Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – cancellation of special supervision services program (SSS Program) – due process. Petitioner was not denied due process by the lack of an attorney where he had the opportunity to present evidence and witnesses – Substantial evidence supported finding that he violated terms of the SSS Program by testing positive for alcohol use – Petitioner was given opportunity to dispute the reliability of the alcohol tests, but his submissions were inadequate to refute indications of alcohol use - - Petition denied. Keeling v. Suncoast Safety Council, No. 09-000038AP (Fla. 6th Cir. App. Ct. April 16, 2010).
NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
DANNY PATRICK KEELING
v. Ref. No.: 09-000038AP-88B
SUNCOAST SAFETY COUNCIL and 522009AP000038XXXXCV
STATE OF FLORIDA, DEPARTMENT
OF HIGHWAY SAFETY AND MOTOR
ORDER DENYING PETITION FOR WRIT OF CERTIORARI
THIS CAUSE came before the Court on the Petition for Writ of Certiorari filed by Petitioner Danny Patrick Keeling on July 20, 2009. Petitioner seeks review of the Order of License Revocation, Suspension, or Cancellation issued by Respondent Department of Highway Safety and Motor Vehicles ("DHSMV") and a finding that the decision was not supported by competent and substantial evidence. Petitioner requests the court to reinstate his driving privileges or, alternatively, to remand this matter for rehearing. The DHSMV filed a response, to which Petitioner filed a reply. Upon consideration, this Court finds that the Petition for Writ of Certiorari must be denied as set forth below.
Petitioner’s driver’s license was revoked after receiving three DUI convictions. Pursuant to Florida Statutes section 322.271, Petitioner sought and obtained reinstatement of his license on a restricted basis. As a condition of his restricted license, Petitioner was required to enroll in and comply with the terms of the DUI Special Supervision Services Program (“SSS Program”) of the Suncoast Safety Council (“Suncoast”), including regular, periodic drug testing.
As part of this testing, on April 23, 2009, a Suncoast evaluator administered Petitioner’s initial breath test using a handheld breathalyzer, and Petitioner registered a blood alcohol content (“BAC”) of .02. He denied drinking. The evaluator instructed the Petitioner to rinse his mouth and not to smoke or eat for fifteen minutes. After fifteen minutes, with a supervisor as a witness, the evaluator conducted a second breath test, which indicated a .013 BAC, and a mouth swab, which indicated the presence of alcohol. The evaluator also noted a slight odor of alcohol in the air.
On May 12, 2009, Suncoast issued its Letter Recommending Cancellation from the SSS Program. At that time, Petitioner signed the “Client Rights/Appeal Process” form detailing the procedure for appealing Suncoast’s unfavorable recommendation. Pursuant to Florida Statutes section 322.271, the DHSMV cancelled Petitioner’s license for an indefinite period, starting June 11, 2009. Petitioner appealed Suncoast’s recommendation to the DUI Programs of Pasco County (“Pasco DUI Program”). After conducting an appeal hearing, the Pasco DUI Program concurred with Suncoast’s recommendation to cancel Petitioner’s license. Petitioner filed the instant action to appeal the final decision of the DHSMV.
In reviewing the DHSMV’s order, this Court is limited to determining (1) whether procedural due process has been accorded, (2) whether the essential elements of law have been observed, and (3) whether the administrative findings are supported by competent, substantial evidence. Vichich v. Dep’t of Highway Safety & Motor Vehicles, 799 So. 2d 1069, 1073 (Fla. 2d DCA 2001). It is not the job or function of the circuit court to reweigh evidence and make findings when it undertakes a review of an administrative decision. Dep’t of Highway Safety & Motor Vehicles v. Satter, 643 So. 2d 692, 695 (Fla. 5th DCA 1994). The hearing officer assigned to hear the case by the department is “the trier of fact and in the best position to evaluate the evidence.” Dep’t of Highway Safety & Motor Vehicles v. Favino, 667 So. 2d 305, 309 (Fla. 1st DCA 1995).
Petitioner first contends that he was denied due process because he was informed that he could not have an attorney present and because he did not have an opportunity to present evidence and witnesses. In particular, Petitioner points to a document entitled, “Client Rights/Appeal Process,” which notifies an individual of his right to appeal substance abuse testing procedures or results, but it fails to indicate that during such appeal, the individual may be represented by an attorney and may offer evidence and witnesses in his favor. Although the petitioner has a right to have an attorney present during an administrative hearing, the lack of an attorney does not deprive Petitioner of a meaningful review or due process. See Wilson v. Dep’t of Highway Safety & Motor Vehicles, No. 06-000096AP-88B (Fla. 6th Cir. Ct. April 24, 2007). Moreover, the record indicates that Petitioner did have an opportunity to present evidence and witnesses, but he did not avail himself of the procedures available to him.
Petitioner further argues that the conclusory statements upon which the termination of his restricted license was based did not constitute substantial evidence. He argues that the decisions failed to indicate particulars such as the make and type of breathalyzer used, the maintenance record of the breathalyzer, the type of swab test, the testing conditions, and the test evaluator’s detection of the odor of alcohol. Petitioner argues that he could have rebutted the indications of alcohol use had he known more about the testing procedures. Instead, he only presented general information downloaded from the internet concerning gastroesophageal reflux and the unreliability of breath tests. Despite this limited presentation, the Petitioner was afforded the opportunity to dispute the reliability of the alcohol tests.
The final decision of the Pasco DUI Program acknowledged the Petitioner’s submissions on appeal but found that the submissions were inadequate to refute the indications of alcohol use, the two breathalyzer readings, the positive mouth swab, and the detection of the odor of alcohol. This competent, substantial evidence supports the termination of Petitioner’s restricted license based on alcohol use in violation of SSS Program requirements, and this Court cannot reweigh the evidence to arrive at a different conclusion. See Satter, 643 So. 2d at 695.
Accordingly, 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 ________th day of April 2010.
Original order entered on April 16, 2010 by Circuit Judges Amy M. Williams, Peter Ramsberger, and Pamela A.M. Campbell.
Copies furnished to:
LARRY SANDEFER, ESQUIRE
Sandefer & Murtha, P.A.
711 South Belcher Rd.
Clearwater, FL 33764-6326
Attorney for Petitioner
SUNCOAST SAFETY COUNCIL
1145 Court Street
Clearwater, FL 33756
PRIDE INTEGRATED SERVICES, INC.
OF PASCO COUNTY
HEATHER ROSE CRAMER, ESQUIRE
Assistant General Counsel
DHSMV - Legal Office
P.O. Box 540609
Lake Worth, FL 33454-0609
Clearwater, FL 33762
Attorney for Respondent
Council Square Professional Office Center
7619 Little Road, Suite 350
New Port Richey, FL 34654
Although due process does not require the SSS Program or DHSMV to advise a client of his right to have an attorney present, the Court is troubled that the “Client Rights/Appeal Process” form does not mention a client’s right to have an attorney present at the appeal hearing.
Section 120.62(2), Florida Statutes, provides, “Any person compelled to appear, or who appears voluntarily, before . . . any agency proceeding has the right, as his or her own expense, to be accompanied, represented, and advised by counsel or by other qualified representatives.” § 120.62(2), Fla. Stat. (2009).