SC Administrative Law Court Decisions

This matter came before me on Wednesday, October 3, 2007, at the Edgar A. Brown Building, 1205 Pendleton Street, Suite 224, Columbia, South Carolina for a trial upon the issues. Present at the hearing was Petitioner Mark Henneman (“Petitioner” or “Henneman”), appearing pro se. Respondent Joseph Tomasello (“Respondent Tomasello”) was also present and proceeding pro se. Elizabeth Applegate Dieck appeared on behalf of the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management’s (hereinafter the “Department” or “DHEC”). I listened to the testimony of Mr. Henneman, heard the arguments of counsel and viewed exhibits proposed by the Petitioner.

Petitioner challenges DHEC’s issuance of Permit Number OCRM-06-349-R to Respondent Tomasello which allowed the construction of a private recreational use dock on and adjacent to Paradise Creek in Awendaw, South Carolina. The Petitioner timely appealed the issuance of the permit.

Petitioner Henneman presented his case to the Court. At the conclusion of Petitioner’s testimony, counsel for the Department moved to have the case dismissed on the basis that Petitioner failed to carry his burden of proving the Department’s violation of any statute or regulation. I granted Respondent DHEC’s motion.

FINDINGS OF FACT

Respondent Tomasello applied for a permit authorizing construction of a private recreational use dock. On April 12, 2007, DHEC issued a permit to Respondent Tomasello authorizing construction of a private recreational use dock consisting of a 4’ x 825’ walkway leading to a 8’ x 8’ covered pierhead. Petitioner Henneman opposes the issuance of the permit.

STANDARD OF REVIEW

The standard of review to be applied in an administrative challenge is a “preponderance of the evidence” standard. Anonymous (M-156-90) v. State Board of Medical Examiners, 329 S.C. 371, 375-76, 496 S.E.2d 17, 19 (1998). “The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact.” S.C. Code Ann. § 1-23-380(5) (Supp. 2008). Therefore, the administrative findings of the agency must be supported unless it is more likely than not that DHEC made an error in weighing the facts when approving the permit.

CONCLUSIONS OF LAW

The burden of proof in a contested case hearing is upon the moving party. S.C. Code Ann. § 44-7-21(E) et seq. (1987 & Supp. 2001). As Petitioner was unable to cite to any legal authority supporting his position, I find that the Petitioner’s appeal fails to prove by a preponderance of the evidence that DHEC did anything legally or factually improper. The unsupported testimony of Petitioner Henneman is insufficient to overcome his evidentiary burden of proof. In essence, the Petitioner’s complaints were almost wholly based on aesthetics. After considering the testimony of the Petitioner, I do not find any merit to the argument that the dock as proposed and permitted is in violation of the regulations.

Now having reviewed the documents of record and having heard and considered the arguments and testimony presented, I find and conclude that DHEC has followed all applicable guidelines and regulations in issuing Permit Number OCRM-06-349-R.

THEREFORE, IT IS HEREBY ORDERED ADJUDGED AND DECREED that Respondent Tomasello shall be allowed to build the private recreational use dock as authorized by Permit Number OCRM-06-349-R.

AND IT IS SO ORDERED.