ORDERS:
ORDER
STATEMENT OF CASE
THIS MATTER comes before the Administrative Law Court (the “ALC” of “Court”) from the appeal of the South Carolina Department of Motor Vehicles (the “Department”) with regard to the Final Order and Decision issued by the South Carolina Department of Motor Vehicles Hearings (the “DMVH”) in the contested case of Timothy Edward Nix (“Respondent”). The DMVH’s Order was issued in connection with an administrative hearing that was held pursuant to S.C. Code Ann. § 56-1-1090© (Supp. 2006), as amended. The ALC has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2006). Upon consideration of the record, the DMVH’s Order is REVERSED.
BACKGROUND
The license to operate a motor vehicle upon South Carolina’s public highways is not a property right, but is a mere privilege subject to reasonable regulations in the interests of public safety and welfare. Sponar v. S.C. Dep’t of Pub. Safety, 361 S.C. 35, 39, 603 S.E.2d 412, 415 (Ct. App. 2004), cert. granted on November 17, 2005 (quoting 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)). Consistent with this principle, S.C. Code Ann. § 56-1-1090, as amended provides in pertinent part:
“No license to operate motor vehicles in this State may be issued to an habitual offender … (a) for a period of five years from the date of a final decision by the Department of Motor Vehicles that a person is an habitual offender … © until, upon petition and for good cause shown, the department may restore to the person the privilege to operate a motor vehicle ….”
Prior to January 1, 2006, the Department’s Office of Administrative Hearings held the hearings requested under Section 56-5-2951(B)(2). However, in the summer of 2005, S.C. Code Ann. § 1-23-660 was extensively amended by Act No. 128, § 22, 2005 S.C. Acts 1503 (the “DMVH Act”). Pursuant to the amended Section 1-23-660, the DMVH was created as a division of the ALC and, as of January 1, 2006, “the duties, functions, and responsibilities of all hearing officers and associated staff” of the Department were transferred to the DMVH. See S.C. Code Ann. § 1-23-660 (Supp. 2005). Therefore, it is now the DMVH that conducts these hearings.
HISTORY
On July 30, 2003, Respondent was adjudicated as a Habitual Offender under S.C. Code Ann. § 56-1-1020 (2006) with the five (5) year suspension beginning July 11, 2004 and ending July 11, 2009. On November 21, 2006, after having served a suspension of more than two (2) years, Respondent filed a Petition under S.C. Code Ann §56-1-1090 seeking to have his S.C. Driver’s License restored and his privilege to drive reinstated.
The DMVH scheduled a hearing for January 4, 2007, and the Department Hearing Officer (“DHO”) issued a Final Order and Decision on February 23, 2007, that granted Respondent’s petition for a reduction of his Habitual Offender suspension.
FACTS
On July 30, 2003, Respondent was adjudicated as a Habitual Offender under Section 56-1-1020 after a third offense of Driving Under Suspension (“DUS”). At the time of the DMVH hearing, the extent of Respondent’s Ten (10) Year Driving Record included a total of four (4) DUS offenses and one (1) speeding ticket. The most recent of the DUS violations occurred on November 29, 2004, shortly after Respondent began serving his Habitual Offender suspension.
On November 21, 2006, Respondent filed a petition pursuant to Section 56-1-1090© to request a hearing for a Habitual Offender suspension reduction. In the petition, Respondent alleged good cause for a suspension reduction based on the declining health of his mother and the medical situation of his wife, both of whom Respondent relied upon for transportation. Respondent also stated that his occupation required travel up to one hundred (100) miles daily and that his children also required transportation. The Department filed an objection to the hearing request that argued Respondent failed to acknowledge in his petition that he violated the his suspension violation, that he failed to establish good cause, and that his driving privilege was subject to completion of the Alcohol and Drug Safety Program (“ADSAP”) required under Section 56-5-2990.
The DMVH notified the parties that an administrative hearing regarding Respondent’s petition would be held on January 4, 2007. The hearing was attended by Respondent, along with his wife and his mother, who both testified on his behalf. In response to inquiries regarding Respondent’s driving record by the DHO, Respondent testified that, in 1992 and 1993, he was involved in two DUI’s. Respondent admitted that he never completed ADSAP. When Respondent was instructed that the hearing was his opportunity to explain the reasons why he deserved a suspension reduction, Respondent stated that he had been irresponsible and that he learned his lesson. Respondent also stated that he served four (4) months in prison and ten months of probation for violating his Habitual Offender suspension. The DHO ended the discussion of Respondent’s driving record by noting, without any objections from the parties, that there was no documentation submitted by the Department. Lastly, Respondent’s wife testified, for purposes of good cause, that Respondent needs to be able to drive on his own and that Respondent’s behavior has changed over the past three (3) years due their recent marriage and the presence of children in the home.
On February 23, 2007, the DHO issued a Final Order and Decision reducing the habitual suspension based in part on the fact that Respondent’s petition complied the two year requirement of Section 56-1-1090© (Supp. 2006). The Department now appeals.
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;
© 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.
ISSUES (1) ON APPEAL
1. Did the Administrative Hearing Officer err in finding that the Respondent had made a showing of good cause under Section 56-1-1090?
State policy maximizes highway safety by denying the privilege of driving from individuals who repeatedly demonstrate an indifference to the safety of others and disrespect for the laws of the State. S.C. Code Ann. § 56-1-1010. An individual who accumulates three or more motor vehicle offense during a three year period, which includes such offenses as driving with a suspended or revoked license and driving under the influence (“DUI”), shall be declared a Habitual Offender. S.C. Code Ann. § 56-1-1020 (2006). Violation of the Habitual Offender suspension is a felony that is punishable by up to five (5) years in prison. S.C. Code Ann. §56-1-1100. Notwithstanding the foregoing, however, the State has seen fit to allow a reduction of a Habitual Offender suspension from five years to two years for “good cause shown.” S.C. Code Ann. § 56-1-1090© (Supp. 2006).
No clear objective standard of what constitutes “good cause” is found, but South Carolina law suggests that the facts must extend beyond those that are merely personal in nature and common to the population in general (italicized portion added by this Court). See Faile v. South Carolina Employment Sec. Commission, 267 S.C. 536, 541-542 (1976) (finding that the meaning of “good cause” within the provisions of S.C. Unemployment Compensation Law did not contemplate benefits for an employee that was compelled to quit her job solely based on personal circumstances.); see also Ex parte Capital U-Drive-It, 369 S.C. 1, 13 (2006) (finding that appellant did not establish good cause to keep his family court records sealed where he claimed the records contained extremely personal, private, and confidential matters.). Determining whether good cause is shown involves a balancing of the needs of the parties as they weigh against public policy. See Doe v. Ward Firm, P.A., 353 S.C. 509, 514 (2003) (finding good cause to examine the medical records of the biological parents based on the compelling needs of the adopted child, and by balancing the privacy rights of the parties against the best interest of the child). Ultimately, the finding of good cause, or lack thereof, must be made by the Court on a case by case basis.
Here, Respondent’s Habitual Offender suspension arose due to his failure to comply with the statutes governing DUI offenses and his repeated failure to observe the rules of the road. At the DMVH hearing, Respondent testified that his license was originally suspended for two DUI’s (in 1992 and 1993). He also admitted that he never complied with the ADSAP requirement. More disconcerting, however, Respondent’s Ten (10) Year Driving Record indicated that Respondent received a DUS when he was stopped for speeding on October 2, 2001, and he continued to drive with a suspended license. In total, Respondent’s driving record shows four (4) DUS suspensions.
Respondent informed the DHO that he was criminally punished for violating his Habitual Offender suspension and served four months in a Columbia prison and ten (10) months probation. In the DMVH hearing, Respondent stated, referring to his criminal punishment, “I have truly learned my lesson to follow the laws and abide the laws.” However, when the DHO asked Respondent why he never attempted to clear his driving record, Respondent merely stated, “I was just irresponsible, bottom line, I was irresponsible ….” Respondent testified that he was released from the Columbia facility on October 3, 2005, but there is no evidence that he attempted to address the ADSAP matter before he filed for a suspension reduction on November 21, 2006.
In Respondent’s petition for a suspension reduction, he advanced as good cause his personal needs, such as the declining health of his mother, the medical circumstances of his wife, and the personal need to drive himself to work. Unfortunately, the Court does not find these assertions different from any other person in the general population, who would also require the privilege to drive.
While the Court is very much sympathetic with the personal needs of Respondent, and cognizant of the personal difficulties that can arise without having a valid driver’s license, the Court is not presented with any overriding evidence of good cause that outweighs the public policy behind the Habitual Offender laws of the State. The plain fact is that Respondent’s driving record demonstrates a repeated indifference for the laws of the State. Despite the passage of time since the underlying DUI offense, Respondent continued to flaunt the laws of the State when his failure to comply with ADSAP proved to be an obstacle in the way of his privilege to drive. The Court finds that the DHO was in error in allowing a reduction of the Habitual Offender suspension, based on the substantial evidence in the record and the laws of the State.
ISSUE (2) ON APPEAL
2. Did the Department Hearing Officer (“DHO”) err by finding that the Department had not entered any evidence into the record?
Section 1-23-660 states, in part, that “Representatives of the Department of Motor Vehicles are not required to appear at implied consent, habitual offender, financial responsibility, or point suspension hearings.” Although the Department is not compelled to attend the hearings, DMVH Rule 14© of the Rules of Procedure for the Department of Motor Vehicles requires that any documentary evidence submitted prior to the hearing for the record “must be in the form of certified copies.” The requirement exists to ensure the reliability of the evidence. See DMVH Rule 14© (notes).
The Department’s brief on appeal stated that the Objection to Request for Reduction of Habitual Offender Suspension (“the Objection”) was mailed to the DMVH with the DMV generated warning letter, the official Notice of Suspension, and the DUS citation from November 29, 2004. However, this argument is not enough to sustain consideration of the documents on appeal, because none of the documents appear to be certified. DMVH Rule 14© specifically requires that the documents must be certified.
The documents may have become competent evidence for the record on appeal despite the lack of certification if the DHO read them into the record during the contested case without objection from Respondent. South Carolina courts have consistently held that evidence admitted without objection becomes competent and may be properly considered by the finder of fact. See Wayne Smith Const. Co., Inc. v. Wolman, Duberstein, & Thompson, 294 S.C. 140, 363 S.E.2d 115 (Ct. App. 1987). However, the DHO never read any of the documents into the record at the contested case hearing. The Court finds that the DHO was not in error by concluding that the Department had not entered any evidence into the record, because the Department failed to comply with DMVH Rule 14©.
ISSUE (3) ON APPEAL
3. Did the DHO err in finding that the Respondent established good cause for a habitual suspension reduction despite the fact that Respondent admitted at the hearing that he had not completed ADSAP?
As discussed in the matter of Issue (1) On Appeal, Section 56-1-1010© of the Habitual Offender laws exists to discourage repeat offenders. Included in the enumerated offenses that qualify as a Habitual Offender violation are driving under the influence and driving with a suspended license. S.C. Code Ann. § 56-1-1020(a)(2) and (4). However, under Section 56-5-2990, conviction of a DUI also results in suspension of a driver’s license, and requires enrollment in and successful completion of ADSAP. Consequently, conviction of a DUS before completing ADSAP is an offense that is contemplated by and is a violation of the Habitual Offender laws of this State. Therefore, the Court finds that the DHO was in error by failing to consider the requirement to complete ADSAP as a factor in determining whether or not good cause was shown for a Habitual Offender suspension reduction.
CONCLUSION
Based on the facts in the record and the law of the State, the DHO was in error for reducing the habitual offender suspension of Respondent. There was substantial evidence in the record on appeal supporting the conclusion that Respondent has continued to disobey the laws of the State surrounding the privilege of maintaining a valid license to drive. Although the Court is sympathetic to Respondent’s difficulties that arose from the loss of the privilege to drive, the Court cannot help those who plead personal needs while demonstrating a continuing disregard for the laws of the State.
IT IS THEREFORE ORDERED, that the Order of the DHO is REVERSED.
_______________________________
John D. McLeod, Judge
S.C. Administrative Law Court
January 22, 2008
Columbia, SC
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