Third District Court of Appeal
State of Florida
Opinion filed August 25, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1417
Lower Tribunal No. 2018-048025. License No. CGS 1515401
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Carlos E. Rodriguez,
Appellant,
vs.
Department of Business and Professional Regulation,
Appellee.
An appeal from the Department of Business and Professional
Regulation, Construction Industry Licensing Board.
Carlos E. Rodriguez, in proper person.
Joseph Yauger Whealdon, III, Chief Legal Counsel (Tallahassee), for
appellee.
Before EMAS, MILLER, and LOBREE, JJ.
MILLER, J.
Appellant, Carlos Rodriguez, challenges a final administrative order of
the Construction Industry Licensing Board finding he violated various
provisions of chapter 489, Florida Statutes. The order determined that
Rodriguez waived his right to dispute the material facts alleged in the
administrative complaint by failing to request a formal hearing within twenty-
one days of receiving notice. On appeal, Rodriguez contends the failure to
provide him with actual notice of the underlying administrative complaint
deprived him of due process and, alternatively, invokes the doctrine of
equitable tolling to excuse his noncompliance with the twenty-one-day time
limit. We conclude the Department’s compliance with the notice provisions
set forth in section 455.275, Florida Statutes, satisfied due process and
reverse and remand for the limited purpose of resolving the tolling claim.
BACKGROUND
Rodriguez, a certified general contractor, served as the primary
qualifying agent for Denika Construction, Inc. On May 5, 2018, Pierre
Boumerhi contracted with Rodriguez and Denika for the construction of a
single-family residence and boat dock. Construction began but was halted
when a dispute arose between the parties. Boumerhi then filed a complaint
with the Department of Business and Professional Regulation, contending
Rodriguez abandoned the project.
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On August 19, 2019, the Department filed a dual-count administrative
complaint against Rodriguez, alleging violations of sections 489.129(1)(i)
and 489.129(1)(j), Florida Statutes. See § 489.129(1)(i),(j), Fla. Stat.
(authorizing disciplinary action “if the contractor . . . is found guilty of any of
the following acts: . . . (i) Failing in any material respect to comply with the
provisions of this part or violating a rule or lawful order of the board. (j)
Abandoning a construction project in which the contractor is engaged or
under contract as a contractor”).
The record before us reflects that copies of the complaint, along with
accompanying correspondence, were forwarded to Rodriguez’s last known
address of record by means of certified mail, as well as regular mail and e-
mail. After the certified mail was returned unclaimed, the Department left a
message at Rodriguez’s last known telephone number, posted a notice on
the front page of its website, and sent notice by e-mail to all newspapers of
general circulation and news departments of broadcast network affiliates in
six counties, including the county of Rodriguez’s last known address.
Rodriguez failed to respond, and the Department requested the entry
of a finding he had waived his right to dispute the material facts alleged in
the complaint by failing to seek a formal hearing within twenty-one days after
receiving notice. The Board granted the request, determined he committed
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the charged violations, placed him on probation, and assessed an
administrative fine and restitution. The instant appeal ensued.
STANDARD OF REVIEW
We review an issue of law in a final administrative order de novo. See
Art. V, § 21, Fla. Const. (“In interpreting a state statute or rule, a state court
or an officer hearing an administrative action pursuant to general law may
not defer to an administrative agency’s interpretation of such statute or rule,
and must instead interpret such statute or rule de novo.”); Lakeland Reg’l
Med. Ctr., Inc. v. State, Agency for Health Care Admin., 917 So. 2d 1024,
1029 (Fla. 1st DCA 2006).
ANALYSIS
The hallmarks of procedural due process are notice and an opportunity
to be heard, the deprivation of which constitutes error. See Amend. XIV,
U.S. Const.; Art. I, § 9, Fla. Const. “The manner in which due process
protections apply vary with the character of the interests and the nature of
the process involved.” Dep’t of Law Enf’t v. Real Prop., 588 So. 2d 957, 960
(Fla. 1991) (citations omitted). Accordingly, in an administrative proceeding,
due process has been described as a “flexible concept.” Erwin v. State,
Dept. of Pro. & Occupational Regul., Div. of Pros., Fla. State Bd. of Dentistry,
320 So. 2d 2, 4 (Fla. 2d DCA 1975); see also Cafeteria & Rest. Workers
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Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 895 (1961) (“The very
nature of due process negates any concept of inflexible procedures
universally applicable to every imaginable situation.”) (citations omitted). In
this context, the legislature is charged with determining “by what process and
procedure legal rights may be asserted and determined provided that the
procedure adopted affords reasonable notice and a fair opportunity to be
heard before rights are decided.” Citizens of State v. Fla. Pub. Serv.
Comm’n, 146 So. 3d 1143, 1154 (Fla. 2014) (citation omitted).
Section 455.275, Florida Statutes, governs the service of the
administrative complaint. Under the statute, initial attempts at service are to
be made by regular and certified mail, as well as by e-mail, if possible, at the
licensee’s “last known address of record.” § 455.275(3)(a), Fla. Stat. In the
event these methods fail to yield “proof of service,” a term undefined under
the statute, the Department must:
[C]all the last known telephone number of record and cause a
short, plain notice to the licensee to be posted on the front page
of the department’s website and shall send notice via e-mail to
all newspapers of general circulation and all news departments
of broadcast network affiliates in the county of the licensee’s last
known address of record.
§ 455.275(3)(b), Fla. Stat.
Here, the final judgment reflects “[s]ervice of the Administrative
Complaint was made upon [Rodriguez] by Certified Mail,” without reference
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to other methods of service. Several courts, including our highest, have
concluded the “use of mailed notice meets state and federal due process
requirements” in administrative proceedings. Shelley v. State, Dep’t of Fin.
Servs., 846 So. 2d 577, 577 (Fla. 1st DCA 2003) (citations omitted); see
Dusenbery v. United States, 534 U.S. 161, 162 (2002) (holding state
attempts to provide notice by certified mail satisfied due process
requirements); see also Keys Citizens For Responsible Gov’t, Inc. v. Fla.
Keys Aqueduct Auth., 795 So. 2d 940, 949 (Fla. 2001) (“[T]he additional
procedural safeguard of actual notice urged by Citizens would add a
tremendous burden and expense . . . and would have little value as all
Florida property owners are already on notice that mandatory connection is
required by law.”). Nonetheless, in the instant case, although entirely
conceivable the regular mailing “reache[d] the addressee uneventfully,” the
certified mail went unclaimed. Shelley, 846 So. 2d at 577.
In ensuring a notice procedure is constitutionally sufficient, “the means
employed must be such as one desirous of actually informing the absentee
might reasonably adopt to accomplish it.” Jones v. Flowers, 547 U.S. 220,
229 (2006) (citation omitted). Applying this broad principle here, due process
arguably required a reasonable further effort to communicate the existence
of the administrative complaint to the addressee. See id. at 225 (holding that
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“when mailed notice of a tax sale is returned unclaimed,” the state must take
additional reasonable steps to provide notice).
Although not referenced in the final judgment, the record before us
reflects the Department complied with the additional statutory safeguards by
engaging in telephonic communication and effectuating constructive notice.
Mindful it is the prerogative of the legislature “to determine the extent and
character of the notice which shall be given,” we conclude this combination
of efforts was sufficient to afford due process protection. Dawson v. Saada,
608 So. 2d 806, 808 (Fla. 1992); see also Mullane v. Cent. Hanover Bank &
Tr. Co., 339 U.S. 306, 314 (1950) (Notice must be “reasonably calculated,
under all the circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their objections.”)
(citations omitted).
Rodriguez further invokes the doctrine of equitable tolling to avoid his
obligation to respond to the allegations in the complaint within twenty-one
days. Such a claim is plainly available pursuant to Florida Administrative
Code Rule 28-106.111(4). See Fla. Admin. Code R. 28-106.111(4) (“Any
person who receives written notice of an agency decision and who fails to
file a written request for a hearing within [twenty-one] days waives the right
to request a hearing on such matters. This provision does not eliminate the
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availability of equitable tolling as a defense.”). Accordingly, we reverse and
remand for an evidentiary hearing on the limited issue of whether equitable
tolling applies to excuse Rodriguez’s failure to request a hearing to dispute
the material facts alleged in the complaint against him. See Hurley v. Dep’t
of Bus. and Pro. Regul., 965 So 2d 359, 359 (Fla. 4th DCA 2007); Nicks v.
Dep’t of Bus. & Pro., Etc., 957 So. 2d 65, 68 (Fla. 5th DCA 2007); Brown v.
State, Dep’t of Fin. Servs., 899 So. 2d 1246, 1247-48 (Fla. 4th DCA 2005);
Avante, Inc. v. Agency for Health Care Admin., 722 So. 2d 965, 966 (Fla. 1st
DCA 1998)). Alternatively, the Board or Department may elect not to afford
Rodriguez a hearing on his equitable tolling claim and instead accept his
factual allegations as true and allow a hearing to contest the factual
allegations of the administrative complaint. See Nicks, 957 So. 2d at 68.
Affirmed in part, reversed in part, and remanded.
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