18-006102 Department Of Financial Services, Division Of Workers&Apos; Compensation vs. Mac Mar, Llc Status: Closed Recommended Order on Friday, May 31, 2019.

Summary: Respondent failed to establish that equitable tolling excuses its late-filed petition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL

SERVICES, DIVISION OF WORKERS'

COMPENSATION,

Petitioner,

vs. Case No. 18 - 6102

MAC MAR, LLC,

Respondent.

_______________________________/

RECOMMENDED OR DER

On April 4, 2019, Administrative Law Judge Robert J.

Telfer III, of the Florida Division of Administrative Hearings

(Division), conducted a duly - noticed hearing in Tallahassee and

Altamonte Springs, Florida, by video teleconference, pursuant to

secti ons 120.569 and 120.57(1), Florida Statutes (2018).

APPEARANCES

For Petitioner: Mattie Birster, Esquire

Department of Financial Services

Office of the General Counsel

200 East Gaines Street

Tallahassee, Florida 32399

For Respondent: Cynthia Crider, Esq uire

David Boggs, LLC

116 Running Creek Court

Shepherdsville, Kentucky 40165

STATEMENT OF THE ISSUE

The issue to determine in this matter is whether equitable

tolling applies to excuse Respondent Mac Mar, LLCÓs , late - filed

petition for administrative re view.

PRELIMINARY STATEMENT

On March 6, 2018, Petitioner Department of Financial

Services, Division of WorkersÓ Compensation (the Department) ,

served a Stop - Work Order and Order of Penalty Assessment (Stop -

Work Order) on Respondent, pursuant to chapter 440 , Florida

Statutes, for failing to secure workersÓ compensation insurance

for its employees. On March 6, 2018, the Department issued an

Agreed Order of Conditional Release from Stop - Work Order to

Respondent. On June 27, 2018, the Department served an Ame nded

Order of Penalty Assessment (Amended Order) on Respondent.

On July 25, 2018, Respondent filed a petition for hearing,

disputing the allegations of the Stop - Work Order, as well as the

fine imposed in the Amended Order. On August 7, 2018, the

Departmen t issued its Order to Show Cause, ordering Respondent to

explain why its petition for hearing should not be dismissed as

untimely filed. On August 28, 2018, Respondent filed its

response to the Order to Show Cause with the Department.

On November 16, 2018 , the Department referred the matter to

the Division, which assigned this matter to the undersigned. The

undersigned scheduled the final hearing in this matter for

January 21, 2019. On January 8, 2019, the parties filed a Joint

Motion to Continue Final H earing, which the undersigned granted.

The undersigned thereafter entered an Order Rescheduling Hearing

by Video Teleconference, setting the final hearing for April 4,

2019.

The final hearing proceeded as scheduled. The Department

presented the testimony of Taylor Anderson, who previously served

as an attorney for the Department. The undersigned admitted

Exhibits 1 through 10, without objection. Respondent presented

the testimony of Amanda Lairsey, the corporate representative and

chief operating office r of Respondent.

After the conclusion of the final hearing, the Department

filed an Agreed Motion for Extension of Time, requesting 15 days

after the filing of the transcript to submit a proposed

recommended order, which the undersigned granted. The one - volume

T ranscript of this final hearing was filed with the Division on

April 30, 2019. Petitioner timely filed a Proposed Recommended

Order that the undersigned considered in the preparation of this

Recommended Order. Respondent, despite being represente d by

counsel, requesting the final hearing, and procuring the

attendance of an out - of - state witness (Ms. Lairsey) at the final

hearing, failed to file a proposed recommended order.

All statutory references are to the 2018 codification of the

Florida Statut es unless otherwise indicated.

FINDING S OF FACT

1. The Department is the state agency charged with

enforcing the requirement of chapter 440, Florida Statutes, that

employers in Florida secure workersÓ compensation insurance

coverage for their employees. See § 440.107(3), Fla. Stat.

2. Respondent is a corporation located in Clermont,

Florida, engaged in the roofing industry.

3. On March 5, 2018, Department I nvestigator Keith Howe

conducted a workersÓ compensation compliance check at a residence

located i n Daytona Beach, Florida, where Petitioner was

installing a new roof. The purpose of Mr. HoweÓs visit was to

determine whether Petitioner had workersÓ compensation coverage

for its employees, as required under chapter 440.

4. Mr. Howe made a preliminary determination that persons

working at the residence were not covered by workersÓ

compensation insurance .

5. A fter Mr. HoweÓs visit, on March 6, 2018, the Department

issued and served on Respondent (via hand - delivery) a Stop - Work

Order and Request for Prod uction of Business Records for Penalty

Assessment Calculation. The Stop - Work Order alleged that

Respondent failed to secure the payment of workersÓ compensation

insurance for those individuals at the Daytona Beach worksite, in

violation of sections 440.10 (1), 440.38(1), and 440.107(2).

6 . On June 27, 2018, the Department served Respondent with

the Amended Order via certified mail.

7 . The Amended Order includes two deadlines. The deadline

referenced on the first page of the Amended Order states:

Pursuant to Rule 69L - 6.028, Florida

Administrative Code, if the Division imputes

the employerÓs payroll, the employer shall

have twenty days after service of the first

amended order of penalty assessment to

provide business records sufficient for

the Division to determine the employerÓs

payroll for the period requested in the

business records request for the calculation

of the penalty. The employerÓs penalty

will be recalculated pursuant to

subsection 440.107(7)(d), F.S., only if the

employer provides all such business records

within the twenty days after service of the

first amended order of penalty assessment.

Otherwise, the first amended order of penalty

assessment will remain in effect.

8 . The Amended OrderÓs other deadline is found in the

ÐNotice of Righ tsÑ on the second page, and states:

You must file the petition for hearing so

that it is received within twenty - one (21)

calendar days of this agency action. The

petition must be filed with Julie Jones, DFS

Agency Clerk, Department of Financial

Services, 612 Larson Building, 200 East

Gaines Street, Tallahassee, Florida 32399 -

0390.

FAILURE TO FILE A PETITION WITHIN THE TWENTY -

ONE (21) DAYS OF RECEIPT OF THIS AGENCY

ACTION CONSTITUTES A WAIVER OF YOUR RIGHT TO

ADMINISTRATIVE REVIEW OF THE AGENCY ACTION.

9 . Ms. Anderson, who previously served as an attorney for

the Department, testified that the Department assigned her to a

separate workersÓ compensation matter involving Respondent

(case 18 - 069 - D7). Ms. Anderson testified that she contacted

Ms. Lairsey, RespondentÓs chief operating officer, on July 20,

2018, to discuss whether Respondent would agree to waive the 21 -

day dead line to file the petition in that matter. By that date

more than 21 days had already passed from RespondentÓs receipt of

the Amended Order.

10 . Ms. LairseyÓs testimony confirms this conversation.

Ms. Lairsey testified that she returned Ms. AndersonÓs call, to

discuss case 18 - 069 - D7, as well as the instant case. At the time

and date of this phone call, Respondent had not filed a peti tion

for relief in the instant case, and the Department had therefore

not assigned it to a Department attorney.

11 . During this telephone conversation, both Ms. Anderson

and Ms. Lairsey testified that they discussed the potential for

settlement in case 18 - 069 - D7, and that Ms. Lairsey asked

Ms. Anderson if the Department would consider consolidating that

case with the instant case.

1 2 . Ms. Anderson testified that, during this telephone

conversation, she was unaware of the instant case because

Respondent h ad not yet filed a petition. After reviewing the

DepartmentÓs database, Ms. Anderson testified that she discovered

the Amended Order, but noted to Ms. Lairsey that Respondent had

not yet filed a petition, and that if it did, the Department

would consider it to be beyond the 21 - day deadline, and thus

late.

1 3 . Ms. LairseyÓs testimony is consistent with

Ms. AndersonÓs testimony concerning the discussion of the

presumed lateness of the yet - to - be - filed petition in the instant

case. Ms. Lairsey testified:

So I understood that I was going to be late

with the petition, or actually, I didnÓt

realize Ï I donÓt remember Ï I didnÓt know until

that time that I was going to be late, but I

wanted to know if I could get an extension of

time or somehow find out a way to res pond

with why it was going to be late because of

all the documentation that I needed to create

the response.

14 . Ms. Anderson testified that she explained to

Ms. Lairsey that because the Department would consider a petition

in the instant cas e to be lat e - filed, it would issue an order to

show cause, which Ðwould give her a chance to respond to the

Department and tell us why she believed her petition was late and

to see if any of those reasons would amount to anything under the

law where the Department co uld, in fact, look at the petition.Ñ

1 5 . Ms. Lairsey testified that she believed that

Ms. Anderson told her that a ÐresponseÑ would be accepted after

the filing deadline. Ms. Lairsey also testified that she needed

to obtain, review, and provide document ation concerning the

allegations in the Amended Order to provide the Department with

an Ðhonest answer.Ñ

16 . Ms. Lairsey also testified that she did not understand

the deadlines stated in the Amended Order, although she

ultimately testified, ÐYes. I knew that it was Ï this is the one

that was the 21 days from filing[.]Ñ 1/

17 . Ms. Anderson testified that RespondentÓs deadline for

filing a petition in the instant matter was July 18, 2018. The

undersigned finds that the Department served the Amended Order by

certified mail that was received on June 27, 2018, and that

July 18, 2018, is 21 days after the service of the Amended Order.

1 8 . The Department received RespondentÓs petition for

hearing on July 25, 2018, which was seven days after the filing

deadline. 2/

1 9 . Thereafter, on August 7, 2018, the Division issued an

Order to Show Cause, providing Respondent 21 days to show cause

why the petition should not be dismissed as untimely, and to

address whether any basis existed for the Department to equitably

tol l the 21 - day deadline for filing the petition.

20 . On August 28, 2018, Respondent responded to the Order

to Show Cause. The response states, in part:

In this instance, there is sufficient

evidence to support equitable tolling.

Amanda Lairsey, Chief Oper ations Officer of

MAC MAR, LLC, has been in continuous contact

with the Division of WorkerÓs Compensation

regarding matters that had arisen with MAC

MAR, LLC. Specifically, Ms. Lairsey had been

in communication with Taylor R. Anderson,

Attorney for Worker s Compensation. It is

imperative that it be stressed in abundant

clarity that MAC MAR, LLC does not believe

that there was any responsibility or inaction

or inappropriate action undertaken by

Attorney Anderson. In Ms. LairseyÓs

experience, she had been e xtremely helpful

and professional in helping MAC MAR, LLC

resolve its issues for which she was

representing the Division. No representative

of the Division was appointed or communicated

for MAC MAR, LLC for the present matter.

When Ms. Lairsey received t he amended Order

of Penalty Assessment on June 27, 2018, she

asked Attorney Anderson whether or not she

could be the assigned representative for the

Division in this matter and explained that

MAC MAR, LLC would need additional time to

provide adequate info rmation to the Division.

Attorney Anderson indicated that she could

not be the representative. Attorney Anderson

stated that Ms. Lairsey would need to respond

to the Order and that, if she failed to do so

timely, that MAC MAR, LLC would receive a

letter (which is apparently the Order to Show

Cause) and would have to explain why it was

filed untimely. Although it is apparent now

that Attorney Anderson was properly

communicating the requirements, Ms. Lairsey

understood the statement to mean that MAC

MAR, L LC could respond, and if it failed to

do so timely, an explanation would be

sufficient.

Although it appears that it was not Attorney

AndersonÓs intention to lull Ms. Lairsey into

thinking she could respond even if it was

untimely, that is the unfortunate effect of

Ms. LairseyÓs understanding of the

communication from Ms. Anderson. Ms. Lairsey

is not an attorney and did not appreciate the

significance of the requirements of Equitable

Tolling.

21 . The undersigned finds that Ms. LairseyÓs testimony at

the final hearing contradicts RespondentÓs response to the Order

to Show Cause. Ms. Lairsey testified that she understood that

RespondentÓs petition in the instant matter was late. She

testified that she did not understand the deadlines contained in

the Amen ded Order, although Respondent apparently was able to

timely file a petition in case 18 - 069 - D7. And, Ms. Lairsey

testified that she was aware that she would have an opportunity

to respond to the DepartmentÓs Order to Show Cause to explain why

the Responde nt was filing a late petition -- not that she believed

she had the opportunity to have the Department accept a late -

filed petition.

2 2 . Ms. Lairsey testified that she needed additional time

to obtain, review, and provide documentation concerning the

allegat ions in the Amended Order, in order to submit an accurate

petition. However, the undersigned finds tha t Florida

Administrative Code Rule 28 - 106.2015(5)(a) through (e) sets forth

the substantive requirements for a petition for hearing. The

subsections of this rule do not require a respondent to submit or

identify documents or records relevant to the dispute.

23 . The undersigned finds that neither the Department nor

Ms. Anderson lulled Respondent into inaction. Rather, the

evidence adduced at hearing demo nstrated that Ms. Anderson

adequately explained to Ms. Lairsey that any petition filed in

this matter was beyond the filing deadline, which Ms. Lairsey

acknowledged she understood. Ms. Anderson explained that if

Respondent filed a petition beyond the dead line, it would have an

opportunity to respond to an Order to Show Cause, which it did.

2 4 . The undersigned further finds that Respondent has

provided no evidence that it was, in some extraordinary way,

prevented from exercising its rights, or that it time ly asserted

its rights mistakenly in a wrong forum.

CONCLUSIONS OF LAW

2 5 . The D ivision has jurisdiction over the subject

matter and the parties to this proceeding in accordance with

sections 120.569 and 120.57(1).

2 6 . Chapter 440 is known as the ÐWorke rsÓ Compensation

Law.Ñ £ 440.10, Fla. Stat.

2 7 . The Department has the burden to show that Respondent

received the Amended Order, and that RespondentÓs request for

hearing was untimely. As the party seeking to invoke the

doctrine of equitable tolling, R espondent has the burden of proof

on that issue. The standard of proof for each of the parties is

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

2 8 . The filing of a request for hearing occurs when the

Department receives the request for hea ring. See Fla. Admin.

Code R. 28 - 106.104(1).

2 9 . The Department established, by a preponderance of the

evidence, that it served Respondent with the Amended Order , by

certified mail that was received on June 27, 2018. The Amended

Order explicitly stated that Respondent had 21 days to file a

petition for hearing, and it Ðexplicitly advised that a failure

to comply with the statutory time requirements . . . would

constitute a waiver of Chapter 120 proceedings.Ñ

30 . The Department further established, by a preponderance

of the evidence, that it received RespondentÓs petition for

hearing on July 25, 2018, which was seven days after the filing

deadline.

3 1 . The undersigned concludes that the D epartme n t has

established, by a preponderance of the evidence, th at

RespondentÓs petition for hearing was untimely.

Equitable Tolling

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

1132, 1134 (Fla. 1988), the Florida Supreme Court held that the

doctrine of equitable tolling applies in administrative

procee dings, stating:

Generally, the tolling doctrine has been

applied when the plaintiff has been misled 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 f orum.

Thus, a partyÓs failure to timely file a petition sometimes can

be excused by application of the equitable tolling doctrine as a

defense.

3 3 . The undersigned concludes that Respondent failed to

establish, by a preponderance of the evidence, that eq uitable

tolling excuses its late - filed petition for hearing.

34 . As found in paragraph 2 3 above, neither the Department

nor Ms. Anderson lulled Respondent into inaction. Although

Ms. Lairsey testified that she did not understand the deadlines

in the Ame nded Order, she also testified that she understood that

the petition in this matter would be late. The undersigned

concludes that Respondent has failed to establish the application

of the equitable tolling doctrine. See Whiting v. Fla. D epÓt of

Law Enf. , 849 So. 2d 1149, 1151 (Fla. 5th DCA 2003)(affirming

dismissal of late - filed petition because WhitingÓs mistaken

belief as to when the time period for filing a petition ended was

insufficient to support equitable tolling); Jancyn Mfg. Corp. v.

DepÓt of Hea lth , 742 So. 2d 473, 476 (Fla. 1st DCA 1999)(refusing

to apply the doctrine of equitable tolling when the late - filed

petition was the result of the partyÓs Ðown inattention.Ñ).

35 . As found in paragraph 24 above, Respondent has provided

no evidence that it was, in some extraordinary way, prevented

from exercising its rights, or that it timely asserted its rights

mistakenly in a wrong forum.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, the undersigned RECOMMENDS that the D epartment dismiss

RespondentÓs petition for hearing as untimely.

DONE AND ENTERED this 31st day of May , 2019 , in Tallahassee,

Leon County, Florida.

S

ROBERT J. TELFER III

Administrative Law Judge

Division of Administrativ e 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 31st day of May, 2019 .

ENDNOTE S

1/ The undersigned notes that Respondent was apparently able to

understand the form language of the DepartmentÓs Stop - Work Order ,

to timely file a petition in case 18 - 069 - D7.

2/ RespondentÓs petition was dated July 18, 2019.

COPIES FURNISHED:

Mattie Bi rster, Esquire

Department of Financial Services

Office of the General Counsel

200 East Gaines Street

Tallahassee, Florida 32399

(eServed)

Cynthia Crider, Esquire

David Boggs, LLC

116 Running Creek Court

Shepherdsville, Kentucky 40165

(eServed)

Julie Jo nes, CP, FRP, Agency Clerk

Division of Legal Services

Departme nt of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

(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.