ORDERS:
ORDER GRANTING MOTION TO DISMISS
I. Statement of the Case
On October 23, 1998, Respondent, South Carolina Department of Health and Environmental Control (DHEC), filed a Motion
to Dismiss on the ground that Petitioner, Little Mexico Restaurant (Restaurant) failed to file an appeal within the applicable
fifteen (15) day time frame and that such a failure requires dismissal of the appeal. I agree.
II. Motion to Dismiss For Untimely Appeal
The jurisdictional requirements for an adjudicatory hearing are typically set by the rules and regulations of the administrative
agency involved in the dispute. 73A Public Administrative Law and Procedure § 118 (1983). The jurisdictional requirements
of a contested case before the ALJD requires the filing of a petition "within the time frame authorized by the agency [involved
in the dispute]. " ALJD Rule 11. Here, DHEC is the agency involved in the dispute and DHEC's regulation requires that the
petition "must be filed within 15 days . . . following receipt of an administrative order." S.C. Code Regs. 61-72.201.A (Supp.
1997). The importance of a timely filing cannot be overstated since a late filing is fatal to the jurisdiction of the adjudicating
body. Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985), Burned v. S. C. Highway Deptt, 252 S.C. 568, 167 S.E.2d 571
(1969), Stroupv. Duke Power Co, 216 S.C. 79, 56 S.E.2d 745 (1949). Thus, if Restaurant did not timely file its petition with
DHEC, the ALJD has no jurisdiction to provide any relief to Restaurant.
A. Facts of Jurisdiction
On September 28, 1998, DHEC issued a decision revoking Restaurant's food service permit, and Restaurant received the
DHEC decision on September 29, 1998. On October 15, 1998, Restaurant hand delivered a petition dated
October 15, 1998 to a DHEC office at 212 South Lake Drive, Lexington, South Carolina. Further, DHEC
received the petition on October 15, 1998. Finally, the petition was received by the Clerk of the DHEC
Board on October 19, 1998 with the petition bearing an October 19, 1998 date as the receipt date of both
the Clerk of the DHEC Board and of the Office of the Commissioner. Given these facts, the issue is
whether the petition was timely filed.
B. Computing of Time
In deciding if the petition was timely filed, the method for computing the fifteen day period must be
established. Regs. 61-72 does not address how time is counted. Further, while the ALJD Rules establish
how time is computed (see ALJD Rule 3), the ALJD Rules do not apply until jurisdiction vests in the
ALJD. ALJD Rule 53. Thus, with no method imposed by law, the accepted method for counting time is
to exclude the first day but include the last. 86 C.J.S. Time § 13(1) (1954).
Applying the general rule, October 14, 1998 is the fifteenth day for filing a petition. Accordingly, unless
a petition was filed by Restaurant on or before October 14, 1998, the ALJD lacks jurisdiction.
C. Filing Repetition
Here the regulation states that the petition is filed "upon receipt by the Clerk of the Board of DHEC. "
Regs. 61-72, Part III, 301. Rey,ulations authorised by the legislature have the force of law. Faile v. S.C
Employment Security Commission, 276 S.C. 536, 230 S.E.2d 219 (1976). When terms of a provision are
clear and unambiguous, the terms are applied in their literal and ordinary meaning. Lail v. Richland
Wrecking Company, Inc. 280 S.C. 532, 313 S.E.2d 342 (Ct. App. 1984).
Here, Restaurant hand delivered its petition to DHEC on October 15, 1998. Further, receipt by the Clerk
ofthe DHEC Board was not made until October 19, 1998. Thus, neither the delivery to DHEC nor the
receipt by the Clerk occurred before the deadline of October 14, 1998. Thus, the petition under all
circumstances was not received timely. Accordingly, no jurisdiction vests in the ALJD.
III. Order
The petition filed by Little Mexico Restaurant was not filed timely. Thus, the ALJD lacks subject matter
jurisdiction, and the Motion to Dismiss must be granted.
AND IT IS SO ORDERED.
RAY N. STEVENS
Administrative Law Judge
Dated: November 4, 1998
Columbia, South Carolina |
