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Petition for Writ of Certiorari —ADMINISTRATIVE—Department of Highway Safety and Motor Vehicles — car illegally parked on shoulder of limited access roadway in potential violation of 316.1945(1)(a)11 provided objective basis for traffic stop and therefore reasonable suspicion for law enforcement to detain driver to conduct investigation —Petition DENIED. Andrix Johnson v. State, DHSMV, No. 20-CA-5394 (Fla. 13th Jud. Cir., Jan. 25, 2021)


Petition for Certiorari to review quasi-judicial action: - Gaps in Petitioners’ attempt to demonstrate RP-2 rezoning application’s consistency with the comprehensive plan failed to shift burden to the County to show consistency with the plan or a public interest in maintaining the current zoning. Even if the burden had shifted to the County to do so, the record contains competent, substantial evidence of legitimate public interest in maintaining the current zoning. Petition denied. Balm Road Investment, LLC; Cassidy Holdings, LLC; Ballen Investment, LLC; Highway 301 Investors, LLC; Mcgrady Road Investments, LLC V Hillsborough County, No. 19-CA-12782


Petition for Writ of Certiorari—ADMINISTRATIVE— Licensing -- Driver's license -- Hardship license -- Denial – Competent, substantial evidence supported denying hardship license reinstatement where Petitioner admitted to consuming alcohol within one year of applying for hardship reinstatement in violation of §322.271(2)(c).; Petitioner’s lack of candor formed additional basis for denial. Sean Smith v DHSMV - Order Denying Petition for Writ of Certiorari, No. 20-CA-5630


Petition for Writ of Certiorari—ADMINISTRATIVE— Licensing -- Driver's license -- Hardship license -- Denial –Competent, substantial evidence supported denial of hardship license reinstatement where Petitioner admitted to consuming alcohol within one year of application for reinstatement, despite claim that Petitioner had remained drug-free in the years since she lost her license; for purposes of § 322.271(4)(a) 3, alcohol is a “drug.” Kimberly McCarthy v State DHSMV - Order Denying Petition for Writ of Certiorari, No. 20-CA-9474


Petition for Writ of Certiorari—ADMINISTRATIVE— Department of Highway Safety and Motor Vehicles—Disqualification of CDL privilege set aside where law enforcement failed to warn of possible disqualification of CDL privilege for refusing to submit to a breath or urine test under §322.64(7)(b); that no action was taken against CDL privilege does not preclude suspension of Class E driving privilege under § 322.64 (15) and § 322.2615 where implied consent was read to Petitioner prior to his refusal to submit to testing. Benito Berrios v State DHSMV - Order Denying Petition for Writ of Certiorari, No. 20-CA-8270


Petition for Writ of Certiorari—ADMINISTRATIVE— Department of Highway Safety and Motor Vehicles—Agency Inspection Report not required to fulfill the requirements of §316.1934(5)(a-e); affidavit submitted in accordance with §316.1934(5) is presumptive proof of the breath test results, and once the breath test results are admitted into evidence the record contains competent, substantial evidence of impairment; thereafter, the burden shifts to the driver to prove otherwise, and driver must come forward with evidence that the Department failed to conduct required maintenance. Devin A. Tocco v State DHSMV - Order Denying Petition for Writ of Certiorari, No. 20-CA-8481, Devin A. Tocco v State DHSMV - Order Denying Rehearing and Certification, No. 20-CA-8481


Petition for Writ of Certiorari—ADMINISTRATIVE— Department of Highway Safety and Motor Vehicles—where every record document except one consistently placed time of reading implied consent as occurring after the time of arrest and times were internally consistent, single document suggesting implied consent read after arrest did not create irreconcilable conflict in the evidence; petition denied on the authority of this circuit’s precedent in Ashley Hancock v. State, DHSMV, 23 Fla. L. Weekly Supp. 395a (Fla. 13th Jud. Cir. Aug. 25, 2015) and Aaron Brewster v. DHSMV, Case no.: 14-CA-1897 (Fla. 13th Jud. Cir. July 27, 2015). Macias Bautista Remedios v. State DHSMV - Order Denying Petition for Writ of Certiorari, No. 21-CA-6178


Petition for Writ of Certiorari—ADMINISTRATIVE— Department of Highway Safety and Motor Vehicles—Petitioner properly determined to be in actual, physical control of an automobile where witnesses placed her behind the wheel, she remained behind the wheel when law enforcement arrived, and was the only person in her vehicle, despite the fact that fire and rescue personnel removed her keys when she attempted to drive away from the scene of traffic accident. Petitioner’s right to confront lay witness and related due process not violated where Petitioner elected not to pursue service of subpoena due to the expense of doing so. The state is not responsible for costs associated with service of subpoena. Hearing officer did not deny Petitioner due process, despite initially failing to place law enforcement witness under oath electronically without the ability to verify witnesses’ identity, where hearing officer corrected the error by affording Petitioner the ability to recall witnesses and conduct witness examination. Where relief for due process violation is a new hearing and a new hearing was offered to and rejected by Petitioner, relief in certiorari is denied. Nicole Stevenson v. State DHSMV - Order Denying Petition for Writ of Certiorari, No. 21-CA-464


Petition for Writ of Certiorari—ADMINISTRATIVE— Department of Highway Safety and Motor Vehicles—Petitioner failed to demonstrate error in hearing officer’s refusal to exclude results of HGN test; error, if any, was harmless where hearing officer did not consider results; traffic stop justified by Petitioner’s driving pattern, and physical signs of impairment including odor of alcohol, slurred speech, and admission to drinking justified further investigation, which provided probable cause for arrest; hearing officer’s recess to obtain correct case file did not deprive Petitioner of due process; petition denied. Roberto Rodriguez v DHSMV - Order Denying Petition for Writ of Certiorari, No. 21-CA-296 


Petition for Writ of Certiorari—REZONING— Where multiple bases of inconsistency with comprehensive plan are cited, competent substantial evidence on any one such basis is sufficient to support Board’s denial of rezoning. Certiorari granted only to extent that decision rests on insufficient school capacity where school capacity is to be considered at time of permitting rather than at rezoning, and remaining basis which is inconsistency with the comprehensive plan, remains pending. Petitioner’s failure to raise comprehensive plan consistency challenge in petition did not result in waiver of the issue where sole remedy for such challenges is, under section 163.3215(3), Florida Statutes, by civil action in circuit court. Although denial of rezoning did not alter the density, intensity, or use of property, the application was for a rezoning, which, if granted, would have done so. Accordingly, section 163.3215(3), Florida Statutes, applies, and a civil action, not certiorari, is the exclusive remedy for the rezoning denial to the extent the challenge is based on consistency with the comprehensive plan. Petition granted, in part. Eisenhower Property Group, LLC vs Hillsborough County - Order Granting Rehearing and Order Granting Petition for Writ of Certiorari, No. 21-CA-204 


Petition for Writ of Certiorari—ADMINISTRATIVE— Department of Highway Safety and Motor Vehicles—After being stopped for operating a vehicle at night without headlights, detention to await DUI investigation unit was lawful where a number of factors provided probable cause that Petitioner was operating motor vehicle under the influence of alcohol, including the odor or alcohol coming from about Petitioner, that he was wearing a bar bracelet and admitted to consuming alcohol, and his stated attempt to “sober up.” Although the results of the HGN test should have been excluded, record provided ample evidence for the detention, arrest, and request for breath test. Petition for writ of certiorari denied. Shane Voshell vs DHSMV - Order Denying Petition for Writ of Certiorari, No. 20-CA-8114 


Petition for Writ of Certiorari—ADMINISTRATIVE— Department of Highway Safety and Motor Vehicles—Although trooper erred when he failed to include Petitioner’s driver’s license to the department as required by section 322.2615(2)(a), Fla. Stat., where Petitioner’s identity was not at issue the license was not essential to the proceeding; therefore, the hearing officer’s decision to uphold the license suspension did not depart from the essential requirements of law or deny Petitioner due process. Petition denied. Stephanie Hilton vs DHSMV - Order Denying Petition for Writ of Certiorari, No. 21-CA-5226 


Petition for Writ of Certiorari—ADMINISTRATIVE—Department of Highway Safety and Motor Vehicles—Where Petitioner, who was the subject of a welfare check, voluntarily opened his car door in response to officer’s request to open window and thereafter displayed confusion and difficulty in responding to officer’s requests, law enforcement had ongoing concern for Petitioner’s wellbeing such that Department did not err in relying on documentation of law enforcement’s observations as competent, substantial evidence of lawful—not coercive--encounter. Petition denied. Eugene Zentko vs DHSMV - Order Denying Petition for Writ of Certiorari, No. 21-CA-3877 


Petition for Writ of Certiorari—ADMINISTRATIVE—Department of Highway Safety and Motor Vehicles—where material discrepancies in the evidence provide equal support for inconsistent and irreconcilable inferences and officers did not testify, hearing officer lacked competent, substantial evidence to support conclusion that arrest was lawful. Petition granted. Courtney Elise Jones vs DHSMV - Order Granting Petition for Writ of Certiorari, No. 21-CA-4612 


Petition for Writ of Certiorari—ADMINISTRATIVE—Department of Highway Safety and Motor Vehicles—Where officer’s written report indicates Petitioner was stopped for weaving within his lane and no evidence to the contrary was presented, officer’s subjective basis for the stop, i.e. that the driver was impaired, need not be stated to sustain administrative suspension of Petitioner’s driving privilege for refusing to submit to a breath test. Petitioner’s reliance on Dobrin v. Dep’t of Highway Safety & Motor Vehicles, 874 So. 2d 1171 (Fla. 2004), is misplaced. Although in Dobrin the officer’s failure to articulate a subjective belief that the driver was ill or impaired required quashal of the order upholding the license suspension, it did so only because no evidence supported that the driver actually committed the traffic violation for which he had been stopped, and no other basis for the stop was given. Petition denied. David Coffee vs DHSMV - Amended Order Denying Petition for Writ of Certiorari, No. 21-CA-4479 


Petition for Writ of Certiorari—ADMINISTRATIVE—Department of Highway Safety and Motor Vehicles—the requirement that a misdemeanor be committed in the presence of an officer for a lawful warrantless arrest under §901.15, Florida Statutes, was met where the arresting officer drew logical inferences from his own observations; the driver, who was alone and stopped on the shoulder of the interstate, told officer he had not consumed alcohol after he ran out of gas, and displayed other signs of impairment. It was reasonable for officer to conclude that the driver was driving, and, therefore, in actual, physical control of his vehicle, when it ran out of gas. An empty fuel tank does not render a vehicle inoperable when determining whether a driver is in actual, physical control of the vehicle. Joseph Charles Xuereb, Jr. vs DHSMV - Order Denying Petition for Writ of Certiorari, No. 20-CA-6968 


Petition for Writ of Certiorari—ADMINISTRATIVE—Department of Highway Safety and Motor Vehicles—request that Petitioner submit to a breath test was incident to lawful arrest despite the fact that Petitioner was initially arrested for resisting arrest rather than for DUI, where Petitioner displayed a number of indicators of impairment and was in actual, physical control of a motor vehicle at the time he was stopped. Breath test not invalid because the arresting officer, rather than the breath test operator, conducted the 20-minute observation period before Petitioner was administered the breath test to determine his blood alcohol level. Suspension not invalid under §322.2615(11) merely because the breath test operator did not fully comply with subpoena duces tecum , where witness appeared and gave testimony and made effort to comply with subpoena, and Petitioner rejected offer to continue hearing and did not avail himself of the enforcement mechanism provided by §322.2615(6)(c), Fla. Stat. Gonzalo Novoa vs DHSMV - Order Denying Petition for Writ of Certiorari, No. 21-CA-3080 


Petition for Writ of Certiorari—ADMINISTRATIVE—Department of Highway Safety and Motor Vehicles—hearing officer’s decision to uphold driver’s license suspension despite evidence of past abdominal surgery conformed to the essential requirements of law where no evidence indicates that Petitioner informed law enforcement officer of medical issue or that Petitioner’s medical issue would affect Petitioner’s ability to take test. Petitioner’s request to invalidate the suspension requires impermissible reweighing of evidence, and Petitioner’s failure to provide two samples constitutes a refusal under rules governing breath tests. PETITION DENIED. JOSE EDWARDO VELAZQUEZ vs DHSMV - Order Denying Petition for Writ of Certiorari, No. 21-CA-9340 


Petition for Writ of Certiorari—ADMINISTRATIVE—Department of Highway Safety and Motor Vehicles—Where officer’s written report indicates Petitioner was stopped for straddling the line between two lanes for seven city blocks and no evidence to the contrary was presented, officer’s subjective basis for the stop, i.e. that the driver was impaired, need not be stated to sustain administrative suspension of Petitioner’s driving privilege for refusing to submit to a breath test. Petition denied. Coffee v. DHSMV, 21-CA-4479 (Fla. 13th Jud. Cir. March 8, 2022). Steven Blanchard vs DHSMV - Order Denying Petition for Writ of Certiorari, No. 21-CA-7661 


Petition for Writ of Certiorari—Licensing -- Driver's license -- Suspension -- Subpoena –Due Process-- When a driver attempts service of a subpoena on the sole law enforcement officer to witness to a DUI arrest, and that officer is no longer employed by the arresting agency, the Department violates the driver’s right to procedural due process when it fails to provide an alternative method or mechanism to serve the former officer. Scott Smith vs DHSMV - Order Granting Petition for Writ of Certiorari, No. 21-CA-5080 


Petition for Writ of Certiorari—Licensing -- Driver's license -- Suspension -- Evidence -- Criminal report affidavit -- Notarization – Consistent with this court’s precedent in Lambo v. DHSMV, 14 Fla. L. Weekly Supp. 838b (Fla. 13th Cir. Ct. 2007) , hearing officer did not depart from the essential requirements of law or deny Petitioner due process when she considered affidavit despite that it 1) lacked the arresting law enforcement officer’s identification number, and 2) date and district and squad of officer administering an oath, where additional evidence in file validates the identity of arresting or attesting officer, and there is no evidence that oath portion of affidavit was not properly sworn to by officer. Petition denied. Kristian Stevens vs DHSMV - Order Denying Petition for Writ of Certiorari, No. 21-CA-5919 


Petition for Writ of Certiorari—Licensing – Driver's license – Suspension – Refusal – Evidence --Hearing officer’s consideration of unsworn Complaint Affidavit did not depart from requirements of section 322.2615(2) because the signed and sworn Uniform Probable Cause Affidavit incorporated the Complaint Affidavit by reference, all documents contained the same case number and the law enforcement officer’s signature, and all documents were submitted to the hearing officer together. In addition, hearing officer’s finding that Petitioner refused to submit to a breath test subsequent to lawful arrest was supported by competent, substantial evidence where the incorporated Complaint Affidavit contained sufficient factual details of Petitioner’s arrest and refusal to submit to the breath test, despite law enforcement officer’s failure to check the box indicating which test had been requested and refused. PETITION DENIED. Justin Thompson vs DHSMV - Order Denying Petition for Writ of Certiorari, No. 21-CA-8247 


Petition for Writ of Certiorari—Licensing -- Driver's license -- Suspension – Length of Detention: Where law enforcement responding to a call about a driver doing doughnuts in neighborhood observed driver matching the description in the call to have signs of impairment including lethargy, unsteady stance, slurred speech, and glassy eyes, reasonable suspicion for stop existed that justified further detention. Arrest and request to submit to breath test were lawful. Prashant Vadhulas vs DHSMV - Order Denying Petition for Writ of Certiorari, No. 22-CA-2978 


Petition for Writ of Certiorari— Quasi-Judicial Action - Jurisdiction – Court lacked jurisdiction to review petition for writ of certiorari despite that petition was filed within 30 days of decision to be reviewed where lower tribunal’s decision was unauthorized because Petitioner did not timely seek review; therefore, the petition to circuit court was also unauthorized. Joseph Fontana vs City of Tampa - Order Denying Petition for Writ of Certiorari, No. 21-CA-1314 


Petition for Writ of Certiorari— ADMINISTRATIVE- Department of Highway Safety and Motor Vehicles – Driver’s License – Suspension – Due Process – Preservation of Issue – due process issue not argued in underlying administrative proceeding was not preserved for review. The due process issue is distinguishable from this court’s decision in Smith v DHSMV, 30 Fla. L. Weekly Supp. 193a (Fla. 13th Jud. Cir. [Appellate] 2022) in which petitioner requested aid from hearing officer and was denied. Decision to uphold license suspension was proper where hearing officer was permitted to rely solely on documentary evidence, and that evidence supported suspension. Elizabeth Nieblas vs DHSMV - Order Denying Petition for Writ of Certiorari, No. 22-CA-5623 


Petition for Writ of Certiorari— ADMINISTRATIVE- Employment: referee’s decision to reverse appointing authority’s disciplinary decision upheld where the appeals referee relied on the appropriate definition of just cause as defined by the Hillsborough County Employee Disciplinary Appeal Process (HCEDAP), thus observing the essential requirements of law. Moreover, decision was supported by competent, substantial evidence in the form of witness testimony and video recordings applied to the text of the authority’s standard operating procedure, which did not specify particular method of carrying out task allegedly performed incorrectly. PETITION DENIED. HCSO vs Tonia Ballard - Order Denying Petitioner's Writ of Certiorari, No. 22-CA-2399 


Petition for Certiorari--quasi-judicial action—land use--rezoning ADMINISTRATIVE- City’s denial of Petitioner’s rezoning application and related request to vacate alley was justified where Petitioner failed to adequately support its request for a code waiver and demonstrate that its site plans were consistent with both city code and the comprehensive plan. The proposed rezoning required the City to vacate its alley, which the City was not legally required to do. Petitioner’s claim that it was denied due process when the City denied a continuance is contradicted by the record, which shows that Petitioner waived city council’s offer of a continuance, and that when Petitioner later requested a continuance, it was both moot and untimely because the City had ruled on the substantive issue and closed the proceeding. Petition DENIED.  N BLVD Townhomes LLC vs City of Tampa - Order Denying Petitioner's Writ of Certiorari, No. 22-CA-2260 


Petition for Certiorari-- Licensing - Driver’s License - Suspension – Detention - Use of Handcuffs -- Where law enforcement observed driver speeding in wrong lane of traffic and attempted to stop the driver, and driver twice attempted to elude officer before and after the stop, evidence supported hearing officer’s finding that use of handcuffs was proper. Additionally, motion to amend petition due to newly discovered evidence denied where evidence would not negate fact that Petitioner received due process. Petition denied. Sergio Andres Riano Garcia v. DHSMV – Order Denying Petition for Writ of Certiorari and Denying Motion for Leave to Amend or For Remand.  Sergio Andres Riano Garcia vs State Department of Highway Safety and Motor Vehicles - Order Denying Petitioner's Writ of Certiorari, No. 22-CA-000796 

Petition for Writ of Prohibition: ADMINISTRATIVE – Executive order’s adoption of supplemental enforcement proceeding in county court is neither a prerequisite to city council considering revocation of wet zoning nor sole enforcement mechanism for establishments violating mask requirements adopted to curb the spread of COVID-19; conviction by court not required where city code also allows for administrative determination of violations. Petition denied. Heriberto Orlando Rodriguez Manduley d/b/a Ybor Cigars Plus v City of Tampa, No. 21-CA-1111 (Fla. 13th Jud. Cir. February 10, 2021)


Petition for Writ of Prohibition: ADMINISTRATIVE –  Petition denied. Sunshine on Seventh, LLC, d/b/a Tangra v City of Tampa, Case No.: 21-CA-1110


Petition for Writ of Prohibition: ADMINISTRATIVE –  City code clearly provides City Council with jurisdiction to revoke wet zoning for establishment’s failure to comply with mask requirements adopted to curb the spread of COVID-19. Petition denied. Carlo Bay Enterprise, INC., d/b/a Prana Ybor's Premier Nitespot, Case No.: 21-CA-1109

Arbitration: Petition to vacate binding arbitration award—arbitrator did not exceed broad authority, as submitted by the parties, to fashion remedy. Petition to vacate award denied. Amalgamated Transit, Local 1593 v. Hillsborough County Transit Authority March 09, 2021)


Petition for Writ of Mandamus: PUBLIC RECORD—The city is permitted to assess a special service charge for public records of its police department based on the cost incurred to verify that no confidential information, specifically protected victim information, is inadvertently disclosed. Petitioner did not challenge the amount assessed for the public records, only the City’s authority to assess the fee at all. Petition denied. Casey Parente v. City of Tampa, No.21-CA-7810


Petition for Writ of Mandamus: RIGHT TO HEARING—Deputy sheriff’s demand for compliance hearing for suspension without pay during investigation of alleged policy violations fails to state a clear legal right to hearing where Petitioner’s appendix demonstrates that he received notice of action being taken and the basis therefor as required by section 112.532(4)(a), Florida Statutes. Nor is Petitioner entitled to a merits hearing under section 112.532(4)(b) because, although the unpaid suspension was punitive, it was not yet disciplinary because the matter was still under investigation. Only when personnel action becomes disciplinary is the right to a merits hearing triggered. Petition denied. Benjamin Thompson v. Hillsborough County Sheriff's Office, No.22-CA-137


Petition for Writ of Mandamus: Adequate remedy at law—where City responded to initial demand letter and Chapter 70, Florida Statutes affords Petitioner an adequate legal remedy, mandamus unavailable to compel City to respond to amended demand that exceeded the demand that City initially rejected. Petition denied. Manhattan Avenue v. City of Tampa, No.22-CA-7246

Appeal: —CODE ENFORCEMENT—Code enforcement special magistrate retained jurisdiction to consider fine and stay of fine during pendency of second-tier certiorari proceeding in the district court of appeal under Rule 9.310, Fla. R. App. P. and common law principle that petitions for writ of certiorari do not stay underlying proceedings; however, where special magistrate imposed a stay temporarily freezing the running of fines, it was error to relate the accumulation of fines back to the date the stay was imposed. Such action had the effect of rendering the stay a nullity. Fines that had accumulated up to the stay and after the stay was lifted could properly be imposed. Lawrance Properties LLC vs Hillsborough County - Appellate Opinion, No.20-CA-8479


Appeal: —CODE ENFORCEMENT—Lack of competent, substantial evidence supported County’s claim that Appellant’s AirBnB remained in noncompliance with County’s proscription against rentals of less than seven days on date fines began running. County was unable to verify that a shorter-term rental had been confirmed. Because original finding of noncompliance was not preserved for appellate review, however, it would not be disturbed on appeal. CANTON, ROBERT V vs HILLSBOROUGH COUNTY - Appellate Opinion, No.20-CA-3272


Appeal: —CODE ENFORCEMENT—Unpermitted tree removal from residential property—Impact of §163.045, Fla. Stat. (2019)—Where residential property is not defined under section 163.045, fine must be set aside for property zoned as residential even though lot was vacant and no one was living on the property; in contrast, fine is upheld for unpermitted tree removal on property zoned commercial and not on record as permitting residential use as a legal, nonconforming use. Miller & Sons, LLC vs City of Tampa - Appellate Opinion, No.20-CA-8741, No.20-CA-8742 (Consolidated)


Appeal: —CODE ENFORCEMENT—Competent, substantial evidence—Due Process: Competent, substantial evidence supported finding that property in residential area violated proscription against short-term rentals to non-familial groups where record evidence showed the property was occupied for only two days, documentary evidence showed two-day rental, and photographs showed the property was occupied by about 20 members of a college sports team and staff. Hearing officer is not obligated to accept evidence to the contrary; it is fact-finder’s job to weigh and assess the credibility of evidence. Due process: the fact that hearing officer recalled a previous, but later dismissed, matter involving the same property did not deprive Appellant of a hearing by a neutral fact-finder. However, although the violations were not ones that could be cured, the finding that the violations were irreparable, rather than transient, departed from the essential requirements of law in the absence of any provision in the code notifying the public that these specific violations were irreparable. The matter would be remanded for reconsideration of the amount of the fine. Super Host, LLC vs City of Tampa - Appellate Opinion, No.20-CA-5743


APPEAL--CODE ENFORCEMENT—Departure from the essential requirements of law---lack of competent, substantial evidence: City’s claim that Appellant’s AirBnB violated City’s proscription against rentals of less than seven days not supported by competent, substantial evidence where City was unable to verify that a shorter-term rental had, in fact, occurred, and the code does not address, much less prohibit, an attempt to engage in short-term rental that was not completed. Order quashed. Cherokee House, LLC vs City of Tampa - Appellate Opinion, No.21-CA-5157 (Consolidated)