South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Joe Lubelsky and Barbara Lubelsky vs. SCDHEC, et al

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioners:
Joe Lubelsky and Barbara Lubelsky

Respondents:
South Carolina Department of Health and Environmental Control and Thomas Evans
 
DOCKET NUMBER:
06-ALJ-07-0409-CC

APPEARANCES:
Joe Lubelsky
Petitioner, pro se

Leslie S. Riley, Esquire
For Respondent South Carolina Department of Health and Environmental Control

J. Stanley Claypoole, Esquire
For Respondent Thomas Evans
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

The above-captioned matter comes before this Court pursuant to the request of Petitioners Joe and Barbara Lubelsky for a contested case hearing to challenge the decision of Respondent South Carolina Department of Health and Environmental Control, through its Office of Ocean and Coastal Resource Management (Department), to issue critical area permit number OCRM-06-035-R to Respondent Thomas Evans (Respondent) for the renovation and expansion of a private dock in Hamlin Creek at 705 Palm Boulevard on the Isle of Palms in Charleston County, South Carolina. After timely notice to the parties, a hearing of this matter was held on November 8, 2006, at the South Carolina Administrative Law Court in Columbia, South Carolina. At the close of Petitioners’ case-in-chief, the Department, joined by Respondent, moved for an involuntary nonsuit against Petitioners. For the reasons set forth below, this motion for a nonsuit against Petitioners is hereby granted.

 

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. Petitioners Joe and Barbara Lubelsky own and reside upon the property located at 707 Palm Boulevard on the Isle of Palms in Charleston County, South Carolina. Petitioners currently have a private, recreational dock extending from their property into Hamlin Creek. This dock includes a large fixed pierhead with a fully enclosed 10’ x 11’ shed.

2. On April 5, 2006, the Department issued critical area permit OCRM-06-035-R to Respondent for the renovation of the existing private, recreational dock located in Hamlin Creek at 705 Palm Boulevard, on the lot adjacent to Petitioners’ property. Under the permit, this renovation would expand the existing 10’ x 16’ fixed pierhead to an 18’ x 20’ covered fixed pierhead and enlarge the existing 8’ x 30’ floating dock to a 10’ x 30’ floating dock. The permit also authorizes the addition of a 12’ x 12’ boatlift to the dock.

3. By a letter dated May 5, 2006, Petitioners requested a contested case to challenge the Department’s issuance of the dock permit to Respondent. In Petitioners’ pre-hearing filings in this matter and in the testimony of Mr. Lubelsky at the hearing, Petitioners do not contend that Respondent’s dock, as permitted, does not comply with any of the applicable statutory and regulatory criteria for such a dock, or that the Department did not fully comply with the proper permit application review process. In fact, at the hearing, Mr. Lubelsky conceded that he had never reviewed the regulatory provisions governing the permit at issue in this matter. Rather, in this matter, Petitioners have simply stated their concern that, given the size of the floating dock and the size of the covered area on the pierhead approved by the permit, Respondent’s dock will not be used as a private, recreational dock for the residents of the property, but will be used as a commercial dock that will be rented out for social functions.

 

 

 

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

1. The above-captioned case is before this Court pursuant to S.C. Code Ann. § 1-23-600(B) (Supp. 2005) and 23A S.C. Code Ann. Regs. 30-6(A) (Supp. 2005).

2. In this matter, Petitioners, as the moving party challenging the Department’s decision to issue the permit in question, bear of the burden of proof in this matter. See Leventis v. S.C. Dep’t of Health & Envtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000) (holding that the burden of proof in administrative proceedings generally rests upon the party asserting the affirmative of an issue); 2 Am. Jur. 2d Administrative Law § 354 (2004) (same). Therefore, Petitioners had the burden of demonstrating, by a preponderance of the evidence, that the Department’s issuance of critical area permit OCRM-06-035-R to Respondent fails to satisfy the regulatory criteria governing the issuance of such permits. See Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998) (holding that the standard of proof in an administrative proceeding is generally the preponderance of the evidence).

3. At the close of Petitioners’ case, the Department moved for an involuntary dismissal of Petitioners’ case on the ground that Petitioners failed to establish that the dock permit at issue in this matter was improperly granted. Respondent Evans joined in this motion. The Rules of Procedure for the South Carolina Administrative Law Court (ALC) do not address the procedure for dismissing a matter at the close of a petitioner’s case. However, ALC Rule 68 allows the South Carolina Rules of Civil Procedure to be applied, where practicable, in proceedings before the Court to resolve questions not addressed by the ALC Rules. Here, Rule 41(b) of the South Carolina Rules of Civil Procedure provides guidance on how to resolve a motion for an involuntary nonsuit; it states:

After the plaintiff in an action tried by the court without a jury has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.

 

The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a)[,SCRCP].

 

Rule 41(b), SCRCP; see also Rule 52(a), SCRCP (requiring the court, in non-jury cases, to “find the facts specially and state separately its conclusions of law thereon”). In Johnson v. J.P. Stevens & Co., 308 S.C. 116, 417 S.E.2d 527 (1992), the South Carolina Supreme Court further elaborated upon the standard a court, as the trier of fact, should apply in considering a defendant’s motion for an involuntary dismissal:

Under Rule 41 in a nonjury trial, the trial judge clearly may dismiss the action even though the plaintiff may have established a prima facie case. Rule 41(b) allows the judge as the trier of facts to weigh the evidence, determine the facts and render a judgment against the plaintiff at the close of his case if justified.

 

Id. at 118, 417 S.E.2d at 529; see also James F. Flanagan, South Carolina Civil Procedure 348 (2d ed. 1996).[1]

4. With the standard for an involuntary nonsuit under Rule 41(b) in mind, and after careful consideration of the testimony and documentary evidence presented in Petitioners’ case-in-chief, I find that this case must be dismissed, as Petitioners failed to demonstrate that the Department improperly issued the dock permit in question to Respondent. In particular, Petitioners have not alleged, much less proven, that the dock permit issued to Respondent fails to comply with any of the statutory or regulatory provisions governing such permits. Rather, Petitioners merely raise some wholly speculative concerns that Respondent will not use the dock as a private, recreational dock as permitted, but will instead use the dock for commercial purposes. These unsubstantiated concerns, standing alone, do not satisfy Petitioners’ burden of demonstrating that the dock permit at issue in this matter was improperly granted by the Department.

ORDER

For the reasons set forth above,

IT IS HEREBY ORDERED that the Department’s motion for an involuntary nonsuit against Petitioners is GRANTED and this matter is DISMISSED with prejudice.

AND IT IS SO ORDERED.

 

______________________________

JOHN D. GEATHERS

Administrative Law Judge

1205 Pendleton Street, Suite 224

Columbia, South Carolina 29201-3731

 

November 22, 2006

Columbia, South Carolina

 



[1] Federal courts apply a similar standard in ruling on motions to dismiss made under the federal equivalent of Rule 41(b), SCRCP, which is now found at Fed. R. Civ. P. 52(c):

 

In rendering that judgment, the court is not limited in its evaluation of the nonmovant’s case as it would be on a motion for directed verdict. The trial judge is not to draw any special inferences in the nonmovant’s favor nor concern itself with whether the nonmovant has made out a prima facie case. Instead, the court’s task is to weigh the evidence, resolve any conflicts in it, and decide for itself where the preponderance lies.

 

9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2573.1 (1995) (footnotes omitted).


Brown Bldg.

 

 

 

 

 

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