ORDERS:
ORDER ON MOTION TO DISMISS
I. Introduction
On July 7, 1997, Respondent's Attorney, Samuel L. Finklea, filed a Motion to Dismiss on the ground
that Petitioner failed to file an appeal within the applicable fifteen (15) day time frame, therefore,
requiring dismissal of the appeal. The motion was heard by telephone conference on August 15,
1997, at 9:00 a.m. Samuel L. Finklea, III, Attorney for Respondent, South Carolina Department of
Health and Environmental Control (DHEC) was present along with Bobby Loggins, d/b/a B&B
Roofing (Loggins), appearing pro se. Under the facts here, Loggins failed to establish subject matter
jurisdiction in the ALJD since the protest of the DHEC decision was untimely, and, thus, the Motion
To Dismiss must be granted.
II. Motion to Dismiss For Untimely Appeal
In general, 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). More particularly, jurisdiction of a contested case before the
Administrative Law Judge Division (ALJD) requires the petitioning party to file a petition "within
the time frame authorized by the agency [involved in the dispute]." ALJD Rule 11. 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).
For the ALJD to acquire jurisdiction of the current dispute, the petition "must be filed within 15 days
. . . following receipt of an administrative order." S.C. Code Regs. 61-72.201.A (Supp. 1996). The
undisputed facts are that on June 12, 1997, DHEC issued a decision concluding Loggins had
improperly disposed of construction and demolition debris at a site on Cemetery Road in Ware
Shoals, South Carolina. Loggins received the DHEC decision on June 17, 1997.
A. Computing of Time
The first issue in deciding jurisdiction is determining the method for computing the fifteen day
period. 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 are not applicable for computing the days
within which to file an appeal since the ALJD rules apply only after jurisdiction vests in the ALJD.
ALJD Rule 53. Thus, in the absence of a method of counting imposed by law, the generally accepted
method for counting time (exclude the first day of the period but include the last) is applied in the
instant case. 86 C.J.S. Time § 13(1) (1954). Applying the general rule shows the fifteenth day is July
2, 1997. Thus, unless a petition was filed by July 2, 1997, the ALJD lacks jurisdiction.
Under the facts here, Loggins placed the undated petition in the United States mail in the Greenwood
area. The petition was received by the Clerk of the DHEC Board on July 3, 1997. Accordingly, if
the filing is complete upon mailing, under normal delivery standards, the mailing would have been
made no later than July 2, 1997 and thus the filing would be timely. If filing is complete only upon
receipt by the DHEC Board, however, the petition was not received until July 3, 1997 and thus was
not timely. Accordingly, the second issue is whether a petition is filed when mailed or when
received.
B. Filing of Petition
The regulation is specific and unambiguous. A petition is filed "upon receipt by the Clerk of the
Board of DHEC." Regs. 61-72, Part III, 301. Regulations authorized by the legislature (such as
Regs. 61-72) have the force of law. Faile v. S.C. Employment Security Commission, 276 S.C. 536,
230 S.E.2d 219 (1976). When the terms of a provision are clear and unambiguous, those terms must
be applied in their literal and ordinary meaning. Lail v. Richland Wrecking Company, Inc., 280
S.C. 532, 313 S.E.2d 342 (Ct. App. 1984). Here, while the regulation specifically allows mailing,
the regulation is equally specific in holding that the filing is not accomplished until received by the
Clerk of the DHEC Board. Thus, mailing the petition on or before the deadline of July 2, 1997,
cannot remove the fact the petition was not received by the Clerk until July 3, 1997.
III. Order
Accordingly, the petition was not filed timely, 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
This 19th day of August, 1997.
Columbia, South Carolina |
