Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: Driver’s Licenses – Record supported trial court’s determination that petitioner may be unfit to drive, and therefore her driver’s license was properly suspended by the Department subject to reexamination. Petitioner failed to establish sufficient justification for her failure to appear for reexamination. – Petition denied. Petrano v. State,  No. CRC 03-44 APANO (Fla. 6th Cir. App. Ct. Aug. 23, 2004).

 

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

MARY KATHERINE DAY-PETRANO

 

            Petitioner,

 

v.                                                                                                                                           Case No. CRC 03-44 APANO

UCN522003AP000044XXXXCR

STATE OF FLORIDA, et al.

 

            Respondents.

__________________________________________/

 

Opinion filed ___________________.

 

Petition for Writ of Certiorari

seeking review of a decision

of the Department of Highway

Safety and Motor Vehicles

 

Mary Katherine Day-Petrano, Pro Se

 

Kathy Jimenez, Esq.

Attorney for appellee

 

ORDER AND OPINION

 

 

            THIS MATTER is before the Court on Mary Katherine Day-Petrano’s amended petition for certiorari and request for declarative and injunctive relief. The petitioner is seeking review of a decision of the Department of Highway Safety and Motor Vehicles (“DHSMV”) that suspended her driving privileges. During the proceedings of a careless driving charge against the petitioner, the trial judge learned of certain information that caused him to suspect that the petitioner might not be capable of properly driving in the State of Florida. Pursuant to §322.221(2)(b), Fla.Stat. (2003), the trial judge recommended that the petitioner be reexamined by the DHSMV because “her ability to drive a motor vehicle safely is questionable … .”

            Pursuant to the trial court’s order, the DHSMV sent the petitioner a letter informing her that she should contact the department to set up an appointment to take the vision, written and driving examinations. The petitioner failed to take any of the examinations. Consequently, the DHSMV issued an Order of License Suspension. It is that order that the petitioner wants this Court to review.

            This Court will review each step of the proceedings.1 First, the trial court acted properly when it recommended that the petitioner be reexamined by the DHSMV. The transcript shows that the petitioner repeatedly complained that she was unable to function properly in the courtroom due to various alleged disabilities. She stated, or at least strongly implied, that she had difficulty both seeing and hearing, and that she was unable to turn her head to the right because of a cervical problem. Information also came out that in addition to the incident at issue the petitioner had very recently been involved in another accident (although the petitioner claimed to be an innocent victim in the latter accident). The police officer who investigated the accident and attended the trial made an oral motion to the trial court that the petitioner be reexamined. All of this information caused the trial judge to suspect that the petitioner might not be capable of safely operating a motor vehicle. The trial judge then recommended to the DHSMV that the petitioner be reexamined. The information mentioned above that came out during the trial was sufficient to support the trial judge’s decision. His recommendation that the petitioner be reexamined was proper.

Next, this Court will review the actions of the DHSMV. §322.221(2)(b), Fla.Stat. (2003) provides:

                                    The department may, in its discretion, require any

                                    licensed driver to submit to an examination or

                                    reexamination prior to his or her normal renewal date

                                    upon receipt of a recommendation from a court having

                                    jurisdiction of traffic offenses, a law enforcement

                                    agency, or a physician stating that the driver’s ability

                                    to operate a motor vehicle is questionable.

 

Once the DHSMV received the recommendation from the traffic court stating that the petitioner needed to be reexamined because her ability to operate a motor vehicle was questionable, the department exercised its discretion and informed the petitioner that she must schedule an appointment to be reexamined. The notice also informed the petitioner that if she failed to report for reexamination prior to a certain date, then her driving privileges would be suspended. The petitioner failed to report. §322.221(3), Fla.Stat. (2003), provides that: “Refusal or neglect of the licensee to submit to such examination or reexamination shall be ground for suspension or revocation of his or her license.” Once the petitioner failed to submit to reexamination, the department was obligated to suspend her driving privileges. The department met its obligation and suspended the petitioner’s license. Quite simply, it was the petitioner’s failure to report to be reexamined that resulted in the suspension of her driving privilege.                    

            The petitioner does not argue that the DHSMV did not receive an order from the trial court recommending that it conduct a reexamination. Neither does she dispute that the DHSMV sent her a letter informing her that she must take the reexamination tests or lose her driver’s license. She also does not dispute that she failed to appear to take the tests. Instead, her argument is that the DHSMV somehow did not sufficiently accommodate her alleged disability so that she could take the tests. The petitioner is apparently arguing that the Order of License Suspension is invalid because the reexamination tests are somehow not in compliance with the Americans with Disabilities Act (“ADA”).

The DHSMV has responded to this allegation and filed a copy of a letter that it sent the petitioner on April 18, 2003. In that letter the DHSMV informed the petitioner’s then attorney that: “[a]s with any applicant, the department will make every effort to provide reasonable accommodation during the test procedures, provided they do not compromise the integrity of the test.” The letter further provided that: “Should she (petitioner) require special accommodation in taking the requested examination, please contact Mr. Charles Gowan at (407) 623-1155 of Mr. Kenneth Ward at (813) 871-7378.” Again, in a letter dated April 28, 2003, the department sent the petitioner’s then attorney a letter that stated: “As for your client’s special needs, our agency will make every effort to provide a reasonable accommodation during the test procedures, provided they do not compromise the integrity of the test.”

There is no evidence that the petitioner ever asked for any reasonable specific accommodation that was denied her by the department. It appears that the petitioner simply refused to appear before the department to take any of the tests. It cannot be said, therefore, that the DHSMV did not sufficiently accommodate her. It was the petitioner who failed to do her part. She could not know if the tests violated the ADA, or if the accommodations that she claims were required were inadequate if she did not even show up at the DHSMV. What the petitioner is attempting to do is require the DHSMV to prove its tests were ADA compliant before she would submit to reexamination.

A mere allegation that the tests violated the ADA is not enough to serve as a defense to her failure to appear for reexamination. (In fact, the petitioner has not cited any case that would make a violation of the ADA a defense to a driver’s license dispute).

The petitioner has not established a valid defense or legitimate reason why she failed to comply with the requirement that she take a reexamination test. The suspension of her driver’s license, therefore, was warranted.

 In summary, the record establishes that the DHSMV properly entered its order of suspension because of the petitioner’s failure to take the tests as ordered. It is important to remember that driving in the State of Florida is a privilege, not a right. See Lite v. State, 617 So.2d 1058 (Fla. 1993); State, Department of Highway Safety and Motor Vehicles, 680 So.2d 1093 (Fla. 3d DCA 1996).

            As for the petitioner’s request for declaratory and injunctive relief, the pleadings do not establish that Article V of the Florida Constitution and all of the State of Florida’s traffic statutes and rules are unconstitutional or otherwise void because of allegations that they do not comply with the ADA. If the petitioner believes that she is covered by the ADA, and has been denied the protections of the ADA or that a specific State constitutional provision, statute, or rule does not comply with the ADA, and that the violation has affected her, then she may challenge that. The type of broad, vague, conclusory, and rambling claims and arguments made in the amended petition, however, is not sufficient to entitle the petitioner to relief.

            IT IS THEREFORE ORDERED that the amended petition for certiorari and request for declaratory and injunctive relief is denied.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida

 

this _____ day of August, 2004.          

                                                                                                                                                                                             ________________________                                                                                             Robert J. Morris, Jr.

                                                                                                Circuit Judge

 

cc:   Mary Katherine Day-Petrano

 

        Kathy Jimenez, Esq.

 

        George Waas, Esq.

 

 


1 The Court notes that the petitioner submitted her own transcript of the proceedings. It was not, however, compiled by an official court reporter. The Court has obtained a transcript prepared by an official court reporter. That transcript, not the one filed by the petitioner, shall serve as the official transcript. There are discrepancies.