Opinion
21-ALJ-21-0254-AP
05-25-2022
Ryan Patrick Smrz, Appellant, v. South Carolina Department of Motor, Respondent.
ORDER
SHIRLEY C. ROBINSON, ADMINISTRATIVE LAW JUDGE
STATEMENT OF THE CASE
This matter is before the South Carolina Administrative Law Court (ALC or Court) in its appellate jurisdiction pursuant to subsection l-23-660(B). S.C. Code Ann. §§ l-23-660(B) (Supp. 2021). Ryan Patrick Smrz (Appellant) seeks judicial review of a final decision rendered by the South Carolina Office of Motor Vehicle Hearings (OMVH) affirming the suspension of his motor vehicle license or driving privilege upon a habitual offender designation. Upon careful consideration of the Record on Appeal (Record), arguments advanced in the parties' briefs, and the applicable law, the Court affirms the OMVH's Final Order and Decision.
BACKGROUND
By letter dated December 10, 2015, the South Carolina Department of Motor Vehicles (Department) advised Appellant of his standing under the habitual offender law. The letter stated he had accumulated two major offenses and no minor violations. It also contained a list of major and minor violations. The letter continued by stating if Appellant was convicted of any additional major or minor violations that would classify him as a habitual offender, his driving privileges would be suspended for five years. As discussed below, Appellant was thereafter charged with a third violation: reckless driving.
By letter dated November 2, 2018, the South Carolina Department of Motor Vehicles (Department) advised Appellant he had been declared a habitual offender for having accumulated three violations in a three-year period. By letter dated November 30, 2018, Appellant requested an administrative case hearing as to the Department's declaration that he was a habitual offender.
Respondent's brief incorrectly states, "[a]nd the Court concluded that the Appellant's driver's record as; maintained by Respondent SCDMV meets the criteria of Habitual Offender ... Appellant timely requested a hearing which was held on March 18, 2021."
On March 18, 2021, a hearing was held. Appellant did not contest the violations but moved to rescind the suspension. Appellant's counsel argued the Department's warning letter of December 15, 2015, listed reckless driving as both a minor and major violation which led Appellant to believe that a first offense of reckless driving would be considered a minor violation and a second offense of reckless driving would be considered a major violation. Appellant's counsel continued by arguing that because reckless driving was listed as both a minor and major violation on the letter, it was reasonable for Appellant to construe the warning letter to mean that his first offense of reckless driving was only a minor violation. Appellant maintains if this were the case, Appellant would only have two major violations and one minor violation within the prescribed three-year period and would not meet the criterion for Appellant to be declared a habitual offender. On June 17, 2021, the OMVH hearing officer issued a final order and decision rejecting Appellant's arguments and concluding the Department properly declared Appellant a habitual offender. On July 16, 2021, Appellant served his Notice of Appeal with this Court.
Appellant requested and was granted continuances from three prior hearing dates on January 10, 2019, March 5, 2020, and March 19, 2020.
Appellant offered no testimony as to how he construed the letter or to support his attorney's argument that Appellant pleaded guilty to reckless driving thinking it would be a minor violation. While not relevant to the appeal, the Court notes that Appellant was actually charged with driving while under the influence, first.
On August 13, 2021, the Record was filed. While neither party noticed, the Record evidenced multiple documents involving another individual with an OMVH case number different than the one in this case. On May 17, 2022, the Court issued an order for an Amended Record on Appeal. On May 18, 2022, an Amended Record on Appeal was filed.
On November 22, 2021, Appellant filed his brief. On December 10, 2021, the Department filed its brief. Both parties violated SCALC Rule 37(B)(2) and (3) by not providing a complete statement of the case or referencing the Record.
STANDARD OF REVIEW
The OMVH is authorized by statute to determine contested cases including, inter alia implied consent proceedings. S.C. Code Ann. § 1-23-660 (Supp. 2021). Therefore, the OMVH is an "agency" under the Administrative Procedures Act (APA). S.C. Code Ann. § 1-23-310(2) (Supp. 2021); S.C. Dep't of Motor Vehicles v. Holtzclaw, 382 S.C. 344, 347, 675 S.E.2d 756, 758 (Ct. App. 2009) ("[t]he DMVH [subsequently renamed OMVH] is an agency under the [APA]."). Accordingly, the APA's standard of review governs appeals from its decisions. See S.C. Code Ann. §§ 1-23-380 and l-23-600(D) (Supp. 2021); Gibson v. Florence Country Club, 282 S.C. 384, 386, 318 S.E.2d 365, 367 (1984). When acting in its appellate capacity, the Court's review is generally limited to the Record on Appeal. S.C. Code Ann. § 1-23-380(4) (Supp. 2021); see also SCALC Rule 36(G) ("The Administrative Law Judge will not consider any fact which does not appear in the Record."). Additionally, subsection 1-23-380(5) of the South Carolina Code (Supp. 2021) provides the standard used by appellate bodies to review agency decisions. See S.C. Code Ann. § 1-23-600(E) (Supp. 2021) (directing administrative law judges to conduct appellate review in the same manner prescribed in section 1-23-380). Pursuant to this standard:
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. § l-23-380(5)(a)-(f).
The South Carolina Supreme Court has observed that "[substantial evidence is not a mere scintilla; rather, it is evidence which, considering the record as a whole, would allow reasonable minds to reach the same conclusion as the agency." Friends of the Earth v. Pub. Serv. Commission of S.CL, 387 S.C. 360, 366, 692 S.E.2d 910, 913 (2010) (citation omitted). See also Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68 (Ct. App. 1984). 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)). The party challenging an agency action has the burden of proving convincingly that the agency's decision is unsupported by substantial evidence. Waters, at 226, 467S.E.2dat917.
Nevertheless, this Court owes no particular deference to the fact finder when matters of law are at issue. See Flexon v. PHC-Jasper, Inc., 413 S.C. 561, 569, 776 S.E.2d 397, 402 (Ct. App. 2015) ("This court [Court of Appeals] reviews questions of law de novo.") (quoting Proctor v. Steedley, 398 S.C. 561, 573, 730 S.E.2d 357, 363 (Ct. App. 2012)). It is axiomatic that the ALC may reverse on errors of law. E.g., Olsen v. S.C. Dep't of Health & Envtl. Control, 379 S.C. 57, 63, 663 S.E.2d 497, 501 (Ct. App. 2008) (finding that an appellate court can reverse a lower court's decision "[i]f the findings are affected by error of law, are not supported by substantial evidence, or are characterized by abuse of discretion or clearly unwarranted exercise of discretion."). If a decision is affected by an error of law, properly raised by a party, the Court will not hesitate to correct it. See also S.C. Dep't of Revenue v. Blue Moon of Newberry, 397 S.C. 256, 260, 725 S.E.2d 480, 483 (2012).
ISSUE
Whether the OMVH hearing officer properly sustained the Department's determination that Appellant is a habitual offender.
DISCUSSION
Section 56-1-1020 defines a "habitual offender" as:
[A]ny person whose record as maintained by the Department of Motor Vehicles shows that he has accumulated the conviction for separate and distinct offenses described in subsections (a), (b), and (c) committed during a three-year period; provided, that where more than one included offense shall be committed within a one-day period such multiple offense shall be treated for the purposes of this article as one offense.S.C. Code Ann. § 56-1-1020 (2018). While section 56-1-1020 does not specifically reference "major" and "minor" violations, subsection 56-1-1020(a) outlines those violations upon which three or more convictions lead a driver to be declared a habitual offender. Subsection 56-1-1020(b) sets forth those offenses which require ten or more convictions for a person to be deemed a habitual offender.
Subsection 56-1-1020(a) which outlines "major" violations specifically includes "Driving or operating a motor vehicle in a reckless manner" in subsection 56-l-1020(a)(3), and "Driving a motor vehicle while his license, permit, or privilege to drive a motor vehicle has been suspended or revoked, except a conviction for driving under suspension for failure to file proof of financial responsibility" in subsection 56-1-1020(a)(4).
Subsection 56-1-1020(b) which sets forth "minor" violations includes "moving violations ... for which four or more points are assigned pursuant to Section 56-1-720 or which are enumerated in subjection (a) of this section." Section 56-1-720 assesses six points for a reckless driving violation. S.C. Code Ann. § 56-1-720 (Supp. 2021). Thus, a plain reading of the statute evidences that reckless driving can be considered a "major" violation under subsection 56-1-1020(a) or a "minor" violation under subsection 56-l-1020(b).
According to the Record, Appellant was convicted of three "separate and distinct offenses" within a three-year period: (1) a conviction on April 29, 2015 for a driving under suspension violation on March 30, 2015; (2) a conviction on November 25, 2015 for a driving under suspension violation on November 6, 2015; and (3) a conviction on October 31, 2018 for reckless driving after a violation on December 17, 2017. The Department established a prima facie case that Appellant was a habitual offender under section 56-1-1020.
At the hearing, Appellant did not challenge the convictions but rather, argued the verbiage of the Department's letter of December 10, 2015, is ambiguous in that it lists reckless driving as both a minor and major offense and states a review of the letter would lead one to believe that a first offense of reckless driving is a minor violation and subsequent ones are major violations. Appellant implicitly argues the letter of December 10, 2015, is vague or ambiguous and maintains it should be construed against the drafter.
Even if an ambiguity existed, the principle of construing it against the drafter would be inapplicable as the letter does not constitute a contract.
In accordance with section 56-1-1020, reckless driving can be considered both a "major" violation that can trigger habitual offender status after three convictions based upon the point value assessed for reckless driving, and a "minor" violation that can trigger habitual offender status after ten convictions. Appellant's interpretation that only a second reckless driving conviction is a "major" violation is not consistent with the language of section 56-1-1020. Enos v. Doe, 380 S.C. 295, 669 S.E.2d 619 (2008) (the words of a statute must be given their plain and ordinary meaning). Appellant's interpretation of the letter is further undermined by a paragraph in the letter under the heading of "MAJOR VIOLATIONS" and titled, "Subsequent offenses of." The only offense that is listed that requires a subsequent offense in order to be considered a "major" violation, is one of "Failure to Stop for Blue Light;" reckless driving is not listed under this heading.
Without recitation to supporting authority, Appellant also argues "[he] relied, and reasonably so, on this notice to his detriment and [the Department] should be estopped and prevented from contending otherwise." The Department did not address this argument. As an initial matter, the Court finds the letter was neither ambiguous nor contained incorrect statements. However, even if it was, estoppel cannot be had against the Department under the facts of this case. As a general rule, estoppel does not lie against the government to prevent the due exercise of its police power or to thwart the application of public policy. Grant v. City of Folly Beach, 346 S.C. 74, 80, 551 S.E.2d 229, 232 (2001). This does not mean that estoppel cannot apply against a government agency. Id. To establish estoppel against the government, the relying party must prove (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question, (2) justifiable reliance upon the government's conduct, and (3) a prejudicial change in position. Midlands Utility, Inc. v. S.C. Dep't of Health and Envtl. Control, 298 S.C. 66, 378 S.E.2d 256 (1989). Absent even one element, estoppel will not lie against a government entity. Morgan v. S.C. Budget and Control Bd., 377 S.C. 313, 659 S.E.2d 263 (2008).
Appellant bears the burden of proving a lack of knowledge and the means of knowledge of the truth as to the facts in a question. Here, Appellant had the means to determine the truth: he could have reviewed the statutory scheme. Citizens are presumed to know the law and are charged with exercising reasonable care to protect their interests. Morgan v. S.C. Budget and Control Bd., supra. Finally, estoppel will not lie against a government entity where erroneous information is given in contradiction of a statute. Quail Hill, LLC v. Cty. Of Richland, 387 S.C. 223, 692 S.E.2d 499(2010).
As to the second and third elements, Appellant claims he detrimentally relied upon the letter of December 10, 2015, in pleading guilty to reckless driving and was thereby prejudiced as he believed such a conviction would not result in him being declared a habitual defender. Appellant offered no testimony or other evidence of this at the hearing before the OMVH. however. Argument of counsel is not evidence and standing alone, provides no support for a finding of fact. Shinn v. Kreul, 311 S.C. 94, 427 S.E.2d 695 (Ct. App. 1993). See also Gilmore v. Ivey, 290 S.C. 53, 58, 348 S.E.2d 180, 184 (Ct. App. 1986) (A court cannot consider facts appearing only in argument of counsel).
ORDER
Based on the foregoing, IT IS HEREBY ORDERED that the Final Order and Decision of the Office of Motor Vehicle Hearings is AFFIRMED.
AND IT IS SO ORDERED.