South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550 Fax: (803) 734-6400

SC Administrative Law Court Decisions

CAPTION:
Wallace L. Blackmon, Jr. vs. SCDOI

AGENCY:
South Carolina Department of Insurance

PARTIES:
Petitioners:
Wallace L. Blackmon, Jr.

Respondents:
South Carolina Department of Insurance
 
DOCKET NUMBER:
95-ALJ-09-0696-CC

APPEARANCES:
W. Carole Holloway, Esq., for Petitioner

Alicia K. Clawson, Esq., for Respondent
 

ORDERS:

ORDER ON REHEARING

I. Introduction

On November 5, 1995, the parties were notified by order from the Administrative Law Judge Division (ALJD) that a contested case hearing had been requested by Wallace L. Blackmon, Jr. (Blackmon). A second order dated November 7, 1995 again notified the parties that a contested case was at issue. On January 30, 1996, a contested case hearing was held in which testimony and documentary evidence were presented by both parties. After finding by a preponderance of the evidence that Blackmon had proven he was entitled to the license, on February 7, 1996, an order of the ALJD directed the South Carolina Department of Insurance (Department) to issue a bail bondsman's license to Blackmon. On February 20, 1996, the Department moved for a reconsideration on three grounds:

1) the prior decision erred in not making an affirmative finding of fact or conclusion of law that the Department is an agency within the meaning of the Administrative Procedures Act (APA);

2) the decision erred in not making a finding that the "applicable standard of proof" for the current matter, under the APA, is whether or not Blackmon proved the Department's Director "abused his discretion in denying the renewal ..."; and

3) the decision erred in not finding or concluding Blackmon failed to prove the Director abused his discretion.

On February 22, 1996, the Motion for Reconsideration was granted and a hearing was scheduled for March 6, 1996 to discuss the issues raised. In addition, the parties were directed to address the issue of whether the ALJD's jurisdiction over a bail bondsman's license was contested case or appellate jurisdiction. Blackmon asserts the ALJ has only appellate jurisdiction. The Department asserts the ALJ has contested case jurisdiction but with authority only to decide if the Department's Director "abused his discretion in denying the renewal." After hearing arguments, I find I have only appellate jurisdiction and not contested case jurisdiction. Since the matter was tried before me as a contested case when I had no such jurisdiction, the order of February 7, 1996 is void as having been issued without subject matter jurisdiction.



II. Analysis

The authority of an administrative officer performing judicial or quasi-judicial duties is strictly confined to the limits set by the statutory provisions that formed the officer's existence and any actions that exceed the jurisdiction are void. S.C. Tax Comm'n v. S.C. Tax Bd. of Review, 278 S.C. 556, 299 S.E.2d 489 (1983). Issues relating to subject matter jurisdiction may be raised at any time, cannot be waived even by consent, and should be taken notice of by the court on its own motion. SeeJohnson v. State, ___ S.C. ___, 459 S.E.2d 840 (1995). The issues raised by the Department require a determination that the ALJD lacks contested case jurisdiction.

A. Jurisdiction In General

The ALJ's jurisdiction is multifaceted. The grant of jurisdiction is by means of general as well as specific authority and includes both contested case and appellate duties.

General jurisdiction is found in S.C. Code Ann. § 1-23-600 (Supp. 1995) with jurisdiction divided between contested case and appellate functions. General contested case jurisdiction is found in S.C. Code Ann. § 1-23-600(B). That section states that an ALJ shall preside over all hearings of contested cases as defined in S.C. Code Ann. § 1-23-310 (Supp. 1995) where such hearings involve an executive branch department and where a single hearing officer is authorized or permitted by law or regulation to hear and decide such cases. A general grant of appellate jurisdiction is found in S.C. Code Ann. § 1-23-600(D) for appeals from the decisions of the occupational licensing boards or commissions within the Department of Labor, Licensing, and Regulation.

Obviously, specific jurisdiction may be made by additions and alterations to the general jurisdiction. Alterations are contemplated in that S.C. Code Ann. § 1-23-600(B) denies jurisdiction to specified cases and states that the law may specifically assign jurisdiction to the ALJD. Specific statutes have subsequently granted both contested case jurisdiction and appellate jurisdiction. For example, in August of 1995, Act 60 granted additional contested case jurisdiction to the ALJ over county taxes to encompass tax disputes which would have been beyond the statutory language of S.C. Code Ann. § 1-23-310(2) (Supp. 1995). See S.C. Code Ann. § 12-60-30(4)(a) (Supp. 1995). In addition, seeS.C. Code Ann. §§ 9-18-30(A) and 44-6-190 (Supp. 1995), which added in July 1995 appellate jurisdiction in certain instances from the retirement system and Department of Health and Human Services respectively.

B. Jurisdiction In Bail Bondsmen Matters

The above establishes that the jurisdiction of an ALJ, whether contested case or appellate, is not fixed by S.C. Code Ann. § 1-23-600 but rather must be determined in light of all relevant statutes. As to bail bondsmen, S.C. Code Ann. § 38-53-160, effective July 1, 1995, creates a contested case. Under § 1-23-310(2), a contested case arises when a party is entitled to a hearing before an agency having the right to grant or deny a license. Here, the Department is an agency. See S.C. Code Ann. §1-30-55 (Supp. 1995). The Department has the authority to grant or deny bail bondsmen licenses. See§38-53-150 (Supp. 1995). Finally, § 38-53-160 grants a hearing since the renewal cannot be denied "except on reasonable notice and opportunity to be heard." Thus, a contested case hearing is required. The issue becomes what agency has jurisdiction to conduct the contested case.

The issue of jurisdiction must be decided by review of the statutes granting hearing authority to the Department and to the ALJD. In 1993, general jurisdiction over contested cases was placed in the ALJD by § 1-23-600(B)'s language that "[a]n Administrative Law Judge of the division shall preside over all hearings of contested cases ..." (emphasis added) except specifically listed types of contested cases "unless otherwise by law specifically assigned to the jurisdiction of the Administrative Law Judge Division." In the same 1993 enactment, however, the General Assembly, by amendment to existing laws, granted statutory authority to the Department to hold contested case hearings. Under § 38-3-150, as amended effective July 1, 1995, the General Assembly directed that "[a]ll hearings must be held by the director or by one of his duly authorized assistants or agents when authorized to do so in writing by the director." (emphasis added). The interplay of these two statutes must be examined.

First, there is no conflict between these statutes. Even though § 1-23-600(B) states the general jurisdiction for an ALJ covers "all hearings of contested cases" the use of "all" must be read in light of other enactments. For example, § 1-23-600 itself limits the jurisdiction to "single hearing officer" cases and denies contested case jurisdiction over named agencies. See § 1-23-600(B) (no jurisdiction over cases under Occupational Safety and Heath Act or hearings held under Title 56). Second, in examining the interplay between §§ 1-23-600(B) and 38-3-150, such statutes deal with the same subject matter and are thus in pari materia and must be construed together to produce a single, harmonious result. See Home Health Services, Inc. v. DHEC , 298 S.C. 258, 379 S.E.2d 734 (Ct. App. 1989). In determining the application of the statutes, the language should be read as a whole in the context of the enacting legislation so that phraseology of an isolated section should not be controlling. City of Columbia v. Niagara Fire Ins. Co., 249 S.C. 388, 154 S.E.2d 674 (1967). In particular, these statutes must be read in light of S.C. Code Ann. §§ 38-53-160 and 38-3-210.

Here, a plain reading of the 1993 enactment as a whole, as it relates to hearing authority over a bail bondsman's license, provides a reasonable construction which finds that contested case jurisdiction is in the Department and appellate jurisdiction is in the ALJ. S.C. Code Ann. § 38-53-160 (Supp. 1995) not only requires a hearing for disputes concerning bail bondsmen but also holds the applicant "has the right of appeal from the final order of the director or his designee to the Administrative Law Judge Division as provided by law." Such language at a minimum requires a "final order" from the director and allows an "appeal" to the ALJ. The language "final order" is the language typically used to designate the conclusion of a contested case and to give rise to an "appeal" of the final order. SeeS.C. Code Ann. § 1-23-380 (Supp. 1995). Accordingly, the ALJ has appellate jurisdiction.

The above conclusion is supported by several amendments all made in the same enactment creating the ALJD. Prior to the 1993 enactment, § 38-53-160 granted the applicant a hearing before the Commissioner and a right of appeal to the circuit court. When determining who was to continue to hold contested case hearings, the 1993 enactment did not substitute ALJ for Commissioner. Instead the amendment deleted "Commission" and specified the hearings were to be held by the "director." Further, § 38-53-160, prior to amendment, allowed an appeal to the circuit court which obviously heard the case in its appellate capacity. The 1993 enactment removed "circuit court" and replaced it with the Administrative Law Judge Division. The intent of replacing circuit court with ALJ was to grant appellate jurisdiction in the ALJD. Finally, in the same enactment, the General Assembly chose to amend S.C. Code Ann. § 38-3-150 by removing "Commissioner" and inserting the words "director," and not ALJ, as the party required to hold hearings. These amendments demonstrate a lack of ALJ contested case jurisdiction in bail bondsman license cases.

The language of S.C. Code Ann. § 38-3-210 (Supp. 1995) confirms such a conclusion. Section 38-3-210 provides that upon the issuance of an order or decision of the director, an "appeal" is made to the ALJD. The language provides that an appeal of the director's decision "must be heard in the Administrative Law Judge Division, as provided by law." In the 1993 enactment, the word "appeal" when used to direct that a hearing be held by an ALJ is found only in the appellate jurisdiction of the ALJD. See § 1-23-600(D) (contested cases heard by the Department of Labor, Licensing, and Regulation are presented to the ALJD under the appellate jurisdiction of the ALJ as an "appeal" from the various boards); Smalls v. Weed, 293 S.C. 364, 360 S.E.2d 531 (Ct. App. 1987) (where the same word is used more than once in an enactment, it is presumed to have the same meaning throughout unless a different meaning is necessary to avoid an absurd result.) Thus, a reference to an appeal of the director's decision requires a hearing under the ALJ's appellate jurisdiction.



III. Conclusion

Jurisdiction over a bail bondsmen's contested case hearing is in the Department and not in the ALJD. §§ 38-3-150, 38-53-160 and 38-3-210. After the Department holds a hearing and issues a final order, the applicant, if he is aggrieved, may seek an appeal to the ALJD under the appellate jurisdiction of the ALJD. §§ 38-3-150, 38-53-160 and 38-3-210. The prior order issued on February 7, 1996, is null and void as having been issued without subject matter jurisdiction. Turner v. Malone, 24 S.C. 398 (1886) (judgment entered without jurisdiction is void ab initio.)

Due to the lack of subject matter jurisdiction, I do not reach any other matters raised by the Motion for Reconsideration. Further, the issues raised are premature for my review and cannot be reached until the Department holds a contested case hearing.



IV. Order

The prior order issued on February 7, 1996, is hereby withdrawn and vacated as null and void as having been issued without subject matter jurisdiction.



AND IT IS SO ORDERED.

__________________________________

RAY N. STEVENS

Administrative Law Judge

This 14th day of March, 1996

Columbia, South Carolina


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