{ "id": 3458185, "name": "DANIEL SHANAHAN, Plaintiff-Appellee, v. JIM EDGAR, Secretary of State, Defendant-Appellant", "name_abbreviation": "Shanahan v. Edgar", "decision_date": "1986-11-13", "docket_number": "No. 85-1377", "first_page": "868", "last_page": "882", "citations": [ { "type": "official", "cite": "149 Ill. App. 3d 868" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "475 N.E.2d 956", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill. App. 3d 489", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3435272 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0489-01" ] }, { "cite": "484 N.E.2d 1145", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "137 Ill. App. 3d 505", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3639447 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/137/0505-01" ] }, { "cite": "126 N.E.2d 617", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "619" } ], "opinion_index": 0 }, { "cite": "6 Ill. 2d 147", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2707815 ], "year": 1985, "pin_cites": [ { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/6/0147-01" ] }, { "cite": "147 Ill. App. 3d 723", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3605135 ], "weight": 3, "pin_cites": [ { "page": "731" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/0723-01" ] }, { "cite": "108 Ill. 2d 562", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "478 N.E.2d 1165", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1985, "pin_cites": [ { "page": "1171" }, { "page": "1169" }, { "page": "1170" } ], "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 513", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3529209 ], "weight": 5, "year": 1985, "pin_cites": [ { "page": "523" }, { "page": "519-20" }, { "page": "520" }, { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0513-01" ] }, { "cite": "8 Ill. Reg. 4220", "category": "laws:admin_register", "reporter": "Ill. Reg.", "weight": 6, "opinion_index": 0 }, { "cite": "7 Ill. Reg. 7501", "category": "laws:admin_register", "reporter": "Ill. Reg.", "weight": 4, "opinion_index": 0 } ], "analysis": { "cardinality": 1098, "char_count": 35051, "ocr_confidence": 0.754, "pagerank": { "raw": 6.301981745586105e-08, "percentile": 0.38778322597186166 }, "sha256": "dfb1875a034372ca7acffa039d8633936530b05a8758fbee5b3126235ae288b4", "simhash": "1:8aa9a876f301cef5", "word_count": 5556 }, "last_updated": "2023-07-14T21:36:15.078878+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DANIEL SHANAHAN, Plaintiff-Appellee, v. JIM EDGAR, Secretary of State, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McMORROW\ndelivered the opinion of the court:\nThe Secretary of State (the Secretary) appeals from the order of the circuit court of Cook County which held, upon administrative review, that the Secretary\u2019s decision to deny reinstatement of driving privileges or a restricted driving permit (RDP) to Daniel Shanahan (Shanahan) was against the manifest weight of the evidence. Based upon this determination, the trial court ordered the Secretary to issue Shanahan a restricted driving permit (Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 6 \u2014 205(c)) and to reinstate Shanahan\u2019s driving privileges without restriction (Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 6 \u2014 208(b)). The Secretary appeals.\nThe Secretary presents two grounds for reversal of the trial court\u2019s order. First, the Secretary contends that Shanahan is ineligible for full reinstatement of his driving privileges as a matter of law because of the Secretary\u2019s \u201cfive-year rule.\u201d The Secretary maintains that under this rule, reinstatement of a driver\u2019s license is impermissible where the applicant has received two or more convictions of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 11 \u2014 501; see also Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 6 \u2014 205(a) (revocation of license)), until at least five years have elapsed since the date of the latest DUI conviction. The Secretary also argues that the trial court\u2019s decision was erroneous, because Shanahan\u2019s prior convictions of DUI, his driving record, and evidence of his continued alcohol consumption, establish that the reinstatement of his driving privileges or the issuance of an RDP would create an unreasonable risk to public safety and welfare on the highway.\nBased upon our review of the record, we conclude that the Secretary\u2019s decision was in error. Accordingly, we affirm the portion of the trial court\u2019s order which found the Secretary\u2019s determination to be against the manifest weight of the evidence. Furthermore, we conclude that the Secretary\u2019s per se five-year rule is in excess of the Secretary\u2019s statutory authority; in view of the length of time which has elapsed since Shanahan\u2019s request for either an RDP or reinstatement of his driving privileges, we vacate the orders entered below and remand the matter to the Secretary for further proceedings on Shanahan\u2019s application.\nBackground\nShanahan\u2019s driver\u2019s license was revoked by the Secretary of State on June 8, 1981, on the ground that he had been convicted two or more times of DUI. (See Ill. Rev. Stat. 1981, ch. 95\u00bd, par. 6\u2014 205(a)(2).) The record reflects that Shanahan was arrested for DUI on March 18, 1978, January 28, 1979, and March 26, 1981, and that these last two arrests resulted in DUI convictions on April 17, 1979, and April 13,1981.\nIn September 1983, Shanahan requested that the Secretary of State hold a formal hearing for the purpose of his application for, first, an RDP or, second, for either full reinstatement of his driving privileges or an RDP. The requested formal hearing was held in October 1983.\nThe hearing officer found that Shanahan\u2019s driving record included the following. In the years 1975 to 1976 (when Shanahan was 21 to 22 years old) he was convicted for improper lane usage (August 6, 1975), speeding (October 27, 1975), collision involving damage to vehicles only, failure to stop, exchange information and make a report (January 9, 1976) and improper lane usage (January 20, 1976). The Secretary imposed a discretionary suspension for three or more moving violations within a 12-month period, which was entered on June 23, 1976, and terminated on September 23, 1976. Shanahan was also issued a probationary license from June 30, 1976, to October 3,1976.\nOn September 23, 1977, Shanahan was convicted for disregarding an official traffic-control device. Almost six months later, on March 18, 1978, he was arrested for DUI; an implied-consent suspension was entered against him on June 5, 1978, terminating on September 5, 1978. His March 18 arrest also resulted in his conviction for failure to give a stop or turn signal on April 11, 1978. Shanahan was later issued an RDP from June 30,1978, to October 5,1978.\nOn January 28, 1979, Shanahan was arrested for DUI; this resulted in a DUI conviction on April 17, 1979. He had previously been arrested on December 22, 1978; this arrest resulted in a conviction for improper lane usage on March 22, 1979. An order revoking his driver\u2019s license and driving privileges was entered effective May 16, 1979, pursuant to section 6 \u2014 205(a)(2) of the Illinois Vehicle Code (the Vehicle Code) (Ill. Rev. Stat. 1979, ch. 95\u00bd, par. 6 \u2014 205(a)(2)). Thereafter he was issued an RDP, from October 29, 1979, to October 29, 1980.\nOn March 26, 1981, Shanahan was arrested for DUI. He was convicted for DUI and for driving while license revoked on April 13. An implied-consent suspension was entered against him on June 28, 1981, and terminated on December 28, 1981. An order revoking Shanahan\u2019s driver\u2019s license and driving privileges was entered effective June 8, 1981, pursuant to section 6 \u2014 205(a)(2) of the Vehicle Code (Ill. Rev. Stat. 1981, ch. 95\u00bd, par. 6-205(a)(2)).\nAt the hearing on his application for reinstatement or an RDP, Shanahan presented the evaluation report of William Downs, a certified alcohol counselor employed by Ingalls Memorial Hospital\u2019s Alcoholism Treatment Center. The report, provided on an alcohol/drug assessment form promulgated by the Secretary, was dated September 15, 1983. In it the evaluator observed that Shanahan\u2019s drinking pattern increased after high school. The report noted that during this period, Shanahan\u2019s alcohol consumption occurred two to three times per week at an average of 2 to 10 beers per episode. The evaluator observed in the report that Shanahan \u201cstate[d] there were times when he would drink more and there was some intermittent loss of control.\u201d The report noted that Shanahan \u201creceive[d] two DUI\u2019s, the first being in February 1979, and the second March, 1981.\u201d The record indicates that Shanahan was born in December 1954. Thus the period to which the evaluation referred as Shanahan\u2019s \u201cincreased drinking pattern after high school\u201d occurred when Shanahan was approximately 18 to 26 years of age.\nThe evaluation report commented upon Shanahan\u2019s changed behavior in the two years prior to the evaluation in 1983. The report stated that during the time frame of 1981 to 1983, Shanahan\u2019s \u201cdrinking pattern has consisted of consuming a glass of beer or wine about once every two weeks. Usually this is at home watching [television].\u201d The evaluator noted that Shanahan \u201cdenies any blackouts, increase in tolerance or loss of control.\u201d The report indicated no identification of a current alcohol or drug problem. It also indicated that Shanahan had undergone an objective test for alcohol abuse specified as MAST [the Michigan Alcoholism Screening Test], although no results of this test were given, or requested, in the evaluation report format.\nThe evaluator\u2019s report also observed that Shanahan entered In-galls Memorial Hospital\u2019s Intensive Outpatient Counseling Program in April 1981. The four-week program\u2019s purpose \u201cwas to provide an in-depth assessment of the extent of [Shanahan\u2019s] alcohol problem and to provide an in-depth education about alcoholism.\u201d The evaluator noted that Shanahan \u201cparticipated in all activities and completed the program in May 1981.\u201d\nIn his report, the evaluator also stated that it was his impression that Shanahan\u2019s drinking pattern, prior to the April 1981 counseling program, \u201cindicated symptoms of alcoholism.\u201d The evaluator observed that since April 1981, Shanahan \u201cappears to have taken a more responsible attitude toward his past problem. It does not appear he has a current alcohol problem.\u201d The evaluator stated that it was also his impression that \u201cno further alcoholism treatment appears warranted.\u201d\nAt the hearing, Shanahan testified that since his last DUI arrest on March 26, 1981, he attended the alcohol counseling course, altered his lifestyle with respect to alcohol, and has not been intoxicated. Shanahan admitted that his past drinking habits indicated alcohol abuse, but he was unclear in response to questioning regarding whether he was, in the past, an active \u201calcoholic,\u201d which he defined as someone who was \u201cdependent\u201d upon alcohol. He testified that he had \u201cjust be[en] around people that used and enjoyed alcohol\u201d in the past, and that he never felt dependent upon alcohol, never experienced a loss of memory or consciousness from consuming alcohol, and he never engaged in the daily use of alcohol. Shanahan stated that his past problem \u201cwas a weekend-type thing, out with your friends at a party or something. It wasn\u2019t the case of losing control of your body functions, just a matter of becoming a little bit inebriated.\u201d He also testified that he had gone to \u201ca couple of meetings\u201d of Alcoholics Anonymous, and that no counselor recommended that he attend. Shanahan described his current drinking habits as an \u201coccasional beer every other two or three weekends, usually at home on a Saturday night, at home watching TV or a glass of wine.\u201d He also testified that he never has any alcohol at parties, because he \u201cknowfs] the effects of [alcohol] [and] *** [t]he possibility that [he] would have [a recurrence of] problems with alcohol.\u201d\nShanahan also testified that he lives 8 miles from his place of employment and that there is no public transportation between his home and his job. He is also required to drive sometimes at work. He stated that his employer has orally advised him that his employment would be terminated if he is not granted some kind of driver\u2019s license. His employer also submitted a statement in support of Shanahan\u2019s application, stating that it was imperative that Shanahan receive a license. Shanahan further testified that he would soon be married.\nWilliam Ryan, a friend of Shanahan, testified at the hearing that there had been a dramatic change in Shanahan\u2019s lifestyle since his last arrest, and that Shanahan did not have a current drinking problem. Ryan further testified that since Shanahan\u2019s last arrest for DUI, Ryan had not seen Shanahan in an intoxicated state. Ryan stated that he had only seen Shanahan drink on three or four occasions, and on those occasions, Shanahan consumed \u201cprobably never more than two-three bottles of beer.\u201d Ryan testified that he was an attorney, that he was not an alcohol counselor, and had no training in the treatment of alcoholism.\nThe hearing officer concluded that Shanahan did not appear to have a current problem with alcohol, that he demonstrated undue hardship in his capacity to maintain employment and that given his history of driving violations and abuse of alcohol, an RDP was the only appropriate remedy, rather than reinstating his driving privileges. The officer therefore recommended that Shanahan be denied reinstatement but issued an RDP.\nThe Secretary, however, did not concur in the hearing officer\u2019s conclusions. Specifically, the Secretary found an inconsistency between Shanahan\u2019s reported current drinking pattern and the testimony of his witness. The Secretary determined that this inconsistency cast doubt on the credibility of Shanahan\u2019s testimony regarding his current drinking habits. The Secretary also determined that because the alcohol evaluator focused on two DUI arrests, rather than Shanahan\u2019s three DUI arrests, the probative value of the evaluator\u2019s assessment was minimized. The Secretary further noted the evaluator\u2019s impression that Shanahan\u2019s prior drinking pattern indicated, according to the Secretary, \u201csymptoms of alcoholism without abstinence. (92 Ill. Admin. Code. sec. 1001.440(e).\u201d Based upon these considerations, the Secretary denied Shanahan\u2019s petition for an RDP in a written order dated December 22, 1983.\nThereafter, Shanahan filed a complaint for administrative review. (See Ill. Rev. Stat. 1983, ch. 95\u00bd, pars. 2 \u2014 118(e), 6 \u2014 212; Ill. Rev. Stat. 1983, ch. 110, par. 3 \u2014 101 et seq.) On July 26, 1984, the trial court remanded the matter to the Secretary, retaining jurisdiction to adjudicate the cause. Shanahan was ordered to provide an affidavit from Downs, the certified alcohol counselor who evaluated Shanahan\u2019s condition in September 1983. The court directed that Downs state in the affidavit whether Shanahan \u201chad a clinical impression of alcohol abuse/alcoholism at the time of the assessment in September, 1983.\u201d The trial court also ordered the Secretary to review the transcript of the matter in light of Downs\u2019 affidavit and to render a decision within 30 days after Downs\u2019 affidavit was presented.\nOn remand, Downs stated in his affidavit that when he interviewed Shanahan and assessed his condition in May 1981, it was Downs\u2019 opinion that Shanahan manifested \u201csymptoms of middle-stage alcoholism.\u201d Downs saw Shanahan again on September 12, 1983, for further alcohol evaluation. Downs stated that \u201c[bjased upon [his] observation and information corroborated by others during the interview, the information elicited from Mr. Shanahan [was] accurate.\u201d Downs stated it was his opinion that Shanahan \u201cappeared to be handling the consequences of his prior actions in a natural and responsible manner. There were no signs of dependency or evidence of alcohol abuse whatsoever. Certainly, no further treatment would be indicated.\u201d\nThe hearing officer also entered revised findings and recommendations on remand. The hearing officer noted the \u201cinconsistencies\u201d in the testimonies of Shanahan and Ryan regarding Shanahan\u2019s current drinking pattern. The officer observed that \u201c[t]his inconsistency indicates that the Petitioner on occasion would consume more than one glass of beer or wine and appears to be an attempt to minimize his current drinking habits.\u201d The officer also noted the contradiction in \u201cthe Petitioner\u2019s opinion that he has never had a serious drinking problem, despite the alcoholism counselor\u2019s finding that the Petitioner in the past manifested symptoms of middle-stage alcoholism.\u201d\nThe officer also observed that at Shanahan\u2019s hearing, \u201c[n]o documentation was presented in the form of an assessment of the Petitioner\u2019s participation and readiness for treatment, which should include aftercare recommendations and an indication of the Petitioner\u2019s participation in aftercare, as required by Chapter II, 92 Illinois Administrative Code, Section 110.440(d). Therefore, the Petitioner failed to present sufficient evidence to determine the nature and extent of his drinking problem and whether or not he has adequately addressed said problem.\u201d In this regard, the officer considered in detail the significance of Downs\u2019 affidavit. The hearing officer noted that \u201c[s]ince the Petitioner could have been classified as a middle-stage alcoholic in May of 1981, there is a question as to whether he should be drinking at all even though he has been drinking in a controlled manner for over two years.\u201d\nThe officer then quoted at length from a book on alcoholism regarding the nature of \u201cmiddle-stage alcoholism.\u201d This text included the statement, \u201c \u2018Many middle-stage alcoholics can successfully control or appear to control their drinking throughout a period of probation ***. These temporary control strategies are often misinterpreted as evidence that the person is not addicted to alcohol and could control his drinking if he would only put his mind to it. Occasional \u201cslips\u201d are concealed or rationalized ***.\u2019 (See 1 Under the Influence \u2014 A Guide to the Myths and Realities of Alcoholism, p. 94 (MI-LAM & KETCHAM ed. 1981)).\u201d The hearing officer further noted that \u201c \u2018virtually all the effective programs have in common the understanding that alcoholism is a disease that can be arrested but not cured and that the cornerstone of full recovery must be continuous total abstinence from alcohol and substitute drugs.\u2019 (See 1 Under the Influence \u2014 A Guide to the Myths and Realities of Alcoholism, p. 131 (MILAM & KETCHAM ed. 1981)).\u201d The officer observed that \u201c[i]f the Petitioner is alcoholic, stressing the lack of clear and convincing evidence that he is not and substantial evidence that he is, including a long history of abusive drinking, intermittent loss of control, three arrests for DUI and the alcoholism counselor\u2019s finding that the Petitioner manifested symptoms of middle-stage alcoholism; then there are specialized private and public treatment programs for alcoholics, many of which are effective.\u201d\nThe officer further found that Shanahan had failed to present evidence to demonstrate that he had had a year of \u201cdocumented abstinence,\u201d as required under section 1001.440(e) of the Secretary\u2019s regulations. The officer reasoned that \u201cthe evidence clearly established that, prior to May of 1981, the Petitioner at the very least abused alcohol and he in fact manifested symptoms of middle-stage alcoholism.\u201d The officer also observed that \u201c[s]imply because an individual no longer exhibits symptoms of dependence or abuse does not indicate that his problem no longer exists since as pointed out previously, \u2018alcoholism is a disease that can be arrested but not cured.\u2019 \u201d The officer found that \u201csince the Petitioner manifested symptoms of middle-stage alcoholism and is currently drinking in a controlled manner, the risk is substantial that he will at some point lose control, as in the past, and return to abusive drinking.\u201d The officer concluded that Shanahan therefore presented \u201can unacceptable risk of endangering the public safety and welfare.\u201d\nOn November 29, 1984, the Secretary entered an order upon reconsideration which denied Shanahan\u2019s application for reinstatement or an RDP.\nThe trial court entered an order on April 12, 1985, which found that the Secretary\u2019s denial of reinstatement or an RDP was against the manifest weight of the evidence and an abuse of discretion. The court ordered the Secretary to issue Shanahan an RDP and also to issue to Shanahan \u201cthe full reinstatement of his driving privileges without restriction.\u201d The Secretary\u2019s timely appeal followed.\nOn July 22, 1985, the trial court denied the Secretary\u2019s motion for stay of the court\u2019s prior order, the court finding that it had lost jurisdiction over the cause. Thereafter, on August 2, the Secretary filed with this court a motion for stay of the trial court\u2019s order directing that the Secretary issue to Shanahan both reinstatement and an RDP. This motion was allowed by order of this court entered August 15, 1985, over Shanahan\u2019s objection.\nOpinion\nInitially, we note that the basis for the Secretary\u2019s denial of Shanahan\u2019s application differed when the Secretary originally entered its denial order in December 1983, and later when the Secretary entered its denial order upon reconsideration in October 1984. Furthermore, the Secretary\u2019s regulations regarding reinstatement or an RDP were modified effective April 1984, during the pendency of the action before the trial court. In addition, it is unclear from the Secretary\u2019s 1983 order whether the Secretary considered Shanahan\u2019s application according to the Secretary\u2019s 1983 regulations or the Secretary\u2019s 1984 regulations. In light of these circumstances, we consider the sufficiency of the Secretary\u2019s order upon reconsideration only, in light of the Secretary\u2019s 1984 regulations.\nThe Secretary argues first that Shanahan is ineligible for full reinstatement of his driving privileges as a matter of law because of the Secretary\u2019s \u201cfive-year rule,\u201d citing to 92 Ill. Admin. Code, ch. II, sec. 1001.440(g) (1983). Section 1001.440 became effective on July 17, 1983. (See 7 Ill. Reg. 7501, 7507 (1983).) Subsection (g), as effective when Shanahan\u2019s request for reinstatement or RDP was originally denied by the Secretary in December 1983, provided that with respect to an applicant who has had at least two DUIs, \u201cthere is a presumption that the applicant has an alcohol or drug problem, and reinstatement will not occur until at least five (5) years have expired since the date of the latest conviction.\u201d (92 Ill. Admin. Code, ch. 11, sec. 1001.440(g) (1983), 7 Ill. Reg. 7501, 7529 (1983).) Subsection (f), which amended subsection (g) in April 1984, is the regulation of the Secretary which established the per se five-year prohibition against reinstatement. (See 92 Ill. Admin. Code, ch. II, sec. 1001.440(f) (1984), 8 Ill. Reg. 4220, 4246 (1984).) Since subsection (g) applies only to reinstatement, the Secretary\u2019s five-year bar provides no basis for its denial of Shanahan\u2019s request for an RDP.\nWe concur in the conclusion and analysis of the Fourth District in Franz v. Edgar (1985), 133 Ill. App. 3d 513, 478 N.E.2d 1165, appeal denied (1985), 108 Ill. 2d 562, and in Sutton v. Edgar (1986), 147 Ill. App. 3d 723, that the Secretary\u2019s five-year bar \u201cmay not be applied to deny plaintiff restoration of driving privileges as it is in excess of the statutory grant of [the Secretary\u2019s] authority.\u201d (Franz v. Edgar (1985), 133 Ill. App. 3d 513, 523, 478 N.E.2d 1165, 1171; see also Sutton v. Edgar (1986), 147 Ill. App. 3d 723, 731.) Section 6\u2014 208(b)(2) of the Code explicitly provides that \u201c[a]ny person whose license or permit or privilege to drive a motor vehicle on the highways has been revoked *** may make application for a license *** [a]fter the expiration of 1 year from the date of revocation ***.\u201d (Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 6 \u2014 208(b)(2).) As the Franz court observed,\n\u201cAs promulgated and applied, the rule stated by the Secretary functions as an irrebuttable presumption or per se rule that a license shall be denied upon application regardless of what evidence may be presented in support of the application. As so applied, the rule nullifies and makes meaningless section 6\u2014 208(b)(2) of the Code, which expressly authorizes application within one year. Administrative discretion granted by statute to make rules is to be exercised within the terms of the statute, and the exercise of discretion in administering the rule is to be determined upon evidence of record and cannot be exercised arbitrarily or capriciously in disregard of matters of evidence. In sum, the statute authorizes the application for a license, but the administration of the administrative rule effectively results in a refusal to consider the application upon its merits. The statute which is being administered may not be added to or altered by the exercise of a power to make administrative rules or regulations. (Ruby Chevrolet, Inc. v. Department of Revenue (1955), 6 Ill. 2d 147, 151, 126 N.E.2d 617, 619.)\u201d Franz v. Edgar (1985), 133 Ill. App. 3d 513, 519-20, 478 N.E.2d 1165,1169.\nThe Secretary argues that Franz was wrongly decided for two reasons. First the Secretary contends that the court in Franz \"erred in concluding that this rule [i.e., the five-year bar] does not differentiate between applications for reinstatement of a license or issuance of a restricted driving permit.\u201d Our analysis of the court\u2019s decision in Franz does not indicate that the court considered the five-year ban applicable to both reinstatement and RDP requests.\nThe Secretary also argues that Franz v. Edgar was wrongly decided because the court \u201cfocused solely on section 6 \u2014 208(b)(2) of the Code authorizing applications for reinstatement within one year after revocation of a license and did not consider a grant of authority to the Secretary contained in section 6 \u2014 103(4) of the Code as a basis for promulgating the five-year rule.\u201d\nSection 6 \u2014 103(4) states, \u201cThe Secretary of State shall not issue or renew any driver\u2019s license nor issue any permit *** [t]o any person, as a driver, who is a habitual drunkard, or is a habitual user of narcotic drugs, or is a user of any other drug to a degree which renders such person incapable of safely driving a motor vehicle ***.\u201d (Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 6 \u2014 103(4).) The Secretary claims that although the Vehicle Code does not define the term \u201chabitual drunkard,\u201d the Secretary has the power to interpret and implement this provision under the Code\u2019s delegation to the Secretary of the authority to adopt rules and regulations carrying out the provisions of the Code. (Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 2 \u2014 104(b).) The Secretary then claims in its appellate brief that under this rule-making authority, \u201cthe Secretary has determined that any driver with multiple convictions for DUI is a \u2018habitual drunkard\u2019 who will not be immediately eligible for full-reinstatement [sic] of his license under the five-year rule.\u201d (Emphasis in original.)\nWe disagree with the Secretary\u2019s interpretation of subsection (g) (or subsection (f)) as nothing more than a determination that a driver with multiple DUI convictions is an \u201chabitual drunkard not immediately eligible\u201d for full reinstatement. Instead, the per se five-year bar is a conclusion not only that any driver with at least two DUI convictions is an \u201chabitual drunkard,\u201d but also that the driver must remain without reinstatement for five years \u201csince the date of the latest conviction\u201d before the driver will even be permitted to demonstrate recovery from the \u201chabitual drunkenness\u201d sufficient to obtain reinstatement of driving privileges. (Cf. 92 Ill. Admin. Code, ch. 11, sec. 1001.440(f) (1984), 8 Ill. Reg. 4220, 4246 (1984) (requiring five years \u201csince the date of the latest revocation\u201d).) In other words, both subsection (g), as interpreted by the Secretary before this court as a per se rule, and subsection (f), as applied by the Secretary to Shanahan upon remand of the matter by the trial court, create an irrebuttable presumption that any driver with at least two DUIs is an \u201chabitual drunkard\u201d and that reinstatement of that person\u2019s driving privileges any earlier than five years following revocation of the individual\u2019s license will create a threat to public safety on the highway, regardless of the evidence of recovery from active alcoholism which the applicant may present.\nWe recognize that the Illinois legislature empowers the Secretary to deny full driving privileges to anyone who is an \u201chabitual drunkard.\u201d The legislature has not, however, adopted a provision establishing a five-year ban on the reinstatement of driving privileges to anyone with at least two DUIs. As the court noted in Franz, \u201csections 6 \u2014 205(b)(2) and (3), relating to the mandatory revocation of a driver\u2019s license upon the second conviction of certain sex offenses described by statute, has itself provided a period of five years from the completion of the sentence imposed before an operator\u2019s license may be issued. (See Ill. Rev. Stat. 1983, ch. 95\u00bd, pars. 6 \u2014 205(b)(2), (3).) It is apparent that the legislature has discovered the statutory device of the bar of an extended five-year period, and was aware of the same but *** [has] not seen fit to impose that sanction upon the second conviction of DUI.\u201d Franz v. Edgar (1985), 133 Ill. App. 3d 513, 520, 478 N.E.2d 1165, 1170.\nThe Secretary\u2019s role in the reinstatement of driving privileges is to ensure the public safety on the highways. In the performance of this duty, the Secretary is empowered to deprive a person of driving privileges when that person is an \u201chabitual drunkard.\u201d (Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 6 \u2014 103(4).) The Secretary\u2019s obligation to protect public safety does not encompass the discretionary power, however, to impose an additional period of deprivation of a person\u2019s driving privileges beyond the statutory period of a year on no ground other than the circumstance that the applicant was, in the past, an active alcoholic.\nAs a result, where the Secretary determines that an applicant\u2019s request for reinstatement should be denied because the applicant\u2019s condition remains actively alcoholic, the Secretary must clearly so determine in its denial of the applicant\u2019s reinstatement request. The Secretary cannot instead rely upon its statutory authority to adopt administrative rules, and thereby irrebuttably presume that any applicant with two DUI convictions is an active alcoholic who will remain a threat to public safety on the highways for five years following either conviction or revocation of the applicant\u2019s license, without regard to the evidence of recovery presented by the applicant.\nAlthough not noted by the Secretary, we observe that the Secretary\u2019s denial of Shanahan\u2019s request for reinstatement or an RDP was also founded upon Shanahan\u2019s failure to present evidence of \u201caftercare\u201d treatments and recommendations. As a result, we consider whether denial of Shanahan\u2019s application for reinstatement or an RDP was proper on this basis.\nSection 1001.440(a) states that all applicants for reinstatement or RDP \u201cmust submit an alcohol or drug evaluation and evidence of successful completion of an alcohol- or drug-related driver remedial course.\u201d (92 Ill. Admin. Code, ch. II, sec. 1001.440(a) (1984); 8 Ill. Reg. 4220, 4242 (1984).) Subsection (d) of the Secretary\u2019s regulations further provides that \u201cwhen [an] applicant states that he/she has had alcoholism treatment,\u201d the applicant \u201cmust\u201d submit \u201cevidence,\u201d and that the applicant \u201cshould document\u201d the name and address of the treatment center, the length of treatment, the applicant\u2019s participation and readiness for treatment, aftercare recommendations and the applicant\u2019s adherence thereto, and any recommendations. (92 Ill. Admin. Code, ch. II, sec. 1001.440(d) (1984); 8 Ill. Reg. 4220, 4242 (1984).) The Secretary's denial order was based upon Shanahan\u2019s failure to comply with subsection (d), which applies where an applicant has also had \u201calcoholism treatment.\u201d\nShanahan testified at the hearing that he had submitted to an alcohol evaluation and a remedial driving program. The evaluator\u2019s report, admitted into evidence at the hearing, demonstrated that his alcohol abuse evaluation, in September 1983, showed no current alcohol abuse or problem, and also indicated that Shanahan had successfully completed an alcohol-related driver remedial course. Shanahan never testified that he had undergone \u201calcoholism treatment,\u201d and the evaluator\u2019s report did not state that such treatment for Shanahan was ever mandated, appropriate, or even advisable. As a result, the Secretary\u2019s reliance upon subsection (d) was without basis, and the order denying Shanahan an RDP or reinstatement on this basis was reversible as arbitrary and capricious.\nAlthough not addressed by the Secretary, we also consider whether the Secretary properly denied Shanahan\u2019s application on the ground that he failed to present evidence of 12 consecutive months of \u201cdocumented abstinence\u201d because he had a \u201cclinical impression of alcoholism.\u201d (See 92 Ill. Admin. Code, ch. II, sec. 1001.440(e) (1984); 8 Ill. Reg. 4220, 4222, 4246 (1984).) We note that subsection (e) is almost identical to subsection (f) under the prior section 1001.440 in effect when the Secretary entered its December 1983 order denying Shanahan an RDP (see 92 Ill. Admin. Code, ch. II, sec. 1001.440(f) (1983); 7 Ill. Reg. 7501, 7529 (1983)), except that the 1983 subsection required 12 consecutive months of \u201cdocumented sobriety\u201d or, in the case of waiver, at least 6 months of \u201ccontinued sobriety,\u201d rather than a specified period of \u201cabstinence.\u201d\nWe determine that the Secretary\u2019s denial was not properly founded on Shanahan\u2019s lack of proof of one year of \u201cabstinence\u201d because of a \u201cclinical impression of alcohol abuse/alcoholism.\u201d First, since the Secretary\u2019s regulations do not define the term \u201cclinical impression of alcohol abuse/alcoholism,\u201d we are unable to determine whether the evaluator\u2019s report of Shanahan here indicated such a \u201cclinical impression\u201d in 1983. (See Franz v. Edgar (1985), 133 Ill. App. 3d 513, 521, 478 N.E.2d 1165.) In addition, it appears that the hearing officer erroneously treated the opinions of undisclosed authors in a book on alcoholism as substantive evidence that Shanahan could only \u201ccontrol\u201d his \u201cdrinking problem\u201d by total abstinence. (See generally E. Cleary & M. Graham, Illinois Evidence, sec. 202, at 42-49 (4th ed. 1984).) Furthermore, the conclusion that Shanahan could only control his \u201cdrinking problem\u201d by total abstinence was directly contradicted in William Downs\u2019 affidavit and his evaluation report, and the Secretary presented no evidence at the hearing to demonstrate that Shanahan\u2019s \u201cdrinking problem\u201d was other than Downs found it to be. As a result the Secretary\u2019s denial of Shanahan\u2019s request for reinstatement or an RDP was unsupported by the evidence presented at the hearing.\nWe also disagree with the Secretary\u2019s argument on appeal that Shanahan\u2019s continued consumption of alcohol (the extent of which the Secretary questions in view of the inconsistency between Shanahan\u2019s testimony and that of his friend, Ryan), and Shanahan\u2019s past driving record, establish that issuance of another RDP to Shanahan would threaten the public safety and welfare.\nThe determination of whether reinstatement or an RDP in the instant cause will threaten public safety must be made within the framework of the Vehicle Code and the Secretary\u2019s regulations pursuant thereto. The determination of public safety cannot be made separately from and without regard to the Code and the administrative regulations, as the Secretary\u2019s argument erroneously assumes. As stated above, none of the Secretary\u2019s regulations supports its denial of Shanahan\u2019s application for reinstatement or an RDP based upon the evidence presented. As a result, we cannot determine upon administrative review that the Secretary\u2019s decision was proper. Cf. Cusack v. Edgar (1985), 137 Ill. App. 3d 505, 484 N.E.2d 1145; Sheldon v. Edgar (1985), 131 Ill. App. 3d 489, 475 N.E.2d 956.\nFully three years have passed since the Secretary\u2019s hearing on Shanahan\u2019s application for reinstatement or an RDP, and more than five years have elapsed since the Secretary\u2019s revocation of Shanahan\u2019s license. (See 92 Ill. Admin. Code, ch. II, sec. 1001.450 (1983); 7 Ill. Reg. 7501, 7529 (1983) (permitting another hearing six months after denial of reinstatement or RDP applications); 92 Ill. Admin. Code, ch. II, sec. 1001.450 (1984); 8 Ill. Reg. 4220, 4246 (1984) (permitting another hearing four months after denial); Sutton v. Edgar (1986), 147 Ill. App. 3d 723, (applicant has burden of going forward and proving grounds for reinstatement or RDP by clear and convincing evidence).) Under these circumstances, we vacate the orders entered by the Secretary and the trial court and remand the cause to the Secretary for further proceedings to include any additional evidence, since the date of the original hearing, that may be presented with regard to the issues raised.\nVacated and remanded.\nLINN, P.J., and JOHNSON, J., concur.", "type": "majority", "author": "JUSTICE McMORROW" } ], "attorneys": [ "Neil F. Hartigan, Attorney General, of Springfield (Roma Jones Stewart, Solicitor General, and Thomas P. Marnell, Assistant Attorney General, of Chicago, of counsel), for appellant.", "Thomas H. Allen, of Chicago, for appellee." ], "corrections": "", "head_matter": "DANIEL SHANAHAN, Plaintiff-Appellee, v. JIM EDGAR, Secretary of State, Defendant-Appellant.\nFirst District (4th Division)\nNo. 85\u20141377\nOpinion filed November 13, 1986.\nNeil F. Hartigan, Attorney General, of Springfield (Roma Jones Stewart, Solicitor General, and Thomas P. Marnell, Assistant Attorney General, of Chicago, of counsel), for appellant.\nThomas H. Allen, of Chicago, for appellee." }, "file_name": "0868-01", "first_page_order": 890, "last_page_order": 904 }