Hankins v. Director of Revenue, SD22737

• Citation: 998 S.W.2d 879
• Decision Date: 10 September 1999
• Docket Number: SD22737
• Parties: Rebecca A. Hankins, Respondent, v. Director of Revenue, Appellant. 22737 Missouri Court of Appeals Southern District 0
• Court: Missouri Court of Appeals

Rebecca A. Hankins, Respondent v Director of Revenue, Appellant

22737

Missouri Court of Appeals Southern District

09/10/99

Appeal From: Circuit Court of Greene County, Hon. J. Dan Conklin

Counsel for Appellant: Evan J. Buchheim

Counsel for Respondent: No appearance.

Opinion Summary: None

Prewitt and Barney, JJ., concur.

Kerry L. Montgomery, Presiding Judge

The Director of Revenue (Director) appeals a judgment which set aside the Director's revocation of Rebecca A. Hankins's permit to operate a school bus. We reverse.

Effective December 22, 1997, Director suspended Hankins's Missouri driver's license, pursuant to section 302.505,¹ for operating a motor vehicle with a blood alcohol content of at least .10%.² Director then revoked Hankins's school bus permit under the provisions of section 302.272 and 12 CSR 10-24.160. Hankins filed a petition for review under section 302.311, RSMo 1994, seeking to set aside the Director's revocation of her school bus permit. Subsequently, the trial court entered a judgment in favor of Hankins. Director appeals.

Director's sole point relied on alleges:

The trial court erred in setting aside the Director's revocation or termination of Hankins's school bus permit because this revocation was authorized under section 302.272.5, RSMo Supp. 1997 and 12 CSR 10-24.160 in that Hankins's driving privilege had been suspended under the provisions of section 302.505, RSMo Supp. 1997, for driving with a blood alcohol content of at least .10%.

Our review of this case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This Court must affirm the trial court's judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Director asserts that the trial court misapplied the law in this case. We agree.

The issue here is whether the Director had authority to revoke Hankins's school bus permit because she had been suspended under section 302.505 for driving with a blood alcohol content of at least .10%. Director claims his authority derives from section 302.272, a comprehensive statute dealing with the qualifications of persons allowed to operate a school bus.

In pertinent part, section 302.272 provides:

1. No person shall operate any school bus owned by or under contract with a public school or the state board of education unless such driver has qualified for a school bus permit under this section and complied with the pertinent rules and regulations of the department of revenue. A school bus permit shall be issued to any applicant who meets the following qualifications:

(1) The applicant has a valid state license issued under this chapter . . .;

(2) The applicant is at least twenty-one years of age;

(3) The applicant has passed a medical examination, including vision and hearing tests, as prescribed by the director of revenue . . .; and

(4) The applicant has successfully passed an examination for the operation of a school bus as prescribed by the director of revenue. . . .

. . . .

5. The director of revenue, to the best of the director's knowledge, shall not issue or renew a school bus permit to any applicant:

(1) Whose driving record shows that such applicant's privilege to operate a motor vehicle has been suspended, revoked or disqualified or whose driving record shows a history of moving vehicle violations[.]

The mandate of section 302.272.1 is clear -- no person shall drive a school bus without (1) qualifying for a permit under section 302.272, and (2) complying with the "pertinent rules and regulations of the department of revenue."

Director has used the grant of rule-making authority in section 302.272.1 to promulgate 12 CSR 10-24.160, a rule entitled "Missouri School Bus Operator's Permit Driving History Guidelines." This rule states, in pertinent part:

(2) An applicant shall be denied a school bus operator's permit if his/her driving privilege has been suspended or revoked within five (5) years preceding the date of application--

(A) For violating the provisions of sections 302.500-302.540, RSMo;

. . . .

(7) The criteria outlined in sections (1) through (6) of this rule for denying issuance of a school bus operator's permit to an applicant also apply to current holders of a school bus operator's permit. When these actions or violations occur, the school bus permit holder is notified that his or her school bus operator's permit is no longer valid due to the holder's driving history.

The trial court's decision was apparently based on the "shall not issue or renew" language of section 302.272.5. The trial court might have been correct if the Director had not promulgated 12 CSR 10-24.160(7). Obviously, section 302.272.5 is silent as to what action the Director may take against current school bus permit holders who commit the acts forbidden by section 302.272.5(1). However, section 302.272.1 provides that no person shall operate a school bus unless that person complies with the Director's rules and regulations. Hankins has not complied with the rule in...