SCDL Number: 004452753
OF THE CASE
matter is before the Administrative Law Court (the “ALC” or “Court”) pursuant
to the appeal of the Appellant above named (Appellant) of the Order of the
South Carolina Division of Motor Vehicle Hearings (the “DMVH”), dated March 2,
2007. The DMVH’s Order was issued in connection with an administrative hearing
that was held pursuant to S.C. Code Ann. § 56-1-1090(c) (Supp. 2006), as
amended. The ALC has jurisdiction to hear this matter pursuant to S.C. Code
Ann. § 1-23-660 (Supp. 2005). Upon consideration of the record, the DMVH’s
Order is SUSTAINED.
license to operate a motor vehicle upon South Carolina’s public highways is not
a property right, but is a mere privilege subject to reasonable regulations in
the interests of public safety and welfare. Sponar v. S.C. Dep’t of Pub.
Safety, 361 S.C. 35, 39, 603 S.E.2d 412, 415 (Ct. App. 2004), cert.
granted on November 17, 2005 (quoting 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)). Consistent
with this principle, S.C. Code Ann. § 56-1-1090, as amended provides in
“No license to
operate motor vehicles in this State may be issued to an habitual offender …
(a) for a period of five years from the date of a final decision by the
Department of Motor Vehicles that a person is an habitual offender … (c) until,
upon petition and for good cause shown, the department may restore to the
person the privilege to operate a motor vehicle ….”
to January 1, 2006, the Department’s Office of Administrative Hearings held the
hearings requested under Section 56-5-2951(B)(2). However, in the summer of
2005, S.C. Code Ann. § 1-23-660 was extensively amended by Act No. 128, § 22,
2005 S.C. Acts 1503 (the “DMVH Act”). Pursuant to the amended Section 1-23-660,
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 S.C. Code
Ann. § 1-23-660 (Supp. 2005). Therefore, it is now the DMVH that conducts
On May 3, 2004, Appellant was again adjudicated as an
Habitual Offender under S.C. Code Ann. § 56-1-1020 (2006) with the five (5)
year suspension beginning January15, 2005 and ending January 15, 2010.
Thereafter, on January 9, 2007, after having served a suspension of less
than two (2) years, Appellant filed a Petition under S.C Code Ann §56-1-1090
seeking to have his S.C. Driver’s License restored and his privilege to drive
A hearing was held on February 28, 2007, by DMVH
Hearing Officer H. Phillip Hayes, Jr. (“AHO”). On March 2, 2007, the DHO issued
an Order, which denied Appellant’s Petition for reinstatement of his S.C.
On April 1, 1997, Appellant was adjudicated a “habitual
offender” pursuant to S.C. Code Ann. § 56-1-1020 (2006) with a five (5) year
suspension to begin on April 21, 1997 and end on April 21, 2002. While the
extent of Appellant’s ten (10) year driving record does not detail the major
offenses leading up to his first suspension, the driving record does indicate a
continued disregard for public safety and the laws of the State. Between
September 1997 and December 2004, Appellant was cited five times for Driving
Under Suspension (“DUS”), twice for Controlled Substance offense, twice
Controlled Substance violation, twice for Careless or negligent driving, and
once for Speeding 10 m.p.h. or less. Subsequently, on May 3, 2003, Appellant
was adjudicated a habitual offender for a second time with the suspension to
begin on January 15, 2005 and end on January 15, 2010.
On January 9, 2007, Appellant filed a petition pursuant to
section 56-1-1090(c) to request a hearing for a habitual offender suspension
reduction. In the petition, Appellant alleged good cause could be shown by his
two year residency at a recovery community, by witness affidavits that
indicated a transformation of his actions and priorities and by the need of a
license that would enable him to become a productive member of society.
The DMVH notified the parties that an administrative hearing
regarding Respondent’s petition would be held on February 28, 2007. The DMVH
hearing was attended by Appellant, his attorney, and two character witnesses.
In support of Appellant’s petition, the character witnesses testified to the
genuine kindness of Appellant that they have witnessed while living in the same
recovery facility. They stated that Appellant’s priority is to help others,
and that Appellant does not have criminal behaviors. Appellant testified in his
own behalf that a license would enable him to visit his family and to become a
more productive member of society.
On March 2, 2007, the DMVH hearing officer issued a Final
Order and Decision, which summarily held that Appellant’s hearing testimony was
insufficient as to his burden of proof for establishing good cause. The
Appellant now appeals.
STANDARD OF REVIEW
DMVH is authorized by law to determine contested case hearings of the
Department. See S.C. Code Ann. § 1-23-660 (Supp. 2005). Therefore, the
DMVH is an “agency” under the Administrative Procedures Act (APA). See S.C.
Code Ann. § 1-23-310(2) (2005). As such, appeals from the decisions of the
DMVH are properly decided under the APA’s standard of review. See S.C.
Code Ann. § 1-23-380(A) (2005); 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 to review agency decisions
is provided by S.C. Code Ann. § 1-23-380(A)(6) (2005), which states:
The court shall not substitute its judgment for that 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 if substantial rights of the appellant
have been prejudiced because the administrative findings, inferences,
conclusions or decisions are:
violation of constitutional or statutory provisions;
excess of the statutory authority of the agency;
upon unlawful procedure;
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
pursuant to the APA, this Court’s review is limited to deciding whether the DHO’s
Order is unsupported by substantial evidence or is affected by an error of law.
Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 581 (Ct. App.
2005). Substantial evidence is not a mere scintilla of evidence, nor the
evidence viewed blindly from one side of the case, but is evidence which,
considering the record as a whole, would allow reasonable minds to reach the
conclusion the agency reached in order to justify its action. Hargrove v.
Titan Textile Co., 360 S.C. 276, 289, 599 S.E.2d 604, 611 (S.C. Ct. App.
2004). The possibility of drawing two inconsistent conclusions from the
evidence does not prevent the agency’s findings from being supported by
substantial evidence. Id. at 290, 599 S.E.2d at 611. Importantly, the
party challenging an agency action has the burden of proving convincingly that
the agency’s decision is unsupported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996).
#1 ON APPEAL
1. Was the AHO’s denial of Appellant’s petition for reinstatement clearly
erroneous in view of the reliable, probative and substantial evidence in the
record as a whole?
The answer to this question is clearly in the negative. The
burden of proof was on the petitioner to show good cause why his driving
privilege should be reinstated. The “good cause” advanced by Petitioner are that
(1) helps others (ROA p.7) , (2) has changed his life through a recovery
program for alcoholics (ROA p.10); (3) wants to be able to see his elderly
mother (ROA p. 12); (4) wants to become a productive member of society (ROA p.
14); and (5) wants to visit his family (ROA p.14).
If the five items last mentioned constitute “good cause” to
reduce the five (5) year period of suspension under a habitual offender
suspension, then the period may just as well be reduced to two (2) years
instead of five because virtually every member of the population of the state
could make these or similar assertions.
The foregoing is bolstered by the policy considerations declared
by the Legislature when enacting the habitual Offender Statute, as follows:
It is hereby declared to be the policy of this State, set
forth under S.C. Code Ann. § 56-1-1010 (2006), that the habitual offender
statutes were promulgated to maximize highway safety by denying driving
privileges to those who demonstrate repeated indifference to the safety of
others as well as disrespect for the laws of the State
Appellant’s proof of just cause was clearly inadequate,
particularly when viewed in light of the fact that this was Appellant’s second
five (5) year suspension under the habitual offender law, which, in the opinion
of this Court, is sufficient reason standing alone to deny the relief sought by
AHO’s Decision was not clearly erroneous.
#2 ON APPEAL
the AHO’s denial of Appellant’s Petition for reinstatement clearly arbitrary,
capricious or characterized by abuse of discretion or clearly unwarranted
exercise of discretion?
AHO’s denial was not clearly arbitrary, capricious or
characterized by abuse of discretion or a clearly unwarranted exercise of
discretion for the same reasons set forth above in Issue #1.
#3 ON APPEAL
3. Did the Appellant make a showing of good cause for his driving
privileges to be restored after serving a little more than two (2) years of
the five (5) year suspension pursuant to to S.C. Code Ann. §56-1-1090 (c)?
For the reasons set forth above in Issue #1, Appellant has
failed to show good cause sufficient to reduce the length of his habitual
was clearly substantial evidence to support the findings of the DHO. The
decision was neither arbitrary and capricious nor clearly
erroneous in view of the
reliable, probative and substantial evidence on the whole record; nor
was it arbitrary or
capricious or characterized by abuse of discretion or clearly
unwarranted exercise of
IT IS THEREFORE ORDERED, that the Order of AHO
Tracy G. Holland is SUSTAINED.
D. McLeod, Judge
Administrative Law Court
January 8, 2008