Section 15A-10.031 - SSS Appeal Process(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.Fla. Admin. Code Ann. R. 15A-10.031
Rulemaking Authority 322.02, 322.292 FS. Law Implemented 322.271, 322.292, 322.293 FS.
New 1-4-95, Amended 3-4-97.New 1-4-95, Amended 3-4-97.