ORDERS:
ORDER OF DISMISSAL
The above-captioned case came before the Administrative Law Judge Division (ALJD or Division) on
June 28, 2001, pursuant to an appeal of the Department's Administrative Order issued June 15, 2000.
The Department, through its Administrative Order, assessed Estella Thompson monetary penalties for
violating the State Certification of Need and Health Facility Licensure Act and its related rules and
regulations. Basic principles of administrative law establish that an agency bears the burden of proof in
establishing that the penalty amount is justified. See Peabody Coal Co. v. Ralston, 578 N.E. 2d 751
(Ind. Ct. App. 1991); Shipley, South Carolina Administrative Law § 5-79, 5-80 (1989). The caption,
therefore, is amended to reflect the correct allocation of the burden of proof.
This matter was set for a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310, et seq., (1986
and Supp. 1999), 1-23-600(B) (Supp. 1999) and 44-7-320 (Supp. 1999). The Respondent and counsel
for the Department were notified of the date, time and place of the hearing in this matter by an Order
and Amended Notice of Hearing mailed by my office on April 5, 2001. Because she did not have any
legal counsel of record, the Respondent was notified of the hearing via U.S. certified mail. My office
received the return receipt on April 11, 2001.
Therefore, I find that the Respondent was notified of the hearing by my Order dated April 5, 2001.
However, after receiving proper notice of the hearing, neither counsel for the Respondent nor the
Respondent herself appeared at the designated time and place. Moreover, the Respondent at no time
contacted the ALJD to request a continuance of the June 28, 2001 proceeding or to inform the Division
that she would not appear at the hearing on this matter. Because two previous continuances had been
granted in this case, the Respondent was aware of the Division's procedures. Furthermore, on June 29,
2001, the day after the hearing, this office received a letter from the Respondent in which she set forth
that she wanted to bring this matter to a close and that she could no longer respond to this matter.
At the hearing into this matter, after waiting ten minutes beyond the scheduled time of the hearing for
the Respondent to make an appearance, the hearing was commenced. Counsel for DHEC, who had
brought witnesses prepared to testify in this matter, made a Motion to Dismiss. Administrative Law
Judge Division Rule 23 provides that a default occurs when a party fails to appear at a hearing without
the proper consent of the Judge. The Administrative Law Judge may adversely dispose of a case against
a defaulting party under those circumstances.
I find that the Respondent is in default in this case. "There is a limit beyond which the court should not
allow a litigant to consume the time of the court...." Georganne Apparel, Inc. v. Todd, 303 S.C. 87, 92,
399 S.E.2d 16, 19 (Ct. App. 1990). Therefore,
IT IS HEREBY ORDERED that the appeal of the Respondent of the Administrative Order of the
Department in this matter be dismissed.
IT IS FURTHER ORDERED that the caption be amended to reflect the correct allocation of the
burden of proof in this matter.
AND IT IS SO ORDERED.
_______________________________
Ralph King Anderson, III
Administrative Law Judge
July 2, 2001
Columbia, South Carolina |