SC DHEC v. Philip Przyborowski

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR. THE STATE OF SOUTH CAROLINA In The Court of Appeals S.C. Department of Health and Environmental Control, Appellant, v. Philip Przyborowski, Respondent. Appeal From Richland County Ralph K. Anderson, III, Administrative Law Court Judge Unpublished Opinion No. 2010-UP-182 Heard October 7, 2009 – Filed March 1, 2010 Withdrawn, Substituted and Refiled June 28, 2010 AFFIRMED AS MODIFIED Carlisle Roberts, Jr., of Columbia; Davis Arjuna Whitfield-Cargile, of Charleston; Elizabeth Applegate Dieck and Evander Whitehead, both of North Charleston, for Appellant. Christopher Holmes, of Mount Pleasant, for Respondent. PER CURIAM: This appeal concerns an administrative enforcement order issued by South Carolina Department of Health and Environmental Control (the Department) against Philip Przyborowski requiring the removal of a previously approved private dock on the ground that it exceeded the maximum allowable dimensions under the applicable regulation. In the appealed order, the ALC determined that given the absence of any enforcement action against a similarly situated dock owner, the Department's institution of an enforcement action against Przyborowski "reflect[ed] arbitrary and purposeful discrimination in the administration of the law." The Department appeals. We affirm the following issues raised by the Department pursuant to Rule 220(b), SCACR, and the following authorities: (1) as to the timeliness of Przyborowski's request for review: Rule 6(e), SCRCP (allowing five additional days to any prescribed period after service for a party to respond if service was by mail); Rule 3(C), SCALCR (providing a similar extension to that in Rule 6(e), SCRCP), and (2) as to issues relating to the ALC's finding that the Department's enforcement action against Przyborowski was arbitrary: S.C. Code Ann. § 1-23-610(B) (Supp. 2009) ("The court may not substitute its judgment for the judgment of the administrative law judge as to the weight of the evidence on questions of fact."); Neal v. Brown, 383 S.C. 619, 623, 682 S.E.2d 268, 269 (2009) ("In permitting cases, the ALC serves as the finder of fact."). Pursuant to section 1-23-610(B)(e) and (f), however, we modify the appealed order to uphold the dismissal of the enforcement action based on the ALC's finding that the enforcement action was arbitrary, rather than on the finding that the action amounted to a violation of Przyborowski's equal protection rights. Based on our decision to affirm the appealed order, we decline to address Przyborowski's argument that the ALC erred in holding it could not invoke equitable estoppel as a defense to the Department's enforcement action. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating an appellate court need not address remaining issues when a decision on a prior issue is dispositive); Whiteside v. Cherokee County Sch. Dist. No. One, 311 S.C. 335, 340, 428 S.E.2d 886, 889 (1993) (declining to address certain issues on appeal because the decision on another issue was dispositive). AFFIRMED AS MODIFIED. HUFF, THOMAS, and PIEPER, JJ., concur.