No. 1-01-1254

JUSTICE REID delivered the opinion of the court:

Following a hearing, defendant Secretary of State(Secretary) denied plaintiff Juan Cisneros' petition forreinstatement of his driving privileges or, in the alternative,issuance of a restricted driving permit (RDP). On plaintiff'scomplaint for administrative review, the circuit court affirmedthe Secretary's denial of reinstatement of full drivingprivileges but reversed the Secretary's denial of the issuance ofthe RDP. The Secretary appeals, and we reverse the order of thecircuit court which granted plaintiff an RDP.

Initially, we note that plaintiff did not file a brief onappeal. Nevertheless, even when an appellee does not file abrief on appeal, the reviewing court can consider the appealpursuant to the principles set forth in First Capitol MortgageCorp. v. Talandis Construction Corp., 63 Ill. 2d 128, 131-33(1976).

The record on appeal establishes that on August 3, 1981,plaintiff, then 39 years old, was arrested for driving under theinfluence of alcohol (DUI), which occurred in conjunction with anaccident that involved vehicle damage. Plaintiff was convictedin October 1981 and his license was summarily suspended andultimately revoked in November 1981. In 1986, plaintiff tried toreinstate his license and eventually enrolled in an outpatientrehabilitation program with Hispano Alcoholic Services, Inc., nowknown as Healthcare Alternative Systems, Inc. (HAS).

1987 Uniform Report

In August 1987, HAS completed an alcohol and drug evaluationuniform report (uniform report) in which plaintiff stated that hecurrently consumed about 3 beers every other day before dinnerand 3 beers every other weekend, but in the past had consumed 10to 15 beers every weekend and experienced increased tolerance,hangovers, loss of control, and morning relief drinking. Further, plaintiff admitted that his drinking affected himfinancially and led to arguments with his wife. Plaintiff alsostated that he had two DUI arrests and explained that his 1981DUI resulted when he rear-ended another car as he drove home froma bar about 1 a.m. when the road was slippery from the rain. Plaintiff admitted that he drank 10 beers in four hours thatevening and thought he was a "bit drunk" but able to drive. Thepolice did not administer a breath-alcohol test.

HAS classified plaintiff as a Level III problematic use(dependent) based on his 1981 DUI arrest, 1977 reckless drivingcharge, admitted physical symptoms and problems from alcohol use,and a Michigan Alcoholism Screening Test score of 11, whichindicated a present drinking problem. HAS recommended intensiveoutpatient alcoholism treatment (Levels II and III) forplaintiff.

1988 Update

In a March 1988 uniform report update, plaintiff reportedthat he had abstained from alcohol since July 1987, attendedAlcoholics Anonymous (AA) meetings, felt better physically andenjoyed a greatly improved relationship with his wife. Plaintiff's wife corroborated plaintiff's statements. Plaintiffcompleted the recommended five weeks of intensive outpatienttreatment in December 1987 and 10 weekly sessions of the after-care program in March 1988. During treatment, plaintiff alsoattended AA meetings once or twice a week. HAS recommended thatplaintiff continue attending AA meetings in order to grow in hisabstinence and noted that plaintiff was in remission andcomplying with his treatment recommendations. Nevertheless, HASmaintained plaintiff's Level III classification based on hisdisclosed symptoms of dependency in the past.

Apparently, plaintiff did not attempt to reinstate hislicense until 1997. In a January 1997 memorandum, HAS respondedto a request for plaintiff's treatment information by explainingthat his records were destroyed because they were more than 10years old.

1997 Uniform Report

In February 1997, Central State Institute (CSI) prepared auniform report, which indicated that plaintiff had completed lessthan seven years of education and had limited comprehension ofthe English language, so a CSI staff member served as an English-Spanish interpreter. According to the CSI evaluator, plaintiffdenied any alcohol use prior to his 1981 DUI arrest and statedthat police stopped him for driving without headlights due to acar malfunction. The evaluator noted that although plaintiffreported two DUI offenses in 1978, his driving record onlyreflected the 1981 DUI. Plaintiff also reported that he nolonger attended AA meetings. Further, plaintiff reported thatbefore he abstained from alcohol he drank more times per monththan he intended and drank in the morning to "medicate shakes." According to the evaluator, Mildred Cisneros, plaintiff's wife,allegedly stated that before plaintiff abstained from alcohol,she was not aware of the extent of his drinking problem but wasconcerned about his accidents and revoked license.

Plaintiff's 47 Mortimer-Filkens score indicated that he wasa presumptive problem drinker. Further, plaintiff's 1 SubstanceUse Inventory score indicated minimal impairment in eitherphysical, social, emotional or occupational areas, but his 3Behavior Assessment Scale score indicated severe dysfunction inthose areas. Plaintiff's H Multiple Offender Profile indicated ahigh risk to repeat the offense without intervention. Theevaluator characterized plaintiff's responses as inconsistentbecause he allegedly denied any alcohol use prior to his DUIarrest and, although he considered himself an inactive alcoholic,he reported no prior symptoms of dependence. The evaluatorclassified plaintiff as a Level II (significant risk) apparentlybased on plaintiff's 1981 DUI and driving record. The evaluatorrecommended that plaintiff return to a licensed treatmentprovider to undergo additional intervention based on plaintiff'slack of documentation and "various inconsistencies in hisreports."

1999 HAS Clarification Letter

HAS counselor Millie Miranda sent the Secretary a letterdated January 27, 1999, to address various inconsistenciesbetween plaintiff's 1987 and 1997 uniform reports. Mirandaexplained that after HAS classified plaintiff as a Level III inthe August 1987 uniform report, plaintiff underwent 100 hours ofintensive outpatient treatment and thereafter completed aftercaretreatment and attended outside support groups.

Miranda also explained that she met with plaintiff twice todiscuss the discrepancies raised in his 1997 uniform report. According to Miranda, plaintiff clarified that he consumed aboutsix beers prior to his 1981 DUI arrest. Plaintiff also explainedthat he had two DUI arrests prior to his 1981 DUI; one resultedin a court order to view a video whereas the other was reduced toreckless driving.

Then, Miranda stated that plaintiff was classified as aLevel II and had completed the required hours of Level IItreatment. According to Miranda, plaintiff was classified as aLevel II because when he was admitted into the program in 1987,HAS required all Level II and Level III clients to complete thesame program requirements regardless of their classification. Miranda concluded that plaintiff's "classification remains thesame and there appears to be no need for additional treatment." It is not clear, however, from Miranda's letter whether plaintiffwas reclassified from a Level III to a Level II, or whether herstatement that plaintiff was a Level II was simply atypographical error.

1999 Update

According to a March 1999 uniform report update by CSI,plaintiff confirmed that he had consumed about six beers overthree hours before his 1981 DUI arrest and that he had two priorDUI arrests in 1978. Plaintiff also reported that he did notconsider himself an alcoholic but recognized his priorproblematic use of alcohol. Further, before plaintiff abstainedfrom alcohol, he had experienced hand tremors once a month andconsumed alcohol in the morning for relief. CSI reported nochange in plaintiff's Level II classification and stated thatplaintiff had completed all previous recommendations andclarified his treatment history as previously requested. CSImade no new recommendations.

Informal Hearing and Denial of RDP

After an informal hearing on plaintiff's petition for anemployment RDP, the Secretary issued a denial letter in June1999. The Secretary found that plaintiff's Level IIclassification conflicted with his self-admitted alcoholism andhis prior Level III classification pursuant to his 1987 uniformreport. The Secretary also found that plaintiff's testimony wasinconsistent with his statements in his uniform reports regardingwhether he last consumed alcohol in 1986 or 1987, whether headmitted to having two DUIs in 1978, whether he consumed beerprior to his 1981 DUI arrest and whether he admitted to drinkingin the morning to "medicate shakes." The Secretary concludedthat he could not understand the nature and extent of plaintiff'salcohol use until such inconsistencies were resolved. Accordingly, the Secretary recommended that plaintiff seek CSI'sassistance in clarifying the noted discrepancies.

2000 Update

On January 27, 2000, CSI completed a uniform update and anaddendum that addressed the discrepancies raised by theSecretary. CSI reported that it had reviewed the definitions of"alcohol abuse" and "dependence" with plaintiff, who openlyadmitted that he abused alcohol in the past but no longerconsidered himself an alcoholic, which CSI stated was consistentwith plaintiff's reported symptomatology and risk levelclassification. Further, CSI reported that although plaintiffdid not recall his exact abstinence date, he stopped consumingalcohol two weeks before he began treatment with HAS, whichaccording to his records was in 1987. CSI also explained thatplaintiff did not deny his self-reported pre-1981 DUIs at theinformal hearing but, rather, was focusing on his more recent1981 DUI. Moreover, plaintiff's alleged denial that he consumedalcohol prior to his 1981 DUI arrest likely resulted from amiscommunication between plaintiff and the interpreter. Inaddition, plaintiff clarified to CSI that although he hadoccasionally felt "nervous" in the morning after drinking, he didnot experience hand tremors or shakes.

CSI explained that HAS classified plaintiff as a Level IIIin the 1987 uniform report but as a Level II upon admission intoHAS's program because, at that time, all Level II and IIIpatients were required to complete the same program requirements. CSI asserted that although the information from HAS sufficed todocument that plaintiff completed treatment, "little weightshould be given to [HAS's] diagnosis [of plaintiff as a LevelIII] as it is not necessarily accurate or reflective of hisactual classification due to the time that has passed and thelimited records that remain." CSI maintained plaintiff's LevelII classification, stated that plaintiff satisfactorily completedall previous recommendations, and made no additionalrecommendations.

The Administrative Hearing

The formal hearing on plaintiff's petition for reinstatementof his driving privileges or, in the alternative, an RDP was heldon January 28, 2000. The parties submitted into evidence all ofplaintiff's uniform reports and updates and the 1999clarification letter from HAS counselor Miranda. Further,counsel for the Secretary submitted into evidence plaintiff'sdriving record, which indicated that prior to plaintiff's 1981DUI he was convicted in early 1977 for disobeying a no-turnsignal, in late 1977 for reckless driving, and in 1978 fordisregarding a traffic control light. Further, plaintiff wasticketed in 1978 for speeding, and the action resulted in a bondforfeiture. Because plaintiff had three or more convictions ofmoving traffic violations within a 12-month period, he received adiscretionary suspension which was effective from May to August1979. In 1981, plaintiff was arrested and convicted for the DUIat issue on appeal, which occurred in conjunction with anaccident that involved vehicle damage. After plaintiff's licensewas revoked, he was ticketed in May 1983 for driving without avalid license or permit (DWL), in March 1985 for driving whilehis license was revoked (DWR), and in December 1988 for DWL. Plaintiff was convicted in each instance. In February 1997,plaintiff was ticketed for DWR, which occurred in conjunctionwith a collision involving property damage, and receivedsupervision.

Several witnesses testified on plaintiff's behalf regardinghis abstinence from alcohol for over 13 years and his limitedability to work without driving privileges. Specifically,Herbert DeLeon, plaintiff's nephew for 15 years, testified thatplaintiff helped him repair his home or car a couple of times peryear. Jose Velez, plaintiff's neighbor for eight years,testified that he hired plaintiff for home repair work andsometimes worked alongside plaintiff. Velez also testified thathe frequently socialized with plaintiff and never observedplaintiff consume any alcohol. James Raso, plaintiff's client,testified that he knew plaintiff since 1985, hired him forremodeling work, and never saw plaintiff consume any alcohol. Marie Lingle, plaintiff's sister-in-law since 1974, testifiedthat she frequently socialized with plaintiff and his wife andthat plaintiff never consumed alcohol since his treatment. Lingle also stated that plaintiff relied on the Bible and hischurch to stay sober. In addition, Eugenio Jorge, plaintiff'sminister, submitted a letter stating that he knew plaintiff forfive years and saw him about three times per week. Jorgeasserted that plaintiff was always sober and never consumedalcohol.

Plaintiff testified, apparently with great difficultydespite the use of an English-Spanish interpreter, that before hebegan treatment in 1987, he never realized that he had a drinkingproblem. Plaintiff testified that statements CSI attributed tohim in the 1997 uniform report and characterized as inconsistentresulted from either his misinterpretation of CSI's questions orCSI's misinterpretation of his answers. Plaintiff's testimony atthe hearing was sometimes consistent with his statements in hisuniform reports regarding his past consumption of alcohol, hisdriving record, his wife's concerns with his drinking and histreatment with HAS. However, his testimony in some parts of thetranscript was very confusing, contradictory and unintelligible,particularly concerning his self-reported pre-1981 DUIs and hiscurrent attendance at AA meetings.

Plaintiff testified that he maintained his sobriety byattending church and reading the Bible and that his inability todrive prevented him from maintaining regular employment. Plaintiff explained that he was a self-employed handyman and didplumbing, carpentry, drywall and painting work. Plaintiff lostnumerous jobs, however, because either his wife, a friend, or theclient could not drive him to the work site, publictransportation was not available, or he could not transport thenecessary tools on a bus. Although plaintiff generally tried tomaintain a normal weekday work schedule, potential clients calledhim with jobs that required immediate attention. Consequently,if plaintiff could not make last-minute transportationarrangements, he could not accept the proffered work.

Mildred Cisneros, plaintiff's wife of 24 years, testifiedthat before plaintiff began treatment in 1987, she was not awareof the extent of his drinking because he drank primarily on theweekends and with a group of friends with whom he no longerassociated. Mildred Cisneros became aware of plaintiff'sdrinking problem after he entered treatment and HAS counselorsand AA people insisted that she attend some interviews and Al-Anon meetings. Mildred Cisneros stated that she would now beaware if plaintiff ever drank alcohol. Further, when she andplaintiff attended numerous social and family functions,plaintiff never consumed any alcohol and refused any offers ofalcohol.

Mildred Cisneros testified that she generally cannot driveplaintiff to his handyman jobs during the week because she worksin a factory from 7 a.m. to 3:30 p.m. on weekdays. Consequently,plaintiff, who often needs to carry heavy tools and ladders ontop of a vehicle to a jobsite, has lost the opportunity toperform about three jobs per month. When counsel asked MildredCisneros for details regarding how much work plaintiff missed,the hearing officer interrupted and stated, "Counsel, you don'tneed to establish undue hardship in this case. So this is notentirely necessary."

The Secretary's Denial Order

In his findings and recommendations, the hearing officerconcluded that plaintiff had abused alcohol in the past andfailed to prove that his alcohol problem was resolved. Thehearing officer also concluded that plaintiff failed to provethat he would be a safe and responsible driver and would notendanger the public safety and welfare. Further, the hearingofficer concluded that reasonable alternative job-relatedtransportation was available to plaintiff. Accordingly, thehearing officer recommended that the Secretary deny plaintiff'spetition for reinstatement of full driving privileges or, in thealternative, an RDP.

The hearing officer found that the evidence generallysupported plaintiff's claim of abstinence from alcohol since1987. However, the hearing officer found that plaintiff did notprovide sufficient documentation to support his reclassificationfrom a Level III to a Level II; plaintiff's testimony that hecannot ever drink safely in the future was inconsistent with hisdescription of himself in the 1997 uniform report as an "inactivealcoholic"; and CSI's 1997 uniform report and subsequent updateswere incomplete because the evaluators showed no knowledge ofplaintiff's 1987 uniform report or 1988 update with HAS.

The hearing officer found that plaintiff's admittedwithdrawal and dependency symptoms indicated that he was rightlyclassified by HAS as a Level III in 1987 and 1988, and thatplaintiff had not since been systematically examined andreevaluated. Moreover, the hearing officer found thatplaintiff's testimony regarding regular attendance at AA meetingswas inconsistent with his uniform reports, which showed no recentinvolvement with AA. Further, the hearing officer noted thatthere was no clear evidence that plaintiff followed therecommendation in the 1997 uniform report to return to a licensedtreatment provider to undergo additional intervention.

The hearing officer found that plaintiff primarily failed toprove he was no longer an undue risk as a driver because his"evaluation chain" was incomplete, inaccurate and inconsistent,and he lacked "a treatment needs review." Noting that theSecretary may disregard the findings of an evaluation if theevidence indicated it was unreliable or incomplete, the hearingofficer stated that "[p]rior to any further application forhearing, the [plaintiff] should return to the evaluator, withthis Order in hand, a new, completed and accurate alcohol useprofile should be developed, and the various problems raised hereshould be resolved."

On March 14, 2000, the Secretary adopted the findings andrecommendations of the hearing officer and denied all reliefrequested by plaintiff.

Circuit Court Review

Plaintiff subsequently filed a complaint for administrativereview of the denial in the circuit court. Plaintiff contendedthat the Secretary's denial was arbitrary, capricious, andagainst the manifest weight of the evidence, which plaintiffargued established conclusively that plaintiff, whetherclassified as a Level II or a Level III, had abstained fromalcohol for over 12 years and had an ongoing support system tomaintain his sobriety.

At oral argument on plaintiff's complaint, the circuit courtquestioned the parties regarding plaintiff's driving violationsafter his license was revoked, alleged inconsistent statements tovarious evaluators over the years, and alleged failure to doadditional work to clarify any prior inconsistencies. Thecircuit court also raised the issues of plaintiff's "inability tocommunicate" in English and use of interpreters. Plaintiff'scounsel added that plaintiff, who was only 5 feet 2 inches talland weighed 135 pounds, was a self-employed handyman who tried totransport heavy tools and materials to his jobs as best he could. Plaintiff's counsel also explained that plaintiff had insurancewhen he was ticketed in 1997 for DWR.

In March 2001, the circuit court denied plaintiff's requestfor reinstatement of his full driving privileges, but grantedplaintiff's request for an RDP. Subsequently, the circuit courtdenied the Secretary's request to stay enforcement pending appealbased upon plaintiff's lengthy period of sobriety, the absence ofany alcohol-related incident since plaintiff's 1981 DUI, andplaintiff's type of employment, which involved transportingnumerous and heavy tools to various jobsites.

On appeal, the Secretary contends that the hearing officer'sdecision to deny plaintiff's petition was not against themanifest weight of the evidence because plaintiff failed to provethat his alcohol problem had been resolved and that he would notendanger public safety once his driving privileges were restored. The Secretary contends that the inconsistencies in plaintiff'stestimony, the inconsistent and incomplete information containedin his uniform reports, and plaintiff's driving violations afterhis license was revoked precluded the Secretary from granting himrelief. The Secretary also moved this court to stay the circuitcourt's order pending appeal. After initially denying theSecretary's motion because it failed to serve notice onplaintiff, this court granted the Secretary's renewed motion tostay, to which plaintiff did not respond.

Upon review, an administrative agency's factual findings andconclusions are considered prima facie true and correct. 735ILCS 5/3-110 (West 2000); Murdy v. Edgar, 103 Ill. 2d 384, 391(1984); Britt v. Edgar, 192 Ill. App. 3d 469, 472 (1989). Courtsmay not interfere with an agency's discretionary authority unlessthat power is exercised in an arbitrary and capricious fashion orthe decision is contrary to the manifest weight of the evidence. Murdy, 103 Ill. 2d at 391; Britt, 192 Ill. App. 3d at 472. Theagency's decision will be found contrary to the manifest weightof the evidence only when the opposite conclusion is clearlyevident. Robbins v. Board of Trustees of the Carbondale PolicePension Fund, 177 Ill. 2d 533, 538 (1997). After viewing theevidence here in the light most favorable to the Secretary, we donot believe the opposite conclusion, that plaintiff is entitledto an RDP, is clearly evident under this record.

The relevant factors in determining whether to issue an RDPare the degree of hardship that deprivation of driving privilegesimposes upon the applicant, whether alternative means oftransportation are available, and whether issuance of the permitwould prove a danger to public safety and welfare. Britt, 192Ill. App. 3d at 473; 92 Ill. Adm. Code