ORDERS:
ORDER DISMISSING CASE
This
matter comes before the Administrative Law Court (ALC or Court) pursuant to a request
for a Contested Case Hearing pursuant to S.C. Code Ann. § 44-1-60 (Supp. 2007)
and S.C. Code Ann. § 1-23-600(A) (as amended by 2008 S.C. Act No. 334). After
previous hearings and orders in this matter, regarding enforcing the automatic
stay provisions of S.C. Code Ann. § 1-23-600(H) (Supp. 2007) and subsequently lifting
the automatic stay, Respondent Charlotte-Mecklenburg Hospital Authority d/b/a
Carolinas Healthcare System (Carolinas), moved to dismiss this case. A hearing
was held regarding this issue on September 10, 2008.
BACKGROUND
Mecklenburg Hospital
Authority, d/b/a Carolinas Healthcare System (Carolinas), a health care
facility in North Carolina, seeks to construct an office building in Fort Mill, South Carolina. 24A S.C. Code Ann. Regs. 61-15 § 102(1)© (Supp. 2007)
requires a health care facility to obtain a Certificate of Need (CON) before
undertaking a capital expenditure on behalf of the facility in excess of
$2,000,000, unless the project is exempt under 24A S.C. Code Ann. Regs. 61-15 §
104 (Supp. 2007). Carolinas does not dispute that its proposed office building
involves a capital expenditure on behalf of a health care facility in excess of
$2,000,000. Rather, Carolinas asserts that the building is exempt from the CON
requirements. Accordingly, on October 17, 2007, Carolinas submitted a request
to the South Carolina Department of Health and Environmental Control (DHEC or
Department) for an exemption from CON requirements for the proposed office
building.
DHEC issued a written
approval of that request, finding that the expenditures by Carolinas for the
construction of the building were for nonmedical projects and therefore exempt
from the CON process pursuant to Regulation 61-15 § 104(2)(f). The Department
thereafter mailed the written exemption to Carolinas on October 26, 2007, the
date of its decision. On November 5, 2007, the Department mailed a
“Certificate of Need Update” (CON Update) to all subscribers of the CON Update,
including the Petitioner Piedmont, in which the Department provided a list of
all CON decisions, non-applicability determinations, and written exemptions issued during October 2007. The November 2007 CON Update specifically
contained the Department’s written exemption issued to Carolinas for the construction
of its Fort Mill office building. The CON Update shows that the written
exemption was issued to Carolinas on October 26, 2007. On December 4, 2007, in
response to a phone call received from Piedmont, DHEC faxed a copy of Carolinas
exemption decision letter for the Fort Mill medical office building to Piedmont’s Chief Executive Officer, Charles Miller.
Piedmont did not request a review of the staff’s exemption determination by the DHEC Board
until December 20, 2007. The Board declined review and, on February 14, 2008, Piedmont filed this contested case action.
DISCUSSION
Subject
Matter Jurisdiction
Carolinas contends that
the ALC lacks subject matter jurisdiction to hear this case because Petitioner Piedmont Medical Center (Piedmont) failed to timely file its case challenging DHEC’s
written exemption issued to Carolinas. Carolinas, however, erroneously characterized the jurisdictional defect as one relating to
the Court’s subject matter jurisdiction. “Subject matter jurisdiction
of a court depends upon the authority granted to the court by the constitution
and laws of the state.” Paschal v. Causey, 309 S.C. 206, 209, 420
S.E.2d 863, 865 (Ct. App. 1992). It refers to the “power to hear and determine
cases of the general class to which the proceedings in question belong.” Slezak
v. S.C. Dep’t of Corr., 361 S.C. 327, 331, 605 S.E.2d 506, 507 (2004), cert. denied, 544 U.S. 1033 (2005) (quoting Dove v. Gold Kist, Inc.,
314 S.C. 235, 238, 442 S.E.2d 598, 600 (1994)). Here, the ALC has jurisdiction
to hear contested cases arising from decisions involving the issuance of permits
or licenses, or other actions of the Department which may give rise to a
contested case pursuant to S.C. Code Ann. § 1-23-600(A) (as amended by 2008
S.C. Act No. 334); S.C. Code Ann. § 44-1-60 (Supp. 2007). Therefore, the ALC
has subject matter jurisdiction over this case.
Statutory
Deadline
Nevertheless, the crux of
Carolinas’ argument is that the ALC lacks jurisdiction to hear this case because
Piedmont failed to timely file its case challenging DHEC’s decision. In other
words, the ALC does not have jurisdiction over this matter because Piedmont failed to comply with the statutory procedural prerequisites for perfecting contested
case review of DHEC’s decision. On the other hand, Piedmont contends it did not receive actual or constructive
notice that DHEC granted this exemption to Carolinas until December 5, 2007 –
when Piedmont’s Chief Executive Officer, Charles Miller, read the CON Update.
Therefore, Carolinas argues that it was not required to file a request for
final review by the Department Board until fifteen days after Mr. Miller read
the CON Update. Piedmont thus asserts that its request for final review by the
Department’s Board was timely since it was filed on December 20, 2007, which
was within fifteen days after Mr. Miller read the notice of the Department’s
decision.
S.C. Code Ann §
44-1-60(E) provides that:
Notice of the
department decision must be sent to the applicant, permittee, licensee, and
affected persons who have asked to be notified by certified mail, return
receipt requested. The department decision becomes the final agency decision
fifteen days after notice of the department decision has been mailed to the
applicant, unless a written request for final review is filed with the
department by the applicant, permittee, licensee, or affected person.
(emphasis
added). S.C. Code Ann. § 44-1-60(E) sets forth a fixed period of time by which
an affected person can seek contested case review of a Final Department
Determination. “A statute of limitations has been defined as the action of the state in
determining that after the lapse of a specified time a claim shall not be
enforceable in a judicial proceeding. Thus, any law which creates a condition
of the enforcement of a right to be performed within a fixed time may be
defined as a statute of limitations.” 51 Am. Jur. 2d Limitation of Actions § 2 (1970). Furthermore,
[t]here has been some difference of
opinion among the authorities whether, at least in the absence of an expression
of the legislature in this particular respect, the running of a statute of
limitations operates to extinguish merely the remedy or to extinguish the
substantive right as well as the remedy. The general rule in this respect, supported
by the great preponderance of the authorities on the subject, is that a statute
of limitations operates on the remedy directly only and does not extinguish the
substantive right. Under this rule the courts have regarded true statutes of
limitation as doing no more than cut off resort to the courts for enforcement
of the substantive claim or right.
51 Am. Jur. 2d Limitation
of Actions § 22 (1970). Additionally, “[s]tatutes of limitations are not
simply technicalities. On the contrary, they have long been respected as
fundamental to a well-ordered judicial system.” City of North Myrtle Beach
v. Lewis-Davis, 360 S.C. 225, 231, 599 S.E.2d 462, 465 (Ct. App. 2004).
Moreover, 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, 169, 337 S.E.2d. 206, 207 (1985); Sadisco of Greenville, Inc. v. Greenville County Bd. Of Zoning Appeals, 340 S.C. 57, 59, 530 S.E.2d 383, 384 (2000). I
find that Section 44-1-60(E) operates as a “statute of limitations.”
However, even though
Section 44-1-60(E) sets forth a mandatory time frame in which to seek review of
a DHEC staff determination, there remains the issue of whether Piedmont timely filed its request for review with the DHEC Board. The parties do not
question that DHEC did not mail Piedmont notice of its October 26, 2007 decision
or that Piedmont was unaware that Carolinas was seeking an exemption for the
construction of its building. It is also undisputed that Piedmont is an
affected party. Therefore, Carolina’s request for an exemption and, more
importantly, the Department’s approval of the request were made without any notice
to Piedmont – an affected person. Furthermore, since Piedmont was not aware
that Carolinas was seeking an exemption regarding this issue, it could not have
requested to receive notice.
Carolinas and DHEC
nevertheless contend that Section 44-1-60(E) should be read literally and thus Piedmont was required to strictly comply with the statutory deadline of Section 44-1-60 in
seeking review of this case before the Board. As noted above, the 15-day
period begins to run from the day that the notice is mailed, not when notice is
received. In other words, Carolinas/DHEC contends that even though Piedmont
never received notice of its decision until after November 5, 2007 (the date of
the mailing of the Update), it is required to appeal the matter in accordance
to the fifteen day deadline under Section 44-1-60(E) on November 12, 2007.
Here, however, the record does not establish when Piedmont received the exemption
letter. I therefore cannot, at this stage of the proceedings, presume Piedmont received the CON Update before the date it was required to contest review. Since
the Update did not specify the date the decision was mailed, affected parties
would be left to speculate as to when the request for review must be filed. Moreover, even assuming that Piedmont received the notice the following day (November 6, 2007), it would have had at
most six days to file an appeal. I therefore find that a literal reading of
Section 44-1-60(E) would lead to the absurd result that an affected person who
was never notified of the Department’s review of a CON matter and who never
received notice of the Department’s determination regarding that matter would
not have a right to contest the Department’s decision if that person did not
file a request for final review 15 days after notice of the department decision
was mailed to the applicant. In other words, a strict application of the
statute under these circumstances would result in a denial of due process.
Courts have held that:
The essential requirements of due process … are notice and
an opportunity to respond. The opportunity to present reasons, either in person
or in writing, why proposed action should not be taken is a fundamental due
process requirement.
Ross v. Medical Univ. of S.C.,
328 S.C. 51, 66, 492 S.E.2d 62, 70 (1997) (quoting Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 545-46 (1985)). Furthermore, in Ross,
the South Carolina Supreme Court held that S.C. Const. Art. I, § 22
specifically “requires an administrative agency provide notice and an
opportunity to be heard.”
328 S.C. at 68, 492 S.E.2d at 71. Therefore, I find that in instances in which
the Department makes a determination without any formal review process and with
no notice to an “affected person,” due process mandates that an affected person
receive reasonable notice of the decision.
The South Carolina
Supreme Court also followed a similar approach in Hamm v. S.C. Pub.
Serv. Comm’n, 287 S.C. 180, 336 S.E.2d 470 (1985). In Hamm, the
Court interpreted the notice provision of the APA codified at S.C. Code Ann.
Section 1-23-380(b) (Supp. 1984). At that time, Section 1-23-380(b) provided
that:
Proceedings for review are instituted by filing a petition in
the circuit court within thirty days after the final decision of the agency or,
if a rehearing is requested, within thirty days after the decision thereon.
Copies of the petition shall be served upon the agency and all parties of
record.
The Court held “[w]hile a literal
reading of Section 1-23-380(b) suggests the thirty days to appeal runs from the
time the decision is made, we believe the statute must be read to allow a party
thirty days after notice of a decision to bring an appeal.” 336 S.E.2d at
471. The Court reasoned that any other interpretation could lead to the absurd
result that “an agency could preclude judicial review
in all cases simply by concealing its decision until the thirty days had run.” Id.
Here, Section
44-1-60(E) establishes that fifteen days notice is a reasonable time frame for
notice in these cases. Therefore, I find that in instances in which the
Department makes a determination without any formal review process and with no
notice to an “affected person,” the affected person has fifteen days from the
date it received actual or constructive notice of the decision. See Ogburn‑Matthews
v. Loblolly Partners, 332 S.C. 551, 561, 505 S.E.2d 598, 603 (Ct. App.
1998) (“Due process is flexible and calls for such procedural protections as
the particular situation demands.”).
Accordingly, Piedmont had fifteen days from the date it received actual or
constructive notice of the October 26, 2007 decision of the Department to file
its request for review.
Notice
of DHEC’s Decision
Carolinas nevertheless
contends that even though Piedmont failed to receive specific written notice of
DHEC’s decision, Piedmont received actual and constructive notice well before
the fifteen-day deadline to file a petition for review under Section
44-1-60(E). In Strother v. Lexington County Recreation Commission, 332
S.C. 54, 504 S.E.2d 117 (1998), the South Carolina Supreme Court reviewed the
Court of Appeals’ finding that case law had altered the meaning of actual and
constructive/inquiry notice “to the point of equating inquiry notice with
actual notice.” The Supreme Court, disagreeing with the Court of Appeals’
interpretation of the case law, clarified that constructive/inquiry and actual
notice are distinct concepts. While the Court acknowledged that “[o]ur case law has stated inquiry notice is equivalent to actual notice,” it explained that those
assertions were “simply referring to the fact that inquiry notice can have the
same effect as actual notice, not that inquiry notice is actual notice.” 504
S.E.2d at 122. The Court then expounded on the difference between actual and
constructive notice:
Notice is regarded as actual where the person sought to be
charged therewith either knows of the existence of the particular facts in
question or is conscious of having the means of knowing it, even though such
means may not be employed by him. Generally, actual notice is synonymous with
knowledge. Constructive notice is a legal inference which substitutes for
actual notice. It is notice imputed to a person whose knowledge of facts is
sufficient to put him on inquiry; if these facts were pursued with due
diligence, they would lead to other undisclosed facts. Therefore, this
person is presumed to have actual knowledge of the undisclosed facts.
504 S.E.2d at 122 n.6 (citations
omitted) (emphasis added).
In a concurring
and dissenting opinion in Fuller-Ahrens Partnership v. S.C. Department of
Highways & Public Transportation, 311 S.C. 177, 427 S.E.2d 920 (Ct.App.1993),
Judge Cureton explicated that “[t]he law imputes knowledge when opportunity and
interest, coupled with reasonable care, would necessarily impart it.” 427
S.E.2d at 924. Constructive notice thus involves either a legal presumption
based upon documents filed in conformity with applicable statutory law or facts
that would lead a person of due diligence to make further inquiry. Strother,
504 S.E.2d 117; Berry v. McLeod, 328 S.C. 435, 492 S.E.2d 794 (Ct. App.
1997); see also Spence v. Spence, 368 S.C. 106, 119, 628
S.E.2d 869, 876 (2006) (“[C]onstructive or inquiry notice in the context of a
real estate transaction often is grounded in an examination of the public
record because it is the proper recording of documents asserting an interest or
claim in real property which gives constructive notice to the world.”).
Furthermore, “[t]he test of whether a person should have known the operative
facts is objective, rather than subjective.” Berry, 492 S.E.2d at 799.
It is viewed from the perspective of the action a reasonable person would take
under the circumstances. See Staples v. Duell, 329 S.C. 503,
508, 494 S.E.2d 639,642 (Ct. App. 1997) (“Constructive notice is notice that a
reasonable person should know and carries a duty of reasonable care.”).
Here, the Department
mailed the written exemption to Carolinas on October 26, 2007. Moreover, on
November 5, 2007, the Department also mailed a CON Update to all subscribers of
the Update. The CON Update listed all CON decisions, all non-applicability determinations,
and all written exemptions issued during October of 2007. In regard to DHEC’s
grant of an exemption to Carolinas, it specifically identified that “Carolinas Medical Center” was approved for “construction of a medical office building” at “Fort
Mill Office Plaza Fort Mill, South Carolina.”
Piedmont’s Chief
Executive Officer, Charles Miller, is a subscriber to the CON Update. Piedmont
does not dispute that Mr. Miller received that Update shortly after it was
mailed or that notice to Mr. Miller is notice to Piedmont. In fact, DHEC received
a telephone call between November 5 and November 27, 2007 from Charles Miller
or someone from Piedmont calling on his behalf requesting a copy of the Carolinas
exemption decision letter for the medical office building in Fort Mill, South Carolina. Because the decision number provided by the caller was incorrect, the
staff did not promptly locate the exemption. Piedmont conceded, however, that a
copy of the exemption decision letter was ultimately faxed to the proper number
in Mr. Miller’s office and that it was received on December 4, 2007.
Piedmont did not file its
request for final review until December 20, 2007, which was 55 days after the
exemption was approved and mailed to Carolinas. Nevertheless, Piedmont contends that it did not receive actual or constructive notice until December 5,
2007 (when Mr. Miller actually read the CON Update), and that it therefore
properly filed its petition for review within the fifteen-day deadline under
Section 44-1-60(E).
Actual
Notice
Piedmont contends that
the information contained within the CON Update did not constitute actual
notice because even after reading the Update, Piedmont lacked crucial
information regarding Carolinas’ medical office building exemption. Piedmont
submitted that it would not have opposed Carolinas’ exemption had Carolinas constructed an office building for solo practitioners, small physician group
practices, or solely for the purpose of leasing space to area physicians. Indeed,
the CON Update did not specify the services to be offered, the number of
physicians to be located, or the specialties to be offered in Carolinas’ medical
office building. “If there is any ambiguity in the terms of a notice,
rendering its meaning doubtful, the doubt must be resolved against the person
giving notice.” 66 C.J.S. Notice § 33 (1998). Moreover, “[t]he burden
of proving notice rests with the party asserting its existence.” See 66
C.J.S. Notice § 36 (1998); see also Strother, 504 S.E.2d at 121
n.3. Therefore, construing the ambiguities in the notice against the
Respondents, I find that Piedmont did not have actual notice until it received
the faxed copy of Carolinas’ exemption from DHEC on December 4, 2007.
Piedmont contends,
however, that DHEC’s fax should not be considered notice on December 4, 2007
but rather on December 5, 2007. In other words, Piedmont seeks to limit actual
notice not to the date the facsimile was received but to the date it was read.
In support of its assertion, Piedmont cites the holding in Strother that
“[a]ctual notice is synonymous with knowledge.” It further argues that DHEC’s
facsimile could not constitute actual notice until Piedmont either knew of the existence of the facts contained within the facsimile or was conscious
of having the means of knowing it. Piedmont argues that none of the
secretaries in the office where the facsimile was delivered were authorized to
act on behalf of Piedmont in relation to Carolinas’ medical office building
exemption; therefore, Piedmont cannot be charged with notice upon receipt by an
unauthorized agent. Thus, since there is undisputed evidence that Mr. Miller
did not read the facsimile until December 5, 2007, Piedmont asserts that it cannot
be charged with actual notice until that day.
In support of its
argument, Piedmont cites the holding in Hill v. Carolina Power & Light
Co., 204 S.C. 83, 28 S.E.2d 545 (1943) that:
If [notice] relates to a matter
over which the agent has no authority, and concerning which he is not
authorized to act for his principal, although he may be an agent for other
purposes, it will not affect the principal or be binding on him.
28 S.E.2d at 550. Thus, Piedmont contends that it cannot be charged with knowledge of the existence of the facts
contained within the facsimile until it was received by an agent that is
authorized to act for or on behalf of it with respect to such information. Hill,
however, addressed the point at which a third party’s notice to an agent
constitutes notice to the principal. That issue, and thus the holding in that
case, is not before this Court.
The issue in this
case is rather whether receipt of notice by facsimile to the proper number in
Mr. Miller’s office constitutes actual notice upon delivery. Piedmont concedes that a facsimile can constitute actual notice and that it was sent to the
proper facsimile number. Even if the
facsimile was physically received by Mr. Miller’s secretaries, it was sent to
Mr. Miller. Furthermore, there is no contention that the secretaries were not
authorized to take delivery of the facsimile when it arrived in the machine on
his behalf. Therefore, the undisputed evidence reflects that the
facsimile was properly received.
The remaining issue is
whether the receipt of the facsimile imputes knowledge of the contents of the
document upon the date of receipt. As set forth above, a party may be charged
with receipt of actual notice where the person “is conscious of having the
means of knowing it, even though such means may not be employed by him.” Strother,
504 S.E.2d at 122 n.6. “Knowledge or actual knowledge may constitute actual
notice, but actual notice does not necessarily mean knowledge or actual
knowledge, and it is not limited to knowledge or ‘actual knowledge.’” 66 C.J.S.
Notice § 4 (1998). Actual knowledge may be inferred from factual circumstances. Strother, 504 S.E.2d at 123. Furthermore, where a statute or rule
states that notice should be given without stating how it should be given, if
mailing is not the effective date of receipt, the effective date of notice is
the date it is received. 58 Am. Jur. Notice § 33 (2002).
Here, the exemption
decision at issue in this case was attached by the Department to the fax
coversheet. The facsimile thus clearly provided sufficient information to
place Piedmont on notice of the nature of the exemption received by Carolinas. Therefore, I find that Piedmont had actual notice of the contents of the
facsimile upon the date it was received at the correct facsimile machine in Mr.
Miller’s office, that is, December 4, 2007. Moreover, under Piedmont’s
position, individuals or corporations could avoid notice by simply refusing to
open their mail or contending that they never read it. The results emanating
from that reasoning could create profound problems in the application of the
notice laws and, in particular, the process of reviewing regulatory decisions
in this State. Accordingly, I find that, based on an analysis of actual
notice, Piedmont was required to file its request for review no later than
December 19, 2007.
Constructive
Notice
Piedmont argues that it
would be unreasonable to find that it had constructive notice of the exemption
simply because it received the CON Update. As noted above, Piedmont does not
dispute that it received the CON Update shortly after it was mailed on November
5, 2007. Piedmont nevertheless argues that once it was placed “on inquiry” by
facts, it should be allowed a reasonable time in which to make inquiry before
being affected with notice. To that end, Piedmont again asserts that
constructive notice occurred only after Mr. Miller read the CON Update.
According to Piedmont, the nature of Mr. Miller’s position does not give him
the luxury to read every publication in detail immediately as each is
received. Thus, Piedmont contends that Mr. Miller was not put on notice of any
facts that would lead him to review the CON Update in any particular detail or
search out any other information about a possible exemption issued to Carolinas
until Mr. Miller received a newspaper article on December 19, 2007 that reported
that Carolinas could open an urgent care center without applying for additional
DHEC review.
I find that the CON
Update provided Piedmont with sufficient information to put Piedmont “on
inquiry” as to the scope of the exemption granted. In other words, Piedmont
certainly had the opportunity and interest to inquire further upon receipt of
the declaration made in the CON Update that DHEC had granted an exemption to Carolinas for the medical office building. Moreover, the existence of “inquiry notice” is undisputedly
shown by Mr. Miller’s (or at least his staff’s) inquiry to DHEC requesting a
copy of Carolinas’ exemption decision letter for the medical office building in
Fort Mill. That inquiry occurred between November 5 and November 27,
2007. Piedmont’s argument that it did not have sufficient information to be
placed under a duty to inquire is thus dispelled by the fact that it requested a
copy of Carolinas’ exemption letter in November, 2007.
Moreover, as
explained earlier, the time frame to respond is not some indefinite period, but
is controlled by Section 44-1-60(E). That statute operates as a “statute of
limitations.” Furthermore, constructive notice is “a legal inference which
substitutes for actual notice.” Strother, 504 S.E.2d at 122 n.6. Once a
person is sufficiently put on inquiry, they are presumed to have actual
knowledge of the undisclosed facts. Id. The statute of limitation thus
begins to run under the doctrine of constructive notice from the time an individual
has inquiry/constructive notice that “some claim against another party might
exist.” Mitchell v. Holler, 311 S.C. 406, 409, 429 S.E.2d 793, 795
(1993) (quoting Snell v. Columbia Gun Exch., Inc., 276 S.C. 301, 303,
278 S.E.2d 333, 334 (1981)); see also Berry v. McLeod, 328 S.C.
435, 445, 492 S.E.2d 794, 800 (Ct. App. 1997) (“The statute of limitations
begins to run at the time the individual has inquiry or constructive
notice.”). Therefore, viewed in the light most favorable to Piedmont, the time
frame for it to file a request for final review began on November 27, 2007. Thus,
based on an analysis of constructive notice, Piedmont was required to file its request
for final review no later than December 12, 2007.
Finally, Piedmont argued that it is unreasonable to impute notice to it simply because it is a
subscriber to the CON Update. Piedmont contends that since the Update is not
required by statute or regulation to be published or even acknowledged by
statute or regulation to be a valid form of notice, it cannot constitute
constructive notice. To the contrary, Carolinas points out that CON
applications are formally reviewed and notice is mailed to all affected persons
who request to receive notice. However, exemptions, on the other hand, are not
formally reviewed by the Department, and thus affected persons do not receive a
copy of the decision when mailed to the applicant. Carolinas therefore
contends that since there is no formal review process regarding CON exemptions,
there exists a duty by all potentially affected persons to inquire about
exemptions via receipt of the CON Update. Carolinas thus contends that based
on the duty to inquire, Piedmont had constructive notice of the decision on the
date the decision was mailed to Carolinas or the date when the CON Update was
mailed.
“No set rule can very
well be established to determine what constitutes a sufficiency of facts to
excite inquiry, and each case depends on its own facts and circumstances.” 66
C.J.S. Notice § 14 (1998). Therefore, simply because the CON Update
is not required by statute or regulation to be published does not make the
notice any less valid. Nevertheless, the fact that the Update is not approved
by statute or regulation to be a valid form of notice precludes it from
operating as imputed notice to all affected persons.
Therefore,
IT IS HEREBY ORDERED that this case is DISMISSED.
AND
IT IS SO ORDERED.
______________________________
Ralph K. Anderson, III
Administrative
Law Judge
October 3, 2008
Columbia, South Carolina
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