Matter of Acevedo v New York State Dept. of Motor Vehs.

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Matter of Acevedo v New York State Dept. of Motor Vehs. 2014 NY Slip Op 30422(U) February 21, 2014 Supreme Court, Albany County Docket Number: 2393-13 Judge: Jr., George B. Ceresia Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY In The Matter of the Application of KEVIN B. ACEVEDO, 'i Petitioner, For A Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES and BARBARA J. FIALA, as New York State Commissioner of Motor Vehicles, Respondents. Supreme Court Albany County Article 78 Term Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding FtJI # 01-13-ST46Il Index No. 2393-13 Appearances: Gerstenzang, O'Hern, Sills and Gerstenzang Attorney For Petitioner 210 Great Oaks Boulevard Albany, NY 12203 (Eric H. Sills, Esq., of Counsel) Eric T. Sckneiderman Attorney General State of New York Attorney For Respondent The Capitol Albany, New York 12224 (Charles J. Quackenbush, Assistant Attorney General of Counsel) AMENDED' DECISIONIORDEWJUDGMENT George B. Ceresia, Jr ., Justice 'The original decisionlorderljudgmenthas been amended to correct minor typogrqbicd errOrS. [* 2] The petitionerhas been convictedthree times for alcohol related driving offenses: the first on Aprir 21,2003where he was convicted of driving while his ability was impaired, i n which he refbsed to submit to a chemical blood test; the second on May 8,2006 i which he n was convicted of driving with a blood alcohol level of .O8%; the third on February 13,2008, where he was convicted of driving while intoxicated. In ApriI 2008 his license was revoked by the New York State Department of Motor Vehicles ( DMV ) for a minimum period of one year. In October 20 1 1, the petitioner submitted an application for approval to obtain a new driver license. In a determination dated February 14, 2012 the application was approved. However very shortly thereafter, i a determination dated February 17,20 12, the n approval was %ithdrawn and the petitioner was advised that it would be subject to additional review. Thereafter, on November 8,2012, DMV advised the petitioner that his application was denied on grounds that he was a persistently dangerous driver. The petitioner appealed the determination, which was denied by DMV s Administrative Appeals Board on February 26,20 13. Both determinations rely heavily upon new regulations promulgated by DMV with regard to relicensing of individuals who have mdtiple alcohol or drug related driving convictions. Effective September 25,2012 the respondent revised portions of Part 136 of its reguhtions (see15 NYCRR Part 136, hereinafter referred to as Part 136 ). The revisions impose significantly greater restrictions on the ability of persons convicted of multiple alcohol or drugrelated driving offenses to regain their operator s license after it has been revoked. The petitioner has commenced the above-captioned combined actiodproceeding to m l the determination denying his application, and for a judgment declaring that Part I36 u 2 [* 3] is unconstitutional. Among the many arguments advanced by the petitioner, he maintains that the regulations conflict with the provisions of VTL others). $5 510, 1193, and 1198 (mong He asserts that they violate the Separation of Powers doctrine; and that the underlying enabling legislation is unconstitutional, as an overly broad delegation of legislative authority. In the alternative, he contends that the Commissioner exceeded her authority as deregated by the legislature. The petitioner also alleges that the new regulations violate his right to due process;that they constitute an illegal Ex Post Facto law; that they are arbitrary and capricious; and that respondent s delay in processing petitioner s application was illegal and improper. The respondents maintain that Part 136 does not conflict with the provisions of the Vehicle and Trafic Law; that Part 136 was adopted pursuant to, and wholIy within the respondents delegated authority, and within the respondents broad discretion. The respondents contend that their actions did not violate petitioner s constitutional rights; and that the withdrawal of respondent s initial approval of petitioner s application, and subsequent delay i processing the application until November 8, 2012 were within n respondents discretion. The determination dated November 8,2012 of the Driver Improvement Examher, which denied Petitioner s application for a new operator s license, recites as follows: On February 17, 2012, you were advised that the previously-grantedapproval to appZy for a new license was withdrawn, and that your application would be subject to additional review. After review of your full driving record, pursuant to the authority contained i n Sections 136.5 (a) (3) and 136.5 (b) (3) (i) of the Regulations of the Commissioner of Motor Vehicles, your application for a New York State driver licensdprivilege is hereby Denied because you are deemed a persistently dangerous driver. 3 [* 4] Section 136.5 (a) (3) provides as follows: Special rules for applicants with multiple alcohol-or drug-related convictions or incidents: For the purposes of this section revocable offense meansthe violation, incident or accident that resuIts i the n revocation of the person s drivers license and which is the basis of the application for relicensing. Upon reviewing an application for relicensing, the Commissioner shall review the applicant s entire driving record and evaluate any offense committed between the date of the revocable offense and the date of application as if it had been committed immediately prior to the date of the revocable offense. For purposes of this section, date of the revocable offense means the date of the earliest revocabIe offense that resulted i 3 license revocation for n which the revocation has not been terminated by the Commissioner s subsequent approval of an application for relicensing, Section 136.5 (b) (3) fi) provides as follows: Upon receipt of a person s application for relicensing, the Commissioner shall conduct a lifetime review of such person s driving record. If the record review shows that: the person has three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 years preceding the date of the revocable offense but no serious driving offenses witkin the 25 years preceding the date of the revocable offense and 4 [* 5] (ii) the person is currently revoked for an dcohol- or drug-related h v i n g conviction or incident, then the Commissioner shall deny the application for at Least five years, after which time the person may submit an application for relicensing. After such waiting period, the Commissioner may i his or her discretion approve such n application, provided that upon such approval, the Commissioner shall impose the A2 restriction on such person s license ¬or a period of five years and shall require the installation of an ignition interlock device in any motor vehicle owned or operated by such person for such five year period. If such license with an A2 restriction is later revoked for a subsequent dcoholor drug-related driving conviction or incident, such person shall thereafter be ineIigible for any kind of license to operate a motor vehicle. The following constitute grounds for such denial: Violation Order Date InciBe~ts/Convictions/Accidents Number Reinstated 09/30/2007 Driving while intoxicated* DO80416OOOO . 03/26/2006 Driving with .08% alcohol in blood D 6 5 17UOOO O0 12/28/2002 Driving whiIe ability impaired - chemical test refusal 12/28/2002 Property Damage Accident * R e v o c a t i o n orders associated with these 5 . [* 6] violations will be reinstated effective November 26, 2012 Your driving history suggests that your failure to observe the rules and regulations governing the operation of a motor vehicle constitutes a serious lack of regard on your part for the safety and welfare of other users of the highway, and forms the basis of our decision to deny your application for a driver license. AltJ~ough may submit an application for a new you driver license on or d e r five years from 04/10/2009, please be aware that a review of any subsequent application will be of the entire driving history at that t h e . Each application is subject to the statutory $100 fee. Tf feel your case inv01ve.s unusual, extenuating or you compelling circumstances, you may send the information to the Driver Improvement Bureau at the above address. Any such information must be sent within 30 days of the date of this letter. The hformation concerning your circumstances will be reviewed and you will be advised of the result. Otherwise, this denial is considered fmal. &Ifyou do not have my unusual, extenuating or compelling circumstances but wish to appeal this decision, you may file rn appeal with the Appeals Board [I. Respondent s Decision of Appeal. dated Februaq 26,20 13 recites, in part, as follows: Appellant s argument that Section 136 5 of the Commissioner s Regulation is inappIicable to appellant is without merit. To conclude that the conviction or incident that formed the basis for appellant srevocation is not to be considered in reviewing appellant s driving record is contrary to fundamental rules of construction and a 6 [* 7] to the statutory intent and purpose of the regulation. Under the Governor s direction, the Commissioner s ReguIations were reassessed to address the inherent danger of relicensing drivers convicted of multiple alcohol and drug-related offenses. The Regulations were developed in an effort to address the problems caused by drivers with a history of alcohol and/or drug related offenses in order to protect all those who share the public highways of this State. The Regulations were implemented as soon as they were enacted on September 25,2012. Reg. Section 136.5 (b) (3) provides that upon receipt of a person s application for relicensing, the Commissioner shall conduct a lifetime review of such person s driving record. The Commissioner shall deny the application for at least five years if the review shows that (i) the person has three or four alcohoI-or drug-related driving convictions or incidents in any combination within the 25 years preceding the date of the revocable offense but no serious driving offenses within the 25 years preceding the date of the revocable offense, and (ii) the person is currently revoked for an aIcoho1- or drug-dated driving conviction or incident. A revocable offense is defined by Reg. Section 136.5 (a) (3) as: a violation, incident or accident that results i the revocation of a person s n driver s license and which is the basis of the application for relicensing. Upon reviewing an application for 7 [* 8] relicensing, the Commissioner shall review the applicant s entire driving record . and evaluate any offense committed between the date of the revocable offense and the date ofthe application as if it had been committed immediately prior to the date of the revocabIe offense. A serious driving offense is defrned by Reg. section 136.5 (a) (2) as: (i) a fatal accident; (ii) a driving-dated Penal Law conviction; (iii) conviction of two or more violations for which five or more points are assessed on a vioIator s driving record pursuant to Reg. Section 13 1.3; or (iv) 20 or more points from any violations. Department records indicate that appellant s driving record indudes three alcohol or drug-related incidents or convictions. Moreover, appelIant s license is currently revoked for an alcohol or drug-related driving incident or conviction. Given appdlant sh v i n g record, there was no abuse of discretion in this case. The Regulations are consistent with the Commissioner s statutory responsibilities and were properly and fairly applied. The denial ofappellant s application for a dtrver s license had a rational basis and shall not be disturbed, Decision By The Board: Affirm the deniaf . To briefly summarize, Part 136 establishes the review criteria which the Commissioner must consider in determining whether the license of someone having multiple 8 [* 9] Commissioner must undertake a lifetime review of the person s driving history, focusing r alcohol or drug related convictions or incidents in his or her lifetime2; and i where the applicanthas three or four such convictions or incidents within a twenty five ye& period, and I a serious driving offense3 & 15 NYCRR 8 136.5 p] [ 11, [Z]). Ax partic111 1y relevant here, it further provides that if a person has three or four alcohol or drug re ated driving convictions or incidents within 25 years, then the Commissioner shdl deny the application I for at least five years (1 5 NYCRR 0 p] [3I), After this five year waiting period has expired, and if the Commissioner approves the relicensing application, the applicant will not receive a full license. Rather, the applicant will be issued a license with an A2 restrijion for a 1 194 of the Vehicle and Traffic Law. (15 NYCRR 136.5 [a]). 9 [* 10] period of five years, and will be required to install an ignition interlock device ( ID ) on any motor vehicle hdshe owns or operates (see 15 NYCRR 136.5 b] [3] [i])Conflicts With The Vehicle and Traffic Law and Other Laws t The Court will review the major arguments advanced by the petitioner ith regard to alleged conflicts between the Vehicle and Traffic Law and Part 136. Five Year Waiting Period. As relevanthere, albeit i simplified terms, VTL 5 1193 (2) @) (12) (a) 1 rovides that n a driver s Iicense must be permanently revoked where the driver incurs three a l ohol andlor drug related offenses (including chemical. test refusals) within a four year pe iod; or four aIcohol a d drug re1ated.offenses(including chemical test refusals) within i I eight year nm period (see VTL 5 1193 [2] [b] [12] [a]). Although the revocation is den sminated as ccpermmefit , contains a further provision which recites that ?he permar :nt driver s it license revocation required by clause (a) of this subparagraph shall be W L ired 31 by the 1121 D , l ; language: e to restore 135.9(b) and the conditions set forth i section 136.4(b) of this Title. As part of this n the commissioner may require a person assigned the problem driver restriction to ins ignition interlock device i any motor vehicle that may be operated with a Class D li n pennit and that is owned or operated by such person. The ignition interlock r e q h noted on a attachment to the driver s license or permit held by such person. Such ah n must be carried at all times with the driver license or permit. 10 =striction, d an Z e m or :nt will be rchment [* 11] a license which otherwise would be restored pursuant to this item, i the ihterest of the n public safetyand welfare @). In a similar fashion, VTL 0 1 193 (2) (b) (12j (d), again i n 1 simplified terms, imposes a permanent license revocation in connection with a fourth that the permanent revocation may be waived by the commissioner after the (xpiration of eight years. The petitioner maintains that by virtue of the language employed in VTL 5 1193 (2) (b) (12) (b) and (e),the Legislature has established a strong policy favoring &conditional 1 restoration of a driver license after the passage of either the five year or eight/year period, and that Part 136 controverts that legislative policy. In other words, the peti$ionerargues that where a person s license is permanently revoked, and where that hdivid4.d may apply for a new license after five years (under VTL 8 1193 [Zf[b] [ 123 [a] and J3])eight y e w or (under VTL 5 1193 [2] [b] [ 121 [d] and [e]) the Commissioner may not lawfdly impose a greater license revocation period. The petitioner argues, inter alia, that Part 136 renders the I provisions ofVTL 5 1193 (2) (b) (12) (b) and (e) supduous by reason that it:lrequires the Commissioner to undertake a lifetime review of a person s driving record; imblements ( n i most cases) a twenty five year look back period; i some instances imposed a life time n prohibition against restoration of a driver license; and imposes an additionL five year waiting period, followed by a five year period with a restricted license, requirement for installation of an ID. 11 [* 12] 8 136.5 of respondent s regulations recites, i p a as follows: n (b) UponTeceipt of a person s application for relicensing, the Cornmissionershall conduct a lifetime review of such person s driving record. If the record review shows that: (1) the person has five or more alcohol- or drug-related driving convictions or incidents i n any combination within his or her lifetime, then the Commissioner shall deny the application. (2) the person has three or four aIcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period and, in addition, has one or more serious driving offenses within the 25 year look back period, then the Commissioner shall deny the application. (3) (i) the person has three or four alcohol- or drug-related driving convictions or incidents i any n combination within the 25 year look back period but no serious driving offenses within the 25 year look back period and (ii) the person is currently revoked for an alcoholor drug-related driving conviction or incident, then the Cornmissioner shall deny the appIication for at least five years after which time the person may submit an application for relicensing. Such waiting period shdl be in addition to the revocation period imposed pursuant to the Vehicle and Traffic Law.After such waiting period, the Commissioner may in his or her discretion approve the application, provided that upon such approval, the Commissioner shall impose the A2 restriction on such person s license for a period of five years 12 [* 13] and shall require the installation of an ignition interlock device in any motor vehicle owned or operated by such person for such five-year period. If such license with a A2 n restriction is later revoked for a subsequentalcohol- or drug-related driving convictionor incident, such person shallthereafter be ineligible for m kind of license to operate a y motor vehicle. (i) the person has three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period but no serious driving offenses within the 25 year look'backperiodand (ii) the person is not currently revoked as the result ofan alcohol- or drug-related driving convictionor incident, then the Commissioner shall deny the application for at least two years, after which time the person may submit an application for relicensing. Such waiting period shall be i addition to the n revocation period imposed pursuant to the Vehicle and Traffic Law. After such waitingperiod, the Commissioner may in his or her discretion approve the application, provided that upon such approva1, the Commissioner shall impose an A2 restJriction, with no ignition interlock requirement, for a period of two years. If such license with an A2 restriction is later revoked for a subsequent alcohol- or drug-related driving conviction or incident, such person shall thereafterbe ineligible for my kind of license to operate a motor 13 [* 14] vehicle. ( 5 ) the person has two alcohol- or drug-related driving convictions or incidents in any Combination within the 25 year look back period, then the Commissioner m y in his or her discretion approve the application after the minimum statutory revocation period is served. (6) the person has been twice convicted of a violation of subdivision three, four or four-a of section 1192 of the Vehicle and Traffc Law or of driving while intoxicated or of driving while ability is impaired by the use of a drug or of driving while ability is impaired by the combined influence of drugs or of alcohol and m drug or y drugs where physical injury, as defined i section n 10.00 of the Penal Law, has resulted from such offense i each instance, then the Commissioner n shall deny the application. (c) The grounds for any denial shall be set forth in writing and a copy shall be made available to the person making the application for relicensing. (d) While it is the Commissioner s general policy to act on applications in accordance with this section, the Commissioner shall not be foreclosed from considemtion of unusual, extenuating and compelling circumstances that may be presented for review and which m y form a valid basis to deviate fiom the general policy, as set forth above, i the n exercise of discretionary authority granted under sections 5 10 and 1193 of the Vehicle and Traffic Law. If an appIication is approved based upon the exercise of such discretionary authority, the reasons for approval shall be set forth in writing and recorded. (I5 NYCRR 5 136.5) The Court observes that the respondent has interposed an objection i point of law n alleging that the petition fails to state a cause of action. The respondent further points out that the petitioner s license was not permanently revoked under VTL 6 1 193 (2) (b) (12). In fact, it appears that petitioner s license was revoked for a period of one year on April 9, 14 [* 15] 2008.5 Under this circumstance, the reissuance of petitioner s Jicense would be governed by VTL 6 1193 (2) (c),which recites: (c)Reissuance of licenses; restrictions. (1) Except as otherwise provided in this paragraph, where a license is revoked pursuant to paragraph (b) of this subdivision, no new license shall be issued after the expiration of the minimum period specified in such paragraph, except in the discretion of the commissioner. (VTL, $ 1193 [ZJ [I]). [c] Thus,on the facts before the Court, VTL 5 1193 (2) (b) (12) has not been shown to have my application to this petitioner, and any direct challenge to Part I36 on this basis presents, at most, a theoretical or hypothetical controversy, which is not justiciable, and hich fails to state a cause of action & CPLR 3001; Ovitz v Bloombern L.P., 18 W 3 d 9 753,760 [2012]; Matter of Schulz v New York State Legislature, 230 AD2d 578,582 13d Dept., 19971). The Court nonetheless recognizes, that the petitioner has advanced a diffuse argument that the penalties, conditions and restrictions imposed under the recently revised Part 136 are more onerous than those imposed by the Legislature under VTL $ I 193 (2) (b) (12), applicable to offenders having driving records more serious than the petitioner. It is argued that by reason of the foregoing, Part 1.36 conflicts with the overall legislative policy. Looking first at respondent s statutory authority to adopt and revise Part 136, VTL Q 2 15 (a) recites: Subject to and in conformity with the provisions of the vehicle and traffic law and the constitution and laws of the state, the commissioner may enact, m e n d and repeal rules and regulations which shall regulate and control the exercise of the powers of the department and the performance of the duties of Which. likely was pursuant to VTL 6 1I93 (2) (b) (3), 15 [* 16] officers, agents and other employees thereof. h addition, the Legislature has conferred broad powers upon the Commission&wit! regard I to licencing and tevocation, including license restoration (s VTL 8 5 10). &e petitioner points out that the provisions of VTL 5 5 IO, are not applicable to alcohol and drug related license revocations (seeVTL 5 5 10, [3] [a] and [6] [hJ)6. While this is true, th& Legislature expressly conferred equivalently broad discretionary power over the reissuanae of licenses 1 which have been revoked by reason of aicohol or drug related revocations (or est refusals) &g VTL § I193 [2] [b] [X2][b] and [e];VTL $1193 [2][c], supra). The Court discerns no conflict between VTL 5 I 193 (2) (b) (I 2) (b) andI Part 136 for three reasom. First, while VTL 5 1193 (2) (b) (1 2) (b) recites that the Commissioner shall I waive a permanent license revocation after five years, such waiver is case review in the interest of public safety and welfare (seeVTL VTL 8 51 1I93 (2) (b) (12) (b) does not preclude an additional revocation, nor does it preclude consideration of additional risk 4 resulting in a lifetime revocation. Thus, the grant of the waiver is not rnandat ,so long as the Commissioner exercises her discretion. 1 Secondly, the issuance of a determination that the license application i denied for five years (after which time the applicant may reapply), white clearIy postponin immediate consideration of the application, serves as formal recognition on the 6VTL 0 5 10 (3) (a) authorizes the Commissioner to revoke or suspend a drivk s license for any violation of the provisions of this chapter, except section eleven hundred dety-two . VTL 8 5 f 0 (6) (h) recites: The provisions of this subdivision shall not apply to revocations issued pursuant to sections eleven hundred ninety-three and eleven hundred ninety-f4ur of this chapter. 16 [* 17] I Commissioner that the revocation is no longer permanent. Third, the adoption of Part 136 should be viewed within the context of the broad delegation of authority given to the Commissioner. Overarching all of the foregoing is the fact that the Commissioner, and only the Commissioner, has been e mt g w n ;e l i a imposed. With regard to the eight year permanent revocation period under (b) (12) (d), as stated in subdivision (e): [n]otwithstanding the provisions of this clause, nothing contained i this clause shall be deemed to require the n commissionerto restore a license to an applicant who otherwise has complied with the requirements of this item, i the interest n of public safety and welfare. I I I Thus, on its face, there does not appear to be any stated preference favoring issuance of a new license in connection with Iicense revocations under VTL $ 1193 (2) Moreover, and apart from the foregoing, VTL 8 1193 (2) (b) follows : For revocations imposed pursuant to clause [a] of this I7 I [* 18] subparagraph, the commissioner may adopt rules to permit I conditignal or restricted operation of a motor vehicle by any I such person after a mandatory revocation period of not less than three years subject to szscbz critwiu, terms and coptditiom as established by the commissioner. (emphasis supplied) ~ , I Part 136, which delay issuance of a conditional or restricted license. The five year waiting period under Rule 136.5 @) (3) has not been shown to conflict with the provisions of VTL 6 1193 (2) (b) (12) (b) or (e),or other provisions of the Vehicle and Traffic haw. I I I - Five Year Imition Interlock The petitionermaintains that the requirement for installation of an I , connection Di n with issuance of an A2 restricted license under Rule 136.5 (b) (3) (i) violates several statutory provisions. Because, however, the petitioner was not issued an A2 restricted license, for the same reasons mentioned in the Court s discussion of VTL 5 1193 (2) (b) ( 12) the Court is of the view that this claim fails to state st cause of action, as there is no justiciable controversy. Even if, however, the Court were to determine that the matter was justiciable, the Courtwouldfrnd~attheargumenthasnomerit.15NYCRR $8 3.2(~)(4), 136.4 (b)(Z>and 136.5 (b) (3) authorize the Commissioner to impose an A2 Problem Driver Re-k.iction on certain licenses for a period of five years. The restriction may indude a requirement that the that the XID requirement conflicts with Penal Law 5 65.10 (2) (k-1) and VTL 5 1198. These 18 [* 19] 1198 [2]), when imposing a sentence of probation or conditional discharge connection le owned or v L e v (91 Penal Law 1 . connection ,1 it did not vhile ability a sentence ondition of Convicted legislature, include the tl discharge 19 [* 20] [I no new license shall be issued after the expiration of the minimum perk such paragraph, except in the discretion of the c ~ m i s s i o n e r(VTL 9 1193 ~ The Appellate Division recently observed: [Wlhen a person is convicted of driving while intoxicated under Vehicle and Traffic Law 9 1192 (2), the court may sentence such person to a period of imprisonment . . .and shall sentence such person to a period of probation or conditional discharge i accordance with vehicle and Traffx Law 5 651 n and shall order the installation and maintenance o a f functioning ignition inferlock device (Penal Law 5 60.2 l]). people v Barley, -AD3d [3d Dept., January 30,20141, emphasis supplied) - . . If anything, the legislative po1icy may be viewed to uniformly require installr :ionof an TID after conviction of most alcohol related offenses (s Penal Law 9 0.21). I The administrativeimposition of an LID requirement in connection with issuance oj a conditional e w restrictive license is merely a rational extension of the foregoing policy, circums~ces, Court finds that the Legislature conferred sufficient authc the respondent, in her dismtion, to adopt the I D provisions set forth in Part 136. They do not conflict with the provisions of Penal Law 4 65.10, VTL 5 I193 or VTL 8 119 . One further point should be made. The petitioner advances the argumen that the IID requirement is improper and illegal by reason that the cost of the IID is deem a fine under VTL 5 1198. The petitioner, citing Matter of Redfdd v Melton (57 AD2d 4 1 [3d DepL, 19771) maintains that the respondent has no authority to impose or collect an iIlegal fine. 1Y P Two points need to be made. First, Part 136 does not, i any respect, mention e wst of an n IID and does not attempt to impose or coIlect a fine, fee, cost or assessment. Sec pdl ,while the petitioner is correct, in that VTL 0 1198 recites that the cost of installation and 20 [* 21] . Twmly-Five Year Look-Back Period and Life-Time Review of Driving Record $ 136.5 of the Rules of the Department of Motor Vehicles provides that where a person submits an application for relicensing, the Commissioner will conduct a fifetime review of the person s driving record ( E 15 NYCRR 136.5 [bJ). As noted, Part 136 provides for what is essentially a life time denial of a new license: (1) where the applicant (see id.). 21 [* 22] 125.14 (3). 22 [* 23] (e) are not justiciable in that, 01s noted above, the petitioner has not shown tl t his license was permanently revoked. Lifetime License Denial Because there is no evidence that a lifetime license denial has been imp ied upon the petitioner (see 15 NYCRR Q 136.5 [b] [l], [2]), for the s m e reasons men omd i the n Court s discussion of the five year waiting period, the Court is of the view tl 1tthiS claim fails to state a cause of action, by reason that there is no justiciable controver 7. The petitioner points out that 0 136.5 of the Rules directs that if a pem I. has five or more alcohol or drug related driving convictions or incidents i his or her lifa ne (or three n or four such convictions or incidents, and one or more serious driving offei ;es within a twenty five year period), then the relicensing application must be denied & i NYCRR Q 136.5 [b] [I]). The petitioner indicates that the Vehicle and Traffx Law conti ns only one provision which imposes a lifetime prohibition with respect to issuance of a .ew license. This is VTL 6 1193 (2) (c) (3), where the licensee has been twice convicted a violation of VTL Q 1192 () (4) and (4-a), or convicted of driving while intoxicat i or stbifity 3, impaired by drugs or a combination of drugs and alcohol, and where physical ir x y resulted from each underlying incident. The petitioner argues that 5 136.5(b) (1) gredj :xpands the circumstances under which a lifetime revocation may be imposed, and that it ir ?ermissibly conflicts with VTL 0 1 193 (2) (c) (3). The foregoing statutory language, which rohibits the ; grant of a license in limited factual circumstances, does not, i the Court s vi w evince a n legislative intent to curtail the Commissioner, in her discretion, from imposing c her lifetime 23 [* 24] license restrictions pursuant to VTL 0 215. Thus, even if the Court were tc issue concerning a lifetime license denial was justiciable, the Court would fin no conflict. 15 NYCRR $136.10. Rule 136.10 (b) recites as follows: (a) Application by the holder of a post-revocation conditional license. Upon the termination of the period of probation set by the court, the holder of a post-revocation conditional license may apply to the Commissioner for restoration of a license or privilege to operate a motor vehicle. An application for licensure may be approved if the applicant demonstrates that he or she: (1) has a valid post-revocation conditional license; and. (2) has demonstrated evidence of rehabilitation as required by t h i s Part. (b) Application after permanent revocation, The Commissioner may waive the permanent revocation of a driver s license, pursuant to Vehicle and Traffic Law section 1193(2)(b)(12)(b) and (e),only if the statutorily required waiting period of either five or eight years has expired since the imposition of the permanent revocation and, during such period, the applicant has not been found to have refused to submit to a chemical test pursuant to Vehicle and Traffic Law section 1194 and has not +beenconvicted of any violation of section 1192 or section 5 1 1 of such taw or a violation of the Penal Law far which a violation of any subdivision of such section 1 192 is an essential element. In addition, the waiver shall be granted only if: (I) The applicant presents proof of successll completion o f a rehabilitation program approved by the Commissioner within one year prior to the date of the application for the waiver; provided, however, if the applicant completed such program before such time, the applicant must present proof of completion of an alcohol and drug dependency assessment within one year of the date of 24 [* 25] application for the waiver; and. (2) The applicant submits to the Commissioner a certificate of relief fkom civil disabilities or a certificate of good conduct pursuant to Article 23 of the Correction Law; and. (3) The application is not denied pursuant to section 136.4 or section 136.5 of this Put; and. (4) There are no incidents of driving during the period prior to the application for the waiver, as indicated by accidents, convictions or pending tickets. The consideration of an application for a waiver when tke applicant has a pending ticket shall be held i abeyance until such ticket is n disposed ofby the court or tribunal (1 5 W C R R 136.10) The petitioner maintains that paragraph (b) of Rule 136.10 conflicts With the provisions of VTL 5 1193 (2) (b) (12) @) and (e) by including subdivisions (1) through (4) as additional requirements to relicensing, requirementsnot mentioned i VTL 5 1193 (2) (b) n In the Court s view, nothing within the Vehicle and Traffic Law prohibits the Commissioner from imposing additional requirements upon asl applicant seekhg to regain his or her license after multiple alcohol or drug related convictions, provided they have a rational basis. Because the Legislature has been very specific i directing that reissuance n of a driver license remains within the Commissioner s discretion, so long as the criteria have are reasonably related to public safety and welfare, they may properly be applied. The Court discerns no conflict betweep Rule 136,lOand VTL 5 1193 (2) (b) (12) @) and (e). Accumulation of Pohts. 25 [* 26] The petitioner objects to the provisions of Rule 136.5 (a) (2) and Rule 132.1 (d), which define a serious driving offense to include a conviction oftwo or more violations for which five or more points are assessed, or where a driver has twenty or more points from any violations (see 15 NYCRR 136.5 [a] [2]; 15 NYCRR 132.1 [d]) . The petitioner proffers several hypothetical examples with regard to how use of the point system, particularly over the twenty-five year look back period is unfair; and leaves other drivers, having far worse driving records, on the highways. I the Court s view, consideration of accumulated points n against a applicant s h v e r license is not unreasonablewhen determining whether to restore n the applicant s license. Constitutional Issues, Generally Before addressingthe various constitutional issues raised by the petitioner the Court must h t observe that challenges to the constitutionality of a statute or regulation fall withitl two categories: a facial challenge to the statute or regulation, or a more limited as-applied challenge. With regard to a facial challenge, as stated i Moran Towine:CQI D. Urbach (99 n v NY2d 443 [2O03I): In order to prevail [a party] must surmount the presumption of constitutionalityaccorded to legislative enactments by proof beyond a reasonable doubt. A party mounting a facial constitutional challenge bears the substantial burden of demonstrating that i any degree and i every conceivable n n application, the law suflm wholesale constitutional impairment. In other words, the challenger must establish that no set of circumstances exists under which the Act would be valid at 448, quotations and citations omitted; see also (a, Point values are assessed under I5 NYCRR 131.3. 26 [* 27] Hunter v Warren Counq Board ofSupewisors, 2 1 AD3d 622, 624 [3d Dept., 20051). On the other hand, [] an as-appliedchallenge calls on the court to consider whether a statute can be constitutionally applied to the defendant under the facts of the case people v Stuart, 100 NY2d 412 [2003], at 421). Improper Delegation of Authority, Separation of Powers, and Preemption The petitioner argues that Part 136 is the product of an unconstitutionally broad delegation of legislative authority to the respondent; or, i the alternative, that the n respondent, i adopting Part 136, exceededits legislative authority, and i so doing invaded n n an a e preempted by the legislature. The Court has structured its discussion i the same ra n manner adopted by the Court of Appeals in Boreali v Axelrod (71 NY2d 1 [1987]). DelenatiodSeparation of Powers Issue [Tlhe constitutionalprinciple of separation of powers, implied by the separategrants of power to each of the coordinate branches of ,government,requires that the Legislature make the critical policy decisions, while the executive branch s responsibility is to implement those policies (Bowauin v Cuomo, 85 NY2d 78 1,784 [ 19951 [internal quotation marks and citations omitted]; see Saratoga County Chamber o Commerce v Pataki, 100 f NY2d 801,821 [2003]; Ellicott Group, LLC v State of N.Y. Exec. Dept. Off, of Gen, Sews., 85 AD3d 48, 54 1201I]), Wh~le separation of powers doctrine gives the Legislature the considerableleeway in delegating its regulatory powers, enactments conferring autho&y on administrative agencies in broad or general terms must be interpreted in light of the 27 [* 28] hitations that the Constitution imposes (Boreali v Axelrod, 7 1 NY2d 1, supra, at 9,citing NY Const. art 111, Q 1). However facially broad, a IegisIative grant of authority must be construed, whenever possible, so that it is no broader than that which the separation of powers doctrine permits (d, citation omitted). Notably, it has also been said: some overlap between the three separate branches does not violate the constitutional pincipfe of separation of powers (Clark v Cuomo, 66 NY2d 185 (19851, at 189). It is only when the Executive acts inconsistently with the Legiskitwe, or usurps its prerogatives, that the doctrine of separation is violated. (id,), Both parties have advanced arguments that the Boreali case (xtrpra) supports their respective position. Boreali dealt with certain provisions of the Public Health Law8which restricted smoking in certain designated areas, namely, Iibraries, museums, theaters and public transportation facilities. The Public Health Council in Boreali had adopted regulations which expanded the smoking prohibition to a wide variety of indoor areas open to the public, areas not enumerated i the Public Health Law. In dual holdings, the Court of n Appeals determined (1) that the regulations violated the doctrine of Separation of Powers (and for this reason were found to be invalid); but (2) that they did not violate principles of preemption. In addressing the issue of whether the Commissioner of Health had exceeded hiis LegisIatively delegated authority, the Court of Appeals relied upon Public Health Law § 225 (5), which the Court summarized as authorizing the Commissioner to deal with any matters affecting * * public health (Boreali v Axelrod, 71 NY2d 1, at 9, quoting Public Health gPublicHealth Law, art 13-E, 06 1399-0 - 1399-q. 28 [* 29] Law 5 225 [SI). The Court of Appeals commented [hlere, we cannot say that the broad enablhg statute i issue is itself an unconstitutional delegation of legislative authority (d.). n This finding, i the Court s view, has appIication here, in that the respondent has been n granted exclusive administrative authority over the revocation and issuance of driver licenses (see g;enerdlyVTL$5 501 [l]; 5 10 [6] [aJ; see specificdly VTL 501 193 [21 [b] [la] [bl,[3] and 1193 [2] IC] [l]), and authority to adopt rules and reguIations to carry out its responsibilities (see VTL 5 215 [a] ; VTL f 1193 [Z] [b] [12j [c]). Inasmuch as the delegation of authority here is at least as explicit, if not more so, than that in Boreali, the Court finds that there was a proper delegation to the respondent. The Court of Appeals in Boreali identified four criteria to define the line between administrative rule-making and legislative policymaking: ( 1) whether the agency acted within its legislatively delegated policy goals; (2) whether the agency was merely filling i n the details of broad Iegislation describing the overall policies to be implemented, as opposed to [writing] on a clean slate without the benefit of legislative guidance; (3) whether the legislature had repeatedly tried but failed to adopt legislation in this area; and (4) whether the agency has special expertise i the area n aBoreali v Axelrod, s u p , 11- 14). Although, as noted, the Court of Appeals i Boreali found that there was a proper delegation of n authority, it found that the Commissioner exceeded such authority when, i developing nonn smoking regulations, it considered social and economic policy issues, rather than confining VTL 5 215 recites: (a) General. Subject to and in conformity with the provisions of the vehicle and tr&c law and the constitution and laws of the state, the commissioner may enact, amend and repeal d e s and regulations which shall regulate and control the exercise of the powers of the department and the performance of the duties of officers, agents and other employees thereof. [I 29 [* 30] himself strictly to public health issues. The Court of Appeals found that at that point the i ( Commissioner had intruded into a uniquely legislative function & at 12). Here, Part 136 falls squarely within the policy and purpose of the provisions of the VTL to protect public safety and welfare. It has not been shown that Part 136 was adopted pursuant to extraneous social or economic policy issues. As noted above, there are multiple Legislative authorizations with regard to the Commissioner s power to regulate the issuance of driver licences, The respondent did not % re wt i on a clean slate by creating its own comprehensive set of rules without legislative guidance (id., at 1 3), Rather, Part f 3 6 carries out the Commissioner s legislatively delegated authority. With regard to the legislature spast efforts to adopt legislation i this area the petitioner, in reply papers, has submitted evidence n of a single prior instance in which the Legislature attempted but failed to impose a twenty five year look-back period for certain driving offenses o.In this respect, the petitioner has not demonstrated that, prior to the revision of Part 136, the Legislature had repeatedly failed to legislate in this area. Lastly, the Court is of the view that public safety and welfare with regard to the operation of motor vehicles upon state roadways is a matter within the technical competence of the Commissioner. Under all of the circumstances, the Court finds that the adoption of Part 136 did not overstep the line between administrative rule-making and legislative policy makhg. PreemDtion and the Legislature s Intentions As relevant here, where there is a perceived conflict between two co-equal branches See 201 1 Senate Bill 6479. 30 [* 31] of government, the inquiry inchdes an examination of both the scope of the stafxte authorkhg the regulatory activity and the degree to which the administrative rules are either consistent or out of harmony with the policies expressed in the statute (Boredi v Axelrod, supra, at 15). Because the Legislature had given the agency a wide field for exercise of its regulatory authority , and because the regulations were consistent with the legislativepolicy, the Court of Appeals, despite finding that the regulations violated the Separation of Powers dwtrine, declinedto find that the regulationsviolated the principle of legislative preemption. Notably there, the Court found that there was nothing i the enabling legislation to suggest n a legislative intention to narrow the IegisIative mandate or exclude the area of smoking restrictions (id.). Thus, even though the regulations expanded the number and variety of non-smoking locations this fact, of itself, did not establish that the Public Wealth Council had violated the principaI of legislative preemption. The Court is of the view that this is essentially what has occurred here. T h e petitioner points to no provision ofthe Vehicle and Traffic Law which expressIy precludes or limits the promulgation of rules with regard to the reissuance of driver licenses. As noted, the Vehicle and Traffic Law does not prohibit adoption of rules governing lifetime review of an applicant s driving history. Nor, i the n Court s view, dues it prohibit the twenty-five year look-back period, the five year waiting period, the A2 restricted license, the IID, or the lifetime denial of a license. For this reason, and mindful that the LegisIature has granted the Commissioner broad powers with regard to rule making and discretionary review, the Court finds that the petitioner has not demonstrated that Part 136 is inconsistent or out of harmony with the Vehicle and Trafic Law. Under all of the circumstances, the Court finds, as the Court of Appeals did in Boreali9 31 [* 32] that the petitioner s arguments concerning legislative preemption have no merit. The Court finds that the petitioner has failed to demonstrate the merit of his claim with respect to a violation ofthe Separation of Powers Doctrine, either as a facial. challenge or as-applied to him personally. Ex Post Facto Clause and Retroactivity [Tlhe Ex Post Facto Clause prohibits legislation that makes criminal an act not criminal when committed or increases punishment for previously committed offenses (Hunter v Warren County Board of Supervisors, 2 1 Al33d 622,624-625 [3d Dept., 2005I). Phrased differently, the Ex Post Facto clause applies only to penal statutes (Cerro v Town of Kingsbury, 250 AD2d 978, [3d Dept., 19981, citing Kansas v Ifendricks, 521 US 346, 370-371, 117 S Ct 2072, 2086). The foregoing principle was applied to provisions of the New York Sex Offender Registration Act ( SORA ), where the Court found that certain provisions of SORA were not punitive, and therefore did not violate the Ex Post Facto Clause (see People v Parilla, IO9 AD3d 20 [ 1st Dept., 20131, 23 -30). From a review of the affidavit of Ida L. Traschen, First Assistant Counsel of DMV, it appears that the purpose of Part 136 is to protect the public safety and welfare, not to impose punitive sanctions. In addition, it has been held that the Ex Post Facto Doctrine does not apply to administrative regulations (see Robinson v Bennett, 3 00 AD2d 7 15 , 7 16 [3d Dept., 20021; Matter of Suce v Tavlor, 37 AD3d 886,887 [3d Dept., 20071). Apart from the foregoing, it well estabhhed that laws or regulations are not retroactive where they apply to future transactions merely because that will require consideration of antecedent events 32 (see Miller v DeBuono, 90 [* 33] NY2d 783 [1977];Forti v NYS Ethics Corn., 75 NY2d 597 [1990]; Matter of Talisman Enerm USA. Inc. v New York State Dept. of E n d . Conservation, -AD3d , 2014NY Slip Op 150 [3d Dept., January 9,20141). Ms. Traschen avers in her affidavit that i November of 2012 oficials at DMV n became aware of cases where individuals with multiple alcohol related offenses were re- licensed after a minimum revocation period; and that repeat offenders were responsible for a dis-proportionate amount of alcohol-related injuries statewide. For this reason, DMY determined, in February 20 12, that it was necessary to develop more rigorous criteria for relicensing. Incident to the foregoing, it was decided that all pending license applications should be temporariIy held, so that they could be reviewed in a uniform fashion under the new regulations. Thereafter, on September 25,2012, DMY filed a Notice of Emergency and Proposed Rulemaking in relation to 15 NYCRR Parts 3 , 134 and 136. Because no license had yet been issued to the petitioner, and petitioner s application had not been finally determined, the Court is of the view that the respondent could properly utilize revised Part 136 i its review. The Court fmds that the petitioner has failed to demonstrate the merit of n his claim with respect to a violation of the Ex Post Facto Clause, either as a facial chdlenge or as-applied to him personally. Incidental to the foregoing, the Court fds that the petitioner is not entitled to a review of his license application under former Part 136. Due Process It is well established that a driver slicense is a substantial property interest that may not be deprived without due process of law , - 33 88 NY2d 426,43 1 [ 19961, [* 34] 402 US 535, 539, 29 L Ed 2d 90, 91 S Ct 1586). Although the citing constitution recognizes a right to travel within the United States, referred as the right to to h e movement Selevan v. N.Y. Thruway Auth., 584 F.3d 82,99 [2d Cir. N.Y. ZOOS]), it does not recognize a fundamental %ght to drive Miller v Reed, I76 F.3d 1202, 1205-1206 1 t Cir. Cal. 19991). As stated in Bell v Burson (sum): 9h ollcelicenses are issued, as in petitioner s case, their continued possession may become essential i the pursuit of a livelihood. n Suspension of issued licenses thus involves state action that adjudicatesimportant interests ofthe licensees, In such cases the Iicenses are not to be taken away without that p r o c e d d due process required by the Fourteenth Amendment. (Bell v Burson, supra, at 539, citing Sniadach v Family Finance Corp., 395 US. 337 [1969], and Goldbere v. Kelly, 397 U.S. 254 [19701, e m p h i s supplied; see also Scott v Williams, 924 F.2d 56,58 1 t Cir. Va. 1991I) 4h That being said, it has been held that a due process right arises only where the applicant has zt legitimateclaim of entitlement to the license, not a merely a unilateral expectation &g Baer v White, 2009 U.S. Dist. Lexis 46412, 2009 WL 1543864 [U.S. Dist. C . Northern t, Dist. of Illinois, Eastern Div., 20041; see generally Board of Regents v Roth, 408 U.S. 564, 577 [1974). In this instance, the petitioner no longer has a license. Under V TL 0 1 193 (2) (c) (1) reissuance of a license is i the discretion of the Commissioner. me petitioner, at n best, may be viewed as possessing a unilateral expectation that he would receive a license, not a bona fide right to same. Under such circumstances, Due Process was not implicated. In addition, with regard to review of his license application under Part 136, it is well settled that there is no Due Process right in a particular state-created review procedure (see Mevers v Citv of New York, 208 AD2d 258,263 [2d Dept., 19951). Apart from the foregoing, if it 34 - [* 35] were necessary to reach the issue, the Court would find that there is suficient protection available to the petitioner to fuIfill the requirements of procedural due process, by way of an administrative appeal, followed (if necessary) by review of an adverse agency determination pursuant to CPLR Article 78. The Court finds that the petitioner has failed to demonstrate the merit of his claim with respect to a violation of the Due Process Clause, either as a facial challenge or as applied to him personally. Administrative Delay As noted, the petitioner indicates that i a determination dated February 14,2012he n was advised that he had been approved to apply for a driver s license. However, in a subsequent determination dated February 17, 2012 he was advised that the previouslygranted approvaI had been withdrawn , and that it was subject to additional review. Nothing further occurred until November 8,20 12, when DMV advised the petitioner that his application for permission to apply for a new license was denied. Revised Part 136 took effect on September 25, 2012. The petitioner argues that the delay i processing his n application between mid-February 20 12 and November 8, 20 12 violated due process, violated notions of fundamental fairness, violated respondent s duty to follow the law i n effect at the time of petitioner s application, violated respondents duty to process petitioner s application in a timely manner, was arbitrary and capricious, andor constituted an abuse of discretion. Respondent s temporary suspension of the review of new license applications was within her inherent discretionary authority, consistent with her statutory duty to oversee 35 [* 36] issuance of licenses (see Shefield Towers Rehabilitation& Health Care Ctr. VNovello, 293 AD2d 182,186 [2d Dept., 20021; Matter of Schubert v New York State Department of Motor Vehicles, Sup. Ct., Albany Co., October 1 2012, unpublished, Index No. 3442- 121). , Moreover, there does not appear to be a specific deadline within the Vehicle and T&c Law for the respondent to process or complete its consideration of an application for a driver license & Wolf v Novello, 297 AD2d 746,747 [2d Dept., 20021). The Court discms nothing improper in holding petitioner s application open for period of time u t i 1 it fmalized revisions to Part 136, after which it resumed its review. CPLR Article 78 Relief The Court observes that the Court s role i reviewing an administrative determination n is not to substitute itsjudgment for that of the agency, but simply to ensure that it is not made in violation of lawful procedure or affected by an error of law, and was not arbitrary and capricious or an abuse of discretion (& CPLR 7803 [31; Matter of Peckham v Calogero, 12 M 3 d 424,43 1 [2009]; In the Matter of Terrace Court, LLC v. New Yo& State Division of Housing and Community Renewal, 18 NY3d 446,454 [20 121; Matter of Warder v Board of Repents, 53 NY2d 186,194; Matter of Flacke v Onondaga Landfill Sys., 69 NY2d 355,363; wn v Koch, 75 NY2d 561,570; Matter of Prestige Towing & Recovery. Xnc. v State of a New York, 74 AD3d 1606 [3d Dept., 20101). An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts (In the Matter of Murphy v New York State Division of Housing and Community Renewal, 21 NY3d 649, [2013], quoting Peckham v Calogero, 12 NY3d 424 E20091 at 431, which cited Matter of Pel1 v 36 [* 37] Board of Educ., 34 NY2d 222,23 1 [19741). As discussed above, the Court finds that Part 136 does not violate the c ted provisions ofthe New York or Federal Constitution, or conflict with the Vehicle and 7 r a f i c Law (or other cited Iaws). The Court finds that Part 136 is compatible and in kel ping with the Legislature s delegation of authority as set forth in the Vehicle and Traffic Law, and was adopted in the interest of public safety and welfare. The Court finds that it as a rationale basis, was not arbitrary or capricious or and abuse of discretion, and is not fleeted by a n error of law. With regard to the November 8; 20 12 determination m, Cow . observes that the the respondent reviewed the petitioner s individual driving record and found that it constituted a serious lack ofregard on your part for the safety and welfare d other users of the highway . The determination was made within the Commissioner s dl iretion, under the statutory authority set forth in VTL Q 1193 (2) (c) (I). The Court finds that the determination was not made in violation of lawful procedure, is not affectec by an error of law, and is not irrational, arbitmy and csapricious, or constitute an abuse of liscretion. To the extent that the petitioner seeks an order pursuant to CPLR 780: (1) to compel the respondent to issue him a driver s license, relief i the nature of man( mus is only n appropriate where the right to relief is clear and the duty sought to I e enjoined is performance of an act commanded to be performed by law, purely ministerial md involving no exercise of discretion (Mtr Hamptons Hosp v Moore, 52 NY2d 88 96 [1 3 11; Matter of : Legal Aid Socy. Of Sullivan County v S c h e h m , 53 NYZd 12, 16; Matt r of Maron v Silver, 58 AD3d 102, 124-125 [3d Dept., 20081, lv to app denied 12 NY31 909). cc The 37 [* 38] g a d principle [is] that mandamus will lie against an administrative officer inly tocompel him [or her] to perform a legal duty, and not to direct how he [or she] sha I perform that duty (Klostermann v Cuomo, supw p. 540,quoting People ex rel. Schau McWilliams, 185 N 92,100). In this instance, the issuance of a driver s license is withh the discretion Y of the Commissioner. For this reason, the remedy of mmdamus to compel [ill not lie. The petitioner has pointed out many other instances of alleged conflicts and inconsistencies between Part 136 and provisions of existing law which ave not been specifically delineated herein. Several of petitioner s arguments (some of wl ich have been noted) rely upon hypothetical circumstances not shown to directly pertain to he petitioner. The Court has reviewed and considered all of the petitioner s remaining i :guments and contentions with regard to Part 136, and finds them to be without merit n e Court is particularly cognizant of the argument advanced by the petitioner, with respectto Rule 136.5 (a), that while the Cornmissioner may deviate from the requirements of paragraph @) by reason of ununusual, extenuating and compelling circumstances ,that i practice this is never n done. Were, there is no showing that the petitioner availed himself of the provisions of Rule 136.5 (d) by presenting an argument that there were unusual, extenuating ar.d compelling circumstancesapplicable to him. Beyond that, the petitioner has presented c.0 evidence to was determined, assuming that the petitioner had properly raised an argument under Rule 38 [* 39] 136.5 (d). The Court is mindful that the petitioner has requested that the Court issue a number of declaratiom with respect to his request for judgment pursuant to CPLR 3001. Because it only appears that Rule 136.5 (a) and (b) (3) directly apply to the petitioner, the Court will limit its declaration to these provisions. Accordingly, it is ORDERED, ADJUDGED and DECLARED, that 15 NYCRR Part 136 does not constitute a facial violation of the Separation of Powers DocQine, the Ex Post Facto Clause, or the Due Process Clause; and it is further ORDERED, ADJUDGED and DECLARED, 15 NYCRR Part 136, as applied that to the petitioner and to the extent discussed herein, does not conflict with the provisions of the Vehicle and Traffic Law or Penal Law; and it is M e r ORDERED, ADJUDGED and DECLARED, 15 NYCRR Part 136, as applied that to the petitioner, does not violate the Separation of Powers Doctrine, the Ex Post Facto Clause, or the Due Process Clause; and it is further ORDERED, ADJUDGED and DECLARED, the provisions of the Vehicle and that Traffic Law, as applied to the petitioner, do not constitute an unconstitutional delegation of legislative authority to the respondent with regard to issuance of driver licenses; and it is ORDERED, ADJUDGED and DECLARED, that 15 NYCRR Part 136, as applied to the petitioner, does not constitute an act in excess of respondent s legislatively delegated authority; and it is ORDERED and ADJUDGED, with respect to that portion of the petition which 39 [* 40] seeks relief pursuant to CPLR Article 78, that the petition be and hereby is dismissed. This shall constitute the decision, order and judgment of the Court. The origind decisiodorderljudgmentis returned to the attorney for the respondent. All other papers are being delivered by the Court to the County Clerk for filing. The signing of this decisionlorderljudgment and delivery of this decisiodorderljudgment does not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved h m the applicable provisions of that rule respecting filing, entry and notice of entry. ENTER Dated: A d February 21,2014 Troy, New York c . \ George B. Ceresia, Jr. Supreme Court Justice Papers Considered: 1. 2. 3. 2. Notice of Petition dated April 26, 2013, Petition, Supporting Papers and Exhibits Respondent s Answer dated June 1 1,2013 and Exhibit Affirmation of Ida L. Traschen, Esq. filed June 17,2013 Reply of Eric H. Sills, sworn to September 30,2013 and Exhibits 40

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