IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
vs. Appeal No. 04-0051AP-88B
HIGHWAY SAFETY AND MOTOR VEHICLES,
DIVISION OF DRIVER LICENSES,
ORDER GRANTING PETITION FOR WRIT OF CERTIORARI
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. 
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 (
On April 28, 2003, Arroyo’s driver license was revoked for 5 years following his second DUI conviction.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.  Following Arroyo’s hearing, a hearing officer  contacted the references and asked each reference questions outside of Arroyo’s presence. According to the hearing officer’s notes,  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.”
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).
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 (
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
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and this cause is remanded for a new hearing.
AND ORDERED in Chambers, at
DAVID A. DEMERS
Circuit Judge, Appellate Division
Copies furnished to:
Rhonda F. Goodman, Esquire
P.O. Box 56-1093
Carlos J. Raurell, Assist. General Counsel
Bureau of Driver Improvement
 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.
 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).
 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.
 See Respondent’s Appendix, Exhibit 2.