STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ROWAN 04 DHR 1059

SUSAN L. MORRIS, d/b/a )

MAGNOLIA PLACE, )

)

Petitioners, )

)

v. ) DECISION

)

OFFICE OF ADMINISTRATIVE )

HEARINGS, )

)

Respondent. )

THIS MATTER came on for consideration on the Respondent’s Motion to Dismiss. The undersigned issued to the Petitioner a Request for Response to Motion on August 13, 2004, and the Petitioner failed to respond. Accordingly, Respondent’s Motion is ripe for consideration, and based on the pleading and documents filed in this matter, I hereby make the following:

FINDINGS OF FACT

1. On December 22, 2003, the Petitioner filed a Petition with OAH styled Susan Morris, Magnolia Place v. NCDHHS, 03 DHR 2414, challenging the assessment of a $1,000 penalty by the Respondent.

2. In the Respondent’s Document Constituting Agency Action filed in 03 DHR 2414, the Respondent identified a November 19, 2003 letter to the Petitioner in which it informed her that she was being assessed a penalty of $1,000.

3. By Final Decision Order of Dismissal entered by Administrative Law Judge Augustus B. Elkins, II, on April 22, 2004, Judge Elkins dismissed the Petition in case number 03 DHR 2414.

4. On June 24, 2004, Administrative Law Judge James L. Conner entered an Order for Prehearing Statements to be filed by both parties within thirty (30) days.

5. On July 27, 2004, the Respondent filed its Document Constituting Agency Action and Prehearing Statement in which it identified a June 3, 2004, memorandum from the Respondent to the Petitioner reminding the Petitioner that she had yet to pay the $1,000 penalty assessed on November 19, 2003, as the document that caused the filing of the Petition in this matter.

6.  The Petitioner failed to file a Prehearing Statement in this matter.

CONCLUSIONS OF LAW

1. The Petitioner has failed to bring this action against the proper party, the North Carolina Department of Health and Human Services.

2. The same issue raised by the Petitioner in this matter has been previously adjudicated in OAH in case no. 03 DHR 2414.

3. The Petitioner has failed to prosecute this matter.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the Respondent’s Motion to Dismiss is hereby GRANTED.

This is a Final Decision under the authority of G.S. 150B-36(c).

NOTICE

Pursuant to G.S. 150B-45, any party wishing to appeal the final decision of the Administrative Law Judge may commence such appeal by filing a Petition for Judicial Review in the Superior Court of Wake County or in the Superior Court of the county in which the party resides. The party seeking review must file the petition within 30 days after being served with a written copy of the Administrative Law Judge’s Decision and Order. Pursuant to G.S. 150B-47, the Office of Administrative Hearings is required to file the official record in the contested case with the Clerk of Superior Court within 30 days of receipt of the Petition for Judicial Review. Consequently, a copy of the Petition for Judicial Review must be sent to the Office of Administrative Hearings at the time the appeal is initiated in order to ensure the timely filing of the record.

This the 14th day of April, 2004.

______

James L. Conner, II

Administrative Law Judge

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