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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Mount Pleasant Waterworks and Sewer Commission vs. SCDHEC, et al

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Mount Pleasant Waterworks and Sewer Commission


Respondent:
South Carolina Department of Health and Environmental Control, and David Sykes, Agent for Prospec Electronics
 
DOCKET NUMBER:
96-ALJ-07-0287-CC

APPEARANCES:
David G. Jennings, Esquire
Attorney for Petitioner

Cheryl H. Bullard, Esquire and
Samuel L. Finklea, Esquire
Attorneys for Respondent South Carolina Department of Health and Environmental Control

Stan Barnett, Esquire
Attorney for Respondent Prospec Electronics of South Carolina
 

ORDERS:

ORDER

STATEMENT OF THE CASE

This matter comes before me upon Motions to Dismiss filed by Respondents, South Carolina Department of Health and Environmental Control ("Department") and Prospec Electronics of South Carolina ("Prospec"), seeking to have the petitions filed by Mount Pleasant Waterworks and Sewer Commission ("Mount Pleasant") dismissed for failure to comply with S.C. Code Regs. 61-72, § 201(A) (Supp. 1995). Respondents allege that Mount Pleasant's petitions protesting the Department's issuance of a septic tank permit and a water permit to Respondent Prospec were untimely filed.

A motions hearing was conducted on July 23, 1996, at which time oral arguments on the Motions to Dismiss were presented by counsel. At the hearing, this tribunal authorized the parties to submit additional information in support of their positions by August 9, 1996.

Upon careful consideration of the arguments of the parties, the applicable law, and the affidavits and exhibits submitted by the parties, the Respondents' Motions to Dismiss are granted. Pursuant to ALJD Rule 29(B), any motions or issues raised in conjunction with the July 23, 1996 motions hearing, not expressly addressed in this Order, are deemed denied or without merit.

STATEMENT OF THE FACTS

Respondent Prospec applied for a permit to construct an on-site sewage disposal system ("septic tank permit" #138-96) which was issued by the Department on February 21, 1996. Prospec also applied for a permit to construct a water system ("water permit" #TD1075) which was issued by the Department on May 9, 1996.

Petitioner Mount Pleasant is a water and sewer commission for the Town of Mount Pleasant, South Carolina. Respondent Prospec has constructed a facility outside the corporate limits of the Town of Mount Pleasant. The land on which the facility has been constructed has not been annexed by the Town of Mount Pleasant.

In an affidavit dated July 31, 1996, James R. McCollum, the project manager for the Prospec project, described two telephone calls from Angelo Hassig, an official for Mount Pleasant. The first call was received during the week of April 22, 1996 in which Mr. Hassig insisted that Prospec would be required to tie into the Petitioner's water and sewer systems. Mr. McCollum informed Mr. Hassig that Prospec was not located in the Town of Mount Pleasant and was not going to tie into the Petitioner's systems, but was securing a septic tank permit and a water system permit from the Department. The second call occurred several days later, but prior to May 8, 1996, and the conversation was essentially a repetition of the first call. This call was followed by a letter dated May 8, 1996.

In an affidavit dated August 1, 1996, Jennings Wise, Jr., an employee for the Department, explained to Mr. Hassig on May 3, 1996, that a septic tank permit was issued by the Department on February 21, 1996 and that Prospec was applying for a water permit from the Department. A copy of the septic tank permit was faxed to Mr. Hassig at his request along with some related documents.

In an affidavit submitted by the Petitioner at the motions hearing, Mr. Duffie verified Mount Pleasant received a facsimile message from the Department of Health and Environmental Control in North Charleston concerning Prospec's application for a septic tank permit. On May 3, 1996, this fax was sent to Mr. Hassig by Mr. Wise. The facsimile consisted of eight (8) pages:

Page One: Page one of the fax was the fax cover sheet. There was a message written on the cover sheet which indicated, "This is what we [the Department] have in our files, hope it helps! No final approval yet---."
Page Two: Page two of the fax was a permit application for a septic tank permit, which had been completed and submitted to the Department by Respondent Prospec on January 23, 1996.
Page Three: Page three of the fax was a permit application processing form, which indicates that $60.00 was paid for the septic tank permit application.
Pages Four and Five: Pages four and five were two pages of a fax received by Mr. Wise from the Charleston County Planning Department, which was the Site Plan Review Application submitted to the Charleston County Planning Department by Prospec Electronics.
Page Six: Page six was a permit to construct an onsite sewage treatment and disposal system, which was issued to Prospec by the Department on February 21, 1996. The permit to construct an on-site sewage treatment and disposal system was signed by a Department official and contained five special conditions to which the applicant had to adhere during construction.
The permit indicated that Prospec was installing a private well, and contained system specifications on where the private well should be located in relation to the septic tank. Condition #2 was that "the private well must be a minimum of 100' to any part of the system per EQC Specs." Condition #5 was that the "well [be] certified prior to approval." There was a sketch of the proposed construction which indicated that the "private well must be 100' minimum to septic system."
Page Seven: Page seven of the fax transmittal was a Charleston County Planning Department Subdivision Application which was received by the Department on November 16, 1995.
Page Eight: Page eight of the fax transmittal was a Department Report For Approval of an Exempt Plat.


Petitioner's Exhibit A.

On May 8, 1996, Mr. Duffie wrote a letter to Victor Apat, President of Complete Building Corporation, the company constructing this project, indicating that:

It has come to the Commission's attention that you [Prospec] are in the process of constructing the above referenced project on Highway 17 just south of Charleston National. Please be advised that this development is located in the Commission's water and waste water service area. In accordance with the Commission's Guidelines for Development, a "Letter of Intent" to develop and construction plans must be submitted for our review to determine the appropriate means of connection to our systems. The Commission request [sic] you submit this information so that we may proceed with connecting your development to our existing water and wastewater infrastructure. . . .


Petitioner's Exhibit B.

On May 21, 1996, Mr. Apat wrote Mr. Duffie responding to his letter. Mr. Apat explained that the project was under the jurisdiction of Charleston County and all necessary approvals and permits for the construction of the project had been received, including a septic tank system and a well. Petitioner's Exhibit C. This letter was received by the Commission on May 23, 1996.

On June 4, 1996, Mr. Wise faxed the water permit to Mr. Angelo, an official for the Commission. This fax consisted of a letter to David Sykes, agent for Prospec, dated May 9, 1996, informing him of the approval of his water permit and a water permit for a small water system issued to Prospec by the Department on May 9, 1996. Petitioner's Exhibit D.

On June 5, 1996, Mount Pleasant sent two letters to the Trident Public Health District, a division of the Department with offices in Charleston, South Carolina, appealing the issuance of the septic tank permit and the water permit to Prospec. Petitioner's Exhibits E and F. These letters were received by the Department on June 6, 1996. On June 14, 1996, the Department transmitted Mount Pleasant's request for appeal to the Administrative Law Judge Division. Respondents now move to dismiss Petitioner's appeals on the ground that Petitioner did not file a timely request for an appeal of the Department's issuance of the septic tank permit or the water permit as required in 25 S.C. Code Regs. 61-72, § 201(A) (Supp. 1995).

CONCLUSIONS OF LAW AND DISCUSSION

A. Jurisdiction of the Administrative Law Judge

The Administrative Law Judge Division ("ALJD") is authorized by S.C. Code Ann. §§ 1-23-310 and 1-23-610 (Supp. 1995) to preside over contested cases. In this matter, Respondents allege that Mount Pleasant untimely filed its request for a contested case hearing to protest the Department's issuance of a septic tank permit and a water permit to Respondent Prospec. "Service of the notice of intent to appeal is a jurisdictional requirement, and this tribunal has no authority to extend or expand the time in which the notice of intent to appeal must be served." Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985).

As a basis for providing a uniform method to determine its jurisdiction in contested cases, ALJD Rule 11 was adopted by the ALJD. This rule provides:

The request for a contested case hearing shall be filed with the agency with subject matter jurisdiction within the time frame authorized by that agency. . . .

ALJD Rule 11 (Supp. 1996).

The Department is the agency with subject matter jurisdiction in this matter. Therefore, the question of whether this tribunal has jurisdiction is dependent upon whether Petitioner filed its request for a contested case hearing within the time frame authorized by the Department.

Respondents allege that Petitioner's appeal must be dismissed because Petitioner failed to file its Petition for a contested case hearing within the time frame authorized by the Department in S.C. Code Regs 61-72, § 201(A) (Supp. 1995). Section 201(A) sets forth the regulatory provisions governing requests for administrative review from agency decisions on licensing matters. This section provides:

Section 201. Petition. A. Any person may request an adjudicatory hearing by filing a Petition for Administrative Review with the Clerk of the Board. Any such Petition must be filed within 15 days, or other period provided by law, following actual or constructive notice of a final staff decision on a licensing matter as defined above, or following receipt of an administrative order.

25 S.C. Code Regs 61-72, § 201(A) (Supp. 1995). (emphasis added).

It is well established that in interpreting a regulation, the sole function of this tribunal is to determine and give effect to the intention of the drafter, with reference to the meaning of the language used and the subject matter and purpose of the regulation. See State v. Ramsey, 311 S.C. 555, 430 S.E.2d 511 (1993). Words must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the regulation's operation. See State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991); Higgins v. State, 307 S.C. 446, 415 S.E.2d 799 (1992).

Regs. 61-72, § 201(A) is clear and unambiguous. This tribunal interprets the plain language of Regs. 61-72, § 201(A) to mean that to effect an appeal, a person must file a petition for an adjudicatory hearing within fifteen (15) days following actual or constructive notice of a final staff decision on a licensing matter. Hence, the operative words are "actual or constructive notice" and "of a final staff decision." As such, the question before this tribunal is whether Petitioner filed its appeals within 15 days of actual or constructive notice of the final staff decisions of the Department.

B. Notice Generally

Notice is defined as "information concerning a fact, actually communicated to a person by the authorized person, or actually derived by him from a proper source." Blacks Law Dictionary, 1061 (6th ed. 1990). Notice is further defined as "knowledge of facts which would naturally lead an honest and prudent person to make inquiry, and does not necessarily mean knowledge of all facts." Id. Similarly, it has been held that "if there are circumstances sufficient to put the party upon inquiry, he is held to have notice of everything which that inquiry, properly conducted, would certainly disclose." City of Greenville v. Washington American League Baseball Club, et al., 205 S.C. 495, 32 S.E.2d 777 (1945).

The burden of proving notice rests with the party asserting its existence. See 66 C.J.S. Notice § 21 at 674 (1950). In the instant case, Respondents assert that Petitioner had notice of the issuance of the septic tank permit and the water permit. Thus, Respondents carry the burden of proving that Petitioner had notice of the permits in question. In this regard, a motion to dismiss for lack of subject matter jurisdiction may be supported by, and a court may consider, affidavits or other evidence proving lack of jurisdiction. Woodard v. Westvaco Corporation, __ S.C. __, 433 S.E.2d 890 (Ct. App. 1993), vacated on other grounds, __ S.C.__, 460 S.E.2d 392 (1995). Furthermore, the pleadings presented to this tribunal, i.e., affidavits, memoranda, and exhibits, should be viewed in a light most favorable to Petitioner, the nonmoving party. SeeFuller-Ahrens Partnership v. S.C. Dept. of Highways and Public Transportation, 311 S.C. 177, 427 S.E.2d 920 (Ct. App. 1993).

Again, Regs. 61-72, § 201(A) requires that the 15-day appeal period run from the date the person requesting review had actual or constructive notice of the final staff decision.(1)

1. Actual Notice

Actual Notice has been defined as "notice expressly and actually given. . . ." Blacks Law Dictionary, 1061 (6th ed. 1990). Accordingly, actual notice is generally regarded as such "when the person sought to be affected by it knows of the existence of the particular fact in question, or is conscious of having the means of knowing it." 66 C.J.S. Notice § 3 at 637 (1950). "Actual notice may be inferred from the circumstances." Patellis v. Tanner, 197 Ga. 471, 29 S.E.2d 419 (Ct. App. 1944). Where there are circumstances sufficient to put a party upon inquiry he is held to have notice of everything which an inquiry, properly conducted would disclose. City of Greenville v. Washington American League Baseball Club, et al., 205 S.C. 495, 32 S.E.2d 777 (1945). Additionally, it has been held that "that which puts a party upon inquiry may be the equivalent of actual notice." Patellis v. Tanner, 197 Ga. 471, S.E.2d 419 (Ct. App. 1944).

"Actual notice is synonymous with knowledge." Hannah v. United Refrigerated Services, Inc., 312 S.C. 42, 430 S.E.2d 539 (Ct.App. 1993). "The law imputes knowledge when opportunity and interest, coupled with reasonable care, would necessarily impart it." Nettles v. Childs, 100 F.2d 952, 957 (4th Cir. 1939). "No one needs notice of what he already knows." Hannah v. United Refrigerated Services, Inc., 312 S.C. 42, 430 S.E.2d 539 (Ct.App. 1993); Walker v. Preacher, 185 S.C. 462, 194 S.E. 868 (1938).

2. Constructive Notice

Constructive notice is defined as "information or knowledge of a fact imputed by law to a person, because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring into it." Blacks Law Dictionary, 1062 (6th ed. 1990). A person who has been notified of an action or proceeding in which he is directly interested may be obligated to exercise reasonable diligence to protect his interest. 66 C.J.S. Notice § 19 at 669 (1950). Constructive notice is a legal inference from established facts, and like other legal presumptions does not admit of dispute. Williams v. Jefferson Standard Life Ins. Co., et al., 187 S.C. 103, 196 S.E. 519 (1938). "It is in its nature no more than evidence of notice, the presumption of which is so violent that the Courts will not even allow its being controverted." Id. "When a person has notice of such facts as are sufficient to put him upon inquiry, which, if pursued with due diligence, would lead to knowledge of other facts, he must be presumed to have knowledge of the undisclosed facts." Norris v. Greenville, S. & A. Ry. Co., 111 S.C. 322, 97 S.E. 848 (1919).

A person who is wholly ignorant of facts from which the presumption of constructive notice arises does not have "constructive notice" of such facts. Id. In the definition of "constructive notice," Black's Law Dictionary provides "if one by exercise of reasonable course would have known a fact, he is deemed to have had constructive knowledge of such fact." Black's Law Dictionary 314 (6th ed. 1990). "Constructive notice, strictly speaking, is ineffective unless there is a statute providing therefore." Williams v. Jefferson Standard Life Ins. Co., et al., 187 S.C. 103, 196 S.E. 519 (1938).

C. Septic Tank Permit

Mount Pleasant had actual notice of the issuance of a septic tank permit to Prospec on May 3, 1996. "When a person knows of a thing he has 'notice' thereof . . . ." Walker v. Preacher et al., 185 S.C. 462, 194 S.E. 870 (1938). Here, the undisputed facts presented to this tribunal were sufficient to prove that Mount Pleasant knew of the existence of the septic tank permit issued to Prospec by the Department on May 3, 1996. See 66 C.J.S. Notice § 3 (1950). This notice occurred when Mount Pleasant received a faxed copy of the actual septic tank permit issued by the Department to Prospec. The faxed copy of the permit, entitled "Permit to Construct-Certificate of Approval/ On Site Sewage Treatment and Disposal System," indicated that a septic tank permit had been signed and issued to Respondent Prospec on February 21, 1996 by an official for the Department. The permit listed special instructions/conditions which were to be abided by in the construction of the septic tank. Surely, the receipt of a copy of the permit is actual notice thereof. See Walker v. Preacher et al., 185 S.C. 462, 194 S.E. 870 (1938).

Mount Pleasant argues that although a copy of the septic tank permit was received by fax transmission, the cover sheet stated "no final approval yet," thus this fax did not serve as notice of a septic tank permit being issued by the Department. The transmission of the actual permit allowed Mount Pleasant to review the permit which had been issued, and inquire as to the status/finality of the septic tank permit.

Even if this tribunal had not concluded that Mount Pleasant had actual notice on May 3, 1996, certainly on these facts, Mount Pleasant had constructive notice of the issuance of the septic tank permit. Even under the most expansive reading of S.C. Code Regs. 61-72, Mount Pleasant's appeal of the septic tank permit was untimely. The above-stated facts were sufficient to put the Petitioner upon inquiry of the issuance of the septic tank permit on May 3, 1996. See City of Greenville v. Washington American League Baseball Club, et al., 205 S.C. 495, 32 S.E.2d 777 (1945).

Furthermore, the facts indicate Petitioner had constructive notice on May 8, 1996. By the mere definition of constructive notice, Petitioner is charged with notice of such facts as could have been ascertained by proper inquiry. Petitioner was aware that a facility was being constructed for which it had not granted permits for a septic tank or a well. Reasonable inquiry would have disclosed the facts concerning the issuance of a septic tank permit. Mount Pleasant admitted notification of the construction of the project by letter dated May 8, 1996. In this letter, Mount Pleasant indicated it was aware that Respondent Prospec had begun the construction of a project on Highway 17 which required the use of a water system, and no permits were applied for through Mount Pleasant. See Petitioner's Exhibit B. A person charged with constructive notice is as much bound thereby, as if notice were actual.

Regardless of the legal definition of "notice" (i.e., actual or constructive) applied in the instant case, based on the facts, I conclude that Petitioner's requests for an adjudicatory hearing to protest the issuance of the septic tank permit was untimely. The fax, which included a copy of the septic tank permit, was received by the Petitioner on May 3, 1996. Furthermore, Mount Pleasant was aware of the construction of the Prospec project as early as May 8, 1996 and should have inquired as to the issuance of a septic tank permit. See City of Greenville v. Washington American League Baseball Club, et al., 205 S.C. 495, 32 S.E.2d 777 (1945); Nettles v. Childs, 100 F.2d 952, 957 (4th Cir. 1939); Norris v. Greenville, S. & A. Ry. Co., 111 S.C. 322, 97 S.E. 848 (1919). Petitioner's letter requesting a contested case to protest the issuance of the septic tank permit was not received by the Department until June 6, 1996. Thus, Petitioner's service of the notice of appeal of the Department's decision to issue a septic tank permit to Prospec was untimely. Accordingly, the appeal of the septic tank permit is dismissed.

D. Water Permit

Mount Pleasant had constructive notice of the water permit which was issued to Prospec on May 9, 1996. Employees of Mount Pleasant were in contact with both the Department and Prospec regarding a water system and septic tank system prior to May 9, 1996. The copy of the septic tank permit received by Mount Pleasant on May 3, 1996, indicated that Prospec was installing a private well, and also contained system specifications on where the private well should be located in relation to the septic tank. Furthermore, in its May 8, 1996 letter, Mount Pleasant indicated it was aware that Respondent Prospec had begun the construction of a project on Highway 17 which required the use of a water system, and no permits were applied for through Mount Pleasant. These facts were sufficient to put Mount Pleasant upon inquiry of the issuance of the water permit. By May 9, 1996, the date of the issuance of the water permit, Mount Pleasant knew that a water permit was under consideration and clearly had a direct interest in whether or not the permit was granted. The issuance of the actual permit could have been discovered shortly thereafter. If Mount Pleasant had exercised proper diligence or reasonable care, Mount Pleasant would have known of the issuance of the water permit, i.e, the final staff decision. See City of Greenville v. Washington American League Baseball Club, et al., 205 S.C. 495, 32 S.E.2d 777 (1945); Nettles v. Childs, 100 F.2d 952, 957 (4th Cir. 1939); Norris v. Greenville, S. & A. Ry. Co., 111 S.C. 322, 97 S.E. 848 (1919). Therefore, Mount Pleasant is deemed to have had constructive knowledge of the issuance of the water permit on May 9, 1996. Notice or knowledge must be determined from the facts of each case, as this is the only measure. Nettles v. Childs, 100 F.2d 952 (1939); Wheeler v. Corley, 106 S.C. 319, 91 S.E. 307 (1917). In this case, the facts militate the legal inference of Petitioner's constructive notice of the issuance of the water permit. Under these circumstances, to hold otherwise would be tantamount to allowing the Petitioner to "close its eyes" and "cover its ears" to facts which would lead an honest and prudent person to make inquiry. See City of Greenville v. Washington American League Baseball Club, et al., 205 S.C. 495, 32 S.E.2d 777 (1945); Williams v. Jefferson Standard Life Ins. Co., et al., __ S.C. __, 196 S.E. 519 (1938); Norris v. Greenville, S. & A. Ry. Co., 111 S.C. 322, 97 S.E. 848 (1919). Mount Pleasant did not request a review of the Department's issuance of the water permit until June 6, 1996. Therefore, Mount Pleasant's request was untimely and Respondents' Motions to Dismiss are hereby granted.

ORDER

IT IS THEREFORE ORDERED that Respondents' Motions to Dismiss these cases (Docket Nos. 96-ALJ-07-0287-CC and 96-ALJ-07-0288-CC) for lack of subject matter jurisdiction are hereby granted because of Petitioner's untimely filing of the appeals.

AND IT IS SO ORDERED.

_________________________________

JOHN D. GEATHERS

Administrative Law Judge

P.O. Box 11667

Columbia, South Carolina 29211-1667

September 11, 1996

Columbia, South Carolina



___________________________

Fn1. Prior to 1993, Regulation 61-72 provided that a petition for review had to be filed "within fifteen (15) days following any final administrative decision by the Department on an application, permit, certificate or other licensing matter." 25 S.C. Code Regs. 61-72, II(A) (1976). This earlier version of the regulation expressly provided that the 15-day appeal period ran from the date of decision.

The 1993 amendment, effective April 23, 1993, rewrote this regulation. See 25 S.C. Code Regs. 61-72 history note (Cum. Supp. 1995) (citing S.C. State Register Vol. 17, Issue

No. 4). The amended regulation expressly provides that the 15-day appeal period runs from the date the person seeking review received "actual or constructive notice of a final staff decision on a licensing matter. . . ." 25 S.C. Code Regs, 61-72, § 201(A).

In adopting an amendment to a statute, the legislature is presumed to have intended to change existing law. See Vernon v. Harleyville Mutual Casualty Co., 244 S.C. 152, 135 S.E.2d 841 (1964). The 1993 amendment to Regs. 61-72, § 201 indicates a clear intention to change the date on which the 15 day appeal period commences from the date of decision to the date of actual or constructive notice of the final staff decision.


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