ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before this tribunal pursuant to S.C. Code Ann. § 48-39-150 (Supp. 2002), 23A
S.C. Code Ann. Regs. 30-6 (Supp. 2002), and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp.
2002). Petitioners Charles and Jeanne Aimar (Petitioners) challenge the decision of Respondent
South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal
Resource Management (OCRM), to issue a permit to Respondents Tom and Reid Davis
(Respondents) for the construction of a private recreational dock on a tributary to the Beaufort River
at 317 Bayard Street in Beaufort, South Carolina. In particular, Petitioners contend that the permit
should be revoked because of OCRM’s failure to hold a public hearing on the proposed permit prior
to its issuance.
After timely notice to the parties, a hearing of this case was held on August 28, 2003, at the
Administrative Law Judge Division in Columbia, South Carolina. Eight days prior to the hearing, on
August 20, 2003, Respondents, joined by OCRM, filed a Motion for Summary Judgment, arguing
that, based upon the undisputed facts of this matter, Petitioners are not entitled to the relief they
request. At the hearing of this case, the Motion for Summary Judgment was denied as untimely,
having been filed less than ten days prior to the hearing. However, at the close of Petitioners’ case,
Respondents, again joined by OCRM, moved for an involuntary nonsuit against Petitioners. For the
reasons set forth below, this motion is granted and this matter is dismissed with prejudice.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing
of this case, 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.In September 2002, Respondents Tom and Reid Davis submitted an application to
OCRM for the construction of a private recreational dock on a tributary of the Beaufort River at 317
Bayard Street in Beaufort, South Carolina.
2.While the permit application was being considered by OCRM, Petitioners Charles and
Jeanne Aimar, who own property neighboring the proposed site of the dock, were notified and
provided a copy of the permit application. In response to the permit application, Petitioners sent a
letter to OCRM expressing their concerns with the proposed dock, suggesting modifications to the
dock to alleviate those concerns, and requesting a public hearing on the permit application.
3.Petitioners’ letter was received by OCRM’s Beaufort Office on October 10, 2002.
This letter was the only request for a public hearing received by OCRM regarding Respondents’
proposed dock permit.
4.On October 29, 2002, OCRM issued Permit Number OCRM-02-1006 to Respondents
for the construction of the dock as set forth in the permit application. OCRM did not conduct a
public hearing prior to issuing the permit.
5.On November 15, 2002, Petitioners requested a contested case before the
Administrative Law Judge Division to challenge OCRM’s decision to grant Respondents’ permit.
The sole ground raised by Petitioners in objection to the permit is OCRM’s failure to conduct a public
hearing on the permit in response to Petitioners’ written request for a hearing.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
At the close of Petitioners’ case, Respondents, joined by OCRM, moved for a dismissal of this
matter on the ground that, under the undisputed facts as presented by Petitioners at the hearing,
Petitioners have shown no right to relief under the law. Specifically, Respondents and OCRM
contend that the relevant statutes and regulations plainly granted OCRM discretion over whether to
hold a public hearing on Respondents’ application, and that OCRM did not abuse its discretion in
deciding not to conduct such a public hearing in response to Petitioners’ request. This motion for
a nonsuit is hereby granted.
The Rules of Procedure for the Administrative Law Judge Division (ALJD) do not address
the procedure for dismissing a matter at the close of a petitioner’s case-in-chief. However, ALJD
Rule 68 allows the South Carolina Rules of Civil Procedure to be applied, where practicable, in
proceedings before the Division to resolve questions not addressed by the ALJD Rules. Here, Rule
41(b) of the South Carolina Rules of Civil Procedure provides guidance on how to resolve a motion
for an involuntary nonsuit; it states:
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 judgement
against the plaintiff or may decline to render any judgement until the close of all the
evidence.
Rule 41(b), SCRCP; see also Johnson v. J.P. Stevens & Co., 308 S.C. 116, 118, 417 S.E.2d 527, 529
(1992) (“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.”). Based upon the
undisputed facts in this matter and upon the applicable law, I find that Petitioners have shown no right
to the relief they request.
The sole ground alleged by Petitioners in this matter for the rejection of Respondents’ permit
is OCRM’s failure to hold a public hearing on the permit application. See Pet’r Mem. of Law Filed
in Opp’n to Resp’t Mot. for Summ. J. at 2 (“The Petitioners’ appeal is based on OCRM’s failure to
hold a public hearing wherein the concerns of the adjacent property owner could be included in the
permitting process.”); see also Pet’r Resp. to Order for Prehearing Statements ¶¶ 4, 6. Petitioners
argue that OCRM was required both by statute and by the South Carolina Constitution to hold a
public hearing on Respondents’ permit application. This argument must fail.
Petitioners are correct that OCRM was required to consider their objections to Respondents’
permit application before issuing the permit in question. S.C. Code Ann. § 48-39-140(C) (Supp.
2002) mandates that OCRM notify “interested agencies, all adjoining landowners, local governments
in which the land is located and other interested persons” of a recently filed permit application and
provides “all interested agencies, all adjoining landowners, local government units and other
interested persons” with an opportunity to file written comments on a permit application. Further,
S.C. Code Ann. § 48-39-150(A)(10) (Supp. 2002) specifically lists “[t]he extent to which the
proposed use could affect the value and enjoyment of adjacent owners” as a general consideration
for evaluating all permit applications, and S.C. Code Ann. § 48-39-150(B) (Supp. 2002) provides that
OCRM must “consider[] the views of interested agencies, local governments and persons” before
issuing a permit to an applicant.
However, Petitioners are incorrect when they argue that these provisions require OCRM to
hold a public hearing on a permit application in response to a single request for such a hearing.
Rather, the applicable statutory and regulatory provisions clearly grant OCRM broad discretion in
determining whether to hold a public hearing when fewer than twenty requests for a hearing have
been received. Section 48-39-140(C), the same section providing interested parties with the
opportunity to file written comments, plainly states that “[t]he department [i.e., OCRM] may hold
a public hearing on applications which have any effect on the critical area if it deems a hearing
necessary.” Id. (emphasis added). Further, Section 48-39-150(B), the same section requiring OCRM
to consider the views of interested parties before issuing a permit, clearly provides that it is only “[a]t
the request of twenty citizens or residents of the county or counties affected” that OCRM is required
to hold a public hearing. Id. (“At the request of twenty citizens or residents of the county or counties
affected, the department [i.e., OCRM] shall hold a public hearing on any application which has an
effect on a critical area, prior to issuing a permit.”) (emphasis added). Moreover, the relevant
regulation regarding public hearings on permit applications reiterates OCRM’s discretion in deciding
whether to hold a public hearing on a permit application where fewer than twenty requests have been
submitted. See 23A S.C. Code Ann. Regs. 30-3 (Supp. 2002) (“Section 48-39-140(C) directs the
Department to hold public hearings on permit applications if it is deemed necessary. Section 48-39-150(B) requires the Department to convene a public hearing before acting on an application if twenty
or more citizens or residents of the affected county or counties request such a hearing.”).
Here, Petitioners were notified of Respondents’ permit application and were given–and
took–the opportunity to file a written comment on the application. However, as Petitioners’ request
for a public hearing was the only such request received by OCRM regarding Respondents’
application, OCRM exercised the discretion afforded it by statute and regulation and elected not to
hold a public hearing on the application. Further, there is no evidence in the record to suggest that
OCRM did not fully consider Petitioners’ written objections before issuing Respondent’s permit or
that OCRM abused its discretion in deciding not to hold a public hearing in response to Petitioners’
sole request.
Secondarily, Petitioners argue that, under federal and state constitutional guarantees of due
process and Article I, Section 22 of the South Carolina Constitution, OCRM was required to hold
a public hearing during which Petitioners’ objections could be heard, and that OCRM’s failure to hold
such a hearing violated their due process rights. This argument is based upon a misconstruction of
the current administrative process and cannot be sustained.
While Petitioners are correct that due process generally entitles parties like Petitioners to
notice and an opportunity to be heard during the administrative decision-making process, see, e.g.,
Stono River Envtl. Prot. Ass’n v. S.C. Dep’t of Health & Envtl. Control, 305 S.C. 90, 406 S.E.2d
340 (1991), they incorrectly posit that their opportunity to be heard must occur at a public hearing
before OCRM. Rather, under the present administrative scheme, Petitioners’ opportunity to be heard
regarding Respondents’ permit, as required by due process, came not in the preliminary agency
proceedings before OCRM, but in the contested case proceeding before the Administrative Law
Judge Division. See S.C. Code Ann. § 1-23-600(B) (Supp. 2002).
However, in the proceedings
before this tribunal, Petitioners did not challenge the merits of Respondents’ permit, but instead raised
the sole objection that OCRM failed to hold a public hearing on the permit application. And, as noted
above, this contention must fail. Therefore, while Petitioners were given an opportunity to raise
whatever objections they had to Respondents’ permit in an adjudicatory hearing before this tribunal,
they failed to raise any objections to the permit save a single procedural objection to OCRM’s
permitting process that is without merit.
In sum, based upon the undisputed facts and applicable law in this matter, I conclude that
OCRM was not required to hold a public hearing on Respondents’ permit in response to Petitioners’
request and that Respondents’ permit should not be rejected on that basis. In short, I find that
Petitioners have shown no right to the relief they request. Therefore,
IT IS HEREBY ORDERED that Respondents’ and OCRM’s motion for an involuntary
nonsuit against Petitioners is GRANTED and this matter is DISMISSED with prejudice.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
September 4, 2003
Columbia, South Carolina |
