ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to the South Carolina Department of Health and Environmental Control's, Office of Ocean and
Coastal Resource Management (Department or OCRM), issuance of an Enforcement Order for the construction of a bulkhead out of
compliance with Permit No. OCRM-98-421-I, issued to Virginia B. McCann. (1) On June 24, 1999, David McCann made a motion to
intervene in this case, in which he set forth that he is the owner of the property on which the bulkhead in this matter was built. That
motion was granted by my Order dated June 30, 1999. A hearing on this matter was held before me on January 13, 2000 in
Charleston County.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, considering the burden
of persuasion by the parties, I make the following Findings of Fact by a preponderance of evidence:
1. Virginia and David McCann are the owners of property located on Hobcaw Creek at Lot 8, Chimney Bluff Road in the Hobcaw
Creek Subdivision in Mount Pleasant, Charleston County, South Carolina. The McCann's lot has been subject to erosion over the
years from Hobcaw Creek. The erosion has resulted in an irregularly shaped property boundary, or escarpment line, adjacent to the
creek. In this case, the erosional escarpment line is the same as the critical line.
2. The McCanns proposed to construct a bulkhead, a wooden wall, along the escarpment line, to protect the property from further
erosion. The McCanns employed Dock Systems, Inc. (Dock Systems) to construct the bulkhead on their property. Bill Mitchell
(Mitchell), the president of Dock Systems, prepared the OCRM permit application, as well as the permit drawings.
3. On November 10, 1998, OCRM issued a permit to Virginia McCann through her agent, Respondent Mitchell, as President of Dock
Systems. The permit allowed for the construction of a six (6) foot by seventy-eight (78) foot wooden bulkhead for erosion control
purposes. However, "Special Condition One" of the permit sets forth that the bulkhead was to be "constructed at the erosional
escarpment as it exists at the time of construction. The three oak trees that are threatened by erosion may be 'boxed' in order to save
them. See Attachment A."
"Boxing" refers to the common practice of allowing a bulkhead to extend further out than the escarpment line to protect trees that are
in danger of being lost to erosion. Boxing is necessary to protect the root system of the tree.
4. Bill Mitchell, as agent for Ms. McCann, signed the permit "Bill Mitchell of Dock Systems, Inc." on November 13, 1998.
Afterwards, the bulkhead was constructed by Dock Systems under the supervision of Mitchell. However, during the bulkhead's
construction, there were heated arguments between Mitchell and the members of the crew who were working on the bulkhead
regarding whether the bulkhead was being constructed properly.
5. John Hensel and Curtis Joyner from OCRM inspected the construction on December 22, 1998 and December 23, 1998. Portions of
the bulkhead had been constructed substantially over the critical area line, and, therefore, further channelward than allowed by
"Special Condition One" of the permit. In fact, the bulkhead was located four feet away from the erosional escarpment in some
places. Additionally, a dead tree located several feet channelward of the escarpment and not shown in the permit drawings was
boxed. Furthermore, spartina alterniflora, salt marsh vegetation that is used in OCRM's establishment of the critical line, was found
landward of the bulkhead.
6. Dock Systems, through Bill Mitchell, was notified that the bulkhead had been constructed substantially over the critical area line.
Ultimately, OCRM discussed this matter with Mitchell on a number of occasions. OCRM provided the Mitchell with a drawing
depicting where bulkhead relocation would be required and he subsequently indicated that he was not willing to correct the problem.
Therefore, OCRM issued an Enforcement Order on April 8, 1999, against "Dock Systems, Inc., William C. Mitchell, Pres.," finding
a violation of the Coastal Zone Management Act. Pursuant to that order, OCRM required that a civil penalty be paid in the amount of
Two Hundred Fifty ($250.00) Dollars, and that the sections of the bulkhead in violation be relocated. Neither Mitchell nor Dock
Systems have complied with the Enforcement Order.
7. Although no evidence was presented that established the corporate structure of Dock Systems, Bill Mitchell contends that Dock
Systems is wholly owned by his son. However, according to Mitchell, Dock Systems has only two acting officers: Mr. Mitchell as
President and his son as CEO. Moreover, Dock Systems has never paid any dividends to his son, as sole shareholder. Furthermore,
the OCRM staff who dealt with Dock Systems never had any dealings with anyone other than Bill Mitchell. Additionally, the office
for Dock Systems is in Bill Mitchell's home. From that location, Bill Mitchell answers the telephone for Dock Systems and signs all
correspondence that OCRM receives from Dock Systems. Any mail sent to Bill Mitchell is sent to his post office box, which is
shared by Dock Systems.
CONCLUSIONS OF LAW
Based upon the above findings of fact, I conclude the following as a matter of law:
1. The Administrative Law Judge Division has subject matter jurisdiction in this action pursuant to S.C. Code Ann. §§ 1-23-660 et
seq. and §§ 1-23-310 et seq. (1986 & Supp. 1999).
2. S.C. Code Ann. § 48-39-150 (Supp. 1999) authorizes the Administrative Law Judge Division to hear contested cases arising under
Chapter 39 of Title 48 of the South Carolina Code of Laws.
3. In weighing the evidence and deciding a contested case on the merits, the Administrative Law Judge must make findings of fact
and conclusions of law by a preponderance of the evidence. Anonymous (M-156-90) v. State Bd. of Medical Examiners, 329 S.C.
371, 496 S.E. 2d 17(1998).
Motion to Dismiss
4. Prior to the hearing on the merits of this matter, Respondent Bill Mitchell moved to dismiss this action on the grounds that Dock
Systems constructed the bulkhead as a corporation, and therefore Bill Mitchell cannot be personally sued. However, numerous
factors warrant retaining Mitchell as an individual party. Mitchell contends he is the President of Dock Systems, and as such was
responsible for obtaining the permit. Dock Systems is run out of Mitchell's house and all contact between OCRM and Dock Systems
has been made through Mitchell. Testimony about an argument between Mitchell and his crew also indicates that he may have
known the bulkhead was improperly placed. Most importantly, Mitchell did not offer satisfactory evidence as to the corporate status,
if any, of Dock Systems. Under these circumstances, I find that Bill Mitchell's Motion to Dismiss should be denied.
Enforcement Action
5. The bulkhead constructed by Mitchell is located in a critical area pursuant to S.C. Code Ann. § 48-39-10 (Supp. 1999). S.C. Code
Ann. § 48-39-130(C) (Supp. 1999) requires a person or entity to obtain a permit for any alteration of the "critical area" of the coastal
zone. Additionally, S.C. Code Ann. Reg. 30-12 (C)(1) (Supp. 1999) sets forth standards for the construction of bulkheads for
erosion control. It provides, in part, that :
In an attempt to mitigate certain environmental losses that can be caused by these structures, the following standards are adopted:
(a) Structures must be designed to conform to the critical area line (upland boundary), to the maximum extent feasible, . . . [and]
(b) Structures may be constructed up to 18 inches from the existing escarpment. In situations where this is not feasible, Department
staff will determine the location of the bulkhead or revetment on a site by site basis.
An escarpment is defined as "a long cliff or steep slope separating two comparatively level or more gently sloping surfaces and
resulting from erosion or faulting." Webster's Third New International Dictionary 775 (1993).
6. S.C. Code Ann. § 48-39-50(I) (Supp. 1999) empowers the Department to "enforce the provisions of this chapter and all rules and
regulations provided by the Department and institute in courts of competent jurisdiction of legal proceedings to compel compliance . .
. ." Additionally, S.C. Code Ann. Regs. 30-8(A) (Supp. 1999) provides for enforcement of permits issued by OCRM. Consequently,
S.C. Code Ann. § 48-39-170 (C) (Supp. 1999) provides, in relevant part, that:
Any person who is determined to be in violation of any provision of this chapter by the department shall be liable for, and may be
assessed by the department for, a civil penalty of not less than one hundred dollars nor more than one thousand dollars per day of
violation. Whenever the department determines that any person is in violation of any permit, regulation, standard, or requirement
under this chapter, the department may issue an order requiring such person to comply with such permit, regulation, standard, or
requirement . . . .
7. It is clear, from viewing the photographic evidence of the site and the permit drawings, that Bill Mitchell located the bulkhead in
the critical area, channelward of the critical area line, in violation of "Special Condition One" of the permit. Therefore, OCRM
demonstrated that the Bill Mitchell constructed the bulkhead in violation of the permit.
ORDER
THEREFORE, IT IS ORDERED that Respondent Bill Mitchell pay a civil penalty in the amount of Two Hundred Fifty ($250.00)
Dollars, and reconstruct the bulkhead so as to be in compliance with "Special Condition One" of Permit No. OCRM-98-421-I.
IT IS FURTHER ORDERED that the reconstruction of the bulkhead is to be completed within six (6) months from the date of this
Order, unless otherwise agreed upon by the Department and Respondent Bill Mitchell.
AND IT IS SO ORDERED.
________________________________
Ralph King Anderson, III
Administrative Law Judge
October 16, 2000
Columbia, South Carolina
1. Because this matter is based on the Enforcement Order issued by DHEC, 1999 statutes and regulations are being applied. This is to ensure that when the
bulkhead is reconstructed, DHEC staff will be able to inspect the project under the current laws in effect as of the time of the issuance of this Order. |