ORDERS:
ORDER
STATEMENT
OF THE CASE
This
matter is an appeal by Ann Marie Dermondy from a Final Order and Decision of
the South Carolina Office of Motor Vehicle Hearings (OMVH).
The OMVH’s Final Order and Decision was issued following an administrative
hearing held pursuant to S.C. Code Ann. § 56-1-1090(c) (Supp. 2007). Appellant
contends that the OMVH hearing officer erred by denying her request for a reduction
of her habitual offender suspension since the South Carolina Department of
Motor Vehicles (Department) did not oppose the reduction. The Administrative Law Court (ALC or Court) has jurisdiction to hear this matter pursuant to S.C.
Code Ann. § 1-23-660 (Supp. 2008). Upon consideration of the briefs, the OMVH’s
Final Order and Decision is affirmed as set forth below.
background
In 2005, Appellant 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), Appellant’s driver’s license was
suspended for a five-year period beginning May 27, 2005 and ending May 27, 2010.
On July 12, 2005, after her habitual offender suspension had begun, Appellant
was charged with Careless or Negligent Driving. She was convicted of that charge
on August 25, 2005.
On July 10, 2008, pursuant
to Section 56-1-1090(c), Appellant filed a petition (Petition) with the OMVH
for a reduction of her habitual offender suspension. The Petition contained
two parts. In Part One of the Petition, Appellant alleged that good cause existed
for the reduction of her suspension since she had been “free of violations for
a period in excess of two years from the date of the last violation.” In Part
Two of the Petition, Appellant answered 14 different questions, the last of
which was the following: “Have you been convicted of or charged with any
traffic violation since being declared a Habitual Offender? If so provide
dates, name of court and type of offense.” Under that question, Appellant
listed a charge for Driving Under Suspension (5th) from August 2007
that did not result in a conviction. She did not list her August 25, 2005
conviction for Careless or Negligent Driving, although she did attach to the
Petition her ten-year driving record, which included the conviction.
On July 18, 2008,
the Department filed a letter with the OMVH that stated in pertinent part:
At this time, the Department is not aware of any reason why
the Petitioner should not be granted a reduction. However, the Department
hereby requests that the hearing officer ask the Petitioner, while under oath
at the hearing, to verify the current truth of all facts and statements set out
in the Petition that has been filed, seeking a reduction. In particular, it is
requested that the hearing officer ask that the Petitioner verify the truth of
the statement in Question 14 of Part Two of his [sic] Petition that he [sic]
has not been convicted of or charged with any traffic violations since being
declared a habitual offender.
A hearing
regarding Appellant’s Petition was held on August 25, 2008 before an OMVH
hearing officer. The sole evidence presented at the hearing was the following
testimony:
Appellant’s attorney: Ms. Dermondy, you’ve submitted
through me an answer and a petition and an . . . to request your license back
and there was approximately . . . let’s see, there’s 14 questions asked and you
provided the answers to those 14 questions in the petition labeled Part Two.
Are these your correct answers?
Appellant: Yes, sir.
Appellant’s attorney: And are they true?
Appellant: Yes, sir.
Appellant’s attorney: And you’re here sworn under
oath and you verify the truth of all those statements?
Appellant: Yes, sir.
On September 23, 2008, the OMVH hearing officer issued a Final Order and
Decision in which she denied Appellant’s request for a reduction of her habitual
offender suspension. Appellant now appeals.
ISSUE
ON APPEAL
Was it error for
the OMVH hearing officer to deny Appellant’s request for a reduction of her habitual
offender suspension since the Department did not oppose the reduction?
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 (Supp. 2008). Therefore, the OMVH is an “agency”
under the Administrative Procedures Act (APA). See S.C. Code Ann. §
1-23-505(2) (Supp. 2008). As such, the APA’s standard of review governs
appeals from decisions of the OMVH. See S.C. Code Ann. § 1-23-380 (Supp.
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 – including the ALC – to review agency decisions is
provided by S.C. Code Ann. §1-23-380(5) (Supp. 2008). See S.C. Code
Ann. § 1-23-600(E) (Supp. 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) (Supp. 2008).
Decisions regarding the
existence of good cause are reviewed under an abuse of discretion standard. See, e.g., Melton v. Olenik, 379 S.C. 45, 54-55, 664 S.E.2d 487, 492
(Ct. App. 2008); Mauro v. Clabaugh, 299 S.C. 184, 191, 383 S.E.2d 244,
249 (Ct. App. 1989); Berry v. Ianuario, 286 S.C. 522, 526, 335 S.E.2d
250, 252 (Ct. App. 1985); Bradey v. Children’s Bureau of South Carolina,
275 S.C. 622, 624, 274 S.E.2d 418, 420 (1981); Planters Fertilizer &
Phosphate Co. v. McCreight, 187 S.C. 483, 491, 198 S.E. 405, 408 (1938). The
meaning of the phrase “abuse of discretion” has been explained as follows:
The term “abuse of discretion” has no opprobrious implication
and may be found if the conclusions reached by the lower court are without
reasonable factual support. We note, however, “[i]t is not always easy to
determine when and if a trial judge has abused his discretion. Overly
simplified, abuse of discretion involves the extent of disagreement. When an
appellate court is in agreement with a discretionary ruling or is only mildly
in disagreement, it says that the trial judge did not abuse his discretion. On
the other hand, when the appellate court is in substantial or violent
disagreement, it says that there has been an abuse of discretion.”
State v.
Corey D., 339 S.C. 107, 118, 529 S.E.2d 20, 26 (2000) (quoting Rish v.
Rish, 296 S.C. 14, 15-16, 370 S.E.2d 102, 103 (Ct. App. 1988)) (internal
citations omitted). The burden is on the appellant to show that there is an
abuse of discretion. Halverson v. Yawn, 328 S.C. 618, 621, 493 S.E.2d
883, 884 (Ct. App. 1997).
DISCUSSION
Appellant argues that
the OMVH hearing officer erred by denying her request for a reduction of her
habitual offender suspension because the Department did not oppose the
reduction. The Court disagrees.
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.
2007).
The term “good cause”
is not defined in the motor vehicle code, nor has it been defined by South Carolina’s appellate courts. Unfortunately, the term does not lend itself to a
precise definition. Weiler v. Lutz, 501 N.W.2d 667, 671 (Minn. Ct. App.
1993); Bd. of Educ. of the Smyrna School Dist. v. DiNunzio, 602 A.2d 85,
94 (Del. Super. Ct. 1990); In re Marriage of Bennett, 938 S.W.2d 952,
957 (Mo. Ct. App. 1997). Generally speaking, “good cause” is “a cause or
reason sufficient in law; one that is based on equity or justice or that would
motivate a reasonable man under all the circumstances.” DeVries v. Rix,
279 N.W.2d 89, 95 (Neb. 1979) (quoting Webster’s Third New International
Dictionary); see also Black’s Law Dictionary 213 (7th ed. 1999)
(defining “good cause” as “a legally sufficient reason.”). The definition of
good cause, however, “varies with the context in which it is used.” Zorrero
v. California Unemployment Ins. Appeals Bd., 120 Cal. Rptr. 855, 858 (Cal.
Ct. App. 1975). Its meaning “must be determined not only by the verbal context
of the statute in which [the] term is employed but also by [the] context of the
action and the procedures involved in the type of case presented.” In re
Conservatorship of Estate of Marsh, 566 N.W.2d 783, 786 (Neb. Ct. App.
1997) (quoting Black’s Law Dictionary 692 (6th ed.1990)).
In determining the
meaning of “good cause” with respect to reducing a habitual offender
suspension, it is thus necessary to examine the purpose of the suspension. Cf. Marsh, 566 N.W.2d at 786 (“[T]he meaning of “good cause” to remove a
conservator necessarily requires an examination of a conservator’s purpose and
duties.”). According to S.C. Code Ann. § 56-1-1010(b) (2006), the objective 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.” Therefore, 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.”
In this case, Appellant
presented little evidence at the hearing to show good cause for a reduction of
her habitual offender suspension. In fact, Appellant’s sole testimony at the
hearing consisted of her verifying the accuracy of the contents of the Petition.
While there is some information in the Petition that provides support for a
finding of good cause, there is other evidence in the Record that does just the
opposite. For instance, as the OMVH hearing officer noted in her decision,
Appellant’s ten-year driving record shows that Appellant was charged with and
convicted of Careless or Negligent Driving after her habitual offender
suspension had commenced. Driving while under a habitual offender suspension is
no small matter; it is a felony that is punishable by up to five years in
prison. See S.C. Code Ann. § 56-1-1100 (2006). Moreover, Appellant did
not expressly list this conviction under Question 14 of her Petition, nor did
she mention it at the hearing when she attested to the veracity of the information
contained in the Petition.
Furthermore, while it
is true that the Department did not oppose the reduction, the authority to grant
the reduction was vested in the OMVH hearing officer, not the Department. See S.C. Code Ann. § 56-1-1090(c) (Supp. 2007) (“At this time and after hearing, the
hearing officer may reduce the five-year period of item (a) to a two-year
period for good cause shown.”) (emphasis added). Since January 1, 2006, the
OMVH and the Department have been completely separate and distinct entities. See S.C. Code Ann. § 1-23-660 (Supp. 2008). Thus, the statements made by the
Department in its letter to the OMVH were not binding on the OMVH.
Moreover, the
Department’s decision not to oppose the reduction may have been based on an erroneous
assumption - derived from the Petition - that Appellant had not been convicted
of any traffic violations since being declared a habitual offender. The Court
notes that Section III(B)(4)(c) of Department Policy VS-001, which the
Department issued in 2005, states that reductions should be denied to those who
have driven during the habitual offender suspension period. See S.C.
Dep’t of Motor Vehicles v. Hayes, 06-ALJ-21-0894-AP (S.C. Admin. Law Ct. September 7, 2007) (describing Section III(B)(4)(c) of Department Policy VS-001); see
also S.C. Code Ann. § 56-1-1090(A)(1)(b) (Supp. 2008) (effective October 1,
2008) (setting as a condition for restoration of driving privileges by the Department
that “the person must not have driven a motor vehicle during the habitual
offender suspension period”). While Department Policy VS-001 was not binding
on the OMVH hearing officer, it was certainly something that she was permitted
to consider in making her decision. See S.C. Dep’t of Motor Vehicles
v. Cain, 06-ALJ-21-0790-AP (S.C. Admin. Law Ct. March 23, 2007) (OMVH
hearing officers may treat Department Policy VS-001 as a “non-binding
guideline”).
In
conclusion, Appellant has failed to demonstrate that the OMVH hearing officer
abused her discretion by denying Appellant’s request for a reduction of her
habitual offender suspension. Accordingly, the OMVH’s Final Order and Decision
must be affirmed.
ORDER
IT IS THEREFORE ORDERED that the OMVH’s Final Order
and Decision is AFFIRMED.
AND
IT IS SO ORDERED.
______________________________
Ralph K. Anderson, III
Administrative
Law Judge
February 19, 2009
Columbia, South Carolina
|
