SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This is a contested case proceeding conducted pursuant to the provisions of S.C. Code Ann. § 13-7-85(C) (Supp. 1999) and S.C. Code Ann. § 1-23-310 et seq. (1986 & Supp. 1999). Respondent South Carolina Department of Health and Environmental Control ("Department") seeks a $11,250 civil penalty against Petitioner for various violations of the Atomic Energy and Radiation Control Act and 25A S.C. Code Ann. Regs. 61-106 (Supp. 1999), which regulates tanning facilities. Petitioner James W. Salley, d/b/a Endless Summer Tanning, timely requested a contested case hearing on the Department's determination.

After notice to the parties, the undersigned conducted a contested case hearing on July 10, 2001, at the offices of the Administrative Law Judge Division ("Division") in Columbia, South Carolina. Based on the relevant and probative evidence and applicable law, I find and conclude that Petitioner violated Consent Order #RT CO-99-02 and Regulation 61-106. As a penalty, Petitioner is ordered to pay a total of $11,250 to the Department. Any motions or issues raised in the proceedings, but not addressed in this Order are deemed denied pursuant to ALJD Rule 29(C).

FINDINGS OF FACT

• Notice of the date, time, place and nature of the hearing was timely given to all the

parties.

2. Petitioner operates a tanning facility known as Endless Summer Tanning ("Endless Summer") located at 518 College Avenue, Suite 120, Clemson, South Carolina.

3. Endless Summer is registered with the Department by registration number 39-

2660 and is duly licensed and subject to the regulatory authority of the Department for the operation of a tanning facility.

1999 CONSENT ORDER

4. In September 1999, the parties entered into a Consent Order ("1999 Consent

Order"). Pursuant to the 1999 Consent Order, Petitioner agreed to the following conditions:

• Petitioner shall claim and respond to the Department's

certified correspondence in a timely manner.

• Petitioner shall respond to the Department or notify the

Department in a timely manner as required or requested.

• Petitioner shall comply with all applicable Sections of

Regulation 61-106.

• Petitioner shall submit a detailed description of completed

corrective action taken for all violations from the Department's inspection of February 3, 1999, within ten days of receipt of the Consent Order.

• Petitioner shall pay the 1999-2000 tanning equipment fees

within ten days of receipt of the Consent Order and shall pay them with a certified check, cashier's check or money order. The fees paid shall total $50.00 for each operable tanning device. All tanning equipment that is not operable shall be removed from the premises.

• Petitioner shall submit a list of the status of all tanning

equipment within ten days of receipt of the Consent Order.

6. Petitioner failed to submit a list of the status of all tanning equipment within ten days of receiving the 1999 Consent Order.

7. Petitioner failed to submit a detailed description of completed corrective action taken for all violations from the Department's inspection of February 3, 1999 within ten days of receiving the 1999 Consent Order.

8. Petitioner owes the Department $250 for 1998 registration fees and $750 for 2000 registration fees.

2000 INSPECTION

9. On March 31, 2000, Department personnel from the Bureau of Radiological

Health conducted a routine scheduled inspection of Petitioner's facility. The tanning equipment, records of the facility, client cards, timer testing, users' manuals, operating practices, and the sanitation of various items were inspected.

10. Pursuant to the inspection, the Department cited Petitioner with the

following violations:

• Failure to follow operating procedures (noted as a repeat violation);

• Failure to complete the medical history on the client card (noted as a

repeat violation);

• Failure to maintain a record of each consumer's durations of tanning exposures;

• Failure to have a parent or legal guardian sign the consumer warning

statement for a minor;

• Failure to inspect and verify the clients' eyewear prior to using the tanning

equipment;

• Failure to properly sanitize the protective eyewear;

• Failure to properly sanitize the tanning equipment;
• Room 8: Defective lamps and defective canopy shocks;
• Room 11: Label missing.
• Room 12: Defective lamps and label not legible; and
• Room 14: Defective lamps.

11. At the conclusion of the inspection, the Department's staff advised Petitioner that he would have 20 days to respond to the Department with a plan to correct the violations and 60 days to come into compliance with the regulations. The Department's staff also left a copy of the inspection report and an inspection response form at the facility.

12. Petitioner failed to respond to the citations within 20 days of the March 31 inspection.

2000 ADMINISTRATIVE ORDER

13. On October 13, 2000, the Department issued Administrative Order # RT-A0-05-00 ("2000 Administrative Order") finding Petitioner violated S.C. Code Ann. § 13-7-180 and Regulation 61-106 and imposing $11,250 in penalties. The 2000 Administrative Order addressed the items in the 1999 Consent Order and the results of the March 31, 2000 inspection of Endless Summer. ⁽¹⁾

14. The 2000 Administrative Order alleged that Petitioner failed to

comply with the 1999 Consent Order in that it:

• Failed to respond to the Department or notify the Department in a timely

manner as required.

• Failed to submit a detailed description of completed corrective action

taken for all violations from the Department's Inspection of February 3, 1999 within ten days of receiving the Consent Order.

• Failed to submit a list of the status of all tanning equipment within ten

days of receiving the Consent Order.

15. The 2000 Administrative Order also alleged that Endless Summer failed to respond to the March 31, 2000 inspection.

16. The 2000 Administrative Order concluded that Petitioner violated S.C. Code Ann. § 13-7-180 in failing to comply with a Consent Order. The Administrative Order also concluded that Petitioner violated Regulation 61-106 in (1) failing to notify the Department within 20 days of a violation citation regarding correction action or planned corrective action; (2) failing to correct cited violations within 60 days; (3) failing to follow its approved operating procedures; (4) failing to instruct consumers in proper utilization of protective eyewear; (5) failing to meet consumer warning requirements; (6) failing to complete the medical history on client cards; and (7) failing to have a signed consent form for minors.

17. The 2000 Administrative Order required, among other things, that Petitioner pay a penalty of $11,250.

18. Petitioner concedes that he failed to complete medical histories on clients' cards (but not as a repeat violation) and that he failed to have a parent or legal guardian sign a client card for a minor.

19. The evidence presented indicates that Petitioner adopted the Department's guidelines for tanning facility operating procedures. However, no evidence was introduced to establish the contents of the Department's operating procedure guidelines.

CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:

1. The Administrative Law Judge Division has subject matter jurisdiction of this case pursuant to S.C. Code Ann. § 13-7-85(C) (Supp. 1999) and S.C. Code Ann. § 1-23-310 et seq. (1986 & Supp. 1999).

2. The Department, as the proponent of an order seeking sanctions against a private party, has the burden of proof in this case. ALJD Rule 29(B); see also 2 Am. Jur. 2d Administrative Law § 360 (1994) (The burden of proof is on the party asserting the affirmative in an adjudicatory administrative proceeding.); Peabody Coal Co. v. Ralston, 578 N.E.2d 751 (Ind. Ct. App. 1991); David E. Shipley, South Carolina Administrative Law 5-79, -80 (1989).

3. The standard of proof in administrative proceedings is a preponderance of the evidence, absent an allegation of fraud or a statute or court rule requiring a higher standard. Anonymous v. State Bd. of Med. Exam'rs, 329 S.C. 371, 496 S.E.2d 17 (1998).

4. The preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in the mind the belief that what is sought to be proved is more likely true than not true. Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955).

5. The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best position to judge the witness's demeanor and veracity and evaluate their testimony. See, e.g., McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982).

6. The Atomic Energy and Radiation Control Act, specifically S.C. Code Ann. § 13-7-40(F) (Supp. 1999), authorizes the Department to promulgate regulations relating to the control of radiation and the qualifications of operators applying radiation to humans, and to provide by regulation for the registration of tanning equipment.

7. Regulation 61-106, entitled "Tanning Facilities," provides for "the registration and regulation of facilities, equipment and persons installing and/or servicing equipment which employs ultraviolet and other lamps for the purpose of tanning the skin of the human body through the application of ultraviolet radiation." 25A S.C. Code Ann. Regs. 61-106.1.1.1 (Supp. 1999).

8. The Department is authorized to assess fines and civil penalties relating to violations of the provisions of the Atomic Energy and Radiation Control Act or any regulation or final determination of the Department. S.C. Code Ann. § 13-7-85(A) (Supp. 1999); 25A S.C. Code Ann. Regs. 61-106.1.7.3 (Supp. 1999).

9. The seriousness of violations is categorized by the following severity levels: (1) Severity Level I -- violations that are most significant and have a direct negative impact on occupational or public health and safety; (2) Severity Level II -- violations that are of more than minor significance, but if left uncorrected, could lead to more serious circumstances; and (3) Severity Level III -- violations that are of minor safety significance. 25A S.C. Code Ann. Regs. 61-106.1.13.3 (Supp. 1999).

10. A civil penalty ranging from $5,000 to $25,000 per violation is authorized for conditions characterized as "Severity I." 25A S.C. Code Ann Regs. 61-106.1.13.5 (Supp. 1999).

11. A civil penalty ranging from $1,000 to $5,000 per violation is authorized for conditions characterized as "Severity II." 25A S.C. Code Ann. Regs. 61-106.1.13.5 (Supp. 1999).

12. A civil penalty not exceeding $1,000 per violation is authorized for conditions characterized as "Severity III." 25A S.C. Code Ann. Regs. 61-106.1.13.5 (Supp. 1999).

13. Petitioner violated 25A S.C. Code Ann. Regs. 61-106.3.6.3 (Supp. 1999) by failing to instruct consumers in the proper use of protective eyewear. The plain language of this regulation applies to eyewear provided by the registrant as well as eyewear provided by the consumer. This violation is classified under Severity level II and carries a fine ranging from $1,000 to $5,000. 25A S.C. Code Ann. Regs. 61-106.1.13.5 (Supp. 1999).

14. Petitioner violated 25A S.C. Code Ann. Regs. 61-106.4.2.4 (Supp. 1999) by failing to complete the medical history on client cards, thereby preventing Petitioner from adequately warning clients as to potential photosensitizing agents. ⁽²⁾ This is a repeat violation, as Petitioner admitted a prior violation of this provision in the 1999 Consent Order. Failure to meet consumer warning requirements is classified under Severity level I and carries a fine ranging from $5,000 to $25,000. 25A S.C. Code Ann. Regs. 61-106.1.13.5 (Supp. 1999).

15. Petitioner violated 25A S.C. Code Ann. Regs. 61-106.1.7.1 (Supp. 1999) by failing to advise the Department, within twenty days of its March 31 citations, of action taken or planned to correct violations. This is a repeat violation, as Petitioner admitted a prior violation of this provision in the 1999 Consent Order. This violation is classified under Severity level III and carries a fine of not more than $1,000. 25A S.C. Code Ann. Regs. 61-106.1.13.5 (Supp. 1999).

16. Petitioner violated 25A S.C. Code Ann. Regs. 61-106.1.7.2 (Supp. 1999) by failing to correct cited violations within 60 days. During the March 31, 2000 inspection, the Department's staff found that the following violation cited in the February 3, 1999 inspection had not been corrected: failure to ensure customers complete a medical history. However, the Department has not inspected the facility since the March 31, 2000 citations were imposed. Therefore, there is insufficient evidence to support the Department's allegation that this is a repeat violation. ⁽³⁾ Failure to correct cited violations within 60 days is classified under Severity Level II and carries a fine ranging from $1,000 to $5,000. 25A S.C. Code Ann. Regs. 61-106.1.13.5 (Supp. 1999).

17. Petitioner violated 25A S.C. Code Ann. Regs. 61-106.4.5 (Supp. 1999) by failing to have a signed consent form for a minor. This violation is classified under Severity level II and carries a fine ranging from $1,000 to $5,000. 25A S.C. Code Ann. Regs. 61-106.1.13.5 (Supp. 1999).

18. The evidence of Petitioner's alleged failure to follow operating procedures is insufficient. The Department did not introduce a copy of its operating procedure guidelines into evidence. Further, this tribunal is unable to take official notice of the contents of such guidelines, as they do not carry sufficient notoriety to make it proper to assume their existence without proof. See 2 Am. Jur. 2d Administrative Law § 351 ("An administrative agency has the power to take "official" notice of facts, in the same manner as a court may take judicial notice. A basic prerequisite for the use of official evidence is that the information noticed must be appropriate for official notice."); Eadie v. H.A. Sack Co., 322 S.C. 164, 470 S.E.2d 397 (Ct. App. 1996) ("A trial court may take judicial notice of a fact only if sufficient notoriety attaches to the fact involved as to make it proper to assume its existence without proof. . . . A fact is not subject to judicial notice unless the fact is either of such common knowledge that it is accepted by the general public without qualification or contention, or its accuracy may be ascertained by reference to readily available sources of indisputable reliability.").

19. The other alleged violations cited in the March 31, 2000 inspection were neither addressed in the Conclusions of Law of the 2000 Administrative Order nor assigned a penalty. Therefore, those alleged violations are not before this tribunal in this contested case proceeding.

20. Petitioner violated S.C. Code Ann. § 13-7-85(C) (Supp. 1999) by failing to comply with the 1999 Consent Order, in that he (1) failed to respond to the Department or notify the Department in a timely manner as required; (2) failed to submit a detailed description of completed corrective action taken for all violations from the Department's inspection of February

3, 1999 within ten days of receiving the Consent Order; and (3) failed to submit a list of the status of all tanning equipment within ten days of receiving the Consent Order. ⁽⁴⁾

21. Pursuant to 25A S.C. Code Ann. Regs. 61-106.1.13.2 (Supp. 1999), the assessment of civil penalties must be based on the following criteria: the seriousness of the violations; previous compliance history; the amount necessary to deter future violations; efforts to correct the violations; and any other mitigating or enhancing factors. Further, the failure to implement previous corrective action for prior similar problems may result in an increase in the civil penalty. 25A S.C. Code Ann. Regs. 61-106.1.13.4.3 (Supp. 1999)

22. Acting as the fact finder, it is the prerogative of the administrative law judge "to impose the appropriate penalty based on the facts presented." Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 211 S.E.2d 633, 634 (1991).

23. In light of the evidence of the seriousness of the violations, Petitioner's previous history of non-compliance, Petitioner's recalcitrance, and the necessity to deter future violations, I conclude that the following penalties are appropriate under Regulation 61-106 (Supp. 1999):

$1,000 for repeatedly failing to notify the Department within 20 days of a violation citation regarding corrective action or planned corrective action;

$1,000 for failing to correct cited violations within 60 days;

$2,000 for failing to instruct consumers in proper utilization of protective eyewear;

$6,250 for repeatedly failing to complete the medical history on client cards; and

$1,000 for failure to have a signed consent form for minors.

24. The terms of the 1999 Consent Order require that, for Petitioner's violation of the Order, a $5,000 penalty be payable within 30 days of notification by the Department.

25. Any motions or issues raised in the proceedings, but not addressed in this Order are deemed denied pursuant to ALJD Rule 29(C).

ORDER

IT IS THEREFORE ORDERED that Petitioner pay a civil penalty to the Department in the amount of $11,250 for violations of 25A S.C. Code Ann. Regs. 61-106 (Supp. 1999) within 30 days of the date of this Order.

IT IS FURTHER ORDERED that Petitioner shall take all necessary action to comply with the remaining terms of the 2000 Administrative Order within 10 days of the date of this Order.

IT IS FURTHER ORDERED that Petitioner shall correct all outstanding violations and pay any overdue tanning registration fees within 10 days of the date of this Order.

AND IT IS SO ORDERED.

C. DUKES SCOTT

Administrative Law Judge

October 17, 2001

Columbia, South Carolina

1. The 2000 Administrative Order states that the inspection was made on March 3, 2000; however, the parties agreed at the hearing that the order contained a typographical error, and the date of the inspection was actually March 31, 2000.

2. For Petitioner's failure to complete the medical history on client cards, the Department charged Petitioner with two separate violations of Regulation 61-106.4.2.4: failure to complete the medical history on client cards and failure to meet consumer warning requirements. I conclude that Petitioner's failure to complete the medical history on client cards constitutes one violation of Regulation 61-106.4.2.4.

3. Regulation 61-106.1.7.2 was amended effective May 26, 2000 to add the following language: "The respondent shall notify the Department in writing of all action taken to correct all violations." However, this version of the regulation was not yet in effect during the March 31, 2000 inspection.

4. The 2000 Administrative Order states that Petitioner violated § 13-7-180. However, a review of this statute indicates that it is not a part of the Atomic Energy and Radiation Control Act, and thus, it does not apply to tanning facilities. Rather, § 13-7-180 is a part of the South Carolina Radioactive Waste Transportation and Disposal Act.