ORDER OF REMAND
OF THE CASE
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.
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, 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v. South Carolina Department of Motor Vehicles, the suspension of your driver’s license is hereby rescinded.” The Department
the Department have standing to appeal an order of the DMVH?
this Court lack the authority to reverse the DMVH’s order?
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his hearing request, does the Court of Appeals’ decision in Starnes require that Opsahl’s suspension be rescinded?
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administrative hearing was held, does the Court of Appeals’ decision in Starnes require that Opsahl’s suspension be rescinded?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
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).
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
violation of constitutional or statutory provisions;
excess of the statutory authority of the agency;
upon unlawful procedure;
by other error of law;
erroneous in view of the reliable, probative, and substantial evidence on the
whole record; or
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).
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), 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).
the following reasons, I disagree with Opsahl. First, even assuming that the
APA’s definition of “person” applies to Section 56-5-2951(G), 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, 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.”
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.
Authority to Reverse the DMVH’s Order
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.
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, 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.
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.
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.
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.
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.
this Court will not, as Opsahl urges, affirm the DMVH’s Order without
addressing the substantive issues on appeal.
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. Importantly, the
Court of Appeals based its decision on two different grounds.
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.
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.
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.
Timeliness of Hearing
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, subsection (F) stated in pertinent part:
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
S.C. Code Ann. § 56-5-2951(F)
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.
Timeliness of Order
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, 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), 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.
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.
these reasons, I deem that Johnston, not Starnes, governs in this
Accordingly, the DMVH’s Order is hereby vacated and this case is remanded to
the DMVH for a new hearing.
IS HEREBY ORDERED that the DMVH’s Order is vacated and this case is
remanded to the DMVH for a new hearing.
IT IS SO ORDERED.
John D. McLeod
April 10, 2007
Columbia, South Carolina