Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVERS LICENSES – Suspension—Hearing Officer’s finding that law enforcement’s stop of the petitioner was valid was supported by competent substantial evidence and there was no departure from the essential requirements of the law. Hearing officer made specific ruling and written finding that stop of Petitioner's vehicle was legal. Dicta in Department of Highway Safety and Motor Vehicles v. Escobio, 6 So. 3d 638 (Fla. 2d DCA 2009), not binding on this Court under the facts of this case where the Hearing Officer made a specific finding on the legality of a stop. Petition for writ of certiorari denied. Tsotsos v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 11-000061AP-88A (Fla. 6th Cir. App. Ct. July 24, 2012).
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
Petitioner, Case No.: 11-000061AP-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
John F. McGuire, Esq.
Attorney for Petitioner
Stephen D. Hurm, Gen. Counsel
Kimberly A. Gibbs, Asst. Gen. Counsel
Attorneys for Respondent
Nicholas Tsotsos 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 November 23, 2011. The Decision affirmed the order of suspension of Mr. Tsotsos' driving privileges pursuant to section 322.2615, Florida Statutes (2011). Upon review of the briefs and the appendices, this Court dispensed with oral argument pursuant to Florida Rule of Appellate Procedure 9.320. The petition is denied.
Statement of the Case
The evidence in the record demonstrates that on October 24, 2011, Pinellas County sheriff deputies were dispatched to the "Cop Shop" sports bar and restaurant in Oldsmar, Pinellas County based on a report of a disturbance between the management of the establishment and three customers. Deputy Kaselak's Offense Report indicates that deputies were advised that the disruptive customers were two men and a woman. Allegedly, the two men were taunting the management to fight after the men had damaged a door at the bar. When Deputy Kaselak arrived at the parking lot of the bar, he observed two men getting into a red car and leaving. Several people in the parking lot pointed to the vehicle and shouted, "There they go." The deputy followed the car and stopped it. Mr. Tsotsos was driving with a male passenger. Deputy Kaselak and Deputy Gwynne spoke with Mr. Tsotsos and with the passenger to investigate the disturbance at the "Cop Shop."
The Offense Report states that while speaking with Mr. Tsotsos, Deputy Kaselak noticed that there was a distinct odor of alcohol on Mr. Tsotsos' breath, his eyes were bloodshot, and his speech was impaired. Deputy Kaselak informed Mr. Tsotsos that he was going to perform a driving while under the influence ("DUI") investigation. Mr. Tsotsos agreed to perform field sobriety tests. After he failed the field sobriety tests Mr. Tsotsos was arrested for DUI. Subsequently, Mr. Tsotsos submitted to breath-alcohol testing that resulted in readings of 0.1471 and 0.161 BrAC.
On November 23, 2011, an administrative formal review hearing was conducted pursuant to section 322.2615. Counsel for Mr. Tsotsos made a motion to invalidate the license suspension based on lack of probable cause to stop the vehicle. The Hearing Officer denied the motion. The order of suspension was affirmed.
Petition for Writ of Certiorari
Mr. Tsotsos raises only one issue in the petition for writ of certiorari: "Petitioner's license suspension for driving under the influence must be invalidated because the officer failed to have probable cause to make a traffic stop on his vehicle with his only knowledge of stopping the vehicle was pointed out by pedestrians at a bar where no crime was committed in front of the officer."
In the response to the petition for writ of certiorari the Department of Highway Safety and Motor Vehicles ("Department") directs this Court to the Second District Court of Appeal opinion in Department of Highway Safety and Motor Vehicles v. Escobio, 6 So. 3d 638 (Fla. 2d DCA 2009). A discussion of the revision to section 322.2615(7)(a), effective October 1, 2006, governing the scope of review by a hearing officer when a driver has submitted to a breath-alcohol or blood-alcohol test is contained in the Escobio opinion.
The Department argues that the case supports its position that this Court may not consider Mr. Tsotsos' argument challenging the Hearing Officer's denial of his motion to invalidate based on a determination that the stop of the vehicle was legal. It is asserted that the legality of the stop is not an issue to be determined by the hearing officer; therefore, this Court may not review the merits of the Hearing Officer's ruling.
In Escobio there had been no ruling by the hearing officer on the legality of the arrest of Mr. Escobio. The appellate court concluded that the circuit court acting in its appellate capacity departed from the essential requirements of law when it concluded that the hearing officer was required to consider the legality of Mr. Escobio's arrest, granted Mr. Escobio's petition for writ of certiorari, and quashed the suspension of Mr. Escobio's driver's license.
This Court finds that the Escobio case is distinguishable on its facts from the current case. At the formal review hearing, Mr. Tsotsos presented the argument that the stop of Mr. Tsotsos's vehicle was invalid. The Hearing Officer considered the argument and ruled on the motion. We hold that because the Hearing Officer made a specific finding on the merits of Mr. Tsotsos's motion this Court may review the issue. Non-binding dicta in Escobio does not preclude this review.
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. State, Dep't of Highway Safety and Motor Vehicles v. Sarmiento, 989 So. 2d 692, 693 (Fla. 4th DCA 2008). This Court is not entitled to reweigh the evidence; it may only review the evidence to determine whether it supports the hearing officer's findings. Dep't of Highway Safety & Motor Vehicles v. Stenmark, 941 So. 2d 1247, 1249 (Fla. 2d DCA 2006).
Mr. Tsotsos does not complain of any due process violation.
A formal review of a driver's license suspension is conducted pursuant to section 322.2615(1)(b)3. When an individual's license is suspended for driving with an unlawful blood-alcohol level in violation of section 316.193, Florida Statutes (2011), the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain the license suspension. A preponderance of the evidence standard is evidence which as a whole shows that the fact sought to be proved is more probable than not. See State v. Edwards, 536 So. 2d 288, 292 (Fla. 1st DCA 1988).
A law enforcement officer may stop a person for the purpose of investigating possible criminal behavior, even though there is no probable cause to justify an arrest, as long as the officer has a reasonable suspicion that the person is or has engaged in criminal activity. State v. Ramos, 755 So. 2d 836, 838 (Fla. 5th DCA 2000). Based upon the evidence in the record before us, we conclude that competent substantial evidence supports the Hearing Officer's determination that there was a valid investigatory stop of Mr. Tsotsos' vehicle by the Pinellas County Sheriff's Office. There was no departure from the essential requirements of law and the Hearing Officer properly upheld the suspension of Mr. Tsotsos's driver's license.
DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this 24th day of July, 2012.
Original order entered on July 24, 2012 by Circuit Judges Linda R. Allan, W. Douglas Baird, and John A. Schaefer.
Copies furnished to:
John F. McGuire, Esq.
1173 N.E. Cleveland Street
Clearwater, FL 33755
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
 This Court notes that the dicta in Escobio is based in large part on the same reasoning found in the appellate court's opinion in McLaughlin v. Department of Highway Safety and Motor Vehicles, 2 So. 3d 988 (Fla. 2d DCA 2008), that has been quashed by the Florida Supreme Court in Florida Department of Highway Safety and Motor Vehicles v. Hernandez, 74 So. 3d 1070, 1074-80 (Fla. 2011). The Florida Supreme Court rejected the appellate court's reasoning in McLaughlin and held: "Once section 322.2615 and section 316.1932 [the Implied Consent Law] are read together, it becomes clear that under the statutory scheme, 'sufficient cause' to sustain the suspension under section 322.2615(7) and 'whether the person whose license was suspended refused to submit to any such test' require that the hearing officer make the determination of whether the test was administered incident to a lawful arrest, as required by section 316.1932, Florida Statutes." Hernandez, 74 So. 3d at 1079.