Colonnades, Inc. v. Florida Dept. of Commerce, Division of Employment Sec.

• Decision Date: 05 April 1978
• Docket Number: No. GG-486,GG-486
• Citation: 357 So.2d 238
• Parties: COLONNADES, INC., a Florida Corporation, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, and Mary Ann M. McKee, Respondents.
• Court: Florida District Court of Appeals

Page 238

357 So.2d 238

COLONNADES, INC., a Florida Corporation, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, and Mary Ann M. McKee, Respondents.

No. GG-486.

District Court of Appeal of Florida, First District.

April 5, 1978.

Gayle Smith Swedmark of Madigan, Parker, Gatlin, Truett, Swedmark & Skelding, Tallahassee, for petitioner.

Edward F. Beers, Jr., R. L. Smith, Jacksonville, Kenneth H. Hart, Tallahassee, and Steven H. Parton, West Palm Beach, for respondents.

BOYER, Judge.

Colonnades, Inc., the owner and operator of a hotel, here seeks review of an order of the Industrial Relations Commission affirming a decision of an appeals referee holding that Colonnades' appeal of a claims determination relating to the discharge of its employee, McKee, was not timely filed.

The only facts which are relevant to our decision are those relating to mailing or delivery of the notice required by F.S. 443.07(3)(a) and Colonnades' response.

F.S. 443.07(3)(a) provides:

"An initial determination upon a claim filed * * * shall be made promptly by an examiner * * *. The claimant, his most recent employing unit, and all employers whose accounts would be charged with benefits pursuant to such determination, shall be promptly notified of such initial determination, and such determination shall be final unless within ten days after the mailing of such notices to the parties' last known addresses, or in the absence of such mailing, within ten days after the delivery of such notice, appeal or written request for reconsideration is filed by the claimant or other party entitled to such notice."

The record reveals a claim for benefits filed by McKee, certain proceedings thereon and a form letter from a claims adjudicator (presumably the "examiner designated by the division" as provided for in the Statute) dated February 3, 1976, addressed to Colonnades, Inc. and captioned with the name of the claimant (McKee) and her social security number. The letter advised the addressee that the adjudicator could not determine that McKee's discharge was for misconduct and that, accordingly, Colonnades' employment record was properly chargeable with its pro-rata share of benefits which may be paid on the claim. The letter concluded with the paragraph:

"If you disagree with this determination, you may request reconsideration or a hearing before an appeals referee. This may be done by writing this office within ten days from the date of this letter, explaining the basis for your protest."

There is no stamp mark, certificate nor other indication on the letter to indicate the date of mailing, delivery nor receipt. As above recited, the letter is dated February 3, 1976.

The record next reveals a letter dated February 17, 1976 on Colonnades letterhead signed by its President addressed to the Florida Department of Commerce, captioned in the same manner as the letter from the adjudicator which recites, inter alia,

"I have your February 3d letter and violently disagree with your determination. I request reconsideration of a hearing before the Appeals Referee."

That letter was received by the addressee on February 19, 1976.

In due course a hearing was held as to the timeliness of Colonnades' request for reconsideration at which documentary evidence was received and testimony taken. The appeals referee determined that Colonnades' request was untimely and the Commission affirmed.

Although Colonnades, in its brief, presents numerous points they all relate to the single issue of timeliness. First, it calls to our attention the paucity of evidence as to the date of mailing of the letter from the claims adjudicator. Second, it contends that even assuming that letter to have been mailed on the date that the letter is dated (February 3, 1976) nevertheless the date for its response was extended by Fla.R.Civ.P. 1.090.

Our review of the record reveals no "hard evidence" as to the date of mailing. As already recited, the letter is dated February 3, 1976. Although the adjudicator testified as to the customary procedure in her office relating to the preparation, typing and mailing of "determination letters" neither she nor any other witness testified that in fact the letter to Colonnades was mailed on the date that it bore. There is no procedure for date stamping outgoing mail nor of maintaining any log nor record of outgoing mail. The President of Colonnades testified without equivocation that the letter from the adjudicator was received by him on February 17, 1976 and that he responded by letter on that same date. The testimony was recorded mechanically rather than stenographically and the record is replete with skips and gaps. It does reveal, however, that the Colonnades' President testified that its mail was obtained from the Post Office by a Colonnades' employee, testifying further:

"anything or pertaining to the hotel is sent to me immediately by messenger as fast as they get it * * * I got it within two hours of the time it was delivered."

In summary, the evidence reveals that the adjudicator's letter was dated February 3, 1976 and received by Colonnades on the 17th. Although such letters are customarily dated on the day that they are typed and mailed on the same day, there is no evidence to support mailing other than custom.

We have examined Martorano v. Florida Industrial Commission, 160 So.2d 744 (Fla. 3rd DCA 1963) but find that it does not help resolve the issues here presented. Although that case involved chapter 443 Florida Statutes and related to the timeliness of an appeal to the District Court of Appeal, that decision turned upon an interpretation of the specific wording of a particular statute, as it then existed, which allowed a party sixty days from the date of notice within which to take an appeal. The court there distinguished cases from other jurisdictions interpreting statutes allowing a specific time after mailing. It will be noted that the statute involved sub judice employs the terminology "after the mailing of such notices". That opinion is significant, however, for the proposition of applicability of Fla.R.Civ.P. 1.090(e). The court there held, after quoting the predecessor to the last mentioned rule:

"Consistent with the foregoing rules, we conclude in the case presented that notice of the order, which under the statute marks the commencement of the 60 day period for review, is the day of actual notice where actual notice is provided, but that when such notice is given by mailing, three days should be allowed, making the date of notice, and therefore the beginning of the 60 day period for certiorari, three days after the date of mailing." (emphasis the Courts: 160 So.2d at page 746)

Neither do we find aid in Miami Dolphins, Ltd. v. Florida Dept. of Commerce, 252 So.2d 396 (Fla.App. 3 1971) nor Florida State University v. Jenkins, 323 So.2d 597 (Fla.App. 1 1975). In the Dolphins case the court held nothing more than that the employer should "be afforded an opportunity to present a defense if its failure to respond to the notice within the ten day period is shown to be due to non-delivery of such notice." In the Jenkins' case, in which we acknowledged and distinguished the Dolphins case, there was no question concerning either mailing, delivery by the Post Office...