South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Edward B. and Cindy S. Sevinsk vs. SCDHEC, et al

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioners:
Edward B. and Cindy S. Sevinsk

Respondents:
South Carolina Department of Health and Environmental Control and DeMing Wang
 
DOCKET NUMBER:
06-ALJ-07-0144-CC

APPEARANCES:
For the Petitioners: Robert Guild, Esquire

For Respondent DHEC: Julie F. McIntyre, Esquire

For Respondent DeMing Wang: Lee W. Zimmerman, Esquire, and Deborah Ann Hottel, Esquire
 

ORDERS:

ORDER OF DISMISSAL

This matter is before the Administrative Law Court (“ALC” or “Court”) pursuant to Motions to Dismiss filed by the Respondents South Carolina Department of Health and Environmental Control (“DHEC” or “Department”) and DeMing Wang (“Wang”). A hearing on the motions was held on August 17, 2006 and continuing on August 23, 2006 at the Administrative Law Court in Columbia, South Carolina. The Court received supplemental memoranda of law from Respondents on August 25, 2006 and Petitioners’ Response to the supplemental memoranda on August 31, 2006. For the reasons set forth below, the Motions to Dismiss are hereby granted.

BACKGROUND

On November 2, 2005, the Department issued State Agricultural Permit # 18,995-AG (“Permit”) to Wang, authorizing the construction of six (6) poultry houses in Orangeburg County, South Carolina. The Permit became effective on December 7, 2005. On March 23, 2006, Petitioners filed a Petition for Administrative Review (“Petition”) with the Administrative Law Court challenging the issuance of the Permit. Petitioners alleged in the Petition that they did not receive actual or constructive notice of the issuance of the Permit until March 15, 2006, when they received a letter from the United States Department of Agriculture, Farm Service Agency, Orangeburg County Farm Loan Manager (“Farm Service Agency”), seeking comments on a proposed federal loan guarantee for Wang’s poultry facility. Petitioners further alleged that if the proposed facility were constructed, they would be injured and adversely affected in the form of harm to their health and safety, the use and enjoyment of their property, by the lowering of the value of their property, and in their enjoyment of the clean air and water and other natural resources of Orangeburg County.

On July 18, 2006, Respondent Wang filed a Motion to Dismiss the Petition. The basis of that Motion was that the ALC lacked jurisdiction to hear this matter because the Petitioners did not file their petition for a contested case hearing timely. On July 27, 2006, Petitioners filed a Response to Respondent Wang’s Motion to Dismiss. On July 28, 2006, Respondent DHEC filed its Motion to Dismiss, adopting the authority and arguments set forth in Respondent Wang’s Motion to Dismiss. On August 8, 2006, Petitioners wrote a letter to the Court opposing Respondent DHEC’s Motion to Dismiss, relying upon their earlier Response to Respondent Wang’s Motion to Dismiss. Respondent Wang filed a Reply to Petitioners’ Response in Opposition to Motion to Dismiss on August 7, 2006. A hearing on the Motions to Dismiss was conducted on August 17, 2006 and August 23, 2006. The Court received both documentary and witness evidence.

A motion to dismiss may be supported by, and the Court may consider, affidavits or other evidence proving lack of jurisdiction. Woodward v. Westvaco Corp., 315 S.C. 329, 433 S.E.2d 890, 892 (Ct. App. 1993), vacated on other grounds, 319 S.C. 240, 460 S.E.2d 392 (1995). “Unlike the procedure in a 12(b)(6) motion where there is a presumption reserving the truth finding role to the ultimate factfinder, the court in a 12(b)(1) hearing weighs the evidence to determine its jurisdiction.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). The Court received supplemental memoranda from Respondents in support of their respective Motions to Dismiss on August 25, 2006 and Petitioners’ Supplemental Response in Opposition to Motion to Dismiss on August 31, 2006.

DISCUSSION

Respondents’ Motions to Dismiss

The basis for the Respondents’ Motions to Dismiss is that this Court lacks jurisdiction to hear this matter due to the Petitioners’ untimely filing of their Petition for Administrative Review. All requests for a contested case hearing before the Court must be filed in accordance with the Court’s rules of procedure. S.C. Code Ann. § 1-23-600(C). Under Rule 11(C) of the Rules of Procedure for the Administrative Law Court, “. . . a request. . . [for administrative review] . . . must be filed and served within thirty (30) days after actual or constructive notice of the agency’s determination... . However, no request shall be filed more than ninety (90) days after the date of the issuance of the order or determination unless the administrative law judge assigned to the case finds that substantial cause exists for allowing the filing beyond the ninety (90) day period.”

If these time frames are not met and substantial cause is not demonstrated, the Court has no choice but to dismiss the action as untimely. This Court has no authority to expand the time in which the request for a hearing must be filed. Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985) (applying appellate court rules and finding lack of jurisdiction for failure to serve a notice of intent to appeal in a timely manner); see also Burnette v. S.C. State Highway Dep’t, 252 S.C. 568, 167 S.E. 2d 571 (1969) (holding that a court does not have the authority to extend the time for taking an appeal from a decision of an administrative agency.)

The Court Lacks Jurisdiction Because Petitioners Failed To Meet The Thirty (30) Day Filing Limit Required By ALC Rule 11(C)

For the Court to obtain jurisdiction over a request for a contested case hearing, the petitioner must file and serve his request within thirty (30) days after actual or constructive notice of the agency’s determination. ALC Rule 11(C). Petitioners have alleged that they did not receive actual or constructive notice of the Department’s issuance of Respondent Wang’s State Agricultural Permit until they received a letter from the Farm Service Agency on March 15, 2006 seeking comments on a federal loan guarantee for the proposed poultry facility, and, therefore, the filing of their Petition for Administrative Review was filed within the 30-day period required by Rule 11(C). Respondents assert the Petitioners had constructive notice of the issuance of the Permit on November 2, 2005 when the Department published a public notice of the issuance in The North Trade Journal.

Based on the evidence provided, the Court finds that the Petitioners had constructive notice of the issuance of the Permit when public notice was published in The North Trade Journal on November 2, 2005. Constructive notice is “notice presumed by law to have been acquired by a person and thus imputed to that person.” Black’s Law Dictionary, 8th Ed., p. 1090. The public notice requirements of the Department’s Standards for the Permitting of Agricultural Animal Facilities provide for both actual and constructive notice of permit issuance. The Department is required to send notice by First Class U.S. mail service to the applicant, all persons who commented in writing about the permit to the Department and, in the case where the Department held a public meeting, to all persons who attended the meeting. 24A S.C. Code Regs. 61-43.200.60.G (Supp. 2005). The Petitioners do not fall within any of these categories entitled to notice by mail. The Department is also required to “publish notice of issuance of a permit to construct or expand an animal facility in a local newspaper of general circulation in the area of the facility.” 24A S.C. Code Regs. 61-43.200.60.H (Supp. 2005). When the Department complies with this provision, all members of the public residing in the area serviced by the local newspaper are imputed to have notice of the Department’s determination to issue the permit.

A newspaper that contains news of general interest to the particular community and that reaches a diverse readership is a newspaper of general circulation. Moore v. State, 553 P.2d 8 (Alaska 1976). Furthermore, a newspaper is one of general circulation in an area where the newspaper carries news of interest to the people in that area, even if the circulation is much less than another newspaper and it is only a weekly newspaper. McIntyre v. Mohave County, 127 Ariz. 127, 618 P.2d 621 (1980) rev’d. and vacated on other grounds, McIntyre v. Mohave County, 127 Ariz 317, 620 P.2d 696 (1980). See also, BBA Nonwovens Simpsonville, Inc. v. South Carolina Department of Health and Environmental Control and Para-Chem Southern, Inc., Docket No. 00-ALJ-07-0337-CC (September 7, 2001). The term “local newspaper of general circulation” is not defined in the regulation. In choosing a newspaper, the Department utilizes the South Carolina Press Association’s South Carolina Directory of Newspapers. See Respondent DHEC’s Exhibit 3, Affidavit of Henry E. Gibson. That directory lists The North Trade Journal as the newspaper serving the Town of North. The Court has reviewed a copy of the November 2, 2005 edition of The North Trade Journal and notes that it contains news of importance to the Town of North, as well as surrounding areas. The Court finds that The North Trade Journal is a local newspaper of general circulation in the area of the proposed facility.

Since the Petitioners live within the area served by The North Trade Journal, the law presumes the publication of the Notice of Issuance of an Agricultural Permit containing the information required by 24A S.C. Code Regs. 61-43.200.60.K (Supp. 2005) in the November 2, 2005 The North Trade Journal provided constructive notice to them of the Permit issuance. See Unsworth v. S.C. Dep’t of Health and Envtl. Control, Docket No. 03-ALJ-17-0037-CC, p. 3, 2003 S.C. Tax LEXIS 38 (February 25, 2003), citing Concerned Citizens for Sandy Flat v. S.C. Dep’t of Health and Envtl. Control and Hanson Aggregates Southeast, Inc., Docket No. 01-ALJ-07-0009-CC (October 12, 2001). As a matter of law, the publication of public notice in The North Trade Journal is deemed to be constructive notice of the issuance of the Permit sufficient to trigger the jurisdictional time frames of ALC Rule 11(C). Thus, this Court lacks jurisdiction because Petitioners did not file their Petition for Administrative Review within thirty (30) days after they had constructive notice of DHEC’s issuance of the Permit.

The Court Lacks Jurisdiction Because Petitioners Failed To Meet The Ninety (90) Day Filing Limit Required By ALC Rule 11(C)

ALC Rule 11(C) also provides that no request shall be filed more than ninety (90) days after the date of the issuance of the order or determination unless the administrative law judge assigned to the case finds that substantial cause exists for allowing the filing beyond the ninety (90) day period.

Even if Petitioners had not had constructive notice of the issuance of the Permit, this Court would still lack jurisdiction to hear this matter because Petitioners failed to meet the ninety (90) day limit in Rule 11(C). The ninety (90) day limit in Rule 11(C) begins to run on the day the agency issues a permit. In this case, the ninety (90) day period began to run on November 2, 2005. Petitioners did not file their Petition for Administrative Review until March 23, 2006, more than fifty (50) days after expiration of the ninety (90) day period.

The ninety (90) day limit applies whether or not notice is received and is, therefore, similar to a statute of repose. “A repose period is necessary to ensure finality to the permittee in the issuance of the permit. If the permit could be challenged at any time, the permittee, and those with whom the permittee does business, could never have the assurance that the permit was in place.” Unsworth at 2-3. The burden of a statute of repose is on the Petitioners, not the Respondents. “Statutes of repose by their nature impose on some plaintiffs the hardship of having a claim extinguished before it is discovered, or perhaps before it even exists.” Camacho v. Todd and Leiser Homes, 706 N.W.2d 49, 54, n. 6 (Minn. 2005) cited in Capco of Summerville, Inc. v. J.H. Gayle Constr. Co., 368 S.C. 137, 142, 628 S.E.2d 38, 41 (2006). However, unlike a statute of repose, which is typically an absolute time limit beyond which no claim can be brought and the time is not tolled for any reason, Florence County Sch. Dist. #2 v. Interkal, Inc., 348 S.C. 446, 453, 559 S.E.2d 866, 869 (Ct. App. 2002), Rule 11(C) provides a savings clause to the ninety (90) day limit in the event the administrative law judge assigned to the case finds that substantial cause exists for allowing the filing beyond the ninety (90) day period. While Rule 11(C) does not define “substantial cause,” it is clear that it is a high standard and requires more than merely “good cause.” In order to find “substantial cause” for filing a petition past the ninety (90) day repose period, Petitioners must affirmatively plead their basis for “substantial cause.” Even assuming the allegation in Petitioners’ Petition that they did not have actual or constructive notice of the issuance of the Permit until March 15, 2006 is true, Petitioners fail to allege any substantial cause for this Court to extend the time for filing beyond the ninety (90) day limit already provided under Rule 11(C) for situations when actual or constructive notice is not provided. Petitioners did not provide any specific reasons sufficient for this Court to extend the ninety (90) day filing period. The cause for not filing within the ninety (90) days must be one of substantial significance which would provide anyone under the same set of circumstances a clear and valid legal excuse for not meeting the time frame.

The Department’s Agricultural Animal Facilities regulations require applicants for a permit to “notify all property owners within 1320 feet of the proposed location of the facility (footprint of construction) of the applicant’s intent to build an animal facility.” 24A S.C. Code Reg. 61-43.200.60.A. The evidence herein demonstrates that Respondent Wang, on his own behalf and through his agent’s actions, on several occasions attempted to notify the Petitioners by Certified Mail of his intent to construct an animal facility. See Petitioners’ Exhibit 1 (Envelope with Certified Receipt from Respondent Wang showing two attempts to deliver by the U.S. Postal Service and marked “Unclaimed”) and Respondent DHEC’s Exhibit 2 (Affidavit of Joy Shealy and Envelope with Notice Letter and Certified Receipt from Shealy Engineering showing two attempts to deliver by the U.S. Postal Service and marked “Unclaimed”). Petitioner testified that he did receive at least one notice from the U.S. Postal Service, but did not pick up the letter because he was at work during the hours the post office was open.

The Department’s regulations do not require that property owners within 1320 feet of the proposed animal facility receive actual notice. It is clear that the applicant made reasonable attempts to notify the Petitioners of his intent to apply for the Permit and that the Petitioners’ failure to receive the notifications was caused by Petitioners’ failure to accept the certified letters or make any effort to go to the post office to receipt for them. As stated by the South Carolina Supreme Court when discussing defendant’s refusal to accept service of process by Certified Mail, Return Receipt Requested, “[t]he avoidance of authorized service of proper process by a willful act or refusal to act on the part of the defendant would create an intolerable situation and should not be permitted.” Patel v. Southern Brokers, Ltd., 277 S.C. 490, 493-494, 289 S.E.2d 642, 644 (1982). In this case, it would create an intolerable situation if Petitioners could prevent the issuance of an agricultural permit by failing to accept notification by mail. The notice of certified mail left in Petitioners’ mailbox by the U.S. Postal Service was sufficient to put Petitioners on inquiry to pursue whatever information the letter was meant to impart. If Petitioners had made such an inquiry, they would have learned of the proposed facility. At that point, they could have provided written comments to the Department regarding the proposed facility and would have been entitled to notice of the proposed issuance of the Permit by First Class U.S. mail service. 24A S.C. Code Ann. Regs. 61-43.200.60.G. (Supp. 2005). The injury suffered by Petitioners is the result of their own inaction and not the actions of the Respondents.

There Is No Due Process Violation Under Article I, Section 22 Of The South Carolina Constitution.

Petitioners also contend in their Response in Opposition to Respondent Wang’s Motion to Dismiss that their failure to receive actual notice of any proposed or final permit decision violated their due process protections under Article I, Section 22 of the South Carolina Constitution. During oral argument, Petitioners alleged that their failure to receive actual notice of Respondent Wang’s intent to apply for an Agriculture Animal Facility permit violated due process. The Court finds that in neither instance were the Petitioners denied due process.

Article I, Section 22 of the South Carolina Constitution provides in pertinent part that “[n]o person shall be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard . . . and he shall have in all instances the right to judicial review.” In Stono River Environmental Protection Assoc. v. DHEC, 305 S.C. 90, 406 S.E.2d 340 (1991), the South Carolina Supreme Court, applying the above constitutional provision, held that “[a]dministrative agencies are required to meet minimum standards of due process,” and that “constitutional due process provisions, apart from the APA, are sufficient to confer the rights to notice and an opportunity to be heard.” Id.

Petitioners cite to this Court’s Order Denying Respondents’ Motion to Dismiss in Haley Farms v. DHEC and Wells, Docket No. 97-ALJ-07-0198-CC (August 19, 1997) to support their contention. However, Petitioners’ reliance on Haley Farms is misplaced. Haley Farms was decided prior to DHEC’s promulgation of the 24A S.C. Code Regs. 61-43, Standards for the Permitting of Agricultural Animal Facilities, which govern the requirements, including notice requirements, of a permit to construct a broiler facility. The General Assembly has prescribed DHEC’s notice procedures in 24A S.C. Code Regs. 61-43.200.60 and has provided for hearings before the ALC in S.C. Code Ann. § 1-23-600 of the Administrative Procedures Act. ALC Rule 1, specifically states that the Administrative Law Court’s Rules of Procedure shall govern all proceedings in which the right to a hearing is required by due process.

As discussed above, DHEC complied with the applicable public notice requirements of 24A S.C. Code Regs. 61-43.200.60.[1] Accordingly, DHEC’s compliance with Paragraphs A, H, and K of 24A S.C. Code Regs. 61-43.200.60 and Petitioners’ right to request a contested case hearing as provided by S.C. Code Ann. § 1-23-600 and the ALC’s Rules of Procedure provided Petitioners with the notice and opportunity to be heard as required by Article I, Section 22 of the South Carolina Constitution.

CONCLUSION

Having carefully reviewed all pleadings, memoranda, affidavits, exhibits, and testimony introduced by the parties underlying this matter and constituting the record at this time, I conclude the Petitioners did not meet the jurisdictional requirement to file their Request for Administrative Review within thirty (30) days of receiving constructive notice of the Department’s determination to issue the Permit or within ninety (90) days of the date of the Department’s determination, and Petitioners failed to demonstrate substantial cause for this Court to extend the ninety (90) day filing period. Accordingly, this Court lacks jurisdiction to hear the Petitioners’ claim and Respondents are entitled to the relief they request as a matter of law.

ORDER

For all the foregoing reasons,

IT IS HEREBY ORDERED that Respondents’ Motions to Dismiss are granted and this matter is dismissed.

AND IT IS SO ORDERED.

_________________________________

                                                                               Marvin F. Kittrell

                                                                               Chief Administrative Law Judge

October 26, 2006

Columbia, South Carolina



[1] The publication of notice requirement in 24A S.C. Code Ann. Regs. 61-43.200.60.B is not applicable to Petitioners. Petitioners, who are husband and wife and live on the property are not “multiple owners” of a property as intended by this paragraph of the regulation. The purpose of the publication of notice requirement in 24A S.C. Code Ann. Regs. 61-43.200.60.B is to ensure that joint or partial owners of a property within 1320 feet of the proposed location of an animal facility, but who do not reside on the property, receive notice by publication of the proposed animal facility.


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