ORDERS:
ORDER
This matter is before me pursuant to Respondent's Motion to Dismiss, filed June 21, 1995. In
order to expedite a resolution of this matter, no motion hearing was held. Instead, each party
submitted memoranda of law in support of their positions. Respondent, Lakewood Camping
Resort, Inc. ("Lakewood"), is represented by C.C. Harness, III. Petitioner, the Department of
Health and Environmental Control, Office of Ocean and Coastal Resource Management
("OCRM") is represented by Mary D. Shahid.
For the following reasons, Lakewood's Motion to Dismiss is denied, and the burden of proof is
assigned to OCRM.
DISCUSSION
Lakewood's motion is based on the following grounds:
1. OCRM is without jurisdiction to seek an enforcement action at the administrative level and the
Administrative Law Judge Division ("ALJD"), therefore, is without subject matter jurisdiction to
decide this case. As a result, the enforcement process employed by OCRM is void and ultra
vires.
2. The enforcement process employed by OCRM violates Lakewood's right to due process
because this case is not before a legally constituted impartial tribunal, and because Lakewood is
improperly being required to bear the burden of proof.
I. JURISDICTION
Lakewood asserts that the ALJD is without subject matter jurisdiction to hear this matter.
Lakewood argues that the circuit court, pursuant to S.C. Code Ann. § 48-39-160 (Supp. 1994), is
the proper forum for adjudication of an administrative enforcement order issued by OCRM.
However, the above code section merely expresses that the circuit court of an affected area shall
have jurisdiction "to restrain a violation" of the applicable chapter. (emphasis added). Instead of
designating a forum for OCRM to seek enforcement of a violation of the law that has already
occurred, this section establishes that OCRM can seek an equitable remedy from a circuit judge
when it anticipates a violation.
Because Lakewood has the opportunity to seek relief through the administrative process, this case
is not ripe for review by a circuit judge. Administrative remedies must be exhausted before a
party may seek judicial review of a final agency decision. S.C. Code Ann. § 1-23-380(A) (Supp.
1994); Bradley v. State Human Affairs Comm'n, 293 S.C. 376, 360 S.E.2d 537 (Ct. App. 1987).
Here, exhaustion would not occur until an appeal of an ALJD order has been decided by the
Coastal Zone Management Appellate Panel ("CZMAP"). See S.C. Code Ann. § 1-23-610(A)
(Supp. 1994).
The ALJD is the proper forum in which to adjudicate this matter. After receiving an
administrative enforcement order, Lakewood's first avenue of relief is to seek a contested case
hearing before the ALJD. See S.C. Code Ann. § 1-23-600(B) (Supp. 1994). Based on the
language of 23A S.C. Code Ann. Regs. 30-6 and 30-8(G) (1976 & Supp. 1994), the process
established for review of an OCRM enforcement order meets the definition of a "contested case"
codified at S.C. Code Ann. § 1-23-310(2) (Supp. 1994): "...a proceeding, including but not
restricted to ratemaking, price fixing, and licensing, in which the legal rights, duties or privileges
of a party are required by law to be determined by an agency after an opportunity for hearing."
The cited regulations provide that a party may appeal a decision of South Carolina Coastal
Council (now, OCRM) to the Coastal Council Permitting Committee (now, the CZMAP) after the
matter has been fully adjudicated before a hearing officer (now, an administrative law judge).
Because the applicable statutes express that the ALJD, and not the circuit court, is the proper
forum for adjudication of this contested case proceeding, OCRM has jurisdiction to seek an
enforcement action at the administrative level and the ALJD, therefore, has subject matter
jurisdiction to decide this case.
II.DUE PROCESS
Lakewood also urges dismissal based on a denial of procedural due process. Lakewood asserts
that there is not a proper tribunal because the Permitting Committee of the former South Carolina
Coastal Council no longer exists. That argument is invalid for two reasons. First, Lakewood's
argument is premature. This case is currently at the "contested case" stage. Any action by the
now defunct Permitting Committee would have taken place on appeal of a decision rendered by a
hearing officer. 23A S.C. Code Ann. Regs. 30-8(G)(2) (Supp. 1994). Second, the mere fact that
the current regulations fail to reflect the changes instituted by 1993 S.C. Acts 181 (commonly
known as "the Restructuring Act") does not invalidate the contested case and appellate
procedures established in S.C. Code Ann. §§ 1-23-600 and 1-23-610 (Supp. 1994). In fact, the
more recent procedures supersede the conflicting provisions that appear at 23A S.C. Code Ann.
Regs. 30-8(G)(2) (Supp. 1994). See Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26
S.E.2d 22 (1943). As a result, the contested case and appellate procedures established in S.C.
Code Ann. §§ 1-23-600 and 1-23-610 (Supp. 1994) are controlling in this case. The ALJD is a
legally constituted impartial tribunal. Because a forum in which to seek relief from OCRM's
enforcement order has been provided, Lakewood's right to due process has not been violated.
Lakewood also asserts due process violations in that OCRM has argued Lakewood should bear
the burden of proof at the hearing. More accurately, OCRM argues that Lakewood should be
designated as Petitioner because they sought "appeal" of the enforcement order. In this instance,
Lakewood is correct. OCRM should be designated as Petitioner and should bear the burden of
proof because this is a contested case conducted as a de novo proceeding and not an appeal in a
judicial review sense. In matters involving OCRM, administrative law judges make their own
findings of fact and conclusions of law. By merely making a determination that Lakewood has
violated S.C. Code Ann. § 48-39-10 et seq. (Supp. 1994) (commonly known as the Coastal Zone
Management Act), OCRM has not satisfied the requirement of S.C. Code Ann. § 1-23-320(a)
(Supp. 1994) of providing all parties in a contested case an opportunity for a hearing. Because
Lakewood has yet to be provided a hearing on this matter, OCRM must prove that a violation has
taken place. Therefore, OCRM has the burden of proof and must be designated as Petitioner.
Additionally, basic administrative law principles establish that an agency bears the burden of proof
in an enforcement action. See Peabody Coal Co. v. Ralston, 578 N.E.2d 751 (Ind. Ct. App.
1991); David E. Shipley, South Carolina Administrative Law 5-79, -80 (1989). Because OCRM
is seeking enforcement of its order charging a violation of the Coastal Zone Management Act, this
is an enforcement action requiring that OCRM bear the burden of proof in establishing that
Lakewood committed the alleged violation.
Even though OCRM has incorrectly asserted which party should bear the burden of proof, this
error does not warrant dismissal of the case. Instead, Lakewood's Motion to Dismiss is denied
but OCRM is instructed that the burden of proof at the hearing rests on it, the enforcing agency.
AND IT IS SO ORDERED.
______________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
July 27, 1995
Columbia, South Carolina |