Appel v. FLA., DIV. OF LICENSING, 97-01198.
| Decision Date | 25 June 1999 |
| Docket Number | No. 97-01198.,97-01198. |
| Citation | 734 So.2d 1180 |
| Parties | Thomas Anthony APPEL, Appellant, v. FLORIDA DEPARTMENT OF STATE, DIVISION OF LICENSING, Appellee. |
| Court | Florida District Court of Appeals |
R. Michael Robinson, St. Petersburg, for Appellant.
Kristi Reid Bronson, Assistant General Counsel, Department of State, Tallahassee, for Appellee.
Thomas Appel appeals from a final order of the Florida Department of State, Division of Licensing (the Department), which found that his request for a hearing was untimely and revoked his licenses as a security officer and security agency manager. We reverse.
The Department, pursuant to section 493.6121, Florida Statutes (Supp.1996), filed a complaint dated January 31, 1997, against Appel. The complaint contained a "Notice of Rights" pursuant to section 120.57, Florida Statutes (Supp.1996), which stated that to assert his right to a hearing on the merits of the complaint Appel was required to complete the attached "Election of Rights" form and return the form to the Department within twenty-one days of receipt of the notice. The complaint charged that Appel had falsely certified that one of his employees had been determined to be mentally and emotionally stable by a written psychological test.
The complaint was sent to Appel by certified mail, return receipt requested. Appel contends it was sent to the wrong address. The Department disputes that assertion, saying it has no record support. Appel claims that his brother accepted the complaint. The return receipt itself bears a signature "Tom Appel," but also contains indications that it was signed on his behalf. The return receipt bears a delivery date of February 8, 1997. In any event, Appel acknowledges that he received the complaint from his brother a few days later.
The complaint states, "In order to request a hearing, you must complete the enclosed Election of Rights form and return it to the Division of Licensing within twenty-one (21) days of receipt of this complaint" (emphasis added). The Election of Rights form states, "This form must be filed at the Division of Licensing office in Tallahassee, Florida, within 21 days of receipt" (emphasis added). The complaint and the election of rights form therefore conflict as to what a respondent must do within the designated twenty-one day period, i.e., "return" versus "file." Florida Administrative Code Rule 28-5.111(1) provides that a person requesting a hearing on agency decisions determining substantial interests "shall file a petition with the Agency within twenty-one (21) days of receipt of written notice of the decision, or within twenty-one (21) days of receipt of written notice of intent to render such decision."1
The record reflects that on February 24, 1997, sixteen days after the receipt date of February 8, Appel mailed the election of rights form by certified mail to the Department from St. Petersburg. The Department records reflect that it was not received and filed until March 5, 1997, some nine days later. The Department asserts that the form was filed on the twenty-fifth day and, therefore, was four days late. Based on that determination, and without further notice to Appel, the Department entered a final order by default against him which revoked his licenses.
This appeal presents two issues. The first is whether Appel should be deemed to have waived his right to a hearing under the totality of the circumstances. The filing of a petition for a hearing is not jurisdictional but is analogous to statutes of limitation which are subject to equitable considerations. See Castillo v. Department of Admin., Div. of Retirement, 593 So.2d 1116 (Fla. 2d DCA 1992)
. Late filing may be presumed to constitute a waiver of rights, but Appel is entitled to rebut that presumption at an evidentiary hearing. See State, Dep't of Envtl. Regulation v. Puckett Oil Co., 577 So.2d 988 (Fla. 1st DCA 1991). This record reflects that Appel intended to invoke his right to a hearing, made a timely and good faith effort to comply with the twenty-one day filing requirement, and was thwarted by the United States Postal Service, which took nine days to deliver a...
To continue reading
Request your trial
-
O'Donnell's Corp. v. Ambroise
...we held that "[l]ate filing is presumed to constitute a waiver of rights." 849 So.2d at 1151 (citing Appel v. Florida Dep't of State, Div. of Licensing, 734 So.2d 1180 (Fla. 2d DCA 1999)). In Appel, the court held that the petitioner "is entitled to rebut that presumption at an evidentiary ......
-
O'Donnell's Corporation v. Ambroise, Case No. 5D03-324 (Fla. App. 5th Dist. 11/7/2003)
...hearing is not a jurisdictional defect. Machules v. Dep't of Admin., 523 So. 2d 1132 (Fla.1988); Appel v. Fla. Dep't of State, Div. of Licensing, 734 So. 2d 1180 (Fla. 2d DCA 1999). SAWAYA, C.J., concurring and concurring I fully concur in the majority opinion. I write to respond to the ass......
-
Patz v. Department of Health
...held that the late filing of a request for an administrative hearing is not a jurisdictional defect. Appel v. Fla. Dep't of State, Div. of Licensing, 734 So.2d 1180 (Fla. 2d DCA 1999). See also Machules v. Dep't of Admin., 523 So.2d 1132 (Fla.1988). In Machules, although the supreme court d......
-
Cann v. CHILDREN AND FAMILY SERVICES
...held that the late filing of a request for an administrative hearing is not a jurisdictional defect. Appel v. Fla. Dep't of State, Div. of Licensing, 734 So.2d 1180 (Fla. 2d DCA 1999). See also Machules v. Dep't of Admin., 523 So.2d 1132 (Fla.1988). In Machules, although the supreme court d......
-
Excuse me? The courts suggest the legislature amend APA provisions governing requests for hearing.
...Machules v. Department of Administration, 523 So. 2d 1132 (Fla. 1988); Appel v. Florida Department of State, Division of Licensing, 734 So. 2d 1180 (Fla. 2d D.C.A. (28) Cann, 813 So. 2d at 239. (29) Patz, 864 So. 2d at 80-81 n.3. (30) Ross Stafford Burnaman, Equitable Tolling in Florida Adm......