The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. AP;00-02
545- KEN ~ [i/20/900
NORRIS PERRY,
Appellant
v. DECISION ON APPEAL
SECRETARY OF STATE,
Appellee
This matter came on for hearing before the court on an appeal by Norris Perry
of final agency action by the Secretary of State pursuant to MLR. Civ. P. 80C. Perry
appeals from the decision of the Hearing Examiner at the Bureau of Motor Vehicles
denying his petition for review of the Secretary of State’s suspension of his driving
privileges pursuant to 29-A M.R.S.A. § 2458(2)(D). Appellant Perry filed a one-page
letter dated February 7, 2000, which the court will consider as his brief, and appeared
before the court at oral argument representing himself. The Secretary of State was
represented by the Office of the Attorney General.
Facts
Appellant/Petitioner Norris Perry has twice had his license revoked due to
convictions for operating under the influence in 1977 and 1979. Although there
have been no further convictions for operating a motor vehicle while under the
influence of alcohol, Perry continues to imbibe in alcohol to one degree or another.
On the evening of November 20, 1988, Perry was admitted to the emergency room of
MaineGeneral Medical Center for treatment of injuries he sustained in a fight
earlier that evening. Perry informed emergency room personnel that he had been .
drinking substantial quantities of vodka. Approximately 10 days later, when
discussing this incident with Nurse Practitioner Persis Hope, Perry admitted that he
had regularly been drinking vodka, beer, and coffee brandy. Nurse Hope, who had
been treating Perry since 1995, submitted a report to the Secretary of State which
classified Perry’s substance abuse at level 3C under the Functional Ability Profile
Guidelines. According to these guidelines, level 3C is described as “chronic
substance abuse resulting in current impairment of motor and/or intellectual
functions.” Pursuant to his authority under 29-A M.R.S.A. § 2458(2)(D), the
Secretary of State suspended Perry’s driver’s license for an indefinite period because
of an “adverse medical condition.” Perry petitioned for relief from this suspension
and presented his own testimony and that of two other witnesses concerning his
drinking habits. Copies of Perry’s medical records from MaineGeneral Medical
Center dating back to 1995 were also admitted into evidence. After reviewing the
evidence, the Hearing Examiner denied Perry’s petition, and from that denial Perry
appeals.
Discussion
When a decision of an administrative agency is appealed pursuant to M.R.
Civ. P. 80C, this court reviews the agency’s decision directly for abuse of discretion,
errors of law, or findings not supported by the evidence. Centamore v. Dep’t of
Human Services, 664 A.2d 369, 370 (Me. 1995). In reviewing the decisions of an
administrative agency, the court does “not attempt to second-guess the agency on
matters falling within its realm of expertise.” Imagineering v. Superintendent of
Ins., 593 A.2d 1050, 1053 (Me. 1991). The focus of the appeal is not whether the court
would have reached the same conclusion as the agency, but whether the record
contains competent and substantial evidence which supports the result reached by
the agency. CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, 7 6, 703 A.2d 1258,
1261.
The statutory authority for suspension of a driver’s license by the Secretary of
State in this case is set forth in section 2458(2)(D) which authorizes the suspension if
the licensed driver “is incompetent to drive a motor vehicle.” Although this is a
decision of the Secretary of State or his designee, the Secretary does have available
the assistance of his Medical Advisory Board which may, at the Secretary’s request,
interview drivers whose competency is in question. 29-A M.R.S.A. § 1258(4). It is
clear from these statutes that the Secretary made no error of !aw and was acting
within his legal authority is imposing the suspension upon receiving Nurse Hope’s
report. Nor does it appear that there was any abuse of discretion.
The remaining issue is whether there were findings not supported by the
evidence. Again, the issue is not whether the court would have the same decision
based upon the evidence, but rather whether there was any evidence of record to
support the agency’s finding. Despite the testimony by Perry and his witnesses, there
is ample evidence in the record in the form of the report of Nurse Hope and Perry’s
medical records to support the Hearing Examiner’s decision. Perry’s brief does not
point the court to any particular lack of evidence, rather it complains about Perry’s
treatment by his Nurse Practitioner and subsequently by his lawyer. The court finds —
no grounds upon which to disturb the decision of the Hearing Examiner.
Denial of this appeal does not leave Mr. Perry without hope of regaining his
license. It appears from various references within the record that the Secretary of
State does have a process for reinstating driving privileges. Mr. Perry may wish to
inquire with the Bureau of Motor Vehicles concerning such reinstatement.
The entry will be:
Appeal DENIED.
Dated: November oO 2000
S. Kirk Studstrup
Justice, Superior Court
Date Filed 1/10/00
Kennebec
Docket No. _APQ0-02
County
Action Petition for Review
J. STUDSTRUP
“Norris A. Perry VS. Sec. of State, Bureau of Motor Vehicle
Plaintiff's Attorney
Norris A. Perry, Pro Se
26 Fairview Avenue
Randolph, Maine
Defendant's Attorney
Joseph Wannemacher AAG
6 State House Sta
A Me 0433
04346 ugusta e 3
bak 4 b ee LAY
DEC 4 2m
Date of
Entry
1/10/00 Petition for Review with attached exhibits, filed. s/Perry, Pro Se
Indigency Affidavit, filed. s/Norris, Pro Se
oo Application to Proceed Without Payment of Fees form mailed to Norris Perry.
1/18/00 Notice of appearance filed. s/Wannemacher AAG
1/18/00 Application to proceed without payment of fees filed. s/Perry,Pro Se
1/19/00 ORDER ON APPLICATION 10 PROCEED WITHOUT FEES, Studstrup, J.
Filing Fee is waived.-
Copies mailed to Pltf. and atty.
1/27/00 Certified copy of the record filed. s/Wannemacher AAG
2/1/00 Notice of briefing schedule mailed to Pltf. and atty of record.
2/9/00 Appellants Brief, filed. s/Perry, Pro Se
8/1/00 State's Memorandum of Law, filed. s/Wannemacher, AAG.
11/2/00 Hearing had with Hon. Justice Kirk Studstrup, presiding.
. Norris A. Perry, Pro Se and Joseph Wannemacher, AAG for the State.
Oral arguments made to the court.
Court to take matter under advisement.
Court to issue Order.
11/22/00 DECISION ON APPEAL, Studstrup, J.
Appeal Denied.
Copies mailed to Pro Se Plaintiff and AAG
Copies mailed to Garbrecht Law Library, Donald Goss and Deborah Firestone.