Friday, June 22, 2018

SC Administrative Law Court Decisions

SCDMV vs. Shena R. Gentry

South Carolina Department of Motor Vehicles

South Carolina Department of Motor Vehicles

Shena R. Gentry





The South 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 The Department claims that the DMVH hearing officer erroneously rescinded its suspension of the vehicle registration privilege of Respondent Shena R. Gentry.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 hearing.


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.[1] 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 accident report.


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 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. 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 accident.

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).[2]

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[.]”[3] 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.




June 19, 2008 Administrative Law Judge

Columbia, South Carolina 1205 Pendleton Street, Suite 224

Columbia, South Carolina 29201-3731

[1] The case was brought by Gentry to challenge the suspension. As such, dismissal would procedurally be adverse to Gentry. However, the DMVH hearing officer acted on the case and reversed the Department by rescinding the suspension. Although the procedural disposition was therefore incorrect, for the sake of judicial economy, this court will interpret the order as terminating the case adversely to the Department pursuant to ALC Rule 23(A).

[2] Counsel for Gentry cites S.C. Dep’t of Highways & Pub. Transp. v. Dickinson, 288 S.C. 189, 341 S.E.2d 134 (1986) and Starnes v. S.C. Dep’t of Pub. Safety, 342 S.C. 216, 535 S.E.2d 665 (Ct. App. 2000) in support of the argument that the Department should not have the power to suspend privileges when it misses the deadline. However, the circumstances of those cases are distinguishable. Unlike Gentry’s case, Dickinson and Starnes involved the Department’s failure to provide a hearing within the statutorily-prescribed time period following the suspension of a driver’s license. In both cases, the appellate court indicated that the failure to provide the driver an opportunity to be heard within the designated time period after the suspension deprived the Department of jurisdiction to sustain the suspension.

[3] This interpretation of section 56-9-351 is consistent with the prior interpretations of this court in previous appeals before the ALC. See, e.g., S.C. Dep’t of Motor Vehicles v. Bradley, 2007 WL 3208694, 06-ALJ-21-0613-AP (Oct. 08, 2007) (in section 56-9-363 proceedings, Department bears burden of proof with respect to showing that vehicle was involved in accident in South Carolina resulting in bodily injury, death or damage to property of any one person in amount of $200 or more; once Department presents prima facie evidence, burden shifts to motorist to: (i) present evidence to rebut Department’s prima facie case; (ii) present evidence to show that one of exceptions set forth in section 56-9-352 applies; or (iii) prove that no reasonable possibility exists that civil court might enter judgment against him as result of accident in question); S.C. Dep’t of Motor Vehicles v. Morrow, 2007 WL 2509483, 06-ALJ-21-0741-AP (Aug. 07, 2007) (same).