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
APPELLATE DIVISION
NICHOLAS TSOTSOS,
Petitioner, Case
No.: 11-000061AP-88A
UCN:
522011AP000061XXXXCV
v.
STATE OF FLORIDA, DEPARTMENT
OF HIGHWAY SAFETY AND MOTOR
VEHICLES
Respondent.
______________________________________/
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
PER CURIAM.
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.[1]
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).
Analysis
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.
Petition denied.
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
[1] 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.