06-002648 J And A Framing, Inc. vs. Department Of Financial Services, Division Of Workers' Compensation Status: Closed Recommended Order on Friday, February 2, 2007.

Summary: Petitioner failed to prove that equitable tolling should apply in order to permit it to file an untimely petition to challenge the SWO and AOPA. The petition was more than 100 days late. Petitioner turned a "blind eye" toward the Notice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

J AND A FRAMING, INC., )

)

Petitioner, )

)

vs. ) Case No. 06 - 2648

)

DEPARTMENT OF FINANCIAL )

SERVICES, DIVISION OF WORKERS' )

COMPENSATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

before Daniel M. Kilbride, Administrative Law Judge of the

Division of Administrative Hearings, on October 24, 2006, in

Orlando, Florida.

APPEARANCES

For Petitione r: Dan N. Godfrey, Esquire

1200 North Central Avenue, Suite 209

Orlando, Florida 34741

For Respondent: John M. Iriye, Esquire

Department of Financial Services

Division of Workers' Comp ensation

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to file a Petition for

hearing to challenge the Stop - Work Order (SWO) and Amended Order

of Penalty Ass essment (AOPA) more than 21 days from the date of

the SWO and the AOPA?

PRELIMINARY STATEMENT

On March 3, 2006, more than 120 days after the SWO and AOPA

were issued, Petitioner filed its Petition requesting permission

to file an untimely petition to chall enge the SWO and AOPA.

Respondent referred the matter to Division of Administrative

Hearings for a formal hearing on the limited issue of whether

the Petition should be considered on the merits, although it was

late filed. Discovery ensued.

At the final hearing, Petitioner presented the testimony of

Marisol Hernandez, Jorge Bernales, and Elisa Barron; and

Petitioner's Exhibits numbered 1 and 2 were received into

evidence. Respondent presented the testimony of Jorge Bernales

and Elisa Barron; the depositi on of Joseph Higgins was received

into evidence; Respondent's Exhibit numbered 1 was received into

evidence. The parties jointly submitted Joint Exhibits numbered

1, 2, and 3, which were received into evidence.

The Transcript of the proceeding was filed o n December 11,

2006. Respondent timely filed its proposed findings of fact and

conclusions of law. Petitioner has not filed its proposals as

of the date of this Recommended Order.

FINDINGS OF FACT

Based on the evidence presented at the final hearing, t he

following findings of fact are made:

1. Respondent is the state agency charged with the

responsibility of enforcing the requirement that employers, in

Florida, secure workers' compensation insurance coverage for

their employees. § 440.107 (3) Fla. Sta t. (2005). 1

2. Petitioner, J and A Framing, Inc., during all times

relevant to these proceedings, is a Florida for profit

corporation, and is authorized to do business in this state.

3. On October 20, 2005, Respondent's Investigator

personally served a R equest for Production of Business Records

on a representative of Petitioner. On October 26, 2005,

Respondent's Investigator personally served a SWO on Jorge

Bernales, President of Petitioner. The SWO contained a Notice

of Rights, on the second page, advi sing Petitioner, in bold

print, that it had 21 days within which it may file a petition

challenging the SWO.

4. On October 31, 2005, Respondent's Investigator

personally served an Amended Order of Penalty Assessment (AOPA)

on Jorge Bernales, President of Petitioner, which also contained

a Notice of Rights, on the second page, advising Petitioner, in

bold print, that it had 21 days within which to file a petition

challenging the AOPA.

5. Marisol Hernandez, Bernales' girlfriend, who reads and

speaks English fluently, was present when Respondent's

Investigator served Bernales with the SWO and the AOPA.

6. Petitioner filed its Petition with Respondent on

March 6, 2006, which is more than 120 days from the date of the

SWO and AOPA.

7. Jorge Bernales testified that he was Petitioner's only

corporate officer. Marisol Hernandez stated her only

relationship with Petitioner was as the girlfriend of Jorge

Bernales, its President, and that she is carrying Bernales'

unborn child, and his income pays her rent and util ities. She

was not employed by Petitioner. Counsel for Petitioner elicited

testimony from Hernandez that she did "nothing" for the company

and was not an employee or officer of Petitioner.

8. The testimony of Bernales and Hernandez conflicts with

the c orporate records, admitted in evidence as a joint exhibit,

and filed with the Florida Secretary of State, Division of

Corporations. The accuracy of the corporate records has not

been challenged.

9. It is found that, the corporate records are more

credibl e than the testimony of Bernales and Hernandez.

Effective October 27, 2005, Hernandez was listed as the Vice

President and therefore, was an employee of Petitioner. At all

times material hereto, Bernales was the President and an

employee of Petitioner.

1 0. Petitioner's President and Vice President

(collectively, "Officers") met with the Respondent's

Investigator on several occasions.

11. During their first meeting, Respondent served the

Request for Production of Business Records (BRR) on Bernales.

12. During Petitioner's second meeting with Respondent,

Bernales and Hernandez were presented and received the SWO.

Hernandez was able to read the Notice of Rights on the SWO, and

did so at the final hearing when she read aloud, "[f]ailure to

file a petition within 21 days of receipt of this Stop - Work

Order constitutes a waiver of your right to request a hearing."

13. During Petitioner's third meeting, the Officers

received the AOPA. The Officers had every opportunity to read

the AOPA, which contains a bold Notice of Rights, virtually

identical to the one on the SWO.

14. Bernales concentrated on raising enough money to pay

the penalty. Bernales approached several banks, friends, and

family members to get enough money in order to put a ten percent

down payme nt on the assessment. Unable to secure sufficient

funds, Bernales offered to pay Respondent a lesser amount in

exchange for lifting the SWO. This request was denied.

15. Bernales could understand and speak the English

language, but was unable to read En glish. He knew and was

present when Hernandez read and spoke English. Bernales did not

seek Hernandez's assistance in understanding the SWO or the

AOPA. Hernandez had actual possession of the SWO and the AOPA,

but chose to read neither.

16. The Officer s went to Elisa Barron, Petitioner's

accountant, to gather documents responsive to BRR. Both knew

she could read and write English. Barron assisted Petitioner in

collecting the documents requested on the BRR. Neither Officer

asked Barron to assist them in understanding the terms of the

SWO or the AOPA. Furthermore, the Officers had the SWO and AOPA

with them, but did not show the SWO or the AOPA to Barron while

they were at Barron's office.

17. The Officers testified they were unable to recall

whether Barron advised them to seek an attorney regarding the

penalty assessment. However, Barron testified she advised

Bernales to seek an attorney listed in the local Spanish

language newspaper. Barron gave Bernales a copy of the

newspaper. Barron's testimony is credible.

18. In January 2006, Bernales retained Dan N. Godfrey,

Esquire, to advise the company regarding the instant matter.

Even after receiving the advice of counsel, Bernales waited

until March 3, 2006, to request permission to file an untimely

p etition.

19. On March 3, 2006, Petitioner filed a Petition for

Hearing with Respondent requesting permission to file an

untimely petition to challenge the SWO and AOPA.

20. Petitioner presented no credible evidence that

Respondent, or any of its employee s, misled Petitioner or lulled

it into inaction.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the subject matter, and the parties of this

proceeding, pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

22. The Officers, Jorge Bernales and Marisol Hernandez,

were officers and employees of Petitioner during all times

relevant to this matter. § 607.01401(10), Fla. Stat.

23. "Unless otherwise provided by law, persons seeking a

hearing on an agency decision w hich does or may determine their

substantial interests shall file a petition for hearing with the

agency within 21 days of receipt of written notice of the

decision." Fla. Admin. Code R. 28 - 106.111.

24. The Petition for Hearing is being considered as a

r equest for the application of the doctrine of equitable tolling

of the time limits for filing the petition. Equitable tolling

may be raised "as a defense to the untimely filing of a

petition." § 120.569(2)(c), Fla. Stat. (2006).

25. To prevail in this m atter Petitioner must demonstrate

that Respondent misled or lulled it into inaction, by not filing

a timely petition to challenge the SWO and AOPA. Machules v.

Department of Administration , 523 So. 2d 1132, 1134 (Fla. 1988).

26. The legal doctrine of "[e ]quitable tolling is not

available if the claimant has failed to exercise due diligence

in preserving his or her legal rights, whether the delay is

attributable to the plaintiff's attorney, the plaintiff's

excusable neglect, or the plaintiff's lack of lega l knowledge."

51 Am. Jur. 2d Limitation of Actions § 177 (2006) (footnotes

omitted); Jancyn Mfg. Corp. v. State, Dept. of Health , 742 So.

2d 473, 476 (Fla. 1st DCA 1999) (refusing to apply equitable

tolling doctrine where the Department did not mislead th e other

party but "was the result of appellant's own inattention");

Vantage Healthcare Corp. v. Agency for Health Care Admin. , 687

So. 2d 306 (Fla. 1st DCA 1997) (reversing an agency's decision

to apply equitable tolling when a license application was

rece ived one day late and no facts supported application of the

doctrine); Environmental Resource Associates of Florida, Inc. v.

State, Dept. of General Services , 624 So. 2d 330 (Fla. 1st DCA

1993) (finding equitable tolling is not established when a

petition is mailed on the 21st day, but not received by the

agency until four days later ) .

27. Petitioner must prove by a preponderance of evidence

that the doctrine of equitable tolling applies to this situation

in order to permit it to file a petition more than 21 days from

the date of the SWO and AOPA.

28. Respondent's reliance on Goodwin v. Blu Murray

Insurance Agency , 939 So. 2d 1098 (Fla. 5th DCA 2006) and

Crutcher v. School Board of Broward County , 834 So. 2d 228 (Fla.

1st DCA 2003) is misplaced. The burde n of proof in equitable

estoppel cases is different from the equitable tolling doctrine.

29. Petitioner failed to file a timely petition

challenging the SWO and the AOPA due to its own lack of due

diligence and its inattention. Furthermore, Petitioner

vo luntarily waived its right to challenge the SWO and the AOPA

because it turned a "blind eye" toward the Notice of Rights on

the SWO and the AOPA. Lawson v. State , 941 So. 2d 485 (Fla. 5th

DCA 2006) (finding defendant committed a willful violation when

tur ning a "blind eye" toward the terms and conditions of

probation).

30. Based on the findings of fact above, Petitioner has

failed to meet its burden of proving by a preponderance of the

evidence that equitable tolling should apply to permit it to

file an u ntimely petition to challenge the SWO or the AOPA.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that:

The Department of Financial Services, Division of Workers'

Compensation, enter a final order dismissin g the Petition, which

requests permission to file an untimely petition challenging the

SWO and the AOPA.

DONE AND ORDERED this 2nd day of February, 2007, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administ rative 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 Admini strative Hearings

this 2nd day of February, 2007.

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes

(2005), unless otherwise indicated.

COPIES FURNISHED :

John M. Iriye, Esquire

Department of Financial Services

Division of Worker s' Compensation

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

Dan N. Godfrey, Esquire

1200 North Central Avenue, Suite 209A

Kissimmee, Florida 34741

Daniel Sumner, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Ta llahassee, Florida 32399 - 0300

Honorable Alex Sink, Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.