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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
John P. Wilson vs. SCDHEC, et al

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
John P. Wilson

Respondents:
South Carolina Department of Health and Environmental Control and Suncoast Properties of SC, LLC
 
DOCKET NUMBER:
06-ALJ-07-0799-CC

APPEARANCES:
n/a
 

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.[1] 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.[2]

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.



[1] See State v. Gordon, 356 S.C. 143, 152, 588 S.E.2d 105, 110 (2003) (stating that a court should not consider the particular clause being construed in isolation, but should read it in conjunction with the purpose of the whole statute and the policy of the law); Adams v. Texfi Industries, 320 S.C. 213, 464 S.E.2d 109 (1995) (stating that, in construing a statute, the court looks to the language as a whole in light of its manifest purpose); MRI at Belfair, LLC v. S.C. Dept. of Health and Env. Control, Docket No. 06-ALJ-07-0714-CC (October 18, 2006) (Administrative Law Judge Ralph King Anderson, III)(holding that under section 44-1-60, Board review is a mandatory prerequisite to any review by the Administrative Law Court).

[2] See MRI at Belfair, LLC v. S.C. Dept. of Health and Env. Control, Docket No. 06-ALJ-07-0714-CC (October 18, 2006) (Administrative Law Judge Ralph King Anderson, III)(holding that the time to seek Board review of the Department’s decision runs from the affected person’s receipt of notice of the decision); cf. Re: Appeals from Administrative Decisions, S.C. Sup. Ct. Order dated August 15, 2006 (finding that the legislature intended for the time to seek judicial review or quasi-judicial review under Act 387 to run from receipt of the administrative decision); Hamm v. S.C. Public Service Comm’n, 287 S.C. 180, 336 S.E. 2d 470 (1985) (holding that the time to seek judicial review under S.C. Code Ann. § 1-23-380 ran from the receipt rather than the issuance of the agency decision).


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