ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me upon a request to review the suspension of the Respondent’s commercial saltwater fishing privileges. A hearing was held before me at the offices of the Administrative Law Judge Division on October, 22, 2002.
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. On November 17, 2001, after inspecting the Respondent’s fishing vessel, the South Carolina Department of Natural Resources (Department) found that the Respondent did not have turtle excluder devices (TEDs) for his fishing nets as required by S. C. Code Ann. § 50-5‑765 (Supp. 2001). Since both of the Respondent’s nets failed to have proper TEDs, Reaves was cited for two (2) separate counts of having improper TEDs in violation of Section 50-5-765. The Respondent was thereafter convicted in magistrate’s court of one offense on December 11, 2001 and the other offense on January 8, 2002. Pursuant to those convictions, the Department assessed six (6) points against the Respondent's license for each offense of having an improper TED, resulting in an assessment of twelve (12) points against his license.
3. The Respondent had previously received the following points assessments against his saltwater license:
a. On 8/22/00, the Respondent was convicted of violating Section 50-17-1010 (entitled “Restricted Areas”) (repealed eff. July 1, 2000) and was assessed eight (8) points; and
b. On 12/11/01, the Respondent was convicted of violating Section 50-5-715 (entitled “Trawling restriction areas within General Trawling Zone”) and was assessed six (6) points.
These offenses, along with the TED violations, resulted in an accumulation of twenty-two (22) points within one (1) calendar year. Based upon the points being assessed, the Department issued an official Order of Suspension to the Respondent dated April 15, 2002.
4. I find that the points were properly assessed and the Department properly suspended the Respondent’s saltwater fishing privileges.
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. 2001) and S.C. Code Ann. § 50-5-2520 (Supp. 2001).
2. S. C. Code Ann. § 50-5-2500 (Supp. 2001) 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. 2001).
The Respondent concedes 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 privileges. Nevertheless, the Respondent contends that the Department’s assessment of points for two (2) violations of Section 50-5-765 is prohibited by S.C. Code Ann
§ 17-25-50 (1976 & Supp. 2001). Section 17-25-50 provides that:
In determining the number of offenses for the purpose of imposition of sentence, the court shall treat as one offense any number of offenses which have been committed at times so closely connected in point of time that they may be considered as one offense, notwithstanding under the law they constitute separate and distinct offenses.
The Respondent contends that since fishing with only one net is “not practical or common,” the offense of possessing an improper turtle excluder device must occur “in pairs.” Therefore, though the Respondent was convicted of two offenses, those offenses must be treated as one offense pursuant to Section 17-25-50.
3. In State v. Muldrow, 259 S.C. 414, 192 S.E.2d 211, 212 (1972), the defendant argued that the trial court erred in imposing separate penalties for the several counts because the offenses for which he was convicted “were of the same character and grew out of the same transaction, and were in effect parts or aspects of one offense.” The Supreme Court explained that the previous codification of Section 17-25-50, 17-553.2, was “a recidivist statute prescribing and making mandatory the punishment for persons convicted for a third or for a fourth time of certain crimes.” Id. Likewise, in Legare v. State, 333 S.C. 275, 283, 509 S.E.2d 472, 476 (1998), the Supreme Court held that:
Where the indictment charges the defendant with the commission of separate and distinct crimes, each involving distinct elements not included in the other, then it is entirely proper for the court to impose sentences on each count for which the defendant is convicted.
Here, the violations of Section 50-5-765 were two separate and distinct crimes, each involving distinct elements not included in the other. Section 50-5-765 sets forth that “[a] turtle excluder device must be used in trawl nets in the salt waters of this State under the same conditions required by federal regulations.” 50 CFR § 22.206 (d)(2) requires that “[a]ny shrimp trawler that is in the Atlantic area . . . must have an approved TED installed in each net that is rigged for fishing. . . .” Consequently, Section 50-5-765 requires each trawl net to have a TED which is correctly operating. It follows then if one is defective and one is not there is only one charge but where both are defective there are two distinct offenses. Moreover, the Respondent did not establish that both nets are used in tandem. Rather, it appears that each net carries a distinct purpose. Therefore, Section 17-25-50 is not applicable to the circumstances of this case.
4. 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).
ORDER
Based upon the foregoing Findings of Facts and Conclusions of Law, it is hereby:
ORDERED that the saltwater fishing privileges of Craig Allen Reaves are suspended for a period of one (1) year, with such suspension to commence on the eleventh day following the date of this Order pursuant to S.C. Code Ann. § 50-5-2510 (B) (Supp. 2001).
AND IT IS SO ORDERED.
______________________________
Ralph King Anderson, III
Administrative Law Judge
February 13, 2003
Columbia, South Carolina
This point assessment was reduced to four (4) points on 8/22/01 because the Respondent did not have any convictions for one (1) year.
Furthermore, the mere fact that a civil penalty has some deterrent effect does not render it violative of the double jeopardy clause. Rather, “a court looks at the face of a statute to determine if it establishes a criminal or civil penalty, and then determines if the statutory scheme is so punitive in purpose or effect as to transform what was intended as a civil sanction into a criminal penalty. Only the clearest proof will suffice to override legislative intent and transform what has been denominated as a civil remedy into a criminal penalty.” State v. Price, 333 SC 267, 271, 510 S.E.2d 215, 218 (1998). Here, point assessments are civil in nature and the purpose is to protect the public (along with providing protection to the salt waters and marine habitat of this State) and not to punish the licensee. See generally, S.C. Code Ann. § 50‑5‑20 (B) (Supp. 2001). Therefore, the Respondent did not establish that the point assessment violates the double jeopardy clause.
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