CARLOS E. RODRIGUEZ v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

Citation: Not availableDocket: 20-1417

Court: District Court of Appeal of Florida; August 25, 2021; Florida; State Appellate Court

Original Court Document: View Document

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The Third District Court of Appeal of Florida issued an opinion on August 25, 2021, concerning the appeal by Carlos E. Rodriguez against the Department of Business and Professional Regulation's (DBPR) Construction Industry Licensing Board. The appeal arose from a final administrative order that found Rodriguez had violated provisions of Chapter 489, Florida Statutes, including abandoning a construction project. The Board ruled that Rodriguez waived his right to contest the allegations by failing to request a formal hearing within 21 days of receiving notice of the complaint.

Rodriguez argued that he did not receive actual notice of the complaint, which he claimed violated his due process rights. He also invoked equitable tolling to justify his late response. The court determined that the DBPR had adhered to the notice requirements specified in Section 455.275 of Florida Statutes, thus satisfying due process. However, the court reversed the Board's order and remanded the case to address Rodriguez's tolling claim.

Rodriguez, a certified general contractor and primary qualifying agent for Denika Construction, had a dispute with Pierre Boumerhi regarding a construction project, leading to the complaint filed against him by the DBPR. The complaint was sent to Rodriguez's last known address via certified and regular mail, and e-mail. After the certified mail was unclaimed, the DBPR employed additional measures to notify him. Rodriguez's failure to respond led to the Board finding him in violation and imposing penalties, prompting the appeal.

The court reviewed the case de novo regarding legal issues in the final administrative order, emphasizing that it would interpret statutes and rules independently rather than deferring to the administrative agency's interpretations.

Procedural due process requires both notice and an opportunity to be heard, with any deprivation constituting an error under the 14th Amendment of the U.S. Constitution and Article I, Section 9 of the Florida Constitution. The application of due process varies based on the nature of the interests and the processes involved, leading to its characterization as a "flexible concept" in administrative proceedings. The legislature is responsible for determining the appropriate processes for asserting legal rights, ensuring that they provide reasonable notice and a fair opportunity to be heard.

Florida Statute Section 455.275 outlines the service of administrative complaints, mandating initial attempts via regular and certified mail, and email if possible, to the licensee’s last known address. If these attempts fail to produce proof of service, the Department must call the last known telephone number and post a notice on its website, while also notifying local media. In this case, service of the Administrative Complaint on [Rodriguez] was executed by Certified Mail without utilizing other service methods. Courts have held that mailed notice satisfies due process requirements, although there is recognition that additional efforts may be necessary if initial mailed notices go unclaimed.

In this instance, while the certified mail was unclaimed, the Department undertook further actions to ensure notice was provided, including phone communication and constructive notice. Thus, despite the final judgment not referencing these additional efforts, the combination of steps taken complied with due process protections established by both the legislature and judicial precedent.

Notice must be adequately designed to inform interested parties about the ongoing action and provide them a chance to present objections. Rodriguez cites the doctrine of equitable tolling to justify not responding to the complaint within the required twenty-one days, a claim permitted under Florida Administrative Code Rule 28-106.111(4). This rule states that individuals who receive notice of an agency decision must file a hearing request within twenty-one days or risk waiving their right to a hearing. However, the possibility of using equitable tolling as a defense remains intact. Consequently, the court reverses and remands the case for an evidentiary hearing to determine whether equitable tolling can excuse Rodriguez's failure to request a hearing regarding the allegations. The Board or Department also has the option to forgo a hearing on the equitable tolling claim, accepting Rodriguez's factual assertions as true and allowing a hearing solely on the factual allegations of the complaint. The decision is affirmed in part, reversed in part, and remanded.