SC Administrative Law Court Decisions

The above-captioned matter is before this tribunal upon the request of Respondent Eden Gardens-Beaufort, a community residential care facility in Beaufort, South Carolina, for a contested case hearing to challenge the Department of Health and Environmental Control's (DHEC) imposition of an $8,900 civil monetary penalty upon the facility for failing to have a licensed administrator on premises for nearly three months. On December 7, 2001, DHEC moved to dismiss this case on the ground that Eden Gardens' request for a contested case was not timely filed, thus depriving this tribunal of jurisdiction to hear this matter. Eden Gardens opposed the motion, contending that its request was submitted to DHEC in a timely fashion.

The timely filing of a request for a contested case hearing, like the timely filing of a notice of appeal, is a jurisdictional requirement, and this tribunal has no authority to extend or expand the time in which the request must be made. See 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). Consequently, a party's failure to timely file a request for a contested case hearing extinguishes this tribunal's jurisdiction over the matter. See Botany Bay Marina, Inc. v. Townsend, 296 S.C. 330, 372 S.E.2d 584 (1988), overruled in part on other grounds by Woodard v. Westvaco Corp., 319 S.C. 240, 460 S.E.2d 392 (1995). In the case at hand, the timeliness of Eden Gardens' request for a contested case hearing is governed by S.C. Code Ann. § 44-7-320(B) (Supp. 2000).

Section 44-7-320(B) affords a community residential care facility, like Eden Gardens, the right to appeal a penalty imposed by DHEC by requesting a contested case hearing before the Administrative Law Judge Division (ALJD). Id. Under that section, DHEC's sanction against a facility "becomes final within 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." Id. (emphasis added). DHEC interprets this statutory language to require that the hearing request be filed with DHEC, and therefore, received by DHEC, within the thirty-day appellate period. Here, DHEC mailed notice of the penalty to Eden Gardens on October 4, 2001, and did not receive Eden Gardens' mailed request for a contested case until November 8, 2001, three days after the thirty-day appellate period had expired. Accordingly, DHEC argues that Eden Gardens' request was not timely filed.

In opposition, Eden Gardens contends that a request for a contested case hearing is timely under Section 44-7-320(B) if it is properly placed in the U.S. mail within the thirty-day period, regardless of whether DHEC actually receives the request during that time. Thus, Eden Gardens maintains that its request, which was mailed before the thirty days had run, was timely submitted to DHEC. While the language of Section 44-7-320(B) is admittedly vague, ⁽¹⁾ I find that Section 44-7-320(B) requires a request for a contested case hearing to be filed with, i.e., received by, DHEC within the thirty-day period following the mailing of the notice of the penalty, and that Eden Gardens' request was not, therefore, timely filed.

A fair reading of Section 44-7-320(B) suggests that its requirement that a person or facility challenging a penalty must timely "request[] in writing a contested case hearing" is essentially a filing requirement. The interpretation of this language as a filing requirement is consistent both with DHEC's general regulation governing contested cases, see 25 S.C. Code Ann. Regs. 61-72 § 201 (Supp. 2001) ("Any person may request an adjudicatory hearing by filing a Petition for Administrative Review with the Clerk of the [DHEC] Board.") (emphasis added), and with other statutes, regulations, and rules governing requests for contested case hearings. See, e.g., S.C. Code Ann. § 12-60-2150(H) (2000) ("A property taxpayer or the local governing body who disagrees with the department determination may request a contested case hearing before the [ALJD] by filing the request in accordance with the [ALJD] rules within thirty days of the date of the department determination."); S.C. Code Ann. § 44-2-115 (Supp. 2000) ("If the department denies an owner's or operator's request for compensation . . ., the owner or operator may file a petition with an Administrative Law Judge for the matter to be heard as a contested case under the Administrative Procedures Act."); 23A S.C. Code Ann. Regs. 30-6.A. (Supp. 2001) ("Any person adversely affected the Department's staff's initial permitting application decision has the right to file a request for a contested case hearing before an Administrative Law Judge."); ALJD Rule 11 ("In all contested cases except county tax matters, the request for a contested case hearing shall be filed with the affected agency within thirty (30) days after receipt of the agency decision unless otherwise provided by statute.") (emphasis added in each).

Further, reading the "request in writing" language of Section 44-7-320(B) to require that a party "file" its appeal with DHEC is consistent with the approach other courts have taken with similarly vague language. See, e.g., Blades v. United States, 407 F.2d 1397 (9th Cir. 1969) (holding that a document has not been "returned to" a local draft board as required by regulation until it has actually been received by the board and filed, not merely deposited in the mail); Tabb v. McGinley, 313 S.W.2d 745 (Mo. Ct. App. 1958) (interpreting Workmen's Compensation Law requiring that an application for review of a decision be "made" within a certain time to require that the application be received by and filed with the reviewing authority, and not merely mailed, within the prescribed time).

Once Section 44-7-320(B) is understood as containing a formal filing requirement, it becomes clear that a request for review under that statute must be received by DHEC within the thirty-day period, and not merely mailed during that time, to be considered timely. The South Carolina Supreme Court has recently stated: "It is clear under South Carolina law that mailing does not constitute filing. When a statute requires the filing of a paper or document, it is filed when delivered to and received by the proper officer." Gary v. State, Op. No. 25391 (S.C. Sup. Ct. filed Dec. 17, 2001) (Shearouse Adv. Sh. No. 44 at 23, 25) ⁽²⁾; see also Fox v. Union-Buffalo Mills, 226 S.C. 561, 86 S.E.2d 253 (1955). ⁽³⁾ DHEC has adopted a similar definition of "filing" in its contested case regulation. See 25 S.C. Code Ann. Regs. 61-72 § 301 (Supp. 2001) ("Filing is effective upon receipt by the Clerk."). In the absence of a statutory or rule-based exception to this default definition of filing, Section 44-7-320(B) must be interpreted to require that the request for a contested case hearing be received by DHEC before the thirty-day appellate period expires to be considered filed in a timely manner.

S.C. Code Ann. § 44-7-320(B) requires that a community residential care facility seeking review of a penalty imposed by DHEC file its request for a contested case hearing within thirty days of DHEC's mailing of notice of the sanction. And, the filing required by this section is not complete upon mailing, but only upon actual receipt by DHEC. Accordingly, Eden Gardens' request for a contested case to challenge the penalty imposed upon it was not timely filed with DHEC, as it was not received by DHEC until thirty-four days after DHEC mailed notice of the penalty. Further, as noted above, failure to timely file a request for a contested case hearing deprives this tribunal of jurisdiction to hear the case. Such is the case here.

IT IS THEREFORE ORDERED that DHEC's Motion to Dismiss for lack of jurisdiction is GRANTED and this case is DISMISSED.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

January 25, 2002

Columbia, South Carolina

1. As is DHEC's letter notifying Eden Gardens of its penalty and its right to seek review of the sanction. See Letter from Paul to Mansell and Newber of October 4, 2001, at 2 ("This determination shall become final 30 days from the mailing of this notice unless during such 30-day period you give written notice requesting a hearing . . . .") (emphasis added).

2. The Court does footnote that "filing" may be defined otherwise where specifically provided by statute or rule, as in Rule 233(a)(2), SCACR. See also ALJD Rule 4C.

3. Accord Moutry v. State, 359 So. 2d 388, 390 (Ala. Civ. App. 1978) ("Put another way, the so-called 'mailbox rule,' as applied to contracts or service of papers, is not applicable in the context of a 'filing' requirement. A document has not been filed until it has actually been received by the court; mere mailing is not enough.").