LARRY N. WALDRON, APPELLANT,
v.
CITY OF ARCADIA AND DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, STATE OF FLORIDA, UNEMPLOYMENT APPEALS COMMISSION, APPELLEES
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The court held that the Unemployment Appeals Commission lacked competent and substantial evidence to conclude the appeal was untimely filed.
[1] An unemployment appeal is timely filed if initiated within 20 days after the date of mailing or delivery of notice of the referee's decision.
[2] A party's sworn, uncontradicted affidavit stating non-receipt of a notice of decision is competent evidence to rebut a presumption of mailing or delivery.
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Join FLexlaw to unlock all legal intelligenceAppellant's appeal to the Unemployment Appeals Commission was dismissed as untimely. The commission relied on a mailing date, but the appellant provid…
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OTT, Acting Chief Judge.
Appellant’s appeal to the Unemployment Appeals Commission was dismissed on the ground that it was untimely filed. We reverse.
The procedure for filing an appeal is found in section 443.151(4)(b)3, Florida Statutes (1980), which 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).
Section 443.151(4)(c) gives the commission the power to allow an appeal by any party.
The commission contends that the 20 days in the case sub judice began on February 9, 1981, as indicated by the statement of mailing found at the bottom of the referee’s decision. However, on page 1 of the notice, only one of the boxes to the right of the addresses of the claimant and employer is checked and marked “attorney.” It is unclear whether this refers to claimant’s attorney or employer’s attorney. No further evidence was offered to clarify or support the mailing or delivery of the notice to the appellant or his attorney. Further, the record contains sworn affidavits of appellant, his mother, and his attorney which establish that a copy of the referee’s decision was never received by mail or delivery until April 10, 1981. This evidence was uncon-tradicted. It is also noted that promptly upon receipt of such notice on April 10, 1981, appellant’s counsel filed a notice of appeal. We hold that the record before us does not contain competent and substantial evidence to support the commission’s conclusions that the appeal was untimely.
The facts in the case sub judice are quite similar to those in Teater v. Department of Commerce Board of Review, 370 So. 2d 847 (Fla. 3d DCA 1979), wherein our sister court reached the same conclusion.
The order of the Unemployment Appeals Commission is REVERSED and REMANDED with directions that the appeal be received as timely filed.
CAMPBELL and SCHOONOVER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Landrum v. James Rummer Timber Harvesting, Inc., 645 So. 2d 577 (Fla. 2d DCA 1994)…peal was untimely. In order to ensure that Landrum received procedural due process, we remand for an evi-dentiary hearing. Livingston v. Unemployment Appeals Comm’n, 620 So. 2d 1103 (Fla. 4th DCA 1993); Robinson. See also Waldron v. City of Arcadia, 409 So. 2d 1138 (Fla. 2d DCA 1982); Teater v. Dep’t of Commerce Bd. of Review, 370 So. 2d 847 (Fla. 3d DCA 1979). On remand, if it is determined that Land-rum did not receive the appeals referee’s decision in time to seek further appellate review, he should be aff…
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Burina Robinson v. Fla. Unemployment Appeals Comm'n & Morrison, Inc., 526 So. 2d 198 (Fla. 4th DCA 1988)…ct that the certificate or statement of mailing went unsigned; all taken together served to create such uncertainty in the matter that, in our view, the ends of justice will best be served by acceptance of the appeal. In Waldron v. City of Arcadia, 409 So. 2d 1138 (Fla. 2d DCA 1982), the claimant’s appeal to the Unemployment Appeals Commission was dismissed as untimely filed. The statement at the bottom of the referee's decision indicated mailing took place on February 9, 1981. A mark in a box seemed to indic…
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Delgado v. Concentrated Chem. Co., 644 So. 2d 173 (Fla. 3d DCA 1994)…ston 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. 4th DCA 1991); Robinson v. Morrison, Inc., 501 So. 2d 1323 (Fla. 4th DCA 1987); Waldron v. City of Arcadia, 409 So. 2d 1138 (Fla. 2d DCA 1982). Under those circumstances, the late appealing party has been found to be entitled to an evidentiary hearing on the timeliness question. In this case, however, when Delgado raised the disqualification issue at a hearing before an…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Teater v. Dep't OF Commerce Bd. OF Review, 370 So. 2d 847 (Fla. 3d DCA 1979)