ORDERS:
Mr. Hendrix testified that he immediately terminates any employee who does not
properly disclose his identity, his employer, his occupation and his relationship with the
charity at the beginning of a solicitation call. Mr. Hendrix testified his employees do follow
the disclosure law. He also testified that persons receiving telephone calls are not always
aware of what disclosure is or whether a proper disclosure has been made. Mr. Hendrix
testified people often do not begin paying attention to a solicitation phone call until after
disclosure has properly been made.
Carolyn Hatcher-
Ms. Hatcher was recalled by Respondent. She testified that Mr. Hendrix is currently
registered with the Petitioner to solicit for charities. She also testified Mr. Hendrix was very
conscientious about keeping in contact with the Secretary of State’s office in order to avoid
problems.
BURDEN OF PROOF
The Secretary of State imposed penalties on Respondent for alleged violations of
S.C. Code Ann. §§33-56-90(A) and 33-56-120. Basic principles of administrative law
establish that an agency bears the burden of proof in establishing a penalty is justified. See
Peabody Coal v. Ralston, 578 N.E.2d 751 (Ind. Ct. App. 1991); Shipley, South Carolina
Administrative Law §§5-79 & 80 (1989). The caption, pursuant to an order of the Court
made at the January 16, 2003 hearing, was changed to reflect the correct allocation of the
burden of proof.
FINDINGS OF FACT
Having carefully considered the credibility of the testimony and accuracy of the
evidence presented at the hearing, and taking into consideration the burden of persuasion of
the parties, I make the following findings of fact by a preponderance of the evidence:
1.Notice of the date, time, place, and subject matter of the hearing was given to all
parties in a timely manner.
2.Petitioner is the state agency charged with enforcement of the South Carolina
Solicitation of Charitable Funds Act (“Act”), S.C. Code Ann. § 33-56-10 et seq. (Supp.
2002).
3.The Respondent is a “professional solicitor” as defined in S.C. Code Ann. § 33-56-20(9) (Supp. 2002) and is registered with the South Carolina Secretary of State, registration
no. 4436.
4.Respondent’s employees and/or agents who solicit charitable donations are
“professional solicitors” as defined in S.C. Code Ann. § 33-56-20(9) (Supp. 2002).
5.Respondent, from March 24, 1999 through the date of trial, contracted with South
Carolina State Troopers Coalition (“Troopers Coalition”), a duly registered charitable
organization, to provide telemarketing services to solicit charitable donations for the
Troopers Coalition.
6.Petitioner’s evidence consisted of testimony from various witnesses concerning
solicitations via telephone from Respondent’s employees and/or agents from both its
Columbia and Greenville, South Carolina offices from July 2001 through July 2002. They
testified that these employees and/or agents failed to disclose their status as paid or
professional solicitors. and that one witness was misled as to whether Respondent was
actually a trooper, all in violation of the Act.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, I conclude, as a matter of law, the
following:
1.S.C. Code Ann. §§1-23-310 et seq. (Supp. 2002) grants subject matter jurisdiction
to the Division to hear contested cases under the Administrative Procedures Act.
2.Further, the Administrative Law Judge who tries a contested case is the finder of fact
and issues a final decision on the merits pursuant to the provisions of S.C. Code Ann. §§1-23-350 and 1-23-600(B) (Supp. 2002).
3.S.C. Code Ann. § 33-56-140(E) (Supp. 2002) specifically grants jurisdiction to the
Division to conduct contested case hearings in matters involving the South Carolina
Solicitation of Charitable Funds Act.
4.The standard of proof in weighing the evidence and making a decision on the merits
at a contested case hearing is the preponderance of evidence. See Anonymous v. State Bd.
of Medical Examiners, 329 S.C. 371, 796 S.E.2d 17 (1998) (standard of proof in an
administrative proceeding is the preponderance of the evidence).
5.In civil cases, the burden of proof generally rests upon the party who asserts the
affirmative of an issue. 2 Am. Jur. 2d Administrative Law § 360 (1994); Alex Sanders, et
al., South Carolina Trial Handbook § 9:3 Party with Burden, Civil Cases (2000). One means
of determining which party has the affirmative of an issue is to answer the question as to
which party would be subject to an adverse judgment on the pleadings if no evidence was
introduced.
6.Basic principles of administrative law establish that an agency bears the burden of
proof in establishing that the penalty is justified. See Peabody Coal Co. v. Talston, 578
N.E.2d 751 (Ind. Ct. App. 1991); Shipley, South Carolina Administrative Law §§5-79, 5-80
(1989).
7.The Petitioner is the party asserting the affirmative in this case. The Petitioner,
therefore, must prove by a preponderance of the evidence that the Respondent violated S.C.
Code Ann. §§ 33-56-90(A) and 33-56-120(A) (Supp. 2002). See Anonymous v. State Bd.
Of Medical Exam’rs, 329 S.C. 371, 496 S.E.2d 17 (1998).
8.The trier of fact must weigh and pass upon the credibility of the evidence presented.
South Carolina Cable Television Ass’n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417
S.E.2d 586 (1992). The judge who observes a witness is in the best position to judge the
witness’s demeanor and veracity and evaluate his testimony. Shealy v. Aiken County, 341
S.C. 448, 535 S.E.2d 438 (2000).
9.It is a generally recognized principle of administrative law that the fact-finder has the
authority to impose an administrative penalty, as established by the legislature, after the
parties have had an opportunity to have a hearing and be heard on the issues. Walker v. S.C.
ABC Comm’n, 305 S.C. 209, 407 S.E.2d 633 (1991). See also City of Louisville v.
Milligan, 798 S.W.2d 454 (Ky. 1990); Matter of Henry Youth Hockey Ass’n, 511 N.W.2d
452 (Minn. Ct. App. 1994); Shadow Lake of Noel, Inc. v. Supervisor of Liquor Control, 893
S.W.2d 835 (Mo. Ct. App. 1995); Ohio Real Estate Comm’n v. Aqua Sun Inv., 655 N.E.2d
266 (Ohio 1995); State Police v. Cantina Gloria’s, 639 A.2d 14 (Pa.1994); Vermont Agency
of Natural Resources v. Duranleau, 617 A.2d 143 (Vt. 1992).
10.Direct evidence is the testimony of a person who asserts or claims to have actual
knowledge of a fact, such as an eyewitness. Circumstantial evidence is proof of a chain of
facts and circumstances indicating the existence of a fact. The law makes absolutely no
distinction between the weight or value to be given to either direct or circumstantial
evidence. Moriarty v. Garden Sanctuary Church of God, 341 S.C. 320, 337-338, 534 S.E.2d.
672, 680-681 (2000), citing State v. Needs, 333 S.C. 134, 156 n. 13, 508 S.E.2d 857, 868 n.
13 (1998). The South Carolina Supreme Court has not distinguished between the two types
of evidence in numerous cases. Moriarty at 680. See, e.g., Tiller v. Nat'l Health Care Center
of Sumter, 334 S.C. 333, 341, 513 S.E.2d 843, 846 (1999) (proof that workers' compensation
claimant sustained an injury may be established by circumstantial or direct evidence);
Holtzscheiter v. Thomson Newspapers, Inc., 332 S.C. 502, 513, 506 S.E.2d 497, 503 (1998)
(directed verdict on liability in civil case is properly denied when there is any evidence,
direct or circumstantial, justifying submission of issue to jury); Waters v. South Carolina
Land Resources Conservation Comm'n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996) (fact
that geologist relied on circumstantial rather than direct evidence in forming his conclusions
goes to the weight of the evidence, and may be relied on by administrative agency and court
to support a finding of fact); Anders v. Anders, 285 S.C. 512, 515, 331 S.E.2d 340, 342
(1985) (either circumstantial or direct evidence, or a combination of the two, may be
sufficient to prove adultery as grounds for a divorce); Mahaffey v. Ahl, 264 S.C. 241, 247,
214 S.E.2d 119, 122 (1975) (it is axiomatic in this State that issues of negligence and
proximate cause may be resolved by direct or circumstantial evidence); First Union Nat'l
Bank of South Carolina v. Soden, 333 S.C. 554, 575, 511 S.E.2d 372, 383 (Ct.App.1998)
(tort of civil conspiracy may be shown by circumstantial as well as direct evidence); Bilton
v. Best Western Royal Motor Lodge, 282 S.C. 634, 642, 321 S.E.2d 63, 68 (Ct.App.1984)
(circumstantial evidence and inferences drawn therefrom may be relied on to support a
finding of fact of an administrative agency).
11.When interpreting a statute, the judge must ascertain and effectuate legislative intent
if it reasonably can be discovered in the language when construed in the light of its intended
purpose. Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000).
12.S.C. Code Ann. § 33-56-90(A) (Supp. 2002) provides that “At the initial time of
solicitation, a professional solicitor must disclose its status as a ‘professional’ or ‘paid’
solicitor.”
13.S.C. Code Ann. § 33-56-90(C) (Supp. 2002) provides that “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.”
14.S.C. Code Ann. § 33-56-120(A) (Supp. 2002) provides: “In connection with the
solicitation of contributions for the sale of goods or services, a person shall not misrepresent
or mislead, knowingly and willfully, a person by any manner, means, practice or devise.”
15.S.C. Code Ann. § 33-56-140(B) (Supp. 2002) provides that “If a . . . professional
solicitor . . . otherwise violates [the Act] . . . the Secretary of State may assess an
administrative fine not to exceed two thousand dollars for each separate violation against the
. . . professional solicitor.”
16.S.C. Rule of Evidence 801(d)(2)(A) provides that a statement that is offered against
a party and is the party’s own statement in either an individual or a representative capacity
is not hearsay.
17.Respondent’s employees’ and/or agents’ statements, made during the course of
telephone solicitations of Petitioner’s witnesses, were allowed into the record,
notwithstanding Respondent argued they were hearsay statements. Hearsay is defined in
Rule 801(c) as “a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(b)
defines a declarant as “a person who makes a statement.” Thus, a declarant would be a
witness testifying at a hearing.
Rule 801(d) lists two statements made by a witness which are not hearsay. The first
is a prior statement made by a witness and the second is an admission or statement offered
against a party to the proceeding which is:
(1) the party’s own statement in either an individual or a representative capacity, or
(2) a statement of which the party has manifested an adoption or belief in its truth,
or
(3) a statement by a person authorized by the party to make a statement concerning
the subject, or
(4) a statement by the party’s agent or servant concerning a matter within the scope
of the agency or employment, made during the existence of the relationship, or
(5) a statement by a coconspirator of a party during the course and in furtherance of
the conspiracy.
The statements made by the witnesses for Petitioner herein come within the
exception to the hearsay rule because the employees were acting in a representative capacity
for their employer. The matters the employees discussed with the witnesses were within the
scope of the agency or employment relationship. Further, Respondent admitted that its
employees and/or agents did make the solicitation phone calls testified to by Petitioner’s
witnesses David Holler and George James and that these phone calls were on behalf of the
Troopers Coalition and for Camp Smokey Bear.
18.Petitioner presented substantial circumstantial evidence that Respondent’s employees
and/or agents placed the solicitation phone call to Debbie Corzine in that the solicitor stated
he was calling from Troopers Coalition and that any donation would be used for a drug
program called Vision – the same name as a program Respondent solicits for on behalf of
Troopers Coalition.
19.Petitioner presented substantial circumstantial evidence that Respondent’s employees
and/or agents placed the solicitation phone call to Ashley Nutley, a Greenville resident, in
that a Dan Watson, the same name as a Greenville solicitor for Respondent, called from
Troopers Coalition and stated that donations would go to Camp Smokey Bear.
Respondent admitted that a Dan Watson was employed as a telephone solicitor for
Respondent at the time the calls were made and that he would make calls to Greenville area
residents.
20.Petitioner presented substantial circumstantial evidence that Respondent’s employees
and/or agents placed the solicitation phone call to Joy Myers, a Greenville resident, in that
the caller stated he was calling from the Troopers Coalition. The male caller stated to Joy
Myers that any donation would go toward a camp for children located close to Fort Jackson.
Respondent introduced evidence that admits Camp Smokey Bear is a camp for
underprivileged children on Weston Lake at Fort Jackson.
21.Petitioner presented substantial circumstantial evidence that Respondent’s employees
and/or agents placed the October 22, 2001 solicitation phone call to Emily Adams, a
Greenville resident, in that she was familiar with a solicitor named Dan Watson and that he
called for Troopers Coalition. Dan Watson stated that he was located in Greenville on Chick
Springs Road – the same location as Respondent’s admitted call center. Respondent admitted
that a Dan Watson was employed as a telephone solicitor for Respondent at the time the calls
were made and that he would make calls to Greenville area residents.
22.Petitioner presented substantial circumstantial evidence that Respondent’s employees
and/or agents placed the April 11, 2002 solicitation phone call to Emily Adams in that a Dan
Watson called her, stating he was with Troopers Coalition and that any donation would go
to Camp Smokey Bear. Respondent admitted that a Dan Watson was employed as a
telephone solicitor for Respondent at the time the calls were made and that he would make
calls to Greenville area residents.
23.Petitioner presented substantial circumstantial evidence that Respondent’s employees
and/or agents placed a solicitation phone call to Dewain Herring on June 27, 2002 at his law
office in Columbia. Mr. Martin identified himself, stated he was calling from the Troopers
Coalition and that any donations would go to a camp for children. Respondent admitted that
a Julian Martin is a solicitor for Respondent and that he calls Columbia area residents.
24.Petitioner’s substantial circumstantial evidence corroborates Petitioner’s claim that
Respondent’s employees and/or agents placed these solicitation phone calls.
25.Each of the solicitation phone calls placed into evidence by Petitioner are
solicitations for charitable purposes as defined in the Act. S.C. Code Ann. § 33-56-20(2) &
(10) (Supp. 2002).
26.Petitioner has shown, by a preponderance of the evidence, that in all of the
solicitation calls in question the solicitor did not disclose that he was a paid or professional
solicitor as required by S.C. Code Ann. § 33-56-90(A) (Supp. 2002).
27.Petitioner has shown, by a preponderance of the evidence, that Respondent’s
employees and/or agents placed the solicitation phone calls, referred to in its Petition by
either direct or circumstantial evidence and that the only reasonable inference drawn from
Petitioner’s circumstantial evidence is that Respondent’s employees and/or agents placed
these calls.
28.Petitioner has shown, by a preponderance of the evidence, that the substance of these
solicitation phone calls was that they were violations of the Act, were used against
Respondent at trial to prove violations of the Act and were made during the existence of an
agency or employment relationship, concerning matters within the scope of the agency or
employment. Therefore, testimony concerning the substance of these solicitation phone calls
is not hearsay pursuant to Rules 801(d)(2)(A) and 801(d)(2)(E) SCRE.
29.Petitioner has not shown by a preponderance of the evidence that Respondent’s
employee, Rick Watson, in connection with a charitable solicitation phone call to
Petitioner’s witness David Holler, misrepresented that he was a trooper in violation of S.C.
Code § 33-56-120(A) (Supp. 2002). Using initials in one’s name is not sufficient to suggest
that one is a trooper.
30.Mr. Herring testified that he had spoken with Mr. Martin several years prior to the
telephone conversation on June 27, 2002 and that on that prior occasion Mr. Herring had
made a contribution to the Troopers Coalition. Although Mr. Martin did not identify himself
as a paid or professional solicitor on June 27, 2002, he was known to Mr. Herring as such.
Accordingly, the court concludes that an appropriate fine for this instance should be
$1,000.00.
CONCLUSION
Based upon the foregoing Findings of Fact and Conclusions of Law, I find and
conclude that Respondent committed ten (10) violations of the Act, and that an appropriate
fine for these ten (10) violations is Nineteen Thousand ($19,000.00) Dollars.
ORDER
For all the foregoing reasons,
IT IS HEREBY ORDERED that the Respondent pay a fine in the amount of
Nineteen Thousand ($19,000.00) Dollars to the Petitioner within thirty (30) days from the
date of this Final Order and Decision.
AND IT IS SO ORDERED.
___________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
March 21, 2003
Columbia, South Carolina Mr. Hendrix testified that he immediately terminates any employee who does not
properly disclose his identity, his employer, his occupation and his relationship with the
charity at the beginning of a solicitation call. Mr. Hendrix testified his employees do follow
the disclosure law. He also testified that persons receiving telephone calls are not always
aware of what disclosure is or whether a proper disclosure has been made. Mr. Hendrix
testified people often do not begin paying attention to a solicitation phone call until after
disclosure has properly been made.
Carolyn Hatcher-
Ms. Hatcher was recalled by Respondent. She testified that Mr. Hendrix is currently
registered with the Petitioner to solicit for charities. She also testified Mr. Hendrix was very
conscientious about keeping in contact with the Secretary of State’s office in order to avoid
problems.
BURDEN OF PROOF
The Secretary of State imposed penalties on Respondent for alleged violations of
S.C. Code Ann. §§33-56-90(A) and 33-56-120. Basic principles of administrative law
establish that an agency bears the burden of proof in establishing a penalty is justified. See
Peabody Coal v. Ralston, 578 N.E.2d 751 (Ind. Ct. App. 1991); Shipley, South Carolina
Administrative Law §§5-79 & 80 (1989). The caption, pursuant to an order of the Court
made at the January 16, 2003 hearing, was changed to reflect the correct allocation of the
burden of proof.
FINDINGS OF FACT
Having carefully considered the credibility of the testimony and accuracy of the
evidence presented at the hearing, and taking into consideration the burden of persuasion of
the parties, I make the following findings of fact by a preponderance of the evidence:
1. Notice of the date, time, place, and subject matter of the hearing was given to all
parties in a timely manner.
2. Petitioner is the state agency charged with enforcement of the South Carolina
Solicitation of Charitable Funds Act (“Act”), S.C. Code Ann. § 33-56-10 et seq. (Supp.
2002).
3. The Respondent is a “professional solicitor” as defined in S.C. Code Ann. § 33-56-20(9) (Supp. 2002) and is registered with the South Carolina Secretary of State, registration
no. 4436.
4. Respondent’s employees and/or agents who solicit charitable donations are
“professional solicitors” as defined in S.C. Code Ann. § 33-56-20(9) (Supp. 2002).
5. Respondent, from March 24, 1999 through the date of trial, contracted with South
Carolina State Troopers Coalition (“Troopers Coalition”), a duly registered charitable
organization, to provide telemarketing services to solicit charitable donations for the
Troopers Coalition.
6. Petitioner’s evidence consisted of testimony from various witnesses concerning
solicitations via telephone from Respondent’s employees and/or agents from both its
Columbia and Greenville, South Carolina offices from July 2001 through July 2002. They
testified that these employees and/or agents failed to disclose their status as paid or
professional solicitors. and that one witness was misled as to whether Respondent was
actually a trooper, all in violation of the Act.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, I conclude, as a matter of law, the
following:
1. S.C. Code Ann. §§1-23-310 et seq. (Supp. 2002) grants subject matter jurisdiction
to the Division to hear contested cases under the Administrative Procedures Act.
2. Further, the Administrative Law Judge who tries a contested case is the finder of fact
and issues a final decision on the merits pursuant to the provisions of S.C. Code Ann. §§1-23-350 and 1-23-600(B) (Supp. 2002).
3. S.C. Code Ann. § 33-56-140(E) (Supp. 2002) specifically grants jurisdiction to the
Division to conduct contested case hearings in matters involving the South Carolina
Solicitation of Charitable Funds Act.
4. The standard of proof in weighing the evidence and making a decision on the merits
at a contested case hearing is the preponderance of evidence. See Anonymous v. State Bd.
of Medical Examiners, 329 S.C. 371, 796 S.E.2d 17 (1998) (standard of proof in an
administrative proceeding is the preponderance of the evidence).
5. In civil cases, the burden of proof generally rests upon the party who asserts the
affirmative of an issue. 2 Am. Jur. 2d Administrative Law § 360 (1994); Alex Sanders, et
al., South Carolina Trial Handbook § 9:3 Party with Burden, Civil Cases (2000). One means
of determining which party has the affirmative of an issue is to answer the question as to
which party would be subject to an adverse judgment on the pleadings if no evidence was
introduced.
6. Basic principles of administrative law establish that an agency bears the burden of
proof in establishing that the penalty is justified. See Peabody Coal Co. v. Talston, 578
N.E.2d 751 (Ind. Ct. App. 1991); Shipley, South Carolina Administrative Law §§5-79, 5-80
(1989).
7. The Petitioner is the party asserting the affirmative in this case. The Petitioner,
therefore, must prove by a preponderance of the evidence that the Respondent violated S.C.
Code Ann. §§ 33-56-90(A) and 33-56-120(A) (Supp. 2002). See Anonymous v. State Bd.
Of Medical Exam’rs, 329 S.C. 371, 496 S.E.2d 17 (1998).
8. The trier of fact must weigh and pass upon the credibility of the evidence presented.
South Carolina Cable Television Ass’n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417
S.E.2d 586 (1992). The judge who observes a witness is in the best position to judge the
witness’s demeanor and veracity and evaluate his testimony. Shealy v. Aiken County, 341
S.C. 448, 535 S.E.2d 438 (2000).
9. It is a generally recognized principle of administrative law that the fact-finder has the
authority to impose an administrative penalty, as established by the legislature, after the
parties have had an opportunity to have a hearing and be heard on the issues. Walker v. S.C.
ABC Comm’n, 305 S.C. 209, 407 S.E.2d 633 (1991). See also City of Louisville v.
Milligan, 798 S.W.2d 454 (Ky. 1990); Matter of Henry Youth Hockey Ass’n, 511 N.W.2d
452 (Minn. Ct. App. 1994); Shadow Lake of Noel, Inc. v. Supervisor of Liquor Control, 893
S.W.2d 835 (Mo. Ct. App. 1995); Ohio Real Estate Comm’n v. Aqua Sun Inv., 655 N.E.2d
266 (Ohio 1995); State Police v. Cantina Gloria’s, 639 A.2d 14 (Pa.1994); Vermont Agency
of Natural Resources v. Duranleau, 617 A.2d 143 (Vt. 1992).
10. Direct evidence is the testimony of a person who asserts or claims to have actual
knowledge of a fact, such as an eyewitness. Circumstantial evidence is proof of a chain of
facts and circumstances indicating the existence of a fact. The law makes absolutely no
distinction between the weight or value to be given to either direct or circumstantial
evidence. Moriarty v. Garden Sanctuary Church of God, 341 S.C. 320, 337-338, 534 S.E.2d.
672, 680-681 (2000), citing State v. Needs, 333 S.C. 134, 156 n. 13, 508 S.E.2d 857, 868 n.
13 (1998). The South Carolina Supreme Court has not distinguished between the two types
of evidence in numerous cases. Moriarty at 680. See, e.g., Tiller v. Nat'l Health Care Center
of Sumter, 334 S.C. 333, 341, 513 S.E.2d 843, 846 (1999) (proof that workers' compensation
claimant sustained an injury may be established by circumstantial or direct evidence);
Holtzscheiter v. Thomson Newspapers, Inc., 332 S.C. 502, 513, 506 S.E.2d 497, 503 (1998)
(directed verdict on liability in civil case is properly denied when there is any evidence,
direct or circumstantial, justifying submission of issue to jury); Waters v. South Carolina
Land Resources Conservation Comm'n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996) (fact
that geologist relied on circumstantial rather than direct evidence in forming his conclusions
goes to the weight of the evidence, and may be relied on by administrative agency and court
to support a finding of fact); Anders v. Anders, 285 S.C. 512, 515, 331 S.E.2d 340, 342
(1985) (either circumstantial or direct evidence, or a combination of the two, may be
sufficient to prove adultery as grounds for a divorce); Mahaffey v. Ahl, 264 S.C. 241, 247,
214 S.E.2d 119, 122 (1975) (it is axiomatic in this State that issues of negligence and
proximate cause may be resolved by direct or circumstantial evidence); First Union Nat'l
Bank of South Carolina v. Soden, 333 S.C. 554, 575, 511 S.E.2d 372, 383 (Ct.App.1998)
(tort of civil conspiracy may be shown by circumstantial as well as direct evidence); Bilton
v. Best Western Royal Motor Lodge, 282 S.C. 634, 642, 321 S.E.2d 63, 68 (Ct.App.1984)
(circumstantial evidence and inferences drawn therefrom may be relied on to support a
finding of fact of an administrative agency).
11. When interpreting a statute, the judge must ascertain and effectuate legislative intent
if it reasonably can be discovered in the language when construed in the light of its intended
purpose. Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000).
12. S.C. Code Ann. § 33-56-90(A) (Supp. 2002) provides that “At the initial time of
solicitation, a professional solicitor must disclose its status as a ‘professional’ or ‘paid’
solicitor.”
13. S.C. Code Ann. § 33-56-90(C) (Supp. 2002) provides that “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.”
14. S.C. Code Ann. § 33-56-120(A) (Supp. 2002) provides: “In connection with the
solicitation of contributions for the sale of goods or services, a person shall not misrepresent
or mislead, knowingly and willfully, a person by any manner, means, practice or devise.”
15. S.C. Code Ann. § 33-56-140(B) (Supp. 2002) provides that “If a . . . professional
solicitor . . . otherwise violates [the Act] . . . the Secretary of State may assess an
administrative fine not to exceed two thousand dollars for each separate violation against the
. . . professional solicitor.”
16. S.C. Rule of Evidence 801(d)(2)(A) provides that a statement that is offered against
a party and is the party’s own statement in either an individual or a representative capacity
is not hearsay.
17. Respondent’s employees’ and/or agents’ statements, made during the course of
telephone solicitations of Petitioner’s witnesses, were allowed into the record,
notwithstanding Respondent argued they were hearsay statements. Hearsay is defined in
Rule 801(c) as “a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(b)
defines a declarant as “a person who makes a statement.” Thus, a declarant would be a
witness testifying at a hearing.
Rule 801(d) lists two statements made by a witness which are not hearsay. The first
is a prior statement made by a witness and the second is an admission or statement offered
against a party to the proceeding which is:
(1) the party’s own statement in either an individual or a representative capacity, or
(2) a statement of which the party has manifested an adoption or belief in its truth,
or
(3) a statement by a person authorized by the party to make a statement concerning
the subject, or
(4) a statement by the party’s agent or servant concerning a matter within the scope
of the agency or employment, made during the existence of the relationship, or
(5) a statement by a coconspirator of a party during the course and in furtherance of
the conspiracy.
The statements made by the witnesses for Petitioner herein come within the
exception to the hearsay rule because the employees were acting in a representative capacity
for their employer. The matters the employees discussed with the witnesses were within the
scope of the agency or employment relationship. Further, Respondent admitted that its
employees and/or agents did make the solicitation phone calls testified to by Petitioner’s
witnesses David Holler and George James and that these phone calls were on behalf of the
Troopers Coalition and for Camp Smokey Bear.
18. Petitioner presented substantial circumstantial evidence that Respondent’s employees
and/or agents placed the solicitation phone call to Debbie Corzine in that the solicitor stated
he was calling from Troopers Coalition and that any donation would be used for a drug
program called Vision – the same name as a program Respondent solicits for on behalf of
Troopers Coalition.
19. Petitioner presented substantial circumstantial evidence that Respondent’s employees
and/or agents placed the solicitation phone call to Ashley Nutley, a Greenville resident, in
that a Dan Watson, the same name as a Greenville solicitor for Respondent, called from
Troopers Coalition and stated that donations would go to Camp Smokey Bear.
Respondent admitted that a Dan Watson was employed as a telephone solicitor for
Respondent at the time the calls were made and that he would make calls to Greenville area
residents.
20. Petitioner presented substantial circumstantial evidence that Respondent’s employees
and/or agents placed the solicitation phone call to Joy Myers, a Greenville resident, in that
the caller stated he was calling from the Troopers Coalition. The male caller stated to Joy
Myers that any donation would go toward a camp for children located close to Fort Jackson.
Respondent introduced evidence that admits Camp Smokey Bear is a camp for
underprivileged children on Weston Lake at Fort Jackson.
21. Petitioner presented substantial circumstantial evidence that Respondent’s employees
and/or agents placed the October 22, 2001 solicitation phone call to Emily Adams, a
Greenville resident, in that she was familiar with a solicitor named Dan Watson and that he
called for Troopers Coalition. Dan Watson stated that he was located in Greenville on Chick
Springs Road – the same location as Respondent’s admitted call center. Respondent admitted
that a Dan Watson was employed as a telephone solicitor for Respondent at the time the calls
were made and that he would make calls to Greenville area residents.
22. Petitioner presented substantial circumstantial evidence that Respondent’s employees
and/or agents placed the April 11, 2002 solicitation phone call to Emily Adams in that a Dan
Watson called her, stating he was with Troopers Coalition and that any donation would go
to Camp Smokey Bear. Respondent admitted that a Dan Watson was employed as a
telephone solicitor for Respondent at the time the calls were made and that he would make
calls to Greenville area residents.
23. Petitioner presented substantial circumstantial evidence that Respondent’s employees
and/or agents placed a solicitation phone call to Dewain Herring on June 27, 2002 at his law
office in Columbia. Mr. Martin identified himself, stated he was calling from the Troopers
Coalition and that any donations would go to a camp for children. Respondent admitted that
a Julian Martin is a solicitor for Respondent and that he calls Columbia area residents.
24. Petitioner’s substantial circumstantial evidence corroborates Petitioner’s claim that
Respondent’s employees and/or agents placed these solicitation phone calls.
25. Each of the solicitation phone calls placed into evidence by Petitioner are
solicitations for charitable purposes as defined in the Act. S.C. Code Ann. § 33-56-20(2) &
(10) (Supp. 2002).
26. Petitioner has shown, by a preponderance of the evidence, that in all of the
solicitation calls in question the solicitor did not disclose that he was a paid or professional
solicitor as required by S.C. Code Ann. § 33-56-90(A) (Supp. 2002).
27. Petitioner has shown, by a preponderance of the evidence, that Respondent’s
employees and/or agents placed the solicitation phone calls, referred to in its Petition by
either direct or circumstantial evidence and that the only reasonable inference drawn from
Petitioner’s circumstantial evidence is that Respondent’s employees and/or agents placed
these calls.
28. Petitioner has shown, by a preponderance of the evidence, that the substance of these
solicitation phone calls was that they were violations of the Act, were used against
Respondent at trial to prove violations of the Act and were made during the existence of an
agency or employment relationship, concerning matters within the scope of the agency or
employment. Therefore, testimony concerning the substance of these solicitation phone calls
is not hearsay pursuant to Rules 801(d)(2)(A) and 801(d)(2)(E) SCRE.
29. Petitioner has not shown by a preponderance of the evidence that Respondent’s
employee, Rick Watson, in connection with a charitable solicitation phone call to
Petitioner’s witness David Holler, misrepresented that he was a trooper in violation of S.C.
Code § 33-56-120(A) (Supp. 2002). Using initials in one’s name is not sufficient to suggest
that one is a trooper.
30. Mr. Herring testified that he had spoken with Mr. Martin several years prior to the
telephone conversation on June 27, 2002 and that on that prior occasion Mr. Herring had
made a contribution to the Troopers Coalition. Although Mr. Martin did not identify himself
as a paid or professional solicitor on June 27, 2002, he was known to Mr. Herring as such.
Accordingly, the court concludes that an appropriate fine for this instance should be
$1,000.00.
CONCLUSION
Based upon the foregoing Findings of Fact and Conclusions of Law, I find and
conclude that Respondent committed ten (10) violations of the Act, and that an appropriate
fine for these ten (10) violations is Nineteen Thousand ($19,000.00) Dollars.
ORDER
For all the foregoing reasons,
IT IS HEREBY ORDERED that the Respondent pay a fine in the amount of
Nineteen Thousand ($19,000.00) Dollars to the Petitioner within thirty (30) days from the
date of this Final Order and Decision.
AND IT IS SO ORDERED.
___________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
March 21, 2003
Columbia, South Carolina |
