GCG-01-1042 - Addison v. DHMV

TENTH JUDICIAL CIRCUIT COURT FOR HARDEE, HIGHLANDS AND
POLK COUNTY, FLORIDA

Case No.: GCG-01-1042

DEWEY ADDISON, JR.,

Petitioner,

vs.

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES,

Respondent.

_________________________________________/

OPINION OF THE COURT

This matter is before the court on a petition for writ of certiorari. Petitioner, Dewey Addison, Jr., sought review of an order of respondent, the Department of Highway Safety, and Motor Vehicles, suspending his driver license. This court has jurisdiction. Fla. R. App. P. 9.030(c)(2001); Fla. Stat. ' 322.31(2000). Petition GRANTED.

On January 26, 2001, Deputy Cook responded to a call regarding a truck that had driven into a lake. Upon his arrival at the scene, the deputy spoke with a witness who had seen a black truck run off the road and into a lake. The witness told the deputy that he then observed the truck drive out of the lake and head south on Crystal Beach Road. While traveling on Crystal Beach Road, in an attempt to locate the black truck, Deputy Cook observed the petitioner's vehicle pull out of a driveway on Crystal Beach Road and head south at a high rate of speed. The deputy then observed the vehicle, while traveling at a high rate of speed, swerve into the northbound lane several times and straddle the center lane. Based on his observations, Deputy Cook initiated a traffic stop.

Upon making contact with the petitioner, Deputy Cook detected the odor of alcohol on his breath, and observed that his eyes were watery, his face was flush, and his clothes were wet and dirty. Deputy Cook asked the petitioner if he had been drinking and petitioner replied that he had consumed four drinks at the Apple Lounge with his sergeant and that he was with the Sheriff's Office. While exiting his vehicle the petitioner stumbled. The petitioner agreed to perform the following field sobriety exercises requested by Deputy Cook: horizontal gaze nystagmus, one leg stand and walk and turn. The petitioner performed poorly on the field sobriety exercises and based on his poor performance, the deputy arrested him for DUI and advised him of his rights. Deputy Cook then asked the petitioner to explain where he had been earlier and what had happened with the truck in the lake. The petitioner explained that he is a police officer and he had been drinking with his Sergeant, Patrick Renney, and another man at the Apple Lounge. Renney subsequently drove off in his black pickup truck and drove it into a lake. Petitioner helped Renney get his truck out of the lake. He further stated that he had left his keys in Renney's truck and was attempting to catch him when Deputy Cook pulled him over.

Petitioner was read the implied consent warning and agreed to submit to a breath test. Based on his breath tests results of .110 and .118, the deputy issued the petitioner citations for DUI driving with an unlawful blood alcohol level and suspended his driving privilege pursuant to Florida Statute ' 322.2615(1)(a) (2000). Petitioner requested a formal review of his driver's license suspension pursuant to Florida Statute ' 322.2615 (1)(b)(3) (2000). A formal hearing was conducted on February 28, 2000. Deputy Cook and the breath test operator, Deputy LaChance, testified at the formal review hearing. Having considered the evidence presented and the record evidence, the hearing officer determined that the preponderance of the evidence supported the suspension of the petitioner's driver's license. The Department informed the petitioner in an order dated March 13, 2001, that the suspension of his driving privilege was sustained. The petitioner seeks review from that order.

II.

When reviewing an administrative proceeding in a petition for writ of certiorari, this court must determine whether the hearing officer followed the essential requirements of the law, whether the petitioner was afforded due process, and whether the decision below is supported by competent substantial evidence. Haines City Community Development v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). In a certiorari proceeding, the court's review is restricted solely to the evidence presented during the proceedings before the Department. Fort Lauderdale Board of Adjustment v. Nash, 413 So.2d 855 (Fla. 4^th DCA 1982). The reviewing court does not reweigh or evaluate the evidence, but merely examines the record to determine whether the tribunal or agency had before it competent substantial evidence to support it findings and judgment, which also must be in accord with the essential requirements of the law. DegGroot v. Sheffield, 95 So.2d 912 (Fla. 1957).

III.

Petitioner raises several points in this cause: 1) the hearing officer denied petitioner's right to due process of law by thwarting counsel=s examination of the arresting officer; 2) the hearing officer improperly admitted evidence; and 3)the hearing officer departed from the essential requirements of the law by failing to rule within the time constraints set forth in '322.2615(6)(d), Florida Statutes (2000). The court finds the first and second points to be without merit, however, the third point is addressed below.

Section 322.2615, Florida Statutes (2000), states the time constraints following a formal hearing under ' 322.2615(4) as follows:

(6)(d) The department must, within 7 working days after a formal review hearing, send notice to the person of the hearing officer's decision as to whether sufficient cause exists to sustain, amend, or invalidate the suspension.

Petitioner argues that the hearing officer did not render a timely final order because the hearing was completed on February 28, 2001, but the final order was not rendered until March 13, 2001, nine (9) business days after completion of the hearing. Furthermore, the petitioner argues that the order was not sent until March 14, 2001, according to the postmark, which is ten (10) business days after completion of the hearing, contrary to Florida law. Respondent contends that the final order was timely filed under Rule 15A-6013(11), Florida Administrative Code.

Section 322.2615 (6)(d) , Florida Statutes (2000), provides that, [t]he department must, within 7 working days after a formal review hearing, send notice to the person of the hearing officer's decision as to whether sufficient cause exists to sustain, amend, or invalidate the suspension.@ In computing the time period required by the statute, the day of the hearing is not included and the last day of the period is included unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day. See Fla. R. Civ. P. 1.090(a); Fla. Stat. 683.01(1). Further, the statute requires notice be sent within seven working days of the hearing. Send means to cause to be carried; dispatch convey, or transmit..

Similarly, Rule 15A-6.004, Florida Administrative Code (2000), states that, A[i]n computing any period of time required by these rules, by order of a hearing officer, or by an applicable statute, the day of the act, event or default from which the designated period of time begins to run shall not be in included. However, the rule further provides that A[t]he last day of the period so computed shall be included unless it is a Saturday, Sunday, legal holiday or any other day in which the applicable division office is closed in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, legal holiday or other day in which the applicable division office is closed. (emphasis added). This language expanding the time period to include the Aother day in which the applicable division office is closed improperly enlarges the time limit provided in the statute. Helton v. Department of Motor Vehicles, 5 Fla. L. Weekly Supp. 351 (Fla. 9^th Cir. Ct. Jan. 7, 1998) (citing DeMario v. Franklin Mortgage & Investment Co., Inc., 648 So.2d 210, 214 (Fla. 4^th DCA 1994) (A[a]n administrative agency may not enlarge, modify, or contravene the provisions of a statute., rev. denied, 659 So.2d 1086 (Fla. 1995). Therefore, section 322.2615(6)(d), Florida Statutes governs. In this case, the hearing ended February 28, 2001. Pursuant to Florida Statute ' 322.2615(6)(d) the hearing officer was required to render an order within seven working days after the formal review hearing, which in this case would have been Friday, March 9, 2001. It is undisputed that the order sustaining the petitioner=s suspension was not rendered until March 13, 2001. Accordingly, the respondent failed to comply with the time constraints as provided by Florida law.

For the foregoing reasons, it is hereby ORDERED that the petition for writ of certiorari is GRANTED. The Order of the Hearing Officer sustaining the plaintiff's suspension is hereby quashed, and the plaintiff's driver's license shall be reinstated, subject to any proceedings other than this one.

ORDERED July 2001.

Charles B. Curry, Chief Judge