ORDERS:
FINAL ORDER AND DECISION
I. Introduction
In the instant case, Trooper Publications of South Carolina, Inc. (Trooper Publications) is
challenging a fine of $4,000 imposed by the South Carolina Secretary of State (Secretary). The
Secretary asserts the fine is properly due based on Trooper Publications' violations of S.C. Code
Ann. Sec. 33-56-90 (Supp. 2004). Trooper Publications asserts no violations occurred.
The Administrative Law Court (ALC or Court) has jurisdiction to decide this controversy. S.C.
Code Ann. Sec. 33-56-140(E) (Supp. 2004). Having reviewed the evidence and having
considered the arguments presented, a fine of $4,000 is properly imposed here.
II. Issue
The issue is whether Trooper Publications complied with the telephone solicitation demands of
S.C. Code Ann. Sec. 33-56- 90(A) (Supp. 2004) to disclose its status as a "professional" or
"paid" solicitor and to disclose the location of the charitable organization for which it was
fundraising.
III. Analysis
A. Findings of Fact
I find by a preponderance of the evidence the following facts:
Trooper Publications, a professional fundraiser with an address of 505 Palmer Avenue,
Falmouth, Massachusetts, raises funds for the South Carolina Troopers Association (Troopers
Association), a non-profit labor organization located in Suite C at 4961 Broad River Road,
Columbia, South Carolina. One of the methods used to raise funds for Trooper Association is
that of telephone solicitation.
A telephone solicitation by Trooper Publications occurred on July 14, 2004 when a Trooper
Publications' representative physically located at 4961 Broad River Road called a citizen of
Laurens County (Citizen). Trooper Publications provides each of its solicitors with a "script"
which the solicitor may use during a call. The script provides the following:
HELLO MR/MRS. _________________
THIS IS ________________ . I'M PAID BY TROOPER PUBLICATIONS OF
SOUTH CAROLINA, CALLING FOR THE SOUTH CAROLINA TROOPERS
ASSOCIATION. HOW ARE YOU TODAY, MR./MRS. __________________.
WE'RE PUTTING TOGETHER THE NEXT ISSUE OF SOUTH CAROLINA
TROOPER MAGAZINE. WE DO THIS TO IMPROVE WORKING
CONDITIONS AND TO PROVIDE LEGAL SERVICES AND A DEATH
BENEFIT FUND FOR THE MEMBERS. CAN WE COUNT ON YOUR HELP
THIS YEAR?
On July 14, 2004, Citizen answered the telephone and heard a solicitor who identified himself by
name and who stated that he was with the South Carolina Troopers Association. The solicitor
did not state that he was either a professional solicitor or a paid solicitor. Also, he did not
disclose the location of Trooper Association, the entity for which fundraising was being
conducted.
Citizen believed inadequate disclosure had been made. As a result, he contacted state officials
on July 15, 2005 seeking to file a complaint. Upon reaching the Secretary and discussing the
solicitation, the Secretary's investigation found that Trooper Publications had been previously
notified on August 29, 2002 that violations had been determined and that Trooper Publications
had been previously warned that continued violations would result in fines.
Continuing with the Secretary's investigation, a questionnaire was mailed to Citizen who
completed the form on July 17, 2005 and returned it by mail to the Secretary. The Secretary's
review of the answered questionnaire showed that Citizen concluded that the solicitor did not
state he was a paid or professional solicitor. Further, the answered questionnaire showed that
Citizen concluded the solicitor did not disclose where Trooper Association was located.
B. Conclusions of Law
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
During a charitable solicitation, a professional solicitor must disclose its status as a
"professional" or "paid" solicitor and must disclose the location of the charitable organization for
which it is conducting fundraising. S.C. Code Ann. Sec. 33-56-90(A) (Supp. 2004). Here, the
evidence convinces me that Trooper Publications did not disclose that it was a "professional" or
"paid" solicitor and did not disclose the location of the organization for which fundraising was
being conducted.
Clearly, a disputed issue at the trial of this matter was identifying what the caller actually said
during the telephone solicitation.
In such evidentiary matters, the judge is required to make a
factual determination to resolve the dispute. In making such determinations, the judge must both
weigh the evidence and evaluate witness credibility. See Doe v. Doe, 324 S.C. 492, 478 S.E.2d
854 (Ct. App. 1996); Rogers v. Kunja Knitting Mills, Inc., 312 S.C. 377, 440 S.E.2d 401 (Ct.
App. 1994), cert. dismissed, 318 S.C. 187, 456 S.E.2d 918 (1995).
Here, I find the testimony of Citizen more credible and more persuasive on the issue of what was
actually said during the telephone solicitation. Citizen's background includes previous
employment as a deputy sheriff for ten years and educational accomplishments of earning
degrees of a BS in Criminal Justice and a Masters in Education. Thus, Citizen's background of
law enforcement and academic pursuits bolsters his credibility since such activities evidence one
who has experience in careful observation and attention to detail. Further, Citizen's demeanor
during his testimony conveyed both a thoughtful approach to answering questions and a strong
command of the events occurring during the telephone call.
Accordingly, I find and conclude Trooper Publications did not disclose that it was a "paid" or
"professional" solicitor and did not disclose the location of the organization for which
fundraising was being conducted. Accordingly, given the two violations, fines may be imposed.
See S.C. Code Ann. Sec. 33-56-90(C) (Supp. 2004) ("A professional solicitor that fails to
comply with the provisions of this section is liable for an administrative fine not to exceed two
thousand dollars for each separate violation.").
The amount of the fine must be decided "based on the facts presented." Walker v. S.C. ABC
Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). Further, those facts must be determined by the
ALJ (Brown v. S.C. Dept. of Health and Envtl. Control, 348 S.C. 507, 560 S.E.2d 410 (2002))
and must be determined by weighing and passing upon the credibility of the evidence presented.
See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d
586 (1992). Additionally, in seeking to impose the proper penalty, the fine must be analyzed
individually to determine if it is appropriate under the circumstances. Midlands Utility, Inc. v.
S.C. Dept. of Health and Envtl. Control, 313 S.C. 210, 437 S.E.2d 120 (1993). Finally, in
assigning a penalty, the fact finder must be mindful of and give effect to the purposes for which
fines are assessed; i.e., to deter such conduct in the future. Id.
Here, fines of $2,000 for each violation are proper. The facts show that the two violations here
are not the first for improper telephone solicitation by Trooper Publications. Rather, by notice
dated August 29, 2002, the Secretary notified Trooper Publications of several violations and
warned that continued violations would result in fines. Violations having continued, it is
apparent that issuing a warning has not been affective. Thus, a meaningful fine is warranted to
deter future misconduct. Such a deterrent here means a fine of $2,000 for each violation giving a
total fine owed of $4,000.
IV. Order
Accordingly, based on the above findings of fact and conclusions of law, the following order is
entered:
Trooper Publications of South Carolina, Inc. is liable for a fine of $4,000.00 for two violations of
S.C. Code Ann. Sec. 33-56-90(A) (Supp. 2004) since it failed to disclose its status as a "paid" or
"professional" solicitor and failed to disclose the location of the charitable organization for
which it was fundraising.
AND IT IS SO ORDERED
______________________
RAY N. STEVENS
Administrative Law Judge
Dated: May 26, 2005
Columbia, South Carolina |
