Current through Reg. 50, No. 187; September 24, 2024
(1) Any applicant
wishing to contest a DUI program's determination of eligibility, unfavorable
initial recommendation or a favorable recommendation contingent upon
participation in treatment shall be allowed to appeal such recommendation to
any other DUI program licensed by the Department in that circuit or any
adjacent circuit.
(a) Upon notification that
such an appeal has been taken, the original program shall delay notification of
the recommendation to the Department until the appeal process is
complete.
(b) The DUI program
receiving the appeal shall provide the opportunity for a face to face meeting
with the applicant.
(c) If the
appeal concerns the results of an evaluation, the DUI program reviewing the
appeal must conduct its own face to face evaluation.
(d) If the second program supports the
original recommendation, such recommendation shall become the final
recommendation of the DUI program. If the second program rejects the original
recommendation, the final decision shall be made by the Department.
(e) If the second program disagrees with the
determination or recommendation by the original program, the second program
shall notify the applicant and the original DUI program in writing. The second
program shall also submit all documentation to the Bureau of Administrative
Review office which conducted the reinstatement hearing.
(2) Any client in the program who wishes to
contest an unfavorable recommendation of termination by the DUI program shall
be allowed to appeal such recommendation to any DUI program licensed by the
Department in that circuit or any adjacent circuit, excluding its own program.
However, the DUI program shall not delay notification to the Department of its
termination recommendation pending such appeal.
(a) The DUI program reviewing the appeal
shall review all the written documentation related to the issue or issues
resulting in termination.
(b) The
DUI program reviewing the appeal shall provide an opportunity for a face to
face meeting with the client.
(c)
If the appeal concerns the results of an evaluation, the DUI program reviewing
the appeal must conduct its own face to face evaluation.
(d) If the second program disagrees with the
recommendation of termination, the final decision shall be made by the
Department.
(e) If the second
program disagrees with the recommendation by the original program, the second
program shall notify the client and the original DUI program in writing. The
second program shall also submit all documentation to the Bureau of
Administrative Review office which conducted the reinstatement
hearing.
(3) If an
applicant is given an adverse original recommendation or a client is
recommended for termination based on a positive result of a chemical test for
alcohol or other drugs, the program shall be required to have contracted with a
laboratory, or a collection site which has contracted with a laboratory,
licensed in forensic toxicology by the Agency for Health Care Administration
and follow the protocol of the Drug Free Workplace as referenced in Chapter
59A-24, F.A.C. At the applicant's or client's request a second test, on the
same sample, shall be conducted at a laboratory selected by the applicant or
client and at the expense of the applicant or client. The laboratory must be
licensed in forensic toxicology by the Agency for Health Care Administration
and shall conduct such test in accordance with the Drug Free Workplace
protocol.
(4) Any program, in
relation to which participation in the appeal process would result in financial
hardship, may apply to the Department for an exception to participation. The
Department shall grant such exception if the program's expenses in conducting
the appeal process exceed its revenue from such process by 50% or more over a
six (6) month period. However, no waiver shall be granted if SSS in its
entirety has revenues that equal or exceed expenses.
(5) The following time periods apply:
(a) The applicant or client has 10 days to
notify the first DUI program in person of the intention to appeal after
receiving notification in writing from the first program of the decision to
deny or cancel. The applicant or client shall then sign a release of
information form allowing the relevant information to be sent to the second DUI
program hearing the appeal.
(b) The
first program shall have 20 days to forward all relevant material to the second
program.
(c) Upon receipt the
second program shall review the information to determine what, if any,
additional information shall be necessary for completion of the process. The
applicant or client is notified by the second program to complete Application
for Appeal, HSMV Form 77024, incorporated by reference in Rule
15A-10.043, F.A.C., to pay fees,
and schedule a meeting. The meeting may include a face to face evaluation
unless it does not relate to the issue(s) raised in the appeal and shall be
held within 30 days of the date of the latest receipt of information from the
first program or the date the second program notifies the applicant or client,
whichever is later. Whether there is a face to face evaluation, the applicant
or client shall be given the opportunity to present information in person to
the second program. If the applicant or client fails to contact the second
program within 30 days of notification to complete HSMV Form 77024, the first
program is notified of same with a copy sent to the applicant or client and the
right to appeal is waived. If the applicant or client contacts the second
program, sets an appointment to complete paperwork, pay fees, schedules a
meeting or evaluation but fails to attend or reschedule that appointment, the
first program is notified of same by the second program at the end of the 30
day period and the right to appeal is waived. In all cases, the meeting or
evaluation must be held within 30 days from the date of the latest receipt of
information from the first program or the date the second program notifies the
applicant or client, whichever is later.
(d) The second program shall make a
recommendation to the applicant or client in writing within 20 days of the
meeting or evaluation.
(e) When
both DUI programs agree on a cancellation, the second program notifies the
client and the first program of the decision in writing. When both programs
agree in the case of a denial, the second program notifies the first program of
its decision. The first program notifies the Department via the Letter of
Recommendation, HSMV Form 77023 and the client in writing. In all cases, the
client is to receive notification within 20 days of the date of the meeting or
evaluation.
(f) Within 30 days of
notification of disagreement by the second program, the hearing officer must
meet with the applicant or client, conduct a hearing, gather and summarize all
information and forward to the DUI Programs Section.
(g) The DUI Programs Section will review all
material, and shall consult with the hearing officer and the DUI programs
involved and, within 50 days, render a recommendation to the hearing officer.
The hearing officer shall mail the signed Final Order Denying Appeal, HSMV Form
77052, incorporated by reference in Rule
15A-10.043, F.A.C., or Final
Order Granting Appeal, HSMV Form 77053, incorporated by reference in Rule
15A-10.043, F.A.C., to the
applicant or client within 10 days with copies to both DUI programs involved.
This notification is to be retained in the applicant's or client's file by the
DUI program until the end of the revocation period.
(h) If the Department reverses the
recommendation for cancellation or denial, the client shall be served by the
DUI program licensed in the client's county of residence, employment, or school
attendance unless that program does not have any objection to the client
attending another program.
(6) If the applicant or client wishes to
contest the final decision of the Department a writ of certiorari may be filed
in circuit court within thirty (30) days in accordance with Section
322.31, F.S.
(7) The applicant or client shall waive the
right to appeal if notification of such is not given in person to the original
program within 10 days in relation to the appeal process. Once notification of
intent to appeal is made by the applicant or client, the right to proceed with
the appeal is waived if the applicant or client does not schedule an
appointment for a meeting or evaluation with the second program within the 30
day period referenced in paragraph (5)(c) above. All times shall begin from the
date of completion of the preceding step, not including that date, and shall
extend to the first day after the expiration of the time period which is not a
weekend or holiday. The Department shall have the authority to waive any appeal
process time period deadline which has not been followed as a result of action
or inaction by the DUI program and has caused the applicant or client to not
proceed with the appeal process.
Rulemaking Authority 322.02, 322.292 FS. Law Implemented
322.271, 322.292, 322.293 FS.
New 1-4-95, Amended
3-4-97.
