ORDERS:
ORDER OF DISMISSAL
STATEMENT
OF THE CASE
In
the above-captioned matter, Petitioner Hyuna King has requested a contested
case hearing to challenge the decision of Respondent South Carolina Department
of Consumer Affairs (Department) to deny her application for licensure as a mortgage
loan originator. Pursuant to that request, a contested case hearing was held
on January 12, 2006, at the South Carolina Administrative Law Court in Columbia,
South Carolina. Based upon the evidence presented at that hearing and upon the
parties’ other filings in this matter, I find that this case must be dismissed
for lack of jurisdiction.
BACKGROUND
On
March 31, 2005, Petitioner Hyuna King submitted an application to the
Department for a license as a mortgage loan originator. By a letter dated
April 27, 2005, the Department denied Petitioner’s application based upon her
three convictions for making fraudulent checks in 2000. In the letter, the
Department informed Petitioner that she had “the right to appeal the
Department’s decision and [could] do so via a letter request sent to the
Department within thirty (30) days of this letter.” Resp’t Ex. # 3
(emphasis added). However, there is nothing in the record of this matter
indicating that Petitioner ever filed such a request for review of the denial
of her application with the Department or that the Department took any further
action regarding Petitioner’s application. Rather, it appears that the next
action taken related to Petitioner’s application occurred on August 15, 2005,
when Petitioner filed a request for a contested case hearing to challenge the
Department’s decision with this Court. In filing this request, Petitioner was
asked by the Clerk’s Office to supply the Court with a copy of the agency
decision that gave rise to her request for a contested case. In response to
the Clerk’s request, Petitioner provided the Court with a copy of the
Department’s April 27, 2005 denial letter.
DISCUSSION
Every
court has the power and duty to determine whether or not it has jurisdiction of
a cause presented to it for determination. Bridges v. Wyandotte Worsted Co.,
243 S.C. 1, 8, 132 S.E.2d 18, 21 (1962), overruled in part on other grounds
by Sabb v. S.C. State Univ., 350 S.C. 416, 567 S.E.2d 231 (2002).
Accordingly, the lack of subject matter jurisdiction can be raised at any time,
can be raised for the first time on appeal, and can be raised sua sponte by the court. Lake v. Reeder Constr. Co., 330 S.C. 242, 248, 498 S.E.2d
650, 653 (Ct. App. 1998). For the reasons set forth below, I find that this
case must be dismissed for lack of jurisdiction.
The
South Carolina Administrative Law Court, like other administrative agencies, is
a creature of statute and, therefore, it must depend entirely upon
constitutional and statutory provisions for its authority and jurisdiction. See S.C. Code Ann. §§ 1-23-500 et seq. (2005 & Supp. 2005); see also,
e.g., Calhoun Life Ins. Co. v. Gambrell, 245 S.C. 406, 411-12, 140
S.E.2d 774, 776 (1965). As of July 1, 2005, this Court has been granted
jurisdiction, by statute, to hear contested case proceedings related to
applications for mortgage loan broker’s and mortgage loan originator’s
licenses. Act No. 128, §§ 7, 12, 27, 2005 S.C. Acts ___. However, prior to
July 1, 2005, such contested case jurisdiction was vested solely with the
Department, with appeals directed to the court of common pleas. See S.C. Code Ann. § 37-6-414 (Supp. 2004); S.C. Code Ann. § 40-58-55 (Supp. 2004), amended by Act No. 7, 2005 S.C. Acts ___. Therefore, both at the time
the Department denied Petitioner’s application on April 27, 2005, and for the
thirty days after the decision during which Petitioner could request a
contested case to review that denial, the Department was the sole agency vested
with jurisdiction to conduct a contested case hearing on Petitioner’s
application, and Petitioner’s sole recourse with regard to the denial of her
application was to request such a contested case with the Department. Further,
there is no mechanism authorizing Petitioner to delay requesting a contested
case hearing on the denial until after this Court had been granted statutory
jurisdiction to hear contested cases on the Department’s licensing matters.
The act granting this Court jurisdiction over the Department’s licensing
matters contains a savings clause that requires proceedings pending at the time
the act went into effect to be resolved under the prior versions of the
affected statutes, see Act No. 128, § 25, 2005 S.C. Acts ___; and, such
a four-month delay in requesting a contested case would, in any event, make the
request untimely under this Court’s rules, see ALC Rule 11(C). In
short, under the statutory scheme in effect at the time the Department denied Petitioner’s
application for a mortgage loan originator’s license, any contested case review
of that denial was properly before the Department, and not before this Court.
Accordingly, this case must be dismissed for lack of jurisdiction.
ORDER
For
the reasons set forth above,
IT
IS HEREBY ORDERED that the above-captioned matter is DISMISSED for
lack of jurisdiction. However, it should be noted that, as this dismissal is
not a determination on the merits of Petitioner’s application, this decision
does not preclude Petitioner from seeking licensure as a mortgage loan
originator in the future.
AND
IT IS SO ORDERED.
______________________________
JOHN D.
GEATHERS
Administrative
Law Judge
1205 Pendleton
Street, Suite 224
Columbia, South
Carolina 29201-3731
February 2, 2006
Columbia, South Carolina |
