ORDERS:
ORDER GRANTING MOTIONTO DISMISS
This matter is before the Administrative Law Judge Division ("Division") pursuant to the Motion to Dismiss dated and
filed by the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource
Management ("OCRM") on February 21, 2002. OCRM asserts that the request by Deleta E. Robinson ("Petitioner") for a
contested case hearing is untimely and should be dismissed.
Petitioner applied to OCRM on May 9, 2001 for a permit to construct a private residential dock at 2952 Bohicket Road,
Johns Island, Charleston County, South Carolina. On July 13, 2001, OCRM issued a permit with special conditions for a
dock to the Petitioner, which was signed and became effective on October 25, 2001. Petitioner then requested a contested
case hearing on December 11, 2001.
Statute of Limitations
OCRM contends that this Court lacks subject matter jurisdiction to hear this contested case on the ground that the appeal is
untimely. OCRM bases its 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." Under the relevant agency regulation,
23A S.C. Code Ann. Regs. 30-6, applicants wishing to obtain a contested case hearing concerning an OCRM permit
decision must do so "within 15 days of notification to the applicant and other persons who requested notification of the
initial staff decision."
In this case, Petitioner received and signed the permit with the attached special conditions on October 17, 2001. The permit
was returned to OCRM and became effective on October 25, 2001. Petitioner did not file a request for a contested case
hearing until December 11, 2001.
Petitioner argues that she did not become aware of the special conditions until the weekend of November 24, 2001, and
thus did not receive actual notice until that time.
Assuming arguendo that the regulation refers to actual notice, Petitioner's claim that she did not receive actual notice until
the weekend of November 24, 2001 has no merit. The permit issued by OCRM, as signed by Petitioner on October 17,
2001, was clearly marked "SEE SPECIAL CONDITIONS" and "ATTACHMENT A." "ATTACHMENT A" clearly
marks the location of the dock which is the central issue of contention in this case. Further, Petitioner alleges in her
Petition that her agent had discussed the unsatisfactory location of the dock with OCRM.. Also, the permit issued by
OCRM included a cautionary note referencing S.C. Code Ann. § 48-39-150(D) which states that applicants wishing to
appeal the decision must do so within 15 days of the issuance of the permit. Petitioner clearly did not file for a contested
case within the 15 day time limit as required by law.
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, S.E.2d 584 (1988), overruled on other grounds by
Woodward 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.
IT IS HEREBY ORDERED that the Department's Motion to Dismiss is granted and this case is dismissed for lack of
subject matter jurisdiction.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
May 15, 2002
Columbia, South Carolina |
