ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before me pursuant to a request by John P. Hall ("Respondent") for a review
of the proposed enforcement order of the S. C. Department of Health and Environmental Control,
Bureau of Ocean and Coastal Resource Management ("Petitioner" or "OCRM") dated June 16, 1998
("OCRM Order"). Since this involves an enforcement matter pursuant to S. C. Code Regs. 30-8,
OCRM bears the burden of proof as the moving party and the caption is changed to designate OCRM
as the Petitioner.
A contested case hearing was held at the County Judicial Center, North Charleston, South
Carolina on Friday, November 20, 1998. The following issues were before the court for
consideration: (1) whether a 10' x 18' structure located in the critical area of the Ashley River
adjoining Respondent's property is an unpermitted floating dock or a watercraft/boat; (2) whether
a mooring piling located in the same critical area is authorized; (3) whether benches, dockboxes and
handrails which have been constructed on the walkway and pierhead with solid siding around part
of the pierhead up to the top of the handrail are unauthorized; (4) whether the size and dimension
of the permanent floating dock was authorized and permitted by OCRM; (5) whether Respondent
should be assessed a civil penalty in the amount of $300.00.
Upon review of the relevant and probative evidence and applicable law, I find that: (1) the
structure is a watercraft and boat and is not subject to the permitting requirements of OCRM; (2) the
mooring piling is located within the critical area, is unauthorized and must be removed by
Respondent unless OCRM grants an after-the-fact permit to Respondent; (3) the handrails have been
permitted by OCRM and were inadvertently and incorrectly included in the proposed enforcement
order by OCRM; (4) the benches and dockboxes are unauthorized and, as stipulated to by the parties,
an after-the-fact permit application must be submitted by Respondent for their approval; (5) the size
and dimension of the permanent floating dock, originally permitted as 10' x 16' and later amended
to be constructed as 12' x 13', was in actuality constructed as size 10' x 16'; pursuant to stipulation,
an after-the-fact application must be filed with OCRM for compliance with its permitting
requirements; and (6) the proposed penalty of Three Hundred & no\100 ($300.00) Dollars by
OCRM is reasonable and appropriate under the circumstances for Respondent's violations for
installing the mooring piling, benches and dockboxes without any prior authorization and for
construction of the permanent floating dock in an unauthorized size and dimension.
STIPULATIONS and EXHIBITS
Pursuant to a letter from Petitioner to Joseph L. Tamsberg (predecessor in title to the
subject property) dated July 27, 1992, the applicable permit (91-3D-185-P) was
"amended to authorize the installation of handrails on the permitted walkway, and
pierheads provided the maximum handrail cross section does not exceed that shown
on Attachment "A". Thus, the handrails were previously permitted.
Petitioner's exhibits 1 and 2-13 (photographs) and Respondent's exhibits 3-13
(photographs), together with Respondent's exhibits 17, 18 and 20-32, were admitted
into evidence.
That the Petitioner will accept as amendments to the permit under the "after-the-fact
permit" provision contained in Reg. 30-4. I., the construction of the benches and dock
boxes, and the change in the size of the permitted floating dock from its permitted
size of 10' x 16' to its constructed size of 12' x 13', together with the siding on the
handrails, upon conclusion of this case and the payment of any fine as determined by
this court.
FINDINGS OF FACT
Having carefully weighed the evidence as presented, having carefully taken into account the
credibility of the witnesses, and after consideration of the burden on the parties to establish their
respective cases, by a preponderance of the evidence I make the following findings of fact:
1. Notice of the date, time, place and nature of the hearing was timely given to the
parties.
2. This tribunal has personal and subject matter jurisdiction.
3. On February 6, 1992, Petitioner issued permit # 91-3D-185-P to Tamsberg Properties
for the construction of eight (8) private docks and one (1) community use dock, all consisting of a
four (4) foot wide walkway leading to a 12' x 16' fixed pierhead with an attached 10' x 16' floating
dock, all within the Bakers Subdivision, North Charleston, Dorchester County, South Carolina,
which fronts on the Ashley River.
4. On July 27, 1992, Petitioner issued its letter to Mr. Joseph L. Tamsberg, Jr. amending
permit # 91-3D-185-P. The amendment authorized the installation of handrails on the permitted
walkways and pierheads.
5. In November 1992, Respondent purchased from Joseph L. Tamsberg, Jr. lot # 9 on
the Ashley River, known as 1017 Bakers Landing Road, North Charleston, Dorchester County, South
Carolina. This property is presently owned by Respondent.
6. On June 7, 1993, Tamsberg Properties transferred permit # 91-3D-185-P, applicable
to lot 9, to John P. Hall, Jr. On August 23, 1993, Petitioner wrote Respondent confirming the
transfer of the permit in its records.
7. By letter dated July 1, 1993, OCRM amended the permit applicable to lot # 9 to
authorize a 68' walkway, two pilings on the downstream side of the fixed pierhead for an uncovered
boat lift, the installation of a floating dock on the upstream side of the fixed pierhead, and the change
in dimension of the floating dock from 10' x 16' to 12' x 13'.
8. In the fall of 1993, Respondent constructed the dock and walkway as it is presently
configured.
9. Pursuant to a written request by Respondent, on June 13, 1996, OCRM issued an
amendment to the permit, authorizing "the installation of a watercraft lift on the downstream side
of the existing walkway. The lift will be added to an existing walkway piling; this amendment does
not authorize the installation of any additional pilings. Your request to add a 40 square foot
extension to the fixed pierhead is not approved."
10. In July 1997, Respondent built what he calls his pontoon boat. Petitioner refers to
it as a floating dock. Henceforth, it will be delineated as the "structure."
11. On August 6, 1997, Respondent's wife, Christen P. Hall, applied with the South
Carolina Department of Natural Resources for a hull I. D. number for the structure as a watercraft.
On August 13, 1997, hull I. D. number SCZF054OH797 was assigned to the structure.
12. Certificate of title # WAA 742556 was assigned by the Department of Natural
Resources to the structure. It was given registration number SC-6063-BC. The Yamaha outboard
motor which is used on the craft was assigned certificate of title # MAA 651863.
13. Between August 8 and August 11, 1997, Respondent put the structure in the Ashley
River.
14. As a result of a phone call to Petitioner from a neighbor of Respondent, Petitioner
conducted an inspection of the dock at Respondent's property shortly after it was put in the Ashley
River. In a follow up letter to Respondent, OCRM determined that the 10' x 18' structure and a
mooring piling to which the structure was affixed were placed in the critical area at Respondent's
lot without authorization from OCRM. Further, it concluded that the benches and handrails had been
constructed on the pierhead with solid siding around part of the pierhead to the top of the handrail
without its authorization. Finally, OCRM concluded that the permanent floating dock had not been
constructed in compliance with the specifications and conditions outlined in the permit, as amended.
15. Shortly after receipt of the letter from OCRM, Respondent initiated telephonic
communication with John L. Hensel, Jr., Director of Enforcement of OCRM; their conversation was
memorialized in Respondent's letter to Mr. Hensel dated September 23, 1997.
16. Mr. Hall explained that it was his opinion that the structure was an "outboard
powered wooden pontoon boat" which had been titled and registered in South Carolina for such
usage. He also explained that the slats on the benches were added for back support and to double
as wood boxes. Further, he stated that the slats had been added to the handrails for safety purposes
to prevent his fourteen month old son from falling into the water.
17. The structure is subject to personal property taxes in Dorchester County for the 1998
tax year in the amount of $31.39.
18. On January 30, 1998, OCRM sent a letter to Respondent stating that it had thoroughly
reviewed the enforcement investigation and again reiterated its position that the structure was a
floating dock, not a watercraft or boat. It stated that its determination was based upon its conclusion
that the structure was used primarily as a floating dock.
19. In March 1998, OCRM completed its investigation and sent a copy of its proposed
findings of fact outlining its conclusions.
20. By letter dated April 3, 1998, Respondent replied to each of the proposed findings
of fact in great detail. See Respondent's exhibit 26.
21. On June 16, 1998, OCRM issued its "Enforcement Order." In the Order, OCRM
ordered that Respondent pay a civil penalty of $300.00, remove the 10' x 18' structure and the
mooring piling from the critical area within 30 days, and within 30 days bring the permanent floating
dock, pierhead and the walkway into compliance with the permit or within 10 days submit an after-the-fact amendment request.
22. On July 9, 1998, Respondent filed his written appeal of the Enforcement Order with
OCRM. On July 15, 1998, the agency's transmittal form outlining the request for the contested case
hearing was filed with the Administrative Law Judge Division ("Division").
DISCUSSION
A. Boat or floating dock
The primary issue before this tribunal is whether the structure is a boat because it is used
primarily for water transportation and related activities, or is merely a floating dock used for assisting
in the docking of boats. Since the structure at issue in this case is located within a critical area,
OCRM has jurisdiction to determine whether it is a boat and thus qualifies as an exemption from the
permitting provisions, or is a floating dock which requires a permit.
S. C. Code Ann. § 48-39-130(A) primarily limits the usage of critical areas to those
individuals who have first obtained a permit from OCRM. This section mandates guidelines, rules
and regulations to be published and promulgated by Petitioner to assist the public in obtaining these
permits. Certain exemptions are provided for in Section 48-39-130 (A) and (B). Section 48-39-130
(D)(2) provides the following exemption from the permit requirement:
Hunting, erecting duckblinds, fishing, shellfishing and trapping when and where
otherwise permitted by law; the conservation, repletion and research activities of
state agencies and educational institutions or boating or other recreation provided
that such activities cause no material harm to the flora, fauna, physical or
aesthetic resources of the area. (Emphasis added).
Thus, the issue is two-fold: (1) is the craft utilized primarily for boating and, if so, (2) does
its resulting activity cause any material harm to the flora, fauna, physical or aesthetic resources of
the area. The second of these two issues can be addressed summarily. Notwithstanding the fact that
there may be some limited shading of mudflats at the location of the structure, John Hensil, OCRM's
witness at the hearing, stated that the environmental harm to the critical area is insignificant.
Further, absent any other evidence presented at the hearing, there is no evidence that the maintenance
of the structure at its location creates any material harm to the flora, fauna, physical or aesthetic
resources of the area.
With regard to the issue of boating, there is little guidance in the statutes, rules, regulations
or guidelines of OCRM which would assist this tribunal in determining whether the structure meets
the exemption requirement contained in section 48-39-130 (D)(2). By admission of the witness for
OCRM, there is no definition of a "boat" in the statutes or regulations applicable to this factual issue.
Accordingly, this tribunal must use other sources to assist it in construing the definition of a "boat"
and of the term "boating".
In Webster's New World College Dictionary 154 (3rd ed. 1997) "boat" is defined as
follows:
A small, open vessel or watercraft propelled by oars, paddles, sails, or engine; a large
vessel for use in inland waters; any large, seagoing vessel; ship: a term in popular use
but not by sailors.
The term "boating" is defined in the same edition of Webster's dictionary as "rowing, sailing, or
cruising".
The American Heritage College Dictionary 154 (3rd ed. 1993) defines a "boat" as "a relatively
small, usu. open craft of a size that might be carried aboard a ship; an inland vessel of any size; a
ship or submarine." "Boating" is defined as "to travel by boat" or "to ride a boat for pleasure." The
word "vessel" is described as "a craft, esp. one larger than a rowboat, designed to navigate on water."
The American Heritage College Dictionary 1501 (3rd ed. 1993). None of the words "watercraft,"
"boat," "boating" or "vessel" are defined in Black's Law Dictionary (abridged 6th ed.1991).
We do find guidance in S.C. Code Regs. 30-12 A. (1) for the definition of a "dock." It reads
as follows:
A dock or pier is a structure built over and/or floating on water and
is generally used for the mooring of boats. Docks and piers are the
most popular method of gaining access to deep water. Although they
are least objectionable from an ecological point of view, docks and
piers sometimes pose navigational problems, restrict public use of the
water and, under certain circumstances, possess potential for creating
environmental problems.
Regs. 30-12 A. (2) provides standards labeled as subsections (a) through (r) for the
construction of docks and piers. Generally, they must not impede navigation or restrict the use of
state lands and waters, restrict water flow, and they must be limited in size, dimension, length and
accessories for reasonable use, be aligned properly and be constructed so as to limit any adverse
effect on vegetation and mariculture activity.
Regs. 30-12 M. provides that "non-water dependent structures" have been built in the past
on pilings, moored or in other ways situated over coastal water and/or tideland critical areas and are
a serious threat to the critical areas. They are defined in Regs. 30-1 C. 9. as facilities which cannot
demonstrate that a dependence on, or that the use of, or that the access to coastal waters is vital to
the functioning of their primary activity. They are structures which include buildings, houses, or
offices that float. These structures are prohibited from being placed in or over tidelands and coastal
water critical areas unless there is no significant environmental impact, an overriding public need
can be demonstrated, and no feasible alternatives exist. Further, under Regs. 30-12-M., OCRM is
given the discretion on a case-by-case basis to determine whether a floating structure is a boat and
thus exempt from the Act or in fact is a nonwater-dependent structure.
There can be no doubt that the purpose of a boat is to move through water. In the coastal
areas boats are utilized for transportation, fishing, skiing, shrimping, crabbing and picnicking. The
record is clear in this case that the structure built by Respondent and moored in the critical area
adjacent to his real property is a boat and is used for all the aforementioned purposes, excepting
water skiing. The pictures introduced by Respondent show members of his family using the
structure for such purposes. Further, although the boat is of homemade construction, it has the same
appearance and consists of much of the same materials and parts as a pontoon boat which is
commercially manufactured. Also, it is powered by a 15 horsepower motor.
Since the structure in this instance is utilized for boating purposes and as a means of
transportation, it must be registered with the Department of Natural Resources (DNR). S. C. Code
Ann. §§ 50-21-10 and 50-23-10 define a "vessel" as every description of watercraft, other than a
seaplane on the water, which is used or capable of being used as a means of transportation on water.
Further, a "boat" is defined in § 50-21-10 as a vessel which is manufactured or used primarily for
noncommercial use. Pursuant to Section 50-23-20, every owner of a watercraft which is principally
used in the State in South Carolina must make application to DNR for a certificate of title for it as
well as any outboard motor.
If a statute's language is plain and unambiguous, and conveys a clear and definite meaning,
there is no occasion for employing rules of statutory interpretation and the court has no right to look
for or impose another meaning. City of Columbia v. American Civil Liberties Union, 323 S.C. 384,
475 S.E.2d 747 (1996). Where a statute is complete, plain, and unambiguous, legislative intent
must be determined from the statute itself. Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997).
When interpreting a statute, the Supreme Court's primary function is to ascertain the intention of the
Legislature. Plowman v. Bagnal, 316 S.C. 283, 450 S.E.2d 36 (1994). A statutory provision should
be given a reasonable construction consistent with the purpose and policy expressed in the statute.
Jackson v. Charleston County Sch. Dist., 316 S.C. 177, 447 S.E.2d 859 (1994). Further, words must
be given their plain and ordinary meaning without resorting to subtle or forced construction to limit
or expand the statute's operation. Adkins v. Comcar Indus., 323 S.C. 409, 475 S.E.2d 762 (1996).
The trier of fact should consider not merely the language of a particular clause being construed, but
the word and its meaning in conjunction with the purpose of the whole statute and the policy of the
law. South Carolina Coastal Council v. South Carolina State Ethics Comm'n, 306 S.C. 41, 410 S.E.
2d 245 (1991).
There is no real dispute in this case about the usage of the structure. Although Petitioner took
pictures of the structure when it was tied up to the mooring piling, there is no testimony nor any
evidence in the record that the structure has been used for any other purpose than as a boat for
transporting Respondent and his family members. Although it may in fact have a multipurpose use,
there is nothing in the record to show that it has been used for any other purpose other than that
testified to by Respondent. There are no photographs nor testimony that the structure has been used
for mooring boats. Also, the size and dimensions of the structure are commensurate with those
pontoon boats which are commercially-manufactured. Contrary to the makeup of Respondent's
permanent floating dock which has rectangular box-shaped Styrofoam floats underneath its deck,
this pontoon boat uses plastic drums arranged lengthwise in channels under the deck to form
pontoons. The framework under the permanent floating dock has cross beams for rigidity and
support which run perpendicular to its lengthwise side, whereas the crossbeams under the pontoon
boat are constructed lengthwise in the form of channels which hold the pontoons. In addition, the
boat has a motor well cut out of the stern portion of the deck.
I am persuaded by a thorough review of the entire record that the structure is used primarily
as a boat or watercraft for boating purposes. Petitioner has failed to meet its burden in convincing
this tribunal that this structure is primarily used for non-boating purposes. The evidence is
overwhelming that its sole usage is as a pleasure boat.
Thus, it is the conclusion of this tribunal that the structure is a boat, and is exempt from the
permitting requirements pursuant to the provisions of S. C. Code Ann. § 48-39-130 (D)(2) (Supp.
1995).
B. Mooring piling
The mooring piling was placed by Respondent in the critical area landward of the permitted
dock without the permission or authorization of OCRM. No application was submitted to Petitioner
for its placement in the critical area. S. C. Code Ann. §§ 48-39-10 et seq. requires that any activity
in, or alteration of, the critical area, must be permitted or be legally authorized by OCRM. Respondent knew or should have known from his prior submission of application(s) with
OCRM that he would need to obtain approval from it for the placement of this mooring piling. This
tribunal finds that he placed the piling in the critical area knowingly and in derogation of the
regulations governing critical areas in this state. Accordingly, this tribunal concludes that it is an
impermissible placement in the critical area.
To resolve this issue, Respondent must file with OCRM an after-the-fact application within
fifteen (15) days after his receipt of this order for the continued placement of the mooring piling in
the critical area. Pending the filing of such application and the determination on such by OCRM,
the mooring piling may remain in the critical area. If Respondent fails to submit the after-the-fact
application within the time frame authorized under this order, he must remove the mooring piling
from the critical area within forty-five (45) days of the date of receipt of this order.
C. Handrails, Dockboxes and Benches
Although the handrails were not a part of the original permit issued to Tamsberg Properties
on February 6, 1992, by letter from OCRM to Mr. Tamsberg dated July 27, 1992, authorization was
given for their installation on the permitted walkway and pierhead. OCRM has never given
authorization for the construction of the benches and dockboxes. Thus, this tribunal finds that the
benches and dockboxes are unauthorized and an after-the-fact application must be by Respondent
to OCRM not later than fifteen (15) days after his receipt of this order. If such application is not
submitted, then Respondent shall remove them from the pierhead and walkways within forty-five
(45) days of the date of the receipt of this order.
D. Permanent Floating Dock
In the initial permit issued by OCRM to Tamsberg Properties on February 6, 1992, which is
applicable to Respondent's real property, authorization was given for the construction of a 10' x 16'
floating dock which would be attached to the fixed pierhead. Subsequently by letter dated July 1,
1993, OCRM authorized the change in dimension in size of the floating dock from 10' x 16' to 12'
x 13'. In the fall of 1993, Respondent constructed the floating dock in its original authorized size
of 10' x 16'. Respondent's explanation for the construction of this floating dock in its original
authorized and permitted size, both at the hearing and in his letter to OCRM dated April 3, 1998 (see
Respondent's exhibit # 26) was twofold:
(1) the floating dock on lot # 8 and the Bakers Landing community dock fixed
pierhead are very close to his property line;
(2) the amendment on July 1, 1993 was approved subject to the placement of his
floating dock at a minimum of twenty (20) feet inside the extended property line.
Respondent opined that by constructing the floating dock as a 10' x 16' structure, he was able to
provide an additional distance between his dock and the Bakers Landing community dock and
believed it would be permissible since the original permit was for a 10' x 16' dock.
Notwithstanding the good intentions of Respondent, it is necessary that all structures in the
critical area must have valid permits. Accordingly, this tribunal concludes that the floating dock as
constructed must be permitted in its present size and dimension; further, it may stay in its present
location pending Respondent submitting an after-the-fact application to OCRM within fifteen (15)
days after the receipt of a copy of this order.
E. Penalty
Petitioner seeks in its enforcement order a monetary fine or penalty in the amount of Three
Hundred & no/100 ($300.00) Dollars for several violations of S.C. Code Ann. § 48-39-10 et seq.
The violations which this tribunal have found are as listed in the above discussion. S.C. Code Ann.
§ 48-39-170 (Supp. 1997) provides for civil penalties for any violation of a provision of Chapter 39
of Title 48 in an amount not less than One Hundred & no/100 ($100.00) nor more than One
Thousand & no/100 ($1,000.00) Dollars. I find that there have been several violations of the
provisions of this chapter which have been in existence for a long period of time. The assessment
of Three Hundred & no/100 ($300.00) Dollars is small compared to the amount Petitioner could
request. This tribunal finds that the fine assessed by OCRM is more than fair and reasonable under
the circumstances and facts of this case.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact and Discussion, I conclude the following as a
matter of law:
1. The Administrative Law Judge Division has subject matter jurisdiction in this
contested case matter pursuant to S.C. Code Ann. §§ 1-23-500 et seq., (Supp. 1997); S.C. Code
Ann. §§1-23-310 et seq. (1986 and Supp. 1997); S.C. Code Ann. § 48-39-150 (Supp. 1997) and 23A
S.C. Code Ann. Regs. 30-6 (Supp. 1997).
2. S.C. Code Ann. § 48-39-150 (Supp. 1997) authorizes the Administrative Law Judge
Division to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code.
3. Unless otherwise provided by law, the proper standard of proof to be applied in a
contested case conducted pursuant to the APA is a preponderance of the evidence. Anonymous v.
State Bd. of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998); National Health Corp. v. S.C.
Dep't of Health and Envtl. Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989); 25A S.C. Code
Ann. Regs. 61-72 § 702 (Supp. 1997).
4. Findings of fact based upon a preponderance of the evidence are those supported by
the greatest "weight, amount, credibility or truth" as reflected by the whole of the evidence before
the court, or "evidence which convinces as to its truth." Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d
225, 235 (1955); Nettles v. Nettles, 138 S.C. 318, 136 S.E. 297 (1927).
5. The trier of fact must weigh and pass upon the credibility of evidence presented. See
S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586
(1992). The trial judge is in the best position to weigh witnesses' demeanor and veracity and to
evaluate their testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v.
Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct.
App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).
6. OCRM is the subdivision within DHEC charged with implementing the state's coastal
zone policies and issuing permits for the construction of docks, piers, and other structures in coastal
zone areas.
7. S.C. Code Ann. § 48-39-10, et seq. (Supp. 1997) grants OCRM jurisdiction over
activities such as those encompassed by the Hall permit.
8. S.C. Code Ann. § 48-39-50 (Supp. 1997) provides the authority of DHEC to
promulgate regulations carrying out the provisions of Chapter 39 of Title 48 of the 1976 Code.
9. 23A S.C. Code Ann. Regs. 30-1 through 30-20 (Supp. 1997) were promulgated by
Coastal Council (as predecessor to OCRM), as the applicable regulations governing the management,
development, and protection of the coastal zone area of the state. These regulations became effective
July, 1993.
10. 23A S.C. Code Ann. Regs. 30-11 provides the General Guidelines for All Critical
Areas.
11. The area in question in this matter consists of tidelands and coastal wetlands, as
defined by 23A S.C. Code Ann. Regs. 30-10(A) (Supp. 1997), and as such, is a critical area subject
to OCRM permitting authority. See S.C. Code Ann. § 48-39-10(G) and (J) (Supp. 1997).
12. OCRM must require a party to obtain a permit if the party seeks to utilize a critical
area by building a structure on or in any way altering the critical area unless an exemption applies.
S.C. Code Ann. §§ 48-39-130(C) and (D) (Supp. 1997).
13. A floating dock is a structure floating on water generally used for the mooring of
boats. Such a structure requires a permit from OCRM if it is located in a critical area. 23A S.C.
Code Ann. Regs. 30-12(A)(1) (Supp. 1997).
14. 23A S.C. Code Ann. Regs. 30-12(A) (Supp. 1997) sets forth the specific standards
for construction of docks and piers for tidelands and coastal waters and also sets forth the procedural
requirements for the permit application process.
15. S.C. Code Ann. § 48-39-130(D)(2) provides an exemption from the OCRM
permitting requirements for "boating." The boating exemption is allowed only in those instances
in which the boating or recreation activities "cause no material harm to the flora, fauna, physical or
aesthetic resources of the area." Id.
16. In the absence of an exemption, every vessel using the waters of South Carolina must
be numbered so as to register the vessel with DNR. S.C. Code Ann. §§ 50-21-310 and 50-21-10(16)
(Supp. 1997). An owner of a watercraft principally used in South Carolina must also apply to DNR
for a certificate of title for the watercraft. S.C. Code Ann. § 50-23-20. However, the requirement
that a structure must be registered and titled with DNR does not necessarily preclude that structure
from being subject to the permitting process of OCRM, if the structure is determined to be a dock
rather than a boat. S.C. Code Ann. §§ 48-39-130(C) and (D) (Supp. 1997).
17. A "vessel" is defined as every description of watercraft, other than a seaplane on the
water, used or capable of being used as a means of transportation on water. S.C. Code Ann. § 50-21-10.
18. In Webster's New World College Dictionary 154 (3rd ed. 1997) "boat" is defined as
follows:
A small, open vessel or watercraft propelled by oars, paddles, sails,
or engine; a large vessel for use in inland waters; any large, seagoing
vessel; ship: a term in popular use but not by sailors.
19. "Boating" is defined as "to travel by boat" or "to ride a boat for pleasure."The
American Heritage College Dictionary 1501 (3rd ed. 1993).
20. The structure was constructed by Respondent solely for recreational usage as a boat.
It is in fact used for that purpose. The method of its construction differs from that used for docks,
and it is designed to accommodate an outboard motor. There is no evidence in the record to indicate
that the structure has been used as a floating dock. There is further no evidence of any adverse
environmental effects from the placement of the boat in the critical area at Respondent's dock.
Accordingly, I conclude that the structure is in fact a boat and is thus exempt from the OCRM
permitting process.
21. The benches, dockboxes, and the siding on the handrails were placed on Respondent's
dock without permission and are thus unauthorized. However, pursuant to the stipulations of the
parties, Respondent is entitled to an amendment to the permit to encompass those structures,
provided that, not later than fifteen (15) days after his receipt of this Order, Respondent files an after-the-fact application with OCRM for those structures. If Respondent fails to submit such an
application and/or to pay the administrative penalty as set forth herein, he shall remove the benches,
dockboxes, and siding from the pierhead and walkways within forty-five (45) days of his receipt of
this Order.
22. The construction of the permanent floating dock in a size other than that which was
permitted is unauthorized. However, pursuant to the stipulations of the parties, Respondent is
entitled to an amendment to the permit to allow the 10' x 16' floating dock, provided that he files an
after-the-fact application with OCRM not later than fifteen (15) days after his receipt of this Order.
If Respondent fails to submit such an application within the designated time and /or fails to pay the
administrative penalty as set forth herein, he must remove the floating dock from the critical area
within forty-five (45) days of his receipt of this Order.
23. The placement of the mooring piling in the critical area without permission is
unauthorized. Petitioner must file an after-the-fact application for the placement of this piling with
OCRM within fifteen (15) days after his receipt of this Order. This application will be evaluated by
OCRM pursuant to its normal procedures. Pending the filing of this application and OCRM's
evaluation of the application, the mooring piling may remain in the critical area. If Respondent fails
to submit the application within the time provided in this Order and/or to pay the administrative
penalty as set forth herein, he must remove the mooring piling from the critical area within forty-five
(45) days of his receipt of this Order.
24. In light of the aforementioned violations of S.C. Code Ann. § 48-39-10 et seq. and
the continuing nature of those violations, a civil penalty of Three Hundred and No/100 Dollars
($300.00) shall be assessed against the Respondent by OCRM. Respondent shall pay the penalty in
full within fifteen (15) days of his receipt of this Order.
25. Pursuant to ALJD Rule 29(B), any issues raised in the proceedings but not addressed
at the hearing or in this Order, are deemed denied.
ORDER
Based upon the foregoing Findings of Fact, Discussion and Conclusions of Law, it is hereby
ORDERED:
1. That the Respondent is entitled to an amendment to the permit to encompass the
placement of the benches, dockboxes, the siding on the handrails, and the construction of the floating
dock in its present dimensions, provided that he files an after-the-fact application for the placement
of those structures with OCRM within fifteen (15) days of his receipt of this Order. If Respondent
fails to submit such an application, he shall remove those structures as provided in Conclusions of
Law numbers 21 and 22 above.
2. That the Respondent shall file an after-the-fact application with OCRM for the
placement of the mooring piling as provided in Conclusion of Law number 23 above.
3. That the Respondent shall pay an administrative penalty of Three Hundred and
No/100 Dollars ($300.00) to OCRM within fifteen (15) days of his receipt of this Order.
AND IT IS SO ORDERED.
________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
December 21, 1998 |