Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Suspension – Arresting officer’s failures to appear for formal review hearing were unexcused where arresting officer based his continuance requests upon no reason or a “schedule conflict” and the hearing officer made no finding of just cause. Because Fla. Admin. Code R. § 15A-6.015(2)(c) provides that no hearing shall be continued for a second failure to appeal, the second continuance was indisputably a departure from the essential requirements of law and denied Petitioner’s due process rights.  Petition granted.  Tsardoulias v. Department of Highway Safety and Motor Vehicles, No. 11-000032AP-88B (Fla. 6th Cir. App. Ct. November 22, 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

APPELLATE DIVISION

 

ANGELA TSARDOULIAS,

            Petitioner,

Ref. No.: 11-000032AP-88B

v.                                                                                             UCN: 5220011AP000032XXXXCV

 

DEPARTMENT OF HIGHWAY

SAFETY AND MOTOR VEHICLES,

            Respondent.

____________________________________/

 

ORDER GRANTING PETITION FOR CERTIORARI

THIS CAUSE is before the Court on a Petition for Writ of Certiorari filed by the Petitioner, Angela Tsardoulias, on June 16, 2011. The Respondent, the Department of Highway Safety and Motor Vehicles (“Department”), filed a response in opposition, to which Petitioner filed a reply.  For the reasons set forth below, the petition is hereby granted.

On February 24, 2011, Hillsborough County Deputy Sheriff David Kennedy performed a traffic stop on Petitioner in Tampa, Florida.[1] Deputy Kennedy conducted field sobriety tests on Petitioner and then arrested her for DUI. Deputy Kenney transported Petitioner to the Orient Road Jail, where he read the Petitioner the implied consent warnings and arrested her after she refused to give a breath sample.

The Department suspended Petitioner's driver's license for refusing to submit to a breath test pursuant to Florida Statutes § 322.2615. Petitioner timely requested a formal review of her suspension, and the Department scheduled an administrative hearing for March 30, 2011, pursuant to § 322.2615(6)(a).  Petitioner obtained and served a subpoena on Deputy Kennedy for his testimony at the review hearing.

On March 30, 2011, Petitioner and her counsel appeared for the hearing, but the hearing officer continued proceedings until April 26, 2011, upon an ex parte request from Deputy Kennedy.  Petitioner’s counsel objected to the continuance and requested a showing of just cause as required by Rule 15A-6.015(2) of the Florida Administrative Code. On April 18, 2011, the hearing officer entered another Order continuing the hearing to May 12, 2011.  Petitioner again objected to the continuances and moved for a just cause showing and a copy of the Department’s file.

 At the hearing conducted on May 12, 2011, Deputy Kennedy appeared and testified. The hearing officer produced Deputy Kennedy’s two faxed continuance requests. Denying motions to set aside the license suspension for procedural irregularities, the hearing officer entered an order sustaining the suspension of Petitioner’s license.  Petitioner subsequently filed this petition for writ of certiorari.            

In reviewing the administrative decision, this Court is limited to determining (1) whether procedural due process has been accorded, (2) whether the essential requirements of law have been met and (3) whether the administrative hearing officer’s 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).  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).  On review, the Circuit Court is not entitled to reweigh the evidence; it may only determine whether competent substantial evidence supports the hearing officer’s findings. Dep’t of Highway Safety & Motor Vehicles v. Stenmark, 941 So. 2d 1247, 1249 (Fla. 2d DCA 2006).

Petitioner argues that the hearing officer departed from the essential requirements of the law and deprived her of due process by granting two continuances in violation of Florida Administrative Code Rule 15A-6.015(2)(c), which provides in pertinent part:

    (2) The driver, or a properly subpoenaed witness who fails to appear at a scheduled hearing may submit to the hearing officer a written statement showing just cause for such failure to appear within two days of the hearing.

   (a) For the purpose of this rule, just cause shall mean extraordinary circumstances beyond the control of the driver, the driver's attorney, or the witness which prevent that person from attending the hearing.

   (b) If just cause is shown, the hearing shall be continued and notice given.

   (c) No hearing shall be continued for a second failure to appear.

   (d) Notification to the department of a witness's non-appearance with just cause prior to the start of a scheduled formal review shall not be deemed a failure to appear.

 

Fla. Admin. Code R. § 15A-6.015 (emphasis added). 

To avoid classification as a “failure to appear,” the rule requires that the reason for a witness’s non-appearance be atypical and uncontrollable. The rule also requires a witness’s excuse to be submitted in writing within two days of the scheduled hearing.  Due to both the language of the Rule and the ex parte nature of the continuances, justification must be in a “written statement.” Yant v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 686a (Fla. 4th Cir. Ct. 2005). In Yant, the circuit court determined that a follow-up fax stating a “scheduling conflict” did not establish just cause to excuse the officer’s non-appearance. 

 “It is clear that [Fla. Admin. Code R. 15A-6.015(2)(c)] does not provide for successive continuances for any reason.” Bryant v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 67a (Fla. 9th Cir. Ct. 2000) (upholding a final suspension order entered upon the third non-appearance of petitioner’s own counsel). See also Whitehead v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 431a (Fla. 11th Cir. Ct. 2008) (granting writ of certiorari where a hearing had been continued three times due to the non-appearance of two subpoenaed police officers).

Deputy Kennedy provided no reason for his first, undated request for continuance and cited to a “schedule conflict” for his second request made by an unsigned fax.  The hearing officer granted both requests without making any finding regarding just cause.  Under these circumstances, Deputy Kennedy’s two failures to appear were unexcused.  Although, arguably, the hearing officer may have had the discretion to order one continuance, the second continuance was indisputably a departure from the essential requirements of law and denied Petitioner’s due process rights.

Accordingly, it is hereby

            ORDERED AND ADJUGED that the Petition for Writ of Certiorari is GRANTED.

            DONE AND ORDERED in St. Petersburg, Pinellas County, Florida, on October ______, 2011.

Original order entered on November 22, 2011, by Circuit Judges Jack Day, Peter Ramsberger, and Pamela A.M. Campbell.

 

Copies furnished to:

 

Mary Klimis Coburn, Esquire

15 E. Orange Street

Tarpon Springs, FL 34689

Attorney for Petitioner

Richard M. Coln, Esquire

Assistant General Counsel

DHSMV

P.O. Box 570066

Orlando, FL 32857

 



                  [1]Although the events occurred in Hillsborough County, this Court has jurisdiction over the action because the Petitioner is a resident of Pinellas.