ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
James M. Leland, Jr. (Leland) was directed by the South Carolina Department of Health and
Environmental Control, Bureau of Ocean and Coastal Resource Management (OCRM) to pay a fine
of $500 and comply with special condition 1 of permit number CC-92-054. Special condition 1
prohibits Leland from tying boats to the upstream end of his dock and from allowing boats to extend
beyond the upstream end of his dock.
Leland protested the OCRM decision and sought a contested case hearing. Blanche S. Oswald
(Oswald), a neighboring dock owner, intervened in support of OCRM's determination. Jurisdiction
vests in the Administrative Law Judge Division (ALJD) by S.C. Code Ann. Regs. 30-8(F)(4), S.C.
Code Ann. § 1-23-320 and 1-23-610(B) (1997) with this matter heard on December 9, 1998. Under
the facts and law, Leland must pay the $500 fine and submit to OCRM an updated Operations and
Maintenance Manual that includes provisions assuring compliance with special condition 1 of permit
CC-92-054.
II. Issue
Has Leland failed to comply with the provisions of special condition 1 of permit CC-92-054 so as
to warrant the imposition of a $500 fine and a requirement that Leland update his Operations and
Maintenance Manual to include provisions assuring compliance with special condition 1?
III. Analysis
1. Positions of Parties
OCRM asserts that Leland, on more than one occasion, allowed boats to be tied to the upstream end
of his dock and allowed boats to extend beyond the upstream end of his dock. OCRM argues such
actions violate special condition 1 of permit CC-92-054 so as to warrant the imposition of a $500
fine. Leland, however, argues no fine is warranted since any violation was not wilful. Accordingly,
he argues he should not be liable for a fine.
2. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
a. Background
Leland owns and operates a commercial dock in McClellanville, South Carolina, on Jeremy Creek,
just off the Intracoastal Waterway. Customers consist primarily of shrimpers, commercial fishermen
and the transient traffic of yacht owners traveling to and from Florida. Leland provides the only
significant public access to boat services between Charleston and Georgetown.
Leland's services were disrupted on September 21, 1989 when Hurricane Hugo destroyed 120 feet
of the upstream portion of his dock. While Leland intended to rebuild, he did not do so immediately.
Rather, before Leland rebuilt, OCRM issued a permit to Oswald allowing her to construct a private
dock very near the space previously occupied by Leland's destroyed dock. The dock constructed
by Oswald is a recreational dock, much smaller is size than Leland's commercial dock. Further,
Oswald's dock receives minor traffic in comparison to Leland's dock.
Though Leland's existing facility provided approximately 300 feet of dock, Leland obtained a permit
to increase the size to approximately 420 feet. The permit, however, was granted with conditions.
One of the conditions, special condition 1, was that Leland would not allow boats to be tied to the
upstream end of his dock and would not allow boats to extend beyond the upstream end of his dock.
Leland agreed to all of the conditions on June 3, 1994.
b. Violation Facts
Upon placing his newly constructed dock in service, complaints began that boats were tying to the
upstream end of the dock in violation of special condition 1. During contacts by OCRM with
Leland, Leland admitted that boats were being tied to the upstream portion of his dock, and Leland
agreed to halt the practice. However, boats continued to tie to the upstream end. Indeed, from 1996
until 1998, at least once a month, boats continued to tie to the dock in violation of special condition
1. Only in 1998 did Leland place a sign on the upstream portion of the dock notifying boaters that
tying to that portion of the dock was prohibited.
3. Conclusions of Law
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
A permit is required before constructing a dock in a critical area. S.C. Code Ann. § 48-39-130(C)
(1997). In this case, Leland was required to obtain a permit to construct the upstream portion of his
dock since the coastal waters of Jeremy Creek are part of a critical area for which a permit is required
for dock construction. S.C. Code Ann. § 48-39-10(J) and (F)(Supp. 1997). In granting a permit,
OCRM has the authority to impose conditions (see S.C. Code Ann. § 48-39-150(B) (Supp. 1997)
(OCRM may impose conditions that are "necessary to protect the public interest")), and that is
precisely what it did in granting Leland's permit. OCRM imposed "special condition 1" prohibiting
boats from being tied to the upstream end of Leland's dock and prohibiting boats from extending
beyond the upstream end of the dock. In short, the permit was conditioned; Leland was bound;
compliance was expected.
A failure to comply with the terms of a permit creates an unpermitted structure and a violation of the
requirements of Chapter 39 of Title 42. See S.C. Code Ann. §§ 48-39-130(C) (1997) (permit needed
to construct in a critical area). Once a violation is established, the violator may be subject to "a civil
penalty of not less than one hundred dollars nor more than one thousand dollars per day of
violation." S.C. Code Ann. § 48-39-170(C) (Supp. 1997). Thus, the question is whether Leland
operated his dock contrary to the terms of the dock permit. If yes, a fine is imposed; if no, a fine is
unwarranted.
Here, the evidence is clear that Leland failed to adhere to the permit condition. Leland admitted that
boats were being tied to the upstream portion of his dock. Further, at least once a month from 1996
until 1998, boats continued to tie to the dock in violation of special condition 1. Only in 1998 did
Leland place a sign on the upstream portion of the dock notifying boaters that tying to that portion
of the dock was prohibited. While belated compliance may bear upon the amount of the penalty,
such late compliance does not remove the fact that for an extended time period Leland failed to
comply with the permit conditions. Accordingly, Leland is liable for a fine.
Leland's arguments warrant neither elimination nor reduction of the fine. First, contrary to Leland's
view, the fine is not in the nature of a contempt citation. While wilfulness may play a role in a
contempt citation (see Spartanburg County Department of Social Services v. Padgett, 296 S.C. 79,
370 S.E.2d 872 (1988) finding wilful disobedience of a court order needed to justify a finding of
contempt), the law of contempt is irrelevant to the instant matter. Here, no court order is violated
in OCRM's enforcement action. Rather, OCRM seeks a fine for Leland's violation of a statutory
requirement directing him to comply with the terms of his permit. The statute imposes no wilfulness
requirement and none need be shown. Accordingly, the fine in this case is proper.
Second, the fact that Leland's permit was under appeal for a portion of the time the violations of
special condition 1 were occurring does not affect the imposition of the penalty. At all stages of
Leland's appeal, no adjudicatory body overruled, dismissed, or in any manner altered, special
condition 1. Thus, that provision was always in effect, and Leland was at all times required to
comply.
Finally, the fine cannot be removed on the basis that the lack of a similar condition on Oswald's
dock makes the imposition on Leland's dock "unfair." While an administrative agency is generally
not bound under the rule of stare decisis, all would agree that an agency cannot act arbitrarily. 330
Concord Street Neighborhood Association v. Campsen, 309 SC 514, 424 S.E. 2d 538 (Ct. App.
1992). Arbitrariness exists when both the circumstances surrounding the application for a dock
permit by one party is similar to that of the party's neighbors and the existence of the party's dock
does not create an effect distinguishable from that caused by the neighbor's existing dock. Under
those conditions, denial of the permit violates the equal protection and due process guarantees of the
state and federal constitutions. Weaver v. Coastal Council, 309 SC 368, 423 S.E. 2d 340 (S.C.
1992).
Here, no arbitrariness is shown since the circumstances surrounding Leland's application is
dissimilar to Oswald's and the existence of Oswald's dock is distinguishable from Leland's.
Leland's dock is much larger, is used as a commercial dock, and is the recipient of a far greater
degree of boat traffic than is Oswald's. On the contrary, Oswald's dock is a recreational dock,
smaller is size, and has only minor traffic in comparison to Leland's dock. Accordingly, Oswald's
dock permit need not have the same condition as is imposed on Leland's permit.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
James M. Leland, Jr., violated special condition 1 with that condition imposed as part of Leland's
permit number CC-92-054 allowing a commercial dock on Jeremy Creek in McClellanville, South
Carolina. A fine of $500 is imposed for the violation. Further, Leland, must update his Operations
and Maintenance Manual to include provisions assuring compliance with special condition 1. The
fine must be paid and the update completed within thirty days of the date of this order.
AND IT IS SO ORDERED
______________________
RAY N. STEVENS
Administrative Law Judge
Dated: December 30, 1998
Columbia, South Carolina |
