06-0460 HERNANDEZ V. SECURITY WINDOWS

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State: Florida

Court: Florida Third District Court

Docket No: 06-0460 HERNANDEZ V. SECURITY WINDOWS

Case Date: 12/27/2006

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2006

MIRTA HERNANDEZ, Appellant, vs.

** ** ** CASE NO. 3D06-460 LOWER TRIBUNAL NO.

SECURITY WINDOWS & DOORS, ** INC., and FLORIDA UNEMPLOYMENT APPEALS COMMISSION, ** Appellees. **

05-9523

Opinion filed December 27, 2006. An Appeal from the Florida Unemployment Appeals Commission. Mirta Hernandez, in proper person. Geri Atkinson-Hazelton, for appellees.

Before SHEPHERD, SUAREZ, and LAGOA, JJ.

LAGOA, Judge.

Mirta Hernandez ("Hernandez") appeals from an order of the Unemployment Appeals Commission ("Commission") dismissing her

appeal as untimely. Hernandez

We reverse and remand. for and was awarded unemployment

applied

benefits. Hernandez's employer appealed and requested a hearing. Following a hearing, the appeals referee reversed the initial determination receiving and held that Hernandez she was was disqualified from from her

benefits

because

discharged

employment for misconduct. This decision was mailed to Hernandez on September 15, 2005. On November 22, 2005, Hernandez faxed a letter to the

Commission, which the Commission treated as an appeal. letter, Hernandez wrote: To Whom It May Concern: Please be advised that this is the 2nd request that I, Mirta Hernandez, has made to the Office of Appeals. My 1st request was made in the middle of September 2005 via fax in Spanish, however I received no response to my appeal. Today, November 20, 2005, I am making my second request. Please contact me at the address or phone number listed below.

In her

On December 21, 2005, the Commission ordered Hernandez to show cause why the appeal should not be dismissed as untimely based on a November 22nd filing date. On January 18, 2006, the

Commission dismissed the appeal as untimely. 2

On February 2, 2006, Hernandez sent a handwritten letter in Spanish addressed to Silvia Maya at the Agency for Workforce, Office of Appeals. In that letter, Hernandez asked why she did

not have the right to appeal when she had filed several appeals. She also indicated that she had sent a notarized document back as requested but may have made a mistake because of her poor English. Pursuant to section 443.151(4)(b)5, Florida Statutes

(2005), a claimant has twenty days after the mailing of the appeal referee's decision to initiate an appeal with the

Commission. twenty days

An appeal which is not timely perfected within is subject to dismissal pursuant to Florida

Administrative Code Rule 60BB-7.006. While there are no good cause exceptions provided in the statute or rule, as the Commission candidly points out, courts, including this one, have carved out exceptions to the dismissal rule "in certain individual cases based on considerations of fairness and due process." See Frederick v. Fla. Unemployment

Appeal, 834 So. 2d 957, 958 (Fla. 3d DCA 2003)(quoting Applegate v. Nat'l Health Care Affiliates, Inc., 667 So. 2d 332, 333 (Fla. 1st DCA 1995). Because we have no authority to vary from our precedent of judicially created exceptions 3 to an otherwise unambiguous

statute, Frederick.

the

disposition

of

this

appeal

is

governed

by

In Frederick, this Court held that the dismissal of

claimant's appeal in the absence of an evidentiary hearing was improper and remanded the case for an evidentiary hearing to determine whether claimant "actually attempted to fax her notice of appeal to the UAC within twenty days from the mailing of the appeal referee's decision". Accordingly, we vacate Id. at 958-59. the order dismissing Hernandez's

appeal to the Commission and remand for an evidentiary hearing to determine whether Hernandez's notice of appeal to the

Commission was timely filed. Reversed and remanded for proceedings consistent with this opinion.

4

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