ORDERS:
AMENDED ORDER
I. Statement of the Case
On August 25, 1995, the South Carolina Department of Natural Resources (DNR) revoked the
Certificate of Registration, Certificate of Title, and Hull Identification number of a structure
owned by A. E. Barrow, Jr. (Barrow). Barrow objected and sought a contested case hearing
before the Administrative Law Judge Division (ALJD). The South Carolina Department of
Health and Environmental Control - Office of Ocean and Coastal Resource Management (OCRM)
moved to intervene on the basis of its enforcement authority. The intervention was granted
November 28, 1995. Contested case jurisdiction vests in the ALJD due to DNR's revocation of
Barrow's certificate of title and OCRM's enforcement action seeking to have Barrow's structure
removed as an unpermitted floating dock. See S.C. Code Ann. § 50-23-210 (Supp. 1995), S.C.
Code Regs. 30-8(F)(4)(Supp. 1995) and S.C. Code Ann. § 1-23-600(B)(Supp. 1995).
After weighing the evidence and considering the law, the revocation sought by DNR must be
denied. The structure under review is also subject to the permitting process of OCRM and must
be removed as an unpermitted structure. Any issues raised in the proceedings or hearing of this
case but not addressed in this Order are deemed denied. Further, the filing of a motion for
reconsideration is not a prerequisite to any party filing a notice of appeal of this Order.
II. Issues
1. Is the revocation by DNR and the enforcement activity of OCRM invalid due to the two year
limitation statute of S.C. Code Ann. § 15-3-550 (Supp. 1995)?
2. Is the enforcement activity by OCRM invalid as an ex post facto action?
3. Is the structure owned by Barrow a watercraft and a vessel required to be registered,
numbered, and titled with DNR?
4. Is the structure owned by Barrow subject to the permitting jurisdiction of OCRM and, if so, is
the structure in its unpermitted state subject to removal?
III. Analysis
A. Statute Of Limitations
1. Positions of Parties:
Barrow asserts DNR's revocation and OCRM's enforcement are beyond the two year statute of
limitations of § 15-3-550 since the registration of the structure as a raft occurred in 1991 and the
approval by OCRM occurred in May of 1993. DNR and OCRM argue no statute of limitations
on registration or enforcement applies and thus their actions are proper.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. On December 20, 1988, OCRM issued a permit to Barrow for a dock at Lot 88, Block "A",
Hidden Cove subdivision in Mt. Pleasant, S.C.
2. The permit carried a restriction that the fixed pier dock and any floating dock could not exceed
a combined total of 120 square feet.
3. The restricted permit was accepted by Barrow on December 20, 1988.
4. In September of 1989, the force of Hurricane Hugo removed at least two pieces of a floating
dock from a marina and caused the removed portions to become lodged in the marshes of
Hobcaw Creek.
5. In April of 1991, Barrow constructed a dock with a 120 square foot fixed pier and no floating
dock.
6. In November of 1991, Barrow salvaged two abandoned pieces of floating dock from Hobcaw
Creek and refurbished the larger of the two structures (large structure) by placing additional
floatation material under the structure.
7. In mid-November of 1991, Barrow filed an application with DNR for a title, registration, and
hull I.D. number seeking to register and title the large structure as a raft.
8. On December 12, 1991, an investigator for DNR inspected the large structure and determined
the structure was a "boat [that] is homemade as stated on the application and therefore should be
assigned a registration number and issued a hull identification number."
9. The large structure is approximately 30 feet long and six feet wide.
10. By mid to late December of 1991, DNR issued to Barrow a certificate of title, registration,
and hull I.D. number for the large structure as a watercraft and a vessel.
11. After registration and titling, Barrow secured the large structure to the fixed pier by ropes
while the smaller structure was sometimes in the creek and sometimes not.
12. On March 25, 1993, by means of aerial observation, OCRM identified two floating docks
attached to Barrow's fixed pier and began an enforcement action against Barrow seeking to have
the two unauthorized floating docks removed.
13. Between March 25, 1993 and April 5, 1993, an OCRM investigator visited Barrow and
inspected the two floating structures.
14. Subsequent to April 5, 1993, Barrow provided to OCRM proof that the large structure was
titled and registered with DNR as a raft and that the smaller structure would be removed.
15. On May 10, 1993, OCRM advised Barrow that the "agency is continuing to investigate this
matter and is in the process of determining whether any further action will be taken" and further
that the agency "should reach a decision within the next sixty days."
16. By August 23, 1994, an employee of OCRM contacted the staff of DNR by letter to express
OCRM's view that DNR had in the past registered "floating docks as boats" with the owner
asserting the registered structure was not subject to OCRM permitting requirements. The letter
asked DNR to "look into this and let [OCRM] know if there is a solution to this problem."
17. Prior to May 10, 1995, an employee of OCRM contacted Major Alvin A. Taylor of DNR by
letter and requested that Major Taylor conduct an investigation to determine if "three dock
structures" should have their registration and titles revoked with one of the structures being that
owned by Barrow.
18. On May 10, 1995, DNR Investigator Gary R. Sullivan visited the large structure.
19. In a written report submitted shortly after the inspection, the investigator expressed his
opinion that the structure "could be used as transportation on the water if a motor was (sic) on
it."
20. During late May and early June 1995, an attorney for DNR reviewed the investigator's report
along with pictures of the structure.
21. In July 1995, Investigation Sullivan, after further study, changed his original report and
opinion to state "this structure is not being used as a boat but as a dock."
22. On August 2, 1995, an attorney for DNR issued a memorandum opinion to Investigator
Sullivan in which the attorney opined that once an application is granted "[i]f a subsequent check
reveals the structure is being used on a consistent basis for purposes other than transportation, the
registration should be revoked."
23. On August 25, 1995, Investigator Sullivan issued a revocation to Barrow upon DNR's
determination "that the homemade watercraft is being used as a dock."3. Discussion
The enforcement proceedings of OCRM and the revocation steps of DNR are not barred by the
statute of limitations of § 15-3-550. Section 15-3-550 holds that the period for the
commencement of an action is two years where the action is based upon a statute that produces a
forfeiture or penalty to the State. The burden of proving the statute of limitations is upon the
party who asserts it. Hemingway v. Shull, 286 F. Supp. 243 (D. S.C. 1968). Accordingly,
Barrow must show the matter is an action and that the action is upon a statute imposing a
forfeiture or a penalty.
A statute of limitations on actions is generally inapplicable to administrative proceedings. 54
C.J.S. Limitations of Actions § 77(a) (1987). In all instances, however, the applicability of a
limitation must be based upon the specific statute imposing the limitation (since an administrative
proceeding is neither a suit nor a prosecution, a deportation proceeding instituted by the
Department of Labor eight years after the objectionable event was not subject to the general
statute of limitations since the limitations statute only applied to "suits" or "prosecutions"; U.S.
ex. rel. Vicchitto v. Martineau, 27 F.Supp. 440 (D. Conn. 1938); a revocation of a real estate
broker's license was not barred by a one year statute of limitations since, among other grounds,
the limitation statute made reference to a prosecution or suit before a court and an administrative
agency was held not to be a court; Nelson v. Real Estate Comm'n, 370 A.2d 608 (Md. App.
1977)).
The current matter is before the ALJD under the APA as an administrative proceeding and not as
an action. See S.C. Code Ann. § 1-23-600(B) (Supp. 1995). Within the context of the APA, an
"action" arises only after the conclusion of a contested case and only when the aggrieved party
seeks a judicial review in the circuit court. § 1-23-610(B)(Supp. 1995) and McDowell v. Dept. Of
Social Services, 304 S.C. 539, 405 S.E.2d 830 (1991). Since the matter before an ALJ is an
administrative proceeding rather than an action, §15-3-550 is not applicable.
Even if § 15-3-550 were applicable to administrative proceeding, Barrow must also prove the
revocation and enforcement are based upon statutes that seek a penalty or a forfeiture. Such is
not proven here. A penalty is a sum of money exacted by way of punishment for doing some act
that is prohibited, or omitting to do some act that is required to be done. S.C. State Highway
Dept. v. Southern Ry. Co. , 239 S.C. 227, 122 S.E.2d 422 (1961). A forfeiture is the loss of
specific property without compensation due to the commission of some act, offense or default.
21 S.C. Juris. Forfeitures, § 2 (1993).
DNR does not seek to impose a penalty or a forfeiture. Section 50-23-210, which authorizes the
revocation, does not require Barrow to pay a monetary penalty. Additionally, since DNR does
not seek ownership or possession of the structure, no forfeiture occurs. Likewise, OCRM's
enforcement requires Barrow to remove the structure but does not place ownership or possession
of the structure in OCRM. Finally, OCRM has not sought any penalty from Barrow. Since no
penalty or forfeiture is sought, the limitation statute of §15-3-550 is not applicable.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of
law:
1. The period for the commencement of an action is two years where the action is based upon a
statute that produces a forfeiture or penalty to the State. S.C. Code Ann. § 15-3-550 (Supp.
1995).
2. The burden of proving the statute of limitations is upon the party who asserts it. Hemingway
v. Shull, 286 F. Supp. 243 (D. S.C. 1968).
3. A limitation on actions has been held generally inapplicable to administrative proceedings. 54
C.J.S. Limitations of Actions § 77(a) (1987); U.S. ex. rel. Vicchitto v. Martineau, 27 F.Supp.
440 (D. Conn. 1938); Nelson v. Real Estate Comm'n, 370 A.2d 608 (Md. App. 1977).
4. Under the APA, the ALJD hears contested cases from DNR and OCRM. S.C. Code Ann. §
50-23-210 (Supp. 1995), S.C. Code Regs. 30-8(F)(4)(Supp. 1995) and S.C. Code Ann. §
1-23-600(B) (Supp. 1995).
5. Rather than pursuing an action before an ALJ, a party seeks an administrative proceeding as a
contested case before an ALJ with the right to an action being found in the circuit court by way of
judicial review arising upon the issuance of a final decision by the ALJ. SeeMcDowell v. Dept. Of
Social Services, 304 S.C. 539, 405 S.E.2d 830 (1991) and S.C. Code Ann. § 1-23-610(B) (Supp.
1995).
6. A penalty is a sum of money exacted by way of punishment for doing some act that is
prohibited, or omitting to do some act that is required to be done. S.C. State Highway Dept. v.
Southern Ry. Co. , 239 S.C. 227, 122 S.E.2d 422 (1961).
7. A forfeiture is the loss of specific property without compensation due to the commission of
some act, offense or default. 21 S.C. Juris. Forfeitures, § 2 (1993).
8. DNR's revocation actions do not seek to impose a penalty or a forfeiture upon Barrow.
9. OCRM's actions do not seek to impose a penalty or a forfeiture upon Barrow.
10. There is a contested case but no action before the ALJ. S.C. Code Ann. § 1-23-600(B)
(Supp. 1995).
11. S.C. Code Ann. § 15-3-550 (Supp. 1995) is not a limitation applicable in the instant matter.
B. Ex Post Facto
1. Positions of Parties:
Barrow argues that OCRM amended its regulations in 1993 to retroactively deny the previously
authorized unpermitted use of his structure. Barrow argues the new regulation operates as an ex
post facto law and thus the application of the regulation to him is improper. OCRM argues it is
not applying the amended regulation to Barrow, and thus, there can be no ex post facto
application.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. Effective May 28, 1993, OCRM amended S.C. Code Regs. 30-12(M) (Supp. 1995).
2. The amended regulation is applied by OCRM to non-water dependent structures.
3. The large structure is water dependent.
4. OCRM did not apply Regs. 30-12(M) to Barrow.
5. OCRM does not seek a penalty against Barrow and does not seek a forfeiture of any property
owned by Barrow.
6. OCRM seeks a civil remedy for the removal of the structure from the critical area.
3. Discussion
Before an ex post facto theory is applicable, the act or measure under review must be penal in
nature. State v. Huiett, 302 S.C. 169, 394 S.E.2d 486 (1990). A penal statute is one that inflicts
a forfeiture of money or goods by way of a penalty for breach of its provisions. Butler v. Butler,
62 S.C. 165, 49 S.E. 138 (1901). The predominant characteristic of a penal statute is its intent to
punish. SeeState v. Huiett, supra. Here, there are no penalties asserted by OCRM. Rather,
OCRM seeks a civil remedy of removal of the structure from the critical area. Barrow asserts the
requirement of removal of the structure amounts to a forfeiture which, in Barrow's view, is an
action penal in nature. While no forfeiture is involved here, even if a forfeiture were involved,
statutes that seek forfeitures through actions that are civil in nature do not give rise to an ex post
facto defense. U.S. v 5,644,540 in U.S. Currency, 799 F.2d 1357 (9th Cir. 1986); U.S. v.
D.K.G. Appaloosas, Inc., 829 F.2d 532 (5th Cir. 1987). In the instant case, OCRM's
enforcement actions are civil in nature.
Finally, there is no provision applied retroactively to Barrow. Regs. § 30-12 (M) concerns
non-water dependent structures and Barrow's large structure is water dependent. Thus, the new
regulation is not applicable to Barrow.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of
law:
1. An ex post facto assertion requires that the act or measure under review be penal in nature.
State v. Huiett, 302 S.C. 169, 394 S.E.2d 486 (1990).
2. A penal statute inflicts a forfeiture of money or goods by way of a penalty for breach of its
provisions. Butler v. Butler, 62 S.C. 165, 49 S.E. 138 (1901).
3. The predominant characteristic of a penal statute is an intent to punish. See State v. Huiett,
supra.
4. Statutes seeking forfeitures through actions that are civil in nature do not give rise to an expost
facto defense. U.S. v 5,644,540 in U.S. Currency, 799 F.2d 1357 (9th Cir. 1986); U.S. v.
D.K.G. Appaloosas, Inc., 829 F.2d 532 (5th Cir. 1987).
5. Barrow is not entitled to raise an ex post facto defense since the instant matter is an
administrative civil matter seeking no penalty, punishment or forfeiture.
6. A non-water dependent regulation is not applicable to a water dependent structure. S.C. Code
Regs. § 30-12(M).
C. Registration, Numbering, and Titling
1. Positions of Parties:
Barrow asserts the large structure is a watercraft and a vessel properly titled and registered. DNR
asserts the large structure is not being used as a boat but rather as a floating dock. DNR argues
the use determines whether the registration is authorized, and, since the use here is that of a
floating dock, revocation is proper.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. The large structure in dispute is designed to function only in the water.
2. Barrow has navigated the structure in the creek and has used the large structure for
transportation on a limited basis.
3. The large structure is a watercraft.
4. The watercraft is used primarily in South Carolina.
5. The watercraft is capable of being used as a means of transportation on the water.
6. OCRM witnesses admitted the large structure is capable of being used for transportation.
7. A DNR witness admitted the large structure is capable of being used for transportation but
qualified his admission by a limitation that such is possible if a motor is placed on the structure.
8. The large structure has a motor mount, a motor is available for the large structure, and the
motor has been used to propel the large structure.
3. Discussion
In the absence of an exemption, a vessel using the waters of South Carolina must be registered
with DNR. S.C. Code Ann. §§ 50-21-310 and 50-21-10(16) (Supp. 1995). A "vessel" is defined
as every description of watercraft, other than a seaplane on the water, used or capable of being
used as a means of transportation on water. § 50-21-10. In addition, the owner must also apply
to DNR for a certificate of title for a watercraft used principally in this State. S.C. Code Ann. §
50-23-20 (Supp. 1995). Thus, under the operative provisions, title certification requires a
"watercraft" principally used in South Carolina and registration requires a "watercraft" that is
"used or capable of being used as a means of transportation on water."
a. Watercraft
The Legislature is presumed to have fully understood the import of words used in a statute and
intended to use them in their ordinary and common meaning. Powers v. Fidelity & Deposit Co.
of Maryland, 180 S.C. 501, 186 S.E. 523 (1936). The common meaning of the term "craft" is a
generic one used to identify a structure that is either a boat or a ship but may also include an
aircraft. SeeBlack's Law Dictionary 366 (6th ed. 1990); The American Heritage College
Dictionary 309 (3rd ed. 1993). Accordingly, "watercraft" is a more specific identification used to
distinguish between a craft which functions in relation to water as opposed to a craft which
functions in relation to the atmosphere. See "aircraft" The American Heritage College
Dictionary 27 (3rd ed. 1993). Additionally, the term "watercraft" includes the concept of
transportation since "watercraft" is also defined as "equipment for water transport." Websters
Third New International Dictionary 2582 (1976). Thus, a watercraft is a structure designed for
providing transportation in the water.
In the instant case, the structure in dispute is designed to function only in the water. Further, as
discussed more fully below, the structure functions, at least in part, as transportation for Barrow.
Thus, since the ordinary definition of watercraft includes a craft designed to function in the water
and since Barrow, at least in part, uses and designed the structure for transportation, Barrow's
structure is a watercraft.
b. Capable of Use As Transportation
The mere fact that a structure is a watercraft does not mean that it falls within the definition of a
vessel. Under § 50-21-10, a vessel is defined as every description of watercraft that is either
actually used on the water for transportation or that is capable of being used as a means of
transportation on water. The question here is whether the Barrow watercraft is either actually
used on the water for transportation or capable of being used as a means of transportation on
water.
While the extent of actual use for transportation is disputed, the fact that the watercraft is capable
of being used as a means of transportation is not significantly in dispute and is virtually
uncontradicted. Barrow actually used the structure for transportation on a limited basis. Such
use, even if limited to Barrow's statement of a minimum use of ten times, demonstrates the
structure is capable of being used for transportation. Further, and more compelling, the two
witnesses for OCRM and the one witness for DNR all testified the structure was capable of being
used for transportation. The DNR witness qualified his conclusion by adding the structure is
capable of use as transportation if a motor is placed on the structure. Here, the structure does
have a motor mount and a motor is available. Thus, every witness testified the structure is
capable of being used for transportation. While not bound to accept uncontradicted evidence as
establishing a fact, such evidence should be accepted unless there is some reason for disbelief.
Johnson v. Painter, 279 S.C. 390, 307 S.E.2d 860 (1983).
There is no reason here for disbelief. First, the testimony that the structure is capable of use for
transportation is from the opposing parties. The opposing party is in the best position to dispute
relevant facts presented by a contesting party. When the opposing party chooses not to dispute a
fact, but instead presents witnesses whose testimonies agree with the proposed fact, the court can
reasonably believe the fact is based in truth. Second, the evidence includes independent support
(i.e. evidence other than the testimony of the OCRM and DNR witnesses) that the structure is
capable of transportation. Barrow testified he uses the structure for transportation and has
navigated the structure in the creek. Accordingly, based upon the preponderance of the evidence,
the structure is designed to function solely in the water and is capable of being used for
transportation. Thus, the structure is a type of watercraft that is a vessel subject to both
registration and titling.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of
law:
1. In the absence of an exemption, every vessel using the waters of South Carolina must be
numbered so as to register the vessel with DNR. S.C. Code Ann. §§ 50-21-310 and 50-21-10(16)
(Supp. 1995).
2. A "vessel" is defined as every description of watercraft, other than a seaplane on the water,
used or capable of being used as a means of transportation on water. § 50-21-10.
3. An owner of a watercraft principally used in South Carolina must apply to DNR for a
certificate of title for the watercraft. § 50-23-20.
4. For registration or title purposes, there is no statutory definition of a watercraft.
5. The Legislature is presumed to have fully understood the import of words used in a statute and
intended to use them in their ordinary and common meaning. Powers v. Fidelity & Deposit Co.
of Maryland, 180 S.C. 501, 186 S.E. 523 (1936).
6. The term "craft" is a generic term used to identify a structure that is either a boat or a ship and
may also include an aircraft. See Black's Law Dictionary 366 (6th ed. 1990); The American
Heritage College Dictionary 309 (3rd ed. 1993).
7. The term "watercraft" is a more specific identification of a craft and is used to distinguish
between a craft designed to function in relation to water as opposed to a craft designed to
function in relation to the atmosphere. See "aircraft" The American Heritage College
Dictionary 27 (3rd ed. 1993).
8. The term "watercraft" includes the concept of transportation since "watercraft" is also defined
as "equipment for water transport." Websters Third New International Dictionary2582 (1976).
9. A watercraft is a structure designed to provide transportation in the water.
10. A vessel is a watercraft used or capable of being used as a means of transportation on water.
S.C. Code Ann. § 50-21-10 (Supp. 1995).
11. While not bound to accept uncontradicted evidence as establishing a fact, a court should
accept such evidence unless there is some reason for disbelief. Johnson v. Painter, 279 S.C. 390,
307 S.E.2d 860 (1983).
12. The large structure is a watercraft, the watercraft is capable of being used for transportation
on the water, and the watercraft is a vessel subject to both registration and titling.
D. Permitting Jurisdiction of OCRM
1. Positions of Parties:
Barrow asserts the large structure is a raft and as such is not subject to the permitting
requirements of OCRM. OCRM argues the large structure is not a raft but rather is a floating
dock which is unpermitted and thus must be removed.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. The large structure is within the tidelands of Hobcaw Creek, Charleston County, South
Carolina.
2. Barrow utilized a critical area by building a structure on and altering the critical area of the
tidelands of Hobcaw Creek.
3. Barrow constructed the large structure for at least the two functions of transportation and the
mooring of boats.
4. Barrow has transported as many as five people on the structure at one time.
5. Barrow has used the large structure for transportation by means of a motor mounted to the
structure between ten and a hundred times.
6. A "john boat" was routinely placed on the large structure.
7. A larger boat (Grady White) has also been attached to the large structure.
8. The motor mount for the large structure lacks the "scarring" associated with the use of a
motor.
9. The use of the motor on the structure is very limited.
10. Barrow's actions and activity with the large structure demonstrate only a minimal use for
boating.
11. The primary use of the structure is that of mooring boats.
12. The large structure is used as a floating dock.
13. Hobcaw Creek is approximately 50 feet wide at the point where the large structure is located.
14. At low tide the large structure rests on the creek bed of Hobcaw Creek.
15. Due to environmental and biological concerns, floating docks are not normally permitted by
OCRM if the dock sits on the creek bottom at low tide.
16. Due to the size of the large structure, the resting on the creek bed at low tide will have a
detrimental impact on the flora, fauna, and physical resources of Hobcaw Creek.
3. Discussion
a. Introduction
The obvious must be addressed. The requirement that a structure must be registered and titled
with DNR under the statutes and regulations governing that agency does not mean that the same
structure is exempt from the statutes and regulations governing the State's coastal zone. OCRM
is charged with the duty of administering the provisions of Chapter 39 of Title 48 as well as all of
the rules and regulations promulgated under Chapter 39. S.C. Code Ann. § 48-39-50(F) (Supp.
1995). As a part of its administration, OCRM must require a party to obtain a permit if the party
seeks to utilize a critical area by building a structure on or in any way altering the critical area.
S.C. Code Ann. § 48-39-130(C)(Supp. 1995). Once determining a critical area is involved,
OCRM must begin the permitting process unless an exemption applies. S.C. Code Ann. §
48-39-130(D)(Supp. 1995).
In the instant case, since the structure is within the tidelands of Hobcaw Creek, the structure in
dispute is within a critical area. See S.C. Code Ann. § 48-39-10(J) and (G)(Supp. 1995). Since a
critical area is involved, a permit is required unless an exemption applies. § 48-39-130(C) and (D).
An exemption may be available for an activity that is "boating or other recreation." S.C. Code
Ann. § 48-39-130(D)(2). Even that exclusion, however, applies only where the boating or
recreation activities "cause no material harm to the flora, fauna, physical or aesthetic resources of
the area."
b. Boating Activities
Based upon a preponderance of the evidence, Barrow's actual use is not a boating or recreation
activity since the boating use is only minimal. Nothing prevents Barrow from building a structure
sufficient to accomplish multiple functions. A multipurpose use, however, requires a
determination of whether the use sufficient to satisfy the boating exemption must be a use that is
exclusive, or a lesser requirement of primary, or a still lower requirement of substantial, or the
lowest requirement of minimum use. See Hercules Contractors and Engineers, Inc. v. South
Carolina Tax Comm'n, 280 S.C. 426, 313 S.E.2d 300 (S.C. App. 1984) (multi-use machine
exempt from sales tax if the use is substantial as opposed to exclusive, primary, or minimum.)
Given the broad interest of the State to "protect the quality of the coastal environment," more
than a minimum use as a boating activity is required before the party is exempt from the coverage
of the permitting process. § 48-39-30 (Supp. 1995.)
The evidence as to the use of the structure is conflicting, but, when considered as a whole, best
demonstrates a predominant use for mooring boats. I recognize Barrow testified he has
transported as many as five people on the structure at one time and that Barrow's photographs
and testimony indicate a use of the structure by motor transportation "between ten and a hundred
times." On the other hand, I am more persuaded by OCRM's visits and photographs which show
the structure consistently in the same spot with boats "moored" to the structure. Further,
Barrow's testimony confirms the fact that a "john boat" was routinely placed on the structure and
that a larger boat (Grady White) has also been attached to the structure. Additionally, DNR's
testimony is that the motor mount lacks the "scarring" associated with the use of a motor with the
inference drawn that the use of the motor is very limited.
Further, I am not persuaded by Barrow's testimony that the use as a "raft" is the primary purpose
for the structure. I do not find persuasive evidence demonstrating why the "raft" required
dimensions of 6 feet wide but 30 feet long. The narrowness of the creek (approximately 50 feet)
for the "raft" suggests a much shorter structure would have met Barrow's raft needs. On the
other hand, the large dimensions make the structure suitable for mooring larger vessels. Thus, it
appears the structure was designed to be used for mooring boats up to the size of Barrow's large
boat.
The evidence demonstrates the structure is used for mooring boats and the use for boating is only
minimal. The use of the structure in a critical area for the purpose of mooring boats creates a
requirement that the structure comply with the permitting requirements of S.C. Code Ann. §
48-39-10 et. seq. In short, the mere fact that a structure can be used, or in fact is used, on a
minimal basis for transportation does not bring the structure within the boating activity exemption
where, as is the case here, the evidence demonstrates the structure is used for mooring boats.
c. Limitation On Boating Exemption
The boating exemption is limited to boating or recreation activities that "cause no material harm
to the flora, fauna, physical or aesthetic resources of the area." S.C. Code Ann. §
48-39-130(D)(2) (Supp. 1995). In the instant case, the structure sits on the creek bed at low tide.
A witness for OCRM testified that due to environmental and biological concerns, floating docks
are not normally permitted if they sit on the creek bottom at low tide. The Barrow's structure,
given its size, will have a detrimental impact on the flora, fauna, and physical resources of
Hobcaw Creek. Accordingly, even if Barrow's minimal boating activity were sufficient to bring
the structure within the scope of the boating exemption, the material harm caused by the structure
resting upon the creek bottom is sufficient to deny the exemption. Thus, the permitting process is
applicable to the structure.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of
law:
1. The requirement that a structure must be registered and titled with DNR does not preclude that
structure from being subject to the permitting process of OCRM. S.C. Code Ann. §§
48-39-130(C) and 48-130(D).
2. OCRM is charged with the duty of administering the provisions of Chapter 39 of Title 48 as
well as the rules and regulations promulgated under Chapter 39. S.C. Code Ann. § 48-39-50(F)
(Supp. 1995).
3. OCRM must require a party to obtain a permit if the party seeks to utilize a critical area by
building a structure on or in any way altering the critical area unless an exemption applies. S.C.
Code Ann. §§ 48-39-130(D) and 48-39-130(C) (Supp. 1995).
4. A floating dock is a structure floating on water generally used for the mooring of boats. S.C.
Regs. §30-12(A)(1).
5. A permit is required from OCRM for the use of a floating dock in a critical area. S.C. Code
Regs. § 30-12(A)(1).
6. A critical area includes the tidelands of the State. See S.C. Code Ann. § 48-39-10(J) and (G)
(Supp. 1995).
7. An exemption from the permitting requirement may be available for an activity that is "boating
or other recreation." S.C. Code Ann. § 48-39-130(D)(2) (Supp. 1995).
8. A multipurpose use requires a determination of whether the use sufficient to satisfy the boating
exemption must be a use that is exclusive, or a lesser requirement of primary, or a still lower
requirement of substantial, or the lowest requirement of minimum use. See Hercules Contractors
and Engineers, Inc. v. S.C. Tax Comm'n, 280 S.C. 426, 313 S.E.2d 300 (S.C. App. 1984)
9. Given the broad interest of the State to "protect the quality of the coastal environment," more
than a minimum use as a boating activity is required before the party is exempt from the coverage
of the permitting process. § 48-39-30 (Supp. 1995).
10. The mere fact that a structure can be used or is in fact being used on a minimal basis for
transportation does not exempt the structure under the boating activity exemption where the
structure is used for mooring boats. S.C. Code Ann. § 48-39-130(C) and (D)(2) (Supp. 1995).
11. The boating exemption is allowed only in those instances in which the boating or recreation
activities "cause no material harm to the flora, fauna, physical or aesthetic resources of the area."
S.C. Code Ann. § 48-39-130(D)(2) (Supp. 1995).
12. The material harm caused by the structure resting upon the creek bottom is sufficient to deny
the application of the exemption. S.C. Code Ann. § 48-39-130(D)(2) (Supp. 1995).
13. The large structure is used as a floating dock, is subject to the OCRM permitting process, has
not been permitted, and must be removed.
IV. ORDER
Based upon the foregoing Findings of Fact, Discussion and Conclusions of Law, the following
ORDER is issued:
DNR is prohibited from revoking the hull identification, certificate of registration, or certificate of
title for the disputed structure. Barrow is directed to remove the structure in dispute from the
critical area of Hobcaw Creek. Barrow is forbidden from utilizing the structure or any part of the
structure in any critical area of the State unless a prior permit for such use is obtained from
OCRM. Barrow is directed to have the removal of the structure completed by 5:00 p.m. on the
twentieth day following the date of this order. The twenty day period shall be calculated by
excluding the date of the order and including the last day of the period.
IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
This 1st day of April, 1996 |
