ORDERS:
ORDER GRANTING MOTION TO DISMISS
This appeal is before the Administrative Law Judge Division ("Division") pursuant to the Notice of Appeal filed on
October 9, 2001, by John Miles, d/b/a Miles Engineering Associates, LLC ("Appellant"). Appellant is appealing two
letters dated October 4, 2001, issued by Ralph K. Foster, III, Manager of Engineering Services, regarding the MacDougall
Prison Industries Building and the Allendale Prison Industries Building. In the letters, Foster indicated Appellant's
classification of the buildings as Factory Industrial Occupancy was incorrect and the correct classification, Institutional
Restrained Occupancy, required the buildings to have sprinkler systems. Appellant appealed the findings pursuant to S.C.
Code Ann. § 23-9-70 (Supp. 2000).
On November 7, 2001, the South Carolina Department of Labor, Licensing, and Regulation ("Department") filed a Motion
to Dismiss, asserting the undersigned should dismiss Appellant's appeal because: (1) Appellant has not exhausted his
administrative remedies; (2) the letters dated October 4, 2001, are not appealable under S.C. Code Ann. § 23-9-70 because
they are not orders and do not direct that a defect in a building be removed or remedied; and (3) Appellant lacks standing to
appeal any order issued by the Office of State Fire Marshal pursuant to S.C. Code Ann. § 23-9-70. On November 21, 2001,
Appellant filed a response to the Department's Motion to Dismiss.
S.C. Code Ann. § 23-9-70 (Supp. 2000) provides in pertinent part:
Whenever the State Fire Marshal, deputy or resident fire marshal shall find . . . any building or other structure which, for
any cause, is especially liable to fire and which is so situated as to endanger lives or other property, or is deficient in fire or
life protection, an order shall issue in writing directing the defect to be removed or remedied . . . . If such order is issued by
any deputy or resident fire marshal, such occupant or owner may, within twenty-four hours, appeal to the State Fire
Marshal, who shall, within ten days, during which time the order appealed from shall be stayed, review the order and file
his decision. Provided, however, that any person who feels himself aggrieved by any order or affirmed order of the State
Fire Marshal may, within five days after the making or affirming of such order, appeal to an administrative law judge, as
provided under Article 5 of Chapter 23 of Title 1, for review of such order . . . .
I find that the Department's argument that Appellant lacks standing to appeal any order issued by the Office of State Fire
Marshal pursuant to S.C. Code Ann. § 23-9-70 lacks merit. The statute specifically provides that any person who feels
aggrieved by an order of the State Fire Marshal may appeal the order to the Division. In this case, the Appellant prepared
an engineering report and analysis asserting the two buildings were not required to have sprinkler systems. The
Department's position that Appellant's engineering report is incorrect could adversely affect Appellant's reputation and
cause monetary loss. Appellant, therefore, has standing to appeal any order issued by the State Fire Marshal regarding the
MacDougall and Allendale Prison Industries Buildings pursuant to § 23-9-70.
The Department also argues that these letters do not direct that a defect in a building be removed or remedied. It appears,
however, that the construction of these buildings is complete, presumably according to the engineering report submitted
prior to beginning construction. Any requirement to alter the buildings after construction has been completed certainly
would qualify as a directive that a defect be removed or remedied. I, therefore, find that § 23-9-70 addresses the issue
raised in the letters dated October 4, 2001, i.e., that the defects of having no sprinkler systems be remedied by adding
sprinkler systems. These letters, however, do not qualify as an order of the Office of State Fire Marshal. These letters were
issued by the Department's Manager of Engineering Services and copied to Robert Polk, the State Fire Marshal. I agree
with the Department, therefore, that Appellant has not exhausted his administrative remedies. Accordingly,
IT IS HEREBY ORDERED that within thirty (30) days of the date of this order, the Office of State Fire Marshal must
issue an order(s) regarding the MacDougall and Allendale Prison Industries Buildings pursuant to S.C. Code Ann. § 23-9-70.
IT IS FURTHER ORDERED that this appeal is dismissed without prejudice.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
January 11, 2002
Columbia, South Carolina |