Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – cancellation of special supervision services program (SSS Program) – evidence.  The revocation of Petitioner’s restricted driver’s license was not supported by substantial, competent evidence.  Petition granted.   Truxton v. State of Florida, DHSMV, No. 10-CA-005908-WS (Fla. 6th Cir. App. Ct. January 28, 2011). 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

JEFFREY TRUXTON,     

                        Petitioner,

 

v.                                                                                 Case No: 51-2010-CA-005908-WS/P

                                                                                   

 

STATE OF FLORIDA,

DEPARTMENT OF HIGHWAY SAFETY

AND MOTOR VEHICLES,

DIVISION OF DRIVERS LICENSES                                          

                        Respondent.                                                           

__________________________________/

 

Petition for Writ of Certiorari

 

Luke Lirot, Esq.

for Petitioner

 

Heather Rose Cramer, Esq.

Assistant General Counsel

Department of Highway Safety & Motor Vehicles

for Respondent

 

 

 

ORDER AND OPINION

 

            Petitioner challenges the order revoking his restricted driver’s license and cancelling his participation in the Special Supervision Services Program, entered on June 26, 2010 and DUI Counterattack’s decision to uphold the cancellation.  The basis of Petitioner’s restricted driver’s license revocation was based on an alleged self-disclosure on a medical history form that he had consumed alcohol.  Petitioner argues that his restricted license was improperly revoked because the hearing officer failed to rely on competent, substantial evidence.  Upon consideration, the Petition for Writ of Certiorari is hereby granted.

 

 

FACTUAL BACKGROUND

On December 1, 2005, Petitioner was arrested for DUI.  Since he had been previously convicted of other DUIs, Petitioner’s license was revoked for ten years.  About two years later, Petitioner applied for a restricted driver’s license.  Petitioner enrolled in the Special Supervision Program with Suncoast Safety Council on November 6, 2008.  Petitioner was issued a restricted license with a condition that he not consume any alcohol. 

On March 3, 2009, Petitioner went to the emergency room at Mease Dunedin Hospital with severe stomach pains.  When Petitioner filled out a form titled “Medical History,” he wrote “10 a week” under the “Alcohol Use” section.  Petitioner claims that he was only indicating his prior alcohol and tobacco use after the prompting of his sister, Cathy Killian, a licensed practical nurse.  Specifically, Petitioner claims that he has not consumed alcohol since his DUI in December of 2005. 

Kathy K. Childers, a registered nurse with Mease Dunedin Hospital, recorded that Petitioner used alcohol weekly in the primary assessment form in the “alcohol use grid.”  On April 28, 2010, a representative from the Suncoast Safety Council called Ms. Childers to clarify the medical records.  According to the system notes, Ms. Childers stated when a client fills out the medical history form some responses do not necessarily reflect the past and could be present.  The other form that contains the alcohol use grid has questions that are asked by the nurse or doctor and not taken from other forms.  This grid is supposed to be for current status.  Ms. Childers later wrote in a May 19, 2010 letter that the information contained in the primary assessment is provided from the medical history form that is completed by the patient at the time of arrival.  Ms. Childers noted that it was not uncommon for patients to refer to history when answering both historical and current medical questions if they feel it may be relevant to their current condition.  Finally, according to her notes, Ms. Childers stated that there was no indication that Petitioner had been drinking during his time in the triage.  The Suncoast Safety Council’s and DUI Counterattack’s hearing officers relied upon the medical forms and their conversation with Ms. Childers in determining that Petitioner’s restricted license should be revoked.            

                On April 28, 2010, Suncoast Safety Council sent a letter recommending the cancellation of Petitioner’s hardship license and his removal from the DUI program for noncompliance with its regulations based upon the March 3, 2009 medical report indicating Petitioner’s weekly use of alcohol.  On May 7, 2010, the DHSMV revoked Petitioner’s driving privileges.  Petitioner appealed to DUI Counterattack, which resulted in a finding that the termination was appropriate, on June 26, 2010.  Petitioner timely filed this Petition for Writ of Certiorari.

  

                    

STANDARD OF REVIEW

            This Court’s scope of review is limited to whether the Suncoast Safety Council’s actions afforded Petitioner procedural due process; observed the essential requirements of law; and were supported by substantial, competent evidence.  DHSMV v. Haskins, 752 So. 2d 625 (Fla. 2d DCA 1999); Campbell v. Vetter, 392 So. 2d 6 (Fla. 4th DCA 1980).  Here, the only issue to be addressed is whether the decision was supported by substantial, competent evidence. 

 

 

 

LAW AND ANALYSIS

An appellate court shall not retry a case or reweigh conflicting evidence submitted to the trier of fact.  Instead, this court must determine if the evidence was legally sufficient.  See, Jones v. State, 790 So. 2d 1194, 1196-97 (Fla. 1st DCA 2001); Dep’t of Highway Safety & Motor Vehicles v. Satter, 643 So. 2d 692, 695 (Fla. 5th DCA 1994).  After all conflicts in the evidence and all reasonable inferences have been resolved in favor of upholding the hearing officer’s decision, an appellate court must determine whether there was substantial, competent evidence to support the revocation of Petitioner’s restricted driver’s license.  See, Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981); Dep’t of Highway Safety & Motor Vehicles v. Favino, 667 So. 2d 305, 309 (Fla. 1st DCA 1995).

Considering the evidence in the light most favorable to upholding the revocation of Petitioner’s restricted license, we find that the administrative findings of the hearing officer were not supported by competent and substantial evidence.  While some of the evidence could be considered competent as it came from individuals in a position to have immediate knowledge, the evidence was not substantial due to its vagueness.  The medical history form completed by Petitioner did not define a time frame.  Since the common interpretation of “history” refers to the past, when Petitioner consumed alcohol is unclear.  The ambiguity of Petitioner’s statement is not clarified by any of Ms. Childer’s responses because she never referred to Petitioner specifically, but to patients in general.  Therefore, the evidence relied upon the Suncoast Safety Council was not specific enough to be substantial.

The Suncoast Safety Council erred in recommending the cancellation of Petitioner’s restricted driver’s license to the Department of Highway Safety and Motor Vehicles.  While some of the evidence could be considered competent, it was not substantial.  To have been considered substantial, some evidence as to when Petitioner consumed alcohol was necessary.  It is therefore,

 

ORDERED AND ADJUDGED that Petitioner’s Petition for Writ of Certiorari is hereby GRANTED.

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 28th day of January 2011.

 

Original order entered on January 28, 2011 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.