The purpose of the rule revisions is to clarify existing appeal procedures and to incorporate new appeal procedures and standards of review of the Reemployment Assistance Appeals Commission with the effect of optimizing ....

 

DEPARTMENT OF COMMERCE

Division of Workforce Services

RULE NOS.:RULE TITLES:

73B-21.002Form of Appeal

73B-21.003Filing an Appeal

73B-21.0031Computation of Time

73B-21.0032Dismissal

73B-21.005Notice to Parties

73B-21.008Review by the Commission

73B-21.009Record on Appeal to the Commission

73B-21.010Briefs and Motions

73B-21.011Newly Discovered Evidence

73B-21.012Orders of the Commission

PURPOSE AND EFFECT: The purpose of the rule revisions is to clarify existing appeal procedures and to incorporate new appeal procedures and standards of review of the Reemployment Assistance Appeals Commission with the effect of optimizing accessibility for the parties and efficiency in the review process.

SUMMARY: Rule 73B-21.002 (Form of Appeal) revisions clarify what constitutes the form an appeal and removes language regarding how to file an appeal, which is relocated to Rule 73B-21.003. Rule 73B-21.003 (Filing an Appeal) is reorganized as follows: language regarding how to file an appeal, as set forth in Rule 73B-21.002 (Form of Appeal), is relocated in this section; language regarding computing time periods is deleted from this section and relocated to Rule 73B-21.0031 (Computation of Time); language regarding the dismissal of untimely appeals is deleted from this rule and relocated to Rule 73B-0032 (Dismissal); and language regarding who may file an appeal is deleted since that is already provided by statue. Rule 73B-21.0031(Computation of Time) provides how to compute time periods, as formerly set forth in Rule 73B-21.003 (Filing an Appeal). Rule 73B-21.0032 (Dismissal) establishes the grounds and procedures for dismissing an appeal. Rule 73B-21.005 (Notice to Parties) is revised to clarify when a document is deemed filed and served. Rule 73B-21.008 (Review by the Commission) revisions modify the standard of review of a referee’s legal conclusion; add a standard of review for procedural error; and remove language regarding the Commission’s authority to issue written orders, which is relocated to Rule 73B-21.012 (Order of the Commission). Rule 73B-21.009 (Record on Appeal to the Commission) is renumbered for clarity; other revisions delete language mandating the Commission to grant a motion for extension of time to file a brief when made in connection with a request for the record. Rule 73B-21.010 (Briefs and Motions) is revised as follows: to allow for filing documents by email or fax; to require the Commission to provide the parties notice, after resolution of an untimeliness issue, whether the case will be resolved on the merits and, if so, a new briefing schedule; and to clarify existing rule language. Rule 73B-21.011 (Newly Discovered Evidence) is revised to permit the Commission to investigate administrative records in connection with its review in certain circumstances and to establish procedures for when the Commission considers such records. Rule 73B-21.012 (Orders of the Commission) revisions remove language that the Commission shall review the record because it is superfluous to that provided in Rule 73B-21.008 (Review by the Commission); add language that was previously set forth in Rule 73B-21.008 setting forth the Commission’s authority to reverse, modify, or remand a referee’s decision; and remove the requirement that the Commission shall furnish a copy of the order to the Florida Department of Commerce, since such orders are transmitted and made available to the Department by way of the Department's online system.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

In so determining, the agency prepared a checklist for each rule to assess the necessity for a SERC.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The proposed rules to be amended establish procedures for the Commission's appellate level review and have no economic impact. Based on the information at the time of the analysis and pursuant to Section 120.541, Florida Statutes, the rules will not require legislative ratification.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 443.012(11) FS.

LAW IMPLEMENTED: 443.151(4)(b)-(d) FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Katie Sabo, Executive Senior Attorney, Reemployment Assistance Appeals Commission, 1211 Governors Square Blvd., Ste. 300, Tallahassee, FL 32301, [phone], [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

73B-21.002 Form of Appeal.

(1) A written appeal statement that is responsive to and expresses disagreement with an adverse referee’s decision shall be accepted as an appeal. The written appeal statement should include any allegation(s) of error with respect to the referee’s decision and/or the proceedings below and factual and/or legal support for the allegations. Allegations of error not specifically set forth in the appeal statement may be considered forfeited. An appeal of an appeals referee’s decision may be filed on-line at the Florida Department of Commerce website at http://www.floridajobs.org/RAACIAP, (A100RAAC(O) Florida Reemployment Assistance Appeals Commission Request for Review), Rev. 04/12, http://www.flrules.org/Gateway/reference.asp?No=Ref-01661, incorporated herein by reference, or at any of the following locations:

(a) By facsimile (FAX), courier service, in-person or mail to the Reemployment Assistance Appeals Commission (1211 Governors Square Boulevard, Suite 300, Tallahassee, FL 32301, facsimile (FAX) number [phone]); or

(b) By facsimile (FAX), courier service, in-person or mail to the central appeals office maintained by the Department of Economic Opportunity Office of Appeals (physical address: Caldwell Building MSC #347, 107 East Madison Street, Tallahassee, FL 32399-4143; mailing address: P.O. Box 5250, Tallahassee, FL 32399-5250; facsimile (FAX) number [phone]).

(2) An appeal shall be in writing and should contain the following:

(a) The claimant’s name and last four digits of the claimant’s social security number;

(b) The name, tax account number, and mailing address of the employer or employers involved;

(c) The email address of the appellant; and

(d)(c) The referee decision docket number of the case being appealed.

(3) The following shall constitute acceptable methods of appeal:

(a) Any legible written notice filed in accordance with these rules which expresses disagreement with or otherwise indicates a desire to appeal;

(3)(b) To assist a party in ensuring all the information listed in subsection (2) is included, an appeal may be filed online as provided by paragraph 73B-21.003(1)(a), F.A.C., or by completing Any person entitled to file an appeal may obtain an appeal form (A100RAAC(E) (English) Reemployment Assistance Appeals Commission Request For Review, Rev. XX/XX 04/12; http://www.flrules.org/Gateway/reference.asp?No=Ref-01662); (A100RAAC(S) (Spanish), Solicitud de Revisión Por la Comisión de Apelaciones de Asistencia al Reempleo, Rev. XX/XX 04/12, http://www.flrules.org/Gateway/reference.asp?No=Ref-01663); (A100RAAC(C) (Creole), Komisyon Dapèl Asistans Reyanbochaj Demann Pou Revizyon, Rev. XX/XX 04/12, http://www.flrules.org/Gateway/reference.asp?No=Ref-01664), incorporated herein by reference, at the Department’s website at http://www.floridajobs.org/RAforms. Use of the form is not mandatory; however, whatever instrument used should include the information required in subsection (2), and a concise statement of any and all allegations of error with respect to the referee’s decision, and factual and legal support for these challenges. Allegations of error not specifically set forth in the request for review may be considered waived.

(4)(c) Failure to include all of the information listed in subsection (2), and paragraph (3)(b), will not constitute cause for rejection of the appeal, but may result in a delay in processing the appeal.

(5)(4) With leave from the Commission, an amended appeal may be filed in the manner prescribed by rule for filing an original appeal.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(d) FS. History–New 5-22-80, Formerly 60BB-6.02, Amended 8-20-86, 8-7-01, Formerly 38E-2.002, 60BB-6.002, Amended 10-4-12,___________.

 

73B-21.003 Method of Filing an Appeal.

(1) Appeals may be filed with the Commission: Any person who is entitled by law to notice of an appeals referee’s decision may file an appeal of that decision within 20 calendar days after the mailing of notice of the appeals referee’s decision to the parties at their last known addresses or, if not mailed, within 20 calendar days after the date of delivery of such notice.

(a) Online at https://raaciap.floridajobs.org;

(b) By facsimile (FAX), [phone]; or

(c) By mail, courier service, or in-person, 1211 Governors Square Boulevard, Suite 300, Tallahassee, FL 32301.

(2) If an appeal is submitted to the Florida Department of Commerce, the Department will forward the appeal to the Commission. The filing date for purposes of computing timeliness of the appeal will be calculated as set forth in Rule 73B-21.0031, F.A.C. However, submitting an appeal to the Department may result in a delay in processing the appeal.  Appeals filed to the locations specified in Rule 73B-21.002, F.A.C., by mail are filed when postmarked by the United States Postal Service. Appeals filed at the locations specified in Rule 73B-21.002, F.A.C., by hand delivery, courier service, or facsimile (FAX) are filed when date stamped at the authorized location. Appeals filed through the Department website as provided in Rule 73B-21.002, F.A.C., shall be considered to have been filed on the date the confirmation number is issued.

(3) An appeal delivered in person or by facsimile transmission will be date stamped by a Commission or Florida Department of Commerce employee on the date hand delivered or the date placed on the document by the Department or Commission fax system. The Internet filing system shall post on the appeal the date the confirmation number is issued and the appeal was successfully received by the system.

(4) In computing any period of time prescribed or allowed by these rules, the date of rendition of a decision, order, notice, or the filing of an appeal from which a designated period of time begins to run shall not be counted. The last day of the period shall be counted unless it is a Saturday, Sunday or holiday, in which event, the period shall run until the end of the next day that is not a Saturday, Sunday or holiday. As used in this rule, holiday means:

(a) Those dates so designated by the Section 110.117, F.S.;

(b) Any other day on which the Office of the Clerk of the Commission is closed; and,

(c) Any other day on which the United States Postal Service is closed.

(5) An application for review which is not filed within the time allowed by law shall be dismissed by the Commission for lack of jurisdiction. The dismissal decision shall be limited to findings of fact and a conclusion of law regarding the timeliness of the application for review.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(b), (c), (d) FS. History–New 5-22-80, Formerly 38E-2.03, Amended 8-20-86, 1-5-93, 8-7-01, Formerly 38E-2.003, 60BB-6.003, Amended 11-1-12, 12-6-16, __________.

 

73B-21.0031 Computation of Time

The following rules apply in computing any period of time stated in days as prescribed by Section 443.151(4)(b)6., F.S., or allowed by this chapter.

(1) Periods of time shall be calculated in consecutive calendar days.

(2) Days shall be counted beginning with the day following the date of rendition of a decision, order, notice, or the filing of an appeal. The last day of the period shall be counted unless it is a Saturday, Sunday, or holiday, in which event, the period shall run until the end of the next day that is not a Saturday, Sunday, or holiday. For the purpose of this section, “holiday” means:

(a) Those dates so designated by Section 110.117, F.S.;

(b) Any other day on which the Office of the Clerk of the Commission is closed;

(c) Any other day on which the United States Postal Service is closed; and

(d) Any other day covered by an order issued pursuant to Florida Rule of General Practice and Judicial Administration 2.205(a)(2)(B)(iv) that suspends, tolls, or otherwise grants relief from time deadlines for the area in which the appellant resides.

(3) Appeals mailed are deemed filed when postmarked by the United States Postal Service. Appeals delivered in person or by courier are deemed filed when date stamped at the authorized location. Appeals sent by facsimile are deemed filed on the date recorded by the Commission’s fax system or the date received by the Department. Appeals submitted through the Department’s website are deemed filed on the date the confirmation number is issued, which the internet filing system shall post on the appeal.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(c), (d) FS. History–New _________.

 

73B-21.0032 Dismissal.

(1) An appeal which is not filed within the time allowed by law shall be dismissed by the Commission for lack of jurisdiction. Prior to dismissing an appeal for untimeliness, a party shall have the opportunity to explain the reason for the untimely appeal and/or establish a legal basis for the Commission to exercise jurisdiction. The Commission may issue an order to show cause and consider the appellant’s response, if timely filed. 

(2) In addition to the ground for dismissal set forth in subsection (1), the Commission may dismiss an appeal if:

(a) The appeal is not responsive to or does not express disagreement with a referee’s decision as required by subsection 73B-21.002(1), F.A.C.;

(b) The appealed referee’s decision is not adverse to the appellant;

(c) The appeal was docketed in error;

(d) There is no disputed issue to be decided; or

(e) The matter is moot.

(3) A dismissal order issued pursuant to this rule shall be in writing and specify the grounds for dismissal.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(c), (d) FS. History–New _________.

 

73B-21.005 Notice to Parties.

(1) No change.

(2) A copy of all briefs, motions, documents and correspondence filed with the Commission shall be served by the filing party on the opposing party or parties. Briefs, motions, documents and correspondence are considered filed and served when received by the Commission.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(d) FS. History–New 5-22-80, Formerly 38E-2.05, Amended 8-20-86, Formerly 38E-2.005, 60BB-6.005, Amended ___________.

 

73B-21.008 Review by the Commission.

(1) The Commission shall review the appeals referee’s decision to determine: whether the fairness of the proceedings or the correctness of the decision may have been impaired by a material error in procedure; whether the findings of fact are supported by competent, substantial evidence in the record; and whether the legal conclusions are in accord with the law.  The review conducted by the Commission shall be limited to matters contained within the official record which was before the appeals referee and such new evidence as is accepted by the Commission pursuant to Rule 73B-21.011, F.A.C.

(2) The Commission’s review shall be limited to the matters contained within the record on appeal as provided in Rule 73B-21.009, F.A.C. The Commission may relinquish jurisdiction and direct the taking of additional evidence by an appeals referee or other hearing officer. The evidence shall be taken as prescribed by rule for the taking of evidence in hearings before referees. Unless otherwise directed, jurisdiction shall revert to the Commission for final disposition.

(3) The Commission shall review the appeals referee’s decision to determine whether the findings are supported by competent substantial evidence in the record and the legal conclusions are in accord with the essential requirements of the law. By written decision, the Commission shall affirm, modify, or reverse the referee’s decision, or shall remand with instructions.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(c), (d) FS. History–New 5-22-80, Formerly 38E-3.02, Amended 8-20-86, Formerly 38E-3.002, 60BB-7.002, 73B-22.002, Amended ________.

73B-21.009 Record on Appeal to the Commission.

(1) The contents of the record on appeal before to the Commission shall consist only of:

(a) The official record that was before the appeals referee, including:

1.(a) All notices, pleadings, motions, intermediate rulings, and evidence received or considered by the appeals referee or other hearing officer, as well as all proffers of proof, objections and rulings thereon;

2.(b) All department memoranda or data submitted to the appeals referee or other hearing officer, provided that such memoranda or data were submitted prior to disposition of the appeal, after notice of the submission to all parties;

3.(c) All matters placed upon the record after an ex parte communication pursuant to Section 120.66(2), F.S.; and

4.(d) The audio recording of the proceedings made by or under the supervision of the appeals referee or other hearing officer;

(b)(e) The decision of the appeals referee or special examiner, if any;

(c)(f) The notice of docketing of the appeal of the referee’s decision by the Reemployment Assistance Appeals Commission, or the order of the Commission removing the proceedings to itself or initiating review upon its own motion;

(d)(g) Newly discovered Eevidence accepted by the Commission pursuant to as meeting the requirements of Rule 73B-21.011, F.A.C.

(2) Copies of the Record.

(a) Copies of the record or portions thereof may be obtained by parties or their representatives upon written request.

(b) Parties, other than claimants, shall be required to pay a duplication charge not in excess of actual cost.

(c) A timely motion for extension of time to file a brief, when filed in conjunction with a request for the record, or portions thereof, will be granted.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(d) FS. History–New 5-22-80, Formerly 38E-3.03, Amended 8-20-86, 1-5-93, Formerly 38E-3.003, 60BB-7.003, Amended 10-4-12, Formerly 73B-22.003, Amended _________.

 

73B-21.010 Briefs and Motions.

(1) Any party may file a brief setting forth the party’s position and argument in support thereof. The appellant’s brief shall be filed with the Commission and served on the appellee within 15 days of the filing of the appeal application for review. An answer brief shall be filed within 15 days after service of the appellant’s brief. If the appellant does not file a brief, the appellant elects to waives its right to file a brief,; in that event, the appellee may, nevertheless, file a brief no not later than 30 days after the appeal application for review was filed. The original and two copies of the brief shall be filed with the Commission. Unless otherwise allowed by the Commission, no other briefs may be filed. Briefs not timely filed may not be considered by the Commission.

(2) No change.

(3) Except as provided in Rule 73B-21.009, F.A.C., a A request for an extension of time, postponement or continuance must be filed in writing and shall be granted by the Commission upon a showing of good cause.

(4) A motion to extend the time for filing briefs, when filed within the limits prescribed in subsection (1), above, shall toll the time prescribed until the Commission, by written order, grants or denies the request. An order granting the motion shall state the number of days the time limit is extended. An order denying the motion shall state when the time for filing recommences. again commences to run. If the Commission has previously denied a motion to extend the time for filing a brief on the merits because the appeal was untimely filed, and the untimely appeal is later accepted as timely filed, the Commission shall notify all parties by written order that the appeal will proceed to the review process described in Rule 73B-21.008, F.A.C. The order shall state the time for briefing.

(5) Briefs, motions or requests may be transmitted filed by hand delivery, courier, mail, email or fax to the Office of the Clerk of the Commission and shall be considered filed when received by the Commission or by depositing the document in the United States mail in a properly addressed envelope with sufficient postage affixed thereto. A copy of all briefs, motions, or requests shall be served on the opposing party or parties by hand delivery, courier, or by mail.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(d) FS. History–New 5-22-80, Formerly 38E-3.04, Amended 8-20-86, Formerly 38E-3.004, 60BB-7.004, 73B-22.004, Amended.

 

73B-21.011 Supplemental Newly Discovered Evidence.

Notwithstanding subsection 73B-21.008(2), F.A.C., the Commission can consider supplemental evidence under the circumstances as set forth in this rule. Any evidence considered under this rule will be marked as an exhibit and moved into the record.

(1) Newly Discovered Evidence.

(a)(1) A party may request Upon written request, the Commission may to consider newly discovered evidence if such evidence is material to the outcome of the case and could not have reasonably been discovered prior to the hearing before the appeals referee.

(b)(2) The request shall be in writing and shall include a clear and concise description of the evidence and a statement demonstrating. The requesting party shall demonstrate that the evidence is material to the outcome of the case and that it could not have been reasonably discovered prior to the hearing by an exercise of due diligence.

(c)(3) Before When the Commission grants a party’s request to enter new evidence into the official record on appeal, the opposing party shall be given the opportunity to examine the evidence and offer rebuttal.

(2) Administrative Records.

(a) If the record on appeal indicates that material evidence could be present in the administrative records of the Florida Department of Commerce, the Commission will investigate whether such evidence exists. 

(b) If potentially material evidence is found, the Commission shall give the party or parties an opportunity to examine the evidence and will issue an order to show cause as to why that evidence should not be considered before moving the evidence into record on appeal. 

(c) In lieu of issuing an order to show cause, the Commission may remand the case to the appeals referee for supplemental proceedings where the evidence raises a fact issue within the province of the referee to decide or requires additional testimony from the party or parties to supplement or explain the evidence.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(d) FS. History–New 5-22-80, Formerly 38E-3.05, Amended 8-20-86, Formerly 38E-3.005, 60BB-7.005, 73B-22.005, Amended ___________.

 

73B-21.012 Orders of the Commission.

(1) By written decision, the Commission shall affirm, modify, or reverse the referee’s decision, or shall remand the matter to the appeals referee with instructions. The Commission shall consider the record before it and enter a written order.

(2) A copy of the order shall be mailed to the last known address of each of the parties or their representatives. A copy shall also be furnished to the workforce program support section of the Florida Department of Commerce. The copies mailed to the parties shall include a notice transmittal form advising them of their right to review of the order by the district courts of appeal.

(3) No change.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(c), (d) FS. History–New 5-22-80, Formerly 38E-3.07, Amended 8-20-86, 8-7-01, Formerly 38E-3.007, 60BB-7.007, 73B-22.007, Amended _____________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Katie Sabo, Executive Senior Attorney

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Reemployment Assistance Appeals Commission (Charles T. Faircloth, Jr., Chair; Geri Atkinson-Hazelton, Commissioner; and Thomas D. Epsky, Commissioner)

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: January 17, 2024

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: March 8, 2024