Zummo v. Florida Office of Financial Regulation

133 So. 3d 1078, 2014 WL 223007, 2014 Fla. App. LEXIS 581

• Court: District Court of Appeal of Florida
• Decided: January 22, 2014
• Docket: No. 4D13-1366
• Status: Published

Opinion

PER CURIAM.

Appellants Mathew C. Zummo and Mathew L. Zummo challenge a final order issued by Florida’s Office of Financial Regulation (“OFR”), imposing a $48,000 fine for violations of chapter 517, Florida Statutes. The final order was issued in the absence of a chapter 120 administrative hearing as OFR found the request for hearing was not filed until March 15, 2013 — the day after expiration of the governing twenty-one day period. See Fla. Admin. Code R. 28-106.111(4). Appellants invite this court to apply the doctrine of equitable tolling, asserting their request for hearing was mailed on March 5th and in OFR’s post office box on March 14th the day it was due. See Brown v. State, Dep’t of Fin. Servs., 899 So.2d 1246, 1247 (Fla. 4th DCA 2005) (recognizing failure to request hearing within twenty-one days is not a jurisdictional defect). As OFR has not yet had the opportunity to address these allegations, we reverse the final order and remand for a ruling on the limited issue of whether equitable tolling applies so as to entitle appellants to a hearing. We make no determination as to the merits of appellants’ equitable tolling claim, leaving that initial determination and any factual findings in that regard to OFR. If OFR determines that it is necessary to resolve disputed facts to decide appellants’ equitable tolling claim, OFR may hold a limited evidentiary hearing. Cf. Hurley v. Dep’t of Bus. & Prof'l Regulation, 965 So.2d 359 (Fla. 4th DCA 2007).

Reversed and Remanded.

STEVENSON, CIKLIN and LEVINE, JJ., concur.