The purposes and effects of the rule revisions are to incorporate new forms, add email addresses, clarify existing procedures, and incorporate new procedures.

 

DEPARTMENT OF ECONOMIC OPPORTUNITY

Division of Workforce Services

RULE NOS.:RULE TITLES:

73B-20.003Form of Appeal

73B-20.004Filing an Appeal or Request to Reopen

73B-20.005Time for Filing Appeal

73B-20.007Late Filing of Appeals

73B-20.010Consolidation

73B-20.012Disqualification and Substitution of Appeals Referee

73B-20.014Scheduling of Hearings

73B-20.015Notice of Hearing

73B-20.016Continuances

73B-20.017Nonappearance of Parties

73B-20.022Withdrawal

73B-20.024Conduct of the Hearing

73B-20.025Decision

73B-20.026Post Decision Communication

73B-20.027Appeal to the Unemployment Appeals Commission

PURPOSE AND EFFECT: The purposes and effects of the rule revisions are to incorporate new forms; add email addresses; clarify existing procedures; and incorporate new procedures.

SUMMARY: Rule 73B-20.003, F.A.C. – incorporates new appeal form (use is not mandatory); Rule 73B-20.004, F.A.C. – adds email address as an acceptable way of filing an appeal; adds rule citations to clarify that requests for reopening are limited to nonappearances and withdrawals;

Rule 73B-20.005, F.A.C. – makes changes to address appeals filed by email; reorganizes the language and numbering of the subparagraphs; expands definition of “holiday”; clarifies effective filing dates; Rule 73B-20.007, F.A.C. – adds language about referees reserving ruling on the issue of timeliness; Rule 73B-20.01, F.A.C.0 – clarifies procedures; Rule 73B-20.012, F.A.C. – clarifies circumstances under which an appeals referee should be disqualified/substituted; Rule 73B-20.014, F.A.C. – changes title and includes language from Rule 73B-20.015, F.A.C. Notice of Hearing for better flow; includes language regarding the 24-hour advance call requirement; changes “appeals referee” to “Office of Appeals” in subsections (2) and (4); changes “mailed” and “provided” to “sent”; Rule 73B-20.015, F.A.C. – corrects inconsistency in prior Rule 73B-20.014, F.A.C. regarding 24-hour advance delivery of tangible evidence and makes more logical flow with rules; minor grammatical changes; Rule 73B-20.016, F.A.C. – adds form number to incorporate by reference (not mandatory); adds in references to new procedures regarding the appeals magistrate; Rule 73B-20.017, F.A.C. – references advance call requirement and adds language about referees reserving ruling on the issue of nonappearance; minor grammatical changes; Rule 73B-20.022, F.A.C. – adds references to appeals magistrate and submission of withdrawal requests by email; removes requirement that withdrawal request be signed to account for electronic submission; Rule 73B-20.024, F.A.C. – adds 10-minute contact requirement; reorders to better reflect referees' duties in light of federal guidelines; addresses parties’ duty to object to evidence; Rule 73B-20.025, F.A.C. – removes statutory references to clarify; adds electronic distribution; Rule 73B-20.026, F.A.C. – sets out the guidelines for the issuance of corrected decisions; Rule 73B-20.027, F.A.C. – reworded for flow/clarity; changes “appeals referee” to “Office of Appeals” for more specificity.

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.

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 are procedural rules that have no economic impact. A SERC has not been prepared by the agency. For rules listed where no SERC was prepared, the agency prepared a checklist for each rule to determine the necessity for a SERC. Based on this 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: 443.041(2), 443.151(3)(a), (e), (4)(a),(d),(7) 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: Anne Marie Frazee, [e-mail], [phone]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

73B-20.003 Form of Appeal.

(1) Written notice of disagreement with an adverse determination or redetermination shall constitute an appeal.  Preferably, an appeal should be filed by completing the Notice of Appeal form (DEO-A100(E) (English), Office of Appeals Notice of Appeal, Rev. 11/18, http://www.flrules.org/Gateway/reference.asp?No=Ref-01655; DEO-A100(S) (Spanish), Oficina de Apelaciones Aviso de Apelación, Rev. 11/18, http://www.flrules.org/Gateway/reference.asp?No=Ref-01656; DEO-A100(C) (Creole), Biwo Dapèl Avi Sou Apèl, Rev. 11/18, http://www.flrules.org/Gateway/reference.asp?No=Ref-01657), incorporated herein by reference, available at the Department’s website, http://www.floridajobs.org/RAforms. Any legible written notice filed in accordance with these rules which expresses disagreement with or otherwise indicates a desire to appeal a determination or redetermination shall constitute an appeal.

(2) The notice of appeal Any person entitled to file an appeal may obtain an appeal form (DEO-A100(E) (English), Office of Appeals Notice of Appeal), Rev. 5/12, http://www.flrules.org/Gateway/reference.asp?No=Ref-01655; (DEO-A100(S) (Spanish), Oficina de Apelaciones Aviso de Apelación – español), Rev. 05/12, http://www.flrules.org/Gateway/reference.asp?No=Ref-01656; (DEO-A100(C) (Creole), Biwo Apèl Yo Avi Apèl), Rev. 05/12, http://www.flrules.org/Gateway/reference.asp?No=Ref-01657, incorporated herein by reference, available at the Department’s website, http://www.floridajobs.org/RAforms. Use of the form is not mandatory; however, whatever instrument is used, it should include the following information:

(a) The name and last four digits of the social security account number of each claimant, if any, involved;

(b) The name and tax account number of each employer, if any, involved;

(c) The date, issue identification number, and subject matter of the determination; and,

(d) A concise statement of the reasons for disagreement with the determination;.

(e) A concise statement of the reason the appeal is filed untimely, if applicable; and,

(f) A statement of hearing specifications as outlined in the Notice of Appeal form, including information regarding interpretation, witnesses, representation, and exhibits.

(3) No change.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(d) FS. History–New 5-22-80, Formerly 38E-5.03, Amended 8-20-86, 8-7-01, Formerly 38E-5.003, 60BB-5.003, Amended 10-4-12,                       .

 

73B-20.004 Place for Filing an Appeal or Request to Reopen.

(1) Appeals, or requests to reopen filed pursuant to rule 73B-20.017(4) or rule 73B-20.022(1), F.A.C., may be submitted to the central Office of Appeals by email, [e-mail]; facsimile (FAX), [phone]; courier service or in person, Caldwell Building, MSC #347, 107 East Madison Street, Tallahassee FL 32399-4143; or by mail, P.O. Box 5250, Tallahassee, FL 32399-5250; or

(2) Submitted to the Reemployment Assistance Appeals Commission by facsimile (FAX), [phone]; or courier service, in person, or by mail, (101 Rhyne Building, 2740 Centerview Drive, Tallahassee, Florida 32399-4151); or

(3) No change. 

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(b)1., (d) FS. History–New 5-22-80, Formerly 38E-5.04, Amended 8-20-86, 8-7-01, Formerly 38E-5.004, 60BB-5.004, Amended 10-4-12, 9-8-15,                  .

 

73B-20.005 Time for Filing Appeal.

(1) The appeal shall be filed within 20 calendar days of the date the determination or redetermination was mailed to the appellant’s last known address via the United States Postal Service, delivered electronically via the CONNECT system, or, in the absence of postal mailing or electronic distribution, the date of delivery to the appellant.

(2) In computing any period of time prescribed or allowed by these rules, the date of the distribution/mailing of a determination, redetermination, order, decision, or notice 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.  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 offices of the Department of Economic Opportunity are 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 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 filed by mail are deemed filed when postmarked by the United States Postal Service. Appeals filed by hand delivery, courier service or facsimile are filed when date stamped at an authorized location. Appeals delivered in person are deemed filed on the date hand delivered.  Appeals filed by facsimile transmission are deemed filed on the date recorded on the document by the Department or Commission fax system.  Appeals filed by email are deemed filed when sent, as recorded in the email.  Appeals filed electronically through the CONNECT system are deemed filed on the date the confirmation is issued by the system. The CONNECT system shall post on the appeal the date the confirmation is issued and the appeal was successfully received by the system.

(3) An appeal delivered in person or by facsimile transmission will be date stamped by a Commission or Department of Economic Opportunity 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 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 the issuance of a determination, redetermination, order, decision or notice 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.  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 offices of the Department of Economic Opportunity are closed; and,

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

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(3)(a), (4)(b)1., (d) FS. History–New 5-22-80, Formerly 38E-5.05, Amended 8-20-86, 3-1-98, 8-7-01, Formerly 38E-5.005, 60BB-5.005, Amended 11-19-12, 12-6-16,                       .

 

73B-20.007 Late Filing of Appeals.

(1) through (2) No change.

(3) If the referee finds that the appeal was timely filed, or reserves ruling as provided in subsection (4) of this rule, evidence shall then be taken with regard to the merits of the case, and the appeals referee’s decision shall include findings of fact and conclusions of law with respect to both the timeliness issue and the merits of the appeal.

(4) Referees may reserve ruling on the issue of timeliness and proceed with the merits portion of the hearing when the late-filing party has made an initial showing that the appeal should be deemed timely. 

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(3)(a), (4)(b)1., (d) FS. History–New 5-22-80, Formerly 38E-5.07, Amended 8-20-86, Formerly 38E-5.007, 60BB-5.007, Amended 10-4-12,                         .

 

73B-20.010 Consolidation.

If there are separate appeals which involve the same factual situation, similar issues of law or identity of parties, the Office of Appeals appeals referee may schedule a consolidated hearing for the purpose of taking evidence and receiving argument with respect to all of the appeals; however, the Office of Appeals referee shall not schedule a consolidated hearing if consolidation would prejudice the rights of any party thereto. The Commission may also direct the Office of Appeals to consolidate cases for the reasons set forth above.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(a), (b), (d) FS. History–New 5-22-80, Formerly 38E-5.10, 38E-5.010, 60BB-5.010, Amended            .

 

73B-20.012 Disqualification and Substitution of Appeals Referee.

(1) At any time prior to or during the course of a hearing governed by these rules, any party may move to disqualify the appeals referee on the grounds of bias, prejudice, or that the appeals referee is an interested party. for any of the reasons set forth in sections 120.665(1) and 443.151(4)(a), F.S.

(2) – (3) No change.  

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(a), (d) FS. History–New 5-22-80, Formerly 38E-5.12, 38E-5.012, 60BB-20.012, Amended 12-6-16,         .

 

73B-20.014 Scheduling and Notice of Hearings.

(1) Hearings shall be by telephone conference unless an in-person hearing is agreed upon by the parties and approved by the appeals referee.  If an in-person hearing is held, it shall be conducted held at those regularly established hearing locations convenient to the interested parties or by telephone. If the parties agree to an in person hearing, however, the appeals referee shall conduct an in person hearing at one of the regularly established hearing locations.

(2) The Office of Appeals shall send notice of the hearing to all parties via electronic service to the parties’ CONNECT inbox or by U. S. Postal Service at least 10 days prior to the date of the hearing. In proceedings to which the Department of Economic Opportunity is a party, the notice shall be directed to the Director of the Division of Workforce Services in the Department of Economic Opportunity or one or more of his or her designees. Whenever practicable, notices to employers shall be sent to both the employer’s official address of record and to the job site where the claimant was employed. Notices shall also be sent to attorneys and representatives of record.

(3) The notice shall include or be accompanied by:

(a) A statement of the date, time, and place of the hearing;

(b) A statement of the legal authority and jurisdiction under which the hearing is to be held;

(c) A statement of the issues to be decided by the appeals referee with reference to the specific statutory or rule provisions involved. In the event that any party has not been provided a copy of the determination on appeal, a copy thereof shall be appended to such party’s notice;

(d) A statement that a 24-hour advance call confirmation is required and that the parties’ failure to call in as required by the notice of hearing may result in dismissal of the appeal or an unfavorable decision;

(e) A statement that failure to attend the hearing may result in a dismissal of the appeal or an unfavorable decision;

(f) A statement of the rules regarding requests for continuances and subpoenas;

(g) The address of the office to which all motions, requests, or other correspondence concerning the hearing should be directed;

(h) A DEO Form UCA Bulletin 6E, Appeals Information, Rev. 04/19, http://www.flrules.org/Gateway/reference.asp?No=Ref-05732; DEO Form UCA Bulletin 6S, Información sobre Apelaciones, Rev. 04/19, http://www.flrules.org/Gateway/reference.asp?No=Ref-05733; or DEO Form UCA Bulletin 6C, Enfòmasyon Dapèl, Rev. 04/19, http://www.flrules.org/Gateway/reference.asp?No=Ref-05734; incorporated herein by reference, and available at the Department’s website, www.floridajobs.org/RAforms; and,

(i) Copies of the significant documents from the official file.

(4) Waiver. If the Office of Appeals fails to provide notice in the manner set forth in this section, or if the notice provided is defective in any other way, and all improperly noticed parties nevertheless appear at the hearing, the referee shall inquire whether such parties are willing to waive their rights set forth in subsections (1) - (3).  If the appeals referee obtains informed and intelligent consent from all parties who were not properly noticed, the referee may proceed with the hearing. If any party refuses to consent to waiver, the referee shall continue the hearing and provide proper notice of the rescheduled hearing to all parties.

(2) Where the appeals referee schedules a hearing to be conducted by telephone conference, copies of the significant documents from the official file shall be provided to each party prior to the date of hearing. If any party wishes to submit written or other physical evidence, that party must arrange for delivery of copies to the appeals referee and other parties prior to the scheduled date of hearing. If the hearing is scheduled for a Monday or a day following a holiday, the Saturday and Sunday or the holiday will be excluded from the calculation of the 24-hour period. The 24-hour period will presumptively provide the party against whom the evidence is offered a reasonable opportunity to review such evidence prior to the hearing pursuant to section 443.151(4)(b)5.c.I., F.S.  Documents that have not been provided in this manner Documents which are not available to all parties or their representatives and the public at the time of hearing may not be considered by the appeals referee, absent waiver.

(3) If any party wishes to submit evidence to be considered, pursuant to section 443.151(4)(b)5.c., F.S., as the basis for a finding of fact, notwithstanding section 120.57(1)(c), F.S., the party must arrange for delivery of the evidence to all parties and the appeals referee at least 24 hours prior to the scheduled hearing time. If the hearing is scheduled for a Monday or a day following a holiday, the Saturday and Sunday or the holiday will be excluded from the calculation of the 24 hour period. The 24 hour period will provide the party against whom the evidence is offered a reasonable opportunity to review such evidence prior to the hearing.

(4) Waiver. If the party submitting evidence to be considered, pursuant to section 443.151(4)(b)5.c., F.S., fails to provide the evidence to all parties and the appeals referee at least 24 hours prior to the scheduled hearing time, and all parties to whom the evidence was improperly provided appear at the hearing, the referee shall inquire whether such parties are willing to waive their rights set forth in subsection (3). If the appeals referee obtains informed and intelligent consent from all parties to whom the evidence was not properly provided, the referee may proceed to consider the evidence.

(5) No change.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(a), (b), (d) FS. History–New 5-22-80, Formerly 38E-5.14, Amended 10-5-86, 3-11-99, Formerly 38E-5.014, Amended 3-11-12, Formerly 60BB-5.014, Amended                           .

 

73B-20.015 Service of Written and Other Physical Evidence Notice of Hearing.

(1) If any party wishes to submit written or other physical evidence, that party must arrange for delivery of copies to the appeals referee and other parties at least 24 hours prior to the scheduled date and time of hearing. If the hearing is scheduled for a Monday or a day following a holiday, the preceding Saturday and Sunday or the preceding holiday will be excluded from the calculation of the 24-hour period. The 24-hour period will presumptively provide the party against whom the evidence is offered a reasonable opportunity to review such evidence prior to the hearing pursuant to section 443.151(4)(b)5.c.I., F.S. Documents that have not been provided in this manner may not be considered by the appeals referee, absent waiver.

(2) Waiver. If the party submitting written or other physical evidence to be considered fails to provide the evidence to all parties and the appeals referee at least 24 hours prior to the scheduled hearing time, and all parties to whom the evidence was not properly provided appear at the hearing, the referee shall inquire whether such parties are willing to waive their rights set forth in subsection (1). If the appeals referee obtains informed and intelligent consent from all parties to whom the evidence was not properly provided, the referee may proceed to consider the evidence.

(1) The appeals referee shall send notice of the hearing to all parties via electronic service to the parties’ designated electronic mailboxes or by U.S. Postal Service at least 10 days prior to the date of the hearing. In proceedings to which the Department of Economic Opportunity is a party, the notice shall be directed to the Director of the Division of Workforce Services in the Department of Economic Opportunity or one or more of his or her designees. Whenever practicable, notices to employers shall be mailed to both the employer’s official address of record and to the job site where the claimant was employed. Notices shall also be provided to attorneys and representatives of record.

(2) The notice shall include or be accompanied by:

(a) A statement of the date, time and place of the hearing;

(b) A statement of the legal authority and jurisdiction under which the hearing is to be held;

(c) A statement of the issues to be decided by the appeals referee with reference to the specific statutory or rule provisions involved. In the event that any party has not been provided a copy of the determination on appeal, a copy thereof shall be appended to such party’s notice;

(d) A statement that failure to attend may result in a decision in favor of the other side;

(e) A statement of the rules regarding requests for continuances and subpoenas;

(f) The address of the office to which all motions, requests, or other correspondence concerning the hearing should be directed; and,

(g) A DEO Form UCA Bulletin 6E, Appeals Information, Rev. 01/14, http://www.flrules.org/Gateway/reference.asp?No=Ref-05732; DEO Form UCA Bulletin 6S, Información Sobre Apelaciones, Rev. 01/14, http://www.flrules.org/Gateway/reference.asp?No=Ref-05733; or DEO Form UCA Bulletin 6C, Enfòmasyon Apèl, Rev. 01/14, http://www.flrules.org/Gateway/reference.asp?No=Ref-05734; incorporated herein by reference, and available at the Department’s website, www.floridajobs.org/RAforms.

(3) Waiver. If the appeals referee fails to provide notice in the manner set forth in this section, or if the notice provided is defective in any other way, and all improperly noticed parties nevertheless appear at the hearing, the referee shall inquire whether such parties are willing to waive their rights set forth in subsections (1) and (2). If the appeals referee obtains informed and intelligent consent from all parties who were not properly noticed, the referee may proceed with the hearing. If any party refuses to consent to waiver, the referee shall continue the hearing and provide proper notice of the rescheduled hearing to all parties.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(a), (b), (d) FS. History–New 5-22-80, Amended 11-30-81, 5-22-83, Formerly 38E-5.15, Amended 8-20-86, Formerly 38E-5.015, 60BB-5.015, Amended 10-4-12, 9-8-15,                .

 

73B-20.016 Continuances.

(1) No change.

(2) Requests for continuance shall state the reasons therefor and must be made either in writing prior to the hearing or orally on the record at the hearing. A party may request a continuance prior to the hearing by completing the Request for Continuance form (DEO-A200(E) (English),Office of Appeals Request for Continuance, 11/18; DEO-A200(S) (Spanish), Oficina de Apelaciones Solicitud de Aplazamiento, 11/18; DEO-A200(C) (Creole), Biwo Apèl Demann Pou Kontinyasyon, 11/18), incorporated herein by reference, available at www.floridajobs.org/RAforms.  A continuance request may be submitted by email, [e-mail]; facsimile (FAX), [phone]; courier service or in person, Caldwell Building, MSC #347, 107 East Madison Street, Tallahassee FL 32399-4143; mail, P.O. Box 5250, Tallahassee, FL 32399-5250; or online via the CONNECT system.

(3) Upon receipt of a continuance request prior to the scheduled date of the hearing, the appeals referee or appeals magistrate shall immediately consider it and provide written notice of the referee’s ruling to the parties.

(a) If granted, the appeals referee or appeals magistrate shall notify the parties of the rescheduled hearing date in the manner prescribed by these rules.

(b) If denied, the appeals referee shall proceed in accordance with these rules.

(c) If it does not appear that the parties will receive the appeals referee’s written ruling on the request prior to the scheduled date of the hearing, the referee shall, nevertheless, mail the ruling or provide electronic notice via the parties’ CONNECT inbox designated electronic mailboxes, but also convene the hearing and notify any parties in attendance of the ruling. If the request is granted, the referee shall adjourn; if it is denied, the referee shall proceed.

(4) No change.

(5) If subsequent to hearing, but prior to rendition of decision, the appeals referee or appeals magistrate decides that additional hearing is necessary, the parties shall be so advised in writing.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(a), (b), (d) FS. History–New 5-22-80, Formerly 38E-5.16, 38E-5.016, 60BB-5.016, Amended 9-8-15,              .

 

73B-20.017 Nonappearance of Parties.

(1) through (2) No change.  

(3) Any party to a hearing must call the Office of Appeals at least 24 hours before the scheduled hearing to confirm attendance and provide a telephone number where the party can be reached at the time of the hearing.  Failure of the appellant to complete the advance confirmation call as required will be treated as failure to appear and may result in dismissal of the appeal. Failure of the appellee to complete the advance confirmation call may be treated as a failure to appear and may result in an unfavorable decision.

(43) Upon written request of the appellant to reopen the hearing or upon the referee’s own motion, the appeals referee shall for good cause shown for nonappearance rescind a dismissal decision and reopen the appeal. Upon written request of the appellee to reopen the hearing or upon the referee’s own motion, the appeals referee shall for good cause shown for nonappearance rescind a decision and reopen the appeal if the appellee did not appear at the last scheduled hearing and the referee has entered a decision adverse to the appellee. The appeals referee shall have the authority to reopen an appeal under this rule provided that the request has been filed or motion entered within 20 days of rendition of the decision.

(a) A threshold issue to be decided at the hearing held to consider reopening an appeal shall be whether there is a good cause for proceeding with an additional hearing. If good cause is found, the appeals referee shall proceed on the merits. If good cause is not found, the referee shall reinstate the decision.  The referee shall have no further authority with respect to a reinstated decision; however, any party or other person entitled by law to do so may file an appeal of the reinstated decision in accordance with chapter 73B-21, F.A.C. Referees may reserve ruling on the issue of nonappearance and proceed with the merits portion of the hearing when the nonappearing party has made an initial showing of good cause for nonappearance.

(b) No change.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(a), (b), (d) FS. History–New 5-22-80, Formerly 38E-5.17, Amended 8-20-86, 3-1-98, Formerly 38E-5.017, 60BB-5.017, Amended                  .

 

73B-20.022 Withdrawal.

(1) The appellant may with the approval of the appeals referee withdraw the appeal prior to or at the hearing. If the withdrawal request is made prior to the hearing, it must be in writing and signed by the appellant; if made during the hearing, it must be entered orally on the record. If approved, the referee shall issue a written decision dismissing the appeal; provided, however, the appellant may request reopening of the appeal within 20 days of the date of  issuance of the dismissal decision. The referee shall act upon such a request in the manner set forth in rule 73B-20.017, F.A.C., regarding reopening the appeals dismissed for nonappearance of the appellant. Notwithstanding those provisions, however, a withdrawn appeal shall be reopened only upon showing that the withdrawal request was made as a result of misinformation from or coercion by the appellee or an employee of the Department of Economic Opportunity.

(2) A withdrawal request may be submitted by email to the Office of Appeals, [e-mail]; by facsimile (FAX), [phone]; by courier service or in person, Caldwell Building, MSC #347, 107 East Madison Street, Tallahassee FL 32399-4143; by mail, P.O. Box 5250, Tallahassee, FL 32399-5250; or online via the CONNECT system.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(b)2., (d) FS. History–New 5-22-80, Formerly 38E-5.22, 38E-5.022, 60BB-5.022, Amended               .

 

73B-20.024 Conduct of the Hearing.

(1) No change.

(2) When calling a party or a party’s witness on the telephone for the hearing, if the party or witness is initially unavailable, the referee shall wait at least ten minutes, and then make a second attempt to call the party or witness.

(3)(2) The appeals referee shall review the issues presented and set forth the procedures to be followed during the hearing.

(4)(3) Evidence.

(a) Oral evidence shall only be taken upon oath or affirmation.

(b) The appeals referee shall prescribe the order in which testimony shall be taken and examine or cross-examine any witness as is necessary to properly develop the record.  The referee shall also preserve the right of each party to present evidence relevant to the issues, cross-examine opposing witnesses, impeach any witness, and rebut the evidence presented against him or her. The referee shall restrict the inquiry of any witness to the scope of the proceedings and shall examine or cross-examine any witness as is necessary to properly develop the record.

(c) No change.

(d) The hearing need not be conducted according to the technical rules regarding evidence and witnesses. When the appeals referee declines to accept as evidence any written or physical material presented for consideration, the appeals referee should specifically address on the record or in the written decision the reason the material was rejected. A party or the party’s representative may state an objection to the referee’s acceptance of written or physical material or refusal to accept written or physical material as evidence. A party or the party’s representative may also advise the appeals referee of a defect in the character of any evidence introduced by voicing an objection. The objecting party shall be given an opportunity to explain the grounds for the objection. A lack of an objection does not relieve the referee of the duty to determine the competency of the evidence under the applicable evidentiary standardsFailure of a party to voice an objection to any evidence introduced at the hearing or to the referee’s refusal to accept as evidence any written or physical material shall not prevent the party from raising the objection on appeal to the Reemployment Assistance Appeals Commission.

(e) No change.

(5)(4) Prior to the close of the hearing, the appeals referee shall give each party a reasonable amount of time for closing argument.

(6)(5) All parties may submit briefs to the appeals referee at the hearing. A party may request permission to submit a brief subsequent to the hearing within a reasonable time set by the referee; however, the referee shall not delay rendition of the decision for a period of time which would constitute an undue burden on any party.

(7)(6) Preservation of testimony. The proceedings shall be mechanically recorded by the appeals referee or by a court reporter under the supervision of the referee. The recording of the testimony shall be placed in the official record and shall be preserved for at least 120 days from the date of the decision of the referee, unless review by the Reemployment Assistance Appeals Commission is initiated; in which case the recording shall be preserved for a period of at least 120 days from the date of the Commission’s final order. If the recording is transcribed for purposes of administrative or judicial review, it shall constitute the official transcript of the proceedings.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(a), (b), (d) FS. History–New 5-22-80, Formerly 38E-5.24, Amended 8-20-86, Formerly 38E-5.024, Amended 3-11-12, 60BB-5.024, Amended           .

 

73B-20.025 Decision.

(1) through (2) No change.

(3) The decision shall include, but not be limited to, the following:

(a) through (c) No change. 

(d) An analysis of the findings including a concise and explicit statement of the underlying evidence in the record which supports the findings.

1. Where a finding is based solely on hearsay, notwithstanding section 120.57(1)(c), F.S., as provided in section 443.151(4)(b)5.c., F.S., the appeals referee shall set forth the rationale by which the evidence was determined to be admissible in accordance with sections 443.151(4)(b)5.c.(I) and (II), F.S.

2. If confronted with conflicting evidence with respect to a disputed issue of fact, the finding of which is determinative of the outcome of the appeal, the appeals referee shall acknowledge such conflict and set forth the rationale by which the conflict was resolved.

(e) through (f) No change. 

(4) A copy of the decision shall be distributed/mailed to the address of record of each of the parties or their attorneys or representatives of record, if any, by regular U.S. Mail, or by electronic correspondence via the party’s CONNECT inbox designated electronic mailbox if that method was elected. Copies of the decision shall also be furnished to the offices of the Department of Economic Opportunity which have an interest in the proceedings. The decision shall advise the parties of their right to and the means by which an appeal of the decision may be filed with the Reemployment Assistance Appeals Commission.

(5) The appeals referee or the referee’s designated clerk shall complete, sign and affix to the decision a certificate stating that the decision was filed and copies were distributed/mailed to each of the parties at the address listed on the decision on the date certified.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(a), (b), (d) FS. History–New 5-22-80, Formerly 38E-5.25, Amended 8-20-86, Formerly 38E-5.025, Amended 3-11-12, Formerly 60BB-5.025, Amended 9-8-15,              .

 

73B-20.026 Corrected Decisions Post Decision Communications.

(1) An appeals referee may correct errors in a decision after the decision has been distributed/mailed as follows:

(a) Where the correction is solely of a clerical nature and does not change, and is not reasonably interpreted to change, the substantive outcome of the prior decision, the correction may be made at any time prior to the filing of an appeal of the decision;

(b) Where the correction changes, or is reasonably interpreted to change, the substantive outcome of the prior decision, a corrected decision may be distributed/mailed:

1. Within 20 days of the distribution/mailing of the decision to be corrected, by the distribution/mailing of a notice of proposed corrected decision, which shall identify the corrections to be made, and provide for the opportunity of any party to request a hearing on the proposed corrections;

2. After 20 days of the distribution/mailing of the decision to be corrected, by the filing of an application for revised decision by the Department.

(2) Once distributed/mailed, the corrected decision supersedes the prior decision in the case, and may be appealed to the Commission pursuant to rule 73B-21.003, F.A.C.

(3) If a party files an appeal to the Commission after the appeals referee has given notice of a proposed corrected decision, but prior to the mailing/distributing of the corrected decision, the referee shall retain jurisdiction over proceedings regarding the proposed corrected decision. 

(4) If the Office of Appeals or appeals referee concludes that a decision should be corrected after the decision has been appealed to the Commission, the Office of Appeals or referee may request relinquishment to the referee for that purpose. The Commission may also relinquish jurisdiction of the case for a corrected decision on its own motion.

(1) At any time prior to the filing of an appeal, the appeals referee may issue a corrected decision to eliminate any clerical errors contained therein, but the referee shall not make any changes which affect the substantial interest of any party.

(5)(2) This section does not supersede the provisions regarding dismissal decisions entered pursuant to rules 73B-20.017 and 73B-20.022, F.A.C.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(3)(e)1., (4)(a)-(d) FS. History–New 5-22-80, Formerly 38E-5.26, Amended 8-20-86, Formerly 38E-5.026, 60BB-5.026, Amended                                 .

 

73B-20.027 Appeal to the Reemployment Assistance Appeals Commission.

Except as provided by rules 73B-20.017(4) and 73B-20.022, F.A.C., iIf the Office of Appeals appeals referee receives a written communication from a party which expresses disagreement with or otherwise indicates a desire to appeal a decision, the referee Office of Appeals shall immediately forward it to the Reemployment Assistance Appeals Commission. This section does not supersede the provisions regarding dismissal decisions entered pursuant to rules 73B-20.017 and 73B-20.022, F.A.C.

Rulemaking Authority 443.012(11) FS. Law Implemented 443.151(4)(c), (d) FS. History–New 5-22-80, Formerly 38E-5.27, Amended 8-20-86, Formerly 38E-5.027, 60BB-5.027, Amended           .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Anne Marie Frazee, Deputy General Counsel

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Reemployment Assistance Appeals Commission (Frank E. Brown, Chairman; Thomas D. Epsky, Member; Joseph D. Finnegan, Member)

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: April 03, 2019

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: April 12, 2019