ORDERS:
FINAL DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to the South Carolina Department of Health and
Environmental Control's, Office of Ocean and Coastal Resource Management ("Department"),
issuance of a $400 fine pursuant to the Petitioner's construction of an unpermitted bulkhead. A
hearing on this matter was held on May 10, 1996 at the Charleston County Judicial Building.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, considering the burden of persuasion by the Parties, I make the following Findings
of Fact by a preponderance of evidence:
1. The Petitioner was the owner of residential Lot 26 on Fiddlers Point Lane in Harbor
Watch Subdivision, Charleston County, South Carolina.
2. On January 10, 1995, the Petitioner met with Curtis Joyner, Permitting Planner for
the Department, concerning constructing a bulkhead. A bulkhead is primarily used to protect the high
ground from erosion that occurs due to the tidal fluctuations in the marsh. The Petitioner proposed
to construct a bulkhead approximately 132 feet long which was 24 feet beyond the marsh critical line.
After he was informed by Mr. Joyner that the Department would not permit a bulkhead greater than
18 feet beyond the marsh critical line, the Petitioner applied for a 132-foot long bulkhead 18 feet
beyond the marsh critical line.
3. The Petitioner's proposed bulkhead permit application was placed on public notice
by the Department on January 12, 1995. Additionally, the Petitioner placed a public notice in the
"Post and Courier" on January 12, 1995, concerning his proposed bulkhead construction.
4. The Department was informed by an anonymous phone call on January 18, 1995, that
the Petitioner had constructed his bulkhead before receiving a permit. That same day the Petitioner
was informed of a potential enforcement action, and the following day Mr. Joyner met the Petitioner
at the construction site. Mr. Joyner's inspection revealed that the Petitioner had indeed constructed
the bulkhead without receiving a permit. However, the Petitioner had constructed the bulkhead in
a permittable location. In fact, the constructed bulkhead is 65 feet in length, with only one-third of
the bulkhead over the critical line. The portion that is over the critical line is within the 18 feet
allowed by the Department.
5. The Department found that the Petitioner intentionally constructed a bulkhead
without permission and issued a $400 fine. The Petitioner asserts that a $100 fine is the proper
penalty.
6. The Petitioner purchased Lot 26 with the intention of building a residential home upon
the property. He had an Italy vacation planned in February 1995. He believed the permit would most
probably be approved after his departure to that country. Before applying for the proposed bulkhead
permit, the Petitioner placed fill dirt upon the property. However, after applying for the permit, the
Petitioner became concerned that the "Spring rains" in the latter part of January would wash some
of the fill dirt into the marsh before he returned from his trip. Therefore, though the Petitioner knew
the Department had not yet approved his permit, he built the bulkhead to avoid creating a future
violation.
7. The Petitioner argues that in a case of a private bulkhead construction in a location
which would be permitted upon the Department's approval, the Department's Permitting
Enforcement Manual ("Enforcement Manual") provides that the fine should be between $100 and
$200. Therefore, the Petitioner contends that the appropriate fine for this "technical violation" is
$100. The Department argued that its Enforcement Manual is simply a guideline for internal use only.
The Department further contends that the intentional nature of this major violation warrants a higher
penalty than those suggested guidelines.
8. The Department prepared an Enforcement Manual dated December 1, 1992 to assist
its staff and educate the public concerning its enforcement policies and procedures. The
Department's Enforcement Manual provides that in cases involving private activities in which the
unauthorized activity could have been permitted exactly as completed, the suggested penalty is $100
to $200 for minor violations and $200 to $400 for major violations. However, those penalty
guidelines are specifically designated as for internal use only.
9. I find that though the Petitioner built the bulkhead under the reasonable belief that he
would obtain a permit to build the bulkhead exactly where it was placed, his knowing construction
of the bulkhead under the above circumstances warrants a $300 fine. Furthermore, the assessed fine
is within the parameters of fines the Department has levied for analogous violations in the past. For
instance, Herbert Leap constructed a boat ramp in the tidelands critical area without seeking a permit.
The Department levied a $400 fine against Mr. Leap on October 26, 1992 for unauthorized
construction that was permitted after the fact.
CONCLUSIONS OF LAW
Based upon the above findings of fact, I conclude as a matter of law the following:
1. The Administrative Law Judge Division has subject matter jurisdiction in this action
pursuant to S.C. Code Ann. §1-23-600 (Supp. 1996).
2. S.C. Code Ann. §48-39-150 (Supp. 1996) authorizes the Administrative Law Judge
Division to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code.
3. The Department is charged with carrying out the State's coastal zone policies and
issuing permits for the construction of structures in coastal zone areas. S.C. Code Ann. § 48-39-30
(B) (1) (Supp. 1996) sets out these specific policies for that construction. The Department also has
permitting authority over the construction of structures in the critical areas of the coastal waters and
tidelands. S. C. Code Regs. 30-10 (A) (1) (1976) and S.C. Code Ann. § 48-39-130 (Supp. 1996).
4. The project in question is located in a critical area pursuant to S.C. Code Ann. §48-39-10 (Supp. 1996); S.C. Code Regs. 30-1(C)(4) and (12) (1976), and Regs. 30-10 (A) (1976).
5. Upon receiving a permit application to build over the critical line the Department
notifies in writing "interested agencies, all adjoining landowners, local government units in which the
land is located and other interested persons" of the nature and extent of the applicant's proposal. S.C.
Code Regs. 30-2 (C) (1976). Those notified have fifteen (15) days to comment upon an application
for "minor development." S.C. Code Regs. 30-2 (E) (1976).
6. S.C. Code Ann. §48-39-210 (B) (Supp. 1996) provides that "[a] critical area
delineation for coastal waters or tidelands established by the department is valid only if the line is
depicted on a survey performed by a professional surveyor, the line is reviewed by department,
department validates the location of the boundaries of the coastal waters or tidelands critical area on
the survey by affixing a stamp and date to the survey. . . ."
7. S.C. Code Ann. §48-39-50 (Supp. 1996) provides the authority for the Department
to promulgate regulations relating to carrying out the provisions of Chapter 39, Title 48 of the 1976
Code.
8. S.C. Code Regs. 30-1 through 30-20 (1976) were promulgated by the Coastal Council
and the Department, as the applicable regulations governing the management, development, and
protection of the coastal zone areas of the state.
9. S.C. Code Ann. § 48-39-170 (C) (Supp. 1996) provides that "[a]ny person who is
determined to be in violation of any provision of this chapter by the department shall be liable for, and
may be assessed by the department for, a civil penalty of not less than one hundred dollars nor more
than one thousand dollars per day of violation."
10. The Department's 1994 Enforcement Manual was disseminated to provide guidance
for the issuance and enforcement of its permits. The Enforcement Manual was not promulgated as
a regulation, and therefore, does not have the force and effect of law. See Captain's Quarters Motor
Inn, Inc. v. South Carolina Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991). Because no
specific regulation governs the boundaries and requirements of an enforcement action applicable to
this particular situation, and because the 1994 Enforcement Manual does not have the force and effect
of law, this tribunal must consider all relevant evidence and materials in deciding the proper penalty
to assess in this case within the above statutory authority of § 48-39-170.
11. The standard of proof in weighing the evidence and making a decision on the merits
at a contested case hearing is a preponderance of the evidence. Nat'l Health Corp. v. S.C.
Department of Health and Environmental Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED, that a fine of $300 is imposed upon the Petitioner.
AND IT IS SO ORDERED.
______________________________________
Ralph King Anderson, III
Administrative Law Judge
April 3, 1997
Columbia, South Carolina |
