ORDERS:
FINAL DECISION
STATEMENT OF THE CASE
This matter comes before me upon a request to review the suspension of hunting and fishing
privileges of Gerald J. Malecka. After notice to the parties, a hearing was conducted on November 25,
1997, at the Administrative Law Judge Division.
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 Respondent.
2. A citation was issued to Gerald J. Malecka, for taking game fish illegally
on July 4, 1997 in violation of S. C. Code Ann. §50-13-10 (Supp. 1996).
The Respondent was thereafter convicted of that offense on August 12,
1997.
3. A citation was issued to Gerald J. Malecka, for possession of illegal
fishing devices in violation of S. C. Code Ann. §50-13-1115 (Supp.
1996) on July 4, 1997. The Respondent was thereafter convicted of that
offense on August 12, 1997.
4. The Department of Natural Resources (DNR) assessed eight (8) points
against the Respondent's license for possession of illegal fishing devices
and ten (10) points against the Respondent's license for taking game fish
illegally. See S. C. Code Ann. §50-9-1120 (1)(f) & (3) (Supp. 1996).
5. These two offenses resulted in an accumulation of 18 points within one
(1) calendar year. No points were deducted because all of the points
were accumulated within one calendar year.
6. Based upon the points being assessed, DNR issued to the Respondent an
official Order of Suspension dated September 10, 1997.
7. The 18 points were properly assessed and DNR properly suspended the
hunting and fishing privileges of the Respondent.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law the following:
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)
(Supp. 1996) and S. C. Code Ann. §50-9-1150 (Supp. 1996).
2. S. C. Code Ann. §§ 50-9-1120 and 50-9-1130 (Supp. 1996) provide that
upon conviction of a violation set forth in Section 1120, DNR shall
assess points against the holder's hunting and fishing privileges. The
Department shall reduce the number of points from each calendar year
that passes in which no points are received.
3. The Department shall suspend for one (1) year the hunting and fishing
privileges of each person who has 18 or more points. S. C. Code Ann.
§50-9-1140 (Supp. 1996).
4. The inquiry at the Administrative proceedings is limited to whether DNR
has properly identified the person; whether there was a conviction;
whether the points were properly assessed; and whether the appropriate
deduction in points had 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 hunting and fishing privileges of Gerald J. Malecka are suspended for a
period of one (1) year.
AND IT IS SO ORDERED.
___________________________
Ralph King Anderson, III
Administrative Law Judge
December 2, 1997
Columbia, South Carolina |
