Fla. Admin. Code Ann. R. 73B-10.035 - Protests of Liability, Assessment, Reimbursements, and Tax Rate - Special Deputy Hearings
(1) Filing a
Protest. Protests of determinations of liability, assessments, reimbursement
requirements, and tax rates are filed by writing to DOR in the time and manner
prescribed on the determination document. Upon receipt of a written protest,
DOR will issue a redetermination if appropriate. If a redetermination is not
issued, the letter of protest, determination, and all relevant documentation
will be forwarded to the Office of Appeals, Special Deputy Section, in DEO for
resolution.
(2) Each protest is to
contain:
(a) The employer account number
assigned to the Petitioner by DOR;
(b) The name, address, and telephone number
of the Petitioner; the name, address, and telephone number of the Petitioner's
representative, if any, which will be the address for service during the course
of the proceeding; and an explanation of how the Petitioner's substantial
interests will be affected by DOR's determination;
(c) A statement of when and how the
Petitioner received notice of DOR's determination;
(d) A statement of all disputed issues of
material fact. If there are none, the petition should so indicate;
(e) A concise statement of the ultimate facts
alleged, including the specific facts the Petitioner contends warrant reversal
or modification of the determination;
(f) A statement of the specific rules or
statutes the Petitioner contends require reversal or modification of the
determination; and,
(g) A statement
of the relief sought by the Petitioner.
(3) Proceedings. Special deputies will
conduct hearings and issue recommended orders to the Director or Director's
designee on protests of determinations of liability, tax rates, assessments,
and reimbursement requirements.
(4)
Parties. DEO through its designee, DOR, will be a party respondent in each of
the above protests. Where a protest arises from a claim or claims for benefits,
the claimant will be joined as a party.
(5) Timely Protest.
(a) Determinations issued pursuant to
Sections 443.1216, 443.131, 443.1312, and 443.141, F.S., will become final and
binding unless application for review and protest is filed with DOR within 20
days from the mailing date of the determination. If not mailed, the
determination will become final 20 days from the date the determination is
delivered.
(b) If a protest appears
to have been filed untimely, DEO may issue an Order to Show Cause to the
Petitioner, requesting written information as to why the protest should be
considered timely. If the Petitioner does not, within 15 days after the mailing
date of the Order to Show Cause, provide written evidence that the protest is
timely, the protest will be dismissed.
(6) Acceptance or denial by DEO's Director or
the Director's designee.
(a) Each timely
application for review of tax rate, assessment, or redetermination issued
pursuant to Sections 443.131(3)(i)1., (4)(b),
443.1312(3),
443.1313,
and
443.141(2)(a),
F.S., shall be considered by the Director or Director's Designee. When a timely
application alleges facts which, if true, would entitle the applicant to a
favorable redetermination, the Director or the Director's designee will grant
the application for review; otherwise the application shall be
denied.
(b) If a timely application
for review is granted, DEO will conduct an administrative hearing in the
matter.
(7) Burden of
Proof. The burden of proof will be on the protesting party to establish by a
preponderance of the evidence that the determination was in error.
(8) Hearing. Hearings will be conducted
telephonically or, if in-person, at one of DEO's established UC Appeals Office
locations in Florida.
(9)
Furnishing Documents to the Parties. Pursuant to Sections
443.171(5)
and
443.1715,
F.S., DOR will provide to the Special Deputy and to each party documents and
official records in its possession regarding the case.
(10) Notice of Hearing. The special deputy
will set the time and place for all hearings and mail written notice to each
party's address of record at least 14 days before a hearing on the merits of
the protest, unless otherwise agreed by the parties.
(11) Subpoenas.
(a) Upon written application of any party of
record or upon the special deputy's own motion, the special deputy may issue
subpoenas pursuant to Section
443.171(6),
F.S., requiring the attendance of witnesses or production of records, files and
memoranda at any hearing before a special deputy for the purpose of taking the
testimony of such witnesses or inspecting such documents. The application for
subpoena must include the full name and address of the witness for whom the
subpoena is to be issued and the time and place for the witness to appear
and/or produce documents. Requests for subpoenas duces tecum must describe with
particularity the documents to be provided to the special deputy and parties.
Any application for subpoena must be delivered to the office of the special
deputy sufficiently in advance of the scheduled date of the hearing to allow
service prior to hearing.
(b) A
subpoena may be served by any person authorized by law to serve process or by
any other person who is not a party and who is of majority age. Service may be
made by a party's attorney or representative. Proof of personal service will be
made by certification of the person making service if not served by an officer
authorized by law to do so. If service is made by certified mail, the returned
postal service receipt will be proof of service.
(c) Any person subject to a subpoena may, for
any of the grounds set forth in Section 120.569(2)(k)1., F.S., file with the
special deputy a motion to quash or limit the scope of the subpoena. The motion
must be made sufficiently in advance of the date set for compliance with the
subpoena to allow the special deputy to rule on the motion and provide notice
to the parties of the ruling. If the special deputy's written ruling is not
received prior to the date set for compliance, the moving party must appear at
the designated time and place prepared to comply with the subpoena. The moving
party will be entitled to an oral ruling on the motion entered into the record
at the inception of the hearing.
(d) If a person fails to comply with a
subpoena, the party requesting the subpoena may seek enforcement by filing a
petition for enforcement pursuant to Section 120.569(2)(k)2., F.S., in the
circuit court of the judicial circuit wherein the person in noncompliance
resides.
(12) Discovery.
Parties may obtain discovery as provided in Rules 1.280 through 1.410, Florida
Rules of Civil Procedure. Upon request by a party the special deputy is
authorized to issue orders to effectuate the purposes of discovery and to
prevent delays, including orders shortening the period of time during which
discovery is to be performed.
(13)
Continuance. The special deputy may, upon request of a party or upon the
special deputy's own motion, continue a hearing for good cause.
(a) Requests for continuance must state the
reasons therefore and be made either in writing prior to the hearing or orally
on the record at the hearing.
(b)
The special deputy must immediately consider the request for continuance and
provide written notice of the ruling to the parties.
1. If granted, the special deputy will so
notify the parties in writing.
2.
If denied, the appeals referee will so notify the parties in writing and
proceed with the hearing as scheduled.
3. If it does not appear that the parties
will receive a mailed ruling prior to the scheduled date of the hearing, the
special deputy will nevertheless mail the ruling. If the request is denied the
special deputy will proceed with the hearing. If the request is granted, the
Office of Appeals will attempt to so notify each party by telephone.
4. If a continuance request is made during
the course of a hearing, the special deputy will enter the ruling on the motion
into the record and then proceed or adjourn.
5. If subsequent to hearing, but prior to
rendition of a Recommended Order, the special deputy decides an additional
hearing is necessary, the parties shall be so advised in writing.
(14) Appeals
Procedures. Appeals procedures will be in accordance with Section
120.57,
F.S., and this rule.
(15) Evidence.
(a) Oral evidence shall be taken only on oath
or affirmation, whether the hearing is conducted by telephone, in-person, or by
other means approved by DEO.
(b)
The special deputy will prescribe the order in which testimony will be taken
and preserve the right of each party to present evidence relevant to the
issues, cross-examine opposing witnesses, impeach any witness and rebut the
evidence presented. The special deputy will restrict the inquiry of each
witness to the scope of the proceedings.
(c) Hearsay evidence, whether received in
evidence over objection or not, may be used to supplement or explain other
evidence, but will not be sufficient in itself to support a finding unless the
evidence falls within an exception to the hearsay rule as found in Chapter 90,
F.S.
(d) The rules of privilege
apply to the same extent as in civil actions under Florida law.
(e) Any party wishing to proffer documents at
a telephone hearing must deliver a copy of each document to the special deputy
and all parties and addresses shown on the Notice of Hearing, in sufficient
time for receipt prior to the telephone hearing. Only documents received by the
parties will be considered, unless the right to view the documents is
waived.
(16)
Recordation. The proceedings will be recorded by the special deputy. The
recording of the testimony will be placed in the official record and preserved
at least 180 days from the date of the Final Order.
(17) Non-Appearance of Petitioner. The
failure of the Petitioner to appear at the hearing or to comply with any lawful
order will be cause for dismissing the appeal.
(18) Request to Re-Open Proceedings. Upon
written request of the Petitioner or upon the special deputy's own motion, the
special deputy will for good cause rescind a Recommended Order to dismiss the
case and reopen the proceedings. Upon written request of the Respondent or
Joined Party, or upon the special deputy's own motion, the special deputy may
for good cause rescind a Recommended Order and reopen the proceedings if the
party did not appear at the most recently scheduled hearing and the special
deputy entered a recommendation adverse to the party. The special deputy will
have the authority to reopen an appeal under this rule provided that the
request is filed or motion entered within the time limit permitted to file
exceptions to the Recommended Order. A threshold issue to be decided at any
hearing held to consider allowing the entry of evidence on the merits of a case
will be whether good cause exists for a party's failure to attend the previous
hearing. If good cause is found, the special deputy will proceed on the merits
of the case. If good cause is not found, the Recommended Order will be
reinstated.
(19) Post Hearing
Submissions. Any party initiating correspondence pursuant to paragraphs (a)
through (e) of this subsection must send a copy of the correspondence to each
of the parties whose address is shown on the notice of hearing or was added at
the hearing, and indicate that copies were sent.
(a) The parties will have 15 days from the
date of the close of testimony to submit written proposed findings of fact and
conclusions of law with supporting reasons. If mailed, the postmark date will
be considered the date of submission. However, no additional evidence will be
accepted after the hearing has been closed.
(b) The special deputy will prepare and
transmit a Recommended Order including findings of fact and conclusions of law
together with the record of the proceedings and the parties' proposed findings
of fact and conclusions of law to the Director or the Director's designee for
decision. A copy of the Recommended Order will be mailed to all parties of
record.
(c) Any party aggrieved by
the Recommended Order may file written exceptions to the Director or the
Director's designee within 15 days of the mailing date of the Recommended
Order.
(d) Any opposing party may
file counter exceptions within 10 days of the mailing of the original
exceptions.
(e) A brief in
opposition to the counter exceptions may be filed within 10 days of the mailing
of the counter exceptions.
(20) Extensions of Time. Upon application, an
extension of time may be granted for submitting proposed findings of fact and
conclusions of law, and for submitting exceptions, counter-exceptions, and
briefs. Unless verbally approved on the record during the hearing, a written
application for extension of time, including the reason for the request and the
amount of time requested, must be received by the special deputy prior to the
expiration of the original deadline.
(21) Director's Order. The Director or the
Director's designee will make a decision and issue a written order in the
matter and serve a copy of the order to the parties by certified
mail.
(22) Finality. Orders of the
Director or the Director's designee will become final when the time has expired
for seeking judicial review, provided such review has not been invoked in
accordance with Section
120.68,
F.S.
Notes
Rulemaking Authority 443.1317 FS. Law Implemented 443.131(3), 443.141(2), (3), 443.151, 443.163, 433.171(1), (6), (7) FS.
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