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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Glenda G. Campbell, d/b/a B&B Snack & Video, et al

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Glenda G. Campbell, d/b/a B&B Snack & Video and d/b/a The Play Place, and Brent Owensby and Brad Owensby, d/b/a B&B Amusement
 
DOCKET NUMBER:
00-ALJ-17-0136-CC

APPEARANCES:
n/a
 

ORDERS:

ORDER OF DISMISSAL

This matter is before me pursuant to the Motion of the Petitioner, South Carolina Department of Revenue (Department), to dismiss this matter on the grounds that the Respondents' request for a contested case hearing was untimely filed. No response to the Motion to Dismiss has been filed within the proscribed time limit, as set forth under Rule 19(A) of the Rules of Procedure for the Administrative Law Judge Division (ALJD or Division). I conclude that the Motion to Dismiss must be granted.

The Department issued its Final Determination Letter on January 13, 2000. Respondent Campbell and Respondents Owensby each respectively signed for the Department Final Determination Letter on January 15, 2000. The Respondents failed to request a hearing from the Administrative Law Judge Division and, accordingly, the Department issued an Order dated February 29, 2000, pertaining to the matters cited in the Department's Final Determination Letter. That Order was served upon the Respondents by the South Carolina Law Enforcement Division on March 10, 2000 at 10:45 a.m. Thereafter, the Respondents requested a contested case hearing on March 10, 2000 at 3:02 p.m. by way of facsimile.(1) Even if the manner in which the Respondents requested a hearing was acceptable by the Department, the request did not reach the Department until March 10, 2000, well past the thirty-day appeal period. The Department contends that the failure of the Respondents to timely file divests this Division of subject matter jurisdiction.

"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 enforcement disputes by the Department of Revenue and, therefore, over this case. S.C. Code Ann. § 1-23-600(B) (Supp. 1999); S.C. Code Ann. § 12-4-30 (D) (Supp. 1999). 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 Respondents' belated filing.

The Respondents did not file their request for a contested case hearing with the Department within the required thirty-day period, as set forth in S.C. Code Ann §§ 12-60-450 and 12-60-460 (Supp. 1999). Those sections thus set 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 Sections §§ 12-60-450 and12-60-460 (Supp. 1999) operate as a "statute of limitations." Furthermore, though the ALJD is not divested of subject matter jurisdiction in this case, the Respondents' 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.

AND IT IS SO ORDERED.





_________________________________

Ralph King Anderson, III

Administrative Law Judge



April 13, 2000

Columbia, South Carolina

1. The Department's Final Determination Letter dated January 13, 2000, set forth the place and manner in which the Respondents needed to request a hearing. Faxing a letter to the Department is not proper Departmental procedure.


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