Tynan v. DEPARTMENT OF HIGHWAY SAFETY, 5D05-1109.

• Decision Date: 09 September 2005
• Docket Number: No. 5D05-1109.,5D05-1109.
• Parties: Amy TYNAN, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
• Court: Florida District Court of Appeals

909 So.2d 991

Amy TYNAN, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.

No. 5D05-1109.

District Court of Appeal of Florida, Fifth District.

September 9, 2005.

Stuart I. Hyman, of Stuart I. Hyman, P.A., Orlando, for Petitioner.

Jason Helfant, Assistant General Counsel, Miami, for Respondent.

SHARP, W., J.

Tynan, Petitioner, seeks certiorari review of a circuit court's appellate decision which upheld a final order suspending her driver's license. She contends the circuit court failed to apply the correct law with regard to four issues. One we find has merit: that a second hearing regarding Tynan's license suspension was improperly conducted because, at the time of the second hearing, a motion for clarification of an order granting her petition for writ of certiorari regarding the first license suspension hearing, was pending in the circuit court. Accordingly, we grant the writ.

The facts underlying this cause began April 25, 2002, when Tynan was stopped by a police officer because she was driving erratically. She was transported to a DUI testing facility, and her breath tests resulted in .140 and .139 blood alcohol levels. Pursuant to section 316.193, Florida Statutes, Tynan's driver's license was suspended.

Tynan requested a formal hearing, pursuant to section 322.2615 Florida Statutes. A hearing was conducted before Department Administrative Review Hearing Officer Louise Montalvo.

Tynan challenged the admissibility of the intoxilyzer results (machine number 66-1646). She called as a witness Marcie Padron, custodian for the records on the breath test machines for the Orange County Sheriff's Office. Padron produced and identified test results for that machine for April 29, 2002 and May 7, 2002.

Tynan sought to impeach the test results of the machine as follows:

1. The testing solutions were not properly approved by the FDLE pursuant to Rule 11D-8.0035.

2. The testing machine Tynan was tested on was never properly approved by the FDLE pursuant to Rule 11D-8.003 for use in Florida.

3. Annual inspections pursuant to Rule 11D-8.004 had not been performed, approved solutions had not been used, and inspections had not been conducted properly.

4. The specific machine used to test Tynan had its components improperly modified by the manufacturer and these modifications had never been approved by the FDLE.

5. Simulator solutions used in the inspections did not comply with Rule 11D-8.0035(1)(d) with regard to having a two (2) year shelf life after manufacture.

In order to substantiate those challenges, Tynan sought to subpoena Florida Department of Law Enforcement employees Roger Skipper, Laura Barfield and Tom Wood. However Montalvo refused to issue subpoenas for those persons. At the end of the hearing, she entered an order on June 6, 2002 finding probable cause to stop and arrest Tynan and that Tynan had an unlawful blood alcohol level. Montalvo upheld the six months license suspension and denied Tynan's attacks on the validity of the breath test results.

Tynan sought certiorari review of this order by a three judge panel of the circuit court, arguing that the hearing officer erred in refusing to issue subpoenas to Skipper, Wood and Barfield. The circuit court granted the petition, finding that the Department's failure to issue the subpoenas violated Tynan's due process rights, because it denied her an opportunity to demonstrate the Department's alleged non-compliance with the administrative rules. The circuit court panel granted the petition and remanded for further proceedings.

Because the original hearing officer, Montalvo, retired in November, another officer, Jim Kuritz, was assigned to conduct a second formal review hearing, on November 6, 2003. Tynan objected to having the hearing conducted before a new officer who had not heard the evidence presented at the first hearing.¹ This time subpoenas were issued and served on Skipper, Barfield and Wood. Skipper appeared and was questioned about the testing and procedures for intoxilyzer machines. Tynan also relied on Padron's testimony from the earlier hearing, and Padron did not testify at this hearing.

Although Skipper testified at the hearing, neither Wood nor Barfield appeared. Tynan moved to set aside the suspension because Wood's and Barfield's failure to appear hindered her ability to demonstrate that the machine used in this case was not approved for use in Florida. Hearing Officer Kuritz continued the hearing for 30 days to allow Tynan to enforce the subpoenas through the courts. The hearing was set to resume on December 12, 2003.

Before the date the hearing was to resume, the Department filed a motion for clarification of the circuit court's order granting the petition for writ of certiorari. It argued that Tynan and the Department disagreed as to whether or not the circuit court intended, on remand, that the Department hold a subsequent formal hearing.

While this motion was pending in the circuit court, the date for the continued hearing arrived. Tynan moved to abate the hearing until the circuit court acted on the Department's motion. She pointed out that the hearing officer lacked jurisdiction to proceed until the circuit court disposed of the motion for clarification.

The hearing officer denied the motion. At the hearing Tynan also objected to holding the hearing, because she had not sought enforcement of the subpoenas for Barfield and Wood, relying on her understanding that the hearing would not go forward without the circuit court's ruling on the Department's motion for clarification.

At the second hearing, Tynan introduced in evidence photographs and repair invoices showing different pressure switches, power supplies and processor boards and potentiometers in different intoxilyzer machines in Florida. She also submitted the testimony of Barfield from a separate court case pertaining to the absence of manuals for the approval of the breath tests. She moved to set aside the suspension of her license based on Barfield's testimony in another case that the intoxilyzers were never properly approved, because no operator or maintenance manuals were ever submitted. She also renewed her objections from the prior hearing concerning the test results because of: (1) failure to establish the shelf life of the testing solutions, (2) failure to establish that a monthly printer check was performed on the machine and (3) failure to establish that the testing machine was approved.

On December 18, 2003, the hearing officer entered a final order denying Tynan's motions and objections, and upholding the suspension of her driver's license for DUI.

Tynan then sought certiorari review of this order in the circuit court. She claimed she was denied due process because a successor hearing officer made a decision in a case where the predecessor had heard a substantial amount of evidence. She also argued that the Department lacked jurisdiction to hold a hearing at the same time that there was a motion filed by it pending in the circuit court to clarify its prior certiorari order rendered in the same case. The circuit court denied the petition.

This court has jurisdiction to review the circuit court's decision by a second petition for writ of certiorari. See § 35.043, Fla. Stat.; Fla. R.App. P. 9.030(b)(2)(B); Haines City Comm. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). However, we are limited to a determination of whether or not the circuit court afforded procedural due process, and whether or not the circuit court applied the correct law. See Heggs; Department of Highway Safety & Motor Vehicles v. Perry, 751 So.2d 1277, 1279 (Fla. 5th DCA 2000)

; Conahan v. Department of Highway Safety & Motor Vehicles, 619 So.2d 988 (Fla. 5th DCA 1993).

A circuit court's review of an administrative decision by certiorari is limited to three considerations: (1) was petitioner accorded procedural due process; (2) were the essential requirements of the law observed and (3) are the administrative findings supported by competent substantial evidence. See City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla. 1982)

. See also Education Development Ctr. Inc. v. City of West Palm Beach, Zoning Bd. of Appeals, 541 So.2d 106 (Fla. 1989).

Tynan argues that it was error for the Department to go forward with a second hearing before a different hearing officer, and that the Department should simply have restored her driver's license. After review by certiorari an appellate court can only quash the lower court's order. It has no authority to direct the lower court to enter contrary orders. See Broward County v. G.B.V. International, Ltd., 787 So.2d 838 (Fla.2001)

; Snyder v. Douglas, 647 So.2d 275 (Fla. 2d DCA 1994); ABG Real Estate Dev. Co. of Florida, Inc. v. St. Johns County, 608 So.2d 59 (Fla. 5th DCA 1992),

cause dismissed, 613 So.2d 8 (Fla.1993); Nat'l Adver. Co. v. Broward County, 491 So.2d 1262 (Fla. 4th DCA 1986); Gulf Oil Realty Co. v. Windhover Ass'n, Inc., 403 So.2d 476 (Fla. 5th DCA 1981). See also William A. Haddad, The Common Law Writ of Certiorari in Florida, 29 U. Fla. L.Rev. 207, 225 (1977).

We think that implicit in the circuit court's order originally quashing the order suspending Tynan's license was its ruling that without the testimony of the witnesses she sought, the hearing violated her due process rights to present a defense. Thus, on remand, the Department had the discretion to conduct an evidentiary hearing in a fashion that would accord Tynan due process. Both parties were confused in this case as to what the basis for the circuit court's ruling was, and the Department sought clarification. In any event, having failed to accord Tynan due process in the first hearing, the Department had the right to conduct a hearing which met due process requirements. That included presentation of evidence to a different hearing...