ORDERS:
STATEMENT OF THE CASE
On September 1, 2007, a motor vehicle titled in Respondent’s name was involved in a collision. In accordance with S. C. Code Ann. §56-9-510, Respondent, who did not have insurance coverage on the vehicle, was required to post a $550 “uninsured motorist fee”. Because Respondent had not paid that fee prior to the accident, on January 30, 2008 DMV sent her an official notice that her driving privileges and registration would be suspended on February 14, 2008, unless she paid the $550 fee and provided enhanced proof of financial responsibility: by (1) Filing an SR-22 Form; (2) posting a $40,000 deposit; or (3) posting a bond.
Respondent requested an Administrative Hearing to contest the Notice of Suspension pursuant to S. C. Code Ann. §56-10-530. On March 24, 2008, after a hearing, the Hearing Officer rescinded Respondent’s suspension on the ground that “Respondent did not that State Farm Insurance had canceled the insurance on the vehicle prior to the accident on September 1, 2007. Appellant DMV timely filed a Notice of Intent to Appeal.
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 (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. 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).
In Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304, the S. C. Supreme Court set out the standard or evidentiary review under the Administrative Procedures Act:
The Court shall not substitute its judgment for that of the agency
as to the weight of evidence on questions of fact. In addition, the
statute states the decision under appeal must be ‘clearly erroneous’
in view of the substantial evidence on the whole record.
We, therefore, caution the Bench and Bar as to the limitations
Upon the application of the ‘substantial evidence’ rules in reviewing
the decision of administrative agencies. As stated in Dickinson-
Tidewater, Inc. v. Supervisor of Assess., 273 Md. 245, 329 A.2d 18, 25,
the substantial evidence test ‘need not and must not be either judicial
fact-finding or substitution of judicial judgment for agency judgment’,
and a judgment upon which reasonable men might differ will not be
set aside.
A decision by an administrative agency must be sustained if supported by substantial evidence. Hamm v. American Telephone and Telegraph Co., 302 S.C. 210, 394 S.E.2d 842 (1990); Lark v. Bi-Lo, Inc., supra.
On review of the Orders of an administrative agency, the burden is on the Appellant to show that the order of the agency is without evidentiary support or that it is arbitrary and capricious as a matter of law.
ISSUE
Did the Hearing Officer err by refusing to grant Appellant’s Motion to reverse the suspension because the Hearing was not held within thirty (30) days after it was requested and because the Hearing Office did not issue an Order within 30 days of Appellant’s Request for Hearing?
Appellant relies upon S. C. Code Ann. §56-5-2951(F), which provides in pertinent part:
An administrative hearing must be held within thirty days after the
Request for the hearing is received by the Division of Motor Vehicle
Hearings. If the Division of Motor Vehicle Hearings does not hold
the hearing within thirty days, the Division of Motor Vehicle Hearings
must issue a written order within 30 days, stating the reasons why
the hearing was not held within 30 days, and providing a scheduled date
for the hearing. If the Division of Motor Vehicle Hearings does not issue
a written order within 30 days or fails within 30 days to notify the
the person of a hearing date, the person must have his driver’s license,
permit, or nonresident operating privilege reinstated.
***
A written order must be issued to all parties either reversing or
upholding the suspension of the person’s license, permit, or
nonresident’s operating privilege, or denying the issuance of a
License or permit within 30 days after the conclusion of the
administrative hearing. If the suspension is upheld, the person
must receive credit for the number of days his license was
suspended before he received a temporary alcohol restricted
license and requested the administrative hearing.
This statute provides that if the DMVH does not hold a hearing within 30 days after the request for a hearing, it may issue a written order stating why the hearing cannot be held within 30 days. In this case, it is undisputed that the hearing was scheduled originally for a date within thirty (30) days of the date of Appellant’s initial request, and that when the DMVH learned on September 19, 2007 that a clerical error had been made, it issued an order on September 19, 2007, rescheduling the hearing for October 1, 2007. Thus, DMVH clearly complied with the statutory requirement to (1) issue a written order specifying why the hearing was not held
within 30 days and (2) providing a scheduled date for the hearing.
The case of Starnes v. S. C. Department of Public Safety, 342 S.C. 216, 535 S.E.2d 665 (S. C. Ct. App.2000), which required dismissal of matters not heard within 30 days of the basis of lack of jurisdiction, is not applicable to this case. By Act 128 of 2005, effective January 1, 2006, the legislature transferred the adjudicatory function of the DMV to the Division of Motor Vehicles under the supervision of the Administrative Law Court.
Starnes involved the interpretation of S.C. Code Ann. § 56-5-2951(H) (Supp. 1998), which was the precursor to S.C. Code Ann. § 56-5-2951(F) (Supp. 2004). In Starnes, the Department of Public Safety suspended a motorist’s license pursuant to S.C. Code Ann. § 56-5-2951(A) (Supp. 1998) based on the results of a breath test that the motorist submitted to after being arrested for driving under the influence. The Department of Public Safety’s hearing officer sustained the suspension, but the circuit court reversed. The Department of Public Safety subsequently appealed to the Court of Appeals, which affirmed the circuit court’s decision.
The Court of Appeals held that the Department of Public Safety lacked subject matter jurisdiction to sustain the motorist’s suspension, because it failed to issue a written order within thirty days after the administrative hearing was concluded, as required by Section 56-5-2951(H). Id. at 222, 535 S.E.2d at 668. At the time, Section 56-5-2951(H) stated in pertinent part: “A written order must be issued to the person upholding the suspension of the person’s license, permit, or nonresident’s operating privilege, or denying the issuance of a license or permit within thirty days after the conclusion of the administrative hearing.” Id. (emphasis added). Because the Department of Public Safety admitted that it did not meet this requirement, the Court of Appeals affirmed the circuit court’s decision. Id.
Based on the South Carolina Supreme Court’s decision in Johnston v. S.C. Dep’t of Labor, Licensing, and Regulation, S.C. Real Estate Appraisers Bd., 365 S.C. 293, 617 S.E.2d 363 (2005), Starnes is no longer controlling authority with respect to this issue.
In Johnston, a licensed real estate appraiser was charged by the Real Estate Appraisers Board with violating certain regulations applicable to those in his profession. After an administrative hearing was held on the matter, the Board found that the appraiser had committed the alleged violations, and therefore issued a written order imposing a fine and suspending his license. Pursuant to S.C. Code Ann. § 40-60-150(C)(3) (Supp. 2004), the Board was required to serve written notice of its decision on the appraiser within thirty days of issuing its final order. However, notice of the Board’s decision was not properly served on the appraiser until after the requisite thirty-day time period had expired. Thereafter, the appraiser appealed the Board’s decision to the ALC.
The ALC reversed the Board’s order, finding that the Board’s failure to serve notice of its decision within the statutorily-mandated time period divested the Board of jurisdiction. Both the circuit court and the Court of Appeals affirmed the ALC’s decision. However, the Supreme Court reversed, holding that the failure by the Board to comply with Section 40-60-150(C)(3) did not affect the Board’s jurisdiction. Instead, the Supreme Court held that the Board’s decision was valid, but ineffective, until it was served upon the appraiser. In making this decision, the Supreme Court explained:
There is no indication the Legislature intended for the time limit to prevent the Board from having the ability to discipline an errant appraiser if the Board fails to serve notice of the written decision within the prescribed time period. Instead, the Legislature intended to speed the resolution of appraiser disciplinary cases for the benefit of all parties involved. We note that, although the thirty-day time limit is mandatory, the Legislature has not provided how that mandate is to be enforced. There is no language regarding the consequences if the Board misses the deadline for serving written notice of its decision on the appraiser. Accordingly, we will not assume the Legislature intended the Board to lose its power to act for failing to comply with the statutory time limit.
Johnston, 365 S.C. at 297-98, 617 S.E.2d at 365 (internal citations omitted).
Johnston dictates a similar result in this case. Like Section 40-60-150(C)(3), Section 56-5-2951(F) does not set forth any consequences for the DMVH’s failure to issue a final order within the statutory time limit. Therefore, pursuant to Johnston, it would be wrong to assume that the Legislature, in cases such as this one, intended for the motorist to have his license reinstated. This seems especially true here, since the Legislature, with regard to untimely hearings, did include language in Section 56-5-2951(F) mandating the reinstatement of the motorist’s license. See S.C. Code Ann. § 56-5-2951(F) (Supp. 2004). Thus, the fact that the Legislature did not include similar language with respect to untimely orders is indicative of the Legislature’s intent for the DMVH to retain its power to act even in situations where the DMVH has failed to timely issue a final order.
Moreover, the recent passage of Act No. 128, § 22, 2005 S.C. Acts 1503 (the “DMVH Act”) further warrants the application of Johnston, rather than Starnes, to the present case. Importantly, in Starnes, the Department of Public Safety was the agency responsible for holding Section 56-5-2951(B)(2) hearings and issuing final orders with respect to those hearings. Thus, the Department of Public Safety was deprived of its power to enforce a Section 56-5-2951(A) suspension as a result of its own failure to comply with a statutory provision. Here, however, pursuant to the DMVH Act, the DMVH, and not the Department, is now responsible for holding Section 56-5-2951(B)(2) hearings and issuing final orders with respect to those hearings. Thus, following Starnes in cases such as this one would mean depriving the Department of its power to enforce a Section 56-5-2951(A) suspension not because the Department failed to comply with a statutory provision, but because an unaffiliated agency failed to comply with a statutory provision. In contrast, following Johnston in situations like this one would not create a comparable level of unfairness for motorists. Notably, pursuant to S.C. Code Ann. § 56-5-2951(B)(1) (Supp. 2004), a motorist who requests an administrative hearing may obtain a “temporary alcohol restricted license” by filing a form with the Department and paying a $100.00 fee. The temporary alcohol restricted license allows the motorist to drive without any restrictive conditions pending the outcome of the administrative hearing or the final decision or disposition of the matter. S.C. Code Ann. § 56-5-2951(B)(1) (Supp. 2004) (emphasis added). Thus, generally speaking, a delay in the issuance of a final order by the DMVH has little prejudicial effect on motorists.
IT IS ORDERED that Knupp’s driver’s license is suspended in accordance with AHO Tippit’s Final Order and Decision and S.C. Code Ann. § 56-5-2951 (Supp. 2006).
AND IT IS SO ORDERED.
______________________________
Carolyn C. Matthews
Administrative Law Judge
May 21, 2007
Columbia, South Carolina
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