SC Administrative Law Court Decisions

18. Administrative agencies, such as DHEC, have broad powers and broad discretion in enforcement of the statutes and regulations within their purview. However, a party may state a claim of denial of its equal protection by the exercise of regulatory authority by administrative agencies based on selective enforcement in an intentionally, discriminatory unconstitutional manner. Such a claim may be asserted in defense of a regulatory enforcement/violation proceeding separate and apart from any civil rights claim. See generally McGowan v. Maryland, 366 U.S. 420 (1961); Pork Motel Corp. v. Kansas Dept. of Health & Environ., 673 P.2d 1126, 1135 (Kan. 1983); State v. Malone Service Co., 829 S.W.2d 763 (Tex.1992)(although defense of discriminatory enforcement originated in context of criminal prosecutions, governing principles also apply to civil proceedings involving state agencies); see also Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886) (holding that law is unconstitutionally enforced if it is applied and administered by a government authority with “an evil eye and an unequal hand.”)

19. The equal protection clause requires that all persons similarly situated be treated alike. “Regulatory or enforcement decisions based on personal dislike, vendetta, or some other impermissible consideration, are anathemas to the American tradition honoring the rule of law.” 421 Corp. v. Metropolitan Gov’t of Nashville and Davidson County, 36 S.W.3d 469 (Tenn. App. 2000).

20. To state a claim of selective treatment, a plaintiff must first establish that similarly-situated persons received disparate treatment not only that it was selectively treated in comparison to others similarly situated See, e.g., Weaver v. S.C. Coastal Council, 309 S.C. 368, 423 S.E.2d 340 (1992); Grant v. South Carolina Coastal Council, 461 S.E.2d 388, S.C.,1995. However, the Plaintiff must also show that the agency’s selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person. LaTrieste Restaurant & Cabaret, Inc. v. Village of Port Chester, 40 F.3d 587 , 590 (2^nd Cir. 1994); Thomas v. City of West Haven, 734 A.2d 535 (Conn. 1999).

21. In State v. 192 Coin-operated Video Game Machines, 338 S.C. 176, 525 S.E.2d 872, 885 (2000), the Court articulated a two-prong test to establish a claim of selective prosecution:

First, a defendant must show "he has been singled out for prosecution while others similarly situated have not been prosecuted for conduct similar to that for which he was prosecuted." United States v. Catlett, 584 F.2d 864 (8^th Cir. 1978). Second, "the defendant must demonstrate that the government's discriminatory selection of him for prosecution was based upon an impermissible ground, such as race, religion or his exercise of his first amendment right to free speech." Id. At 865. See also Armstrong, 517 U.S. at 465, 116 S.Ct. 1480 ("The requirements for a selective-prosecution claim draw on 'ordinary equal protection standards.' The claimant must demonstrate that the federal prosecutorial policy 'had a discriminatory effect and that it was motivated by a discriminatory purpose.' ") (citations omitted).

See also Whaley v. Dorchester County Zoning Bd. of Appeals, 337 S.C. 568, 524 S.E.2d 404 (1999)(“To prove that a statute has been administered or enforced discriminatorily, more must be shown than the fact that a benefit was denied to person while conferred on another. A violation is established only if the plaintiff can prove that the state intended to discriminate.”)

22. A mere laxity of enforcement does not establish intentional or purposeful discrimination. Whitney Trading Corp. v. McNair, 255 S.C. 8, 176 S.E.2d 572 (1970). See also Moog v. Industries, Inc. v. FTC, 355 U.S. 411 (1958); Pork Motel, 673 P.2d at 1136 (a failure to proceed against all alleged violators does not preclude an administrative agency from enforcing the law against one violator).

23. “Even an unequal enforcement of a valid state law is not a denial of equal protection unless the unequal enforcement is the result of “arbitrary and invidious discrimination.”” Pork Motel, supra.

24. “Selectivity alone does not render law enforcement unlawful.... to be unlawful the selectivity must be improperly motivated.” Branch Ministries v. Richardson, 970 F. Supp. 11, 15-16 (D.C. 1997) (citing United States v. Armstrong, 517 U.S. 456 (1996)).

25. An equal protection claim may be founded on proof of an orchestrated campaign of official harassment directed against the party out of sheer malice or deep-seated animosity. Unequal imposition of sanctions can constitute unequal treatment in violation of the equal protection if shown to be the result of a vindictive campaign. Esmail v. Macrane, 53 F.3d 176 (7^th Cir. 1995).

26. Selective enforcement of state regulation may constitute a violation of a plaintiff’s equal protection rights upon a showing that a state official with a personal vendetta treated the plaintiff more severely than other instances of code violations. Rubinovitz v. Rogato, 60 F.3d 906 (1^st Cir. 1995) (where building inspector acted with a personal vendetta against the plaintiff for evicting her friend).

27. Although the plaintiff bears a heavy burden of proving discrimination, it is not required to produce direct evidence of intent. “[I]ndeed, direct evidence of motive or intent is rarely available. As in any equal protection case, evidence concerning the unequal application of law, statistical disparities and other indirect evidence may be used to show bias or discriminatory motive.” Branch Ministries, 970 F. Supp. at 17.

28. “The very rarity of an official act can support a finding of discriminatory intent, although alone it may not necessary be sufficient basis for such a finding.” Branch Ministries, 970 F. Supp. at 17.

29. “In order to establish an equal protection violation, a party must show that similarly situated persons received disparate treatment.” TNS Mills, Inc. v. South Carolina Dep’t of Revenue, 331 S.C. 611, 626, 503 S.E.2d 471, 479 (1998). See also Grant v. South Carolina Coastal Council, 319 S.C. 348, 355, 461 S.E.2d 388, 392 (1995) (“[W]e agree with the circuit court that Grant did not prove the Coastal Council treated him differently from other similarly situated landowners”). The person claiming unfair treatment carries the burden to establish an equal protection violation. See TNS Mills, Inc. v. South Carolina Dep’t of Revenue, 331 S.C. 611, 626, 503 S.E.2d 471, 479 (1998).

30. The facts to be examined when determining whether entities are similarly situated under an equal protection claim are those facts which determine whether an entity is subject to regulation. See Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995) (Grant found to have violated the Coastal Zone Management Act for filling an area within the critical zone after Hurricane Hugo despite claim that neighbors had been permitted to fill areas where evidence showed that neighbors’ properties were not in the critical areas when they conducted filling); Weaver v. S.C. Coastal Council, 309 S.C. 368, 423 S.E.2d 340 (1992) (dock permit application denied because proposed dock would be located in a protected public oyster ground, but equal protection violation found where neighbors were similarly situated because their the docks were already located in the same public oyster ground).

31. Faith Cathedral operates a public water system under the Safe Drinking Water Act. According to the November 5, 2002, sanitary survey by Mr. Wilson, Faith Cathedral’s water system has forty-nine (49) connections and serves approximately eighty-nine (85) people. Faith Cathedral was properly added to the State’s inventory of public water systems in January 2003. Accordingly, this Court finds that Faith Cathedral’s water system is subject to the State Primary Drinking Water Regulations.

32. In addition, this Court finds that based on Mr. Wilson’s sanitary survey and testimony, Faith Cathedral violated numerous provisions of the Drinking Water Regulations regarding the construction of public water system wells. Faith Cathedral failed to seal the outside well casing; install/maintain the check valve and blow-off on the well head piping; install/maintain a flow meter for each well serving its PWS; provide valves for the isolation of tanks to ensure proper operation; and initiate and maintain a viable cross connection control program by failure to locate and eliminate unprotected cross connections.

33. Although Brother Christopher produced photographs at the hearing and testified that all of the violations had been corrected through improvements to the wells, the Department has been unable to verify that the improvements were properly implemented.

34. Faith Cathedral also failed to establish and maintain up-to-date written Standard Operating Procedures for the operation and maintenance of its system. Although the repair log was not introduced into evidence, a log which records repairs after they are made does not constitute Standard Operating Procedures for the operation and maintenance of a public water system.

35. Faith Cathedral failed to designate an operator of appropriate grade as the operator responsible for the operation and maintenance of its distribution system. Although, Brother Christopher testified that Brother Timothy was the point of contact for the system, Brother Timothy had not received any type of training, served as an apprentice to a certified public water system operator, or received any certification as required by 24A S.C. Code Ann. Regs. 61-58(105) and 61-58.7 (E)(1)(b).

36. Faith Cathedral failed to conduct required bacteriological monitoring in February, March, April, and May. These monitoring requirements were not eliminated by the favorable results of the July 1, 2002, tests of the system’s water. The monthly monitoring requirement is an ongoing obligation and is designed to catch water contamination before it becomes a serious problem. Further, Faith Cathedral failed to issue public notification of the failure to conduct monthly bacteriological monitoring and failed to submit a copy of the notification to the Department.

37. After Faith Cathedral’s PWS had been added to the inventory, the Department was required to conduct chemical sampling of the system’s water. See Regulation 61-55.5, Maximum Contaminate Levels in Drinking Water. On June 13, 2003, the Department sent a letter to the Petitioner’s attorney stating that water samples had to be collected for maximum contaminate level testing. The letter advised Faith Cathedral that the Safe Drinking Water Act authorized the Department to enter the premises of a PWS for purposes under the Act. Faith Cathedral did not allow the Department to access to its PWS for the purpose of conducting the required quarterly bacteriological monitoring.

38. Faith Cathedral failed to submit the required annual drinking water fees for its PWS for the 2003 fiscal year.

39. The Department failed to respond in a timely fashion to Faith Cathedral’s Freedom of Information request for information about other allegedly similarly situated facilities in South Carolina. However, the Court finds that as of November 20, 2002, the Department was making efforts to collect the information Faith Cathedral sought. The Department’s Freedom of Information Office acknowledged receipt of the request on February 27, 2003. Department e-mails show that Department staff was still attempting to collect the information in April 2003. Although the Department’s response was delinquent, Faith Cathedral’s proper remedy for the Department’s delinquent response was to seek injunctive relief in the circuit court under the Freedom of Information Act. In addition, the Department’s failure to provide a timely response to Faith Cathedral’s request did not excuse the facility from complying with clearly stated requirements under the applicable statutes and regulations. Ultimately, the effect of the Department’s failure to provide a timely response is now moot because the request was satisfied through the discovery process after the appeal was filed.

40. There is no remedy this Court could grant Faith Cathedral under the drinking water statutes and regulations for an untimely response to a FOIA request. As stated above, the information requested by Faith Cathedral was eventually turned over either through the Freedom of Information Office or through discovery. Faith Cathedral was clearly operating a public water system, and the Department properly added the system to the state’s inventory, thereby triggering all of the applicable requirements. A timely response from the Department would not have changed Faith Cathedral’s status as a public water system and would not have changed the requirements under the safe drinking water statutes and regulations.

41. Faith Cathedral’s argument that a hearing would not have been necessary if the Department had provided a timely response is disingenuous. Faith Cathedral was provided with ample notice of the Department’s intent to regulate its PWS. The notice was provided with detailed information on how to comply with the regulations and contact information if the facility had questions about the requirements. In fact, Brother Christopher testified that Faith Cathedral had a lot of dialogue with Mr. Wilson concerning the requirements for the wells. (Tr. Dec.18, p.80, lines 10-22). Faith Cathedral had plenty of opportunity to either comply with the Department’s regulations or to show that it was willing to comply with the regulations if the equal protection claims proved invalid.

42. Faith Cathedral made improvements to the three wells on its property in February 2003, but failed to allow the Department onto its property to verify the improvements. Faith Cathedral could have either paid the drinking water fees for fiscal year 2003 under protest or paid the fees into an escrow account and notified the Department that the fees would be surrendered if the equal protection allegations proved invalid. Faith Cathedral showed a capacity to conduct bacteriological monitoring in September 2003, yet failed to conduct this monitoring in February, March, April, and May when it was clearly required under the law. The monthly monitoring would have served only as a benefit to the public health of the facility’s residents, and would have served as a benefit to Faith Cathedral’s legal arguments. The only detriment of this monitoring to Faith Cathedral was financial, and Faith Cathedral produced no evidence that it was unable to afford such monitoring. This Court finds that the Freedom of Information Act cannot be used as a shield against compliance with applicable statutes and regulations.

43. In June 2003, the Department gave Faith Cathedral yet another opportunity to comply with the drinking water regulations when it notified the facility that samples needed to be collected from the system and tested. Faith Cathedral could have granted access to the system, allowed the testing, and had the Department verify the improvements made to its wells, while still maintaining that it was being treated unfairly under the equal protection doctrine. Instead of showing a willingness to comply with the regulations, Faith Cathedral refused the Department access to its system and engaged in another violation of the law.

44. Regarding Faith Cathedral’s equal protection claim, this Court finds that the Petitioner failed to carry its burden to show by a preponderance of the evidence that similarly situated facilities received disparate treatment.

St. Claire Monastery and St. Nicholas Monastery are both served by municipal type systems; they are clearly not similarly situated to Faith Cathedral.

St. Mary’s Monastery, Bonnie Doone Plantation, African Village, and Camp Christian are similar to Faith Cathedral in that they are religious in nature. However, Faith Cathedral did not produce evidence regarding the number of connections or residents at these facilities and therefore failed to show that those facilities are similarly situated to Faith Cathedral under the drinking water regulations. Faith Cathedral also failed to produce evidence that these facilities suffered the same type of violations of the drinking water regulations as Faith Cathedral.

45. The Department established that Bonnie Doone Plantation, African Village, and Camp Christian are on the state public drinking water system inventory, so to the extent that they are similar to Faith Cathedral, they received similar treatment through addition to the state inventory.

46. This Court finds that Petitioner failed to establish that St. Mary’s, Bonnie Doone Plantation, African Village, or Camp Christian are similarly situated to Faith Cathedral under the drinking water regulations. Petitioner established no similarities between St. Mary’s and Faith Cathedral beyond their religious nature. To the extent that Bonnie Doone Plantation, African Village, and Camp Christian are similar to Faith Cathedral, the Department established that they had been treated similarly because they are in the state inventory.

ORDER

Based upon the above Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that Administrative Order 03-136-DW is affirmed as to the violations committed by Faith Cathedral.

IT IS FURTHER ORDERED that a civil penalty of $2,500 must be remitted to the Department within 60 days of the date of this Order.

IT IS FURTHER ORDERED that Faith Cathedral pay $2,663.38 in annual drinking water fees and penalties for the 2003 fiscal year and that Faith Cathedral shall pay all annual drinking water fees due up to the date of this order, with no penalties.

All payments required under this Order shall be paid within sixty (60) days of the filed date of this Order.

AND IT IS SO ORDERED.

________________________

Carolyn C. Matthews

Administrative Law Judge

July 12, 2005

Columbia, SC

18. Administrative agencies, such as DHEC, have broad powers and broad discretion in enforcement of the statutes and regulations within their purview. However, a party may state a claim of denial of its equal protection by the exercise of regulatory authority by administrative agencies based on selective enforcement in an intentionally, discriminatory unconstitutional manner. Such a claim may be asserted in defense of a regulatory enforcement/violation proceeding separate and apart from any civil rights claim. See generally McGowan v. Maryland, 366 U.S. 420 (1961); Pork Motel Corp. v. Kansas Dept. of Health & Environ., 673 P.2d 1126, 1135 (Kan. 1983); State v. Malone Service Co., 829 S.W.2d 763 (Tex.1992)(although defense of discriminatory enforcement originated in context of criminal prosecutions, governing principles also apply to civil proceedings involving state agencies); see also Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886) (holding that law is unconstitutionally enforced if it is applied and administered by a government authority with “an evil eye and an unequal hand.”)

19. The equal protection clause requires that all persons similarly situated be treated alike. “Regulatory or enforcement decisions based on personal dislike, vendetta, or some other impermissible consideration, are anathemas to the American tradition honoring the rule of law.” 421 Corp. v. Metropolitan Gov’t of Nashville and Davidson County, 36 S.W.3d 469 (Tenn. App. 2000).

20. To state a claim of selective treatment, a plaintiff must first establish that similarly-situated persons received disparate treatment not only that it was selectively treated in comparison to others similarly situated See, e.g., Weaver v. S.C. Coastal Council, 309 S.C. 368, 423 S.E.2d 340 (1992); Grant v. South Carolina Coastal Council, 461 S.E.2d 388, S.C.,1995. However, the Plaintiff must also show that the agency’s selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person. LaTrieste Restaurant & Cabaret, Inc. v. Village of Port Chester, 40 F.3d 587 , 590 (2^nd Cir. 1994); Thomas v. City of West Haven, 734 A.2d 535 (Conn. 1999).

21. In State v. 192 Coin-operated Video Game Machines, 338 S.C. 176, 525 S.E.2d 872, 885 (2000), the Court articulated a two-prong test to establish a claim of selective prosecution:

First, a defendant must show "he has been singled out for prosecution while others similarly situated have not been prosecuted for conduct similar to that for which he was prosecuted." United States v. Catlett, 584 F.2d 864 (8^th Cir. 1978). Second, "the defendant must demonstrate that the government's discriminatory selection of him for prosecution was based upon an impermissible ground, such as race, religion or his exercise of his first amendment right to free speech." Id. At 865. See also Armstrong, 517 U.S. at 465, 116 S.Ct. 1480 ("The requirements for a selective-prosecution claim draw on 'ordinary equal protection standards.' The claimant must demonstrate that the federal prosecutorial policy 'had a discriminatory effect and that it was motivated by a discriminatory purpose.' ") (citations omitted).

See also Whaley v. Dorchester County Zoning Bd. of Appeals, 337 S.C. 568, 524 S.E.2d 404 (1999)(“To prove that a statute has been administered or enforced discriminatorily, more must be shown than the fact that a benefit was denied to person while conferred on another. A violation is established only if the plaintiff can prove that the state intended to discriminate.”)

22. A mere laxity of enforcement does not establish intentional or purposeful discrimination. Whitney Trading Corp. v. McNair, 255 S.C. 8, 176 S.E.2d 572 (1970). See also Moog v. Industries, Inc. v. FTC, 355 U.S. 411 (1958); Pork Motel, 673 P.2d at 1136 (a failure to proceed against all alleged violators does not preclude an administrative agency from enforcing the law against one violator).

23. “Even an unequal enforcement of a valid state law is not a denial of equal protection unless the unequal enforcement is the result of “arbitrary and invidious discrimination.”” Pork Motel, supra.

24. “Selectivity alone does not render law enforcement unlawful.... to be unlawful the selectivity must be improperly motivated.” Branch Ministries v. Richardson, 970 F. Supp. 11, 15-16 (D.C. 1997) (citing United States v. Armstrong, 517 U.S. 456 (1996)).

25. An equal protection claim may be founded on proof of an orchestrated campaign of official harassment directed against the party out of sheer malice or deep-seated animosity. Unequal imposition of sanctions can constitute unequal treatment in violation of the equal protection if shown to be the result of a vindictive campaign. Esmail v. Macrane, 53 F.3d 176 (7^th Cir. 1995).

26. Selective enforcement of state regulation may constitute a violation of a plaintiff’s equal protection rights upon a showing that a state official with a personal vendetta treated the plaintiff more severely than other instances of code violations. Rubinovitz v. Rogato, 60 F.3d 906 (1^st Cir. 1995) (where building inspector acted with a personal vendetta against the plaintiff for evicting her friend).

27. Although the plaintiff bears a heavy burden of proving discrimination, it is not required to produce direct evidence of intent. “[I]ndeed, direct evidence of motive or intent is rarely available. As in any equal protection case, evidence concerning the unequal application of law, statistical disparities and other indirect evidence may be used to show bias or discriminatory motive.” Branch Ministries, 970 F. Supp. at 17.

28. “The very rarity of an official act can support a finding of discriminatory intent, although alone it may not necessary be sufficient basis for such a finding.” Branch Ministries, 970 F. Supp. at 17.

29. “In order to establish an equal protection violation, a party must show that similarly situated persons received disparate treatment.” TNS Mills, Inc. v. South Carolina Dep’t of Revenue, 331 S.C. 611, 626, 503 S.E.2d 471, 479 (1998). See also Grant v. South Carolina Coastal Council, 319 S.C. 348, 355, 461 S.E.2d 388, 392 (1995) (“[W]e agree with the circuit court that Grant did not prove the Coastal Council treated him differently from other similarly situated landowners”). The person claiming unfair treatment carries the burden to establish an equal protection violation. See TNS Mills, Inc. v. South Carolina Dep’t of Revenue, 331 S.C. 611, 626, 503 S.E.2d 471, 479 (1998).

30. The facts to be examined when determining whether entities are similarly situated under an equal protection claim are those facts which determine whether an entity is subject to regulation. See Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995) (Grant found to have violated the Coastal Zone Management Act for filling an area within the critical zone after Hurricane Hugo despite claim that neighbors had been permitted to fill areas where evidence showed that neighbors’ properties were not in the critical areas when they conducted filling); Weaver v. S.C. Coastal Council, 309 S.C. 368, 423 S.E.2d 340 (1992) (dock permit application denied because proposed dock would be located in a protected public oyster ground, but equal protection violation found where neighbors were similarly situated because their the docks were already located in the same public oyster ground).

31. Faith Cathedral operates a public water system under the Safe Drinking Water Act. According to the November 5, 2002, sanitary survey by Mr. Wilson, Faith Cathedral’s water system has forty-nine (49) connections and serves approximately eighty-nine (85) people. Faith Cathedral was properly added to the State’s inventory of public water systems in January 2003. Accordingly, this Court finds that Faith Cathedral’s water system is subject to the State Primary Drinking Water Regulations.

32. In addition, this Court finds that based on Mr. Wilson’s sanitary survey and testimony, Faith Cathedral violated numerous provisions of the Drinking Water Regulations regarding the construction of public water system wells. Faith Cathedral failed to seal the outside well casing; install/maintain the check valve and blow-off on the well head piping; install/maintain a flow meter for each well serving its PWS; provide valves for the isolation of tanks to ensure proper operation; and initiate and maintain a viable cross connection control program by failure to locate and eliminate unprotected cross connections.

33. Although Brother Christopher produced photographs at the hearing and testified that all of the violations had been corrected through improvements to the wells, the Department has been unable to verify that the improvements were properly implemented.

34. Faith Cathedral also failed to establish and maintain up-to-date written Standard Operating Procedures for the operation and maintenance of its system. Although the repair log was not introduced into evidence, a log which records repairs after they are made does not constitute Standard Operating Procedures for the operation and maintenance of a public water system.

35. Faith Cathedral failed to designate an operator of appropriate grade as the operator responsible for the operation and maintenance of its distribution system. Although, Brother Christopher testified that Brother Timothy was the point of contact for the system, Brother Timothy had not received any type of training, served as an apprentice to a certified public water system operator, or received any certification as required by 24A S.C. Code Ann. Regs. 61-58(105) and 61-58.7 (E)(1)(b).

36. Faith Cathedral failed to conduct required bacteriological monitoring in February, March, April, and May. These monitoring requirements were not eliminated by the favorable results of the July 1, 2002, tests of the system’s water. The monthly monitoring requirement is an ongoing obligation and is designed to catch water contamination before it becomes a serious problem. Further, Faith Cathedral failed to issue public notification of the failure to conduct monthly bacteriological monitoring and failed to submit a copy of the notification to the Department.

37. After Faith Cathedral’s PWS had been added to the inventory, the Department was required to conduct chemical sampling of the system’s water. See Regulation 61-55.5, Maximum Contaminate Levels in Drinking Water. On June 13, 2003, the Department sent a letter to the Petitioner’s attorney stating that water samples had to be collected for maximum contaminate level testing. The letter advised Faith Cathedral that the Safe Drinking Water Act authorized the Department to enter the premises of a PWS for purposes under the Act. Faith Cathedral did not allow the Department to access to its PWS for the purpose of conducting the required quarterly bacteriological monitoring.

38. Faith Cathedral failed to submit the required annual drinking water fees for its PWS for the 2003 fiscal year.

39. The Department failed to respond in a timely fashion to Faith Cathedral’s Freedom of Information request for information about other allegedly similarly situated facilities in South Carolina. However, the Court finds that as of November 20, 2002, the Department was making efforts to collect the information Faith Cathedral sought. The Department’s Freedom of Information Office acknowledged receipt of the request on February 27, 2003. Department e-mails show that Department staff was still attempting to collect the information in April 2003. Although the Department’s response was delinquent, Faith Cathedral’s proper remedy for the Department’s delinquent response was to seek injunctive relief in the circuit court under the Freedom of Information Act. In addition, the Department’s failure to provide a timely response to Faith Cathedral’s request did not excuse the facility from complying with clearly stated requirements under the applicable statutes and regulations. Ultimately, the effect of the Department’s failure to provide a timely response is now moot because the request was satisfied through the discovery process after the appeal was filed.

40. There is no remedy this Court could grant Faith Cathedral under the drinking water statutes and regulations for an untimely response to a FOIA request. As stated above, the information requested by Faith Cathedral was eventually turned over either through the Freedom of Information Office or through discovery. Faith Cathedral was clearly operating a public water system, and the Department properly added the system to the state’s inventory, thereby triggering all of the applicable requirements. A timely response from the Department would not have changed Faith Cathedral’s status as a public water system and would not have changed the requirements under the safe drinking water statutes and regulations.

41. Faith Cathedral’s argument that a hearing would not have been necessary if the Department had provided a timely response is disingenuous. Faith Cathedral was provided with ample notice of the Department’s intent to regulate its PWS. The notice was provided with detailed information on how to comply with the regulations and contact information if the facility had questions about the requirements. In fact, Brother Christopher testified that Faith Cathedral had a lot of dialogue with Mr. Wilson concerning the requirements for the wells. (Tr. Dec.18, p.80, lines 10-22). Faith Cathedral had plenty of opportunity to either comply with the Department’s regulations or to show that it was willing to comply with the regulations if the equal protection claims proved invalid.

42. Faith Cathedral made improvements to the three wells on its property in February 2003, but failed to allow the Department onto its property to verify the improvements. Faith Cathedral could have either paid the drinking water fees for fiscal year 2003 under protest or paid the fees into an escrow account and notified the Department that the fees would be surrendered if the equal protection allegations proved invalid. Faith Cathedral showed a capacity to conduct bacteriological monitoring in September 2003, yet failed to conduct this monitoring in February, March, April, and May when it was clearly required under the law. The monthly monitoring would have served only as a benefit to the public health of the facility’s residents, and would have served as a benefit to Faith Cathedral’s legal arguments. The only detriment of this monitoring to Faith Cathedral was financial, and Faith Cathedral produced no evidence that it was unable to afford such monitoring. This Court finds that the Freedom of Information Act cannot be used as a shield against compliance with applicable statutes and regulations.

43. In June 2003, the Department gave Faith Cathedral yet another opportunity to comply with the drinking water regulations when it notified the facility that samples needed to be collected from the system and tested. Faith Cathedral could have granted access to the system, allowed the testing, and had the Department verify the improvements made to its wells, while still maintaining that it was being treated unfairly under the equal protection doctrine. Instead of showing a willingness to comply with the regulations, Faith Cathedral refused the Department access to its system and engaged in another violation of the law.

44. Regarding Faith Cathedral’s equal protection claim, this Court finds that the Petitioner failed to carry its burden to show by a preponderance of the evidence that similarly situated facilities received disparate treatment.

St. Claire Monastery and St. Nicholas Monastery are both served by municipal type systems; they are clearly not similarly situated to Faith Cathedral.

St. Mary’s Monastery, Bonnie Doone Plantation, African Village, and Camp Christian are similar to Faith Cathedral in that they are religious in nature. However, Faith Cathedral did not produce evidence regarding the number of connections or residents at these facilities and therefore failed to show that those facilities are similarly situated to Faith Cathedral under the drinking water regulations. Faith Cathedral also failed to produce evidence that these facilities suffered the same type of violations of the drinking water regulations as Faith Cathedral.

45. The Department established that Bonnie Doone Plantation, African Village, and Camp Christian are on the state public drinking water system inventory, so to the extent that they are similar to Faith Cathedral, they received similar treatment through addition to the state inventory.

46. This Court finds that Petitioner failed to establish that St. Mary’s, Bonnie Doone Plantation, African Village, or Camp Christian are similarly situated to Faith Cathedral under the drinking water regulations. Petitioner established no similarities between St. Mary’s and Faith Cathedral beyond their religious nature. To the extent that Bonnie Doone Plantation, African Village, and Camp Christian are similar to Faith Cathedral, the Department established that they had been treated similarly because they are in the state inventory.

ORDER

Based upon the above Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that Administrative Order 03-136-DW is affirmed as to the violations committed by Faith Cathedral.

IT IS FURTHER ORDERED that a civil penalty of $2,500 must be remitted to the Department within 60 days of the date of this Order.

IT IS FURTHER ORDERED that Faith Cathedral pay $2,663.38 in annual drinking water fees and penalties for the 2003 fiscal year and that Faith Cathedral shall pay all annual drinking water fees due up to the date of this order, with no penalties.

All payments required under this Order shall be paid within sixty (60) days of the filed date of this Order.

AND IT IS SO ORDERED.

________________________

Carolyn C. Matthews

Administrative Law Judge

July 12, 2005

Columbia, SC