Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Revocation – Petitioner could have proceeded upon petition for writ of certiorari from the Order revoking his driver's license issued by the Department of Highway Safety and Motor Vehicles.  However, Petitioner requested further judicial review.  A hearing was conducted before the hearing officer and review proceeded in this appellate court upon the Order issued by the hearing officer.  Competent substantial evidence supported hearing officer's determination that Petitioner had three prior DUI convictions and appellate court not to reweigh the evidence.  Amended petition for writ of certiorari denied.  McArthur v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 10-000059AP-88A (Fla. 6th Cir. App. Ct. January 13, 2012).

 

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

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

ERIC SEAN MCARTHUR,

          Petitioner,

                                                                      Case No. 10-000059AP-88A

                                                                      UCN522010AP000059XXXXCV

 

 

v.

 

STATE OF FLORIDA, DEPARTMENT

OF HIGHWAY SAFETY AND MOTOR

VEHICLES,

      Respondent.             

______________________________________/

 

Opinion Filed  ______________

 

Petition for Writ of Certiorari from

Decision of Hearing Officer

Bureau of Administrative Reviews

Department of Highway Safety

and Motor Vehicles

 

Lynley B. Flagler, Esq.

Attorney for Petitioner

 

Stephen D. Hurm, Gen. Counsel

Kimberly A. Gibbs, Asst. Gen. Counsel

Attorneys for Respondent

 

 

PER CURIAM.

          Eric Sean McArthur seeks certiorari review of the "Final Order" of the Hearing Officer of the Bureau of Administrative Reviews, Department of Highway Safety and Motor Vehicles entered on December 23, 2010.  The Final Order affirmed the revocation of Mr. McArthur's driving privileges for a period of ten years pursuant to section 322.27 and 322.28(2)(a)(3) Florida Statutes (2010).  The Amended Petition for Writ of Certiorari is denied.

Statement of Case

          On November 2, 2010, Mr. McArthur entered a plea in Pinellas County Court to the charge of driving under the influence (DUI).  An "Order of License Revocation, Suspension, or Cancellation" was issued by the Department of Highway Safety and Motor Vehicles, Division of Driver Licenses on November 19, 2010.  The Order informed Mr. McArthur that his driving privileges had been revoked for a period of ten years effective November 2, 2010.  The order stated that the basis of the revocation was

          CONVICTED IN COUNTY COURT, PINELLAS COUNTY, FLORIDA FOR THE OFFENSE OF DRIVING UNDER THE INFLUENCE/PROPERTY DAMAGE/PERSONAL INJURY, ON APRIL 10, 2010, WHICH WAS YOUR 3RD CONVICTION OF DUI.

 

          OFFENSE DATE 04-10-2010   CASE NO. 1797XEF

          ALL OTHER CONVICTIONS AS EXPLAINED ABOVE ARE LISTED BELOW:

 

            OFFENSE DATE  CONV. DATE                COURT        ENTRY            DESCRIPTION         CASE NO.

 

            04-28-99                            06-10-99           VA                 0.0 PTS          DRIVING UNDER             0000

                                                                                                            THE INFLUENCE

 

            03-12-06                            11-20-07          HLSBRGH      0.0 PTS          DRIVING UNDER             1XCA

                                                                                                            THE INFLUENCE

 

          Mr. McArthur filed a "Request for Record Review and Hearing" pursuant to section 322.271, Florida Statutes (2010).  The Department granted an administrative hearing that was scheduled for December 23, 2010.  On December 20, 2010, Mr. McArthur filed a petition for writ of certiorari. 

          The administrative hearing was conducted on December 23, 2010.  Although Mr. McArthur did not appear, he was represented by counsel.  Counsel objected on the basis of hearsay to the admission into evidence of Mr. McArthur's driving record from the State of Virginia dated August 22, 2002.  The driving record states that Mr. McArthur was convicted of driving while intoxicated on August 10, 1999, and his license was suspended from June 10, 1999, through June 10, 2000.  The hearing officer denied counsel's hearsay objection.  Mr. McArthur's driving record from the State of Virginia dated July 12, 2010, submitted by counsel for Mr. McArthur also was admitted into evidence  The 2010 Virginia driving record does not reflect the DUI conviction of August 10, 1999, or the suspension of June 10, 1999.

          Mr. McArthur requested that the hearing officer reconsider the ten-year revocation because allegedly there was no competent, substantial evidence to support it as the driving records from Virginia were in conflict concerning the DUI conviction.[1]  The request was denied.  The revocation of Mr. McArthur's driver's license for ten years based on a third DUI conviction was affirmed and the December 23, 2010, Final Order was issued. 

          Standard of Review

          Circuit court certiorari review of an administrative agency decision is governed by a three-part standard: (1) whether procedural due process is accorded; (2) whether the essential requirements of law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial evidence.  See Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). 

Analysis

          Issue One:  "Whether the appellate court departed from the essential requirements of law by ordering Petitioner to supplement the record, and if so if that evidence can be considered after a petition for writ of certiorari has been filed."

 

          The question of whether this Court departed from the essential requirements of law should not be presented in a petition for writ of certiorari filed with this Court, but may be presented in a second-tier certiorari proceeding to the Second District Court of Appeal.  State, Dept. of Highway Safety and Motor Vehicles v. Freeman, 63 So. 3d 23, 25-26 (Fla. 3d DCA 2011).  However, in the interest of justice, this Court will provide a comment upon the argument presented by Mr. McArthur.

          In the original petition for writ of certiorari, Mr. McArthur asserted that the November 19, 2010, "Order of License Revocation, Suspension, or Cancellation" was not supported by substantial, competent evidence and that he was denied due process of law because he was denied a hearing on the matter.[2]  Included with the petition was the notice of the December 23, 2010, hearing before the Department.  Because the petition was filed prior to the scheduled evidentiary hearing, this Court directed Mr. McArthur to file a status report after the evidentiary hearing to indicate whether the petition for writ of certiorari had been rendered moot by the hearing officer's decision.

          On January 31, 2011, after the evidentiary hearing, Mr. McArthur filed a status report indicating that the revocation of his driver's license had been affirmed.  This Court then directed Mr. McArthur to file an Amended Petition for Writ of Certiorari with an appendix that included the transcript of the December 23, 2010, hearing in order to proceed to challenge the ten-year revocation of his driver's license. 

          In his Amended Petition for Writ of Certiorari, Mr. McArthur claims that this Court erred when it required him to file the amended petition as this Court is required to review only the evidence before the Department when it entered the November 19, 2010, "Order of License Revocation, Suspension, or Cancellation."[3]  He argues, "Because Petitioner was not given a hearing within thirty days of the Department's order, there is no indication in the record that any other materials were furnished to and/or reviewed by the [Department] prior to the filing of the [original] Petition for Writ of Certiorari."

          Mr. McArthur appears to be asserting that the Department was required to conduct the requested evidentiary hearing within thirty days of the issuance of the November 19, 2010, "Order of License Revocation, Suspension, or Cancellation" or the evidence presented at the hearing cannot be considered by this Court.  This argument is without merit. 

          Mr. McArthur acknowledges that he served on the Department a "Request for Record Review and Hearing" of the November 19, 2010, Order revoking his license for ten years.  The certificate of service on Mr. McArthur's hearing request states that the request was mailed to the Department on December 1, 2010.  (App. C, Amended App. C). 

          Section 322.271(1)(a) states in pertinent part:

          Upon the suspension, cancellation, or revocation of the driver's license of any person as authorized or required in this chapter, . . . the department shall immediately notify the licensee and, upon his or her request, shall afford him or her an opportunity for a hearing pursuant to chapter 120, as early as practicable within not more than 30 days after receipt of such request . . . .

 

(Emphasis added).  Therefore, thirty days from the December 1, 2010, date of mailing the request, (without considering the date of receipt of the request by the Department), would require the hearing to have been conducted on or before December 31, 2010.  See Fla. R. Civ. P. 1.090(e).  The hearing was scheduled and timely conducted on December 23, 2010.  This Court may consider the evidence presented at the timely evidentiary hearing that was conducted at the request of Mr. McArthur.

          Issue Two:  "The Order revoking Petitioner's driver's license by the Department is not supported by substantial competent evidence."

 

          In support of its response to the petition, the Department filed an appendix containing the State of Florida, Department of Highway Safety and Motor Vehicles "Transcript of Driving Record" with a "search date" of June 21, 2011.  The Department asserts that Mr. McArthur's Florida driving record was before the hearing officer at the December 23, 2010, hearing.  However, the transcript of the administrative hearing reveals that the only exhibit admitted into evidence for the State was the driving record from the State of Virginia dated August 22, 2002.  (App. G, ex. 1; Resp. App. 2).  The only other exhibit admitted into evidence at the hearing was Mr. McArthur's driving record from the State of Virginia dated July 12, 2010; a defense exhibit.  (App. G, ex. 2).  Because the appellate record fails to show that the Florida driving record was considered by the hearing officer or admitted into evidence at the December 23, 2010, hearing, this Court will not consider it.

          Pursuant to section 90.803(8), Florida Statutes (2010), the public records exception, the 2002 driving record is admissible "unless the sources of information or other circumstances show lack of trustworthiness."  The burden is on the party opposing the introduction to prove the untrustworthiness of the records.  If the opposing party is unable to carry this burden, then the record properly is allowed into evidence.  Love v. Garcia, 634 So. 2d 158, 160 (Fla. 1994).

          At the hearing, Mr. McArthur presented a hearsay objection to the admission into evidence of the 2002 Virginia driving record based on the assertion the record was not trustworthy.  The hearing officer overruled the objection and determined that the driving record was admissible.  Therefore, it follows that the hearing officer made the determination that Mr. McArthur failed to meet his burden to demonstrate that the 2002 Virginia driving record lacked trustworthiness.  This Court concludes that the hearing officer observed the essential requirements of law when he made this determination.

          This Court must review the record and determine whether the hearing officer's decision is supported by competent, substantial evidence.  See Florida Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1092 (Fla. 2000).  Competent, substantial evidence is tantamount to legally sufficient evidence.  Id.  This Court is not to reweigh the evidence; but only may review the evidence to determine whether it supports the hearing officer's findings.  Dep't of Highway Safety and Motor Vehicles v. Stenmark, 941 So. 2d 1247, 1249 (Fla. 2d DCA 2006).  As stated in Newman v. State, 174 So. 2d 479, 481 (Fla. 2d DCA 1965), "[O]n certiorari the court will not ordinarily review conflicting testimony, but only such absence of evidence as results in injury sufficient to amount to a departure from the essential requirements of law."

          Mr. McArthur asserts he is not asking this Court to reweigh the evidence and determine whether the 2002 Virginia driving record or the 2010 Virginia driving record is more reliable, but is asserting that since the two records are inconsistent, the Department has failed to show by competent substantial evidence that Mr. McArthur has three prior DUI convictions.

          The fact that there are apparent inconsistencies in the two records is not to be considered by this Court in evaluating the merits of a petition for writ of certiorari.  Upon a review of the evidence before the hearing officer, this Court concludes that the 2002 Virginia driving record constitutes competent, substantial evidence that Mr. McArthur was convicted of DUI in Virginia in 1999.  It was not a departure from the essential requirements of law for the hearing officer to have affirmed the Order revoking Mr. McArthur's driver's license for ten years.

          The Amended Petition for Writ of Certiorari is denied.

 

          DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this 13th  day of January, 2012

 

 

Original order entered on January 13, 2012, by Circuit Judges Linda R. Allan, W. Douglas Baird, and John A. Schaefer.

 

 

Copies furnished to:

 

Lynley B. Flagler, Esq.

710 94th Avenue North

St. Petersburg, FL 33702

 

Stephen D. Hurm, Gen. Counsel

Kimberly A. Gibbs, Asst. Gen. Counsel

Dep't of Hwy. Safety & Motor Vehicles

P.O. Box 570066

Orlando, FL 32857

 


[1]   Mr. McArthur does not challenge the fact that he was convicted of DUI in Hillsborough County, Florida in 2007.

 

[2]   This Court notes that Mr. McArthur's due process argument in the original petition is without merit.  See Dawson v. State, Dep't of Highway Safety and Motor Vehicles, 19 So. 3d 1001, 1004 (Fla. 4th DCA 2009) (citing Dept. of Highway Safety & Motor Vehicles v. Davis, 775 So. 2d 989 (Fla. 1st DCA 2000) (holding revocation of driving privileges without prior notice or opportunity to be heard did not violate due process clause because the driver could have requested a hearing upon receipt of order of revocation and Department would have been required to hold such hearing within thirty days of its receipt of the request)).

[3]   Although Mr. McArthur could have proceeded upon only the petition for writ of certiorari to challenge the November 19, 2010, Order revoking his driver's license, he chose instead to request further judicial review of the Order by filing the "Request for Record Review and Hearing."  See e.g. Vichich v. Dep't of Highway Safety and Motor Vehicles, 799 So. 2d 1069 (Fla. 2d DCA 2001).  Therefore, it was appropriate after the evidentiary hearing to have an amended petition for writ of certiorari filed that addressed the arguments and evidence presented at that hearing.