Case No. GCG99-3800
May 3, 2000

LOUIE MIXON HOLMES, III,

Petitioner,

vs.

DEPARTMENT OF HIGHWAY SAFETY, AND MOTOR VEHICLES,

Respondent.

____________________________

This matter is before the court on a petition for writ of certiorari. This court convened oral arguments in this cause on April 4, 2000. This court has jurisdiction. Petitioner, Louie Mixon Holmes, sought review of an order of Respondent, the Department of Highway Safety, and Motor Vehicles, suspending his driver license. Fla. R. App. P. 9.030(c); § 322.31, Fla. Stat. (1999). Petition denied.

On August 12, 1999 at approximately 11:34 p.m., Officer Kemper of the Lakeland Police Department stopped Petitioner’s vehicle for weaving inside its lane, and exceeding the posted speed limit. Officer Kemper detected the odor of alcohol on Petitioner’s breath and asked him to perform field sobriety tests. Petitioner demonstrated difficulty understanding the officer’s directions and repeatedly asked questions about how to perform the tests. Petitioner was unsteady on his feet, and had difficulty following directions after they were explained.

Officer Kemper arrested Petitioner for DUI and transported him to Lakeland Police Station. Officer Kemper read the Implied Consent Warning and Petitioner refused to submit to a blood, breath, or alcohol test. Instead, Petitioner asked to speak with his attorney. Officer Kemper explained that Petitioner was not entitled to speak to an attorney, and the consequences of refusing to submit to the test. Petitioner advised Officer Kemper that he suffered from Attention Deficit Disorder and Dyslexia. Officer Kemper allowed Petitioner time to read the citations before signing them, but Petitioner refused to submit to the tests until he could talk with is attorney. Petitioner states that he was "unable to submit to the breath test" because the officers would not permit him to telephone his attorney.

Petitioner requested and received an administrative hearing on the license suspension on April 30, 1999. That hearing was continued to October 28, 1999. The hearing officer found: 1) the officer had probable cause to believe that Petitioner was operating a motor vehicle while under the influence of alcoholic beverage; 2) the officer lawfully charged Petitioner with a violation of 316.193; 3) the officer informed Petitioner of the consequences of refusal to submit to blood, breath, or urine test; and 4) Petitioner refused to submit to a blood, breath, or urine test. The order is dated November 4, 1999.

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).

Petitioner raises several points in this cause: 1) maintenance logs on the radar device were not current; 2) weaving inside a traffic lane does not establish "an objective basis" for stopping Petitioner’s vehicle; 3) Petitioner did not refuse to submit to a blood, breath or urine test; 4) officers confused Petitioner by refusing to allow Petitioner to speak with his attorney; and 5) Respondent failed to rule within the time constraints set forth in section 322.2615(6)(d). Following oral arguments, this court denied relief on Petitioner’s first four points after finding that the hearing officer followed the essential requirements of the law, and the ruling was based on competent substantial evidence. The fifth point is addressed below.

Section 322.2615, Florida Statutes (1999) states the time constraints following a formal hearing under section 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 argued that notice was mailed twelve days after October 28, 1999 as indicated by the postmark date of November 9, 1999. Respondent countered that its interpretation of the enabling statute controls, and that the department had seven working days to comply. However, "administrative construction of a statute, the legislative history of its enactment and other extraneous matters are properly considered only in the construction of a statute of doubtful meaning." Donato v. American Tel. & Tel. Co., 2000 WL 44043, 7 (Fla. 2000). This statute is unambiguous.

In this instance, the statute plainly states that the Respondent has seven working days to comply after the formal hearing. The hearing ended on October 28, 1999, a Thursday. Counting seven working days from October 28, the seventh day falls on Monday, November 8, 1999. The order is dated November 4, 1999. 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.’ Thus, the plain meaning of the statute is distinguishable from the interpretation offered by Petitioner.

While Petitioner argues that the postmark establishes that the notice is untimely, he cites no support for his position. Courts in other districts have held that the postmark alone is not sufficient to overcome prima facie proof of service. See Nesslein v. Nesslien, 672 So. 2d 582 (Fla. 3d DCA 1996) (holding that the certificate of service is prima facie proof that service was effectuated on the date sworn to by counsel, and postal cancellation date is insufficient to rebut prima facie compliance); Migliore v. Milgiore, 717 so. 2d 1077, 1079 (Fla. 4^th DCA 1998) (holding that postmark after time for rehearing had expired is insufficient to rebut proof that service was effectuated on date sworn to by attorney). In this instance, the notice contains no proof of service or filing date stamp, only the dated signature of the hearing officer. Nevertheless, this court finds that the dated signature of the hearing officer authorized transmittal of Respondent’s official opinion of facts and evidence presented at the formal hearing on April 30, and October 28, 1999. As such, the notice is deemed timely having been sent on November 4, 1999.

For the foregoing reasons, it is hereby ORDERED that the petition for writ of certiorari is DENIED.

ORDERED 3 May 2000.

Charles B. Curry

Chief Judge