VonHarten v. SCDMV

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

H. H. VonHarten, Appellant,

v.

South Carolina Department of Motor Vehicles,
Respondent.

Appellate Case No. 2015-001491

Appeal From The Administrative Law Court
Deborah Brooks Durden, Administrative Law Judge

Unpublished Opinion No. 2017-UP-018
Submitted October 1, 2016 – Filed January 11, 2017

AFFIRMED

James H. Moss, of Moss Kuhn & Fleming, PA, of
Beaufort, for Appellant.

Frank L. Valenta, Jr., Philip S. Porter, and Brandy Anne
Duncan, all of the South Carolina Department of Motor
Vehicles, of Blythewood, for Respondent.

PER CURIAM: H. H. VonHarten appeals the Administrative Law Court's (ALC)
order affirming the Office of Motor Vehicle Hearings' (OMVH) decision to sustain
the South Carolina Department of Motor Vehicles' (the Department) revocation of
VonHarten's driver's license and privileges. On appeal, VonHarten argues (1) the
ALC erred by affirming the admission of hearsay statements by a doctor under
Rule 803(4), SCRE, (2) the ALC erred by affirming the OMVH's failure to
consider reasonable, less restrictive alternatives to revocation, (3) the ALC
erroneously relied on a ten-year-old driving citation in concluding VonHarten was
unable to safely operate a vehicle, and (4) the OMVH erroneously gave greater
weight to a doctor's letters than other evidence showing VonHarten passed all state
requirements for licensing. We affirm pursuant to Rule 220(b), SCACR, and the
following authorities:

As to Issue 1: Jackson v. Speed, 326 S.C. 289, 305, 486 S.E.2d 750, 758 (1997)
("The improper admission of hearsay is reversible error only when the admission
causes prejudice."); id. ("Where the hearsay is merely cumulative to other
evidence, its admission is harmless.").

As to Issue 2: S.C. Code Ann. § 56-1-370 (Supp. 2016) (providing that upon
review of the Department's decision to suspend, cancel, or revoke a driver's
license, the OMVH "shall either rescind the [D]epartment's order of suspension,
cancellation, or revocation or, good cause appearing therefor, may continue,
modify, or extend the suspension, cancellation, or revocation of the license");
Sloan v. S.C. Bd. of Physical Therapy Exam'rs, 370 S.C. 452, 484-85, 636 S.E.2d
598, 615 (2006) ("The requirements of procedural due process, usually deemed to
apply in a contested case or hearing which affects an individual's property or
liberty interest, generally include adequate notice, the opportunity to be heard at a
meaningful time and in a meaningful way, the right to introduce evidence, the right
to confront and cross-examine witnesses whose testimony is used to establish facts,
and the right to meaningful judicial review."), overruled on other grounds by
Joseph v. S.C. Dep't of Labor, Licensing & Regulation, 417 S.C. 436, 790 S.E.2d
763 (2016).

As to Issues 3 and 4: S.C. Dep't of Motor Vehicles v. McCarson, 391 S.C. 136,
144, 705 S.E.2d 425, 429 (2011) ("When reviewing a decision of the ALC, this
[c]ourt's standard of review is governed by section 1-23-610 of the South Carolina
Code."); S.C. Code Ann. § 1-23-610(B) (Supp. 2016) ("The court [of appeals] may
not substitute its judgment for the judgment of the [ALC] as to the weight of the
evidence on questions of fact."); id. ("The court of appeals may affirm the decision
or remand the case for further proceedings; or, it may reverse or modify the
decision if the substantive rights of the petitioner have been prejudiced because the
finding, conclusion, or decision is: (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."); Friends of the Earth v. Pub. Serv. Comm'n of
S.C., 387 S.C. 360, 366, 692 S.E.2d 910, 913 (2010) ("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.").

AFFIRMED.1

LOCKEMY, C.J., and KONDUROS and MCDONALD, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.