18-003636PL Department Of Health, Board Of Clinical Social Work, Marriage And Family Therapy And Mental Health Counseling vs. Gabriel Leonardo Tito, M.F.T.I. Status: Closed Recommended Order on Friday, November 9, 2018.

Summary: Equitable tolling did not apply to excuse late filing of request for hearing because any ambiguity in the election of rights form was clarified by other documents constituting the notice of intended action.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

CLINICAL SOCIAL WORK, MARRIAGE

AND FAMILY THERAPY AND MENTAL

HEALTH COUNSELING,

Petitioner,

vs. Case No. 18 - 3636PL

GABRIEL LEONARDO TITO, M.F.T.I.,

Respondent.

______________ _________________/

RECOMMENDED ORDER

On September 21, 2018, a video teleconference hearing was

held at sites in Miami and Tallahassee, Florida, before

Administrative Law Judge F. Scott Boyd of the Division of

Administrative H earings.

APPEARANCES

For Petitioner: Mary A. Iglehart, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

For Respondent: Howard J. Hochman, Esquire

Law Offices of Howard Hochman

7695 Southwest 104th Street , Suite 210

Miami, Florida 33156

STATEMENT OF THE ISSUE

The issue is whether RespondentÓs request for a substantial

i nterests hearing under section 120.57(1), Florida Statutes

(2017) , 1/ should be dismissed as untimely.

PRELIMINARY STATEMENT

The Department of Health (Petitioner or the Department)

filed an Administrative Complaint dated September 27, 2017, with

respect to the r egistered m arriage and f amily t herapist i ntern

license of Mr. Gabriel Leonardo Tito (Respondent or Mr. Tito)

alleging violations of statutes and administrative rules

governing m arriage and f amily t herapist practice. Disputing the

allegations, Respond ent filed a request for an administrative

hearing. Petitioner asserts the request for hearing was

untimely. Respondent claims the notice was deficient and that

the doctrine of equitable tolling applies. On July 16, 2018,

Petitioner forwarded the case to the Division of Administrative

Hearings (DOAH) for assignment of an administrative law judge.

PetitionerÓs Motion to Bifurcate the hearing was granted to

separately consider the issue of the timeliness of RespondentÓs

request for hearing.

At the hearin g on timeliness of the request, held on

September 21, 2018, the parties jointly offered nine exhibits:

J - 1 through J - 9. Respondent testified on his own behalf. The

agreed facts contained in the Joint Pre - hearing Stipulation ,

filed by the parties , were a ccepted at hearing and are reflected

in the Findings of Fact below.

A one - volume Transcript of the proceeding was filed on

October 17, 2018. Both parties timely submitted proposed

recommended orders, which were considered in the preparation of

this Reco mmended Order.

FINDING S OF FACT

1. The Department is the State agency charged with

regulating the practice of marriage and family therapy interns

pursuant to section 20.43 and chapter s 456 and 491, Florida

Statutes.

2. Mr. Tito is a licensed registered m arriage and family

therapist intern in the state of Florida, having been issued

license number IMT 1070, and practices in Pompano Beach, Florida.

He is subject to regulation by the Department and the Board of

Clinical Social Work, Marriage and Family Ther apy and Mental

Health Counseling.

3. On or about September 27, 2017, the Department filed an

Administrative Complaint against Mr. TitoÓs license to practice

as a registered marriage and family therapist intern.

4. On October 23, 2017, Mr. Tito receive d the

Administrative Complaint sent by the Department, which included a

cover letter, a settlement agreement, and an Election of Rights

form. Mr. Tito signed and mailed a certified mail receipt

acknowledging his receipt of the Administrative Complaint and

attachments, which the Department received on November 6, 2017.

5. Both the cover letter and the Administrative Complaint

that Mr. Tito received stated that he must return the E lection of

R ights form to the Department within 21 days of his receipt of

th e Administrative Complaint if he chose to request a formal

hearing.

6. The cover letter stated, in relevant part:

You must sign the Election of Rights form, and

return the completed form to my office within

twenty - one (21) days of the date you received

i t. Failure to return this form within

twenty - one (21) days may result in the entry

of a default judgment against you without

hearing your side of the case.

7. In a portion denominated ÐNotice of Rights , Ñ the

Administrative Complaint included the followi ng language in bold

print:

A request or petition for an administrative

hearing must be in writing and must be

received by the Department within 21 days from

the day Respondent received the Administrative

Complaint, pursuant to Rule 28 - 106.111(2),

Florida A dministrative Code. If Respondent

fails to request a hearing within 21 days of

receipt of this Administrative Complaint,

Respondent waives the right to request a

hearing on the facts alleged in this

Administrative Complaint pursuant to Rule 28 -

106.111(4), Florida Administrative Code.

8. The E lection of R ights form that Mr. Tito received stated

in relevant part:

In the event that you fail to make an election

in this matter within twenty - one (21) days

from receipt of the Administrative Complaint,

your fai lure to do so may be considered a

waiver of your right to elect a hearing in

this matter, pursuant to Rule 28 - 106.111(4),

Florida Administrative Code, and the Board may

proceed to hear your case.

At the bottom of the Election of Rights form was a notation that

the form could be mailed or faxed and provided addresses and

telephone numbers.

9. Mr. Tito wrote a letter to the Department requesting a

formal hearing and mailed that to the Department along with an

executed Election of Rights form.

10. The Depa rtment received Mr. TitoÓs letter and Election

of Rights form on November 20, 2017, 28 days after Mr. Tito

received a copy of the Administrative Complaint.

11. The cover letter, copy of the Administrative Complaint

with Notice of Rights, and Election of Rights form together gave

Mr. Tito sufficient written notice of intended agency action that

affected his substantial interests. These documents informed him

of his right to an administrative hearing, indicated the

procedures he must follow to obtain the h earing, and stated the

time limits that applied.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

proceeding in accordance with sections 120.569 and 120.57(1),

Florida Statutes (2018).

13. The Administrative Complaint alleges that Respondent

violated provisions of the Florida Statutes and administrative

rules that would subject him to the imposition of penalties.

Respondent has standing to request a hearing on whether his

requ est for hearing was made within the 21 - day period or

equitable tolling should apply to extend the time for filing,

and, if either is shown, on the allegations of the Administrative

Complaint. Nicks v. Dep't of Bus. & Prof'l Reg. , 957 So. 2d 65,

68 (Fla. 5 th DCA 2007); Phillip v. Univ. of Fl a. , 680 So. 2d 508,

509 (Fla. 1st DCA 1996).

14. Petitioner has the burden to show that notice of

intended action was received and that RespondentÓs request for

hearing was untimely. Respondent, as the party seeking equitable

tolling, has the burden of proof as to that issue. Menominee

Indian Tribe of Wis. v. United States , 136 S. Ct. 750, 755 - 56

(2016). The standard of proof for each of the parties is a

preponderance of the evidence. § 120.57(1)(j), Fla. Stat.

15. The requirement that a hearing must b e requested within

21 days of receipt of the notice of agency action is clear.

Florida Administrative Code Rule 28 - 106.111 provides in relevant

part:

(2) Unless otherwise provided by law,

persons seeking a hearing on an agency

decision which does or m ay determine their

substantial interests shall file a petition

for hearing with the agency within 21 days of

receipt of written notice of the decision.

* * *

(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.

16. The filing of a request for hearing takes place when the

re quest for hearing is received by the agency. 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

clerk during normal business hours or by the presiding officer

during the course of a hearing. See also Riverwood Nursing Ctr.,

LLC v. Ag. for Health Care Admin. , 58 So. 3d 907, 911 (Fla. 1st

DCA 2011)( written petition for hearing must be received by the

agency clerk within 21 days).

17. The Ðmail box ruleÑ (that p ortion of Florida

Administrative Code Rule 28 - 206.103 providing that five days

should be added to the 21 - day time limit when service has been

made by regular U.S. mail) does not apply to service of an

Administrative Complaint or other documents offering a point of

entry for administrative proceedings. Watson v. Brevard Cnty .

Clerk , 937 So. 2d 1 264, 1266 (Fla. 5th DCA 2006). Respondent

argues, however, that the notice documents in this case failed to

meet the requirements of section 120.569, and therefore the mail

box rule should be found to be applicable.

18. This argument is rejected. The notice of intended

agency action includes all of the documents provided to

Respondent on October 23, 2017, including the cover letter, copy

of the Administrative Compl aint with Notice of Rights, and the

Election of Rights form. These documents gave Mr. Tito

sufficient written notice of the intended agency action that

affected his substantial interests, as required by section

120.569. These documents informed him of hi s right to an

administrative hearing, indicated the procedures he must follow

to obtain the hearing, and stated the time limits that applied.

The mail box rule does not apply, and RespondentÓs request for an

administrative hearing was received by the Depa rtment, and so

filed, after the 21 - day deadline.

19. Section 120.569(2)(c) provides that a request for

hearing Ð shall be dismissed . . . if it has been untimely filed.Ñ

(Emphasis added ) . The statute goes on to expressly note that

this does not eliminate the availability of equitable tolling as

a defense.

20. In Machules v. Dep artment of Administration , 523 So. 2d

1132, 1134 (Fla. 1988), the Florida Supreme Court stated:

Generally, the tolling doctrine has been

applied when the plaintiff has been misle d or

lulled into inaction, has in some

extraordinary way been prevented from

asserting his rights, or has timely asserted

his rights mistakenly in the wrong forum.

21. There is no argument, or evidence to suggest, that

Respondent was prevented from asser ting his rights, or timely

asserted them in the wrong forum, but Respondent does argue that

he was misled or lulled into inaction by Petitioner.

22. Equitable tolling requires no showing of deception or

misconduct on the part of Petitioner. Rather, the r unning of the

time to file is judicially halted based on equ itable grounds

centered on R espondentÓs Ðexcusable ignoranceÑ of the limitations

period and on Ðlack of prejudiceÑ to P etitioner.

Machules , 523 So. 2d. at 1134.

23. Respondent argues that he w as misled by the wording on

the Election of Rights form, quoted above, warning him that he

would waive his right to elect a hearing should he Ðfail to make

an election in this matter within twenty - one (21) days.Ñ

Respondent maintains that he interpreted t he phrase Ðmake an

electionÑ to require only that he check the desired box within

the allotted time and notes that the form says nothing about

returning it to the Department within that same time.

24. Were the Election of Rights form the only notice of

r ights provided to Respondent, 2/ his argument would have to be

seriously considered. The form does not clearly state that it

must be completed and returned to the Department before the

deadline, but only that R espondent must Ðmake an electionÑ withi n

that time. The reference to r ule 28 - 106.111(4) offers scant

clarification, because the language there about ÐfilingÑ is not

equated to ÐreceiptÑ by the Department in that r ule at all, but

rather only in r ule 28 - 106.104( 1). Further, and importantly,

s ection 12 0.569 requires the notice itself to include the

procedure and time limits to request a hearing, not simply a

reference to them.

25. T he Election of Rights form was not the only notice

provided to Respondent , however . It i s undisputed that he also

receiv ed, as part of the package of documents constituting

notice, a cover letter and the Notice of Rights accompanying the

Administrative Complaint. In these additional documents, as

shown in the language quoted above, he was clearly informed that

the request for hearing had to be returned to, or received by,

the Department within the 21 - day period.

26. The issue, then, is whether RespondentÓs asserted

ignorance of the fact that the Department had to receive his

request for hearing within the 21 - day time per iod was ÐexcusableÑ

or ÐblamelessÑ under these circumstances. Major League Baseball

v. Morsani , 790 So. 2d 1071, 1076 n.11 (Fla. 2001).

27. Respondent was not entitled to read only the Election

of Rights form, but is held to have received all of the

in formation accompanying the Administrative Complaint. Taken as

a whole, RespondentÓs obligation to return the completed form in

order to request a hearing was clearly set forth. If Respondent

failed to read the entire packet or if he chose, after reading

it, to disregard the clear instructions because they were not

repeated on the form, it was his own fault. It cannot be said

under these circumstances that RespondentÓs ignorance was

ÐexcusableÑ or Ðblameless.Ñ

28. The doctrine of equitable tolling does n ot apply to

excuse the late filing of RespondentÓs request for an

administrative hearing.

29. Section 120.569(2)(c), provides: ÐDismissal of a

petition shall, at least once, be without prejudice to

petitioner's filing a timely amended petition curing t he defect,

unless it conclusively appears from the face of the petition that

the defect cannot be cured.Ñ A defect of untimeliness cannot be

cured and, therefore, dismissal of the request for hearing with

prejudice is appropriate.

30. RespondentÓs requ est for hearing must be dismissed

because it was filed with the Department more than 21 days after

Respondent received the Administrative Complaint. Under rule 28 -

106.111(4), Respondent waived his right to a hearing.

RECOMMENDATION

In view of the foregoi ng Findings of F act and C onclusions of

L aw, it is:

RECOMMENDED that RespondentÓs request for a substantial

interests hearing under section 120.57(1), Florida Statutes,

should be dismissed as untimely.

DONE AND ENTERED this 9 th day of November , 2018 , in

Ta llahassee, Leon County, Florida.

S

F. SCOTT BOYD

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 9 th day of November , 2018 .

ENDNOTE S

1/ All citations to the Florida Statutes and to administrative

rules are to those in effect in November of 2017, the ti me

relevant to the execution and receipt of the Election of Rights

form.

2 / It is recommended that the Department amend its form to

clearly state that the Election of Rights form must be received

by the Department within 21 days, so that, even standing a lone,

the form provides clear notice of the procedure and applicable

time limit.

COPIES FURNISHED:

Howard J. Hochman, Esquire

Law Offices of Howard Hochman

Suite 210

7695 Southwest 104th Street

Miami, Florida 33156

(eServed)

Lealand L. McCharen, Esqui re

Florida Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

Mary A. Iglehart, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Jenni fer Wenhold, Exec utive Director

Board of Clinical Social Work, Marriage and

Family Therapy and Mental Health Counseling

Department of Health

4052 Bald Cypress Way, Bin C - 08

Tallahassee, Florida 32399 - 3257

(eServed)

Louise Wilhite - St Laurent, Interim Ge neral Counsel

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

(eServed)

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.