Last month, the Third DCA issued an opinion on the subject of timely requesting an administrative hearing.  The case is Dixon v. Department of Agriculture and Consumer Services.  The order on appeal was a final administrative order, appealable under section 120.68(1), Florida Statutes.

The case began when the Department made an administrative complaint against Dixon alleging Dixon improperly issued training certificates.  The complaint contained a notice of rights and election of rights, which advised Dixon that he could request a hearing within 21 days of receiving the complaint.  The notice and election further advised Dixon that the failure to request a hearing within 21 days resulted in a waiver of his right to hearing.

Dixon was served with the complaint on January 29, 2020; Dixon mailed his request for hearing on February 19, 2020; but the Department did not receive the request until February 24, more than 21 days from January 29.  The Department thus denied Dixon’s request for hearing as untimely and issued a final order revoking Dixon’s license.

Dixon appealed the final order to the Third DCA.  On appeal, Dixon argued that his request for hearing was timely because 5 days are added to the request deadline when the request is mailed.  The Third DCA rejected Dixon’s argument and affirmed the final order.

In reaching its holding, the Third DCA analyzed Florida Administrative Code Rules 28-106.103 and 28-106.111.  Rule 28-106.103 allows an extra 5 days for mailing in certain instances but also provides that a party is not entitled to additional time “when the period of time begins pursuant to a type of notice described in rule 28-106.111, F.A.C.”  Rule 28-106.111 applies to all notices that determine or may determine a person’s substantial interests.

As held by the Third DCA, the Department’s complaint was a notice within that category; Dixon therefore was not entitled to an additional 5 days.  This case provides a good reminder that the 5-day rule does not apply to requests for hearing on notices that affect a party’s substantial interests.

Although not an issue in Dixon’s case, many times a dispute exists over whether the agency provided the party with a point of entry to challenge the notice within the 21-day period.  For example, the notice may get lost in the mail or the notice may be mailed to the wrong location.  If a dispute exists as to the timeliness of a petition, then the affected party is entitled to an evidentiary hearing to resolve the dispute and can potentially salvage their case.  Denise Melissa Campbell, L.P.N. v. Dep’t of Health, 233 So. 3d 488, 489-490 (Fla. 1st DCA 2017).  Additionally, when timeliness is an issue, the party must be careful to allege why the petition is filed after the 21-day period.  This way, the agency will be on notice of the factual dispute and should refer the matter for an evidentiary hearing.

Jonathan Taylor is an associate attorney with The Law Offices of Moffa, Sutton, & Donnini, P.A.  Mr. Taylor concentrates in the areas of Florida tax appeals and general administrative appeals.  Mr. Taylor also volunteers with Guardian ad Litem to handle appellate matters.  Mr. Taylor can be reached at 954-234-2884 or