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 failed to apply its methods, DMV Policy VS-001, for
determining whether to reduce the driver’s license suspension of a habitual
offender, during the hearing of Respondent Joey Christine Harvey (“Respondent”).
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
January 2002, 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 January 22,
2002 and ending January 22, 2007. The events leading up to the habitual
offender suspension include twice driving under suspension (DUS), two speeding
tickets, and one incident of driving under the influence (DUI), which
precipitated the five year suspension. On June 6, 2003, a year and five months
after her habitual offender suspension had commenced, Respondent was also convicted
of careless and negligent driving.
On
November 2, 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 has remained sober for a period of
three years and that she has made the necessary lifestyle changes to encourage
continued sobriety. Respondent also stated that a recent job opportunity
required a valid South Carolina driver’s license.
The
DMVH notified the parties by certificate of service dated November 3, 2006,
that an administrative hearing regarding Respondent’s petition would be held on
November 7, 2006. On November 7, 2006, the Department had filed an objection
to the petition, which referred to S.C. Code § 56-1-1090(c), Policy VS-001 and
Guideline (B)(4)(c). The Department stated that § 1090(c) provided it the
authority to determine the guidelines for granting sentence reductions, as set
forth in Policy VS-001. Furthermore, Guideline (B)(4)(c) prohibited driving a
motor vehicle while serving the habitual offender suspension. Consequently,
Respondent’s careless and negligent driving violation made her ineligible for a
suspension reduction.
The
hearing was held, as scheduled, on November 7, 2006. At the hearing, the DMVH
hearing officer noted for the record that Respondent has served four years and
nine months of the five year suspension. Respondent testified that she
successfully completed an ADSAP program and has learned the importance of
sobriety. Respondent stated she has paid her outstanding fines owed to the
DMV, and that she has made positive steps away from the destructive life-style
that led to the loss of her home and custody of her children. The hearing
officer also inquired about whether or not the DMV had notified Respondent
regarding the ramifications of violating the habitual offender suspension.
Respondent indicated that she was unaware of the policy until the day of the
suspension reduction hearing.
On December 6, 2006, the DMVH hearing officer issued a Final
Order and Decision in which he ordered that Respondent’s habitual offender
suspension be reduced. The Department now appeals, arguing the DMVH failed to
apply its policy, without addressing the merits of good cause.
ISSUE
ON APPEAL
1. Did the DMVH fail to follow the DMV Policy VS-001 regarding
qualifications for a habitual offender suspension reduction?
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. Pursuant to ALC
Rule 37(B)(1), the Court shall consider the issues set forth in the brief and
may disregard broad general statements.
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.
ORDER
IT IS THEREFORE ORDERED that the DMVH’s Final
Order and Decision is AFFIRMED.
AND
IT IS SO ORDERED.
______________________________
John
D. McLeod
Administrative
Law Judge
November 5, 2007
Columbia, South Carolina
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