2017-2018 Bill 3565 Text of Previous Version (Feb. 15, 2017) - South Carolina Legislature Online

1 Indicates Matter Stricken 2 Indicates New Matter 3 4 COMMITTEE REPORT 5 February 15, 2017 6 7 H. 3565 8 9 Introduced by Reps. Fry, Crawford, Elliott, Burns, Clemmons, 10 Allison, Jordan, Yow, Johnson, Atwater, Duckworth, Ryhal, 11 Loftis, Hewitt, G.R. Smith, V.S. Moss, D.C. Moss, Daning, 12 Hardee, Felder, Erickson, Bales, Hamilton, Huggins, Putnam, 13 Anthony, Bedingfield, West, Atkinson, Bennett, B. Newton, 14 Lucas, Arrington, Ballentine, Chumley, Crosby, Davis, Delleney, 15 Forrester, Gagnon, Hixon, Long, Lowe, Murphy, Pitts, Pope, 16 S. Rivers, Sandifer, Simrill, Stringer, Taylor, Thayer, White, 17 Bannister, Tallon, McCravy, Quinn and McEachern 18 19 S. Printed 2/15/17--H. 20 Read the first time January 24, 2017. 21 22 23 THE COMMITTEE ON JUDICIARY 24 To whom was referred a Bill (H. 3565) to amend Section 25 123600, as amended, Code of Laws of South Carolina, 1976, 26 relating to timely requests for contested case hearings under the 27 administrative procedures, etc., respectfully 28 REPORT: 29 That they have duly and carefully considered the same and 30 recommend that the same do pass with amendment: 31 32 Amend the bill, as and if amended, Section 1-23-600(H), as 33 contained in SECTION 1, by striking item (2) and inserting: 34 / (2) A request for a contested case hearing for an agency 35 order stays the order. A request for a contested case hearing for an 36 order to revoke or suspend a license stays the revocation or 37 suspension. A request for a contested case hearing for a decision to 38 renew a license for an ongoing activity stays the renewed license, 39 the previous license remaining in effect pending completion of 40 administrative review. A request for a contested case hearing for a 41 decision to issue a new license stays all actions for which the 42 license is a prerequisite; from an agency decision granting a

[3565-1] 1 license stays the license for thirty days and, if a request for 2 preliminary injunctive relief is filed with the Administrative Law 3 Court, until an order granting or denying preliminary injunctive 4 relief is issued by the Administrative Law Court, at which time the 5 stay is lifted; provided, however, that matters not affected by the 6 request may not be stayed by the filing of the request. If the 7 request is filed for a subsequent license related to issues 8 substantially similar to those considered in a previously licensed 9 matter, the license may not be automatically stayed by the filing of 10 the request. If the requesting party asserts in the request that the 11 issues are not substantially similar to those considered in a 12 previously licensed matter, then the license must be stayed until 13 further order of the Administrative Law Court. A request for a 14 contested case hearing for a decision to renew a license for an 15 ongoing activity stays the renewed license for thirty days, the 16 previous license remaining in effect pending completion of 17 administrative review. A request for a contested case hearing of an 18 order to revoke, enforce, or suspend a license stays the revocation 19 or suspension for thirty days. Requests for contested case hearings 20 challenging only the amount of fines or penalties stays the 21 obligation to pay such monetary fines and penalties until a final 22 order is issued by the Administrative Law Court, but must be 23 deemed does not to affect those portions of such orders imposing 24 substantive requirements. / 25 Amend further, Section 1-23-600(H), as contained in SECTION 26 1, by striking item (4) and inserting: 27 / (4) After a contested case is initiated before the 28 Administrative Law Court, a party may move before the presiding 29 administrative law judge to lift the stay imposed pursuant to this 30 subsection. When an agency revokes, suspends, renews, or denies 31 a license, upon motion by any party, the court shall lift the stay for 32 good cause shown or if no irreparable harm will occur, then the 33 stay shall be lifted. A hearing must be held within thirty days after 34 the motion is filed with the court and served upon the parties to lift 35 the automatic stay or for a determination of the applicability of the 36 automatic stay. The judge must issue an order no later than fifteen 37 business days after the hearing is concluded. Any preliminary 38 injunction ordered by the Administrative Law Court may require 39 the posting of a bond or other security sufficient for the cost and 40 expense of the litigation and project delay as demonstrated by an 41 affidavit made on a good faith estimate of the cost and expense. 42 State agencies are exempt from the requirement to post a bond 43 under this section. /

[3565-2] 1 Renumber sections to conform. 2 Amend title to conform. 3 4 F. GREGORY DELLENEY, JR. for Committee. 5

[3565-3] 1 2 3 4 5 6 7 8 9 A BILL 10 11 TO AMEND SECTION 123600, AS AMENDED, CODE OF 12 LAWS OF SOUTH CAROLINA, 1976, RELATING TO TIMELY 13 REQUESTS FOR CONTESTED CASE HEARINGS UNDER 14 THE ADMINISTRATIVE PROCEDURES ACT AND RELATED 15 PROVISIONS, SO AS TO ESTABLISH AN AUTOMATIC 16 STAY CONCERNING LICENSE ISSUANCES, RENEWALS 17 AND THE LIKE, AND TO PROVIDE FOR THE 18 CIRCUMSTANCES UNDER WHICH THE AUTOMATIC 19 STAY MAY BE LIFTED. 20 21 Be it enacted by the General Assembly of the State of South 22 Carolina: 23 24 SECTION 1. Section 123600(H) of the 1976 Code, as last 25 amended by Act 334 of 2008, is further amended to read: 26 27 “(H)(1) This subsection applies to timely requests for a 28 contested case hearing pursuant to this section of decisions by 29 departments governed by a board or commission authorized to 30 exercise the sovereignty of the State. 31 (2) A request for a contested case hearing for an agency 32 order stays the order. A request for a contested case hearing for an 33 order to revoke or suspend a license stays the revocation or 34 suspension. A request for a contested case hearing for a decision to 35 renew a license for an ongoing activity stays the renewed license, 36 the previous license remaining in effect pending completion of 37 administrative review. A request for a contested case hearing for a 38 decision to issue a new license stays all actions for which the 39 license is a prerequisite; from an agency decision granting a 40 license stays the license for thirty days and, if a request for 41 preliminary injunctive relief is filed with the Administrative Law 42 Court, until an order granting or denying preliminary injunctive

[3565] 4 1 relief is issued by the Administrative Law Court, at which time the 2 stay is lifted; provided, however, that matters not affected by the 3 request may not be stayed by the filing of the request. If the 4 request is filed for a subsequent license related to issues 5 substantially similar to those considered in a previously licensed 6 matter, the license may not be automatically stayed by the filing of 7 the request. If the requesting party asserts in the request that the 8 issues are not substantially similar to those considered in a 9 previously licensed matter, then the license must be stayed until 10 further order of the Administrative Law Court. A request for a 11 contested case hearing for a decision to renew a license for an 12 ongoing activity stays the renewed license, the previous license 13 remaining in effect pending completion of administrative review. 14 A request for a contested case hearing of an order to revoke, 15 enforce, or suspend a license stays the revocation or suspension. 16 Requests for contested case hearings challenging only the amount 17 of fines or penalties stays the obligation to pay such monetary 18 fines and penalties until a final order is issued by the 19 Administrative Law Court, but must be deemed does not to affect 20 those portions of such orders imposing substantive requirements. 21 (3) The general rule of subsection (H)(2) does not stay 22 emergency actions taken by an agency pursuant to an applicable 23 statute or regulation. 24 (4) After a contested case is initiated before the 25 Administrative Law Court, a party may move before the presiding 26 administrative law judge to lift the stay imposed pursuant to this 27 subsection for preliminary injunctive relief pursuant to applicable 28 law. Upon motion by any party, the court shall lift the stay for 29 good cause shown or if no irreparable harm will occur, then the 30 stay shall be lifted. A hearing must be held within thirty days after 31 the motion is filed with the court and served upon the parties to lift 32 the automatic stay or for a determination of the applicability of the 33 automatic stay. The judge must issue an order no later than fifteen 34 business days after the hearing is concluded. Any preliminary 35 injunction ordered by the Administrative Law Court may require 36 the posting of a bond or other security sufficient for the cost and 37 expense of the litigation and project delay as demonstrated by an 38 affidavit made on a good faith estimate of the cost and expense. 39 State agencies are exempt from the requirement to post a bond 40 under this section. 41 (5) A final decision issued by the Administrative Law Court 42 in a contested case may not be stayed except by order of the 43 Administrative Law Court or the court of appeals.

[3565] 5 1 (6) Nothing contained in this subsection constitutes a 2 limitation on the authority of the Administrative Law Court to 3 impose a stay as otherwise provided by statute or by rule of court.” 4 5 SECTION 2. This act takes effect upon approval by the 6 Governor. 7 XX 8

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