Current Status Bill Number:3427 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19950131 Primary Sponsor:Harrison All Sponsors:Harrison and Hodges Drafted Document Number:br1\18103sd.95 Residing Body:Senate Current Committee:Judiciary Committee 11 SJ Date of Last Amendment:19950523 Subject:Administrative Law Judges
Body Date Action Description Com Leg Involved
______ ________ _______________________________________ _______ ____________
Senate 19950524 Introduced, read first time, 11 SJ
referred to Committee
House 19950524 Read third time, sent to Senate
House 19950523 Amended, read second time
House 19950523 Objection withdrawn by Representative Simrill
Vaughn
Rice
Herdklotz
Marchbanks
Easterday
House 19950517 Debate adjourned until
Tuesday, 19950523
House 19950502 Objection by Representative Felder
Simrill
Meacham
Vaughn
Rice
Herdklotz
Easterday
Davenport
Marchbanks
P. Harris
House 19950427 Debate adjourned until
Tuesday, 19950502
House 19950426 Debate adjourned until
Thursday, 19950427
House 19950419 Committee report: Favorable with 25 HJ
amendment
House 19950131 Introduced, read first time, 25 HJ
referred to Committee
View additional legislative information at the LPITS web site.
Indicates Matter Stricken
Indicates New Matter
AMENDED
May 23, 1995
H. 3427
S. Printed 5/23/95--H.
Read the first time January 31, 1995.
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.