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 |