ORDERS:
ORDER
This matter is before me pursuant to SCRCP 52(b) upon Petitioner's Motion to Amend the
Decision and Order of this Court, dated March 16, 1995, reinstating Respondent's coastal
fisheries privileges and license with a six (6) point assessment. After notice to the parties, a
motion hearing was held on May 9, 1995 at the Administrative Law Judge Division Hearing
Room, Columbia, South Carolina. After careful consideration and review, Petitioner's motion is
granted and the Decision and Order dated March 16, 1995 is vacated and the following is
substituted in lieu thereof:
Appearances: For the Petitioner: Paul League, Esquire
Lt. Sumter Moore
For the Respondent: Deborah A. Malphrus, Esquire
This matter came before me pursuant to S.C. Code Ann. § 50-17-1110 (Supp. 1993) and S.C.
Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1993) upon a request for review of a
suspension of coastal fisheries privileges of Harold H. Washington by the South Carolina
Department of Natural Resources ("DNR"). After notice to the parties, a hearing was held on
February 17, 1995 at the Administrative Law Judge Division Hearing Room, Columbia, South
Carolina.
Based upon the testimony and evidence presented, Respondent's coastal fisheries privileges are
suspended for a period of one (1) year.
EXHIBITS The following exhibits were made a part of the record:
- Copy of S.C. DNR Arrest Report and Trial Summons #552945;
- S.C. DNR Coastal Fisheries Violation Point System;
- Saltwater Fisheries Cross Reference Guide, Revised 1994-1995;
- Official Order of Suspension;
- Affidavit of Petitioner, Harold H. Washington;
- Arrest Warrant E-132417;
- Commercial Fisheries' copy of the Arrest Report and Trial Summons; and
- Petitioner's payment schedule from the Beaufort Magistrate's Court.
SUMMARY OF THE EVIDENCE
Respondent testified he is 62 years old and lives in Jasper County. He stated he has been a
fisherman since 1984 and has never received a ticket from the DNR. He reads a little bit but has
less than a third grade education.
Respondent testified that at the trial before the magistrate he was found guilty of tampering with a
commercial device. He did not have an attorney represent him at that hearing.
Respondent also testified that when he received a notice from the DNR, he was not able to read
it, so he took it to Captain Garbade of the DNR. He further testified that he went to visit Captain
Garbade a second time he was informed that he may need to see a lawyer for advice. He then
consulted with counsel and sought review.
Sgt. Walters, as employee of the Petitioner who administers the coastal fisheries points violation
system, testified that Respondent was found guilty of tampering with a commercial device under
S.C. Code Ann. § 50-5-90 (Supp. 1994).
Lt. Sumter Moore testified that brochures explaining the point system were not mailed to all who
held a coastal fisheries license.
Captain Garbade testified that he is the Resident State Wildlife Officer in charge of Beaufort
County. He was not present at Respondent's trial in magistrates court and has no direct
knowledge of the facts of that trial. He further testified that he received a copy of the arrest
warrant and Respondent was charged with possession of someone else's crab traps. He also
stated that he didn't know of the violation until Respondent came to his office. He further
testified that Respondent told him that he did not take the pots, but had them in his possession.
Captain Garbade further testified that he advised Respondent that he could not fish, based on the
letter of suspension he had received. He further testified that he never delivered brochures to
individuals, but did deliver some to several business locations.
FINDINGS OF FACT
Based upon the testimony, the credibility of the witnesses and the evidence presented, I make the
following Findings of Fact:
1. This Division has personal and subject matter jurisdiction.
2. On October 26, 1994, at approximately 10:00 a.m., Respondent was cited for violation of S.C.
Code Ann. § 50-5-90 (Supp. 1994), for tampering with a commercial device.
3. On November 29, 1994, Respondent was found guilty of violating S.C. Code Ann. § 50-5-90
(Supp. 1994), which provides that "[i]t shall be unlawful to remove, steal, intentionally damage or
interfere with any fishing equipment or device belonging to another or to remove the catch of any
fish, crustaceans or shellfish contained therein without the permission of the owner[,]" and fined
the sum of $295.25.
4. In a letter entitled "Official Order of Suspension" dated December 22, 1994, the DNR assessed
(18) points against the coastal fisheries license of Respondent under S.C. Code Ann. §
50-17-1120(A)(11) (Supp. 1993), now appearing at § 50-17-1120(A)(10) (Supp. 1994), for
"stealing catch or fishing equipment or damaging or interfering with fishing equipment." The
letter further notified Respondent that if he desired a review of his violations record, he must
notify the DNR in writing within ten (10) days following receipt of the letter.
5. Respondent has less than a third grade education and is therefore functionally illiterate.
6. Respondent has no previous violations of the coastal fisheries laws or regulations.
7. Respondent never received a brochure explaining the new coastal fisheries point system,
located at S.C. Code Ann. § 50-17-1110 (Supp. 1994) et seq., effective by statute as of July 1,
1994.(1) Therefore, he was not provided with notice that if convicted for violating the South
Carolina fishing laws, he would lose his coastal fisheries privileges. He became familiar with the
new point system through conversations with Captain Garbade and immediately sought legal
advice and a review of the suspension notice through his attorney by letter to the DNR dated
January 27, 1995, received by the DNR on January 30, 1995.
8. The DNR seeks suspension of the coastal fisheries license of the Respondent based on an
assessment of eighteen (18) points.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. S.C. Code Ann. § 1-23-600(B) (Supp. 1994) grants jurisdiction to the Administrative Law
Judge Division to hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 50-17-1150 (Supp. 1994) provides for notice and review of a suspension by
the DNR.
3. S.C. Code Ann. § 50-17-1160 (Supp. 1994) provides the procedure for the appeal of a
suspension under the Administrative Procedures Act.
4. S.C. Code Ann. § 50-17-1180 (Supp. 1994) provides that the DNR shall print and distribute a
brochure explaining the point system for violations of coastal fisheries laws.
5. Respondent requested a hearing pursuant to S.C. Code Ann. § 50-17-1110, et seq. (Supp.
1994) for review of the administrative suspension of his coastal fisheries privileges under the point
system whereby Respondent was assessed eighteen (18) points for the violation, as specified
pursuant to S.C. Code Ann. § 50-17-1120(A)(10) (Supp. 1994).
6. Considering Respondent's age, illiteracy and the DNR's failure to provide information of the
statutory change in the coastal fisheries laws to him, good cause was shown to allow the review
of, and a hearing on, the suspension of Respondent's license.
7. The DNR correctly assessed eighteen (18) points against Respondent's license for tampering
with a commercial device in violation of S.C. Code Ann. § 50-5-90 (Supp. 1994). A conviction
under this section directly corresponds to the point assessment found in S.C. Code Ann. §
50-17-1120(A)(10) (Supp. 1994).
8. S.C. Code Ann. § 50-17-1140 (Supp. 1994) provides that the DNR shall suspend coastal
fisheries privileges for the period of one year upon the accumulation of eighteen (18) points, such
suspension to begin on the eleventh day after receipt of written notice by mail, return receipt
requested, of the suspension, and ends the same day the following year.
9.The suspension of Respondent's coastal fisheries license by the DNR is required upon
accumulation of the statutory maximum of eighteen (18) points, and Respondent's license is
thereby subject to suspension for the period of one (1) year, commencing on the eleventh day
after receipt of written notice by mail of the suspension.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the South Carolina Department of Natural Resources assess eighteen (18) points
against Respondent's coastal fisheries privileges and license and,
IT IS FURTHER ORDERED that the South Carolina Department of Natural Resources suspend
Respondent Harold H. Washington's coastal fisheries privileges and license for the period of one
(1) year.
AND IT IS SO ORDERED.
_______________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
June 1, 1995
_______________
Fn.1. It would appear from a fair reading of S.C. Code Ann. § 50-17-1180 (Supp. 1994) that the
legislative intent of this section is that all holders of coastal fisheries licenses are to be notified of
the new point system and the penalties that could be incurred from its violation. Brochures
explaining this new coastal fisheries point system were not mailed or distributed to all individuals
who held coastal fisheries licenses.
STATE OF SOUTH CAROLINA
ADMINISTRATIVE LAW JUDGE DIVISION
Docket No.: 95-ALJ-13-0049-CC
South Carolina Department of Natural Resources,
Petitioner,
vs.
Harold H. Washington,
Respondent.
ORDER
This matter is before me pursuant to SCRCP 52(b) upon Petitioner's Motion to Amend the
Decision and Order of this Court, dated March 16, 1995, reinstating Respondent's coastal
fisheries privileges and license with a six (6) point assessment. A motion hearing was held on
May 9, 1995 at the Administrative Law Judge Division Hearing Room, Columbia, South Carolina.
For the following reasons, Petitioners motion is granted and the Decision and Order dated March
16, 1995 is amended as follows:
in comparing the violation statute with the points statute
After careful consideration and review of counsels' arguments, the previous Decision and
Order is amended to reinstate the suspension of Respondent's coastal fisheries privileges
based on an eighteen (18) point assessment.
_______________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
May 31, 1995
M E M O R A N D U M
TO: Judge Kittrell
FROM:Gail Jabber
RE:DNR v. Williams
DATE:2/27/95
Mr. Washington was charged with and convicted of violating § 50-5-90, which makes it "unlawful
to remove, steal, intentionally damage or interfere with any fishing equipment or device belonging
to another or to remove the catch of any fish, crustaceans or shellfish contained therein without
the permission of the owner." The 18 point penalty under § 50-17-1120(11) covers "stealing
catch or fishing equipment or damaging or interfering with fishing equipment." It appears that the
two provisions go hand in hand, however if the focus is placed on the offense charged as opposed
to the statutory provision, then the more applicable penalty would fall under § 50-17-1120(11)
because the offense, "tampering with commercial fishing device" is arguably "in an illegal manner
not mentioned specifically in this section." Subsection (17) makes no mention of stealing,
damaging, or interfering. The only means of equating the tampering with interfering is by
reference to the legal definition, which is not a "specific" mention of tampering.
I see this as the only avenue to afford Mr. Washington an opportunity to avoid the 18 point
penalty, because the subsection he was sanctioned with clearly applies to the section that he was
convicted of violating. I don't know how heavily a criminal conviction should weigh under these
circumstances, but no other evidence was presented at the contested case hearing to establish that
he stole, damaged or interfered with fishing equipment. The language in the arrest warrant
explicitly states that Mr. Washington pulled the crab pots and stole the crabs therein with no
intention to return them to the rightful owner, which appears to fall under subsection (11) for
imposition of the penalty. However, the description of the offense speaks in terms of tampering
with commercial fishing device, which by itself suggests that subsection (17) would apply because
there is no mention of "tampering" in § 50-17-1120.
It is my opinion that since "tampering" with commercial device is not specifically mentioned
anywhere in § 50-17-1120, subsection (17), rather than subsection (11), should apply, which
would cost Respondent 6 rather than 18 points, and would allow him to continue to engage in
coastal fishery activities.
Note: I'm curious to know how, if at all, the grace period raised by Respondent would effect the
outcome. Ms. Malphrus made mention of a grace period from 7/94 to 10/94, and Mr.
Washington was cited in 10/94.
STATE OF SOUTH CAROLINA
ADMINISTRATIVE LAW JUDGE DIVISION
Docket No.: 95-ALJ-13-0049-CC
South Carolina Department of Natural Resources,
Petitioner,
vs.
Harold H. Washington,
Respondent.
ORDER
This matter as originally captioned, S.C. Department of Natural Resources, Petitioner, vs. Harold
H. Washington, Respondent, henceforth will be captioned as set forth above.
AND IT IS SO ORDERED.
_______________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
March ____, 1995
STATE OF SOUTH CAROLINA
ADMINISTRATIVE LAW JUDGE DIVISION
DRAFT DRAFT DRAFT
Docket No.: 94-ALJ-11-0274-AP
Harold H. Washington,
Petitioner,
vs.
S. C. Department of Natural Resources,
Respondent.
DECISION AND ORDER
Appearances: For the Petitioner: Paul League, Esquire
Lt. Sumter Moore
For the Respondent: Deborah A. Malphrus, Esquire
This matter comes before me pursuant to S.C. Code Ann. § 50-17-1110 (Supp. 1993) and S.C.
Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1993) upon a request for review of a
suspension of coastal fisheries privileges of Harold H. Washington by the South Carolina
Department of Natural Resources ("DNR"). After notice to the parties, a hearing was held on
February 17, 1995 at the Administrative Law Judge Division Hearing Room, Columbia, South
Carolina.
Based upon the testimony and evidence presented, Petitioner's privileges are reinstated with the
assessment of a six (6) point penalty.
EXHIBITS
The following exhibits were made a part of the record:
- Copy of S.C. DNR Arrest Report and Trial Summons #552945;
- S.C. DNR Coastal Fisheries Violation Point System;
- Saltwater Fisheries Cross Reference Guide, Revised 1994-1995;
- Official Order of Suspension;
- Affidavit of Petitioner, Harold H. Washington;
- Commercial Fisheries' copy of the Arrest Report and Trial Summons; and
- Petitioner's payment schedule from the Beaufort Magistrate's Court.
SUMMARY OF THE EVIDENCE
Respondent testified he is 62 years old and lives in Jasper County. He stated he has been a
fisherman since 1984 and has never received a ticket from the DNR. He reads a little bit but has
less than a third grade education.
Respondent also testified that when he received a notice from the Department of Natural
Resources, he was not able to read it, so he took it to Captain Garbade. He further testified that
he went to visit Captain Garbade a second time who informed him that he may need to see a
lawyer for advice.
Sgt. Walters, as employee of the Respondent who administers the points violation system.,
testified that Petitioner was found guilty of tampering with a commercial device under S.C. Code
Ann. § 50-5-90 (Supp. 1993).
Lt. Sumter Moore testified that brochures explaining the point system were not mailed to all who
held a crabbing license.
Captain Garbade testified that he is the Resident State Wildlife Officer in charge of Beaufort
County. He was not present at Petitioner's trial in magistrates court and has no direct knowledge
of the facts of that trial. He further testified that he received a copy of the arrest warrant and
Petitioner was charged with possession of someone else's crab traps. He also stated that he didn't
know of the violation until Petitioner came to his office. He further testified that Petitioner told
him that he did not take the pots, but had them in his possession. Captain Garbade further
testified that he advised Petitioner that he could not fish, based on the letter of suspension he had
received. He further testified that he never delivered brochures to individuals, but did deliver
some to some places of business.
Petitioner again testified stating that he had a trial before a magistrate and was found guilty of
tampering with a commercial device. He did not have an attorney represent him before the
magistrate.
FINDINGS OF FACT
Based upon the testimony, the credibility of the witnesses and the evidence presented, I make the
following Findings of Fact:
1. This Division has personal and subject matter jurisdiction.
2. On October 26, 1994, at approximately 10:00 a.m., Petitioner was cited for violation of S.C.
Code Ann. § 50-5-90 (Supp. 1993), for tampering with a commercial device.
3. On November 29, 1994, Petioner was found guilty of the tampering with a commercial device
and fined a monetary fine of $295.25.
4. DNR assessed 18 points against the coastal fisheries license of Petitioner under S.C. Code Ann.
§ 50-17-1120(11) (Supp. 1993), now appearing at § 50-17-1120(10) (1994 S.C. Acts 387), for
"stealing catch or fishing equipment or damaging or interfering with fishing equipment." No
evidence was presented at the tearing or contained in the record to show that Petitioner stole
catch or fishing equipment, or damaged or interfered with fishing equipment.
5. Petitioner was cited for and found guilty of tampering with a commercial device, which is not
specifically mentioned in Title 50 pertaining to coastal fisheries privileges.
6. The appropriate point assessment for tampering with a commercial device under S.C. Code
Ann. § 50-17-1120(16) (1994 S.C. Acts 387) is six (6) points, as no specific point assessment is
listed for this specific violation.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. S.C. Code Ann. § 1-23-600(B) (Supp. 1993) grants jurisdiction to the Administrative Law
Judge Division to hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 50-17-1150 (Supp. 1993) provides for notice and review of a suspension by
the DNR.
3. S.C. Code Ann. § 50-17-1160 (Supp. 1993) provides the procedure for appeal of suspension.
4. Petitioner requested a hearing for review of the administrative suspension of his coastal
fisheries privileges under the point system pursuant to S.C. Code Ann. § 50-17-1110, etseq.
(Supp. 1993) whereby Petitioner was assessed eighteen (18) points for the violation, as specified
pursuant to S.C. Code Ann. § 50-17-1120(11) (Supp. 1993).
5. DNR shall suspend coastal fisheries privileges for the period of one year upon the accumulation
of eighteen (18) points pursuant to S.C. Code Ann. §§ 50-17-1140 (Supp. 1993)
6. In this instance, the points were improperly assessed and the privileges were improperly
suspended. S.C. Code Ann. § 50-17-1120(17) (Supp. 1993) provide a six (6) point assessment
for "fishing or taking, attempting to take or possessing fish, shellfish, crustaceans, or other
seafood products in an illegal manner not mentioned specifically in this section[.]" (emphasis
added). S.C. Code § 50-17-1120(16) (1994 S.C. Acts 387), also provides a six (6) point
assessment for "violations of a section of Title 50 pertaining to coastal fisheries privileges not
mentioned specifically in this section[.]" (emphasis added). Tampering with a commercial
device is not specifically mentioned.
8. I conclude that the appropriate point assessment for tampering with a commercial device is six
(6) points, pursuant to S.C. Code § 50-17-1120(16) (1994 S.C. Acts 387), as this violation is not
specifically mentioned in the sanctions enumerated in Title 50. This violation, therefore, falls
under the provision for acts not specifically mentioned.
9. I further conclude that the suspension of Petitioner's coastal fisheries license by the Department
of Natural Resources is not required where the total points is less than the statutory maximum of
eighteen.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that Petitioner's coastal fisheries privileges be reinstated with a six (6) point violation
assessed against his license.
AND IT IS SO ORDERED.
_______________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
March ____, 1995 |
