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Court Opinions

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 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