in the circuit court of the - Ninth Judicial Circuit Court of Florida

IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR ORANGE COUNTY, FLORIDA
JUAN ORTIZ,
Petitioner,
v. CASE NO.: 2009-CA-33536-O
WRIT NO.: 09-43
STATE OF FLORIDA, DEPARTMENT
OF HIGHWAY SAFETY AND MOTOR
VEHICLES, BUREAU OF DRIVER
IMPROVEMENT,
Respondent.
/
Petition for Writ of Certiorari
From the Florida Department of
Highway Safety and Motor Vehicles,
Donna Petty, Hearing Officer.
Matthews R. Bark, Esquire,
for Petitioner.
Kimberly A. Gibbs, Esquire,
for Respondent.
Before THORPE, MCDONALD, and J. ADAMS, J.J.
PER CURIAM.
FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI
Petitioner Juan Ortiz (“Ortiz”) timely filed this petition seeking certiorari review of the
Florida Department of Highway Safety and Motor Vehicles’ (the “Department”) “Findings of
Fact, Conclusions of Law and Decision,” sustaining the suspension of his driver’s license
pursuant to section 322.2615, Florida Statutes, for refusing to submit to a breath test. This Court
has jurisdiction pursuant to section 322.2615(13), Florida Statutes, and Florida Rule of Appellate

Procedure 9.030(c).
Facts and Procedural History
On August 12, 2009, Officer Bradley Bakeman, of the Orlando Police Department
(“OPD”), arrested Ortiz for DUI and transported him to the DUI testing center. At the DUI
testing center, Officer Steven Adams, also of OPD, assisted Officer Bakeman in subduing and
observing Ortiz because Ortiz was combative and uncooperative. Officer Bakeman requested
that Ortiz submit to a breath test, and Ortiz refused to cooperate. Therefore, the Department
suspended Ortiz’s driving privilege.
Pursuant to section 322.2615, Florida Statutes, Ortiz requested a formal review of his
license suspension. On September 16, 2009, Hearing Officer Donna Petty held a formal review
at which Ortiz did not appear but was represented by counsel. Prior to the hearing, the hearing
officer issued subpoenas for Officers Bakeman and Adams, as well as one other OPD officer.
Officer Bakeman and the other officer appeared for the hearing, but Officer Adams failed to
appear.
Ortiz’s counsel called Officer Adams as a witness, and upon confirming that Officer
Adams was not present, the hearing officer asked whether Ortiz could produce an Affidavit of
Service. After Ortiz’s counsel produced the Affidavit of Service, the hearing officer asked him to
proffer the purpose of Officer Adams’s appearance. Ortiz’s counsel proffered the relevance of
Officer Adams’s testimony; specifically, that he was a witness to Ortiz’s condition on the night
of the arrest, and therefore he would be able to corroborate or dispel the other officers’
testimonies concerning Ortiz. The hearing officer commented that she did not find Officer
Adams to be a “critical” witness, but she would allow the record to remain open for two business
days for Officer Adams to show just cause for failing to appear. She stated that, if Officer Adams
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were to show just cause, then she would continue the hearing. However, if he did not show just
cause, the suspension would not be invalidated based on his non-appearance. She then advised
Ortiz’s counsel that he could choose to seek enforcement of the subpoena through the circuit
court. She concluded by asking Ortiz’s counsel if he had any other issues or evidence. In
response, Ortiz’s counsel raised a separate objection, unrelated to Officer Adams’s nonappearance,
which the hearing officer denied.
Then, the hearing officer asked again, “[D]o you have any other issues?” 1 Ortiz’s counsel
answered, “Not an objection, it’s just a question.” 2 Ortiz’s counsel then began to ask the hearing
officer questions concerning the process that would occur in attempting to compel Officer
Adams to appear and rendering a decision regarding Ortiz’s license suspension. Ortiz’s counsel
emphasized his concern regarding whether his client would be granted a temporary driving
permit during the pendency of the petition for enforcement of Officer Adams’s subpoena. The
hearing officer’s responses are summarized as follows. If Officer Adams shows just cause for his
failure to appear, then the hearing will be continued. If he does not show just cause, the license
suspension will not be invalidated due to his non-appearance. Nonetheless, Ortiz can petition the
circuit court for enforcement of the subpoena. However, the hearing officer will not await the
decision of the circuit court before entering her decision because her decision is not based on the
circuit court. Finally, Ortiz may be eligible for a temporary permit in the interim, but that
decision could not be determined at that time.
After the series of questions and answers, Ortiz’s counsel responded, “Okay” and “I’m
just trying to get the information so that I can do what’s in my client’s best interests, that’s all.” 3
The hearing officer then concluded the hearing by confirming that the evidentiary portion of the
1 See Petition for Writ of Certiorari, Exhibit 1 at page 21, line 23.
2 See Petition for Writ of Certiorari, Exhibit 1 at page 21, lines 24-25 (emphasis added).
3 See Petition for Writ of Certiorari, Exhibit 1 at page 25, lines 11-15 (emphasis added).
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proceedings would remain open for two days to allow Officer Adams to show just cause, and if
he failed to do so, a final order would be rendered no later than seven working days from the
close of the review.
Officer Adams did not show just cause for failing to appear. Therefore, the hearing
officer entered her decision on September 23, 2009, sustaining the suspension of Ortiz’s driver’s
license. Ortiz never petitioned the circuit court for enforcement of Officer Adams’s subpoena.
Discussion of Law
The Court’s review of an administrative agency decision is governed by a three-part
standard of review: 1) whether procedural due process was accorded; 2) whether the essential
requirements of the law were observed; and 3) whether the decision was supported by competent
substantial evidence. Broward County v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 843 (Fla. 2001)
(citing City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982)). “It is neither the
function nor the prerogative of a circuit judge to reweigh evidence and make findings [of fact]
when [undertaking] a review of a decision of an administrative forum.” Dep’t of Highway Safety
& Motor Vehicles v. Allen, 539 So. 2d 20, 21 (Fla. 5th DCA 1989).
In a case where an individual’s license is suspended for refusing to submit to a breath,
blood, or urine test, “the hearing officer shall determine by a preponderance of the evidence
whether sufficient cause exists to sustain, amend, or invalidate the suspension.” § 322.2615(7),
Fla. Stat. (2009). The hearing officer’s scope of review is limited to the following issues:
1. Whether the law enforcement officer had probable cause to believe that
the person whose license was suspended was driving or in actual physical
control of a motor vehicle in this state while under the influence of
alcoholic beverages or chemical or controlled substances.
2. Whether the person whose license was suspended refused to submit to
any such test after being requested to do so by a law enforcement officer
or correctional officer.
3. Whether the person whose license was suspended was told that if he or
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she refused to submit to such test his or her privilege to operate a motor
vehicle would be suspended for a period of 1 year or, in the case of a
second or subsequent refusal, for a period of 18 months.
§ 322.2615(7)(b), Fla. Stat. (2009).
In his petition, Ortiz argues that his right to due process was violated when the hearing
officer entered her decision, sustaining the suspension of Ortiz’s driving privilege, before Ortiz
had the opportunity to petition the circuit court for enforcement of Officer Adams’s subpoena.
Ortiz also argues that the hearing officer failed to observe the essential requirements of the law
when she applied a “critical” standard, as opposed to the “relevant” standard, to determine the
admissibility of Officer Adams’s testimony.
On the contrary, the Department argues that due process was accorded because the
hearing officer explained the procedure to Ortiz’s counsel, counsel did not object to the
procedure, and it was Ortiz’s burden to seek enforcement of the subpoena in the circuit court,
which he never did. Furthermore, the Department asserts that this Court should not consider
Ortiz’s due process argument because he failed to raise it during the formal review.
Procedural Due Process Accorded
Because Ortiz failed to object, during the formal review, to the procedure proposed and
performed by the hearing officer, this Court would not normally consider the argument that the
procedure amounted to a violation of his due process rights. See Garnetti v. State, Dep’t of
Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 28a (Fla. 9th Cir. Ct. June 4, 2004)
(holding that an argument not raised during an administrative hearing will not be considered
upon petition for writ of certiorari, thereby applying to certiorari review of administrative
proceedings the familiar rule of law that matters not raised before a trial court should not be
considered on appeal) (citing Supinski v. Omni Healthcare P.A., 853 So. 2d 526, 532 n.2 (Fla.
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5th DCA 2003)). However, Ortiz argues that he never had the opportunity to object because he
assumed that he would be notified as to whether Officer Adams showed just cause, and he
assumed that the hearing officer would not render a decision until he had the opportunity to
petition the circuit court for enforcement of the subpoena. Furthermore, Ortiz complains that the
hearing officer never offered him a continuance.
First, at no time during the formal review did the hearing officer suggest that the
Department would take the initiative to inform Ortiz as to whether Officer Adams showed just
cause, and Ortiz has failed to demonstrate any reasonable basis for such an assumption. Ortiz’s
counsel asked several questions concerning the procedure, and the hearing officer answered all
of them. Counsel never asked whether he would be notified concerning Officer Adams’s
showing of just cause, though he had every opportunity to do so. Furthermore, there is no
evidence in the record, nor does Ortiz argue, that he made any attempt to ascertain whether
Officer Adams showed just cause.
Second, the hearing officer clearly and unequivocally stated that the evidentiary portion
of the hearing would remain open for two days and, if Officer Adams failed to show just cause,
the hearing officer would render a decision no later than seven working days from the close of
the review. Ortiz did not object to this procedure. Furthermore, there is no evidence in the record,
nor does Ortiz argue, that he took any action after two days had past to determine whether
Officer Adams showed just cause, to request a continuance, or to petition the circuit court for
enforcement of the subpoena. In fact, Ortiz never requested a continuance for the purpose of
compelling Officer Adams to attend, and he never petitioned the circuit court for enforcement of
the subpoena.
Ortiz failed to utilize any of the several measurers available to exercise his due process
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ights. At no time during the formal review did he object to the proposed procedure. He never
requested a continuance for the purpose of seeking enforcement of Officer Adams’s subpoena.
He never attempted to ascertain whether Office Adams showed just cause, and he never
petitioned the circuit court for enforcement of the subpoena. Nonetheless, he now claims that the
procedure violated his due process rights. He now faults the hearing officer for not offering him a
continuance, and he now blames the Department for not prompting him to petition the circuit
court for enforcement of the subpoena. We find that it is not the Department’s duty to advocate
for Ortiz’s best interests, but rather, it is his attorney’s duty. Therefore, we find that due process
was accorded when the hearing officer explained a procedure to Ortiz’s counsel, Ortiz’s counsel
did not object, and the hearing officer performed the procedure exactly as she explained it.
“Critical” vs. “Relevant”
Contrary to Ortiz’s argument in his petition, the hearing officer did not apply a “critical”
standard to determine the admissibility of Officer Adams’s testimony. In fact, she never rendered
any decision as to whether Officer Adams’s testimony was admissible, nor did she quash the
subpoena. Rather, she clearly stated her position that, if Officer Adams’s were to show just cause
within two days, she would continued the formal review and hear his testimony. Therefore, the
hearing officer’s statement that she did not find Officer Adams to be “critical” is moot and
ineffective, as Ortiz admits in his Reply. 4 Furthermore, Ortiz failed to raise this objection during
the formal review, and thus he is barred from raising it before this Court. See Garnetti, 12 Fla. L.
Weekly Supp. 28a. Therefore, we find that the hearing officer observed the essential
requirements of the law.
Based on the foregoing, it is hereby ORDERED AND ADJUDGED that the Petition for
Writ of Certiorari is DENIED.
4 See Ortiz’s Reply at page 13.
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DONE AND ORDERED in Chambers, at Orlando, Orange County, Florida on this the
____22______ day of ____February________________, 2011.
__/S/_________________________
JANET C. THORPE
Circuit Judge
_/S/___________________________
ROGER J. MCDONALD
Circuit Judge
_/S/__________________________
JOHN H. ADAMS, SR.
Circuit Judge
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been
furnished via U.S. mail to: Matthews R. Bark, Esq., Jaeger & Blankner, 217 East Ivanhoe
Boulevard North, Orlando, Florida 32804 and Kimberly A. Gibbs, Esq., Department of
Highway Safety and Motor Vehicles – Legal Office, Post Office Box 570066, Orlando, Florida
32857 on the _____22_____ day of _______February_____________, 2011.
_/S/_________________________
Judicial Assistant
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