ORDERS:
ORDER
STATEMENT OF THE CASE
This matter is an appeal by the South Carolina Department of Motor Vehicles (Department) from a Final Order and Decision of the South Carolina Division of Motor Vehicle Hearings (DMVH) issued October 12, 2006. The DMVH’s Final Order and Decision was issued following an administrative hearing held pursuant to S.C. Code Ann. § 56-1-1090(c) (Supp. 2006). The Department contends that the DMVH hearing officer erroneously reduced the driver’s license suspension of Respondent Terri Hester Fleischman (Fleischman) in violation of Department Policy VS-001. The Administrative Law Court (ALC or Court) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2006). Upon consideration of the briefs, the DMVH’s Final Order and Decision is affirmed as set forth below.
background
In June 2002, Fleischman was found to be a “habitual offender” pursuant to S.C. Code Ann. § 56-1-1020. In accordance with S.C. Code Ann. § 56-1-1090(a), her driver’s license was suspended for a five-year period beginning February 12, 2003 and ending February 12, 2008. On October 22, 2003, eight months after her habitual offender suspension had commenced, Fleischman was charged with violations of S.C. Code Ann. § 56-1-460 (Driving Under Suspension), S.C. Code Ann. § 56-10-520 (Operation of an Uninsured Vehicle), and S.C. Code Ann. § 56-3-110 (Operation of an Unregistered Vehicle). She was convicted of these violations on November 12, 2003.
On July 18, 2006, pursuant to S.C. Code Ann. § 56-1-1090(c) (Supp. 2006), Fleischman filed a petition with the DMVH for a reduction of her habitual offender suspension. Along with her petition, Fleischman submitted to the DMVH a copy of her ten-year driving record, which indicated that Fleischman had not committed a motor vehicle violation since October 22, 2003.
The DMVH notified the parties that an administrative hearing regarding Fleischman’s petition would be held on August 17, 2006. On August 9, 2006, the Department filed an Objection to Request for Reduction of Habitual Offender Suspension (Objection) with the DMVH. In the Objection, the Department argued that, due to Fleischman’s October 22, 2003 violations, reduction of Fleischman’s habitual offender suspension would violate Department Policy VS-001 and that, therefore, Fleischman’s petition should not be granted. As support for its Objection, the Department attached Department Policy VS-001, as well as copies of the Uniform Traffic Tickets for Fleischman’s October 22, 2003 violations.
The hearing was held, as scheduled, on August 17, 2006. At the hearing, the DMVH hearing officer asked Fleischman about her October 22, 2003 violations. Fleischman testified that both of her parents had died shortly before the October 22, 2003 incident, and that, at the time she was stopped, she had been driving to Traveler’s Rest, South Carolina, to pick up their belongings. The hearing officer then asked her if she had driven since the October 22, 2003 incident. Fleischman answered, “No, we got rid of that car. I had it crushed. That car caused me so much trouble.” Also at the hearing, Fleischman’s fiancé, Michael Elgin, testified that he and Fleischman lived two miles from the closest bus stop and that Fleischman had previously had total hip replacement surgery. He further testified that, due to his own various ailments, he did not feel safe driving a motor vehicle.
On October 12, 2006, the DMVH hearing officer issued a Final Order and Decision in which she ordered that Fleischman’s driver’s license be reinstated. In doing so, the DMVH hearing officer stated:
After reviewing the fact[s] of this case and the applicable law, I find that Petitioner has shown good cause why the habitual offender status should be reduced having served more than two (2) years of the five (5) year suspension. The Petitioner is disabled and divorced after seventeen years of marriage. The Petitioner went through a tough time with the death of her parents within months of one another. The Petitioner has become more financially stable with the help of her brother who assists her in managing her money. The Petitioner accepts responsibility for her past mistakes.
The Department now appeals.
ISSUE ON APPEAL
1. Did the DMVH hearing officer’s failure to follow Department Policy VS-001 constitute reversible error?
STANDARD OF REVIEW
The DMVH is authorized by law to determine contested cases arising from the Department. See S.C. Code Ann. § 1-23-660 (Supp. 2006). Therefore, the DMVH is an “agency” under the Administrative Procedures Act (“APA”). See S.C. Code Ann. § 1-23-310(2) (2005). As such, the APA’s standard of review governs appeals from decisions of the DMVH. See S.C. Code Ann. § 1-23-380(A) (Supp. 2006); see also Byerly Hosp. v. S.C. State Health & Human Servs. Fin. Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383, 385 (1995). The standard used by appellate bodies, including the ALC, to review agency decisions is provided by S.C. Code Ann. §1-23-380(A)(5) (Supp. 2006). See S.C. Code Ann. § 1-23-380(B) (Supp. 2006) (directing Administrative Law Judges to conduct appellate review in the same manner prescribed in Section 1-23-380(A)). This section provides:
The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision [of the agency] if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2006).
DISCUSSION
Pursuant to S.C. Code Ann. § 56-1-1090(a) (Supp. 2006), a person found to be a “habitual offender” as defined under S.C. Code Ann. § 56-1-1020 (2006) may not be issued a South Carolina driver’s license for a period of five years, unless the suspension period is reduced to two years as permitted by S.C. Code Ann. § 56-1-1090(c) (Supp. 2006). Importantly, Section 56-1-1090(c) states in pertinent part:
[U]pon petition to the Division of Motor Vehicle Hearings and for good cause shown, the hearing officer may restore to the person the privilege to operate a motor vehicle in this State upon terms and conditions as the department may prescribe, subject to other provisions of law relating to the issuance of drivers’ licenses. The petition permitted by this item may be filed after two years have expired from the date of the decision of the department finding the person to be an habitual offender. At this time and after hearing, the hearing officer may reduce the five-year period of [subsection] (a) to a two-year period for good cause shown.
The Department argues that, based on Fleischman’s October 22, 2003 violations, the DMVH hearing officer erred by reducing Fleischman’s habitual offender suspension. Specifically, the Department argues that the reduction constituted error because the condition set forth in Section III(B)(4)(c) of Department Policy VS-001 was not met. According to the Department, the DMVH hearing officer was required to follow Department Policy VS-001 because “[t]he Legislature did not delegate unbridled authority to individual state employees,” but instead gave the Department, pursuant to Section 56-1-1090(c), “the express authority to set the conditions upon which a habitual offender suspension reduction may be granted.”
Section III(B)(4)(c) of Department Policy VS-001 states in pertinent part:
Once the Department has received a complete, accurate application, a reduction will be granted if the following conditions have been met . . . The applicant must not have driven a motor vehicle since the beginning date of the habitual offender suspension. NOTE: The applicant will have stated under oath that he/she has not driven at all during the habitual offender suspension. If a review of the driving record shows that s/he drove (e.g., a traffic ticket or accident report), the applicant will not be eligible for a reduction.
It is clear from the record that the condition set forth in Section III(B)(4)(c) of Department Policy VS-001 was not met. Fleischman’s ten-year driving record clearly indicates that Fleischman drove during her habitual offender suspension. Nevertheless, because Department Policy VS-001 has not been promulgated as a regulation pursuant to the APA, it does not have the force or effect of law. See S.C. Code Ann. § 1-23-10(4) (2005) (“Policy or guidance issued by an agency other than in a regulation does not have the force or effect of law.”). In other words, Department Policy VS-001 cannot act as a “binding norm” on DMVH hearing officers unless the Department promulgates it as a regulation. See, e.g., Sloan v. S.C. Bd. of Physical Therapy Examiners, 370 S.C. 452, 476, 636 S.E.2d 598, 610 (2006) (“When the action or statement ‘so fills out the statutory scheme that upon application one need only determine whether a given case is within the rule’s criterion,’ then it is a binding norm which should be enacted as a regulation. But if the agency remains free to follow or not follow the policy in an individual case, the agency has not established a binding norm.”) (quoting Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369, 1377 (11th Cir. 1983). Thus, although Section 56-1-1090(c) gives the Department the authority to issue guidelines for granting reductions of habitual offender suspensions, if the Department desires for such guidelines to be binding on DMVH hearing officers, the Department must first promulgate the guidelines as a regulation. Because the Department failed to promulgate Department Policy VS-001 as a regulation, the DMVH hearing officer was not required to treat Department Policy VS-001 as anything more than a non-binding guideline. Therefore, the DMVH hearing officer’s failure to follow Section III(B)(4)(c) of Department Policy VS-001 did not constitute reversible error.
Furthermore, the Department’s suggestion that this Court should find that Department Policy VS-001 was binding on the DMVH hearing officer because “[t]he Legislature did not delegate unbridled authority to individual state employees” is unpersuasive. The DMVH hearing officer’s discretion is limited by Section 56-1-1090(c), which prohibits the DMVH hearing officer from reducing a motorist’s suspension absent a showing of good cause, and the APA, which grants the Department the right to appeal the decisions of DMVH hearing officers for an abuse of discretion. Therefore, even absent Department Policy VS-001, the discretion of each DMVH hearing officer is not unbridled in these types of cases.
Importantly, in the present case, the Department has not specifically argued that the DMVH hearing officer abused her discretion by reducing Fleischman’s suspension. Therefore, this Court need not address this issue. See ALC Rule 37(B)(1) (“Ordinarily, no point will be considered that is not set forth in the statement of issues on appeal.”). However, even if this issue were properly before this Court, the record does not demonstrate that the DMVH hearing officer abused her discretion. See State v. Allen, 370 S.C. 88, 94, 634 S.E.2d 653, 656 (2006) (“An abuse of discretion occurs when the trial court’s ruling is based upon an error of law, such as application of the wrong legal principle; or, when based upon factual conclusions, the ruling is without evidentiary support; or, when the trial court is vested with discretion, but the ruling reveals no discretion was exercised; or when the ruling does not fall within the range of permissible decisions applicable in a particular case, such that it may be deemed arbitrary and capricious.”). Accordingly, the DMVH hearing officer’s Final Order and Decision must be affirmed.
ORDER
IT IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is AFFIRMED.
AND IT IS SO ORDERED.
______________________________
John D. Geathers
Administrative Law Judge
January 11, 2007
Columbia, South Carolina |
