South Carolina General Assembly

115th Session, 2003-2004

H. 5116

STATUS INFORMATION

General Bill

Sponsors: Rep. Harrison

Document Path: l:\council\bills\ms\7253ahb04.doc

Introduced in the House on April 14, 2004

Currently residing in the House Committee on Judiciary

Summary: Jurisdiction of the Administrative Law Judge Division

HISTORY OF LEGISLATIVE ACTIONS

Date Body Action Description with journal page number

4/14/2004 House Introduced and read first time HJ68

4/14/2004 House Referred to Committee on Judiciary HJ70

VERSIONS OF THIS BILL

4/14/2004

A BILL

TO AMEND SECTION 123600, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO HEARINGS AND PROCEEDINGS BEFORE THE ADMINISTRATIVE LAW JUDGE DIVISION, SO AS TO PROVIDE THAT THE ADMINISTRATIVE LAW JUDGE DIVISION HAS JURISDICTION IN OTHER MATTERS SPECIFICALLY ASSIGNED BY LAW TO THE JURISDICTION OF THE DIVISION; TO AMEND SECTION 1617445, RELATING TO REGULATION OF UNSOLICITED CONSUMER TELEPHONE CALLS AND SECTION 343640, RELATING TO LOAN BROKERS, BOTH SO AS TO PROVIDE A PROCEDURE FOR THE DEPARTMENT OF CONSUMER AFFAIRS TO REQUEST A HEARING BEFORE THE ADMINISTRATIVE LAW JUDGE DIVISION AND TO PROVIDE THAT THE DEPARTMENT MAY REQUEST THAT THE ADMINISTRATIVE LAW JUDGE DIVISION IMPOSE A CIVIL FINE FOR A VIOLATION; TO AMEND SECTION 376106, RELATING TO THE INVESTIGATORY POWERS OF THE ADMINISTRATOR OF THE DEPARTMENT OF CONSUMER AFFAIRS, SO AS TO PROVIDE THAT THE ADMINISTRATOR MAY APPLY TO THE ADMINISTRATIVE LAW JUDGE DIVISION, RATHER THAN THE COURT OF COMMON PLEAS, FOR AN ORDER COMPELLING COMPLIANCE WITH A SUBPOENA; TO AMEND SECTIONS 376108 AND 376113, BOTH AS AMENDED, RELATING TO AN ORDER OF THE ADMINISTRATOR OF THE DEPARTMENT OF CONSUMER AFFAIRS, SO AS TO PROVIDE A PROCEDURE FOR THE ADMINISTRATOR TO REQUEST A HEARING BEFORE THE ADMINISTRATIVE LAW JUDGE DIVISION AND TO PROVIDE FOR JUDICIAL REVIEW OF THE ADMINISTRATIVE LAW JUDGE DIVISION’S ORDER AS PROVIDED IN THE ADMINISTRATIVE PROCEDURES ACT AND THE RULES GOVERNING PRACTICE BEFORE THE ADMINISTRATIVE LAW JUDGE DIVISION; TO AMEND SECTION 376401, RELATING TO THE POWERS OF THE ADMINISTRATOR OF THE DEPARTMENT OF CONSUMER AFFAIRS, SO AS TO PROVIDE THAT A CONFLICT BETWEEN THE PROVISIONS OF PART 4, CHAPTER 6, TITLE 37 AND THE ADMINISTRATIVE PROCEDURES ACT MUST BE RESOLVED IN FAVOR OF THE LATTER; TO AMEND SECTION 376415, RELATING TO APPEALS OF THE PROVISIONS OF PART 4, CHAPTER 6, TITLE 37, SO AS TO PROVIDE THAT A PERSON MAY APPEAL A FINAL JUDGMENT OF THE ADMINISTRATIVE LAW JUDGE DIVISION AS PROVIDED IN THE ADMINISTRATIVE PROCEDURES ACT AND THE RULES GOVERNING PRACTICE BEFORE THE ADMINISTRATIVE LAW JUDGE DIVISION; TO AMEND SECTIONS 3711100 AND 3711110, RELATING TO LICENSING AND REGULATION OF CONTINUING CARE RETIREMENT COMMUNITIES, SO AS TO PROVIDE A PROCEDURE FOR THE DEPARTMENT OF CONSUMER AFFAIRS TO REQUEST A HEARING BEFORE THE ADMINISTRATIVE LAW JUDGE DIVISION AND TO PROVIDE FOR JUDICIAL REVIEW OF THE ADMINISTRATIVE LAW JUDGE DIVISION’S ORDER AS PROVIDED IN THE ADMINISTRATIVE PROCEDURES ACT AND THE RULES GOVERNING PRACTICE BEFORE THE ADMINISTRATIVE LAW JUDGE DIVISION; TO AMEND SECTION 371670, RELATING TO PREPAID LEGAL SERVICES, SO AS TO PROVIDE FOR NOTICE AND OPPORTUNITY FOR A HEARING BEFORE THE ADMINISTRATIVE LAW JUDGE DIVISION BY A PREPAID LEGAL SERVICES COMPANY FOR A VIOLATION OF THE PROVISIONS OF THE CHAPTER, TO PROVIDE THAT THE ADMINISTRATOR OF THE DEPARTMENT OF CONSUMER AFFAIRS MAY ISSUE AN ORDER REQUIRING THE CLUB REPRESENTATIVE TO CEASE AND DESIST FROM THE VIOLATION, AND TO PROVIDE THAT THE CLUB REPRESENTATIVE MAY REQUEST A HEARING BEFORE THE ADMINISTRATIVE LAW JUDGE DIVISION; TO AMEND SECTIONS 3961100 AND 3961130, BOTH AS AMENDED, BOTH RELATING TO MOTOR CLUB SERVICES, SO AS TO PROVIDE A PROCEDURE FOR THE ADMINISTRATOR OF THE DEPARTMENT OF CONSUMER AFFAIRS TO REQUEST A HEARING BEFORE THE ADMINISTRATIVE LAW JUDGE DIVISION AND TO PROVIDE FOR JUDICIAL REVIEW OF THE ADMINISTRATIVE LAW JUDGE DIVISION’S ORDER AS PROVIDED IN THE ADMINISTRATIVE PROCEDURES ACT AND THE RULES GOVERNING PRACTICE BEFORE THE ADMINISTRATIVE LAW JUDGE DIVISION; TO AMEND SECTION 4039150, RELATING TO PAWNBROKERS, SECTIONS 405855, 405880, AND 405890, ALL RELATING TO MORTGAGE LOAN BROKERS, SECTION 4068160 RELATING TO REGULATION OF STAFF LEASING SERVICES, SECTION 447980, RELATING TO PHYSICAL FITNESS SERVICES, SECTION 5628110, RELATING TO NOTIFICATION OF SUBSEQUENT PURCHASERS OF A MOTOR VEHICLE REQUIRED TO BE REPURCHASED RELATING TO MOTOR VEHICLE WARRANTIES, AND SECTION 5910220, RELATING TO REGISTRATION OF ATHLETE AGENTS, ALL SO AS TO PROVIDE A PROCEDURE FOR A HEARING BEFORE THE ADMINISTRATIVE LAW JUDGE DIVISION AND TO PROVIDE FOR JUDICIAL REVIEW OF THE ADMINISTRATIVE LAW JUDGE DIVISION’S ORDER AS PROVIDED IN THE ADMINISTRATIVE PROCEDURES ACT AND THE RULES GOVERNING PRACTICE BEFORE THE ADMINISTRATIVE LAW JUDGE DIVISION.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Section 123600 of the 1976 Code, as last amended by Act 92 of 1995, is further amended to read:

“Section 123600. (A) A full and complete record shall must be kept of all contested cases and regulation hearings before an Administrative Law Judge administrative law judge. All testimony shall must be reported and need not be transcribed unless a transcript is requested by any a party. The party requesting a transcript shall be is responsible for the costs involved. Proceedings before Administrative Law Judges administrative law judges are open to the public unless confidentiality is allowed or required by law. The presiding Administrative Law Judge administrative law judge shall render the decision in a written order. The decisions or orders of these Administrative Law Judges 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 123310 involving the departments of the executive branch of government in which a single hearing officer is authorized or permitted by law or regulation to hear and decide such cases, except those arising under the Occupational Safety and Health Act, those matters which are otherwise provided for in Title 56, or those other cases or hearings which are prescribed for or mandated by federal law or regulation, unless otherwise by law specifically assigned to the jurisdiction of the Administrative Law Judge Division. The Administrative Law Judge Division has jurisdiction in other matters specifically assigned by law to the jurisdiction of the 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 123380.

(E) Notwithstanding the other provisions another provision of this section, cases initiated before May 1, 1994, to which an administrative law judge would be assigned shall must 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 must be heard and decided by an administrative law judge pursuant to the provisions of this article.”

SECTION 2. Section 1617445(F) of the 1976 Code is amended to read:

“(F) The department shall investigate any complaints received concerning violations of this section. If the department finds has reason to believe that there has been a violation of this section, it may request a hearing before the Administrative Law Judge Division to impose a civil penalty not to exceed one hundred dollars for a first violation, two hundred dollars for a second violation, and one thousand dollars for a third or subsequent violation, and . The department may seek also bring a civil action in the Court of Common Pleas seeking other relief, including injunctive relief, as the court considers appropriate against the telephone solicitor. In addition, a person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction for a first or second offense, must be fined not more than two hundred dollars or imprisoned for not more than thirty days, and for a third or subsequent offense must be fined not less than two hundred dollars nor more than five hundred dollars or imprisoned for not more than thirty days. Each violation constitutes a separate offense for purposes of the civil and criminal penalties in this section.”

SECTION 3. Section 343640 of the 1976 Code, as added by Act 452 of 1992, is amended to read:

“Section 343640. (A) The department may investigate the actions of any person for compliance with this chapter.

(B) The department may request a hearing before the Administrative Law Judge Division for an order for a loan broker to cease and desist whenever the department determines if it is determined that the loan broker has violated, is violating, or will violate any a provision of this chapter, any a regulation promulgated by the department, or any a written agreement entered into with the department.

(C) The department may request a hearing before the Administrative Law Judge Division for an order for a loan broker to refund or reimburse any an advance fee or any other fee taken in violation of Section 343620 or taken as a result of a false, misleading, or deceptive representation as described in Section 343620. Such an order may, but need not, be sought by the department in conjunction with a cease and desist order pursuant to subsection (B).

(D) The department may request that the Administrative Law Judge Division impose and collect a civil administrative fine on behalf of the department against any a person found to have violated any a provision of this chapter, any a regulation promulgated by the department, or any a written agreement entered into with the department, in any an amount not to exceed five thousand dollars for each violation.”

SECTION 4. Section 376106(3) of the 1976 Code is amended to read:

“(3) Upon failure without lawful excuse to obey a subpoena or to give testimony and upon reasonable notice to all persons affected thereby, the Administrator administrator may apply to the court of common pleas Administrative Law Judge Division for an order compelling compliance.”

SECTION 5. Section 376108 of the 1976 Code, as last amended by Act 82 of 2001, is further amended to read:

“Section 376108. (1) After notice and hearing the administrator may request a hearing before the Administrative Law Judge Division for an order for a creditor, a person acting in 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 the final order of the administrator may obtain judicial review of the order and the administrator may obtain an order of the 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 court. Copies of the petition must be served upon all parties of record as provided in the Administrative Procedures Act and the rules governing practice before the Administrative Law Judge Division.

(2) Within thirty days after service of the petition for review upon the Administrator, or within any further time the 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 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) An objection not urged at the hearing shall not be considered by the court unless the failure to urge the objection is excused for good cause shown. A party may move the court 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) The jurisdiction of the court shall be 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 be available at reasonable times to all parties for examination without cost.

(5) A proceeding for review under 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 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 court.