ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me upon a request by Burney Harley ("Respondent") to review the suspension by the South
Carolina Department of Natural Resources ("Department")of the Respondent's commercial saltwater fishing privileges. A
hearing was held before me at the offices of the Administrative Law Judge Division on March 3, 2003.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into
consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of
evidence:
1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner and the Respondent.
2. Respondent is a commercial crabber. He was licensed by the Deparment for fifty (50) crab pots.
- On March 16, 2001 Respondent was issued two citations by the Department. Each
citation was written as a violation of S. C. Code Ann. § 50-5-325 (A)(2) or having one crab pot in excess of that allowed
under his license. Respondent requested a jury trial in magistrate's court on the two charges. On April 24, 2002 a jury
found him guilty of having fifty two crab pots on the date the citations were written.
4. These two convictions resulted in an assessment of twenty (20) points within one calendar year against Respondent's
commercial saltwater fishing license.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1. The South Carolina Administrative Law Judge Division is authorized to hear this contested case pursuant to S. C. Code
Ann. § 1-23-600(b) (1986 & Supp. 2002) and S.C. Code Ann. § 50-5-2520 (Supp. 2002).
2. S.C. Code Ann. § 50-5-2500 (Supp. 2002) provides that upon conviction of a violation set forth under that statute, the
Department shall assess points against the holder's saltwater fishing privileges. Furthermore, the Department shall suspend
for one (1) year the saltwater fishing privileges of each person who has accumulated eighteen (18) or more points. S. C.
Code Ann. § 50-5-2510 (Supp. 2002).
- S.C. Code Ann. § 50-5-2500 (A)(10) provides a value of ten (10) points for each
violation of taking crabs commercially without the proper license or permit. The Department properly assessed twenty (20)
points against Respondent's license for the two violations.
4. It is firmly established that a criminal conviction may not be the subject of a collateral attack in an administrative
proceeding. Thus, any attempt by a licensee at an administrative hearing to show that an arresting officer committed an act
of misrepresentation by not fully advising him of the full consequences of the point system is an invalid collateral attack on
the criminal conviction. South Carolina Wildfire and Marine Resources Department, v. William Preston Kunkle, 287 S. C.
177, 336 S. E. 2d 468 (1985); DeWitt v. South Carolina Department of Highways and Public Transportation, 274 S. C. 184,
262 S. E. 2d 28 (1980).
5. The inquiry at the administrative proceedings is limited to whether the Department has properly identified the person;
whether there was a conviction; whether the points were properly assessed; and whether the appropriate deduction in points
has been made. The hearing may not re-try the merits of the violation. See S. C. Wildlife and Marine Resources v. Kunkle,
287 S. C. 177, 336 S.E. 2d 468 (1985).
- The Respondent does not contest that the Department properly assessed the
required number of points under all of his convictions and that the total point assessment requires a suspension of his
commercial saltwater fishing privileges and license.
ORDER
Based upon the foregoing Findings of Facts and Conclusions of Law, it is hereby:
ORDERED that the Department's assessment of eighteen (18) points against the commercial saltwater license is affirmed;
and it is further
ORDERED that the Department's suspension of the commercial saltwater fishing privileges and license of Respondent is
affirmed.
AND IT IS SO ORDERED.
______________________________
Marvin F. Kittrell
Chief Administrative Law Judge
March 6, 2003
Columbia, South Carolina |