Fla. Admin. Code Ann. R. 15A-5.0022 - Administrative Hearing Procedures

(1) Following the Department's decision to deny a driving privilege, or to revoke, suspend, or cancel a driver license, an applicant or licensed driver may file a written request for a hearing pursuant to Section 322.222, F.S., and Rule 15A-1.0195, F.A.C., or appeal the decision to the circuit court pursuant to Section 322.31, F.S. All requests for a hearing must be filed with the Bureau of Motorist Compliance, Medical Review section, 2900 Apalachee Parkway, Neil Kirkman Building, MS 86, Tallahassee, Florida 32399-0500. The request may be submitted by regular United States mail or by personal delivery. The request must contain the following: the name, address, email address if available, daytime telephone number, and signature of the person filing the request; the name, date of birth, and driver license number of the party on whose behalf the request is filed; and a copy of the Order of License Revocation, Suspension, or Cancellation at issue. All parties or their attorneys must promptly notify the Medical Review Section or the panel in writing of any changes to their contact information.

(2)

(a) A request for a hearing must be filed within 30 days after receipt of written notice of the Department's decision. Any person who receives written notice of the Department's decision and fails to timely file a request for a hearing waives the right to request a hearing on such matters.

(b) For good cause shown, the Department may grant an extension of time for filing a request for a hearing. A request for an extension of time must be filed with the Medical Review Section prior to the deadline for filing a request for hearing. For purposes of this section, good cause means extraordinary circumstances beyond the control of the applicant or licensed driver or his or her attorney that prevented the party from filing a timely request for a hearing.

(c) A timely request for extension of time will toll the running of the time period for filing a request for a hearing until such time as the request for extension of time is acted upon.

(3) In construing this rule, filing means received by the Medical Review Section or the panel during normal business hours or by the panel during a hearing. Any document received by the Medical Review Section or the panel before 5:00 p.m. will be filed as of that day. Any document received after 5:00 p.m. will be filed as of 8:00 a.m. on the next regular business day.

(4) When computing any period of time allowed by this rule, the day of the act from which the period of time begins to run will not be included. The last day of the period will be included unless it is a Saturday, Sunday, or legal holiday, in which case the period will run until the end of the next day that is not a Saturday, Sunday, or legal holiday. As used in these rules, legal holiday means those days designated in Section 110.117, F.S.

(5)

(a) Any party who appears at a hearing has the right, at his or her own expense, to be represented by an attorney. Attorney means a member of The Florida Bar.

(b) Any attorney who files a request for a hearing or who files any document with the Medical Review Section or the panel will be deemed to have entered an appearance and will be counsel of record in the proceeding. Any attorney representing the State of Florida will file a notice of appearance. Attorneys should file a notice of appearance as soon as possible.

(c) Service on counsel of record constitutes service on the party represented.

(d) On written motion, the panel will grant counsel of record leave to withdraw, unless the withdrawal interferes with the efficient and proper functioning of the proceedings. A copy of a motion to withdraw must be served by the attorney on all parties. Service may be made by regular United States mail or by personal delivery.

(6) Hearings will be held before a panel consisting of three or more persons and must include at least one Board member, one attorney from the Department's Office of General Counsel, and one employee of the Department's Division of Motorist Services. The panel will be selected and approved by the Director of Motorist Services, or his or her designee, who will also designate one member of the panel as the panel chair. The panel chair will be responsible for all administrative matters related to the hearing. Any person who participated in making the recommendation to or decision of the Department pursuant to Rule 15A-5.0021, F.A.C., may not be a member of the panel.

(7) Unless otherwise allowed by law or by agreement of the parties, a hearing under this rule must be held within 45 days of receipt of a timely request for hearing by the Medical Review Section.

(8) Unless otherwise agreed by the parties, all hearings will be held in Tallahassee at the Department of Highway Safety and Motor Vehicles, 2900 Apalachee Parkway, Neil Kirkman Building, Tallahassee, Florida 32399-0500. Parties may appear at a hearing by means of video teleconference or by telephone.

(9) The panel chair will set the time and place for all hearings and will serve written notice of any hearing on all parties at their address of record. The parties must be served notice at least 14 days prior to the hearing unless otherwise agreed by the parties or unless otherwise provided by law. Service may be made by regular United States mail or by personal delivery.

(10)

(a) Upon the written request of any party, the panel chair will issue a subpoena for the attendance of a witness at the hearing. Such requests may be submitted ex parte to the panel for issuance.

(b) A request for a subpoena must include the name and signature of the party making the request, the case number of the matter for which the subpoena is requested, the name and address of the witness whose attendance is requested, the time and place at which the witness is to appear, and a statement regarding how the witness' testimony would provide relevant evidence relating to the issues in the proceeding. The request must also specify whether the witness is required to bring relevant documents to the hearing, which must be specifically described.

(c) Discovery subpoenas will not be issued by the panel.

(d) A subpoena may be served by any person specified by law to serve process or by any person who is not a party and who is 18 years of age or older. Service must be made by delivering a copy to the person named in the subpoena. The party requesting a subpoena to be issued is responsible for the service of such subpoena and the payment of any associated costs and fees. Compensation of witnesses will be in the manner provided in Sections 48.031, 92.141, 92.142, and 120.569, F.S.

(e) Service of a subpoena on a law enforcement officer or on any federal, state, or municipal employee called to testify in an official capacity may be made as provided in Section 48.031, F.S., or by delivery to a designated supervisory or administrative employee at the witness' place of employment if the Executive Director or highest ranking official at the witness' place of employment has designated such employee to accept such service. However, no such designated employee is required to accept such service:

1. For a witness who is no longer employed by the agency at that place of employment;

2. If the witness is not scheduled to work prior to the date the witness is required to appear; or

3. If the appearance date is less than seven days from the date of service.

The Executive Director or highest ranking official at the witness' place of employment may determine the days of the week and the hours that service may be made at the witness' place of employment.

(f) Proof of service of a subpoena must include the date and time of service, the name of the person served, a certification of service by the person who served the subpoena, and proof of payment of witness compensation.

(g) The panel chair is authorized to amend or strike a request for a subpoena that does not comply with the provisions of this rule. The panel is authorized to quash or limit a subpoena prior to or at a hearing.

(h) Any person subject to a subpoena may, before compliance and on timely motion, request the panel to invalidate the subpoena on the ground that it was not lawfully issued.

(i) A party may seek enforcement of a subpoena issued under the authority of this rule by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides. A failure to comply with an order of the court enforcing a subpoena may result in a finding of contempt of court. However, no person will be in contempt while a subpoena is being challenged. The court may award to the prevailing party all or part of the costs and attorney's fees incurred in obtaining the court order whenever the court determines that such an award should be granted under the Florida Rules of Civil Procedure.

(11) The panel will not hear any matter nor issue any order related to discovery.

(12) At the hearing, each party will have the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut adverse evidence. Relevant evidence is defined as evidence which tends to prove or disprove a material fact. Panel members may question any witness.

(13) All evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs will be admissible whether or not such evidence would be admissible in a trial in the courts of Florida. Any part of the evidence may be received in written form.

(14) The rules of privilege apply to the same extent as in civil actions under Florida law.

(15) Oral evidence must be taken only on oath or affirmation administered by a notary public. Testimony may be taken by means of video teleconference or by telephone. If testimony is taken by telephone, a notary public must be physically present with the witness to administer the oath or affirmation. The notary public must provide a written certification to be filed with the panel confirming the identity of the witness, and confirming the oath or affirmation by the witness. It is the responsibility of the party calling the witness to secure the services of a notary public.

(16) The Department has the responsibility for recording the testimony presented at a hearing utilizing a voice recording device. Any party to a hearing may, at its own expense, provide a certified court reporter for the recording of testimony. At hearings reported by a court reporter, any party who wants a transcript of the testimony must order the transcript at its own expense. If a court reporter records the proceedings, the recordation will become the official transcript.

(17) The panel will determine whether the Department's decision to deny a driving privilege, or to revoke, suspend, or cancel a driver license is supported by a preponderance of the evidence. The panel is the sole decisionmaker as to the weight, relevance, and credibility of any evidence presented. The panel will prepare a Recommended Order and transmit it to all parties and to the Executive Director or designee who will enter a Final Order based on the evidence and findings. The Recommended Order must include a caption, the time and place of hearing, all appearances entered at the hearing, a statement of the issues, separately stated findings of fact and conclusions of law, and a recommendation for final agency action. Unless waived by all parties, the Recommended Order must be transmitted to the parties within 20 days after the hearing or receipt of the hearing transcript, whichever is later.

(18) Within 15 days after the entry of the Recommended Order, the parties may file with the Medical Review Section exceptions to findings of fact and conclusions of law contained in a Recommended Order. Exceptions must identify the disputed portion of the Recommended Order by page number or paragraph, must identify the legal basis for the exception, and must include any appropriate and specific citations to the record. Any party may file responses to another party's exceptions within 10 days after the date the exceptions are filed with the Medical Review Section.

(19)

(a) If the applicant or licensed driver fails to appear at a duly noticed hearing, the right to a review of the Department's decision on licensure will be waived. The panel will provide notice to the party of his or her failure to appear and its intention to issue a Recommended Order sustaining the findings of the Department in its decision on licensure.

(b) Within five days of the scheduled hearing, the applicant or licensed driver may submit to the panel a written statement alleging good cause for his or her failure to appear at the hearing.

(c) For the purpose of this section, good cause means extraordinary circumstances beyond the control of the applicant or licensed driver or his or her attorney that prevented the party from attending the hearing. If good cause is shown, the hearing will be continued and notice setting a new hearing date will be sent to all parties by the panel chair.

(d) No hearing will be continued for a second failure to appear.

(e) If the applicant or licensed driver does not provide a written statement alleging good cause or if good cause is not found by the panel, the panel will issue its Recommended Order to the Department.

(f) This section does not apply to the nonappearance of an applicant or licensed driver who is represented at hearing by an attorney.

(20) The Executive Director or designee will enter a Final Order within 45 days after receipt of the Recommended Order. A Final Order may be appealed pursuant to Section 322.31, F.S. The date of rendition of a Final Order is the date an order is mailed pursuant to Section 322.251, F.S. A request for appeal of a Final Order will not stay a denial or revocation of a driver license.

Notes

Fla. Admin. Code Ann. R. 15A-5.0022

Rulemaking Authority 322.02, 322.125, 322.222 FS. Law Implemented 120.569, 120.57, 120.80, 322.05, 322.125, 322.221, 322.222 FS.

Adopted by Florida Register Volume 44, Number 138, July 17, 2018 effective 7/31/2018.

New 7-31-18.