Monday, September 01, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Willie Eugene Foster

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles
 
DOCKET NUMBER:
06-ALJ-21-0097-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

STATEMENT OF THE CASE

This matter is an appeal by the South Carolina Department of Motor Vehicles (Department) from a Final Order and Decision of the South Carolina Division of Motor Vehicle Hearings (DMVH). The DMVH’s Final Order and Decision was issued in connection with an administrative hearing that it held pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006). The Administrative Law Court (ALC) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2005). Upon consideration of the Department’s brief,[1] the DMVH’s Final Order and Decision is reversed as set forth below.

BACKGROUND

“In South Carolina, operating a motor vehicle is a privilege of the State, not a right of the individual.” Taylor v. S.C. Dep’t of Motor Vehicles, 368 S.C. 33, 36, 627 S.E.2d 751, 753 (Ct. App. 2006). Consistent with this principle, S.C. Code Ann. § 56-5-2950(a) (2006) provides in pertinent part:

A person who drives a motor vehicle in this State is considered to have given consent to chemical tests of his breath, blood, or urine for the purpose of determining the presence of alcohol or drugs or the combination of alcohol and drugs if arrested for an offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs. A breath test must be administered at the direction of a law enforcement officer who has arrested a person for driving a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of alcohol and drugs.

Under S.C. Code Ann. § 56-5-2951(A) (2006), the license of a motorist who refuses to submit to the testing required under Section 56-5-2950(a) must be immediately suspended. However, under S.C. Code Ann. § 56-5-2951(B)(2) (2006), a motorist who has his license so suspended may request an administrative hearing to challenge the suspension. If such a hearing is requested, the scope of the hearing must be limited to whether the person: (1) was lawfully arrested or detained; (2) was advised in writing of the rights enumerated in Section 56-5-2950; and (3) refused to submit to a test pursuant to Section 56-5-2950. S.C. Code Ann. § 56-5-2951(F) (2006).

Importantly, 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. Pursuant to Act No. 128, 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.

FACTS

On November 5, 2005, Respondent was arrested for driving under the influence. He was transported to the Bamberg County Detention Center and was offered a breath test pursuant to Section 56-5-2950(a). Although Respondent attempted several times to blow into the breath test machine, he at no point blew enough air into the machine to provide a valid sample. The arresting officer deemed Respondent’s failure to provide a valid sample a refusal, and issued Respondent a written Notice of Suspension pursuant to Section 56-5-2951(A).

On December 1, 2005, pursuant to Section 56-5-2951(B)(2), Respondent filed a request for an administrative hearing with the Department. Four days later, on December 5, 2005, the Department issued an “Order and Notice” that stated: “Due to the Hearing Officer being unavailable within the thirty days as required by statute, it is hereby Ordered that this matter be scheduled for the first available date.” The Order and Notice thereafter stated that the hearing would be held on January 10, 2006 at the Bamberg DMV in Bamberg, South Carolina. The hearing was held, as scheduled, on January 10, 2006. At the beginning of the hearing, Respondent’s attorney made a motion to have Respondent’s driver’s license reinstated. In making this motion, Respondent’s attorney argued that, pursuant to Starnes v. S.C. Dep’t of Pub. Safety, 342 S.C. 216, 535 S.E.2d 665 (Ct. App. 2000), the DMVH lacked jurisdiction to hold the hearing since the hearing was not held within the thirty-day time period required by S.C. Code Ann. § 56-5-2951(F) (Supp. 2005). After Respondent’s attorney finished making this motion, the DMVH hearing officer stated that he would take it under advisement. He then proceeded with the hearing.

On February 17, 2006, the DMVH hearing officer issued a Final Order and Decision in which he found that Respondent: (i) was lawfully arrested; (ii) was advised in writing of his implied consent rights; and (iii) refused to submit to a breath test. Despite making these findings, the DMVH hearing officer ordered that Respondent’s suspension be rescinded. In doing so, the hearing officer stated:

The Respondent’s attorney made a motion to have his clients driver’s license reinstated based on a “Starnes Order”. . . It is possible that the respondent’s claims have merit, and the Starnes’ motion to dismiss will be granted, based on the preponderance of evidence presented and submitted by the respondent’s attorney. Accordingly, the relief requested by the Respondent’s attorney is granted.

The Department now appeals.[2]

ISSUE ON APPEAL

Did the DMVH hearing officer err in rescinding Respondent’s suspension based on the Court of Appeals’ decision in Starnes?

STANDARD OF REVIEW

The DMVH is authorized by law to determine contested case hearings of the Department of Motor Vehicles. See S.C. Code Ann. § 1-23-660 (Supp. 2005). Therefore, appeals from the decisions of the DMVH are properly decided under the Administrative Procedures Act’s (APA) standard of review. In fact, Section 1-23-660 now provides that all appeals from decisions of the DMVH hearing officers must be taken to the ALC pursuant to the ALC’s appellate rules of procedure. Thus, the Administrative Law Judge sits in an appellate capacity under the Administrative Procedures Act (APA) rather than as an independent finder of fact. In South Carolina, the provisions of the APA — specifically Section 1-23-380(A)(6) — govern the circumstances in which an appellate body may review an agency decision. That section states:

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)(6) (2005).

A decision is supported by “substantial evidence” when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68 (Ct. App. 1984). The well-settled case law in this state has also interpreted the “substantial evidence” rule to mean that a decision will not be set aside simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s findings from being supported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996); Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995).

In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996) (citing Kearse v. State Health and Human Servs. Fin. Comm’n, 318 S.C. 198, 200, 456 S.E.2d 892, 893 (1995)). Furthermore, the reviewing court is prohibited from substituting its judgment for that of the agency as to the weight of the evidence on questions of fact. Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995) (citing Gibson v. Florence Country Club, 282 S.C. 384, 386, 318 S.E.2d 365, 367 (1984)). Finally, the party challenging an agency action has the burden of proving convincingly that the agency’s decision is unsupported by substantial evidence. Waters, 321 S.C. at 226, 467 S.E.2d at 917.

DISCUSSION

The Department argues that the DMVH hearing officer erred by rescinding Respondent’s suspension based on the Starnes decision since Section 56-5-2951 was been amended after the Starnes decision was issued, and the Department fully complied with the current version of Section 56-5-2951 in scheduling the hearing. I agree.

In Starnes, the Department of Public Safety[3] suspended a motorist’s license pursuant to S.C. Code Ann. § 56-5-2951(A) (Supp. 1998) based on the results of a breath test that the motorist submitted to after being arrested for driving under the influence. The motorist thereafter requested an administrative hearing to challenge the suspension. The hearing was held two weeks after the motorist filed his hearing request with the Department of Public Safety. At the time, S.C. Code Ann. § 56-5-2951(H) (Supp. 1998), stated in pertinent part:

An administrative hearing must be held within ten days after the request for the hearing is received by the department. However, upon a showing of exigent circumstances by either party, a continuance may be granted not to exceed thirty days.

Starnes, 342 S.C. at 220, 535 S.E.2d at 667. Although the hearing was held after the ten-day statutory time period had expired and neither party had requested a continuance, the Department of Public Safety’s hearing officer sustained the suspension. The Court of Appeals held that the Department of Public Safety lacked subject matter jurisdiction to sustain the suspension since it failed to convene the administrative hearing within the time period set forth in Section 56-5-2951(H). Id. at 222, 535 S.E.2d at 668.

As mentioned above, the current subsection of Section 56-5-2951 that sets forth the time period in which an administrative hearing must be held is subsection (F). Though the statute reviewed in Starnes was the precursor to S.C. Code Ann. § 56-5-2951(F) (Supp. 2004), Section 2951 (F) nevertheless has different requisites than the previous version. At the time Respondent requested his hearing,[4] subsection (F) stated in pertinent part:

An administrative hearing must be held within thirty days after the request for the hearing is received by the [Department of Motor Vehicles]. If the department does not hold the hearing within thirty days, a written order must be issued by the department within thirty days. The order must set forth the reasons why the hearing was not held within thirty days, and a new hearing must be scheduled. If the department does not issue a written order within thirty days or fails within thirty days to notify the defendant of a new hearing, the person must have his driver’s license, permit, or nonresident operating privilege reinstated.

S.C. Code Ann. § 56-5-2951(F) (Supp. 2004).

In this case, it is clear that the Department complied with Section 56-5-2951(F). Notably, Respondent requested an administrative hearing on December 1, 2005. On December 5, 2005, the Department issued an “Order and Notice” that stated: “Due to the Hearing Officer being unavailable within the thirty days as required by statute, it is hereby Ordered that this matter be scheduled for the next available date.” The Order and Notice thereafter stated that the hearing would be held on January 10, 2006 at the Bamberg DMV. Thus, because the Department issued an Order and Notice within thirty days after receiving Respondent’s hearing request that set forth the reasons why the hearing would not be held within the thirty-day statutory time period and that properly notified Respondent of the scheduled hearing, there was no violation of Section 56-5-2951(F). Therefore, the DMVH hearing officer’s Final Order and Decision must be reversed.

order

IT IS HEREBY ORDERED that the DMVH hearing officer’s Final Order and Decision is reversed.

AND IT IS SO ORDERED.

______________________________

Ralph K. Anderson, III

Administrative Law Judge

November 13, 2006

Columbia, South Carolina



[1] Respondent failed to submit a brief for this appeal. However, this fact alone does not require this Court to find in favor of the Department. See ALC Rule 38; see also Rule 208(a)(4), SCACR. Nonetheless, in situations such as this one, this Court will not “search the record for reasons to affirm.” See Wierszewski v. Tokarick, 308 S.C. 441, 444, 418 S.E.2d 557, 559 n.2 (Ct. App. 1992).

[2] Strangely, on March 21, 2006, Respondent also filed a Notice of Appeal in this case. However, as of the date of this Order, Respondent has not filed any type of brief with this Court, nor has Respondent requested an enlargement of time to file his brief. Therefore, pursuant to ALC Rule 37(B)(1), this Court will not consider any of the issues that Respondent raised in his Notice of Appeal.

[3] Prior to 2003, the Department of Public Safety enforced Section 56-5-2951 suspensions. However, when the Department of Motor Vehicles was established in 2003, it assumed this duty, among others. See Act No. 51, § 3, 2003 S.C. Acts 226 (adding S.C. Code Ann. § 56-1-5).

[4] Effective June 13, 2006, subsection (F) of Section 56-5-2951 was amended to reflect the passage of Act No. 128, § 22, 2005 S.C. Acts 1503. Section 56-5-2951(F) now states in pertinent part:

An administrative hearing must be held within thirty days after the request for the hearing is received by the Division of Motor Vehicle Hearings. If the Division of Motor Vehicle Hearings does not hold the hearing within thirty days, the Division of Motor Vehicle Hearings must issue a written order within thirty days, stating the reasons why the hearing was not held within thirty days, and providing a schedule date for the hearing. If the Division of Motor Vehicle Hearings does not issue a written order within thirty days or fails within thirty days to notify the person of a hearing date, the person must have his driver’s license, permit, or nonresident operating privilege reinstated.

See Act No. 381, § 7, 2006 S.C. Acts 2923.