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Unpublished Opinion No. 2010-UP-182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Withdrawn, Substituted and Refiled June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.