South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDNR vs. Jimmy Howard Cox

AGENCY:
South Carolina Department of Natural Resources

PARTIES:
Petitioners:
South Carolina Department of Natural Resources

Respondents:
Jimmy Howard Cox
 
DOCKET NUMBER:
97-ALJ-13-0083-CC

APPEARANCES:
Jimmy Howard Cox, Pro se, for Petitioner

Paul S. League, Esq., for Respondent
 

ORDERS:

ORDER AND DECISION

I. Statement of the Case


This matter is before me pursuant to S.C. Code Ann. §50-9-1050 (Supp. 1996) and S.C. Code Ann. §§1-23-310, et seq. (Rev. 1986 & Supp. 1996) upon a request for review of a suspension of the hunting and fishing privileges of Jimmy Howard Cox (Cox) by the South Carolina Department of Natural Resources (DNR). The hearing was held on May 5, 1997. Based upon the evidence presented, Cox's privileges for both hunting and fishing are suspended.

II. Issue


Should DNR suspend the hunting and fishing privileges of Cox?

III. Analysis


1. Positions of Parties:

DNR asserts Cox 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)(h) and (2)(f) (Supp. 1996). Cox agrees he violated the hunting laws and that he has exceeded the eighteen point limitation on hunting and fishing privileges. However, he asserts the suspension should be only for his hunting privileges and not for his fishing privileges since he violated only the hunting laws. DNR argues the suspension statute of § 50-9-1140 mandates that both the hunting and fishing privileges be suspended and no provision is allowed for separating the two.

2. Findings of Fact:

1. On January 1, 1997, Cox was charged with a violation of S.C. Code Ann. §50-11-2200 (Supp. 1996), for violating a wildlife management area regulation by taking more than the legal limit of deer.

2. On January 30, 1997, Cox was found guilty of the charge.

3. DNR assessed eight (8) points against the hunting and fishing license of Cox under the point suspension system for the offense of taking more than the legal limit of deer on a Wildlife Management Area.

4. On January 1, 1997, Cox was charged with a violation of S.C. Code Ann. §50-11-2200 (Supp. 1996), for violating a wildlife management area regulation by taking doe deer with a gun.

5. On January 30, 1997, Cox was found guilty of the charge.

6. DNR assessed fourteen (14) points against the hunting and fishing license of Cox under the point suspension system for the offense of violating a wildlife management area regulation by taking doe deer with a gun.

7. Within a one year period Cox accumulated in excess of eighteen (18) points against his hunting and fishing license.

3. Discussion

S.C. Code Ann. §50-9-1130 (Supp. 1996) 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. §50-9-1120 (Supp. 1996). In the instant case, on January 30, 1997, Cox was found guilty of taking more than the legal limit of deer which, by operation of law pursuant to S.C. Code Ann. §50-9-1120(1)(h), results in an assessment of eight points. Also on January 30, 1997, Cox was found guilty of violating a wildlife management area regulation by taking doe deer with a gun which, by operation of law pursuant to S.C. Code Ann. §50-9-1120(2)(f) results in the assessment of fourteen points. Under S.C. Code Ann. §50-9-1140 (Supp 1996), the accumulation of eighteen points requires a one year suspension of the party's hunting and fishing privileges. These two violations exceed eighteen (18) points within a one year period and thus require a suspension.

Cox argues that his only violations are of hunting laws and thus, his hunting, but not fishing privileges should be suspended. I am unable to agree. Section 50-9-1140 states that the hunting and fishing privileges are suspended when eighteen (18) points are exceeded. The language is plain in requiring both hunting and fishing suspension. The primary rule of statutory construction is to ascertain and give effect to the legislature's intent or purpose as expressed in the statute. Green V. Thornton, 265 S.C. 436, 219 S.E.2d 827 (1975). Also, the legislature's intent should be ascertained primarily from the plain language of the statute. 82 C.J.S. Statutes § 322 (b), at 571 (1953). Unless a statute requires a different interpretation, the words used in the statute must be given their ordinary meaning. Hughes v. Edwards, 265 S.C. 529, 220 S.E.2d 231 (1975).

Here, no language indicates that a suspension of only one privilege (i.e. hunting) will result when the violator can prove that only the laws associated with that particular privilege have been violated. Rather, the language of the point system recognizes that numerous violations may be common to both hunting and fishing. See § 50-9-1120(1) (Supp. 1996). The General Assembly's recognition of offenses common to both hunting and fishing is an indication the General Assembly intended to suspend both hunting and fishing privileges without regard to whether the violation originated from only one area. In addition, the statute uses the word "shall" in reference to the suspension of the "hunting and fishing privileges." "Shall" is a term imposing a mandatory duty. S.C. Dept. of Highways and Public Transp. v. Dickinson, 288 S.C. 189, 341 S.E.2d 134 (1986). No discretion is available to suspend one privilege and not suspend another.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. Cox is entitled to a hearing for review of the administrative suspension of his hunting and fishing privileges. S.C. Code Ann. §50-9-1150 (Supp. 1996).

2. The South Carolina Administrative Law Judge Division is empowered to hear this case. §50-9-1150 (Supp. 1996) and S.C. Code Ann. §§1-23-310, et seq. (Rev. 1986 & Supp. 1996).

3. Taking more than the legal limit of deer is a violation of law applicable to hunting and fishing and results in an assessment of eight points. S.C. Code Ann. §50-9-1120(1)(h) (Supp. 1996).

4. Taking doe deer with a gun is a violation of law applicable to hunting and fishing and results in an assessment of fourteen points. S.C. Code Ann. §50-9-1120(2)(f) (Supp. 1996).

5. Upon the accumulation of eighteen (18) or more points, DNR shall suspend that person's hunting and fishing privileges. S.C. Code Ann. §§50-9-1140 (Supp. 1996).

6. Both hunting and fishing privileges are suspended when eighteen (18) points are exceeded §50-9-1140 (Supp. 1996).

7. The primary rule of statutory construction is to ascertain and give effect to the legislature's intent or purpose as expressed in the statute. Green V. Thornton, 265 S.C. 436, 219 S.E.2d 827 (1975).

8. The legislature's intent should be ascertained primarily from the plain language of the statute. 82 C.J.S. Statutes § 322 (b), at 571 (1953).

9 Unless a statute requires a different interpretation, the words used in the statute must be given their ordinary meaning. Hughes v. Edwards, 265 S.C. 529, 220 S.E.2d 231 (1975).

10. The language of the point system recognizes that numerous violations may be common to both hunting and fishing. See § 50-9-1120(1) (Supp. 1996).

11. The use of the word "shall" in reference to the suspension of the "hunting and fishing privileges" is a term imposing a mandatory duty. S.C. Dept. of Highways and Public Transp. v. Dickinson, 288 S.C. 189, 341 S.E.2d 134 (1986).

12. No discretion is available to suspend one privilege and not suspend another.

13. The points are properly assessed, and DNR is required to suspend the hunting and fishing privileges of Cox.

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 Jimmy Howard Cox 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 6th day of May, 1997.


Brown Bldg.

 

 

 

 

 

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