Administrative Procedure Act – South Carolina
The South Carolina Administrative Procedure Act (“Act”) is found in Title 1, Chapter 23 of the South Carolina Code of Laws Annotated. The Act provides that all regulations promulgated or proposed to be promulgated by state agencies having general public applicability and legal effect, including all those including penalty provisions must be filed with the Legislative Council and published in the State Register. The Legislative Council will establish procedures for carrying out the provisions of the Act relating to the State Register and the form and filing of regulations.
S.C. Code Ann. § 1-23-110 provides for the procedures for promulgation amendment or repeal of a regulation. Before promulgation, amendment or repeal of a regulation, an agency must give notice of the drafting period by giving a notice in the state register. The notice must include:
- Address to which interested persons can submit comments;
- A synopsis of what the agency plan to draft; and
- The agency’s statutory authority to promulgate, amend or repeal the regulation.
The agency must also submit to the division a preliminary assessment report on regulations having substantial economic impact. The agency must give notice of public hearing where the agency will receive data, views, or arguments, orally and in writing, from interested persons by publication of a notice in the State Register. Notice of public hearing is given if requested by twenty-five persons, by a governmental subdivision or agency, or by an association having not less than twenty-five members.
According to S.C. Code Ann. § 1-23-125, the legislative committee to which a regulation is submitted is not authorized to amend a particular regulation and then introduce a joint resolution approving the regulation as amended. If majority of legislative committee determines that it cannot approve a regulation in the form submitted, it will notify the promulgating agency in writing along with its recommendations regarding the changes that would be necessary to obtain committee’s approval.
S.C. Code Ann. § 1-23-126 provides that any interested person can petition an agency requesting the promulgation, amendment or repeal of a regulation. Within 30 days after receipt of the petition, the agency can initiate the requested action or can deny the petition in writing after stating its reasons for the denial.
S.C. Code Ann. § 1-23-130 provides that an agency can make an emergency regulation if it finds that there is imminent threat to public health, safety and welfare and immediate promulgation of emergency regulation is necessary to avoid such imminent threat.
In a contested case, all parties must be given reasonable opportunity for hearing after giving at least 30 days’ notice. The notice must include:
- Details of the time, place, and nature of the hearing;
- Reference to the legal authority and jurisdiction under which the hearing is to be held;
- Details of the particular sections of the statutes and rules involved; and
- Short and plain statement of the asserted matters.
The final decision or order in a contested case, which is adverse to a party must be in writing or stated in the record. It must include findings of fact and conclusions of law, separately stated. Findings of fact must be accompanied by a concise and explicit statement of the underlying facts supporting the findings. Any decision or order must be notified to the parties either personally or by mail. A copy of the decision or order will be delivered or mailed to each party and to his attorney of record on his/her request.
According to S.C. Code Ann. § 1-23-370, when a licensee has made timely and sufficient application for the renewal of a license, the existing license does not expire until the application has been finally determined by the agency. The agency cannot revoke, suspend, annul or withdraw any license unless, prior to the institution of agency proceedings, the agency gave sufficient notice to the licensee of facts or conduct concerning the intended action. The licensee must also be given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety or welfare imperatively requires emergency action, summary suspension of a license can be ordered.
S.C. Code Ann. § 1-23-380 provides that any party aggrieved by the final decision in a contested case and is exhausted with all administrative remedies is entitled to judicial review. The court cannot not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court can affirm the decision of the agency or remand the case for further proceedings. The court can reverse or modify the decision if substantial rights of the appellant are prejudiced or the administrative findings, inferences, conclusions, or decisions:
- violates constitutional or statutory provisions;
- exceeds statutory authority of the agency;
- is made upon unlawful procedure;
- is affected by other error of law;
- is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
- is arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
A party aggrieved of the final decision of the circuit court or the court of appeals can obtain a review of the final judgment from the Supreme court.