§ 1-23-600 — Hearings and proceedings.

South Carolina § 1-23-600

• Jurisdiction: South Carolina
• Title 1: ADMINISTRATION OF THE GOVERNMENT
• Ch. 23: STATE AGENCY RULE MAKING AND ADJUDICATION OF CONTESTED CASES

Text

(A) An administrative law judge shall preside over all hearings of contested cases as defined in Section 1-23-505 or Article I, Section 22, Constitution of the State of South Carolina, 1895, involving the departments of the executive branch of government as defined in Section 1-30-10 in which a single hearing officer, or an administrative law judge, is authorized or permitted by law or regulation to hear and decide these cases, except those arising under the: (1) Consolidated Procurement Code; (2) Public Service Commission; (3) Department of Employment and Workforce; (4) Workers' Compensation Commission, except as provided in Section 42-15-90; or (5) other cases or hearings which are prescribed for or mandated by federal law or regulation, unless otherwise by statute or regulation specifically assigned to the jurisdiction of the Administrative Law Court. Unless otherwise provided by statute, the standard of proof in a contested case is by a preponderance of the evidence. The South Carolina Rules of Evidence apply in all contested case proceedings before the Administrative Law Court. (B) All requests for a hearing before the Administrative Law Court must be filed in accordance with the court's rules of procedure. A party that files a request for a hearing with the Administrative Law Court must simultaneously serve a copy of the request on the affected agency. Upon the filing of the request, the chief judge shall assign an administrative law judge to the case. Notice of the contested case hearing must be issued in accordance with the rules of procedure of the Administrative Law Court. (C) A full and complete record must be kept of all contested cases and regulation hearings before an administrative law judge. All testimony must be reported, but need not be transcribed unless a transcript is requested by a party. The party requesting a transcript is responsible for the costs involved. Proceedings before administrative law judges are open to the public unless confidentiality is allowed or required by law. The presiding administrative law judge shall render the decision in a written order. The decisions or orders of administrative law judges are not required to be published but are available for public inspection unless confidentiality is allowed or required by law. (D) An administrative law judge also shall preside over all appeals from final decisions of contested cases pursuant to the Administrative Procedures Act, Article I, Section 22, Constitution of South Carolina, 1895, or another law, except that an appeal from a final order of the Public Service Commission and the State Ethics Commission is to the Supreme Court or the court of appeals as provided in the South Carolina Appellate Court Rules, an appeal from the Procurement Review Panel is to the court of appeals as provided in Section 11-35-4410, and an appeal from the Workers' Compensation Commission is to the court of appeals as provided in Section 42-17-60. An administrative law judge shall not hear an appeal from an inmate in the custody of the Department of Corrections involving the loss of the opportunity to earn sentence-related credits pursuant to Section 24-13-210(A) or Section 24-13-230(A) or an appeal involving the denial of parole to a potentially eligible inmate by the Department of Probation, Parole and Pardon Services. (E) Review by an administrative law judge of a final decision in a contested case, heard in the appellate jurisdiction of the Administrative Law Court, must be in the same manner as prescribed in Section 1-23-380 for judicial review of final agency decisions with the presiding administrative law judge exercising the same authority as the court of appeals, provided that a party aggrieved by a final decision of an administrative law judge is entitled to judicial review of the decision by the court of appeals pursuant to the provisions of Section 1-23-610. (F) Notwithstanding another provision of law, a state agency authorized by law to seek injunctive relief may apply to the Administrative Law Court for injunctive or equitable relief pursuant to Section 1-23-630. The provisions of this section do not affect the authority of an agency to apply for injunctive relief as part of a civil action filed in the court of common pleas. (G) Notwithstanding another provision of law, the Administrative Law Court has jurisdiction to review and enforce an administrative process issued by an agency or by a department of the executive branch of government, as defined in Section 1-30-10, such as a subpoena, administrative search warrant, cease and desist order, or other similar administrative order or process. A department or agency of the executive branch of government authorized by law to seek an administrative process may apply to the Administrative Law Court to issue or enforce an administrative process. A party aggrieved by an administrative process issued by a department or agency of the executive branch of government may apply to the Administrative Law Court for relief from the process as provided in the Rules of the Administrative Law Court. (H)(1) This subsection applies to timely filed requests for a contested case hearing of decisions by the Department of Environmental Services. Emergency actions taken by the Department of Environmental Services pursuant to an applicable statute or regulation are not subject to the provisions of this subsection. (2) A request for a contested case hearing for an agency order stays the order. A request for a contested case hearing for an order to revoke or suspend a license stays the revocation or suspension. A request for a contested case hearing for a decision to renew a license for an ongoing activity stays the renewed license, the previous license remaining in effect pending completion of administrative review. A request for a contested case hearing for a decision to issue a new license stays all actions for which the license is a prerequisite; however, matters not affected by the request may not be stayed by the filing of the request. If the request is filed for a subsequent license related to issues substantially similar to those considered in a previously licensed matter, the license may not be automatically stayed by the filing of the request. If the requesting party asserts in the request that the issues are not substantially similar to those considered in a previously licensed matter, then the license must be stayed until further order of the Administrative Law Court. Requests for contested case hearings challenging only the amount of fines or penalties must be considered not to affect those portions of such orders imposing substantive requirements. (3) The general rule of item (2) does not stay emergency actions taken by an agency pursuant to an applicable statute or regulation. (4)(a) Ninety days after a contested case is initiated before the Administrative Law Court, a party may move before the presiding administrative law judge to lift the stay imposed pursuant to this subsection or for a determination of the applicability of the automatic stay. A hearing must be held within thirty days after any party files a motion with the court and serves the motion upon the parties. The court shall lift the stay unless the party that requested a contested case hearing proves: (i) the likelihood of irreparable harm if the stay is lifted, (ii) the substantial likelihood that the party requesting the contested case and stay will succeed on the merits of the case, (iii) the balance of equities weigh in favor of continuing the stay, and (iv) continuing the stay serves the public interest. The judge must issue an order no later than fifteen business days after the hearing is concluded. If the stay is lifted, action undertaken by the permittee or licensee does not moot and is not otherwise considered an adjudication of the issues raised by the request for a contested case hearing. Notwithstanding the provisions of this item, the process to lift a stay as provided in this item does not apply to a contested case concerning a permit or license involving hazardous waste as defined in Section 44-56-20(6), and a stay in such a contested case must not be lifted until the contested case is concluded and the Administrative Law Court has filed its final order in the matter. (b) Notwithstanding any other provision of law, in a contested case arising under this subsection, the Administrative Law Court shall file a final decision on the merits of the case no later than twelve months after the contested case is filed with the Clerk of the Administrative Law Court, unless all parties to the contested case consent to an extension or the court finds substantial cause otherwise. (5) A final decision issued by the Administrative Law Court in a contested case may not be stayed except by order of the Administrative Law Court or the Court of Appeals. (6) Nothing contained in this subsection constitutes a limitation on the authority of the Administrative Law Court to impose a stay as otherwise provided by statute or by rule of court. (I) If a final order of the Administrative Law Court is not appealed in accordance with the provisions of Section 1-23-610, upon request of a party to the proceedings, the clerk of the Administrative Law Court shall file a certified copy of the final order with a clerk of the circuit court, as requested, or court of competent jurisdiction, as requested. After filing, the certified order has the same effect as a judgment of the court where filed and may be recorded, enforced, or satisfied in the same manner as a judgment of that court. (J) If an attorney of record is called to appear in actions pending in other tribunals in this State, the action in the Administrative Law Court has priority as is appropriate. Courts and counsel have the obligation to adjust schedules to accord with the spirit of comity between the Administrative Law Court and other state courts.

Legislative History

HISTORY: 1993 Act No. 181, SECTION 19; 1994 Act No. 452, SECTIONS 1, 5; 1995 Act No. 92, SECTION 1; 2004 Act No. 202, SECTION 2, eff April 26, 2004; 2006 Act No. 381, SECTION 1, eff June 13, 2006; 2006 Act No. 387, SECTION 4, eff July 1, 2006; 2007 Act No. 111, Pt I, SECTION 1, eff July 1, 2007, applicable to injuries that occur on or after that date; 2008 Act No. 188, SECTION 1, eff January 1, 2009; 2008 Act No. 201, SECTION 13, eff February 10, 2009; 2008 Act No. 334, SECTION 7, eff June 16, 2008; 2010 Act No. 278, SECTION 23, eff July 1, 2010; 2012 Act No. 183, SECTION 2, eff June 7, 2012; 2012 Act No. 212, SECTION 1, eff June 7, 2012; 2018 Act No. 134 (S.105), SECTION 1, eff March 12, 2018; 2019 Act No. 41 (S.530), SECTION 73, eff May 13, 2019; 2023 Act No. 60 (S.399), SECTION 12, eff July 1, 2024. Code Commissioner's Note At the direction of the Code Commissioner, the 2006 amendments were read together. The text of the section as amended by Act 387 is set forth above, except that in subsection (B), "those matters which are otherwise provided for in title 56" was deleted following "Occupational Health and Safety Act", in subparagraph (G)(3), "(G)" was substituted for "(F)", and subsection (E) from Act 381 was added as subsection (H). At the direction of the Code Commissioner, the amendment of this section by 2008 Act No. 334, SECTION 1, effective June 16, 2008, was deemed to prevail over the amendment by 2008 Act No. 201, SECTION 13, effective February 10, 2009, because it was enacted later. The section was also amended by 2008 Act No. 188, SECTION 1, effective January 1, 2009, to delete the reference to cases arising under the Occupational Safety and Health Act in subsection (B). Among other changes, the amendment by Act 334 redesignated subsection (B) as subsection (A) and included cases arising under the Occupational Safety and Health Act as item (1). At the direction of the Code Commissioner, the deletion of the reference to the Occupational Safety and Health Act by Act 188 effective January 1, 2009 was applied to subsection (A) as amended by Act 334 on the basis that the reference to OSHA was inadvertently included in the later act and its inclusion was not consistent with the intent of the General Assembly in passing Act 188. Accordingly, in subsection (A) as amended by Act 334, item (1) was deleted effective January 1, 2009, and items (2) to (6) redesignated as items (1) to (5). At the direction of the Code Commissioner, the reference in subsection (E) to SECTION 1-23-380(A) was changed to SECTION 1-23-380 to conform to the amendment of that section by 2008 Act No. 334, SECTION 5. Pursuant to the directive to the Code Commissioner in 2010 Act No. 146, SECTION 122, "Department of Employment and Workforce" was substituted for all references to "Employment Security Commission", and "Executive Director of the Department of Employment and Workforce" or "executive director" was substituted for all references to the "Chairman of the Employment Security Commission" or "chairman" that refer to the Chairman of the Employment Security Commission, as appropriate. Editor's Note 2006 Act No. 387, SECTION 53, provides as follows: "This act is intended to provide a uniform procedure for contested cases and appeals from administrative agencies and to the extent that a provision of this act conflicts with an existing statute or regulation, the provisions of this act are controlling." 2006 Act No. 387, SECTION 57, provides as follows: "This act takes effect on July 1, 2006, and applies to any actions pending on or after the effective date of the act. No pending or vested right, civil action, special proceeding, or appeal of a final administrative decision exists under the former law as of the effective date of this act, except for appeals of Department of Health and Environmental Control Ocean and Coastal Resource Management and Environmental Quality Control permits that are before the Administrative Law Court on the effective date of this act and petitions for judicial review that are pending before the circuit court. For those actions only, the department shall hear appeals from the administrative law judges and the circuit court shall hear pending petitions for judicial review in accordance with the former law. Thereafter, any appeal of those actions shall proceed as provided in this act for review. For all other actions pending on the effective date of this act, the action proceeds as provided in this act for review." 2010 Act 278, SECTION 26, provides as follows: "This act takes effect July 1, 2010; provided, the provisions of this act do not apply to any matter pending before a court of this State prior to June 1, 2010." 2019 Act No. 41, SECTION 80, provides as follows: "SECTION 80. This act takes effect upon approval by the Governor and applies to solicitations issued after that date." Effect of Amendment The 2004 amendment in subsection (A) substituted "must" for "shall" and "is responsible" for "shall be responsible"; in subsections (B) and (D) deleted "of the division" following "administrative law judge"; in subsection (B) substituted "Court" for "Judge Division"; in subsection (D), inserted ", or as otherwise provided by law," following "Licensing and Regulation"; rewrote subsection (C); deleted subsection (E) relating to cases initiated before and after May 1, 1994; and made nonsubstantive changes. The first 2006 amendment, in subsection (B), deleted "those matters which are otherwise provided for in Title 56," following "Occupational Health and Safety Act"; and added subsection (E) [redesignated as (H)] relating to the filing of final orders. The second 2006 amendment rewrote subsections (B) and (D) and added subsection (E), (F) and (G) relating to appeal of orders of the State Human Affairs Commission to the Administrative Law Court. The 2007 amendment, in subsection (D), substituted "Court of Appeals" for "circuit court" relating to appeals from the Workers' Compensation Commission. The first 2008 amendment, in subsection (B), deleted "arising under the Occupational Safety and Health Act,". The second 2008 amendment, in subsection (B), added the second sentence relating to the standard of proof in a contested case' and, in subsection (H), in the first sentence deleted "petition for judicial review of a" preceding "final order" and substituted "appealed" for "filed". The third 2008 amendment, deleted subsection (A) relating to the keeping and availability of records and reenacted it as subsection (C); redesignated subsections (B) and (C) as subsections (A) and (B); in subsection (A) substituted "1-23-505" for "1-23-310", designated paragraphs (1) to (6) [redesignated as (1) to (5) effective January 1, 2009 at the direction of the Code Commissioner] from existing text, and added the second and third sentences of (6) [redesignated as (5)] relating to standard of proof and applicability of the South Carolina Rules of Evidence; in subsection (B), added the fourth sentence relating to notice of the contested case hearing; in subsection (D), added the second sentence relating to certain appeals from inmates; added subsection (E); redesignated subsections (E) to (H) as (F) to (I); in subsection (G), substituted "Administrative Law Court" for "chief administrative law judge" and added references to agencies of the executive branch in two places; in paragraph (H)(2), in the fourth sentence added "however," and the fifth and sixth sentences; in paragraph (H)(3), substituted "(H)(2)" for "(G)(2)"; in paragraph (H)(4), added the second through fourth sentences; in paragraph (H)(5), deleted from the end ", or cases when Section 1-23-610(A) applies, the appropriate board or commission"; and, in subsection (I), in the first sentence deleted "petition for judicial review of a" preceding "final order" and substituted "filed" for "appealed", "1-23-610" for "1-23-600" and 'shall" for "must". The 2010 amendment added subsection (J) relating to priority of actions in different courts. The first 2012 amendment in subsection (A)(4), inserted ", except as provided in Section 42-15-90". The second 2012 amendment in subsection (D), deleted ", and an appeal from the Department of Employment and Workforce is to the circuit court as provided in Section 41-35-750", and made other changes. 2018 Act No. 134, SECTION 1, rewrote (H), providing for the imposition and duration of stays involving contested cases before the Administrative Law Court, the manner in which and requirements under which these stays may be lifted, exceptions to the general provision regarding the lifting of stays, and when the court must render a final decision on the merits of the contested case. 2019 Act No. 41, SECTION 73, in (D), in the first sentence, substituted "Constitution of South Carolina" for "Constitution of the State of South Carolina", and "court of appeals" for "circuit court". 2023 Act No. 60, SECTION 12, rewrote (H)(1).