB had neither paid their penalty nor entered into a Payment Agreement Schedule for Periodic Payment of Penalty, pursuant to Section 440.107, Florida Statutes. The letter re-informed USB that it had 21 days from the receipt of the original Order of Penalty Assessment to file a petition for hearing. On August 23, 2007, the Department received a Petition for Hearing from USB’s counsel. The Department determined the Petition filed by USB met the content criteria but failed on timeliness as it was filed more than forty days past the deadline of July 9, 2007. USB, through the testimony of its President, Mr. Fulton, admitted that he was not “familiar with the law. I did not go look it up.” He also said, “I did not think I needed to go back and consult the textbook of the law.” When asked if he ever decided to consult with a lawyer during the 21-day period, he stated he did not.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Financial Services enter a Final Order that Petitioner, U.S. Builders, L.P. (USB), timely and effectively requested a final hearing on the issues related to the Order of Penalty Assessment issued by the Department of Financial Services, Division of Workers’ Compensation (Department) in accordance with the requirements of Chapter 120.57, Florida Statutes, and proceed forthwith with provision of such proceedings. DONE AND ENTERED this 30th day of April, 2008, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 30th day of April, 2008. COPIES FURNISHED: William H. Andrews, Esquire Coffman, Coleman, Andrews and Grogan, P.A. Post Office Box 40089 Jacksonville, Florida 32203 Marc A. Klitenic, Esquire Kandel, Klitenic, Kotz and Betten, LLP 502 Washington Avenue Suite 610 Towson, Maryland 21204 Kristian E. Dunn, Esquire Anthony B. Miller, Esquire Department of Financial Services Division of Workers’ Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Daniel Y. Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 The Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
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
The Issue Whether Respondent violated the provisions of chapter 440, Florida Statutes (2014),1/ by failing to secure the payment of workers’ compensation as alleged in the Stop-Work Order and 2nd Amended Order of Penalty Assessment, and, if so, what penalty is appropriate.
Findings Of Fact The Department is the state agency responsible for the enforcement of the workers’ compensation insurance coverage requirements established in chapter 440. On June 1, 2015, Investigator Abedrabbo conducted a random workers' compensation compliance check at 11422 North 56th Street, Tampa, Florida 33617. During the course of the compliance check, Investigator Abedrabbo observed two individuals installing a stone façade on a building that was under construction at the identified address. It is undisputed that the two individuals observed by Investigator Abedrabbo were, at the time of observation, employed by Respondent. In support of its 2nd Amended Order of Penalty Assessment, the Department prepared a penalty calculation worksheet showing a total penalty owed of $17,274.30.3/ Respondent does not challenge the accuracy or method of calculating the assessed penalty, but only asserts that the penalty is “too high” and the company cannot afford to pay it.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order finding that Respondent, Cortes Pre Cast Stone and Foam Corp, violated the provisions of chapter 440 by failing to secure the payment of workers’ compensation and assessing against Respondent a penalty in the amount of $17,274.30. DONE AND ENTERED this 18th day of February, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 18th day of February, 2016.
