18-004515 Department Of Financial Services, Division Of Workers&Apos; Compensation vs. S And M Construction Services, Llc
 Status: Closed
Recommended Order on Monday, January 7, 2019.


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Summary: Respondent failed to show that its untimely request for a hearing was excused by the doctrine of equitable tolling.

1S TATE OF FLORIDA

5DIVISION OF ADMINISTRATIVE HEARINGS

9DEPARTMENT OF FINANCIAL

12SERVICES, DIVISION OF WORKERS'

16COMPENSATION,

17Petitioner,

18vs. Case No. 18 - 4 515

25S AND M CONSTRUCTION SERVICES,

30LLC,

31Respondent.

32_______________________________/

33RECOMMENDED ORDER

35Administrative Law Judge D. R. Alexander conducted a hearing

44in this case by video teleconference on November 20, 2018, at

55sites in Sarasota and Tallahassee, Florida.

61APPEARANCES

62For Petitioner: Taylor Anderson, Esquire 1/

68Department of Financial Services

72200 East Gaines Street

76Tallahassee, Florida 32399 - 0333

81For Respondent: Patricia Morales, pro se

87S & M Construction Services, LLC

936005 11th St reet East

98Bradenton, Florida 34203 - 6932

103STATEMENT OF THE ISSUE

107The issue is whether Respondent's untimely request for an

116administrative hearing is excused by the doctrine of equitable

125tolling.

126PRELIMINARY STATEMENT

128On January 16, 2018, t he Department of Financial Services,

138Division of Workers' Compensation (Department), served Respondent

145with a Stop - Work Order for its failure to obtain workers'

157compensation coverage that meets the requirements of chapter 440,

166Florida Statutes. On May 21, 2018, the Department served

175Respondent with an Amended Order of Penalty Assessment (Penalty

184Assessment), which informed Respondent that if it wished to

193contest the Penalty Assessment, a request for a hearing must be

204filed within 21 calendar days. By lett er (petition) filed with

215the Department on June 15, 2018, Respondent requested a hearing

225to contest this action. After an Order to Show Cause was entered

237by the Department requiring Respondent to show cause why the

247petition should not be dismissed as bein g untimely, Respondent

257filed a response alleging that the late filing was excused by

268circumstances that the Department determined may invoke the

276doctrine of equitable tolling. The matter then was referred by

286the Department to the Division of Administrativ e Hearings (DOAH)

296to conduct a hearing on that narrow issue.

304At the hearing, the Department presented the testimony of

313two witnesses. Department Exhibits 1 through 11 were accepted in

323evidence. Exhibit 11 is the deposition testimony of Respondent's

332manag ing agent, Patricia Morales. At the hearing, Respondent was

342represented by Ms. Morales, who testified on behalf of the

352company.

353A one - volume Transcript of the hearing was prepared.

363Proposed findings of fact and conclusions of law were filed by

374the Depart ment on December 27, 2018, and they have been

385considered in the preparation of this Recommended Order.

393FINDING S OF FACT

3971. The Department is the state agency responsible for

406enforcing the requirement of the Workers' Compensation Law that

415employers secur e the payment of workers' compensation coverage

424for their employees and corporate officers. § 440.107, Fla.

433Stat.

4342. To enforce this requirement, the Department performs

442random inspections of job sites and investigates complaints

450concerning potential v iolations of workers' compensation rules.

4583. On January 16, 2018, Hemant Balgobin, a Department

467compliance inspector, conducted a compliance investigation at a

475job site in Bartow, Florida. The inspection resulted in a

485determination by Mr. Balgobin that R espondent was the responsible

495entity supervising the job site, and three individuals employed

504by Respondent did not have the required workers' compensation

513coverage.

5144. On January 17, 2018, a Stop - Work Order and Request for

527Production of Business Record s was served on Ms. Morales. After

538the business records produced by Ms. Morales were reviewed by the

549Department, on May 21, 2018, the Department served her with a

560Penalty Assessment proposing to assess the company a penalty in

570the amount of $55,187.12.

5755. The Penalty Assessment contained a Notice of Rights,

584which stated that, if Ms. Morales wished to contest the penalty,

595she must file a "petition for hearing so that it is received by

608the Department within twenty - one (21) calendar days of your

619receipt of this agency action." It also stated that the petition

"630must be filed with Julie Jones, DFS Agency Clerk, Department of

641Financial Services, 612 Larson Building, 200 East Gaines Street,

650Tallahassee, Florida 32399 - 0300." Finally, the Notice of Rights

660state d in bold capital letters, "FAILURE TO FILE A PETITION

671WITHIN TWENTY - ONE (21) CALENDAR DAYS OF RECEIPT OF THIS AGENCY

683ACTION CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE

692REVIEW OF THIS AGENCY ACTION." This meant that a petition had to

704be filed and in the hands of the Agency Clerk no later than

717June 11, 2018.

7206. The petition was not filed until June 15, 2018. Because

731the petition was filed four days late, the Department issued an

742Order to Show Cause, which required Ms. Morales to show cause

753w hy her petition should not be dismissed. In her response,

764Ms. Morales asserted that she did not have a fax number for

776filing a petition, so she contacted Mr. Balgobin, who told her to

788fax it to him and "they would fax it to the right person." She

802ess entially contends that this statement led her to believe that

813by filing the petition with Mr. Balgobin, it would be treated as

825a timely filing. The Department construed this conversation as

834possibly excusing the late filing and forwarded the matter to

844DOA H to resolve that narrow issue.

8517. The record shows that on June 14, 2018, or after the

863filing deadline was missed, Ms. Morales telephoned Mr. Balgobin

872to ask "who to send it to," as there was no email or fax number

887in the Notice of Rights. She testifi ed that he told her to fax

901the petition to the Fort Myers office and it would be forwarded

913to Tallahassee. After speaking with Mr. Balgobin, she prepared a

923petition and then faxed it to the Fort Myers office the following

935day, June 15, 2018.

9398. In his testimony, Mr. Balgobin did not say whether he

950spoke with Ms. Morales on June 14, 2018, or if he told her to fax

965the petition to him. However, it is reasonable to find that he

977did, because she faxed a petition to the Fort Myers office on

989June 15, 2018, an d it then was forwarded by that office to

1002Tallahassee. However, all of these events occurred after the

1011deadline for filing a petition.

10169. There is no credible evidence that Mr. Balgobin gave

1026Ms. Morales a specific date when the petition was due, and he

1038made no statements that caused her to miss the deadline. In

1049fact, on the few occasions that he spoke with Ms. Morales

1060throughout this process, he always reminded her to read the

1070Notice of Rights. It is not the practice of compliance

1080inspectors (or any ot her employee in the Fort Myers district

1091office) to tell persons when their petitions must be filed.

110110. At hearing, Ms. Morales also contended that one reason

1111for the delay in filing a petition was because the Notice of

1123Rights listed only a street addres s in Tallahassee, and not a fax

1136number or email address. She explained that she attempted to

1146telephone the Agency Clerk in Tallahassee to secure that

1155information, but was unsuccessful. She gave no explanation as to

1165why the petition was not sent by mail t o the Tallahassee address

1178pursuant to the instructions in the Notice of Rights. The

1188undersigned has not credited Ms. Morales' assertion that she was

1198confused on where and how to send a petition, given the clear

1210instructions in the Notice of Rights.

121611. M s. Morales also spoke by telephone with Ms. Almas, a

1228Department regulatory consultant in the Fort Myers office. The

1237record is confusing on the gist of those conversations because

1247Ms. Morales was unclear about when the calls occurred, and

1257whether the calls related to the deadline for filing business

1267records to take advantage of a penalty discount, filing her

1277request for a hearing, or filing a response to the Order to Show

1290Cause.

129112. The record is clear, however, that Ms. Almas telephoned

1301Ms. Morales six days after the Stop - Work Order was issued in

1314January 2018 to remind her that all business records must be

1325filed within ten days in order to be eligible for a discount.

1337According to Ms. Almas, a second telephone conversation took

1346place on May 31, 2018, whe n Ms. Morales contacted her to ask why

1360she did not receive a discount on the penalty. At hearing,

1371Ms. Morales contended that during that call, Ms. Almas provided

1381her with a specific date on which the petition must be filed, and

1394that she timely filed he r petition in accordance with those

1405instructions. However, she could not recall the date allegedly

1414given to her by Ms. Almas.

142013. Ms. Almas denied giving Ms. Morales a specific due date

1431for the petition and says she only referred her to the Notice of

1444R ights. She also denied providing any misleading information

1453that would cause Ms. Morales to late - file her petition. On this

1466issue, Ms. Almas' testimony is credited.

147214. Finally, Ms. Morales acknowledged that she read the

1481Notice of Rights and she underst ood she had 21 calendar days in

1494which to request a hearing. She admitted that nothing prevented

1504her from filing a petition in a timely manner, but she "was just

1517trying to see how [she] would do it," since this was the first

1530time she was involved in an adm inistrative proceeding.

1539CONCLUSIONS OF LAW

154215. The Department has the burden to show that the Penalty

1553Assessment was received and that Respondent's request for hearing

1562was untimely. As the party seeking to invoke the doctrine of

1573equitable tolling, Respo ndent has the burden of proof on that

1584issue. The standard of proof for each of the parties is a

1596preponderance of the evidence. § 120.57(1)(j), Fla. Stat.

160416. The filing of a request for hearing takes place when

1615the request for hearing is received by the agency. Fla. Admin.

1626Code R. 28 - 106.104(1).

163117. By a preponderance of the evidence, the Department

1640established that Ms. Morales was served with the Penalty

1649Assessment on May 21, 2018, and her petition was not received by

1661the Fort Myers office until Jun e 15, 2018, which then forwarded

1673the petition to the Tallahassee office on the same day. The

1684request for hearing was therefore untimely.

169018. In Machules v. Department of Administration , 523 So. 2d

17001132, 1134 (Fla. 1988), the Supreme Court held that the d octrine

1712of equitable tolling "has been applied when the plaintiff has

1722been misled or lulled into inaction, has in some extraordinary

1732way been prevented from asserting his rights, or has timely

1742asserted his rights mistakenly in the wrong forum." Thus, a

1752pa rty's failure to timely file a petition sometimes can be

1763excused by application of the equitable tolling doctrine as a

1773defense. The doctrine is used sparingly and only in

1782extraordinary circumstances.

178419. The issue presented here is whether any statements made

1794by Department employees caused Ms. Morales to miss the deadline

1804for filing her petition. As previously found, the evidence

1813supports a conclusion that the late - filing was the result of

1825Ms. Morales' own inattention and not the result of a n agency

1837mi srepresentation.

183920. In short, the statements described herein do not rise

1849to the level of overcoming the effect of the clear language in

1861the Notice of Rights. See, e.g. , Xerox Corp. v. Fla. DepÓt of

1873ProfÓl Reg. , 489 So. 2d 1230, 1231 (Fla. 1st DCA 198 6) ("informal

1887and imprecise oral communications" from agency are insufficient

1895in form and substance to overcome the effect of a prior formal

1907notice as to the necessity of a timely petition).

191621. There is no evidence that the Notice of Rights is

1927confusin g or unclear regarding when and where to file a petition.

193922. Application of the doctrine is not warranted to excuse

1949the untimely filing of Respondent's petition. Therefore,

1956Respondent has waived its right to an administrative hearing.

1965RECOMMENDATION

1966Based on the foregoing Findings of Fact and Conclusions of

1976Law, it is

1979RECOMMENDED that the Department of Financial Services ,

1986Division of Workers' Compensation, enter a final order dismissing

1995Respondent's request for a hearing as untimely.

2002DONE AND ENTERED this 7th day of January , 2019 , in

2012Tallahassee, Leon County, Florida.

2016S

2017D. R. ALEXANDER

2020Administrative Law Judge

2023Division of Administrative Hearings

2027The DeSoto Building

20301230 Apalachee Parkway

2033Tallahassee, Florida 32399 - 3 060

2039(850) 488 - 9675

2043Fax Filing (850) 921 - 6847

2049www.doah.state.fl.us

2050Filed with the Clerk of the

2056Division of Administrative Hearings

2060this 7th day of January , 2019 .

2067ENDNOTE

20681/ After the final hearing, substitute counsel identified below

2077entered an appeara nce for the Department .

2085COPIES FURNISHED:

2087Julie Jones, CP, FRP, Agency Clerk

2093Division of Legal Services

2097Department of Financial Services

2101200 East Gaines Street

2105Tallahassee, Florida 32399 - 0390

2110(eServed)

2111Patricia Morales

2113S & M Construction Service s, LLC

21206005 11th Street E

2124Bradenton, Florida 34203 - 6932

2129Kyle Christopher, Esquire

2132Department of Financial Services

2136Office of the General Counsel

2141200 East Gaines Street

2145Tallahassee, Florida 32399 - 0333

2150(eServed)

2151NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2157Al l parties have the right to submit written exceptions within

216815 days from the date of this Recommended Order. Any exceptions

2179to this Recommended Order should be filed with the agency that

2190will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/11/2019
Proceedings: Agency Final Order filed.
PDF:
Date: 04/10/2019
Proceedings: Agency Final Order
PDF:
Date: 01/07/2019
Proceedings: Recommended Order
PDF:
Date: 01/07/2019
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/07/2019
Proceedings: Recommended Order (hearing held November 20, 2018). CASE CLOSED.
PDF:
Date: 12/27/2018
Proceedings: Petitioner's Proposed Recommended Order filed.
PDF:
Date: 12/18/2018
Proceedings: Notice of Filing Transcript.
PDF:
Date: 12/10/2018
Proceedings: Notice of Appearance (Kyle Christopher) filed.
Date: 11/20/2018
Proceedings: CASE STATUS: Hearing Held.
Date: 11/13/2018
Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 11/13/2018
Proceedings: Department's Notice of Filing Proposed Exhibit & Witness Lists filed.
PDF:
Date: 10/22/2018
Proceedings: Department's Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 09/19/2018
Proceedings: Department's Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 09/07/2018
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 09/07/2018
Proceedings: Notice of Hearing by Video Teleconference (hearing set for November 20, 2018; 9:30 a.m.; Sarasota and Tallahassee, FL).
PDF:
Date: 09/04/2018
Proceedings: Agreed Response to Initial Order filed.
PDF:
Date: 08/29/2018
Proceedings: Initial Order.
PDF:
Date: 08/28/2018
Proceedings: Amended Order of Penalty Assessment filed.
PDF:
Date: 08/28/2018
Proceedings: Stop-Work Order filed.
PDF:
Date: 08/28/2018
Proceedings: Order to Show Cause filed.
PDF:
Date: 08/28/2018
Proceedings: Request for Hearing filed.
PDF:
Date: 08/28/2018
Proceedings: Agency referral filed.

Case Information

Judge:
D. R. ALEXANDER
Date Filed:
08/28/2018
Date Assignment:
08/29/2018
Last Docket Entry:
04/11/2019
Location:
Sarasota, Florida
District:
Middle
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related Florida Statute(s) (2):