Lacy Faith Gordon v. State of Florida, Department of Highway Safety And Motor Vehicles, Division of Driver Licenses, Bureau of Administrative Reviews , 2015 Fla. App. LEXIS 8800 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LACEY FAITH GORDON,
Petitioner,
v.
STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND
MOTOR VEHICLES, DIVISION OF DRIVER LICENSES, BUREAU OF
ADMINISTRATIVE REVIEWS,
Respondent.
No. 4D14-4827
[June 10, 2015]
Petition for writ of certiorari to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Peter Blanc, Meenu Sasser and Lisa
Small, Judges; L.T. Case No. 502013CA011969XXXXMB.
Ira D. Karmelin, West Palm Beach, for petitioner.
Stephen D. Hurm and Jason Helfant, Lake Worth, for respondent.
WARNER, J.
Petitioner seeks second tier review of a decision of the circuit court
sitting in its appellate capacity. The decision quashed a license
suspension by an administrative hearing officer and remanded for a
further hearing. We deny relief. Although petitioner’s license suspension
expired during the pendency of the appellate proceedings, and appellant
claims that we should quash the circuit court’s order, thus invalidating
her license suspension, we disagree, and certify conflict with McLaughlin
v. Department of Highway Safety and Motor Vehicles, 128 So. 3d 815 (Fla.
2d DCA 2012).
Petitioner was arrested for driving under the influence (“DUI”). She
refused to submit to breath testing. She was issued a DUI uniform
citation, suspending her driver’s license for one year. She timely applied
for a formal review hearing to challenge this suspension. At the hearing,
the Department of Highway Safety and Motor Vehicles (“the Department”)
relied on the reports of the arresting officer pursuant to section
322.2615(11), Florida Statutes (2013), including a Refusal Affidavit signed
by the officer and attesting that he was a duly certified law enforcement
officer. The petitioner introduced in evidence the arresting officer’s original
basic training certificate which showed an expiration date in 2006 and
then argued that the Department had failed to present evidence that the
officer was properly certified, because the original certificate had expired.
The hearing officer rejected that claim, relying on the documentary
evidence, and approved the license suspension under section
322.2615(1)(a), Florida Statutes (2013).
Petitioner filed a petition for writ of certiorari to the circuit court. That
court first quashed the hearing officer’s order based upon a series of cases
from the circuit which had held that where the suspended driver produced
some evidence challenging the officer’s certification, the burden shifted to
the Department to prove that the officer was currently certified as a law
enforcement officer. However, during the pendency of the Department’s
motion for rehearing, the circuit court receded from prior cases and
determined that submission of the law enforcement officer’s original
certificate by the suspended driver did not shift the burden to the
Department to prove that the law enforcement officer was currently
certified, where the Refusal Affidavit included the certification of the officer
that he was duly certified. Moya v. Dep’t of Highway Safety & Motor
Vehicles, 21 Fla. L. Weekly Supp. 995a (Fla. 15th Cir. Ct. 2014).
Consistent with the relief allowed in Moya, because the petitioner may
have relied on the prior opinions of the circuit, the court determined that
petitioner should be entitled to present additional evidence, if she could,
to show that the officer was not properly certified. Therefore, it quashed
the hearing officer’s order and remanded for a hearing at which petitioner
could present whatever evidence she had. The opinion placed no burden
on the Department to provide additional evidence of the officer’s
certification.
During the pendency of the Department’s motion for rehearing,
petitioner’s license suspension expired. Petitioner moved the court to
quash the hearing officer’s order but declare further proceedings moot,
pursuant to McLaughlin. Thus, the license suspension would be
determined to be invalid. The Department objected, noting that the license
suspension was not moot because of the additional consequences which
follow a license suspension. The circuit court denied rehearing, and this
petition was filed.
Our standard of review in second tier certiorari is limited to whether
the circuit court afforded procedural due process and whether it applied
the correct law. See City of Deerfield Beach v. Vaillant, 419 So. 2d 624,
626 (Fla. 1982). Petitioner makes two main arguments. First, she
2
contends the circuit court’s remand to allow the submission of evidence
that the officer possessed a valid certificate was inappropriate and an
unauthorized “second bite of the apple,” thus violating her due process
rights. However, as to this argument, she misconstrues the circuit court’s
order. The circuit court correctly found that the Department had
submitted sufficient evidence of the officer’s certification by relying on the
report of the officer in which he attested that he was a duly certified officer.
As the hearing officer is permitted by statute to rely on such evidence, the
Department carried its initial burden. See Dep’t of Highway Safety & Motor
Vehicles v. Mowry, 794 So. 2d 657, 658 (Fla. 5th DCA 2001); §
322.2615(11), Fla. Stat. (2013). The court held, as a matter of law, that
petitioner’s submission of the officer’s original basic recruit certification
(which expired years before) was insufficient to overcome the officer’s
certification and shift the burden to the Department to offer further proof.
The only reason that the court quashed the order and remanded for an
additional hearing was to allow petitioner, not respondent, to submit other
evidence, if available, to show that the officer was not properly certified.
The court did not provide the Department with a second bite at the apple;
it allowed the petitioner a second bite. The court did not deny petitioner
due process.
Second, she contends that because her license suspension expired
during the pendency of the proceedings, when the circuit court quashed
the hearing officer’s order, the validity of the license suspension became
moot, relying on McLaughlin and Forth v. Department of Highway Safety
and Motor Vehicles, 148 So. 3d 781 (Fla. 2d DCA 2014). Therefore, she
claims that the circuit court did not apply the correct law in remanding for
further proceedings. In McLaughlin, the second district quashed a circuit
court order denying certiorari relief from an administrative decision
upholding a license suspension, based on the supreme court’s decision in
Florida Department of Highway Safety and Motor Vehicles v. Hernandez, 74
So. 3d 1070 (Fla. 2011). McLaughlin, 128 So. 3d at 815. It directed the
circuit court to quash the administrative order upholding the license
suspension. Nevertheless, because the license suspension had expired
during appellate review, no further proceedings were necessary on remand
other than quashal of the administrative order.
In Forth, the circuit court had quashed a hearing officer’s order
upholding a license suspension because of a due process violation. The
circuit court remanded for further proceedings. During the certiorari
hearing, the license suspension expired. When Forth sought second tier
review, he sought only to quash the remand to the hearing officer for
further proceedings. Based upon McLaughlin, the Second District granted
the petition, concluding that the circuit court had failed to follow the
3
correct law by ordering a new administrative hearing. It quashed the order
insofar as the circuit court remanded for further proceedings, but it did
not disturb that part of the circuit court’s opinion quashing the
administrative order holding the suspension valid.
We disagree with the Second District that the validity of the license
suspension is moot once the term of the suspension expires. As the
Department notes, the license suspension has other consequences. A
license suspension remains on a driving record for many years into the
future. A future DUI or a refusal to take a breath test would call for
consideration of the prior record, and the driver could face longer
administrative penalties for each one, as well as prohibitions against
issuance of a restricted driver’s license. See, e.g., §§ 322.2615(8)(a),(b) and
322.271(2)(a), Fla. Stat. (2013). Because of these effects, the matter is not
moot.
For the foregoing reasons, we conclude that the circuit court neither
denied petitioner due process, nor failed to apply the correct law. We deny
the petition.
GROSS and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
4