
    INLAND CAPITAL CORPORATION and Jack J. Winston, Petitioners, v. Gerald A. LEWIS, as State Comptroller and Head of the Department of Banking and Finance, State of Florida, Respondent.
    No. 77-355.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1977.
    On Rehearing Aug. 23, 1978.
    Milton J. Wallace and Sidney M. Pertnoy, Miami, for petitioners.
    William B. Corbett, Jr., and Ryland T. Rigsby, Asst. Gen. Counsels, Tallahassee, for respondent.
   PER CURIAM.

Petition for writ of certiorari denied.

ANSTEAD, DAUKSCH and LETTS, JJ., concur.

ON REHEARING GRANTED

ANSTEAD, Judge.

The petitioners, Inland Capital Corporation and Jack Winston, are here seeking review of an order cancelling their broker’s licenses without a hearing.

The respondent notified the petitioners on November 24, 1976, that an administrative complaint had been filed against petitioners and that the respondent intended to cancel their broker’s licenses:

You are hereby notified that, after twenty-one (21) days from your receipt hereof, the Division intends to refuse or deny and revoke or suspend the application and license herein, on the grounds set forth in the foregoing Complaint.
Before taking such action to refuse or deny and revoke or suspend said application and license, you may show, pursuant to Section 120.60(4), F.S., your compliance with all lawful requirements for the retention of said license or registration, and you may petition for a hearing pursuant to Section 120.57, F.S. An original and one copy of your petition for hearing shall be filed within twenty-one (21) days of your receipt of this notice, at the address indicated below.

On December 15,1976, exactly 21 days after receiving the notice, the petitioners mailed a response alleging a meritorious defense to the complaint and requesting a hearing. Subsequently, on December 23, 1976, after receiving the response and request for a hearing, the respondent adjudicated the petitioners to be in default for not answering within 21 days, and on December 29, 1976, cancelled the licenses. A request to set aside the default was refused by the respondent. We think, under the circumstances shown here, that the default should have been vacated and the petitioners granted a hearing. Although the notice cited above expressed the intent of the respondent to take the action complained of, it also advised the petitioners of their right to respond to the complaint before the action was taken. The petitioners did respond before any action was taken. In their response, they asserted a meritorious defense and did not seek to delay the proceedings. Accordingly, we hold that the petitioners were entitled to a hearing on the merits of the administrative complaint. The petition for writ of certiorari is hereby granted and the order of December 29, 1976, is quashed with directions for further proceedings in accordance with this opinion.

DAUKSCH, J., concurring specially with opinion.

LETTS, J., concurring specially with opinion.

LETTS, Judge, concurring

specially:

I agree with Judge Anstead, but find it worth-while to discuss the administrative requirement that the petition “be filed within 21 days of your receipt of the notice. . ."

Technically the petition was not filed within the 21 days, but was mailed within that time. I agree this should suffice if the petition gets there before the division of finance has acted. The problem will be, that upon receipt of this opinion, the State agency may react by making sure that, henceforth, positive action is taken on the morning of the 22nd day. I feel this should be error.

As the agency itself admits, Section 120.-57, Florida Statutes (1975), which governs the A.P.A., contains no time limits mandating when and how a party must respond. Accordingly, the agency reasons that the legislature has left the manner of response to its discretion. I do not disagree with that, but feel that basic fundamental fairness must be the standard. This is not an impartial court demanding that a jurisdictional filing take place on or before a certain date. Rather this is the demand of the partial agency who will itself wield the default axe. In my view, proof of mailing within the time period should suffice, otherwise the agency is jumping out of dark corners on lawyers long accustomed to filing responsive pleadings under Fla.R.Civ.P. 1.090(e). A similar proof of mailing provision would, in my view, better serve the “reasonable notice” requirement set forth in Chapter 120.57. We note Judge Smith’s opinion in Fox v. South Florida Regional Planning Council, 327 So.2d 56 (Fla. 1st DCA 1976) holding that mailing time cannot be added where administrative appeals are concerned. We do not quarrel with his opinion based, as it was, on a Supreme Court decision. However, in the case at bar we are not concerned with an appeal but with an “administrative complaint” calling for a responsive pleading. I find the distinction compelling.

DAUKSCH, Judge,

concurring specially:

I also concur and add my thoughts by distinguishing this case from Scherer v. Liberto, 353 So.2d 1224 (Fla. 4th DCA 1978) which might seem to be in conflict. In Scherer, supra, the failure to act caused a deprivation of jurisdiction because a statute required the filing on or before the expiration of 20 days. Here, as Judge Letts notes, is a rule of an administrative agency which by its very nature cannot determine its own jurisdiction. It can, and did establish rules of practice but those rules are not jurisdictional and we do not have to apply so harsh a requirement as the statute mentioned in Scherer, supra, does.  