Wednesday, April 16, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Robert Mark Opsahl

AGENCY:
South Carolina Department of Motor Vehicles,

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles

Respondent:
Robert Mark Opsahl
 
DOCKET NUMBER:
06-ALJ-21-0423-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER OF REMAND

STATEMENT OF THE CASE

This matter is an appeal by the South Carolina Department of Motor Vehicles (the “Department”) from an Order of the South Carolina Division of Motor Vehicle Hearings (“DMVH”). The Order was issued following an administrative hearing held pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (Supp. 2004). The Department contends that the DMVH hearing officer erroneously relied on Starnes v. S.C. Dep’t of Pub. Safety, 342 S.C. 216, 535 S.E.2d 665 (Ct. App. 2000) in rescinding the driver’s license suspension of Respondent Robert Mark Opsahl (“Opsahl”). Upon consideration of the briefs, the DMVH’s Order is vacated and this matter is remanded to the DMVH for a new hearing.

BACKGROUND

On December 17, 2005, Opsahl was arrested for driving under the influence. In connection with the arrest, Opsahl’s driver’s license was suspended pursuant to S.C. Code Ann. § 56-5-2951(A) (Supp. 2004) for refusing to submit to chemical testing. Thereafter, pursuant to Section 56-5-2951(B)(2), Opsahl requested an administrative hearing to challenge the suspension. The Department received Opsahl’s request on December 21, 2005. That same day, the Department issued a “Notice of Hearing” that stated that the hearing would be held on January 18, 2006. Because Opsahl’s attorney was scheduled to appear in municipal court on January 18, 2006, the DMVH, which, as of January 1, 2006, took over the Department’s responsibilities relating to the adjudication of contested case proceedings,[1] issued an “Order of Continuance and Notice of Hearing” on January 17, 2006 rescheduling the hearing for February 6, 2006. The hearing was held, as scheduled, on February 6, 2006. On March 21, 2006, the DMVH issued an Order, which stated: “As a result of the court ruling by the South Carolina Court of Appeals in Starnes v. South Carolina Department of Motor Vehicles,[2] the suspension of your driver’s license is hereby rescinded.” The Department now appeals.

ISSUES ON APPEAL

1.      Does the Department have standing to appeal an order of the DMVH?

2.      Does this Court lack the authority to reverse the DMVH’s order?

3.      Since Opsahl’s administrative hearing was held 47 days after the Department received his hearing request, does the Court of Appeals’ decision in Starnes require that Opsahl’s suspension be rescinded?

4.      Since the DMVH did not issue a final order within thirty days after Opsahl’s administrative hearing was held, does the Court of Appeals’ decision in Starnes require that Opsahl’s suspension be rescinded?

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. 2006).[3] 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. 2006).

DISCUSSION

Standing

Opsahl argues that the Department has no standing to appeal an order of the DMVH. In making this argument, Opsahl relies on S.C. Code Ann. § 56-1-286(P) (2006),[4] which provides that “[a]n administrative hearing is a contested proceeding under the Administrative Procedures Act, and a person has a right to judicial review pursuant to that act.” (emphasis added). Opsahl then points to Section 1-23-310(6) of the APA, which defines a person as “any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency.” (emphasis added). Opsahl in turn argues that the Department is an agency and therefore does not fall within the definition of “person” set forth in Section 1-23-310(6).

For the following reasons, I disagree with Opsahl. First, even assuming that the APA’s definition of “person” applies to Section 56-5-2951(G),[5] the Department does constitute a “person” under the APA. The Department is a public organization that is not an “agency,” as such term is defined in the APA. Section 1-23-310(2) of the APA defines the term “agency” to include those state boards, commissions, departments and officers, other than the legislature and non-ALC courts, “authorized by law to determine contested cases.” Pursuant to the DMVH Act,[6] as of January 1, 2006, the duties, functions and responsibilities of all of the Department’s hearing officers were transferred to the DMVH. Therefore, because the Department is no longer authorized to hear contested cases, it is no longer an “agency” under the APA. Accordingly, it falls within the APA’s definition of a “person.”

Second, finding that the Department does not have the right to appeal decisions of the DMVH with respect to hearings held pursuant to Section 56-5-2951(B)(2) would be inconsistent with other sections of the APA. Importantly, Section 1-23-380(A) of the APA grants the right to appeal final decisions in contested case hearings to aggrieved parties. Because the Department was a party to the underlying proceeding and was aggrieved by the DMVH’s Order, pursuant to Section 1-23-380, it has the right to appeal the DMVH’s Order. For these reasons, I find that the Department has standing to bring this appeal.

ALC’s Authority to Reverse the DMVH’s Order

Next, Opsahl argues that this Court does not have the authority to reverse the DMVH’s Order because the Department has failed to argue and, according to Opsahl, “[t]here is nothing in this record that remotely suggests” that substantial rights of the Department have been prejudiced. I disagree.

Pursuant to Section 1-23-380(A)(5), the ALC may reverse a decision of the DMVH where an error has caused (1) substantial rights of the appellant (2) to be prejudiced. With respect to the first requirement, the right of the Department, as a State agency, to implement the administrative suspension of a motorist who refuses to submit to chemical testing is a substantial right. This is because the State has a strong interest in maintaining the safety of its roads,[7] and the primary purpose of administratively suspending a motorist’s license for refusing to submit to chemical testing is to protect those who use such roads.[8]

Notably, in Mackey v. Montrym, 443 U.S. 1 (1979), the United States Supreme Court explained how, with respect to the Massachusetts implied consent law, a State’s interest in public safety is “substantially served” by the summary suspension of those motorists who refuse to submit to chemical testing:

First, the very existence of the summary sanction of the statute serves as a deterrent to drunken driving. Second, it provides strong inducement to take the breath-analysis test and thus effectuates the Commonwealth’s interest in obtaining reliable and relevant evidence for use in subsequent criminal proceedings. Third, in promptly removing such drivers from the road, the summary sanction of the statute contributes to the safety of public highways.

Mackey v. Montrym, 443 U.S. at 18. Similarly, the South Carolina Court of Appeals has also recognized the important function that such suspensions serve. See Nelson, 364 S.C. at 522, 613 S.E.2d at 548-49 (“Were drivers free to refuse alcohol and drug testing without suffering penalty, the current system of detecting, testing, and prosecuting drunk drivers would simply fail.”). Therefore, as the aforementioned cases make clear, the Department’s right to implement Opsahl’s administrative suspension is a substantial right.

With regard to the second requirement, if, as the Department argues, the hearing officer’s reliance on Starnes was erroneous, then there is no question that the Department was prejudiced as a result of this error.[9] South Carolina appellate courts have made clear that errors that affect the outcome of a case are prejudicial. See, e.g., State v. Davis, 371 S.C. 170, 638 S.E.2d 57 (2006) (remanding case for a new trial after determining that erroneous admission of hearsay testimony “almost certainly affected the result of the trial”); State v. Covert, 368 S.C. 188, 628 S.E.2d 482 (Ct. App. 2006) (remanding case after finding that legal error “could have reasonably affected the result of the trial”). Here, the hearing officer based his decision solely on Starnes. Therefore, it is clear that his reliance on Starnes affected the outcome of the case.

Accordingly, this Court will not, as Opsahl urges, affirm the DMVH’s Order without addressing the substantive issues on appeal.

Starnes

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[10] 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. Importantly, the Court of Appeals based its decision on two different grounds.

First, the Court of Appeals held that the Department of Public Safety lacked subject matter jurisdiction to sustain the suspension since it failed to convene the administrative hearing within the time period set forth in Section 56-5-2951(H). Starnes, 342 S.C. at 222, 535 S.E.2d at 668. At the time, Section 56-5-2951(H) stated in pertinent part: “An administrative hearing must be held within ten days after the request for the hearing is received by the department. However, upon a showing of exigent circumstances by either party, a continuance may be granted not to exceed thirty days.” Id. at 220, 535 S.E.2d at 667. Because the parties agreed that the motorist’s hearing did not occur within the statutory ten-day period and that neither party requested a continuance, the Court of Appeals affirmed the circuit court’s decision on this ground. Starnes, 342 S.C. at 220-22, 535 S.E.2d at 666-68.

Second, the Court of Appeals held that the Department of Public Safety also lacked subject matter jurisdiction to sustain the suspension since it failed to issue a written order to the motorist within thirty days after the administrative hearing was concluded, as was 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 on this ground as well. Id.

Here, it is not completely clear which Starnes holding the DMVH hearing officer relied upon in making his decision to rescind Opsahl’s suspension. Notably, the administrative hearing was held 47 days after the Department received Opsahl’s hearing request, and a final order was not issued within thirty days after the hearing was held. Therefore, because of this ambiguity, both Starnes holdings will be discussed in the context of this case.

A. Timeliness of Hearing

The current subsection of Section 56-5-2951 that sets forth the time period in which an administrative hearing must be held is subsection (F). At the time Opsahl requested his hearing,[11] subsection (F) stated in pertinent part:

An administrative hearing must be held within thirty days after the request for the hearing is received by the [Department of Motor Vehicles]. If the department does not hold the hearing within thirty days, a written order must be issued by the department within thirty days. The order must set forth the reasons why the hearing was not held within thirty days, and a new hearing must be scheduled. If the department does not issue a written order within thirty days or fails within thirty days to notify the defendant of a new hearing, the person must have his driver’s license, permit, or nonresident operating privilege reinstated.

S.C. Code Ann. § 56-5-2951(F) (Supp. 2004).

In this case, it is clear that the Department complied with Section 56-5-2951(F). The Department received Opsahl’s request for an administrative hearing on December 21, 2005. The very same day, the Department issued a Notice of Hearing that stated that the hearing would be held on January 18, 2006. Although an Order of Continuance and Notice of Hearing was issued on January 17, 2006 rescheduling the hearing for February 6, 2006, the Order of Continuance and Notice of Hearing was issued within thirty days of the Department’s receipt of Opsahl’s hearing request, and it explained why the hearing was being rescheduled. Moreover, the hearing was rescheduled at the request of Opsahl’s attorney. Therefore, the DMVH’s Order will not be affirmed on this ground.

B. Timeliness of Order

Section 56-5-2951(F) now sets forth the time period in which written orders must be issued. At the time Opsahl’s hearing was held,[12] Section 56-5-2951(F) 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.” S.C. Code Ann. § 56-5-2951(F) (Supp. 2004) (emphasis added). Notably, this is the exact same language that was evaluated by the Starnes court in making its second holding. Nevertheless, 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), it is this Court’s opinion that the second holding in Starnes is no longer good law and, therefore, it should not be followed here.

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 suspending the appraiser’s license and imposing a fine. Pursuant to S.C. Code Ann. § 40-60-150(C)(3) (Supp. 2004),[13] 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 to decide the matter. 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. Similar to Section 40-60-150(C)(3), Section 56-5-2951(F) does not include any language regarding the 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. 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 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 regard to those hearings. Thus, the Department of Public Safety was deprived of its power to implement 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 regard to those hearings. Thus, following Starnes in cases such as this one would mean depriving the Department of its power to implement 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), 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) (emphasis added). Thus, generally speaking, a delay in the issuance of a final order by the DMVH has little prejudicial effect on motorists.

For these reasons, I deem that Johnston, not Starnes, governs in this case.[14] Accordingly, the DMVH’s Order is hereby vacated and this case is remanded to the DMVH for a new hearing.[15]

order

IT IS HEREBY ORDERED that the DMVH’s Order is vacated and this case is remanded to the DMVH for a new hearing.

AND IT IS SO ORDERED.

______________________________

John D. McLeod

Administrative Law Judge

April 10, 2007

Columbia, South Carolina



[1] Pursuant to Act No. 128, § 22, 2005 S.C. Acts 1503 (the “DMVH Act”), as of January 1, 2006, “the duties, functions, and responsibilities of all hearing officers and associated staff” of the Department were transferred to the DMVH. See S.C. Code Ann. § 1-23-660 (Supp. 2005).

[2] The parties, as well as this Court, have assumed that the DMVH hearing officer was referring to Starnes v. S.C. Dep’t of Pub. Safety, 342 S.C. 216, 535 S.E.2d 665 (Ct. App. 2000).

[3] Pursuant to S.C. Code Ann. § 1-23-380(B) (Supp. 2006), administrative law judges must conduct appellate review in the same manner prescribed in Section 1-23-380(A).

[4] Section 56-1-286(P) is clearly not applicable to the present case. Nevertheless, this Court has assumed that Opsahl intended to cite S.C. Code Ann. § 56-5-2951(G) (2006), which contains an identical provision and which is applicable to the present case.

[5] Whether or not the legislature intended for the APA’s definition of “person” to apply to Section 56-5-2951(G) is unclear. Nonetheless, because Section 56-5-2951(G) refers to the APA and because the Uniform Act Regulating Traffic on Highways, S.C. Code Ann. §§ 56-5-10 – 56-5-6550 (1991 & Supp. 2004), does not define the term “person,” a review of the APA is, at the very least, helpful in interpreting Section 56-5-2951(G). See Branch v. City of Myrtle Beach, 340 S.C. 405, 532 S.E.2d 289 (2000) (holding that, where the meaning of a phrase in a statute is ambiguous, a court may look beyond that specific section in determining legislative intent).

[6] See supra at note 1.

[7] S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 522, 613 S.E.2d 544, 548 (Ct. App. 2005).

[8] State v. Price, 333 S.C. 267, 273, 510 S.E.2d 215, 219 (1998).

[9] Opsahl has not argued that rescission of his suspension was warranted for a reason other than the Court of Appeals’ decision in Starnes.

[10] Prior to 2003, the Department of Public Safety enforced Section 56-5-2951 suspensions. However, when the Department of Motor Vehicles was established in 2003, it assumed this duty, among many others. See Act No. 51, § 3, 2003 S.C. Acts 226 (adding S.C. Code Ann. § 56-1-5).

[11] Effective June 13, 2006, subsection (F) of Section 56-5-2951 was amended to reflect the passage of the DMVH Act (discussed infra at note 1). Section 56-5-2951(F) now states 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 thirty days, stating the reasons why the hearing was not held within thirty days, and providing a schedule date for the hearing. If the Division of Motor Vehicle Hearings does not issue a written order within thirty days or fails within thirty days to notify the person of a hearing date, the person must have his driver’s license, permit, or nonresident operating privilege reinstated.

See S.C. Code Ann. § 56-5-2951(F) (Supp. 2006).

[12] Effective June 13, 2006, Section 56-5-2951(F) was amended to state in pertinent part: “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 thirty days after the conclusion of the administrative hearing.” See S.C. Code Ann. § 56-5-2951(F) (Supp. 2006).

[13] S.C. Code Ann. § 40-60-150(C)(3) (Supp. 2004) stated in pertinent part: “The board shall render a decision and shall serve notice, in writing within thirty days, of the board’s decision to the applicant or appraiser charged.”

[14] The fact that the Johnston court did not expressly overrule the second holding in Starnes does not mean that it did not effectively overrule it. Notably, South Carolina courts have recognized that cases can be effectively overruled by subsequent inconsistent decisions even where they are not expressly overruled. See, e.g., Rose v. Thrash, 291 S.C. 459, 354 S.E.2d 378 (1987) (noting that Moyd v. Johnson, 289 S.C. 482, 347 S.E.2d 97 (1986), “effectively” overruled prior inconsistent cases); State v. Childers, 358 S.C. 614, 595 S.E.2d 872 (Ct. App. 2004) (recognizing that State v. Gandy, 283 S.C. 571, 324 S.E.2d 65 (1984), was “implicitly” overruled in part by Casey v. State, 305 S.C. 445, 409 S.E.2d 391 (1991)).

[15] The audio tape made of the original hearing could not be found by the DMVH. Therefore, due to the amount of time that has elapsed since the original hearing, this Court deems it appropriate to remand this case for a new hearing.


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