Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – revocation of license based on accumulation of points – Department departed from the essential requirements of law in calculating Petitioner’s points – Department provided no explanation as to why it took 5 years to assess points for infraction cited in 2000 – date Petitioner failed to take driver improvement course, January 3, 2001, was date of conviction and when points should have been assessed - Petition granted.  Kuzmicz v. Dept. of Highway Safety and Motor Vehicles, No. 05-0080AP-88A (Fla. 6th Cir. App. Ct. Jan. 27, 2006).

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

ROBERT ADAM KUZMICZ,

                                    Petitioner,

vs.                                                                                               Appeal No. 05-0080AP-88A

                                                                                                   UCN522005AP000080XXXXCV

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

DIVISION OF DRIVER LICENSES,

                                    Respondent.

____________________________________________/

 

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari and the Response.  Upon consideration of the same, the record and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

            The Petitioner, Robert Adam Kuzmicz (Kuzmicz), seeks review of the Order of License Revocation, Suspension, or Cancellation, entered August 29, 2005, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), automatically suspended Kuzmicz’s driver’s license for receiving 24 points within 36 months in violation of Florida Statutes, § 322.27(3).  In reviewing the Order and the administrative action taken by the Department, this Court must determine whether Kuzmicz was afforded procedural due process, whether the essential requirements of law were observed, and whether the Department’s findings and judgment are supported by competent substantial evidence.  See Vichich v. Department of Highway Safety and Motor Vehicles, 799 So.2d 1069, 1073 (Fla. 2d DCA 2001)(setting forth the standard of review for administrative action taken by the Department).

            The record shows that Kuzmicz was issued a civil traffic infraction on September 22, 2000, in Pinellas County, for Racing on Public Traffic Way.  Prior to this citation, Kuzmicz had accumulated 11 points for 3 traffic infractions committed in 2000, to wit: Speed in Excess of Posted Maximum, convicted 4/7/00, 3 points; Unlawful Speed, convicted 6/26/00, 4 points, and; Unlawful Speed, convicted 7/25/00, 4 points.  A certified copy of the Pinellas County Clerk of Court’s docket shows that Kuzmicz’s license was suspended by the Clerk on October 30, 2000, for failing to pay the $ 80.00 civil penalty due from the Racing citation issued September 22, 2000.  On October 31, 2000, Kuzmicz “satisfied” the license suspension when he elected to attend a driver’s course and paid the reduced penalty of $ 69.20.[1]  The driver’s course was to be completed by January 2, 2001.  When Kuzmicz failed to complete the driver’s course, the Clerk imposed an additional penalty in the amount of $ 16.00 and again suspended Kuzmicz license.  The Department was notified, via a D6 transmitted on January 15, 2001, that Kuzmicz had failed to complete the driver’s course. 

            No further action was taken on the matter by the Department or the Clerk until the Clerk referred the $ 16.00 unpaid fee to a collection agency on July 23, 2005.  On August 11, 2005, Kuzmicz paid all outstanding fees resulting in a “suspension satisfied” by the Clerk.  However, on August 29, 2005, the Department suspended Kuzmicz license for receiving 24 points within 36 months, adding together all the points accrued in 2000, as well as points imposed as a result of 3 citations issued since September 22, 2000, including:  Failure to Obey Traffic Signal, convicted 3/28/03, 3 points; Unlawful Speed, convicted 2/12/03, 4 points, and; Failure to Obey Traffic Signal, convicted 3/14/03, 3 points.  In calculating the number of points the Department used the offense date, the utilization of which was triggered by the date of conviction.[2]

            Kuzmicz’s primary argument is that the Department departed from the essential requirements of law in the manner in which it calculated the points for Kuzmicz’s driving infractions.  This Court agrees.  In reviewing this issue, there are several pertinent provisions of Chapter 322.  Florida Statutes, § 322.27(3), states that “[t]he department is authorized to suspend the license of any person upon showing of its records or other good or sufficient evidence that the licensee has been convicted of violation of motor vehicle laws or ordinances, . . . amounting to 12 or more points as determined by the point system.”  Section 322.27(4) states that “[t]he department, in computing the points and period of time for suspension under this section, shall use the offense date of all convictions.”  Hence, the Department lawfully used the offense date of September 22, 2000, in calculating the points. 

            The problem in this case, and where the Department “dropped the ball,” is that the Department was required to adjudicate, or convict, Kuzmicz guilty on or about January 3, 2001, as Kuzmicz failed to complete the driver improvement course, as ordered, by January 2, 2001.  As stated in Florida Statutes, § 318.15(1)(b) “a person who elects to attend driver improvement school and has paid the civil penalty as provided in s. 318.14(9), but who subsequently fails to attend the driver improvement school within the time specified by the court shall be deemed to have admitted the infraction and shall be adjudicated guilty.”  (emphasis added).  This section goes on to provide that “[t]he clerk of the court shall notify the department of the person’s failure to attend driver improvement school and points shall be assessed pursuant to s. 322.27.”  There is no statutory provision that the date of conviction should be the date outstanding fees are paid by the driver to the Clerk, nor any other date.  There is no explanation provided by the Department as to why it took almost five years to convict Kuzmicz for the September 2000 infraction. 

            An agency, as any court of law, must follow the plain language of a statute.  See Florida Department of Revenue v. Florida Municipal Power Agency, 789 So.2d 320, 323 (Fla. 2001)(explaining that a department’s interpretation of a statute which it is charged with enforcing is entitled to great deference and will not be overturned unless it is clearly erroneous or contrary to legislative intent, which is derived from the words expressed in the statute); see also Roman Fedo, Inc. v. Dept. of Highway Safety and Motor Vehicles, Division of Motor Vehicles, 889 So.2d 179, 180 (Fla. 4th DCA 2004).  The Department’s adherence to this basic principle is of particular importance since the Department has the authority to automatically suspend a driver’s license without a formal review hearing.  Hence, while the Court does not in any way condone Kuzmicz’s poor driving behavior, the Court finds that the Department did not adhere to the plain language of the statute and its interpretation of § 318.15(1)(b) is clearly erroneous.  Indeed, the Department’s action of arbitrarily picking a date of conviction is contrary to the intent of Chapter 322, and the imposition of sanctions under the point system set forth in § 322.27(3), to promote the public’s safety by immediately revoking a driver’s license upon the driver’s accumulation of a minimum amount of points within a certain prescribed period of time.  See State, Dept. of Highway Safety and Motor Vehicles v. Abbey, 745 So.2d 1024, 1025 (Fla. 2d DCA 1999)(explaining that the Department’s interpretation of chapter 322 must be reasonable and compatible with the intent of chapter 322 to promote public safety).  Accordingly, the Court finds that certiorari relief must be granted and this cause remanded to the Department to compute Kuzmicz’s points as of the date of conviction which should have been established on, or about, January 3, 2001.[3]

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and this cause remanded to the Department for action consistent with this Order.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of January 2006.

 

 

 

 

                                                _______________________________

                                                JOHN A. SCHAEFER

                                                Circuit Judge, Appellate Division

 

 

 

 

 

 

_______________________________                                  ______________________________

LAUREN C. LAUGHLIN                                                     JAMES R. CASE

Circuit Judge, Appellate Division                                               Circuit Judge, Appellate Division

 

 

 

 

Copies furnished to:

 

Garry Potts, Esquire

Post Office Box 17651

Clearwater, FL  33762

 

Jason Helfant, Assistant General Counsel

Dept. of Highway Safety & Motor Vehicles

2515 West Flagler Street

Miami, FL  33135

 

Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL  33762


 

[1] A “D6”, a notice mechanism utilized by the Clerk when the time for performance by the driver/defendant has passed and the Clerk has no record of the required event occurring, was transmitted, on November 13, 2000, to the Department regarding this suspension. 

[2] The Court notes that, with the exception of the September 2000 infraction, the time difference between the date of the offense and the date of the conviction for the other infractions is less than 30 days.

[3] The Court notes that Kuzmicz receives no tangible benefit from the Department’s error in that his license was suspended on September 19, 2005, approximately 4 months at the time of entry of this order, 3 months longer than what the suspension would have been if Kuzmicz had been properly convicted on or about January 3, 2001.  See Fla. Stat. § 322.27(3)(a).