13-003338RU Po Boys, Inc. vs. Department Of Financial Services, Division Of Workers' Compensation Status: Closed DOAH Final Order on Thursday, September 26, 2013.

Summary: Petitioner cannot collaterally attack result of a section 120.57(1) proceeding. Any assertions that 120.57(1)(e) applies should have been raised in the underlying case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PO BOYS, INC. ,

Petitioner ,

vs. Case No. 13 - 3338RU

DEPARTMENT OF FINANCIAL

SERVICES, DIVISION OF WORKERSÓ

COMPENSATION ,

Respondent .

/

FINAL ORDER OF DISMISSAL

This cause came before the undersigned on RespondentÓs

Motion to Dismiss Petition (Motion). Petitioner filed a

R esponse in opposition to the Motion.

On September 4, 2013, Petitioner, Po Boys, Inc., filed a

pleading entitled Rule Challenge of an Unadopted Agency Rule

(the Petition). The case was initially assigned to

Administrative Law Judge F. Scott Boyd. Judge Boyd had presided

over a related section 120.57(1) , Florida Statutes, proceeding

and had entered a Recommended Order which was subse quently

adopted by the Department of Financial Services . DepÓt of Fin.

Servs., Div. of Worker s Ó Comp. v. Po Boys, Inc. , Case No. 13 -

0605 (Fla. DOAH May 23, 2013; Fla. DFS , July 30, 2013 ) .

Petitioner filed a Motion to Disqualify , which was granted

by Ju dge Boyd. The case was reassigned to the undersigned.

On September 18, 2013, Respondent, the Department of

Financi al Services, Division of Worker s Ó Compensation (the

Department) , filed a Motion to Dismiss Petition, asserting that

this purported challenge to an unadopted rule should be

dismissed because Ðit is nothing more than a challenge to a

ruling, the proper remedy for which is a plenary appeal which

Petitioner has forsaken.Ñ The Department argues that this case

is no more than a collateral attack on the Final Order from the

underlying 120.57(1) case, and an appeal pursuant to

section 120.68 should have been filed if Petitioner was

dissatisfied with the outcome. The undersigned agrees.

At first reading, this case appears to be a rule challenge

filed pursuant to section 120.56(4). However, upon closer

review, the Petition does not reference section 120.56(4), nor

does it include the required elements set forth in that statute.

Instead, the Petition incorre ctly cites as authority

section 120.57(1)(e) .

PetitionerÓs reliance on section 120.57(1)(e) is misplaced

in this proceeding. That provision places a duty on the

administrative law judge not to Ðbase agency action that

determines the substantial interests of a party on an unadopted

rule.Ñ £ 120.57 (1)(e)1. This duty is within the context of a

section 120.57(1) proceeding, which, in this instance, has

conclu ded and has not been appealed.

The Petition challenges the Fourth Amended Order of Penalty

Assessment, which was the direct result of the under lying 120.57

case, and expressly seeks the Ðrevoc ationÑ of the accompanying

Stop - Work Order. Even if the Petition was properly pled and was

not essentially seeking to revisit the underlying 120.57(1)

case, this reme dy is unavailable under section 120.56(4 ).

Upon consideration of the above, the undersigned finds that

allowing amendment to the Petition would be futile, as the

defects in the Petition are not curable. See Undereducated

Children of Fla. v. Fla. Senate et al. , 700 So. 2d 66 (Fla. 1st

DCA 1 997).

Accordingly, it is

ORDERED:

1. The DepartmentÓs Motion to Dismiss Petition is granted.

2. The hearing scheduled for October 7, 2013, is canceled.

3. This case is hereby dismissed.

DONE AND ORDERED this 26th day of September , 2013 , in

T allahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850 ) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of September , 2013 .

COPIES FURNISHED :

Kristian Eiler Dunn, Esquire

Dickens and Dunn, P.L.

517 East College Avenue

Tallahassee, Florida 32301

Michael Davidson, Esquire

Department of Financial Services

Larson Building

200 East Gaines Street

Tallahassee, Florida 32399

Julie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahasse e, Florida 32399 - 0390

(eServed)

P. Kathlyne Jameson, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0307

(eServed)

Ken Plante, Coordinator

Joint Admin istrative Proceedures Committee

Room 680, Pe pper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Liz Cloud, Program Administrator

Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO JUDICIAL REV IEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency Clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellat e District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.