ORDERS:
ORDER OF DISMISSAL
A request for a contested case hearing in this matter was filed with the Administrative Law Judge
Division (ALJD) on November 30, 2000. Respondent, South Carolina Department of Health and
Environmental Control, Office of Ocean and Costal Resource Management (Department), filed a
Motion to Dismiss on November 30, 2000. Department alleged in its Motion to Dismiss that Petitioner
did not timely file the appeal in the above referenced matter.
The undersigned Administrative Law Judge (ALJ) issued an Order on December 12, 2000 requiring
Petitioner to respond to Department's Motion to Dismiss. The Order was mailed to Petitioner at 8525
Oyster Factory Road, Edisto Island, South Carolina via certified mail and to the above referenced
Respondents.
A letter from Petitioner was filed with the undersigned ALJ on December 29, 2000. Petitioner's letter
indicated that he forwarded his response to the Motion to Dismiss to Respondent DHEC instead of to
the undersigned ALJ. However, pursuant to ALJD Rule 4(B) and the Order of December 12, 2000, the
response to the Motion to Dismiss should have been filed with the undersigned ALJ. Furthermore,
pursuant to ALJD Rule 4(C), Petitioner should have attached proof of service of the letter on all parties
and a certificate of the date of mailing. Petitioner did not provide proof of service upon parties nor a
certificate of the date of mailing. Therefore, the undersigned ALJ issued an Order on January 19, 2001
requiring Petitioner to respond to
Department's Motion to Dismiss by forwarding his response to the ALJ. It was also ordered that
Petitioner serve such response upon Respondents. The Order was mailed to Petitioner via regular and
certified mail and to the Respondents.
By letter dated March 28, 2001, filed by Petitioner and bearing the return address of 309 W. 102nd Street, Apartment BR, New York, New York, Petitioner requested information regarding the status of
this case. Petitioner indicated in his letter that he considered the appeal to be timely filed "as no docks
have yet been built, or lots sold, thus no detrimental reliance, etc." Petitioner did not refute that he
failed to file within fifteen (15) days of receiving Department's notice of the issuance of the permit,
which is the basis of the Department's Motion to Dismiss. Again, Petitioner did not provide proof of
service upon parties nor a certificate of the date of mailing.
Pursuant to Petitioner's March 28, 2001 letter informing this tribunal of a different address, this office
sent Petitioner a letter on April 4, 2001 enclosing the January 19, 2001 Order and extending the time to
file a response for fifteen (15) days from the date of the letter. This letter was sent to Petitioner's New
York address via regular and certified mail. Respondents were also mailed this letter.
By letter dated April 12, 2001, Petitioner responded to this office's April 4, 2001 letter; however, the
response did not address the issue of whether Petitioner timely filed his notice of appeal. The
undersigned ALJ issued an Order on May 7, 2001 requiring Petitioner to specifically respond to the
issue of whether the notice of appeal was timely filed and to serve upon all parties any document filed
with the undersigned ALJ or the ALJD. The Order was mailed to Petitioner via regular and certified
mail and to Respondents.
Petitioner replied to the Order of May 7, 2001 with a letter dated May 11, 2001. Petitioner stated in his
letter that he received the May 7, 2001 Order and that it must have been the "fourth or fifth time" he
was asked to respond. However, Petitioner then stated that he did not receive "actual notice" of the
December 12, 2001 and January 19, 2001 Orders because his mail had to be forwarded to him from
Edisto Island to New York. Petitioner also enclosed one stamped envelope and requested that this
tribunal forward a copy to the other parties because he did not have the address.
DISCUSSION
Petitioner raised the issue of lack of notice of the ALJ's Orders. Pursuant to Rule 5(b)(1),
SCRCP, the Petitioner was served when the Orders were mailed to him at his last known address. It is
the Petitioner's responsibility to notify the undersigned ALJ of a change of address. Furthermore,
although Petitioner at no time addressed the issue of whether he filed his request for a contested case
hearing within fifteen (15) days of the Department's notice, Petitioner did respond to the ALJ's Orders.
As the May 7, 2001 Order stated, each party shall serve upon all other parties any document filed with
the undersigned ALJ or ALJD pursuant to ALJD Rule 4(A). Enclosing a stamped envelope with
Petitioner's May 11, 2001 response and requesting this tribunal to forward a copy to the other parties
did not satisfy the service requirement. It is not this tribunal's responsibility to serve opposing parties on
behalf of the Petitioner.
The Respondent contends that this Court lacks subject matter jurisdiction to hear this contested case on
the grounds that the appeal is untimely. ALJD Rule 11 provides that "the request for a contested case
hearing shall be filed with the affected agency within the time frame authorized by that agency."
According to 23A S.C. Code Ann. Regs. 30-6 (Supp. 2000), the time frame for requesting a contested
case hearing concerning an Office of Ocean and Coastal Resource Management (OCRM) permit
decision is "within 15 days of notification to the applicant and other persons who requested notification
of the initial staff decision."
According to the Department's Motion to Dismiss, which Petitioner has not denied, OCRM notified the
applicant and other interested persons of the issuance of the permit on October 2, 2000. The Petitioner
had 15 days from receiving this notification to file a request with DHEC for a contested case hearing.
However, the Petitioner's request is dated November 6, 2000 and is stamped as received by the
Department on November 9, 2000. This tribunal has given Petitioner ample opportunity to respond to
Respondent's Motion to Dismiss. Petitioner has indeed responded, but he has not provided any
evidence that refutes Respondent's Motion to Dismiss. In addition, Petitioner has not denied the
allegation that he did not file the request for a contested case hearing within the required time.
A threshold question in every case is whether the court has subject matter jurisdiction over the matter in
question. Issues relating to subject matter jurisdiction may be raised at any time, cannot be waived by
the parties, and may be considered by the court on its own motion. See Johnson v. State, 319 S.C. 62,
459 S.E.2d 840 (1995). The failure to file a request for a contested case hearing within the allowable
time frame divests the Division of jurisdiction to hear the matter. See Botany Bay Marina v. Townsend,
296 S.C. 330, 372 S.E.2d 584 (1988), overruled on other grounds by Woodard v. Westvaco Corp., 319
S.C. 240, 460 S.E.2d 392 (1995). In addition, this court has no authority to expand the time in which
the request for a hearing must be filed. See Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985).
Accordingly this matter must be dismissed for lack of subject matter jurisdiction.
IT IS THEREFORE ORDERED that this case is dismissed for lack of subject matter jurisdiction.
AND IT IS SO ORDERED.
_______________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
May 25, 2001
Columbia, South Carolina |