Petition for Writ of
Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and
Motor Vehicles: DRIVER’S LICENSES – Hardship License –
hearing officer’s interpretation of § 322.271 is reasonable and compatible with
the intent of Chapter 322 to promote the public’s safety – there is no case law
that holds a hardship license must be issued once driver has met certain
requirements and a hearing is scheduled – hearing officer retains discretion to
determine whether driver is a good candidate for early reinstatement - Petition
denied. Miksch v. Dept. of Highway Safety and Motor Vehicles, No. 05-0013AP-88A
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
KELBY MICHAEL MIKSCH,
vs. Appeal No. 05-0013AP-88A
HIGHWAY SAFETY AND MOTOR VEHICLES,
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.
Petitioner, Kelby Michael Miksch (Miksch), seeks review of the Final Order,
entered January 13, 2005, in which the hearing officer for the Respondent,
Department of Highway Safety and Motor Vehicles (Department), denied Miksch’s
application for a hardship license. In
reviewing the Final Order and the administrative action taken by the
Department, this Court must determine whether Miksch was afforded procedural
due process, whether the essential requirements of law were observed, and
whether the Department’s findings and judgment are supported by competent
substantial evidence. See Vichich
v. Department of Highway Safety and Motor Vehicles, 799 So.2d 1069, 1073 (
As set forth in the Final Order, the hearing officer considered all of the facts pertaining to Miksch’s driving record which included 30 previous convictions, 4 motor vehicle crashes, 17 previous suspensions, and 3 previous convictions, in addition to Miksch’s qualification, fitness, and need to drive. The hearing officer also considered that Miksch had previously been authorized for hardship reinstatement and twice violated the restrictions of his hardship license. The hearing officer concluded that Miksch was not a good candidate for early reinstatement and denied his application.
On appeal, Miksch does not dispute his adverse driving history but argues that since he presented proof that he had completed DUI school, had not driven in the prior year, provided references as to his fitness to drive and demonstrated a valid need to drive, that the hearing officer had no discretion but to reinstate his driver’s license for either business or employment purposes. Miksch’s argument is premised on the language pertaining to early reinstatement set forth in Florida Statutes, § 322.271(b), which states: “Upon such petition and after investigation of the person’s qualification, fitness, and need to drive, 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.” (emphasis added). While the mandatory word “shall” is used, the Court finds that the hearing officer retains discretion to determine “whether” a license will be issued or not based on several criteria. There is no case law that holds a hearing officer must issue a license once a hearing is scheduled; indeed, the hearing itself is part of the Department’s investigation into the person’s qualification, fitness, and need to drive.
The Court finds that the hearing
officer’s interpretation of § 322.271 is reasonable and is also compatible with
the intent of the Chapter 322 to promote the public’s safety.
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is denied.
AND ORDERED in Chambers, at
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
LAUREN C. LAUGHLIN JAMES R. CASE
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Sean B. Kelley, Esquire
Carlos J. Raurell, Assistant General Counsel
Dept. of Highway Safety & Motor Vehicles
Bureau of Administrative Reviews