Opinion
23-ALJ-22-0196-AP
10-17-2023
Tyrone T. Gilmore, Appellant, v. South Carolina Department of Employment and Workforce, Respondent.
FINAL ORDER
S. PHILLIP LENSKI ADMINISTRATIVE LAW JUDGE
This matter is before the Administrative Law Court (ALC or court) pursuant to a Notice of Appeal filed on May 27, 2023, by Tyrone T. Gilmore (Appellant). The Appellant seeks judicial review of the South Carolina Department of Employment and Workforce (Department or Respondent) Appellate Panel's (Panel) decision dismissing his appeal.
After careful consideration of the parties' briefs, the record, and the applicable law, the court finds that substantial evidence in the record supports the Panel's determination. Accordingly, the Panel's decision is affirmed.
BACKGROUND
On October 3, 2022, the Department mailed a Notice of Action Regarding State Income Tax Return to the Appellant, notifying him of the Department's intention to submit a debt in the amount of $7,864.00 to the South Carolina Department of Revenue to be set off against state income tax refunds until the debt is paid in full. On November 3, 2022, the Appellant filed a written protest and a hearing before the Appeals Tribunal (Tribunal) was held on February 9,2023. The Appellant did not appear at the hearing. On February 10, 2023, the Tribunal dismissed the Appellant's protest for failing to appear at the scheduled hearing. On February 16, 2023, the Appellant appealed the Tribunal's dismissal to the Panel and on February 21, 2023, the Panel remanded the case to the Tribunal to conduct a hearing on the Appellant's absence from the me February 9, 2023 hearing. A hearing on the Appellant's absence was held on March 15, 2023. The Appellant did not appear again, and the Tribunal dismissed the appeal. On March 22, 2023. the Appellant appealed to the panel. On May 2, 2023, the panel dismissed the Appellant's appeal finding that the Appellant did not appear at the call of two prior evidentiary hearings. The Panel found that the Department mailed proper notification to the Appellant's correct address of record and that the Appellant was afforded a reasonable opportunity for a fair hearing. On May 27, 2023, the Appellant appealed to this court.
STANDARD OF REVIEW
The Department is an "agency" under the Administrative Procedures Act (APA). See Gibson v. Florence Country Club, 282 S.C. 384,386,318 S.E.2d 365,367 (1984) (finding that the Employment Security Commission, a predecessor of the Department, was an agency within the meaning of the APA). Accordingly, the APA's appellate standard governs appeals from decisions of the Department. See S.C. Code Ann. §§ 1-23-380 & l-23-600(D). This court's review in appellate cases is limited to the record. S.C. Code Ann. § 1-23-380(4).
Additionally, the court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact but may modify or reverse the decision of the agency when substantial rights of the appellant have been prejudiced. S.C. Code Ann. § 1-23-380(5). Substantial rights of the appellant are prejudiced when, among other things, the agency's decision, including the agency's findings, inferences, and conclusions, are clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. Id. However, the party challenging an agency action on appeal has the burden of proving convincingly that the agency's decision is not supported by substantial evidence. Waters, 321 S.C. at 226, 467 S.E.2d at 917 (citation omitted).
In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Corp., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996) (citingKearse v. State Health & Human Servs. Fin. Comm'n, 318 S.C. 198, 200,456 S.E.2d 892, 893 (1995)); 73 A CJ.S Public Administrative Law and Procedure § 497 (2015). A reviewing court is prohibited from substituting its judgment for that of the agency as to the weight of the evidence on questions of fact for which there is room for a difference of intelligent opinion. See Byerly Hosp. v. S.C. State Health & Human Servs. Fin. Comm'n, 319 S.C. 225, 229, 460 S.E.2d 383, 386 (1995) (citation omitted); Grant, 319 S.C. at 353, 461 S.E.2d at 391 (citation omitted). As such, "[a] reviewing court will not overturn a finding of fact by an administrative agency 'unless there is no reasonable probability mat the facts could" be as related" by a witness upon whose testimony the finding was based."' Sea Pines Ass'n for Prot. of Wildlife, Inc. v. S, C. Dep't of Nat Res., 345 S.C. 594, 603-04, 550 S.E.2d 287, 292 (2001) (quoting Lark, 276 S.C. at 136,276S.E.2dat307).
DISCUSSION
On October 3, 2022, the Department mailed a Notice of Action Regarding State Income Tax Returns to the Appellant, notifying him that the Department would submit an outstanding debt of $7,864.00 to the South Carolina Department of Revenue for collection through the Setoff Debt Collection Act. On November 3, 2022, the Appellant filed a written protest of the notice. On January 27, 2023, the Department mailed a hearing notice to the Appellant's address informing him that a hearing had been scheduled for February 9, 2023. On February 9, 2023, the Hearing Officer called the Appellant. When the Appellant did not answer, the Hearing Officer left a voicemail message. The Hearing Officer called the Appellant again at 11:30 a.m. The Appellant still did not answer, so the Hearing Office left another voicemail message. On February 10, 2023, the Tribunal dismissed the Appellant's protest for failing to appear at the scheduled time of the hearing.
On February 16, 2023, the Appellant appealed the Tribunal's decision to the Panel and on February 21, 2023, the Panel remanded the case to the Tribunal to conduct a hearing on the Appellant's absence from the February 9,2023 hearing. On March 2,2023, the Department mailed a hearing notice to the Appellant's address informing him that a hearing was scheduled for March 15, 2023. On March 15, 2023, the Hearing Officer called the Appellant. When the Appellant did not answer, the Hearing Officer left a voicemail. The Hearing Officer then called the Appellant again at 9:12 a.m. When the Appellant still did not answer, the Hearing Officer left another voicemail. On March 16,2023, the Tribunal dismissed the Appellant's appeal for failing to appear at the March 15, 2023 hearing.
On March 22, 2023, the Appellant again appealed the Tribunal's decision to the Panel. On May 2,2023, the Panel dismissed the Appellant's appeal. The Panel found that the Appellant did not appear at the call of two prior evidentiary hearings, that the Department mailed proper notification to the Appellant's correct address of record, and that the Appellant was afforded a reasonable opportunity For a fair hearmg. Therefore, the Panel Found" no justification for granting another evidentiary appeal hearing.
The Appellant claims that the Department did not call him for either of the scheduled hearings. However, included in the Record on Appeal are transcripts of both hearings. The transcripts from both the February 9, 2023 and March 15, 2023 hearings include an automated voice message which recites the Appellant's phone number and asks the caller to leave a message. The transcripts from both hearings also include the transcription of the voicemails the Hearing Officers left each time they called. Substantial evidence in the record supports the Appellate Panel's determination that the Appellant was afforded a reasonable opportunity for a fair hearing. Therefore, based on the foregoing, IT IS HEREBY ORDERED that the decision of the Department is AFFIRMED.
AND IT IS SO ORDERED.