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. § 56-1-1030 (Supp. 2006). The Department contends that the DMVH
Hearing Officer (“DHO”) was in error for rescinding the suspension of Marla Renee
Crouse (“Respondent”) based on an allegedly invalid “Ishmael order,” that
reopened a case pertaining to one of Respondent’s habitual offender offenses.
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 record, the DMVH’s Final Order and Decision is reversed as set forth
below.
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 … (c) 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 56-1-1090(c). 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. 2006). Therefore, it is now the DMVH that conducts
these hearings.
FACTS
On
July 23, 2007, Respondent was convicted of her third Driving Under Suspension
(“DUS”) violation within three (3) years, making her an habitual offender under
Section 56-1-1020. The Department declared Respondent’s habitual offender
status by Official Notice on August 10, 2007, in which her three (3) DUS
convictions from 8/24/05, 8/31/05, and 7/23/07 were listed as the offenses
resulting in the suspension. Pursuant to Section 56-1-1030, Respondent appealed
the suspension to the SCDMV.
The
DMVH scheduled a contested case hearing for November 7, 2007, which Respondent
attended represented by counsel. At the hearing, Respondent entered into the
record an order issued on September 4, 2007, by the Chief Administrative Judge
of the Magistrate Court for Florence County, Judge Eugene Cooper. Respondent
stated that this “Ishmell order” re-opened the case pertaining to her DUS conviction
of August 31, 2005, and that because only two convictions remained, she was no
longer an habitual offender. Hrg Trans. 2:17 to 3:6. In response to questions
from the DHO, Respondent admitted that she had pled guilty to the offense on
August 31, 2005. In light of the Judge Cooper’s order, the DHO found that
Respondent’s record would only contain two (2) offenses and therefore she
should not be declared an habitual offender. Hrg. Trans. 4:3-11.
On
November 9, 2007, the DHO issued a Final Order and Decision rescinding the
habitual offender suspension of Respondent. In support of the rescission, the
DHO found that Judge Cooper issued a valid order that removed one of
Respondent’s habitual offender offenses. 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;
(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.
ISSUE
(1) ON APPEAL
1. Did the DHO err in finding that the order from the Magistrate Court of Florence County by Judge Cooper was valid and issued in accordance with the
requirements established by Ishmell v. SC Highway Dept., 264 S.C. 340,
215 S.E. 2d 201 (1975)?
This
Court derives its jurisdiction to adjudicate matters from its constitutional or
statutory power. See Johnson v. S.C. Dep’t of Probation, Parole, and
Pardon Servs., 372 S.C. 279, 284, 641 S.E.2d 895, 897 (2007); See also SGM-Moonglo, Inc. v. SCDOR, __ S.E.2d __, 2008 WL 2078132 (Ct. App.
2008) (“An administrative agency has only such powers as have been conferred by
law and must act within the authority granted for that purpose.”). The
statutory jurisdiction of this Court is set forth in S.C. Code Ann. §
1-23-600(F) (Supp. 2006) as follows:
Notwithstanding
another provision of law, the Administrative Law Court has jurisdiction to
review and enforce an administrative process issued by a department of the
executive branch of government, as defined in Section 1-30-10, such as a
subpoena, administrative search warrant, cease and desist order, or other
similar administrative order or process. A department of the executive branch
of government authorized by law to seek an administrative process may apply to
the chief administrative judge or his designee to issue or enforce an
administrative process. A party aggrieved by an administrative process issued
by a department of the executive branch of government may apply to the chief
administrative law judge for relief from the process as provided in the Rules
of the Administrative Law Court.
The
Department contends that the order from Magistrate Judge Cooper of Florence
County is void based on a lack of jurisdiction under S.C.R. Crim. P. 29 because
Respondent was present and pled guilty to her DUS on August 31, 2005. However,
it is apparent from this Court’s statutory jurisdiction, that the Department’s
argument is definitively not a justiciable issue for the Administrative Law
Court. See also S.C. Wildlife and Marine Resources Dep’t v.
Kunkle, 336 S.C. 177, 178, 336 S.E.2d 468, 469 (1985) (holding that “it is
firmly established that a criminal conviction may not be the subject of a
collateral attack in an administrative proceeding”).
The Department also argues that Respondent should remain an habitual offender
according to the records it maintains until she succeeds on an injunction to
have her driver’s record changed. The operative statute pertaining to this
matter is S.C. Code Ann. § 56-1-1020 (2006), which states, in pertinent part:
An habitual offender shall mean any
person whose record as maintained by the Department of Motor Vehicles shows that he has accumulated the convictions for separate and distinct
offenses described in subsections (a), (b) and (c) committed during a three
year period…(a) Three or more convictions, singularly or in combination of any of the following
separate and distinct offenses arising out of separate acts…(emphasis
supplied).
When
interpreting a statute words should be given their plain and ordinary meaning,
so that the statute is applied as intended. See L.M. Koenig v. S.C.
Dep’t of Public Safety, 325 S.C. 400, 404, 480 S.E.2d 98, 99 (1996). This
Court has emphasized in previous cases that the habitual offender laws of South Carolina exist to discourage repeat offenders and to keep the highways free from
drivers that threaten the safety of others. See S.C. Code Ann. §
56-1-1010 (2006). Courts are required to report motor vehicle related
convictions to the Department. S.C. Code Ann. § 56-1-330 (2006). And, the
Department is required to review its records upon a conviction for an offense
that falls within the scope of the habitual offender laws. If its records
reveal that the driver is an habitual offender, then the Department is required
to revoke or suspend the license to drive. S.C. Code Ann. § 56-1-1030 (Supp.
2006). See also L.M. Koenig, 480 S.E.2d at 100 (a case dealing
with vehicular manslaughter where the South Court of Appeals stated that the
Department of Motor Vehicles maintains its records for its own use.).
It
is undisputed under the laws of Section 56-1-1020(a), that three (3)
convictions of DUS within a three (3) year period results in designation as an
habitual offender. Those three (3) convictions are determined by the “record
as maintained by the Department of Motor Vehicles,” as set forth in Section
56-1-1020, so that it may enforce the habitual offender laws of this State to
keep the roads safe. The record presented by the Department at the hearing
before the DHO clearly shows that on August 10, 2007, the Department’s record
showed three DUS convictions. There is nothing in the record before the Court
to show otherwise.
This
Court finds that only the records maintained by the Department were in issue
here. So long as the records of the SCDMV showed three DUS convictions,
Respondent remained an habitual offender under Section 56-1-1020. To hold
otherwise would allow the Court of Magistrate to thwart the intent of the
legislature. If an habitual offender suspension is to be properly rescinded,
then it would likely be after a proper motion for new trial was granted in the
Court of Magistrate followed by an action in the Court of Common Pleas for
injunctive relief in the form of an order requiring the SCDMV to remove the
conviction in issue pending the new trial.
IT IS THEREFORE ORDERED, that the Order of the DHO is REVERSED and the suspension
of Respondent’s driving license and registration is reinstated.
________________________________
John D. McLeod, Judge
S.C. Administrative Law Court
June 3, 2008
Columbia, SC
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