Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES - denial of petitioner’s application for a hardship license restricted to business purposes observed the essential requirements of the law, afforded the petitioner due process, and was based on competent substantial evidence – One of applicant’s references stated that she had consumed alcohol during the suspension period – FS 322.271(2)(b) has been interpreted as requiring an applicant to refrain from drug use and from alcohol consumption during the twelve-month period prior to the reinstatement hearing. Petition denied. Wery v. Dept. of Highway Safety and Motor Vehicles, No. 02-8678-CI-88A (Fla. 6th Cir. App. Ct. Jan. 17. 2003).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

APPELLATE DIVISION

 

 

 

 

CANDY WERY,

                                                Petitioner,

 

v.                                                                                             Certiorari Case No. 02-5439-CI-88A

 

STATE OF FLORIDA, DEPT OF HWY.

SAFETY & MOTOR VEHICLES,

                                                Respondent.

_______________________________________/

 

ORDER DENYING PETITION FOR CERTIORARI

 

                THIS MATTER is before the Court on a Petition for Writ of Certiorari, brought pursuant to Florida Statutes §322.31 and Fla. R. App. P. 9.030(c), 9.190(b)(3) and 9.100(b), (c) after the Hearing Officer of the Department of Highway Safety and Motor Vehicles denied Petitioner’s application for a business purposes license on June 11, 2002. The Hearing Officer based the denial on  Petitioner’s driving record, which included seven previous convictions, three motor vehicle crashes, five previous suspensions and two previous revocations; and on an investigation that showed Petitioner’s continued consumption of alcohol during the revocation period. Petitioner had lost her driver license for ten years because of DUI convictions.

                Petitioner argues that she showed the requisite need for the hardship license in that she has only a temporary arrangement with a friend to transport her to work, grocery shopping, doctor’s appointments and to see her children who reside in St. Petersburg. She contends that she has not driven a motor vehicle since May 22, 2000 and that she has completed intensive substance abuse counseling.

                This Court’s review of the Department’s order denying the application for a hardship license restricted to business purposes is limited to a determination of whether procedural due process has been accorded, whether the essential requirements of law have been observed and whether the administrative order is supported by competent substantial evidence. Petitioner has not argued that procedural due process was not satisfied nor that the essential requirements of the law were not observed throughout the administrative process and has not furnished this Court with a transcript of the hearing. This Court must determine whether the administrative decision was supported by competent substantial evidence.

                Florida Statutes 322.271(2)(b) states, in part, as follows:

…A person whose license has been revoked for a period of more than 5 years under s. 322.28(2)(a) [because of prosecution for DUI under s. 316.193 or 316.1931] may, upon the expiration of 24 months after the date the revocation was imposed, petition the department for reinstatement of his or her driving privilege on a restricted basis. Reinstatement of the driving privilege pursuant to this subsection shall be restricted to business or employment purposes only. In addition, the department shall require such persons upon reinstatement to have not driven and to have been drug free for at least 12 months immediately prior to such reinstatement …

 

                Petitioner has not disputed that, at the hearing, she provided the Hearing Officer with the names, addresses and telephone numbers of references. Upon investigation, it was learned from one of the references that Petitioner has continued to consume alcoholic beverages during the period prior to her application for the hardship license.

                The statute has been interpreted as requiring an applicant to refrain from drug use and from alcohol consumption during the twelve-month period prior to the reinstatement hearing. See Crays v. Department of Highway Safety & Motor Vehicles, Case No. GCG-00-0527 (Fla. 10th Cir. May 16, 2000); Neal v Department of Highway Safety & Motor Vehicles, Case No. 01-3129 (Fla. 13th  Cir. July 27, 2001).

                Although “drug-free” is not defined in the statute, the Department is the agency charged with the administration of this nonpenal statute and it is well established that courts should defer to a reasonable interpretation of a statute by the administering agency. See Department of Highway Safety v Motor Vehicles v Abbey,745 So.2d 1024 (Fla. 2d DCA 1999) (Department’s interpretation of “drug free” in Florida Statute 322.271(4)(a)(3) as requiring an applicant for a hardship license to be alcohol-free for the preceding five years was reasonable.)  

                In addition to these statutory requirements, under Florida Statute 322.271(3), after a hearing, the Department of Highway Safety and Motor Vehicles shall either suspend, affirm, or modify its order suspending, canceling or revoking the individual’s license and “may” restore to the licensee the privilege of driving on a limited or restricted basis for business or employment use only.  The Department is clearly vested with discretion to grant or deny an applicant’s request for a restricted hardship license (see McAllister v Department of Highway Safety & Motor Vehicles, Case No. 97-30799CICI (Fla. 7th Cir. July 10, 1997)) and to determine whether such person can be trusted to operate a motor vehicle on a restricted basis. See also Florida Statute 322.271(2)(a).

                Accordingly, this Court finds that the Hearing Officer observed the essential requirements of the law, afforded the Petitioner due process, and based his findings and decision on competent substantial evidence. It is therefore

                ORDERED that the Petition for Certiorari is denied.

                DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ day of January, 2003.

 

 

                                                                _________________________________________

                                                                                                                JOHN A. SCHAEFER

                                                                                CIRCUIT JUDGE, APPELLATE DIVISION

 

Conformed copies furnished to:

Benjamin G. DeBerg, Esq., DeBerg & DeBerg, P.A., 1915 Tyrone Blvd, St. Petersburg, FL 33710

 

Heather Rose Cramer, Ass’t General Counsel, 6801 Lake Worth Road, #230, Lake Worth, FL 33467