ORDERS:
ORDER
STATEMENT OF THE CASE
On January 14, 2002, the Department of Revenue (Department) mailed by Certified Mail, Return Receipt Requested, a
Final Department Determination regarding The Esso Club, Inc.'s (Esso) sale of beer and wine to a person under the age of
twenty-one (21) that occurred on November 1, 2001. This determination also contained an attachment that set forth the
Administrative Law Judge Division's (ALJD or Division) filing fee requirement and other related information. Because
this November violation was the fourth such violation within a three (3) year period, the Department sought revocation of
Esso's beer and wine permit.
On March 28, 2002, the Department, by way of facsimile, received a request for a hearing on this Final Determination. On
April 2, 2002, the Department received the hard copy of the hearing request. On April 5, 2002, the Department sent an
Agency Transmittal to the Division requesting a hearing on the issue of failing to respond in a timely manner to the
Department's Final Determination and, in the alternative, on the violation itself. Since the Division had not received the
filing fee in this matter, the case was never assigned a docket number and, therefore, was never formally filed. The
Division thereafter notified Esso that the filing fee was due. After Esso failed to pay the filing fee, the Agency Transmittal
received on April 5, 2002, regarding Esso was returned to the Department on May 31, 2002 as unprocessed.
Upon receiving the returned Agency Transmittal concerning Esso, the Department revoked the Petitioner's license. The
Petitioner then filed a Motion to Restore its case to the Administrative Law Judge Division's docket. A hearing was held
before me concerning this matter on June 26, 2002 at the Division in Columbia, South Carolina.
DISCUSSION
Subject Matter Jurisdiction
The Department contends that the Petitioner's failure to timely pay a filing fee divests the Division of subject matter
jurisdiction to hear this case. Rule 11 of the Rules of Procedure for the Administrative Law Judge Division provides, in
part, that "[t]he request for a contested case hearing shall be filed with the affected agency within the time frame authorized
by that agency." "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).
S.C. Code Ann. § 1-23-600 (1986 & Supp. 2001) grants jurisdiction to the Division to hear contested cases under the
Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260 (1990 & Supp. 2001) grants the Division the
authority to hear contested case hearings in matters governing alcoholic beverages, beer and wine. Therefore, the ALJD
has subject matter jurisdiction over contested cases arising from the Department and, accordingly, over this case. See also
S.C. Code Ann. § 1-23-600(B) (1986 & Supp. 2001).
The Department also contends that the Petitioner failed to timely request a contested case hearing. However, that issue was
not before me at the hearing into this matter. Consequently, at this juncture in the proceeding, it is presumed that the
Petitioner timely filed until a determination is made to the contrary. Therefore, the issue for determination in this case is
not whether the time frame for filing with the Department is met but whether failure to pay a filing fee divests the Division
of the exercise of its plenary jurisdiction.
Filing Fee
The courts have addressed the filing fee issue from several perspectives. "Under some statutes, a court clerk has no
discretion to accept documents for filing without a filing fee, and in other jurisdictions, a case cannot proceed to the
determination of the issues without the payment of required fees." Am. Jur. 2d Clerks of Ct. § 18 (2000). Several
jurisdictions have held that the untimely payment of a filing fee does not vitiate the validity of an action before the court.
See Wrenn v. American Cast Iron Pipe Co., 575 F.2d 544, 547 (5th Cir. 1978); Magnesium Corp. of America v. U.S., 24 F.
Supp.2d 293 (1998); Ray v. Douglas County, 914 P.2d 26, 27 (1996) ("[N]either the statute nor the rules treat the timely
tender of a negotiable payment, as distinct from the timely filing of the notice itself, as a jurisdictional requirement.);
Advance Imports, Inc. v. Gibson Products Co., Inc. of Sherman, 533 S.W.2d 168, 169-170 (Tex. Civ. App. 1976) ("We
find no indication in this statute of a legislative intent to make payment of this fee, or any other fee prescribed, a
prerequisite to jurisdiction."). In Wrenn, the court held that untimely payment of a filing fee does not invalidate a
complaint. The court later held in Rodgers on Behalf of Jones v. Bowen, 790 F.2d 1550, 1552 (11th Cir.1986), that a
complaint is "filed" for statute of limitations purposes when it is in the actual or constructive possession of the clerk,
regardless of the untimely payment of the required filing fee. Furthermore, the court explained in Magnesium Corp that:
Whether a filing fee is paid to the Court does not implicate the same policy considerations. Unlike establishing a rigid time
frame in which a party may sue the government, the time of payment or the amount of a filing fee is not the same as the
timely filing of the case itself.
Id. at 295. However, each of the above decisions were based upon the courts interpretation that the law requiring the filing
fee did not require that the filing of the fee was a prerequisite to jurisdiction.
The courts have also addressed the filing fee issue concerning cases under appeal. The greater weight of authority in
appellate tribunals have held that "the validity of a notice of appeal . . . is not affected by the fact that the filing fee was not
promptly paid to the clerk." Am. Jur. 2d Appellate § 348 (2000). The reasoning of the courts in finding that the filing of
the fee is not a prerequisite to jurisdiction is based also upon the language of the particular law requiring the filing fee.
De-Gas, Inc. v. Midland Resources, 470 So.2d 1218 (Ala. 1985); Rubin v. Department of Indus. Relations, 469 So.2d 657
(Ala. Civ. App. 1985). Moreover, in De-Gas, the court distinguished the payment of the filing fee for perfecting an appeal
from a fee paid at the initiation of the litigation. The court held that: "Where an appeal is involved, the non-appealing party
is already well aware of the existence of the action." DeGas at 1222.
Several courts also follow the "constructive filing." However, these cases deal with cases in which the litigant has filed an
action along with a motion to proceed in forma pauperis (IFP). See Rodgers on Behalf of Jones v. Bowen, 790 F.2d 1550
(11th Cir.1986); Jarrett v. US Sprint Communications Co., 22 F.3d 256 (10th Cir. 1994), cert. denied, Jarrett v. US Sprint
Communications Co., 513 U.S. 951, 115 S. Ct. 368 (1994). See also Martin v. State, 321 S.C. 533, 471 S.E.2d 134 (1995)
(uses the theory of "constructive filing). Moreover, "the fiction of 'constructive filing' only exists until the IFP motion is
ruled upon." Jarrett at 259.
Finally, several courts have held that payment of the filing fee is mandatory to invoke the court's jurisdiction. In making
that determination, the courts have looked to the language of the law requiring the filing fee. Margetan v. Superior Chair
Craft Co., 92 Wash. App. 240, 963 P.2d 907 (1998) (A document is not filed for recording until the filing fee is paid.);
De-Gas, Inc. v. Midland Resources, 470 So.2d 1218 (1985) (The use of the term 'shall' in the statute makes the payment of
the filing fee mandatory.). In fact, Esso relies upon the holding in Dipoma v. McPhie, 29 P.3d 1225 (2001). (1) However,
though the court in Dipoma held that the filing fee requirement is not jurisdictional at the trial level, that holding was
clearly based upon the language of the Rule requiring the fee payment. In fact, the court favorably cited its previous ruling
which held that the fee requirement of the Rule was jurisdictional based upon the language in the Rule.
The courts which have held that the payment of the filing fee is a prerequisite to jurisdiction have also cited reasons apart
from the mere construction of the statutes. In De-Gas, the court held that "unless the filing fees are paid at the time a
complaint is filed, there is absolutely no judicial notice to a defendant that an action has been filed against him." Moreover,
in Wanamaker v. Columbian Rope Co., 713 F. Supp. 533, 538 (1989), the court held that:
Authorizing the commencement of [an] action without the required fee would breed countless administrative and
procedural woes, and give to the Clerk's Office an element of discretion where none was intended. The Clerk's Office
would be converted into a part-time credit institution, spending significant energy collecting fees as well as extending
credit.
See also De-Gas, supra. at 1220. ("No doubt the purpose behind the passage of this provision was to discourage the filing
of frivolous suits and to insure that the clerks of the circuit courts do not become 'credit men.'"); Margetan, supra. at 910.
(The clerk of the court has no discretion in this regard. The clerk may not file a document without the filing fee or refuse to
file a document accompanied by the proper filing fee. If the clerk could accept filing of an action without payment of a
required filing fee, the clerk would have a degree of discretion contrary to the Legislature's intent. . . .).
Here, the Petitioner must file a request for a contested case hearing with the Department. S.C. Code Ann. §12-60-1310
(D)(2)(d) (2000). Upon filing the notice of its request for a contested case hearing, the Department is required to notify the
ALJD. S.C. Code Ann. § 1-23-600 (D) (1986 & Supp. 2001). ALJD Rule 12 provides that: "The agency . . . receiving a
notice of a contested case from a party shall notify the Division within five (5) working days of the receipt of the request for
a contested case hearing by completing and forwarding to the Division a transmittal form, and serving a copy on all parties .
. . ." Act No. 66 (R147, H3687), Appropriations Bill, 2001-2002, Part 1B, Section 55.3 provides that: "Each request for a
contested case hearing. . . before the Division must be accompanied by a filing fee equal to that charged in circuit court for
filing a summons and complaint." See also ALJD Rule 71.
Cases before the Administrative Law Judge Division do not clearly fit within the filing fee cases above. The language of
Section 55.3 mandates that the filing fee accompany the request for a contested case hearing. In fact, ALJD Rule 11
provides that a party requesting a contested case hearing shall at the same time file a copy of that request with the ALJD
along with the filing fee. Furthermore, as set forth above, if the filing fee does not accompany the request for a contested
case hearing, the clerk's office would be converted into a part-time credit institution, spending substantial energy collecting
fees and as extending credit. Wanamaker, supra.
Nevertheless, the request for a contested case hearing is not filed with the Division but is transmitted to the ALJD. In other
words, an individual must file with the Department within a fixed time period in order to seek contested case review of a
final decision. Accordingly, since that time period operates as a "statute of limitations" for filing a contested case request,
once that time frame has been complied with, no additional jurisdictional time periods exist for the filing of cases before
the ALJD. cf. Chabek v Nationwide Mut. Fire Ins. Co., 303 S.C. 26, 397 S.E. 2d 786, 787 (1990) ("Until an action is
commenced, there is no proceeding pending. . . ."). Moreover, since this case has already been determined by the
Department, the non-appealing party is already well aware of the existence of the action.
Therefore, though I find that the payment of a filing fee is mandatory, failure to send the filing fee to the ALJD at the
appropriate time does not operate as a failure to file request for a contested case with the Department, thereby implicating
"statute of limitations" concerns. Nevertheless, the ALJD has the authority to dismiss the case on the ground that the fee
was not timely paid. Marathon Corp. v. Pitzner ex rel. Pitzner, 55 S.W.3d 114 (2001); Rubin, supra. Consequently, the
ALJD Clerk has two options.
The Clerk may reject a case that is not transmitted with the proper filing fee. See Advance Imports, Inc., supra. at 170.
("[T]he clerk may refuse to accept the case for filing if the fee is not paid."); Ganja v. Johnson, 286 N.E.2d 775, 777
(1972)("[T]he clerk may refuse to accept a counterclaim for filing unless the fee is paid. . . ."). However, the ALJD is not
in the position of a typical clerk's office. A typical clerk's office is presented in person with documents the clerk can reject
because, as in this case, the documents are unaccompanied by a filing fee. In those instances, the individual receives
immediate feedback concerning the rejection of the filing. Conversely, after a party requests a contested case hearing, the
Department sends the Agency Transmittal to the Clerk of the ALJD and the filing fee is required to be sent separately to the
ALJD by the petitioning party. Consequently, although a filing fee may not been paid, the case is nevertheless sent to the
Division. If a party fails to send the filing fee to the ALJD Clerk, knowledge of that failure would not surface until receipt
of an Agency Transmittal. Therefore, the Clerk, upon receiving an Agency Transmittal and determining that the filing fee
has not been paid, may simply return the Agency Transmittal without further action.
On the other hand, though the fee is required to accompany the request for a contested case, the Clerk may also seek to
collect the fee. See Ray, supra. at 29. ("[W]hen a filing fee is required and the county clerk accepts the document for filing,
a filing has occurred. The case may not then be dismissed for failure to pay the fee along with the filing of the document.");
Advance Imports, Inc., supra. at 170. ("[W]e cannot accept plaintiff's argument that if the clerk by oversight or otherwise
dockets the appeal without requiring payment of the fee, then the case is unlawfully docketed. . . . Imposing such a severe
consequence of the clerk's oversight on the justice court litigant would be so harsh and unjust that legislative intent to do so
cannot be found by implication, and we find no explicit statutory language requiring such a result."). If the petitioning party
subsequently fails to pay the fee, the Clerk should then return the Agency Transmittal to the Department.
In this case, the ALJD Clerk's Office received this case and sought to collect the fee. However, the case was never given a
docket number or assigned to an Administrative Law Judge. When the filing fee was not paid, the Agency Transmittal was
properly returned to the Department. However, following the reasoning above, though the filing fee was not properly paid,
the ALJD is not divested of jurisdiction to hear this case because the Petitioner failed to pay the fee. Therefore, if the facts
warrant, this case can be reinstated with the Division. (2)
Reinstatement of the Case
Though at this point in the case I do not find that failure to pay the filing fee to the ALJD vacates the filing of the request
for a contested case hearing, there still remains the issue of whether reinstatement of the Petitioner's case before the ALJD
should be allowed. In other words, although a failure to promptly pay a filing fee does not deprive the ALJD of jurisdiction
to hear a contested case, the ALJD nevertheless has the authority to dismiss the case on the ground that the fee was not
timely paid. Marathon Corp., supra.; Rubin, supra. However, where the delay in payment is not willful or where the late
payment of a fee does not delay the progress of a contested case, the case will generally not be dismissed. See Am. Jur.2d
Appellate § 348 (2000). Here, the Petitioner's attorney received notice from the Department that a filing fee was due.
Furthermore, the evidence presented reflects that he was notified that the filing fee was due and failed to either respond to
those notices or pay the filing fee. However, Mr. Cureton stated that he never received those notices and no evidence was
presented to establish that the notices were indeed mailed to him. Therefore, though it certainly appears that the Petitioner
had sufficient opportunity to pay the fee under the facts of this case, and particularly considering that filing fees have been
recently initiated, I find that this case should be processed by the ALJD Clerk's Office.
Restoration of this case places the Petitioner back in the position it was in before the Agency Transmittal was returned to
the Department. Therefore, the Petitioner's license should be reinstated pending the determination of this case.
ORDER
Based upon the above, it is hereby:
ORDERED that the Petitioner pay a $70.00 filing fee within fifteen (15) days of the date of this Order and copy the
Department with notification of that payment.
IT IS FURTHER ORDERED that upon notification of the payment of the filing fee, the Department shall immediately
forward an Agency Transmittal to the ALJD and return the Petitioner's license.
AND IT IS SO ORDERED.
____________________________
Ralph King Anderson III
Administrative Law Judge
July 12, 2002
Columbia, South Carolina
1. The Petitioner relied upon a decision by an Administrative Law Judge which solely relied upon Dipoma v. McPhie.
2. The holding in this case is limited to matters involving contested cases.
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