OSIEL GUERRERO, APPELLANT,
v.
FLORIDA UNEMPLOYMENT APPEALS COMMISSION AND UNICITY IMPORTS CORPORATION, APPELLEE

Fla. 3d DCA | 2003-10-01
No. 3D02-2325
Before COPE, FLETCHER and WELLS, JJ.
855 So. 2d 266 Florida District Court of Appeal, Third District (2003) Positive Treatment
Cited by 9 cases

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Synopsis

The Florida District Court of Appeal reversed an order by the Unemployment Appeals Commission (UAC) that dismissed a claimant's appeal as untimely. The court found that the claimant raised a due process issue regarding whether he received notice of the initial hearing and decision, requiring an evidentiary hearing.


Holding

Yes, the UAC erred. Due process requires an evidentiary hearing when a claimant asserts they did not receive notice of a referee's decision, entitling them to an opportunity to appeal if lack of notice is established.


Headnotes

[1] A party claiming they did not receive notice of a referee's decision is entitled to an evidentiary hearing on the timeliness of the appeal on due process grounds.

[2] An administrative agency must provide an evidentiary hearing to a claimant who asserts they did not receive notice of an initial hearing before a referee.

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Key Quotes

“Where, however, a party claims that a referee’s decision was either untimely mailed or not received, appellate courts have held, on due process grounds, that the claimant was entitled to an evidentiary hearing on the timeliness issue.”

Establishes the legal principle that a claimant alleging non-receipt of a decision is entitled to an evidentiary hearing on due process grounds.

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Facts & Procedural History

Osiel Guerrero filed for unemployment benefits and failed to attend a telephonic hearing, leading to a denial of his claim. He then submitted a letter…

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Opinion of the Court
WELLS, J.

WELLS, J.

Osiel Guerrero appeals from an order of the Florida Unemployment Appeals Commission (UAC) dismissing as untimely, his appeal from an administrative decision denying unemployment compensation benefits. We reverse.

On January 13, 2002, Guerrero filed a claim for unemployment benefits alleging that he had been terminated for absenteeism when he returned from an authorized leave. A telephonic hearing subsequently was noticed and held before a UAC hearing referee. Guerrero failed to attend that hearing, and on February 5 his claim for benefits was denied on a finding that he had been terminated for absenteeism. The referee’s decision denying benefits expressly stated that Guerrero had 20 days to appeal the referee’s decision. That order, like the notice of the hearing before the referee, was mailed to the address provided by Guerrero on his benefits claim form and which he has continued to use throughout these proceedings and those below.

Within 20 days of the February 5 order (on February 19), Guerrero submitted a letter to the UAC explaining that his absence from work had been authorized by his employer. The UAC treated this letter as a timely appeal from the referee’s February 5 order and set a hearing before an appeals referee. Notice of this hearing was sent to the same address provided and used by Guerrero. When Guerrero failed to attend this hearing, his appeal was dismissed for lack of prosecution.

The dismissal order clearly informed Guerrero that he had 20 days in which either to file a request to reopen the case upon a showing of good cause for failure to attend the hearing before the appeals referee, or to appeal the decision to the UAC. Guerrero did neither within the 20 day time frame allotted. Instead, on June 7, Guerrero filed a request for employment appeals commission review in which he stated that he had “never [been] contacted to appear” at the initial hearing before the referee, and that he had not timely appealed because he “was never contacted.” Additionally, Guerrero stated that this was his third correspondence with the UAC in an attempt to appeal “his case.” He also attached a letter stating:

TO WHOM IT MAY CONCERN:
IN THE FOLLOWING LETTER THAT I AM SENDING TO YOU BECAUSE AS OF 1-13-02 I HAVE A CLAIM WITH THE UNEMPLOYMENT TO RECEIVE BENEFITS SINCE I HAVE BEEN UNEMPLOYED. THE LAST TIME I HEARD WAS THAT MY EMPLOYER DID NOT WANT TO PAY THE BENEFITS. I HAVE SINCE SENT OUT 2 PRIOR LETTERS OF APPEAL, AND UNTIL THIS MOMENT I HAVE NOT HEARD A RESPONSE FROM YOU. I HAVE TRIED TO COMMUNICATE MY SITUATION WITH YOU AND I HAVE FAIL [SIC] IN MY MISSION. IN THIS NEW OPPORTUNITY I AM SENDING TO YOU ABOUT THIS SITUTION THAT HAS NOT BEEN RESOLVED AND WOULD LIKE FOR YOU TO ANALYZE MY CASE BECAUSE I HAVE NOT RECEIVED ANY CHECKS. I HAVE BEEN MANY MONTHS WITHOUT WORK [SIC] I HAVE BEEN TRYING TO LOOK FOR WORK BUT I HAVE NOT FOUND ANY. I WAS FIRED FOR NO GOOD REASON [SIC] I WOULD LIKE FOR YOU TO INVESTIGATE MY CASE. I HAVE 3 CHILDREN [SIC] A WIFE AND A HOME TO TAKE CARE OF [SIC] I JUST WANT THE FUNDS THAT I DESERVE.

Based on this notice and letter, the UAC notified Guerrero that it was going to review the appeal to determine whether it was timely filed. Guerrero was advised by separate notice, sent to the original address provided and which appeared on Guerrero's June 7 request for appeal and letter, that although his appeal was untimely, that he had ten days to “show cause why his appeal should not be dismissed” by providing “information relevant to ... the reason for the apparent late appeal.” No such information was forthcoming from Guerrero, and, on July 29, 2002, UAC dismissed his appeal and notified him, again at the same address, that the decision of the UAC could be appealed to this court within 30 days. Guerrero has timely appealed from that decision.

Guerrero argues here that he was never accorded an opportunity to defend his claim for benefits and that he never received a response to his claim for benefits. We therefore reject the UAC’s argument that Guerrero has never claimed lack of notice of the referee’s hearing and decision. While somewhat in-artfully stated, that is precisely what he argues here.

Under section 443.151(4)(b)3 of the Florida Statutes, an aggrieved party has twenty days after mailing or delivery of a referee’s decision to initiate an appeal with the UAC. Failure to perfect an appeal within twenty days subjects a claim to dismissal under Florida Administrative Code Rule 60BB-7.006. There are no good cause exceptions to this dismissal rule. See Espinosa v. Cableoptics, Inc., 807 So. 2d 195, 196 (Fla. 3d DCA 2002); Creech v. Orlando Leasing Sys., 765 So. 2d 223 (Fla. 2d DCA 2000); Linderman v. K.B. Beach Suites, Ltd. PTR, 751 So. 2d 1262 (Fla. 3d DCA 2000); Delgado v. Concentrated Chem. Co., 644 So. 2d 173 (Fla. 3d DCA 1994); Florida State University v. Jenkins, 323 So. 2d 597 (Fla. 1st DCA 1975). Where, however, a party claims that a referee’s decision was either untimely mailed or not received, appellate courts have held, on due process grounds, that the claimant was entitled to an evidentiary hearing on the timeliness issue. Applegate v. National Health Care Affiliates, Inc., 667 So. 2d 332 (Fla. 1st DCA 1995)(re- ma.nding on due process grounds for an evidentiary hearing on whether a decision was timely mailed and received); Landrum v. James Rummer Timber Harvesting, Inc., 645 So. 2d 577 (Fla. 2d DCA 1994)(remanding on due process grounds for an evidentiary hearing on whether claimant timely received a referee’s decision); Robinson v. Morrison, Inc., 501 So. 2d 1328 (Fla. 4th DCA 1986)(remanding for a hearing to determine whether claimant received notice of a decision).

Guerrero claims that he never received notice of the initial referee’s hearing or the referee’s decision. In order to ensure that Guerrero received procedural due process, we remand for an evidentiary hearing. If it is determined that Guerrero did not receive notice of the decision, he should be afforded the opportunity to appeal and if he received no notice of the hearing before the referee, to present his case.1

Reversed and remanded.

. The UAC should note that Guerrero requires a translator and that one should be provided for the evidentiary hearing. The UAC is also urged to provide sufficient notice, at least two weeks, of the evidentiary hearing.


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  • Thurman v. Fla. Unemployment Appeals Comm'n, 881 So. 2d 89 (Fla. 1st DCA 2004)
    …the actions of the Commission.” Assam v. Fla. Unemployment Appeals Comm’n, 871 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 200…
  • Nadrian Butts v. State, 898 So. 2d 1082 (Fla. 3d DCA 2005)
    …east harsh of the ... classifications provided in section 775.084.” Sampson v. State, 798 So. 2d 824, 826 (Fla. 3d DCA 2001). Finally, defendant-appellant Butts objects to his being resentenced as a habitual offender on remand from Butts v. State, 855 So. 2d 266 (Fla. 3d DCA 2003), after the defendant had previously been sentenced as a habitual offender. Under the terms of the remand, there was no limitation on the sentence which could be imposed. In that situation, the defendant is clearly on notice that t…
  • Lopez v. Am. Airlines & Fla. Unemployment Appeals Comm'n, 876 So. 2d 1217 (Fla. 3d DCA 2004)
    …hat a referee’s decision was either untimely mailed or not received, appellate courts have held, on due process grounds, that the claimant was entitled to an evidentiary hearing on the timeliness issue.” Guerrero v. Fla. Unemployment Appeals Comm’n, 855 So. 2d 266, 268 (Fla. 3d DCA 2003); Abreu v. Krama Constr. Inc., 870 So. 2d 917 (Fla. 3d DCA 2004); Frederick v. Fla. Unemployment Appeals, 834 So. 2d 957 (Fla. 3d DCA 2003); Goldberg v. Unemployment Appeals Comm’n, 842 So. 2d 952 (Fla. 4th DCA 2003). Here, ho…

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