ORDERS:
ORDER GRANTING MOTIONS TO DISMISS
This matter is before me upon Motions to Dismiss filed by the Respondents, the South Carolina Department of Health and
Environmental Control (DHEC), Office of Ocean and Coastal Resource Management (OCRM), and Diane Shiver. A
hearing on the Motions was held on January 3, 2001 at the Administrative Law Judge Division (Division) in Columbia,
South Carolina. For the reasons set forth below, the Motions to Dismiss are hereby granted.
FACTUAL BACKGROUND
Respondent Diane Shiver applied with OCRM for a permit to construct a private residential dock at 2305 Waterway
Boulevard, Isle of Palms, Charleston County, South Carolina. OCRM received the permit application on August 20, 1999.
The application was placed on public notice on October 1, 1999, pursuant to 23A S.C. Code Ann. Regs 30-2 (Supp. 1999).
On November 1, 1999, OCRM received a letter from the Petitioner's spouse, Kimberly Johnson, in which she expressed
several objections to the proposed dock. The permit was issued on October 27, 1999, but not signed by the applicant until
February 16, 2000. OCRM notified all interested parties of the issuance of the permit on February 22, 2000, including the
Petitioner's spouse. The Petitioner's notice of appeal and request for a contested case hearing was received on September
29, 2000.
DISCUSSION
The Respondents contend that this Court lacks subject matter jurisdiction to hear this contested case on the grounds that the
appeal is untimely. The Respondents base their argument on ALJD Rule 11, which 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. 1999), the time frame for requesting a contested case hearing concerning an OCRM permit
decision is "within 15 days of notification to the applicant and other persons who requested notification of the initial staff
decision."
In the instant case, OCRM notified the applicant and other interested persons of the issuance of the permit on February 22,
2000. This is evidenced by OCRM's Certificate of Mailing which includes the name and address of Ms. Kimberly Johnson,
the Petitioner's spouse. The Petitioner had 15 days from receiving this notification to file a request with DHEC for a
contested case hearing. However, the Petitioner did not file this request until September 29, 2000. Neither the Petitioner
nor his spouse denied that they received the notification letter.
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 case must be
dismissed for lack of subject matter jurisdiction.ORDER
For all the foregoing reasons, the Respondent's Motion to Dismiss is hereby granted and this case is dismissed for lack of
subject matter jurisdiction.
AND IT IS SO ORDERED.
____________________________
C. Dukes Scott
Administrative Law Judge
January 12, 2001
Columbia, South Carolina |
