Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – where petitioner admitted to the hearing officer that he operated a motor vehicle after revocation of this license-the hearing officer’s findings and judgment were supported by competent substantial evidence.  Petition for writ of certiorari denied. Loomis v. DHSMV, No. 08-CA-3953 ES P (Fla. 6th  Cir.App.Ct. May 7, 2009).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO COUNTY, FLORIDA

 

DENNIS R. LOOMIS

 

            Appellant,

 

Vs                                                        Appellate Case No.:     51-08-CA-3953 ES P

                                                            UCN:  512008CA003953XXXXES

                                                            Lower Court Case No.:  08-3469 XDUTES

FLORIDA STATE DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR

VEHICLES

 

            Appellee.

____________________________/

 

(D. DISKEY, J.)

ORDER AND OPINION

            This matter is before the Court on Petitioner/defendant’s, Dennis R. Loomis, Writ of Common Law Certiorari. 

FACTUAL AND PROCEDURAL HISTORY

            On or about January 5, 2008, the Petitioner/defendant, Dennis R. Loomis, was arrested and issued a citation for driving under the influence.  On March 11, 2008, the Petitioner/defendant requested and was issued a hardship driving permit from the Department of Highway Safety and Motor Vehicles.  On March 25, 2008, the Petitioner/defendant entered a plea before the trial court to the charge of driving under the influence, and as part of the Judgment and Sentence, the trial court revoked the Petitioner/defendant’s driving privilege for a period of six months.  On April 15, 2008, the Petitioner/defendant requested from the Department of Highway Safety and Motor Vehicles, a replacement hardship license and stated at the hearing therein that he received a letter yesterday (April 14, 2008) to mail the hardship permit previously issued back to the Department of Highway Safety and Motor Vehicles.  See transcript page 2, line 22.  The Petitioner/defendant further testified at his application for a replacement hardship license on April 15, 2008, that he had been operating a motor vehicle as recently as yesterday (April 14, 2008) on his previously issued hardship license which “I thought was still good, because my attorney told me I could drive on that until July 5th”.  See transcript page 8, line 2. 

During the hardship hearing of April 15, 2008, the following exchange took place

between the hearing officer and the Petitioner/defendant, occurring at page 8, lines 6

through 17:

            Hearing officer:  What did your - what did the hearing officer tell you?

            Petitioner/defendant:  Hearing officer, when I went to see the hearing officer, actually

            Hearing officer:  What did the hearing officer tell you?

            Petitioner/defendant:  The hearing, the hearing officer, you mean the Judge?

            Hearing officer:  No, the hearing officer who authorized the license.

Petitioner/defendant:  Oh, she told me I could drive on, drive, drive on this until July 4th.  Then I got a letter yesterday,

The question and answer session continued at page 8, line 23:

Hearing officer:   At the previous hearing, you’re saying the hearing officer never told you what the consequences would be if you were convicted of the DUI?

Petitioner/defendant:  I don’t know, sir.

Hearing officer:  You don’t know?

Petitioner/defendant:  She may have.

After further conversation, on page 10, line 22, the hearing officer announced that he would be reserving his ruling based upon the fact that he was not sure what happened at the last hardship hearing.  The hearing officer stated:  “I’m going to check on that and see if in fact they explained to you the consequences if convicted in court. If that’s the case, if you’re not paying attention to the hearing, and if you’re not paying attention to the hearing, those issues are important.  These hearings are not done for our welfare; they’re done for the welfare of the driving public and your welfare.  So if you’re not paying attention at these hearings, you may not be paying attention on the roadway and you could be a safety hazard on the roadway.”

            The hearing officer issued a written “Final Order” denying the Petitioner/defendant’s application for a replacement hardship license.  The hearing officer specifically found in that Final Order as follows:

During the hearing, you testified that you were driving since March 25, 2008, because you did not know that you could not drive after being convicted in a court of law.  During your previous hearing held March 11, 2008, you asked the hearing officer the consequences if convicted in court and they were explained to you.  Your continued driving shows a disregard for the laws of this State.

 

Certiorari review permits this Court to review the Order from the Department of Highway Safety and Motor Vehicles only as it pertains as to whether:

            1.  Procedural due process has been accorded;

            2.  Whether the essential requirements of the law have been observed; and

            3.  Whether the administrative findings and judgment were supported by competent substantial evidence.  See Department of Highway Safety and Motor Vehicles v Vichich, 799 So2d 1069 (Fl Appellate 2nd district 2001).

 The Petitioner/defendant herein does not assert a lack of procedural due process or a failure to follow the essential requirements of the law, but asserts that the hearing officer’s findings and judgment are not supported by substantial competent evidence.  The hearing officer announced intent to conduct additional research by discussing with the prior hearing officer whether or not the petitioner/defendant was informed that should he be convicted of driving under the influence, that his hardship driving privilege would be revoked, effective the date of his conviction.  The Petitioner/defendant acknowledged at his hearing for replacement of hardship license on April 15, 2008, that the prior hearing officer “may have” provided such an explanation.  Irregardless of the advice given to the Petitioner/defendant, the Petitioner/defendant acknowledged operating a motor vehicle after his conviction of DUI and revocation of his driver’s license and hardship permit. 

It is asserted by the Respondent, Florida Department of Highway Safety and Motor Vehicles, that the issuance of a driver’s license is an administrative function within the sole purview of the Department of Highway Safety and Motor Vehicles over which this Court has no discretion.  This Court does lack authority to order the Department to issue a restricted or hardship driver’s license to an individual, see Department of Highway Safety and Motor Vehicles v Sinclair, 697 So2d 230 (4th DCA 1997).  However, certiorari review allows this Court to review the Order from the Department of Highway Safety and Motor Vehicles to determine whether procedural due process has been accorded, whether the essential requirement of law have been observed and whether the administrative findings and judgment were supported by competent, substantial evidence, see Department of Highway Safety and Motor Vehicles v

Vichich, 799 So2d 1069 (Fl 2nd DCA 2001).  This Court may also issue a stay or suspension of administrative order suspending or revoking a driver’s license pending certiorari review, see

Department of Highway Safety and Motor Vehicles v Stockton 709 So2d 179 (Fl 5th DCA 1998). 

            In  the case at bar, the petitioner/defendant admitted to the hearing officer that he operated a motor vehicle after revocation of this license.  It is within the sole discretion of the hearing officer to grant or deny the petitioner/defendant’s request for a hardship license.  The denial is exclusively the result of the Petitioner/defendant’s honest self report that he had operated a motor vehicle after his conviction for DUI.  The petitioner/defendant testified that he had a continuing need for a hardship license based upon the fact that he needs continued medical treatment because he suffers from cancer. Although this Court disagrees with the hearing officer’s decision, there is competent evidence to support the hearing officer’s strict application of law.  The Writ of Certiorari is therefore DENIED.

            DONE AND ORDERED in Chambers, New Port Richey, Pasco County, Florida, on the _____ day of May, 2009.

 

                                                            ____________________________________

                                                            Stanley R. Mills

                                                            Primary Appellate Judge

 

                                                            _________________________________

                                                            W. Lowell Bray, Jr.

                                                            Circuit Court Judge

 

                                                            _____________________________________

                                                            Daniel D. Diskey

                                                            Circuit Court Judge

 

 

 

 

Cc:  Jason Helfant, Esq. General Counsel for

      Department of Highway Safety and Motor Vehicles

       W. Todd Smith, Esq., for Petitioner