14-000540 Susan G. Berg vs. Department Of Management Services, Division Of State Group Insurance Status: Closed Recommended Order on Friday, February 28, 2014.

Summary: Request for hearing was not filed within the required 21 days from the Department's preliminary decision.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSAN G. BERG ,

Petitioner ,

vs. Case No. 14 - 0540

DEPARTMENT OF MANAGEMENT

SERVICES , DIVISION OF STATE

GROUP INSURANCE,

Respondent .

/

RECOMMENDED ORDER OF DISMISSAL

This cause came before the undersigned on RespondentÓs

Motion to Dismiss filed February 10, 2014, and PetitionerÓ s

Response to Motion to Dismiss filed February 11, 2014.

APPEARANCES

For Petitioner: Susan G. Berg

11143 Pine Ridge Road

Leesburg, Florida 34788

For Respondent: Sonja P. Mathews, Esquire

Department of Management Services

Office of the General Counsel

4050 Esplanade Way , Suite 160

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether PetitionerÓs request for hearing was timely filed

or should otherwise be accepted by the De partment of Management

Services and th e Division of Administrative Hearings .

PRELIMINARY STATEMENT

T his case was initiated after the Department of Management

Services, Division of State Group Insurance (Department or

Respondent) issued a notice (Notice) setting forth its

[preliminary] determi nation to deny PetitionerÓs Level - II Appeal

regarding PetitionerÓs request to cancel her dental plan and

receive reimbursement for associated costs . Thereafter,

Petitioner filed a p etition for a f ormal h earing (Petition) ,

which was referred to the Divisi o n of Administrative Hearings

(DOAH) on February 4, 201 4 . The undersigned issued an Initial

Order in this case on February 4, 2014.

On February 10, 2014 , Respondent filed a Motion to Dismiss

(Motion) alleging that the Petition was untimely filed.

Attached to the Motion were a copy of the Notice ; a copy of the

certified mail receipt of the Notice that was date - stamped

May 14, 2013 ; and a copy of the Petition bearing the

DepartmentÓs June 5, 2013, date - stamped filing date .

Petitioner Ós response (Response) t o the Motion does not dispute

the alleged date that she received the Notice or the date that

her Petition was filed with the Department. Rather,

PetitionerÓs Response asserts that Petitioner mailed her

Petition to the Department by certified mail on June 1, 2013,

and the post office receipt reflects that June 3, 2013, was the

Ðexpected date of delivery.Ñ PetitionerÓs Response further

argues that if the Memorial Day of M ay 27th is excluded from the

21 - day filing deadline period, her Petition was timely fil ed.

T he Motion and Response, together with the attached

exhibits of each, show that PetitionerÓs Petition request ing an

administrative h earing was filed with the Department beyond the

21 - day perio d required by the Notice and Florida Administrative

Code Ru le 60P - 1.004.

Having reviewed the matter fully, accepting all of

PetitionerÓs allegations as true, and having considered the

allegations in the manner most favorable to the Petitioner, for

the reasons set forth below it is concluded that, as a matter of

l aw, the request for formal hearing should be dismissed as

untimely, and the Department of Management Services should enter

a final order consistent with its notice of proposed agency

action.

FINDINGS OF FACT

1. On May 14 , 2013 , Petitioner received the Not ice ,

consisting of the DepartmentÓs le tter denying PetitionerÓs Level -

II Appeal in which Petitioner had requested cancellation of her

dental plan and reimbursement of associated costs.

2. The N otice included a notice of rights advising

Petitioner that s he could request an administrative hearing by

filing a request for hearin g within 21 - calendar days of her

receipt of the Notice .

3. Memorial Day was observed as a national holiday in the

United States on May 27, 2013. There are no facts or

circumstances in this case, however, indicating that the 21 - day

period for filing a request for administrative hearing was tolled

or suspended because of Memorial Day.

4 . Not counting the May 14 , 201 3 , date of receipt of the

N otice, the 21 st day for filing a request fo r hearing fell on

Tuesday, June 4, 201 3 .

5 . Petitioner mailed her Petition request ing a hearing on

June 1 , 201 3.

6. PetitionerÓs receipt from the post office reflects an

expected delivery date of June 3, 2013. PetitionerÓs Petition ,

however, was not rec eived by the Department until June 5 , 201 3 .

7 . There is no indication that Petitioner sought or was

granted an extension of the 21 - day period within which to seek an

administrative hearing from the date of her receipt of the

Notice.

CONCLUSIONS OF LAW

8 . The Division of Administrative Hearings has jurisdiction

over the parties to and subject matter of this proceeding

pursuant to s ections 120.569 and 120.57(1), Fla. Stat. (201 3 ). 1/

9 . Respondent cites to Florida Administrative Code Rule

60P - 1.004 as suppo rt for the dismissal of the request for

hearing. That rule provides that:

Any party whose substantial interests have

been or will be determined by a decision or

intended decision of the Division of State

Group Insurance and who desires to contest

the age ncyÓs decision or intended decision

shall submit a petition for an

administrative hearing that complies with

Rule 28 - 106.201, F.A.C., if there is a

dispute of material fact, or Rule 28 -

106.301, F.A.C., if there is no dispute of

material fact. The petition must be

received by the agency clerk of the

Department within twenty - one (21) calendar

days after notice of the decision or

intended decision is received by the party.

The clerkÓs address is Office of General

Counsel, Department of Management Services,

4 050 Esplanade Way, Tallahassee, FL 32399 -

0949. Proceedings shall be conducted

pursuant to Chapter 120, Florida Statutes,

and Rule Chapter 28 - 106. (emphasis add ed).

10 . Florida Administrative Code Rules 28 - 106.111(2) - (4)

provide:

(2) Unless otherwise provided by law,

persons seeking a hearing on an agency

decision which 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.

(3) An agency may, fo r good cause shown,

grant a request for an extension of time for

filing an initial pleading. Requests for

extension of time must be filed with the

agency prior to the applicable deadline.

Such requests for extensions of time shall

contain a certificate t hat the moving party

has consulted with all other parties, if

any, concerning the extension and that the

agency and any other parties agree to or

oppose the extension. A timely request for

extension of time shall toll the running of

the time period for fi ling a petition until

the request is acted upon.

(4) Any person who receives written notice

of an agency decision and who fails to file

a written request for a hearing within 21

days waives the right to request a hearing

on such matters . This provision does not

eliminate the availability of equitable

tolling as a defense.

1 1 . Florida Administrative Code Rule 28 - 106.104(1)

provides:

In construing these rules or any order of a

presiding officer, filing shall mean

received by the office of the agency cle rk

during normal business hours or by the

presiding officer during the course of a

hearing.

1 2 . Section 120.569(2)(c), Fl orida Statutes , provides, in

pertinent part, that Ð[a] petition shall be dismissed if it . . .

has been untimely filed.Ñ

13 . Dismiss al of an untimely request for hearing is

mandatory unless facts exist to support the application of the

doctrine of equitable tolling. Sect ion 120.569(2)(c), Fla.

Stat.; Fla. Admin. Code R. 28 - 106.111(4); Machules v. Dep Ó t of

Admin . , 523 So. 2d 1132 (Fla. 1988); Riverwood Nursing Ctr., LLC

v. Ag . for Health Care Admin. , 58 So. 3d 907 (Fla. 1 st DCA 2011);

Cann v. De p Ó t. of Child . & Fam . Servs . , 813 So. 2d 237 (Fla. 2d

DCA 2000). E quitable tolling may be applicable Ðwhen the

plaintiff has been misled or lul led into inaction, has in some

extraordinary way been prevented from asserting his rights, or

has timely asserted his rights mistakenly in the wrong forum.Ñ

Machules at 1134.

1 4 . There has been no suggestion that Petitioner was misled

or lulled into inac tion as a result of any act or omission of the

Department or any other person. To the contrary, the documents

filed in this proceeding reflect that the Department clearly

advised Petitioner of the timeframe and procedure for requesting

a hearing as well a s the consequences for failure to timely

request a hearing. Likewise, Petitioner has not asserted that

s he timely asserted her rights in the wrong forum. Therefore ,

the sole issue for consideration is whether Petitioner was, in

some extraordinary way, pr e vented from timely asserting her

rights.

1 5 . The facts alleged by Petitioner are not so

extraordinary as to have prevented Petitioner from asserting her

rights. The fact that the post office receipt reflects an

expected date of delivery of June 3, 2013, is not an

extraordinary occurrence as to require the application of

equitable tolling to excuse the late filing of PetitionerÓs

request for hearing. Likewise, a four - day delay from mailing

until delivery is not extraordinary. Cf . , _ e.g. , Fla. Admin. Code

R. 28 - 106.103 (where applicable, 5 days added for service by

mail). 2/

16 . Petitioner could have requested additional time to file

which would have, without more, tolled the time for filing. Fl a .

Admin . Code R . 28 - 106.111(3). Petitioner, however, did no t

request additional time, but rather relied on an Ðexpected dateÑ

of delivery by the post office.

17 . PetitionerÓs suggestion that the intervening Memorial

Day holiday should add another day to the 21 - day period is also

without merit. Florida Administr ative Code Rule 28 - 106.103,

Computation of Time, provides for additional time for

intermediate Saturdays, Sundays, and legal holidays only when the

period of time is less than 7 days, or when a Saturday, Sunday or

holiday falls on the last day of a given t ime period.

1 8 . In sum, PetitionerÓs request for hearing should be

dismissed because it was filed with the Department more than 21

days after Petitioner receiv ed the letter denying her Level - II

appeal.

RECOMMENDATION

Based upon the foregoing Findings o f Fact and Conclusions

of Law, it is

RECOMMENDED that Respondent, Department of Management

Services, issue a final order dismissing PetitionerÓs request

for hearing.

DONE AND ENTERED this 28th day of February , 201 4 , in

Tallahassee, Leon County, Florida .

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of February , 201 4 .

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes or Florida Administrative Code are to the 2013 versions.

2/ In this case, since the Department must receive PetitionerÓs

request within the 21 - day period, the date of filing , as opposed to

the date of service , is the pertinent date.

COPIES FURNISHED :

Sonja P. Mathews, Esquire

Department of Management Services

Office of the General Counsel

4050 E splanade Way, Suite 160

Tallahassee, Florida 32399

Susan G. Berg

11143 Pine Ridge Road

Leesburg, Florida 34788

Jason Dimitris, General Counsel

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

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 of Dismissal .

Any exceptions to this Recommended Order of Dismissal should be

filed with the agency that will issue the Fi nal Order in this

case.