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Kantor v. Parsekian

Decided: March 9, 1962.

SOL KANTOR, PLAINTIFF-APPELLANT,
v.
NED J. PARSEKIAN, ACTING DIRECTOR OF THE DIVISION OF MOTOR VEHICLES OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



Goldmann, Freund and Foley.

Per Curiam

This is an appeal by plaintiff from an order of the Acting Director of the Division of Motor Vehicles suspending his driver's license. The basis of the suspension was a determination that plaintiff failed to meet the visual acuity requirements set forth in regulations promulgated by the Division.

On January 15, 1960 plaintiff, while driving his automobile, was involved in an accident with another car, his first accident in 43 years of driving.

On April 28, 1960 the Division requested plaintiff to appear at its accident prevention clinic on May 21, 1960 at 8:30 A.M., informing him that there was in effect a policy of re-examining, among others, all drivers over the age of 60 years who had been involved in one reportable accident, regardless of responsibility. A physical examination form to be completed by a licensed physician of the State was enclosed with the notice. After a postponement plaintiff appeared at the testing center on June 7, 1960. A notice bearing the same date requested him to appear at the Perth Amboy driver qualification center to submit to further testing of his vision on June 23, 1960. He did not appear in response to this notice. Thereafter numerous letters were exchanged by the parties and the test was postponed on several occasions, plaintiff taking the position throughout that defendant was without legal right to require him to undergo visual acuity testing. Finally, on December 1, 1960 plaintiff submitted to vision tests which revealed that without glasses the vision of his right eye was 20/200 while the left eye was 20/LP (light perception only) without

glasses, and that his overall vision without glasses was 20/200. With glasses his vision in each eye was 20/100 and his overall vision 20/100.

The regulations of the Division governing the issuance of licenses provide for a minimum vision of 20/50 in one eye, with or without glasses.

On January 5, 1961 defendant by formal notice suspended the driving privilege of plaintiff, stating as a reason therefor, his "failure to pass visual acuity requirements of the New Jersey Driver's Examination." Subsequently, there were submitted in plaintiff's behalf the reports of two optometrists. Dr. Lester Mann stated that his examination disclosed that plaintiff had 20/200 vision with correction. Dr. Herman D. Lazaar under date June 22, 1961 reported a finding of 20/80 vision with correction. Obviously, the report of Dr. Mann confirmed the State's examination of December 1, 1960, and that of Dr. Lazaar revealed a defect in vision which exceeded the minimum requirements of the regulations.

Notwithstanding the results of the examination of December 1, 1960 and the existing order of suspension of January 5, 1961, an appointment was arranged for plaintiff to meet with representatives of the Division on February 23, 1961, in Trenton. On that day plaintiff was given two separate road tests by two representatives of the Division. As a result he was found to be unqualified to drive for various reasons, including his failure to give signals, his inability to read road signs, starting from the curb without checking traffic to the rear, and driving to the left of the center of the road. At this meeting the Division offered to have plaintiff's eyes examined by a physician designated by the State, and in the presence of plaintiff's physician. The offer was declined. Finally, on April 13, 1961, plaintiff having refused to surrender his driver's license, the Division was obliged to summon him to the Perth Amboy Municipal Court for violation of R.S. 39:5-35. He was found guilty and thereupon relinquished his license. This appeal followed.

Plaintiff contests the validity of the suspension of his

driver's license on the grounds that (1) defendant holds his office of Acting Director without legal warrant; (2) there is no legislative authority in the Director of Motor Vehicles to promulgate or enforce re-examinations of duly licensed motor vehicle operators; (3) such regulations if permissible would be "retroactive as to plaintiff" and unconstitutional; (4) legislation permitting re-examination of drivers over 60 years of age would be discriminatory and violative of due process requirements, and (5) no charges were brought against him, and he was accorded no hearing.

The first four points may be disposed of summarily. N.J.S.A. 39:2-2 provides in part that vacancies in the office of the Director of the Division of Motor Vehicles shall be filled by the Governor, by and with the advice and consent of the Senate. It is a matter of record that the nomination of the defendant as Director was made at a time when the office was vacant by reason of the resignation of the incumbent thereof, and submitted to the Senate for confirmation. Moreover, it is clear that under R.S. 39:2-5 defendant, who at the time of the director's resignation was a duly appointed Deputy Director, became Acting Director on the effective date of such resignation. Defendant was properly acting as "Acting Director" and it is of no material consequence ...


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