ORDERS:
ORDER GRANTING MOTION TO DISMISS
This matter is before me on a Motion to Dismiss filed by the Department of Health and
Environmental Control in the above referenced matter. A hearing on the motion was conducted on
August 29, 1997. Based upon the record and the information presented, the motion to dismiss is
granted and this matter is DISMISSED WITHOUT PREJUDICE.
The facts presented based upon the pleadings are that on May 10, 1997, Petitioner requested
an application form for an "Aquaculture Permit." After numerous correspondence to determine the
type of application Petitioner was requesting, the Department sent Petitioner an application for a
SCDHEC Shellfish Program Permit as referenced in 24A S.C. Code Regs. 61-47 on May 29, 1997.
At that time, the Department also informed Petitioner that other permits may be required depending
upon the specific type of facility the Petitioner planned to operate. On May 30, 1997, Petitioner
wrote a letter to the Department containing information purporting to be an application for an
aquaculture permit. Apparently, DHEC's letter with the appropriate form and Mr. Sloan's letter of
application crossed in the mail. No further action was taken by either party.
On July 21, 1997, the DHEC Board received a Petition for Administrative Review filed by
Mr. Sloan alleging that DHEC "acted arbitrarily, capriciously, and/or unreasonably in not acting
upon, or even acknowledging the application [for an aquaculture permit] by Converse." (emphasis
added). The petition was forwarded to the Administrative Law Judge Division accompanied by the
Motion to Dismiss on July 28, 1997. Subsequent to the filing of the documents with the Division,
on August 4, 1997, the Department received a completed SCDHEC Shellfish Program Permit
application form on behalf of Converse Power Corporation supplementing the written letter of
application submitted by Converse on May 30, 1997. The appropriate person at DHEC responded
to the application by letter dated August 25, 1997, which the parties received on August 29, 1997,
just prior to the motion hearing.
The basis of the Department's motion is that the Division lacked subject matter jurisdiction
of the proceeding because there has been no final agency action with respect to Petitioner's
application. The Administrative Procedures Act requires an opportunity for a hearing in a contested
case setting after the agency has issued a final decision subject to review. See South Carolina
Baptist Hosp. v. S.C. Dep't of Health and Envtl. Control, 291 S.C. 267, 353 S.E.2d 277 (1987). In
this case, there has been no final agency decision. Under the provisions of Regulation 61-47, "only
a person who complies with the requirements of this Regulation shall be entitled to receive and retain
such permit or certificate ... ." 24A S.C. Code Regs. 61-47F(1)(a). The regulation requires that an
application for a permit or certificate shall be submitted in writing to the Department. Upon receipt
of an application, the Department shall make inspections of the shellfish operations and issue the
permit when inspection reveals that the applicable requirements have been met. 24A S.C. Code
Regs. 61-47F(2)(f).
After receipt of the application form on August 4, 1997, DHEC has taken steps to evaluate
the application submitted by Converse. Written information regarding that application was received
by the parties on August 29, 1997. DHEC has not had the opportunity to evaluate the application
and conduct the necessary inspections as required by the regulation. It is therefore premature to
conduct a contested case hearing because the Department has not taken any action on the permit
requiring review. "It would be premature for a court to decide the merits of a dispute when the
agency responsible for making the decision has not yet had an opportunity to decide the merits of
the case." South Carolina Baptist Hosp. v. South Carolina Dept. Of Health and Environmental
Control, supra, 353 S.E.2d at 279.
The Petitioner has not exhausted his administrative remedies and any proceeding before this
tribunal is not ripe for review. Petitioner has requested that the Division retain jurisdiction over the
matter pending a decision by DHEC regarding the application. Since there has been no decision by
the Department regarding the application, there is no action over which this tribunal may exercise
jurisdiction. In the event the Department decision is adverse to Petitioner, all the rights to a
contested case will vest and the Petitioner may seek review. Petitioner is not foreclosed from
initiating an action for a contested case hearing at such time as the matter is ripe for review.
Therefore, it is ORDERED, that the Department's Motion to Dismiss is GRANTED, and the
matter is DISMISSED WITHOUT PREJUDICE. Petitioner may seek a contested case hearing after
the Department has had an opportunity to review the application for a shellfish permit and has issued
a final agency decision on the matter.
AND IT IS SO ORDERED.
ALISON RENEE LEE
ADMINISTRATIVE LAW JUDGE
September 3, 1997
Columbia, South Carolina. |