WILLIAM BROWN, BRIAN REYNARD, DONNA GRIFFIN AND ROCHELIN LORMEJUSTE, PETITIONERS,
v.
THE HONORABLE ARTHUR P. PUMPIAN, DEPUTY COMMISSIONER, AND THE HONORABLE TOM CARROLL, CHIEF COMMISSIONER FOR THE STATE OF FLORIDA, DEPARTMENT OF LABOR & EMPLOYMENT SECURITY, DIVISION OF WORKERS' COMPENSATION AND THE HONORABLE ROBERT MARTINEZ, GOVERNOR FOR THE STATE OF FLORIDA, RESPONDENTS
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The court held that the word 'shall' in the statute requiring hearings within 90 days is directory, not mandatory, and mandamus will not lie to compel the Governor to appoint more deputy commissioners without legislative authorization.
[1] Statutes setting a time limit for an action are generally considered directory, not mandatory, unless the statute expressly prohibits action after the deadline or the act…
[2] The word "shall" in a statute may be construed as directory rather than mandatory, depending on the context, subject matter, and legislative intent.
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Join FLexlaw to unlock all legal intelligenceClaimants in workers' compensation proceedings filed claims and applications for hearings, but their hearings were not held within the 90 days prescri…
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PER CURIAM.
Petitioners in this cause are claimants in workers’ compensation proceedings who filed claims for benefits and applications for hearing but whose hearings were not held within the 90 days prescribed by section 440.25(3)(a), Florida Statutes. They filed this petition for writ of mandamus, arguing that the statutory language in the applicable statute was mandatory. Additionally, they named Honorable Robert Martinez, Governor of Florida, as a respondent and sought to enforce the terms of section 440.45(1). We issued a show cause order and after careful consideration of the issues presented, we deny the petition.
Section 440.25(3)(a) (1985) provides in pertinent part:
If a request for a hearing is filed, the deputy commissioner shall hold a hearing within 90 days after it is filed and shall give the claimant and other interested parties at least 15 days’ notice of such hearing, served upon the claimant and other interested parties by mail.
Petitioners contend that the word “shall” should be given a mandatory meaning in construing this provision, citing to cases such as Toscano v. State, 393 So. 2d 540 (Fla.1980). We disagree and find persuasive respondents’ argument that “shall” should be given a directory construction in this context:
Mandatory language has in a number of cases been construed as directory, dependent upon the history and subject matter of the particular provision, and as a general rule statutes setting the time when a thing is to be done are regarded as merely directory, where no provision restraining the doing of it after that time is included and the act in question is not one upon which court jurisdiction depends.
Schneider v. Gustafson Industries, Inc., 139 So. 2d 423, 425 (Fla.1962) (footnotes omitted) (construing a rule of the Florida Industrial Commission that required filing of a transcript within 45 days of filing an application for review). We find additional support for application of the rule announced in Schneider to this case in Scottie-Craft Boat Corp. v. Smith, 336 So. 2d 1150 (Fla.1976) (construing section 440.-25(3)(b) which states that a deputy commissioner “shall” determine a dispute within 30 days of hearing); see also Ewing v. Kaplan, 474 So. 2d 302 (Fla. 3d DCA 1985), review denied, 486 So. 2d 595 (Fla.1986) and Allied Fidelity Insurance Co. v. State, 415 So. 109 (Fla. 3d DCA 1982) (both finding “shall” directory in provisions of bail bond statute).
We also agree that mandamus will not lie to compel the Governor to appoint more deputy commissioners. Our primary reason for so holding is that without legislative authorization for such positions, the Governor cannot make the appointments, see section 216.262(l)(a), Florida Statutes (1985). As there is no ministerial act which the Governor can perform to fulfill the requirement of the statute, the remedy of mandamus is inappropriate. Our conclusion is reinforced by the provisions of section 440.45(5), which gives the Governor authority to appoint temporary deputy commissioners where a need exists, but the subsection makes clear that the exercise of such authority is clearly discretionary for the state’s chief executive.
Finally, the Chief Commissioner of the State of Florida is a named respondent, but the petition is unclear what ministerial act that Chief Commissioner Carroll could perform that would bring the relief sought by the petitioners. The Chief Commissioner does have authority to act as deputy commissioner but this authority is also discretionary, see section 440.45(3)(g), Florida Statutes.
The court is sympathetic to the need of the petitioners for expeditious proceedings. Indeed, one of the goals of the workers’ compensation system is to provide employees with “a remedy that is both expeditious and independent of proof of fault.” Florida Erection Services, Inc. v. McDonald, 395 So. 2d 203, 209 (Fla. 1st DCA 1981) (emphasis ours). The response of the respondents states that the 1986 Legislature authorized two new deputy commis sioner positions and that appointments to fill the positions have been made, actions which will hopefully alleviate the delays such as those experienced by the petitioners.
Accordingly, there being no mandatory ministerial act to be performed by these respondents with regard to petitioners’ request for hearings within 90 days of their applications, we must deny the petition for writ of mandamus.
BOOTH, C.J., and MILLS and THOMPSON, JJ., concur.
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Williamson v. State, 510 So. 2d 1052 (Fla. 3d DCA 1987)…); see also S.R. v. State, 346 So. 2d 1018, 1019 (Fla.1977) (whether “shall” is to be considered mandatory or permissive depends on its context and legislative intent); Schneider v. Gustafson, 139 So. 2d 423, 425 (Fla.1962) (same); Brown v. Pumpian, 504 So. 2d 481, 482 (Fla. 1st DCA 1987) (same). The trial court’s reliance on Poleski v. State, 371 So. 2d 548 (Fla. 3d DCA 1979), is misplaced. In Poleski, the defendant, like the defendant here, was arrested for two offenses. After successfully completing a pre…
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AT&T Wireless & Kemper Ins. v. Frazier, 871 So. 2d 939 (Fla. 1st DCA 2004)…nd that the JCC was therefore required to grant the request, notwithstanding that [*941] this would have necessitated continuing the scheduled merits hearing. The time limitations of section 440.25 are directory, not mandatory. See Brown v. Pumpian, 504 So. 2d 481 (Fla. 1st DCA 1987). See also Miller v. Oolite Industries, Inc., 336 So. 2d 1152 (Fla.1976); Scottie-Craft Boat Corp. v. Smith, 336 So. 2d 1150 (Fla.1976). They do not foreclose appointment of an EMA when the request is made with reasonable promptne…
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In re Forfeiture OF the following Prop.: ONE (1) 1984 Ford VAN 150 v. Blancett, 521 So. 2d 244 (Fla. 1st DCA 1988)…, review denied, 511 So. 2d 297 (Fla.1987). Whether “shall” should be construed as mandatory will depend upon the context in which it is found and the legislative intent expressed in the statute. S.R. v. State, 346 So. 2d at 1019; Brown v. Pumpian, 504 So. 2d 481, 482 (Fla. 1st DCA 1987); Williamson v. State, 510 So. 2d 1052, 1054 (Fla. 3d DCA 1987). More particularly— where “shall” refers to some required action preceding a possible deprivation of a substantive right, S.R. v. State, supra; Neal v. Bryant,…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tascano v. State, 393 So. 2d 540 (Fla. 1980)
- Fla. Erection Servs., Inc. v. Raymer McDONALD, 395 So. 2d 203 (Fla. 1st DCA 1981)
- Schneider v. Gustafson Indus., Inc., 139 So. 2d 423 (Fla. 1962)
- Scottie-Craft Boat Corp. & Fed. Ins. Co. v. Thomas Smith & the Indus. Relations Comm'n, 336 So. 2d 1150 (Fla. 1976)
- Fenton C. Ewing v. Kaplan, 474 So. 2d 302 (Fla. 3d DCA 1985)