South Carolina Supreme Court Decisions for March 18, 2015

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On Wednesday, March 18, 2015, the South Carolina Supreme Court published three opinions: Dreher v. SCDHEC, The Spriggs Group v. Slivka, and Lewis v. L.B. Dynasty.

In  Dreher v. SCDHEC, the Court affirms, as modified, the court of appeals’ decision in Dreher v. South Carolina Department of Health & Enviromental Control, 730 S.E. 2d 922 (Ct. App. 2012), reversing the Administrative Law Court’s denial of Ann Dreher’s bridge construction permit application.

Dreher had purchased two parcels of property located in Folly Island, South Carolina. The two lots were previously a contiguous tract of high ground property. Prior to Dreher’s purchase, two man-made canals were constructed, separating the two properties. Dreher filed a permit application with DHEC requesting permission to construct a vehicular bridge to connect the two properties. DHEC denied the application citing to Regulation 30-12(N)(2)(c)  that prohibits the agency from issuing a bridge construction permit to “coastal island” less than two acres in size. The East Cooper Avenue property is approximately 0.24 acres in size, and Tract D is approximately 0.84 acres in size. Both parties agreed that if Tract D was a coastal island it did not meet the regulations’s minimum size requirement.

Dreher then requested a hearing before the ALC. The ALC looked to the issue of  whether  Tract D met the definition of a coastal island as described in the Coastal Zone Management Act (“CZMA”) and was therefore applicable to the CZMA regulations.  SC Code Ann. Regs. 30-1 to -21, that defines “coastal island”, established that Folly Island… shall not be deemed a coastal island subject to this section due to [it’s] large size and developed nature.  ALC found that because the island is not considered a coastal island, properties on the island are exempt from the minimum acreage requirement found in Regulation 30-12(N)(2)(c), (restricting eligibility for a bridge-building permit to those coastal islands that are large enough to warrant the impact on public resources). Although, the ALC found Tract D “geologically, geographically and by legal description, is on and within the boundaries of Folly Island”, it concluded that Tract D constituted a coastal island separate and apart from Folly Island. Dreher appealed to the court of appeals which found that because DHEC “failed to challenge” the ALC’s finding that Tract D was part of Folly Island, that the finding became the law of the case. The court of appeals held that because Dreher was not prohibited from building a bridge due to Tract D’s small size, she was entitled to construct the bridge by virtue of Regulation 30-12(F). DHEC appealed.

The Court granted writ of certiorari, to review the court of appeals’ decision on two issues: (1) Whether the court of appeals misapplied the law of the case doctrine, and (2) Whether Tract D is exempt from the minimum acreage requirement found in Regulation 30-12(N)(2)(c)?

On the first issue, the Court found that the court of appeals erred in applying the doctrine so as to bar DHEC [the prevailing party] from raising the additional sustaining ground [that Tract D was geologically, geographically and by legal description, on and within the boundaries of Folly Island]. The Court reasoned that the court of appeals should have considered whether Tract D is a “coastal island” as defined in the regulations.

On the second issue, the Court looked to the regulatory interpretation of the statute. Regulation 30-1(D)(11) broadly defines “coastal islands”, but then specifically exempts certain islands including Folly Island from the general definition. Further Tract D is found to be on and within Folly Island, supported by substantial evidence in the record. Therefore, the Court agrees that Tract D is not a “coastal island” in and of itself; rather, it is  part of Folly Island, which is specifically exempted in the regulation. Thus, the minimum acreage requirement found in Regulation 30-12(N)(2)(d) does not bar Dreher’s bridge construction permit application. The Court affirms the result reached by the lower court through different reasoning.

Justices Pleicones and Hearn concurred in part and dissented in part in a separate opinion.

In The Spriggs Group v. Slivka, the Court directs the Court of Appeals to depublish its’ opinion in The Spriggs Group, P.C. v. Slivka, 738 S.E.2d 495 (Ct. App. 2013). The Court then dismissed the writ of certiorari as improvidently granted.

In Lewis v. L.B. Dynasty, the Court reverses the court of appeals’ decision in Lewis v. L.B. Dynasty, Inc., 732 S.E.2d 662 (2012)., and found that Lewis was an employee not an independent contractor.

LeAndra Lewis was injured by an errant bullet at Studio 54 Boom Boom Room (the Club) while she was working as an exotic dancer. She filed for workers compensation and was denied; the single commissioner found that Lewis was an independent contractor. She appealed and the appellate panel of the Worker’s Compensation Commission affirmed the order. Later, the court of appeals also affirmed in a split decision, the majority finding that Lewis was an independent contractor.

This Court examined whether the court of appeals erred in finding Lewis was an independent contractor and not an employee of the Club. The Court applied a balancing test of  factors based on the totality of the circumstances including: right to or exercise of control, furnishing of equipment, method of payment, and right to fire to determine Lewis’s status. The Court found that the weight of the evidence weighs in favor of finding Lewis was an employee of the Club and is entitled to workers’ compensation benefits. And thus, it reversed the court of appeals’ decision. The Court, then, remanded the issue of Lewis’s compensation rate to the court of appeals for consideration.

Justice Pleicones dissented in a separate opinion.

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