IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO
NADINE G. MENDELSOHN, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
v. CASE NO. 1D02-377
F L O R I D A U N E M P L O Y M E N T
APPEALS COMMISSION,
Appellee.
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Opinion filed June 26, 2003.
An appeal from Order of Unemployment Appeals Commission.
Nadine G. Mendelsohn, Pro Se.
John D. Maher of Unemployment Appeals Commission, Tallahassee, for Appellee.
ALLEN, C.J.
The appellant challenges an order by which the Unemployment Appeals
Commission upheld an appeals referee's dismissal of an administrative appeal after the
appellant failed to appear at the scheduled hearing. The appellant sought Commission
review of the referee's decision, attempting to invoke such review with a request for
a redetermination. The Commission concluded that the request was not timely filed
and that the referee's decision had thus become final, whereby the case was
dismissed.
The record indicates that the appellant faxed a request for a redetermination to
the local appeals office, but that the fax was sent and received more than twenty days
after the referee's dismissal order was mailed to the appellant. The request was thus
an untimely filing under section 443.151(4)(b)3, Florida Statutes, and the Commission
noted that the appeal was outside the statutory time limit. However, because the
appellant asserted that she had sent an earlier fax, the Commission remanded the case
to the appeals referee for evidence as to this allegation.
At the hearing, the appellant testified that she had sent an earlier fax, but she
acknowledged that her fax machine does not indicate whether a transmission is
successfully delivered. She also indicated that she was having problems with her fax
machine, and that it would sometimes shut off before a transmission was made. The
appellant testified that she did not think that had happened with her earlier fax, and she
submitted a copy of a phone bill showing a one minute call to a local number on that
date. However, the appellant did not present any evidence to confirm that the
transmission was actually completed or received.
In the order now being appealed, the Commission found that the appellant's
redetermination request was untimely. This finding was made after an evidentiary
hearing according with the requirements of Ebersol v. Unemployment Appeals
Commission, 28 Florida Law Weekly D1052 (Fla. 5th DCA April 25, 2003). Appellate
review of this factual finding is governed by §120.68(7)(b), Florida Statutes, which
precludes an assessment as to the weight of the evidence and instead directs that
factual determinations should be set aside when unsupported by competent substantial
evidence. But there was such evidentiary support for the Commission's determination
here, given the appellant's testimony regarding the problems with her fax machine and
the absence of any evidence to show that a timely fax request was ever received for
filing in the appeals office.
Because the appellant failed to establish a timely filing under section
443.151(4)(b)3, the case below was properly dismissed and the appealed order is
therefore affirmed.
HAWKES, J., CONCURS; BENTON, J., DISSENTS WITH OPINION.
BENTON, J., dissenting.
The Unemployment Appeals Commission noticed a hearing for January 4, 2002,
specifying that "timeliness of the appeal to the Unemployment Appeals Commission
is the only issue to be discussed at this hearing." The subject of the present appeal is
the Commission's subsequent order dismissing Ms. Mendelsohn's administrative
appeal to the Commission as untimely.
With respect to the timeliness of such administrative appeals, Florida
Administrative Code Rule 60BB-5.005 provides:
(1) The appeal shall be filed within 20 calendar days of the
date the determination or redetermination was mailed to the
appellant's last known address . . . .
(2) The appeal shall be filed by mailing the appeal document
. . . ; by facsimile transmission of the appeal document to
any location designated in subsections 60BB- 5.004(1), (2),
and (3), F.A.C.; or by hand delivery . . . .
(3) Appeals filed by mail shall be considered to have been
filed when postmarked by the United States Postal Service.
Appeals filed by hand delivery or facsimile shall be
considered to have been filed when date stamped received
at the authorized location.
(4) Upon receipt of an appeal delivered in person or by
facsimile transmission, the Commission, Agency for
Workforce Innovation, or Office of Appeals employee shall
record the date of receipt on the appeal document.
The order which Ms. Mendelsohn sought to appeal administratively was mailed to her
on October 16, 2001.
Monday, November 5, 2001, was the twentieth day after October 16, 2001, and
therefore the deadline for filing the administrative appeal. Ms. Mendelsohn testified
that she filed an appeal by facsimile transmission on November 2, 2001, three days
before the deadline. See Perenzuela v. Fla. Unemployment Appeals Comm'n, 779 So.
2d 670 (Fla. 3d DCA 2001); see generally Miller v. State, 838 So. 2d 667 (Fla. 1st
DCA 2003).
Referee: When did you send the letter of appeal to
Fort Lauderdale?
Mendelsohn: I faxed it on November 2nd.
Referee: How did you send it to them?
Mendelsohn: I faxed it, which is what I had always done
before.
The referee tested this assertion by cross-examination along two lines, first inquiring
of Ms. Mendelsohn why, if she had faxed appeal papers on November 2, 2001, she
had sent a second fax on November 6, 2001:
Referee: Okay, butand so what made you contact
Fort Lauderdale on November 6th?
Mendelsohn: I faxed over the letter from my attorney
along with another letter stating here's
additional documents. That's
numbernumber two.
Referee: Document number two that I mailed out to
you?
Mendelsohn: Document number two, right and a request
for redetermination, appeal faxed to you
November 2nd, I stated I would be sending
supplemental documentation and that was
the supplemental documentation.
In his second line of cross-examination, the referee questioned Ms. Mendelsohn as to
whether the facsimile transmission that she thought she had accomplished on
November 2, 2001, had actually taken place. She testified that it had, and that she
would have been aware if it had not been transmitted:
Referee: Prior to November 2nd, you had problems
Mendelsohn: Yeah, I'd been having problems with it for a
while and it may have cut off or a call may
have come in. We have what is it, ring
master?
Referee: I don't know.
Mendelsohn: Callcall waiting, caller id, and if I don't
code in a start 70 I think it is, then a call
comes in and it shuts off the fax, and that
mightmight have happened.
Referee: That could have happened on the 2nd of
November?
Mendelsohn: No, it didn't happen on the 2nd. Because if
it would have happened on the 2nd, I would
have tried to refax it.
The referee's cross-examination did not shake Ms. Mendelsohn's testimony that she
faxed a notice of appeal on November 2, 2001, that there had been no problem in
effecting that particular transmission, and that if there had been she would have been
aware of it. Nobody put on evidence to contradict her testimony on any point.
Nothing in the order under review explains the referee's fact finding. The order
makes no reference to November 2, 2001, nor to any of the evidence adduced at the
hearing. In broad boilerplate language, the order reads:
The appeals referee's decision was mailed to the
appellant's last known address on October 16, 2001, and
the appeal to the Unemployment Appeals Commission was
filed on November 6, 2001.
The Florida Unemployment Compensation law
provides that the referee's decision shall be final unless,
within 20 days from the date of mailing of notice thereof to
the parties' last known addresses, an appeal is initiated to
the Unemployment Appeals Commission. An appeal to the
Commission was not filed within 20 days.
No evidence whatsoever, much less substantial, competent evidence, supports the
referee's finding that an "appeal to the Commission was not filed within 20 days."
The order should be reversed and the case should be remanded to the Commission
for a decision on the merits.
A telephone bill received as an exhibit at the hearing corroborates unrebutted
testimony that the fax call went through on November 2, 2001. Even uncorroborated
testimony that mail has been sent or that a facsimile transmission has been made raises
a presumption of delivery.
See In re Hairopoulos, 118 F.3d 1240, 1244 (8th Cir.1997)
("A letter properly addressed and mailed is presumed to
have been delivered to the addressee."); Wagner Tractor,
Inc. v. Shields, 381 F.2d 441, 446 (9th Cir.1967) ("There is
a presumption of receipt after proper dispatch of a telegram
analogous to letters properly mailed."). We see no
principled reason why a jury would not be able to make the
same inference regarding other forms of
communication--such as facsimiles, electronic mail, and
in-house computer message systems--provided they are
accepted as generally reliable and that the particular
message is properly dispatched. See, e.g., United States v.
Galiczynski, 44 F.Supp.2d 707, 714 (E.D.Pa.) ("The
rebuttable presumption of service by mailing, or in this
case, by fax, can be established by pointing to
circumstantial evidence, such as evidence of standard
operating office procedures or business practices regularly
used concerning the mailing or faxing of documents by a
party."), aff'd, 203 F.3d 818 (3d Cir.1999); American
Paging of Texas, Inc. v. El Paso Paging, Inc., 9 S.W.3d
237, 240 (Tex.App.1999) ("Admission of evidence showing
a telephonic document transfer to the recipient's current
telecopier number gives rise to a presumption that notice
was duly received by the addressee."); SSI Med. Servs.,
Inc. v. State, 146 N.J. 614, 685 A.2d 1, 5- 6 & n. 1 (1996)
(discussing nature of evidence required to raise
presumption of mailing and receipt for electronic mail).
Kennell v. Gates, 215 F.3d 825, 829 (8th Cir. 2000). This presumption went
unrebutted here. Nobody testified that the Commission did not receive the fax Ms.
Mendelsohn testified she sent on November 2, 2001 (or even that Commission staff
failed to date stamp it on November 2, 2001). Ms. Mendelsohn was the only witness
who testified at the hearing.
For the foregoing reasons, I respectfully dissent.
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