ORDERS:
ORDER OF DISMISSAL
This matter is before the Administrative Law Judge Division ("Division") pursuant to the Appellant's "Motion to Vacate, Set
Aside, and Expunge the Record," filed on October 7, 1999. For the following reasons, the Division lacks jurisdiction to hear
the motion, and this matter is hereby dismissed.
STATEMENT OF THE CASE
Appellant was formerly licensed by the Commission to practice real estate in the State of South Carolina. On September 17,
1997, the Commission issued an Order revoking Petitioner's real estate broker's license. Petitioner appealed this Order to
the Division, and on March 25, 1998, Administrative Law Judge Ralph King Anderson, III issued an Order affirming the
Commission's decision. Subsequently, Petitioner appealed Judge Anderson's decision to the Court of Common Pleas for the
Fifth Judicial Circuit, which affirmed Judge Anderson's Order on October 8, 1998. Petitioner then appealed the decision of
the Circuit Court to the South Carolina Supreme Court. The Supreme Court referred the case to the Court of Appeals,
where the appeal is presently pending.
Appellant now challenges a Consent Order, issued by the Commission on December 16, 1992, which publicly reprimanded
Appellant and imposed an administrative fine of $500.00. This Consent Order is unrelated to the Order now on appeal to the
South Carolina Court of Appeals. The Order is based on the allegations that Appellant failed to disclose previous felony
convictions to the Commission when he applied for a real estate salesman's license in both 1985 and 1989, and that the
Appellant failed to notify the Commission of a subsequent criminal conviction as required by Section 40-57-170(A)(16) of
the South Carolina Code. The Order specifically provides that "Defendant [Appellant herein] knowingly and voluntarily
enters into this Agreement and waives his right to a hearing on the matters forming the basis of this agreement. Defendant
also waives any right to appeal the Commissioner's Order." (Emphasis added).
Appellant now challenges the 1992 Consent Order on several grounds, including an allegation that the "Notice of Charges
issued on August 30, 1991 are [sic] incorrect," and that the Appellant was "misled by the Commission that he had violated
the Real Estate Regulations" and was "coerced and misled into accepting reprimand and paying fine . . . which is/was a
violation of [Appellant's] right to Due Process of Law." Appellant asks that the Order be vacated, that his records relating
to the charges set forth in the Order be expunged, and that the Commission be ordered to pay him $250,000 in damages.
DISCUSSION
A threshold question in every case is whether the court has subject matter jurisdiction over the controversy before it. Issues
relating to subject matter jurisdiction may be raised at any time, cannot be waived by the parties, and may be considered by
the court on its own motion. See Johnson v. State, 319 S.C. 62, 459 S.E.2d 840 (1995). In addition, the Administrative
Law Judge Division is an agency of the executive branch of the State of South Carolina. As an administrative agency, the
Division has only such powers as have been conferred upon it by law, and must act within the authority created for that
purpose. Bazzle v. Huff, 319 S.C. 443, 462 S.E.2d 273 (1995).
In this case, the Appellant's request amounts to an appeal of the Commission's 1992 Order. In addition to the fact that the
Order specifically provides that the right to an appeal is waived, the appeal comes some seven years after the issuance of the
Order. Under no stretch of the imagination can it be considered timely filed. See S.C. Code Ann. § 40-57-200 (Rev.
1986)(controlling statute in 1992, which provided that appeals from decisions of the Commission were to be taken to the
Circuit Court pursuant to the Administrative Procedures Act); § 1-23-380(b) (controlling statute in 1992, which provided
that proceedings for judicial review of administrative decisions were initiated by filing a petition for judicial review in the
Circuit Court within thirty days after the final decision of the agency). At the time of the issuance of the Commission's
Order in 1992, appeal to the Circuit Court was the only avenue for review of such an order. Petitioner failed to avail himself
of this remedy. The failure to timely file an appeal deprives the court of subject matter jurisdiction and this court does not
have the authority to extend or expand the time in which the notice of appeal may be filed. Mears v. Mears, 287 S.C. 168,
337 S.E.2d 206 (1985). Moreover, if the request for the hearing or the filing of a notice of appeal is not timely served,
jurisdiction is never vested in this court and Appellant's request must be denied. Southbridge Properties, Inc., v. Jones, 292
S.C. 198, 355 S.E.2d 535 (1987). Even if this case is not considered to be an appeal of the Commission's Order, there is no
statute or regulation which would confer jurisdiction upon the Division to hear the Appellant's request at this late date.
Accordingly, this case must be dismissed for lack of subject matter jurisdiction.
ORDER
For the foregoing reasons, this matter is hereby dismissed for lack of jurisdiction.
AND IT IS SO ORDERED.
_______________________________
Marvin F. Kittrell
Administrative Law Judge
Columbia, South Carolina
October 27, 1999 |
