ORDERS:
FINAL DECISION
STATEMENT OF THE CASE
This matter came before me upon request for a contested case hearing by Sun Hut Spas, owned
by Steve V. Feltman (collectively referred to as "Respondent") pursuant to S.C. Code Ann. §
1-23-600 (Supp. 1995) and S.C. Code Ann. § 13-7-40(K) (Supp. 1995), contesting the staff
decision of the South Carolina Department of Health and Environmental Control ("Department")
finding that Respondent has violated numerous provisions of S.C. Code Regs. 61-106 (Supp.
1995). A contested case hearing was held at the Administrative Law Judge Division ("Division")
offices in Columbia, South Carolina, on September 17, 1996.
After a thorough review of the evidence and consideration of the testimony presented at the
hearing, it is concluded that Respondent violated a number of sections of Regs. 61-106 as
hereinafter enumerated. As a result, I find that a civil penalty of $8,000.00 is appropriate to be
assessed against Respondent for these violations.
At the outset, it should be noted that the case caption has been changed to reflect that the
Department is the Petitioner in this matter. The Department is designated as Petitioner and bore
the burden of proof at the hearing because this is a contested case conducted as a de novo
proceeding. The Department, through its administrative order, asserts that Respondent has
violated the Atomic Energy and Radiation Control Act. The Respondent simply requested a
contested case hearing pursuant to S.C. Code Ann. §1-23-320(a) (Supp. 1995), which requires
that all parties be afforded an opportunity for a hearing.
Basic administrative law principles establish that an agency bears the burden of proof in an
enforcement action. See 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). Because the Department
is seeking enforcement of its order charging a violation of the Atomic Energy and Radiation
Control Act, this is an enforcement action requiring that the Department bear the burden of proof
in establishing that Respondent committed the alleged violation.
ISSUE
Is Respondent in violation of any provision of Regs. 61-106? If so, what is the appropriate
penalty?
FINDINGS OF FACT
Based upon the evidence presented, I make the following findings of fact, taking into
consideration the burden of the parties to establish their respective cases by a preponderance of
the evidence and taking into account the credibility of the witnesses:
1. This Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place and nature of the hearing was timely given to the parties.
3. Sun Hut Spas is a business owned and operated by Steve V. Feltman as a sole proprietorship.
It is located at 103 Concord Road, Anderson, Anderson County, South Carolina.
4. Respondent is a dealer for spas and hot tubs. Also, Respondent special orders approximately
8-10 tanning beds yearly for customers. After delivery to the business, they are delivered by
Respondent to the customers homes. Since the fall of 1993, Respondent has owned two two
tanning beds which he rents to customers. They were located in two separate rooms in the rear of
the business.
5. Neither Sun Hut Spas, Mr. Feltman, nor any of Respondent's employees ever registered the
tanning facility ("facility") nor the tanning beds with the Department. Further, no fees were paid
to the Department for registering as a tanning facility or for the tanning bed equipment.
6. On October 21, 1993, a form for registering the facility and the equipment was mailed to
Respondent. Respondent denied receipt of the form.
7. On February 2, 1994, Respondent was contacted via telephone by the Department concerning
Respondent's failure to register the facility and the tanning equipment. As a result of the
conversation, the Department sent another packet of registration materials and applications to
Respondent. On May 4, 1994, a Department employee called the facility to talk with Mr. Feltman
but he was not present at the time the call was made. Although Respondent was asked to return
the call, he did not.
8. On May 11, 1994, J. Paul Coker, a Department inspector, visited Respondent's facility and
conducted a visual inspection of the tanning bed rooms and the tanning beds. He filled out a
Department "Tanning Facility General Information Form" and a "Tanning Equipment Survey
Form" for each of the separate tanning bed rooms and the equipment therein. He spoke with Mr.
Feltman and provided him with a copy of each of the completed inspection forms. The forms
indicated the violations found by Mr. Coker. See Department Exhibit # 7. An application for
registration of the facility and the equipment with the Department was left with Respondent;
further, it was indicated on the inspection form that the application "must be returned with 10
days with a $50 application fee...." Respondent failed to fill out the form and mail it to the
Department.
9. On July 22, 1994, a Notice of Enforcement Conference was mailed by certified mail to
Respondent. See Department Exhibit # 5. Respondent signed for the envelope but failed to
appear at the conference.
10. On August 24, 1994, an Administrative Order signed by the Department's Commissioner was
sent by certified mail to Respondent who acknowledged receipt of same on September 9, 1995.
The order imposed a $10,000.00 civil penalty on Respondent and required Respondent to cease
use of the tanning equipment until the facility was registered, all corrective action was completed,
and such was verified by an inspection of the Department. See Department Exhibit # 4.
Numerous violations of the regulations were outlined in the order.
11. In response to the Administrative Order, Respondent mailed a letter to the Department's
contact person listed in the cover letter attached to the order. See Department Exhibit 2. In the
letter, received by the Department on September 28, 1994, Respondent informed the Department
that the tanning system had been closed since mid-June and would not be used until it became
certified and the paper work was completed. After receipt of the letter, the Department rescinded
its order.
12. On December 21, 1994 and April 28, 1995, a Department employee contacted Respondent
via telephone. The employee inquired about obtaining tanning sessions at Respondent's business
and was quoted prices for tanning packages.
13. On May 2, 1995, a Department employee and inspector, Ms. Julie Mann, visited
Respondent's business and conducted an inspection. She filled out the same Tanning Facility
General Information Form and Tanning Equipment Survey Forms which Mr. Coker had filled out
in 1994. Violations were again noted and a copy of the forms were provided to Respondent
prior to Ms. Mann's departure. See Department Exhibit #3. Again, a packet containing an
application for registration was provided to Respondent for completion and mailing to the
Department. Respondent did not fill it out nor deliver such to the Department.
13. Respondent sold the two tanning beds it had on the premises in 1994 and subsequently
purchased two newer models. The newer beds were in the two tanning rooms when Respondent
was inspected by Ms. Mann in 1995. Subsequent to this inspection, Respondent sold these two
beds and the two rooms where the beds were located are presently empty.
14. The Department issued another Administrative Order dated June 22, 1996 which was mailed
to Respondent. It listed twenty-seven specific violations under the "Conclusions of Law"
provisions and under the order provision imposed a civil penalty of $10,000.00 against
Respondent.
15. Although Respondent was requested to notify the Department after each inspection of any
actions which were taken or any that would be taken to correct the violations listed on the
reports, Respondent failed to do so. Further, Respondent has failed to correct some of the
violations listed on the reports.
16. Respondent has never instituted any formal training for its employees on the usage and rental
of the tanning bed equipment. However, Respondent does have informal policies with regard to
the cleanliness of the tanning beds and utilized sanitized towels for their cleaning; also, customers
were visually observed prior to their entrance into the tanning rooms. Further, the timer
controlling the minutes the tanning bed was operational was set by an employee.
17. No medical or skin history documentation of tanning bed customers was maintained by
Respondent.
18. Respondent had informal operating procedures for rental and usage by customers of the
tanning beds; however, they were not reduced to writing.
19. The tanning bed contracts with customers were on a monthly basis and provided for 3 to 4
visits per week.
20. Respondent did not test the timers and emergency off switch for accuracy or operability.
However, the emergency off switch functioned and the timers were accurate during tests
conducted by Department inspectors.
21. Respondent never required customers to sign warning statements about potential radiation,
never warned customers who had a history of skin problems or were especially sensitive to
sunlight to see a physician, nor warned customers about potential photosensitizing agents.
22. Respondent did not keep adequate or complete records of the dates customers visited the
facility, the number of visits by customers, nor the durations of their tanning exposures. Some
customers were allowed by Respondent to exceed the manufacturer's recommended spacing of
visits.
23. "Danger" warning signs were posted at each room during the first inspection by Department
inspectors but not the second.
24. Recommended lamps or their equivalent were installed in the tanning beds when the
inspection was conducted by Ms. Mann.
25. No minor consent forms were maintained by Respondent. However, there is no evidence that
any minors were customers of Respondent nor used the tanning beds.
26. Protective eyewear furnished by Respondent to customers were without straps when Ms.
Mann made her inspection. However, the eyewear was in optimal condition on each of the two
inspection dates.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact and the applicable law, I conclude as a matter of law
the following:
1. S.C. Code Ann. § 1-23-600(B) (Supp. 1995) authorizes the South Carolina Administrative
Law Judge Division to hear contested cases, as defined in S.C. Code Ann. § 1-23-310, involving
the departments of the executive branch of government in which a single hearing officer is
authorized or permitted by law or regulation to hear and decide such cases.
2. The Department is delineated as a "department" within the executive branch of state
government in the state of South of South Carolina. S.C. Code Ann. § 1-30-10(A)(Supp. 1995).
3. A "contested case" is defined as a "proceeding, including but not restricted to rate making,
price fixing, and licensing, in which the legal rights, duties or privileges of a party are required by
law to be determined by an agency after an opportunity for hearing." S.C. Code Ann. §
1-23-310(2) (Supp. 1995).
4. "Party" is defined as a "person or agency named or admitted as a party, or properly seeking and
entitled as of right to be admitted as a party." S.C. Code Ann. § 1-23-310 (4) (Supp. 1995).
5. Prior to the passage of the Restructuring Act (Act 181) in 1993 and the creation of the Division
(effective February 1, 1994), contested case proceedings in which the Department was a " party"
were governed by procedural rules promulgated by the Department. See S.C. Code Reg. 61-72
(Supp. 1995).
6. S.C. Code Ann. § 1-23-650 (Supp. 1995) provides that rules governing practice and procedure
before the Division shall be approved by the Division; however, they must be consistent with the
rules of procedure governing civil actions in Court of Common Pleas. It further provides that the
rules shall be subject to review by the legislature as are rules of procedure promulgated by the
Supreme Court under Article V of the Constitution. Pursuant thereto, the Division has adopted
its own rules of procedure which govern all contested case proceedings heard by its
Administrative Law Judges.
7. S.C. Code Ann. § 1-23-350 (1986) requires that a final decision in a contested case shall be in
writing and shall include findings of fact and conclusions of law.
8. The decision of an Administrative Law Judge who conducts and hears a contested case is a
"final decision" as defined in the Administrative Procedures Act. See S.C. Code Ann. § 1-23-610
(Supp. 1995).
9. S.C. Code Ann. § 13-7-40(K) (Supp. 1995) provides an opportunity for a hearing to determine
compliance with regulations of the Department governing tanning facilities. See also S.C. Code
Regs. 61-106.1.7.3. These provisions provide that a party may request a hearing where all the
facts surrounding the controversy may be presented and a final decision on the record will be
made by the Administrative Law Judge assigned to the case.
10. The Department bears the burden of proof in an action to enforce the provisions of Atomic
Energy and Radiation Control Act. See Peaboby Coal Co. v. Ralston, 578 N.E.2d 751
(Ind.Ct.App. 1991); David E. Shipley, South Carolina Administrative Law 5-79, -80 (1989).
11. S.C. Code Regs. 61-106 (Supp. 1995), entitled "Tanning Facilities," consists of a number of
regulations providing "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."
12. S.C. Code Regs. 61-106.1.7.4 provides that a civil penalty not to exceed Twenty-five
Thousand Dollars ($25,000.00) may be imposed on a person who violates a provision of the
Atomic Energy and Radiation Control Act, the regulations, or any order.
13. The assessment of civil penalties are to be based on the following criteria:
a. the seriousness of the violation(s);
b. previous compliance history;
c. the amount necessary to deter future violations;
d. efforts to correct the violation; and
e. any other mitigating or enhancing factors.
See S.C. Code Regs. 61-106.1.13.2.
14. The seriousness of violations are categorized by one of the following severity levels:
a. Level I--a violation that is most significant and has a direct negative impact on
occupational and /or public health and safety.
b. Level II--a violation that is of more than minor significance , but if left uncorrected,
could lead to more serious circumstances.
c. Level III--a violation that is of minor safety significance.
Specific violations applicable to each severity level are set forth in the regulations. See S.C. Code
Regs. 61-106.1.13.5 et. seq.
15. Civil penalties shall be issued in accordance with the following schedule:
a. Severity Level I--from $5,000.00 to $25,000.00 per violation.
b. Severity Level II--from $1,000.00 to $5,000.00 per violation.
c. Severity Level III--not more than $1,000.00 per violation.
See S.C. Code Regs. 61-106.1.13.5.
16. Respondent violated various regulations enumerated as follows:
a. Regs. 61-106.2.3.3 for operating a tanning facility without first obtaining a certificate of
registration from the Department, and Regs. 61-106.2.2.2 for failing to apply for a
registration for the facility.
b. Regs. 61-106.1.11 for failing to pay the $50.00 non-refundable application fee for
registration of the facility, and the $50.00 fee for each piece of tanning equipment.
c. Regs. 61-106.1.7.1 and 61-106.1.7.2 for its failure to notify the Department within
twenty days of any corrective actions taken in response to the written violations of two
inspections or any that were planned, and for failing to correct the violations within sixty
days of the inspections.
d. Regs. 61-106.6.2 for engaging in the business of furnishing or offering to furnish tanning
equipment servicing or services, or for engaging in the business of installing or offering to
install tanning equipment without first applying for registration to provide or furnish such.
e. Regs. 61-106.5.5 for failure to require its tanning bed operators to successfully complete
formal training courses approved by the Department.
f. Regs. 61-106.2.2.4, 61-106.4.2, 61-106.4.3 and 61-106.4.5 for failure to keep proper
records or documentation, i.e. a statement signed by each customer documenting the proof
of the following:
(1) that an operator had warned customers to consult a physician if he/she had a
history of skin problems or was especially sensitive to sunlight.
(2) that an operator had warned customers of overexposure to ultraviolet radiation and the
need to wear protective eyewear.
(3) that each customer was warned by an operator to the best of his ability as to the
potential photosensitizing agents and making a determination whether any customer was
using any of the agents.
(4) that these warnings were read to illiterate or visually impaired persons.
(5) a record of each customer's total number of tanning visits and dates and durations of
tanning exposures.
(6) failing to possess a list of the common photosensitizing agents which are provided to
registrants by the Department.
(7) failure to keep a list of minor consent forms.
g. Regs. 61-106.2.2.4(8) in failing to provide tanning bed operators with procedures
required to be followed to ensure the safe use of the equipment, including use of protective
eyewear, suitability of customers for tanning equipment use, determination of duration of
tanning exposures, spacing of sequential exposures , periodic testing of equipment and
timers, and handling complaints of customers injuries, etc....
h. Regs. 61-106.3.4.9 in failing to perform tests, documented in writing quarterly, ensuring
the timer was accurate within 10% of the time set and the emergency off switch was
operational.
i. Regs. 61-106.4.2.4 for failing to warn each customer about potential photosensitizing
agents and for failing to determine if a customer was using any of these agents, and for
failing to possess a list of these agents.
j. Regs. 61-106.4.3.2 in failing to maintain a record of each customer's total number of
tanning visits and dates and durations of the tan.
17. Pursuant to Regs. 61-106.1.13.5, repeated provisions of tanning equipment services without
being registered with the Department, repeated failure to correct violations within sixty days,
repeated failure to maintain required records, repeated failure to conduct required testing, failure
to ensure that the tanning equipment is only operated by adequately trained personnel, and the
failure to adequately train operators, are all Level I infractions.
18. Pursuant to Regs.61-106.1.13.5, the failure to register prior to providing or offering to
provide tanning equipment services, the failure to correct violations listed on an inspection report
present at the time of a subsequent inspection, and a failure to maintain required records, are
Level II infractions.
19. The impetus for the passage of Act 223 in 1967, the Atomic Energy and Radiation Control
Act, is described in legislative findings. The findings provide that the State must provide "the
means , which do not now exist, for discharging proper functions of State Government with full
consideration of the health and safety requirements of its people." Our legislature recognized the
remarkable scientific developments that had and were occurring in the fields of atomic energy and
related sciences, noted that they created broad opportunities for both the Federal Government and
private industry, and placed responsibilities on states since such would influence the welfare of its
peoples. Pursuant to § 13-7-40, the Department was designated as the agency of the State
responsible for the control and regulation of radiation sources and was directed to develop and
conduct programs for the evaluation of hazards associated with the use of radiation sources and
to formulate, adopt, promulgate, and repeal regulations relating to the control of ionizing and
non-ionizing radiation. Further, the Department was given other responsibilities under the Act,
including the responsibility to provide by regulation for the licensing or registration of radiation
sources or devices or equipment utilizing these sources, which regulations must provide for
amendment, suspension, or revocation of a license.
20. A review of these violations reveals that Respondent failed to apply for the necessary
registrations and to pay the required fees. Also, Respondent did not comply with the inspection
reports which detailed the violations. Further, Respondent failed to maintain proper
documentation of customers and failed to provide proper warnings to customers. Although these
violations of regulatory and statutory law may seem minor to Respondent, the laws passed and
promulgated by the State of South Carolina ensure that the hazards of radiation and the exposure
to such in tanning bed facilities are explained to citizens. Respondent offered no excuse for its
failure to register and comply with the warnings, notice, and record keeping requirements.
21. The Respondent was given opportunities on at least three or four occasions by personal
delivery or by mail, to fill out applications and to provide other information necessary to complete
the request for certificates of registration. The evidence is overwhelming that Respondent failed
to submit an application and failed to remit the required fees. At each of the two inspection visits
with Department personnel, copies of the inspection reports which noted violations and
applications were handed to Respondent. Subsequent to the first inspection, and the noticed
violation conference which Respondent failed to attend, the Department issued an administrative
order levying a civil penalty and ordering Respondent to cease operations until it had corrected
the violations, filed applications, and come into compliance with provisions of the Act and the
regulations. After receiving the order, Respondent wrote the Department stating it had closed
down the tanning beds and would not use them until they became certified and the paperwork was
completed. Acting upon the belief Respondent was acting in good faith and would make the
corrections and file the applications, the Department withdrew the administrative order.
Respondent failed to stop using the tanning beds as stated. Subsequently, after Respondent
failed to return phone messages left by the Department, a second inspection was conducted by a
Department inspector. That inspection report listing violations was also ignored by Respondent.
The Department correctly concluded that the Respondent's tanning bed operation should be shut
down and a civil penalty should be assessed.
22. It is a generally recognized principle of administrative law that the fact finder has the
authority to impose an administrative penalty after the parties have had an opportunity to have a
hearing and be heard on the issues. See Ohio Real Estate Comm'n v. Aqua Sun Investments, 655
N.E.2d 266 (Ohio A.. 2 Dist. 1995); Shadow Lake of Noel, Inc. v. Supervisor of Liquor Control,
893 S.W.2d 835 (Mo. App. S. D. 1995); Matter of Henry Youth Hockey Ass'n, 511 N.W.2d 452
(Minn. App. 1994); Vermont Agency of Natural Resources v. Duranleau, 617 A.2d 143 (Vt.
1992); City of Louisville v. Milligan, 798 S.W.2d 454 (Ky. 1990); Com., Dept. Of Transp. v.
Slipp, 550 A.2d 838 (Pa. Cmwlth . 1988); Dept. Of Transp. v. Miller, 528 A.2d 1030 (P. Cmwlth.
1987); State Police v. Cantina Gloria's, 639 A.2d 14 (Pa. 1994).
Prior to governmental restructuring, a commission sitting in its adjudicatory capacity imposed
penalties for violations of statutory provisions its agency administered. In its capacity as the
fact-finder, pursuant to Reg. 61-72, the Department, through its Commissioner or the Board,
would assign a contested case to a designated Hearing Officer to conduct an adjudicatory hearing.
The procedures set out in the regulation delineated rules for discovery, motions, the conducting
of the hearing, and required the Hearing Officer to render a written report to the Board containing
findings of fact, conclusions of law, a discussion section if appropriate, and a recommendation for
a decision. The Board would then review the report upon request by either party or upon its own
motion. If no review was conducted, the report became the final decision in the case. Upon
review, the Board could make its own findings of fact and conclusions of law. See S.C. Code
Regs. 61-72, §805. After passage of the Restructuring Act, the final decision of the
Administrative Law Judge is now the final decision in the contested case. As the Board now
hears appeals of the contested case decisions of the Division, and because the review of an
administrative law judge's decision must be confined to the record, the Board can no longer make
its own findings of fact and conclusions of law. See S.C. Code Ann. §1-23-610(A) and (D)
(Supp. 1995).
Also prior to restructuring, a board or commission sitting in its adjudicatory capacity imposed
penalties for violations of statutory provisions its agency administered. Acting as the fact-finder,
it was the commission's prerogative "to impose the appropriate penalty based on the facts
presented." Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633, 634 (1991).
It is uncontroverted that the Department exercised that authority. However, the Administrative
Law Judge, as the current fact-finder, must also impose a penalty based on the facts presented at
the contested case hearing. As parties are entitled to present evidence on all issues arising out of
the contested agency action, it follows that the tribunal responsible for conducting the contested
case proceedings as mandated by the legislature must have the authority to decide the issues and
make the final decisions.
23. Based upon the evidence in this case, it is clear that Respondent is in violation of numerous
provisions of Regs. 61-106, as enumerated above, which are both of Severity Level I, II, and III.
A civil penalty of Eight Thousand ($8,000.00) Dollars is appropriate considering the intentional
failure of Respondent to file the applications and to correct the violations. Failure to conform to
them could cause injuries to the eyes and burns to the person of Respondent's customers.
Accordingly, due to the seriousness of the violations, the lack of compliance of Respondent over a
two year period, and a complete failure to correct the violations, I conclude that a monetary
penalty of this amount is necessary to deter future violations.
ORDER
Based upon the above Findings of Fact and Conclusions, it is hereby:
ORDERED that Respondent is assessed a civil penalty in the amount of Eight Thousand
($8,000.00) Dollars which shall be paid within sixty days of this order, and
IT IS FURTHER ORDERED that Respondent shall prepare the appropriate applications and
pay the appropriate fees to the Department, obtaining the necessary certificates of registration,
prior to the rental of and the usage of the tanning bed(s) by customers and the public.
AND IT IS SO ORDERED.
__________________________________________
MARVIN F. KITTRELL
Chief Judge
Columbia, South Carolina
October 2, 1996 |
