South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDNR vs. James V. Wells

AGENCY:
South Carolina Department of Natural Resources

PARTIES:
Petitioners:
South Carolina Department of Natural Resources

Respondents:
James V. Wells
 
DOCKET NUMBER:
99-ALJ-13-0582-CC

APPEARANCES:
For the Petitioner, Ester F. Haymond, Esq.

For the Respondent, No appearance
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before me upon a request to review the suspension of coastal fisheries privileges of James V. Wells. A hearing was held before the Administrative Law Judge Division on February 15, 2000.



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 James V. Wells for possession of untagged shellfish in violation of S. C. Code Ann. § 44-1-150 (1976) and S.C. Code Ann. Regs. 61-47 (C)(2) (Supp. 1998) on February 11, 1999. The Respondent was thereafter convicted of that offense on February 25, 1999.

3. A citation was issued to James V. Wells for possession of undersized clams on May 3, 1999 in violation of S. C. Code Ann. § 50-17-366 (Supp. 1998). The Respondent was thereafter convicted of that offense on May 25, 1999.

4. A citation was issued to James V. Wells for possession of undersized flounder on June 8, 1999 in violation of S. C. Code Ann. § 50-17-510 (D)(1) (Supp. 1998). That same day, the Respondent was also cited for operating a trawling vessel without a captain's license in violation of S. C. Code Ann. § 50-17-110 (Supp. 1998). The Respondent was convicted of both of those offenses on June 27, 1999.

5. The Department of Natural Resources (DNR) assessed ten (10) points against the Respondent's license for possession of untagged shellfish; six (6) points against the Respondent's license for undersized clams; six (6) points against the Respondent's license for possession of undersized flounder; and six (6) points against the Respondent's license for operating a trawling vessel without a captain's license. See S. C. Code Ann. § 50-17-1120 (A)(1), (6) and (8) (Supp. 1998).

6. These four offenses resulted in an accumulation of twenty-eight (28) points within one (1) calendar year. No points were deducted because all of the points were accumulated within one calendar year.

7. Based upon the points being assessed, DNR issued an official Order of Suspension to the Respondent dated August 19, 1999. That Order was personally served upon the Respondent on October 24, 1999.

8. I find that the twenty-eight (28) points were properly assessed and DNR properly suspended the Respondent's coastal fisheries privileges.



CONCLUSIONS OF LAW

Based upon the Findings of Fact, I conclude the following as a matter of law:

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. 1998) and S. C. Code Ann. § 50-17-1160 (Supp. 1998).

2. S. C. Code Ann. § 50-17-1130 (Supp. 1998) provides that upon conviction of a violation set forth in S. C. Code Ann. § 50-17-1130 (Supp. 1998), DNR shall assess points against the holder's coastal fisheries 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 coastal fisheries privileges of each person who has eighteen (18) or more points. S. C. Code Ann. § 50-17-1140 (Supp. 1998).

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 coastal fisheries privileges of James V. Wells are suspended for a period of one (1) 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.





______________________________

Ralph King Anderson, III

Administrative Law Judge





February 17, 2000

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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