SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (“ALC” or “Court”) pursuant to a request for a contested case filed by One Stop Fashions (or “One Stop”) regarding the Department of Consumer Affairs’ (Department) decision to impose a civil penalty of five thousand dollars ($5,000) for selling ophthalmic contact lens without a valid prescription. Pursuant to notice sent to the parties, a hearing in this matter was held before me on July 8, 2008 at the ALC in Columbia, South Carolina. After careful review of the file and the evidence presented to me, I find and conclude that One Stop Fashions did, in fact, sell contact lens without a valid prescription. However, I further find and conclude that the civil penalty shall be reduced to one thousand dollars ($1,000).

PROCEDURAL HISTORY

This matter began on June 22, 2007, when Brenda Coker, an investigator for the Department, visited One Stop Fashions to investigate a complaint regarding the sale of tinted contact lens without a valid prescription. At that time, Ms. Coker observed the sale of unpowered tinted contact lens. On July 18, 2007, the Department mailed One Stop a letter advising it that the sale of contact lens without a valid prescription was unlawful pursuant to South Carolina Code Section 37-25-10. According to the certified mail receipt, One Stop received and signed for this letter on July 21, 2007. On August 23, 2007, Ms. Coker again visited One Stop to conduct a follow-up investigation. At that time, she again observed tinted contact lens for sale without a valid prescription. On August 31, 2007, the Department mailed One Stop a letter informing it of its repeat violation. The letter ordered One Stop to cease and desist the sale of contact lens without a valid prescription and further ordered One Stop to pay a civil penalty of five thousand dollars ($ 5,000).

On September 25, 2007, One Stop Fashions requested a contested case hearing as authorized by the South Carolina Administrative Procedures Act (“APA”) S.C. Code Ann.§§ 1-23-310 et. seq. (2005) and S.C. Code Ann. § 37-25-70 (B) (Supp. 2006). The Court assigned Docket No. 07-ALJ-30-0516-CC to the case. In the request, One Stop asserted that it was not aware that it could not sell contact lens without a valid prescription and that the owner was out of the country when the Department’s investigation was conducted.

WITNESSES

At the hearing on this matter, the Department presented the testimony of two witnesses. Brenda Coker, an investigator with the Department testified regarding her two visits to One Stop. In addition, the Department presented the testimony of Angela Combs, an employee of the South Carolina Department of Labor, Licensing and Regulation (LLR). Ms. Combs testified in her capacity as the Administrator of both the Board of Examiners in Opticianry and the South Carolina Board of Examiners in Optometry. Ms. Combs testified regarding and authenticated two Orders to Cease and Desist the Practice of Opticianry issued against One Stop Fashions in 2003 and 2005.

The Petitioner presented the testimony of Mr. Tai Mock Lee. Mr. Lee is the owner of One Stop Fashions.

POSITIONS OF THE PARTIES

In its Pre-Hearing Statement, and at trial, the Department asks this Court to uphold its finding that One Stop should be ordered to cease and desist the sale of contact lens without a valid prescription and pay a civil penalty of five thousand dollars. Pursuant to S.C. Code Ann. § 37-25-20, it is unlawful for a person to dispense an ophthalmic contact lens or lenses without first having obtained a valid, unexpired contact lens prescription from a licensed optometrist or ophthalmologist. S.C. Code Ann. 37-25-70 (A) permits the Department to assess a penalty in an amount not to exceed five thousand dollars per violation. The Department argues that given One Stop Fashions’ history of non-compliance with the cease and desist orders issued by LLR, the maximum civil penalty is appropriate in this case.

In its Pre-Hearing Statement, One Stop Fashions admitted that it sold contact lens without a valid prescription after the store was notified by the Department’s warning letter dated July 18, 2007. However, it asks this Court to either dismiss the charge or substantially reduce the civil penalty. The stated reasons for this request were that Mr. Lee was out of the country when the Department’s warning letter arrived, and only returned to the store five days prior to the Department’s second inspection visit on August 23, 2007. One Stop asserts that, due to Mr. Lee’s limited command of written English, he did not have adequate time to read the contents of the letter, provide it to legal counsel for advice, and to remove the lens from the store premises. One Stop further asserts that it was unaware it was improper to sell contact lens without a valid prescription. Mr. Lee testified that he had removed the lenses from his store after the 2003 LLR order, but resumed selling them after a sales representative for his wholesale supplier told him it was permissible to sell them. Finally, One Stop asserts that it lacks the financial resources to pay the levied penalty and that such a penalty would threaten the store’s viability as a going concern.

At trial, One Stop further argued that the order and civil penalty should not be upheld due to poor legislative drafting of the Code. Specifically, counsel argued that Title 37 Chapter 25 does not define the term “ophthalmic” when it bans dispensing ophthalmic contact lens without a valid prescription. He further argued that use of the word ophthalmic implies that only the sale of prescription contact lens without a prescription is banned. Counsel did not offer his own definition of “ophthalmic” and invited counsel for the Department to provide one. Counsel for the Department responded that the General Assembly is not required to define each and every term used in a statute and that “ophthalmic” is simply a term meaning “of the eye”.

FINDINGS OF FACT[1]

1. The Petitioner, One Stop Fashions, is a discount retail business located in Beaufort County, South Carolina. The sole proprietor of the business is Mr. Tai Mock Lee.

2. The Respondent, South Carolina Department of Consumer Affairs is an agency of the State of South Carolina.

3. Based on the undisputed testimony of Ms. Coker, One Stop Fashions was engaged in the sale of contact lens without a valid prescription on June 22, 2007.

4. The Department issued a warning letter to One Stop on July 18, 2007 via United States mail, return receipt requested. It is undisputed that an employee of One Stop received and signed for that letter on July 21, 2007.

5. Based on the undisputed testimony of Ms. Coker, One Stop Fashions was engaged in the sale of contact lens without a valid prescription on August 23, 2007.

6. On August 31, 2007, via United States mail, return receipt requested, the Department issued its decision ordering One Stop to cease and desist the sale of contact lens without a valid prescription, and ordered it to pay a civil penalty. It is undisputed that an employee of One Stop received and signed for that letter on September 4, 2007.

7. Based on the testimony of Ms. Combs, LLR issued orders in 2003 and 2005 ordering One Stop to cease and desist the practice of opticianry. The orders specifically found that One Stop had engaged in the practice of opticianry without being duly licensed, as required by law, by dispensing contact lenses, to include non-corrective, colored or patterned, cosmetic lenses, without a valid prescription.

8. Based on the testimony of Mr. Lee, neither he, nor any other employee of One Stop is a licensed optician, optometrist, or ophthalmologist.

9. Based on the testimony of Mr. Lee, this Court finds that he has an understanding of verbal and written English sufficient to allow him to understand the nature of this proceeding and to participate as a witness.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, as well as the discussion, I conclude, as a matter of law, the following:

1. The South Carolina Administrative Law Court is empowered to hear this case pursuant to S.C. Code Ann. § 37-25-70 (B) (Supp. 2005) and the Administrative Procedures Act, Title 1 Chapter 23 of the South Carolina Code of Laws (2005), as amended.

2. The Administrative Procedures Act requires that notice of a hearing be given to all parties at least thirty days in advance. S.C. Code Ann. § 1-23-320(a) (2005). Notice of the contested case hearing in this matter was given to all parties more than thirty days prior to this hearing.

3. S.C. Code Ann. § 1-23-350 (2005) provides that a final decision in a contested case shall be in writing and shall include findings of fact and conclusions of law. See, also, ALC Rule 29 (C). The findings of fact in a contested case must be based upon evidence and matters officially noticed during the course of a hearing. S.C. Code Ann. § 1-23-320 (i) (2005). The decision of an Administrative Law Judge who conducts and hears a contested case is a “final decision” as defined in the Administrative Procedures Act. S.C. Code Ann. § 1-23-610 (2005).

4. The Department has the duty to enforce the provisions of Title 37 Chapter 25 of the South Carolina Code of Laws.

5. S.C. Code Ann. § 37-25-20 makes it unlawful for a person to dispense an ophthalmic contact lens or lenses without first having obtained a valid, unexpired contact lens prescription from a licensed optometrist or ophthalmologist. Webster’s Online Medical Dictionary defines the word ophthalmic as: of, relating to, or situated near the eye. The definition in several other dictionaries is essentially identical. In construing a statute, words must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute's operation. Bryant v. City of Charleston, 295 S.C. 408, 368 S.E.2d 899 (1988). Therefore, I reject Petitioner’s contention that S.C. Code Ann. § 37-25-20 does not apply to the sales of cosmetic contact lens by One Stop Fashions.

6. Based on the lack of any evidence or testimony on the issue, I conclude that Petitioner has not made any showing of financial hardship such that it is unable to pay a civil penalty, or that payment of such a penalty would threaten the store’s viability as a going concern.

7. 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 (M-156-90) v. State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998). Because this contested case involves the imposition of penalties by the Department, the Department bears the burden of proof. See, also, ALC Rule 29 (B) (“In matters involving the assessment of civil penalties, the imposition of sanctions, or the enforcement of administrative orders, the agency shall have the burden of proof”). Therefore, the Department has the burden of proving by the preponderance of the evidence that One Stop Fashions violated the provisions of S.C. Code Ann. § 37-25-20 by dispensing contact lens without a valid prescription.

8. Based on the preponderance of the evidence in this matter and the findings heretofore made, I conclude that One Stop Fashions violated the provisions of S.C. Code Ann. § 37-25-20 by selling contact lens without a valid prescription.

ORDER

Based upon the foregoing Findings of Fact and discussion, as well as the Conclusions of Law,

IT IS HEREBY ORDERED that One Stop Fashions shall cease and desist the dispensing of all contact lens, including non-corrective, colored or patterned cosmetic lenses, without a valid, unexpired contact lens prescription from a licensed optometrist or ophthalmologist; and

IT IS HEREBY FURTHER ORDERED that One Stop Fashions shall pay a civil penalty for its violation of S.C. Code Ann. § 37-25-20 to the Department of Consumer Affairs. Since this is Petitioner’s first appearance before this Court on such a violation, the amount of the civil penalty shall be reduced to one thousand dollars ($ 1,000); and

IT IS HEREBY FURTHER ORDERED that One Stop Fashions shall pay this amount in full to the Department of Consumer Affairs within 30 days of the date of this Order. Should One Stop fail to make full payment within 30 days, this Court will entertain any motion(s) to re-examine the amount of the civil penalty and/or to hold the Petitioner in contempt of this Court.

AND IT IS SO ORDERED.

John D. McLeod

Administrative Law Judge

July 23, 2008

Columbia, South Carolina