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Foege v. Edgar

OPINION FILED OCTOBER 27, 1982.

DANIEL T. FOEGE, PLAINTIFF-APPELLEE,

v.

JIM EDGAR, SECRETARY OF STATE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.

JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:

Plaintiff, Daniel T. Foege, filed a complaint for administrative review of the decision of defendant, Jim Edgar, Secretary of State, denying his petition for a restricted driving permit. The circuit court reversed the decision in part and ordered the Secretary of State to issue plaintiff a restricted driving permit applicable only while driving his employer's truck driving regular work hours on his regular route. We reverse the order of the circuit court and affirm the decision of the Secretary of State.

The first issue in this case involves the authority of the Secretary of State to deny a petition for a restricted driving permit where it is shown that undue hardship will result. To our knowledge, this issue has never been addressed by an Illinois reviewing court. Plaintiff contends that where, as here, undue hardship is established, the Secretary of State has no discretion and must allow the petitioner's request for a restricted driving permit. The applicable statute provides:

"Whenever a person is convicted of any of the offenses enumerated in this Section, the court may recommend and the Secretary of State in his discretion, without regard to whether such recommendation is made by the court, may, if application is made therefor, issue to such person a restricted driving permit granting the privilege of driving a motor vehicle between his residence and his place of employment or within other proper limits, except that this discretion shall be limited to cases where undue hardship would result from a failure to issue such restricted driving permit. * * * A restricted driving permit issued hereunder shall be subject to cancellation, revocation and suspension by the Secretary of State in like manner and for like cause as a drivers license issued hereunder may be cancelled, revoked or suspended; except that a conviction upon one or more offenses against laws or ordinances regulating the movement of traffic shall be deemed sufficient cause for the revocation, suspension or cancellation of a restricted driving permit. The Secretary of State may, as a condition to the issuance of a restricted driving permit, require the applicant to participate in a designated driver remedial or rehabilitative program." Ill. Rev. Stat. 1981, ch. 95 1/2, par. 6-205(c).

Although the statute gives the Secretary of State discretion to issue a restricted driving permit only in cases where undue hardship would result from a failure to issue a restricted driving permit, we believe that this limitation does not mandate that the Secretary of State issue a restricted driving permit merely because undue hardship would result. Plainly, the language of the statute is permissive only and not mandatory.

• 1 Since the legislature has expressly given the Secretary of State discretion under the statute, the Secretary of State must exercise the discretion based upon the public interest. This means that the Secretary of State should not issue a restricted driving permit unless he has determined that granting the applicant a restricted driving permit will not endanger the public safety or welfare. Conversely, if the Secretary of State determines that granting the applicant a restricted driving permit will not endanger the public safety or welfare, then the Secretary of State should carry out the purpose of the statute by granting the applicant a restricted driving permit. *fn1

Here, the Secretary of State determined that plaintiff's petition for a restricted driving permit should be denied because the public safety and welfare would be endangered if plaintiff were given a restricted driving permit to drive on the public roadways. Under our analysis of the applicable statute, the Secretary of State had the authority to deny the petition on that basis.

We next address the ruling of the trial court that the Secretary of State abused his discretion in denying plaintiff a restricted driving permit to drive his employer's truck during regular work hours on his regular route. In this regard, we agree that plaintiff, age 35, and his family would suffer severe and undue hardship if he is not granted a restricted driving permit, but the critical issue here is whether the public safety and welfare will be endangered if plaintiff is permitted to drive on the public roadways. Plainly, public interest transcends and supersedes any undue hardship to an applicant seeking a restricted driving permit.

Plaintiff's driving record is as follows:

ARREST INCIDENT 1

11/23/73 Arrested and charged with a moving violation.

12/20/73 Convicted of charge.

ARREST INCIDENT 2

3/22/74 Arrested and charged with driving under the influence of intoxicating liquor.

6/9/74 License suspended for refusing to take and complete a test or chemical analysis of breath to determine alcoholic content of his blood.

6/17/74 Convicted of charge. 6/25/74 Issued restricted driving permit. 8/23/74 License revoked. 2/14/75 ...


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