Tuesday, September 02, 2014

SC Administrative Law Court Decisions

CAPTION:
Glenn Evans Parker vs. SCDMV

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
Glenn Evans Parker

Respondents:
South Carolina Department of Motor Vehicles
 
DOCKET NUMBER:
07-ALJ-21-0146-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER
SCDL Number: 004452753

STATEMENT OF THE CASE

This 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.

BACKGROUND

The 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 pertinent part:

“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 ….”

Prior 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 these hearings.

HISTORY

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 reinstated.

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. Driver’s License.

FACTS

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

The 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:

(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.

Thus, 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).

ISSUE #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.[1]

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 the Petition.

AHO’s Decision was not clearly erroneous.

ISSUE #2 ON APPEAL

2. Was 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.

ISSUE #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 offender suspension.

CONCLUSION

There 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

discretion.

IT IS THEREFORE ORDERED, that the Order of AHO Tracy G. Holland is SUSTAINED.

________________________________

John D. McLeod, Judge

S.C. Administrative Law Court

January 8, 2008

Columbia, SC



[1] Appellant’s progress in his recovery from alcohol is to be commended but that, in the opinion of this Court does not rise to the level of good cause.


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