TYRONE T. HOLMES, APPELLANT,
v.
CITY OF WEST PALM BEACH AND FLORIDA UNEMPLOYMENT APPEALS COMMISSION, APPELLEES
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Holmes appealed a dismissal of his unemployment compensation appeal for failure to prosecute, which itself was dismissed as untimely under Florida's 20-day filing deadline. The court reversed, holding that the administrative commission must hold an evidentiary hearing to determine whether Holmes actually received notice of the dismissal decision, since receipt of notice is a prerequisite to the statutory filing deadline.
The court reversed the dismissal of the untimely appeal and remanded for an evidentiary hearing to determine whether Holmes was mailed and received notice of the determination. The court held that receipt of notice is a prerequisite to the statutory filing deadline, and the commission cannot dismiss an appeal as untimely without first establishing that the appellant received written notice.
[1] An unemployment compensation appeal dismissed for failure to prosecute may be reinstated if the appellant did not receive notice of the dismissal decision.
[2] An administrative agency cannot circumvent unambiguous statutory provisions in the interest of fairness and due process.
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Join FLexlaw to unlock all legal intelligence“The parties shall be promptly notified of such referee's decision; and such decisions shall be final unless, within 20 days after the date of mailing of notice thereof to the party's last known address or, in the absence of such mailing, within 20 days after the delivery of such notice, further review is initiated”
Statement of the statutory 20-day filing deadline requirement for appeals in unemployment compensation cases
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Join FLexlaw to unlock all legal intelligenceHolmes filed an appeal of an adverse unemployment compensation determination. He failed to attend the scheduled hearing, so the appeals referee dismis…
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PER CURIAM.
Tyrone T. Holmes filed an appeal below from an adverse determination of his claim for unemployment compensation benefits, seeking a hearing before an appeals referee. When he failed to attend the hearing scheduled pursuant to his appeal', the appeals referee entered a decision that dismissed the appeal for failure to prosecute. According to appellee, a copy of the decision was mailed to appellant on September 28, 1992. However, it was not until December 18,1992, or eighty-one days after the decision was allegedly mailed, that appellant filed his appeal from that dismissal. Appellee Commission dismissed the appeal as untimely under section 443.151(4)(b)8, Florida Statutes, and Florida Administrative Code Rule 38E-3.006. We reverse.
Appellee contends that the controlling statute and rule compel dismissal of untimely filed appeals without exception; thus, it had no discretion in this matter. Section 443.151(4)(b)3, provides:
The parties shall be promptly notified of such referee’s decision; and such decisions shall be final unless, within 20 days after the date of mailing of notice thereof to the party’s last known address or, in the absence of such mailing, within 20 days after the delivery of such notice, further review is initiated pursuant to paragraph (c).
Moreover, Rule 38E-3.006 provides:
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.
We recognize that the compulsory language of the rule and the statute does not provide any exceptions or alternatives to dismissal of untimely filed appeals. Moreover, appellee correctly contends that because it is an administrative agency, rather than a court, it cannot circumvent unambiguous statutory provisions in the interest of fairness and due process considerations. See Palm Harbor Special Fire Control Dist. v. Kelly, 516 So. 2d 249 (Fla.1987). It lacks the power to declare a statute void or otherwise unenforceable. Id. at 250.
In the past this and other district courts have created exceptions to the rule and statute in certain individual circumstances. See Robinson v. Morrison, Inc., 501 So. 2d 1323, 1324 (Fla. 4th DCA 1986); Robinson v. Florida Unemployment Appeals Comm’n, 526 So. 2d 198 (Fla. 4th DCA 1988); Pierre v. Oriente Sugar Cane Planting, 504 So. 2d 431 (Fla. 4th DCA 1987); Teater v. Department of Commerce, 370 So. 2d 847 (Fla. 3d DCA 1979); Owra v. Dept. of Commerce, 351 So. 2d 769 (Fla. 3d DCA 1977); Polatnick v. Florida Dep’t of Commerce, 349 So. 2d 203 (Fla. 3d DCA 1977); Miami Dolphins Ltd. v. Florida Dep’t of Commerce, 252 So. 2d, 396 (Fla. 3d DCA 1971). Appellant’s letter to appellee dated December 12, 1992, disputes that notice was ever received. Moreover, we cannot determine from the record how appellant received notice or otherwise learned of the determination that his appeal was dismissed for failure to prosecute. If appellant did not receive written notice from the commission, he would not be apprised that he had twenty (20) days in which to file his appeal.
Accordingly, we reverse the order on appeal and remand for an evidentiary hearing on the issue of whether appellant was mailed and received notice of hearing and notice of determination.
GLICKSTEIN, POLEN and FARMER, JJ., concur.
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Espinosa v. Cableoptics, Inc., 807 So. 2d 195 (Fla. 3d DCA 2002)…tiary hearing on the timeliness issue. See e.g., Applegate v. National Health Care Affiliates, 667 So. 2d 332 (Fla. 1st DCA 1995); Landrum v. James Rummer Timber Harvesting, Inc., 645 So. 2d 577 (Fla. 2d DCA 1994); Holmes v. City of West Palm Beach, 627 So. 2d 52 (Fla. 4th DCA 1993); Koppelman v. Unemployment Appeals Comm’n, 626 So. 2d 322 (Fla. 1st DCA 1993); Livingston v. Unemployment Appeals Comm’n, 620 So. 2d 1103 (Fla. 4th DCA 1993); Finney v. Florida Unemployment Appeals Comm’n, 587 So. 2d 637 (Fla. 4t…
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Applegate v. Nat'l Health Care Affiliates, Inc., 667 So. 2d 332 (Fla. 1st DCA 1995)…ed notification of the rescheduled hearing on January 4, 1995, and that she did not receive the final order of January 30, 1995, until February 21, 1995 — outside the 20 day appeal period. This ease is similar to Holmes v. City of West Palm Beach, 627 So. 2d 52, 53-54 (Fla. 4th DCA 1993) in which the appellant, an applicant for unemployment compensation, alleged that he did not receive notice of hearing and notice of determination. As in that ease, the Unemployment Appeals Commission (as an administrative…
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Ebersol v. Unemployment Appeals Comm'n, 845 So. 2d 945 (Fla. 5th DCA 2003)…ence of such mailing, within 20 days after the delivery of such notice, further review is initiated....” Ebersol’s contention calls into question whether this 20 day appeal period was in fact triggered.2 See Holmes [*947] v. City of West Palm Beach, 627 So. 2d 52 (Fla. 4th DCA 1993). The record contains no indication that Ebersol was afforded an opportunity by the Commission to show cause why his appeal should not be dismissed. In accordance with section 120.68(7), Florida Statutes, and decisional law,3 the…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Palm Harbor Special Fire Control Dist. v. Celestine Kelly, 516 So. 2d 249 (Fla. 1987)
- Teater v. Dep't OF Commerce Bd. OF Review, 370 So. 2d 847 (Fla. 3d DCA 1979)
- Burina Robinson v. Morrison, Inc., 501 So. 2d 1323 (Fla. 4th DCA 1986)
- State v. Carroll, 252 So. 2d 396 (Fla. 3d DCA 1971)
- Burina Robinson v. Fla. Unemployment Appeals Comm'n & Morrison, Inc., 526 So. 2d 198 (Fla. 4th DCA 1988)
- State of Fla. ex rel. William M. Owra v. Fla. Dep't OF Commerce, 351 So. 2d 769 (Fla. 3d DCA 1977)
- Halbert v. First Realty Servs., Inc., 504 So. 2d 431 (Fla. 1st DCA 1987)
- Adonia Pierre v. Oriente Sugar Cane Planting, Inc., 504 So. 2d 431 (Fla. 4th DCA 1987)
- Piver v. Birman, 349 So. 2d 203 (Fla. 4th DCA 1977)