South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDHEC vs. Trademark Properties, Inc

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
South Carolina Department of Health and Environmental Control

Respondent:
Trademark Properties, Inc.
 
DOCKET NUMBER:
05-ALJ-07-0120-CC

APPEARANCES:
Evander Whitehead, Esquire
For Petitioner

Bruce A. Berlinsky, Esquire
For Respondent
 

ORDERS:

STATEMENT OF THE CASE

In the above-captioned matter, Respondent Trademark Properties, Inc. (Trademark), requested a contested case hearing before this Court to challenge Administrative Enforcement Order 04C-032B issued against it by Petitioner South Carolina Department of Health and Environmental Control, through its Office of Ocean and Coastal Resource Management (OCRM), on March 2, 2005. In the Order, OCRM determined that Trademark violated the Coastal Zone Management Act by constructing a dock in tideland critical area at property it owned on James Island in Charleston County, South Carolina, without first obtaining a permit for the dock construction. To redress the violation, OCRM ordered Trademark to pay an administrative fine of five hundred dollars, to remove the dock structure in its entirety, and to restore the impacted tideland marsh area to its original condition. Trademark, however, contends that it did not construct a new dock without a permit at the property in question, but rather, simply performed permissible maintenance and repair to an existing dock on the property, such that it should not be subject to enforcement action by OCRM. Trademark further argues that, even if it did commit a violation of the Coastal Zone Management Act, the removal of the dock as ordered by OCRM is an inappropriate remedy, as such removal would cause greater harm to the tideland critical area than permitting the dock structure to remain in place.

After timely notice to the parties,[1] a hearing of this matter was held on August 30, 2005, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the evidence presented by the parties at the hearing and upon the applicable law, I find that OCRM’s enforcement order must be sustained.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. The dock in question in this matter extends into a tidal marsh and creek from the highground of the property located at 1163 East and West Road in the Teal Acres subdivision on James Island in Charleston County, South Carolina, and identified as Tax Map Number 428-01-00-072. At the time the construction work in dispute was performed on the dock, the property was owned by Respondent Trademark Properties, Inc.

2. While the testimony regarding prior docks at the location was somewhat uncertain, it is clear that the property has a long history of having had a dock and that a dock of some sort had been constructed at the location prior to 1977. In particular, it appears that a dock in some form or another has been located on the property since at least the 1950s, and perhaps since as early as the 1930s. However, the dock at the location was essentially destroyed by Hurricane Hugo in 1989 and remained in disrepair until the recent construction work by Trademark. See Hr’g Tr. at 58-59 (testimony of a neighboring property owner, Dr. Robert Welch, Jr.)

3. Specifically, prior to Trademark’s construction work, the “dock” at the location consisted of approximately four weathered pilings scattered in the tidal marsh adjacent to the property. See Hr’g Tr. at 37, 43 (testimony of OCRM employee, Steve Brooks, who observed the pilings on aerial photography of the site); Hr’g Tr. at 57-59 (testimony of Dr. Welch, who testified that, after Hurricane Hugo, the dock on the property was reduced to a few pilings and remained in that condition until Trademark’s construction work); OCRM Ex. #8 (photograph taken by Dr. Welch prior to Trademark’s construction depicting the four pilings that remained of the prior dock at the location). In short, during the fifteen years between Hurricane Hugo and Trademark’s construction work on the property, there was no intact, functional dock at the location, but rather only a few remnants of the prior dock that had historically been located on the property.

4. In late September and October 2004, Trademark built a new dock at the location. While this dock was located at roughly the same site as the prior dock on the property, Trademark installed at least a dozen new pilings, entirely new bracing, and entirely new decking in constructing the new dock. See OCRM Ex. #3, #4, #6 (photographs of the new dock under construction taken by Mr. Brooks during his site visit to the property). This construction also resulted in significant disturbance to the marshland into which the dock was constructed. See OCRM Ex. #3, #6; Hr’g Tr. at 45-46 (testimony of an OCRM employee, Fred Mallet, regarding his observations of the new dock and its construction during his site visit to the property).[2]

5. Trademark did not seek or receive a permit or other permission from OCRM for the reconstruction of the dock prior to commencing its construction work, and has not, at any time since, obtained a permit or other authorization from OCRM for the construction of the dock in question.

6. On March 2, 2005, OCRM issued Administrative Enforcement Order 04C-032B against Trademark for the construction of the dock on the property. See OCRM Ex. #1. In the Enforcement Order, OCRM found that Trademark had violated the Coastal Zone Management Act by constructing a dock in “tidelands critical area” without a permit to do so. As penalty for and remedy to the violation, OCRM ordered Trademark to pay an administrative fine of $500, to remove the dock structure from the tideland critical area, and to restore the impacted marsh area to its “original contours and conditions.” Id.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

Jurisdiction and Burden of Proof

1. This Court has jurisdiction over this matter pursuant to 23A S.C. Code Ann. Regs. 30-8(F) (Supp. 2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. §§ 1-23-310 et seq. (2005).

2. As the moving party in this enforcement action, OCRM bears of the burden of proving, by a preponderance of the evidence, that Trademark committed a violation of the Coastal Zone Management Act and that the penalty it seeks is an appropriate remedy for the violation. See ALC Rule 29(B) (“In matters involving the assessment of civil penalties, the imposition of sanctions, or the enforcement of administrative orders, the agency shall have the burden of proof.”); 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).

The Permitting Requirements of the Coastal Zone Management Act and their Enforcement

3. The Coastal Zone Management Act provides that “no person shall fill, remove, dredge, drain or erect any structure on or in any way alter the critical area without first obtaining a permit from [OCRM].” S.C. Code Ann. § 48-39-130(C) (Supp. 2004) (emphasis added); see also S.C. Code Ann. § 48-39-10(J)(2) (Supp. 2004) (defining “critical area” to include “tidelands”); 23A S.C. Code Ann. Regs. 30-1(49) (Supp. 2004) (defining “tidelands” as “all areas which are at or below mean high tide and coastal wetlands, mudflats, and similar areas that are contiguous or adjacent to coastal waters and are an integral part of the estuarine systems involved”). The Act also generally requires a person to obtain a permit prior to using a critical area for any purpose other than what the critical area was being used for on July 1, 1977. S.C. Code Ann. § 48-39-130(A) (Supp. 2004).

4. However, as implied above, structures constructed in critical area prior to July 1, 1977, are grandfathered into the Act and may be utilized as they were being used prior to 1977 without the need for a permit from OCRM. § 48-39-130(A). The Act further provides that a permit is not required to conduct “[n]ormal maintenance or repair to any pier or walkway provided that such maintenance or repair does not involve dredge or fill,” regardless of whether the dock is permitted by OCRM or grandfathered into the Act. S.C. Code Ann. § 48-39-130(D)(8) (Supp. 2004). OCRM regulations further specify what constitutes “normal maintenance or repair” for which a permit is not required:

Normal maintenance and repair applies only to work on a structure which has been previously permitted or is grandfathered or exempted and is still generally intact and functional in its present condition. The work may only extend to the original dimensions of the structure, and any expansion, additions, or major rebuilding will require either a[n] [OCRM] permit or documentation to and written approval from [OCRM].

 

23A S.C. Code Ann. Regs. 30-5(D) (Supp. 2004) (emphasis added).

5. If OCRM determines that a person has violated the provisions of the Coastal Zone Management Act, for example, by constructing a dock in the critical area without a permit, OCRM is authorized to issue an administrative enforcement order that requires the person in violation to pay a civil penalty of up to one thousand dollars for each day of the violation, to comply with the applicable regulations, standards, and requirements found in or promulgated pursuant to the Act, and to restore the critical area disturbed by the violative activity “when deemed environmentally appropriate.” S.C. Code Ann. § 48-39-170(C) (Supp. 2004); see also 23A S.C. Code Ann. Regs. 30-8(D), (F) (Supp. 2004).

The Instant Enforcement Matter

6. Based upon the standards set forth above, I find that OCRM correctly determined that Trademark violated the Coastal Zone Management Act by constructing a dock in the critical area without a permit. In simple terms, Trademark erected a structure in the critical area without first obtaining a permit or other permission from OCRM. And, Trademark is not saved by the permitting exception for “normal maintenance or repair.” While it appears that there may have been a dock on the property in question that was constructed prior to 1977 and grandfathered into the Act, that dock was destroyed by Hurricane Hugo in 1989, and was not, by any definition, “generally intact and functional” at the time Trademark began rebuilding the dock. Therefore, although Trademark tied the construction of its new dock into the four remnant pilings from the original dock, Trademark’s construction work cannot credibly be considered “normal maintenance and repair” of an existing dock, so as to be exempted from the standard permitting requirements of the Act. Rather, Trademark constructed a new dock at the location, albeit a dock that may be similar in size and location to a prior dock that had existed at the site. By constructing a new dock in the critical area without obtaining a permit from OCRM to do so, Trademark violated the basic permitting requirements of the Coastal Zone Management Act.

7. Further, I find that the remedies and penalties imposed by OCRM in its administrative enforcement order are appropriate and should be sustained. The five-hundred-dollar fine is a modest penalty, in light of possible fines reaching one thousand dollars for each day of the violation, and the requirement that the illegally constructed dock be removed and the marsh area surrounding the dock be restored is the most direct, and most effective, method of remedying the violation, particularly where it is not readily apparent that the location would otherwise be suitable for the construction of such a dock under current permitting regulations. However, as the removal of the dock will cause significant disturbance to the surrounding marsh, it is important to ensure that such action is not undertaken unnecessarily. Therefore, the portion of the enforcement order requiring the removal of the dock will be stayed for ninety days from the date of this Order to allow for any appeals of this decision or for OCRM to carefully consider an application for an after-the-fact permit for the dock.

ORDER

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

IT IS HEREBY ORDERED that the terms of OCRM’s Administrative Enforcement Order 04C-032B, issued against Respondent Trademark Properties, Inc., on March 2, 2005, are SUSTAINED. However,

IT IS FURTHER ORDERED that the portion of the enforcement order requiring the removal of the dock structure and the restoration of the impacted marsh area is STAYED for ninety (90) days from the date of this Order pursuant to ALC Rule 29(E).

AND IT IS SO ORDERED.

 

______________________________

JOHN D. GEATHERS

Administrative Law Judge

1205 Pendleton Street, Suite 224

Columbia, South Carolina 29201-3731

 

November 14, 2005

Columbia, South Carolina

 



[1] On June 2, 2005, two neighboring property owners, Robert Welch and Robert Welch, Jr., moved for leave to intervene in this enforcement matter in support of OCRM’s Administrative Enforcement Order. By an Order issued on July 27, 2005, this Court denied the motion to intervene, but allowed the proposed intervenors to file an amicus curiae brief in support of their position. The proposed intervenors filed such a brief on August 15, 2005.

[2] At the hearing of this matter, OCRM also sought to introduce into evidence an episode of the documentary/reality program, Flip This House, which is produced by the A&E cable network and which features the renovation work of Respondent Trademark Properties. The episode in question depicted Trademark’s renovation work on the house located on the property, including its construction of the dock in question. However, as the episode was not authenticated by a competent witness that could testify that the television program is a full and accurate representation of what it purports to show, the DVD containing the episode was properly excluded from the evidentiary record in this matter. See Rule 901, SCRE (setting forth the general requirement that evidence be authenticated by “evidence sufficient to support a finding that the matter in question is what its proponent claims”); see also, e.g., People ex rel. Sherman v. Cryns, 786 N.E.2d 139, 153-54 (Ill. 2003) (holding that a videotape may be admitted into evidence if authenticated “by someone having personal knowledge of the filmed object, that the film is an accurate portrayal of what it purports to show”); People v. Patterson, 710 N.E.2d 665, 668 (N.Y. 1999) (holding that a videotape “may be authenticated by the testimony of a witness to the recorded events or of an operator or installer or maintainer of the equipment that the videotape accurately represents the subject matter depicted”); State v. Mewborn, 507 S.E.2d 906, 909 (N.C. Ct. App. 1998) (holding that a videotape may admitted into evidence if authenticated by, among other things, “testimony that the videotape had not been edited, and that the picture fairly and accurately recorded the actual appearance of the area ‘photographed’”). Such authentication concerns are particularly salient with regard to reality television programs, in which the filmed events are heavily edited to create storylines, participants are coached by producers to enhance their “performances,” and events are often recreated if they are not initially captured by the cameras. Nevertheless, in the case at hand, OCRM need not have produced the A&E camera crew to authenticate the DVD, but could have called any of the persons depicted in the episode, including the president of Respondent Trademark Properties, to testify that the program accurately represents the events it purports to show. See, e.g., Carroll v. Preston Trucking Co., 812 N.E.2d 431, 435 (Ill. App. Ct. 2004) (holding that, in order to authenticate a videotape, “[t]he cameraman is not necessary where a foundation can be laid by another competent witness who has sufficient knowledge to testify that the videotape fully represents what it purports to show”).


Brown Bldg.

 

 

 

 

 

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