SC Administrative Law Court Decisions

This matter comes before the Administrative Law Court (“ALC” or “Court”) for a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2005 & Supp. 2007) and 44-1-60(F) (Supp. 2007). Patrick Hubbard, Hoyt C. Burnett, and Old Shandon Neighborhood Association (collectively, the “Petitioners”) filed a request for a contested case hearing on November 20, 2007, challenging the September 17, 2007 final agency decision of Respondent South Carolina Department of Health and Environmental Control (“Department”). In its final agency decision, the Department issued a renewal license to Shavon’s Purple Lotus Body Art Boutique, LLC (“Shavon’s”) to operate a tattoo facility for its location at 1028 Woodrow Street, Columbia, South Carolina (the “location”).

The Department and Shavon’s filed a Motion to Dismiss and a Motion for Summary Judgment, respectively, on March 31, 2008; the Petitioners filed a response to the motions. A hearing was held on April 15, 2008 at the offices of the ALC in Columbia, South Carolina. All the parties appeared at the hearing. At the beginning of the hearing, the parties argued
their respective positions regarding the motions. After they concluded their arguments, the Court denied the motions and decided that a record needed to be developed to assist it in making its decision. Evidence was introduced and testimony was given during the hearing.

After carefully considering all the testimony and evidence presented during the hearing, the Court finds and concludes that the Department must grant the renewal license authorizing Shavon’s to operate a tattoo facility at the location.

FINDINGS OF FACT^[1]

Having observed the witnesses and reviewed the exhibits presented at the hearing and closely passed upon their credibility, and having taken into consideration the burden of persuasion by the parties, the Court makes the following Findings of Fact:

1. Patrick Hubbard (“Hubbard”) is employed as a law professor by the University of South Carolina School of Law, Columbia, South Carolina. He teaches primarily in the areas of torts and land use planning. In addition, he consults in land-use planning and in the drafting of and interpretation of ordinances when requested by individuals and businesses. Hubbard resides at 2719 Preston Street, Columbia, South Carolina, approximately two (2) blocks from the location. He assisted in forming the Old Shandon Neighborhood Association (“Old Shandon”) and also assisted in having Old Shandon registered in local and national historic societies. He is a current and active member of Old Shandon, having served previously for two terms as its president. Hubbard’s primary objection is to the process the Department uses in notifying the public of a tattoo application. Also, he is concerned about the proximity of the location to Bethel AME Church (“church”) and its pre-school building.

2. Hoyt C. Burnett (“Burnett”) is employed as a civil engineer. He works on a variety of projects such as roadway, sewer, and drainage design. Burnett owns and resides in his home which is located at 830 Maple Street, Columbia, South Carolina, approximately two and one-half (2 ½) blocks from the location. In addition, he owns another house on Cypress Street, approximately two (2) blocks from the location. Both houses are located within Old Shandon. Burnett is a current and active member of Old Shandon. He objects to the location of the tattoo facility on several grounds: the appearance of the building; the clientele at the proposed location; and its proximity to the church, its pre-school building, and the Wheatley Branch of the Richland County Public Library (“library”).

3. Old Shandon is an active neighborhood association which encompasses Epworth, Millwood, Devine, and King Streets, among others. Old Shandon’s members hold quarterly meetings at Maple Street Southern Methodist Church. Old Shandon objects to the location based upon its proximity to the church, its pre-school building, and the library.

4. In 2004, Burnett and Hubbard became aware of Shavon’s intent to operate a tattoo facility at 1028 Woodrow Street, Columbia, South Carolina. By letter dated October 7, 2004, Hubbard – then President of Old Shandon – opposed Shavon’s request to the City of Columbia Zoning Board of Appeals (“Board”) to issue a special exception to a local zoning ordinance. The Board held a public hearing concerning the request on October 12, 2004; Hubbard and Burnett attended the hearing. On November 15, 2004, the Board granted to Shavon’s a special exception to the ordinance which would allow it to establish a tattoo facility at the location. However, the special exception was conditioned upon Shavon’s complying with “all State and other laws, regulations, and requirements, especially regarding licensing.”

5. On December 23, 2004, Hubbard wrote a letter to Dennis L. Gibbs (“Gibbs”), Director of the Department’s Division of Health Licensing (“Division”) and suggested several changes regarding the Department’s proposed regulations concerning tattoo facilities. In the letter, Hubbard acknowledged that the Board had granted the special exception to Shavon’s. However, he expressed concerns with the regulations governing the permitting of tattoo facilities, opining that the public notice provision in regulations would not “provide meaningful notice to neighbors.” Hubbard suggested that the Department provide more notice to the public of all applications for the licensing of tattoo facilities.

6. The Board of Health and Environmental Control (“DHEC Board”) issued a “Summary Sheet” on March 10, 2005 regarding the proposed tattoo regulations. Included within this Summary Sheet was the DHEC Board’s response to comments received from the public regarding the regulations. Hubbard’s comments and suggestions were not adopted by the DHEC Board.

7. Hubbard contacted John Law, an employee of the Department, on May 18, 2005 about the tattoo regulations. He was informed that the regulations were “on hold” and that he would need to make further inquiry via telephone to the Department in January 2006.

8. The regulations concerning tattoo facilities in this state became effective in March 2006. Although the Department held public hearings concerning the licensing of these facilities prior to the effective date of the regulations, neither Hubbard nor Burnett attended any of them.

9. On April 11, 2006, Hubbard contacted the Department regarding the location.^[2] His query to the Department was mostly concerned with the location’s proximity to the church’s proposed pre-school building.^[3] Hubbard indicated to the Department his belief that the proposed pre-school facility should be considered by it in Shavon’s licensing application process; however, staff of the Department informed Hubbard that only existing school facilities would be considered concerning the distance requirements in tattoo licensing applications. Hubbard did not contact the Department again until December 2006.

10. On April 18, 2006, the Division received Shavon’s application for a license to operate a tattoo facility at the location. Ms. Christine M. Zurasky is listed as the administrative officer for Shavon’s on the application.

11. On May 31, 2006, the Department notified Shavon’s that it had denied its application for a license to operate a tattoo facility at 1028 Woodrow Street, Columbia, South Carolina. The Department based its denial on the distance requirements contained in S.C. Code Ann. § 44-34-110. Specifically, it determined that Shavon’s was located within one thousand (1,000) feet of Bethel AME Church, which is located at 819 Woodrow Street, Columbia, and Epworth Children’s Home, which is located at 2900 Millwood Avenue, Columbia.

12. Shavon’s received notice of the Department’s May 31, 2006 decision denying the license application on June 5, 2006. On July 5, 2006, Shavon’s filed a request for a contested case hearing with the Court.^[4] The matter was assigned to the Honorable John G. Geathers on July 11, 2006 to hear and decide. It was docketed as Docket No. 06-ALJ-07-0604-CC.

13. On August 1, 2006, the Department informed Shavon’s that it had conducted a re-measurement at the location and stated that that the proposed location was “deemed to comply with the requirements” of § 44-34-110(A)(1) and S.C. Code Ann. Regs. 61-111 § 201(F)(2).

14. The Department issued license number TF-014 to Shavon’s on August 8, 2006. The license permitted Shavon’s to operate a tattoo facility with 2 stations at the location. The expiration date for the license was August 31, 2007.

15. On August 14, 2006, Shavon’s filed a motion to withdraw its request for a contested case hearing in the matter contained in Docket No. 07-ALJ-07-0604-CC because the Department had issued the license to Shavon’s for the tattoo facility at the location. Judge Geathers granted the request and issued an Order of Dismissal on August 17, 2006.

16. In mid-August 2006, Burnett contacted the Department’s Office of General Counsel regarding the location. He was instructed to file a Freedom of Information Act (“FOIA”) request if he wished to obtain the information about the license application. On September 15, 2006, Burnett made an FOIA request to Gibbs concerning the license application; however, the request was lost by the Department. After further conversation with staff at the Department, on November 11, 2006 Burnett faxed his FOIA request dated September 16, 2006 to Jody Hamm, an employee at the Department. On December 1, 2006, the Department provided the following documents to Burnett:

a. Invoice dated 12/01/06;

b. August 6, 2006 letter of the Department, granting the initial license to Shavon’s;

c. Copy of S.C. Code Ann. § 64-6-120 with handwritten comments;

d. May 19, 2006 letter by City of Columbia Zoning Administrator;

e. November 15, 2004 letter by City of Columbia Zoning Board;

f. May 31, 2006 decision by Department initially denying a license to Shavon’s;

g. Expedia.com map displaying location of Shavon’s;

h. May 19, 2006 letter from counsel for Shavon’s to Mr. Joe Gatten, Division of Health Licensing for the Department;

i. Department invoice for Shavon’s initial inspection fee;

j. August 10, 2006 letter to Shavon’s which included the initial license granted to Shavon’s by the Department; and,

k. Shavon’s initial application to the Department for a tattoo facility license.

Burnett expressed several concerns about the documents he received from the Department: (1) they did not contain any documentation of the prior proceeding before Judge Geathers; (2) they did not contain any documentation from Shavon’s previous counsel; (3) they did not contain any documentation concerning the second set of measurements; and (4) they did not contain a copy of the notice submitted to the newspaper by Shavon’s.

17. Hubbard, Burnett, and Dr. Isa Mandell (“Dr. Mandell”) (then-President of Old Shandon) sent a letter to the Chairman of the DHEC Board on January 5, 2007 requesting final review of the August 1, 2006 Department decision which had approved the issuance of a license to Shavon’s to operate the tattoo facility at the location. Petitioners based their request upon the distance requirements set forth in § 44-34-110.

18. The DHEC Board met on February 16, 2007 to review pending staff decisions, which included Petitioners’ request of January 5, 2007 concerning the staff’s issuance of the initial license to Shavon’s. The DHEC Board determined that Petitioners’ request was untimely and notified petitioners, by letter dated February 28, 2007, that it would not conduct a final review conference in the matter. Hubbard and Burnett decided that they would not “fight the initial licensing any more” but would pursue the licensing issue again when it came up for renewal in August 2007.

19. On May 29, 2007, Hubbard, Burnett, and Dr. Mandell notified the Department that they wished to be informed of any Department decision regarding the location as they believed they were “affected persons” pursuant to § 44-1-60(E). The Division received this request on June 11, 2007.

20. On September 17, 2007, the Department issued a renewal license to Shavon’s. It permitted Shavon’s to operate a tattoo facility with 2 stations at the same location. Further, it provided that it would expire on August 31, 2008.

21. Hubbard and Burnett requested a final review conference before the DHEC Board on September 28, 2007. They based their request upon their belief that the Department had “wrongfully granted” the initial license because the distance requirements of § 44-34-110 were not satisfied.

22. In its letter dated October 23, 2007, the DHEC Board notified Hubbard, Burnett, and Shavon’s that it would not conduct a Final Review Conference concerning the decision by Department staff on September 17, 2007 to renew the license.

23. Petitioners filed a request for a contested case hearing with the ALC on November 20, 2007 seeking review of the staff decision to renew Shavon’s license.

CONCLUSIONS OF LAW

Based upon the above Findings of Fact, I conclude the following as a matter of law:

1. S.C. Code Ann. § 1-23-600 (2005 & Supp. 2007) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 44-1-60(F) (Supp. 2007) grants the Administrative Law Court the responsibility to determine contested case matters concerning all decisions by the Department involving the issuance, denial, renewal, suspension, or revocation of permits, license, or other actions of the Department. See § 44-1-60(A).

3. S.C. Code Ann. § 44-34-10 et seq. (Supp. 2007) sets forth the requirements for the issuance of a tattoo license to an establishment. Section 44-34-20 provides for the information to be submitted to the Department when initially applying for a license.

4. S.C. Code Ann. § 44-34-50 (Supp. 2007) provides that the department may inspect licensed tattoo establishments to ensure that all requirements provided for under the statutes and regulations are being met. Staff of the Department may conduct these inspections without prior notice or after complaint(s) have been made.

5. S.C. Code Ann. § 44-34-110(A)(1) (Supp. 2007) provides that a tattoo license shall not be issued to a place of business if:

the place of business is within one thousand feet of a church, school, or playground. This distance must be computed by following the shortest route of ordinary pedestrian or vehicular travel along a public thoroughfare from the nearest point of the grounds in use as part of the church, school, or playground.

The language contained in 25A S.C. Code Ann. Regs. 61-111 (Supp. 2007) mirrors the language of S.C. Code Ann. § 44-34-110(A)(1).

6. S.C. Code Ann. § 44-34-110(A)(3) provides that the distance requirements contained in § 44-34-110(A)(1) do not apply to renewal licenses or to new applications for locations that are licensed at the time the new application is filed with the Department.

7. The weight and credibility assigned to evidence presented at the hearing of a matter

is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of fact, “has the authority to determine the weight and credibility of the evidence before him”). Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility of his testimony. See Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).

8. Based upon the testimony of the witnesses and the evidence presented at the hearing, I find that the Department should issue the renewal license to Shavon’s for the following reasons: (1) Petitioners failed to timely challenge the Department’s initial decision to issue a license to Shavon’s; (2) Petitioners failed to properly exhaust their administrative remedies in the initial licensing matter; and (3) § 44-34-110(A)(3) precludes the Petitioners’ challenge of Shavon’s renewal license on the basis of the distance requirements provided for under § 44-34-110(A)(1) and Reg. 61-111.

Failure to Timely Challenge the Department’s August 8, 2006 Decision

On November 20, 2007, Petitioners filed a request for a contested case hearing with the ALC to challenge the issuance of a renewal license to Shavon’s. In their request, Petitioners challenge the Department’s decision which granted the initial license to Shavon’s to operate the tattoo facility. They assert that the distance requirements contained in § 44-34-110(A)(1) were not met when the license was originally issued by the Department. The Department licensed Shavon’s for a tattoo facility on August 8, 2006. Pursuant to § 44-1-60, that decision became the final agency decision within fifteen days after notice was mailed to Shavon’s:

Notice of the department decision must be sent to the applicant, permittee, licensee, and affected persons who have asked to be notified by certified mail, return receipt requested. The department decision becomes the final agency decision fifteen days after notice of the department decision has been mailed to the applicant, unless a written request for final review is filed with the department by the applicant, permittee, licensee, or affected person.

§ 44-1-60(E) (emphasis added).

Furthermore, the ALC Rules of Procedure “permit[ ] the filing of the request for a contested case hearing with the affected agency, and retain[ ] that agency’s time limits for filing,” i.e., within fifteen days of the date of mailing of the Department decision. ALC Rule 11, note (emphasis added). There was no evidence presented at the hearing that indicates that anyone, including Petitioners, requested the Department to notify them of any decision during the initial licensing process. Petitioners did not comply with the fifteen day notice requirement contained in § 44-1-60(E); their first request for a review of the Department’s decision dated August 8, 2006 was on January 5, 2007, some five months after the issuance of the initial license. Petitioners were aware – since 2004 – that Shavon’s intended to operate a tattoo facility at the location. In fact, Burnett and Hubbard actively participated in the zoning process before the Board and had several conversations with Department employees concerning the location prior to its issuance of the initial license. Petitioners argue they were unaware that, pursuant to § 44-1-60(E), they had to notify the Department by certified mail, return receipt requested, that they were affected persons concerning the Department’s decision. This argument lacks credibility; all citizens in this state are presumed to know the law.^[5] Morgan v. S.C. Budget and Control Bd., Op. No. 4356 (S.C. Ct. App. filed Mar. 13, 2008) (Shearouse Adv. Sh. No. 12 at 56, 62) (“[C]itizens are presumed to know the law and are charged with exercising ‘reasonable care to protect [their] interest[s].’”) (citing Smothers v. U.S. Fidelity and Guar. Co., 322 S.C. 207, 210-11, 470 S.E.2d 858, 860 (Ct. App. 1996)); Morehead v. Doe, 342 S.C. 559, 562, 479 S.E.2d 817, 818 (Ct. App. 1996) (“[A] person is presumed to know the law.”) (citing Smothers, 322 S.C. 207, 210-11, 470 S.E.2d 858, 860).

Petitioners failed to timely request a contested case hearing in this matter, and the Court is constrained by the time limits provided by the applicable statutes and the Court’s Rules of Procedure. “The requirement of service of the notice of appeal is jurisdictional, i.e., if a party misses the deadline, the appellate court lacks jurisdiction to consider the appeal and has no authority or discretion to ‘rescue’ the delinquent party by extending or ignoring the deadline for service of the notice.” Elam v. S.C. Dep’t of Transp., 361 S.C. 9, 14-15, 602 S.E.2d 772, 775 (2004); Sadico of Greenville, Inc. v. Greenville County Bd. of Zoning Appeals, 340 S.C. 57, 59, 530 S.E.2d 383, 384 (2000) (“[S]ervice of the Notice of Appeal is a jurisdictional requirement, and th[e] Court has no authority to extend or expand the time in which the Notice of Appeal must be served.”) (citing Mears v. Mears, 287 S.C. 168, 169, 337 S.E.2d 206, 207 (1985); Burnett v. S.C. State Highway Dep’t, 252 S.C. 568, 167 S.E.2d 571 (1969) (holding that lower court exceeded its authority by allowing an extension of time for taking an appeal from a decision). Therefore, I find that Petitioners failed to invoke the Court’s jurisdiction by timely requesting a contested case hearing with regard to the initial licensing of Shavon’s.^[6]

Failure to Exhaust Administrative Remedies

Even if the Petitioners’ attempts to contact the Department could be construed as placing the Department on notice that they were affected persons regarding Shavon’s initial license, Petitioners failed to exhaust their administrative remedies once they received a final decision from the DHEC Board on February 28, 2007. Pursuant to § 44-1-60, if the Petitioners were unsatisfied with the DHEC Board decision, they could challenge the decision by filing a request for a contested case hearing with the ALC within thirty days of receipt of the DHEC Board decision:

After the administrative review, the board, its designee, or a committee of three members of the board appointed by the chair shall issue a written final agency decision based upon the evidence presented. The decision may be announced orally at the conclusion of the administrative review or it may be reserved for consideration. The written decision must explain the bases for the decision and inform the parties of their right to request a contested case hearing before the Administrative Law Court. In either event, the written decision must be mailed to the parties no later than thirty days after the date of the administrative review. Within thirty days after the receipt of the decision an applicant, permittee, licensee, or affected person desiring to contest the final agency decision may request a contested case hearing before the Administrative Law Court, in accordance with the Administrative Procedures Act. The court shall give consideration to the provisions of Section 1-23-330 regarding the department's specialized knowledge.

§ 44-1-60(F)(2) (emphasis added). The doctrine of exhaustion of administrative remedies generally requires a person seeking relief from the action of an administrative agency to pursue all available administrative remedies before seeking such relief from the courts. Hyde v. S.C. Dep’t of Mental Health, 314 S.C. 207, 208, 442 S.E.2d 582, 583 (1994) (citing Andrews Bearing Corp. v. Brady, 261 S.C. 533, 201 S.E.2d 241 (1973) (“The general rule is that administrative remedies must be exhausted absent circumstances supporting an exception to application of the general rule.”)); Video Gaming Consultants, Inc. v. S.C. Dep’t of Revenue, 342 S.C. 34, 38, 535 S.E.2d 642, 644 (2000) (noting that “[e]xhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.”).

On February 28, 2007, the DHEC Board determined that Petitioner’s challenge of Shavon’s initial license was untimely filed, and it declined to conduct a final review conference. The decision by the DHEC Board became the final agency decision. Petitioner’s only recourse thereafter was to challenge Shavon’s initial licensing by requesting a contested case hearing with the ALC. Although Hubbard stated that the notice process of this matter “bothered” him most, Petitioners had a procedure by which they could challenge the Department’s and the DHEC Board’s decision. They chose not to do so. See Zaman v. S.C. State Bd. of Medical Exam’rs, 305 S.C. 281, 285, 408 S.E.2d 213, 215 (1991) (“One cannot complain of a due process violation if he has recourse to a constitutionally sufficient administrative procedure but merely declines or fails to take advantage of it.”).

In fact, during the hearing, Hubbard stated that “[he and Burnett] decided not to fight the initial licensing any more” as they believed it would be better to pursue the licensing issue again once Shavon’s license came up for renewal. Petitioners had a sufficient process by which they could challenge the Department’s issuance of the license to Shavon’s; however, they declined to invoke it. Hyde, 314 S.C. at 208, 442 S.E.2d at 583 (“Where an adequate administrative remedy is available to determine a question of fact, one must pursue the administrative remedy or be precluded from seeking relief in the courts.”) (citing Meredith v. Elliott, 247 S.C. 335, 147 S.E.2d 244 (1966)). The Petitioners chose not to pursue the initial licensing when they received the DHEC Board’s letter of February 28, 2007 containing its final decision. Rather, they elected to forego the administrative process with regard to the initial license and pursue a remedy once Shavon’s applied for its renewal license. Accordingly, I find that Petitioners failed to exhaust their administrative remedies in this matter by failing to request a contested case hearing before the ALC once they received notice of the DHEC Board’s final decision on February 28, 2007.

Renewal of Shavon’s License

Regardless of Petitioners’ failure to timely request a contested case hearing and their failure to exhaust their administrative remedies, they are statutorily precluded from challenging Shavon’s renewal license based upon its proximity to protected institutions. Their primary assertion is that the Department erred when it issued the initial license to Shavon’s because the church, its pre-school building, and a library are within one thousand feet of Shavon’s location. They assert that Shavon’s is precluded from operating a tattoo facility at the location because of the distance requirements. In support of their argument, they point to § 44-34-110:

The department must not grant or issue a license to a tattoo facility, if the place of business is within one thousand feet of a church, school, or playground. This distance must be computed by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare from the nearest point of the grounds in use as part of the church, school, or playground.

(2) As used in this subsection:

(a) "Church" means an establishment, other than a private dwelling, where religious services are usually conducted.

(b) "School" means an establishment, other than a private dwelling where the usual processes of education are usually conducted.

(c) "Playground" means a place, other than grounds at a private dwelling that is provided by the public or members of a community for recreation.^[7]

§ 44-34-110(A)(1) and (2). In response, the Department points to the subsequent subsection of § 44-34-110: “The restrictions in subsection (A)(1) do not apply to the renewal of licenses or to new applications for locations that are licensed at the time the new application is filed with the department.” § 44-34-110(A)(3) (emphasis added); S.C. Code Ann. Regs. 61-111 § 201(F)(2). The Department argues that the plain and clear meaning of this subsection prohibits the Department from denying a renewal license to Shavon’s based upon the proximity requirements contained in § 44-34-110(A)(1). See Buist v. Huggins, 367 S.C. 268, 276, 625 S.E.2d 36, 640 (2006) (quoting Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000)) (“If a statute’s language is plain, unambiguous, and conveys a clear meaning ‘the rules of statutory construction are not needed and the court has no right to impose another meaning.’”). The Department further argues that because it has not imposed a penalty – i.e., the facility is in compliance with all applicable regulations – upon the location since its initial licensing in August 2006, it is not in a position to deny the renewal to Shavon’s. I agree. S.C. Code Ann. § 44-34-80, entitled “Grounds for revocation, suspension, or refusal to issue or renew license,” provides that the Department may only take action upon a license when a facility is not in compliance with the regulation:

The department may revoke, suspend, or refuse to issue or renew a license pursuant to this chapter and invoke a monetary penalty upon evidence as determined by the department that the licensee of the facility under this chapter has:

(1) failed to maintain a business address or telephone number at which the tattoo facility may be reached during business hours;

(2) failed to maintain proper safety, sanitation, or sterilization procedures as established by law or by department regulations;

(3) obtained a tattoo facility license through fraud or deceit; or

(4) violated any applicable law or regulation.

Id. (emphasis added).

Petitioners have not shown that Shavon’s has violated any provision of the tattoo regulations. Rather, they attempt to challenge the initial licensing with regard to applicable distance requirements of a neighboring church and pre-school building in this contested case hearing concerning Shavon’s renewal license. The Department’s initial decision – right or wrong – should have been properly challenged by the Petitioners. See, e.g., Mayer v. M.S. Bailey & Son, 347 S.C. 353, 361, 555 S.E.2d 406, 410 (Ct. App. 2001) (citing First Union Nat’l Bank of S.C. v. Soden, 333 S.C. 554, 566, 511 S.E.2d 372, 378 (Ct.App.1998) (“Failure to challenge the ruling is an abandonment of the issue and precludes consideration on appeal. The unchallenged ruling, right or wrong, is the law of the case and requires affirmance.”)). The Petitioners may have challenged the distance issue in the prior proceeding before the Court, i.e., Docket No. 06-ALJ-07-0604-CC. That proceeding was resolved between the parties without any input from the Petitioners, and as such, it became the “law of the case.” The Petitioners simply cannot – pursuant to the applicable statutes and regulations – challenge the issues presented before the Court in 2006.^[8] The Court is certainly respectful of the Petitioners’ opposition to Shavon’s license and recognizes the harsh result of this decision; however, it is constrained by the rules and legal precedent in this State. See McClain v. Ingram, 314 S.C. 359, 444 S.E.2d 512 (1994).

ORDER

Based upon the above Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the Department shall grant to Shavon’s its renewal license to operate a tattoo facility at the location within thirty (30) days from the date of this Order.

AND IT IS SO ORDERED.

__________________________________

May 2, 2008 Marvin F. Kittrell

Columbia, South Carolina Chief Administrative Law Judge