STATEMENT OF THE CASE
The above-captioned matter comes before the South Carolina Administrative Law Court
(ALC) pursuant to a Notice of Appeal and Motion for Emergency Stay filed on April 15, 2005,
and an Amended Notice of Appeal and Motion for Emergency Stay filed on April 18, 2005, by
Appellant Providence Environmental, Inc. Appellant challenges three orders issued by
Respondent Richland County Fire Marshal dated March 29, 2005, April 8, 2005, and April 10,
2005, regarding the storage of allegedly hazardous materials on its property, and further requests
an emergency stay prohibiting enforcement of the orders pending the resolution of its appeal.
However, as set forth below, I find that this appeal must be dismissed for Appellant’s failure to
exhaust its administrative remedies.
DISCUSSION
The doctrine of exhaustion of administrative remedies generally requires a person
seeking relief from the action of an administrative agency to pursue all available administrative
remedies before seeking such relief from the courts. See, e.g., Pullman Co. v. Pub. Serv.
Comm’n, 234 S.C. 365, 108 S.E.2d 571 (1959); see generally Richard H. Seamon,
Administrative Agencies—General Concepts and Principles, in South Carolina Administrative
Practice and Procedure 1, 83-96 (Randolph R. Lowell & Stephen P. Bates eds. 2004). However,
this exhaustion principle applies not only when a party is seeking judicial review of an agency
action, but also when a party is seeking review of an agency action before another administrative
agency, such as the South Carolina Administrative Law Court. See S.C. Code Ann. § 1-23-600(D) (Supp. 2004) (providing that appeals before the ALC are heard pursuant to the provisions
of S.C. Code Ann. § 1-23-380 (2005), which includes a general exhaustion of remedies
requirement in subsection (A)); cf. S.C. Code Ann. § 12-60-30(14)-(15) (Supp. 2004)
(recognizing both the exhaustion of administrative remedies that is required before judicial
review of a tax matter may be had and the exhaustion of agency remedies that is required before
a party may seek review of a tax matter by the ALC). Further, the basic rationale for the
doctrine of exhaustion is equally applicable to administrative appellate review of agency
decisions by the ALC as it is to judicial appellate review of agency decisions. See Video
Gaming Consultants, Inc. v. S.C. Dep’t of Revenue, 342 S.C. 34, 38, 535 S.E.2d 642, 644 (2000)
(noting that “[e]xhaustion is generally required as a matter of preventing premature interference
with agency processes, so that the agency may function efficiently and so that it may have an
opportunity to correct its own errors, to afford the parties and the courts the benefit of its
experience and expertise, and to compile a record which is adequate for judicial review.”).
Therefore, prior to appealing an order issued by a county fire marshal or other resident or
deputy fire marshal to the ALC, the occupant or owner of the property subject to the order must
exhaust all administrative remedies before the State Fire Marshal’s Office, including appealing
the order issued by the deputy or resident fire marshal to the State Fire Marshal. See, e.g.,
Meredith v. Elliott, 247 S.C. 335, 147 S.E.2d 244 (1966) (holding that taxpayers were precluded
from challenging the assessed value of their property in the courts because they had failed to
exhaust their administrative remedies by appealing the decision of the county board of
assessment appeals to the South Carolina Tax Commission); Lominick v. City of Aiken, 244
S.C. 32, 135 S.E.2d 305 (1964) (holding that an individual could not challenge a municipal
zoning decision in court because she had failed to exhaust her administrative remedies by
appealing the decision to the local zoning board of adjustment).
In the instant matter, I find that Appellant failed to exhaust its administrative remedies
with the State Fire Marshal prior to bringing this appeal. Section 23-9-70, which governs
appeals of orders from the State Fire Marshal to remedy or remove a fire hazard, provides that:
[i]f such order is issued by any deputy or resident fire marshal, such occupant or
owner may, within twenty-four hours, appeal to the State Fire Marshal, who shall,
within ten days, during which time the order appealed from shall be stayed,
review the order and file his decision. Provided, however, that any person who
feels himself aggrieved by any order or affirmed order of the State Fire Marshal
may, within five days after the making or affirming of such order, appeal to an
administrative law judge, as provided under Article 5 of Chapter 23 of Title 1, for
review of such order and it shall be heard at the first convenient day.
S.C. Code Ann. § 23-9-70 (Supp. 2004) (emphasis added). Therefore, under this section, when
an order to remedy or remove a fire hazard is issued by a deputy or resident fire marshal, such as
a county fire marshal, the first avenue of appeal for the owner or occupant of the subject
property is to appeal the order to the State Fire Marshal. If the owner or occupant is aggrieved
by the decision of the State Fire Marshal regarding its appeal, the owner or occupant may then
file an appeal with the ALC to contest the order pertaining to its property.
In the case at hand, the orders Appellant seeks to appeal before this Court were issued by
the Richland County Fire Marshal, a resident fire marshal authorized to exercise the powers of
the State Fire Marshal. See S.C. Code Ann. § 23-9-30(a) (1989) (providing that a “county fire
marshal is ex officio resident fire marshal”); S.C. Code Ann. § 23-9-30(b) (1989) (providing that
“[a]ll powers and duties vested in the State Fire Marshal may be exercised by or discharged by
any deputy state fire marshal, county fire marshal, or resident fire marshal within the area of his
service”). Accordingly, Appellant’s first course of appeal was to seek review of those orders
before the State Fire Marshal himself. S.C. Code Ann. § 23-9-70 (“If such order is issued by any
deputy or resident fire marshal, such occupant or owner may, within twenty-four hours, appeal to
the State Fire Marshal, who shall, within ten days, during which time the order appeal from shall
be stayed, review the order and file his decision.”) (emphasis added). However, Appellant did
not appeal the orders of the Richland County Fire Marshal to the State Fire Marshal, but rather
has directly appealed those orders to this Court. See Appellant’s Amended Notice of Appeal and
Motion for Emergency Stay at 1-4. By forgoing its appeal to the State Fire Marshal as provided
in Section 23-9-70, Appellant has failed to exhaust its administrative remedies prior to bringing
this premature appeal before the ALC.
ORDER
Therefore, because Appellant failed to exhaust its administrative remedies with the State
Fire Marshal prior to filing this appeal,
IT IS HEREBY ORDERED that the above-captioned appeal is DISMISSED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
April 19, 2005
Columbia, South Carolina