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) issued May 16, 2006. The DMVH’s Final Order and Decision was issued in connection with an administrative hearing that it held pursuant to S.C. Code Ann. § 56-1-1090(c) (2006). The Administrative Law Court (ALC) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2005). Upon consideration of the Department’s brief, the DMVH’s Final Order and Decision is affirmed as set forth below.
Pursuant to S.C. Code Ann. § 56-1-1090(a) (2006), a person found to be an “habitual offender” as defined under S.C. Code Ann. § 56-1-1020 (2006) may not be issued a South Carolina driver’s license for a period of five years, unless the suspension period is reduced to two years as permitted by S.C. Code Ann. § 56-1-1090(c) (2006). Importantly, Section 56-1-1090(c) states in pertinent part:
[U]pon petition and for good cause shown, the department may restore to the person 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 one year has 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 department may reduce the five-year period of item (a) to a two-year period for good cause shown.
In late 2005, in response to the passage of Act No. 128, § 22, 2005 S.C. Acts 1503 (DMVH Act), and pursuant to the authority granted to it by Section 56-1-1090(c), the Department issued Department Policy VS-001. Among other things, it states that a habitual offender suspension reduction will be granted as long as certain enumerated conditions are met. One of the conditions listed is that the motorist must not have driven a motor vehicle since the beginning date of the habitual offender suspension.
In April 2004, Brian Livingston was found to be a “habitual offender” under Section 56-1-1020. In accordance with Section 56-1-1090(a), his driver’s license was suspended for a five year period beginning April 3, 2004 and ending April 3, 2009. On January 7, 2005, in response to Livingston’s request, the OAH sent Livingston information regarding the steps to petition for a habitual offender suspension reduction under Section 56-1090(c). Among the materials sent to Livingston were a Department-issued petition form and a Department-issued information requirement form. Sometime thereafter, Livingston completed the forms provided to him by the OAH. The DMVH received the completed forms from Livingston on April 12, 2006. On the Department-issued petition form, which Livingston signed, it stated: “The Petitioner respectfully alleges: . . . [t]hat he/she has completed and attached a copy of the habitual offender information requirement to this petition, and acknowledges and affirms that the information given is true complete (sic) to the best of his/her ability.” Included in the Department-issued information requirement form, which Livingston also signed, was the following question: “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.” Livingston did not include any information in the space provided under this question. Along with the petition form and the information requirement form, Livingston also included in his petition materials a copy of his ten-year driving record, which he requested from the Department on March 29, 2006. The most recent offense listed on Livingston’s March 29th driving record was a speeding violation that occurred on November 9, 2003.
On April 12, 2006, the DMVH issued a Notice of Hearing, which stated that a hearing regarding Livingston’s petition would be held on May 2, 2006 in North Myrtle Beach, South Carolina. In the caption of the Notice of Hearing, the Department was listed as the “Petitioner” and Livingston was listed as the “Respondent.” Both the Department and Livingston were served with a copy of the Notice of Hearing. The hearing was held, as scheduled, on May 2, 2006. At the hearing, among several other questions, the DMVH hearing officer asked Livingston how he got to and from work. Livingston stated that he relied on rides from friends and family. The DMVH hearing officer also asked Livingston what he had learned since being declared a habitual offender. Livingston stated that he had learned “respect for the law” and that it was safer for him “to abide by the law, not to be speeding.” Livingston also expressed regret for burdening his family and friends with his requests for rides to school, work and various community activities. At no point during the hearing did the hearing officer directly ask Respondent if he had driven during his habitual offender suspension. No representative or witness attended the hearing on behalf of the Department, and the Department did not submit any evidence to the DMVH.
On May 16, 2006, the DMVH hearing officer issued a Final Order and Decision in which he found that Livingston had shown good cause as to why his suspension should be reduced, and hence ordered that Livingston’s driver’s license be reinstated. In the caption of his Final Order and Decision, the DMVH hearing officer listed Livingston as the “Petitioner,” and made no reference to the Department. On May 18, 2006, the Department filed a Notice of Appeal with regard to this matter with the ALC. Attached to the Notice of Appeal was a copy of a Uniform Traffic Ticket that indicated that Respondent was charged by the Horry County Police Department with speeding on March 16, 2006. According to the Uniform Traffic Ticket, Respondent was found guilty of the offense on April 13, 2006.
ISSUES ON APPEAL
1. Did the DMVH incorrectly handle this as an ex parte matter?
2. Did the DMVH fail to follow the Department’s policy regarding qualifications for a habitual offender suspension?
STANDARD OF REVIEW
The DMVH is authorized by law to determine contested case hearings of the Department of Motor Vehicles. See S.C. Code Ann. § 1-23-660 (Supp. 2005). Therefore, appeals from the decisions of the DMVH are properly decided under the Administrative Procedures Act’s (APA) standard of review. In fact, Section 1-23-660 now provides that all appeals from decisions of the DMVH hearing officers must be taken to the ALC pursuant to the ALC’s appellate rules of procedure. Thus, the Administrative Law Judge sits in an appellate capacity under the Administrative Procedures Act (APA) rather than as an independent finder of fact. In South Carolina, the provisions of the APA — specifically Section 1-23-380(A)(5) — govern the circumstances in which an appellate body may review an agency decision. That section states:
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) (as amended by 2006 S.C. Act No. 387).
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). The well-settled case law in this state has also interpreted the “substantial evidence” rule to mean that 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)). Furthermore, the reviewing court is prohibited from substituting its judgment for that of the agency as to the weight of the evidence on questions of fact. Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995) (citing Gibson v. Florence Country Club, 282 S.C. 384, 386, 318 S.E.2d 365, 367 (1984)). Finally, 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.
Handling of Case as an Ex Parte Matter
First, the Department argues that the DMVH hearing officer erred by failing to include the Department in the caption of his order. The Department requests this Court to find that “the DMVH had no jurisdiction to order the [Department] to reduce [Livingston’s] habitual offender suspension because the DMVH failed to make the [Department] a party to the case.”
However, a review of the Record indicates that the Department was indeed made a party to, and notified of, the underlying proceeding. The Notice of Hearing, filed April 12, 2006, lists the Department in its caption. Moreover, the certificate of service for the Notice of Hearing states that it was served upon all parties to the action. Furthermore, the Department has not argued, and has not submitted any evidence to show, that it was not notified of the hearing. Therefore, because the Department was notified of the hearing, the fact that only Livingston attended the hearing is irrelevant for due process purposes. See Zaman v. S.C. State Bd. of Medical Examiners, 305 S.C. 281, 285, 408 S.E.2d 213, 215 (1991) (“One cannot complain of a due process violation if he has recourse to a constitutionally sufficient administrative procedure but merely declines or fails to take advantage of it.”).
Although it is true that the DMVH hearing officer failed to include the Department in the caption of his order, the Department has not pointed to any practical effect that this error caused. Based on the Department’s prompt filing of its Notice of Appeal, it appears that the Department was timely served with a copy of the hearing officer’s order. Therefore, the hearing officer’s omission was harmless error, and his order will not be reversed on this ground. See Walker v. Frericks, 292 S.C. 87, 95, 354 S.E.2d 915, 920 (Ct. App. 1987) (“This court will not reverse a judgment on the basis of harmless error.”).
DMVH’s Failure to Follow the Department’s Policy
Next, the Department argues that the DMVH hearing officer erred by failing to follow Department Policy VS-001. Specifically, the Department argues that Department Policy VS-001 required the hearing officer to ask Livingston whether he had driven during his habitual offender suspension. According to the Department, because the hearing officer failed to ask Livingston this question, reversal of the hearing officer’s order is required.
Section III (B)(4)(c) of Department Policy VS-001 states in pertinent part:
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.
Notably, nothing in Department Policy VS-001 requires a DMVH hearing officers to ask a motorist, sua sponte, if he has driven during his habitual offender suspension. In fact, in Section III(D)(1) of Department Policy VS-001, it states that a DMVH hearing officer must rely on Department records and the information provided on the sworn Habitual Offender Reduction Request Form VS-001 in making his decision. Even if the Department Policy VS-001 required the hearing officer to question a motorist regarding whether the motorist drove their vehicle during the suspension period, the Department can not apply Policy VS-001 as a “binding norm” unless it promulgates the Policy as a regulation. Home Health Serv., Inc. v. S.C. Tax Comm'n, 312 S.C. 328, 440 S.E.2d 375 (1994). Therefore, if the Department intended that the Policy be binding, its application would be invalid because the Policy was not promulgated in compliance with the Administrative Procedures Act. Captain's Quarters Motor Inn, Inc., v. South Carolina Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991). See also, Avant v. Willowglen Academy, 367 S.C. 315, 324, 626 S.E.2d 797, 802 (2006) (Toal, J., dissenting) (suggesting that the promulgation of rules as regulations is important because it avoids the creation of “secret law”).
Moreover, even if Department Policy VS-001 was a binding requirement, this issue has not been properly preserved for review. The Department did not attend the hearing and, thus, did not object to the hearing officer’s failure to ask Livingston if he had driven during the suspension period. Therefore, this issue is not properly before this Court. See Washington v. Whitaker, 317 S.C. 108, 451 S.E.2d 894 (1994) (“Unlike the federal courts, this Court does not recognize a “plain error” rule. Rather, it is well settled that a contemporaneous objection must be made to preserve an argument for appellate review.”); White v. Wilbanks, 298 S.C. 225, 379 S.E.2d 298 (Ct. App. 1989) (“Failure to make a contemporaneous objection makes the issue unavailable on appeal.).
Furthermore, the Uniform Traffic Ticket issued to Livingston was at no point submitted to the DMVH. Generally speaking, this Court will not consider any fact that does not appear in the Record. See ALC Rule 36(G). There are two exceptions to this general rule. First, a party may apply to this Court for leave to present additional evidence pursuant to S.C. Code Ann. § 1-23-380(A)(4) (2005). Second, in cases of alleged irregularities in procedure in the underlying agency proceeding, not shown in the Record, proof thereon may be taken in this Court. S.C. Code Ann. § 1-23-380 (A)(5) (2005). Here, the Uniform Traffic Ticket is not being offered to establish any alleged irregularity in procedure in the DMVH proceeding, nor has the Department moved for its consideration. Since neither exception exist in this case, it would be improper for this Court to reverse the DMVH hearing officer’s order based upon that evidence.
Therefore, based on my review of the evidence that is in the Record, I find no reason to reverse the DMVH hearing officer’s decision. As noted above, the Department-issued information requirement form that Livingston submitted to the DMVH does not indicate that Livingston had been charged with or convicted of any traffic violations during his habitual offender suspension. Moreover, the ten-year driving record that Livingston submitted to the DMVH similarly does not reveal any traffic infractions during the suspension period. Certainly, the DMVH hearing officer was justified in relying on the information contained in these two documents. See Department Policy VS-001, § III (D)(1). Although it is true that there is a gap in time between when a petition is filed and when the actual hearing takes place, a DMVH hearing officer may only consider the evidence that is presented to him. See Rule 501 SCACR, Canon 3(B)(7) commentary (“A judge must not independently investigate facts in a case and must consider only the evidence presented.”). Notably in this regard, there is nothing in Livingston’s testimony at the hearing that suggests that Livingston may have driven during his habitual offender suspension. In fact, his testimony implies just the opposite.
Although my decision may seem unjust in light of the fact that Respondent was not completely forthcoming in the information request form, the Department had several opportunities to avoid this result. For instance, the Department could have attended the hearing and offered the Uniform Traffic Ticket into evidence. Moreover, after the DMVH hearing officer issued his order, the Department could have filed an ALC Rule 29(D) motion to reconsider with the DMVH. Because of Respondent’s failure to include his March 16, 2006 speeding charge in the information request form, the granting of such a motion would have certainly been warranted.
Finally, it is important to note that the Appellant could face charges for perjury. See S.C. Code Ann. § 16-9-10 (2003). It is also important to note that my decision today only addresses the issue of whether the DMVH hearing officer committed error in reducing Respondent’s suspension. I have not been asked to address whether the Department is permitted to suspend Respondent’s license under other provisions of the motor vehicle code.
IT IS HEREBY ORDERED that the DMVH hearing officer’s Final Order and Decision is AFFIRMED.
AND IT IS SO ORDERED.
Ralph K. Anderson, III
Administrative Law Judge
December 21, 2006
Columbia, South Carolina