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
DMVH’s Order of Dismissal was issued following an administrative hearing held pursuant
to S.C. Code Ann. § 56-5-2951 (2006 & Supp. 2006). The Department contends
that the DMVH hearing officer erred by rescinding the driver’s license
suspension of Respondent Timothy Phillip Reitano (Reitano). The Administrative Law Court (ALC or Court) has jurisdiction to review this matter pursuant to
S.C. Code Ann. § 1-23-660 (Supp. 2006). Upon consideration of the briefs, the
DMVH’s Order of Dismissal is reversed and this case is remanded as set forth
below.
BACKGROUND
On May 18, 2006, Reitano
was arrested for driving under the influence by Officer S.N. Gadsden of the
South Carolina Department of Public Safety (Officer Gadsden). He was taken to a
detention center for a DataMaster test. Pursuant to Section 56-5-2951(A),
Reitano was issued a Notice of Suspension for refusing to submit to the
DataMaster test.
On May 19, 2006, Reitano
sent, via facsimile and U.S. mail, a letter to the DMVH requesting an administrative
hearing to challenge his suspension. Reitano’s mailed letter, along with a
check for the requisite filing fee, was received by the DMVH on May 23, 2006. A
hearing was thereafter held on June 12, 2006 by DMVH Hearing Officer Kevin
Patterson (DHO Patterson). However, DHO Patterson left his employment at the
DMVH without issuing an order in the matter.
By an Order dated
September 27, 2006, DMVH Director Marvin F. Kittrell (Director Kittrell) ordered
that all of DHO Patterson’s pending cases be reassigned and heard or reheard. On
October 2, 2006, the DMVH issued a Notice of Hearing, which stated that Reitano’s
hearing would be held on October 31, 2006. The Notice of Hearing did not
provide any explanation as to why the hearing would not be held within thirty
days after the issuance of Director Kittrell’s Order. On October 16, 2006, the
Department of Public Safety requested that the hearing be continued. Its
request was granted, and the hearing was rescheduled for November 7, 2006.
Subsequently, on November 6, 2006, the Department of Public Safety again
requested a continuance. Its request was granted and the hearing was
rescheduled for November 14, 2006.
The hearing was eventually
held on November 14, 2006. At the beginning of the hearing, Reitano’s attorney
orally moved to dismiss the case. He argued that the DMVH lacked jurisdiction
in the matter for the following two reasons: (i) DHO Patterson failed to issue
a final order within thirty days of the conclusion of the first hearing as required
by S.C. Code Ann. § 56-5-2951(F) (Supp. 2006); and (ii) Reitano’s second hearing
was not held within thirty days as required by § 56-5-2951(F). DMVH Hearing
Officer Debra Tippit (DHO Tippit) stated that she would take the motion under
advisement, and she ordered that the hearing go forward as scheduled.
On November 16, 2006, DHO
Tippit issued an Order of Dismissal rescinding Reitano’s suspension. Although
DHO Tippit determined that the DMVH still had jurisdiction in the case, she concluded
that Reitano’s suspension should be rescinded “in the interest of fairness to
all parties.” She explained:
[I]t has now been six months since the Respondent was issued
the Notice of Suspension. Regardless of the requirements of the statute, clearly
the intent of the legislature was to require these hearing to be held and
decided in a timely manner. There may be situations where a time period of
this length would be necessary and acceptable – such as by continuance requests
from the Respondent – but this is not one of those situations.
The Department
now appeals.
ISSUES
ON APPEAL
1. Did the
provisions of S.C. Code Ann. § 56-5-2951(F) (Supp. 2006) relating to the issuance
of final orders mandate the reinstatement of Reitano’s driver’s license?
2. Did
the provisions of S.C. Code Ann. § 56-5-2951(F) (Supp. 2006) relating to the scheduling
and holding of implied consent hearings mandate the reinstatement of Reitano’s
driver’s license?
DISCUSSION
Summary
of Applicable Law
The
license to operate a motor vehicle upon the public highways of this State is
not a right, but a mere privilege that is subject to reasonable regulations in
the interests of public safety and welfare. State v. Newton, 274 S.C.
287, 294, 262 S.E.2d 906, 910 (1980); Summersell v. S.C. Dep’t of Pub.
Safety, 334 S.C. 357, 366, 513 S.E.2d 619, 624 (Ct. App. 1999), vacated
in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999); State v.
Kerr, 330 S.C. 132, 149, 498 S.E.2d 212, 220-21 (Ct. App. 1998). This
privilege is always subject to revocation or suspension for any cause relating
to public safety. S.C. State Hwy. Dep’t v. Harbin, 226 S.C. 585,
595, 86 S.E.2d 466, 470 (1955). However, it cannot be revoked arbitrarily or
capriciously. Id.
Consistent
with these principles, the legislature enacted S.C. Code Ann. § 56-5-2950
(2006) and S.C. Code Ann. § 56-5-2951 (2006 & Supp. 2006). Section
56-5-2950 declares that a motorist arrested for DUI implicitly consents to a
chemical test of his breath, blood or urine for the purpose of determining the
presence of alcohol or drugs, and it requires that, at the direction of the
arresting officer, a breath test be administered to a motorist so arrested.
S.C. Code Ann. § 56-5-2950(a) (2006).
Section 56-5-2951, in turn, mandates that the driver’s license of a motorist
who refuses to submit to a test required by Section 56-5-2950 be immediately suspended. See S.C. Code Ann. § 56-5-2951(A) (2006).
However,
S.C. Code Ann. § 56-5-2951(B)(2) (2006) grants motorists the right to request
an administrative hearing to challenge suspensions imposed pursuant to §
56-5-2951(A). A motorist who requests such a hearing may obtain a “temporary
alcohol restricted license” by filing a form with the Department and paying a
$100.00 fee. S.C. Code Ann. § 56-5-2951(B)(1) (2006). The temporary alcohol
restricted license allows the motorist to drive without any restrictive
conditions pending the outcome of the administrative hearing or the final
decision or disposition of the matter. Id.
Section
56-5-2951(F): Timeliness of DHO Patterson’s Final Order
Section 56-5-2951(F)
states in pertinent part:
A written order must be issued to all parties either
reversing or upholding the suspension of the person’s license, permit, or
nonresident’s operating privilege, or denying the issuance of a license or
permit within thirty days after the conclusion of the administrative hearing.
S.C. Code Ann. § 56-5-2951(F)
(Supp. 2006).
Reitano argues that
because DHO Patterson did not issue a final order within thirty days after the
conclusion of the first administrative hearing, Section 56-5-2951(F) mandates
the reinstatement of his license. The Department, however, argues that the
above-quoted portion of Section 56-5-2951(F) is not a jurisdictional
requirement and that therefore reinstatement of Reitano’s license is not
warranted. In making this argument, the Department cites Johnston v. S.C.
Dep’t of Labor, Licensing, and Regulation, S.C. Real Estate Appraisers Bd.,
365 S.C. 293, 617 S.E.2d 363 (2005). I agree with the Department.
In Johnston, a
licensed real estate appraiser was charged by the Real Estate Appraisers Board
with violating certain regulations applicable to those in his profession.
After an administrative hearing was held on the matter, the Board found that
the appraiser had committed the alleged violations and therefore issued a
written order imposing a fine and suspending his license. Pursuant to S.C.
Code Ann. § 40-60-150(C)(3) (Supp. 2004), the Board was required to serve written notice of its decision on the appraiser
within thirty days of issuing its final order. However, notice of the Board’s
decision was not properly served on the appraiser within the requisite
thirty-day time period. Once the appraiser made the Board aware of its error,
the Board promptly gave the appraiser a copy of the Board’s written decision.
Thereafter, the appraiser appealed the Board’s decision. The Supreme Court ultimately
held that the failure by the Board to comply with Section 40-60-150(C)(3) did
not affect the Board’s jurisdiction. Rather, the court discerned that the
Board’s decision was valid, but ineffective, until it was served upon the
appraiser. In making this decision, the Supreme Court explained:
There is no indication the Legislature intended for the time limit
to prevent the Board from having the ability to discipline an errant appraiser
if the Board fails to serve notice of the written decision within the
prescribed time period. Instead, the Legislature intended to speed the
resolution of appraiser disciplinary cases for the benefit of all parties
involved . . . We note that, although the thirty-day time limit is mandatory,
the Legislature has not provided how that mandate is to be enforced. There is
no language regarding the consequences if the Board misses the deadline for
serving written notice of its decision on the appraiser. Accordingly, we will
not assume the Legislature intended the Board to lose its power to act for
failing to comply with the statutory time limit.
Johnston, 365 S.C. at
297-98, 617 S.E.2d at 365 (internal citations omitted). The Supreme Court then
determined that the appraiser was not prejudiced by the Board’s failure to
complete service within thirty days of the Board’s issuance of its decision,
and it therefore remanded the case to the ALC for a ruling on the merits of the
appraiser’s other claims. Id. at 298, 617 S.E.2d at 365.
Johnston dictates
a similar result in this case. Similar to the intent of Section
40-60-150(C)(3), the purpose of Section 56-5-2951(F) is to speed the resolution
of implied consent cases for the benefit of all parties involved, not
just the motorist. As several courts have noted, the primary goal of implied
consent statutes is to protect the public, not to punish individuals. See State v. Kerr, 330 S.C. 132, 150, 498 S.E.2d 212, 221 (Ct. App.
1998); State v. Price, 333 S.C. 267, 272, 510 S.E.2d 215, 218 (1998).
Under South Carolina law, as discussed above, a motorist who requests a hearing
to challenge his administrative suspension may obtain a temporary alcohol restricted
license that allows him to drive without any restrictive conditions pending the
outcome of the hearing. S.C. Code Ann. § 56-5-2951(B)(2) (2006). Therefore,
because of the dangers presented by those who drive while intoxicated, the public, as represented by the Department, generally has an interest in the
speedy resolution of implied consent cases. Certainly, from the Department’s
perspective, the quicker that individuals who are guilty of violating the
State’s implied consent laws are removed from public roadways and given
treatment, the better it is for public safety.
Furthermore, like
Section 40-60-150(C)(3), Section 56-5-2951(F) does not include any language
regarding the consequences of the DMVH’s failure to issue its decision within
the statutory time limit. Therefore, there is no authority that supports the
premise that the legislature, in cases such as this one, intended for the
motorist to have his license reinstated. Moreover, the legislature, with
regard to untimely initial hearings, did include language in Section
56-5-2951(F) mandating the reinstatement of the motorist’s license. Therefore,
the fact that the legislature did not include similar language with respect to
untimely orders is indicative of the legislature’s intent for the DMVH to
retain its power to act even in situations where the DMVH has failed to timely
issue a final order.
Reitano, however,
argues that Johnston should not be followed here because the Johnston court “misapprehended” Starnes v. S.C. Dep’t of Pub. Safety, 342
S.C. 216, 535 S.E.2d 665 (Ct. App. 2000).
This argument is without merit. Johnston was decided by the Supreme
Court, whereas Starnes was decided by the Court of Appeals. Thus, not
only was the Johnston court under no obligation to follow the Starnes decision, it also had the authority to overrule the legal conclusions contained
in the Starnes decision. In this Court’s view, this is exactly what the Johnston court did with respect to the second holding in Starnes.
Additionally, the
recent passage of Act No. 128, § 22, 2005 S.C. Acts 1503 (the DMVH Act) further warrants the application of Johnston, rather than Starnes,
to the present case. Importantly, in Starnes, the Department of Public
Safety was the agency responsible for holding Section 56-5-2951(B)(2) hearings
and issuing final orders with regard to those hearings. Thus, the Department
of Public Safety was deprived of its power to implement a Section 56-5-2951(A)
suspension as a result of its own failure to comply with a statutory
provision. Here, however, pursuant to the DMVH Act, the DMVH, and not the
Department, is now responsible for holding Section 56-5-2951(B)(2) hearings and
issuing final orders with respect to those hearings. Thus, following Starnes in cases such as this one would mean depriving the Department of its power to
implement a Section 56-5-2951(A) suspension based solely on an unaffiliated
agency’s failure to comply with a statutory provision, even in cases where there
is no evidence that the motorist suffered prejudice as a result of the
non-compliance. In this Court’s view, such an outcome was not intended by the
legislature.
Here, after the
conclusion of Reitano’s first hearing, no written correspondence was issued by
the DMVH to the parties for more than three months. Although this delay by the
DMVH constituted more than a trivial violation of Section 56-5-2951(F), there
is no evidence in the Record that Reitano suffered prejudice as a result of the
delay. Generally speaking, in cases where a motorist obtains a temporary
alcohol restricted license as discussed above, a delay in the issuance of a
final decision by the DMVH will have little to no prejudicial effect on the
motorist. Therefore, this Court concludes that Reitano was not prejudiced by DHO
Patterson’s failure to issue a final order within thirty days after the
conclusion of Reitano’s first hearing. Accordingly, rescission of Reitano’s
suspension on this ground is not warranted. See Johnston, 365 S.C. at 298, 617 S.E.2d at 365.
Section
56-5-2951(F): Timeliness of Reitano’s Second Hearing
Reitano also argues
that his second hearing was not timely held. After DHO Patterson left his
employment at the DMVH without issuing a final order in the matter, Director
Kittrell issued an Order reassigning the case to DHO Tippit. According to
Reitano, that reassignment “effectively restarted the hearing process” for
Reitano. Thus, Reitano maintains that the DMVH was required, within thirty
days of the issuance of Director Kittrell’s Order, to either hold a hearing or
issue a written order stating the reasons why the hearing would not be held
within thirty days (and providing a schedule date for the hearing). Because
the DMVH’s October 2, 2006 Notice of Hearing included no explanation as to why
Reitano’s hearing would not be held within thirty days of the issuance of
Director Kittrell’s Order, Reitano contends that Section 56-5-2951(F) mandated
the reinstatement of his license.
Section 56-5-2951(F) states
in pertinent part:
An administrative hearing must be held within thirty days
after the request for the hearing is received by the Division of Motor Vehicle
Hearings. If the Division of Motor Vehicle Hearings does not hold the hearing
within thirty days, the Division of Motor Vehicle Hearings must issue a written
order within thirty days, stating the reasons why the hearing was not held
within thirty days, and providing a schedule date for the hearing. If the
Division of Motor Vehicle Hearings does not issue a written order within thirty
days or fails within thirty days to notify the person of a hearing date, the
person must have his driver’s license, permit, or nonresident operating
privilege reinstated.
S.C. Code Ann. § 56-5-2951(F)
(Supp. 2006).
Although Section
56-5-2951(F) sets forth a time limit for holding initial administrative
hearings, it does not specifically address the situation involved here – i.e.,
where a second hearing is scheduled. The statute simply states that “an
administrative hearing must be held within thirty days after the request for
the hearing is received by the Division of Motor Vehicle Hearings.”
Reitano’s first hearing was clearly held within that time frame. Thus, the
argument that Reitano is making here is that his suspension should be rescinded
based not on a time limit that is expressly set forth in § 56-5-2951(F), but on
a time limit that Reitano contends should be read into § 56-5-2951(F).
This Court disagrees.
As discussed above, the
Supreme Court has concluded that a court should not assume that the legislature
intended for an agency to lose its power to act for failing to comply with a
statutory time requirement unless the statute at issue expressly provides
for such a consequence. See Johnston, 365 S.C. 293, 617
S.E.2d 363 (discussed supra); cf. In re Matthews, 345 S.C.
638, 550 S.E.2d 311 (2001) (State’s failure to bring case to trial within sixty
days of probable cause hearing as required by Sexually Violent Predator Act did
not result in the trial court losing jurisdiction to hear the case). Similarly,
this Court concludes that a court should not assume that the legislature
intended for an agency to lose its power to act for failing to comply with a statutory
time requirement unless the statute at issue expressly sets forth the time requirement. In this case, § 56-5-2951(F) did not expressly require that Reitano’s second hearing be held within thirty days of the date
that Director Kittrell issued his Order. Accordingly, Reitano’s suspension
should not be rescinded solely based on the DMVH’s failure to issue a written
order explaining why Reitano’s second hearing was not held within that time
frame. This Court is simply unwilling to hold that an allegedly implicit statutory
time requirement that is not expressly set forth in the statute is jurisdictional
in nature, especially in a case where public interests are at stake. See Brock v. Pierce County, 476 U.S. 253, 260 (1986) (“We would be most
reluctant to conclude that every failure of an agency to observe a procedural
requirement voids subsequent agency action, especially when important public
rights are at stake.”); S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C.
514, 522, 613 S.E.2d 544, 548-49 (Ct. App. 2005) (noting that the State has a
“strong interest” in maintaining safe roads and explaining the important
function that administrative suspensions serve); see generally Johnston,
365 S.C. at 297 n.2, 617 S.E.2d at 365 n.2 (South Carolina Supreme Court takes
a “strict view” of subject matter jurisdiction).
Here, the DMVH issued
its initial Notice of Hearing for the second hearing on October 2, 2006. This
Notice of Hearing scheduled Reitano’s hearing for October 31, 2006, which was
34 days after Director Kittrell issued his Order. There is no evidence in the
Record that, at any time between October 2, 2006 and November 14, 2006, the
date on which the second hearing was ultimately held, Reitano sought to have
the hearing rescheduled for an earlier date or sought an explanation from the
DMVH as to the reason for the allegedly improper delay. There is also no
evidence that Reitano challenged the DMVH’s granting of the Department of
Public Safety’s October 16th or November 6th continuance
requests. Furthermore, there is no evidence that Reitano was prejudiced by the
DMVH’s failure to issue a written order explaining why his second hearing was
scheduled for a date that was more than thirty days after the date on which
Director Kittrell issued his Order.
For these reasons, this
Court concludes that the fact that the DMVH originally scheduled Reitano’s second
hearing for a date that was more than thirty days after the date on which Director
Kittrell issued his Order does not warrant the rescission of Reitano’s
suspension.
IT IS THEREFORE
ORDERED that the DMVH’s Order of Dismissal is reversed, and that this case
is remanded to DHO Tippit to issue a final decision on the merits of this
matter.
AND IT IS SO ORDERED.
______________________________
Ralph King Anderson, III
Administrative Law Judge
December 11, 2007
Columbia, South Carolina
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