AGI Traffic School, Inc. v. Department of Highway Safety and Motor Vehicles

• Court: District Court of Appeal of Florida
• Decided: March 6, 2024
• Docket: 2023-1279
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 6, 2024. Not final until disposition of timely filed motion for rehearing.

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No. 3D23-1279 Lower Tribunal Nos. HSMV: MS-22-368, DOAH 22-3721 ________________

AGI Traffic School, Inc., Appellant,

vs.

Department of Highway Safety and Motor Vehicles, Appellee.

An Appeal from the Department of Highway Safety and Motor Vehicles.

Kemet Law Group, LLC, and Valerie L. Raphael (Boca Raton), for appellant.

David Arthmann, General Counsel, and Linsey Sims-Bohnenstiehl, Assistant General Counsel (Tallahassee), for appellee.

Before FERNANDEZ, SCALES and GORDO, JJ.

GORDO, J. AGI Traffic School, Inc. (“AGI”) appeals a final order terminating its

third-party administration of license examination contract with the

Department of Highway Safety and Motor Vehicles (“DHSMV”). We have

jurisdiction. Fla. R. App. P. 9.110(c); § 120.68(1)(a), Fla. Stat. (2023).

Because the findings in the final order are based upon competent

substantial evidence, we affirm.

AGI entered into a three-year contract with DHSMV to operate and

administer a third-party driver’s license examination service to the public.

Pursuant to the contract terms, adult applicants seeking to take the exam

must complete a registration form and be physically present at a testing

facility at the time the exam is administered. Failure to comply with these

provisions authorizes DHSMV to terminate the contract.

A few months after executing the contract, DHSMV sent a

compliance officer to AGI’s testing facility to conduct a surprise inspection.

The officer observed that there were no test takers physically present

inside the facility while the online portal reflected that several exams were

being administered. AGI’s president, Abuid Joseph (“Joseph”), failed to

provide registration forms of the applicants during the inspection and was

unable to explain why students currently taking the exam were not

physically present as required by the contract. DHSMV subsequently

2 issued an emergency suspension of AGI’s ability to further administer

testing based on its violations of the contract. AGI timely petitioned for an

administrative hearing. After a full hearing was conducted, the

administrative court found that AGI violated the contract terms and

recommended termination. DHSMV adopted this recommendation as its

final order. This appeal followed.

AGI argues the administrative court’s factual findings were not based

on competent substantial evidence and that it improperly relied on Joseph’s

demeanor during his testimony at the hearing.

We find there is competent substantial evidence for the administrative

judge’s findings. The compliance officer testified that test takers were

absent from AGI’s testing facility and Joseph failed to provide the requisite

registration forms during the inspection or have any explanation as to why

the test takers and forms were not available. These facts were also

corroborated by DHSMV’s online portal, photographs and a video

recording. See § 120.68(10), Fla. Stat. (2023) (“If an administrative law

judge’s final order depends on any fact found by the administrative law

judge, the [appellate] court shall not substitute its judgment for that of the

administrative law judge as to the weight of the evidence on any disputed

finding of fact.”); Vill. of Palmetto Bay v. Palmer Trinity Priv. Sch., Inc., 128

3 So. 3d 19, 25 (Fla. 3d DCA 2012) (“The Florida Supreme Court has defined

competent substantial evidence as follows . . . the evidence relied upon to

sustain the ultimate finding should be sufficiently relevant and material that

a reasonable mind would accept it as adequate to support the conclusion

reached.” (quoting De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957)));

Bagarotti v. Reemployment Assistance Appeals Comm’n, 208 So. 3d 1197,

1199 (Fla. 3d DCA 2017) (“An administrative hearing officer's findings of

fact may not be disturbed by a reviewing court if those findings are

supported by competent, substantial evidence.”); O.H. v. Agency for

Persons with Disabilities, 332 So. 3d 27, 33 (Fla. 3d DCA 2021) (“It does

not matter that there may be competent substantial evidence to support

alternative findings of facts, only whether the hearing officer’s findings of

fact are supported by competent substantial evidence.”).

Further, AGI introduced Joseph’s testimony at the hearing and the

administrative court had the distinct opportunity to observe his demeanor.

The court specifically rejected Joseph’s testimony, gave it no credit and

found it was unpersuasive and inconsistent with the other evidence in the

case. We find the administrative court was in the best position to make

these findings. An appellate court is required to defer to a lower court’s

findings regarding witness credibility. See Wise v. Dep’t of Mgmt. Servs.,

4 Div. of Ret., 930 So. 2d 867, 870 (Fla. 2d DCA 2006) (holding that an

appellate court “must accept the ALJ’s findings regarding factual disputes,

the weight of the evidence presented, and the credibility of the witnesses”);

Kingery v. State, 523 So. 2d 1199, 1205 (Fla. 1st DCA 1988) (“[A] witness's

demeanor is a primary factor in an evaluation of that witness's credibility.”);

Stinson v. Winn, 938 So. 2d 554, 555 (Fla. 1st DCA 2006) (“Credibility of

the witnesses is a matter that is within the province of the administrative

law judge, as is the weight to be given the evidence. The judge is entitled to

rely on the testimony of a single witness even if that testimony contradicts

the testimony of a number of other witnesses.”).

Affirmed.