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 Office of
Motor Vehicle Hearings (“OMVH”) issued March 27, 2008. The OMVH’s Final Order and Decision was issued
following an administrative hearing held pursuant to S.C. Code Ann. § 56-5-2951(B)(2)
(2006). The Administrative Law Court (“ALC”) has jurisdiction to hear this
matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2007). Upon careful review
of this matter, the OMVH’s Final Order and Decision is affirmed.
BACKGROUND
On
December 22, 2007, Thomas W. Dugan (“Dugan”) was arrested for driving under the
influence (“DUI”). Dugan refused to provide a breath sample, and pursuant to §
56-5-2951(A) (2006), Dugan’s driver’s license was suspended.
Pursuant
to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Dugan filed a request for an
administrative hearing to challenge the suspension on February 15, 2008. On
February 20, 2008, the Department filed a letter requesting that the OMVH
dismiss the case because Dugan had filed his request for a contested case
twenty-five days late. The OMVH Hearing Officer did not rule on the
Department’s motion. On March 24, 2008, the OMVH held an administrative
hearing. The DataMaster operator, Officer Niemiec, appeared on behalf of the
Department but did not present any evidence.
On
March 27, 2008, the OMVH Hearing Officer issued a Final Order and Decision rescinding
Dugan’s suspension. Specifically, the Hearing Officer stated:
The [Department] filed a letter with DMVH
on February 19, 2008 stating that [Dugan’s] hearing request was filed on February
15, 2008, 25 days too late[], which means that the DMVH did not have
jurisdiction to hold the hearing. However, at the time of the hearing, before
the call of the case, the [DataMaster operator], J.P. Niemiec appeared and
stated [that he] did not wish to present any testimony regarding the pending
suspension of [Dugan’s] driver’s license or driving privilege. Accordingly,
pursuant to Rule 13 of the Rules of Procedure of the Division of Motor Vehicle
Hearings, a case may be dismissed adverse to a defaulting party when the party
fails to appear at the hearing or to prosecute or defend the case.
The Department
now appeals.
ISSUES
ON APPEAL
1. Did
the OMVH Hearing Officer lack jurisdiction to act on this case where Dugan
failed to file his request for a hearing within thirty days of the issuance of
the notice of suspension?
2. Did
the OMVH Hearing Officer err in finding that the Department was in default when
it did not present any evidence supporting the suspension?
STANDARD OF REVIEW
The
OMVH is authorized by law to determine contested cases arising from the
Department. See S.C. Code Ann. § 1-23-660. Therefore, the OMVH 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 OMVH. See S.C. Code Ann. § 1-23-380 (as
amended 2008); 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 to review agency decisions is provided by S.C. Code
Ann. § 1-23-380(5). See S.C. Code Ann. § 1-23-600(E) (as amended 2008)
(directing administrative law judges to conduct appellate review in the same
manner prescribed in § 1-23-380). 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(5).
Thus,
pursuant to the APA, this court’s review is limited to deciding whether the OMVH’s
Final Order and Decision is unsupported by substantial evidence or is affected
by an error of law. Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d
577, 581 (Ct. App. 2005).
DISCUSSION
Pursuant
to S.C. Code Ann. § 56-5-2951(B)(2), a person whose license has been suspended
for refusal must request an administrative hearing within thirty days of the issuance of the notice of suspension. S.C. Code Ann. § 56-5-2951(B)(2) (emphasis
added). “The arresting officer must issue a notice
of suspension which is effective beginning on the date of the alleged violation
of Section 56-5-2930, 56-5-2933, or 56-5-2945.” S.C. Code Ann. § 56-5-2951(A)
(emphasis added).
A Uniform Traffic Ticket contained in the Record on Appeal
shows that Dugan was arrested for DUI, a violation of § 56-5-2930, on December
22, 2007. (R. at 0032.) The Department asserts that Dugan was provided with a
notice of suspension on the same day as his arrest, December 22, 2007. However,
the Record on Appeal is devoid of any evidence supporting this assertion. The
letter motion from the Department’s counsel dated February 19, 2008 is
unsupported by any evidence demonstrating when the notice of suspension was
issued. Moreover, the Notice of Suspension does not appear anywhere in the
Record. As the moving party, the Department had the burden to establish that
the Respondent’s request for a contested case hearing was untimely. See Frazier v. United States, 335 U.S. 497, 503, 69 S.Ct. 201, 205 (1948) (rejecting counsel’s unsworn and unsupported statements and
stating that “[t]he burden was
upon the petitioner as moving party
‘to introduce, or to offer, distinct evidence in support of the motion.’”) (citations omitted). Because it did not
demonstrate by affidavit of a witness with personal knowledge or any other evidence
that Dugan’s request was untimely, this court cannot say that the Hearing
Officer erred in failing to grant the Department’s motion.
The Department contends that the OMVH Hearing Officer
lacked subject matter jurisdiction to hold the hearing because Dugan’s request
was untimely. This argument is misplaced. Subject matter
jurisdiction refers to the court’s “power to hear and
determine cases
of the general class to which the proceedings in question belong.” Majors
v. S.C. Sec. Comm’n, 373 S.C. 153, 159, 644
S.E.2d 710, 713 (2007); Dove v. Gold Kist, Inc., 314 S.C. 235, 442 S.E.2d 598 (1994). Unquestionably,
the OMVH has subject matter jurisdiction over contested cases arising from a
driver’s license suspension by the Department. See S.C. Code Ann. § 56-1-10(23)
(Supp. 2007) (granting jurisdiction to the Division of Motor Vehicle Hearings
to conduct administrative hearings arising from actions of the Department of
Motor Vehicles); § 56-1-10(23) (as amended by 2008 S.C. Act No. 279) (making
that jurisdiction exclusive and recognizing the change of name to Office of
Motor Vehicle Hearings).
By
contrast, while the requirement to request a contested case hearing within
thirty days is “jurisdictional,” it is not the OMVH’s subject matter jurisdiction
that is implicated. The question with regard to compliance with the statutory
deadline is not whether subject matter jurisdiction exists, but whether the OMVH’s
jurisdiction was properly invoked. Proper invocation of jurisdiction may
require compliance with statutory conditions precedent such as a statutory
deadline. Good v. Kennedy, 291 S.C. 204, 207, 352 S.E.2d 708, 711 (Ct.
App. 1987) (stating that a statutory condition precedent is jurisdictional). Unlike subject matter jurisdiction, however, compliance with a statutory condition precedent can be waived if not properly
presented. See King
v. Atl. Coast Line R.R. Co., 86
S.C. 510, ___, 68 S.E. 769, 770 (1910) (finding that the filing of a claim with
the individual prescribed by statute was a statutory condition precedent and
could be waived). Therefore, the court
finds that the OMVH Hearing Officer was within her authority to conduct a
contested case hearing in this matter where the Department did not properly
establish that Dugan’s request for a hearing was untimely. Cf. RWE
NUKEM Corp. v. ENSR Corp., 373 S.C. 190,
644 S.E.2d 730 (2007) (“A party can waive a statute of
limitations defense.”). Further, while the
Record would have been clearer had the Hearing Officer expressly denied the
Department’s motion to dismiss prior to taking evidence, the court cannot say
that the Hearing Officer erred in adjudicating the case adversely to the Department
when it declined to present any evidence on the merits.
ORDER
Although
typically a tribunal should not hold a party in default when it has filed a
motion to dismiss, see United
Coin Meter Co. v. Seaboard Coastline R.R., 705 F.2d 839, 845 (6th Cir. 1983) (“As long as the motion to dismiss was pending [the
Appellant] was not in default.”), this
court must affirm the OMVH Hearing Officer based upon the record presented in
this case. Accordingly, it is hereby
ORDERED that the Final Order and Decision of the OMVH Hearing Officer dated March 27,
2008 is affirmed.
IT
IS SO ORDERED.
______________________________
Paige J. Gossett
Administrative
Law Judge
October 17, 2008
Columbia, South Carolina
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