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”). The DMVH’s Final Order and Decision was issued following an administrative hearing held pursuant to S.C. Code Ann. § 56-1-1090(c) (Supp. 2006). The Department contends that the DMVH hearing officer erroneously reduced the driver’s license suspension for good cause of Respondent James Jovon Jackson (“Respondent”). The Administrative Law Court (“ALC” or “Court”) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2006). Upon consideration of the briefs, the DMVH’s Final Order and Decision is affirmed as set forth below.
Between March 2002 and August 2004, Respondent was convicted of multiple motor vehicle violations falling within the scope of S.C. Code Ann. § 56-1-1020(a), which include one speeding ticket and three occurrences of driving under suspension (DUS). The DUS violations resulted from Respondent’s failure to pay his traffic fine. On August 3, 2004, Respondent was found to be a “habitual offender” pursuant to § 56-1-1020. In accordance with S.C. Code Ann. § 56-1-1090(a), his driver’s license was suspended for a five-year period beginning October 13, 2004 and ending October 13, 2009.
On March 30, 2007, pursuant to S.C. Code Ann. § 56-1-1090(c) (Supp. 2006), Respondent filed a petition with the DMVH for a reduction of his habitual offender suspension. In the petition, Respondent admitted to having been young and reckless and stated that he has realized the need to put his priorities in order. Respondent acknowledged the need to mature, because he has missed precious time with his two children, and he needs a license in order to maintain his current employment. Along with his petition, Respondent submitted to the DMVH a copy of his ten-year driving record, which indicated that Respondent had not committed a motor vehicle offense since October 1, 2005, which occurred while serving his habitual offender suspension.
The DMVH notified the parties that an administrative hearing regarding Respondent’s petition would be held on May 2, 2007. On May 22, 2007, the Department had filed a Notice of Appeal, that referred to S.C. Code § 56-1-1090(c), Policy VS-001 and Guideline (B)(4)(c). The Department stated that § 1090(c) provided it the authority to determine the guidelines for granting sentence reductions, as set forth in Policy VS-00. Under Guideline (B)(4)(c), the Department also stated that Respondent was ineligible for a reduction because he was charged with a DUS while serving his habitual offender suspension.
The hearing was held, as scheduled, on May 2, 2007. At the hearing, the DMVH hearing officer admonished the Respondent for failure to pay outstanding traffic fines. The hearing officer emphasized this point by questioning Respondent regarding how Respondent may act in the future when faced with having to pay a fine. Respondent indicated that he has learned that he must pay any and all traffic fines. Respondent also stated, for the record, that he has never been convicted of a DUI or a controlled substance violation. Respondent testified that he has been employed for twenty-six (26) months, and he depends upon his mother, his brothers and his friends to drive him to work.
On May 4, 2007, the DMVH hearing officer issued a Final Order and Decision in which he ordered that Respondent’s habitual offender suspension be reduced. The Department now appeals.
ISSUE ON APPEAL
1. Did the DMVH hearing officer err in finding that the Respondent had made a showing of “good cause” pursuant to Section 56-1-1090?
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(A) (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). See S.C. Code Ann. § 1-23-380(B) (Supp. 2006) (directing Administrative Law Judges to conduct appellate review in the same manner prescribed in Section 1-23-380(A)). 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).
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). A decision will not be set aside simply because reasonable minds may differ on the judgment. Lark, 276 S.C. at 136, 276 S.E.2d 304, 307. 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)). 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.
Department Policy VS-001
Section 56-1-1090(c) states 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. 2006) (emphasis added). In 2005, the Department issued Department Policy VS-001. Section III(B)(4)(c) of Department Policy VS-001 states:
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.
The Department argues that, based on Respondent’s October 1, 2005 offense, the DMVH hearing officer’s reduction of Respondent’s habitual offender suspension violated Section III(B)(4)(c) of Department Policy VS-001 and therefore constituted error. According to the Department, the DMVH hearing officer was required to follow Department Policy VS-001 because Section 56-1-1090(c) “assigned to the [Department] the responsibility to set standards for the granting of [habitual offender suspension] reductions.”
On March 23, 2007, the ALC issued an En Banc Order addressing this very issue. See S.C. Dep’t of Motor Vehicles v. Cain, 06-ALJ-21-0790-AP (S.C. Admin. Law Ct. March 23, 2007). In that En Banc Order, the ALC held that Department Policy VS-001 does not have the force or effect of law, and that a DMVH hearing officer’s failure to follow Department Policy VS-001 does not per se constitute error. Pursuant to ALC Rule 70(F), the holding of the En Banc Order is binding upon all individual administrative law judges in all subsequent cases. Therefore, the DMVH’s Final Order and Decision will not be reversed on this ground.
The policy set forth by the State to regulate the driving behavior of habitual offenders seeks to maximize the safety of the State highways, while denying the privilege of driving where such conduct and record demonstrates a repeated indifference for the safety and welfare of others and the laws of this State. S.C. Code Ann. § 56-1-1010. Despite Respondent’s repeated offenses, which fall within the purview of this policy, the DMVH did not err in finding “good cause” where the driving record contained one speeding ticket (dating back six years) and several DUS incidences. The hearing testimony indicated that Respondent was not a danger to the safety of the State highways and that he was not indifferent to the requirement of complying with the laws of the State. Respondent stated that he realized the need to get his priorities in order, which included payment of current and future traffic fines.
The fact that Respondent violated S.C. Code Ann. § 56-1-1100 by operating a vehicle during the term of his habitual suspension did not foreclose any possibility of finding good cause. According to the laws of this State, the act itself is a felony punishable by imprisonment not more than five years, but such a violation is a matter the Department should raise with the solicitor or Attorney General. S.C. Code Ann. § 56-1-1100. The appeal currently before the Court, regarding whether the DMVH was in error for finding good cause, is wholly different. Under the circumstances of this appeal, the DMVH did not err by considering the DUS that occurred during the suspension among the other motor vehicle violations in determining whether the policy and laws of this State regarding habitual offenders could be observed while allowing a reduction of Respondent’s suspension.
IT IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is AFFIRMED.
AND IT IS SO ORDERED.
John D. McLeod
Administrative Law Judge
November 8, 2007
Columbia, South Carolina
A person found to be an habitual offender under the provisions of this article, who subsequently is convicted of operating a motor vehicle in this State while the decision of the Department of Motor Vehicles prohibiting the operation is in effect, is guilty of a felony and must be imprisoned not more than five years.
For the purpose of enforcing this section, in any case in which the accused is charged with driving a motor vehicle while his driver's license or permit is suspended or revoked or is charged with driving without a license, the department, before hearing the charges, shall determine whether the person has been adjudged an habitual offender and is barred from operating a motor vehicle on the highways of this State. If the person is found to be an habitual offender, the department shall notify the solicitor or Attorney General and he shall cause the appropriate criminal charges to be lodged against the offender. S.C. Code Ann. § 56-1-1100.