Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:DRIVERíS LICENSES Ė termination for Special Supervision Services Program Ė hearing officer charged with weighing conflicting evidence Ė positive urinalysis for marijuana is competent substantial evidence to support termination from SSS Program --Petition denied.Wojciechowski v. Dept. of Highway Safety and Motor Vehicles, No. 04-0090AP-88B (Fla. 6th Cir. App. Ct. March 3, 2005).

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

EDWARD WOJCIECHOWSKI,

††††††††††††††††††††††† Petitioner,

 

vs.††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †† Appeal No. 04-0090AP-88B

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †† UCN522004AP000090XXXXCV

STATE OF FLORIDA, DEPARTMENT

OF HIGHWAY SAFETY AND MOTOR VEHICLES,

BUREAU OF DRIVER IMPROVEMENT,

††††††††††††††††††††††† Respondent.

____________________________________________/

 

 

 

ORDER DENYING 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 being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.

††††††††††† The Petitioner, Edward Wojciechowski (Petitioner), seeks review of the Final Order Denying Appeal, entered November 12, 2004, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), upheld the Petitionerís termination from the Special Supervision Services (SSS) program for testing posting for marijuana.In reviewing the Order and the administrative action taken by the Department, this Court must determine whether the Petitioner was afforded procedural due process, whether the essential requirements of law were observed, and whether the Departmentís findings and judgment are 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).

††††††††††† The record shows that the Petitionerís license was permanently revoked on November 9, 1993, following the Petitionerís fourth conviction for DUI.On December 9, 2003, the Petitioner was granted a restricted license and was required to participate in a SSS program.[1]The Petitioner was under the supervision of a SSS program located in Pasco County, DUI Programs of Pasco County, when he was asked to submit to a random drug test on June 8, 2004.The urinalysis tested positive for marijuana and the Petitioner was terminated from the Pasco SSS Program.The Petitioner declined to have the sample retested.[2]

††††††††††† The Petitioner appealed his termination to a neighboring SSS program located in Pinellas County, Suncoast Safety Council, which upheld the appeal and recommended that the Petitioner be reinstated in the Pasco SSS Program.As the two SSS Programs disagreed, the matter was referred to a Department hearing officer for final resolution.At a hearing, the Department considered documents submitted by both Programs, including the negative test results from two hair samples, tested on July 17, 2004, and August 20, 2004, provided by the Petitioner.The hearing officer considered testimony and evidence that the positive urinalysis may have been the result of dietary supplements taken by the Petitioner.As set forth in the Final Order, the hearing officer ultimately denied the Petitionerís appeal, upholding the Petitionerís termination from the Pasco SSS Program.

††††††††††† The only issue before this Court is whether the Final Order is supported by competent substantial evidence.The Petitioner argues that he presented competent substantial evidence that his dietary supplements caused the false-positive urine test as he had never used marijuana.However, the hearing officer, as the finder of fact, was charged with weighing the evidence and testimony presented.†† See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994)(concluding that the hearing officer, as trier of fact, was in the best position to evaluate the evidence and witnesses).

††††††††††† The Court finds that the hearing officer considered all the evidence presented, including the results from the hair samples,[3] and concluded that the Petitionerís termination from the Pasco SSS Program was warranted based on the positive drug test for marijuana.This Court cannot reweigh the evidence to arrive at a different conclusion.See Satter, 643 So.2d at 695 (quashing circuit court order as circuit judge reweighed the evidence and improperly substituted his judgment for that of the Department).Accordingly, the Court finds that the positive urinalysis is competent substantial evidence to support the Petitionerís termination from the Pasco SSS Program and that certiorari relief must be denied.

 

 

 

 

 

 

 

 

††††††††††† Therefore, it is,

††††††††††† ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is denied.

††††††††††† DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of March 2005.

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ___________________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††††††††† DAVID A. DEMERS

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge, Appellate Division

 

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ___________________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† PETER RAMSBERGER

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge, Appellate Division

 

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ___________________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ANTHONY RONDOLINO

††††††††††††††††††††††††††††††††††††††††††††††† ††††††††††††††††††††††† Circuit Judge, Appellate Division

 

 

 

Copies furnished to:

Curtis M. Crider, Esquire

1550 South Highland Ave., Suite C

Clearwater, FL33756

 

Jason Helfant, Assistant General Counsel

2515 West Flagler Street

Miami, FL33135

 

Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL33762



[1] The Petitioner was eligible for a hardship license pursuant to Florida Statutes, ß322.271(4)(1993).The Court notes that this section has since been amended such that a driver is no longer eligible for a hardship license after his/her fourth DUI conviction.

[2] The Petitioner testified that he was under the impression that he could either have the sample retested or appeal the negative test result to a neighboring DUI program.The Court notes that Florida Administrative Code, 15A-10.031(3), allows a client to have the same sample retested but that this option does not toll the time for filing an appeal of the negative test result.

 

[3] The Court notes that there is nothing in the Florida Administrative Code that allows a client to conduct his own independent test on a different sample.Further, as stated in the Preliminary Report, SSS Case Review/Presentation, the hair sample collection did not follow the Drug Free Workplace protocol.See e.g. Fla. Adm. Code 15A-10.031(3)(requiring laboratories that conduct drug tests for SSS Programs to comply with the protocol of the Drug Free Workplace).