IN THE SUPREME COURT OF FLORIDA. v. CASE NO.: SC FIRST DCA CASE NO.: 1D L.T. CASE NO.: L

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1 IN THE SUPREME COURT OF FLORIDA ROB BRAYSHAW, ET AL., Petitioners, v. CASE NO.: SC FIRST DCA CASE NO.: 1D L.T. CASE NO.: L AGENCY FOR WORKFORCE INNOVATION, Respondent. / RESPONDENT S BRIEF ON JURISDICTION PETER PENROD ASSISTANT GENERAL COUNSEL Florida Bar No: Attorney for Respondent 107 East Madison Street MSC 110 Tallahassee, Florida Telephone No: (850) Fax No: (850)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES...ii PRELIMINARY STATEMENT..1 STANDARD OF REVIEW.1 STATEMENT OF THE CASE AND FACTS.1 SUMMARY OF ARGUMENT...2 ARGUMENT...4 The Brayshaws Brief on Jurisdiction does not Establish any Basis Under Florida Law for this Court to Invoke its Discretionary Jurisdiction CONCLUSION...6 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE...7 i

3 TABLE OF AUTHORITIES CASES PAGE NO. Brayshaw v. Agency for WorkForce Innovation, 36 Fla. L. Weekly D 396 (Fla. 1st DCA February 22, 2011)...2 Buitrago v. Rohr, 672 So. 2d 646, 647 (Fla. 4th DCA 1996).. 6 Cantor v. Cochran, 184 So. 2d 173, (Fla. 1966) , 5 Freedom Labor Contrs. of Fla. Inc. v. Div. of Unemployment Compensation, 779 So. 2d 663, 664 (Fla. 3d DCA 2001)...5 Kane Furniture Corp. v. Miranda, 506 So. 2d 1061, 1063 (Fla. 2d DCA 1987) Sabawi v. Carpentier, 767 So.2d 585, 586 (Fla. 5th DCA 2000) 1 Young v. Dep't of Cmty. Affairs, 625 So. 2d 831, 833 (Fla. 1993) Mgmt., Inc. v. Dept. of Labor & Empl., 763 So. 2d 514, 516 (Fla. 5th DCA 2000)..6 STATUTES Fla. Stat (1)(a) FLORIDA RULES Fla. R. App. P (a)(2)....4 Fla. R. App. P (a)(2)(A).....4, 5 ii

4 PRELIMINARY STATEMENT Rob Brayshaw and Stephanie Brayshaw request that the Supreme Court invoke its discretionary jurisdiction to review the First District Court of Appeal s (hereafter, the First District ) Decision issued on February 22, The Petitioners are Rob Brayshaw and Stephanie Brayshaw (hereafter, the Brayshaws ). The Respondent is the Agency for Workforce Innovation (hereafter, the Agency ). Citations to the Record on Appeal shall be designated R.. STANDARD OF REVIEW The Brayshaws have filed a Notice to Invoke Discretionary Jurisdiction with this Court to review a decision of the First District. The Brayshaws, as the moving party, should properly carry the burden of proof in this matter. Young v. Dep't of Cmty. Affairs, 625 So. 2d 831, 833 (Fla. 1993). STATEMENT OF THE CASE AND FACTS The Agency cannot accept as accurate Brayshaws Statement of the Case and Facts because this statement does not constitute the neutral chronicle of historical fact that a statement of the case and of the facts is supposed to present. Sabawi v. Carpentier, 767 So.2d 585, 586 (Fla. 5th DCA 2000). Therefore, the Agency suggests that this Court s analysis of the legal issues of this case should rest on the Statement of the Case and Facts set forth herein. Because the issue 1

5 before this Court is limited to whether it may take jurisdiction, this Statement of the Case and Facts is limited to the appellate procedural history. On November 16, 2009, the Brayshaws filed an appeal with the First District to the Agency s Final Order holding that they performed services for AHB, LLC as independent contractors and, therefore, lacked sufficient wage credits to be eligible for unemployment benefits. On February 22, 2011, the First District issued a Decision affirming the Agency s Final Order. In determining that the Brayshaws performed services as independent contractors, both the Agency and the First District relied on the analysis set forth in Cantor v. Cochran, 184 So. 2d 173, (Fla. 1966). R. 418; Brayshaw v. Agency for WorkForce Innovation, 36 Fla. L. Weekly D 396 (Fla. 1st DCA February 22, 2011). On March 1, 2011, the Brayshaws filed a Motion for Rehearing with the First District. On March 8, 2011, the Brayshaws filed a Notice to Invoke Discretionary of the Florida Supreme Court. 1 On March 17, 2011, the Florida Supreme Court issued an Order to stay proceedings pending the First District s ruling on the Brayshaws Motion for Rehearing. On March 30, 2011, the First District issued an Order denying the Brayshaws Motion for Rehearing. On May 2, 2011, the Brayshaws filed the Petitioner s Brief on Jurisdiction with this Court. SUMMARY OF THE ARGUMENT 1 Filed as a Notice of Appeal but treated by this Court as a Notice to Invoke Discretionary Jurisdiction. 2

6 The Brayshaws argue that this Court should invoke discretionary jurisdiction to review the First District s February 22, 2011, Decision. The basis for this argument is an alleged conflict between the independent contract analysis followed by the Florida First District and the Internal Revenue Service. This argument does not establish any basis under Florida Law to invoke this Court s discretionary jurisdiction. Therefore, this Court should deny the Brayshaws Notice of Invoking Discretionary Jurisdiction. 3

7 ARGUMENT THE BRAYSHAWS BRIEF ON JURISDICTION DOES NOT ESTABLISH ANY BASIS UNDER FLORIDA LAW FOR THIS COURT TO INVOKE ITS DISCRETIONARY JURISDICTION In their Brief on Jurisdiction, the Brayshaws argue that this Court should invoke discretionary jurisdiction because the independent contractor analysis followed by the First District conflicts with the analysis followed by the Internal Revenue Service. This argument does not state any legal basis from which this Court may invoke its discretionary jurisdiction. The Brayshaws Notice to Invoke Discretionary Jurisdiction stems from a Florida District Court of Appeal decision. The Brayshaws argue the First District s decision regarding the independent contractor analysis conflicts with the analysis followed by Internal Revenue Service. The issue whether this Court may invoke discretionary jurisdiction is governed by Florida Rule of Appellate Procedure 9.030(a)(2). Pursuant to this Rule, the jurisdiction of the Florida Supreme Court may only be sought to review district courts of appeal decisions that: (i) expressly declare valid a state statute; (ii) expressly construe a provision of the state or federal constitution; (iii) expressly affect a class of constitutional or state officers; (iv) expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law; (v) pass upon a question certified to be of great public importance; (vi) are certified to be in direct conflict with decisions of other district courts of appeal; 4

8 Fla. R. App. P (a)(2)(A). Because this Rule does not provide for review of a district court of appeal decision that is in conflict with a Federal Administrative Agency s rule, the Brayshaws have failed to establish any legal basis for this Court to invoke discretionary jurisdiction. Fla. R. App. P (a)(2)(A). Moreover, the First District decided the issue whether the Brayshaws performed services as employees or independent contractors pursuant to Section (1)(a)2., Florida Statutes. Pursuant to this Section, an individual is entitled to unemployment benefits if s/he is an employee under the usual common-law rules applicable in determining the employer-employee relationship (1)(a)2., Fla. Stat. (2010). The common-law rules applicable to determining this relationship are set forth in Cantor. See Cantor, supra, 184 So. 2d at Applying these criteria to the case under review, the First District determined that the Agency correctly classified the Brayshaws as independent contractors. The First District s analysis and decision are consistent with the other district courts of appeal and the Florida Supreme Court s on the same subject. 2 See Cantor, supra, 184 So. 2d at ; see also Kane Furniture Corp. v. Miranda, 506 So. 2d 1061, 1063 (Fla. 2d DCA 1987); Freedom Labor Contrs. of Fla. Inc. v. Div. of Unemployment Compensation, 779 So. 2d 663, 664 (Fla. 3d 2 The Agency devotes extended discussion to this point only because the electronic docket of the Court described the Brayshaws initial pleading as Notice - Discretionary Juris[diction] (Direct Conflict). 5

9 DCA 2001); Buitrago v. Rohr, 672 So. 2d 646, 647 (Fla. 4th DCA 1996); 4139 Mgmt., Inc. v. Dept. of Labor & Empl., 763 So. 2d 514, 516 (Fla. 5th DCA 2000). Therefore, the First District s decision does not conflict with the decisions of other district courts of appeal. Furthermore, the First District s decision does not expressly declare valid a state statute, construe a provision of the state of federal constitution, expressly affect a class of constitutional or state officers, or pass upon a question certified to be of great public importance. Thus, there is no basis under Florida law to invoke this Court s discretionary jurisdiction and the Brayshaws Notice to Invoke Discretionary Jurisdiction must be denied. CONCLUSION For the reasons set forth above, the Agency respectfully request that this Court deny the Brayshaws Notice to Invoke Discretionary Jurisdiction. 6

10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by US Mail on May, 2011 to Rob Brayshaw, Pro Se, 206 Wilson Green Boulevard., Tallahassee, Florida Respectfully submitted, PETER PENROD ASSISTANT GENERAL COUNSEL Florida Bar No: Attorney for Respondent 107 East Madison Street MSC 110 Tallahassee, Florida Telephone No: (850) Fax No: (850) CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief complies with the font requirement of Florida Rule of Appellate Procedure 9.210(a)(2), and is printed in Times New Roman 14 point style. PETER PENROD ASSISTANT GENERAL COUNSEL Florida Bar No: Attorney for Respondent 107 East Madison Street MSC 110 Tallahassee, Florida Telephone No: (850) Fax No: (850)