ORDERS:
ORDER OF DISMISSAL
The above-captioned matter is before this tribunal pursuant to S.C. Code Ann. § 40-35-160
(2001), S.C. Code Ann. § 40-1-160 (2001), and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp.
2002) on Appellant Lillian R. Jamison’s appeal of the sanctions imposed upon her by Respondent
South Carolina Board of Long Term Health Care Administrators (Board) in a Final Order dated June
26, 2003. Appellant is licensed by the Board as a community residential care facility administrator
and is employed as an administrator at Robin’s Residential Care Facility in Columbia, South Carolina.
The Board’s order placed Appellant on probation for eighteen months, imposed a $1,000 monetary
penalty upon Appellant, and required Appellant to complete six additional hours of continuing
education for various violations of the laws governing the operation of community residential care
facilities that occurred at Robin’s Residential Care Facility in 2002. The Board issued the order on
June 26, 2003, and Appellant received a copy of the order, by certified mail, on July 2, 2003. On
August 5, 2003, Appellant filed her Notice of Appeal challenging the Board’s order with the
Administrative Law Judge Division. On August 18, 2003, the Board moved to dismiss this appeal
on the ground that Appellant failed to timely file and serve her Notice of Appeal, and thus failed to
properly invoke this tribunal’s jurisdiction. For the reasons set forth below, this motion is granted
and this matter is hereby dismissed.
South Carolina courts have consistently held that the filing and service of a notice of appeal
is a jurisdictional requirement, and that, as such, an appellate tribunal has no authority to extend or
expand the time in which the notice of appeal must be filed and served and must dismiss an appeal
that is not timely filed. See, e.g., Sadisco of Greenville, Inc. v. Greenville County Bd. of Zoning
Appeals, 340 S.C. 57, 530 S.E.2d 383 (2000); Burnett v. S.C. State Highway Dep’t, 252 S.C. 568,
167 S.E.2d 571 (1969); Stroup v. Duke Power Co., 216 S.C. 79, 56 S.E.2d 745 (1949). In the case
at hand, S.C. Code Ann. § 40-35-160 (2001) provides that a person aggrieved by a final order of the
Board may seek review of the Board’s decision pursuant to S.C. Code Ann. § 40-1-160 (2001),
which, in turn, states that “[a] person aggrieved by a final action of a board may appeal the decision
to the Administrative Law Judge Division [ALJD] in accordance with the Administrative Procedures
Act [APA] and the rules of the Administrative Law Judge Division.” With regard to such appeals,
the Rules of Procedure for the ALJD require that the aggrieved party file and serve its notice of
appeal within thirty days of its receipt of the agency’s final decision. See ALJD Rule 33 (“The notice
of appeal from the final decision of an agency to be heard by the Administrative Law Judge Division
shall be filed with the Division and a copy served on each party and the agency whose final decision
is the subject of the appeal within thirty (30) days of receipt of the decision from which the appeal
is taken.”) (emphasis added).
Therefore, in order to properly invoke the jurisdiction of this tribunal
for the review of the Board’s sanctions against her, Appellant was required to file and serve her
Notice of Appeal within thirty days of her receipt of the Board’s Final Order.
However, in the instant matter, Appellant failed to file her Notice of Appeal in a timely
fashion. As noted above, Appellant signed for and received a copy of the Board’s order by certified
mail on July 2, 2003, but did not file her Notice of Appeal with the ALJD until August 5, 2003, some
thirty-four days after receiving the order, and some four days after the time for filing an appeal had
expired. In short, Appellant failed to file her appeal within the time required by the ALJD Rules and
the APA–a time period which this tribunal has no authority to extend or expand–and thus failed to
satisfy a basic requirement of this tribunal’s appellate jurisdiction. Therefore, because Appellant did
not file her Notice of Appeal in this matter in a timely manner, Appellant did not properly invoke the
jurisdiction of this tribunal and this appeal must be dismissed. Accordingly,
IT IS HEREBY ORDERED that the Board’s Motion to Dismiss is GRANTED and this
appeal is DISMISSED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
September 4, 2003
Columbia, South Carolina |
