IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
ALAN JOHN OLEKSA,
vs. Appeal No. 04-0046AP-88A
DEPARTMENT OF HIGHWAY
SAFETY AND MOTOR VEHICLES,
THIS CAUSE came before the Court on the Petition for Writ of Certiorari and the Response. Upon consideration of the same, the record and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.
The Petitioner, Alan John Oleksa
(Oleksa), seeks review of the Final Order, entered May 4, 2004, in which the
Respondent, Department of Highway Safety and Motor Vehicles (Department),
denied Oleska’s “application for early reinstatement.”
In reviewing the Department’s order, this Court must
determine (1) whether procedural due process had been accorded, (2) whether
the essential requirements of law had been observed, and (3) whether the administrative
findings and judgment were supported by competent substantial evidence. See Vichich v. Department of Highway
Safety and Motor Vehicles, 799 So.2d 1069, 1073 (
The record shows that Oleksa’s driving privilege was permanently revoked on June 5, 1991, following his fourth conviction for DUI. On August 26, 1998, Oleksa met the requirements for a Class E restricted license for business or employment purposes only. Oleksa was required to participate in a Florida DUI Special Supervision Services (SSS) Program as a condition for maintaining his restricted license. On October 3, 2001, Oleksa was issued a Class E license that omitted the business or employment purposes only restriction. On June 18, 2003, the Department informed Oleksa of its error and instructed Oleksa to report to his local driver’s license office within 15 days to obtain a restricted license. Oleksa complied with this requirement.
On November 7, 2003, the Department
notified Oleksa that it was unable to verify his participation in an SSS Program.
Following receipt of the Department’s November
7th letter, Oleksa applied to the Pasco County DUI and Substance Abuse Program.
Following its psychosocial evaluation, the Pasco SSS Program “terminated”
Oleksa from its program, via letter dated March 29, 2004, for having consumed
alcohol in February 2004. On April 6, 2004, Oleksa notified the Pasco
SSS Program of his intent to appeal to a second SSS Program, DUI Counterattack,
The Court finds that the Department
committed several procedural errors below that resulted in a violation of
Oleksa’s procedural due process rights. The primary error was the Department’s failure
to adhere to the Florida Administrative Code, Rule 15A-10.031, that sets forth
the SSS appeal process. See
Armesto v. Weidner, 615 So.2d 707, 709 (Fla. 3d DCA 1992)(stating that
an agency violates a person’s due process rights if it ignores rules it promulgated
which affect individual rights). Contrary
to the Department’s Response, the record shows that Oleksa did avail himself
of the appeal process by timely notifying the Pasco SSS Program, within 10
days of notice of his termination, of his intent to appeal to a neighboring
SSS Program, DUI Counterattack. Thereafter,
DUI Counterattack was required to conduct an evaluation and provide Oleksa
with an opportunity to present information in person. See
The Court finds that this procedural
error was compounded by the failure of the Department’s hearing officer to
conduct a meaningful review of the Department’s Final Order of permanent license
revocation, which was entered prematurely.
Indeed, according to the hearing officer’s own
statements, the hearing officer felt that he had no authority to review Oleksa’s
license revocation and had been directed to simply generate a denial letter.
This hearing, standing alone, violated Oleksa’s due process rights.
See Department of Highway Safety and Motor Vehicles v. Pitts,
815 So.2d 738, 744 (
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and this cause is remanded to DUI Counterattack to conduct the appropriate appeal hearing.
DONE AND ORDERED in Chambers, at
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
Copies furnished to:
Michael P. Loberg, Esquire
Carlos J. Raurell, Assist. General Counsel
Bureau of Administrative Reviews
 Oleksa did not apply for early reinstatement of his driver’s license; rather, Oleksa applied to participate in a Special Supervision Services Program as a condition for a restricted license which had already been issued by the Department.
 Oleska concedes that he discontinued participation in the SSS Program following the issuance of the unrestricted license and resumed drinking alcohol, approximately one drink per month.
 Rule 15A-10.31(5) sets forth the time periods applicable for notifying the Department once the appeal process has been initiated.