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). 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 Anita Gail Hayes (Hayes). 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 2003, after being convicted of Driving Under Suspension (DUS) on three separate occasions in a three-year period, Respondent 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 August 23, 2003 and ending August 23, 2008. On October 9, 2004, over a year after her habitual offender suspension had commenced, Respondent was again charged with DUS. She was convicted of this offense on October 19, 2004.
In July, 2006, pursuant to S.C. Code Ann. § 56-1-1090(c) (Supp. 2006), Respondent filed a petition with the DMVH for a reduction of her habitual offender suspension. In her petition, Respondent stated that she was currently employed, that she “really need[ed]” to drive herself to work, and that she had learned her lesson. She also stated that there was “no excuse” for her multiple DUS offenses and that they were the result of her own “stupidity.” Along with her petition, Respondent submitted to the DMVH a copy of her ten-year driving record, which indicated that Respondent had not committed a motor vehicle offense since October 9, 2004.
The DMVH notified the parties that an administrative hearing regarding Respondent’s petition would be held on August 28, 2006. On August 14, 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 Respondent’s October 9, 2004 offense, reduction of Respondent’s habitual offender suspension would violate Department Policy VS-001 and that, therefore, Respondent’s petition should not be granted. As support for its Objection, the Department attached Department Policy VS-001, as well as a copy of the Uniform Traffic Ticket for Respondent’s October 9, 2004 offense.
The hearing was held, as scheduled, on August 28, 2006. At the hearing, the DMVH hearing officer asked Respondent about her October 9, 2004 offense. Respondent testified that she was on her way to work at the time of the offense and that she had not driven since the offense. Also at the hearing, Respondent’s mother, Patricia Ayers, testified that she had been driving Respondent back and forth to work for the past two years. Ayers also testified at length about her various physical ailments and how it was difficult for her to drive Respondent to and from work due to these ailments. Ayers’ testimony was corroborated by letters from her son, Edward Coe, and her neighbor, Frances Smalley.
On November 9, 2006, the DMVH hearing officer issued a Final Order and Decision in which she ordered that Respondent’s habitual offender suspension be reduced. The Department now appeals.
ISSUE ON APPEAL
1. Did the DMVH hearing officer’s failure to follow Department Policy VS-001 constitute reversible error?
2. Did the DMVH hearing officer abuse her discretion by reducing Respondent’s habitual offender suspension?
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).
A decision is supported by “substantial evidence” when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68 (Ct. App. 1984). A decision will not be set aside simply because reasonable minds may differ on the judgment. Lark, 276 S.C. at 136, 276 S.E.2d 304, 307. The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s findings from being supported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996); Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995).
In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996) (citing Kearse v. State Health and Human Servs. Fin. Comm’n, 318 S.C. 198, 200, 456 S.E.2d 892, 893 (1995)). The party challenging an agency action has the burden of proving convincingly that the agency’s decision is unsupported by substantial evidence. Waters, 321 S.C. at 226, 467 S.E.2d at 917.
DISCUSSION
Department Policy VS-001
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 [a person declared to be a habitual offender] 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.
S.C. Code Ann. § 56-1-1090(c) (Supp. 2006) (emphasis added). In 2005, the Department issued Department Policy VS-001. Section III(B)(4)(c) of Department Policy VS-001 states:
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.
The Department argues that, based on Respondent’s October 9, 2004 offense, the DMVH hearing officer’s reduction of Respondent’s habitual offender suspension violated Section III(B)(4)(c) of Department Policy VS-001 and therefore constituted error. According to the Department, the DMVH hearing officer was required to follow Department Policy VS-001 because Section 56-1-1090(c) “assigned to the [Department] the responsibility to set standards for the granting of [habitual offender suspension] reductions.”
On March 23, 2007, the ALC issued an En Banc Order addressing this very issue. See S.C. Dep’t of Motor Vehicles v. Cain, 06-ALJ-21-0790-AP (S.C. Admin. Law Ct. March 23, 2007). In that En Banc Order, the ALC held that Department Policy VS-001 does not have the force or effect of law, and that a DMVH hearing officer’s failure to follow Department Policy VS-001 does not per se constitute error. Pursuant to ALC Rule 70(F), the holding of the En Banc Order is binding upon all individual administrative law judges in all subsequent cases. Therefore, the DMVH’s Final Order and Decision will not be reversed on this ground.
Abuse of Discretion
The Department also argues that, based on Respondent’s October 9, 2004 offense, the DMVH hearing officer abused her discretion by reducing Respondent’s habitual offender suspension.
An abuse of discretion occurs when a court’s decision is controlled by an error of law or is without evidentiary support. Mictronics, Inc. v. S.C. Dep’t of Revenue, 345 S.C. 506, 510, 548 S.E.2d 223, 225 (Ct. App. 2001). The burden is on the appellant to show that there is an abuse of discretion. Johnson v. Hoechst Celanese Corp., 317 S.C. 415, 421, 453 S.E.2d 908, 912 (Ct. App. 1995).
Here, Respondent offered evidence demonstrating that: (i) after her October 9, 2004 offense, Respondent realized the importance of complying with South Carolina’s motor vehicle laws; (ii) Respondent had not driven since her October 9, 2004 offense; (iii) except for one speeding conviction in 1998, Respondent had not been convicted of an inherently dangerous motor vehicle offense in the past ten years; (iv) Respondent was employed; and (v) Respondent accepted responsibility for her past mistakes.
Based on this evidence, I conclude that the DMVH hearing officer did not abuse her discretion by reducing Respondent’s habitual offender suspension. Ordinarily, there is no abuse of discretion where an agency’s determination is supported by substantial evidence. See Porter v. S.C. Pub. Serv. Comm’n, 328 S.C. 222, 233, 493 S.E.2d 92, 98 (1997) (holding, in a public utility rate-setting case, that “there is no abuse of discretion where substantial evidence supports the finding of a just and reasonable rate”). As discussed above, a decision is supported by “substantial evidence” when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton, 282 S.C. at 641, 321 S.E.2d at 68. Here, a reasonable person could conclude that good cause was shown for the reduction of Respondent’s suspension. Therefore, the hearing officer did not abuse her discretion in this case.
ORDER
IT IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is AFFIRMED.
AND IT IS SO ORDERED.
______________________________
Ralph K. Anderson, III
Administrative Law Judge
Interestingly, this Court’s review of this case is in accordance with whether a reasonable person (the substantial evidence standard) could find good cause which entails a consideration of the sufficiency or reasonableness of the evidence. See Black’s Law Dictionary 213 (7th ed. 1999). Ultimately, the determination must be whether a reasonable person could find that the facts warrant reducing the suspension. |
