ORDERS:
FINAL ORDER AND DECISION
The Department of Natural Resources (DNR) seeks to suspend the coastal fisheries privileges and associated licenses and
permits held by Petitioner Oliver J. Bright (Bright). Bright objects to DNR's suspension of his privileges, placing jurisdiction
of this matter in the Administrative Law Judge Division pursuant to S.C. Code Ann. § 1-23-600 (Supp. 1998) and S.C. Code
Ann. §§ 1-23-310 et. seq. (Rev. 1986 & Supp. 1998). A contested case hearing was conducted on July 21, 1999 at the
Edgar Brown Building, Columbia, South Carolina. Based upon the evidence presented and the applicable law, Bright's
privileges shall be suspended for one year.
II. Issues
1. Should DNR suspend the coastal fishing privileges of Bright based on the number of points that have accumulated against
Bright's license?
2. Is Bright's challenge of his underlying convictions appropriate in this forum?
3. Is DNR estopped to assess the full amount of assigned points against Bright's license due to a misleading statement made
by its employee?
III. Analysis
A. Appropriateness of Suspension
1. Position of Parties:
DNR asserts that Bright violated S.C. Code Ann. §§ 50-17-716 and thrice violated 50-17-720 (Supp. 1998), with such
violations requiring an assessment of twenty-six (26) points against his license pursuant to S.C. Code Ann. §§ 50-17-1120(A)(4) and (A)(6) (Supp. 1998). DNR further asserts that it is required to suspend Bright's license for one year
pursuant to S.C. Code Ann. § 50-17-1140 (Supp. 1998) since more than eighteen (18) points have accumulated against his
license.
Bright admits that he is guilty of the violations, but maintains that the penalty is inappropriate. Bright asserts that DNR
should have reduced the point assessment against him and should not have suspended his license.
2. Findings of Fact:
Based on the preponderance of the evidence, the following findings of fact are entered:
On April 23, 1998, Bright was convicted in Magistrate's Court for violating S.C. Code Ann. § 50-17-716 (Supp. 1998) by
possessing an unmarked crab pot. Upon receiving notice of conviction, DNR assessed eight (8) points against Bright's
license.
Additionally, on March 25, 1999, Bright was convicted in Magistrate's Court on three (3) counts of violating S.C. Code
Ann. § 50-17-720 (Supp. 1998) by illegally possessing undersized blue crabs. Upon receiving notice of conviction, DNR
assessed eighteen (18) points against Bright's license.
On April 16, 1999, DNR mailed an "Official Order of Suspension" to Bright notifying him that his license was to be
suspended for one year. Bright received this document on or about April 19, 1999.
3. Conclusions of Law:
Based on the above findings of facts, I conclude as a matter of law, the following:
South Carolina Code Ann. § 50-27-1120 (Supp. 1998) establishes the point system to be used by DNR in assessing points
against an individual's coastal fishing privileges for violations of statutory and regulatory provisions which apply to coastal
fisheries activities. South Carolina Code Ann. § 50-17-1130 (Supp. 1998) provides that each time a licensee is convicted of
a violation enumerated in § 50-17-1120, DNR must assess against the licensee the number of points assigned to the violation
under § 50-17-1120. South Carolina Code Ann. § 50-17-1140 (Supp. 1998) provides that anyone accumulating eighteen or
more points against his or her license shall have his or her privileges suspended for one year.
In the instant case, Bright was convicted of possessing an unmarked crab pot. Section 50-17-1120(A)(4) requires an
assessment of eight (8) points against a licensee for any conviction relating to using unlawful or unauthorized fishing
methods, gear or equipment. Therefore, eight points must be assessed against Bright's license for his conviction for
possessing an unmarked crab pot.
Less than one year later, Bright was also convicted on three (3) counts of illegally possessing undersized blue crabs. Section
50-17-1120(A)(6) requires an assessment of six (6) points against a licensee for any conviction relating to violating the size
limit provisions set by law for fish, shellfish, crustaceans, or other seafood products Therefore, six points must be assessed
against Bright's license for each such conviction, resulting in eighteen (18) points against his license for the three convictions
of possessing undersized blue crabs.
Bright argues that DNR should have reduced the number of points assessed against his license since the criminal penalties
(fines) for his underlying convictions were reduced by the magistrate. However, DNR is given no discretion in the
assessment of points against a license. Section 50-17-1130 states that each time a person is convicted of a violation
enumerated in Section 50-17-1120 "the number of points assigned to a violation must be charged against him." (emphasis
added). Therefore, DNR's point assessment against Bright's license was appropriate.
Because the total points assessed against Bright's license for his convictions exceed eighteen, his license must be suspended
for one year. S.C. Code Ann. § 50-17-1140 (Supp. 1998).
B. Challenge of Underlying Convictions
Bright makes various assertions concerning the methods used by DNR to accumulate the evidence that was ultimately used
to convict him in Magistrate's Court. Bright contends that the measuring stick used by DNR to measure his crabs may not
have been accurate. Bright also contends that crabs with broken or bitten off tips should not be counted against him.
Further, Bright contends that he should be allowed to accumulate a certain amount of crabs before he is required to cull out
those that may be too small.
DNR asserts that a criminal conviction may not be the subject of a collateral attack in an administrative proceeding, and
therefore, Bright's challenge of his convictions in Magistrate's Court is inappropriate for evaluation in this forum.
Based on the preponderance of the evidence, the following findings of fact are entered:
On April 23, 1998, Bright was convicted in Magistrate's Court for possessing an unmarked crab pot. Additionally, on
March 25, 1999, Bright was convicted in Magistrate's Court on three (3) counts of illegally possessing undersized blue
crabs.
3. Conclusions of Law
Bright's criminal convictions remove any duty to re-examine the facts that must have existed in order to prove the violations.
"It is firmly established that a criminal conviction may not be the subject of a collateral attack in an administrative
proceeding." South Carolina Wildlife and Marine Resources Dep't v. Kunkle, 287 S.C. 177, 336 S.E.2d 468 (1985); South Carolina Bd. Of Dental Examiners v. Breeland, 208 S.C. 469, 38 S.E.2d 644 (1946); cf. Yeargin v. South
Carolina Dep't Highways and Pub. Transp., 313 S.C. 387, 438 S.E.2d 234 (1993) (no hearing required where conviction
on criminal charge leads to statutorily mandated revocation of driver's license).
Therefore, an evaluation of Bright's challenge to his underlying convictions is not appropriate in this forum.
C. Estoppel
Bright asserts that a DNR employee told him to remove his crab pots from the water within five (5) days of his second
conviction, without waiting for DNR's Official Order of Suspension to be issued. Bright seems to argue that he was misled
by Officer O'Quinn's statement, and therefore, he should receive retribution for his time lost crabbing in the form of a point
reduction.
2. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
On April 23, 1998, Bright was convicted in Magistrate's Court for possessing an unmarked crab pot. On March 25, 1999,
Bright was convicted in Magistrate's Court on three (3) counts of illegally possessing undersized blue crabs. Following
Bright's second conviction, the DNR employee that cited Bright for the violations, Officer O'Quinn, told Bright that he had
to remove his crab pots from the water within five days. Bright did so on or about March 30, 1999. On April 16, 1999,
DNR mailed an "Official Order of Suspension" to Bright. Bright received this document on or about April 19, 1999.
3. Conclusions of Law
Bright is correct in his assertion that the DNR employee's statement was erroneous and misleading. South Carolina Code
Ann. § 50-17-1140 provides that a one year suspension begins the eleventh day after the licensee receives written notice by
mail. Further, when the licensee requests a hearing to review the suspension, the suspension must be held in abeyance until
the day of the final disposition of the review. S.C. Code Ann. § 50-17-1150(C) (Supp. 1998). If the suspension is upheld on
review, the suspension begins the eleventh day after the final disposition of the review and ends the same day the following
year. Id.
Unfortunately, this tribunal is unable to provide a remedy to Bright for his reliance on the erroneous statement of the DNR
employee, as such a statement cannot serve to estop the State from exercising its police powers.
The State may be subject to the estoppel doctrine in certain cases. See, e.g., Townes Associates, Ltd. v. City of Greenville,
266 S.C. 81, 221 S.E.2d 773 (1976). However, that doctrine will not be applied to deprive the State of the due exercise of
its police power or to thwart its application of public policy. South Carolina Department of Social Services v. Parker, 275
S.C. 176, 268 S.E.2d 282 (1980).
A governmental body is not immune from the estoppel doctrine where its officers or agents act within the proper scope of
their authority but '[t]he public cannot be estopped . . . by the unauthorized or erroneous conduct or statements of its
officers or agents which have been relied on by a third party to his detriment.'
Service Management Inc. v. State Health & Human Services Fin. Comm'n, 298 S.C. 234, 379 S.E.2d 442 (Ct. App.
1989) (quoting South Carolina Coastal Council v. Vogel, 292 S.C. 449, 357 S.E.2d 187 (Ct. App. 1987)) (emphasis
added). In both Service Management and Vogel, the Court refused to bind the State to the erroneous conduct of its
employee. Based on the foregoing, DNR cannot be estopped to assess the full amount of assigned points against Bright's
license due to any erroneous statement made by its employee.
IV. Order
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby ordered:
DNR must suspend the coastal fisheries privileges and associated licenses and permits of Oliver J. Bright for one year, with
such suspension to commence on the eleventh day following the date of this Order pursuant to S.C. Code Ann. § 50-17-1150(C) (Supp. 1998).
AND IT IS SO ORDERED.
RAY N. STEVENS
Administrative Law Judge
Dated: September 16, 1999
Columbia, South Carolina |
