ORDERS:
ORDER
STATEMENT OF THE CASE
This matter is an appeal by the South Carolina Department of Motor Vehicles (“Department”) from an Order of Dismissal of the South Carolina Division of Motor Vehicle Hearings (“DMVH”). The Department contends that the DMVH hearing officer erroneously denied its request for a continuance. The Administrative Law Court (“ALC”) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2006). Upon review of this matter, the DMVH’s Order of Dismissal is affirmed.
BACKGROUND
On February 12, 2006, Willie Pitts (“Pitts”) was arrested by Trooper J.R. Elrod (“Trooper Elrod”) of the South Carolina Highway Patrol for driving under the influence. Pursuant to S.C. Code Ann. § 56-5-2951(A) (2006), Trooper Elrod issued Pitts a Notice of Suspension for refusing to submit to a breath, blood or urine test. Thereafter, pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Pitts filed a request for an administrative hearing to challenge the suspension.
On March 27, 2006, the DMVH issued a Notice of Hearing, which stated that Pitts’ hearing would be held on April 19, 2006. On March 29, 2006, Pitts’ attorney, Douglas Brannon (“Brannon”), requested a continuance due to his scheduled involvement in a trial on April 19, 2006. On March 31, 2006, the DMVH granted Brannon’s continuance request and rescheduled the hearing for May 8, 2006.
On May 1, 2006, the Department requested a continuance because Trooper Elrod was scheduled to be out of town on May 8, 2006. On May 2, 2006, the DMVH granted the Department’s continuance request and rescheduled the hearing for June 5, 2006. On the morning of June 5, 2006, the Department again sought to continue the hearing due to Trooper Elrod being sick. However, the DMVH hearing officer denied this request and held the hearing as scheduled.
On June 15, 2006, the DMVH hearing officer issued an Order of Dismissal, pursuant to ALC Rule 23, in which he rescinded Pitts’ suspension. In his Order of Dismissal, the hearing officer provided the following explanation for denying the Department’s June 5, 2006 continuance request:
The Petitioner’s Witness had someone call saying that he would not be present at the hearing due to sickness. This call came in around 8:58 A.M. The hearing was scheduled for 9:00 A.M. Due to the time of the call, the Attorney and Respondent being present and ready to go forward, and not knowing the type of sickness, the request for continuance is denied.
The Department now appeals.
ISSUE ON APPEAL
1. Did the DMVH hearing officer abuse his discretion by denying the Department’s June 5, 2006 request for a continuance?
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 (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). 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
The Department claims that the DMVH hearing officer’s denial of its June 5, 2006 continuance request constituted an abuse of discretion.
It is well-settled in this State that a trial court’s denial of a motion for continuance “will not be disturbed absent a clear abuse of discretion.” State v. McKennedy, 348 S.C. 270, 280, 559 S.E.2d 850, 855 (2002) (quoting State v. Williams, 321 S.C. 455, 459, 469 S.E.2d 49, 51 (1996)). Orders reversing a denial of a continuance request “are about as rare as the proverbial hens’ teeth.” State v. McMillian, 349 S.C. 17, 21, 561 S.E.2d 602, 604 (2002).
I find no abuse of discretion here. According to the Order of Dismissal, the Department did not request a continuance until two minutes before the hearing. Generally speaking, a last-minute continuance request, if granted, causes judicial resources to be wasted, litigation expenses to be increased, and opposing parties to be inconvenienced. See, e.g., Beit v. Probate & Family Court Dep’t, 434 N.E.2d 642, 646 (Mass. 1982). Therefore, based on the scant amount of notice given by the Department, it was reasonable for the DMVH hearing officer to expect a more detailed explanation for Trooper Elrod’s absence than simply “sickness.”
Moreover, the record indicates that this hearing had previously been rescheduled once at the Department’s request. The Legislature has expressed a clear desire for Section 56-5-2951 matters to be resolved promptly. See S.C. Code Ann. § 56-5-2951(F) (2006). Therefore, in such proceedings, DMVH hearing officers are permitted to review a party’s continuance request more circumspectly when that party has previously been granted a continuance in the matter.
For these reasons, this Court concludes that the DMVH hearing officer did not abuse his discretion in denying the Department’s continuance request.
ORDER
IT IS THEREFORE ORDERED that the DMVH’s Order of Dismissal is affirmed.
AND IT IS SO ORDERED.
______________________________
John D. McLeod
Administrative Law Judge
July 23, 2007
Columbia, South Carolina
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