TIMOTHY FLANARY, Petitioner, vs. STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-488 AP. DMV Case No. F456819591750. July 21, 2010. A Petition for Writ of Certiorari from a decision of the State of Florida, Department of Highway Safety and Motor Vehicles. Counsel: Lloyd H. Golburgh, for Petitioner. Jason Helfant, Office of the General Counsel, Department of Highway Safety and Motor Vehicles, for Respondent.
(Before PEDRO P. ECHARTE, JR., SCOTT J. SILVERMAN, and MIGNA SANCHEZ-LLORENS, JJ.)
(SANCHEZ-LLORENS, Judge.) This matter came to be heard on a petition for writ of certiorari filed by Petitioner Timothy Flanary, pursuant to Fla. R. Civ. P. 1.630 and Fla. R. App. P. 9.100, which seeks review of a final order entered by a Department of Highway Safety and Motor Vehicles, Bureau of Administrative Reviews Hearing Officer, in an administrative proceeding. The order was rendered on August 20, 2009, sustaining the administrative suspension of Petitioner's driver's license under §322.2615, Fla. Stat. (2007). We have jurisdiction pursuant to Art. V, § (5)(b), Fla. Const., §322.2615(13), Fla. Stat. (2007).
The standard of review for these types of administrative proceedings was set forth by the Florida Supreme Court in Haines City Community Development v. Heggs,658 So. 2d 523, 530 (Fla. 1995). When reviewing the decision, the reviewing court must determine: (1) whether or not procedural due process has been accorded; (2) whether or not the essential requirements of the law have been observed; and, (3) whether or not the findings of the hearing officer were supported by substantial competent evidence. Here, petitioner contends that the hearing officer departed from the essential requirements of law.1
Florida Highway Patrol Trooper P. Llanio arrested Petitioner Flanary for DUI on June 26, 2009, and his license was automatically suspended for refusal to submit to a Breathalyzer test. Llanio subsequently submitted to the Department of Highway Safety and Motor Vehicles Bureau of Driver Improvement (“DHSMV”) his arrest packet, consisting of various forms filled out in conjunction with Petitioner's arrest. Within ten days of the arrest and the issuance of the notice of suspension, Petitioner applied for a formal review, and had a hearing before Hearing Officer Brenda Carter on August 19, 2009.
Petitioner was not himself present at the hearing, but was represented by counsel. The only evidence against Petitioner were the documents in the arrest packet. At the close of the evidentiary portion of the hearing, counsel moved for an invalidation of the refusal suspension on the grounds that the documents submitted by the Trooper contained too many inconsistencies to sustain the burden of proof.
This Panel concludes that the hearing officer should have granted the motion to invalidate the refusal suspension because of the inconsistencies in the evidence. There was no substantial competent evidence to support her decision. Substantial competent evidence is “described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred.” De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). Here, the arrest packet did not contain substantial competent evidence of Petitioner's refusal to take the breath test. Some questions in the forms had inconsistent answers, including both “yes” and “no” answer boxes checked; the forms, printed with the same questions in English and Spanish, had different answers to the same questions in different languages; identified Petitioner as both Hispanic and non-Hispanic; had petitioner refusing to take the breath test, but not indicating that he had been given the required Implied Consent Warning; had an entire page of one form marked with answers, then crossed out with a big “refusal” written across the page.
If the department [DHSMV] is going to choose to present no live testimony but to rely exclusively on written documents, then clearly it cannot ask this Court to ignore discrepancies and inconsistencies in the written documentation where the cause of such discrepancies and inconsistencies is not explained by sworn testimony. Hall v. State of Florida, Department of Highway Safety and Motor Vehicles,4 Fla. L. Weekly Supp. 208a (Fla. 18th Jud. Circ. July 9, 1996) (granting the writ of certiorari and quashing the action of DHSMV in suspending petitioner's driver's license because there was lack of competent, substantial evidence to support the suspension or to support the hearing officer's determination that the inconsistencies between the various documents submitted by the Department were the result of “clerical errors”). Here, the Hearing Officer made her decision solely on the basis of the documents in the arrest packet, and did not hear testimony for any witnesses, such as Trooper Llanio.
Accordingly, this court grants the petition for writ of certiorari and quashes the decision of the Hearing Officer below. (ECHARTE and SILVERMAN, JJ., concur.)
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1But this Panel contends that the real problem with the Hearing Officer's decision is with the third Heggsprong, not the second.