dissenting.
I believe the majority’s discussion of the irrebuttable presumption “doctrine” evidences the confused state of the law and demonstrates the shallowness and incompleteness of that “doctrine” as an analytic tool.1 Merely by categorizing the regulation in question as an irrebuttable presumption, the majority apparently deems it unnecessary to address one of the foundational rules of statutory construction: the presumption of constitutionality. As recognized in statutory and case law, enactments of the General Assembly enjoy a strong presumption of constitutionality and they are not to be found unconstitutional unless they clearly, palpably and plainly violate the constitution. 1 Pa. C.S. § 1922(3); Commonwealth v. Nicely, 536 Pa. 144, 638 A.2d 213 (1994). Administrative regulations adopted pursuant to a grant of authority from the legislature, which are within the scope of the authority granted, are entitled to the same presumption, and the party challenging such laws or regulations bears a heavy burden of proving a clear constitutional violation.
In similar fashion, the irrebuttable presumption analysis also conveniently avoids the policies underlying traditional equal protection analysis, i.e., that except where classifications interfere with fundamental rights or disadvantage a suspect class they will be upheld if the means employed are rationally related to the purpose. Legislation by its nature requires the drawing of distinctions and these distinctions need not make allowance for individual circumstances in order to be valid. Apart from the assertion that the regulation creates an irrebuttable presumption, the licensee’s argument here is essentially that he is being treated differently from other drivers (is being denied equal protection) because of the occurrence of an epileptic seizure. I believe the Department has demonstrated a rational basis for the regulation.
The General Assembly has established a Medical Advisory Board to “formulate rules and regulations for adoption by the department on physical and mental criteria ... relating to the licensing of drivers_” 75 Pa.C.S. § 1517(b). The rule in question at 67 Pa.Code § 83.4(a) is such a regulation. The Medical Advisory Board made an administrative judgment that the risk to the public from possible recurrence of an epileptic seizure within one year was significant enough to warrant a limited interference with a private interest in maintaining a driver’s license. The Department asserts that this period was deemed necessary “to ascertain the effectiveness of any anti-seizure medication which a licensee might have been prescribed, and to determine whether the licensee will be subject to the onset of further seizures.” Appellant’s Brief at 15-16.
Apart from lack of clarity in the analysis, I am also concerned about the lack of clarity in the outcome. It is simply not enough to state that the regulation violates due process. The majority apparently concludes that due process requires that the licensee be afforded a hearing at which an individualized determination of competency to drive can be made before the license can be recalled. Given the significant danger to the public, I would think that in these circumstances the Department should be permitted to recall or suspend the license first, until it is determined *1067that the licensee is not at risk of having another seizure. The majority also fails to address the obvious question of who bears the burden of proof at any hearing. If the flaw in the regulation is that the presumption is irrebuttable, it would seem that a rebutta-ble presumption would satisfy the majority’s concerns. The Medical Advisory Board’s assessment of the risks, favoring suspension, would then be the starting point and the licensee would bear the burden of demonstrating by competent evidence that in his particular case those risks have been adequately minimized. Accordingly, I dissent.
. The majority addresses the irrebuttable presumption "doctrine” in terms of procedural or substantive due process, suggesting that it matters not which. In a case that bears a striking resemblance to this one, Commonwealth, Department of Transportation v. Slater, 75 Pa.Cmwlth. 310, 462 A.2d 870 (1983), a school bus driver’s license was suspended pursuant to a regulation making it a condition of holding such a license that a person have no history or diagnosis of diabetes requiring use of insulin or hypoglycemic medication. Commonwealth Cotut rejected the driver's irrebuttable presumption argument and suggested that the irrebuttable presumption "doctrine” was a permutation of equal protection analysis that had limited application. See 462 A.2d at 876-881. Nothing about the most recent case from the United States Supreme Court wherein the irrebuttable presumption concept was discussed, Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989), suggests that the vitality of the doctrine or the rationale behind it are any clearer now than they were when Slater was decided.