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).
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
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