AIMEN MAHOUD ABUSALAMEH, D/B/A PIC A PAC, APPELLANT,
v.
DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, APPELLEE
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The Florida Fourth District Court of Appeal reversed a summary revocation of an alcoholic beverage license, holding that the Department of Business Regulation could not find a waiver of hearing rights where it had cancelled the only scheduled hearing without rescheduling or providing further notice to the licensee.
The court reversed the revocation, holding that equitable tolling applied because the Department could not determine that the licensee had waived his right to a hearing when it had cancelled the only scheduled event without proper rescheduling or notice, even if the licensee's counsel failed to follow proper procedures.
[1] An alcoholic beverage license may not be revoked without a hearing when there is confusion concerning the cancellation and rescheduling of a noticed hearing.
[2] Equitable tolling may apply to administrative proceedings when a party is lulled into inaction or reasonably believes a hearing request deadline is dependent on a cancell…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the department could not conclude, without further notice, that Appellant had waived all other administrative procedure rights.”
Establishes the key holding that revocation cannot be based on waiver when the Department cancelled the only scheduled hearing without rescheduling or providing notice.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant received a notice to show cause scheduling an informal conference for August 6, 1992, to determine if he desired administrative proceedings …
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STONE, Judge.
We reverse a final order revoking Appellant’s alcoholic beverage license without a hearing. The record reflects confusion concerning the cancellation of, and subsequent failure to reschedule, the only noticed hearing. Consequently, there was an “equitable tolling.” Machules v. Department of Admin., 523 So. 2d 1132 (Fla.1988); Castillo v. Department of Admin., Div. of Retirement, 593 So. 2d 1116 (Fla. 2d DCA 1992); Stewart v. Department of Corrections, 561 So. 2d 15 (Fla. 4th DCA 1990).
It is undisputed that Appellant received a notice to show cause, scheduling an informal conference with the department on August 6, 1992, “to determine if you desire administrative proceedings and hearings or if you wish to stipulate to the charges.” The notice informed Appellant that if the charges were not resolved by the informal conference, he could request a hearing pursuant to chapter 120, Florida Statutes. The notice form sets out the procedure for requesting the hearing, but Appellant did not follow this procedure. Instead, his counsel wrote to the official, Captain Smith, who was to conduct the August 6th conference, entering an appearance, requesting a continuance of the conference, and asking that the proceeding be put “on hold.” The letter ended, “May I please hear from you?” This letter is in the record. It is also undisputed that the lawyer subsequently spoke to Captain Smith’s secretary on August 5th and was told the hearing would be cancelled and that he should call later that day for a new date. The attorney asserts that he did call but that the captain went out of town. Counsel also claims that he wrote a subsequent letter, but the department apparently denies receiving it. The record does not reflect any additional correspondence from the department.
In November, the department acted, concluding Appellant had waived his right to a hearing and summarily revoking his liquor license. Appellant contends that the department may not determine that his right to further notice and a hearing was waived given the earlier, albeit procedurally flawed, communications with Captain Smith’s office.
In Machules, an employee, instead of timely filing an administrative appeal, had his union file a grievance on his behalf. The grievance hearing was held after the expiration of the 20-day appeal period. The court applied a balancing test in judging the equitable circumstances that resulted in an untimely filing. There, the court found that the employee was lulled into inaction and that his claim had been raised timely, though in the wrong forum. The court concluded that it was not unreasonable for the employee not to understand clearly which avenue of review to pursue. The court also noted the lack of prejudice to the employer, which was on notice of the employee’s intent to appeal.
Here, Appellant could reasonably conclude that the hearing request deadline was dependent on the outcome of the informal conference, which was cancelled and not rescheduled. Even if Appellant’s counsel is at fault in not ensuring that the conference was reset, the department nevertheless was on notice that Appellant was pursuing his rights and understood that the only scheduled event had been continued. Therefore, the department could not conclude, without further notice, that Appellant had waived all other administrative procedure rights.
The ease is remanded for further proceedings.
DELL, C.J., and FARMER, J., concur.
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O'Donnell's Corp. v. Himrod Ambroise, 858 So. 2d 1138 (Fla. 5th DCA 2003)…request for an administrative hearing is not jurisdictional, but is analogous to a statute of limitations which is subject to equitable exceptions. Machules; Appel; Abusalameh v. Department of Bus. Regulation, Div. of Alcoholic Beverages & Tobacco, 627 So. 2d 560 (Fla. 4th DCA 1993); Castillo v. Department of Admin., Div. of Ret., 593 So. 2d 1116 (Fla. 2d DCA 1992); Stewart v. Department of Corr., 561 So. 2d 15 (Fla. 4th DCA 1990). Prohibition is inappropriate to review an order determining the time limitati…
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HCA Health Servs. OF Fla., Inc. v. Hillman, 906 So. 2d 1094 (Fla. 2d DCA 2004)…ynes v. Pub. Employees Relations Comm'n, 694 So. 2d 821 (Fla. 4th DCA 1997)(remanding for agency to conduct hearing to determine whether employee's claims justify application of doctrine of equitable tolling); Abusalameh v. Dep’t of Bus. Regulation, 627 So. 2d 560 (Fla. 4th DCA 1993)(ap-plying doctrine where there was confusion regarding hearing date); Stewart v. Dep’t of Corr., 561 So. 2d 15 (Fla. 4th DCA 1990)(hold-ing that trial court erred in failing to apply doctrine of equitable tolling to allow employe…
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Jancyn Mfg. Corp. v. State, 742 So. 2d 473 (Fla. 1st DCA 1999)…e in November or December sought a further extension of time or even suggest that Jancyn wished to pursue a proceeding under chapter 120, Florida Statutes. Compare Abusalameh v. Department of Bus. Regulation, Div. of Alcoholic Beverages and Tobacco, 627 So. 2d 560 (Fla. 4th DCA 1993) (receipt by agency of letter requesting that the date of an informal conference be continued, that the agency proceeding be “put on hold,” and requesting response from the agency to the letter put the agency on notice that party…
Authorities Cited
- MacHules v. Dep't OF Admin., 523 So. 2d 1132 (Fla. 1988)
- Castillo v. Dep't of Admin., 593 So. 2d 1116 (Fla. 2d DCA 1992)
- Raimundo Munoz v. Dep't of Natural Res., 561 So. 2d 15 (Fla. 3d DCA 1990)
- Kingston Holdings Ltd., Inc. v. Sheldon Greene & Assocs., Inc., 561 So. 2d 15 (Fla. 3d DCA 1990)