KAY_V._DHSMV_ _2021 CA 9849 O_ _9.21.2023

from the decision of the Department of I-lighway Safety and Motor Vehicles Samantha Simpkins, Hearing Officer. Matthew P. Ferry, Esquire, for Petitioner. Mark L. Mason, Esquire, for Respondent. Before CRANER, CALDERON, and RODNGUEZ, J.J. Petitioner, Jimmy Juan Kay ("Petitioner"), seeks review of the "Final Order" issued by a hearing officer of the Department of Highway Salety and Motor Vehicles ("DHSMV" or "Respondent") denying Petitioner's request for a formal review hearing under Section 322.2615, Florida Statutes (202 I ).

FACTUAL SUMMARY

Petitioner was involved in a multiple vehicle accident on August 13, 2020. Law enforcement made contact with Petitioner at the hospital, but no arrest or citation was made or issued at that time. On August 24,2020,law enlorcement submitted a medical record subpoena request to the hospital. The results were received by law enforcement on December 2,2020. On Filing # 182356109 E-Filed 09/21/2023 03:11:28 PM [*2] December 31,2020, the Tavares Police Department filed an affidavit ofprobable cause asserting that the medical records and other circumstances supported an arrest warrant for Petitioner for Driving Under the Influence with Property Damage in violation of Section 316.193(3XcXl), Florida Statutes. Yet, records provided to the court by the parties include a Florida DUI Uniform Traffic Citation which lists December 25, 2020-six days before the affrdavit of probable cause for Petitioner's arrest was signed by law enforcement-- as the date ofthe DUI offense. Respondent asserts that on January 21,2021, it provided notice to Petitioner that his driver's license had been suspended for six months effective December 26, 2020. Yet, Petitioner asserts that he was wholly unaware ofthe suspension of his driver's liccnse until August 30, 2021. Petitioner asserts that immediately upon leaming ofthe suspension on August 30, 2021, Petitioner, through counsel, made a "Request for Formal Review Hearing." Respondent denied the request as untimely and refused Petitioner's request for a formal hearing. Standard of Review "The duty of the circuit court on certiorari review of an administrative agency is limited to three components: whether procedural due process was followed; whether there was a departure lrom the essential requirements of the law; and whether the administrative findings and judgment were supported by competent substantial evidence." Dep't of Highway Safety & Motor Vehicles v. Satter,643 So. 2d 692,695 (Fla. 5th DCA 1994); see also Education Development Center, Inc. v. City ofllest Palm Beach Zoning Bd. ofAppeals,541 So. 2d 106, 108 (Fla. 1989); City of DeerJield Beach v. Vaillant,4l9 So. 2d 624,626 (Fla. 1982). Analvsis In the instant case, Petitioner asserts that he never received notice of the suspension of his license, either at thc time of his anest nor at any later date. As reflected in both parties' briefs and the record provided to this court, there are problcmatic discrepancies in the relevant Tavarcs Police [*3] records regarding the date of the offense, the date of thc probable cause warrant application, and the date of the arrest. Furthermore, there is a critical lack of information regarding whether Petitioner was provided notice regarding the suspension, and ifso, when and how. Respondent's primary argument is that Petitioner's request for a formal hearing was untimely. Petitioner concedes that he did not make a formal request for a hearing until August 30, 2021, more than seven months after the effective date ofthe suspension as noted in his driving record. Respondent contends that the indication on Petitioner's driving record that notice was provided on January 2l,2021 conclusively establishes Petitioner's knowledge olthe suspension and that he was required by statute to file his request for a hearing within ten (10) days of that notrce. By statute and case law, the court recognizes that the date notice was provided as reflected on the driving record is deemed conclusive proof of notice. However, in this case, the driving record itselfindicates that there arc circumstances in which Respondent did not in fact mail a notice of suspension. In particular, the driving record indicates that "when a law enforcement agency provides the notice upon an arrest, a notice will not be mailed from DFISMV." Accordingly, the court finds the troubling discrepancies regarding Petitioner's date of arrest to be relevant to the question of whether Petitioner truly received notice ofthe suspension and whether Petitioner was afforded appropriate procedural due process. J [*4] In light ofthese unique discrepancies, and based on the specific facts presented here, the Court GRANTS Petitioner's Petition for Writ of Certiorari and quashes the "Final Order" denying Petitioner a formal hearing regarding his suspension. Respondent shall conduct a formal rcvicw hearing pursuant to Section 322.2615, Florida Statutes, within thirty (30) days ofthe rendition of this order. art- DONE AND ORDERED in Chambers, at Orlando, Orange County, Florida, on this f,e*.&oat day ol lis CIL NEI{ Presiding Circuit Judge CALDERON and RODItlGllEZ, J.J., concur. CERTIFICATE OF SERVICI] I HEREBY CIIRTII'Y that a true and correct copy of thc foregoing has been fumished to: Matthew P. Ferry, Lindsey & Ferry, P.A., 1150 Louisiana Avcnuc, Suite 2, Winter Park, FL 32789 at [email protected]; and Mark L. Mason, Esq., Office of General Counscl ol Department of Highway Safety and Motor Vehicles, 2900 Apalachee Way, A-432, Tallahassec, Florida32399 at [email protected], on this LI:+dav of 5er6i. ai:la . Judicial Assistant n.J U