South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
3 Steps Learning Center vs. SCDLLR

AGENCY:
South Carolina Department of Labor, Licensing and Regulation

PARTIES:
Petitioners:
3 Steps Learning Center

Respondents:
South Carolina Department Labor, Licensing and Regulation, Office of the State Fire Marshal
 
DOCKET NUMBER:
02-ALJ-11-0303-CC

APPEARANCES:
n/a
 

ORDERS:

ORDER

This matter is before me pursuant to a Notice of Appeal filed by 3 Steps Learning Center (Petitioner) on July 29, 2002. In its Notice, Petitioner appeals a July 17, 2002 Affirmation Order issued by the State Fire Marshal. On August 2, 2002, a hearing was held to determine whether Petitioner's appeal was timely filed.

At the commencement of the hearing, Respondent moved to dismiss Petitioner's appeal based upon its failure to file and serve upon all parties its appeal within five days after the State Fire Marshal affirmed a July 3, 2002 Order in which Petitioner was ordered to submit building plans for review. S.C. Code Ann. 23-9-70 provides, in pertinent part:

any person who feels aggrieved by any order or affirmed order of the State Fire Marshal may, within five days after the making or affirming of such order, appeal to an administrative law judge, as provided under Article 5 of Chapter 23 of Title 1, for review of such order and it shall be heard on the first convenient day.



Because the Fire Marshal's Affirmation Order was issued on July 17, 2002, argued Respondent, any appeal must have been filed no later than July 22, 2002, to bring it within the subject matter jurisdiction of the Administrative Law Judge Division ("ALJD").

In response, counsel for Petitioner argued that he relied on Rule 3 of the ALJD Rules of Procedure and Rule 6(e) of the South Carolina Rules of Civil Procedure when he determined the last date Petitioner's appeal could be filed. Because Respondent mailed the Order, Petitioner argues that Rule 3(C), ALJD, and Rule 6(e), SCRCP, require that five days be added to the five days provided by statute, which would fall on July 27, a Saturday. Rule 3(A) of the ALJD Rules provides that the last day of a period of time will not fall on a Saturday, Sunday, or Holiday. Therefore, Petitioner argued, it had until July 29, 2002, to file its appeal.

Alternatively, Petitioner argued that if its appeal was not filed timely, this tribunal should extend the period for it to file its appeal because counsel for Petitioner was involved in a car accident on July 22, 2002, and was unable to work until July 29, 2002. The South Carolina Rules of Civil Procedure permit the enlargement of time "upon motion made after the expiration of the specified period, for good cause shown." Rule 6(b), SCRCP.

Petitioner's arguments are without merit. First, Rule 3 of the ALJD Rules does not apply to the filing of Petitioner's Notice of Appeal because the Notice of Appeal (or agency transmittal) is the very method by which the Division acquires jurisdiction of a matter from an agency. See Rule 69, ALJDRP. Second, Rule 6 of the South Carolina Rules of Civil Procedure does not apply to the filing of Petitioner's Notice of Appeal because such rules do not apply to appeals of state agency final decisions. Although Rule 68 of the ALJD Rules provides that the Rules of Civil Procedure may apply in certain situations, this is not one of them. Finally, it is beyond the authority of the undersigned to extend the time for Petitioner to file its appeal.

To invoke the jurisdiction of the Division over a contested case, the petitioning party to file its request for a contested case hearing within 30 days after receipt of the agency decision unless otherwise provided by statute. See Rule 11, ALJDRP. In this case, S.C. Code Ann. § 23-9-70 provides that any challenge of an order of the State Fire Marshall be made within five days after such order is made or affirmed. (1) A failure to meet such required time deadlines is fatal since a failure to file on time denies jurisdiction to the hearing body. Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985); Burnett v. S.C. Highway Dep't., 252 S.C. 568, 167 S.E.2d 571 (1969); Stroup v. Duke Power Co., 216 S.C. 79, 56 S.E.2d 745 (1949). Therefore, for the Division to acquire jurisdiction of the current dispute, the appeal must be filed within "five days after the making or affirming of" the July 19 Order. The undisputed facts are that on July 17, 2002, the State Fire Marshal issued an Order affirming its Order of July 3. Counsel for Petitioner received the Affirmation Order on July 19, 2002 and filed Petitioner's Notice of Appeal with the Division on July 29, 2002. As of the date of the hearing, Petitioner had not yet served the Fire Marshal with notice of its appeal.

Regardless of whether the five days is calculated from July 17, the date of the Order, or July 19, the date the Order was received, a July 29 filing was untimely. Moreover, even if Rule 3, ALJDRP and/or Rule 6(e), SCRCP, do apply, Petitioner has still failed to invoke the jurisdiction of the Division because both sets of rules require a petitioner to serve the notice of appeal on all parties.

Therefore, I find that this Division is without jurisdiction to hear Petitioner's appeal.

IT IS HEREBY ORDERED that this matter is DISMISSED;

AND IT IS SO ORDERED.



______________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE



August 9, 2002

Columbia, South Carolina

1. § 23-9-70 sets the time period for appeal as "five days after the making or affirming of" an order of the State Fire Marshal. As such, the statute makes no allowances for the time it takes for an aggrieved party to receive notice that an order was made or affirmed. However, even assuming that the period is calculated from the time of receipt, Petitioner's filing is still untimely. During the hearing, counsel for Petitioner admitted receiving the July 17 Order on July 19, 2002, such that Petitioner's appeal should have been filed no later than July 24, 2002.


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