BRENDA J. REYNOLDS, APPELLANT,
v.
SV CENTRAL DANIA PROPERTIES, INC. AND FLORIDA UNEMPLOYMENT APPEALS COMMISSION, APPELLEES
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Reynolds appealed the denial of her unemployment benefits, filing her notice of appeal by fax within the statutory deadline. The Unemployment Appeals Commission affirmed the appeals referee's determination that the appeal was untimely because it was not docketed within the required period, but the fax transmission report showed Reynolds successfully sent the notice on time.
The court reversed, holding that when a claimant makes an evidentiary showing that she timely and correctly directed a fax of a request to appeal to the Commission, an issue of fact is created as to whether the Commission received the request for timely docketing. Reynolds produced such evidence, so her appeal was timely.
[1] A fax transmission confirmation report showing successful transmission of an appeal within the filing period creates an issue of fact as to whether the appeal was timely…
[2] When a party provides evidence of timely and correct fax transmission of an appeal, the agency bears the burden of demonstrating that the appeal was not received or not t…
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Join FLexlaw to unlock all legal intelligence“the Commission rules expressly permit a party to file a request for an appeal by facsimile. While as a general proposition, a party such as Ebersol is deemed to assume the risk of transmission difficulties associated with faxes, the record here contains a fax history report reflecting that Ebersol did indeed fax a document to the agency on June 28, 2002, or well within 20 days of the date of the appeals referee's decision.”
Establishes that while fax filing is permitted and parties generally bear transmission risks, the presence of a fax history report showing timely transmission shifts the burden to the agency
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Join FLexlaw to unlock all legal intelligenceReynolds applied for unemployment benefits and received a denial decision from an appeals referee. She timely filed a notice of appeal by fax transmis…
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WARNER, J.
The Unemployment Appeals Commission (“UAC”) affirmed an order of the appeals referee that determined appellant had not timely filed her notice of appeal, filed by fax transmission, from the denial of her unemployment benefits application. The referee found that while the UAC rules require receipt of the notice, appellant’s notice of appeal was not docketed in the UAC office within the time allowed for appeal. However, the record also contains a fax transmission result report that indicates a four page fax was successfully sent to the Office of Appeals within the time for filing an appeal.
We reverse the order affirming the appeals referee’s determination that the appeal was untimely. We adopt the reasoning of Ebersol v. Unemployment Appeals Commission, 845 So. 2d 945, 947 (Fla. 5th DCA 2003), which states:
[T]he Commission rules expressly permit a party to file a request for an appeal by facsimile. While as a general proposition, a party such as Ebersol is deemed to assume the risk of transmission difficulties associated with faxes, the record here contains a fax history report reflecting that Ebersol did indeed fax a document to the agency on June 28, 2002, or well within 20 days of the date of the appeals referee’s decision. While the Commission did not docket any request for appeal within this 20 day period, the record is completely silent as to whether this was because the fax was not received by the Commission or because the Commission received the fax but was remiss in not docketing the request. To simply accept the Commission’s position that Ebersol bears the risk in either circumstance would excuse the agency from developing careful procedures for docketing faxed requests for appeals which it receives. We are more inclined to embrace a salutary rule that where a claimant makes an evidentiary showing that he did, in fact, timely and correctly direct a fax of a request to appeal to the Commission, an issue of fact is created as to whether the Commission received the request for timely docketing.
(Footnote omitted). Applying those principles to this case, appellant produced evidence that she timely and correctly faxed her notice of appeal to the Office of Appeals. Therefore, the referee should have determined that her appeal was timely. Reversed and remanded for further proceedings.
KLEIN and SHAHOOD, JJ., concur.
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Citator
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Thurman v. Fla. Unemployment Appeals Comm'n, 881 So. 2d 89 (Fla. 1st DCA 2004)…So. 2d 978, 980 (Fla. 3d DCA 2004). See also Rodriguez v. Unemployment Appeals Comm’n, 869 So. 2d 657 (Fla. 3d DCA 2004); Guerrero v. Florida Unemployment Appeals Comm’n, 855 So. 2d 266 (Fla. 3d DCA 2003); Reynolds v. SV Central Dania Props., Inc., 849 So. 2d 1181 (Fla. 4th DCA 2003); Ebersol v. Unemployment Appeals Comm’n, 845 So. 2d 945 (Fla. 5th DCA 2003); Goldberg v. Unemployment Appeals Comm’n, 842 So. 2d 952 (Fla. 4th DCA 2003); Brooks v. Unemployment Appeals Comm’n, 760 So. 2d 1108 (Fla. 4th DCA 2000).…
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Langworthy v. Unemployment Appeals Comm'n & Commc'n Installation & Cisco, 858 So. 2d 1187 (Fla. 2d DCA 2003)…n for cases when the claimant proves that he or she successfully transmitted a fax within the time provided in the rule. See Mendelsohn v. Fla. Unemployment Appeals Comm’n, 851 So. 2d 208 (Fla. 1st DCA 2003); Reynolds v. SV Cent. Dania Props., Inc., 849 So. 2d 1181, 1182 (Fla. 4th DCA 2003); Ebersol v. Unemployment Appeals Comm’n, 845 So. 2d 945, 947 (Fla. 5th DCA 2003).1 In Ebersol, the appeals referee summarily dismissed the claimant’s appeal as late because it was docketed after the deadline. Id. at 946-47…
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Nickolan-Barron v. Fla. Unemployment Appeals Comm'n, 859 So. 2d 594 (Fla. 1st DCA 2003)…successfully transmitted to the Office of Appeals at the Agency for Workforce Innovation within the applicable time frame, constituted sufficient evidence that appellant timely faxed her notice of appeal. See Reynolds v. SV Cent. Dania Props., Inc., 849 So. 2d 1181, 1182-83 (Fla. 4th DCA 2003); Espanioly v. Fla. Unemployment Appeals Comm’n, 768 So. 2d 1230, 1230 (Fla. 3d DCA 2000); cf. Mendelsohn v. [*595] Fla. Unemployment Appeals Comm’n, 851 So. 2d 208, 209 (Fla. 1st DCA 2003). Accordingly, we reverse the Un…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ebersol v. Unemployment Appeals Comm'n, 845 So. 2d 945 (Fla. 5th DCA 2003)