An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA04-1416

NORTH CAROLINA COURT OF APPEALS

Filed: 21 June 2005

GEORGE KEITH SIZEMORE,
    Petitioner,

v .                         Yadkin County
                            No. 03 CVS 674
GEORGE TATUM, Commissioner
N.C. Division of Motor Vehicles,
    Respondent.

    Appeal by respondent from judgment entered 30 July 2004 by Judge William Z. Wood, Jr. in Yadkin County Superior Court. Heard in the Court of Appeals 12 May 2005.

    Franklin Smith for petitioner-appellee.

    Attorney General Roy Cooper, by Assistant Attorney General Allison A. Pluchos, for respondent North Carolina Division of Motor Vehicles.

    STEELMAN, Judge.

    Respondent, the North Carolina Division of Motor Vehicles (DMV), appeals the trial court's order reinstating petitioner George Keith Sizemore's (Sizemore) commercial driver's license.
    Sizemore was hit by a snowball when he was sixteen years old and as a result, suffers from impaired vision and a blind spot in his right eye. On 2 August 2001, Sizemore furnished the DMV with a medical report and visual acuity test performed by Dr. Alex Appanaitis. Dr. Appanaitis stated Sizemore's corrected vision was 20/40 in his right eye and 20/20 in his left. Sizemore completed truck driving school on 23 September 2001, and the DMV issued him a commercial driver's license (CDL).    On 18 October 2001, the medical advisor of the Medical Review Branch of the DMV requested Sizemore submit to an additional visual examination with a retinal specialist. Dr. Mark H. Nelson performed the examination in December 2001 and found Sizemore's vision to be 20/200 in his right eye and 20/20 in the left eye. The DMV renewed Sizemore's CDL in 2002. In May 2003, Dr. Nelson performed another eye exam on Sizemore, finding his vision to be the same as the previous examination. This examination revealed that Sizemore's vision with both eyes together was 20/20. Dr. Nelson, however, recommended that the DMV conduct a follow-up examination.
    On 26 June 2003, Dr. Peter Morris performed the follow-up examination and confirmed Sizemore's right eye vision to be 20/200. Based upon Dr. Morris' recommendation, the DMV notified Sizemore his license would be restricted to a Class “C” driver's license. Upon receiving the notification, Sizemore requested a medical review hearing. After conducting an examination of Sizemore, the Medical Review Board (MRB) determined his vision in his right eye was indeed 20/200, which is not within the federal legal limits required under 49 CFR § 391.41 to operate a commercial vehicle in interstate commerce.   (See footnote 1)  As a result, the DMV restricted Sizemore's license to “No CMV or School Bus.” Sizemore requested an exemption review. After receiving additional information, the MRB grantedSizemore an intrastate exemption, allowing him to operate commercial vehicles within the State of North Carolina, since the vision standard contained in 49 C.F.R. § 391.41 does not apply to state-licensed drivers who are engaged solely in intrastate commerce. Sizemore filed a petition in the Yadkin County Superior Court seeking review of the MRB's decision.
    The matter came on for hearing at the 19 July 2004 session of Superior Court before Judge Wood. The trial court ruled in favor of Sizemore, and ordered the DMV to reinstate his CDL without any restriction. The DMV appeals.
    In the DMV's first argument it contends the trial court failed to apply the correct standard of review of an administrative agency's decision. We agree.
    In reviewing a superior court order from an appeal of a final agency decision, this Court has a two-fold task, it must determine: “'(1) whether the trial court exercised the appropriate standard of review and; (2) whether the trial court properly applied the standard of review.” Deep River Citizens' Coalition v. N.C. Dep't of Env't & Natural Res., 165 N.C. App. 206, 208, 598 S.E.2d 565, 566 (2004). The trial court may reverse an agency's final decision if the substantial rights of the petitioners may have been prejudiced because the agency's decision is unsupported by substantial evidence or is arbitrary or capricious. N.C. Gen. Stat. § 150B-51(b)(5) and (6) (2004). The trial court conducts de novo review when reviewing allegations that the agency's decision was affected by error of law. Deep River, 165 N.C. App. at 208,598 S.E.2d at 567. If the petitioner asserts the agency's decision is not supported by the evidence or is arbitrary and capricious, as is the case here, the trial court must apply the whole record test. Fain v. State Residence Committee of UNC, 117 N.C. App. 541, 543, 451 S.E.2d 663, 665 (1995). Under the whole record test, the trial court must examine the entire record to determine whether it contains substantial evidence to support the agency's conclusions. Id. “Substantial evidence is evidence which a 'reasonable mind would regard as adequately supporting a particular conclusion.'” Id. (citations omitted). When applying this standard of review, “the trial court may not weigh the evidence presented to the agency or substitute its own judgment for that of the agency.” Deep River, 165 N.C. App. at 209, 598 S.E.2d at 567.
    There are two errors in the trial court's order. First, the trial court applied the wrong standard of review when considering the DMV's final agency decision. Petitioner alleged the DMV's decision was not supported by the evidence, therefore the trial court should have applied the whole record test. See Fain, 117 N.C. App. at 543, 451 S.E.2d at 665. Although the trial judge did not recite the standard applied, it is apparent from the order that he applied a de novo standard of review. The trial court made its own findings of fact, independent of the MRB, which it is not permitted to do under the whole record test. See N.C. Dep't of Corr. v. Brunson, 152 N.C. App. 430, 435, 567 S.E.2d 416, 420 (2002) (“[W]hen conducting a “whole record” review, [the court] may not substitute its own findings for those of the agency with regardto conflicts in the evidence, even though the trial court may have found differently from the agency”). The trial court made its own specific findings of fact rather than determining whether there was evidence in the record to support the findings of the MRB. After careful review, we conclude there was evidence in the record to support the MRB's findings that Sizemore's vision was 20/200 in his right eye.
    Second, the trial court misinterpreted the minimum federal safety standard for interstate commercial truckers. This statute requires an individual to meet three separate criteria for vision before they can operate a commercial vehicle in interstate commerce:
         [Have] distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of at least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vison of at least 70 [degrees] in the horizontal Meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing standard red, green, and amber;

49 C.F.R. § 391.41(b)(10) (emphasis added). The criteria contained in this statute are expressed in the conjunctive rather than the disjunctive, although there are two different ways to satisfy the first criteria. The trial court misinterpreted this statute when it found Sizemore met the federal criteria for a CDL where he met one of the requirements, i.e., distant binocular acuity based upon Dr. Nelson's 19 May 2003 examination. In order for an individual to operate a commercial vehicle in interstate commerce he or shemust meet each of the criteria, not just one of them. See E.E.O.C. v. United Parcel Service, Inc., 306 F.3d 794, 798 (9th Cir. 2002). The statute requires the driver to have distant visual acuity of at least 20/40 (Snellen) in each eye with or without corrective lenses. 49 C.F.R. § 391.41(b)(10). See also Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 558-559, 144 L. Ed. 2d 518, 526 (1999). Sizemore's most recent eye examination, completed by Dr. Owens on 16 March 2004, as well as previous other exams, reveal Sizemore's vision in his right eye is 20/200 with or without corrective lenses. Thus, Sizemore could not meet the federal criteria for driving a commercial vehicle involved in interstate commerce.
    As a result of the trial court's failure to apply the proper standard of review of an agency's final decision and its misinterpretation of the federal statute, we reverse its order and remand the matter for entry of an order consistent with this opinion. See Deep River Citizens' Coalition v. N.C. Dep't of Env't & Natural Res., 149 N.C. App. 211, 215, 560 S.E.2d 814, 817 (2002).
    In light of our decision, we need not discuss petitioner's remaining assignments of error.
    REVERSED AND REMANDED.
    Judges TIMMONS-GOODSON and MCCULLOUGH concur.
    Report per Rule 30(e).


Footnote: 1
     Federal Section 391.41(b)(10)'s vision standard requires that commercial truck drivers have 20/40 vision in each eye in order to drive a commercial vehicle in interstate commerce. See 49 C.F.R. § 391.41.

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