Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Due Process – Suspension – In accordance with the holding in Pfleger v. DHSMV, 18 Fla. L. Weekly Supp. 706a (Fla. 2011), the Hearing Officer violated Petitioner's procedural due process rights. Arresting officer’s failure to appear for hearing, despite valid subpoena, denied the Petitioner opportunity to confront and cross-examine officer at the formal hearing within thirty days. Petition granted; Hearing Officer's Decision quashed; remanded to Department of Highway Safety and Motor Vehicles. Robinson v. Florida Department of Highway Safety and Motor Vehicles, No. 11-000029AP-88A (Fla. 6th Cir. App. Ct. September 1, 2011).
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
DALE WILLIAM ROBINSON,
Case No. 11-000029AP-88A
STATE OF FLORIDA, DEPARTMENT
OF HIGHWAY SAFETY AND MOTOR
Opinion Filed ______________
Petition for Writ of Certiorari from
Decision of Hearing Officer
Bureau of Administrative Reviews
Department of Highway Safety
and Motor Vehicles
Timothy F. Sullivan, Esq.
Attorney for Petitioner
Stephen D. Hurm, Gen. Counsel
Kimberly A. Gibbs, Asst. Gen. Counsel
Attorneys for Respondent
Dale William Robinson seeks certiorari review of the "Findings of Fact, Conclusions of Law and Decision" of the Hearing Officer of the Bureau of Administrative Reviews, Department of Highway Safety and Motor Vehicles entered on May 4, 2011. The Decision affirmed the order of suspension of Mr. Robinson's driving privileges. The petition for writ of certiorari is granted.
Statement of Case
Mr. Robinson was arrested for allegedly driving while under the influence on May 3, 2011. He refused to submit to a breath-alcohol test. Mr. Robinson's driving privileges were suspended and he challenged the suspension. On April 29, 2011, an administrative formal review hearing was conducted pursuant to section 322.2615, Florida Statutes (2010). The arresting officer, Clearwater Police Department Officer Giordano was subpoenaed by Mr. Robinson to appear at the hearing. Off. Giordano did not appear. Counsel for Mr. Robinson argued that the suspension should be invalidated on the basis of Off. Giordano's non-appearance because Mr. Robinson's due process rights were violated. The Hearing Officer denied the motion and inquired if Mr. Robinson wished to seek enforcement of the subpoena. Mr. Robinson declined to seek enforcement of the subpoena and cited to Pfleger v. Florida Department of Highway Safety and Motor Vehicles, 18 Fla. L. Weekly Supp. 706a (Fla. 6th Cir. App. Ct. May 20, 2011), in support of the argument that the driver's license suspension should be invalidated. No reason or excuse was presented for Off. Giordano's failure to appear.
Off. Giordano was given two days to demonstrate "just cause" for his absence at the formal hearing. Thereafter, the Hearing Officer entered the "Findings of Fact, Conclusions of Law and Decision" upholding the suspension of Mr. Robinson's driver's license without reference to any "just cause" provided by Off. Giordano. This petition followed.
Standard of Review
Circuit court certiorari review of an administrative agency decision is governed by a three-part standard: (1) whether procedural due process is accorded; (2) whether the essential requirements of law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial evidence. See Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).
In support of the petition, Mr. Robinson cites to Pfleger in which this Court granted a petition for writ of certiorari based on a violation of due process rights. In that case, Mr. Pfleger had properly subpoenaed the arresting officer who failed to appear at the administrative hearing. This Court held that the arresting officer's unexcused, unexplained non-appearance denied Mr. Pfleger the opportunity to confront and cross-examine the officer at the formal hearing within thirty days as contemplated by Florida Administrative Code 15A-6.013. See also § 322.2615(6)(a), Fla. Stat. The Court concluded, that "requiring a law enforcement officer to comply with valid subpoena to appear at a review hearing only serves the Government's interest in regulating driver's licenses in a manner consistent with its own rules and due process."
In response to the petition, the Department cites to the Fourth Circuit Appellate Court's opinion in Buckley v. Department of Highway Safety and Motor Vehicles, 18 Fla. L. Weekly Supp. 135a (Fla. 4th Cir. App. Ct. Aug. 17, 2010), to support its argument that Mr. Robinson's due process rights were not violated in the present case.
The decision of an appellate panel of a sister circuit court that is contrary to a prior decision of an appellate panel of the Sixth Circuit Court is in the same posture as an interdistrict conflict between the district courts of appeal. The Florida Supreme Court in Pardo v. State, 596 So. 2d 665, 666-67 (Fla. 1992), discussed the "proper hierarchy of decisional holdings" and found that when there is only one case on point from a district court of appeal, and there has been no ruling on the issue by the district court of appeal in the district in which the trial court is located, the trial court is required to follow that decision. "Alternatively, if the district court [of appeal] of the district in which the trial court is located has decided the issue, the trial court is bound to follow it. Contrarily, as between District Courts of Appeal, a sister district's opinion is merely persuasive." Therefore, Buckley, which appears to be distinguishable on its facts, at best is persuasive authority, but is not binding on this Court as it is contrary to the Sixth Circuit Appellate Court's decision in Pfleger.
The Department also argues that this Court in Pfleger erred in invalidating the administrative suspension of Mr. Pfleger's driver's license. It asserts that this Court is bound by the First District Court of Appeal's decision in State, Department of Highway Safety & Motor Vehicles v. Lankford, 956 So. 2d 527 (Fla. 1st DCA 2007), when it stated:
Moreover, we find no provision in the pertinent statute and rule that authorizes invalidation of a DUI license suspension because a witness [who appeared at the administrative hearings] did not provide the hearing officer with a good reason for failing to bring evidence pursuant to a subpoena duces tecum. See § 322.2615, Fla. Stat. (2004); Fla. R. Admin. P. 15A-6.013.
This holding in the Lankford opinion is not binding on this Court because the statement is obiter dictum. In the paragraph preceding that emphasized by the Department, the Lankford opinion states:
At no time during either of his two evidentiary hearings did Lankford preserve this issue [relating to the arresting officer's failure to bring a videotape of the stop and arrest to the administrative hearings] for review by raising an objection before the hearing officer. Because this argument was waived at the trial level, it could not have been properly used as a basis for reversal of the hearing officer's decision to suspend Lankford's license.
Id. at 527-28. The First District Court of Appeal In Lankford found that the circuit appellate court exceeded its authority and thus departed from the essential requirements of law when it invalidated Mr. Lankford's driver's license suspension based on an unpreserved error. This Court is not bound by the obiter dictum in Lankford.
The Petition for Writ of Certiorari is granted based on the precedent of Pfleger and a conclusion that Dale William Robinson's due process rights were violated by Off. Giordano's unexcused, unexplained non-appearance at the administrative formal review hearing. Therefore, the "Findings of Fact, Conclusions of Law and Decision" entered by the Hearing Officer on May 4, 2011, is quashed.
If he is otherwise eligible, the Department of Highway Safety and Motor Vehicles shall reinstate Dale William Robinson's driving privilege and remove from Dale William Robinson's permanent driving record any entry that reflects the administrative suspension sustained by the May 4, 2011, Decision of the Hearing Officer.
Petition granted; "Findings of Fact, Conclusions of Law and Decision" quashed; and matter remanded the Department of Highway Safety and Motor Vehicles to comply with the directives of this opinion.
DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this 1st day of September, 2011.
Original order entered on September 1, 2011 by Circuit Judges Linda R. Allan, W. Douglas Baird, and John A. Schaefer.
Copies furnished to:
Timothy F. Sullivan, Esq.
9721 Executive Center Dr. North, Ste. 120
St. Petersburg, FL 33702
Stephen D. Hurm, Gen. Counsel
Kimberly A. Gibbs, Asst. Gen. Counsel
Dep't of Hwy. Safety & Motor Vehicles
P.O. Box 570066
Orlando, FL 32857
 The Department has filed a second-tier certiorari petition with the Second District Court of Appeal in Florida Department of Highway Safety & Motor Vehicles v. Pfleger, Case No. 2D11-2091. The case is consolidated for purposes of being considered by the same merit panel with McKenney v. State, Department of Highway Safety & Motor Vehicles, Case No. 2D11-701.