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Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – competent substantial evidence - due process – subpoenas – the hearing officer’s finding that there was insufficient evidence of probable cause not supported by competent substantial evidence – only evidence in the record established that driver was operating a motor vehicle under the influence of alcohol – the half-page transcript shows that hearing officer set aside license suspension because officers failed to respond to subpoenas and failed to show cause for not attending hearing – record void of any evidence that officers received hearing officer’s order to show cause - to afford driver due process cause must be remanded to provide driver opportunity to present sworn evidence and testimony - Petition granted. City of Treasure Island v. Dept. of Highway Safety and Motor Vehicles, No. 07-0045AP-88B (Fla. 6th Cir. App. Ct. March 26, 2008).

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

CITY OF TREASURE ISLAND,

A Florida Municipal Corporation,

                        Petitioner,

vs.                                                                                                Appeal No. 07-0045AP-88B

                                                                                                    UCN522007AP000045XXXXCV

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

                        Respondent.

____________________________________________/

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 briefs, the record, and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

            The Petitioner, City of Treasure Island (City),[1] seeks review of the Final Order on Results of Review Hearing, entered July 23, 2007, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), set aside the DUI license suspension of the driver, Dariby Joe Hynum.[2]  The standard of review is whether the Petitioner 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).

The record shows that Officer Lightfield, of the Treasure Island Police Department, conducted a traffic stop of Hynum’s vehicle after he observed the vehicle speeding and driving erratically.  Upon making contact with Hynum, Officer Lightfield observed that he had red, watery eyes, slurred speech, unsteady balance, and smelled of alcohol.  Hynum refused to perform the field sobriety tests and Officer Lightfield placed Hynum under arrest for DUI.  After being transported to the police department, Corporal Chiaputti, of the same Department, read Hynum the implied consent warnings.  Hynum refused to take the breath test resulting in his license suspension. 

In entering its Final Order setting aside Hynum’s license suspension, the hearing officer concluded that there was insufficient evidence to support the finding that:  “The law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.”  The hearing officer made no other findings of fact.  The transcript of the review hearing, held on July 19, 2007, shows that the two witnesses subpoenaed by the Department, Officer Lightfield and Corporal Chiaputti, failed to appear for Hynum’s hearing.  The hearing officer decided to continue the hearing, stating that:  “They [the officers] have two days to notify and/or object to show cause of [sic] why they are not here for this proceeding today.  If within a few days they have not notified me of just cause, then Mr. Hynum’s driver’s license will be given back to him and the case will be invalidated.”  There is no indication in the record that this order was reduced to writing and provided to either the officers or the City. 

Before this Court, the City argues that the Department erred in setting aside Hynum’s license suspension as there was competent substantial to support a finding of probable cause and that Hynum refused the breath test.  The City also argues that it was not afforded due process because it did not have notice of the hearing or an opportunity to be heard.  The Court initially finds that there is no dispute that Hynum unlawfully refused to take the breath test.  Next, the Court finds that the hearing officer’s decision that there was insufficient evidence to support a finding of probable cause is not supported by competent substantial evidence. 

As explained in Department of Highway Safety and Motor Vehicles v. Favino, 667 So.2d 305, 309 (Fla.1st DCA 1995), probable cause to justify an arrest must be based upon the totality of the facts and circumstances, as analyzed from the officer’s knowledge and training, and is often a conclusion drawn from reasonable inferences.  While it is the hearing officer’s responsibility to weigh the evidence and resolve any conflicts, this Court must determine whether there is competent substantial evidence in the record that supports the hearing officer’s findings of fact and conclusion.  See id.; see also  Department of Highway Safety and Motor Vehicles v. Trimble, 821 So.2d 1084, 1087 ( Fla. 1st DCA 2002); Satter, supra.  Such evidence “must be based on something more than mere probabilities, guesses, whims, or caprice.”  See Trimble, supra. 

Without reweighing the evidence, the only record evidence before the hearing officer establishes probable cause that Hynum was operating a motor vehicle under the influence of alcohol.  There is no evidence to the contrary.[3]  Based on this issue alone, the Court finds that the Final Order must be quashed.  But the analysis does not end here.

The half-page transcript of the review hearing shows that the basis of the hearing officer’s decision was that the officers failed to respond to the subpoenas and failed to show cause for not attending the hearing.  The hearing was continued without the introduction of evidence or sworn testimony.  So, to afford due process to Hynum, the matter must be remanded to the hearing officer to conduct a new hearing.  See e.g. Lillyman v. Department of Highway Safety and Motor Vehicles, 645 So.2d 113, 114 (Fla. 5th DCA 1994)(concluding that remand for further proceedings was proper remedy when an evidentiary error was made at the administrative hearing). 

While the Court finds that this is the appropriate action to take under these facts, the Court is concerned that the Department is getting a de novo hearing and a second bite at the apple.  To avoid this apparent inequity in future proceedings, the Court finds that when valid subpoenas are issued, as were in this case, the City must ensure that it has a procedure in place for the officer to receive the subpoena and to attend the hearing as required by the Florida Administrative Code.  See Fla. Admin Code Rules 15A-6.012, 15A-6.015.

            In remanding this matter, the Court finds that the Department may issue new subpoenas to Officer Lightfield and Corporal Chiaputti, at Hynum’s request.  If the officers once again fail to appear, there is nothing to preclude the hearing officer from reinstating Hynum’s license.  Hynum has a due process right to question the officers.  See Fla. Admin. Code Rule 15A-6.013(5)(stating “[t]he driver shall have the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver”); see also Department of Highway Safety and Motor Vehicles v. Pitts, 815 So.2d 738, 744 (Fla. 1st DCA 2002)(explaining that driver had a due process right to elicit relevant evidence on the circumstances surrounding his arrest); Leger v. State of Florida, Department of Highway Safety and Motor Vehicles, 13 Fla. L. Weekly Supp. 416 (Fla. 6th Cir. App. Ct. May 7, 2006)(finding that driver was denied due process when the hearing officer quashed a properly issued subpoena without a finding of “just cause”); Victor v. State of Florida, Department of Highway Safety and Motor Vehicles, 12 Fla. L. Weekly Supp. 110 (Fla. 9th Cir. App. Ct. Aug. 31, 2004)(quashing license suspension when the hearing officer failed to continue hearing in order for licensee to examine subpoenaed witness who failed to appear). 

            The Court finds that a driver’s license may be reinstated for the Department’s failure to adhere certain procedural guidelines.  See e.g. Fla. Stat. § 322.2615(9)(stating that “[i]f the department fails to schedule the formal review hearing to be held within 30 days after receipt of the request therefor [sic], the department shall invalidate the suspension”); see also Fla. Admin. Code Rule 15A-6.013(1)(a)(same).  Lastly, as this Court found in City of Treasure Island v. State of Florida, Department of Highway Safety and Motor Vehicles, supra, there is no statutory or code requirement that the City be notified by the Department of a formal review hearing (although, in this case, the City was on notice of the hearing via the subpoenas).  However, the Court finds that if the hearing officer orders the City, or a subpoenaed witness, to take a particular action, such directive must be reduced to writing and a copy provided to the appropriate entity or person. 

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Final Order on Results of Review Hearing is quashed.   This cause is remanded for a new hearing.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ______ of March 2008.

                                                            ______________________________

                                                            AMY M. WILLIAMS

                                                            Circuit Judge, Appellate Division

_______________________                                      _____________________________

PETER RAMSBERGER                                        J. THOMAS McGRADY

Circuit Judge, Appellate Division                               Circuit Judge, Appellate Division

Copies furnished to:

Maura J. Kiefer, Esquire

535 Central Avenue, Suite 412

St. Petersburg, FL  33701

Jason M. Melton, Esquire

6252 Commercial Way, # 145

Spring Hill, FL  34613

Thomas C. Mielke, 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



[1] A municipality, on behalf of its police department, can appeal a decision of the Department pursuant to Florida Statutes, section 322.2615(13).  This section states, in pertinent part:  “A law enforcement agency may appeal any decision of the department invalidating a suspension by a petition for writ of certiorari to the circuit court in the county wherein a formal or informal review was conducted.”

[2] Hynum is not a party to this Petition. 

[3] This Court reached a similar conclusion in its recent decision of City of Treasure Island v. State of Florida, Department of Highway Safety and Motor Vehicles, Appeal No. 07-0016AP-88B ( Fla. 6th Cir. App. Ct. Nov. 30, 2007), which involved the same Petitioner.