ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is currently pending before the South Carolina Administrative Law Judge Division. The Petitioner, Concerned Boaters, is
a non-profit organization that contests the South Carolina Department of Health and Environmental Control, Office of Ocean and
Coastal Resource Management's (OCRM) granting of a request for a permit modification by the City Marina Company (Marina) for
permit P/N# 97-1B-213-P. A hearing in this matter was held August 15, 2000 at 10:00 a.m. at the Charleston County Judicial Center,
2144 Melbourne Avenue, North Charleston, South Carolina. For the reasons outlined below, I affirm OCRM's issuance of the
modification for permit P/N# 97-1B-213-P.
FACTUAL BACKGROUND
The City Marina Company operates the City Marina off Lockwood Boulevard in the Ashley River in Charleston, South Carolina. In
1997, the Marina applied for a permit to establish two mooring fields adjacent to the Marina. The Petitioner, Concerned Boaters, filed
a petition for a contested case requesting review of the issuance of the permit. Administrative Law Judge Allison Renee Lee heard the
case and affirmed the issuance of the permit. (1) After learning that the helical anchors originally proposed were not feasible due to the
conditions of the Ashley River bottom, the City Marina Company applied to OCRM to modify the permit to provide for a concrete
anchorage system. This modification was granted by OCRM on March 7, 2000. On April 24, 2000, Arthur Hogan, on behalf of
Concerned Boaters, filed a request for a contested case hearing, alleging that the permit modification was issued "without publication
or notification of parties to the hearing on the original permit" and that OCRM had been "capricious" in issuing the permit
modification.
ANALYSIS
Concerned Boaters essentially argues that OCRM failed to follow its procedures properly in granting the amendment to the permit
because there was no publication of the request to amend the permit nor any notice to interested parties. Concerned Boaters also
maintains that Judge Lee's Finding of Fact concerning the anchorage system in her earlier order granting the permit should not be
disturbed. (2)
OCRM Reg. 30-4 (H) provides: "Amendment to a Permit: An amendment to a permit can be made without the requirements of a new
permit only if the proposed change or amendment does not increase the scope of the permitted project or change the use of the
permitted project" (emphasis added). In this case, the Marina argues that the change in achorage system was merely a logistical
change based on newly discovered conditions of the river bottom. The Marina argues that the new system is significantly safer than
the system originally contemplated. In this case, no evidence was produced to show that the permit modification increased the scope or changed the use of the original permit. Although notice and publication would be necessary if the permit were new, neither
publication nor notice was required for the permit modification. OCRM did not fail to follow its procedures concerning amendment to
a permit.
The Petitioner also asserts that Judge Lee's Order should be res judicata on the issue of the anchorage system because of Judge Lee's
Finding of Fact number 14, which provided: "The project will utilize a helical screw anchor which employs a screw in steel pipe
embedded in the river bottom. The helix screw is best able to withstand forces of a hurricane."
The doctrine of res judicata is based upon the well-established rule that the public interest is served by having an end to litigation and
that no one should be sued twice for the same cause of action. First National Bank of Greenville v. U.S. Fidelity & Guaranty Co., 207
S.C. 15, 35 S.E.2d 47 (1945). It prevents the parties from relitigating in a second action any issue actually litigated or that might have
been litigated in the first action so long as the first and second actions are between the identical parties and the first action culminated
in a final judgment. Griggs v. Griggs, 214 S.C. 177, 51 S.E.2d 622 (1949). Administrative res judicata is comparable to the doctrine
of judicial res judicata and precludes not only the relitigation of the same issues in an administrative hearing but also in a subsequent
judicial proceeding. 5 Jacob A. Stein, Glenn A. Mitchell & Basil J. Mezines, Administrative Law § 40.01 (Supp. 1996); see also Earls
v. Aycock, 276 S.C. 471, 279 S.E.2d 614 (1981) (holding that the mere fact an administrative agency rather than a judicial body
rendered the previous decision does not prevent the application of res judicata).
In order for the doctrine of res judicata to apply, there must exist: (1) a prior action; (2) resulting in a final judgment on the merits; (3)
with both actions between the identical parties or their privies. If these three elements exist, the subsequent action cannot relitigate any
issues that were or might have been litigated in the previous action. Barry v. South Carolina Department of Health and Environmental
Control, No. 96-ALJ-07-0294-CC, 1997 WL 435937 (S.C. ALJD Jan. 31, 1997). Similarly, under the doctrine of collateral estoppel,
a showing must be made that the issue sought to be precluded in a subsequent action was an issue actually litigated and directly
determined in the prior action. Beall v. Doe, 281 S.C. 363, 315 S.E.2d 186 (Ct. App. 1984). The doctrine of res judicata and
collateral estoppel are, to an extent, interchangeable.
The first prong of the res judicata test, the existence of a prior action, is satisfied in this case. The parties appeared before this Court
and participated in a hearing in which the Petitioner challenged OCRM's issuance of the original permit to construct the mooring
fields. The third portion of the res judicata test sets forth that both actions must be between identical parties or their privies. In this
case, the parties from the previous action and this action are identical.
A closer examination must be made as to the second prong of the res judicata test. The Petitioner argues that the Finding of Fact
concerning the anchorage system is a final determination on that issue. This Court recognizes that Judge Lee's Order was a final
decision on the issue of whether or not OCRM should have granted the original permit. Judge Lee did not, however, specifically rule
that the helical screw anchor system must be used; it was a Finding of Fact she made based on the information presented at that
hearing. Judge Lee's final decision was that OCRM correctly granted the permit. The propriety of the anchor system was not at issue
in the previous hearing. It is clear from the evidence introduced at the previous trial that the original permit application did not include
final design specifications, and that the ultimate decision with respect to an achoring system would be based on the substrate condition
of the Ashley River. That contested case focused on whether OCRM's decision to grant the permit was "arbitrary, capricious, or in
violation of Petitioner's due process rights." (3)
If, however, Judge Lee's prior ruling did serve as res judicata to this action, it is a widely accepted principle within the rules of res
judicata and collateral estoppel that the discovery of new relevant conditions, facts, or evidence can affect prior judgments. In this
matter, the Respondents learned of the conditions on the bottom of the Ashley River only after beginning construction under the
validly granted permit. At that point, in the interest of safety, the Marina requested the permit modification. This is clearly new
evidence that Judge Lee would have considered at the earlier hearing if the anchor system had been a contested issue. Neither the
principles of res judicata nor collateral estoppel operate to prevent this modification.
FINDINGS OF FACT
I make the following Findings of Fact, taking into account the burden on the parties to establish their respective cases by a
preponderance of the evidence and taking into consideration the credibility of the witnesses:
1. All parties to this action were notified of the time, place, and subject matter of the hearing.
2. The City Marina Company operates the City Marina, located in the Ashley River in Charleston County, South Carolina.
3. Concerned Boaters is a non-profit organization established to protect the interests of boaters in South Carolina.
4. OCRM granted the Marina's request for a permit to construct two mooring fields in 1997.
5. After the Petitioner requested a contested case hearing, Administrative Law Judge Allison Renee Lee upheld the issuance of the
permit.
6. The bottom of the Ashley River where the Marina intends to contruct these mooring fields is softer than anticipated when the permit
was originally granted, and the manufacturers of the helical screw system could not guarantee its stability under those conditions.
7. The reinforced concrete anchors are better suited to the conditions on the river bottom than the helical structure originally proposed.
8. A change in the anchoring system is not an increase in either the scope or the use of the project.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law:
1. The South Carolina Administrative Law Judge Division has jurisdiction over this contested case matter pursuant to S.C. Code Ann.
§ 1-23-310 (Supp. 1999), et seq and § 48-39-10 (Supp. 1999) et seq.
2. In a contested case hearing, "the ALJ is not sitting in an appellate capacity and is not restricted to a review of the decision below.
Instead, the proceeding before the ALJ is in the nature of a de novo hearing." Reliance Ins. Co., v. Smith, 327 S.C. 528. 489 S.E.2d
674, 677 (Ct. App. 1997).
3. The arbitrary and capricious standard serves as an appellate standard of review and does not apply in a contested case proceeding. See S.C. Code Ann. § 1-23-610(D)(f) (Supp. 1999); Deese v. South Carolina State Board of Dentistry, 286 S.C. 182, 184, 332 S.E.2d
539 (Ct. App. 1985).
4. In a decision to grant a modification to a permit, OCRM's only discretion is in determining whether the modification increases the
scope or the use of the project under OCRM Reg. 30-4(H). OCRM did not abuse its discretion in determining that that the public
notice requirements were not necessary because the modification did not increase the size or scope of the project. 5. The principles of res judicata and collateral estoppel do not operate to bar the modification of the permit because the issue of the type of anchorage
system was not litigated at the prior hearing and the newly discovered condition of the Ashley River bottom would allow for the
modification.
6. "Procedural due process imposes contraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests
within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Matthews v. Eldridge, 424 U.S. 319, 332
(1976), quoted in Anonymous (M-156-90) v. State Bd. Of Medical Examiners, 323 S.C. 260, 265, 473 S.E.2d 870, 872 (Ct. App.
1996), rev'd on other grounds, 329 S.C. 371, 496 S.E.2d 17 (1998).
7. The amending of the permit does not infringe upon any liberty or property interest of the Petitioner; therefore, its provedural due
process rights are not affected.
8. OCRM complied with the statutory and regulatory requirements in amending permit No. 97-1B-213-P on March 7, 2000.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED that OCRM's grant of the Marina's request for a permit modification is AFFIRMED.
AND IT IS SO ORDERED.
____________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
August 31, 2000
Columbia, South Carolina
1. 97-ALJ-07-0696-CC (J. Lee, Filed February 17, 1999).
2. The essence of the Petitioner's complaint against OCRM seems to be disagreement with the initial granting of the permit.
Concerned Boaters makes essentially the same arguments against the modification that it made at the earlier hearing concerning the
issuance of the permit.
3. 97-ALJ-07-0696-CC at p. 4. |