South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDMV, et al vs. Jeffrey C. Bollier

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Petitioners:
South Carolina Department of Motor Vehicles and Charleston Police Department

Respondents:
Jeffrey C. Bollier
 
DOCKET NUMBER:
08-ALJ-21-0253-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

STATEMENT OF CASE

This matter is an appeal by the South Carolina Department of Motor Vehicles (Department) from an Order of Dismissal issued by the South Carolina Division of Motor Vehicle Hearings (DMVH). The Department contends that the DMVH hearing officer lacked jurisdiction to rescind the administrative suspension of Respondent’s driver’s license since Respondent failed to file his request for an administrative hearing within the time frame required by S.C. Code Ann. § 56-5-2951(B)(2) (2006). The Administrative Law Court (ALC or Court) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2007). Upon consideration of relevant statutory law and case law, the DMVH’s Order of Dismissal is vacated.

BACKGROUND

On October 28, 2007, after being arrested for driving under the influence, Respondent’s driver’s license was suspended pursuant to S.C. Code Ann. § 56-5-2951(A) (2006) for refusing to submit to one of the tests provided for in S.C. Code Ann. § 56-5-2950 (2006). On March 4, 2008, Respondent filed a request with the DMVH for an administrative hearing to challenge his suspension. Three days later, on March 7, 2008, the Department filed a letter with the DMVH contending that Respondent’s hearing request was untimely. The Department’s letter notwithstanding, on April 15, 2008, the DMVH hearing officer issued an Order of Dismissal in which she rescinded Respondent’s suspension. She explained:

The Petitioner (SCDMV) filed a letter with DMVH on March 7, 2008 stating that the Respondent’s hearing request was filed on March 5, 2008,[1] 99 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 arresting officer appeared and stated that he did not wish to present any testimony regarding the pending suspension of Respondent’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.

ISSUE ON APPEAL

Did the DMVH hearing officer lack jurisdiction to rescind the administrative suspension of Respondent’s driver’s license?

STANDARD OF REVIEW

The DMVH is authorized by law to determine contested cases arising from the South Carolina Department of Motor Vehicles (Department). See S.C. Code Ann. § 1-23-660 (Supp. 2007); S.C. Code Ann. § 56-1-10(23) (Supp. 2007). Therefore, the DMVH is an “agency” under the Administrative Procedures Act (APA). See S.C. Code Ann. § 1-23-505(2) (as amended by 2008 S.C. Act No. 334). As such, the APA’s standard of review governs appeals from decisions of the DMVH. See S.C. Code Ann. § 1-23-380 (as amended by 2008 S.C. Act No. 334); 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(5) (as amended by 2008 S.C. Act No. 334). See S.C. Code Ann. § 1-23-600(E) (as amended by 2008 S.C. Act No. 334) (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) (as amended by 2008 S.C. Act No. 334).

DISCUSSION

The Department argues that, because Respondent’s request for an administrative hearing was not filed within the time frame required by S.C. Code Ann. § 56-5-2951(B)(2) (2006), the DMVH hearing officer lacked jurisdiction to rescind Respondent’s suspension. The Court agrees.

“The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature.” Mozingo & Wallace Architects, L.L.P. v. Grand, 379 S.C. 478, 486, 666 S.E.2d 267, 271 (Ct. App. 2008) (quoting Mid-State Auto Auction of Lexington v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996)). “In construing statutory language, the statute must be read as a whole, and sections which are part of the same general statutory law must be construed together and each one given effect.” TNS Mills, Inc. v. S.C. Dep’t of Revenue, 331 S.C. 611, 619, 503 S.E.2d 471, 476 (1998). A court “must presume the legislature did not intend a futile act.” Id.

The statutory provision at issue here, Section 56-5-2951(B)(2) (2006), provides that “[w]ithin thirty days of the issuance of the notice of suspension, the person may request an administrative hearing.” S.C. Code Ann. § 56-5-2951(B)(2) (2006). Subsection (D) of Section 56-5-2951 further provides that “[i]f a person does not request an administrative hearing, he waives his right to the hearing, and his suspension must not be stayed but continues for the period provided for in subsection (I).” Under subsection (F), the DMVH is generally required to hold an administrative hearing within thirty days after it receives a motorist’s hearing request. See S.C. Code Ann. § 56-5-2951(F) (Supp. 2007).

The Supreme Court’s decision in Wingate v. S.C. State Highway Dep’t, 276 S.C. 39, 274 S.E.2d 917 (1981) offers some guidance in interpreting Section 56-5-2951. In that case, the Supreme Court addressed the issue of whether the Circuit Court possessed jurisdiction under S.C. Code Ann. § 56-1-410 (1976) to issue a decision ordering the South Carolina State Highway Department to reinstate a motorist’s suspended license where the motorist did not request a hearing within thirty days of the suspension. In concluding that the Circuit Court lacked jurisdiction to issue its order, the Supreme Court explained:

Section 56-1-410 of the Code provides in pertinent part: “Any person denied a license or whose license has been cancelled, suspended or revoked by the Department . . . may file a petition within thirty days thereafter for a hearing in the matter in a court of record in the county wherein such person shall reside. Such court is hereby vested with jurisdiction . . .” This section creates jurisdiction to review these matters, and compliance with its terms is mandatory. The respondent deprived the circuit court of jurisdiction by allowing the thirty-day period to pass. The decision of the Department was therefore not subject to review.

Wingate, 276 S.C. at 40, 274 S.E.2d at 917.

Here, the language of Section 56-5-2951 is very similar to that of Section 56-1-410. Under both provisions, jurisdiction is invoked by the filing of a hearing request. Moreover, both provisions provide that a motorist “may” request a hearing within thirty days after his license is suspended by the State. Although statutory provisions that include the word “may” are not always interpreted as being mandatory,[2] the Wingate court clearly concluded that a motorist must request a hearing within the time frame of Section 56-1-410 in order for jurisdiction to exist to reinstate the motorist’s suspension. Thus, Wingate, while involving a different statute than the one at issue here, strongly supports the proposition that the DMVH hearing officer lacked jurisdiction in this case.

Moreover, that proposition is further supported by Section 56-5-2951(D). Section 56-5-2951(D) clearly indicates that the legislature intended for motorists to, at some point in time, waive their right to request an administrative hearing by failing to exercise that right. Without any mandatory time frame for filing a hearing request, the waiver provision of Section 56-5-2951(D) would never become effective and, thus, would be pointless. While Section 56-5-2951(D) does not specifically state that the thirty-day time frame set forth in Section 56-5-2951(B)(2) is the applicable time frame, “statutes must be read as a whole.” TNS Mills, 331 S.C. at 619, 503 S.E.2d at 476. Moreover, if Section 56-5-2951(B)(2)’s thirty-day time frame does not apply to Section 56-5-2951(D), then it is unclear what time frame would apply.

For these reasons, the Court concludes that compliance with the time frame set forth in Section 56-5-2951(B)(2) is mandatory. Therefore, because Respondent failed to file his hearing request within the thirty-day time frame required by Section 56-5-2951(B)(2), the DMVH hearing officer lacked jurisdiction to rescind Appellant’s suspension. Accordingly, the DMVH’s Order of Dismissal is void. See State v. Guthrie, 352 S.C. 103, 107, 572 S.E.2d 309, 312 (Ct. App. 2002) (“The acts of a court with respect to a matter as to which it has no jurisdiction are void”).

IT IS THEREFORE ORDERED that the DMVH’s Order of Dismissal is vacated, and that Respondent’s Section 56-5-2951(A) suspension shall be reinstated; provided, however, that Respondent shall be given credit for any portion of his suspension that he has already served.

AND IT IS SO ORDERED.

______________________________

Ralph King Anderson, III

Administrative Law Judge

December 3, 2008

Columbia, South Carolina



[1] Respondent’s hearing request was received by the DMVH on March 5, 2008, but was file-stamped March 4, 2008 in accordance with DMVH Rule 4(D).

[2] See, e.g., Waites v. S.C. Windstorm and Hail Underwriting Ass’n, 279 S.C. 362, 307 S.E.2d 223 (1983).


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