State v. Fernandez

• Decision Date: 03 April 2013
• Docket Number: No. 3D12–581.,3D12–581.
• Citation: 114 So.3d 266
• Parties: STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, BUREAU OF ADMINISTRATIVE REVIEWS, Petitioner, v. Jose J. FERNANDEZ, Respondent.
• Court: Florida District Court of Appeals

114 So.3d 266

STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, BUREAU OF ADMINISTRATIVE REVIEWS, Petitioner,

v.Jose J. FERNANDEZ, Respondent.

No. 3D12–581.

District Court of Appeal of Florida, Third District.

April 3, 2013.

Stephen D. Hurm, General Counsel, and Damaris E. Reynolds, Assistant General Counsel, Lake Worth, for petitioner.

Halford G. Schuhmacher, Marathon, for respondent.

Before LAGOA, SALTER, and FERNANDEZ, JJ.

LAGOA, J.

The State of Florida, Department of Highway Safety and Motor Vehicles, Bureau of Administrative Reviews (“Department” or “Petitioner”) petitions this Court for a writ of certiorari to review an order from the Sixteenth Judicial Circuit's AppellateDivision. That order quashed an administrative hearing officer's suspension of Jose Fernandez's (“Fernandez” or “Respondent”) driver's license for his refusal to submit to a breath, blood, or urine test incident to an arrest for driving under the influence. For the reasons stated below, we grant the Department's petition for writ of certiorari and quash the Appellate Division's order.

I. FACTUAL AND PROCEDURAL HISTORY

Officers from the Key West Police Department arrested Fernandez for driving under the influence following a traffic stop that was conducted shortly after witnesses observed Fernandez's Jeep swerve into a lane designated for oncoming traffic, crash into a parked vehicle, and drive away dragging part of the Jeep's front bumper along the pavement. While interviewing Fernandez at the scene, the officers observed that Fernandez had red, glassy eyes, slurred speech, and the smell of alcohol on his breath. Fernandez refused to submit to roadside sobriety exercises.

After placing Fernandez under arrest, the officers asked Fernandez to provide a breath sample to measure the amount of alcohol Fernandez had consumed. Fernandez declined to submit to the breath test.

The officers gave Fernandez various implied consent warnings, including a warning that failure to submit to the breath test would result in suspension of Fernandez's driving license for at least one year. Fernandez maintained his refusal and his license was suspended administratively pursuant to section 322.2615, Florida Statutes (2011).¹

Fernandez requested a formal review of his license suspension. The Department scheduled the hearing for October 12, 2011, at the Bureau of Administrative Reviews (“Bureau”) in Marathon, Florida. In advance of the hearing, Fernandez submitted to the Department four subpoenas directed to certain Key West Police Department officers.² The Department issued the subpoenas, but modified their form by adding stamped language requiring the officers to appear telephonically from their duty stations.³

Rather than serve the modified subpoenas, Fernandez's attorney, Halford Schuhmacher, drafted new subpoenas for his own signature that required the officers to appear in person. Mr. Schuhmacher's subpoenas were returned non-served after the Key West Police Department's patrol liaison refused to accept service, explaining that she was not authorized to accept service of subpoenas other than those approved by the Bureau.⁴

On October 12, 2011, Fernandez's attorney appeared at the Bureau and requested a continuance of the hearing to seek enforcement of the subpoenas.⁵ The hearing officer, appearing telephonically from Miami,continued the hearing until November 1, 2011, and sent Fernandez a notice of hearing that indicated the continued proceedings would take place at the hearing officer's business address in Miami, Florida.⁶

On November 1, 2011, Fernandez's Miami counsel appeared in person at the Miami address identified in the notice of hearing, and Mr. Schuhmacher appeared telephonically on Fernandez's behalf. Before taking evidence, the hearing officer overruled several objections and denied various motions argued by Fernandez's attorneys, including motions to invalidate the license suspension based on the police department's refusal to accept service of Mr. Schuhmacher's subpoenas and improper venue. Fernandez did not attend or participate in the formal review hearing and no witnesses testified. The only evidence received by the hearing officer consisted of the documents forwarded to the Department by the Key West Police Department.⁷ Following the hearing, the hearing officer entered an order affirming the Department's suspension of Fernandez's driving license.

Fernandez filed a petition for first-tier certiorari review in the Appellate Division of the Sixteenth Judicial Circuit Court. The Appellate Division granted certiorari and quashed the hearing officer's order, reasoning that the hearing officer failed to convene the formal review hearing “in Monroe County” by appearing telephonically from an office in Miami in contravention of section 322.2615(6)(b), Florida Statutes (2011) (requiring that a formal hearing be “held before a hearing officer”) (emphasis added), and Florida Administrative Code Rule 15A–6.009, (providing that, absent driver's consent, venue for formal review hearing is in the judicial circuit where the notice of suspension was issued). The Appellate Division concluded that the hearing officer's failure to appear in person in Monroe County deprived Fernandez of the right “to be physically present before the hearing officer” and thereby violated procedural due process:

[T]here has been no legislative authorization, nor has any rule or case been cited which unequivocally allows the Department, to have the presiding hearing officer “appear” by telephone in the judicial circuit where venue is mandated unless the “consent of the driver” to a change of venue is first obtained, pursuant to F.A.C. Rule 15–A–6.009 and Fla. R. Jud. Adm. 2.530(d)(1).... [T]he Court finds that the failure to accord a hearing at which the hearing officer physically appears in the statutorily designated judicial circuit, and wherein a Petitioner has the right to physically appear before the hearing officer for the hearing, does not comply with Section 322.2615(6)(b) or the rules set forth above.

The Department timely filed this petition for second-tier certiorari seeking review of the Appellate Division's opinion.

II ANALYSIS

The standard governing the disposition of a petition for second-tier certiorari in a district court is narrow: “[T]he district court must determine whether the decision of the circuit court ... is a departurefrom the essential requirements of law resulting in a miscarriage of justice.” Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 87 So.3d 712, 725 (Fla.2012); see also State, Dep't of Highway Safety & Motor Vehicles v. Freeman, 63 So.3d 23, 25–26 (Fla. 3d DCA 2011). The circuit court's decision is said to depart from the essential requirements of law where the circuit court fails to afford procedural due process or fails to apply the correct law. Nader, 87 So.3d at 722–23 (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530–31 (Fla.1995)).

Where, as here, a petition for second-tier certiorari is premised on a circuit court's failure to apply the correct law, the circuit court's decision must violate a “clearly established principle of law” resulting in a miscarriage of justice. See Nader, 87 So.3d at 723. “ ‘[C]learly established law’ can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law.” Id. (quoting Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003)) (emphasis in original). Thus, “a district court may grant a writ of certiorari after determining that the decision is in conflict with the relevant statute, so long as the legal error is also ‘sufficiently egregious or fundamental to fall within the limited scope’ of certiorari jurisdiction.” Nader, 87 So.3d at 723 (quoting Kaklamanos, 843 So.2d at 890). Because “statutes also constitute ‘clearly established law,’ ... a district court can use second-tier certiorari to correct a circuit court decision that departed from the essential requirements of statutory law.” Nader, 87 So.3d at 727.

The Department argues that the Appellate Division failed to apply the correct law when it read section 322.2615(6)(b), Florida Statutes (2001), Florida Administrative Code Rule 15A–6.009, and Florida Rule of Judicial Administration 2.530(d)(1) to require that the hearing be conducted in the physical presence of the hearing officers.

We find that the Appellate Division's reading of section 322.2615(6)(b), Florida Statutes, is a departure from the essential requirements of law as it violates a clearly established principle of law by “disobey[ing] the plain language of the statute.” Nader, 87 So.3d at 723.Section 322.2615(6)(b) provides in relevant part:

[The] formal review hearing shall be held before a hearing officer employed by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas [for certain officers and witnesses] ..., regulate the course and conduct of the hearing, question witnesses, and make a ruling on the suspension.

(emphasis added). The Appellate Division construed the words “before a hearing officer” to mean “in the physical presence of a hearing officer.”

The Appellate Division's statutory construction isolates the words “before a hearing officer” from the subsection's remaining language, particularly, the terms authorizing the hearing officer to “regulate the course and conduct of the hearing.” § 322.2615(6)(b). Reading the unambiguous terms of the statute together, it is clear that while the Legislature intended a hearing officer to preside over formal review hearings, it left the manner in which the hearing would proceed to the hearing officer's discretion. Construing the statute to prohibit the hearing officer from appearing telephonically, when appropriate, fails to give meaning to the statute at issue.

This reading of the statute finds support...