OAH 16-3001-21292-2
MnDOT TRP/266/OFCVO/2010
STATE OF
OFFICE OF ADMINISTRATIVE
HEARINGS
FOR THE MINNESOTA DEPARTMENT
OF TRANSPORTATION
|
In the Matter of the Revocation of the Insulin-Dependent Diabetic
Driver Waiver of Adam Whall |
RECOMMENDATION
FOR SUMMARY
DISPOSITION |
This matter came on for hearing before Administrative Law
Judge Manuel J. Cervantes (ALJ) on June 29, 2010 pursuant to a Notice of and
Order for Hearing filed May 7, 2010.[1]
Michael
A. Sindt, Assistant Attorney General, appeared on behalf of the Office of
Freight and Commercial Vehicle Operations, Department of Transportation (DOT). Adam Whall (Respondent) appeared on his own behalf.
It
became apparent during the course of the hearing that there were no material
facts in dispute and that the parties should proceed by summary
disposition. The parties agreed to the
following schedule: the DOT would file
its written Motion and Memorandum in support of Summary Disposition by July 9,
2010. Respondent would file his response
no later than July 23, 2010. The ALJ
issued a Scheduling Order to this effect which was mailed to the parties on
June 28, 2010.[2]
The
DOT timely filed its Motion with the Office of Administrative Hearings on
July 9, 2010. Respondent did not
file a response. The record closed at
the end of the filing period on July 23, 2010.
STATEMENT OF ISSUE
Did the DOT properly revoke Respondent’s insulin-dependent
diabetic driver waiver?
Based upon all of the files, records and proceedings
herein, and for the reasons set forth in the accompanying Memorandum, the ALJ
makes the following:
RECOMMENDATION
1. IT IS
RESPECTFULLY RECOMMENDED that the Commissioner of Transportation (Commissioner)
DENY the DOT’s Motion for Summary Disposition; and
2. That the Commissioner
REVERSE the DOT’s revocation of Respondent’s insulin-dependent diabetic driver
waiver.
Dated: August 20, 2010
s/Manuel
J. Cervantes
|
MANUEL J. CERVANTES Administrative Law Judge |
This
report is a recommendation, not a final decision. The Commissioner of Transportation will make
the final decision after a review of the record. The Commissioner may adopt, reject or modify
the Findings of Fact, Conclusions, and Recommendations. Under Minn. Stat. § 14.61, the final decision
of the Commissioner shall not be made until this Report has been made available
to the parties to the proceeding for at least ten days. An opportunity must be afforded to each party
adversely affected by this Report to file exceptions and present argument to the
Commissioner. Parties should contact Tom
Sorel, Commissioner of Transportation,
If
the Commissioner fails to issue a final decision within 90 days of the close of
the record, this report will constitute the final agency decision under Minn.
Stat. § 14.62, subd. 2a. The record closes upon the filing of exceptions to the
report and the presentation of argument to the Commissioner, or upon the
expiration of the deadline for doing so.
The Commissioner must notify the parties and the Administrative Law
Judge of the date on which the record closes.
Under
Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final
decision upon each party and the Administrative Law Judge by first class mail
or as otherwise provided by law.
MEMORANDUM
I. Jurisdiction
The ALJ and the Commissioner of DOT have jurisdiction
pursuant to Minn. Stat. §§ 14.50 and 221.0314, subd. 3a(f). The Respondent was given notice of the
hearing in this matter and the DOT has complied with all relevant procedural
requirements.
ll. Contention
of the Parties
The DOT contends that Respondent had an obligation to
report any accident, including that of January 13, 2010, as well as moving
violations, revocations/suspensions/cancellations of his driver’s license to
the DOT.[3] Respondent
failed to immediately report the incident of January 13, 2010 and failed to
report that his license was canceled on February 16, 2010. Specifically, the DOT relies on Minn. Stat. § 221.0314,
subd. 3a(d)(1) that requires a waiver holder to submit a description of any
episode that involved the person’s loss of consciousness or loss of ability to
operate a motor vehicle safely and to immediately report the person’s
involvement in an accident for which a report is required under Minnesota
law. The DOT contends that Respondent’s
waiver revocation was lawful because of Respondent’s deficiencies. Respondent appeals the DOT’s determination to
revoke his insulin-dependent diabetic driver waiver.
lII. Procedural
Standard
Summary
disposition is the administrative equivalent of summary judgment in district
court practice. Summary disposition is
appropriate where there is no genuine issue as to any material fact and one
party is entitled to judgment as a matter of law when the law is applied to
those undisputed facts.[4] The Office of
Administrative Hearings has generally followed summary judgment standards
developed in judicial courts when considering motions for summary disposition
in contested case matters.[5] A genuine
issue is considered one that is not frivolous or a sham, and a material fact is
one whose resolution will affect the result or outcome of the case.[6] A moving
party has the initial responsibility of showing no material fact is in
dispute. The evidence must be viewed in
the light most favorable to the non-moving party.[7] Any doubt as
to the existence of a material fact must be resolved in a finding that a fact
issue exists.[8] Summary disposition
should not be granted if reasonable minds could draw differing conclusions from
the evidence presented.[9] The ALJ is to
make a recommendation about the appropriate interpretation of the law and about
how that law applies to the undisputed facts.
IV. Facts
The parties agree there are no material facts in
dispute as follows: Respondent is an insulin-dependent diabetic.[10] On May 28,
2009, Respondent submitted an application to the DOT for an insulin-dependent
diabetic driver waiver (waiver).[11] Included in
his application were a medical examiner’s report and a certificate that
indicated that Respondent required a waiver in order to be medically qualified
to drive commercial motor vehicles. The
examiner’s report and certificate required an annual reevaluation by a medical
professional.[12] On June 4,
2009, the DOT issued Respondent a
On January 13, 2010, Respondent was driving for his
employer, Super Mom’s Kitchens, LLC, when he was involved in a vehicle
accident.[14] The police
were called and an accident report was written and filed. The accident report narrative states,
Driver … was having a diabetic issue and was confused
and lost. Driver turned right into a
snow bank and up into the yard of 5510 Northwood Ridge. Driver … thought he was turning into a
driveway so he could turn around ….
[Driver] got stuck in the snow filled yard and could not get out. Driver checked his blood sugar, which was
low. Driver took glucose tablets and ate
food to regulate blood sugar. Driver was
ok and refused medical attention. No
injury …. Driver’s Manager was on scene
and Unit 1 was removed from the yard.
The hand-drawn diagram on the accident report shows
that the truck came to a stop between three bushes. The accident report makes no mention of property
damage. The owner of the property where
the truck came to rest was notified of the incident.[15] The DOT did
not submit any evidence of property damage into the record.
On January 19, 2010, Respondent’s employer provided
the DOT a copy of the accident report and acknowledged that Respondent would be
required to obtain another “DOT physical” [in order to return to work].[16] Respondent
submitted an undated handwritten letter to Mr. Larry Johnson, Office of Freight
and Commercial Vehicle Operations, explaining the January incident and providing
his vehicle insurance information. Also
in the letter, Respondent noted there were no personal injuries and no property
damage to the company’s vehicle.[17] In a second
handwritten note, dated January 26, 2010, Respondent attempted to schedule a
meeting for the following day, January 27, 2010, with Mr. Johnson regarding the
status of his waiver.[18] The record is
not clear whether that meeting took place.
On February 16, 2010, the Department of Public Safety
(the DPS) canceled Respondent’s driver license for not being physically
qualified.[19] Respondent
did not notify the DOT of his driver’s license cancelation. On April 2, 2010, the DOT revoked
Respondent’s waiver for failing to report the cancelation of his driver’s
license and failing to return the waiver to the DOT upon cancelation, relying
on Minn. Stat. § 221.0314, subd. 3a(e).
The revocation notice advised that Respondent would not be eligible for
another waiver for three years from the date of license reinstatement.[20]
On April 9, 2010, the DPS’s medical committee made
its recommendation to reinstate Respondent’s driving privileges based on being
physically qualified to drive. Respondent’s driving license was reinstated on
that date. Respondent’s license was canceled
for a period of fifty-two days. Respondent’s
waiver would have expired on May 28, 2010, but for the revocation. Respondent has not requested a waiver renewal.
There is no evidence in the record that
Respondent operated a commercial motor vehicle since January 13, 2010.
V.
Analysis
A person who is an insulin-dependent diabetic may not
be granted an intrastate commercial driver’s license unless the person meets
the criteria for a waiver. The standards
for granting the waiver are set forth in Minn. Stat. § 221.0314.[21] The DOT,
Office of Freight and Commercial Vehicle Operations, determines whether the
waiver should be granted and then notifies the DPS, which issues the
appropriate license if other licensing requirements are met. In order to be eligible for the waiver, an
insulin-dependent diabetic person must be examined by a licensed physician.[22] A person
seeking such a waiver is sent a “waiver application packet” that includes the
forms that must be completed, and directs the applicant to be sure that all of
the necessary information or reports are returned.[23] In addition,
the commissioner must deny an application for a waiver, if, during the three
years preceding the application, the applicant’s driver’s license has been
suspended, canceled or revoked by application of certain provisions of law.[24]
As the basis for the revocation of the waiver, the DOT
contends that Respondent violated Minn. Stat. § 221.0314, subd. 3a(d) because
he did not report an episode that involved loss of consciousness or loss of
ability to operate a motor vehicle safely and because he failed to report the
accident of January 13, 2010 immediately.
Minn. Stat. § 221.0314, subd. 3a(d), in relevant part, requires two
things. First, the waiver holder must provide
a description through his physician of any episode that involved the person’s
loss of consciousness at intervals specified by the waiver[25] and second,
the waiver holder must immediately report his/her involvement in an accident for which a report is required under section
169.09, subd. 7.[26] (Emphasis
mine.)
The DOT has not established the violation of either
of these elements. As to the second
element, under Minn. Stat. § 169.09, subd. 7, only accidents that involve
bodily injury and/or property damage in excess of $1000 are required to be
reported to the DPS.[27] The record
reflects there was no personal injury or property damage to the truck driven by
Respondent. There is no evidence in the
record that the homeowner where the truck came to rest sustained any property
damage. The only evidence on the subject
speaks in terms of the truck driving over a snow bank and landing in a snow
filled yard. The truck was removed from the yard without damage. The DOT has not carried its burden of proof
to establish that the accident of January 13, 2010 was a reportable accident as
required by Minn. Stat. § 221.0314, subd. 3a(d)(2), and, therefore, the ALJ
cannot find that this element of the statute was violated.
As to the first element, Minn. Stat. § 221.0314,
subd. 3a(d)(1) requires that the waiver holder report to his physician at his
annual physical, or other interval as required by the waiver, any episodes that
involve the person’s loss of consciousness or loss of ability to operate a
motor vehicle safely and to obtain and provide the physician’s report to the DOT. Under this statutory scheme, the waiver
holder has an obligation to report accurately his health condition to his
physician. The physician records the
health history as required by his/her professional medical practice standards
and determines whether the waiver holder is physically qualified to drive a
commercial motor vehicle in light of the waiver holder’s physical
condition. The physician makes the
medical report available to the waiver holder to provide the report to the Office
of Freight and Commercial Vehicle Operations.
If the physician does not believe the waiver holder is qualified to
operate a motor vehicle in a safe manner, the physician may find the person
unqualified to operate and upon notification to the DOT, the DOT may deny, suspend
or cancel a waiver, depending on the circumstances of the situation. The DOT cites no other authority that requires
the waiver holder, him/herself, to report these types of episodes directly to
the DOT.
Even if such direct-type of episode reporting is
required, and taking the facts in the light most favorable to the non-moving
party, Respondent did explain the circumstances of the accident in his letter
addressed to Mr. Johnson. In addition,
knowledge of the accident on the part of the DOT can reasonably be inferred in Respondent’s
attempt to schedule a meeting within two weeks of the accident with Mr. Johnson
to discuss the status of his waiver.
Given the legal and factual analysis, the ALJ cannot conclude that
either of the requisite statutory elements in Minn. Stat. § 221.0314,
subd. 3a(d) was violated by Respondent.
The DOT applied Minn. Stat. § 221.0314, subd. 3a(e),
to revoke Respondent’s waiver because his driving privileges were canceled as
“not physically qualified” to operate a motor vehicle.
From a technical point of view, this statute does not
apply to the circumstances at hand. It
reads,
The Commissioner shall deny the application for a
waiver if,
[D]uring the three years preceding the application:
(1) the applicant’s driver’s license has been
suspended under [Minn. Stat.] section 171.18, paragraph (a), clauses (1) to
(9), (11) and (12), canceled under section 171.14, or revoked under section
171.17, 171.172, or 171.174; or
(2) the applicant has been convicted of a
disqualifying offense, as defined in Code of Federal Regulations, title 49,
section 383.51, paragraph (b), which is incorporated by reference.
Procedurally, the present case arises on a
revocation of a waiver, not upon the denial of an application renewal. However, assuming for the moment that
Respondent had applied for a waiver renewal upon the expiration of the former
waiver, the statute would still not serve to bar the renewal application
because the status of “not physically qualified” is not among the enumerated
offenses in Minn. Stat. § 221.0314, subd. 3a(e).
49 C.F.R. § 383.15 (b), distinguishes
between disqualification for loss of driving privileges and disqualification
for criminal and other offenses.
Disqualification for loss of driving privileges is limited to the duration
of the driver’s loss of privilege to operate.
The length of disqualification for criminal offenses is set forth in 49
C.F.R. § 383.51(b), which is incorporated by reference in Minn. Stat. §
221.0314, subd. 3a(e).
Because Respondent’s driving conduct resulted
in loss of driving privilege, 49 C.F.R. 391.15(b)(1) applies and limits the
disqualification to the duration of the driver’s loss of driving privilege.[28] It states,
A driver is disqualified for the duration of
the driver’s loss of his/her privilege to operate a commercial motor vehicle on
public highways, either temporarily or permanently, by reason of the
revocation, suspension, withdrawal, or denial of an operator’s license, permit,
or privilege until the privilege is restored by the authority that revoked,
suspended, withdrew or denied it.
In this case, Respondent satisfied the
medical committee and the DPS that he was physically qualified to operate a
motor vehicle and his driver’s license was restored on April 9, 2010. His waiver should not have been revoked but
rather his waiver should have been canceled for the fifty-two day period that
his driving privileges were canceled.
Finally, Respondent failed to report the cancelation
of his operating license to the DOT. The
DOT relies, in part, on this rationale to support the waiver revocation. The DOT did not cite any authority for this
obligation to report on the part of Respondent.
49 C.F.R. 391.15 (b)(2), which is
incorporated by reference in Minn. Stat. § 221.0314, subd. 2, imposes an
obligation upon a driver who receives a notice that his license to operate a
commercial motor vehicle has been canceled to notify his employer of the
contents of the notice, but there is no like obligation in law or rule which
requires the Respondent to notify the DOT.
In any event, as state above, there is no evidence in the record, nor
has it been alleged, that Respondent drove a commercial motor vehicle during
the period of the cancelation.
M. J. C.
[1] Notice of and Order for Hearing and
Prehearing Conference.
[2] Second Scheduling Order.
[3] Exs. 3 and 4.
[4] Sauter
v. Sauter, 70 N.W.2d 351, 353 (Minn. 1955); Louwagie v. Witco Chemical Corp., 378 N.W.2d. 63, 66 (Minn.
Ct. App. 1985); Minn. R. 1400.5500, K; Minn. R. Civ. P. 56.03.
[5] See
[6] Illinois
Farmers Insurance Co. v. Tapemark Co., 273 N.W.2d 630, 634 (
[7] Sauter v. Sauter, 70 N.W.2d 351, 484-485 (
[8] Admiral Merchants Motor Freights,
Inc. v. O’Connor & Hanna, 494 N.W.2d 261, 265 (
[9] DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (
[10] Ex. 3.
[11]
[12]
[13]
[14] Ex. 4.
[15]
[16] Id.; email date January 19, 2010 from
Corrie Perkins, Human Resources Supervisor, Super Mom, LLC.
[17]
[18]
[19] Ex. 7.
[20] Ex. 4. Minn. Stat. 221.0314, subd.
3a(e).
[21] The standards for granting waivers
for interstate commercial licenses are governed by federal law. See 49 C.F.R. § 391.41.
[22] Minn. Stat. § 221.0314, subd. 3a(b)(9)
and (10).
[23] Ex. 3.
[24] Minn. Stat. § 221.0314, subd. 3a(d).
[25] Minn. Stat. § 221.0314, subd.
3a(d)(1). In this instance, the interval
was annual, upon the expiration of the physician’s certificate which indicated
that Respondent required a waiver in order to be medically qualified to drive
commercial vehicles. Minn. Stat. §
221.0314, subd. 3a(g).
[26] The ALJ notes that Minn. R. 8850.7600 requires an applicant, during a
waiver renewal application, to report the number of accidents incurred by the
driver while driving under the current waiver.
See Minn. R. 8850.7600, subp.
F.
[27] See
also, Minn. Stat. § 221.0314, subd. 8 which incorporates by reference the
definitions of “accident”, “disabling damage”, and “fatality” contained in the
Code of Federal Regulations, 49 C.F.R. 390.50.
[28] Commissioner’s Order In the Matter of the Application for Waiver
of Commercial Driver Qualification of Casey J. Willis. See also, In the Matter of the Denial of an
Insulin-Dependent Diabetic Driver Waiver to Brady W. Webster Pursuant to Minn.
Stat. 221.0314, OAH Docket No. 15-3001-21028-2.