ORDERS:
ORDER
This matter is before the Court for a contested case hearing. On June 30, 1997, the S.C.
Department of Health and Environmental Control ("Petitioner" or "Department")(1) issued an
Administrative Order signed by the Department's Commissioner that contained a detailed list of
allegations and complaints against each of the four Ultra Tan, Inc., ("Respondent") locations. The
Administrative Order also listed six specific violations under the "Department Investigation"
provision and imposed a civil penalty of Ten Thousand Dollars ($10,000.00). The Respondent
challenges the factual findings, conclusions and assessment of a civil penalty by the Department
pursuant to the Department's Administrative Order issued on June 30, 1997. The Division has
jurisdiction over this matter pursuant to S.C. Code Ann. § 1-23-600 (Supp. 1997).
The Department presented evidence that the Respondent had violated provisions of the
Atomic Energy and Radiation Control Act and S.C. Code Regs. 61-106 (Supp. 1997). At the
conclusion of the presentation of the Department's evidence, the Respondent moved for an
involuntary nonsuit upon the grounds that the Department failed to show a right to relief under the
facts presented and the law. In a non-jury civil case, Rule 41(b), SCRCP provides that the
Respondent may move at the close of the petitioner's case for involuntary nonsuit or dismissal. This
motion may be granted by the trier of fact on the ground that the Petitioner has not shown a right to
relief under the facts and the law.
Ultra Tan, Inc., is a business owned by James P. Mastronardi and Joe H. Norwood. It
consists of four facilities registered for the operation of commercial tanning equipment. They are:
(1) Registration #23-0326, 2100 Poinsett Highway, Greenville, S.C.; (2) Registration #23-1790,
3715 East North Street, Greenville, S.C.; (3) Registration # 23-1999, 10 Garlington Road,
Greenville, S.C.; and (4) Registration #42-2857, 2500 Winchester Place, Suite 110, Spartanburg,
S.C.
Throughout the first day of this hearing and well into the second day of the hearing the
Petitioner asserted that the procedure the Department followed in this case was pursuant to
Regulation 61-106 § 1.8.1. In other words, the Department presented its case citing the Respondent
was notified pursuant to 1.8.1.1. However, the Respondent contended that a certified letter is
required before seeking a penalty for failure to comply with the Department's notification letter.
Under Regulation 61-106 §1.8.2, "[i]n cases where the registrant fails to comply with the conditions
of the notification letter sent, a certified letter will be sent ordering compliance and advising
appropriate persons that unless corrective action is initiated within ten days, the Department will
seek appropriate penalties and direct remedial relief."
With the exception of the Spartanburg facility, no certified letter was sent to the Respondent
ordering compliance and advising the Respondent of a potential penalty. Only the Spartanburg
facility receive a certified letter ordering compliance and advising the Respondent of a potential
penalty under Regulation 1.8.3. Therefore, the Spartanburg facility is the only facility against which
a sanction could be levied under Regulation 1.8.3. Since the Department offered no evidence of the
violation cited in the Administrative Order at the Spartanburg facility, I granted the Respondent's
Motion to Involuntarily Dismiss this case.
However, well toward the end of presenting its case, the Petitioner raised the issue that the
Administrative Order was issued pursuant to S.C. Code Regs. 61-106 § 1.8.1.3. Regulation 1.8.1.3
provides that "[u]nder an actual or potential condition posing a risk to any individual comparable
to a Severity Category I violation, [the Department may] issue an administrative order." Thus, the
Petitioner now contends that sanctions for all of the violations listed in the Administrative Order are
proper under the authority of the Department to issue sanctions because there existed "an actual or
potential condition posing a risk to any individual comparable to a Severity Category I violation .
. . ."
After reviewing the evidence presented, I have decided not to issue an involuntary dismissal
in this case. I previously ruled that the evidence concerning the violations at the facilities other than
the Spartanburg facility was admissible only as evidence of similar transactions. See Brewer v.
Morris, 269 S.C. 607, 239 S.E.2d 318 (1977); JKT Company v. Hardwick, 274 S.C. 413, 265 S.E.2d
510 (1980). That determination is modified. Therefore,
IT IS ORDERED that all of the evidence presented shall be weighed as to whether the
Department has established a violation by the Petitioner sufficient to invoke the procedures of S.C.
Code Regs. 61-106 § 1.8.1.3. However, I uphold the involuntary dismissal of the Department's case
invoking penalties in accordance with Regulation 1.8.1.1.
AND IT IS SO ORDERED.
________________________
Ralph King Anderson, III
Administrative Law Judge
Columbia, South Carolina
June 15, 1998
1. The Department bears the burden of proof in an action to enforce the provisions of the Atomic Energy and
Radiation Control Act. 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). Therefore, at the hearing, the Department was designated as the
Petitioner, since the Department has the burden of proof at the hearing in this contested case proceeding. |
