Download This Bill in Microsoft Word format
Indicates Matter Stricken
Indicates New Matter
H. 4792
STATUS INFORMATION
General Bill
Sponsors: Rep. Harrison
Document Path: l:\council\bills\pt\1884ahb04.doc
Introduced in the House on February 18, 2004
Currently residing in the House Committee on Judiciary
Summary: Judicial Review of Administrative Decisions
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 2/18/2004 House Introduced and read first time HJ-59 2/18/2004 House Referred to Committee on Judiciary HJ-59
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND SECTIONS 1-23-380, 1-23-390, 1-23-600, ALL AS AMENDED, AND 1-23-610, CODE OF LAWS OF SOUTH CAROLINA, 1976, ALL RELATING TO JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS, SO AS TO PROVIDE THAT JUDICIAL REVIEW OF AN ADMINISTRATIVE DECISION MUST BE MADE BY AN ADMINISTRATIVE LAW JUDGE AND THAT DECISION MAY BE APPEALED TO THE SOUTH CAROLINA COURT OF APPEALS; TO AMEND SECTION 14-8-200, AS AMENDED, RELATING TO THE JURISDICTION OF THE COURT OF APPEALS, SO AS TO ADD THAT THE COURT OF APPEALS HAS JURISDICTION OVER ANY CASE IN WHICH AN APPEAL IS TAKEN FROM A FINAL DECISION OF AN AGENCY AND A FINAL DECISION OF AN ADMINISTRATIVE LAW JUDGE; TO AMEND SECTION 8-13-320, RELATING TO AN ORDER OF THE STATE ETHICS COMMISSION, SO AS TO PROVIDE FOR APPEAL FROM A FINAL DECISION OF THE COMMISSION TO THE SOUTH CAROLINA COURT OF APPEALS AS PROVIDED IN THE SOUTH CAROLINA APPELLATE COURT RULES; TO AMEND SECTION 41-35-750, AS AMENDED, RELATING TO A DECISION OF THE EMPLOYMENT SECURITY COMMISSION, SO AS TO PROVIDE FOR APPEAL WITHIN THIRTY DAYS OF A FINAL DECISION BY THE COMMISSION TO THE SOUTH CAROLINA COURT OF APPEALS AS PROVIDED IN THE SOUTH CAROLINA APPELLATE COURT RULES; TO AMEND SECTION 42-17-60, AS AMENDED, RELATING TO A DECISION OF THE WORKERS' COMPENSATION COMMISSION, SO AS TO PROVIDE FOR APPEAL FROM A FINAL DECISION OF THE COMMISSION TO THE SOUTH CAROLINA COURT OF APPEALS AS PROVIDED IN THE SOUTH CAROLINA APPELLATE COURT RULES; TO AMEND SECTIONS 58-5-330, 58-5-340, 58-5-990, 58-9-1410, AND 58-27-2310, ALL RELATING TO AN ORDER OR DECISION BY THE PUBLIC SERVICE COMMISSION, SO AS TO PROVIDE FOR APPEAL FROM A FINAL DECISION OF THE COMMISSION TO THE SOUTH CAROLINA SUPREME COURT OR COURT OF APPEALS AS PROVIDED BY STATUTE OR THE SOUTH CAROLINA APPELLATE COURT RULES; TO AMEND SECTION 1-13-90, RELATING TO AN ORDER OF THE STATE HUMAN AFFAIRS COMMISSION, SECTION 8-17-340, AS AMENDED, RELATING TO A DECISION OF THE STATE EMPLOYEE GRIEVANCE COMMITTEE, SECTION 11-35-4410, AS AMENDED, RELATING TO A DECISION OF THE PROCUREMENT REVIEW PANEL, SECTION 31-21-130, RELATING TO A DECISION OF THE HUMAN AFFAIRS COMMISSION, SECTION 33-56-140, AS AMENDED, RELATING TO THE SECRETARY OF STATE BRINGING AN ACTION TO ENJOIN A CHARITY FROM CONTINUING A VIOLATION OF THE SOLICITATION OF CHARITABLE FUNDS ACT, SECTIONS 35-1-1310, 35-1-1320, AND 35-1-1330, ALL AS AMENDED, ALL RELATING TO AN ORDER BY THE SECURITIES COMMISSIONER, SECTIONS 37-6-108, AS AMENDED, 37-6-402, AND 37-6-414, ALL RELATING TO ADMINISTRATIVE ENFORCEMENT ORDERS, SECTION 39-37-100, AS AMENDED, RELATING TO A DECISION OF THE DEPARTMENT OF AGRICULTURE, SECTION 43-25-90, RELATING TO A DECISION OF THE COMMISSION FOR THE BLIND, SECTION 44-1-50, RELATING TO THE POWERS AND DUTIES OF THE BOARD OF THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, SECTION 44-7-220, RELATING TO A FINAL BOARD DECISION OF THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, SECTION 45-9-75, RELATING TO A DETERMINATION BY A PANEL OF THE STATE HUMAN AFFAIRS COMMISSION, SECTION 46-3-220, RELATING TO AN ORDER OR DECISION BY THE COMMISSIONER OF AGRICULTURE, SECTIONS 47-17-50 AND 47-19-60, BOTH RELATING TO A DETERMINATION BY THE DIRECTOR OF THE LIVESTOCK-POULTRY HEALTH DEPARTMENT OF CLEMSON UNIVERSITY, SECTIONS 48-20-160, 48-20-190, BOTH AS AMENDED, AND 48-20-200, ALL RELATING TO A DECISION OF THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, SECTION 48-39-150, AS AMENDED, RELATING TO THE APPROVAL OR DENIAL OF A PERMIT BY THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, SECTION 54-3-470, RELATING TO AN ORDER OF THE STATE PORTS AUTHORITY, SECTIONS 55-5-230, 55-5-240, 55-5-250, ALL AS AMENDED, AND 55-8-20, ALL RELATING TO AN ORDER OF THE DIVISION OF AERONAUTICS, SECTIONS 59-25-260, 59-25-830, AND 59-40-90, ALL AS AMENDED, ALL RELATING TO DECISIONS BY THE STATE BOARD OF EDUCATION, SECTION 59-58-120, AS AMENDED, RELATING TO A DECISION OF THE COMMISSION ON HIGHER EDUCATION, ALL SO AS TO PROVIDE FOR JUDICIAL REVIEW OF THE ADMINISTRATIVE DECISION BY AN ADMINISTRATIVE LAW JUDGE AND THAT DECISION APPEALED TO THE SOUTH CAROLINA COURT OF APPEALS; AND TO REPEAL SECTIONS 58-5-350, 58-5-360, 58-9-1420, 58-9-1440, 58-9-1460, 58-9-1470, 58-9-1480, AND 58-27-2330, ALL RELATING TO JUDICIAL REVIEW OF A DECISION BY THE PUBLIC SERVICE COMMISSION.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 1-23-380 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 1-23-380. (A) A party who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this article, Article 1, and Article 5. This section does not limit utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy. Except as otherwise provided by law, appeal is to the court of appeals.
(1) Proceedings for review are instituted by serving and filing a petition in the circuit court notice of appeal as provided in the South Carolina Appellate Court Rules within thirty days after the final decision of the agency or, if a rehearing is requested, within thirty days after the decision thereon is rendered. Copies of the petition notice of appeal shall must be served upon the agency, the Administrative Law Judge Division, and all parties of record.
(2) Except as otherwise provided in this chapter, The the serving and filing of the petition notice of appeal does not itself stay enforcement of the agency decision. The serving and filing of a notice of appeal by a licensee for review of a fine or penalty or of its license stays only those provisions for which review is sought and matters not affected by the notice of appeal are not stayed. The agency or administrative law judge may grant, or the reviewing court may order, a stay upon appropriate terms, upon the filing of a petition under Rule 65 of the South Carolina Rules of Civil Procedure.
(3) Within thirty days after the service of the petition, or within further time allowed by the court, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record.
(4)(3) If, before the date set for hearing, a timely application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that the evidence and any modifications, new findings, or decisions with the reviewing court.
(5)(4) The review shall must be conducted by the court without a jury and shall must be confined to the record. In cases of alleged irregularities in procedure before the agency or the Administrative Law Judge Division, not shown in the record, and established by proof thereon may be taken in satisfactory to the court, the case may be remanded to the agency or the Administrative Law Judge Division for action as the court deems appropriate. The court, upon request, shall hear oral argument and receive written briefs.
(6)(5) The court shall may not substitute its judgment for that the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(B) Review by an administrative law judge of a final decision in a contested case, decided by a professional and occupational licensing board within the Department of Labor, Licensing, and Regulation heard in the appellate jurisdiction of the Administrative Law Judge Division, shall must be done in the same manner prescribed in subsection (A) for circuit court judicial review of final agency decisions, with the presiding administrative law judge exercising the same authority as the circuit court court of appeals; provided, however, that a party aggrieved by a final decision of an administrative law judge in such a case is entitled to judicial review of that decision by the circuit court court of appeals under pursuant to the provisions of subsection (A) of this section and pursuant to Section 1-23-610(C)."
SECTION 2. Section 1-23-390 of the 1976 Code, as last amended by Act 55 of 1999, is further amended to read:
"Section 1-23-390. An aggrieved party may obtain a review of any a final judgment of the circuit court or the court of appeals under pursuant to this article by taking an appeal in the manner provided by the South Carolina Appellate Court Rules as in other civil cases."
SECTION 3. Section 1-23-600 of the 1976 Code, as last amended by Act 92 of 1995, is further amended to read:
"Section 1-23-600. (A) A full and complete record shall must be kept of all contested cases and regulation hearings before an administrative law judge. All testimony shall must be reported and need not be transcribed unless a transcript is requested by any party. The party requesting a transcript shall be 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 these administrative law judges are not required to be published but are available for public inspection unless the confidentiality thereof is allowed or required by law.
(B) An administrative law judge of the division shall preside over all hearings of contested cases as defined in Section 1-23-310 or Article I, Section 22, Constitution of the State of South Carolina, 1895, involving the departments of the executive branch of government in which a single hearing officer, or an administrative law judge, is authorized or permitted by law or regulation to hear and decide such these cases, except those arising under the Occupational Safety and Health Act, those matters which are otherwise provided for in Title 56, those matters heard by the Public Service Commission, the Employment Security Commission, the Procurement Review Panel, the Workers' Compensation Commission, or those other cases or hearings which are prescribed for or mandated by federal law or federal regulation, unless otherwise by law statute or regulation specifically assigned to the jurisdiction of the Administrative Law Judge Division.
(C) Departments shall notify the Administrative Law Judge Division of all pending contested cases. Upon notification, the chief judge shall assign an administrative law judge to each contested case.
(D) An administrative law judge of the division also shall preside over all hearings of appeals from final decisions of contested cases before professional and occupational licensing boards or commissions within the Department of Labor, Licensing, and Regulation pursuant to Section 1-23-380 pursuant to the Administrative Procedures Act, Article I, Section 22, Constitution of the State of South Carolina, 1895, or another law, except that an appeal from a final order of the Employment Security Commission, the Workers' Compensation Commission, 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.
(E) Notwithstanding the other provisions of this section, cases initiated before May 1, 1994, to which an administrative law judge would be assigned shall be heard and decided by a special hearing officer appointed by the governing authority of the appropriate department. A special hearing officer shall have the same duties and authority as an administrative law judge under the provisions of this article. Cases initiated on or after May 1, 1994, shall be heard and decided by an administrative law judge pursuant to the provisions of this article. Notwithstanding another provision of law, a state agency authorized by law to seek injunctive relief may apply to the Administrative Law Judge Division for injunctive or equitable relief pursuant to Section 1-23-630. This section does 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.
(F) Notwithstanding another provision of law, the Administrative Law Judge Division has jurisdiction to review and enforce an administrative process issued by a state agency such as a subpoena, administrative search warrant, cease and desist order, or other similar administrative order or process. A state agency authorized by law to seek an administrative process may apply to the chief administrative law judge or his designee to issue or enforce an administrative process, An aggrieved party may apply to the chief administrative law judge for relief from the process as provided in the Rules of the Administrative Law Judge Division."
SECTION 4. Section 1-23-610 of the 1976 Code, as added by Act 181 of 1993, is amended to read:
"Section 1-23-610. (A) For quasi-judicial review of any final decision of an administrative law judge of cases involving departments governed by a board or commission authorized to exercise the sovereignty of the State, a petition by an aggrieved party must be filed with the appropriate board or commission and served on the opposing party not more than thirty days after the party receives the final decision and order of the administrative law judge. Appeal in these matters is by right. A party aggrieved by a final decision of a board in such a case is entitled to judicial review of that decision by the Circuit Court under the provisions of (A) of this section and pursuant to Section 1-23-610(C).
(B) For judicial review of any a final decision of an administrative law judge of cases involving departments governed by the single director, a petition notice of appeal by an aggrieved party must be served and filed with the Circuit court of appeals as provided in the South Carolina Appellant Court Rules in civil cases and served on the opposing party not more than thirty days after the party receives the final decision and order of the administrative law judge. Appeal in these matters is by right.
(C) For judicial review of any final decision of an administrative law judge of cases involving professional and occupational licensing boards within the Department of Labor, Licensing, and Regulation, a petition by an aggrieved party must be filed with the Circuit Court and served on the opposing party not more than thirty days after the party receives the final decision and order of the administrative law judge. Appeal in these matters is by right.
(D)(B) The review of the administrative law judge's order must be confined to the record. The reviewing tribunal court may affirm the decision or remand the case for further proceedings; or it may reverse or modify the decision if the substantive rights of the petitioner has been prejudiced because of the finding, conclusion, or decision is:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(C) Where appropriations in the annual general appropriations act, or where fees, fines, forfeitures, or revenues imposed or collected by agencies or commissions were required to be used for the hearing of contested cases, such these appropriations or monies must continue to be used for these purposes after the effective date of this article."
SECTION 5. Section 14-8-200 of the 1976 Code, as last amended by Act 55 of 1999, is further amended to read:
"Section 14-8-200. (a) Except as limited by subsection (b) below and Section 14-8-260, the court shall have has jurisdiction over any case in which an appeal is taken from an order, judgment, or decree of the circuit court, or family court, a final decision of an agency, or a final decision of an administrative law judge. This jurisdiction shall be is appellate only, and the court shall apply the same scope of review that the Supreme Court would apply in a similar case. The court shall have has the same authority to issue writs of supersedeas, grant stays, and grant petitions for bail as the Supreme Court would have in a similar case. The court, to the extent the Supreme Court may by rule provide for it to do so, shall have has jurisdiction to entertain petitions for writs of certiorari in post-conviction relief matters under pursuant to Section 17-27-100.
(b) Jurisdiction of the court shall does not extend to appeals of the following, the appeal from which shall lie lies of right directly to the Supreme Court:
(1) any a final judgment from the circuit court which includes a sentence of death;
(2) any a final judgment from the circuit court decision of the Public Service Commission setting public utility rates pursuant to Title 58;
(3) any a final judgment involving a challenge on state or federal grounds, to the constitutionality of a state law or county or municipal ordinance where the principal issue is one of the constitutionality of the law or ordinance; provided, however, in any a case where the Supreme Court finds that the constitutional question raised is not a significant one, the Supreme Court may transfer the case to the court for final judgment;
(4) any a final judgment from the circuit court involving the authorization, issuance, or proposed issuance of general obligation debt, revenue, institutional, industrial, or hospital bonds of the State, its agencies, political subdivisions, public service districts, counties, and municipalities, or any other indebtedness now or hereafter authorized by Article X of the Constitution of this State;
(5) any a final judgment from the circuit court pertaining to elections and election procedure;
(6) any an order limiting an investigation by a state grand jury under pursuant to Section 14-7-1630; and
(7) any an order of the family court relating to an abortion by a minor under pursuant to Section 44-41-33."
SECTION 6. Section 8-13-320(10)(m) of the 1976 Code, as added by Act 248 of 1991, is amended to read:
"(m) Within ten days after service of an order, report, or recommendation, a respondent may apply to the commission for a full commission review of the decision made by the commission panel. The review must be made on the record established in the panel hearings. This review is the final disposition of the complaint before the commission. An appeal to the circuit court court of appeals, pursuant to Section 1-23-380 and as provided in the South Carolina Appellate Court Rules, stays all actions and recommendations of the commission unless otherwise determined by the circuit court."
SECTION 7. Section 41-35-750 of the 1976 Code, as last amended by Act 203 of 2002, is further amended to read:
"Section 41-35-750. Within the time specified by the South Carolina Administrative Procedures Act thirty days after a decision of the commission becomes final, a party to the proceeding whose benefit rights or whose employer account may be affected by the commission's decision may secure judicial review of the decision by commencing an action in the court of common pleas, either in the county in which the employee resides or the county in which he was last employed, against the commission for the review of its decision, in which action every other party to the proceeding before the commission must be made a defendant. In this action a petition, which need not be verified but which must state the grounds upon which a review is sought, must be served upon a member of the commission or upon a person as the commission may designate within the time specified by the South Carolina Rules of Civil Procedure governing these appeals. Service is deemed complete service on all parties, but there must be left with the person served as many copies of the petition as there are defendants, and the commission promptly shall mail one copy to each defendant. With its answer the commission shall certify and file with the court all documents and papers and a transcript of all testimony taken in the matter and its findings of fact and decision. The commission also may certify to the court questions of law involved in any decision by the commission. In a judicial proceeding under this chapter, the findings of the commission as to the facts, if supported by evidence and in the absence of fraud, must be conclusive and the jurisdiction of the court must be confined to questions of law. These actions, and the questions so certified, must be heard in a summary manner and must be given precedence over all other civil cases except cases arising under the Workers' Compensation laws of this State. An appeal may be taken from the decision of the court of common pleas in the manner by appeal to the Court of Appeals as provided by in the South Carolina Appellate Court Rules. It is not necessary in a judicial proceeding under pursuant to this article to enter exceptions to the rulings of the commission, and no bond is required for entering the appeal. Upon the final determination of the judicial proceeding, the commission shall enter an order in accordance with the determination. In no event shall a A petition for judicial review does not act as a supersedeas or stay unless the commission orders a supersedeas or stay."
SECTION 8. Section 42-17-60 of the 1976 Code, as last amended by Act 439 of 1990, is further amended to read:
"Section 42-17-60. The award of the commission, as provided in Section 42-17-40, if not reviewed in due time, or an award of the commission upon such review, as provided in Section 42-17-50, is conclusive and binding as to on all questions of fact. However, either party to the dispute, within thirty days from the date of the award or within thirty days after receipt of notice to be sent by registered mail of the award, but not thereafter after, may appeal from the decision of the commission to the court of common pleas court of appeals as provided in the South Carolina Appellate Court Rules of the county in which the alleged accident happened, or in which the employer resides or has his principal office, for errors of law under the same terms and conditions as govern appeals in ordinary civil actions. Notice of appeal must state the grounds of the appeal or the alleged errors of law. In case of an appeal from the decision of the commission on questions of law, the appeal does not operate as a supersedeas and thereafter the employer is required to make payment of the award involved in the appeal or certification until the questions at issue have been are fully determined in accordance with the provisions of this title."
SECTION 9. Section 58-5-330 of the 1976 Code is amended to read:
"Section 58-5-330. Within twenty days after an order or decision has been is made by the commission any party to the action or proceeding may apply for a rehearing in respect as to any matters matter determined in such the action or proceeding and specified in the application for rehearing and a rehearing shall must be granted if in the judgment of the commission sufficient reason therefor be made to appear exists. No cause of action right of appeal arising out of any an order or decision of the commission shall accrue accrues in any court to any corporation or person unless such the corporation or person shall have made makes application to the commission for a rehearing within the time herein specified. Such The application shall must set forth specifically the ground on which the applicant considers such the decision or order to be unlawful. Such The determination shall must be made by the commission within thirty days after it shall be is finally submitted. If, after such the hearing and a consideration of all the facts, including those arising since the making of the order or decision, the commission shall be is of the opinion that the original order or decision, or any part thereof of it, is in any respect unjust or unwarranted or should be changed, the commission may abrogate, change or modify it and, if changed or modified, such the modified order shall must be substituted in the place of the order originally entered and with like force and effect."
SECTION 10. Section 58-5-340 of the 1976 Code is amended to read:
"Section 58-5-340. Decisions A decision of the commission may be reviewed by the court of common pleas Supreme Court or court of appeals as provided by statute and the South Carolina Appellate Court Rules upon questions of both law and fact, as herein provided pursuant to this section. Within thirty days after the application for a rehearing is denied or, if the application is granted, within thirty days after the rendition of the decision on rehearing the applicant may commence an action in the court of common pleas for Richland County against the Commission as defendant to vacate or set aside any such order of the Commission or enjoin the enforcement thereof on the ground that the authorization, consent, rate or rates, charges, fares, tolls and schedules fixed in such order are insufficient, unreasonable, unjust or unlawful or that any such regulation, practice, act or service fixed in such manner is unreasonable, unjust, insufficient or unlawful.
In any such action a copy of the complaint shall be served with the summons and no No order of determination of the commission reducing any rate, fare, charge, or toll shall may be in force during the pendency of such the action if the utility affected shall execute executes and file files with the clerk of said court a bond undertaking in such a sum as the court shall prescribe prescribes, and to be approved by the court, conditioned to secure the refund to customers of any sums sum that may be collected in excess of the rates, fares, charges, or tolls that shall be are finally adjudged to be lawful and valid."
SECTION 11. Section 58-5-990 of the 1976 Code is amended to
read:
"Section 58-5-990. Any A gas utility which is or will be adversely affected by any a rule or order of the commission adopted or established pursuant to this article may file an application for rehearing and thereafter may seek judicial review in accordance with provisions of Sections Section 58-5-340 to 58-5-360."
SECTION 12. Section 58-9-1410 of the 1976 Code is amended to read:
"Section 58-9-1410. Any A party in interest being dissatisfied with an order of the commission may commence an action in the court of common pleas for Richland County against the Commission and other interested parties as defendants to vacate or set aside, either in whole or in part, any such order on the ground that the order is unlawful or unreasonable appeal to the Supreme Court or court of appeals as provided by statute and the South Carolina Appellate Court Rules. But no No cause of action right of appeal shall accrue accrues to vacate or set aside, either in whole or in part, any an order of the commission except an order on a rehearing, unless a petition to the commission for a rehearing has been is filed and refused or deemed considered refused because of the commission's failure to act thereon within twenty days. For purposes of jurisdiction the residence of the Commission shall be deemed to be in Richland County."
SECTION 13. Section 58-27-2310 of the 1976 Code is amended to read:
"Section 58-27-2310. Any A party in interest being dissatisfied with an order of the commission may commence an action in any court of competent jurisdiction against the Commission and other interested parties as defendants to vacate or set aside, either in whole or in part, any such order on the ground that the order is unlawful or unreasonable appeal to the Supreme Court or court of appeals as provided by statute and the South Carolina Appellate Court Rules. But no No cause of action right of appeal shall accrue accrues to vacate or set aside, either in whole or in part, any an order of the commission, except an order on a rehearing, unless a petition to the commission for a rehearing has been is filed and refused or deemed considered refused because of the commission's failure to act thereon within twenty days. Any action brought hereunder must be commenced within thirty days from the date of service of notice of the order of the Commission on a rehearing or of its refusal of a petition for rehearing, either by order or failure to act thereon within twenty days."
SECTION 14. Section 1-13-90(c)(19) of the 1976 Code is amended to read:
"(19)(i) If an application for review is made to the commission within fourteen days from the date when the order of the commission shall have been is given, the commission shall, for good cause shown, shall review the order and evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the order.
(ii) The order of the commission, as provided in item (16) of subsection (c) of this section, if not reviewed in due time, or an order of the commission upon such review, as provided for in subitem (i) of item (19) of this subsection, shall be is conclusive and binding as to all questions of fact unless clearly erroneous in view of the reliable, probative, and substantive evidence in the whole record. Either party to the dispute may, within thirty days after receipt of notice to be sent by registered mail of such the order, but not thereafter, may appeal from the decision of the commission to the court of common pleas of the county in which the hearing occurred, or in which the respondent resides or has his principal office Administrative Law Judge Division as provided in Sections 1-23-380(B) and 1-23-600(D). In case of an appeal from the decision of the commission, such the appeal shall operate operates as a supersedeas for thirty days only, unless otherwise ordered by the court administrative law judge, and thereafter the respondent shall be is required to comply with the order involved in the appeal or certification until the questions at issue therein shall have been are fully determined in accordance with the provisions of this chapter.
(iii) The commission may institute a proceeding for enforcement of its order of item (16) of subsection (c) of this section, or its amended order of subitem (i) of item (19) of this subsection after thirty days from the day date of such the order, by filing a petition notice of appeal in the court of common pleas of the county in which the hearing occurred, or wherein where any a person required in the order to cease and desist from a practice which is the subject of the commission's order, or to take other affirmative action, resides, or transacts business.
If no appeal under pursuant to subitem (ii) of item (19) of this subsection is initiated, the commission may obtain a decree of the court for enforcement of its order upon a showing that a copy of the petition for enforcement was served upon the party subject to the dictates of the commission's order."
SECTION 15. Section 8-17-340(F) of the 1976 Code, as last amended by Act 284 of 1996, is further amended to read:
"(F) The decision of the committee members must be transmitted in writing to the employee and the employing agency and is final in terms of administrative review. As a result of this decision, either the covered employee or the agency may request a rehearing or reconsideration within thirty calendar days from receipt of the decision. Petition for A notice of appeal seeking judicial appellate review of the final decision may be made by the covered employee to the court of common pleas of the county in which the covered employee's place of employment is located Administrative Law Judge Division as provided in Sections 1-23-380(B) and 1-23-600(D). Only after an agency submits a written request to the Office of Human Resources seeking approval of the board may the agency initiate a petition file a notice of appeal seeking for judicial appellate review to the court of common pleas of the county in which the covered employee's place of employment is located Administrative Law Judge Division. However, the agency may perfect the petition for judicial review appeal only upon approval of the board. The covered employee or the agency who initiates a petition for first files the notice of appeal seeking judicial appellate review is responsible for preparation of a transcript and paying the costs of preparation of a transcript of the audio tapes of a hearing required for certification of the record to the court of common pleas Administrative Law Judge Division. Neither the board nor the Office of Human Resources nor the State Human Resources Director nor the committee may be named in this petition for judicial review notice of appeal. However, any of these entities are entitled to make a motion in the court of common pleas Administrative Law Judge Division to be allowed to intervene to participate in the petition for judicial review appeal for appropriate reasons including their interest in defending their policies."
SECTION 16. Section 11-35-4410 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-4410. (1) Creation. There is hereby created the South Carolina Procurement Review Panel which shall be is charged with the responsibility to review and determine de novo:
(a) requests for review of written determinations of the chief procurement officers under pursuant to Sections 11-35-4210 (6), 11-35-4220 (5), and 11-35-4230 (6); and
(b) requests for review of other written determinations, decisions, policies, and procedures as arise arising from or concern concerning the procurement of supplies, services, or construction procured in accordance with the provisions of this code and the ensuing regulations; provided that any matter which could have been brought before the chief procurement officers in a timely and appropriate manner under pursuant to Sections 11-35-4210, 11-35-4220, or 11-35-4230, but was not, shall are not be the subject of review under this paragraph. Requests for review under pursuant to this paragraph shall must be submitted to the Procurement Review Panel in writing, setting forth the grounds, within fifteen days of the date of such written determinations, decisions, policies, and procedures.
(2) Membership. The panel shall be composed of:
(a) [Deleted]
(b) [Deleted]
(c) [Deleted]
(d) the chairman, or his designee, of the Procurement Policy Committee;
(e) five members appointed by the Governor from the state at large who shall must be representative of the professions governed by this title including, but not limited to:
(i) goods and services.;
(ii) information technology procurements.;
(iii) construction.;
(iv) architects and engineers.;
(v) construction management.; and
(vi) land surveying services.
(f) two state employees appointed by the Governor.
(3) Chairperson and Meetings. The panel shall elect a chairman from the members at large and shall meet as often as necessary to afford a swift resolution of the controversies submitted to it. Five members present and voting shall constitute a quorum. At-large members of the panel shall must be paid per diem, mileage, and subsistence as provided by law for members of boards, commissions, and committees. State employee members shall must be reimbursed for meals, lodging, and travel in accordance with current state allowances.
(4) Jurisdiction. Notwithstanding the provisions of Section 1-23-10, et seq. Chapter 23, Title 1 or any other another provisions provision of law, the Procurement Review Panel shall be is vested with the authority to:
(a) establish its own rules and procedures for the conduct of its business and the holding of its hearings;
(b) issue subpoenas;
(c) interview any person it deems necessary; and
(d) record all determinations.
(5) Procedure. Within fifteen days of receiving a grievance filed under Sections 11-35-4210(6), 11-35-4220(5), 11-35-4230(6), or 11-35-4410(1)(b), the chairman shall convene the review panel to conduct an administrative review. The review panel shall record its determination within thirty days and shall communicate its decision to those involved in the determination. In the alternative, the chairman, within ten days, may appoint a hearing officer to conduct the administrative review and report his recommendations to the review panel for its determination. If a hearing officer is appointed, his report shall must be submitted to the review panel within ten days after his appointment, and the review panel must still record its decision within thirty days after being convened for this purpose.
(6) Removal to Administrative Law Judge Division. A party aggrieved by the decision of the chief procurement officer in a contract controversy pursuant to Section 11-35-4230, when the amount in controversy exceeds two hundred fifty thousand dollars, may remove the contract controversy from the Procurement Review Panel to the Administrative Law Judge Division by filing a notice of removal with the division and the panel within ten days after a hearing was requested before the Procurement Review Panel pursuant to Section 11-35-4230(6). Upon filing of the notice of removal, the administrative law judge shall decide all issues in the contract controversy presented to and ruled upon by the chief procurement officer. The administrative law judge shall apply the applicable public contract law and the precedents of the Procurement Review Panel.
(6)(7) Finality. The decision of the Procurement Review Panel is final as to administrative review and may be appealed to the circuit court Administrative Law Judge Division under pursuant to Sections 1-23-380(B) and 1-23-600(D). The standard of review is as provided by the provisions of the South Carolina Administrative Procedures Act."
SECTION 17. Section 31-21-130(O) of the 1976 Code is amended to read:
"(O)(1) If an application for review is made to the commission within fourteen days from the date of the order of the commission has been given, the commission, for good cause shown, shall review the order and evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the order.
(2) The order of the commission, as provided in subsection (L), if not reviewed in due time, or an order of the commission upon the review, as provided for in item (1), is conclusive and binding as to all questions of fact unless clearly erroneous in view of the reliable, probative, and substantive evidence in the whole record. Either party to the dispute, within thirty days after receipt of notice to be sent by registered mail of the order, but not after that time, may appeal from the decision of the commission to the court of common pleas of the county in which the hearing occurred, or in which the respondent resides or has his principal office Administrative Law Judge Division as provided in Sections 1-23-380(B) and 1-23-600(D). In case of an appeal from the decision of the commission, the appeal shall operate operates as a supersedeas for thirty days only, unless otherwise ordered by the court administrative law judge, and after that the respondent is required to comply with the order involved in the appeal or certification until the questions at issue in it have been are determined fully in accordance with the provisions of this chapter.
(3) The commission may institute a proceeding for enforcement of its order of subsection (L), or its amended order of item (1) after thirty days from the day date of the order, by filing a petition in the court of common pleas of the county in which the hearing occurred, or where any a person against whom the order is entered resides or transacts business.
(4) If no appeal under pursuant to item (2) is initiated, the commission may obtain a decree of the court for enforcement of its order upon a showing that a copy of the petition for enforcement was served upon the party subject to the dictates of the commission's order."
SECTION 18. Section 33-56-140(C) of the 1976 Code, as last amended by Act 336 of 2000, is further amended to read:
"(C) In addition to other actions authorized by law, the Secretary of State, if he has reason to believe that one or more of the following acts or violations listed below has occurred or may occur, may bring an action before an administrative law judge to enjoin the charitable organization, professional fundraising counsel, professional solicitor, commercial co-venturer, or other person from continuing the act or violation, or doing any committing other acts in furtherance of it, and for other relief as the court considers appropriate:
(1) a person knowingly and wilfully operates in violation of the provisions of this chapter;
(2) a person knowingly and wilfully makes a false statement in any registration application, statement, report, or other information required to be filed by this chapter;
(3) a person fails to file a registration statement, annual financial report, or other document required to be filed by this chapter;
(4) a person is using in the solicitation or collection of contributions any device, scheme, or artifice to defraud or to obtain money or property by means of false pretense, representation, or promise;
(5) the officers or representatives of a charitable organization, professional fundraising counsel, professional solicitor, or commercial co-venturer refuse or fail, after notice, to produce records of the organization; or
(6) the funds raised by solicitation activities are not devoted to the charitable purposes of the charitable organization."
SECTION 19. Section 33-56-140(E) of the 1976 Code, as last amended by Act 336 of 2000, is further amended to read:
"(E) A person that who is assessed an administrative fine or enjoined from any solicitation activity for any violation of this chapter, has had his registration suspended, or that who is denied registration has thirty days from receipt of certified notice from the Secretary of State to pay the fine or request an evidentiary hearing before an administrative law judge. A If a person who fails to remit fines or request a hearing after the required notice is given and after thirty days from the date of receipt of certified notice has elapsed may be enjoined the Secretary of State may suspend his registration pending final resolution and may bring action before the administrative law judge to enjoin the person from engaging in further charitable solicitation activities in this State and may have its registration suspended pending final resolution. A person may appeal an adverse ruling from an evidentiary hearing to the circuit court. An appeal to the circuit court is governed by the standard of review provided in the Administrative Procedures Act and case law interpreting that provision The decision of the administrative law judge may be appealed as provided in Section 1-23-610."
SECTION 20. Section 35-1-1310 of the 1976 Code, as last amended by Act 134 of 1997, is further amended to read:
"Section 35-1-1310. Any A person aggrieved by a final order of the securities commissioner may obtain a appellate review of the order in the court of common pleas for Richland County or in the county wherein the person resides by filing in court, a notice of appeal in the Administrative Law Judge Division within thirty days after the entry of the order, a written petition praying that the order be modified or set aside in whole or in part. The filing of a written petition for review notice of appeal, accompanied by the posting of any bond set by the court administrative law judge in which a petition is filed, shall stay the effectiveness of the commissioner's final order until such time as the court administrative law judge has reviewed the order. A copy of the petition notice of appeal must be served upon the securities commissioner, and the securities commissioner shall certify and file in court a copy of the filing and evidence upon which the order was entered. When these have been filed, the court has exclusive jurisdiction to affirm, modify, enforce or set aside the order, in whole or in part. The findings of the securities commissioner as to the facts, if supported by competent, material, and substantial evidence, are conclusive."
SECTION 21. Section 35-1-1320 of the 1976 Code, as last amended by Act 134 of 1997, is further amended to read:
"Section 35-1-1320. If either party applies to the court administrative law judge for leave to adduce additional material evidence, and shows to the satisfaction of the court administrative law judge that there were reasonable grounds for failure to adduce the evidence in the hearing before the securities commissioner, the court administrative law judge may order the additional evidence to be taken before the securities commissioner and to be adduced upon the hearing in such the manner and upon such the conditions as the court administrative law judge considers proper. The securities commissioner may modify his findings and order by reason of the additional evidence and shall file in court before the administrative law judge the additional evidence together with any modified or new findings or order."
SECTION 22. Section 35-1-1330 of the 1976 Code, as last amended by Act 134 of 1997, is further amended to read:
"Section 35-1-1330. The commencement of proceedings under Section 35-1-1310 does not, unless specifically ordered by the court administrative law judge, operate as a stay of the securities commissioner's order."
SECTION 23. Section 37-6-108 of the 1976 Code, as last amended by Act 82 of 2001, is further amended to read:
"Section 37-6-108. (1)(A) After notice and hearing the administrator may order a creditor, a person acting in on his behalf, or a person subject to this title to cease and desist from engaging in violations of this title. A respondent aggrieved by an order of the administrator may obtain judicial appellate review of the order and the administrator may obtain an order of the administrative law judge or circuit court for enforcement of its order in the court of common pleas. The proceeding for review or enforcement is initiated by filing a petition in the Administrative Law Judge Division or circuit court. Copies of the notice of appeal or petition to enforce the order must be served upon all parties of record.
(2)(B) Within thirty days after service of the notice of appeal or petition for review to enforce the order upon the administrator, or within any further time the administrative law judge or court may allow, the administrator shall transmit to the court the original or a certified copy of the entire record upon which the order is based, including any transcript of testimony, which need not be printed. By stipulation of all parties to the review proceeding, the record may be shortened. After hearing, the administrative law judge or the court may (a) reverse or modify the order if the findings of fact of the administrator are clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record,; (b) grant any temporary relief or restraining order it deems just,; and (c) enter an order enforcing, modifying, and enforcing as modified, or setting aside in whole or in part the order of the administrator, or remanding the case to the administrator for further proceedings.
(3)(C) An objection not urged at the hearing shall may not be considered by the administrative law judge or court unless the failure to urge the objection is excused for good cause shown. A party may move the court administrative law judge to remand the case to the administrator in the interest of justice for the purpose of adducing additional specified and material evidence and seeking findings thereon upon good cause shown for the failure to adduce this evidence before the administrator.
(4)(D) The jurisdiction of the administrative law judge or court shall be is exclusive and its final judgment or decree may be appealed in the manner provided by the South Carolina Appellate Court Rules. The administrator's copy of the testimony shall must be available at reasonable times to all parties for examination without cost.
(5)(E) A proceeding for review under pursuant to this section must be initiated within thirty days after a copy of the order of the administrator is received. If no proceeding is so initiated, the administrator may obtain a decree of the administrative law judge or court of common pleas for enforcement of its order upon a showing that the order was issued in compliance with this section, that no proceeding for review was initiated within thirty days after copy of the order was received, and that the respondent is subject to the jurisdiction of the administrative law judge or court.
(6)(F) For purposes of this section and Sections 37-6-117 and 37-6-118, a violation of the South Carolina Unfair Trade Practices Act which arises arising out of the production, promotion, or sale of consumer goods, services, or interests in land is deemed to be a violation of this title subject to action by the administrator.
(7)(G) Unless otherwise specifically provided by law, the following administrative penalties, in the discretion of the administrator, may be levied against persons found to have engaged in violations of this title pursuant to subsection (1) (A) of this section:
(a)(1) if the violator is found to have violated repeatedly and intentionally any a provision of this title, the violator must be fined in an amount not to exceed two thousand five hundred dollars and not to exceed ten thousand dollars for any a transaction or occurrence or set of transactions or occurrences which violated multiple provisions of this title.;
(b)(2) if the violator is shown to have violated any a previous lawful order of the administrator or court of competent jurisdiction, the violator, in the discretion of the administrator, may be fined in an amount not to exceed five thousand dollars for each violation.; and
(c)(3) the penalties in items (a) (1) and (b) (2) of this subsection are in addition to any other penalties provided by law or any other remedies provided by law.;
(8)(H) The administrator may make findings and issue cease and desist orders regarding unconscionable conduct or unconscionable debt collection pursuant to this section, but he may not award damage, treble damage, or attorney's fee remedies to affected customers in these hearings."
SECTION 24. Section 37-6-402(1) of the 1976 Code is amended to read:
"(1) 'Contested case' means a proceeding, including but not restricted to one pursuant to the provisions on administrative enforcement orders (Section 37-6-108(1)) as provided in Section 37-6-108(A) and licensing in which the legal rights, duties, or privileges of a party are required by law to be determined after an opportunity for hearing."
SECTION 25. Section 37-6-414 of the 1976 Code is amended to read:
"Section 37-6-414. (1)(A) A person who has exhausted all administrative remedies available before the Administrator and who is aggrieved by a final decision in a contested case is entitled to judicial review under this part appellate review by the Administrative Law Judge Division and judicial review as provided in Sections 1-23-380(B) and Section 1-23-600(D). This section does not limit utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate action or ruling of the administrator is immediately reviewable if review of the final decision of the administrator would not provide an adequate remedy.
(2)(B) Proceedings for review are instituted by filing a petition in the court of common pleas notice of appeal with the Administrative Law Judge Division, within thirty days after mailing by certified mail notice of the final decision of the administrator or, if a rehearing is requested, within thirty days after the decision thereon is issued. Copies of the petition notice of appeal shall be served upon the administrator and all parties of record.
(3)(C) The filing of the petition does not itself stay enforcement of the decision of the administrator. The administrator, administrative law judge or court, as appropriate in matters then pending before it, may grant, or the reviewing court may order, a stay upon appropriate terms.
(4)(D) Within thirty days after the service of the petition, or within further time allowed by the court the The administrator shall transmit to the reviewing court the original or file a certified copy of the entire record of the proceeding under review in accordance with the Administrative Law Judge Division's rules of procedure. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court administrative law judge for the additional costs. The court administrative law judge may require or permit subsequent corrections or additions to the record.
(5)(E) If, before the date set for hearing, application is made to the court administrative law judge for leave to present additional evidence, and it is shown to the satisfaction of the court administrative law judge that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the administrator, the court administrative law judge may order that the additional evidence be taken before the administrator upon conditions determined by the court administrative law judge. The administrator may modify his findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court administrative law judge.
(6)(F) The review shall must be conducted by the court administrative law judge without a jury and shall must be confined to the record. In cases of alleged irregularities in procedure before the administrator, not shown in the record, proof thereon may be taken in the court the administrative law judge, upon good cause shown, may remand the case to the administrator so that proof may be taken of alleged irregularities and modification of the decision of the administrator as may be appropriate. The court administrative law judge, upon request, shall hear oral arguments and receive written briefs.
(7)(G) The court or the administrative law judge shall not substitute its his judgment for that of the administrator as to the weight of the evidence on questions of fact. The court or the administrative law judge may affirm the decision of the administrator or remand the case for further proceedings. The court or the administrative law judge may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(a)(1) in violation of constitutional or statutory provisions;
(b)(2) in excess of the statutory authority of the administrator;
(c)(3) made upon unlawful procedure;
(d)(4) affected by other error of law;
(e)(5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(f)(6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
SECTION 26. Section 39-37-100 of the 1976 Code, as last amended by Act 55 of 1999, is further amended to read:
"Section 39-37-100. The action of the Department of Agriculture in refusing to grant a license or in revoking or suspending a license shall be is subject to review by the court of common pleas in the county in which the aggrieved party resides Administrative Law Judge Division according to its appellate rules as provided in Sections 1-23-380(B) and 1-23-600(D). Any An appeal from the decision of the circuit court Administrative Law Judge Division shall must be taken in the manner provided by the South Carolina Appellate Court Rules."
SECTION 27. Section 43-25-90 of the 1976 Code is amended to read:
"Section 43-25-90. Every A person aggrieved by an action of the commission shall must be granted, upon request, a hearing before a hearing officer assigned by the commission. The hearing officer shall may not be a member of the commission. The hearing officer shall have has the authority to conduct hearings, to issue subpoenas requiring the attendance of witnesses and the production of records and other documents, to administer oaths and to take testimony. An appeal may be taken from the decision of the hearing officer to the Commission for the Blind. The commission shall hold a hearing on the matter which shall must be attended by at least three members. An appeal may be taken from the decision of the commission to the court of common pleas for the county where the appellant resides and the matter shall be heard de novo in the court as a matter of equity Administrative Law Judge Division as provided in Sections 1-23-380(B) and 1-23-600(D). The appellant shall, within ten thirty days after notice of the decision of the commission, shall serve notice of appeal upon the chairman of the commission, stating grounds upon which the appeal is founded and file such the notice with the Clerk of court the Administrative Law Judge Division to which such appeal is taken in accordance with its rules of procedure. Such The appeal shall act acts as a supersedeas until it is finally determined. The clerk of court shall place the case upon the docket for trial."
SECTION 28. Section 44-1-50 of the 1976 Code is amended to read:
"Section 44-1-50. The board may conduct such public hearings as may be required by law, as considered necessary by the board, and as necessary to hear appeals from decisions of administrative law judges pursuant to Chapter 23 of Title 1. The board does not have the authority to hear appeals from decisions of the Coastal Zone Management Appellate Panel or the Mining Council. Such These appeals shall must be conducted pursuant to the provisions in of Chapters 20 and 30 of Title 48.
The board shall provide for the administrative organization of the department and shall consolidate and merge existing duties, functions, and officers of the former agencies as may be necessary for economic and efficient administration. Provided, however, that the board may appoint such advisory boards as it considers necessary to carry out the functions of Sections 44-1-10 to 44-1-70, and there shall be provided a compensation must be provided for their services as provided by the law for members of boards and commissions."
SECTION 29. Section 44-7-220 of the 1976 Code is amended to read:
"Section 44-7-220. After the contested case hearing is concluded and a final board decision is made, a party who participated in the contested case hearing and who is affected adversely by the board's agency's decision may obtain judicial review of the decision in the circuit court of appeals pursuant to the Administrative Procedures Act. An appeal taken to the circuit court from a decision of the board on a Certificate of Need application has precedence on the court's calendar and must be heard not later than forty-five days from the date the petition is filed.
An applicant whose Certificate of Need application is denied by the board in favor of a competing application or a party adversely affected by the board's decision shall deposit a bond with the clerk of court for the circuit court before the filing of a petition to appeal a final decision of the board granting or denying a Certificate of Need. The bond must be secured by cash or a surety authorized to do business in this State in an amount equal to five percent of the total cost of the project or twenty thousand dollars, whichever is greater. If the court affirms the decision of the board or dismisses the appeal, the court may award to the applicant approved for the Certificate of Need who is a party to the appeal all or a portion of the bond and may award reasonable attorney's fees and costs incurred in the appeal. If an applicant appeals only the denial of his Certificate of Need application and there is no competing application involved in the appeal, the applicant is not required to deposit a bond with the circuit court.
If, at any stage of the appeal process involving the grant or denial of a Certificate of Need, the court finds that the appeal was frivolous, the court may award damages to the applicant approved for the Certificate of Need in addition to awarding the approved applicant single or double costs incurred in the appeal. In the case of a frivolous appeal of a denial of a Certificate of Need which does not involve a competing application, the court may award costs incurred in the appeal to the department.
As used in this section, 'frivolous appeal' means any one of the following:
(1) an appeal taken solely for purposes of delay or harassment;
(2) where no question of law is involved;
(3) where the appeal is without merit."
SECTION 30. Section 45-9-75 of the 1976 Code, as added by Act 423 of 1990, is amended to read:
"Section 45-9-75. The final decision or order of the panel must be in writing and shall must include the findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall must be accompanied by a concise and explicit statement of the underlying facts supporting the findings. The panel must list licenses or permits to be revoked in its order. No finding or conclusion may be included in the order of the panel unless it is supported by substantial evidence in the record before the panel.
The commission must shall send copies of the final order of determination to each party named in the complaint, any all attorney attorneys of record, and any other interested party parties within fifteen days of the conclusion of the hearing.
Notwithstanding any other another provision of law, the determination by the panel is not subject to appeal to the full commission and is the final administrative review action. Any appeal Appeal must be made pursuant to the Administrative Law Judge Division as provided in Sections 1-23-380(B) and 1-23-600(D) and then judicial review as provided in Sections 1-23-380 and 1-23-390."
SECTION 31. Section 46-3-220 of the 1976 Code is amended to read:
"Section 46-3-220. Any An order, decision, or other official act which revokes a registration or license issued by the commissioner, may be appealed by any a person concerned to the circuit court of the county of Richland, or the circuit court of the county of residence of the person whose license has been thusly adversely affected. Such appeal may be effected by filing a notice of appeal with the Administrative Law Judge Division as provided in Sections 1-23-380(B) and 1-23-600(D) and by serving the commissioner or someone of discretion at his office, within sixty thirty days after receipt of written notice of the order, decision, or official act affecting the registration or license of the person concerned, notice of appeal. The notice of appeal shall state the grounds upon which it is founded. The commissioner, within thirty days after service of the notice of appeal, shall make a return to the circuit court, giving copies of all documents and orders and a transcript of the testimony taken Administrative Law Judge Division as provided in its appellate rules."
SECTION 32. Section 47-17-50 of the 1976 Code is amended to read:
"Section 47-17-50. (a)(A) Each shipping container of any meat, meat food product, or meat by-product inspected under pursuant to the authority of this article and found to be wholesome and not adulterated, shall must at the time such the product leaves the official establishment, bear, in distinctly legible form, the official inspection mark and the approved plant number of the official establishment in which the contents were processed. Each immediate container of any meat, meat food product, or meat by-product inspected under the authority of this article and found to be wholesome and not adulterated, shall must at the time such the product leaves the official establishment, bear, in addition to the official inspection mark, in distinctly legible form, the name of the product, a statement of ingredients if fabricated from two or more ingredients, including a declaration as to artificial flavors or colors, if any, the net weight or other appropriate measure of the contents, the name and address of the processor, and the approved plant number of the official establishment in which the contents were processed. The name and address of the distributor may be used in lieu of the name and address of the processor if the approved plant number is used to identify the official establishment in which the article was prepared and packed. Each livestock carcass and each primal part of such a the carcass shall bear the official inspection mark and approved plant number of the establishment. The director, may by rules or regulations, may require additional marks or label information to appear on livestock carcasses or its parts thereof, meat food products, or meat by-products when they leave the official establishments or at the time of their transportation or sale in this State, and he may permit reasonable variations and grant exemptions from the marking and labeling requirements of this paragraph in any manner not in conflict with the purposes of this article. Marks and labels required under this paragraph shall may be applied only by, or under the supervision of an inspector.
(b)(B) The use of any written, printed, or graphic matter upon or accompanying any livestock carcass, or part thereof its parts, meat food product, or meat by-product inspected or required to be inspected pursuant to the provisions of this article, or the container thereof, which is false or misleading in any particular is prohibited. No livestock carcasses or its parts, thereof meat food products, or meat by-products inspected or required to be inspected pursuant to the provisions of this article shall may be sold or offered for sale by any a person under any false or deceptive name; but established trade names which are usual to such those articles and which are not false or deceptive and which shall be are approved by the director are permitted. If the director has reason to believe that any a label in use or prepared for use is false or misleading in any particular, he may direct that the use of the label be withheld unless it is modified in such a manner as he may prescribe so that it will not be false or misleading. If the person using or proposing to use the label does not accept the determination of the director, he may request a hearing, but the use of the label, shall, if the director so directs, must be withheld pending hearing and final determination by the director. Any such A determination by the director shall be is conclusive unless within thirty days after the receipt of notice of such the final determination the person adversely affected thereby appeals to the court of common pleas or county court of the county in which he has his principal place of business Administrative Law Judge Division as provided in Sections 1-23-380(B) and 1-23-600(D)."
SECTION 33. Section 47-19-60 of the 1976 Code is amended to read:
"Section 47-19-60. (a)(A) All poultry products inspected at any an official establishment under the authority of this chapter and found to be not adulterated shall, at the time they leave the establishment, must bear in distinctly legible form on their shipping containers and immediate containers, as the director may require, the information required by this chapter. In addition, the director, whenever he determines such action is practicable and necessary for the protection of the public, may require nonconsumer-packaged carcasses at the time they leave the establishment to bear directly thereon in distinctly legible form any information required under by this chapter.
(b)(B) The director, whenever he determines such action is necessary for the protection of the public, may prescribe:
(1) the styles and sizes of type to be used with respect to material required to be incorporated in labeling to avoid false or misleading labeling in marking or otherwise labeling any the articles or poultry subject to this chapter;
(2) definitions and standards of identity or composition for articles subject to this chapter and standards of fill of container for such the articles not inconsistent with any such standards established under the Federal Food, Drug and Cosmetic Act, or under the Federal Poultry Products Inspection Act, and there shall must be consultation between the director and the Secretary of Agriculture of the United States prior to the issuance of such these standards to avoid inconsistency between such standards and the federal standards.
(c)(C) No article subject to this chapter shall may be sold or offered for sale by any a person in intrastate commerce, under any a name or other marking or labeling which is false or misleading or in any a container of a misleading form or size, but established trade names and other marking and labeling and containers which are not false or misleading and which are approved by the director are permitted.
(d)(D) If the director has reason to believe that any the marking or labeling or the size or form of any a container in use or proposed for use with respect to any the article subject to this chapter is false or misleading in any particular, he may direct that such the use be withheld unless the marking, labeling, or container is modified in such a manner as he may prescribe so that it will not be false or misleading. If the person using or proposing to use the marking, labeling, or container does not accept the determination of the director, such the person may request a hearing, but the use of the marking, labeling, or container shall, if the director so directs, must be withheld pending hearing and final determination by the director. Any such A determination by the director shall be is conclusive unless, within thirty days after receipt of notice of such the final determination, the person adversely affected thereby appeals to the court of common pleas for the county in which the person has his principal office or in any county in which he does business Administrative Law Judge Division as provided in Sections 1-23-380(B) and 1-23-600(D)."
SECTION 34. Section 48-20-160 of the 1976 Code, as last amended by Act 8 of 1997, is further amended to read:
"Section 48-20-160. (A) Whenever If the department believes a violation of this chapter, a regulation promulgated under by it, or the terms and conditions of a permit, including the approved reclamation plan, has taken place, it shall serve written notice of that fact upon the operator, specifying the facts constituting the apparent violation and informing the operator of his right to a hearing at a stated time and place. The date for the hearing may not be less than thirty nor more than sixty days after the date of the notice, unless the department and the operator mutually agree on another date. The operator may appear at the hearing, either personally or through counsel, and present evidence he desires in order to prove that no violation has taken place or exists. If the operator or his representative does not appear at the hearing, or if the department following the hearing finds that there has been a violation, the department may suspend the permit until the violation is corrected or may revoke the permit where the violation appears to be wilful.
(B) The effective date of a suspension or revocation is sixty days following the date of the decision. An appeal to the council under pursuant to Section 48-20-190 stays the effective date until the council's decision. A further appeal to the court of common pleas Administrative Law Judge Division under pursuant to Section 48-20-200 stays the effective date until the date of the court judgment administrative law judge's final decision. If the department finds at the time of its initial decision that a delay in correcting a violation may result in imminent peril to life or danger to property or to the environment, it shall initiate promptly a proceeding for injunctive relief under pursuant to Section 48-20-230. The pendency of an appeal from a suspension or revocation of a permit has no effect upon the action.
(C) An operator whose operating permit has been is suspended or revoked must shall be denied a new permit or a reinstatement of the suspended permit to engage in mining until he gives evidence satisfactory to the department of his ability and intent to comply fully with the provisions of this chapter, regulations promulgated under by it, and the terms and conditions of his permit, including the approved reclamation plan, and that he has corrected satisfactorily all deficiencies or previous violations.
(D) A general permit, as provided for in Section 48-20-55, may be revoked or suspended if the operator is cited for violations of this chapter, a regulation promulgated under by it, or the terms and conditions of that general permit. If this authority is suspended or revoked and mining is ordered to be stopped pursuant to Section 48-20-220, the operator whose eligibility to mine under a general permit that has been suspended or revoked must shall be denied further eligibility under that or other general permits or an individual operation permit until satisfactory evidence is presented to the department that the operation intends to comply fully with the provisions of this chapter, regulations promulgated under it, and the terms and conditions of his permit, including satisfactorily correcting all deficiencies or previous violations."
SECTION 35. Section 48-20-190 of the 1976 Code, as last amended by Act 454 of 1990, is further amended to read:
"Section 48-20-190. An applicant for a certificate of exploration or operating permit or a person who is aggrieved and is directly affected by the permit may appeal to the council from a decision or determination of the department issuing, refusing, modifying, suspending, revoking, or terminating a certificate of exploration or operating permit or reclamation plan, or imposing a term or condition on the certificate, permit, or reclamation plan. An explorer or operator may appeal to the council from a decision or determination of the department issuing a notice of deficiencies or violations and administrative fees or assessing civil penalties. The person taking the appeal within thirty days after the department's decision shall give written notice to the council through its secretary that he desires to appeal and filing file a copy of the notice with the department at the same time. If more than one appeal regarding the same certificate, permit, or reclamation plan is filed with the council within the thirty-day period following the decision by the department, the council may consolidate the hearing and review of the appeals by the council. The chairman of the council shall fix a reasonable time, not less than twenty nor more than forty days from the receipt of the appeal, and place for a hearing, giving reasonable notice to the applicant, appellant, and to the department. The council, or a committee of the council designated by the council's rules of procedure, or if agreed by appellant, the council, the operator, and the department, a hearing panel consisting of one or more individuals shall conduct a full and complete hearing as to the matters in controversy, and within thirty days shall give a written decision setting forth its findings of fact and its conclusions. The council or its designated committee or the hearing panel may affirm, affirm with modifications, or overrule the decision of the department and may direct the department to take action required to effectuate its decision. A further appeal may be taken from the appellate decision to the court of common pleas Administrative Law Judge Division as provided in Section 48-20-200."
SECTION 36. Section 48-20-200 of the 1976 Code, as added by Act 454 of 1990, is amended to read:
"Section 48-20-200. An appeal to the courts Administrative Law Judge Division as provided in Sections 1-23-380(B) and 1-23-600(D) may be taken from any decision of the council, or its designated committee or the hearing panel, in the manner provided by Chapter 7 of Title 18. An appeal also may lie against the department's refusal to release part or all of a bond or other security posed under pursuant to Section 48-20-110 as provided in Section 48-20-130. The appeal may be filed in the court of common pleas for Richland County or for the county in which the mining operation is to be conducted."
SECTION 37. Section 48-39-150(D) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(D) Any An applicant having a permit denied or any a person adversely affected by the granting of the permit has the right of direct appeal from the decision of the Administrative Law Judge to the Coastal Zone Management Appellate Panel pursuant to Section 1-23-610. Any An applicant having a permit denied may challenge the validity of any or all reasons given for denial."
SECTION 38. Section 54-3-470 of the 1976 Code is amended to read:
"Section 54-3-470. Any such A person may appeal from any an order, ruling, or requirement of the authority under pursuant to this article to the court of common pleas for Charleston County, to be heard and determined by the presiding judge thereof as if tried de novo before him. The judge shall pass upon and determine the reasonableness of such order, ruling or requirement and such Administrative Law Judge Division as provided in Sections 1-23-380(B) and 1-23-600(D). The appeal shall stay the execution of any an order, ruling, or requirement appealed from. No fines or penalties imposed by the authority shall be are operative or commence to run until the final determination of such the appeal."
SECTION 39. Section 55-5-230 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 55-5-230. Any A person against whom an order has been is entered may appeal within ten thirty days after the service thereof appeal to the circuit court of the county in which the property affected by the order is located Administrative Law Judge Division as provided in Sections 1-23-380(B) and 1-23-600(D) for the purpose of having the reasonableness or lawfulness of the order inquired into and determined."
SECTION 40. Section 55-5-240 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 55-5-240. The person taking the appeal shall file the notice of intention to appeal with the grounds thereof in the office of the Clerk of such circuit court, and summons shall thereupon be issued by the clerk and shall be served with the Administrative Law Judge Division and serve a copy upon on the director or his designee and all other parties of record. Upon the filing of the notice of intention to appeal with the grounds thereof, the appeal shall be docketed for trial no less than ten days or more than thirty days after the service of the summons and shall be tried by the circuit court without formal pleadings in term time or in vacation. Upon trial of the appeal the court shall hear evidence as to matters concerning the order in question, the condition of the property in question and the manner of its operation and appellate review, the administrative law judge shall enter judgment an order either affirming or setting aside the order of the division; or the court may remand the matter to the division for further hearing. The filing of the notice of intention to appeal with the grounds thereof shall operate operates as a supersedeas."
SECTION 41. Section 55-5-250 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 55-5-250. If no appeal is taken from the order of the division of aeronautics within the period fixed, the party against whom the order was is entered shall be is deemed to have waived the right to have the reasonableness or lawfulness of the order reviewed by the court Administrative Law Judge Division, and there shall may be no trial of that issue in any a court in which suit may be instituted for the penalty for failure to comply with the order."
SECTION 42. Section 55-8-20 of the 1976 Code is amended to read:
"Section 55-8-20. (a) The agency shall administer and enforce the provisions of this chapter and may promulgate regulations necessary for its administration, which shall become effective pursuant to Sections 1-23-10 et seq Chapter 23, Title 1.
(b) The agency shall provide for hearings upon request of any a person who may be affected by its orders or acts under pursuant to the provisions of this chapter and may provide for a stay thereof until a hearing may be had held.
Any A person aggrieved by any an order or act of the agency hereunder may have judicial appellate review thereof by appeal to the circuit court Administrative Law Judge Division by the filing of written a notice of appeal with the grounds thereof with the agency and the circuit court Administrative Law Judge Division within ten thirty days after the order or act becomes final in accordance with its rules of procedure. The agency shall transmit to the court the original or a certified copy of the entire record of the proceeding under review, including a transcript of any oral testimony taken at the hearing, at the cost of the appellant. By order of court or by stipulation of all parties to the appeal, the record may be shortened by the elimination of any portion thereof. The court Administrative Law Judge Division shall determine whether the filing of the appeal shall operate as a stay of any such an order or act of the agency and the terms of such the stay. The court may, in disposing of the issues before it, affirm, modify or reverse the order or act of the agency in whole or in part and may enter its own order or may reverse and remand the cause for further proceedings by the agency."
SECTION 43. Section 59-25-260 of the 1976 Code, as last amended by Act 55 of 1999, is further amended to read:
"Section 59-25-260. The findings of fact by the State Board of Education shall be are final and conclusive. The A person aggrieved by the order of the State Board of Education, within thirty days thereafter, may appeal to the court of common pleas Administrative Law Judge Division as provided in Sections 1-23-380(B) and 1-23-600(D), to review errors of law only, by filing with the Administrative Law Judge Division and the State Board of Education notice of such appeal and of the grounds thereof. The State Board of Education shall file within thirty days thereafter, file a certified copy of the transcript of record with the clerk of such court Administrative Law Judge Division in accordance with its rules of procedure. Any An appeal from the order of the circuit court Administrative Law Judge Division shall must be taken in the manner provided by the South Carolina Appellate Court Rules."
SECTION 44. Section 59-25-830 of the 1976 Code, as last amended by Act 55 of 1999, is further amended to read:
"Section 59-25-830. The findings of fact by the State Board of Education shall be are final and conclusive as to all parties, but any party thereto may, within thirty days thereafter, may appeal to the court of common pleas of the county in which the appeal arose Administrative Law Judge Division as provided in Sections 1-23-380(B) and Section 1-23-600(D), to review error of law only, by filing with the State Board of Education and the Administrative Law Judge Division notice of the appeal and of the grounds for the appeal. The state board, within thirty days thereafter, shall file a certified copy of the transcript of record with the Clerk of such court Administrative Law Judge Division in accordance with its rules of procedure. Any appeal from the order of the circuit court shall be taken in the manner provided by the South Carolina Appellate Court Rules A party may have judicial review of the decision of the administrative law judge as provided by law."
SECTION 45. Section 59-40-90(D) of the 1976 Code, as last amended by Act 341 of 2002, is further amended to read:
"(D) A final decision of the state board may be appealed by any party to the circuit court for the county in which the proposed charter school is or was to have located Administrative Law Judge Division as provided in Sections 1-23-380(B) and 1-23-600(D)."
SECTION 46. Section 59-58-120 of the 1976 Code, as last amended by Act 497 of 1992, is further amended to read:
"Section 59-58-120. Any A person aggrieved by the final decision of the commission in refusing to issue a license or permit, or revoking or suspending a license or permit previously granted, is entitled to the same judicial review under this chapter as provided in the Administrative Procedures Act concerning contested cases appeal the commission's order to the Administrative Law Judge Division in accordance with its appellate rules of procedure."
SECTION 47. 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.
SECTION 48. Sections 58-5-350, 58-5-360, 58-9-1420, 58-9-1440, 58-9-1460, 58-9-1470, 58-9-1480, and 58-27-2330 of the 1976 Code are repealed.
SECTION 49. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 50. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 51. This act takes effect upon approval by the Governor.
This web page was last updated on Monday, December 7, 2009 at 10:39 A.M.