Bradsheer v. Dept. of Highway Safety

Decision Date25 September 2009
Docket NumberNo. 1D07-6610.,1D07-6610.
Citation20 So.3d 915
PartiesMichael BRADSHEER and Michael K. Johnson, Appellants, v. FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, and Electra Theodorides-Bustle, in her capacity as its Executive Director, Appellees.
CourtFlorida District Court of Appeals

M. Stephen Turner and David K. Miller and Kelly Overstreet Johnson of Broad and Cassel, Tallahassee, for Appellants.

Bill McCollum, Attorney General, and George Waas, Special Counsel, and Enoch J. Whitney, Assistant Attorney General, and Craig Feiser, Deputy Solicitor General, Tallahassee, for Appellees.


Appellants challenge a final judgment dismissing their amended complaint with prejudice for failing to state a cause of action. We affirm in part, reverse in part, and remand for further fact-finding on the following claims: (1) declaratory and injunctive relief regarding an alleged violation of federal due process; (2) declaratory and injunctive relief regarding an alleged violation of state due process; and (3) declaratory and injunctive relief regarding an alleged violation of the state prohibition against unauthorized agency penalties.


In 2002, the legislature amended the statutes governing driving under the influence (DUI) to provide two ways in which a convicted driver could be required to install and maintain an ignition interlock device on his or her vehicle.1 First, according to section 316.1937(1), Florida Statutes (2002), a sentencing court had discretion to impose the device, in addition to any other authorized penalty, upon a drivers initial DUI offense. Second, according to section 316.1937(2)(a)(3), Florida Statutes (2002), a sentencing court was required to impose the device when the driver received a second DUI conviction. Despite these provisions, sentencing courts frequently did not order the installation of the device, even in instances where the requirement would be mandatory.

Beginning in 2004, the Florida Department of Highway Safety and Motor Vehicles (the Department) began to send letters to all drivers previously convicted of DUI. The letters ordered the drivers to install and maintain an ignition interlock device on their vehicles. Some of the drivers who received the letters had not been sentenced by the trial court to install the devices. If the drivers failed to comply, the Department threatened to suspend their licenses.

Subsequent cases clarified that the requirement to install an ignition interlock device as part of a criminal sentence could come only from the trial court. The cases held the Department did not have authority to require the device as part of a defendant's DUI sentence as it was a state agency, not a sentencing court, and had no independent statutory authority. See Embrey v. Dickenson, 906 So.2d 316, 318 (Fla. 1st DCA 2005); Dickenson v. Aultman, 905 So.2d 169, 171-72 (Fla. 3d DCA 2005); Doyon v. Dept. of Highway Safety & Motor Vehicles, 902 So.2d 842, 844 (Fla. 4th DCA 2005). In response to these cases, the legislature enacted section 322.2715, Florida Statutes (2005). Among other things, this provision authorized the Department to require the installation of the device whenever the sentencing court failed to order its mandatory placement. See § 322.2715(4), Fla. Stat. However, the provision did not have retroactive effect; its application was limited to DUI convictions which occur[ed] on or after July 1, 2005. Id.

In short, prior to July 1, 2005, the Department was not authorized to require any DUI offender to install the ignition interlock device unless the installation had been ordered by the trial court. Nevertheless, the Department issued letters to all DUI offenders, including those convicted before July 1, 2005, requiring the device, even in cases where it lacked the authority to do so.

Appellants have brought their claims on behalf of all licensed drivers convicted of DUI and sentenced before July 1, 2005, yet subsequently required by the Department to install an ignition interlock device.2 Appellant hopes to have this group certified as a class. In an amended complaint, Appellants raised five claims. The first three were federal law claims. The last two were state law claims.

The trial court granted Appellees motion to dismiss all five claims with prejudice. Regarding the federal law claims, it found Appellants failed to allege a deprivation of a federally protected right. Regarding the state law claims, it found sovereign immunity shielded the State from reimbursing any monetary damages. Appellants now contest the dismissal.


In Count I, Appellants seek recovery under 42 U.S.C. § 1983 for an alleged deprivation of a Fourteenth Amendment property right: their licenses to drive. Appellants claim they were deprived of due process, alleging their licenses were jeopardized without adequate notice of their rights or opportunity for a hearing. When bringing a section 1983 claim alleging a denial of procedural due process, three elements must be shown: (1) a deprivation of a constitutionally-protected [] property interest; (2) state action; and (3) constitutionally-inadequate process. Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir.2003); see also Arrington v. Helms, 438 F.3d 1336, 1347 (11th Cir. 2006). Therefore, in conducting a section 1983 due process analysis, we must first determine whether a party has been deprived of a federally protected property right.

State law defines the parameters of a plaintiffs property interest for purposes of section 1983. Key W. Harbour Dev. Corp. v. City of Key W., Fla., 987 F.2d 723, 727 (11th Cir.1993); see also Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) (finding a federally protected property interest is decided by reference to state law); Riley v. St. Louis County of Mo., 153 F.3d 627, 630 (8th Cir.1998) (stating Section 1983 does not create substantive rights; rather, state law establishes the property interest). Once state law has determined the substance of a property interest, federal law defines the process that is due. See Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir.1988).

A claim rises to the level of a federally protected property interest only if a plaintiff can show he/she is entitled to it under state law. See Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (stating a property interest requires a legitimate claim of entitlement); Ezekwo v. New York City Health & Hosps. Corp., 940 F.2d 775, 782 (2d Cir.1991). The mere receipt of a privilege or benefit from the government does not create entitlement; therefore, privileges traditionally do not rise to the level of a property interest cognizable under section 1983. See Lim v. Cent. DuPage Hosp., 871 F.2d 644, 648 (7th Cir.1989) (stating a contract right merely to specified procedures ... is not a property right in the constitutional sense); see also Beauchene v. Commr., Maine Dept. of Health & Human Servs., 2006 WL 1669432, *1 (Maine Superior Ct.2006) (finding a patients freedom and level of supervision at a psychiatric hospital were privileges, not constitutionally protected property rights, and therefore did not involve section 1983). An examination of pertinent case law reveals different fact patterns, resulting in different conclusions by appellate courts, as to whether a driver's license in Florida is recognized as a privilege or an entitlement.

In some cases, the Florida Supreme Court clearly defines drivers' licenses as privileges. According to Lite v. State, 617 So.2d 1058, 1060 (Fla.1993),

there is no property interest in possessing a drivers license. Rather, driving is a privilege, and the privilege can be taken away or encumbered as a means of meeting a legitimate legislative goal.

(emphasis added); see also Bolware v. State, 995 So.2d 268, 274 (Fla.2008) (stating [historically, Florida courts have viewed a license to drive on our state roads as a privilege, not a right:); Lescher v. Fla. Dept. of Highway Safety & Motor Vehicles, 985 So.2d 1078, 1083 (Fla.2008) (quoting Lite's holding that there is no property interest in possessing a drivers license); City of Miami v. Aronovitz, 114 So.2d 784, 787 (Fla.1959) (stating the acquisition of a drivers license is a privilege); Smith v. City of Gainesville, 93 So.2d 105, 106 (Fla.1957) (stating a drivers license is a privilege, subject to proper regulations and does not endow the holder thereof with an absolute property right in the use of the public highway).

In other cases, the distinction between a privilege and property right, at least when applied to drivers licenses, is not determinative of whether Fourteenth Amendment rights attach. See Souter v. Dept. of Highway Safety & Motor Vehicles, 310 So.2d 314, 315 (Fla. 1st DCA 1975). Since the revocation of a drivers license may affect the drivers livelihood, we have found drivers licenses warrant due process protections under the Fourteenth Amendment. Id. (finding a person must be given the opportunity to present his case at a hearing either before or after license revocation); Dept. of Highway Safety & Motor Vehicles v. Pitts, 815 So.2d 738, 743 (Fla. 1st DCA 2002) (stating the suspension of a drivers license implicates a protectable property interest and due process applies to its denial); Wheeler v. Dept. of Highway Safety & Motor Vehicles, 297 So.2d 128, 129-30 (Fla. 2d DCA 1974) (finding a driver is entitled to a hearing before his license is suspended).

There are also federal cases that treat drivers' licenses as property interests meriting protection, regardless of their classification as privileges. For example, in Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), the Supreme Court stated:

Once licenses are issued, as in petitioners case, their continued possession may become essential in the pursuit of a livelihood. Suspension of...

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