ORDERS:
ORDER AND DECISION
I. Statement of the Case
This matter comes before me pursuant to S.C. Code Ann. §50-9-1050 (Supp. 1995) and S.C.
Code Ann. §§1-23-310, et seq. (Rev. 1986 & Supp. 1995) upon a request for review of a
suspension of the hunting and fishing privileges of Max D. Nease (Nease) by the South Carolina
Department of Natural Resources ("DNR"). Notice of the hearing date of January 31, 1996 was
provided to Nease by mail on December 13, 1995. At the appointed date and time of the hearing
no appearance was made by Nease and accordingly the hearing was held in his absence.
Based upon the evidence presented, Nease's privileges are suspended. Any issues raised in the
proceedings or hearing of this case but not addressed in this Order are deemed denied. ALJD
Rule 29(B). Further, the filing of a motion for reconsideration is not a prerequisite to any party
filing a notice of appeal of this Order. ALJD Rule 29(C).
II. Issues
Should DNR suspend the hunting and fishing privileges of Nease?
III. Analysis
1. Positions of Parties:
DNR asserts Nease accumulated, within a one year period, in excess of eighteen (18) points for
violations of hunting and fishing statutes with such points assessed under S.C. Code Ann. §
50-9-1120(1)(k) and (2)(e) (Supp. 1995). Nease asserts a suspension is too severe under the
circumstances of his case because he was unaware that the field in which he was dove hunting was
baited.
2. Findings of Fact:
1. On November 26, 1994, Nease was charged with a violation of S.C. Code Ann. §50-9-150
(Supp. 1995), for hunting small game during big game season on a Wildlife Management Area.
2. On January 5, 1995, Nease was found guilty of the charge.
3. DNR assessed eight (8) points against the hunting and fishing license of Nease under the point
suspension system for the offense of hunting small game during big game season on a Wildlife
Management Area.
4. On November 26, 1994, Nease was charged with a violation of S.C. Code Ann. §50-9-150
(Supp. 1995), for hunting on a Wildlife Management Area without a permit.
5. On January 5, 1995, Nease was found guilty of the charge.
6. DNR assessed eight (8) points against the hunting and fishing license of Nease under the point
suspension system for the offense of hunting on a Wildlife Management Area without a permit.
7. On September 2, 1995, Nease was charged with a violation of S.C. Code Ann. §50-11-10
(Supp. 1995), for hunting doves over bait.
8. On September 12, 1995, Nease was found guilty of the charge.
9. DNR assessed eight (8) points against the hunting and fishing license of Nease under the point
suspension system for the offense of hunting doves over bait.
10. Within a one year period Nease accumulated in excess of eighteen (18) points against his
hunting and fishing license.
3. Discussion
S.C. Code Ann. §50-9-1030 (Supp. 1995) provides that upon conviction of a violation of the laws
and regulations applying to hunting and fishing, the violator must be assessed the number of
points assigned to the violation under S.C. Code Ann. §50-9-1020 (Supp. 1995). In the instant
case, on September 2, 1995, Nease was found guilty of hunting doves over bait which, by
operation of law pursuant to S.C. Code Ann. §50-9-1020(2)(e), results in an assessment of eight
points. On November 26, 1994, Nease was found guilty of hunting on a Wildlife Management
Area without a permit which, by operation of law pursuant to S.C. Code Ann. §50-9-1020(1)(k)
results in the assessment of eight points. Also on November 26, 1994, Nease was found guilty of
hunting small game during big game season on a Wildlife Management Area. This violation under
S.C. Code Ann. §50-9-1020(1)(k) results in an assessment of eight points. Under S.C. Code
Ann. §50-9-1040 (Supp 1995), the accumulation of eighteen points requires a one year
suspension of the party's hunting and fishing privileges. These three violations exceed eighteen
(18) points within a one year period and thus requires a suspension.
Nease argues in his prehearing statement that he was improperly convicted of hunting doves over
a baited field, and thus, eight points should not be assessed for such conviction. In essence, Nease
seeks to challenge his criminal conviction. It is settled that a conviction for illegal hunting may
not be collaterally attacked in an administrative proceeding regarding the suspension of a hunting
and fishing license. S.C. Wildlife and Marine Resources Dept. v. Kunkle, 287 S.C. 177, 336
S.E.2d 468 (1985). Accordingly, Nease's argument is improper.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of
law:
1. Nease is entitled to a hearing for review of the administrative suspension of his hunting and
fishing privileges. S.C. Code Ann. §50-9-1050 (Supp. 1995).
2. The South Carolina Administrative Law Judge Division is empowered to hear this case.
§50-9-1050 (Supp. 1995) and S.C. Code Ann. §§1-23-310, et seq. (Rev. 1986 & Supp. 1995).
3. Hunting doves over bait is a violation of law applicable to hunting and fishing. S.C. Code Ann.
§50-11-10 (Supp. 1995).
4. Eight (8) points are assessed for the violation of hunting doves over bait. S.C. Code Ann.
§50-9-1020(2)(e) (Supp. 1995).
5. Hunting on a Wildlife Management Area without a permit is a violation of law applicable to
hunting and fishing. S.C. Code Ann. §50-9-150 (Supp. 1995).
6. Eight (8) points are assessed for the violation of hunting on a Wildlife Management Area
without a permit S.C. Code Ann. §50-9-1020(1)(k) (Supp. 1995).
7. Hunting small game during big game season on a Wildlife Management Area is a violation of
law applicable to hunting and fishing. S.C. Code Ann. §50-9-150 (Supp. 1995).
8. Eight (8) points are assessed for the violation of hunting small game during big game season on
a Wildlife Management Area. S.C. Code Ann. §50-9-1020(1)(k) (Supp. 1995).
9. Upon the accumulation of eighteen (18) or more points, DNR shall suspend that person's
hunting and fishing privileges. S.C. Code Ann. §§50-9-1040 (Supp. 1995).
10. Nease's conviction for hunting doves over a baited field may not be collaterally attacked in an
administrative proceeding regarding the suspension of a hunting and fishing license. S.C. Wildlife
and Marine Resources Dept. v. Kunkle, 287 S.C. 177, 336 S.E. 2d 468 (1985).
11. The points are properly assessed, and DNR is required to suspend the hunting and fishing
privileges of Nease.
IV. ORDER
Based upon the foregoing Findings of Fact, Discussion and Conclusions of Law, the following
ORDER is issued:
DNR must suspend the hunting and fishing privileges of Max D. Nease for one year, with such
suspension to commence on the eleventh day following the date of this Order.
IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
This 1st day of February, 1996. |
