ORDERS:
AMENDED 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 ignored DMV Policy VS-001 and erroneously reduced the
driver’s license suspension of Respondent Dennis Abram Ray (“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
Respondent’s
driving record consists of twelve incidences of driving under suspension (DUS),
four speeding tickets, one violation for Careless or Negligent driving, one
violation for Controlled Substance, and two convictions for being a Habitual
Offender. Most of these violations date back to 1999 and 2000, leading up to
Respondent’s first Habitual Offender Suspension, and were closely scrutinized
at the hearing that is now the subject of the Department’s appeal. On November
10, 2004, 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), his
driver’s license was suspended for a five-year period beginning November 10,
2004 and ending November 10, 2009.
On
October 26, 2006, pursuant to S.C. Code Ann. § 56-1-1090(c) (Supp. 2006), Respondent
filed a petition with the DMVH for a reduction of his habitual offender suspension.
In support of good cause, Respondent indicates that he has no violations since
he was declared a habitual offender, and that he is a certified and valued
diesel technician. Furthermore, Respondent suggested that his controlled
substance offense was related to his purchase of a used vehicle, which
unknowingly contained a small amount of marijuana hidden in the cab area. Along
with his petition, Respondent submitted to the DMVH a copy of his ten-year
driving record, which indicated that Respondent had not committed a motor
vehicle offense since November 11, 2003.
The
DMVH notified the parties that an administrative hearing regarding Respondent’s
petition would be held on November 16, 2006. On February 13, 2007, the
Department had filed a Notice of Appeal, that referred to S.C. Code §
56-1-1090(c), Policy VS-001 and Guideline (B)(4)(e). The Department stated
that § 1090(c) provided it the authority to determine the guidelines for
granting sentence reductions, as set forth in Policy VS-00. Under Guideline
(B)(4)(e), the Department also stated that Respondent’s prior habitual offender
suspension made him ineligible for a reduction.
The
hearing was held, as scheduled, on November 16, 2006. Respondent appeared
represented by counsel. At the hearing, the DMVH hearing officer questioned
Respondent about the extent of his driving record, and specifically focused on
the DUS violations that were clustered during 2000. Respondent testified that these
violations were the product of poor decision making, and a lack of understanding
of the significance of his offenses. Respondent stated to the Court that he
now understands the seriousness of the violations and that driving is a
privilege. Evidence was proffered to the Court to show that Respondent had paid
all but one of his outstanding fines. Respondent also stated his awareness of
the need to maintain a valid license moving forward. For the record,
Respondent’s mother testified that Respondent has relied upon her and a friend
for rides over the past three years. Respondent also proffered affidavits that
showed Respondent excelled in his training as a diesel technician, and that he
is respected with the highest regard by his employer.
On January 17, 2007, 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.
ISSUE
ON APPEAL
1. Did the DMVH hearing officer err by failing to consider DMV Policy
VS-001 when considering the habitual offender suspension reduction of
Respondent?
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 HEREBY ORDERED that the previous Order regarding this matter, dated
November 5, 2007, is hereby ABANDONED.
IT IS FURTHER ORDERED that the DMVH’s Final Order and
Decision is AFFIRMED.
AND
IT IS SO ORDERED.
______________________________
John
D. McLeod
Administrative
Law Judge
November 15, 2007
Columbia, South Carolina
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