                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 6, 2015                    520060
________________________________

In the Matter of KEVIN B.
   ACEVEDO,
                    Appellant,
      v                                     OPINION AND ORDER

NEW YORK STATE DEPARTMENT OF
   MOTOR VEHICLES et al.,
                    Respondents.
________________________________


Calendar Date:   June 2, 2015

Before:   Peters, P.J., Lahtinen, Garry and Lynch, JJ.;
          McCarthy, J., vouched in.

                             __________


      Gerstenzang, O'Hern, Sills & Gerstenzang, Albany (Eric H.
Sills of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Jeffrey W.
Lang of counsel), for respondents.

                             __________


Peters, P.J.

      Appeal from a judgment of the Supreme Court (Ceresia Jr.,
J.), entered March 12, 2014 in Albany County, which dismissed
petitioner's application, in a combined proceeding pursuant to
CPLR article 78 and action for declaratory judgment, to, among
other things, review a determination of respondent Department of
Motor Vehicles denying petitioner's application for a driver's
license.

      Petitioner was convicted of driving while ability impaired
in 2003 and driving while intoxicated in both 2006 and 2008. As
a result of his 2008 conviction, petitioner's driver's license
                              -2-                520060

was revoked for a minimum period of one year (see Vehicle and
Traffic Law § 1193 [2] [b] [3]). In February 2012, respondent
Department of Motor Vehicles (hereinafter DMV) approved
petitioner's application for a new license, but withdrew its
approval three days later. Shortly thereafter, DMV imposed a
statewide moratorium on the review of licensure applications
filed by applicants with multiple alcohol- and/or drug-related
driving offenses pending the adoption of emergency regulations
affecting the relicensing of recidivist drivers.

      Emergency regulations were adopted in the fall of 2012 and,
as is pertinent here, provide that respondent Commissioner of
Motor Vehicles "shall," for a period of at least five years plus
the revocation period imposed by the Vehicle and Traffic Law,
deny the relicensure application of any person with three
alcohol-related convictions, but no serious driving offense,1
during a 25-year look-back period (15 NYCRR 136.5 [b] [3]). Once
the waiting period expires, the Commissioner may, in her
discretion, grant a relicensing application, in which event she
"shall" issue the applicant a restricted license "for a period of
five years and shall require the installation of an ignition
interlock device in any motor vehicle owned or operated by such
person for such five-year period" (15 NYCRR 136.5 [b] [3] [ii]).
The regulations expressly reserve to the Commissioner the
discretion to deviate from the regulatory scheme when presented
with "unusual, extenuating and compelling circumstances" (15
NYCRR 136.5 [d]).

      Citing the newly-enacted regulations, DMV denied
petitioner's application for a new license, and the
Administrative Appeals Board affirmed. Petitioner then commenced
this combined CPLR article 78 proceeding and declaratory judgment
action against DMV and its Commissioner seeking an order granting


    1
        A "[s]erious driving offense" means: "(i) a fatal
accident; (ii) a driving-related Penal Law conviction; (iii)
conviction of two or more violations for which five or more
points are assessed on a violator's driving record pursuant to
[15 NYCRR 131.3]; or (iv) 20 or more points from any violations"
(15 NYCRR 136.5 [a] [2]).
                              -3-                520060

him a new driver's license and declaring that the regulations
are, among other things, unconstitutional. Supreme Court
dismissed petitioner's application without a hearing, prompting
this appeal.

                       I. JUSTICIABILITY

      We first find that Supreme Court properly dismissed, as
nonjusticiable, petitioner's challenges to those provisions of
the regulations imposing a lifetime license revocation and
requiring the issuance of a restricted license and the
installation of an ignition interlock device. A controversy is
justiciable when the plaintiff in an action for a declaratory
judgment has "an interest sufficient to constitute standing to
maintain the action" (American Ins. Assn. v Chu, 64 NY2d 379, 383
[1985], appeal dismissed and cert denied 474 US 803 [1985];
accord Police Benevolent Assn. of N.Y. State Troopers, Inc. v New
York State Div. of State Police, 40 AD3d 1350, 1352 [2007],
appeal dismissed and lv denied 9 NY3d 942 [2007]). The claimed
harm must be "direct and immediate" – as opposed to merely
"insignificant, remote or contingent" – and such that it cannot
be "prevented or significantly ameliorated by . . .
administrative action or by steps available to the complaining
party" (Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510,
520 [1986], cert denied 479 US 985 [1986] [emphasis added];
accord Matter of New York Blue Line Council, Inc. v Adirondack
Park Agency, 86 AD3d 756, 760 [2011], appeal dismissed 17 NY3d
947 [2011], lv denied 18 NY3d 806 [2012]).

      A lifetime license revocation applies to persons with
either (1) five or more alcohol- or drug-related driving
convictions or incidents during his/her lifetime or (2) three or
four alcohol- or drug-related driving convictions or incidents
and a serious driving offense within the 25-year look-back period
(see 15 NYCRR 136.5 [b] [1], [2]). The imposition of a
restricted license and the installation of an ignition interlock
device are required only after the applicable waiting period has
expired and the Commissioner has approved the person's
application for a new license (see 15 NYCRR 136.5 [b] [3] [ii]).

     Here, inasmuch as petitioner had three alcohol-related
                              -4-                520060

driving convictions and no "serious driving offense" during the
25-year look-back period, he was not subject to a lifetime
license revocation. As for his challenge to that part of
15 NYCRR 136.5 (b) (3) (ii) concerning the imposition of a
restricted license and the installation of an ignition interlock
device, such "harm" cannot eventuate until petitioner's
revocation period has expired and, even then, only if an
application for relicensing is subsequently approved by the
Commissioner.2 Alternatively, petitioner could apply for and be
granted an exemption from the restricted license and ignition
interlock device requirements (see 15 NYCRR 136.5 [d]), under
which circumstance that portion of the regulation would,
obviously, have no impact upon him. As "the harm sought to be
enjoined is contingent upon events which may not come to pass,
the claim . . . is nonjusticiable as . . . speculative and
abstract" (Matter of New York State Inspection, Sec. & Law
Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64
NY2d 233, 240 [1984]; see Matter of Association for a Better Long
Is., Inc. v New York State Dept. of Envtl. Conservation, 97 AD3d
1085, 1087 [2012], mod on other grounds 23 NY3d 1 [2014]; Matter
of Adirondack Council, Inc. v Adirondack Park Agency, 92 AD3d
188, 191 [2012]; Matter of New York Blue Line Council, Inc. v
Adirondack Park Agency, 86 AD3d at 761). Accordingly, Supreme
Court properly dismissed as nonjusticiable petitioner's challenge
to 15 NYCRR 136.5 (b) (1) and (2) and that portion of 15 NYCRR
136.5 (b) (3) (ii) that requires the issuance of a restricted
license and the installation of an ignition interlock device.3


    2
        At the time that Supreme Court reviewed DMV's denial of
his application for a new license, petitioner's revocation period
had not expired. It matters not that, since then, he has been
issued a restricted license and has been required to install an
ignition interlock device, as the justiciability of a claim is
determined at the time the trial court reviews the challenge (see
Hussein v State of New York, 81 AD3d 132, 135 [2011], affd 19
NY3d 899 [2012]).
    3
        To the extent that petitioner argues that the requirement
of justiciability is inapplicable here because he and respondents
entered into a stipulation staying 19 particular actions and/or
                              -5-                520060

                    II. SEPARATION OF POWERS

      Next, we address petitioner's argument that the Legislature
preempted the field of "DWI law" by enacting Vehicle and Traffic
Law article 31. The doctrine of field preemption "has limited
utility where, as here, a perceived conflict between legislative
policy and administrative action at the same level of government
is at issue" (Boreali v Axelrod, 71 NY2d 1, 15 [1987]; see Matter
of Consolidated Edison Co. of N.Y. v Department of Envtl.
Conservation, 71 NY2d 186, 193 [1988]). Rather than engaging in
a preemption analysis, the dispositive inquiry is whether the
legislative branch of government intended, as evidenced by the
scope and language of the enabling legislation, "to grant
regulatory authority over a specific subject matter to an
administrative agency which exists as part of the coequal
executive branch" (Boreali v Axelrod, 71 NY2d at 15; see Matter
of Nicholas v Kahn, 47 NY2d 24, 31-32 [1979]).

      The Legislature has vested the Commissioner with broad
authority to promulgate regulations to "regulate and control the
exercise of" DMV's powers (Vehicle and Traffic Law § 215 [a]).
Among those powers is the Commissioner's authority to approve or
deny relicensing applications (see Vehicle and Traffic Law § 510
[5]), including those submitted by persons whose licenses were
revoked for alcohol- or drug-related driving offenses (see
Vehicle and Traffic Law § 1193 [2] [c] [1]). Indeed, the Vehicle
and Traffic Law provides that "[a] license . . . may be restored
by direction of the [C]ommissioner but not otherwise" (Vehicle
and Traffic Law § 510 [5]) and that, "[w]here revocation [of a
license] is mandatory," a new license shall not be issued for the
statutorily-designated period of time, "except in the discretion
of the [C]ommissioner" (Vehicle and Traffic Law § 510 [6]).


proceedings pending the resolution of this action/proceeding and
five others, which were deemed to be representative of "the core
legal issues" present in the stayed actions/proceedings, it is
sufficient to note that justiciability cannot be waived (see
Matter of New York Blue Line Council, Inc. v Adirondack Park
Agency, 86 AD3d at 760 n 4; 333 Cherry LLC v Northern Resorts,
Inc., 66 AD3d 1176, 1178 n 3 [2009]).
                              -6-                520060

Further, while the Vehicle and Traffic Law establishes minimum
periods of revocation for alcohol- or drug-related driving
offenses, it also provides that revoked licenses may only be
restored "in the discretion of the [C]ommissioner" (Vehicle and
Traffic Law § 1193 [2] [c] [1]) and "that the [C]ommissioner may,
on a case[-]by[-]case basis, refuse to restore a license which
would otherwise be restored [under the statute], in the interest
of the public safety and welfare" (Vehicle and Traffic Law § 1193
[2] [b] [12]). Together, these statutory provisions lead to the
inexorable conclusion that the Legislature intended to grant DMV
regulatory authority over the relicensing of persons with
multiple alcohol- and/or drug-related driving offenses (see
Matter of Shearer v Fiala, 124 AD3d 1291, 1292 [2015], lv denied
25 NY3d 909 [2015]).

      We now consider whether DMV exceeded the bounds of that
regulatory authority by making "'broad-based public policy
determinations'" when it promulgated the challenged regulations
(Matter of New York Statewide Coalition of Hispanic Chambers of
Commerce v New York City Dept. of Health & Mental Hygiene, 110
AD3d 1, 7-8 [2013], affd 23 NY3d 681 [2014], quoting Rent
Stabilization Assn. of N.Y. City v Higgins, 83 NY2d 156, 169
[1993], cert denied 512 US 1213 [1994]). To determine whether an
administrative agency has usurped the power of the Legislature,
courts must consider whether the agency: (1) "operat[ed] outside
of its proper sphere of authority" by balancing competing social
concerns in reliance "solely on [its] own ideas of sound public
policy"; (2) engaged in typical, "interstitial" rulemaking or
"wrote on a clean slate, creating its own comprehensive set of
rules without the benefit of legislative guidance"; (3) "acted in
an area in which the Legislature has repeatedly tried – and
failed – to reach agreement in the face of substantial public
debate and vigorous lobbying by a variety of interested
factions"; and (4) applied its "special expertise or technical
competence" to develop the challenged regulations (Boreali v
Axelrod, 71 NY2d at 12-14 [internal quotation marks and citations
omitted]; see Matter of NYC C.L.A.S.H., Inc. v New York State
Off. of Parks, Recreation & Historic Preserv., 125 AD3d 105, 108
[2014], lv denied 25 NY3d 963 [2015]).

     We find that, in enacting the challenged regulations, DMV
                              -7-                520060

did not act on its own ideas of public policy, but rather
implemented the Legislature's policies of promoting highway
safety and reducing instances of impaired and intoxicated
driving. Indeed, the Legislature has expressed its concern with
"[t]he ever-increasing number of accidents, personal injuries and
deaths resulting from alcohol[-] or drug-related traffic
offenses" (Vehicle and Traffic Law § 520) and, to address that
concern, has prohibited the impaired or intoxicated operation of
a motor vehicle and has assigned "minimum" periods of license
revocation for violating this prohibition (Vehicle and Traffic
Law §§ 1192, 1193 [2] [b]). Once such "minimum" period expires,
the Commissioner is vested with discretion to approve or deny
relicensing requests (Vehicle and Traffic Law § 1193 [2] [c]
[1]). As the dissent recognizes, Vehicle and Traffic Law § 1196
(5) grants the Commissioner the authority to vacate a revocation
order and reinstate a license before expiration of the minimum
statutory period if the applicant completes an alcohol and drug
rehabilitation program. However, that statutory provision does
not distinguish between first-time offenders and recidivist
drivers and affords the Commissioner the "discretion" to evaluate
the varying circumstances of applicants and determine whether to
cut the minimum revocation period short (Vehicle and Traffic Law
§ 1196 [5]). Inasmuch as the Commissioner has the discretion to
continue license revocations beyond the statutory minimum period
and recidivist drivers pose a heightened risk to the safety of
public roadways (see NY Reg, Mar. 13, 2013 at 46), we find that
respondents promulgated 15 NYCRR 136.5 (b) (3) in furtherance of
legislatively-defined policy and thus engaged in permissible,
interstitial rulemaking.

      Contrary to the dissent, we do not view 15 NYCRR 136.5 (b)
(3) as replacing the discretion granted to the Commissioner over
relicensing determinations. Rather, the regulation represents
the Commissioner's discretionary determination to impose, in
addition to the statutory minimum, a five-year revocation period
upon anyone who committed three or four alcohol- or drug-related
driving offenses within a 25-year period. By promulgating such a
regulation, the Commissioner not only revealed how she chooses to
exercise her discretion with respect to three- or four-time
recidivists, but ensured that such discretion is uniformly
applied to all similarly situated persons. Moreover, while 15
                              -8-                520060

NYCRR 136.5 (b) (3) defines the Commissioner's general position
on persons with three or four qualifying offenses, the
Commissioner retains the discretion to deviate from that position
in "unusual, extenuating and compelling circumstances" (15 NYCRR
136.5 [d]).

      Further, while it is true that various bills involving the
imposition of stricter penalties upon recidivist drivers have
been introduced into the Senate and Assembly, most of those bills
have failed to make it out of committee (see Rent Stabilization
Assn. of N.Y. City v Higgins, 83 NY2d at 170; Matter of NYC
C.L.A.S.H., Inc. v New York State Off. of Parks, Recreation &
Historic Preserv., 125 AD3d at 110-111). As the early demise of
such proposed legislation could well be an expression of the
Legislature's intent to keep intact the Commissioner's broad
discretionary authority over relicensing, we cannot conclude, on
this factor alone, that respondents exceeded their authority in
promulgating the regulations (see generally Rent Stabilization
Assn. of N.Y. City v Higgins, 83 NY2d at 170). Finally, inasmuch
as respondents relied on their own empirical data regarding the
number of statewide personal injuries and deaths caused by
recidivist drivers, we find that a fair amount of expertise was
required to promulgate the regulations. Accordingly, upon
consideration of these coalescing factors, we hold that
respondents did not run afoul of the constitutional separation of
powers doctrine by promulgating the regulations.

                    III. STATUTORY CONFLICT

      Nor do we conclude that 15 NYCRR 136.5 (b) (3) conflicts
with the Vehicle and Traffic Law. Vehicle and Traffic Law § 1193
(2) (b) sets "minimum periods" during which the Commissioner
cannot reissue a revoked license, but also vests the Commissioner
with complete discretion to determine whether relicensing is
appropriate once the minimum period expires. While the statutory
provision applicable to petitioner includes a 10-year look-back
period, that look-back period is used only to set the minimum
revocation period (see Vehicle and Traffic Law § 1193 [2] [b]
[3]). Because the relevant statutory provisions merely involve
the fixing of minimum revocation periods, we discern no conflict
between the enabling statute and 12 NYCRR 136.5 (b) (3)'s five-
                              -9-                520060

year revocation period or 25-year look-back period (see Matter of
Shearer v Fiala, 124 AD3d at 1292).

          IV. RETROACTIVITY/EX POST FACTO PROHIBITION

      We also reject petitioner's assertion that DMV's denial of
his request for a new license constituted an impermissible
retroactive application of 15 NYCRR 136.5 (b) (3) and a violation
of the Ex Post Facto Clause of the US Constitution. Legislation
is retroactive when it "takes away or impairs vested rights"
(McKinney's Cons Laws of NY, Book 1, Statutes § 51 [a]) or
"'alter[s] past transactions or considerations'" (Matter of Scism
v Fiala, 122 AD3d 1197, 1198 [2014], quoting Matter of Allied
Grocers Coop. v Tax Appeals Trib., 162 AD2d 791, 792 [1990]). As
we have iterated, a driver's license is "a personal privilege
subject to reasonable restrictions and revocation by [the
Commissioner in] her discretionary powers," not a vested right
(Matter of Scism v Fiala, 122 AD3d at 1198; see Matter of Kenny v
Fiala, 127 AD3d 1359, 1360 [2015]; see also Matter of Lap v
Axelrod, 95 AD2d 457, 459 [1983], lv denied 61 NY2d 603 [1984]).
The regulations are not retroactive merely because they permit
the consideration of an alcohol- or drug-related driving
conviction that occurred before their promulgation to determine a
person's eligibility to enjoy the privilege of possessing a
driver's license (see Matter of St. Clair Nation v City of New
York, 14 NY3d 452, 456-458 [2010]; Forti v New York State Ethics
Commn., 75 NY2d 596, 609 [1990]). Finally, the prohibition
contained in the Ex Post Facto Clause of the US Constitution
applies only to penal statutes and not to regulations such as
those at issue here (see Kellogg v Travis, 100 NY2d 407, 410
[2003]; Matter of Santiago v Roy, 117 AD3d 1352, 1353 [2014];
Matter of Suce v Taylor, 37 AD3d 886, 887 [2007], lv denied 9
NY3d 803 [2007]; Matter of Robinson v Bennett, 300 AD2d 715, 716
[2002]; but see Matter of McKevitt v Fiala, 129 AD3d 730, 731
[2015]).

                      V. REMAINING ISSUES

      Petitioner's remaining contentions do not require extended
discussion. While a conviction for aggravated unlicensed
operation of a motor vehicle in the first degree and a youthful
                              -10-               520060

offender adjudication of driving while intoxicated are excluded
from the regulation's definition of alcohol- or drug-related
driving conviction or incident (see 15 NYCRR 136.5 [a] [1]), a
rational basis exists to support these exclusions, as a person
need not be under the influence of alcohol or drugs to be
convicted of aggravated unlicensed operation of a motor vehicle
in the first degree (compare Vehicle and Traffic Law § 511 [3]
[a] [i], with Vehicle and Traffic Law § 511 [3] [a] [ii], [iii]),
and youthful offender adjudications "are confidential and may not
be made available to any . . . public . . . agency" (CPL 720.35
[2]). Lastly, because petitioner's challenges implicated purely
legal questions, Supreme Court did not err in dismissing the
petition without a hearing (see Matter of Kenny v Fiala, 127 AD3d
at 1360; Matter of Akshar v Mills, 249 AD2d 786, 788 [1998], lv
dismissed 92 NY2d 962 [1998]).

     Lahtinen and McCarthy, JJ., concur.


Lynch, J. (dissenting).

      We respectfully dissent. Initially, we agree with the
majority that petitioner's standing is limited to challenging
those aspects of the regulations that impact him, but would
expand that challenge to all of 15 NYCRR 136.5 (b) (3) (ii). A
party has standing if he or she has "a legally cognizable
interest that is or will be affected by the [administrative]
determination" (Matter of Sun-Brite Car Wash v Board of Zoning &
Appeals of Town of N. Hempstead, 69 NY2d 406, 413 [1987]
[emphasis added]). Here, petitioner, who received a statutory
penalty of a one-year revocation as a result of his conviction,
commenced this combined CPLR article 78 proceeding and
declaratory judgment action when respondent Commissioner of Motor
Vehicles denied his application for relicensure and imposed a
five-year stay (see 15 NYCRR 136.5 [b] [3] [ii]). At the time,
he was directly impacted by the stay, but it was evident that he
would only be eligible for an A2 restricted license, coupled with
                              -11-               520060

an ignition interlock device, during the next five years1 (see 15
NYCRR 136.5 [b] [3] [ii]). This is clearly a situation where the
future event, i.e., the application for a reissued license and
the issuance of a restricted license under the regulation, were
contemplated by the parties (see Hussein v State of New York, 81
AD3d 132, 135-136 [2011], affd 19 NY3d 899 [2012]). In our view,
a challenge to the initial five-year stay necessarily implicates
the Commissioner's continuing regulatory authority and, thus, the
regulation either stands or falls as a package.

      Next, we also agree with the majority that the Legislature
has given the Commissioner extremely broad authority to regulate
the issuance of licenses following a statutory revocation (see
Vehicle and Traffic Law §§ 215, 510 [5]; 1193 [2] [b] [12]; [c]
[1]). As provided by Vehicle and Traffic Law § 1193 (2) (c) (1),
no new license shall be issued after a statutory revocation is
imposed for an alcohol-related offense "except in the discretion
of the [C]ommissioner" (emphasis added). That authority,
however, must be tempered by the Commissioner's administrative
role because, "[h]owever facially broad, a legislative grant of
authority must be construed, whenever possible, so that it is no
broader than that which the separation of powers doctrine
permits" (Boreali v Axelrod, 71 NY2d 1, 10 [1987]). In our view,
the Commissioner exceeded the scope of her regulatory authority
by adopting, as pertinent here, emergency regulations that
mandate a five-year stay of the relicensure application of any
person with three alcohol-related convictions during a 25-year
look-back period (see 15 NYCRR 136.5 [b] [3]). The same holds
true for the subsequent five-year period during which the
Commissioner has determined to allow, if at all, only an A2
restricted license, with an ignition interlock device (see 15
NYCRR 3.2 [c] [4]; 136.4 [b] [2]; 136.5 [b] [3]).



    1
        In his brief, the Attorney General candidly acknowledges
that "petitioner would likely be affected" by the A2 restricted
license and ignition interlock device requirements. It is
undisputed that petitioner has since received an A2 restricted
license, subject to the use of an ignition interlock device under
15 NYCRR 136.5 (b) (3) (ii).
                              -12-               520060

      The Vehicle and Traffic Law establishes firm criminal
penalties and license sanctions for alcohol- and drug-related
offenses that reflect a balance between public safety and the
hardship encountered in losing one's driving privileges (see
Vehicle and Traffic Law § 1193). Relevant here, a driver's
license must be revoked for a period of one year where the driver
has at least one prior alcohol- or drug-related offense within a
10-year period (see Vehicle and Traffic Law § 1193 [2] [b] [3]).
Even then, the statute grants the Commissioner the authority to
terminate such revocation upon the completion of alcohol and drug
rehabilitation (see Vehicle and Traffic Law § 1196 [5]).

      The question presented here is whether the Commissioner
usurped the legislative policy-making role by effectively
yielding her statutory discretion to a regulation that prohibits
and then restricts the reissuance of a license for a 10-year
period. In our view, because the Commissioner "crossed the hazy
'line between administrative rule-making and legislative policy-
making'" (Greater New York Taxi Assn. v New York City Taxi &
Limousine Commn., ___ NY3d ___, ___, 2015 NY Slip Op 05514, *7,
quoting Boreali v Axelrod, 71 NY2d at 11), this question must be
answered affirmatively. Upon consideration of the "coalescing
circumstances" set forth by the majority (Boreali v Axelrod, 71
NY2d at 12-14; see Matter of NYC C.L.A.S.H., Inc. v New York
State Off. of Parks, Recreation & Historic Preserv., 125 AD3d
105, 108 [2014], lv denied 25 NY3d 963 [2015]), as to the first
two factors, we agree that the regulations are generally
consistent with a strong legislative policy of promoting public
safety by reducing alcohol-related driving incidents. In
application, however, we find that regulation impermissibly
requires the Commissioner to act contrary to her statutory
authority. As set forth above, the statute grants the
Commissioner discretion to reissue a license after a revocation
period expires and even to terminate a one-year revocation once
the driver meets certain conditions (see Vehicle and Traffic Law
§ 1196 [5]). In contrast, the Commissioner has enacted a
"general policy" to refuse to reissue a license for an extended
five-year period in all cases absent a showing "of unusual,
extenuating and compelling circumstances" (15 NYCRR 136.5 [d]).
This last qualifying phrase, in which the Commissioner has
reserved the option of waiving the stay, does not resolve the
                              -13-               520060

problem because, by definition, a five-year stay is the standard
and not, of itself, a hardship. The waiver language speaks to an
extreme scenario that frankly is difficult to define, but leaves
intact a general stay policy. The net effect is predictable
enforcement, without regard to the underlying circumstances. By
imposing this regulatory limitation, it is our view that the
agency "was 'acting solely on its own ideas of sound public
policy'" (Boreali v Axelrod, 71 NY2d at 12, quoting Matter of
Picone v Commissioner of Licenses, 241 NY 157, 162 [1925]). It
is telling that, under the challenged regulation, petitioner's
license has been effectively revoked for a six-year period (the
initial one-year statutory revocation, plus the five-year
regulatory stay). By comparison, had petitioner incurred the
three alcohol-related offenses within a shorter, four-year
period, statutorily his license would have been permanently
revoked, subject to a mandatory waiver after five years (see
Vehicle and Traffic Law § 1193 [b] [12]). In effect, by virtue
of the new regulation, petitioner has been subjected to a longer
revocation than that statutorily imposed upon a recidivist driver
with a temporally worse driving record. This consequence shows
that the Commissioner has simply gone too far.

      Establishing what is in effect a general bar to
unrestricted relicensure for a 10-year period following a
statutory revocation, the Commissioner did not "merely fill in
the details of broad legislation" (Boreali v Axelrod, 71 NY2d at
13). Rather, she abdicated her statutory mandate to exercise her
discretion in favor of a hard and fast rule, waivable only under
extremely limited circumstances. In contrast, and with respect
to the third Boreali factor, prior to the promulgation of this
emergency rule, the Legislature considered but did not enact
"Charlotte's Law," a bill that would have required harsher
penalties for recidivist drivers (see 2011 NY Senate-Assembly
Bill S6496, A8934b).2 Correspondingly, the Legislature has since


    2
        Focused on recidivist drivers, the proposed legislation
provided for a permanent revocation in an instance, as here,
where a driver had three alcohol-related offenses in violation of
Vehicle and Traffic Law § 1192, within an expanded 25-year look-
back period. Contrary to petitioner's argument, the challenged
                             -14-                  520060

adopted what is known as "Vince's Law" to heighten the criminal
consequences of a recidivist offender. Specifically, Vehicle and
Traffic Law § 1193 (1) (c) (ii) now provides that a driver with
three Vehicle and Traffic Law § 1192 convictions within the
preceding 15 years shall be guilty of a class D felony (see L
2014, ch 191, §§ 1, 2, 3 [eff Nov. 1, 2014]). By adopting a
policy creating an automatic stay in all cases absent "unusual,
extenuating and compelling circumstances," the Commissioner has
"impose[d] a solution of [her] own" to address the public safety
issue created by recidivist drivers (Boreali v Axelrod, 71 NY2d
at 13). Based on the foregoing, we would grant the petition to
the extent that 10 NYCRR 136.5 (b) (3) should be declared null
and void, and remit the matter to the Commissioner for further
consideration of petitioner's relicensure application.

     Garry, J., concurs.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court




regulation does not mirror Charlotte's Law. While the regulation
does embrace the 25-year look-back period, it does not go so far
as to mandate a permanent revocation. Charlotte's Law did not
advance beyond the legislative committee stage.
