Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – hardship license – statutory changes - Department is not required to keep a driver informed of pending statutory changes that may impact his driving privilege or ability to obtain a hardship license – driver is subject to the laws in place at the time application for hardship license is submitted - Petitioner would be ineligible to receive a hardship license under current Florida law due to his four previous DUI convictions - Petition denied. Gilmer v. Dept. of Highway Safety and Motor Vehicles, No. 06-0060AP-88B (Fla. 6th Cir. App. Ct. Dec. 6, 2006).

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

HENRY KEITH GILMER,

Petitioner,

vs. Appeal No. 06-0060AP-88B

UCN522006AP000060XXXXCV

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

DIVISION OF DRIVER LICENSES,

Respondent.

____________________________________________/

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

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

The Petitioner, Henry Keith Gilmer (Gilmer), seeks review of the Final Order of License Suspension, entered September 1, 2006, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), sustained Gilmer’s license revocation. In reviewing the Final Order and the administrative action taken by the Department, this Court must determine whether Gilmer 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 on November 19, 1987, the Department permanently revoked Gilmer’s driving privilege following his fourth conviction for DUI. Gilmer’s understanding was that after a 10-year revocation, he’d be eligible for a hardship license. In 1997, Gilmer moved from Florida to the State of Maryland and applied for a driver’s license. In order to receive a Maryland license, Gilmer was required to complete a driving class in Florida. Gilmer completed the driving course in Florida and received a driver’s license in Maryland. Gilmer did not apply for a hardship license in Florida, nor was informed by the Department that he needed apply for a hardship license within a certain period of time.

Gilmer then moved to the State of Pennsylvania and, in early 2006, applied for a Pennsylvania license. Gilmer was informed he needed to correct his driving record in Florida. Gilmer contacted the Department and was informed that his driver’s license was permanently revoked. Gilmer requested and received a review hearing before a Department hearing officer. After hearing Gilmer’s testimony and receiving evidence, the hearing officer denied Gilmer’s request for a hardship license.

Before this Court, Gilmer argues that he was denied due process and equal protection by the Department’s failure to provide timely and proper notice to him that his driver’s license would be subject to permanent revocation unless he applied for a hardship license. The Court finds that at the time Gilmer’s license was revoked in 1987, Florida Statutes, section 322.271(4), provided that a person whose driving privilege had been permanently revoked because of four DUI convictions could petition the Department for reinstatement of his driver’s license ten years from the date of revocation. See Fla. Stat. 322.271(1986). In 1997, when Gilmer contacted the Department for the purpose of securing a Maryland license, section 322.271(4), permitted that a person with a revoked driver’s license could petition the Department for reinstatement of his driver’s license within five years from the date of revocation. See Fla. Stat. 322.271(1996). The version of section 322.271 in effect in early 2006, when Gilmer contacted the Department, did not provide the opportunity for a driver to seek a hardship license after his fourth DUI conviction and only addressed petitions for reinstatement involving DUI manslaughter. See Fla. Stat. 322.271(2000).

The prior ability to receive a hardship license pursuant to section 322.271(4) was essentially eliminated in 1998, with the passage of section 9 of Chapter 98-223. As thoroughly set forth by the Department in its Response, while section 9 was declared invalid by the Florida Supreme Court in Department of Highway Safety and Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla. 2003), for violating the single subject rule, this error was cured by the Legislature’s reenactment of the law on May 21, 2003 and cannot now be challenged by Gilmer. See State v. Johnson, 616 So.2d 1, 2 (Fla. 1993)(finding that once an invalid law is reenacted it is no longer subject to challenge that it violates single subject requirement). Hence, between the time that the Florida Supreme Court denied the motion for rehearing in Critchfield, on June 11, 2003, and the effective date of the reenacted statute, or July 1, 2003, Gilmer had a narrow window of time in which he could have applied for a hardship license under the 1996 version of section 322.271. It does not appear that Gilmer could have applied for a hardship license in 1997, when he contacted the Department in regards to the Maryland license, as his license was re-suspended, on August 4, 1997, for one year for “obtaining a license by fraud.”

In this case, Gilmer cannot show that he was denied due process or equal protection. The Department is not required to keep drivers informed of pending statutory changes that may impact their driving privilege or ability to obtain a hardship license. Indeed, Gilmer has never applied for a hardship license. In 1997, he no longer resided in Florida and needed only to take a driving course in order to receive a Maryland license. At this point, the Court finds that Gilmer is subject to the current laws of Florida and would be ineligible to receive a hardship license as a matter of law due to his four previous DUI convictions. See Cantrall v. Department of Highway Safety and Motor Vehicles, 828 So.2d 1062, 1063 (Fla. 2d DCA 2002)(explaining that the law in effect at the time the license application is considered is operative).

Therefore, it is,

ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is denied.

DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of December 2006.

______________________________

DAVID A. DEMERS

Circuit Judge, Appellate Division

_____________________________ _____________________________

PETER RAMSBERGER ANTHONY RONDOLINO

Circuit Judge, Appellate Division Circuit Judge, Appellate Division

Copies furnished to:

Larry Sandefer, Esquire

111 North Belcher Road, Suite 202

Clearwater, FL 33765

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