16-000519 Valerie Murphy vs. Department Of Children And Families Status: Closed Recommended Order on Wednesday, May 18, 2016.

Summary: Petitioner did not appear at the final hearing, and the evidence in the record does not prove that Petitioner is entitled to the relief sought. Further, Petitioner's request for hearing was received one day late, and therefore dismissal is required.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VALERIE MURPHY,

Petitioner,

vs. Case No. 16 - 0519

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this ma tter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2016), 1/ on May 11, 2016, by video

teleconference sites in Tallahassee and Orl ando, Florida.

APPEARANCES

For Petitioner: No appearance

For Respondent: Stefanie Beach Camfield, Esquire

Department of Children and Families

Regional Counsel

Suite S - 1129

400 West Robinson Street

Orlando, Florida 32806

PRELIMINARY STATEMENT

On December 23, 2015, the Department of Children and

Families (the ÐDepartmentÑ) notified Petitioner that her salary

was overpaid for the pay period from November 11, 2015, through

December 3, 2015.

On January 14, 2016, Petitioner filed a request for an

administrative hearing with the Department. Petitioner disputes

that she was overpaid.

The Department referred this matter to the Division of

Administrativ e Hearings (ÐDOAHÑ) on January 29, 2016, and

requested assignment of an Administrative Law Judge to conduct a

formal evidentiary hearing. In its referral Notice, the

Department asserted that a threshold issue in this matter

concerned whether the Departmen t received PetitionerÓs request

for hearing within 21 days after Petitioner received notice of

the DepartmentÓs decision.

On February 4, 2016, the undersigned scheduled the final

hearing for March 31, 2016. A Notice of Hearing was issued

notifying the par ties of the date, time, and location of the

final hearing, and other pertinent procedures. On February 9,

2016, following the DepartmentÓs Response to Initial Order, the

undersigned issued an Amended Notice of Hearing which rescheduled

the final hearing t o April 7, 2016, at 1:00 p.m. On February 11,

2016, the undersigned issued a Second Amended Notice of Hearing

which amended the hearing time only. On March 7, 2016, the

Department filed a Motion to Continue. That same date, the

undersigned issued an Ord er Granting Continuance and

Re - Scheduling Hearing By Video Teleconference (ÐOrderÑ). The

final hearing was rescheduled for May 11, 2016, at 9:30 a.m., to

be heard by video teleconference at sites in Orlando and

Tallahassee, Florida. The Order was served on all parties and

mailed to PetitionerÓs address of record with DOAH.

At the final hearing, Department Exhibits A through D were

admitted into evidence.

FINDING S OF FACT

1. The final hearing was convened, as duly noticed, on

May 11, 2016, at 9:30 a.m. The DepartmentÓs counsel appeared at

the hearing. Petitioner did not appear. Petitioner did not file

any correspondence or evidence for consideration at the final

hearing.

2. The Department received the Order Granting Continuance

and Re - scheduling Hear ing By Video Teleconference issued on

March 7, 2016, and was aware of the date, time, and location of

the final hearing on May 11, 2016. The DepartmentÓs counsel also

confirmed that PetitionerÓs address of record with DOAH was the

same address the Divisi on maintained for Petitioner.

3. On December 15, 2015, the Department sent Petitioner a

letter regarding her salary overpayment. The letter informed

Petitioner that her salary had been overpaid for the pay period

from November 20, 2015, through December 3, 2015, in the amount

of $399.28. The DepartmentÓs documentation establishes that

Petitioner received the letter on December 23, 2015.

4. On January 14, 2016, the Department received

PetitionerÓs request for an administrative hearing. In her

request, P etitioner stated that Ðthe information of salary

overpayment is incorrect.Ñ

CONCLUSIONS OF LAW

5 . DOAH has jurisdiction over the subject matter and

parties to this proceeding pursuant to sections 120.569 and

120.57(1).

6. Absent specific statutory author ity, the burden of proof

is on the party asserting the affirmative of an issue in an

administrative proceeding. Antel v. Dep't of Prof'l Reg. ,

522 So. 2d 1056 (Fla. 5th DCA 1988); Balino v. Dep't of HRS ,

348 So. 2d 349 (Fla. 1st DCA 1977). The preponde rance of the

evidence standard is applicable to this case. See § 120.57(1)(j),

Fla. Stat.; Dep't of Banking & Fin., Div. of Sec. & Investor Prot.

v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996). Accordingly,

Petitioner has the burden of proving, by a preponderance of the

evidence, that she is entitled to receive the portion of her

salary the Department asserts is an overpayment.

7. By failing to appear at the final hearing, Petitioner

failed to present any evidence to meet her burden. Consequently,

P etitioner did not prove that she should be paid the additional

salary she claims she is entitled to receive from the Department.

8. In addition, unless otherwise provided by law, persons

seeking a formal administrative hearing regarding an agency

decision shall file a petition for hearing with the agency within

21 days of receipt of the agencyÓs written notice. See

Fla. Admin. Code R. 28 - 106.111(2). Any person who fails to file

a written request for a hearing within 21 days waives the right

to request a hearing on such matters. See Fla. Admin. Code R.

28 - 106.111(4). A request for hearing that has been untimely

filed shall be dismissed. See § 120.569(2)(c), Fla. Stat.

9. Petitioner filed her written request for an

administrative hearing with the Depar tment 22 days after her

receipt of the DepartmentÓs letter. Consequently, PetitionerÓs

request for hearing was untimely filed, and she waived her right

to an administrative hearing to review her dispute.

RECOMMENDATION

Based on the foregoing Findings of F act and Conclusions of

Law, it is RECOMMENDED that the Department of Children and

Families enter a final order in this proceeding dismissing

PetitionerÓs request for an administrative hearing under

chapter 120, Florida Statutes.

DONE AND ENTERED this 18 t h day of May, 2016, in Tallahassee,

Leon County, Florida.

S

J. BRUCE CULPEPPER

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 18 th day of May, 2016.

ENDNOTE

1/ All statutory references are to Florida Statutes (2016),

unless otherwise noted.

COPIES F URNISHED:

Paul Sexton, Agency Clerk

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Stefanie Beach Camfield, Esquire

Department of Children and Families

Regional Counsel

Suite S - 1129

400 West Robinson Street

Orlando, Florida 32801 - 1782

(eServed)

Valerie Mur ph y

3168 South Bumby Avenue

Orlando, Florida 32806

Rebecca Kapusta, General Counsel

Department of Children and Families

Building 2, Room 204

1317 Win e wood Boulevard

Tall ahassee, Florida 32399 - 0700

(eServed)

Mike Carroll, Secretary

Department of Children and Families

Building 1, Room 202

1317 Win e wood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right t o 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.