Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Hardship License – Department violated Petitioner’s due process rights and departed from the essential requirements of law by relying on statements not presented at hardship license hearing – statements provided by references after hearing were unsworn and Petitioner had no opportunity to object – Department had no authority to require driver to provide four references – Florida Administrative Code Rule 15A-1.019(c) provides that three letters of recommendation are required --Petition granted.  Arroyo v. Dept. of Highway Safety and Motor Vehicles, No. 04-0051AP-88B (Fla. 6th Cir. App. Ct. Oct. 20, 2004).








vs.                                                                                        Appeal No. 04-0051AP-88B











THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response, and the Reply.  Upon consideration of the same, the record and otherwise being fully advised, the Court finds that the Petition must be granted as set forth below. [1]  

            The Petitioner, Abraham Arroyo (Arroyo), seeks review of the Final Order, entered May 18, 2004, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), denied Arroyo early reinstatement of his driver license.  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 (Fla. 2d DCA 2001) (setting forth the standard of review for administrative action taken by the Department). 

            On April 28, 2003, Arroyo’s driver license was revoked for 5 years following his second DUI conviction. Pursuant to Florida Statutes, § 322.271(2)(b), Arroyo applied for early reinstatement of his driver license, or hardship license, stating that he needed to be able to drive to his doctor’s appointments.  As part of the application process, Arroyo was required to provide the names of four references. [2]   Following Arroyo’s hearing, a hearing officer [3] contacted the references and asked each reference questions outside of Arroyo’s presence.  According to the hearing officer’s notes, [4] one reference, Pete Fernandez, informed the hearing officer that he had seen Arroyo driving a car on April 23, 2004.  As driving with a revoked license indicated Arroyo’s failure to comply with the requirements of § 322.271(2), the Department denied his request for early reinstatement. 

            In his Petition, Arroyo argues that the Department’s Final Order is not supported by competent substantial evidence, does not comport with the essential requirements of law, and denied Arroyo due process as the hearing officer communicated with Fernandez after the conclusion of Arroyo’s hearing.  The Court finds that the Department’s action in the proceedings below fails under each prong of review.  Florida Statutes, § 322.271(1)(b), provides that when reviewing a petition for early reinstatement, “the department shall hold a hearing pursuant to chapter 120 to determine whether the driving privilege shall be reinstated on a restricted basis solely for business or employment purposes.”  Section 120.57 sets forth the hearing requirements for a case where disputed facts are at issue.  Specifically, § 120.57(1)(b) provides that “all parties shall have an opportunity to respond, to present evidence and argument on all issues involved, to conduct cross-examination and submit rebuttal evidence.” 

            Under the facts of this case, the Department violated Arroyo’s due process rights and departed from the essential requirements of law by relying on statements not presented at the hardship license hearing.  As held by the Florida Supreme Court in Keys Citizens for Responsible Government, Inc. v. Florida Keys Aqueduct Authority, 795 So.2d 940, 948 (Fla. 2001), “[p]rocedural due process requires both fair notice and a real opportunity to be heard.”  The notice must be reasonably calculated “to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”  Id.  Section 120.57 unambiguously sets forth what the procedural due process requirements are for this type of proceeding.  However, it is clear that Arroyo had neither fair notice that the Department would rely on unsworn statements provided by his references in denying his hardship application, nor had an opportunity to object to such statements.  The Court finds that, as a matter of due process, the Department should have scheduled a second hearing if the Department was going to rely on  a reference’s statement to deny Arroyo a hardship license.

            The Court notes that in interpreting the application of Florida Statutes § 120.57 under similar facts, at least one circuit court, sitting in its appellate capacity, has held that the Department’s consideration of unsworn testimony from witnesses after the hardship license hearing, deprived the Petitioner of the fundamental components of § 120.57; that is, to cross examine witnesses and make legal objections.  See Faustrum v. Department of Highway Safety and Motor Vehicles, Case No. 04-2912 (Fla. 13th Cir. App. Ct. Aug. 25, 2004)(holding that the Department had no statutory or inherent authority to gather and rely upon evidence after the Chapter 120 hearing concluded); see also Moore v. Department of Highway Safety and Motor Vehicles, 10 Fla. L. Weekly Supp. 978a (Fla. 15th Cir. App. Ct. Oct. 29, 2003)(finding that the Petitioner was denied his due process rights to confront and cross-examine witnesses against him where the Department conducted reference interviews, on which its decision to deny a hardship license was based, after the hearing concluded). 

            In further addressing Arroyo’s due process argument, it appears the form being used by the Department in conducting its investigation, titled “Field Investigation References Form,” which requires listing four references, is invalid.  Rule 15A-1.019(c), promulgated by the Department pursuant to § 322.271, specifically provides that the driver requesting a hardship license is to provide “[t]hree letters of recommendation from respected persons in the community in which the applicant resides.”  The Court finds that there is no authority for the Department to require the driver to provide four references and that the Department violated Arroyo’s due process rights by not adhering to Rule 15A-1.019(c).  See Armesto v. Weidner, 615 So.2d 707, 709 (Fla. 3d DCA 1992)(finding that an agency violates a person’s due process rights if it ignores rules it promulgated which affect individual rights).  

For the same reasons set forth above, the Court finds that the Department’s decision to deny Arroyo a hardship license based on unsworn statements is not supported by competent substantial evidence.  See id.; see also DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957)(explaining competent substantial evidence as evidence “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached”).  Indeed, the notes written by one hearing officer in interviewing the reference over the telephone, upon which another hearing officer relied in denying Arroyo’s application, is nothing more than hearsay within hearsay and cannot be used to support a finding Arroyo unlawfully operated a motor vehicle.  See Kaye v. Department of Health and Rehabilitative Services, 654 So.2d 298, 299 (Fla. 1st DCA 1995)(finding that hearsay is admissible in administrative hearings to supplement or explain other evidence, it is insufficient in itself to support a finding).  In this case, the only admissible evidence presented to the Department was Arroyo’s sworn testimony that he had not driven for at least one year prior to becoming eligible for a hardship license.

Lastly, the Court finds that the case at issue is distinguishable from Pope v. Department of Highway Safety and Motor Vehicles, 11 Fla. L. Weekly Supp 766a (Fla. 6th Cir. App. Ct. Jan. 21, 2004).  In Pope, although the Department did conduct post-hearing interviews outside of Pope’s presence, it was undisputed that Pope had driven a vehicle in the preceding 12-month period in violation of § 322.271(2)(b).  Conversely, during Arroyo’s reinstatement hearing, he stated that he had not driven a car during the 12 months prior to his application.  The Department based its denial of Arroyo’s application solely upon the post-hearing statement of one of Petitioner’s references.

Therefore, it is,

ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and this cause is remanded for a new hearing.

DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this  _______ day of October 2004.





                                                                                    DAVID A. DEMERS

                                                                                    Circuit Judge, Appellate Division


Copies furnished to:


Rhonda F. Goodman, Esquire

P.O. Box 56-1093

Miami, FL 33256-1093


Carlos J. Raurell, Assist. General Counsel

2515 W. Flagler Street

Miami, FL 33135


Bureau of Driver Improvement

2814 East Hillsborough Avenue

Tampa, FL 33610

[1] The Court did not enter an order to show cause on the Petition for Writ of Mandamus.  Upon review of the Order Granting Petition for Writ of Certiorari, should the Petitioner deem mandamus relief is still warranted, the Petitioner may file the appropriate motion for rehearing within 15 days of the date of this signed order. 

[2] The Department does not dispute Arroyo’s assertion that he was required to provide four references and that the Department never requested three letters of recommendation as mandated by Rule 15A-1.019(c).

[3] The Department concedes that a different hearing officer, other than the hearing officer presiding over the Arroyo’s early reinstatement hearing, interviewed the four references. 

[4] See Respondent’s Appendix, Exhibit 2.