ORDERS:
ORDER OF REMAND
This matter is an appeal by the South Carolina
Department of Motor Vehicles (the “Department”) from an Order dated March 10,
2006 (“Order”), which was issued by the South Carolina Division of Motor
Vehicle Hearings (“DMVH”). According to the Record on Appeal, DMVH Hearing
Officer Debra Tippit was assigned to this matter and presided at the underlying
hearing, which took place on January 19, 2006. However, DMVH Hearing Officer
Robert F. Harley, Jr. (“DHO Harley”) issued the Order. DHO Harley’s issuance
of the Order in this matter violated ALC Rule 9, which provides: “Upon
assignment of a case, the administrative law judge shall rule on all motions,
preside at the contested case hearing, rule on the admissibility of evidence,
require the parties to submit briefs when appropriate, issue orders and rulings
to insure the orderly conduct of the proceedings and issue the final order.”
ALC Rule 9 was applicable to the underlying proceeding pursuant to S.C. Code
Ann. § 1-23-660 (Supp. 2005). Accordingly, DHO Harley’s Order was void ab
initio.
IT IS THEREFORE ORDERED that, to the extent
necessary to clear the Record, DHO Harley’s Order is VACATED; and
IT IS FURTHER ORDERED that, due to the fact that
the audiotape of the original hearing is defective and cannot be transcribed,
as well as the fact that more than a year has elapsed since the original
hearing, this matter is REMANDED to the DMVH for a new hearing.
AND
IT IS SO ORDERED.
______________________________
JOHN D. McLeod
Administrative
Law Judge
March 29, 2007
Columbia, South Carolina
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