ORDER OF REMAND
STATEMENT OF THE CASE
Carolina Department of Motor Vehicles appeals from an Order of Dismissal of the
South Carolina Division of Motor Vehicle Hearings (DMVH) issued following a
hearing conducted pursuant to S.C. Code Ann. § 56-9-363 (Supp. 2007). The
Department claims that the DMVH hearing officer erroneously rescinded its
suspension of the vehicle registration privilege of Respondent Shena R. Gentry.
The Administrative Law Court (ALC) has jurisdiction over this matter pursuant
to S.C. Code Ann. § 1-23-660 (Supp. 2007). For the following reasons, the Order
of Dismissal is reversed, and this matter is remanded to the DMVH for a new
On October 1,
2007, the Department received a letter from Hennessy & Walker Group, P.C.,
a law firm representing State Farm, indicating that, on June 26, 2006, its
insured sustained $8,483.18 of damage as a result of a motor vehicle accident
involving Gentry’s vehicle. On October 11, 2007, the Department sent Gentry written
notice that, as a result of the accident, her vehicle registration privilege in
South Carolina would be suspended pursuant to S.C. Code Ann. § 56-9-351 (2006).
Gentry requested a hearing to challenge the suspension. The DMVH conducted a
hearing on January 7, 2008, and, on January 10, 2008, the hearing officer
issued an order purporting to dismiss the case pursuant to ALC Rule 23 while
rescinding Gentry’s suspension.
The hearing officer concluded that no evidence showed that Gentry had been
notified of the suspension within sixty days of the Department’s receipt of the
The DMVH is authorized by
law to determine contested cases arising from the Department. See S.C. Code
Ann. § 1-23-660 (Supp. 2007). 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. 2007); 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). Pursuant to S.C. Code Ann. § 1-23-380(B) (Supp. 2007), administrative law judges must conduct appellate review in the same manner prescribed
in Section 1-23-380(A). 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. 2007). 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 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
(b) in excess of the statutory authority of the
(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. 2007).
The hearing officer’s termination of Gentry’s
case adversely to the Department was based on his interpretation of S.C. Code
Ann. § 56-9-351 (2006), which provides in pertinent part:
Within sixty days of receipt of a report of a motor
vehicle accident within this State which has resulted in bodily injury or death
or damage to the property of any one person in the amount of two hundred
dollars or more, the Department of Motor Vehicles shall suspend the license of
each operator or driver if he is the owner of the motor vehicle involved in the
accident and all registrations of each owner of a motor vehicle involved in the
The Department argues that section
56-9-351 contains no language regarding the consequences if the Department
misses the sixty-day deadline and that, therefore, it is impermissible to
assume that the legislature intended the Department to lose its power to act
for failing to comply with the statutory time limit.
The Department is correct that the
lack of language imposing consequences for its failure to meet the sixty-day
deadline does not affect the Department’s power to suspend a driver’s license
or vehicle registration. See Johnston v. S.C. Dep’t of Labor,
Licensing, & Regulation, Real Estate Appraisers Bd., 365 S.C. 293, 617
S.E.2d 363 (2005) (failure to serve written notice of decision on licensee
within statutory time limit did not affect Board’s jurisdiction because statute
did not set forth consequences for failure to serve written notice of decision
within statutory time limit); S.C. Dep’t of Motor Vehicles v. Vera, 06-ALJ-21-0325-AP, 2007 WL 1365849 (April 9, 2007) (even if second
hearing officer had possessed authority to issue sua sponte order reversing
first hearing officer’s order for failure to issue it within statutory
deadline, second hearing officer’s order would still merit reversal because
statute did not set forth consequences for failure to issue order within
statutory time limit and it would be wrong to assume that legislature intended
for motorist to have license reinstated as result of such failure).
More importantly, when a motorist or
vehicle owner seeks a hearing under section 56-9-363, compliance with the
sixty-day deadline of section 56-9-351 is not part of the Department’s prima
facie case. Under the plain language of the statute, the only prerequisite for
suspending a license or registration is “receipt of a report of a motor vehicle
accident within this State which has resulted in bodily injury or death or
damage to the property of any one person in the amount of two hundred dollars
or more[.]” The sixty-day deadline pertains only to the manner in which the Department
must carry out its duty to suspend the license or registration. Therefore, the
Department does not have the initial burden of production, and the hearing
officer should not have terminated the case without a hearing based on a lack
of evidence regarding the sixty-day deadline.
Further, the sixty-day deadline does
not pertain to the notice that a motorist or vehicle owner must receive, but
rather it pertains to the amount of time within which the Department must
suspend the license. The last sentence of section 56-9-351 sets forth the
notice that the motorist or vehicle owner must receive:
Notice of the suspension must be sent by the
[D]epartment to the operator and owner at least ten days before the effective
date of the suspension and shall state the amount required as security.
Because the hearing officer
misconstrued section 56-9-351 by expanding its operation, his rescission of Gentry’s
suspension was based on an error of law. See Floyd v. Nationwide Mut. Ins. Co., 367 S.C. 253, 260, 626 S.E.2d 6, 10 (2005) (cardinal
rule of statutory interpretation is
to ascertain and effectuate the intention of the legislature); Cooper v. Moore, 351 S.C. 207, 212, 569 S.E.2d 330, 332 (2002) (where the terms of the statute are clear, the court must apply those terms
according to their literal meaning, without resort to subtle or forced construction
to limit or expand the statute’s operation). Therefore, the DMVH rescission of
the Department’s suspension must be reversed. See S.C.
Code Ann. §1-23-380(A)(5)(d) (Supp. 2007) (ALC may reverse or modify agency
decision if substantial rights of appellant have been prejudiced because administrative
conclusions are affected by error of law).
Accordingly, the DMVH’s order is
reversed and, because this case was summarily dismissed without a full hearing,
this matter is remanded to the DMVH for a new hearing.
IT IS THEREFORE
ORDERED that the DMVH’s “Order of Dismissal” is REVERSED, and that
this matter is remanded to the DMVH for a new hearing.
AND IT IS SO ORDERED.
JOHN D. GEATHERS
June 19, 2008 Administrative
Columbia, South Carolina 1205 Pendleton Street, Suite 224
Columbia, South Carolina 29201-3731