vs.                                                                                                        Appeal No. 00-2574-CI-88A





            This cause came before the Court on the Petition For Writ Of Certiorari, the Response and the Reply.  Upon consideration of the same, the Court finds that the Petitioner has raised one issue in his Petition.

1.  The issue raised is whether the Hearing Officer, who conducted the formal review hearing on the Petitioner’s license suspension on behalf of the Department of Highway Safety and Motor Vehicles, Division of Driver Licenses (“Department”), erred when he did not grant the Petitioner’s oral motion to recuse himself.

2.  After a review of the record and being otherwise fully advised, Court finds the Hearing Officer did not err in denying the oral motion to recuse.  Further, the Final Order of License Suspension is supported by competent substantial evidence and conforms to the essential requirements of law.  Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995).

3.  The record shows that the Petitioner’s formal review hearing on her license suspension came before the Department Hearing Officer on March 8, 2000.  The Petitioner did not appear but was represented by counsel, Jeff Brown.  Prior to the Petitioner’s hearing, Mr. Brown had participated in three other hearings before the same Hearing Officer on the same day.  At the beginning of the Petitioner’s hearing, Mr. Brown made an oral motion for the Hearing Officer to recuse himself because of Mr. Brown’s belief that the Hearing Officer would not be impartial.  Mr. Brown’s oral motion for recusal was denied and a full evidentiary hearing was then held.

            4.  As cited by both parties to this appeal, Rule 15A-6.008, of the Florida Administrative Code, states the following:

(1) Any motion for recusal of a hearing officer shall be filed with the hearing officer before whom the case is pending prior to the start of the hearing.  The motion shall be accompanied by a written statement stating particular grounds for which a hearing officer may be recused.  The written statement must state facts sufficient to show that the driver has a well-founded fear that he will not receive a fair and impartial hearing.

(2) Unless denied as untimely, a motion shall be decided by the hearing officer before whom the case is pending.  The hearing officer shall determine the legal sufficiency of the motion and affidavit.  If the motion and affidavit are found to be legally sufficient, the hearing officer shall recuse himself or herself, after which the division shall appoint another hearing officer to hear the case. (emphasis added).

4.  The process governing disqualification is procedural.  See Rogers v. State of Florida, 630 So.2d 513, 515 (Fla. 1994).  All motions for disqualification must be writing and must otherwise conform with the applicable rules of procedure.  See id. at 516.  The writing requirement can not be waived.  See id.  Further, Rule 15A-6.008 specifically provides that a written statement must be filed showing that the driver, not counsel for the driver, has a well grounded fear that she will not receive a fair and impartial hearing.  See Fla. Admin. Code R. 15A-6.008(1),(2)(2000). 

5.  Counsel for the Petitioner, Mr. Brown, did not immediately ask for a continuance to file a motion to disqualify the Hearing Officer based upon allegations of impropriety involving the Hearing Officer in prior hearings with Mr. Brown.  Compare with Goodknecht v. Department of Highway Safety and Motor Vehicles, 3 Fla. Supp. 656 (Fla. 7th Cir. Ct. 1996); see also Rogers, 630 So.2d at 516 (stating that where a party discovers mid-trial or mid-hearing that a motion for disqualification is required, he or she may request a brief recess in order to prepare the appropriate documents).

6.  As oral motion for recusal was not in compliance with the Florida Administrative Code, nor the applicable case law, the Petitioner has failed to demonstrate error in the Hearing Officer’s denial of the motion and, accordingly, the Writ of Certiorari must be denied.  See Wal-Mart Stores, Inc. v. Carter, 25 Fla. L. Weekly D1778d (Fla. 1st DCA July 26, 2000); see also Rogers, 630 So.2d at 516.

It is therefore,

            ORDERED AND ADJUDGED that the Petition For Writ Of Certiorari is DENIED.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of October 2000.


Circuit Judge, Appellate Division


Copies Furnished To:

William B. Bennett, Esquire
696 First Avenue North, Suite 303
St. Petersburg, FL  33701
Attorney for Petitioner

Kathy A. Jimenez, Esquire
Assistant General Counsel Florida Dept. of Highway Safety & Motor Vehicles
2515 W. Flagler Street
Miami, FL 33135
Attorney for Respondent

Florida Dept. of Highway Safety & Motor Vehicles
Bureau of Driver Improvement
2814 East Hillsborough Avenue
Tampa, FL  33610

Staff Attorney, Appellate Division