ORDERS:
ORDER
The South Carolina Department of Health and Environmental Control ("DHEC") determined
that the Petitioner was operating an unlicensed community residential care facility and imposed
penalties upon the Petitioner. Afterwards, the Clerk of the DHEC Board received the Petitioner's
letter of appeal on January 14, 1999. DHEC, pursuant to Administrative Law Judge Division
("ALJD") Rule 12, transmitted the letter to the ALJD. Accompanying this transmittal was the
Department's Motion to Dismiss. DHEC made the Motion to Dismiss this matter on the grounds
that the Petitioner's request for a contested case hearing was untimely filed. Though notified by the
Department, Petitioner failed to timely respond to this motion. After reviewing DHEC's arguments,
I concluded that the Petitioner did not file her request for a contested case hearing with the Clerk of
the DHEC Board within the required thirty day period, as set forth in Section 44-7-320(B) of the
South Caroline Code of Laws Ann. (Supp. 1998). Therefore, this case was dismissed for lack of
subject matter jurisdiction by Order dated February 22, 1999.
The Petitioner now asks this Court to reconsider its Order of Dismissal upon the grounds that
her failure to make a timely appeal for a contested case hearing stemmed from her mistake and
excusable neglect. Petitioner contends that error may also be attributed to the Department for its
alleged failure to direct her request to the Clerk of the DHEC Board in a timely manner.
As a supplement to these arguments, Petitioner cites ALJD Rule 11 contending that so long
as a request for a contested case hearing is filed with the affected agency, such filing is effective
regardless of the manner filed. In the instant case, Petitioner's handwritten request is stamped with
"Received Division of Health Licensing" on October 26, 1998 and "Received October 29, 1998
Office of Administrative Management" which reflects the redirecting of mail to the Department of
Disabilities and Special Needs, the letter's addressee. The appeal letter reveals nothing on its face
which indicates: (1) that the letter was addressed to the Department; or (2) that Petitioner was
appealing a DHEC decision. Because of Petitioner's failure to make reference to having business
with the Department, DHEC personnel, following its normal business practices, redirected the mail
to the addressee.(1) DHEC contends the Petitioner, not the Department, should bear the burden of her
failure to properly transmit her appeal to the proper state government entity.
Petitioner also argues that the Department's failure to reference S.C. Code Reg. 61-72 (Supp.
1998) in its letter to the Petitioner is fatal to is argument in its Motion to Dismiss as to the proscribed
manner in which a request for a contested case hearing shall be made. Section 102 of the S.C. Code
Regs. 61-72(b) provides that the provisions of Regulation 61-72 apply to all proceedings in which
the right to a hearing before the Board of Health and Environmental Control is "specifically
required by other statutes or regulations." In this case, S.C. Code Ann. § 44-7-320(B) (Supp. 1998)
requires that the provisions of S.C. Code Reg. 61-72 be applied to this dispute.
However, Section 301 of Regulation 61-72 proscribes the manner in which a request for a
contested case hearing will be effective. Section 44-7-320(B) requires that the Petitioner file a
request for a contested case hearing with the Clerk of the DHEC Board within the required thirty
day period. Regulation 61-72 § 301 requires that the Clerk of the Board actually receive the request
in order for filing to be effective. The purpose of these regulatory and statutory provisions is to
insure effective and efficient handling of contested cases. An undue burden would be placed on the
Department if it were required to handle such matters in the manner requested by the Petitioner.
Petitioner asserts that her mistake in addressing the request for a contested case hearing to
"The Department of Special Needs" should be accepted as grounds for relief from the Order of
Dismissal pursuant to the SCRCP 60(b)(1). This rule is essentially the same as S.C. Code § 15-27-130 (Supp. 1998). By analogy, a party seeking relief under this section must show the existence of
a meritorious defense in addition to mistake or excusable neglect. Mann v. Walker, 285 S.C. 133,
341 S.E.2d 659 (Ct. App. 1985); Payne v. Holiday Towers, Inc., 283 S.C. 210, 321 S.E.2d 179 (Ct.
App. 1984). In this instance, Petitioner has asserted that she is entitled to reconsideration of the
Order of Dismissal. However, she has failed to establish any defense to the penalty action which is
the subject of her request for a contested case hearing.
IT IS THEREFORE ORDERED that Petitioner's Motion for Reconsideration is denied.
AND IT IS SO ORDERED.
__________________________
Ralph King Anderson, III
Administrative Law Judge
April 7, 1999
Columbia, South Carolina
1. DHEC contends that requiring the Department to investigate each piece of mail which
is not clearly identified as to the agency, nature of the issues and matters for the agency to consider
would place an undue burden on Department resources. |
