Florida Regulations 73B-10.035: Protests of Liability, Assessment, Reimbursements, and Tax Rate – Special Deputy Hearings
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(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 Florida Statutes § 443.171(6), 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 Florida Statutes § 120.57, 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 Florida Statutes Chapter 90
(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 Florida Statutes § 120.68
Rulemaking Authority 443.1317 FS. Law Implemented 443.131(3), 443.141(2), (3), 443.151, 443.163, 433.171(1), (6), (7) FS. History-New 8-25-92, Formerly 38B-2.035, Amended 1-19-03, 7-18-06, Formerly 60BB-2.035, Amended 6-2-14, 2-2-15, 10-16-17.
Terms Used In Florida Regulations 73B-10.035
- Adjourn: A motion to adjourn a legislative chamber or a committee, if passed, ends that day's session.
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Continuance: Putting off of a hearing ot trial until a later time.
- Discovery: Lawyers' examination, before trial, of facts and documents in possession of the opponents to help the lawyers prepare for trial.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Hearsay: Statements by a witness who did not see or hear the incident in question but heard about it from someone else. Hearsay is usually not admissible as evidence in court.
- Oath: A promise to tell the truth.
- Subpoena: A command to a witness to appear and give testimony.
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
(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 Florida Statutes § 443.171(6), 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 Florida Statutes § 120.57, 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 Florida Statutes Chapter 90
(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 Florida Statutes § 120.68
Rulemaking Authority 443.1317 FS. Law Implemented 443.131(3), 443.141(2), (3), 443.151, 443.163, 433.171(1), (6), (7) FS. History-New 8-25-92, Formerly 38B-2.035, Amended 1-19-03, 7-18-06, Formerly 60BB-2.035, Amended 6-2-14, 2-2-15, 10-16-17.