ORDERS:
ORDER OF DISMISSAL
STATEMENT OF THE CASE
This matter is
before me on a Motion to Dismiss filed by the South Carolina Department of
Health and Environmental Control (“Department”), Office of Ocean and Coastal
Resource Management (“OCRM”), and a separate Motion to Dismiss filed by
Suncoast Properties of SC, LLC (“Suncoast”). The Department seeks dismissal of
this case for lack of jurisdiction due to Petitioner’s failure to file a
written request for final review of the agency staff decision as described in
S.C. Code Ann. § 44-1-60(E) (Supp. 2006). Suncoast seeks dismissal on the
ground that Petitioner lacks standing. Because I find that the Motion to
Dismiss filed by OCRM is well taken and that this Court lacks jurisdiction to
hear the matter, Suncoast’s motion will not be addressed.
BACKGROUND
OCRM issued a
Critical Area Permit & Coastal Zone Consistency Certification to Suncoast
and mailed notice thereof to Suncoast on August 28, 2006. The following day,
August 29, 2006, OCRM sent notice of the decision to Petitioner by certified
mail. Petitioner did not sign a return receipt for the notice until September
13, 2006.
Instead of filing
the request for final review of the agency staff decision described in section
44-1-60(E), Petitioner filed a Request for a Contested Case Hearing with this
Court on October 13, 2006, thirty days after he signed a receipt for the
notice.
DISCUSSION
The controlling
statute is section 44-1-60(E) which provides, in part,
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.
(emphasis added). Section 44-1-60
was added to the Code by Act 387 of 2006, § 48.
Subsection (F) of the statute provides for a final review conference conducted
by the Board of Health and Environmental Control (“Board”) and for the
Administrative Law Court’s review of the Board’s decision.
Petitioner argues that
section 44-1-60 gives an affected party the option of seeking review with the
Board or waiting until the Department’s staff decision becomes the final agency
decision pursuant to subsection (E) and then seeking review with this Court. However,
such an interpretation of the statute is inconsistent with the intent behind
Act 387 to provide a uniform procedure for contested
cases and appeals from administrative agencies. See Act 387 of 2006, § 53.
Further, the language
of section 44-1-60 as a whole clearly shows that the legislature intended to
require any affected person to first seek Board review before seeking review by
the Administrative Law Court. Therefore,
a reasonable interpretation of the language in subsection
(E) that "The department decision becomes the final agency decision"
is that if the decision is not challenged within the allotted fifteen days, the
affected person has waived his right to review. It logically follows that any
jurisdiction that the Board or, ultimately, the Administrative Law Court, has
to review that decision is extinguished by the affected person’s failure to
perfect his right to review. Cf. 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). Therefore,
in the absence of a timely request for final review under subsection (E), the
instant matter ended, at the latest, 15 days after Petitioner received
notice of the granting of the permit and certification on September 13, 2006.
Petitioner argues
in the alternative that section 44-1-60 cannot govern OCRM decisions because Title
44 of the Code governs solely the Department’s responsibilities and procedures
in the area of public health and because Title 48 governs the Department’s
responsibilities and procedures in the areas of environmental control and
conservation. However, the legislature has expressly provided for Board review
prior to review by the Administrative Law Court in certain matters falling
under Title 48, Chapter 39 of the Code. Section 51 of Act 387 amended S.C.
Code Ann. § 48-39-280(E) to require any request for a review of a decision on a
setback line, baseline, or erosion rate to be forwarded to the Board in
accordance with S.C. Code Ann. § 44-1-60 and to provide for review of the
Board’s final decision by the Administrative Law Court. Further, while there
is no express reference to section 44-1-60 in S.C. Code Ann. § 48-39-150 (Supp.
2006), which governs review of a decision on a critical area permit,
section 53 of Act 387 states that the act is intended to provide a uniform
procedure for contested cases and appeals from administrative agencies.
Therefore, I conclude that review of any decision of OCRM staff is governed by
the procedures set forth in S.C. Code Ann. § 44-1-60 (Supp. 2006).
Based on the foregoing,
I conclude that this Court lacks jurisdiction to hear this matter due to Petitioner’s
failure to file a written request for Board review within 15 days after receiving
notice of the Department’s staff decision.
ORDER
IT
IS THERFORE ORDERED that this proceeding be, and hereby is, DISMISSED,
WITH PREJUDICE.
AND
IT IS SO ORDERED.
__________________________________
JOHN D. MCLEOD
Administrative
Law Judge
March 21, 2007
Columbia, South Carolina.
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