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 erroneously
reduced the driver’s license suspension of Respondent Thomas G. Adams. The Administrative Law Court (ALC or Court) has jurisdiction to hear this matter pursuant to S.C.
Code Ann. § 1-23-660 (Supp. 2007). Upon review of this matter, the DMVH’s Final
Order and Decision is affirmed as set forth below.
background
In 2000, and again in
2001, Respondent’s driver’s license was suspended as a result of neglecting to
pay a traffic ticket. Respondent initially failed to take the appropriate
actions to reinstate his license and, in the years following his suspensions, was
convicted of Driving Under Suspension (DUS) on three separate occasions. In
2004, as a result of those convictions, 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 June 24, 2004 and ending June 24, 2009. On December 13, 2005, almost
a year and a half after his habitual offender suspension had begun, Respondent
was again charged with DUS. He was convicted of that offense on December 14,
2005.
On July 10, 2007, pursuant
to Section 56-1-1090(c), Respondent filed a petition with the DMVH for a
reduction of his habitual offender suspension. On July 18, 2007, the
Department filed an Objection to Request for Reduction of Habitual Offender
Suspension (Objection) with the DMVH. In its Objection, the Department argued
that, because of Respondent’s December 13, 2005 offense, Respondent had not
“earned” the right to have his suspension reduced. As support for its
Objection, the Department attached, among other things, Department Policy
VS-001, which was issued by the Department in December of 2005. 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.
Respondent’s
hearing was held on August 29, 2007. On August 31, 2007, the DMVH hearing
officer issued a Final Order and Decision in which he ordered that Respondent’s
habitual offender suspension be reduced. In concluding that a reduction of Respondent’s
suspension was warranted, the hearing officer discussed S.C. Dep’t of Motor
Vehicles v. Cain, 06-ALJ-21-0790-AP (March 23, 2007), an ALC En Banc Order that
holds that Department Policy VS-001 does not have the force or effect of law since
it has never been promulgated as a regulation. The Department now appeals.
ISSUE
ON APPEAL
Did the DMVH
hearing officer err by reducing Respondent’s habitual offender suspension?
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. 2007). 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 (Supp. 2007); 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. 2007).
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. 2007).
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 v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304,
307 (1981). 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)). An agency’s findings will not be overturned “unless there is
no reasonable probability that the facts could be as related by [the] witness
upon whose testimony the finding was based.” Lark, 276 S.C. at 136, 276
S.E.2d at 307 (quoting Independent Stave Co. v. Fulton, 476 S.W.2d 792,
793 (Ark. 1972)). 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.
DISCUSSION
Pursuant to Section
56-1-1090(a), the length of a habitual offender suspension is five years,
unless the suspension period is reduced to two years as permitted by Section
56-1-1090(c). Section 56-1-1090(c) provides 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). Black’s Law Dictionary defines the phrase “good cause” to
mean “a legally sufficient reason.” Black’s Law Dictionary 213 (7th ed. 1999).
In this case, the
Department argues that the DMVH hearing officer erred by reducing Respondent’s
habitual offender suspension. The Department claims that the hearing officer’s
decision should be reversed because “it is clearly erroneous in view of the
reliable, probative, and substantial evidence in the record as a whole, or is arbitrary
or capricious or characterized by an abuse of discretion or clearly unwarranted
exercise of discretion, or is affected by other error of law.” I disagree.
According to S.C. Code
Ann. § 56-1-1010(b) (2006), the purpose of a habitual offender suspension is
“[t]o deny the privilege of operating motor vehicles on [the public highways of
this State] to persons who by their conduct and record have demonstrated their
indifference to the safety and welfare of others and their disrespect for the
laws of this State.” Thus, in determining whether a reduction of a habitual
offender suspension should be granted, tribunals should evaluate the likelihood
that the motorist will, if granted a reduction, demonstrate an “indifference to
the safety and welfare of others” or a “disrespect for the laws of this State.”
Here, Respondent was
initially declared a habitual offender as a result of committing three DUS
offenses in a three-year period. At his reduction hearing, Respondent
testified that he understood that “what I did was wrong” and that he realized
“the seriousness of it.” He also testified that, as a result of becoming a
father, he had “grown up a lot” since being declared a habitual offender.
Respondent further testified that he had never been charged with driving under
the influence, that he was alcohol and drug free, and that he did not think
that he would pose a threat to the public if he was issued a driver’s license.
Moreover, Respondent testified about his need for a driver’s license so that he
could advance further in his career and assist with taking care of his
children. Additionally, he introduced a letter from his employer, where he has
worked for over five years, in which he is described as a “dedicated employee”
who “has received many job advancements due to his hard work and good
performance” and who “could advance further in the company” if he had his
driver’s license.
While the record
clearly shows that Respondent drove on December 13, 2005, which was after his
habitual offender suspension had commenced, Respondent testified that he was
driving to the store to purchase medicine for his sick, pregnant wife at the
time of the offense and that he had not driven since the offense. Moreover, Respondent
was not convicted of any offense other than DUS in connection with the incident.
According to Respondent’s
ten-year driving record, Respondent has not been convicted of a motor vehicle
offense since December 13, 2005. Moreover, Respondent has also paid the
outstanding tickets that led to his original suspensions.
As noted above, 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,
282 S.C. at 641, 321 S.E.2d at 68. Here, the record contains “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion”
that good cause existed for the reduction of Respondent’s suspension. S.C.
Dep’t of Mental Retardation v. Glenn, 291 S.C. 279, 281, 353 S.E.2d 284,
286 (1987). Therefore, the hearing officer’s decision is supported by
substantial evidence. Id.
Moreover, because the
hearing officer’s decision is supported by substantial evidence, it is not arbitrary,
capricious or characterized by an abuse of discretion. See Bursey v.
S.C. Dep’t of Health and Envtl. Control, 360 S.C. 135, 142, 600 S.E.2d 80,
84 (Ct. App. 2004) (finding that agency’s decision “was neither arbitrary,
capricious, nor characterized by an abuse of discretion” where it was supported
by substantial evidence); see also Porter v. S.C. Pub. Serv. Comm’n,
328 S.C. 222, 233, 493 S.E.2d 92, 98 (1997) (holding, in a public utility
rate-setting case, that “there is no abuse of discretion where substantial
evidence supports the finding of a just and reasonable rate”). Furthermore, since
the hearing officer possessed the authority, under Section 56-1-1090(c), to
reduce Respondent’s suspension upon a finding of good cause, the hearing
officer’s decision is not characterized by a “clearly unwarranted exercise of
discretion.” See S.C. Code Ann. § 56-1-1090(c) (Supp. 2006) (stating
that, after a hearing is held on a motorist’s reduction petition, a DMVH hearing
officer “may reduce the five-year period [of suspension] to a two-year period
for good cause shown.”).
Finally, while reducing
Respondent’s suspension violated Section III(B)(4)(c) of Department Policy
VS-001, since that Policy has never been promulgated as a regulation. It thus does
not have the force or effect of law . See S.C. Code Ann. § 1-23-10(4)
(2005) (“Policy or guidance issued by an agency other than in a regulation does
not have the force or effect of law.”); S.C. Dep’t of Motor Vehicles v. Cain,
06-ALJ-21-0790-AP (March 23, 2007) (“Because Department Policy VS-001 has not
been promulgated as a regulation, it does not have the force or effect of law.”).
Therefore, the hearing officer’s decision is not affected by an “error of law.”
For these reasons, the DMVH
hearing officer’s Final Order and Decision must be affirmed.
ORDER
IT IS THEREFORE ORDERED that the DMVH’s Final Order
and Decision is AFFIRMED.
AND
IT IS SO ORDERED.
______________________________
Ralph K. Anderson, III
Administrative
Law Judge
June 19, 2008
Columbia, South Carolina
|
