{
  "id": 9133676,
  "name": "TERRY DEAN CRAIG, Petitioner v. JANICE FAULKNER, COMMISSIONER OF THE NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent",
  "name_abbreviation": "Craig v. Faulkner",
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    "judges": [
      "Judges MARTIN and CAMPBELL concur."
    ],
    "parties": [
      "TERRY DEAN CRAIG, Petitioner v. JANICE FAULKNER, COMMISSIONER OF THE NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent"
    ],
    "opinions": [
      {
        "text": "HUDSON, Judge.\nTerry Dean Craig (\u201cpetitioner\u201d) appeals an order granting the motion to dismiss filed on behalf of the Division of Motor Vehicles (the \u201cDMV\u201d). For the reasons given below, we reverse and remand.\nPetitioner asserts, and the DMV does not dispute, that he has held a commercial driver\u2019s license \u201csince the inception of Commercial Driver\u2019s Licenses.\u201d By letter dated 26 May 2000, an official with the Medical Review Branch of the Driver License Section of the DMV informed petitioner as follows:\nWe have received a favorable recommendation from our Medical Adviser regarding your health as it pertains to your driving status.\nYou must visit any Driver License Office to make application for a driver\u2019s license or learner\u2019s permit. The following restriction(s) will be necessary: CLASSIFIED C ONLY. If you currently have a valid driver\u2019s license, failure to comply within 15 days from the date of this letter will result in the cancellation of your driving privilege, G.S. 20-29.1.\nYou must be reexamined and/or submit a current medical report for evaluation on or after 05-26-2001. We will advise you concerning this requirement at a later date.\nIt appears that this letter was issued pursuant to N.C. Gen. Stat. \u00a7 20-7(e) (1999) and N.C. Gen. Stat. \u00a7 20-9(e) (1999). Section 20-7(e) provides that \u201c[t]he [DMV] may impose any restriction it finds advisable on a drivers license.\u201d Section 20-9(e) provides that\n[t]he [DMV] shall not issue a driver\u2019s license to any person when in the opinion of the [DMV] such person is afflicted with or suffering from such physical or mental disability or disease as will serve to prevent such person from exercising reasonable and ordinary control over a motor vehicle while operating the same upon the highways, nor shall a license be issued to any person who is unable to understand highway warnings or direction signs.\nCounsel for the DMV explained to the superior court at the hearing on its motion to dismiss that petitioner had been committed to \u201cBroughton or some \u2014 several other hospitals in the mid-1990s,\u201d and \u201c[a]s a result of that commitment, he was put in the Medical Review Program and has since \u2014 since had assessments, the last assessment having occurred in the year 2000.\u201d\nOn 13 June 2000, petitioner filed the instant action in the Caldwell County Superior Court alleging, inter alia, that the DMV revoked his commercial driver\u2019s license without due process of law. On 10 July 2000, the DMV filed a motion to dismiss on the ground that the court does not have subject matter jurisdiction over the matter because petitioner failed to exhaust his administrative remedies. The superior court granted the motion to dismiss. Petitioner appeals.\n\u201cAs a general rule, where the legislature has provided by statute an effective administrative remedy, that remedy is exclusive and its relief must be exhausted before recourse may be had to the courts.\u201d Presnell v. Pell, 298 N.C. 715, 721, 260 S.E.2d 611, 615 (1979). \u201cAn action is properly dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction where the plaintiff has failed to exhaust administrative remedies.\u201d Shell Island Homeowners Ass\u2019n v. Tomlinson, 134 N.C. App. 217, 220, 517 S.E.2d 406, 410 (1999). The exhaustion requirement stems from the Administrative Procedure Act (the \u201cAPA\u201d), which provides:\nAny person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision under this Article, unless adequate procedure for judicial review is provided by another statute ....\nN.C. Gen. Stat. \u00a7 150B-43 (1999).\nThe DMV argued before the superior court that a hearing before a medical review board was petitioner\u2019s exclusive remedy. The DMV relied on N.C. Gen. Stat. \u00a7 20-9(g)(4) (1999), which provides that \u201c[w]henever a license is denied by the Commissioner, such denial may be reviewed by a reviewing board upon written request of the applicant filed with the [DMV] within 10 days after receipt of such denial.\u201d That statute further provides that \u201c[a]ctions of the reviewing board are subject to judicial review as provided under Chapter 150B of the General Statutes.\u201d N.C.G.S. \u00a7 20-9(g)(4)(f). Thus, the DMV argued, petitioner could not file a petition in the superior court without first pursuing his right to a hearing before the medical review board. Because petitioner failed to request such a hearing, the DMV contended that he failed to exhaust his administrative remedies, and, as a result, the court did not have subject matter jurisdiction over his petition.\nOn appeal, the DMV argues in the alternative that petitioner was not entitled to a hearing because his license was not actually revoked, but merely restricted. The DMV asserts that N.C.G.S. \u00a7 20-9(g)(4) provides for a hearing only in case a license is revoked. The DMV observes, however, that \u201cas a matter of policy,\u201d the DMV allows one whose license is restricted to request a hearing. Thus, the DMV now argues that petitioner was afforded more process than is required by law.\nWe agree with the DMV that N.C.G.S. \u00a7 20-9(g)(4), by its express language, applies only to the case where a license has been denied. Thus, the legislature has not \u201cprovided by statute an effective administrative remedy,\u201d Presnell, 298 N.C. at 721, 260 S.E.2d at 615, to one who, like petitioner, retains his license with restrictions.\nIn fact, N.C. Gen Stat. \u00a7 150B-23(f) (1999) provides that in cases covered by the APA, the agency must provide detailed notice of the right to a hearing. The DMV did not provide petitioner with the requisite notice, which must inform a party in writing of his right to file a contested case petition, of the procedure involved, and of the time limit for filing his petition. See id. The fact that the DMV here saw no need to provide such notice, which has been required by statute since 1988, see Act of July 12, 1988, ch. 1111, secs. 5, 26, 1988 Sess. Laws 897, 899, 904, indicates that it did not believe the right to an administrative hearing applied in these circumstances. The DMV essentially concedes this on appeal, when it argues that it allows such a hearing \u201cas a matter of policy.\u201d However, in order to be exclusive and subject to the exhaustion requirement, the administrative remedy must be \u201ceffective.\u201d An administrative remedy about which one is not notified as required by statute can hardly be said to be effective.\nWe conclude that the fact that the DMV \u201cas a matter of policy allows individuals with restrictions on their licenses to request a hearing before the Medical Review Board\u201d does not constitute an effective administrative remedy sufficient to preclude jurisdiction in superior court. Therefore, the superior court has subject matter jurisdiction over this action. Accordingly, we reverse the judgment granting the DMV\u2019s motion to dismiss and remand for further proceedings.\nReversed and remanded.\nJudges MARTIN and CAMPBELL concur.",
        "type": "majority",
        "author": "HUDSON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Associate Attorney General Kimberly P. Hunt, for respondent-appellee.",
      "Wilson, Palmer, Lackey & Rohr, P.A., by Timothy J. Rohr, for petitioner-appellant."
    ],
    "corrections": "",
    "head_matter": "TERRY DEAN CRAIG, Petitioner v. JANICE FAULKNER, COMMISSIONER OF THE NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent\nNo. COA01-539\n(Filed 7 May 2002)\nMotor Vehicles\u2014 administrative remedy \u2014 jurisdiction\u2014restriction on commercial driver\u2019s license\nThe trial court erred by granting defendant Division of Motor Vehicles\u2019s (DMV) motion to dismiss based on lack of subject matter jurisdiction in an action contesting the placement of restrictions on petitioner\u2019s commercial driver\u2019s license, because the fact that the DMV as a matter of policy allows individuals with restrictions on their licenses to request a hearing before the Medical Review Board does not constitute an effective administrative remedy sufficient to preclude jurisdiction in superior court.\nAppeal by petitioner from judgment entered 26 February 2001 by Judge Timothy S. Kincaid in Caldwell County Superior Court. Heard in the Court of Appeals 14 February 2002.\nAttorney General Roy Cooper, by Associate Attorney General Kimberly P. Hunt, for respondent-appellee.\nWilson, Palmer, Lackey & Rohr, P.A., by Timothy J. Rohr, for petitioner-appellant."
  },
  "file_name": "0968-01",
  "first_page_order": 1002,
  "last_page_order": 1005
}