Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Petitioner’s procedural due process rights were violated when Officer’s failure to appear at a hearing after being served with a valid subpoena denied Petitioner an opportunity to have a hearing within 30 days. Petition granted. Barese v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 11-000048AP-88B (Fla. 6th Cir. App. Ct. June 27, 2012).

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

MARC BARESE,

Petitioner,

v. Ref. No.: 11-000048AP-88B

STATE OF FLORIDA, DEPARTMENT UCN: 522011AP000048XXXXCV

OF HIGHWAY SAFETY AND MOTOR

VEHICLES,

Respondent.

_________________________________/

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

THIS CAUSE is before the Court on a Petition for Writ of Certiorari filed by the Petitioner, Marc Barese, on October 3, 2011. The Respondent, the Department of Highway Safety and Motor Vehicles (“Department”), filed a response in opposition, to which Petitioner filed a reply. For the reasons set forth below, the Petition is hereby granted.

On May 22, 2011, Petitioner was arrested for DUI and transported to the Pinellas Park Police Department where Petitioner provided breath samples which read BAC levels of .143 and .145. On May 31, 2011, Petitioner requested a formal hearing which was scheduled for 6/28/2011, and subpoenas were issued for Officer Shea (the stop officer) and Officer Piccione (the arrest officer). The officers were served with subpoenas but the Department subsequently rescheduled the hearing at the officers’ request to 7/28/2011. On 7/28/2011 counsel for Petitioner had to reschedule the hearing to 8/4/2011. New subpoenas were issued for the officers, but the subpoena for Officer Shea was rejected by the Pinellas Park Police Department because Officer Shea was unavailable for the 8/4/2011 hearing. The Formal Review hearing was rescheduled for 8/17/2011 and a new subpoena was issued and served on Officer Shea. When Officer Shea failed to appear at this hearing, Petitioner moved to exclude from consideration any evidence from Officer Shea, and moved to invalidate the suspension arguing that based on Officer Shea’s failure to appear at the hearing, there was no competent evidence of the Petitioner’s actual physical control of a motor vehicle. Petitioner argued that under Pfleger v. State, Department of Highway Safety and Motor Vehicles, 18 Fla. L. Weekly Supp. 706a (Fla. 6th Cir. App. Ct. May 20, 2011), the hearing officer’s failure to invalidate the Petitioner’s suspension due to Officer Shea’s failure to appear denied Petitioner due process. The hearing officer denied this motion and provided Petitioner eight days to seek enforcement of the subpoena. Petitioner did not avail himself of the Petition to Enforce Subpoena procedure, and the hearing officer sustained Petitioner’s suspension.

Petitioner argues that without the stopping officer present for the hearing, he had no opportunity for a full and fair hearing because he could not cross-examine the stopping officer regarding the officer’s observations and reports which were admitted against Petitioner. Citing this Court’s recent opinion in Pflegler addressing the same issue, Petitioner argues that he was denied procedural due process because he was unable to confront and cross-examine the officer within 30 days as contemplated by Department rules. Petitioner also argues that the opportunity to file an enforcement action added a procedural step to the review process that deprived Petitioner of his right to have a hearing within 30 days, and this extra burden of enforcing the subpoena should not be the burden of the Petitioner.

In reviewing the Department’s Order, this Court is limited to determining (1) whether procedural due process has been 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. Vichich v. Department of Highway Safety and Motor Vehicles, 799 So.2d 1069, 1073 (Fla. 2d DCA 2001). On review, the Circuit Appellate Court is not entitled to reweigh the evidence; it may only determine whether competent substantial evidence supports the hearing officer’s findings. Dep’t of Highway Safety & Motor Vehicles v. Stenmark, 941 So.2d 1247, 1249 (Fla. 2d DCA 2006).

The subpoenaed officer’s failure to appear denied Petitioner his right to have a meaningful review hearing within 30 days of his request. In an attempt to accord due process to both parties, the hearing officer rescheduled the hearing three different times. Despite the hearing officer’s several attempts to hold the hearing at a time convenient for the subpoenaed officers to appear, Officer Shea refused to make himself available for the hearing. Petitioner’s procedural due process rights were violated when Officer Shea’s failure to appear at the hearing after being served with a valid subpoena denied Petitioner an opportunity to have a hearing within 30 days.

The Second District Court of Appeal had not yet affirmed Pflegler at the time of the hearing officer’s decision, and therefore it cannot be said that Respondent’s position—arguing to uphold a hearing officer’s decision that carries a presumption of correctness—was so clearly devoid of merit to be completely untenable, Petitioner’s request for fees and costs is denied.

Accordingly, it is hereby

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

DONE AND ORDERED in St. Petersburg, Pinellas County, Florida, on May______, 2012.

Original order entered on June 27, 2012, by Circuit Judges Amy M. Williams, Jack Day, and Pamela A.M. Campbell.

Copies furnished to:

Kimberly A. Gibbs, Esquire Ron Smith, Esquire

Assistant General Counsel for the DHSMV Attorney for the Petitioner

P.O. Box 570066 8293-86th Avenue North

Orlando, FL 32857 Largo, FL 33777