Thursday, October 23, 2014

SC Administrative Law Court Decisions

CAPTION:
Ann Marie Dermondy vs. SCDMV

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
Ann Marie Dermondy

Respondents:
South Carolina Department of Motor Vehicles
 
DOCKET NUMBER:
08-ALJ-21-0490-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

STATEMENT OF THE CASE

This matter is an appeal by Ann Marie Dermondy from a Final Order and Decision of the South Carolina Office of Motor Vehicle Hearings (OMVH).[1] The OMVH’s Final Order and Decision was issued following an administrative hearing held pursuant to S.C. Code Ann. § 56-1-1090(c) (Supp. 2007). Appellant contends that the OMVH hearing officer erred by denying her request for a reduction of her habitual offender suspension since the South Carolina Department of Motor Vehicles (Department) did not oppose the reduction. The Administrative Law Court (ALC or Court) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2008). Upon consideration of the briefs, the OMVH’s Final Order and Decision is affirmed as set forth below.

background

In 2005, Appellant was found to be a “habitual offender” pursuant to S.C. Code Ann. § 56-1-1020. In accordance with S.C. Code Ann. § 56-1-1090(a), Appellant’s driver’s license was suspended for a five-year period beginning May 27, 2005 and ending May 27, 2010. On July 12, 2005, after her habitual offender suspension had begun, Appellant was charged with Careless or Negligent Driving. She was convicted of that charge on August 25, 2005.

On July 10, 2008, pursuant to Section 56-1-1090(c), Appellant filed a petition (Petition) with the OMVH for a reduction of her habitual offender suspension. The Petition contained two parts. In Part One of the Petition, Appellant alleged that good cause existed for the reduction of her suspension since she had been “free of violations for a period in excess of two years from the date of the last violation.” In Part Two of the Petition, Appellant answered 14 different questions, the last of which was the following: “Have you been convicted of or charged with any traffic violation since being declared a Habitual Offender? If so provide dates, name of court and type of offense.” Under that question, Appellant listed a charge for Driving Under Suspension (5th) from August 2007 that did not result in a conviction. She did not list her August 25, 2005 conviction for Careless or Negligent Driving, although she did attach to the Petition her ten-year driving record, which included the conviction.

On July 18, 2008, the Department filed a letter with the OMVH that stated in pertinent part:

At this time, the Department is not aware of any reason why the Petitioner should not be granted a reduction. However, the Department hereby requests that the hearing officer ask the Petitioner, while under oath at the hearing, to verify the current truth of all facts and statements set out in the Petition that has been filed, seeking a reduction. In particular, it is requested that the hearing officer ask that the Petitioner verify the truth of the statement in Question 14 of Part Two of his [sic] Petition that he [sic] has not been convicted of or charged with any traffic violations since being declared a habitual offender.

A hearing regarding Appellant’s Petition was held on August 25, 2008 before an OMVH hearing officer. The sole evidence presented at the hearing was the following testimony:

Appellant’s attorney: Ms. Dermondy, you’ve submitted through me an answer and a petition and an . . . to request your license back and there was approximately . . . let’s see, there’s 14 questions asked and you provided the answers to those 14 questions in the petition labeled Part Two. Are these your correct answers?

Appellant: Yes, sir.

Appellant’s attorney: And are they true?

Appellant: Yes, sir.

Appellant’s attorney: And you’re here sworn under oath and you verify the truth of all those statements?

Appellant: Yes, sir.

On September 23, 2008, the OMVH hearing officer issued a Final Order and Decision in which she denied Appellant’s request for a reduction of her habitual offender suspension. Appellant now appeals.

ISSUE ON APPEAL

Was it error for the OMVH hearing officer to deny Appellant’s request for a reduction of her habitual offender suspension since the Department did not oppose the reduction?

STANDARD OF REVIEW

The OMVH is authorized by law to determine contested cases arising from the Department. See S.C. Code Ann. § 1-23-660 (Supp. 2008). Therefore, the OMVH is an “agency” under the Administrative Procedures Act (APA). See S.C. Code Ann. § 1-23-505(2) (Supp. 2008). As such, the APA’s standard of review governs appeals from decisions of the OMVH. See S.C. Code Ann. § 1-23-380 (Supp. 2008); 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 – including the ALC – to review agency decisions is provided by S.C. Code Ann. §1-23-380(5) (Supp. 2008). See S.C. Code Ann. § 1-23-600(E) (Supp. 2008) (directing administrative law judges to conduct appellate review in the same manner prescribed in § 1-23-380). 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 [of the agency] 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(5) (Supp. 2008).

Decisions regarding the existence of good cause are reviewed under an abuse of discretion standard. See, e.g., Melton v. Olenik, 379 S.C. 45, 54-55, 664 S.E.2d 487, 492 (Ct. App. 2008); Mauro v. Clabaugh, 299 S.C. 184, 191, 383 S.E.2d 244, 249 (Ct. App. 1989); Berry v. Ianuario, 286 S.C. 522, 526, 335 S.E.2d 250, 252 (Ct. App. 1985); Bradey v. Children’s Bureau of South Carolina, 275 S.C. 622, 624, 274 S.E.2d 418, 420 (1981); Planters Fertilizer & Phosphate Co. v. McCreight, 187 S.C. 483, 491, 198 S.E. 405, 408 (1938). The meaning of the phrase “abuse of discretion” has been explained as follows:

The term “abuse of discretion” has no opprobrious implication and may be found if the conclusions reached by the lower court are without reasonable factual support. We note, however, “[i]t is not always easy to determine when and if a trial judge has abused his discretion. Overly simplified, abuse of discretion involves the extent of disagreement. When an appellate court is in agreement with a discretionary ruling or is only mildly in disagreement, it says that the trial judge did not abuse his discretion. On the other hand, when the appellate court is in substantial or violent disagreement, it says that there has been an abuse of discretion.”

State v. Corey D., 339 S.C. 107, 118, 529 S.E.2d 20, 26 (2000) (quoting Rish v. Rish, 296 S.C. 14, 15-16, 370 S.E.2d 102, 103 (Ct. App. 1988)) (internal citations omitted). The burden is on the appellant to show that there is an abuse of discretion. Halverson v. Yawn, 328 S.C. 618, 621, 493 S.E.2d 883, 884 (Ct. App. 1997).

DISCUSSION

Appellant argues that the OMVH hearing officer erred by denying her request for a reduction of her habitual offender suspension because the Department did not oppose the reduction. The Court disagrees.

Pursuant to Section 56-1-1090(a), the length of a habitual offender suspension is five years, unless the suspension period is reduced to two years as permitted by Section 56-1-1090(c). Section 56-1-1090(c) provides in pertinent part:

[U]pon petition to the Division of Motor Vehicle Hearings and for good cause shown, the hearing officer may restore to [a person declared to be a habitual offender] the privilege to operate a motor vehicle in this State upon terms and conditions as the department may prescribe, subject to other provisions of law relating to the issuance of drivers’ licenses. The petition permitted by this item may be filed after two years have expired from the date of the decision of the department finding the person to be an habitual offender. At this time and after hearing, the hearing officer may reduce the five-year period of [subsection] (a) to a two-year period for good cause shown.

S.C. Code Ann. § 56-1-1090(c) (Supp. 2007).

The term “good cause” is not defined in the motor vehicle code, nor has it been defined by South Carolina’s appellate courts. Unfortunately, the term does not lend itself to a precise definition. Weiler v. Lutz, 501 N.W.2d 667, 671 (Minn. Ct. App. 1993); Bd. of Educ. of the Smyrna School Dist. v. DiNunzio, 602 A.2d 85, 94 (Del. Super. Ct. 1990); In re Marriage of Bennett, 938 S.W.2d 952, 957 (Mo. Ct. App. 1997). Generally speaking, “good cause” is “a cause or reason sufficient in law; one that is based on equity or justice or that would motivate a reasonable man under all the circumstances.” DeVries v. Rix, 279 N.W.2d 89, 95 (Neb. 1979) (quoting Webster’s Third New International Dictionary); see also Black’s Law Dictionary 213 (7th ed. 1999) (defining “good cause” as “a legally sufficient reason.”). The definition of good cause, however, “varies with the context in which it is used.” Zorrero v. California Unemployment Ins. Appeals Bd., 120 Cal. Rptr. 855, 858 (Cal. Ct. App. 1975). Its meaning “must be determined not only by the verbal context of the statute in which [the] term is employed but also by [the] context of the action and the procedures involved in the type of case presented.” In re Conservatorship of Estate of Marsh, 566 N.W.2d 783, 786 (Neb. Ct. App. 1997) (quoting Black’s Law Dictionary 692 (6th ed.1990)).

In determining the meaning of “good cause” with respect to reducing a habitual offender suspension, it is thus necessary to examine the purpose of the suspension. Cf. Marsh, 566 N.W.2d at 786 (“[T]he meaning of “good cause” to remove a conservator necessarily requires an examination of a conservator’s purpose and duties.”). According to S.C. Code Ann. § 56-1-1010(b) (2006), the objective of a habitual offender suspension is “[t]o deny the privilege of operating motor vehicles on [the public highways of this State] to persons who by their conduct and record have demonstrated their indifference to the safety and welfare of others and their disrespect for the laws of this State.” Therefore, in determining whether a reduction of a habitual offender suspension should be granted, tribunals should evaluate the likelihood that the motorist will, if granted a reduction, demonstrate an “indifference to the safety and welfare of others” or a “disrespect for the laws of this State.”

In this case, Appellant presented little evidence at the hearing to show good cause for a reduction of her habitual offender suspension. In fact, Appellant’s sole testimony at the hearing consisted of her verifying the accuracy of the contents of the Petition. While there is some information in the Petition that provides support for a finding of good cause, there is other evidence in the Record that does just the opposite. For instance, as the OMVH hearing officer noted in her decision, Appellant’s ten-year driving record shows that Appellant was charged with and convicted of Careless or Negligent Driving after her habitual offender suspension had commenced. Driving while under a habitual offender suspension is no small matter; it is a felony that is punishable by up to five years in prison. See S.C. Code Ann. § 56-1-1100 (2006). Moreover, Appellant did not expressly list this conviction under Question 14 of her Petition, nor did she mention it at the hearing when she attested to the veracity of the information contained in the Petition.

Furthermore, while it is true that the Department did not oppose the reduction, the authority to grant the reduction was vested in the OMVH hearing officer, not the Department. See S.C. Code Ann. § 56-1-1090(c) (Supp. 2007) (“At this time and after hearing, the hearing officer may reduce the five-year period of item (a) to a two-year period for good cause shown.”) (emphasis added). Since January 1, 2006, the OMVH and the Department have been completely separate and distinct entities. See S.C. Code Ann. § 1-23-660 (Supp. 2008). Thus, the statements made by the Department in its letter to the OMVH were not binding on the OMVH.

Moreover, the Department’s decision not to oppose the reduction may have been based on an erroneous assumption - derived from the Petition - that Appellant had not been convicted of any traffic violations since being declared a habitual offender. The Court notes that Section III(B)(4)(c) of Department Policy VS-001, which the Department issued in 2005, states that reductions should be denied to those who have driven during the habitual offender suspension period. See S.C. Dep’t of Motor Vehicles v. Hayes, 06-ALJ-21-0894-AP (S.C. Admin. Law Ct. September 7, 2007) (describing Section III(B)(4)(c) of Department Policy VS-001); see also S.C. Code Ann. § 56-1-1090(A)(1)(b) (Supp. 2008) (effective October 1, 2008) (setting as a condition for restoration of driving privileges by the Department that “the person must not have driven a motor vehicle during the habitual offender suspension period”). While Department Policy VS-001 was not binding on the OMVH hearing officer, it was certainly something that she was permitted to consider in making her decision. See S.C. Dep’t of Motor Vehicles v. Cain, 06-ALJ-21-0790-AP (S.C. Admin. Law Ct. March 23, 2007) (OMVH hearing officers may treat Department Policy VS-001 as a “non-binding guideline”).

In conclusion, Appellant has failed to demonstrate that the OMVH hearing officer abused her discretion by denying Appellant’s request for a reduction of her habitual offender suspension. Accordingly, the OMVH’s Final Order and Decision must be affirmed.

ORDER

IT IS THEREFORE ORDERED that the OMVH’s Final Order and Decision is AFFIRMED.

AND IT IS SO ORDERED.

______________________________

Ralph K. Anderson, III

Administrative Law Judge

February 19, 2009

Columbia, South Carolina



[1] Pursuant to 2008 S.C. Act No. 279, the name of the Division of Motor Vehicle Hearings was changed to the Office of Motor Vehicle Hearings effective October 1, 2008.


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