ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter is before the Administrative Law Court (“ALC”) for a final order and
decision following a contested case hearing pursuant to S.C. Code Ann. § 1-23-600(A)
(as amended by 2008 S.C. Act No. 334). The South
Carolina Department of Natural Resources (“Department”) suspended the hunting
and fishing privileges of the Respondent for one year in the state of South
Carolina based on his being convicted of violating S.C. Code Ann. § 50-11-10(B)(1)
(2008). The Respondent, Jeremy Todd (“Todd”), requested a contested case
hearing. After notice to the parties, the court held a hearing on September 8,
2008. Both parties appeared at the hearing. Evidence was introduced and testimony presented. After
carefully weighing all the evidence, this court finds that the Department’s
suspension of Todd’s hunting and fishing privileges pursuant to S.C. Code Ann. §
50-9-1140 (2008) was proper.
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, and taking into consideration the burden of persuasion
by the parties, the court makes the following Findings of Fact by a
preponderance of the evidence.
On
January 4, 2008, Todd was charged with trespassing to hunt waterfowl, a
violation of S.C. Code Ann. § 50-11-10(B)(1) (2008). On February 27, 2008, Todd
was found guilty of that offense in magistrate’s court. Pursuant to S.C. Code
Ann. § 50-9-1150, the Department sent an Official Order of Suspension to Todd
on March 21, 2008, notifying him that his hunting and fishing privileges would
be suspended for one year.
Lieutenant
Michael Sabaka, who testified for the Department, works for the Department’s law
enforcement division as a staff lieutenant and is the administrator of the
point system for violations and suspensions of hunting and fishing licenses. The
Department’s practice is to suspend, in accordance with state law, the hunting
and fishing privileges of a person who has accumulated eighteen or more
violation points under the statutory scheme established by S.C. Code Ann. §§ 50-9-1120, -1140 (2008). Todd does not
dispute that he was convicted in magistrate’s court on February 27, 2008 for a
violation of § 50-11-10(B)(1).
LAW
Based
upon the foregoing Findings of Fact, the court concludes the following as a
matter of law.
1. Jurisdiction and
Review
Jurisdiction
over this case is vested with the South Carolina Administrative Law Court
pursuant to § 1-23-600(A). The weight and credibility assigned to evidence
presented at the hearing of a matter is within the province of the trier of
fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co.,
308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992). Furthermore, a trial judge who
observes a witness is in the best position to judge the witness’s demeanor and
veracity and to evaluate the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace
v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App.
1990).
In
presiding over this contested case, the court serves as the finder of fact and
makes a de novo determination regarding the matter at issue. See S.C.
Code Ann. § 1-23-600(A); Brown v. S.C. Dep’t of Health & Envtl. Control,
348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002); Marlboro Park Hosp. v. S.C.
Dep’t of Health & Envtl. Control, 358 S.C. 573, 577-79, 595 S.E.2d 851,
853-54 (Ct. App. 2004). The Department has the burden to justify suspension. ALC
Rule 29(B) (stating that the agency has the burden of proof in enforcement
actions).
2. Hunting
and Fishing License
A
person must obtain a license from the Department to lawfully hunt or fish in
the state of South Carolina. S.C. Code Ann. § 50-9-10 (2008). Each time a
person is convicted of a violation listed in § 50-9-1120, the number of points assigned
to the violation as established by that statute is charged against the person’s
license. See S.C. Code Ann. § 50-9-1130 (2008). Once a person
accumulates eighteen or more points, the Department is required by law to
suspend that person’s license for a period of one year. S.C. Code Ann. §
50-9-1140; see also § 50-9-1130 (providing for a deduction of
accumulated points over time).
Section
50-11-10(B)(1) makes it unlawful to trespass while hunting waterfowl. In this
case, although asserting that his conviction was in error, Todd does not
dispute that he has in fact been convicted of violating § 50-11-10. The administrative
penalty for trespassing to hunt waterfowl is eighteen points. §
50-9-1120(2)(m). Accordingly, the Department was required to suspend Todd’s
license for one year. S.C. Code Ann. § 50-9-1140. This court is not permitted
to entertain a collateral attack on the underlying criminal conviction. See S.C. Wildlife & Marine Res. Dep’t v. Kunkle, 287 S.C. 177, 336
S.E.2d 468 (1985) (“It is firmly established that a criminal conviction may not
be the subject of a collateral attack in an administrative proceeding.”).
ORDER
Based upon the Findings of Fact and Conclusions of Law stated
above, it is
ORDERED that the Department’s decision to suspend Todd’s hunting and fishing privileges
in the state of South Carolina for one year pursuant to S.C. Code Ann. § 50-9-1140
is upheld.
IT
IS SO ORDERED.
______________________________________
PAIGE J. GOSSETT
Administrative Law Judge
September 9, 2008
Columbia, South Carolina
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