Matter of Roderick v New York State Dept. of Motor Vehs.
Annotate this CaseDecided on February 15, 2019
Supreme Court, Rockland County
In the matter of the application of Donald J. Roderick, Petitioner,
against
New York State Department of Motor Vehicles and BEW YORK STATE DEPARTMENT OF MOTOR VEHICLES APPEALS BOARD, and THERESA L. EGAN, in her official capacity as Executive Deputy Commissioner, Respondents, for a judgment, pursuant to CPLR Article 78, annulling the determination of the Appeals Board which affirmed the Driver Improvement Bureau and denied Petitioner's application for relicensure under the exceptions set forth at NYCRR Part 136.5.
35729/2018
Paul I. Marx, J.
The following papers numbered 1 through 5 were read on Petitioner Donald J. Roderick's Article 78 Petition, brought by Order to Show Cause, seeking (1) limited discovery of the applications for exemption granted by Respondents under 15 NYCRR § 136.5(d); and (2) an order annulling and reversing Respondents' decision affirming the denial of Petitioner's application for reconsideration of their denial of relicensure; and (3) granting Petitioner a driver's license:
Order to Show Cause/Petition/Exhibits 1-61-2
Memorandum of Law in Support of Petition & in Support of Limited Disclosure ... .3
Verified Answer and Return/Exhibits A-M4
Reply Memorandum of Law5
Upon reading the foregoing papers, it is ORDERED that the Petition is denied and dismissed for the reasons which follow.
BACKGROUND
Petitioner seeks to overturn Respondents' decision affirming the denial of Petitioner's request for reconsideration of Respondents' decision to not reissue Petitioner's driver's license, which was revoked after he was convicted of three alcohol related driving offenses. Petitioner seeks return of an unrestricted driver's license, or, in the alternative, return of his driver's license with a restriction only on late night driving. Petitioner contends that Respondents failed to weigh the unusual, extenuating and compelling circumstances of his case, which, he asserts, formed a valid basis to deviate from the general policy to deny reissuance of a driver's license to someone who has three or four alcohol related convictions.
Petitioner alleges that he lives alone in Tuxedo, New York, and has no one in his life who can chauffeur him around. Petition at ¶¶ 7-12. Petitioner alleges that he suffers from severe end [*2]stage osteoarthritis and obesity, which makes it extremely painful for him to walk distances greater than 30 feet. Id. at ¶¶ 7-8. Petitioner alleges that public transportation is not readily accessible in his area and would be of no help to him given the restrictions on his mobility caused by his medical condition. Petitioner alleges that taking taxis to his work sites in Connecticut and New York, his medical appointments, church and the supermarket would be "prohibitively expensive". Id. at ¶ 16.
Petitioner asserts that his license should be returned to him because his alcohol convictions were all for late night driving and he "has never had problems with drinking and driving during regular day time activities, such as going to or from work, or to church on Sundays, or to medical appointments." Id. at ¶¶ 22-23. Petitioner suggests that "[i]f some restriction [is deemed] necessary, the needs of public safety could be met by restricting Petitioner's driving at night with perhaps the addition of an ignition interlock device." Id. at ¶ 24.
Petitioner alleges that "Respondents have forced [him] into the impossible position of choosing between the necessities of life or breaking the law." Petitioner alleges that "Respondents have subjected [him] to cruel and unusual punishment by hampering his ability to lawfully seek medical treatment, and the other necessities of life."
Petitioner's case falls within NYCRR § 136.5, which, as titled, sets out "Special rules for applicants with multiple alcohol- or drug-related driving convictions or incidents and for applicants with an alcohol-related conviction related to a fatal accident". Petitioner was convicted of three alcohol related driving incidents, which occurred within the twenty-five year period during which Respondents were required to look back at his driving record. On November 5, 2017, Petitioner applied for relicensure after the 90-day revocation period mandated by VTL § 1193(2)(a)(8) had run since the revocation of his license on July 20, 2017. Petitioner's application was made within the mandatory five-year waiting period under NYCRR §136.5(b)(3), during which his license could not be reinstated.
Petitioner's circumstances are governed specifically by Section 136.5(b)(3)(i) and (ii), which concerns relicensing of persons convicted of multiple alcohol related driving offenses that are not deemed to be "serious driving offenses". The provision reads, in relevant part, 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:
(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 back period; and(ii) the person is currently revoked for an alcohol- or drug-related driving 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.Pursuant to that provision, Respondents were mandated to deny relicensing to Petitioner "for at least five years". 15 NYCRR § 136.5(b)(3)(ii) (emphasis added).
On April 12, 2018, Petitioner requested reconsideration of the denial, claiming "unusual, extenuating, and compelling circumstances" pursuant to 15 NYCRR § 136.5(d). That provision reads as follows:
While it is the Commissioner's general policy to act on applications in accordance with this section, the Commissioner shall not be foreclosed from consideration of unusual, extenuating and compelling circumstances that may be presented for review and which may form a valid basis to deviate from the general policy, as set forth above, in the exercise of discretionary authority granted under sections 510 and 1193 of the Vehicle and Traffic Law. If an application is approved based upon the exercise of such discretionary authority, the reasons for approval shall be set forth in writing and recorded. If an approval is granted based upon unusual, extenuating and compelling circumstances, the applicant may be issued a license or permit with a problem driver restriction, as set forth in section 3.2(c)(4) of this Title, and may be required to install an ignition interlock device in any motor vehicle owned or operated by such person for a period of five years. The provisions of this subdivision shall not apply to denials under paragraph (b)(6) of this section.On April 20, 2018, Petitioner's request for reconsideration was denied based upon his failure to adequately support his request with "sufficient verifiable, corroborating documentation [which] met the requirement of all three criteria of unusual, extenuating and compelling" under § 136.5(d) of the regulations. Respondents' Answer, Exhibit G (emphasis in original). He was told that he could appeal to DMV's Appeals Board.
Petitioner appealed to the Appeals Board, contending that the decision to deny him relicensure was arbitrary and capricious. Petitioner reiterated his claim that he did not have anyone to drive him to work, shopping, medical appointments and church. He also claimed that because his alcohol related driving convictions occurred at night and he had never had an issue with alcohol and driving during the day, DMV could relicense him while restricting the times within which he may drive.
On June 26, 2018, the DMV Appeals Board affirmed the denial of Petitioner's application, finding it to be reasonable and supported by a rational basis in light of DMV's statutory responsibility to promote highway safety and protect the public welfare. Respondents' Answer, Exhibit D.
Having exhausted his administrative remedies, Petitioner brought the instant Article 78 Petition. Petitioner contends that the Commissioner's discretion under 15 NYCRR § 136.5(d) is arbitrary and capricious because it sets forth no objective criteria and appears to be unlimited.
DISCUSSION
Petitioner contends that "Respondents incorrectly found that Petitioner had failed to demonstrate by verifiable, corroborating documentation that he presented unusual, extenuating and compelling circumstances, despite the fact that Petitioner documented his medical condition with letters from his physicians and a sworn affidavit from himself." Petition at ¶ 31(d). He argues that Respondents' discretion is unfettered because "there are no factors specified as to what constitutes 'unusual, extenuating and compelling' circumstances" and the regulation governing re-licensure applications is unconstitutionally vague. Petition at ¶ 31(e).
Respondents contend that the Commissioner has the discretion to determine on a case by case basis whether an applicant for re-licensure has demonstrated unusual, extenuating and compelling circumstances which warrant a departure from the general policies contained in § 136.5(b) against reissuing a driver's license. Respondents assert that Petitioner has not demonstrated such circumstances.
Respondents argue that in Matter of Acevedo, 29 NY3d 202 [2017], the Court of Appeals upheld the constitutionality of the regulatory scheme and the Commissioner's discretion to determine whether to re-issue a driver's license following a number of alcohol related convictions.
Petitioner claims that Acevedo is distinguishable, because it involved the review and revocations provisions of 15 NYCRR § 136.5[b] rather than the relicensing exception under 15 NYCRR § 136.5[d]. Petitioner argues that In re Nicholas v Kahn, 47 NY2d 24, 34 [1979], which he asserts has not been addressed or distinguished by Respondents, supports his claim thatRespondents cannot exercise unlimited discretion.
Petitioner's argument misses the mark.
In re Nicholas v Kahn is distinguishable from both Acevedo and the present case, because it did not address the regulatory scheme at issue here. In re Nicholas v Kahn involved the Chairman of the Public Service Commission's administration of an exemption to his rules prohibiting commission employees, their spouses and minor children from owning any interest in certain businesses related to companies which were regulated by the commission. The issue there was whether the Legislature had delegated the authority to the Chairman to promulgate rules and, if so, whether the exemption procedures contained objective standards which would allow an aggrieved employee to seek meaningful judicial review of an adverse determination by the chairman. The case has only general application here. It is certainly not a road map to Petitioner's desired outcome.
By contrast, Acevedo involved a challenge to the validity of the same DMV regulations governing the relicensing of recidivist drunk driving offenders which are at issue here. Like Petitioner herein, the application of Acevedo, one of the named petitioners, was denied under 15 NYCRR § 136.5(b)(3). Acevedo appealed the denial of his relicensing application to the Administrative Appeals Board, which affirmed the denial. Acevedo then sought judicial review.
Petitioner's case differs from Acevedo in that Petitioner raised the exemption provided under 15 NYCRR § 136.5(d) to the Administrative Appeals Board as a basis for overturning the denial of his relicensing application. In Acevedo, the Court of Appeals did not specifically examine the exemption, however, the Court upheld the regulatory scheme as a valid exercise of the Commissioner's delegated authority. The Court of Appeals stated that "the legislature has, for nearly 40 years, left the Commissioner's authority intact, demonstrating the legislature's ongoing reliance on DMV's expertise", which the Court inferred as legislative approval "to some degree ". Acevedo, supra at 225 (citing Greater NY Taxi Assn. v NYC Taxi and Limousine Commission, 25 NY3d 600, 612 [2015]).
Respondents also rely on Matter of Gurnsey v Sampson, 151 AD3d 1928, 1929 [4th Dept 2017], to support upholding the constitutionality of its regulations. In Matter of Gurnsey, the Fourth Department specifically addressed the same argument raised here by Petitioner that 15 NYCRR § 136.5(d) is unconstitutionally vague. In rejecting that argument, the Fourth Department held that "[t]he void-for-vagueness doctrine 'does not require impossible standards of specificity which would unduly weaken and inhibit a regulating authority . . . [,] especially in a field where flexibility and adaptation of the legislative policy to varying conditions is the essence of the program'." Id. at 1929 (citing Slocum v Berman, 81 AD2d 1014, 1015 [4th Dept 1981], lv denied 54 NY2d 602 [1981], appeal dismissed 54 NY2d 752 [1981]). The court found that, reading the regulations as a whole, within the context of the overall regulatory scheme, the Commissioner does not have unlimited discretion. The regulations were crafted by the [*3]Commissioner to ensure that similarly-situated applicants are treated equally, yet still leaving room to deviate where "unusual, extenuating and compelling circumstances" would "render the application of the general policy inappropriate or unfair." Id. at 1930 (citing Acevedo, 29 NY3d at 220-221). Precise definition of what constitutes unusual, extenuating and compelling circumstances would rob the Commissioner of the discretion accorded by the Legislature and left intact for nearly 40 years. The Appellate Division upheld the constitutionality of §136.5(d) against a vagueness challenge.
In Matter of Gurnsey, the Appellate Division also upheld the Commissioner's exercise of her discretion under of §136.5(d) to deny relicensure to the petitioner in that case, finding the decision was not arbitrary and capricious or an abuse of discretion where "petitioner did not submit with his application any documentation supporting his purported successful completion of alcohol treatment." Id. at 1930; see also Matter of Nicholson v Appeals Bd. of Administrative Adjudication Bureau, 135 AD3d 1224, 1255 [3rd Dept 2016] ("lack of documentation or detail regarding [petitioner's] purported rehabilitation or other current circumstances").
The same result obtains here. Petitioner failed to provide documentation showing that he successfully completed any alcohol rehabilitative treatment programs. Indeed, he asserts that his driving privileges should be reinstated because he has only ever been apprehended for drinking and driving late at night. He does not claim that his three convictions were isolated incidents of drinking and driving, which were not indicative of his customary behavior. He does not claim that he can control his drinking. In fact, he seems instead to admit that he cannot control his drinking at night and needs to be restricted from driving during those hours by a device on his vehicle. Petitioner has offered nothing to substantiate that his drinking is confined to late night and that he never drinks at earlier times throughout the day. Indeed, Petitioner is unabashed about his drinking habits. He is hardly an ideal witness to his own claim that he would not represent a threat to public safety if he were to be relicensed.
Petitioner presents some sympathetic facts, particularly regarding his medical condition; however, he failed to document his apparent claim that his medical appointments or procedures are so frequent that other means of transportation would not meet his needs. He provides no evidence of ongoing appointments or therapies and their times, dates, and locations. Petitioner offered no support for his claim that public transportation is completely unusable. He offered no support that travel by taxi is cost prohibitive, or that he could not use some combination of public and private transportation. Petitioner offered no proof of his income. Petitioner offered no proof that other members of his church congregation could not assist him with transportation or pick up his groceries from the supermarket. Petitioner did not offer anything to substantiate that he was unable to arrange other means to travel to operate his business, work remotely, or carpool with employees.
Petitioner's claim that Respondents' decision constitutes cruel and unusual punishment is a flagrant example of Petitioner's overblown and heated rhetoric.
Petitioner can not call upon the Eighth Amendment to relieve himself of the civil penalties imposed upon him. As the Court of Appeals stated in Acevedo, "[t]he 'revocation of the privilege of operating a motor vehicle'—and by extension, the denial of the privilege of relicensing—is 'essentially civil in nature,' as it serves primarily to 'protect[ ] . . . the public from such a dangerous individual". Acevedo, 29 NY3d at 229 (citing Matter of Barnes v Tofany, 27 NY2d 74, 78 [1970]). Moreover, the regulations "do[ ] not seek to impose a punishment ", Id. (emphasis in original), let alone cruel and unusual punishment.
Hathaway v Coughlin, 37 F3d 63, 66 [2nd Cir 1994], which Petitioner cites in support of his Eighth Amendment claim, is inapposite. Petitioner, unlike Hathaway, is not a prisoner. Petitioner is the subject of a civil proceeding concerning his right to the return of his driver's license. The Eighth Amendment has no application. See Hinds v Lynch, 790 F3d 259, 264 [1st Cir 2015] (order of removal of lawful permanent resident after criminal conviction does not implicate cruel and unusual punishment as removal is a non-punitive civil procedure); U.S. v Ogonoski, 149 Fed Appx 24 [2nd Cir 2005] (Eighth Amendment prohibition does not apply to IRS's enforcement of tax laws which are purely civil penalties), citing Zwick v Freeman, 373 F2d 110, 119 [2nd Cir 1967] (holding prohibition on cruel and unusual punishments not applicable to purely civil penalties not criminal in nature). Denial of relicensing following multiple alcohol related convictions is not a punishment for crime; it is intended to protect the public from unsafe drivers. The Commissioner is charged with that responsibility and, in this case, has carried out her duty.
Accordingly, it is
ORDERED that the Petition is denied in its entirety and is dismissed.
Dated: February 15, 2019
New City, NY
E N T E R
__________________________
HON. PAUL I. MARX, J.S.C.
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