19-006006 Department Of Financial Services, Division Of Workers&Apos; Compensation vs. East Coast Shutters, Inc. Status: Closed Recommended Order on Friday, June 12, 2020.

Summary: Respondent's late-filed Petition for Administrative Hearing was not excused due to equitable tolling.

P RELIMINARY S TATEMENT

This proceeding involves the Division’s enforcement of the requirement in

Florida’s Workers’ Compensation law that employers must secure payment of

workers' com pensation for their employees. On January 25, 2 019, Division

Investigator, Linda Offutt, served a Stop - Work Order and Order of Penalty

Assessment (“SWO”) on Respondent. Respondent did not file a petition to

challenge the SWO.

On April 29, 2019, the Division issued an Amended Order of Penalty

Assessmen t (“Amended Order”), which Ms. Offutt again personally served on

Respondent. Respondent did not file a petition to challenge the Amended

Order. On June 24, 2019, the Division issued a Second Amended Order of

Penalty Assessment (“Second Amended Order”), whi ch was hand - delivered by

Ms. Offutt to Respondent.

On August 2, 2019, Respondent contested the Second Amended Order and

requeste d a hearing. The Division concluded that the request was untimely

and issued an Order to Show Cause why Respondent’s Petition should not be

dismissed. Respondent filed a response on October 13, 2019, alleging that the

Second Amended Order “was not seen by Rupert Jones or Tresa Thomas

(Office Manager) until Linda [Offutt] came to the office to start payment proceedings.”

On No vember 12, 2019, the Division referred the matter to the Division of

Administrative Hearings “to decide the issue of whether equitable tolling

excuses [East Coast]’s late filed petition.” The case was initially scheduled for

final hearing on January 1 5 , 20 20 ; however, on January 9, 2020, Petitioner

filed a Motion to Deem Matters Admitted and Relinquish Jurisdiction

(“Motion”) due to Respondent’s failure to timely respond to discovery

requests. Following a telephonic hearing on the Motion, the undersigned

de nied the Motion, canceled the final hearing, and extended the time for

Respondent to comply with outstanding discovery requests. Following a

required status report from the parties, the undersigned rescheduled the

hearing for April 27, 2020. The final hear ing was rescheduled again for

April 30, 2020 , via Zoom Conference.

The final hearing was conducted as rescheduled. The Division presented

the testimony of Ms. Offutt, and Cathy N úñ ez, a Division regulatory

consultant and facilitator. Petitioner’s Exhibits 1 through 9 were admitted

into evidence.

Respondent introduced the testimony of its o wner, Rupert L. Jones , and

Heather Cox, a routing coordinator. Respondent’s Exhibits 1 through 11 were

admitted into evidence.

The proceedings were recorded and the one - volume Transcript was filed

May 14, 2020. The Division timely filed a Proposed Recommended Order on

May 22, 2020, which has been considered by the undersigned in preparation of this Recommended Order. Respondent filed an untimely Proposed

Recommended O rder on May 29, 2020, to which Petitioner did not file an

objection. The undersigned has considered Respondent’s Proposed

Recommended Order in preparation of this Recommended Order.

F INDINGS OF F ACT

1. The Division is the state agency responsible for enfo rcing the statutory

requirement that employers secure payment of workers’ compensation

insurance for the benefit of their employees. § 440.107(3), Fla. Stat. (2019).

2 . Respondent is a contractor specializing in installation of doors,

windows, and hurrican e shutters. Rupert L. Jones is Respondent’s o wner and

r egistered a gent. Respondent’s business address is 835 Creel Street,

Melbourne, Florida 32935.

3. Tresa Thomas was employed as Respondent’s office manager and

worked at the business address at all times relevant hereto.

4. Heather Cox was employed as Respondent’s routing coordinator and

worked at the business address at all times relevant hereto.

5. Ms. Offutt is a Division compliance investigator. She checks employers

for compliance with Florida’s work ers’ compensation law. If she determines

that an employer is not in compliance, Ms. Offutt issues an SWO along with a

penalty assessment for the asserted periods of non - compliance. The Division

determines periods of non - compliance by examining business rec ords

obtained through a business records request.

6 . Ms. Offutt met with Mr. Jones and Ms. Thomas at East Coast on

January 23, 2019 , to perform a compliance check. As a result of that check,

the Division issued Respondent an SWO and Order of Penalty Assess ment.

Ms. Offutt personally served the SWO and Order of Penalty Assessment on

Mr. Jones at East Coast.

7. The SWO included a Notice of Rights informing East Coast that it could

request a hearing to contest the SWO within 21 days of receipt of the SWO.

East Coast did not request a hearing.

8 . Following review of East Coast’s records by Cathy Núñez, the Division’s

regulatory consultant, the Division issued an Amended Order dated April 29,

2019, imposing a penalty of $62,389.94. Ms. Offutt personally served th e

Amended Order to Mr. Jones at East Coast. The Amended Order included a

Notice of Rights advising that East Coast had 21 days from receipt of the

Amended Order to file a petition for a hearing challenging the assessment.

The Notice of Rights also stated t hat failure to request a hearing during that

period waived the right to challenge the assessment. East Coast did not

request a hearing.

9 . In response to the Amended Order, Mr. Jones provided additional

records to Ms. Núñez. Review of those records resulte d in issuance of a

Second Amended Order, reducing the penalty assessment to $45,274.90.

10. Ms. Offutt personally served the Second Amended Order to East

Coast ’s business office on June 24, 2019. Neither Mr. Jones nor Ms. Thomas

was in the office when Ms. Offutt arrived. On behalf of East Coast, Ms. Cox

signed for , and received , the Second Amended Order, along with the Notice of

Rights and Penalty Calculation Worksheet.

11. The Notice of Rights informed Respondent of its right to request a

hearing to conte st the penalty within 21 days of receipt of the Second

Amended Order. The Notice of Rights also contained the following

prominently - displayed language:

FAILURE TO FILE A PE TITION WITHIN THE

TWENTY - ONE (21) CALENDAR DA YS OF

RECEIPT OF THIS AGEN CY ACTION

CON SITUTES A WAIVER OF YOUR RIGHT

TO ADMINISTRATIVE RE VIEW OF THE AGENCY ACTION.

12. While at the East Coast office on June 24, 2019, Ms. Offutt also

informed Ms. Cox that East Coast had a 21 - day deadline to respond to the

Second Amended Order.

13. On July 3 , 2019, Ms. Offutt telephoned East Coast, spoke with

Ms. Thomas, and reminded her of the deadline to respond to the Second

Amended Order.

14. On July 3, 2019, Ms. Thomas sent an email to Ms. Núñez indicating

she had questions regarding the Second Amended Order. The email indicates

Ms. Thomas was very confused as she “thought [Ms. Núñez] had already closed this.”

15. On July 10, 2019, Ms. Núñez called Ms. Thomas in response to the

email and the two played “phone tag” that day, alternately leaving messages

for one another. Ms. Núñez also sent an email to Ms. Thomas noting that she

had received her message and inviting an email exchange. Ms. Thomas and

Ms. Núñez finally spoke via telephone on July 10th, but Ms. Thomas did not

have the worksheets available to review with Ms. Núñez at that time.

16. On July 11, 2019, Ms. Núñez sent a second email to Ms. Thomas,

attached copies of the worksheets and the Penalty Audit Summary Report,

and requested that Ms. Thomas call her “at [her] earliest opportunity” so they

could review the documents.

17. Ms. Thomas contacted Ms. Núñez via telephone on July 12, 2019, and

the two reviewed the worksheets together. Ms. Thomas stated that she would

have Mr. Jones contact Ms. Offutt to work out a payment plan.

18. The deadline for East Coast to file a petition to contest the Second

Amended Order was July 15, 2019.

19. On August 5, 2019, East Coast filed a Petition for Hearing challenging

the penalty imposed by the Second Amended Order. In the Peti tion,

Mr. Jones alleged, as follow s:

I am writing this letter in protest to the audit

summary and am filing to petition for a hearing. I was told by Linda [Offutt] that the deadline had past [sic]. I was not given the paperwork that was

dropped off to an office girl. I was in the field and

the office manager was out sick so it was never given to anyone. This paper work explained the audit and talked about filing a petition.

20. At the final hearing, Ms. Cox testified that she remembered receiving

paperwork from Ms. Offutt, but thought it w as a Saturday because she was

in the office alone. The record established that June 24, 2019, was a Monday.

21. Mr. Jones testified that he never received the Second Amended Order.

22. The record clearly establishes that Ms. Thomas was in possession of

the Second Amended Order and communicated with Division employees

about it prior to the July 15, 2019 deadline.

23. East Coast introduced no evidence t ending to prove that either

Ms. Offutt or Ms. N úñ ez, or any other employee of the Division,

misrepresented to its employees the deadline for filing a petition to challenge

the penalty imposed by the Second Amended Order.

C ONCLUSIONS OF L AW

24 . The Division of Administrative Hearings has jurisdiction over the

subject matter of a nd parties to this proceeding. §§ 120.569, 120.57(1), Fla.

Stat. (2019).

25. A party wanting to challenge an agency decision must file its petition

for a hearing within 21 days of receiving written notification of the decision.

Failure to file a petition “ within 21 days waives the right to request a

hearing.” Fla. Admin. Code R. 28 - 106.111(2),(4); Whiting v. Dep't of Law Enf. ,

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

26. The Division has the burden to show that Respondent received the

Second Amended Order, and that Respondent’s request for hearing was

untimely. As the party seeking to invoke the doctrine of equitable tolling,

Respondent 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.

27. T he filing of a request for hearing occurs when the agency clerk 1

receives the request for hearing. See Fla. Admin. Code R. 28 - 106.104(1).

28. The Division established, by a preponderance of the evidence, that it

served Respondent with the Second Amended Or der, by hand delivery , to an

authorized employee at its business office on June 24, 2019. The Second

Amended Order explicitly stated that Respondent had 21 days to file a

petition for hearing, and it explicitly advised that a failure to comply with the tim e requirements would constitute a waiver of the right to administrative review.

1 In this case, the filing occurred on August 2, 2019, when the agency clerk of the

Department of Financial Services received the Petition, rather than August 5, 2019, when

the Petition was routed to , and stamped in by , the Division.

29. The Division further established, by a preponderance of the evidence,

that it received Respondent’s Petition for Hearing on August 2, 2019 —

18 days after the filing deadline .

30. The undersigned concludes that the Division has established, by a

preponderance of the evidence, that Respondent’s petition for hearing was

untimely.

Equitable Tolling

31. The Administrative Procedure Act requires agencies to dismiss

untimely petitio ns, but further provides that this direction “does not

eliminate the availability of equitable tolling as a defense to the untimely

filing of a petition.” § 120.569(2)(c), Fla. Stat.; Madison Highlands, LLC v.

Fla. Hous . Fin . Corp. , 220 So. 3d 467, 471 - 72 (Fla. 5th DCA 2017).

32. A late request for an administrative hearing is not a jurisdictional

defect. Id. (citing Machules v. Dep’t of Admin. , 523 So. 2d 1132, 1134 (Fla.

1988); Pro Tech Monitoring, Inc. v. Dep’t of Corr. , 72 So. 3d 277, 280 (Fla. 1st

DCA 2011)); see also , Williams v. Dep’t of Corr. , 156 So. 3d 563, 565 (Fla. 5th

DCA 2015) (“The doctrine of equitable tolling can be applied to extend an administrative filing deadline.”).

33. Under the doctrine of equitable tolling, a late - filed petition, suc h as

the one in the instant case, should be accepted when a party “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 forum,” provided t hat the opposing party will suffer no prejudice.

Machules , 523 So. 2d at 1134.

34. As found in paragraph 23 above, neither Ms. Offutt nor Ms. N úñ ez

misled or lulled Respondent into inaction. To the contrary, the record

established that Ms. Offutt advised M s. Cox of the deadline when she served

the Second Amended Order. Further, the record establishes that both

Ms.

Offutt and Ms. N úñ ez communicated with East Coast’s office manager,

Ms. Thomas, to ensure she understood the penalty calculation worksheets

and w as aware that a deadline was approaching.

35. Respondent offered no evidence that it had been prevented in some

extraordinary way from asserting its rights. Mr. Jones’ allegation that he

never received the Second Amended Order, if true, could only be due t o

internal miscommunications. Ms. Thomas clearly had the Second Amended

Order prior to the deadline to request a hearing and indicated to Ms. Núñez

that she would discuss it with Mr. Jones. No evidence was presented to

demonstrate that such a breakdown in communication between office

manager and business owner was extraordinary in any way.

36. Respondent has failed to establish the application of the equitable

tolling doctrine. See Jancyn Mfg. Corp. v. Dep't of Health , 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 party’s “own inattention.”).

37. Respondent has provided no evidence that it was lulled into inaction,

prevented from exercising its rights in some ext raordinary way, or that it

timely asserted its rights mistakenly in a wrong forum.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Financial Services, Division of

Workers' Compensatio n, dismiss the request for hearing of East Coast

Shutters, Inc., as un timely.

D ONE A ND E NTERED this 12th day of June , 2020 , in Tallahassee, Leon

County, Florida.

S UZANNE V AN W YK

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 12th day of June , 2020 .

C OPIES F URNISHED :

Rupert L. Jones

E ast Coast Shutters, Inc.

835 Creel Street

Melbourne, Florida 32935

(eServed)

Leon Melnicoff, Esquire Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

(eServed)

Barbara L. Davis, Esquire

Department of Financial Ser vices

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

(eServed)

Julie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

(eServed)

N OTICE OF R IGHT T O S U BMIT E XCEPTIONS

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.