South Carolina              
Administrative Law Court
 Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDHEC vs. Steve Stepp et al.

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
South Carolina Department of Health and Environmental Control

Respondent:
Steve and Joyce Stepp d/b/a Tanning Center, Pacolet, SC (42-2307), and Cowpens, SC (42-1820); and Steve Stepp d/b/a Tanning Center, Duncan, SC (42-2953), and Spartanburg, SC (42-3101)
 
DOCKET NUMBER:
00-ALJ-07-0162-CC

APPEARANCES:
For the Petitioner: Josephine B. Patton, Esquire

For the Respondents: Randall S. Hiller, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

Place of Hearing: Administrative Law Judge Division, 1205 Pendleton Street, Edgar A. Brown Building, Suite 224, Columbia, South Carolina

Judge: Marvin F. Kittrell, Chief Administrative Law Judge

STATEMENT OF THE CASE

This is a contested case proceeding conducted pursuant to the provisions of S.C. Code Ann. § 1-23-350 (Supp. 1999). Steve Stepp and Joyce Stepp d/b/a Tanning Center at Pacolet, S.C. (registration number 42-2307) and at Cowpens, S.C. (registration number 42-1820) and Steve Stepp d/b/a the Tanning Center at Duncan, S.C. (registration number 42-2953) and at Spartanburg, S.C. (registration number 42-3101) (individually or collectively referred to as "Respondent" or "Respondents"), challenge the issuance by the South Carolina Department of Health and Environmental Control ("Department") of its Administrative Order RT-AO-99-04 dated January 13, 2000. Respondents specifically challenge: (1) whether the Administrative Order was properly issued; (2) whether the findings in the Administrative Order were factually correct; (3) whether the allegations in the Administrative Order constituted violations of 25A S.C. Code Ann. Regs. 61-106 (Supp. 1999); and (4) whether the allegations, if true, were sufficient to justify civil penalties in the amount of $12,255.00.

Respondents timely appealed the Department's determination. After notice to the parties, the undersigned conducted a contested case hearing on Monday, July 10, 2000, at the offices of the Administrative Law Judge Division ("Division") in Columbia, South Carolina.

FINDINGS OF FACT

Having carefully considered the credibility of the testimony and the accuracy of the exhibits admitted into evidence at the hearing and taking into consideration the burden of proof, I make the following findings of fact by a preponderance of the evidence:

  1. Notice of the date, time, place, and nature of the hearing was timely given to all the parties.

  1. Prior to the commencement of the hearing, Petitioner presented an evidence notebook containing Exhibits 1 through 41. Petitioner made a motion to admit all of these exhibits into evidence, but Respondents objected to the blanket admission. During the hearing, Petitioner only introduced Exhibits 1, 2, 3, 4, 5, 7, 8, 16, 18, 19, 21, 22, 29, 30, 32, 33, 38, 39, 40, and 41 through testimony. Petitioner's Exhibits 9-15, 17, 20, 23-28, 31, and 34-37, which were not offered into the record by Petitioner during the hearing, are not a part of the record. Petitioner's Exhibit 6 is discussed in the Findings of Fact.

  1. On September 13, 1999, Respondents received a Notice of Enforcement Conference from the Department indicating an Enforcement Conference would be held on September 16, 1999. (Pet. Exhibit 3, np. 57-63). The parties, however, never reached a consent agreement. (Pet. Exhibit 2, np. 48). (1)

  1. On February 29, 2000, the Spartanburg County Sheriff's Office served Respondents Steve Stepp and Joyce Stepp with a copy of the Department's Administrative Order RT-AO-99-04. (Pet. Exhibit 2, np. 42-44).

  1. The Department, in its Administrative Order, assessed a civil penalty of $11,671 for all violations at all four tanning facilities. The Department then increased the penalty by 5%, or $584, "for repeat violations and recalcitrance." The total civil penalty assessed in the Administrative Order was $12,255. (Pet. Exhibit 2, np. 52).

  1. The Administrative Order contained a notice advising Respondents that they could contest the proposed civil penalties by requesting a contested case hearing before an Administrative Law Judge. (Pet. Exhibit 2, np. 54).

  1. On March 15, 2000, counsel for Respondents mailed a request for a contested case hearing to the Department pursuant to the Administrative Procedures Act. (Pet. Exhibit 30, np. 569-70).

  1. At the hearing, Pamela Dukes testified for the Department. Ms. Dukes is the Division Director for the Division of Electronic Products, which is within the Bureau of Radiological Health of the Department. As the Division Director, Ms. Dukes is responsible for ensuring that electronically-produced radiation within the state is operating in accordance with the regulations. Ms. Dukes, therefore, is responsible for overseeing the registration of equipment, inspection of equipment, and enforcement of applicable regulations.

  1. Beverly Patterson next testified for the Department. Ms. Patterson has been with the Department for approximately nineteen years. Until September 1, 1999, Ms. Patterson directly supervised the tanning facility inspectors, reviewed tanning facility applications, and developed the regulations.

  1. Shannon Carithers also testified for the Department. Mr. Carithers, an employee of the Department, inspected tanning equipment between June 1996 and July 1999.


Tanning Center in Cowpens, South Carolina

  1. Respondents Steve Stepp and Joyce Stepp own and operate a tanning facility known as "Silhouette," which is located at 125 East Church Street, Cowpens, South Carolina. (Pet. Exhibit 1, np. 15). By letter dated September 26, 1997, addressed to and received by the Department, Respondents requested that the name of the facility be changed to the "Tanning Center." (Pet. Exhibit 8, np. 156). As of January 28, 1993, the Cowpens tanning facility is registered with the Department under registration number 42-1820. (Pet. Exhibit 1, np. 31).

  1. The Department, in its Administrative Order, assessed a civil penalty for the Cowpens tanning facility in the amount of $3315, of which $2090 was for sanitation violations and $1225 was for failure to correct violations within sixty days. (Pet. Exhibit 2, np. 52).

  1. The Department alleges that on July 30, 1993, it conducted an inspection at the Cowpens tanning facility. The Department, however, offered no testimony regarding the inspection. Furthermore, because the Department never offered into evidence Exhibits 13 and 14, the record does not contain the inspection report or the correspondence related to this inspection.

  1. The Department alleges that on February 22, 1996, it conducted an inspection at the Cowpens tanning facility. The Department, however, offered no testimony regarding the inspection. Furthermore, because the Department never offered into evidence Exhibits 11 and 12, the record does not contain the inspection report or the correspondence related to this inspection.

  1. On April 10, 1997, a complaint was filed with the Department regarding the Cowpens tanning facility. At the hearing, however, the Department never offered any testimony relating to this complaint. The Department also did not move to introduce into the record Petitioner's Exhibit 9, consisting of documents regarding the complaint.

  1. On September 24, 1997, the Department conducted an inspection at the Cowpens tanning facility. (Pet. Exhibit 8, np. 161-203). Exhibits 7 and 8, containing the inspection report and correspondence regarding this inspection, were admitted into evidence during the hearing.

  1. In the Administrative Order, the Department alleged that, during the inspection on September 24, 1997, it observed "unsanitary conditions" as defined in Reg. 61-106.3.7.2 during this inspection. (Pet. Exhibit 2, np. 49). The Department alleged that its employee, Shannon Carithers, observed smudges on twelve of the facility's fourteen tanning beds. (Pet. Exhibit 8, np. 153-54).

Mr. Carithers testified at the hearing that he inspected the rooms at this facility and that there were smudges on the tanning beds in rooms at the facility. He also testified that the "protocol" is to ask the attendant during an inspection if the tanning bed in each room has been cleaned. If the attendant indicated the room had been cleaned, then Mr. Carithers would inspect it. Otherwise, he would give the attendant the opportunity to clean the room before he inspected it. Mr. Carithers, however, did not testify to a specific recollection of such questioning or provide any documentation to support his contention that he used the "protocol" during this inspection.

  1. In the Administrative Order, the Department also alleged that, during the inspection on September 24, 1997, the Cowpens tanning facility failed to follow its approved operating procedures in violation of Reg. 61-106.2.2.4. (Pet. Exhibit 2, np. 49). Although the inspection report for this inspection was entered into evidence during the hearing, the Department did not offer any testimony of a failure by Respondents to follow approved operating procedures during this inspection.

  1. In the Administrative Order, the Department also alleged that, during the inspection on September 24, 1997, the Cowpens tanning facility violated Reg. 61-106.3.6.4 by failing to confirm and/or inspect consumers' protective eyewear prior to allowing them to tan. (Pet. Exhibit 2, np. 49). Although the inspection report for this inspection was entered into evidence during the hearing, the Department did not offer any testimony of a failure by Respondents to inspect the personal eyewear of any customer during this inspection. To the contrary, Mr. Stepp testified that his operators always check the personal eyewear of each client.

  1. The September 24, 1997, inspection report required Respondents to notify the Department within twenty calendar days from the date of the inspection of any action taken or planned to correct the violations. It also notified Respondents that all violations must be corrected within sixty days from the date of the inspection. It specifically provided, "[f]ailure to comply may result in civil penalties or impounding of your tanning equipment." (Pet. Exhibit 8, np. 203).

  1. In a letter dated February 24, 1998, the Department advised Respondents that the corrective action taken regarding the inspection of September 24, 1997, brought the facility into compliance with all existing and applicable rules and regulations. The Department also indicated that, during this inspection, it observed a recurring violation of failure to record the room number for each client's visit. (Pet. Exhibit 7, np. 132).

  1. On March 26, 1998, an anonymous complaint was filed with the Department regarding the Cowpens tanning facility. During the hearing, Petitioner offered into evidence Exhibit 6, which consisted of three items relating to the anonymous complaint. The undersigned declined to admit the exhibit into evidence unless the Department introduced some evidence to show the exhibit was reliable and credible. The Department, however, never submitted any testimony about the complaint or the procedures of the Department regarding the handling of the complaint. Furthermore, the Department failed to make a second motion to admit Exhibit 6 into evidence. Petitioner's Exhibit 6, therefore, is not a part of the record.

  1. On March 17, 1999, the Department conducted an inspection at the Cowpens tanning facility. (Pet. Exhibit 5, np. 81-123). Exhibits 4 and 5, containing the inspection report and correspondence regarding this inspection, were admitted into evidence during the hearing.

  1. In the Administrative Order, the Department alleged that, during the inspection on March 17, 1999, it observed "unsanitary conditions" as defined in Reg. 61-106.3.7.2 during this inspection. (Pet. Exhibit 2, np. 49). The Department alleged that its employees, Shannon Carithers and April Brantley Tutich, (2) observed smudges on four of the fourteen tanning beds in Rooms 1B, 3, 4 SB, and CD. (Pet. Exhibit 4, np. 75-76).

April Brantley Tutich did not appear at the hearing to provide any testimony or answer any questions concerning her inspection findings. Furthermore, no written testimony by her was stipulated to or placed in the record.

Shannon Carithers, however, did testify at the hearing. According to Mr. Carithers, he conducted the inspection with April Brantley Tutich on March 17, 1999. He alone inspected Rooms 1B, 2, 3, 4, 4 SB, 5, 6, and 7, which was closed due to repair. April Brantley Tutich alone inspected Rooms 0, 2 Back Room, SB 3, 10, and CD. Mr. Carithers explained that his "protocol" is to ask the attendant during an inspection if the tanning bed in each room has been cleaned. He did not testify about a specific recollection of such questioning or provide any documentation to support his contention that he used this "protocol" during this inspection.

  1. The March 17, 1999, inspection report required Respondents to notify the Department within twenty calendar days from the date of the inspection of any action taken or planned to correct the violations. It also notified Respondents that all violations must be corrected within sixty days from the date of the inspection. It specifically provided, "[f]ailure to comply may result in civil penalties or impounding of your tanning equipment." (Pet. Exhibit 5, np. 123).

  1. On April 8, 1999, the Department received a response from Mr. Stepp regarding the inspection of March 17, 1999. He indicated he removed the smudges on the four beds noted in the inspection report and bought a new kitchen timer for the bed in Room CD. (Pet. Exhibit 4, np. 79).

  1. On April 16, 1999, the Department sent a letter to Mr. Stepp listing numerous recommendations and two violations regarding the inspection of March 17, 1999. In the letter, the Department requested Mr. Stepp attempt to comply with the recommendations and required Mr. Stepp to correct the violations by May 17, 1999. The Department requested Mr. Stepp contact the Department when he completed the list of recommendations and violations. (Pet. Exhibit 4, np. 77).

  1. On May 21, 1999, the Department received the Inspection Response Form from Mr. Stepp regarding the inspection of March 17, 1999. Mr. Stepp did not indicate any corrective action regarding any of the recommendations made by the Department. He did indicate he had removed smudges from the beds cited as violations and he bought a new kitchen timer and stopwatch regarding the violation in Room CD. No other violations were listed on the Inspection Report or the Inspection Response Form. (Pet. Exhibit 4, np 75-76).

  1. On May 26, 1999, Beverly Patterson and Pamela Dukes, employees of the Department, discussed Respondents' response of May 21, 1999, regarding the March 17, 1999, inspection. They agreed to require Respondents to install override timers in Rooms 10 and CD. (Pet. Exhibit 4, np. 74).

  1. On June 1, 1999, the Department sent a letter to Mr. Stepp regarding the March 17, 1999, inspection. The Department cited Respondents for a violation of Item 51 in Rooms 10 and CD and required Respondents to install override timers in these rooms. On the Inspection Report dated March 17, 1999, however, the Department did not indicate violations of this item in these two rooms. In Room 10, the Department marked Item 51 as "in compliance." In Room CD, the Department marked Item 51 as a "recommendation." The Department did not notify Respondents of a violation of this item until the letter dated June 1, 1999. (Pet. Exhibit 4, np. 70). In the Administrative Order, the Department asserted that on June 1, 1999, the facility violated Reg. 61-106.5.3.1 by failing to have means to prevent consumers from resetting the timers in two rooms. (Pet. Exhibit 2, np. 50).

  1. On August 3, 1999, the Department wrote a letter to Mr. Stepp regarding the March 17, 1999, inspection. The Department asserted that, although they had received some indications that Mr. Stepp intended to comply with the regulations, they had not received formal notice of the completed corrective action. The Department, therefore, cited Respondents for failing to comply with Reg. 61-106.1.7.2, which requires all violations to be corrected within sixty calendar days from the date of citation. The Department further instructed Mr. Stepp to contact the Department within ten days regarding actions taken to correct the violations. (Pet. Exhibit 4, np. 68).

  1. In a letter received by the Department on August 12, 1999, Mr. Stepp indicated he had ordered outside override timers for Room 10 and Room CD. Because the timers would not work, Mr. Stepp indicated he "killed the power to these rooms so they cannot be used" and was "in the process of taking these beds out of use." (Pet. Exhibit 4, np. 65).

  1. In a letter dated August 20, 1999, the Department informed Respondents that their responses to the March 17, 1999, inspection were satisfactory and no further responses were necessary. The Department also indicated that, during this inspection, it observed a recurring violation of failure to properly sanitize tanning equipment after each client use. The Department informed Respondents in this letter that "[f]urther recurring violations could result in escalated enforcement action, to include severe monetary fines." (Pet. Exhibit 4, np. 64).


Tanning Center in Pacolet, South Carolina

  1. Respondents Steve Stepp and Joyce Stepp own and operate a tanning facility known as the "Tanning Center," which is located at 1255 North Highway 150, Pacolet, South Carolina. (Pet. Exhibit 16, np. 308). As of June 24, 1994, the Pacolet tanning facility is registered with the Department under registration number 42-2307. (Pet. Exhibit 16, np. 320).

  1. The Department, in its Administrative Order, assessed a civil penalty for the Pacolet tanning facility in the amount of $2080, of which $1980 was for sanitation violations and $100 was for equipment violations. (Pet. Exhibit 2, np. 52).

  1. On November 3, 1995, a complaint was filed with the Department regarding the Pacolet tanning facility. At the hearing, however, the Department never offered any testimony relating to this complaint. The Department also did not move to introduce into the record Petitioner's Exhibit 25, consisting of documents regarding the complaint.

  1. The Department alleges that on March 6, 1996, it conducted an inspection at the Pacolet tanning facility. The Department, however, offered no testimony regarding the inspection. Furthermore, because the Department never offered into evidence Exhibits 23 and 24, the record does not contain the inspection report or the correspondence related to this inspection.

  1. On May 22, 1997, the Department conducted an inspection at the Pacolet tanning facility. (Pet. Exhibit 22, np. 417-445). Exhibits 21 and 22, containing the inspection report and correspondence regarding this inspection, were admitted into evidence during the hearing.

  1. In the Administrative Order, the Department alleged that, during the inspection on May 22, 1997, it observed "unsanitary conditions" as defined in Reg. 61-106.3.7.2 during this inspection. (Pet. Exhibit 2, np. 49). The Department alleged that its employee, Shannon Carithers, observed smudges or greasy build-up on eight of the facility's operable tanning beds. Although Mr. Carithers previously explained the "protocol" involved in inspecting the tanning facilities, he did not testify to a specific recollection of using this protocol or provide any documentation to support his contention that he used this "protocol" during this inspection.

  1. In the Administrative Order, the Department also alleged that, during the inspection on May 22, 1997, the Pacolet tanning facility improperly mixed eyewear sanitizer in violation of Reg. 61-106.3.7.1; improperly mixed tanning bed sanitizer in violation of Reg. 61-106.3.7.2; had a pillow with cracked vinyl, which rendered the pillow unable to be properly sanitized; failed to follow its approved operating procedures in violation of Reg. 61-106.2.2.4; failed to confirm and/or inspect consumers' protective eyewear prior to allowing them to tan in violation of Reg. 61-106.3.6.4; failed to discuss the use of potentially photosensitizing substances with consumers in violation of Reg. 61-106.4.2.4; and allowed untrained persons to operate the tanning equipment in violation of Reg. 61-106.5.5. (Pet. Exhibit 2, np. 49).

The only testimony regarding the inspection or the inspection report, however, was that Mr. Carithers recognized the report as one he had prepared. The Department did not offer any testimony Respondents committed any of these violations during this inspection.

  1. The May 22, 1997, inspection report required Respondents to notify the Department within twenty calendar days from the date of the inspection of any action taken or planned to correct the violations. It also notified Respondents that all violations must be corrected within sixty days from the date of the inspection. It specifically provided, "[f]ailure to comply may result in civil penalties or impounding of your tanning equipment." (Pet. Exhibit 22, np. 445).

  1. On June 12, 1997, the Department sent a letter to Respondents listing numerous problems regarding the inspection of May 22, 1997. The Department instructed Respondents to correct the problems and notify the Department in writing of the corrections by July 21, 1997. (Pet. Exhibit 21, np. 400-03).

  1. On July 22, 1997, the Department received a letter from Mr. Stepp wherein he responded to the letter of June 12, 1997 and addressed all of the items listed in that letter. (Pet. Exhibit 21, np. 391-92).

  1. In a letter dated July 24, 1997, the Department advised Respondents that the corrective action taken regarding the inspection of May 22, 1997, brought the facility into compliance with all existing and applicable rules and regulations. The Department also indicated that, during this inspection, it observed recurring violations of failure to follow the Department's Operating Procedures, failure to report change in operators, failure to test timers and emergency off switches quarterly, failure to keep a record of skin type for all clients, failure to inspect customers' eyewear prior to use, and failure to meet operator control requirements regarding adherence to the manufacturers' recommended exposure times. The Department informed Respondents in this letter that "[f]urther recurring violations could result in escalated enforcement action, to include severe monetary fines." (Pet. Exhibit 21, np. 390).

  1. On March 26, 1998, a complaint was filed with the Department regarding the Pacolet tanning facility. At the hearing, however, the Department never offered any testimony relating to this complaint. The Department also did not move to introduce into the record Petitioner's Exhibit 20, consisting of documents regarding the complaint.

  1. On June 7, 1999, the Department conducted an inspection at the Pacolet tanning facility. (Pet. Exhibit 19, np. 353-81). Exhibits 18 and 19, containing the inspection report and correspondence regarding this inspection, were admitted into evidence during the hearing.

  1. In the Administrative Order, the Department alleged that, during the inspection on June 7, 1999, it observed "unsanitary conditions" as defined in Reg. 61-106.3.7.2 during this inspection. (Pet. Exhibit 2, np. 49). The Department alleged that its employee, April Brantley Tutich, observed smudges on two of the facility's nine tanning beds. April Brantley Tutich, however, did not appear at the hearing to provide any testimony or answer any questions concerning her inspection findings. Furthermore, no written testimony by her was stipulated to or placed in the record. Although the inspection report for this inspection was entered into evidence during the hearing, the Department did not offer any testimony of unsanitary conditions during this inspection.

  1. In the Administrative Order, the Department also alleged that, during the inspection on June 7, 1999, the Pacolet tanning facility violated Reg. 61-106.3.4.3 and 3.4.4 in Room 5 because the timer intervals were not adequately or numerically indicated and Reg. 61-106.4.6.4 in Room 6 by failing to ensure the lamp was not defective. (Pet. Exhibit 2, np. 50). Although the inspection report for this inspection was entered into evidence during the hearing, the Department did not offer any testimony of these two violations by Respondents during this inspection.

  1. On June 29, 1999, the Department received a letter from Respondents indicating they removed all smudges from the acrylic, ordered a new decal, and replaced the label as required by the inspection report of June 7, 1999. (Pet. Exhibit 18, np. 351).

  1. On July 13, 1999, the Department sent a letter to Respondents listing numerous recommendations and violations regarding the inspection of June 7, 1999. In the letter, the Department requested Mr. Stepp attempt to comply with the recommendations and required Mr. Stepp to correct the violations by August 7, 1999. The Department requested Mr. Stepp contact the Department when he completed the list of recommendations and violations. (Pet. Exhibit 18, np. 349-50).

  1. On August 31, 1999, the Department received a letter from Mr. Stepp indicating he changed the bulb that had burned out in Room 6. (Pet. Exhibit 18, np. 347). Mr. Stepp previously addressed the other violations in his letter received by the Department on June 29, 1999.

Tanning Center in Duncan, South Carolina

  1. Respondent Steve Stepp owns and operates a tanning facility known as the "Tanning Center," which is located at 146 Main Street, Duncan, South Carolina. The Duncan tanning facility is registered with the Department under registration number 42-2953. (Pet. Exhibit 30, np. 542).

  1. The Department, in its Administrative Order, assessed a civil penalty for the Duncan tanning facility in the amount of $2005, of which $1870 was for sanitation violations and $135 was for equipment violations. (Pet. Exhibit 2, np. 52).

  1. On August 4, 1997, the Department conducted an inspection at the Duncan tanning facility. (Pet. Exhibit 33, np. 627-56). Exhibits 32 and 33, containing the inspection report and correspondence regarding this inspection, were admitted into evidence during the hearing.

  1. In the Administrative Order, the Department alleged that, during the inspection on August 4, 1997, it observed "unsanitary conditions" as defined in Reg. 61-106.3.7.2 during this inspection. (Pet. Exhibit 2, np. 49). The Department alleged that its employee, Shannon Carithers, observed smudges on seven of the facility's ten tanning beds. (Pet. Exhibit 4, np. 75-76). Although the inspection report for this inspection was entered into evidence during the hearing, the Department did not offer any testimony of smudges on the beds of the facility during this inspection.

  1. In the Administrative Order, the Department also alleged that, during the inspection on August 4, 1997, the Duncan tanning facility had a pillow with cracked vinyl, which rendered the pillow unable to be properly sanitized. (Pet. Exhibit 2, np. 49). Mr. Carithers testified that he in fact observed cracks in the pillow in Room 1 at this facility during this inspection.

  1. The August 4, 1997, inspection report required Respondent to notify the Department within twenty calendar days from the date of the inspection of any action taken or planned to correct the violations. It also notified Respondent that all violations must be corrected within sixty days from the date of the inspection. It specifically provided, "[f]ailure to comply may result in civil penalties or impounding of your tanning equipment." (Pet. Exhibit 33, np. 656).

  1. On August 21, 1997, the Department received the Inspection Response Form regarding the inspection of August 4, 1997. (Pet. Exhibit 33, np 615).

  1. In a letter dated February 24, 1998, the Department advised Respondent that the corrective action taken regarding the inspection of August 4, 1997, brought the facility into compliance with all existing and applicable rules and regulations. The Department also indicated that, during this inspection, it observed a recurring violation of failure to record the room number for each client's visit. (Pet. Exhibit 32, np. 595).

  1. On March 26, 1998, a complaint was filed with the Department regarding the Duncan tanning facility. At the hearing, however, the Department never offered any testimony relating to this complaint. The Department also did not move to introduce into the record Petitioner's Exhibit 31, consisting of documents regarding the complaint.

  1. On April 29, 1998, a complaint was filed with the Department regarding the Duncan tanning facility. At the hearing, however, the Department never offered any testimony relating to this complaint. The Department also did not move to introduce into the record Petitioner's Exhibit 31, consisting of documents regarding the complaint.

  1. On January 27, 1999, the Department conducted an inspection at the Duncan tanning facility. (Pet. Exhibit 30, np. 542-66). Exhibits 29 and 30, containing the inspection report and correspondence regarding this inspection, were admitted into evidence during the hearing.

  1. In the Administrative Order, the Department alleged that, during the inspection on January 27, 1999, it observed "unsanitary conditions" as defined in Reg. 61-106.3.7.2 during this inspection. (Pet. Exhibit 2, np. 49). The Department alleged that its employee, April Brantley Tutich, observed smudges on one of the facility's eight tanning beds. April Brantley Tutich, however, did not appear at the hearing to provide any testimony or answer any questions concerning her inspection findings. Furthermore, no written testimony by her was stipulated to or placed in the record. Although the inspection report for this inspection was entered into evidence during the hearing, the Department did not offer any testimony of smudges on the beds of this facility during this inspection.

  1. In the Administrative Order, the Department also alleged that, during the inspection on January 27, 1999, the Duncan tanning facility allowed untrained persons to operate tanning equipment in violation of Reg. 61-106.5.5; failed to ensure lamps were not defective in Rooms 3 and 10 in violation of Reg. 61-106.4.6.4; had a noncompliant user's manual in Room 7 in violation of Reg. 61-106.4.7; and had a noncompliant label on the bed in Room 10 in violation of Reg. 61-106.3.4.1. (Pet. Exhibit 2, np. 50). The only testimony offered by the Department regarding any of these violations was offered by Ms. Dukes who based her testimony on the report itself rather than actual or specific knowledge of the violations. The Department did not offer any testimony Respondent committed any of these violations during this inspection.

  1. The January 27, 1999, inspection report required Respondent to notify the Department within twenty calendar days from the date of the inspection of any action taken or planned to correct the violations. It also notified Respondent that all violations must be corrected within sixty days from the date of the inspection. It specifically provided, "[f]ailure to comply may result in civil penalties or impounding of your tanning equipment." (Pet. Exhibit 30, np. 566).

  1. On February 26, 1999, the Department received the Inspection Response Form from Mr. Stepp regarding the inspection of January 27, 1999. (Pet. Exhibit 30, np. 537).

  1. In a letter dated March 8, 1999, the Department sent a letter to Respondent listing numerous recommendations and violations regarding the inspection of January 27, 1999. In the letter, the Department requested Mr. Stepp attempt to comply with the recommendations and required Mr. Stepp to correct the violations by March 27, 1999. The Department requested Mr. Stepp contact the Department when he completed the list of recommendations and violations. (Pet. Exhibit 29, np. 535-36).

  1. On March 29, 1999, the Department received a letter from Mr. Stepp in response to the Department's letter of March 8, 1999. Mr. Stepp addressed all of the violations listed in the Department's letter. He also indicated that the Department's recommendations would be reviewed by the South Carolina Tanning Association and an attorney before implementing them in the facility. (Pet. Exhibit 29, np. 533-34).

  1. In a letter dated April 12, 1999, the Department informed Respondent that the responses to the January 27, 1999, inspection were satisfactory and no further responses were necessary. (Pet. Exhibit 29, np. 532).


Tanning Center in Spartanburg, South Carolina

  1. Respondent Steve Stepp owns and operates a tanning facility known as the "Tanning Center," which is located at 703 North Pine Street, Spartanburg, South Carolina. The Spartanburg tanning facility is registered with the Department under registration number 42-3101. (Pet. Exhibit 39, np. 814).

  1. The Department, in its Administrative Order, assessed a civil penalty for the Spartanburg tanning facility in the amount of $4271, of which $2200 was for sanitation violations, $1782 was for eyewear violations, and $289 was for equipment violations. (Pet. Exhibit 2, np. 52).

  1. On May 18, 1998, the Department conducted an inspection at the Spartanburg tanning facility. (Pet. Exhibit 39, np. 814-66). Exhibits 38 and 39, containing the inspection report and correspondence regarding this inspection, were admitted into evidence during the hearing. Beverly Patterson conducted the administrative portion of this inspection while Shannon Carithers inspected the equipment.

  1. In the Administrative Order, the Department alleged that, during the inspection on May 18, 1998, it observed "unsanitary conditions" as defined in Reg. 61-106.3.7.2 during this inspection. (Pet. Exhibit 2, np. 49). The Department alleged that its employee, Shannon Carithers, observed unsanitary conditions on six of the tanning beds, unsanitary conditions on the protective eyewear, and a pillow with cracked vinyl which rendered the pillow unable to be properly sanitized. Although the inspection report for this inspection was entered into evidence during the hearing, Mr. Carithers did not testify regarding his observations of these violations during this inspection. When asked if the findings of the Administrative Order regarding unsanitary conditions were the same as the findings reflected in the inspection report, Mr. Carithers indicated they were the same "to [his] knowledge."

  1. In the Administrative Order, the Department also alleged that, during the inspection on May 18, 1998, the Spartanburg tanning facility was improperly mixing eyewear sanitizer in violation of Reg. 61-106.3.7.1 and was improperly mixing tanning bed sanitizer in violation of Reg. 61-106.3.7.2. (Pet. Exhibit 2, np. 49). Ms. Patterson testified she in fact observed these violations during this inspection.

  1. In the Administrative Order, the Department also alleged that, during the inspection on May 18, 1998, the Spartanburg tanning facility was requiring customers to clean the tanning beds. (Pet. Exhibit 2, np. 49). Ms. Patterson testified she found a form that customers are asked to sign indicating they would clean their own beds.

  1. In the Administrative Order, the Department also alleged that, during the inspection on May 18, 1998, the Spartanburg tanning facility failed to follow its approved operating procedures in violation of Reg. 61-106.2.2.4. (Pet. Exhibit 2, np. 49). Ms. Patterson testified she in fact observed this violation during this inspection.

  1. In the Administrative Order, the Department also alleged that, during the inspection on May 18, 1998, the Spartanburg tanning facility violated Reg. 61-106.3.6.3 by failing to give adequate instruction to consumers regarding use of protective eyewear. (Pet. Exhibit 2, np. 49). Ms. Patterson testified she in fact observed this violation during this inspection.

  1. In the Administrative Order, the Department also alleged that, during the inspection on May 18, 1998, the Spartanburg tanning facility violated Reg. 61-106.4.2.4 by failing to discuss the use of potentially photosensitizing substances with consumers. (Pet. Exhibit 2, np. 49). Ms. Patterson testified she in fact observed this violation during this inspection.

  1. The May 18, 1998, inspection report required Respondent to notify the Department within twenty calendar days from the date of the inspection of any action taken or planned to correct the violations. It also notified Respondent that all violations must be corrected within sixty days from the date of the inspection. It specifically provided, "[f]ailure to comply may result in civil penalties or impounding of your tanning equipment." (Pet. Exhibit 39, np. 866).

  1. On June 8, 1998, the Department received a letter from Mr. Stepp wherein he indicated he had taken corrective action regarding the inspection of May 18, 1998. (Pet. Exhibit 38, np. 804-05).

  1. On July 1, 1998, the Department sent a letter to Mr. Stepp listing numerous problems regarding the inspection of May 18, 1998. The Department instructed Respondent to correct the problems and notify the Department in writing of the corrections by July 17, 1998. (Pet. Exhibit 38, np. 796-97).

  1. On July 20, 1998, the Department received a letter from Mr. Stepp wherein he addressed all of the items listed in the Department's letter of July 1, 1998. (Pet. Exhibit 38, np. 794-95).

  1. In a letter dated July 27, 1998, the Department informed Respondent that the responses to the May18, 1998, inspection were satisfactory and no further responses were necessary. The Department, however, noted that merely requiring the new client to review the list of photosensitizing agents is not adequate under the regulations.

  1. On June 8, 1999, the Department conducted an inspection at the Spartanburg tanning facility. (Pet. Exhibit 41, np. 906-1019). Exhibits 40 and 41, containing the inspection report and correspondence regarding this inspection, were admitted into evidence during the hearing. Shannon Carithers and April Brantley Tutich jointly conducted this inspection. Shannon Carithers signed the inspection forms for Rooms CD, 1, 2, 3, 4, 5, 6, 7, 7 SB, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 24. April Brantley Tutich signed the inspection forms for Rooms 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, and 36. While only one inspector signed the inspection form for each room, it appears from the handwriting on the forms that each inspector conducted a separate part of the inspection for each room.

April Brantley Tutich, however, did not appear at the hearing to provide any testimony or answer any questions concerning her inspection findings. Furthermore, no written testimony by her was stipulated to or placed in the record.

  1. In the Administrative Order, the Department alleged that, during the inspection on June 8, 1999, it observed "unsanitary conditions" as defined in Reg. 61-106.3.7.2 during this inspection. (Pet. Exhibit 2, np. 49). The Department alleged that its employees observed smudges on eleven of the facility's thirty-seven tanning beds. (Pet. Exhibit 41, np. 906-1019). During the hearing, the only testimony offered regarding the unsanitary conditions was Mr. Carithers's testimony "I count 12 instances." Mr. Carithers merely counted the number of sanitation violations that were listed on the five-page Summary Sheet. According to the separate forms filled out during the inspection, however, there were only eleven violations.

  1. In the Administrative Order, the Department also alleged that, during the inspection on June 8, 1999, the Spartanburg tanning facility failed to confirm and/or inspect consumers' protective eyewear prior to allowing them to tan in violation of Reg. 61-106.3.6.4; failed to record all exposure times in violation of Reg. 61-106.4.3.2; failed to have means to prevent consumers from resetting the timers in seven rooms in violation of Reg. 61-106.3.4.5; failed to ensure lamps were not defective in Room CD in violation of Reg. 61-106.4.6.4; failed to ensure the canopy worked properly in Room 5 in violation of Reg. 61-106.1.6; had labels which were worn off of the beds in Rooms 7 SB, 8, and 13 in violation of Reg. 61-106.3.4.1; had an incomplete label on the bed in Room 24 in violation of Reg. 61-106.3.4.1; had no label on the bed in Room 33 in violation of Reg. 61-106.3.4.1; had inadequate timer intervals on the bed in Room 15 in violation of Reg. 61-106.3.4.4; failed to use compliant lamps or have an equivalency document as proof of compliance in Room 16 in violation of Reg. 61-106.4.6.1 and 4.6.3; failed to have a compliant equivalency document in Room 17 in violation of Reg. 61-106.4.6.3; had noncompliant labels on the beds in Rooms 18, 19, 20, 21, 22, 23, and 24 in violation of Reg. 61-106.3.4.1; had a noncompliant manual in Room 24 in violation of Reg. 61-106.4.7; had a timer with an error greater than 10% on the beds in Rooms 27 and 28 in violation of Reg. 61-106.3.4.3; and failed to provide a user's manual in Room 27 in violation of Reg. 61-106.4.7. (Pet. Exhibit 2, np. 49-50).

Although the inspection report for this inspection was entered into evidence during the hearing, the Department did not offer any testimony that Respondent committed any of these violations during this inspection.

  1. The June 8, 1999, inspection report required Respondent to notify the Department within twenty calendar days from the date of the inspection of any action taken or planned to correct the violations. It also notified Respondent that all violations must be corrected within sixty days from the date of the inspection. It specifically provided, "[f]ailure to comply may result in civil penalties or impounding of your tanning equipment." (Pet. Exhibit 41, np. 1017).

  1. On August 31, 1999, the Department received a letter from Mr. Stepp wherein he addressed many of the violations made during the inspection of June 8, 1999. (Pet. Exhibit 40, np. 881-82).

  1. On September 24, 1999, the Department sent a letter to Mr. Stepp listing numerous recommendations and violations regarding the inspection of June 8, 1999. In the letter, the Department instructed Mr. Stepp to correct the violations and notify the Department of such action by October 7, 1999. (Pet. Exhibit 40, np. 878-80).

  1. On September 29, 1999, and October 7, 1999, the Department received letters from Mr. Stepp addressing the violations of June 8, 1999. (Pet. Exhibit 40, np. 872, 876).




CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:

General Findings

    1. The Administrative Law Judge Division has subject matter jurisdiction of this case pursuant to S.C. Code Ann. § 13-7-85(C) (Supp. 1999) and S.C. Code Ann. § 1-23-310 et seq. (1986 & Supp. 1999).

    1. S.C. Code Ann. §1-23-600(B) (Supp. 1999) authorizes the Division to hear contested cases, as defined in S.C. Code Ann. § 1-23-310 (Supp. 1999), 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.

    1. The South Carolina Department of Health and Environmental Control is delineated as a "department" within the executive branch of state government in the state of South Carolina. S.C. Code Ann. § 1-30-10(A) (Supp. 1999).

    1. A "contested case" is defined by statute as a "proceeding including, but not restricted to, rate making, price fixing, and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing." S.C. Code Ann. § 1-23-310(3) (Supp. 1999).

    1. The burden of proof is on the party asserting the affirmative in an adjudicatory administrative proceeding. 2 Am. Jur. 2d Administrative Law § 360 (1994); Peabody Coal Co. v. Ralston,578 N.E.2d 751 (Ind. Ct. App. 1991); David E. Shipley, South Carolina Administrative Law5-79, -80 (1989). The Department, as the proponent of an order seeking sanctions against a private party, has the burden of proof in this case.

    1. The standard of proof in administrative proceedings is a preponderance of the evidence, absent an allegation of fraud or a statute or court rule requiring a higher standard. Anonymous v. State Bd. of Med. Exam'rs, 329 S.C. 371, 496 S.E.2d 17 (1998).

    1. The preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in the mind the belief that what is sought to be proved is more likely true than not true. Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955).

    1. The trier of fact must weigh and pass upon the credibility of evidence presented. South Carolina Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The judge who observes a witness is in the best position to judge the witness's demeanor and veracity and evaluate his testimony. Shealy v. Aiken County, 341 S.C. 448, 535 S.E.2d 438 (2000).

    1. 25A S.C. Code Ann. Regs. 61-106 (Supp. 1999), entitled "Tanning Facilities," provides for "the registration and regulation of facilities, equipment and persons installing and/or servicing equipment which employs ultraviolet and other lamps for the purpose of tanning the skin of the human body through the application of ultraviolet radiation." Reg. 61-106.1.1.1 (Supp. 1999).

    1. If the Administrative Law Judge finds a party violated 25A S.C. Code Ann. Regs. 61-106 (Supp. 1999), the amount of the penalty imposed is within the sound discretion of that judge. See Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991).


Motion To Dismiss

    1. Prior to the presentation of evidence, Respondents made a Motion to Dismiss. Respondents argued that the Division does not have jurisdiction because the Department did not comply with all the requirements of its Regulation 61-106 before it issued the Administrative Order imposing civil penalties. Respondents specifically argued that under Reg. 61-106.1.8, the Department only could have issued an administrative order in one of two situations: (1) if the Department sent a certified letter requiring corrective action within ten days and Respondents failed to comply; or (2) if the Department found in the administrative order that there was an actual or potential condition posing a risk to any individual comparable to a Severity Category I violation. According to Respondents, since neither of these situations occurred, the Department should not have issued the Administrative Order.

    1. The Department responded that the Division has jurisdiction because the Department in fact complied with Reg. 61-106 when issuing the Administrative Order. The Department argued that, because there were repeated violations of the same type, the Department issued the Administrative Order and assessed civil penalties to encourage Respondents to comply with the regulation. The undersigned withheld ruling on the motion at the hearing, reserving the right to rule on it in the final order.

    1. The Department is authorized to assess fines and civil penalties relating to violations of the provisions of the Atomic Energy and Radiation Control Act or any regulation or final determination of the Department. S.C. Code Ann. § 13-7-85(A) (Supp. 1999); 25A S.C. Code Ann. Regs. 61-106.1.7.3 (Supp. 1999).

    1. Pursuant to 25A S.C. Code Ann. Regs. 61-106.1.13.2 (Supp. 1999), the assessment of civil penalties must be based on the following criteria: the seriousness of the violations; previous compliance history; the amount necessary to deter future violations; efforts to correct the violations; and any other mitigating or enhancing factors.

    1. 25A S.C. Code Ann. Regs. 61-106.1.13.5 (Supp. 1999) provides that the Department shall issue a civil penalty ranging from $5000 to $25,000 per violation for the following Severity I conditions: repeated failures by the tanning facility to correct cited violations within 60 days, repeated failure to maintain required records, failure to provide consumers with adequate protective eyewear, and failure to ensure that the tanning equipment is only operated by adequately trained personnel.

    1. Based on the plain language of the regulation in effect at the time the Administrative Order was issued in this case, I conclude that Respondents' position is without merit. (3) The regulation provided the Department could "take one or more of the following steps:" (1) send a letter of notification pursuant to Section 1.8.1.1; (2) stipulate to a firm time schedule within which a corrective action plan will be submitted pursuant to Section 1.8.1.2; or (3) if there is an actual or potential condition posing a risk to any individual comparable to a Severity Category I violation, issue an administrative order pursuant to Section 1.8.1.3. 25A S.C. Code Ann. Regs. 61-106 (Supp. 1999). I find the Department determined that its findings of repeated violations at the facilities posed a risk comparable to a Severity Category I violation and issued the Administrative Order pursuant to Section 1.8.1.3. The Department, therefore, complied with the regulation as written at the time it issued the Administrative Order. Respondents' motion to dismiss is denied.


Tanning Center in Cowpens, South Carolina

    1. Because there is no evidence in the record regarding the inspections of July 30, 1993, and February 22, 1996, I find no violations occurred on these dates.

    1. Although the Department asserts a complaint was filed on April 10, 1997, no evidence or testimony is in the record regarding this complaint. As a result, I find no violations occurred relating to this complaint.

    1. The Department failed to prove by a preponderance of the evidence its allegation that Respondents violated Reg. 61-106.3.7.2 by having smudges on the beds during the inspection on September 24, 1997. Mr. Carithers testified during the hearing but did not testify about a specific recollection of using the protocol to inspect the beds during this inspection. The inspection report, which was admitted into the record, is the only evidence presented that there were smudges on the beds during the inspection. With respect to reports of investigations, our state Supreme Court has quoted the following:

The principle which seems fairly deducible from them is that a record of a primary fact made by a public officer in the performance of official duty is or may be made by legislation competent prima facie evidence as to the existence of that fact, but that records of investigations and inquiries conducted, either voluntarily or pursuant to requirement of law, by public officers concerning causes and effects and involving the exercise of judgment and discretion, expressions of opinion, and making conclusions are not admissible as evidence as public records.

Peagler v. Atlantic Coast Line R. Co., 234 S.C. 140, 107 S.E.2d 15 (1959); Griggs v. Driggers, 230 S.C. 97, 104, 94 S.E.2d 225, 228 (1956); State v. Pearson, 223 S.C. 377, 76 S.E.2d 151 (1953). Based on this analysis, the inspection report was hearsay evidence because the Department employee who conducted the inspection used personal judgment and discretion when he made conclusions and filled out the inspection report. (4) The report then was offered to prove the truth of the matter asserted, i.e., the Respondents violated Reg. 61-106 during this inspection. Respondents, however, did not object to the admission of the inspection report into the record.

Even though Respondents did not object, I conclude the inspection report carries little weight without testimony to support the findings contained therein. Mr. Carithers testified at trial but did not testify about a specific recollection of asking if each bed was clean before he inspected the bed for smudges. As the investigator, he should have been able to testify about whom he talked with, what he asked, whether he asked if the bed was ready for usage, and how he arrived at his conclusion that the bed was unsanitary. The Department failed to prove by a preponderance of the evidence there were unsanitary conditions during this inspection. I, therefore, conclude Respondents did not violate Reg. 61-106.3.7.2 during the inspection on September 24, 1997.

    1. The Department also failed to prove by a preponderance of the evidence that, on September 24, 1997, Respondents failed to follow approved operating procedures in violation of Reg. 61-106.2.2.4. Absent any testimony to support this allegation or the inspection report, I conclude Respondents did not commit this violation during this inspection.

    1. The Department also failed to prove by a preponderance of the evidence that, on September 24, 1997, Respondents failed to confirm and/or inspect consumers' protective eyewear prior to allowing them to tan in violation of Reg. 61-106.3.6.4. The Department presented no testimony to support this allegation. Mr. Stepp in fact testified that the operators did inspect all clients personal eyewear. I, therefore, conclude Respondents did not commit this violation during this inspection.

    1. Although the Department asserts a complaint was filed on March 26, 1998, no evidence is in the record regarding this complaint. As a result, I find no violations occurred relating to this complaint.

    1. The Department failed to prove by a preponderance of the evidence that, on March 17, 1999, Respondents violated Reg. 61-106.3.7.2 by having smudges on the beds. Absent any testimony to support this allegation or the inspection report, I conclude Respondents did not commit this violation during this inspection.

    1. The Department also failed to prove by a preponderance of the evidence that Respondents violated Reg. 61-106.5.3.1 by failing to have means to prevent consumers from resetting the timers in two rooms during the inspection on March 17, 1999. Furthermore, as discussed in the Findings of Fact, during the inspection on March 17, 1999, the Department did not indicate on the inspection form that Respondents had violated Item 51. The Department in fact did not notify Respondents that they had violated Item 51 until the letter to Respondents dated June 1, 1999. According to the Administrative Order, this violation occurred on June 1, 1999, the date of the letter, rather than March 17, 1999, the date of the inspection. This item was not considered a violation at the time of the original inspection and, therefore, should not be considered a violation when calculating civil penalties.

    1. I conclude the Department did not prove that Respondents violated Reg. 61-106 at the Cowpens tanning facility during any of the instances involved in this order.


Tanning Center in Pacolet, South Carolina

    1. Although the Department asserts a complaint was filed on November 3, 1995, no evidence is in the record regarding this complaint. As a result, I find no violations occurred relating to this complaint.

    1. Because there is no evidence in the record regarding the inspection on March 6, 1996, I find no violations occurred on this date.

    1. The Department failed to prove by a preponderance of the evidence that, on May 22, 1997, Respondents violated Reg. 61-106.3.7.2 by having smudges on the beds and by improperly mixing tanning bed sanitizer; Reg. 61-106.3.7.1 by improperly mixing eyewear sanitizer; Reg. 61-106.2.2.4 by failing to follow approved operating procedures; Reg. 61-106.3.6.4 by failing to inspect personal protective eyewear; Reg. 61-106.4.2.4 by failing to discuss photosensitizing substances; and Reg. 61-106.5.5 by allowing untrained persons to operate tanning equipment. Absent any testimony to support these allegations or the inspection report, I conclude Respondents did not commit these violations during this inspection.

    1. Although the Department asserts a complaint was filed on March 26, 1998, no evidence is in the record regarding this complaint. As a result, I find no violations occurred relating to this complaint.

    1. The Department failed to prove by a preponderance of the evidence that, on June 7, 1999, Respondents violated Reg. 61-106.3.7.2 by having smudges on the beds; Reg. 61-106.3.4.3 and 3.4.4 in Room 5; and Reg. 61-106.4.6.4 in Room 6. Absent any testimony to support these allegations or the inspection report, I conclude Respondents did not commit these violations during this inspection.

    1. I conclude the Department did not prove that Respondents violated Reg. 61-106 at the Pacolet tanning facility during any of the instances involved in this order.


Tanning Center in Duncan, South Carolina

    1. The Department failed to prove by a preponderance of the evidence that, on August 4, 1997, Respondent violated Reg. 61-106.3.7.2 by having smudges on the beds. Absent any testimony to support this allegation or the inspection report, I conclude Respondent did not commit this violation during this inspection.

    1. I conclude Respondent violated Reg. 61-106.3.7.2 on August 4, 1997, because there was a pillow with cracked vinyl in Room 1 during this inspection.

    1. Although the Department asserts a complaint was filed on March 26, 1998, no evidence is in the record regarding this complaint. As a result, I find no violations occurred relating to this complaint.

    1. Although the Department asserts a complaint was filed on April 29, 1998, no evidence is in the record regarding this complaint. As a result, I find no violations occurred relating to this complaint.

    1. The Department failed to prove by a preponderance of the evidence that, on January 27, 1999, Respondent violated Reg. 61-106.3.7.2 by having smudges on the beds; Reg. 61-106.5.5 by allowing untrained persons to operate tanning equipment; Reg. 61-106.4.6.4 in Rooms 3 and 10; Reg. 61-106.4.7 in Room 7; and Reg. 61-106.3.4.1 in Room 10. Absent any testimony to support these allegations or the inspection report, I conclude Respondent did not commit these violations during this inspection.

    1. I conclude the Department only proved that Respondent violated Reg. 61-106.3.7.2 at the Duncan tanning facility during the inspection on August 4, 1997. As the fact finder in this case, I conclude a fine of $200.00 is appropriate for this violation. The Department did not prove the allegations made about any of the other instances at the Duncan tanning facility as referenced in this order.


Tanning Center in Spartanburg, South Carolina

    1. The Department failed to prove by a preponderance of the evidence that, on May 18, 1998, Respondent violated Reg. 61-106.3.7.2 by having smudges on the beds, unsanitary conditions on the protective eyewear, and a pillow with cracked vinyl. Absent any testimony to support these allegations or the inspection report, I conclude Respondent did not commit these violations during this inspection.

    1. I conclude Respondent violated Reg. 61-106.3.7.1 by improperly mixing eyewear sanitizer and Reg. 61-106.3.7.2 by improperly mixing tanning bed sanitizer during the inspection on May 18, 1998.

    1. Regarding the allegation that Respondent required consumers to clean the tanning beds, I do not believe that this is a violation of the regulation. Ms. Patterson merely testified that customers are asked to clean their beds. There is no evidence that the employees of the tanning facility do not clean the bed after the customer leaves but before another customer enters. Mr. Stepp in fact testified that the employees do clean the bed before the next customer uses it. I conclude Respondent did not commit any violation by asking customers to clean their beds when they finished tanning.

    1. I conclude Respondent violated Reg. 61-106.2.2.4 by failing to follow its approved operating procedures during the inspection on May 18, 1998.

    1. I conclude Respondent violated Reg. 61-106.3.6.3 by failing to give adequate instruction to consumers regarding the use of protective eyewear during the inspection on May 18, 1998.

    1. I conclude Respondent violated Reg. 61-106.4.2.4 by failing to discuss the use of potentially photosensitizing substances with consumers during the inspection on May 18, 1998.

    1. The Department failed to prove by a preponderance of the evidence that, on June 8, 1999, Respondent violated Reg. 61-106.3.7.2 by having smudges on the beds; Reg. 61-106.3.6.4 by failing to inspect consumers' protective eyewear; Reg. 61-106.4.3.2 by failing to record exposure times; Reg. 61-106.3.4.5 by failing to have means to prevent consumers from resetting timers in seven rooms; Reg. 61-106.4.6.4 in Room CD; Reg. 61-106.1.6 in Room 5; Reg. 61-106.3.4.1 in Rooms 7 SB, 8, and 13; Reg. 61-106.3.4.1 in Room 24; Reg. 61-106.3.4.1 in Room 33; Reg. 61-106.3.4.4 in Room 15; Reg. 61-106.4.6.1 and 4.6.3 in Room 16; Reg. 61-106.4.6.3 in Room 17; Reg. 61-106.3.4.1 in Rooms 18, 19, 20, 21, 22, 23, and 24; Reg. 61-106.4.7 in Room 24; Reg. 61-106.3.4.3 in Rooms 27 and 28; and Reg. 61-106.4.7 in Room 27. Absent any testimony to support these allegations or the inspection report, I conclude Respondent did not commit these violations during this inspection.

    1. I conclude the Department only proved that Respondent violated Reg. 61-106.3.7.2 by improperly mixing tanning bed sanitizer, Reg. 61-106.2.2.4 by failing to follow operating procedures, Reg. 61-106.3.6.3 by failing to instruct consumers on the use of protective eyewear, and Reg. 61-106.4.2.4 by failing to discuss photosensitizing substances with consumers during the inspection on May 18, 1998. As the fact finder in this case, I conclude a fine of $200.00 per violation is appropriate. The Department did not prove the allegations made about any of the other instances at the Spartanburg tanning facility as referenced in this order.


ORDER

Based on the foregoing findings of fact and conclusions of law,

IT IS HEREBY ORDERED that Respondents' Motion to Dismiss is denied.

IT IS FURTHER ORDERED that the Department has failed to meet its burden of showing that Respondents violated any provision of the tanning bed regulations or tanning bed statutes during the inspections conducted at the Cowpens tanning facility and the Pacolet tanning facility. The Department either failed to bring necessary witnesses to the hearing or failed to introduce documentary evidence into the record.

IT IS FURTHER ORDERED that Steve Stepp must pay a civil penalty in the amount of $1,000.00 for the violations committed at the Duncan tanning facility and the Spartanburg tanning facility.

IT IS FURTHER ORDERED that Respondents must comply with all sections of 25A S.C. Code Ann. Regs. 61-106 (Supp. 2000).

AND IT IS SO ORDERED.



__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

April 19, 2001

Columbia, South Carolina

1. Some of the exhibits in the exhibit notebook contain as many as fifty pages. The entire exhibit notebook contains over one thousand pages, which are consecutively numbered. I, therefore, will refer to the specific page of the exhibit as it is numbered in the notebook by "np."

2. During 1999, April Brantley married and changed her name to April Tutich. While she signed her name differently on various documents involved in this case, I will consistently refer to her as April Brantley Tutich throughout this order.

3. 25A S.C. Code Ann. Regs. 61-106.1.8 (Supp. 2000), effective May 26, 2000, now provides: (1) the Department first will issue a written notification; (2) in cases where the registrant fails to comply with the conditions of the written notification, the Department will send a certified letter ordering compliance within ten days; and (3) if the registrant fails to comply with the requirements of the certified letter within ten days, the Department will take other steps, including issuing an administrative order. The Department issued the Administrative Order in this case on January 13, 2000, before the effective date of the amended regulation. The amended regulation, therefore, does not apply to the facts of this case.

4. Even if it is argued that the inspection report is admissible under the public record exception to the hearsay rule, the report is not conclusive of the facts therein and those facts are subject to contradiction. Williams v. Metropolitan Life Ins. Co., 116 S.C. 277, 108 S.E. 110 (1921).

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