South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Patricia Miller vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Patricia Miller

Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
04-ALJ-30-0328-CC

APPEARANCES:
Petitioner & Representative:
Patricia Miller, Pro se

Respondent & Representative:
South Carolina Department of Health and Environmental Control, Nancy Roberts, Esquire
 

ORDERS:

ORDER GRANTING MOTION FOR INVOLUNTARY NON-SUIT

I. Statement of the Case

In the instant case Patricia Miller (Miller) requests a contested case challenging the decision of the South Carolina Department of Health and Environmental Control (DHEC) to denying her a septic tank permit for her property located at 825 Relax Street, Waterloo, South Carolina near Lake Greenwood. She also seeks to establish that the existing septic tank system on the property can be used to allow the discharge of waste from two campers situated on the property. After Miller presented her case in chief, DHEC moved for an involuntary non-suit on the ground that Miller had failed to establish that she was entitled to a new septic tank permit and failed to establish she was allowed to connect the two campers to the existing septic system. The motion was granted and this order sets forth the basis for that decision.

II. Involuntary Non-Suit

A. Applicable Standard

The Rules of Procedure for the South Carolina Administrative Law Court (ALC) do not specifically address the procedure for dismissing a matter at the close of a petitioner’s case. However, ALC Rule 68 allows the South Carolina Rules of Civil Procedure to be applied, where practicable, in proceedings before the Court to resolve questions not addressed by the ALC Rules. Here, Rule 41(b) of the South Carolina Rules of Civil Procedure applies:

After the plaintiff in an action tried by the court without a jury has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.

The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a)[,SCRCP].

Rule 41(b), SCRCP; see also Rule 52(a), SCRCP (requiring the court, in non-jury cases, to “find the facts specially and state separately its conclusions of law thereon”).

In Johnson v. J.P. Stevens & Co., 308 S.C. 116, 417 S.E.2d 527 (1992), the South Carolina Supreme Court explained the standard to be applied:

Under Rule 41 in a nonjury trial, the trial judge clearly may dismiss the action even though the plaintiff may have established a prima facie case. Rule 41(b) allows the judge as the trier of facts to weigh the evidence, determine the facts and render a judgment against the plaintiff at the close of his case if justified.

Id. at 118, 417 S.E.2d at 529; see also James F. Flanagan, South Carolina Civil Procedure 348 (2d ed. 1996). Here, based on such a standard, this case must be dismissed.

B. Standard Applied To Instant Case

Miller seeks to discharge human and domestic waste from two campers. However, before doing so, she must provide facilities for the proper treatment and disposal of that waste so as to protect her health and the health of the community from contamination of water or food and to protect against the transmission of human waste by flies or other vectors. 24A S.C. Code Ann. Reg. 61-56 § 1(1992). Further, before she can provide such facilities, Miller must first obtain permission from DHEC and must do so before constructing and operating any individual sewage treatment and disposal system. S.C. Code Ann. § 48-1-110(a) (Supp. 2004); S.C. Code Ann. Reg. 61-56 §§ III(B) and IV(B)(1).

Since Miller is the party challenging the propriety of the denial of the permit, she is the moving party and, therefore, bears the burden of proof in this case. See Leventis v. S.C. Dep’t of Health & Envtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000) (holding that the burden of proof in administrative proceedings generally rests upon the party asserting the affirmative of an issue); 2 Am. Jur. 2d Administrative Law § 360 (1994) (same). Accordingly, to prevail Miller must prove, by a preponderance of the evidence, that the requested septic tank permit was wrongly denied. See Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998) (holding that the standard of proof in an administrative proceeding is generally the preponderance of the evidence).

1. Denial of Request for New Permit

In the instant case, to accomplish her goal, Miller sought permission from DHEC on June 8, 2004 to construct an individual sewage disposal system for two campers with the campers having one bedroom for each camper. In addition, a currently unoccupied one bedroom house sits on the property. To obtain a septic tank permit for these structures "[t]he area of the lot or plot of ground where the individual sewage treatment and disposal system is to be installed shall be of sufficient size." Reg. 61-56 § V(E).

DHEC's inspection of the site concluded the property lacked sufficient space for installation of either a conventional septic tank system or an alternative or experimental septic system due to the limited size of the .35 acre lot, the setbacks from a ditch, and the existing drain field. By certified letter dated August 30, 2004, DHEC notified Miller of the denial of the requested septic tank permit.

Accordingly, at the contested case hearing, Miller bore the burden of establishing how the existing lot size would accommodate the structures on the lot. However, rather than attempting to prove her case for obtaining a permit, Miller made plain her position that she did not need nor want a new permit. Thus, she abandoned her permit request. Therefore, no controversy on the requested permit remained for decision, and the non-suit was properly granted.

Further, even if one could find that Miller's plain statements did not abandon her request for a permit, the evidence presented in Miller's case-in-chief gave no basis for granting a permit since she failed to establish how the size of the lot would be able to accommodate the waste disposal needs of the campers. For example, she did not provide meaningful data challenging the setbacks needed for a ditch nor did she establish where the drain field would be exist giving the requisite area for the requested waste disposal permit. Thus, considering the evidence as a whole, Miller failed to establish evidence sufficient to find she was entitled to a permit.

2. Denial of Permission to Use Existing System

Miller was directed by DHEC on April 23, 2004 to disconnect two campers from the existing septic tank system on her property at 825 Relax Street, Waterloo, South Carolina. She complied. In her Prehearing Statement she seeks to raise the issue of whether such disconnection is proper since she argues she should be allowed to have the campers utilize the existing septic tank system. As to this issue, again, the involuntary non-suit was properly issued.

First, Miller did not challenge DHEC's April 23, 2004 directive to disconnect the two campers from the existing septic tank system. Rather, no request for a contested case was made to the DHEC directive. Instead, the only request for a contested case filed by Miller was the contested case request filed on September 15, 2004. That request seeks only a contested case hearing "regarding a denial of a septic tank permit." Thus, the only issue raised is the decision to deny the requested permit. Therefore, the involuntary non-suit was proper as to the disconnection directive since that issue was not challenged and was not before the Court.

In addition, even if such an issue could be found pending before this Court, no meaningful evidence established Miller's claim of a right to connect the two campers to the existing septic tank system. For example, no meaningful evidence establishes the capacity of the septic tank system already existing on the property. See Reg. 61-56 § VI(A). Further, no meaningful evidence established that the existing drain field is capable of supporting all of the structures on the property. Thus, the evidence was insufficient to support the claim made and the involuntary non-suit was therefore properly granted.

III. Order

For the reasons set forth above, IT IS HEREBY ORDERED that DHEC's motion for an involuntary non-suit against Patricia Miller is GRANTED, and this matter is DISMISSED with prejudice.

AND IT IS SO ORDERED

______________________

RAY N. STEVENS

Administrative Law Judge

Dated: April 28, 2005

Columbia, South Carolina


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