Printed Page 3907, May 23
| Printed Page 3920, May 23
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Printed Page 3907, May 23
| Printed Page 3920, May 23
| 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
(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
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.
(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
(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:
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. This act takes effect July 1, 1995./
Renumber sections to conform.
Amend totals and title to conform.
Rep. HARRISON explained the amendment.
The amendment was then adopted.
Rep. HARRISON proposed the following Amendment No. 2 (Doc Name L:\council\legis\amend\GJK\21763SD.95), which was adopted.
Amend the Report of the Committee on Judiciary, as and if amended, by striking subsection (A) of Section 1-23-600 of the 1976 Code, which begins on line 40, page 3427-1, and inserting:
/(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./
Renumber sections to conform.
Amend totals and title to conform.
Rep. HARRISON explained the amendment.
The amendment was then adopted.
Rep. HARRISON proposed the following Amendment No. 3 (Doc Name
L:\council\legis\amend\GJK\21912SD.95), which was adopted.
/(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)./
Amend the bill further, as and if amended, by striking Section 1-23-600(D) of the 1976 Code, as contained in SECTION 2, and inserting:
/(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./
Renumber sections to conform.
Amend totals and title to conform.
Rep. HARRISON explained the amendment.
The amendment was then adopted.
Rep. FAIR proposed the following Amendment No. 4 (Doc Name L:\council\legis\amend\GJK\21919SD.95), which was adopted.
Amend the bill, as and if amended, by adding a new section appropriately numbered to read:
/SECTION . 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."/
Renumber sections to conform.
Amend totals and title to conform.
Rep. FAIR explained the amendment.
The amendment was then adopted.
Amend the bill, as and if amended, by adding an appropriately numbered SECTION to read:
/SECTION __. Article 5, Chapter 36, Title 12 of the 1976 Code is amended by adding:
"Section 12-36-580. An establishment required to have the retail license provided in this article may not give away beer and wine to patrons or allow the consumption of beer and wine on the premises of the establishment without first obtaining the license provided pursuant to Section 61-9-310 for the on-premises consumption of beer and wine."/
Renumber sections to conform.
Amend totals and title to conform.
Rep. FAIR explained the amendment.
Rep. TUCKER raised the Point of Order that Amendment No. 5 was out of order as it was not germane.
Rep. FAIR argued contra to the Point in stating that it was germane as it did relate to the amendments adopted.
The SPEAKER stated that it did not relate and it was not germane and he sustained the Point of Order and ruled the amendment out of order.
Rep. HARRISON proposed the following Amendment No. 6 (Doc Name L:\council\legis\amend\GJK\22009SD.95), which was tabled.
Amend the Report of the Committee on Judiciary, as and if amended, by striking Section 1-23-610 of the 1976 Code, as contained in SECTION 3, and inserting:
/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
(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.
(B) For review of any final decision of an Administrative Law Judge of cases involving the Department of Health and Environmental Control, other than decisions of Coastal Council which are appealed to the Administrative Law Judge Division pursuant to Section 1-23-600(E), a petition by an aggrieved party must be filed with the Board of the Department of Health and Environmental Control 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 the Board of the Department of Health and Environmental control in such a case is entitled to judicial review of that decision by the Circuit Court.
(D) (C) The review of the Administrative Law Judge's order must be confined to the record. The reviewing tribunal 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./
Renumber sections to conform.
Amend totals and title to conform.
Rep. HARRISON explained the amendment.
Rep. HODGES spoke against the amendment.
Rep. HODGES moved to table the amendment, which was agreed to.
The Bill, as amended, was read the second time and ordered to third reading.
Rep. JENNINGS moved that the House do now adjourn.
Rep. SCOTT demanded the yeas and nays, which were taken resulting as
follows:
Those who voted in the affirmative are:
Anderson Baxley Boan Brown, J. Byrd Carnell Cato Chamblee Clyburn Cobb-Hunter Cooper Delleney Easterday Elliott Fair Fleming Gamble Hallman Harris, J. Harrison Haskins Herdklotz Hines Hodges Howard Inabinett Jaskwhich Jennings Kinon Kirsh Koon Lloyd Marchbanks Mason McAbee McCraw McElveen McMahand Moody-Lawrence Neal Rice Robinson Rogers Smith, D. Smith, R. Spearman Stille Townsend Tripp Trotter Tucker Whipper, L. Whipper, S. Wilder Young, J.
Allison Cain Cave Cotty Cromer Dantzler Fulmer Govan Hutson Keegan Kelley Kennedy Keyserling Klauber Knotts Lanford Law Limbaugh Limehouse Littlejohn Martin Meacham Phillips Quinn Richardson Riser Sandifer Scott Shissias Simrill Stuart Thomas Vaughn Walker Wells Whatley White Wilkins Witherspoon Wofford Worley Wright Young, A.
So, the motion to adjourn was agreed to.
Printed Page 3907, May 23
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