H 3427 Session 111 (1995-1996)
H 3427 General Bill, By Harrison and J.H. Hodges
A Bill to amend Section 1-23-610, relating to judicial review of decisions of
Administrative Law Judges, so as to further provide for the procedures for
such a review and for when such a judicial review is authorized.
01/31/95 House Introduced and read first time HJ-8
01/31/95 House Referred to Committee on Judiciary HJ-8
04/19/95 House Committee report: Favorable with amendment
Judiciary HJ-11
04/26/95 House Debate adjourned until Thursday, April 27, 1995 HJ-62
04/27/95 House Debate adjourned until Tuesday, May 2, 1995 HJ-27
05/02/95 House Objection by Rep. Felder, Simrill, Meacham,
Vaughn, Rice, Herdklotz, Easterday, Davenport,
Marchbanks & P. Harris HJ-16
05/17/95 House Debate adjourned until Tuesday, May 23, 1995 HJ-37
05/23/95 House Objection withdrawn by Rep. Simrill, Vaughn,
Rice, Herdklotz, Marchbanks & Easterday HJ-155
05/23/95 House Amended HJ-190
05/23/95 House Read second time HJ-202
05/24/95 House Read third time and sent to Senate HJ-7
05/24/95 Senate Introduced and read first time SJ-18
05/24/95 Senate Referred to Committee on Judiciary SJ-18
Indicates Matter Stricken
Indicates New Matter
AMENDED
May 23, 1995
H. 3427
Introduced by REPS. Harrison and Hodges
S. Printed 5/23/95--H.
Read the first time January 31, 1995.
A BILL
TO AMEND SECTION 1-23-610, RELATING TO JUDICIAL
REVIEW OF DECISIONS OF ADMINISTRATIVE LAW
JUDGES, SO AS TO FURTHER PROVIDE FOR THE
PROCEDURES FOR SUCH A REVIEW AND FOR WHEN SUCH
A JUDICIAL REVIEW IS AUTHORIZED.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Section 1-23-380(B) of the 1976 Code, as added
by Act 181 of 1993, is amended to read:
"(B) Review on appeal by an Administrative Law
Judge of a final decision in a contested case decided by a
professional and occupational licensing board within the Department
of Labor, Licensing, and Regulation another agency
shall be done in the same manner prescribed in (A) for Circuit
Court review of final agency decisions, with the presiding
Administrative Law Judge exercising the same authority as the
Circuit Court; provided, however, that a party aggrieved by a final
decision of an Administrative Law Judge in such a case
an appeal is entitled to judicial review of that decision by
the Circuit Court under the provisions of (A) of this section and
pursuant to Section 1-23-610(C)."
SECTION 2. Section 1-23-600 of the 1976 Code, as last
amended by Act 452 of 1994, is further amended to read:
"Section 1-23-600. (A) The hearings and proceedings
concerning A full and complete record shall be kept of
all contested cases and regulation hearings before an
Administrative Law Judge. All testimony must
shall be reported and need not be transcribed
and unless a transcript is requested by any party. The
party requesting a transcript shall be responsible for the costs
involved. Proceedings before Administrative Law Judges are
open to the public unless confidentiality is allowed or required by
law. The presiding Administrative Law Judge shall render the
decision in a written order. The decisions or orders of these
Administrative Law Judges are not required to be published but are
available for public inspection unless the confidentiality thereof is
allowed or required by law.
(B) An Administrative Law Judge of the division shall preside
over all hearings of contested cases as defined in Section 1-23-310
involving the departments of the executive branch of government
in which a single hearing officer is authorized or permitted by
law or regulation to hear and decide such cases, except those
arising under the Occupational Safety and Health Act, those
matters which are otherwise provided for in Title 56, those
hearings on contested cases conducted by the Coastal Council as
provided by law, or those other cases or hearings which are
prescribed for or mandated by federal law or regulation, unless
otherwise by law specifically assigned to the jurisdiction of the
Administrative Law Judge Division.
(C) Departments shall notify the Administrative Law Judge
Division of all pending contested cases. Upon notification, the
chief judge shall assign an Administrative Law Judge to each
contested case.
(D) An Administrative Law Judge of the division also shall
preside over all hearings of appeals from final decisions of
contested cases before professional and occupational licensing
boards or commissions within the Department of Labor, Licensing,
and Regulation pursuant to Section 1-23-380.
(E) The Administrative Law Judge Division shall hear
appeals of final decisions on contested cases made by the Coastal
Council as provided by law which shall be a de novo review.
Appeal of the final decision of the Administrative Law Judge
Division shall be to the Circuit Court as provided in Section 1-23-610.
(E) (F) Notwithstanding the other provisions of
this section, cases initiated before May 1, 1994, to which an
Administrative Law Judge would be assigned shall be heard and
decided by a special hearing officer appointed by the governing
authority of the appropriate department. A special hearing officer
shall have the same duties and authority as an Administrative Law
Judge under the provisions of this article. Cases initiated on or
after May 1, 1994, shall be heard and decided by an Administrative
Law Judge pursuant to the provisions of this article."
SECTION 3. Section 1-23-610 of the 1976 Code, as last
amended by Act 361 of 1994, is further amended to read:
"Section 1-23-610. (A) For quasi-judicial review
of any final decision of an Administrative Law Judge of cases
involving departments governed by a board or commission
authorized to exercise the sovereignty of the State, a petition by
an aggrieved party must be filed with the appropriate board or
commission Circuit Court and served on the opposing
party not more than thirty days after the party receives the final
decision and order of the Administrative Law Judge. Appeal in
these matters is by right. A party aggrieved by a final decision
of a board in such a case is entitled to judicial review of that
decision by the Circuit Court under the provisions of (A) of this
section and pursuant to Section 1-23-610(C).
(B) For judicial review of any final decision of an
Administrative Law Judge of cases involving departments governed
by a single director, a petition by an aggrieved party must be filed
with the Circuit Court and served on the opposing party not more
than thirty days after the party receives the final decision and order
of the Administrative Law Judge. Appeal in these matters is by
right.
(C) For judicial review of any final decision of an
Administrative Law Judge of cases involving professional and
occupational licensing boards within the Department of Labor,
Licensing, and Regulation, a petition by an aggrieved party must be
filed with the Circuit Court and served on the opposing party not
more than thirty days after the party receives the final decision and
order of the Administrative Law Judge. Appeal in these matters is
by right.
(D) (B) The review of the Administrative Law
Judge's order must be confined to the record. The reviewing
tribunal court may affirm the decision or remand
the case for further proceedings; or it may reverse or modify the
decision if the substantive rights of the petitioner has
have been prejudiced because of the finding, conclusion, or
decision is:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative and
substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
Where appropriations in the annual general appropriations act, or
where fees, fines, forfeitures or revenues imposed or collected by
agencies or commissions were required to be used for the hearing
of contested cases, such appropriations or monies must continue to
be used for these purposes after the effective date of this
article."
SECTION 4. Section 3-5-140 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 3-5-140. If the person in whose favor or the
person against whom such determination is made shall be
dissatisfied therewith, such person may apply to an Administrative
Law Judge to review the determination. An appeal from
the a decision in a contested case of the
Administrative Law Judge Coastal Council may be
taken to the Coastal Zone Management Appellate Panel
Administrative Law Judge Division for a de novo review as
provided under Article 5 of Chapter 23 of Title 1. An appeal
from the decision of the Panel an Administrative Law
Judge may be taken to the court of common pleas for the
county in which the oyster beds lie. The court shall review the
award as provided under Section 1-23-610. in the same
manner as reports of a master in equity are reviewed by the court
and the determination of the amount of the award by the court of
common pleas shall be final.
Before a review shall be granted to the person against whom the
award is made, such person shall pay to the person in whose favor
the award is made, one-half of the amount of the said award, and
shall file with the said clerk of court a bond conditioned for the
payment of the remaining half of the award or so much thereof as
may be finally awarded, such bond to be approved by the clerk of
court of the county in which the oyster beds lie as to form,
surety, and amount.
The final award shall be entered on record in the office of the
clerk of court of common pleas for the county in which the oyster
beds lie and when so entered shall have the force and effect of a
judgment. The amount of the award shall be limited to the direct
actual damage suffered by the person owning in fee or in leasehold
the oyster beds and the oysters growing therein."
SECTION 5. Section 48-39-40 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 48-39-40. (A) On July 1, 1994
1995, there is created the Coastal Zone Management
Appellate Panel Coastal Council which consists of
fourteen members, which shall act as an advisory council to the
Department of Health and Environmental Control. The Coastal
Council shall also preside over all hearings of contested cases
arising under Chapter 5 of Title 3 and Chapter 39 of Title 48.
The members of the panel council shall be
constituted as follows: eight members, one from each coastal zone
county, to be elected by a majority vote of the members of the
House of Representatives and a majority vote of the Senate
members representing the county from three nominees submitted by
the governing body of each coastal zone county, each House or
Senate member to have one vote; six members, one from each of
the congressional districts of the State, to be elected by a majority
vote of the members of the House of Representatives and the Senate
representing the counties in that district, each House or Senate
member to have one vote. The panel council shall
elect a chairman, vice-chairman, and other officers it considers
necessary.
(B) Terms of all members are for four years and until successors
are appointed and qualify. Members from congressional districts
serve terms of two years only as determined by lot at the first
meeting of the panel council. Vacancies must be
filled in the original manner of selection for the remainder of the
unexpired term.
(C) On July 1, 1994 1995, members of the
South Carolina Coastal Council South Carolina Coastal
Zone Management Appellate Panel, become members of the
South Carolina Coastal Zone Appellate Panel
Council and continue to serve until their terms expire.
Upon the expiration of their terms, members must be selected as
provided within this section."
SECTION 6. Section 48-39-150(D) of the 1976 Code is
amended to read:
"(D) Any applicant having a permit denied or any person
adversely affected by the granting of the permit has the right of
direct appeal from the a decision in a contested
case of the Administrative Law Judge Coastal
Council to the Administrative Law Judge Division for a de novo
review as provided under Article 5 of Chapter 23 of Title 1.
to the Coastal Zone Management Appellate Panel. Any
applicant having a permit denied may challenge the validity of any
or all reasons given for denial."
SECTION 7. Section 48-39-180 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 48-39-180. Any applicant whose permit
application has been finally denied, revoked, suspended, or
approved subject to conditions of the department by the Coastal
Zone Management Appellate Panel Administrative Law
Judge Division, or any person adversely affected by the permit
may, within twenty days after receiving notice thereof, file
petition in the Circuit Court having jurisdiction over the affected
land for a review of the department's action "de
novo" or as provided under Section
1-23-610 to determine whether the department's action so
restricts or otherwise affects the use of the property as to deprive
the owner of its existing practical use and is an unreasonable
exercise of the State's police power because the action constitutes
the equivalent of taking without compensation. If the court finds
the action to be an unreasonable exercise of the police power it
shall enter a finding that the action shall not apply to the land of
the plaintiff, or in the alternative, that the department shall pay
reasonable compensation for the loss of use of the land. The use
allowed by any permit issued under this chapter may, in the
discretion of the court, be stayed pending decision on all appeals
that may be taken. The Circuit Court may in its discretion require
that a reasonable bond be posted by any person. It is specifically
intended that any person whose permit application has been denied
may have such permit issued by the Circuit Court having
jurisdiction if such person can prove the reasons given for denial to
be invalid."
SECTION 8. Section 48-39-280 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 48-39-280. (A) A forty-year policy of retreat
from the shoreline is established. The department must implement
this policy and must utilize the best available scientific and
historical data in the implementation. The department must
establish a baseline which parallels the shoreline for each standard
erosion zone and each inlet erosion zone.
(1) The baseline for each standard erosion zone is established at
the location of the crest of the primary oceanfront sand dune in that
zone. In standard erosion zones in which the shoreline has been
altered naturally or artificially by the construction of erosion control
devices, groins, or other manmade alterations, the baseline must be
established by the department using the best scientific and historical
data, as where the crest of the primary oceanfront sand dunes for
that zone would be located if the shoreline had not been altered.
(2) The baseline for inlet erosion zones that are not stabilized
by jetties, terminal groins, or other structures must be determined
by the department as the most landward point of erosion at any
time during the past forty years, unless the best available scientific
and historical data of the inlet and adjacent beaches indicate that the
shoreline is unlikely to return to its former position. In collecting
and utilizing the best scientific and historical data available for the
implementation of the retreat policy, the department, as part of the
State Comprehensive Beach Management Plan provided for in this
chapter, among other factors, must consider: historical inlet
migration, inlet stability, channel and ebb tidal delta changes, the
effects of sediment bypassing on shorelines adjacent to the inlets,
and the effects of nearby beach restoration projects on inlet
sediment budgets.
(3) The baseline within inlet erosion zones that are stabilized by
jetties, terminal groins, or other structures must be determined in
the same manner as provided for in item (1). However, the actual
location of the crest of the primary oceanfront sand dunes of that
erosion zone is the baseline of that zone, not the location if the inlet
had remained unstabilized.
(4) Notwithstanding any other provision of this section, where a
department-approved beach nourishment project has been
completed, the local government or the landowners, with notice to
the local government, may petition an Administrative Law
Judge the department to move the baseline as far
seaward as the landward edge of the erosion control structure or
device or, if there is no existing erosion control structure or device,
then as far seaward as the post project baseline as determined by
the department in accordance with Section 48-39-280(A)(1) by
showing that the beach has been stabilized by department-approved
beach nourishment. If the petitioner is asking that the baseline be
moved seaward pursuant to this section, he must show an ongoing
commitment to renourishment which will stabilize and maintain the
dry sand beach at all stages of the tide for the foreseeable future. If
the Administrative Law Judge department grants the
petition to move the baseline seaward pursuant to this section, no
new construction may occur in the area between the former baseline
and the new baseline for three years after the initial beach
nourishment project has been completed as determined by the
department. If the beach nourishment fails to stabilize the beach
after a reasonable period of time, the department must move the
baseline landward to the primary oceanfront sand dune as
determined pursuant to items (1), (2), and (3) for that section of
the beach. Any appeal of an Administrative Law Judge's
the department's decision shall be made to the Coastal Council.
Any appeal of a decision in a contested case by the Coastal
Council decision under this section may be made to the
Coastal Zone Management Appellate Panel
Administrative Law Judge Division for a de novo review as
provided under Article 5 of Chapter 23 of Title 1.
(B) To implement the retreat policy provided for in subsection
(A), a setback line must be established landward of the baseline a
distance which is forty times the average annual erosion rate or not
less than twenty feet from the baseline for each erosion zone based
upon the best historical and scientific data adopted by the
department as a part of the State Comprehensive Beach
Management Plan.
(C) The department, before July 3, 1991, must establish a final
baseline and setback line for each erosion zone based on the best
available scientific and historical data as provided in subsection (B)
and with consideration of public input. The baseline and setback
line must not be revised before July 1, 1998, nor later than July 1,
2000. After that revision, the baseline and setback line must be
revised not less than every eight years but not more than every ten
years after each preceding revision. In the establishment and
revision of the baseline and setback line, the department must
transmit and otherwise make readily available to the public all
information upon which its decisions are based for the
establishment of the final baseline and setback line. The
department must hold one public hearing before establishing the
final baseline and setback lines. Until the department establishes
new baselines and setback lines, the existing baselines and setback
lines must be used. The department may stagger the revision of the
baselines and setback lines of the erosion zones so long as every
zone is revised in accordance with the time guidelines established in
this section.
(D) In order to locate the baseline and the setback line, the
department must establish monumented and controlled survey points
in each county fronting the Atlantic Ocean. The department must
acquire sufficient surveyed topographical information on which to
locate the baseline. Surveyed topographical data typically must be
gathered at two thousand foot intervals. However, in areas subject
to significant near-term development and in areas currently
developed, the interval, at the discretion of the department, may be
more frequent. The resulting surveys must locate the crest of the
primary oceanfront sand dunes to be used as the baseline for
computing the forty-year erosion rate. In cases where no primary
oceanfront sand dunes exist, a study conducted by the department is
required to determine where the upland location of the crest of the
primary oceanfront sand dune would be located if the shoreline had
not been altered. The department, by regulation, may exempt
specifically described portions of the coastline from the survey
requirements of this section when, in its judgment, the portions of
coastline are not subject to erosion or are not likely to be developed
by virtue of local, state, or federal programs in effect on the
coastline which would preclude significant development, or both.
(E) A landowner claiming ownership of property affected who
feels that the final or revised setback line, baseline, or erosion rate
as adopted is in error, upon submittal of substantiating evidence,
must be granted a review of the setback line, baseline, or erosion
rate, or a review of all three. The requests must be forwarded to
the Coastal Zone Management Appellate Panel and handled in
accordance with the department's regulations on appeals
department. Any appeal of the department's decision
shall be made to the Coastal Council. Any appeal of a decision by
the Coastal Council in a contested case may be made to the
Administrative Law Judge Division for de novo review as provided
under Article 5 of Chapter 23 of Title 1."
SECTION 9. Section 48-39-290(D)(4) of the 1976 Code, as last
amended by Act 607 of 1990, is further amended to read:
"(4) A party aggrieved by the committee's
department's decision to grant or deny a special permit
application may appeal to the full Coastal Zone Management
Appellate Panel pursuant to Section 48-39-150(D) Coastal
Council. Any appeal of the decision by the Coastal Council
may be made to the Administrative Law Judge Division for a de
novo review as provided under Article 5 of Chapter 23 of Title
1."
SECTION 10. The Code Commissioner is directed to conform
any appropriate references contained in Article 5, Chapter 23 of
Title 1 or in any other provision of law to the provisions of this act.
SECTION 11. The 1976 Code is amended by adding:
"Section 1-23-605. In contested case hearings involving
applications for alcoholic liquor or beer or wine licenses or permits
under Title 61, the Administrative Law Judge Division may receive
and consider as a factor in making its decision a written statement
of the governing body of the county or municipality wherein the
establishment is or will be located as to its position on the license
or permit application."
SECTION 12. This act takes effect July 1, 1995.
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