ORDERS:
ORDER
This matter is before me pursuant to a Motion by the Petitioner, dated January 10, 1996. The
Division has not received an agency transmittal notifying the Division of a pending contested case.
See ALJD Rule 12. Rather, the Petitioner makes a Motion that this case be removed to the
Administrative Law Judge Division ("Division") from the Real Estate Commission
("Commission") for a contested case hearing before the Division. This case involves formal
charges brought against the Petitioner by the Real Estate Commission against the Petitioner's
license to sell real estate in South Carolina. A contested case hearing is scheduled in this matter
before the Commission for January 12, 1996. The Respondent sets forth that this contested case
hearing should be properly heard before the Administrative Law Judge Division rather than the
Commission.
The jurisdiction to hear a contested case of the Commission is not assigned to the Division by
statute. The Division presides over contested case hearings under the Administrative Procedures
Act involving the "departments of the executive branch of government in which a single hearing
officer is authorized or permitted by law or regulation to hear and decide such cases" except in
cases that are specifically excluded or granted to the Division. The Restructuring Act of 1993
establishes that the Real Estate Commission is a professional and occupational licensing board
under the Department of Labor, Licensing and Regulation. S.C. Code Ann. § 1-30-65 (C) (Supp.
1995). S.C. Code Ann. § 1-23-600 (D)(Supp. 1995) provides that the Division shall preside over
the appeals of contested cases before professional licensing boards or commissions with the
Department of Labor, Licensing and Regulation. In fact, S. C. Code Ann. § 40-57-220 (Supp.
1995) provides that a licensee aggrieved by the Commission may appeal the decision to the
Administrative Law Judge Division.
A Court has the duty to determine whether it has jurisdiction of a matter. Bridges v. Wyandotte
Worsted Co., 243 S.C. 1, 132 S.E.2d 18, (1963). An inquiry into subject matter jurisdiction is
proper even with objection regarding jurisdiction from either party. Williamson v. Richards, 158
S.C. 534, 155 S.E. 890 (1930). Since this is a contested case before the Real Estate Commission,
which is statutorily under the Department of Labor, Licensing and Regulation, this Division does
not have subject matter jurisdiction to hear this contested case.
The Petitioner further seeks a continuance of the contested case before the Commission. The
Petitioner sets forth that the Respondent has denied his discovery request and that he will be
prejudiced if additional time is not allotted for discovery. A party who is aggrieved by a final
decision of an agency is entitled to judicial review of that decision. However, the party must first
exhaust all administrative remedies unless review of the final agency decision would not "provide
an adequate remedy." S.C. Code Ann. § 1-23-380 (A)(Supp. 1995). An Order denying a
discovery request is not subject to an interlocutory review because it does not involve the merits
or substantial rights in the case. Pendergrass v. Martin, 275 S. C. 413, 272 S.E.2d 172 (1980);
Lowndes Products, Inc. v. Brower, 262 S.C. 431, 205 S.E.2d 184 (1979)(whether a party is
prejudiced by an Order denying discovery can best be determined in light of the subsequent
developments at trial). In this case, if the Petitioner is aggrieved by the final decision of the
Commission, the Petitioner may seek appellate review before the Division. However, the
Petitioner may not seek an interlocutory review of the agency's determinations concerning
discovery because adequate remedies exist at law to correct an improper denial of a discovery
request.
IT IS THEREFORE ORDERED that this case be dismissed.
______________________________
Ralph King Anderson, III
Administrative Law Judge
January 11, 1996
Columbia, South Carolina |
