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 (Fla. 6th Cir. App. Ct. Sept. 7, 2005).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

KELBY MICHAEL MIKSCH,

                        Petitioner,

vs.                                                                                               Appeal No. 05-0013AP-88A

                                                                                                   UCN522005AP000013XXXXCV

 

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

                        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, 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 (Fla. 2d DCA 2001)(setting forth the standard of review for administrative action taken by the Department).

            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.  See State, Department of Highway Safety and Motor Vehicles v. Abbey, 745 So.2d 1024, 1025 (Fla. 2d DCA 1999)(stating that the court must defer to a reasonable interpretation of a statute by the administering agency).  The Court also finds that the hearing officer’s decision is supported by competent substantial evidence and conforms to the essential requirements of law.  The Court will not reweigh the evidence and testimony presented to arrive at a different conclusion.  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). 

            Therefore, it is,

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

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of August 2005.

 

                                                _______________________________

                                                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

13620 49th Street North, Suite 201

Clearwater, FL  33762

 

Carlos J. Raurell, Assistant General Counsel

Dept. of Highway Safety & Motor Vehicles

2515 West Flagler Street

Miami, FL  33135

 

Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL  33762