SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division (Division) pursuant to a Petition for Injunctive Relief filed by the South Carolina State Athletic Commission (Commission). The Commission seeks to enforce a Cease and Desist Order it served upon the Respondent on May 14, 2002. The Commission further requests the Division to impose a fine of $10,000.00 against the Respondent for his failure to comply with the above Order to Cease and Desist. A hearing was held before me on October 8, 2002, at the offices of the Division in Columbia, South Carolina.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of proof upon the parties, I make the following Findings of Fact by a preponderance of the evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner and the Respondent.

2. James Gwinn (Gwinn) is the owner and operator of the World Wrestling Council which is located in Greenville County, South Carolina. Gwinn was formerly licensed as a wrestling promoter pursuant to 23A S.C. Code Ann. Regs. 20-24.9 (1) (Supp. 2001). However, Gwinn does not currently hold a promoter's license.

3. The Respondent operates a training school at the World Wrestling Council building for individuals who seek to become wrestlers. On May 14, 2002, August 6, 2002 and September 7, 2002, the Respondent held wrestling exhibitions performed by his students at his business. The events had many of the "trappings" of actual wrestling events that are regulated by the Commission. ⁽¹⁾ The wrestlers paraded into the arena before the events and attempted to "hype" the audience. The students wrestled in a "wrestling ring" surrounded by ropes and supervised by a referee. The wrestling occurred in designated rounds and a winner was declared at the end of the contest. Furthermore, the performance by the Respondent's students was observed by an audience that was asked to give $10.00 donations to observe the students. The Respondent also sold concession items at the exhibition. Moreover, a sign on the exterior of the location stated "WWC Rocks the World Every Saturday Night at 8:00 p.m." ⁽²⁾

Nevertheless, the above events must also be observed in light of what is indeed the state of professional wrestling in the United States. As the evidence established, though wrestling is performed by athletes, it is not a typical sporting event. The competition is choreographed and the outcome is predetermined. It is in this context that the Respondent's school exists. His school teaches the art of performing choreographed wrestling in a manner that entertains the audience and appears authentic. He uses the wrestling matches that occurred on the above dates in an effort to train his students in that "art." Moreover, the Respondent's students are not paid for their performance but rather pay the Respondent for their instruction.

4. On May 14, 2002, the Commission served a Cease and Desist Order on the Respondent, requiring him to stop violating 23A S.C. Code Ann. Regs. 20-4.7 and 4.8 (Supp. 2001) at his location until he obtained a license.

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

1. The Commission seeks to enforce the Cease and Desist Order it served upon Respondent Gwinn. S.C. Code Ann. Section 40-1-100 (A) (2001) provides that:

When the [Commission] has reason to believe that a person is violating or intends to violate a provision of this article or a regulation promulgated under this article, in addition to all other remedies, it may order the person immediately to cease and desist from engaging in the conduct. If the person is practicing a profession or occupation without being licensed under this article, is violating a [Commission] order, a provision of this article, or a regulation promulgated under this article, the [Commission] also may apply, in accordance with the rules of the Administrative Law Judge Division, to an administrative law judge for a temporary restraining order.

Additionally, S.C. Code Ann § 40-1-210 (2001) provides that:

The department . . . may institute a civil action through the Administrative Law Judge Division, in the name of the State, for injunctive relief against a person violating this article, a regulation promulgated under this article, or an order of the board. For each violation the administrative law judge may impose a fine of no more than ten thousand dollars.

Therefore, the Division is charged with the responsibility to determine this matter.

2. The Commission contends that the Respondent violated S.C. Code Ann. §52-7-70 (1992). Section 52-7-70 sets forth that "[n]o wrestling event may be held by any person unless the person has a current license issued as required in § 52-7-40 and has complied with the regulations for obtaining a permit issued by the commission." The Commission argues that the Respondent violated that section because neither he nor his participants held a license pursuant to Section 52-7-40 (1992) and he also failed to obtain an event permit for the exhibitions on the above dates. See also 23A S.C. Code Ann. Regs 20-24.9 (1) (Supp. 2001) (Every promoter must have a current license to conduct, hold or give wrestling matches or exhibitions and must secure a permit from the Commission before conducting any match or exhibition.).

However, S.C. Code Ann. § 52-7-30 (Supp. 2001) sets forth the parameters of the Commission's authority to regulate wrestling in South Carolina. That Section provides, in part, that:

The commission has direction, management, control, and supervision over all combative sports in this State including, but not limited to, boxing, wrestling, and sparring events, exhibitions, contests, and performances whether in person or via closed circuit television in this State. The commission shall promulgate regulations as necessary for the protection of the health and safety of participants and to carry out the provisions of this article. Schools or organizations that fall under the auspices of the United States Olympic Committee, events sponsored by USA Boxing - South Carolina Association, Inc., and businesses that offer instruction in the combative sports are exempt from the provisions of this article.

(Emphasis added.) Therefore, as long as the Respondent operates as a school, he is exempt from regulation by the Commission. On the other hand, the Commission argues that the above exhibitions at the Respondent's school were wrestling "events."

The Commission's Regulations define an "event" as "anything that is regulated by the State Athletic Commission regardless of the place of origin." 23A S.C. Code Ann. Regs. 20-1.1 (Supp. 2001). The agents for the Commission further defined an "event" as a public match with professional wrestlers at which there is a referee, a bell signaling rounds, an announcer, and an admission fee. ⁽³⁾ The Commission contends that the performances on the above dates were wrestling events because they were held publicly in a ring with a referee and a bell. Additionally, the Commission contends that the donation request is an admission fee.

"School" is defined, in part, as "an establishment offering specialized instruction." Merriam-Webster OnLine (2002), available at http://www.m-w.com/. Nothing in the statute or regulation sets forth that the public cannot observe training by the students. However, when the actions of the Respondent cease to offer instruction to the students and become entertainment for the public, the Respondent is no longer operating a school. Therefore, though the exhibitions may occur at the Respondent's school, if the exhibitions are not for the purpose of instruction, the exhibitions are nonetheless a wrestling "event."

Here, the evidence establishes that the Respondent was operating a school. The "events" the Commissions seeks to enjoin are related to the training at that school for which the participants receive no remuneration. Furthermore, as explained above, since the training to be a professional wrestler involves not only training regarding the athletic moves of wrestling but also "acting" to entertain the audience, it is conceivable that feedback from an audience would assist in training the students. Moreover, this proposition is also supported by the statutes and regulations. A "combative sport" is defined in S.C. Code Ann. § 52-7-35 (Supp. 2001) as "contests in which the participants are disposed to fight before an audience on a platform, a pad, or in an area surrounded by ropes or other markings." However, "[a]ll professional wrestling performances are exhibitions and entertainment, and are not contests." 23A S.C. Code Ann. Regs. 20-24.1 (Supp. 2001) Therefore, the laws establishing the Commission and the regulations promulgated under the authority of the Commission seek to regulate the health and safety of wrestling participants providing the entertainment at wrestling events.

The donations that the Respondent seeks to collect when individuals enter the location to observe the performance of the students and the sign on the exterior of the building present the appearance of an entertainment "event" that would be regulated by the Commission. Furthermore, the exhibitions held by the Respondent appeared to be held for the training of the students but also provided entertainment to the audience. Consequently, I enjoin the Respondent from conducting any further exhibitions at his school if there are any advertisements upon the premises or any other means promoting the exhibitions at his school as entertainment. The Respondent should also clearly set forth to all attendees at the student exhibitions that their presence is solely for the training of the students. Finally, the Respondent cannot collect an admission fee from the attendees of the exhibition and if any donations are collected from the attendees, they must be completely voluntary and unrelated to the exhibition.

3. The Cease and Desist Order served upon the Respondent cited the Respondent for violating 23A S.C. Code Ann. Regs. 20-4.7 and 4.8 (Supp. 2001). However, those Regulations are not applicable to wrestling events or exhibitions but rather set forth a promoter's responsibilities for a boxing match or boxing exhibition. Therefore, since the Respondent was not properly notified of the provisions he allegedly violated until the Petition for Injunctive Relief was filed, I do not find that any penalty for his failure to comply with the Cease and Desist Order is appropriate.

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the Respondent is enjoined from conducting any further exhibitions at his school if there are any advertisements upon the premises or any other means promoting the exhibitions at his school as entertainment.

IT IS FURTHER ORDERED that the Respondent must clearly set forth to all attendees of the student exhibitions that the attendees presence is solely for the training of the students.

IT IS FURTHER ORDERED that the Respondent cannot collect an admission fee from the attendees of an exhibition at his school and if any donations are collected from the attendees it must be completely voluntary and unrelated to the exhibition.

AND IT IS SO ORDERED.

_________________________________

Ralph King Anderson, III

Administrative Law Judge

February 6, 2003

Columbia, South Carolina

1. The Petition for enforcement of the Cease and Desist Order sets forth that the Respondent held wrestling "events" on May 14, 2002, September 3, 2002 and September 9, 2002. However, there was no evidence offered concerning violations on September 3, 2002 or September 9, 2002.

2. The Respondent testified that the sign is left over from when he held professional events in the building. I find his testimony to be credible. Nevertheless, the sign is misleading under the circumstances of this case.

3. However, that definition is not supported by the statutes or regulations.