Thursday, October 23, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Timothy Phillip Reitano

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles

Respondents:
Timothy Phillip Reitano
 
DOCKET NUMBER:
06-ALJ-21-0914-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

STATEMENT OF THE CASE

This matter is an appeal by the South Carolina Department of Motor Vehicles (Department) from an Order of Dismissal of the South Carolina Division of Motor Vehicle Hearings (DMVH). The DMVH’s Order of Dismissal was issued following an administrative hearing held pursuant to S.C. Code Ann. § 56-5-2951 (2006 & Supp. 2006). The Department contends that the DMVH hearing officer erred by rescinding the driver’s license suspension of Respondent Timothy Phillip Reitano (Reitano). The Administrative Law Court (ALC or Court) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2006). Upon consideration of the briefs, the DMVH’s Order of Dismissal is reversed and this case is remanded as set forth below.

BACKGROUND

On May 18, 2006, Reitano was arrested for driving under the influence by Officer S.N. Gadsden of the South Carolina Department of Public Safety (Officer Gadsden). He was taken to a detention center for a DataMaster test. Pursuant to Section 56-5-2951(A), Reitano was issued a Notice of Suspension for refusing to submit to the DataMaster test.

On May 19, 2006, Reitano sent, via facsimile and U.S. mail, a letter to the DMVH requesting an administrative hearing to challenge his suspension. Reitano’s mailed letter, along with a check for the requisite filing fee, was received by the DMVH on May 23, 2006. A hearing was thereafter held on June 12, 2006 by DMVH Hearing Officer Kevin Patterson (DHO Patterson). However, DHO Patterson left his employment at the DMVH without issuing an order in the matter.

By an Order dated September 27, 2006, DMVH Director Marvin F. Kittrell (Director Kittrell) ordered that all of DHO Patterson’s pending cases be reassigned and heard or reheard. On October 2, 2006, the DMVH issued a Notice of Hearing, which stated that Reitano’s hearing would be held on October 31, 2006. The Notice of Hearing did not provide any explanation as to why the hearing would not be held within thirty days after the issuance of Director Kittrell’s Order. On October 16, 2006, the Department of Public Safety requested that the hearing be continued. Its request was granted, and the hearing was rescheduled for November 7, 2006. Subsequently, on November 6, 2006, the Department of Public Safety again requested a continuance. Its request was granted and the hearing was rescheduled for November 14, 2006.

The hearing was eventually held on November 14, 2006. At the beginning of the hearing, Reitano’s attorney orally moved to dismiss the case. He argued that the DMVH lacked jurisdiction in the matter for the following two reasons: (i) DHO Patterson failed to issue a final order within thirty days of the conclusion of the first hearing as required by S.C. Code Ann. § 56-5-2951(F) (Supp. 2006); and (ii) Reitano’s second hearing was not held within thirty days as required by § 56-5-2951(F). DMVH Hearing Officer Debra Tippit (DHO Tippit) stated that she would take the motion under advisement, and she ordered that the hearing go forward as scheduled.

On November 16, 2006, DHO Tippit issued an Order of Dismissal rescinding Reitano’s suspension. Although DHO Tippit determined that the DMVH still had jurisdiction in the case, she concluded that Reitano’s suspension should be rescinded “in the interest of fairness to all parties.” She explained:

[I]t has now been six months since the Respondent was issued the Notice of Suspension. Regardless of the requirements of the statute, clearly the intent of the legislature was to require these hearing to be held and decided in a timely manner. There may be situations where a time period of this length would be necessary and acceptable – such as by continuance requests from the Respondent – but this is not one of those situations.

The Department now appeals.

ISSUES ON APPEAL[1]

1. Did the provisions of S.C. Code Ann. § 56-5-2951(F) (Supp. 2006) relating to the issuance of final orders mandate the reinstatement of Reitano’s driver’s license?

2. Did the provisions of S.C. Code Ann. § 56-5-2951(F) (Supp. 2006) relating to the scheduling and holding of implied consent hearings mandate the reinstatement of Reitano’s driver’s license?

DISCUSSION

Summary of Applicable Law

The license to operate a motor vehicle upon the public highways of this State is not a right, but a mere privilege that is subject to reasonable regulations in the interests of public safety and welfare. State v. Newton, 274 S.C. 287, 294, 262 S.E.2d 906, 910 (1980); Summersell v. S.C. Dep’t of Pub. Safety, 334 S.C. 357, 366, 513 S.E.2d 619, 624 (Ct. App. 1999), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999); State v. Kerr, 330 S.C. 132, 149, 498 S.E.2d 212, 220-21 (Ct. App. 1998). This privilege is always subject to revocation or suspension for any cause relating to public safety. S.C. State Hwy. Dep’t v. Harbin, 226 S.C. 585, 595, 86 S.E.2d 466, 470 (1955). However, it cannot be revoked arbitrarily or capriciously. Id.

Consistent with these principles, the legislature enacted S.C. Code Ann. § 56-5-2950 (2006) and S.C. Code Ann. § 56-5-2951 (2006 & Supp. 2006). Section 56-5-2950 declares that a motorist arrested for DUI implicitly consents to a chemical test of his breath, blood or urine for the purpose of determining the presence of alcohol or drugs, and it requires that, at the direction of the arresting officer, a breath test be administered to a motorist so arrested. S.C. Code Ann. § 56-5-2950(a) (2006).[2] Section 56-5-2951, in turn, mandates that the driver’s license of a motorist who refuses to submit to a test required by Section 56-5-2950 be immediately suspended. See S.C. Code Ann. § 56-5-2951(A) (2006).

However, S.C. Code Ann. § 56-5-2951(B)(2) (2006) grants motorists the right to request an administrative hearing to challenge suspensions imposed pursuant to § 56-5-2951(A). A motorist who requests such a hearing may obtain a “temporary alcohol restricted license” by filing a form with the Department and paying a $100.00 fee. S.C. Code Ann. § 56-5-2951(B)(1) (2006). 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. Id.

Section 56-5-2951(F): Timeliness of DHO Patterson’s Final Order

Section 56-5-2951(F) states 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.

S.C. Code Ann. § 56-5-2951(F) (Supp. 2006).[3]

Reitano argues that because DHO Patterson did not issue a final order within thirty days after the conclusion of the first administrative hearing, Section 56-5-2951(F) mandates the reinstatement of his license. The Department, however, argues that the above-quoted portion of Section 56-5-2951(F) is not a jurisdictional requirement and that therefore reinstatement of Reitano’s license is not warranted. In making this argument, the Department cites 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). I agree with the Department.

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),[4] 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 within the requisite thirty-day time period. Once the appraiser made the Board aware of its error, the Board promptly gave the appraiser a copy of the Board’s written decision.[5] Thereafter, the appraiser appealed the Board’s decision. The Supreme Court ultimately held that the failure by the Board to comply with Section 40-60-150(C)(3) did not affect the Board’s jurisdiction. Rather, the court discerned 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). The Supreme Court then determined that the appraiser was not prejudiced by the Board’s failure to complete service within thirty days of the Board’s issuance of its decision, and it therefore remanded the case to the ALC for a ruling on the merits of the appraiser’s other claims. Id. at 298, 617 S.E.2d at 365.

Johnston dictates a similar result in this case. Similar to the intent of Section 40-60-150(C)(3), the purpose of Section 56-5-2951(F) is to speed the resolution of implied consent cases for the benefit of all parties involved, not just the motorist. As several courts have noted, the primary goal of implied consent statutes is to protect the public, not to punish individuals. See State v. Kerr, 330 S.C. 132, 150, 498 S.E.2d 212, 221 (Ct. App. 1998); State v. Price, 333 S.C. 267, 272, 510 S.E.2d 215, 218 (1998).[6] Under South Carolina law, as discussed above, a motorist who requests a hearing to challenge his administrative suspension may obtain a temporary alcohol restricted license that allows him to drive without any restrictive conditions pending the outcome of the hearing. S.C. Code Ann. § 56-5-2951(B)(2) (2006). Therefore, because of the dangers presented by those who drive while intoxicated,[7] the public, as represented by the Department, generally has an interest in the speedy resolution of implied consent cases. Certainly, from the Department’s perspective, the quicker that individuals who are guilty of violating the State’s implied consent laws are removed from public roadways and given treatment,[8] the better it is for public safety.

Furthermore, like Section 40-60-150(C)(3), Section 56-5-2951(F) does not include any language regarding the consequences of the DMVH’s failure to issue its decision within the statutory time limit. Therefore, there is no authority that supports the premise that the legislature, in cases such as this one, intended for the motorist to have his license reinstated. Moreover, the legislature, with regard to untimely initial hearings, did include language in Section 56-5-2951(F) mandating the reinstatement of the motorist’s license. Therefore, 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.

Reitano, however, argues that Johnston should not be followed here because the Johnston court “misapprehended” Starnes v. S.C. Dep’t of Pub. Safety, 342 S.C. 216, 535 S.E.2d 665 (Ct. App. 2000).[9] This argument is without merit. Johnston was decided by the Supreme Court, whereas Starnes was decided by the Court of Appeals. Thus, not only was the Johnston court under no obligation to follow the Starnes decision, it also had the authority to overrule the legal conclusions contained in the Starnes decision. In this Court’s view, this is exactly what the Johnston court did with respect to the second holding in Starnes.[10]

Additionally, the recent passage of Act No. 128, § 22, 2005 S.C. Acts 1503 (the DMVH Act)[11] 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 respect 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 based solely on an unaffiliated agency’s failure to comply with a statutory provision, even in cases where there is no evidence that the motorist suffered prejudice as a result of the non-compliance. In this Court’s view, such an outcome was not intended by the legislature.

Here, after the conclusion of Reitano’s first hearing, no written correspondence was issued by the DMVH to the parties for more than three months. Although this delay by the DMVH constituted more than a trivial violation of Section 56-5-2951(F), there is no evidence in the Record that Reitano suffered prejudice as a result of the delay. Generally speaking, in cases where a motorist obtains a temporary alcohol restricted license as discussed above, a delay in the issuance of a final decision by the DMVH will have little to no prejudicial effect on the motorist. Therefore, this Court concludes that Reitano was not prejudiced by DHO Patterson’s failure to issue a final order within thirty days after the conclusion of Reitano’s first hearing. Accordingly, rescission of Reitano’s suspension on this ground is not warranted. See Johnston, 365 S.C. at 298, 617 S.E.2d at 365.

Section 56-5-2951(F): Timeliness of Reitano’s Second Hearing

Reitano also argues that his second hearing was not timely held. After DHO Patterson left his employment at the DMVH without issuing a final order in the matter, Director Kittrell issued an Order reassigning the case to DHO Tippit. According to Reitano, that reassignment “effectively restarted the hearing process” for Reitano. Thus, Reitano maintains that the DMVH was required, within thirty days of the issuance of Director Kittrell’s Order, to either hold a hearing or issue a written order stating the reasons why the hearing would not be held within thirty days (and providing a schedule date for the hearing). Because the DMVH’s October 2, 2006 Notice of Hearing included no explanation as to why Reitano’s hearing would not be held within thirty days of the issuance of Director Kittrell’s Order, Reitano contends that Section 56-5-2951(F) mandated the reinstatement of his license.

Section 56-5-2951(F) 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.

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

Although Section 56-5-2951(F) sets forth a time limit for holding initial administrative hearings, it does not specifically address the situation involved here – i.e., where a second hearing is scheduled. The statute simply states that “an administrative hearing must be held within thirty days after the request for the hearing is received by the Division of Motor Vehicle Hearings.” Reitano’s first hearing was clearly held within that time frame. Thus, the argument that Reitano is making here is that his suspension should be rescinded based not on a time limit that is expressly set forth in § 56-5-2951(F), but on a time limit that Reitano contends should be read into § 56-5-2951(F). This Court disagrees.

As discussed above, the Supreme Court has concluded that a court should not assume that the legislature intended for an agency to lose its power to act for failing to comply with a statutory time requirement unless the statute at issue expressly provides for such a consequence. See Johnston, 365 S.C. 293, 617 S.E.2d 363 (discussed supra); cf. In re Matthews, 345 S.C. 638, 550 S.E.2d 311 (2001) (State’s failure to bring case to trial within sixty days of probable cause hearing as required by Sexually Violent Predator Act did not result in the trial court losing jurisdiction to hear the case). Similarly, this Court concludes that a court should not assume that the legislature intended for an agency to lose its power to act for failing to comply with a statutory time requirement unless the statute at issue expressly sets forth the time requirement. In this case, § 56-5-2951(F) did not expressly require that Reitano’s second hearing be held within thirty days of the date that Director Kittrell issued his Order. Accordingly, Reitano’s suspension should not be rescinded solely based on the DMVH’s failure to issue a written order explaining why Reitano’s second hearing was not held within that time frame. This Court is simply unwilling to hold that an allegedly implicit statutory time requirement that is not expressly set forth in the statute is jurisdictional in nature, especially in a case where public interests are at stake. See Brock v. Pierce County, 476 U.S. 253, 260 (1986) (“We would be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action, especially when important public rights are at stake.”); S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 522, 613 S.E.2d 544, 548-49 (Ct. App. 2005) (noting that the State has a “strong interest” in maintaining safe roads and explaining the important function that administrative suspensions serve); see generally Johnston, 365 S.C. at 297 n.2, 617 S.E.2d at 365 n.2 (South Carolina Supreme Court takes a “strict view” of subject matter jurisdiction).

Here, the DMVH issued its initial Notice of Hearing for the second hearing on October 2, 2006. This Notice of Hearing scheduled Reitano’s hearing for October 31, 2006, which was 34 days after Director Kittrell issued his Order. There is no evidence in the Record that, at any time between October 2, 2006 and November 14, 2006, the date on which the second hearing was ultimately held, Reitano sought to have the hearing rescheduled for an earlier date or sought an explanation from the DMVH as to the reason for the allegedly improper delay. There is also no evidence that Reitano challenged the DMVH’s granting of the Department of Public Safety’s October 16th or November 6th continuance requests. Furthermore, there is no evidence that Reitano was prejudiced by the DMVH’s failure to issue a written order explaining why his second hearing was scheduled for a date that was more than thirty days after the date on which Director Kittrell issued his Order.

For these reasons, this Court concludes that the fact that the DMVH originally scheduled Reitano’s second hearing for a date that was more than thirty days after the date on which Director Kittrell issued his Order does not warrant the rescission of Reitano’s suspension.

IT IS THEREFORE ORDERED that the DMVH’s Order of Dismissal is reversed, and that this case is remanded to DHO Tippit to issue a final decision on the merits of this matter.

AND IT IS SO ORDERED.

______________________________

Ralph King Anderson, III

Administrative Law Judge

December 11, 2007

Columbia, South Carolina



[1] As noted above, DHO Tippit dismissed this case “in the interest of fairness to all parties.” The DMVH is a statutory creation of the General Assembly, and only possesses those powers expressly provided or reasonably implied. See S.C. Code Ann. § 1-23-660 (Supp. 2006); Calhoun Life Ins. Co. v. Gambrell, 245 S.C. 406, 411-12 (1965). Consequently, setting aside the issue of a DMVH hearing officer’s apparent lack of authority to take equitable action, the relief given by a DMVH hearing officer based upon the concept of “fairness” must in turn be based upon some statutory authority or legal remedy found in equity. However, no statute grants a DMVH hearing officer the authority to dismiss a case solely based upon his or her determination of what is “fair.” Likewise, DHO Tippit cited no equitable theory to support her action. Moreover, even if an equitable theory existed, the tribunal must set forth facts to support the application of that remedy which are blatantly lacking in this case. In fact, in his brief, Reitano “concedes” that the ground given by DHO Tippit for rescinding his suspension is not supported by applicable case or statutory authority, and he offers no argument on the issue. Therefore, the merits of DHO Tippit’s ground for rescinding Reitano’s suspension will not be addressed by this Court. Rather, the additional sustaining grounds propounded by Reitano will be addressed.

[2] Blood and urine tests may be administered to motorists arrested for DUI only if certain other conditions are met. See S.C. Code Ann. § 56-5-2950(a) (2006).

[3] Prior to June 13, 2006, the relevant portion of Section 56-5-2951 read as follows: “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) (2006). Section 56-5-2951(F) was amended to reflect the passage of the DMVH Act, which is discussed infra at note 11.

[4] 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.”

[5] The appraiser learned of the Board’s error after discovering that his name had been posted on the Board’s website as being under suspension.

[6] Accord State v. Cassady, 662 A.2d 955, 958 (N.H. 1995) (“The primary goal of the administrative license suspension process is to remove irresponsible drivers from the State’s highways as quickly as possible to protect the public. . . . [T]he suspension of a driver’s license, when effected for this purpose, is not criminal punishment, but is remedial in nature.”); State v. Maze, 825 P.2d 1169, 1174 (Kan. Ct. App. 1992) (“Our State’s interest is to foster safety by temporarily removing from public thoroughfares those licensees who have exhibited dangerous behavior, which interest is grossly different from the criminal penalties that are available in a driving while under the influence prosecution.”); Lake v. Reed, 940 P.2d 311, 319 (Cal. 1997) (“We reiterate that the administrative per se laws are intended to provide an efficient mechanism whereby those persons who drive after consuming dangerous amounts of alcohol can have their driver’s licenses quickly suspended so as to ensure they will not endanger the public by continuing to drive.”).

[7] See State v. Martin, 275 S.C. 141, 146, 268 S.E.2d 105, 107 (1980) (noting that an individual who drives while intoxicated “presents a clear and present danger to the community”); Lydia v. Horton, 343 S.C. 376, 393, 540 S.E.2d 102, 111 (Ct. App. 2000) (noting that there is a “general understanding that driving while intoxicated presents an unreasonable risk of physical harm to the driver and others”), rev’d on other grounds, 355 S.C. 36, 583 S.E.2d 750 (2003).

[8] If the motorist’s administrative suspension is upheld at the hearing, he is statutorily required to enroll in an Alcohol and Drug Safety Action Program. See S.C. Code Ann. § 56-5-2951(H) (2006).

[9] In Starnes, the Court of Appeals held that: (1) the statutory time requirement for conducting an implied consent hearing was jurisdictional in nature; and (2) the statutory time requirement for issuing a final decision in an implied consent case was likewise jurisdictional in nature. Starnes, 342 S.C. 216, 535 S.E.2d 665.

[10] 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. 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)).

[11] Pursuant to the DMVH Act, the DMVH was created as a division of the ALC and, 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 Act No. 128, § 22, 2005 S.C. Acts 1503 (codified as amended at S.C. Code Ann. § 1-23-660 (Supp. 2006)).


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