SC Administrative Law Court Decisions

This matter is a Motion to Dismiss filed by the South Carolina Department of Health and Environmental Control (DHEC). DHEC argues that no jurisdiction exists in the Administrative Law Judge Division (ALJD) since Ida Mae Richardson (Richardson) failed to timely file her request for a contested case. I find that the jurisdiction of the ALJD has not been invoked and the Motion to Dismiss must be granted.

In this current controversy, DHEC seeks a penalty from Richardson of $10,000 for Richardson's operation of an unlicensed community residential care facility. ⁽²⁾

The current dispute is not before the ALJD on the merits of the $10,000 fine; rather, the current issue is whether the jurisdiction of the ALJD has been invoked. Here, the pertinent facts relevant to invoking the jurisdiction of the ALJD involve DHEC's notice of the penalty to Richardson and Richardson's response to that notice.

A. Notice of Penalty

Notice of the penalty began with a letter dated June 18, 2001 from DHEC's Director of the Division of Health Licensing to Richardson. The letter stated that DHEC was imposing a $10,000 penalty due to Richardson's "continued operation of an unlicensed community residential care facility." The letter was mailed June 18, 2001, and Richardson acknowledged receipt on June 23, 2001.

The letter notified Richardson that DHEC's penalty decision would become final "30 days from the mailing of this notice" unless Richardson requested a hearing within that period. Richardson did not ask for a hearing within the thirty day period. Accordingly, in a letter dated July 20, 2001, DHEC asked Richardson for payment of the $10,000 fine.

B. Response to Notice

On July 25, 2001, Richardson's attorney responded by letter. He argued that "a Temporary Restraining Order was signed and as part of those negotiations, the $10,000 fine was lifted." The letter then explained that if DHEC insisted upon the fine, an "Administrative Hearing" was requested.

The issue here is whether the jurisdiction of the ALJD has been invoked. Jurisdiction cannot be invoked unless a party files a request for a hearing "with the affected agency within thirty (30) days after receipt of the agency decision unless otherwise provided by statute." (emphasis added) ALJD Rule 11. In the instant case, the emphasized language requires the application of S.C. Code Ann. § 44-7-320(B), a statute governing penalties imposed by DHEC for matters related to community residential care facilities. The statute sets a procedure for obtaining an administrative hearing.

Under 44-7-320(B), a DHEC penalty "determination becomes final thirty days after the mailing of the notice, unless the person or facility, within such thirty-day period, requests in writing a contested case hearing before the board, or its designee, pursuant to the Administrative Procedures Act." The importance of timely requesting a hearing cannot be overstated since a late filing denies jurisdiction to the adjudicating body. Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985); Burnett v. South Carolina State Highway Dept., 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).

Thus, given the requirements of § 44-7-320(B), two facts establish whether jurisdiction is invoked: the date DHEC mailed the notice to Richardson and the date Richardson requested a contested case hearing. Once such facts are determined, jurisdiction is determined. If the request is within thirty days of DHEC's mailing of the notice, the ALJD's jurisdiction is invoked; if not within thirty days, no jurisdiction is available and the case must be dismissed.

Here, DHEC mailed the notice to Richardson on June 18, 2001. ⁽³⁾ Richardson did not request a hearing within thirty days. Indeed, Richardson's attorney's letter of July 25, 2001 (a letter beyond the thirty day period) essentially agrees that no hearing was previously requested since the letter asks that a hearing be given. Accordingly, the July 25, 2001 request was too late, the ALJD's contested case jurisdiction has not been invoked, and the Motion to Dismiss must be granted. ⁽⁴⁾

Since the ALJD's jurisdiction has not been invoked, the Motion to Dismiss is granted.

AND IT IS SO ORDERED

RAY N. STEVENS

Administrative Law Judge

Dated: August 27, 2001

Columbia, South Carolina

1. Although subject matter jurisdiction is essentially a question of law (see Bridges v. Wyandotte Worsted Co., 243 S.C. 1, 132 S.E.2d 18 (1963)), if factual determinations are necessary to resolve jurisdiction, the court may rely upon the facts placed before it. See Graham v. Lloyd's of London, 296 S.C. 249, 251, 371 S.E.2d 801, 802 n. 1 (Ct.App.1988) ("When the issue is the existence of jurisdiction in fact, the court is not confined to the allegations of the complaint, but may resort to affidavits or other evidence to determine its jurisdiction."). Here, the parties have provided the factual documents needed to determine jurisdiction.

2. This current controversy is not the first between Richardson and DHEC relative to community residential care facilities. In 1999, DHEC charged Richardson with operating unlicensed community residential care facilities in Anderson, South Carolina. DHEC sought an order from the circuit court restraining Richardson from operating without a license and sought from the ALJD an order imposing a $5,000 fine for operating without a license. In March 1999, the ALJ dismissed Richardson's case for failing to defend the matter, and in June 1999, a circuit court judge issued a TRO preventing Richardson from operating a community residential care facility at 1001 East River Street in Anderson, S.C.

However, the 1999 TRO and the 1999 dismissal by the ALJ did not prevent future controversies. Rather, in mid-2001, DHEC again determined that Richardson was operating a community residential care facility without a license. As a result, DHEC applied to the circuit court to hold Richardson in contempt for failing to comply with the previous restraining order. On June 15, 2001, the court declined to find Richardson in contempt since the court held the prior restraining order did not apply to the new location being operated by Richardson. However, a consent order (signed by the parties on June 21, 2001 and executed by the circuit court judge on June 22, 2001) ordered Richardson to cease operating "until a trial on the merits is held or until [Richardson] obtains the appropriate license." No trial has yet been held and no license has yet been granted.

3. In addition to notice to Richardson, notice was also mailed to Richardson's attorney. While the attorney has no evidence that he received the notice, DHEC's Certificate of Mailing shows a copy of the notice was mailed to the attorney on June 18, 2001.

4. The lack of jurisdiction here does not leave Richardson without a remedy. She argues that DHEC has no right to a $10,000 fine since "a Temporary Restraining Order was signed and as part of those negotiations, the $10,000 fine was lifted." Thus, Richardson believes the consent order from the circuit court ended the fine. Accordingly, Richardson's remedy is an action in the court that issued the consent order, with that action seeking to construe the scope and the terms of that order. See Jones & Parker v. Webb, 8 S.C. 202 (1876) (a consent order is issued under the sanction of the court and is to be interpreted as an agreement); Mattox v. Cassady, 289 S.C. 57, 344 S.E.2d 620 (Ct.App.1986) (in consent order disputes, the duty of the court is to ascertain the intentions of the parties).