Gray v. Florida Department of Labor & Employment Security

District Court of Appeal of Florida

Gray v. Florida Department of Labor & Employment Security

375 So. 2d 341, 1979 Fla. App. LEXIS 15836

CourtDistrict Court of Appeal of Florida

DecidedSeptember 18, 1979

DocketNo. MM-10

StatusPublished

Cited by1 cases

This text of 375 So. 2d 341 (Gray v. Florida Department of Labor & Employment Security) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gray v. Florida Department of Labor & Employment Security, 375 So. 2d 341, 1979 Fla. App. LEXIS 15836 (Fla. Ct. App. 1979).

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Opinions

SHIVERS, Judge.

Petitioner was discharged from his employment with Tampa Housing Authority on January 10, 1978. His claim for unemployment benefits was denied. Petitioner thereafter filed a Notice of Appeal and a [342]*342hearing was held before Appeals Referee T. K. Smith on May 2, 1978. An appearance was made on behalf of the employer, but Petitioner did not appear at this hearing. Testimony of the employer’s witness was taken and was preserved by tape recording. The employer’s representative was informed by Appeals Referee Smith that his testimony would be preserved for the record and would be considered when a disposition was made. Petitioner arrived at the hearing site after the hearing was concluded. Petitioner stated that he had been misdirected to the hearing site. Appeals Referee Smith entered a “Notice of Dismissal Without Prejudice and Postponement of Hearing Before Appeals Referee.”

Petitioner appeared and testified at a scheduled second hearing before a second Appeals Referee, J. R. Shealey, on May 15, 1978. There was no appearance on behalf of the employer. The tape of the first hearing was not heard by either Petitioner or the second Appeals Referee prior to the taking of testimony at the second hearing. Following the second hearing, the Appeals Referee Shealey listened to the tape of testimony taken at the first hearing and entered his decision, which was adverse to the Petitioner.

The provisions of Section 120.57 (Fla.Stat. 1977) apply in all proceedings in which the substantial interests of a party are determined by an agency. Section 120.57(l)(b) 4 provides in pertinent part:

“All parties shall have an opportunity to respond, to present evidence and argument on all issues involved, to conduct cross-examination and submit rebuttal evidence . . ..”

Petitioner’s procedural rights were denied him by the procedures followed below. Petitioner did not receive the fair hearing to which he was entitled.

REVERSED and REMANDED for a new hearing.

MILLS, C. J., concurs. ROBERT P. SMITH, Jr., J., dissents.

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SHIVERS, Judge.

Petitioner was discharged from his employment with Tampa Housing Authority on January 10, 1978. His claim for unemployment benefits was denied. Petitioner thereafter filed a Notice of Appeal and a [342]*342hearing was held before Appeals Referee T. K. Smith on May 2, 1978. An appearance was made on behalf of the employer, but Petitioner did not appear at this hearing. Testimony of the employer’s witness was taken and was preserved by tape recording. The employer’s representative was informed by Appeals Referee Smith that his testimony would be preserved for the record and would be considered when a disposition was made. Petitioner arrived at the hearing site after the hearing was concluded. Petitioner stated that he had been misdirected to the hearing site. Appeals Referee Smith entered a “Notice of Dismissal Without Prejudice and Postponement of Hearing Before Appeals Referee.”

Petitioner appeared and testified at a scheduled second hearing before a second Appeals Referee, J. R. Shealey, on May 15, 1978. There was no appearance on behalf of the employer. The tape of the first hearing was not heard by either Petitioner or the second Appeals Referee prior to the taking of testimony at the second hearing. Following the second hearing, the Appeals Referee Shealey listened to the tape of testimony taken at the first hearing and entered his decision, which was adverse to the Petitioner.

The provisions of Section 120.57 (Fla.Stat. 1977) apply in all proceedings in which the substantial interests of a party are determined by an agency. Section 120.57(l)(b) 4 provides in pertinent part:

“All parties shall have an opportunity to respond, to present evidence and argument on all issues involved, to conduct cross-examination and submit rebuttal evidence . . ..”

Petitioner’s procedural rights were denied him by the procedures followed below. Petitioner did not receive the fair hearing to which he was entitled.

REVERSED and REMANDED for a new hearing.

MILLS, C. J., concurs. ROBERT P. SMITH, Jr., J., dissents.

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375 So. 2d 341, 1979 Fla. App. LEXIS 15836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-florida-department-of-labor-employment-security-fladistctapp-1979.

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