MARIETTA GARAGE v. Dept. of Public Safety
| Citation | 522 S.E.2d 605,337 S.C. 133 |
| Decision Date | 07 September 1999 |
| Docket Number | No. 3044.,3044. |
| Court | South Carolina Court of Appeals |
| Parties | MARIETTA GARAGE, INC., Appellant, v. SOUTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Respondent. |
Robert C. Childs, III, of Mitchell, Bouton, Duggan, Yokel & Childs, of Greenville, for appellant.
Ronald K. Wray, II, of Gibbes, Gallivan, White & Boyd, of Greenville, for respondent.
Marietta Garage, Inc. (Marietta) seeks reversal of the South Carolina Department of Public Safety's (the Department's) decision to remove Marietta from the wrecker rotation list established through the South Carolina Highway Patrol (SCHP). The circuit court upheld the Department's decision. Marietta appeals. We affirm in part and reverse in part.
The Department's SCHP division maintains a rotation list of wreckers complying with certain regulations. The list is divided into zones. Marietta held a spot on zone five's rotation list and used Fender Mender's lot on 205 North Pleasantburg Drive in Greenville, South Carolina, as a storage location. Upon placement on the rotation list, Marietta received and signed a letter outlining the Department's sanction procedure. The letter stated that if the Department received a complaint against a wrecker service, written notice would be provided to the wrecker service, and it would have an opportunity to request an administrative hearing. The letter stated that no sanction would begin earlier than fifteen days after notice.
On or about February 8, 1996, Chris Busha had a car accident. Marietta answered SCHP's call to tow the vehicle. Pritchett, Marietta's president, testified he towed Busha's car to the Pleasantburg Drive location but upon arrival found the locks changed and Marietta's sign taken down. Pritchett then took Busha's car to Marietta's home office in Marietta, South Carolina.
Busha's mother called SCHP to locate Busha's car. SCHP told her Marietta towed Busha's car to the Pleasantburg Drive location. When Busha's mother went to retrieve the car, Fender Mender's owner, Jeff Ryback, told her Marietta no longer parked cars at the Pleasantburg Drive lot and that Marietta towed Busha's car to Marietta, South Carolina. On February 15, 1996, Busha's mother filed a formal complaint against Marietta for towing the car outside zone five and charging excessive fees.
Lieutenant Darrell Green Kimbrell coordinated the wrecker services for zone five. On February 15, 1996, he went to the Pleasantburg Drive location to investigate Busha's complaint. Kimbrell spoke with Ryback, who confirmed Marietta no longer used the lot for storing towed cars. Kimbrell then told SCHP's dispatcher to "flag" Marietta and cease calling it until the issue was resolved. Kimbrell never called Marietta to resolve the problem.
On February 20, 1996, Kimbrell wrote a memo to Captain Reid informing him of Busha's complaint and of the determination that Marietta no longer maintained a physical location in zone five. On February 23, 1996, SCHP drafted a letter advising Marietta that its Pleasantburg location was removed from the wrecker rotation list effective February 16, 1996, for failing to maintain a storage location within the zone as required by regulation. Kimbrell testified that when he delivered the letter to Pritchett, Pritchett never mentioned any other locations in zone five. Kimbrell and Captain Reid conceded the regulations do not explicitly require notifying SCHP of a change in address but testified any new location must be inspected and approved by SCHP. Pritchett testified he first learned Fender Mender locked Marietta out the night he attempted to tow Busha's car to the Pleasantburg Drive location. Pritchett testified he immediately attempted to procure a new location in zone five. Although Pritchett admits the regulations require maintaining a storage location within a zone in order to remain on the rotation list, Pritchett never informed SCHP it lost its Pleasantburg Drive location. Pritchett testified he had two other locations "lined up" in zone five when he received the Department's removal letter but never notified the Department of the locations and never requested an inspection even though he knew the Department required inspections for new locations.
Marietta appealed the decision removing it from the wrecker rotation list. On June 10, 1996, SCHP conducted an administrative hearing and upheld Marietta's removal. On November 26, 1996, Colonel Caulder of the Department upheld the administrative decision removing Marietta from zone five's rotation list.
Marietta filed suit alleging the Department violated Marietta's state and federal procedural due process rights and acted with gross negligence in removing Marietta from the rotation list without a pre-removal hearing. The complaint also appealed SCHP's administrative hearing. The Department denied the allegations. Marietta subsequently amended its complaint to correct the caption but the amended complaint omitted Marietta's administrative appeal.
Both Marietta and the Department moved for summary judgment. The circuit court granted the Department summary judgment, holding Marietta failed to establish a property interest in remaining on the rotation list because Marietta ceased operating at the only approved location in zone five. The circuit court also granted the Department summary judgment on Marietta's gross negligence claim but refused to award the Department sanctions. The circuit court denied Marietta's motion to reconsider. Marietta appeals. We reverse in part and affirm in part.
Under the South Carolina Administrative Procedures Act (APA), this Court may not substitute its judgment for that of a state agency as to the weight of the evidence on questions of fact. Long Cove Home Owners' Assoc. v. Beaufort County Tax Equalization Bd., 327 S.C. 135, 139, 488 S.E.2d 857, 860 (1997); S.C.Code Ann. § 1-23-380(A)(6) (Supp.1998). However, we may reverse or modify an agency decision which is clearly erroneous in view of the substantial evidence on the whole record, in violation of a constitutional or statutory provision, or arbitrary. Long Cove, 327 S.C. at 139,488 S.E.2d at 860; S.C.Code Ann. § 1-23-380(A)(6) (Supp.1998).
Marietta contends the circuit court erred in failing to conclude the APA required the Department to provide Marietta notice and an opportunity to be heard before removing it from the rotation list. We agree.1
The APA sets forth the following relevant provision:
(c) No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.
S.C.Code Ann. § 1-23-370(c) (1986). The APA defines a "license" as including "the whole or part of any agency permit, franchise, certificate, approval, registration, charter, or similar form of permission required by law, but it does not include a license required solely for revenue purposes." S.C.Code Ann. § 1-23-310(4) (Supp.1998).
At the June 10, 1996, administrative hearing, the hearing officer cited the APA as authority for the post-removal hearing. However, the Department failed to comply with the APA's requirements. The APA specifically requires the Department to notify Marietta of the facts allegedly warranting removal from the rotation list and provide an opportunity to prove compliance with all requirements prior to instituting an agency...
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