ORDERS:
ORDER GRANTING MOTION TO DISMISS
I. Introduction
William Farr and Brian Farr, and William Farr and Brian Farr, d/b/a L & B Café (Farrs) seek to challenge DHEC's decision
to revoke the Farrs' permit to operate an underground storage tank. On June 9, 2000, Respondent, the South Carolina
Department of Health and Environmental Control (DHEC), filed a Motion to Dismiss the Farrs' challenge since the Farrs
failed to file an appeal within a fifteen (15) day time frame. Under the applicable law, the Motion must be granted.
II. Motion to Dismiss For Untimely Appeal
The jurisdictional requirements for an adjudicatory hearing are typically set by the rules and regulations of the administrative
agency involved in the dispute. 73A Public Administrative Law and Procedure § 118 (1983). The jurisdictional
requirements of a contested case before the ALJD require the filing of a petition "within the time frame authorized by the
agency [involved in the dispute]. " ALJD Rule 11.
Here, DHEC is the agency involved in the dispute and DHEC's regulation requires that the petition "must be filed within 15
days . . . following actual or constructive notice of a final staff decision on a licensing matter." S.C. Code Regs.
61-72.201.A (Supp. 1999). The importance of a timely filing cannot be overstated since a late filing is fatal to the
jurisdiction of the adjudicating body. Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985), Burned v. S. C. Highway
Dept, 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). Thus, if the
Farrs did not timely file a petition with DHEC, the ALJD has no jurisdiction to provide any relief.
A. Facts of Jurisdiction
On May 1, 2000, DHEC served Brian Farr with a letter of revocation of the permit to operate an underground storage tank.
Similarly, on May 2, 2000, William Farr was also served.
On May 18, the Farrs received a telephone call from an employee of DHEC reminding them that an appeal had not yet been
filed. In response, the Farrs faxed a letter of appeal to the Underground Storage Tank (UST) section of DHEC. An
employee of the UST section hand-carried the faxed document to the Clerk of the DHEC Board. The Clerk declined to
accept the faxed document explaining that an original signature was required before an appeal could be received.
An employee of DHEC telephoned the Farrs informing them that the faxed document was unacceptable and that an original
signature on a letter of appeal was required. The Farrs subsequently mailed a letter of appeal to the Clerk of the Board with
the appeal letter received on June 1, 2000.
Given these facts, the issue is whether the petition was timely filed.
B. Computing Time
In deciding if the petition was timely filed, the method for computing the fifteen day period must be established. Regs. 61-72
does not address how time is counted. Further, while the ALJD Rules establish how time is computed (see ALJD Rule 3),
the ALJD Rules do not apply until jurisdiction vests in the ALJD. ALJD Rule 53. Thus, with no method imposed by law,
the accepted method for counting time is to exclude the first day but include the last. 86 C.J.S. Time § 13(1) (1954).
Since the latest date of service of the revocation letter was May 2, 2000, applying the general rule, the last day for filing a
challenge to the DHEC revocation was May 17, 2000. Given these dates, even the faxed challenge is not timely since it was
not received until May 18, 2000. Accordingly, no petition having been received by the Clerk of the DHEC Board on or
before May 17, 2000, the ALJD lacks jurisdiction. Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985)
III. Order
The petition filed by William Farr and Brian Farr, and William Farr and Brian Farr, d/b/a L & B Café was not filed timely.
Thus, the ALJD lacks subject matter jurisdiction, and the Motion to Dismiss must be granted.
AND IT IS SO ORDERED.
____________________________
Ray N. Stevens
Administrative Law Judge
Dated: June 29, 2000
Columbia, South Carolina |