[Cite as Gurish v. Bur. of Motor Vehicles, 2012-Ohio-4066.]




          Court of Appeals of Ohio
                            EIGHTH APPELLATE DISTRICT
                               COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 98060




                                   DANIEL GURISH
                                                              PLAINTIFF-APPELLANT

                                                     vs.

                  BUREAU OF MOTOR VEHICLES
                                                              DEFENDANT-APPELLEE




                                          JUDGMENT:
                                           AFFIRMED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CV-761190

        BEFORE:           Rocco, J., Celebrezze, P.J., and E. Gallagher, J.
    RELEASED AND JOURNALIZED:         September 6, 2012
FOR APPELLANT

Daniel Gurish, pro se
11806 Harbour Light Drive
North Royalton, Ohio 44133

ATTORNEYS FOR APPELLEE

Michael DeWine
Ohio Attorney General

BY: Brian P. Mooney
Assistant Attorney General
Charitable Law Section
615 W. Superior Avenue - 11th Floor
Cleveland, Ohio 44113-1899
[Cite as Gurish v. Bur. of Motor Vehicles, 2012-Ohio-4066.]
KENNETH A. ROCCO, J.:

        {¶1} In this appeal assigned to the accelerated calendar pursuant to

App.R.      11.1     and      Loc.App.R.        11.1,     plaintiff-appellant Daniel Gurish,

proceeding pro se, challenges the trial court order that affirmed the decision

of defendant-appellee, the Ohio Bureau of Motor Vehicles (“BMV”), to

suspend Gurish’s driving privileges pursuant to R.C. 4507.20.

        {¶2} The purpose of an accelerated appeal is to allow this court to

render a brief and conclusory opinion. Crawford v. Eastland Shopping Mall

Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (1st Dist.1983); App.R. 11.1(E).

        {¶3} Gurish presents five “issues at bar,” in contravention of App.R.

16(A)(3). Pro se civil litigants are bound by the same rules and procedures

as those who retain counsel; they are not to be accorded greater rights and

must accept the results of their own mistakes and errors. Lias v. Beekman,

10th Dist. No. 06-AP-1134, 2007-Ohio-5737, ¶ 7, citing Delaney v. Cuyahoga

Metro. Hous. Auth., 8th Dist. No. 65714, 1994 Ohio App. LEXIS 298 (July 7,

1994).

        {¶4} In essence, Gurish asserts in this appeal that the trial court erred

in affirming the administrative decision of the BMV on the following grounds:

1) the BMV denied him his right to due process, 2) the BMV’s decision was

not supported by substantial and credible evidence adduced at the hearing

because the hearing examiner failed to follow the rules of evidence and
because the state failed to provide evidence to prove its case, and 3) the trial

court relied upon uncertified transcripts of the hearing.

      {¶5} This court need not consider the third assertion Gurish sets forth

because he did not raise this issue in the trial court. Lias at ¶ 28. His first

and second assertions lack merit.

      {¶6} R.C. 119.12 governs appeals from decisions of licensing boards.

Pursuant to R.C. 119.12, a court of common pleas must determine whether

the board’s decision is supported by reliable, probative, and substantial

evidence, and is in accordance with law. Pons v. Ohio State Med. Bd., 66

Ohio St.3d 619, 621, 614 N.E.2d 748 (1993).          The common pleas court

considers the credibility of     witnesses and the weight and probative

character of the evidence, while also giving due deference to the

administrative resolution of any evidentiary conflicts. Abe’s Auto Sales, Inc.

v. Ohio Motor Vehicle Dealers Bd., 6th Dist. No. L-07-1165, 2008-Ohio-4739,

¶31, citing Vesely v. Liquor Control Comm., 10th Dist. No. 00AP-1016, 2001

Ohio App. LEXIS 1458 (Mar. 29, 2001), and Univ. of Cincinnati v. Conrad, 63

Ohio St.2d 108, 111, 407 N.E.2d 1265 (1980).

      {¶7} On appeal from the common pleas court, an appellate court’s

review of an administrative decision is even more limited.        Pons at 621.

This court determines whether the trial court abused its discretion in finding
that the board’s order was both supported by reliable, probative and

substantial evidence and in accordance with law. Id.

         {¶8} R.C. Chapter 4507 grants authority to the BMV’s registrar to

administer the laws of Ohio relative to the licensing of drivers of motor

vehicles. Doyle v. Ohio Bur. of Motor Vehicles, 51 Ohio St.3d 46, 48, 554

N.E.2d 97 (1990). As the Ohio Supreme Court observed in State v. Hoover,

123 Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d 1056, ¶ 26, quoting Doyle,

fn. 6:

                 The state has the right under its sovereign power to
         control automobile traffic by reasonable regulations of the
         circumstances under which its citizens may be licensed to operate
         a motor vehicle and to adopt appropriate provisions to insure
         competence and care on the part of licensees, to protect others
         using the highways; and any appropriate means adopted does not
         deny to a person subject to its provisions any constitutional rights
         under the Constitution of the United States or the state of Ohio.

         {¶9} In this case, pursuant to R.C. 4507.20, the BMV issued written

notice to Gurish that it had “good cause to believe” that Gurish was

“incompetent or otherwise not qualified to be licensed” to drive in this state.

         {¶10} Once the BMV issues the notice, the licensee is required “to

submit to a * * * physical examination * * * within the time indicated on the

notice.” If the licensee refuses or neglects to submit to the examination, it is

“ground for suspension of the licensee’s license.” R.C. 4507.20.
[Cite as Gurish v. Bur. of Motor Vehicles, 2012-Ohio-4066.]
        {¶11} The record of this case demonstrates the BMV fully complied with

its statutory due process duties. The BMV received an official “Request for

Driver’s License Examination or Recertification” form pursuant to R.C.

4507.20 and 4507.14 from an Ohio State Trooper concerning an incident

involving Gurish. The BMV thereupon issued written notice to Gurish that,

based upon the information contained in the form, the BMV had good cause to

believe Gurish was not medically competent to drive.                  The BMV’s notice

advised Gurish that he had a right to a hearing at which he could appear

with counsel and could present evidence. The hearing examiner conducted

the hearing in an impartial manner before deciding Gurish’s driver’s license

must be suspended.

        {¶12} In Ohio, a driver’s license is a privilege, not a constitutionally

guaranteed property right.                 Doyle, 51 Ohio St.3d 46, 51, 554 N.E.2d 97

(1990). Gurish failed to submit to a physical examination; consequently, the

statute permitted the BMV to suspend his driver’s license. Hoover, 123 Ohio

St. 3d 418, 2009-Ohio-4993, 916 N.E.2d 1056.

        {¶13} In appealing the BMV’s decision administratively, Gurish argued

the notice was issued without “good cause.”                   Addressing this issue was

precisely the purpose of the administrative hearing. Neuger v. McCullion,

8th Dist. No. 58282, 1991 Ohio App. LEXIS 1184 (Mar. 21, 1991), citing
Davison v. Bur. of Motor Vehicles, 46 Ohio App.2d 86, 345 N.E.2d 619 (5th

Dist.1975).

      {¶14} The Ohio Supreme Court has stated that “procedural due process

does not and cannot require strict application of the judicial model” in an

administrative proceeding. Id. Nevertheless, the hearing examiner in this

case properly considered the form submitted to the BMV by the state trooper.

 Evid.R. 803(8) and 1005; compare State v. Jack, 4th Dist. No. 97CA10, 1998

Ohio App. LEXIS 1774 (Apr. 23, 1998) (court reporter’s testimony about

statements contained in a transcript inadmissible because witness had no

personal knowledge of the event). According to the BMV form, the trooper

notified Gurish on the date of the incident that the BMV report would be

made and was based upon Gurish’s statement to the trooper that he was

“speeding     * * * because he has to use his walking cane to press the

accelerator because he couldn’t move his right leg.”

      {¶15} Gurish admitted on cross-examination that he used his cane for

“cruise control.”   He further admitted he did so because he had medical

problems with his right leg that made it difficult for him keep pressure on the

vehicle’s accelerator pedal for extended periods of time.

      {¶16} R.C. 4507.20 requires the licensee to demonstrate his fitness to

drive; the statute does not require the state to prove the licensee is unfit to
drive. Thus, R.C. 4507.20 contains no requirement, as Gurish demanded,

that the state pay for the medical examination. Because the BMV’s decision

was based upon reliable, substantial, and probative evidence, Gurish’s “issues

at bar” are overruled.

      {¶17} The trial court’s order is affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



_________________________________
KENNETH A. ROCCO, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR
