ORDERS:
ORDER OF DISMISSAL
This matter is before me pursuant to the Motion of the Respondent, South Carolina Department of Health and
Environmental Control (Department), to dismiss this matter on the grounds that the Petitioner's request for a contested case
hearing was untimely filed. The Respondent contends that the failure of the Petitioner to timely file divests this Division of
jurisdiction over this matter. The Petitioner contends that this Division has subject matter jurisdiction to hear this case.
S.C. Code Ann. § 44-7-320 (B) (Supp. 1998) provides that:
Should the department determine to assess a penalty, deny, suspend, or revoke a license, it shall send to the appropriate
person or facility, by certified mail, a notice setting forth the particular reasons for the determination. The 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.
Furthermore, S.C. Code Regs. 61-72 § 301 (Supp. 1998) requires that "[f]iling shall be either by personal delivery or by
first-class mail or other parcel delivery service addressed as follows: Clerk of the Board, Department of Health and
Environmental Control, 2600 Bull Street, Columbia, SC 29201. Filing is effective upon receipt by the Clerk." The
Department mailed the Petitioner its determination in this case on September 9, 1999. The Clerk of the DHEC Board
thereafter received Petitioner's request for a contested case hearing on October 13, 1999. Therefore, allowing for the
Columbus Day holiday on October 11, 1999, the Petitioner's request for a contested case hearing was one day late.
The Department, citing Botany Bay Marina v. Townsend, 296 S.C. 330, 372 S.E.2d 584 (1988), contends that the
Petitioner's failure to timely request a contested case hearing extinguishes jurisdiction of this case before the ALJD.
"Subject matter jurisdiction of a court depends upon the authority granted to the court by the constitution and laws of the
state." Paschal v. Causey, 309 S.C. 206, 209, 420 S.E.2d 863, 865 (Ct.App.1992). It "refers to [the] court's power to hear
and determine cases of the general class or category to which [the] proceedings in question belong . . . ." Black's Law
Dictionary 1425 (6th ed. 1990). The ALJD has subject matter jurisdiction over contested cases arising from regulation
enforcement disputes and, therefore, over this case. S.C. Code Ann. § 1-23-600(B) (Supp. 1998); S.C. Code Ann. § 44-7-320(B) (Supp. 1998). Therefore, since the ALJD has subject matter jurisdiction to hear this contested case, the Department
must be contending that the ALJD's jurisdiction to hear this case is divested by the Petitioner's belated filing.
Section 44-7-320 (B) sets forth that in order to seek a contested case hearing, the request must be made within thirty days.
That Section thus sets forth a fixed period of time by which an individual can seek a contested case hearing before the ALJD.
"A statute of limitations has been defined as the action of the state in determining that after the lapse of a specified time a
claim shall not be enforceable in a judicial proceeding. Thus, any law which creates a condition of the enforcement of a right
to be performed within a fixed time may be defined as a statute of limitations." 51 Am. Jur. 2d Limitation of Actions § 2
(1970). Furthermore:
There has been some difference of opinion among the authorities whether, at least in the absence of an expression of the
legislature in this particular respect, the running of a statute of limitations operates to extinguish merely the remedy or to
extinguish the substantive right as well as the remedy. The general rule in this respect, supported by the great preponderance
of the authorities on the subject, is that a statute of limitations operates on the remedy directly only and does not extinguish
the substantive right. Under this rule the courts have regarded true statutes of limitation as doing no more than cut off resort
to the courts for enforcement of the substantive claim or right."
51 Am. Jur. 2d Limitation of Actions § 22 (1970). I therefore find that Section 44-7-320 (B) operates as a "statute of
limitations." Furthermore, though the ALJD is not divested of subject matter jurisdiction in this case, the Petitioner's
remedy to seek a contested case before this Division is foreclosed. Moreover, 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, I
conclude that the Motion to Dismiss must be granted.
IT IS THEREFORE ORDERED that this case be dismissed with prejudice.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
January 24, 2000
Columbia, South Carolina |
