Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Whether Breath Test Operator holds a valid permit to perform breath test to determine blood-alcohol content is question of law, not of fact.  Hearing Officer interpretation of Fla. Admin. Code, Rule 11D-8.008(3) and calculations are erroneous.  Breath test results determined to be invalid and not supported by competent substantial evidence.  Petition granted; Hearing Officer's Decision quashed; remanded to Department of Highway Safety and Motor Vehicles.  Young v. Florida Department of Highway Safety and Motor Vehicles, No. 11-000008AP-88A (Fla. 6th Cir. App. Ct. August 24, 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

 

 

THOMAS RYAN YOUNG,

          Petitioner,

                                                                      Case No. 11-000008AP-88A

                                                                      UCN522011AP000008XXXXCV

v.

 

 

 

STATE OF FLORIDA, DEPARTMENT

OF HIGHWAY SAFETY AND MOTOR

VEHICLES, DIVISION OF DRIVER

LICENSES,

      Respondent.             

______________________________________/

 

Opinion Filed  ______________

 

Petition for Writ of Certiorari from

Decision of Hearing Officer

Bureau of Administrative Reviews

Department of Highway Safety

and Motor Vehicles

 

Ricardo Rivera, Esq.

Attorney for Petitioner

 

Stephen D. Hurm, Gen. Counsel

Kimberly A. Gibbs, Asst. Gen. Counsel

Attorneys for Respondent

 

 

PER CURIAM.

          Thomas Ryan Young 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 January 24, 2011.  The Decision affirmed the order of suspension of Mr. Young's driving privileges.  The petition for writ of certiorari is granted.

Statement of Case

          Mr. Young was arrested for allegedly driving while under the influence on December 15, 2010.  He submitted to a breath-alcohol test which allegedly resulted in a reading of a breath-alcohol level higher than the legal limit of 0.08.  Mr. Young's driving privileges were suspended and he challenged the suspension.  On January 19, 2011, an administrative formal review hearing was conducted pursuant to section 322.2615, Florida Statutes (2010).  At the hearing, counsel for Mr. Young argued that the suspension should be invalidated and filed a "Motion to Invalidate Because the Breath Test Operator Did Not Hold a Valid Permit to Conduct the Breath Test and Therefore the Breath Test Results Cannot Be Considered." 

          On January 24, 2011, the Hearing Officer entered the "Findings of Fact, Conclusions of Law and Decision" in which he quoted Florida Administrative Code 11D-8.008(3) (2010); concluded that the deputy "currently holds a valid permit and needs to complete his continuing education requirements by June 30, 2013;" and denied the motion to invalidate.  The Hearing Officer found that all elements necessary to sustain the suspension of Mr. Young's driving privileges were supported by a preponderance of the evidence and affirmed the order of suspension.  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). 

The Petition and Response

          In the petition there is no claim that procedural due process was not afforded.  At issue is whether at the time Mr. Young submitted to the breath-alcohol test on December 15, 2010, the deputy from Pinellas County Sheriff Office administering the breath test held a valid Breath Test Operator Permit. 

          At the administrative formal review hearing, counsel for Mr. Young questioned the deputy who administered the breath test to Mr. Young.  The deputy's certificate of completion of the "Breath Test Operator Intoxilyzer 5000 & 8000 Renewal Course" dated June 6, 2005, was admitted into evidence.  The deputy testified that the course completed on June 6, 2005, was his most recent Breath Test Operator renewal course.  (T. 6, 20). 

          At the conclusion of the presentation of all evidence, counsel for Mr. Young moved to invalidate the license suspension based on the argument that the deputy who conducted the breath test did not hold a valid Breath Test Operator Permit on December 15, 2010.  Counsel noted that the deputy took the course to renew his permit on June 6, 2005, and asserted the deputy's authority to administer tests expired on June 30, 2009, pursuant to rule 11D-8.008(3) and (4).  Based on the argument that the Breath Test Operator did not hold a valid permit, it was asserted that the test result is invalid and there is insufficient evidence to support a finding that Mr. Young was driving with an unlawful breath-alcohol level.  In the current petition, Mr. Young repeats this argument.

          In its response to the petition, the Department of Highway Safety and Motor Vehicles (Department) raises three arguments.  First, it asserts that competent, substantial evidence supports the 's determination affirming the suspension of Mr. Young's driver's license.  The Department points to the sworn and notarized Breath Test Affidavit that allegedly establishes that Mr. Young submitted two breath samples with results demonstrating that his breath-alcohol level was above 0.08.  Further, in the Affidavit, the deputy affirmed that he held a valid Breath Test Operator Permit and that the test was conducted in accordance with rule 11D-8 of the Florida Administrative Code.  The Department claims that the Breath Test Affidavit provides substantial, competent evidence to support the Hearing Officer's decision and this Court should not reweigh the evidence.

          Second, the Department asserts that Mr. Young has misconstrued the applicable rules of the Administrative Code.  Rule 11D-8.008 states in pertinent part:

          (3) Breath Test Operators and Agency Inspectors must satisfy continuing education requirements in order to maintain valid permits.  Continuing education requires successful completion of the applicable Commission-approved Renewal Course by June 30 following the fourth permit anniversary date, and during each subsequent four-year cycle. . . .

 

The Department argues that the rule "DOES NOT require that the [Breath Test Operator] complete a renewal course within four year of his last renewal course.  Instead, the rule requires the [Breath Test Operator] complete a renewal course 'by June 30 following the fourth permit anniversary date, and during each subsequent four-year cycle.' " (Emphasis in Response).  It is asserted that when determining whether the Breath Test Operator is in compliance with the rule, the critical date is not the date of the Breath Test Operator's last renewal course, but is the permit anniversary date.  At the administrative hearing, Mr. Young did not ask the Breath Test Operator for his permit anniversary date, whether he was incompliance with the Administrative Code rules, or whether he had a valid Breath Test Operator Permit.  The Department asserts that due to the failure to obtain this evidence, Mr. Young failed to demonstrate non-compliance with the rules and failed to prove that the deputy did not hold a valid permit.

          Third, the Department argues that pursuant to the plain language of Florida Administrative Code 11D-8.002(24),[1] the permit is non-expiring and valid until determined otherwise by the Department.  No evidence was submitted that the Department had suspended or revoked the deputy's Breath Test Operator Permit.  Therefore, it is alleged that Mr. Young failed to demonstrate that the deputy's permit was invalid.

Analysis

          The issue concerning whether the Breath Test Operator holds a valid permit to administer a breath-alcohol test is a question of law, not of fact.  See Dep't of Hwy. Safety and Motor Vehicles v. Stevens, 820 So. 2d 322, 323 (Fla. 5th DCA 2001) (holding that whether inspector of breath test instrument had valid agency inspector permit pursuant to rule 11D-8.008(3) is a question of law; reversal of decision was a matter of interpretation of the law rather than reweighing the evidence); see also State v. Sewell, 10 Fla. L. Weekly Supp. 766, 767 (Fla. 9th Cir. App. Ct. July 8, 2003)(holding breath test inadmissible because inspector of Intoxilyzer instrument failed to complete required course pursuant to rule 11D-8.008(3)).  This Court's decision is to be based on an interpretation of the applicable rule, not on the weight of the evidence.  Stevens, 820 So. 2d at 323.  Because the validity of the permit is determined as a matter of law, the fact that the Department had not invalidated the deputy's permit in the present case does not in and of itself render it valid.  See Sewell, 10 Fla. L. Weekly Supp. at 769. 

          Rule 11D-8.008(4) states, "Any Breath Test Operator or Agency Inspector who fails to satisfy the continuing education requirements shall not perform any duties authorized by the permit until successful completion of the applicable renewal course."  Although the permit was not revoked by the Department, the Florida Administrative Code provides that Breath Test Operators shall not administer the breath tests until they are in compliance with their educational requirements.  "Failure to comply with the continuing education requirement bars the person from performing any of their duties until they complete the applicable renewal course required under the rules."  11 HON. DAVID A. DEMERS, FLORIDA PRACTICE, DUI HANDBOOK § 6:4 (2010-2011 ed.).   

          The construction of an administrative rule by the agency charged with its enforcement and interpretation is entitled to great weight and courts should not depart from that construction unless the interpretation is clearly erroneous.  Falk v. Beard, 614 So. 2d 1086 (Fla. 1993); Collier County Bd. of County Comm'rs v. Fish and Wildlife Conservation Comm'n, 993 So. 2d 69, 72 (Fla. 2d DCA 2008).  In interpreting rules of an administrative agency, words must be given their plain and ordinary meaning.  Boca Raton Artificial Kidney Ctr., Inc. v. Dep't Health & Rehab. Servs., 493 So. 2d 1055, 1057 (Fla. 1st DCA 1986).  Courts must choose interpretations of administrative rules that render the provisions meaningful.  Hawkins v. Ford Motor Co., 748 So. 2d 993, 1000 (Fla. 1999).

          The provision at issue is rule 11D-8.008(3) that states:

          Breath Test Operators and Agency Inspectors must satisfy continuing education requirements in order to maintain valid permits.  Continuing education requires successful completion of the applicable Commission-approved Renewal Course by June 30 following the fourth permit anniversary date, and during each subsequent four-year cycle.

 

(Emphasis added.)  The Department centers its argument on the first thirty-seven words of this subsection of the rule and ignores the remainder of the sentence that is emphasized above.  It claims that the anniversary date of the Breath Test Operator's certification alone controls the calculation of the deadline for the completion of continuing education.  This Court concludes that such an interpretation clearly is erroneous.   

          It is true that the anniversary date of certification is controlling when determining the date the first renewal course after certification or recertification must be completed—June 30 following the fourth anniversary of certification.  The circuit appellate court opinion in State v. Mudge, 17 Fla. L. Weekly 1228b (Fla. 7th Cir. App. Ct. Aug. 3, 2010), is instructive.  In addition to many other issues, the appellate court discussed the interpretation of the first portion of rule 11D-8008(3). 

          In Mudge, the Agency Inspector's Permit was recertified on July 9, 2003.  The appellate court noted that pursuant to rule 11D-8008(3), the Inspector's Permit remained valid until the June 30th following the fourth anniversary date of the recertification.  The fourth anniversary date was July 9, 2007; therefore, the renewal course had to be completed by June 30, 2008.  The appellate court held that the Inspector's Permit became invalid on July 1, 2008, for failure to complete the continuing education course as required by the rule.  The appellate court did not reference the July 9 anniversary date when indicating the date the permit became invalid, but referenced the June 30th deadline and found the permit to be invalid on the following day, July 1.  The appellate court's determination has guided this Court in our interpretation of the rule.

          In the present case, the evidence demonstrates that the deputy completed a continuing education renewal course on June 6, 2005.  It is irrelevant whether the June 6, 2005, course was the first renewal course completed by the deputy, or the tenth.  The date of the deputy's certification is relevant only for determining the first continuing education deadline following the four-year anniversary of certification.  Thereafter, the deadline for completing the continuing education is set at June 30, in a four-year cycle. 

          The plain and ordinary meaning of the rule is clear.  In the present case, the time period for the four-year cycle in which to complete the renewal course commenced on June 30, 2005.  The continuing education was to be completed during the subsequent four-year cycle.  As was argued by Mr. Young, the deputy's Breath Test Operator Permit became invalid after June 30, 2009.  Therefore, when the deputy conducted the alcohol-breath test on December 15, 2009, the deputy did not hold a valid Breath Test Operator Permit and the results of the breath test are invalid.

          It is unclear how the Hearing Officer reached the conclusion that the deputy "currently holds a valid permit and needs to complete his continuing education requirements by June 30, 2013."  While the June 30 date is correct, the year 2013 is eight years after the completion of the last renewal course in 2005.  As a matter of law the Hearing Officer's interpretation of rule 11D-8.008(3) and calculations clearly are erroneous. 

          The Petition for Writ of Certiorari is granted based on a conclusion that as a matter of law the Department of Highway Safety and Motor Vehicles failed to meet its burden of demonstrating substantial compliance with the administrative rules.  Further, upon a review of all the evidence of record, considering that the breath test results have been determined to be invalid, this Court concludes that Hearing Officer's Decision is not supported by competent substantial evidence.  The "Findings of Fact, Conclusions of Law and Decision" entered by the Hearing Officer on January 24, 2011, is quashed. 

          If he is otherwise eligible, the Department of Highway Safety and Motor Vehicles shall reinstate Thomas Ryan Young's driving privilege and remove from Thomas Ryan Young's permanent driving record any entry that reflects the administrative suspension sustained by the January 24, 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 ____ day of _____________________, 2011.

 

 

Original order entered on August 24, 2011 by Circuit Judges Linda R. Allan, W. Douglas Baird, and John A. Schaefer.

 

 

 

Copies furnished to:

 

Ricardo Rivera, Esq.

250 North Belcher Rd., Suite 102

Clearwater, FL 33765

 

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



[1]   Rule 11D-8.002(24) defines the term "Permit" under the Code.  It states:

            Permit - when issued by the Department, certifies that the holder has met all necessary qualifications, remains in full compliance with these rules and is authorized to perform all related duties.  A permit is issued only to a qualified applicant and remains valid and in full effect until determined otherwise by the Department.