ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF CASE
This is a contested case challenging the issuance by the South Carolina Department of Health and Environmental Control (DHEC or Department) of an Administrative Order dated August 15, 1997, alleging violations of 25A S.C. Code Ann. Regs. 61-106 (Supp. 1996), "Tanning Facilities" (R. 61-106), and assessing civil penalties against Respondent. The agency decision was timely appealed by Respondent. After notice to the parties, a hearing was conducted on April 22, 1998, and May 8, 1998 at the Administrative Law Judge Division (Division).
ISSUES PRESENTED
Respondent raises several issues: (A) whether the Administrative Order was properly issued; (B) whether the allegations constitute violations of R. 61-106; and (C) whether the allegations, if true, are sufficient to justify a civil penalty in the amount of $10,000.00.
BURDEN OF PROOF
The Department, through its Administrative Order, is alleging that the Respondent violated regulations promulgated pursuant to the Atomic Energy and Radiation Control Act. Basic principles of administrative law 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); Shipley, South Carolina Administrative Law § 5-79, 5-80 (1989). Because the Department is seeking enforcement of its Administrative Order, it bears the burden of proof in establishing that the Respondent committed the alleged violation. The caption is, therefore, amended to reflect the correct allocation of the burden of proof.
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. Respondent owns, operates and is responsible for tanning facilities in Greenville (Registration numbers 23-1730) and Easley (Registration number 39-2102).
2. Respondent has registered both the Easley and Greenville facilities by submitting application forms, operating protocols, and evidence of operator training, among other required actions. Respondent received copies of R. 61-106 and "Recommended Tanning Facility Operating Procedures," and incorporated the "Recommended Tanning Facility Operating Procedures" as his own. These procedures thereby became part of Respondent's permit to operate and were never amended by the Respondent. These procedures required Respondent, inter alia, to abide by the manufacturer’s exposure schedules for each tanning bed used by the registrant in his facilities.
Respondent used three types of beds in these facilities: the Sundash 26B; the Sun Industry R-40SS; and the Sun Industry 226BF. The exposure schedules for these beds are identical with respect to the recommended duration of tanning exposures, spacing of sequential exposures, and maximum exposure time in minutes. The permitted tanning exposure for those beds were as follows:
Week 1: During the first week (treatments 1-3), the schedule provides that consumers of all skin types should only tan for 3 minutes.
Week 2: The schedule for the second week (treatments 4-6) allows consumers with type IV or V skin to tan for 10 minutes, while persons with type II or III skin are limited to 7 minutes.
Week 3: Treatments for the third week (treatment 7-10) are limited to 15 minutes per visit for consumers of all skin types.
Week 4: Treatments for the fourth week (treatments 11-15) are limited to 20 minutes per visit for consumers of all skin types.
Subsequent visits: After the fourth week (after treatment 15), exposure is limited to 20 minutes.
3. Respondent was notified by DHEC in writing on several occasions that allowing customers to exceed the manufacturer's recommended exposure schedules violated the regulations. The following events reflect a pattern of non-compliance with the regulations, particularly those regulations dealing with the exposure schedules:
(a) During an inspection on January 21, 1993, registration number 23-1730 was cited for violation of Sections 2.2.4 and 5.3.1 of the regulations allowing customers to exceed the manufacturer's recommended exposure schedule. The Department issued these findings to Respondent via U.S. mail on February 1, 1993, but received no response. The Department mailed a second letter to Respondent on May 21, 1993, explaining Respondent's need to remedy the violations and respond to DHEC’s letter. Respondent responded on June 14, 1993, to the Department stating that "ALL OPERATING PROCEDURES HAS [sic] BEEN INCORPORATED INTO THE TANNING BUSINESS OF CAROLINA TAN."
(b) During an inspection of January 11, 1994, registration number 39-2102 was cited for violation of Section 5.3.1 of the regulations for allowing its customers to exceed the recommended exposure schedule. The Department issued these findings to Respondent via U.S. mail on January 20, 1994. Respondent responded to the Department on March 15, 1994, stating that "CAROLINA TAN WILL FOLLOW THE RECOMMENDED EXPOSURE SCHEDULE."
(c) During an inspection on February 14, 1995, registration number 39-2102 was cited for violation of Section 5.3.1 of the regulations for allowing its customers to exceed the manufacturer's recommended exposure schedule. The inspector also cited Respondent for violations of sections 2.7.1, 4.3.2, and 5.2. The Department issued these findings to Respondent at the conclusion of the inspection. Respondent responded to the Department on March 6, 1995, stating that it would remedy all violations cited.
(d) As a result of a conference between the Department and Respondent held on May 18, 1995, and an inspection of May 22, 1995, Respondent was informed in writing via U.S. mail on June 6, 1995, of the requirement to adhere to the manufacturer’s recommended exposure schedule and Section 5.3.1 of the regulations. Respondent was also reminded of several other respects in which his facilities failed to meet the provisions of the regulations, including response time for correspondence, proper execution of consumer warning statements and client cards, and proper documentation of base tan information. Respondent's response, received by the Department on June 21, 1995, stated Respondent would remedy all violations at his facilities to the best of his ability and understanding.
4. On January 30, 1997, Petitioner conducted an inspection of Respondent’s facility registered as 39-2102. That inspection revealed that Respondent failed to follow established tanning procedures by allowing his customers to exceed the exposure schedule on approximately 10 occasions. Furthermore, Respondent had not incorporated any variations of the exposure schedule into his permit to operate. Those actions violated Sections 2.2.4 and 5.3.1. Respondent also made modifications to the tanning equipment without first notifying the Department in violation of 2.7.1 and failed to properly execute the consumer warning statements in violation of 4.2.1. The Department issued these findings to Respondent at the conclusion of the inspection and again via U.S. mail on March 4, 1997. Respondent responded to the Department on March 11, 1997, stating that it would remedy all violations cited, but that it would not follow the "recommendation" to document the room number visited by each customer.
5. During May 1997, Shannon Carithers conducted an undercover investigation of registration number 39-2102. Mr. Carithers is skin type III. The Respondent informed Mr. Carithers that he could have 30 tanning sessions in a one month period. Thereafter, the Respondent permitted Mr. Carithers to tan as follows:
a. 10 minutes on May 1, 1997;
b. 20 minutes on May 2, 1997;
c. 15 minutes on May 3, 1997; and
d. 20 minutes on May 4, 1997.
By permitting the above tanning, Respondent allowed Mr. Carithers the opportunity to exceed the exposure schedule both in terms of sequential spacing of visits and in terms of the manufacturer's recommended maximum allowable time per week in minutes. Therefore, Respondent failed to follow his own approved tanning procedures. These violations are the same violations for which Respondent was cited after the January 30, 1997, inspection and stated that it would correct, but failed to do so.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
General Findings
1. The Administrative Law Judge Division has subject-matter jurisdiction in this action pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1996); cf. S.C. Code Regs. 61-72 §§ 501 & 502 (Supp. 1996).
2. DHEC is authorized "as the agency of the State which is responsible for the control and regulation of radiation sources ..." to "formulate, adopt, promulgate, and repeal regulations relating to the control of ionizing and nonionizing radiation . . . ." S.C. Code Ann. §13-7-40 (A) and (F)(3) (Supp. 1996). R. 61-106 was promulgated pursuant to Section 13-7-40 to "provide 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." R.61-106.1.1.1. Therefore, Respondent's facilities are subject to registration and regulation under R.61-106.
3. S.C. Code Ann. § 13-7-40 (F)(4) (Supp. 1996) provides that the Department may "issue orders or modifications of them as may be necessary in connection with proceedings under this article." Pursuant to S.C. Code Ann. § 13-7-85 (Supp. 1996), the Department is authorized to assess civil penalties for violations of the Atomic Energy and Radiation Control Act or the regulations promulgated thereunder. R. 61-106.1.8.1.3 authorizes the Department to issue an administrative order if it determines that the violations at the facility pose a risk comparable to a Severity Category I violation. Severity I Category Level violations subject the violator to penalties of $5,000 to $25,000 per violation. Additionally, Severity II Category Level violations subject the violator to penalties of $1,000 to $5,000 per violation. See R. 61-106.1.13.5.
Motion for Involuntary Nonsuit
4. At the commencement of the hearing Respondent moved to have the case dismissed, arguing that the Administrative Order was improperly issued. Respondent contends that the procedures set forth in R. 61-106.1.8.2 are a condition precedent to issuance of an administrative order, and that unless DHEC complied with Section 1.8.2, any subsequent administrative order is ultra vires.
The Department is charged with regulating tanning facilities in South Carolina. See Atomic Energy and Radiation Control Act, S. C. Code Ann. § 13-7-10 et seq. (Supp. 1996). The Department has promulgated R. 61-106 for that purpose. These regulations provide that all persons having a tanning facility must register the facility and must operate the facility according to certain safety standards. The regulations also include mechanisms for enforcement in the event that a regulated facility violates the regulations. The enforcement provisions are found in Section 1.8.
Section 1.8.1 provides the procedures to be undertaken by the Department when a registrant violates the regulations or when a public health threat exists as follows:
1.8.1 Upon determination by the Department that the Act or these regulations have been violated or that a public health risk exists, the Department will take one or more of the following steps:
1.8.1.1 Send a letter of notification to the non-compliant facility as soon as possible after violations are noted which accomplishes the following:
1.8.1.1.1 Cites each section of the Act or regulations violated.
1.8.1.1.2 Specifies the manner in which the registrant failed to comply.
1.8.1.1.3 Requests a timely and comprehensive corrective action plan, including a time schedule for completion of the plan.
1.8.1.2 Stipulate a firm time schedule within which a corrective action plan needs to be submitted and approve the time schedule for its completion if the plan is adequate.
1.8.1.3 Under an actual or potential condition posing a risk to any individual comparable to a Severity Category I violation, issue an administrative order.
R. 61-106.1.8.1 (emphasis added). Section 1.8.2 provides that:
[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.
R. 61-106.1.8.2 (emphasis added).
Petitioner argues that a certified letter is a condition precedent to issuance of an administrative order, and that unless DHEC complied with Section 1.8.2, any subsequent administrative order is ultra vires. Therefore, he contends that since the Department failed to send him a certified letter as described in 1.8.2, this action is ultra vires.
In light of the plain language contained in the regulation, however, Petitioner's position is without merit. Section 1.8.2 applies to those situations where the registrant has been sent a notification pursuant to Section 1.8.1.1. Therefore, if the Department notifies a registrant pursuant to Section 1.8.1.1 of noncompliance and requests the registrant to implement a "corrective action plan," the Department must first send a certified letter pursuant to the requirement of Section 1.8.2 before the Department can impose any penalties or seek remedial relief. However, the Department is not required to proceed under 1.8.1.1. Section 1.8.1 provides three alternative types of enforcement actions, of which the Department may elect "one or more." R. 61-106.1.8.1. The South Carolina Supreme Court has held that the word 'or' used in a statute or regulation is a disjunctive particle that marks an alternative. Brewer v. Brewer, 242 S.C. 9, 129 S.E.2d 736, 738 (1963); see also State v. Pilot Life Insurance Company, 257 S.C. 383, 186 S.E.2d 262 (1972) (the word 'or' as used in its ordinary sense is a disjunctive article denoting an alternative).
In the present case, I find that the Department determined that the violations at the facility posed a risk comparable to a Severity Category I violation, and issued an administrative order under Section 1.8.1.3. Since Section 1.8.1.3 does not require the Department to send a notification letter, section 1.8.2 does not apply. Therefore, I find that the Department acted correctly in issuing the Administrative Order in this case and deny Petitioner's motion.
Violations of R. 61-106
5. Respondent next contends that the allegations in the Administrative Order, if true, do not constitute violations of R. 61-106. For the following reasons, I am unconvinced by this argument.
The regulatory scheme established in R. 61-106 is comprehensive, and attaches at the genesis of a tanning facility by requiring that all persons who wish to operate a tanning facility obtain a registration certificate for the facility. R. 61-106.2.2. Included as part of the registration information are the "procedures which the operator(s) will be required to follow for the safe use of tanning equipment to include: . . . determination of duration of tanning exposures, spacing of sequential exposures and maximum exposure time(s) in minutes, . . . ." R. 61-106.2.2.4(8). Registrants are free to establish their own operating procedures and submit them for approval, or may simply adopt the Department's recommended operating procedures provided to each registrant during the registration process.
In this case, Respondent adopted the Department's operating procedures for his Easley and Greenville facilities which required Respondent to abide by the manufacturer’s exposure schedules for each tanning bed. Furthermore, Respondent did not amend the operating procedures at any time. R. 61-106.5.3.1 provides that "[t]he registrant shall ensure that no operator allow any consumer to use tanning equipment greater than the determined duration of exposure, appropriate spacing of sequential exposures and maximum exposure time(s) in minutes." The Respondent repeatedly violated the procedures addressing recommended duration of tanning exposures, spacing of sequential exposures, and maximum exposure time in minutes. Moreover, the evidence demonstrates that those violations occurred over a period of years.
Imposition of the Civil Penalty
6. Section 1.7.4 authorizes the Department to levy a civil penalty against any person found to be in violation of the regulations. The civil penalty must be assessed as specified in Section 1.13. This Section provides that Severity I violations subject the violator to penalties of $5,000 to $25,000 per violation.
Respondent challenges the Department's imposition of a $10,000 civil penalty in this case. Essentially, Respondent's position is that, because no customer suffered any physical malady as a result of these violations, the fine of $10,000 is excessive. Respondent further contends that, even if the Department was entitled to issue an administrative order under R. 61-106.1.8.1.3, the regulations require the Department to give a registrant the opportunity to take voluntary corrective action prior to the imposition of any civil penalties. The Department's position is that it has the authority to impose civil penalties in an administrative order without first giving the registrant the opportunity to take corrective action; and that the penalty is within the statutory maximum, fits within the penalty schedule in the regulations describing severity levels and the associated penalties for each level, is calculated to deter future violations and to ensure future compliance, and is not excessive considering the potential for harm to customers.
First, as discussed above, R. 61-106.1.8.1.3 gives the Department the option to issue an administrative order as an alternative to either a letter of notification or the submission of a corrective action plan. The term "administrative order" is not defined within R. 61-106. However, 25 S.C. Code Ann. Regs. 61-72, Part I, § 101 (Supp. 1996) contains the following definition:
I. Order. A written document, other than a license, which embodies a final staff decision imposing sanctions or requirements. It may be, but need not be, denominated an "Order." It includes, but is not limited to, administrative orders so denominated; a staff decision to deny a license; or any decision from which appeal may be taken pursuant to other applicable law or regulation.
(Emphasis added). Since the Department is permitted by R. 61-106.1.8.1.3 to issue an administrative order in lieu of a letter of notification or a corrective action plan (both of which specifically require an opportunity for voluntary action by the registrant), and since an administrative order constitutes a "final staff decision," I conclude that the Department is not required to give the registrant an opportunity for voluntary compliance prior to issuing an administrative order which imposes civil penalties. I further conclude that R. 61-106.1.8.3, which applies "[i]n cases where voluntary action by the registrant is not forthcoming," is not pertinent when the Department elects to issue an administrative order rather than to follow one of the other alternatives provided in R. 61-106.1.8.1.
With respect to the amount of the penalty, Sections 1.13.3 and 1.13.5 of the regulation describe violations in terms of their severity, ranging from Severity I (the most severe) to Severity III (the least severe). As discussed above, the Department determined Respondent's violations amounted to Severity I violations, and acted to compel Respondent to amend his activities. This determination was based upon Respondent's repeated failure to follow the exposure schedules and operating procedures. Specifically:
a. Respondent repeatedly failed to ensure that operators exercised proper control over the tanning equipment and its use by customers, in violation of R.61-106, Section 5.3.1. This is a Severity I Category Level violation;
b. Respondent repeatedly failed to follow procedures related to exposure time in minutes and spacing of sequential visits adopted pursuant to R.61-106, Section 2.2.4(8). This constitutes a Severity I Category Level violation;
c. Respondent repeatedly failed to correct violations after receipt of notice from the Department, in violation of R.61-106, Section 1.13.5, subsection I.A.8. This is a Severity I Category Level violation;
d. Respondent changed his operating procedures without first notifying the Department of such change in writing, in violation of R.61-106, Section 2.7.1. This is a Severity II Category Level violation; and
e. Respondent failed to have customers sign consumer warning notices prior to tanning, in violation of R.61-106, Section 4.2.1. This is a Severity II Category Level violation.
7. A $10,000 penalty, while certainly not the maximum allowable, will effectively deter future violations and is not excessive considering the potential for customers to be exposed to excessive amounts of ultraviolet radiation.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:
ORDERED, that the requirements of the Administrative Order issued to Richard Redding d/b/a Carolina Tan on August 15, 1997, should be, and hereby are, affirmed. Specifically, Carolina Tan shall:
1 . Pay a Civil Penalty of $ 10,000;
2. Comply with all Sections of Regulation 61-106 entitled "Tanning Facilities;"
3. Ensure that customers are not allowed to exceed exposure times, spacing of visits, or number of visits per week as set forth by the tanning equipment manufacturer's exposure schedule; and
4. Ensure that each client's skin and medical history is completely and accurately recorded;
IT IS FURTHER ORDERED that the caption of this case is hereby amended to reflect the fact that the Department bears the burden of proof in this action.
AND IT IS SO ORDERED.
___________________________
Ralph King Anderson, III
Administrative Law Judge
April 23, 1999
Columbia, South Carolina |
