SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 13-7-85(C) (Supp. 1997) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1997) upon Petitioner's request for a contested case hearing. Respondent South Carolina Department of Health and Environmental Control (DHEC) seeks a $5,000 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. 1997), which regulates tanning facilities. Petitioner seeks dismissal of DHEC's September 17, 1997 Administrative Order charging him with these violations on the ground that DHEC failed to follow proper procedures under its own regulations prior to issuance of the Administrative Order.

After notice to all parties, a hearing was conducted on April 3, 1998. Based on the relevant and probative evidence and applicable law, I find and conclude that Petitioner's Motion to Dismiss is without merit, and it is therefore denied. I further conclude that Petitioner violated R. 61-106. As a penalty, Petitioner is ordered to pay a $5,000 fine to DHEC.

DISCUSSION

I. BACKGROUND

Petitioner owns Coop's Health and Fitness Club, which has locations in Rock Hill, South Carolina and Greenville, South Carolina. Both facilities contain a gymnasium and tanning beds. DHEC staff conducted inspections of the Rock Hill facility on March 16, 1994, May 3, 1996, and January 21, 1997. At each inspection, DHEC cited Petitioner with several violations of R. 61-106. Following each inspection, Petitioner failed to adequately notify DHEC, within twenty days, of corrective action taken or planned, as required by 25A S.C. Code Ann. Regs. 61-106.1.7.1 (Supp. 1997).

After the expiration of twenty days following each inspection, DHEC sent to Petitioner a "no response" letter by certified mail, warning Petitioner that he must comply with the applicable regulations to avoid sanctions. DHEC also sent several follow-up letters to Petitioner after each inspection, over the course of several months, in an attempt to ensure that Petitioner had taken all necessary corrective action. Following each inspection, Petitioner failed to correct the violations within sixty days, as required by 25A S.C. Code Ann. Regs. 61-106.1.7.2 (Supp. 1997).

After each inspection, as Petitioner finally satisfied DHEC that he had completed all required corrective action, DHEC sent Petitioner an "in compliance" letter, notifying Petitioner that the facility was finally in compliance with the applicable regulations. The December 9, 1996 "in compliance" letter stated

The corrective action taken by you ... has brought your facility into compliance ... provided you are the [sic] present during all operation of the tanning equipment. We will conduct periodic unannounced inspections to ensure that you are indeed present at all times. We will also be conducting an unannounced follow-up inspection to ensure all violations have been corrected.

On February 21, 1997, DHEC staff conducted an inspection of the Greenville facility and cited Petitioner with multiple violations of R. 61-106. DHEC sent a series of follow-up letters to Petitioner after the inspection, over the course of several months, in an attempt to ensure that Petitioner had taken all necessary corrective action. Following each inspection, Petitioner failed to correct the violations within sixty days, as required by R. 61-106.1.7.2. As Petitioner finally satisfied DHEC that he had completed all required corrective action, DHEC sent Petitioner an "in compliance" letter, notifying Petitioner that the facility was finally in compliance with the applicable regulations.

On June 5 and June 6, 1997, DHEC staff conducted an undercover investigation of the Rock Hill facility and found several violations of R. 61-106. Following this investigation, DHEC requested Petitioner to attend an Enforcement Conference, which was held on July 10, 1997. On

September 17, 1997, DHEC issued its Administrative Order setting forth all violations cited at both locations and assessing a $5,000 civil penalty against Petitioner.

II. MOTION TO DISMISS

Petitioner argues that DHEC has violated his due process rights by not allowing him adequate notice and opportunity to be heard following DHEC's June 5 and 6, 1997 undercover investigation. He asserts that the proper procedure under DHEC regulations was not followed, and therefore he did not have an opportunity to come into compliance with the applicable regulations before being fined. Petitioner also asserts that once DHEC issued an "in compliance" letter, he could not be cited and fined for any violations preceding that letter. In support of his position, Petitioner cites 25A S.C. Code Ann Regs. 61-106.1.8.2 (Supp. 1997), which provides:

In 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.

Petitioner argues that DHEC's penalty assessment was void under its own regulations because it did not send a certified letter to him, in accordance with this provision, prior to issuance of the Administrative Order. Petitioner's argument is based on the mistaken premise that the enforcement provisions of Section 1.8 are sequential.

The notification letter referenced in Section 1.8.2 is one of three options from which DHEC may choose to enforce the regulations governing tanning facilities. 25A S.C. Code Ann Regs. 61-106.1.8.1 (Supp. 1997) provides:

Upon determination ... that ... these regulations have been violated ..., 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:

... Cites each section of the Act or regulations violated.

... Specifies the manner in which the registrant failed to comply.

... 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.

(emphasis added).

In this case, DHEC was justified in issuing an administrative order pursuant to Section 1.8.3. DHEC found, among other violations, repeated failure to ensure that tanning equipment was operated only by adequately trained personnel, repeated failure to provide adequate protective eyewear, repeated failure to follow operating procedures and repeated failure to correct cited violations within 60 days. The nature and frequency of Petitioner's violations created conditions posing a public health and safety risk, falling within the Severity I category of violations. 25A S.C. Code Ann. Regs. 61-106.1.13.3 and -.5 (Supp. 1997)(conditions characterized as Severity I violations).

Moreover, 25A S.C. Code Ann. Regs. 61-106.1.8.3 (Supp. 1997) provides:

In cases where voluntary action by the registrant is not forthcoming, the Department will take one or a combination of the following steps:

1.8.3.1 Impound or order the impounding of sources of ultraviolet radiation ... ;

1.8.3.2 Impose an appropriate civil penalty;

1.8.3.3 Revoke registration;

1.8.3.4 Request the Department attorney or the attorney general to seek court action to enjoin violations and seek conviction for a simple misdemeanor; or

1.8.3.5 Take enforcement action that the Department feels appropriate and necessary and is authorized by law.

Because the notification letter is only one of three options under Section 1.8.1, a ten-day warning letter under Section 1.8.2 is not a prerequisite to enforcement action under Section 1.8.3.

Not only were DHEC's enforcement actions valid under its own regulations, but they also afforded Petitioner due process under the law. "The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" South Carolina Nat. Bank v. Central Carolina Livestock Market, Inc., 289 S.C. 309, 345 S.E.2d 485 (1986), quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). "Due process does not mandate any particular form of procedure." Id., citing South Carolina Ports Authority v. Kaiser, 254 S.C. 600, 176 S.E.2d 532 (1970). "Instead, due process is a flexible concept, and the requirements of due process in a particular case are dependent upon the importance of the interest involved and the circumstances under which the deprivation may occur." Id., citing Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985).

Petitioner had ample opportunity to comply with the applicable regulations following each inspection preceding the undercover investigation. DHEC's assessment of a fine against Petitioner resulted from his pattern of recurring violations and failure to take adequate corrective action, which was highlighted by the undercover investigation. While Petitioner might have initially corrected previous violations, he failed to adequately train new operators added after each inspection, when he knew or should have known that inadequate training would result in recurring violations.

Notably, Petitioner presented no evidence or witness testimony to establish that he was misled or prejudiced by the procedure followed by DHEC. Although DHEC sent to Petitioner "in compliance" letters, the December, 1996 letter placed him on notice of future inspections to verify his correction of previous violations. Further, Petitioner was the party with the best means of knowing whether he was actually in compliance with the regulations. Petitioner was on constructive notice of all published regulations governing tanning facilities, including the requirement of correcting violations within sixty days. Even if Petitioner had been given the impression by the "in compliance" letters that DHEC would attempt no further enforcement action, the only possible "detrimental reliance" on these letters would result in Petitioner's continued violations of regulations without any expectation of negative consequences. Therefore, Petitioner's claim that he had no notice of violations, and thus no opportunity to come into compliance, is devoid of merit.

I find that Petitioner had more than adequate notice of his own violations and ample opportunity to come into compliance prior to and after the undercover investigation at the Rock Hill facility. Further, Petitioner had notice of the enforcement conference and the contested case proceedings before this tribunal, and an opportunity to be heard in both settings. Therefore, Petitioner's due process rights were not violated. Petitioner's motion to dismiss the citations in DHEC's Administrative Order is denied.

FINDINGS OF FACT

By a preponderance of the evidence, I make the following findings of fact:

1. Notice of the date, time, place and subject matter of the contested case hearing was given to all parties.

2. Petitioner owns Coop's Health and Fitness Club ("Coop's"), a gymnasium facility which also features tanning beds for its customers.

3. Coop's has locations at 1201 Riverview Road in Rock Hill, South Carolina and 19 Gladys Drive in Greenville, South Carolina.

ROCK HILL FACILITY

4. On or about April 2, 1993, Petitioner submitted to DHEC an application for registration of tanning equipment at the Rock Hill location.

5. Petitioner adopted DHEC's recommended tanning facility operating procedures in his application for registration.

6. Petitioner finally submitted all necessary information for approval of equipment registration in July, 1994, and Petitioner's application for registration of the Rock Hill facility, Registration # 46-2009, was approved by DHEC on August 5, 1994.

7. On March 16, 1994, prior to approval of Petitioner's equipment registration, DHEC staff inspected the Rock Hill facility. DHEC staff interviewed Coop's employee Tracy Every, reviewed the client cards and examined the tanning equipment.

8. As a result of the March 16, 1994 inspection, DHEC staff cited Coop's with several violations of R. 61-106, including the following: failure to follow operating procedures, failure to report an additional tanning bed, failure to test and document testing of timers and off switches, failure to have straps on eyewear when required, failure to have consumer statements signed, failure to have a photosensitizing agents list present, failure to have means to prevent customers from resetting the timers, failure to comply with operator control requirements by allowing customers to exceed the spacing of visits, and by failing to document a base tan when customers were allowed to exceed exposure times, failure to document on-the-job training, and failure to have a users' manual.

9. At the conclusion of the March 16, 1994 inspection, DHEC staff advised Coop's employees that Coop's would have twenty days to respond to DHEC with a plan to correct the violations and sixty days to come into compliance with the regulations. This information was also contained in the inspection report, of copy of which DHEC staff left at the facility.

10. On April 6, 1994, Petitioner submitted a written response to DHEC, but it did not adequately address all the violations cited in the March, 1994 inspection report.

11. Petitioner did not correct the March 16, 1994 violations within sixty days.

12. On June 10, 1994, DHEC sent a certified letter to Petitioner requesting him to contact DHEC staff within ten days to advise of corrective action taken. In the letter DHEC also stated, "You must

comply with State Radiological Health Rules and Regulations to avoid sanctions being imposed by this Department."

13. On July 29, 1994, after additional correspondence and telephone contact over the course of several weeks, Petitioner satisfied DHEC that he completed corrections of the March 16, 1994 violations.

14. On August 3, 1994, DHEC sent a letter to Petitioner advising him that his corrective actions had brought the Rock Hill facility into compliance with applicable regulations.

15. On May 3, 1996, DHEC Environmental Health Manager Alison Hall ("Hall") performed a follow-up inspection of the Rock Hill facility. Hall introduced herself, interviewed Coop's employees Tracy Every and Bo Bowers, examined the tanning equipment, reviewed client records and completed necessary paperwork.

16. As a result of the May 3, 1996 inspection, Hall cited Coop's with several violations of

R. 61-106, including the following: failure to follow operating procedures (recurring violation) by allowing customers to exceed allowable exposure times, failure to test and document testing of timers and off switches (recurring violation), failure to have straps on eyewear when required (recurring violation), failure to document on-the-job training (recurring violation), failure to have a trained operator present at all times, failure to report changes in operators, and failure to have operators formally trained.

17. At the conclusion of the May 3, 1996 inspection, Hall left at the facility copies of the inspection report, a Consumer Injury report, DHEC's recommended equipment operating procedures, a formal training list and on-the-job training forms.

18. Petitioner failed to respond to the citations within twenty days of the May 3, 1996 inspection.

19. Petitioner did not correct the May 3, 1996 violations within sixty days.

20. DHEC sent a certified letter to Petitioner on May 31, 1996 requiring him to contact DHEC staff within ten days and advising him that his compliance with applicable regulations was required to avoid sanctions.

21. On December 9, 1996, after several exchanges of correspondence and telephone contact, Petitioner satisfied DHEC that he completed corrections of the May 3, 1996 violations.

22. On December 9, 1996, DHEC sent a letter to Petitioner advising him that his corrective actions had brought the Rock Hill facility into compliance with applicable regulations, provided Petitioner would be present at the tanning section of the facility during all times of operation of tanning equipment. In that letter, DHEC also advised Petitioner that DHEC staff would conduct periodic unannounced inspections to ensure that he was present at all times of operation of the tanning equipment, and an unannounced follow-up inspection to ensure the correction of all violations.

23. On January 21, 1997, DHEC staff performed a partial follow-up inspection of the Rock Hill facility to verify that corrective action had been completed. DHEC staff interviewed Coop's employee Bo Bowers, reviewed client cards and examined tanning equipment

24. As a result of the January 21, 1997 inspection, DHEC staff cited Petitioner with the following recurring violations of R. 61-106: failure to follow operating procedures, failure to report changes in operators, failure to have straps on eyewear when required, failure to have a trained operator present at all times, and failure to have operators formally trained.

25. DHEC staff left a copy of the inspection report at the facility.

26. Petitioner failed to respond to the citations within twenty days of the January 21, 1997 inspection.

27. DHEC sent a certified letter to Petitioner on February 26, 1997, requiring him to contact DHEC staff within ten days and advising him that his compliance with applicable regulations was required to avoid sanctions.

28. Petitioner responded in two letters received by DHEC on March 10, 1997 and April 3, 1997, submitting documentation satisfying DHEC that all necessary corrective action had been taken.

29. The January 21, 1997 violations were not corrected within sixty days.

30. On April 3, 1997, DHEC sent a letter to Petitioner advising him that his corrective actions had brought the Rock Hill facility into compliance with applicable regulations.

GREENVILLE FACILITY

31. On or about December 31, 1996, Petitioner submitted to DHEC an application for registration of tanning equipment at the Greenville location. Petitioner adopted DHEC's recommended operating procedures in its application.

32. On February 5, 1997, DHEC approved Petitioner's application for registration of equipment at the Greenville location as Registration #23-2846.

33. On February 21, 1997, DHEC Environmental Health Manager Chris Woodson ("Woodson") inspected the Greenville facility. Woodson interviewed Coop's employee Sue Moore, reviewed client records, examined tanning equipment and eyewear, and spoke with Petitioner during the exit interview.

34. As a result of the February 21, 1997 inspection, Woodson cited Petitioner with several violations of R. 61-106, including the following: failure to follow operating procedures, failure to report additional operators, failure to confirm the presence of and inspect customers' eyewear, failure to record each customer's skin type, failure to have means to prevent customers from resetting the timers, failure to have a trained operator present at all times, failure to comply with operator control requirements by allowing customers to exceed the spacing of visits, and by failing to document a base tan when customers were allowed to exceed exposure times, failure to document on-the-job training, and failure to have operators formally trained.

35. At the conclusion of the February 21, 1997 inspection, Woodson left the original inspection report at the facility.

36. The February 21, 1997 violations were not corrected within sixty days.

37. On June 30, 1997, after several exchanges of correspondence and telephone contact, Petitioner satisfied DHEC that he completed corrections of the February 21, 1997 violations.

38. On July 1, 1997, DHEC sent a letter to Petitioner advising him that his corrective actions had brought the Greenville facility into compliance with applicable regulations.

ROCK HILL UNDERCOVER INVESTIGATION

39. On June 5 and June 6, 1997, Woodson conducted an undercover investigation of the Rock Hill facility.

40. Woodson followed all of DHEC's established procedures for undercover operations, with the exception of determining the last names of the operators.

41. On June 5, 1997, Woodson spoke to a Coop's employee ("Lisa") and asked her about tanning sessions.

42. Lisa requested Woodson to complete a client card, which he did, requiring him to make the determination of his skin type. Woodson indicated on the card his recent outdoor tanning and that he did not tan easily.

43. Upon Woodson's completion of his client card, he returned it to Lisa, who initialed the card with the initials "M.C."

44. Lisa told Woodson that spacing of visits was every other day and the maximum allowable exposure time was 20 minutes.

45. Lisa gave Woodson a type of eyewear designed for straps, but had none.

46. Lisa told Woodson to set the timer himself for the amount of time he wanted to tan.

47. No kitchen timer was located outside of any of the tanning rooms.

48. The exposure time indicated for Woodson's June 5 session was 8 minutes.

49 Woodson's actual exposure time was 20 minutes.

50. As Woodson left, he asked Lisa if the earliest he could return was two days later. Lisa told him he could return the next day.

51. On June 6, 1997, Woodson spoke to a Coop's employee ("Amanda"), who indicated on Woodson's client card an exposure time of 20 minutes.

52. Prior to the June 6 session, Amanda gave Woodson a pair of eyewear designed for straps, but had none.

53. Woodson used his own eyewear.

54. Amanda told Woodson to set the timer himself.

55. There were no kitchen timers outside of the tanning rooms.

56. No formally trained operators for the Rock Hill location were present at the front desk when Woodson arrived for tanning sessions on June 5, 1997 or on June 6, 1997.

57. Following the June, 1997 investigation, DHEC cited Petitioner with the following violations of R. 61-106: failure to follow operating procedures, failure to instruct customers in the proper use of protective eyewear, failure to provide protective eyewear with straps, when required, failure to keep accurate records of exposure time, failure to have a trained operator present at all times, failure to comply with operator control requirements regarding exposure time and spacing of visits, and failure to have operators formally trained.

58. On June 24, 1997, DHEC sent to Petitioner, via certified mail, a Notice of Enforcement Conference.

59. Petitioner attended DHEC's Enforcement Conference on July 10, 1997.

60. On September 22, 1997, DHEC issued its Administrative Order citing numerous violations of S.C. Code Ann. Regs. 61-106 (Supp. 1997) on the part of Petitioner and assessing a $5,000 fine against Petitioner.

CONCLUSIONS OF LAW

Based on 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. 1997) and S.C. Code Ann. § 1-23-310 et seq. (1986 & Supp. 1997).

2. The burden of proof is on the party asserting the affirmative in an adjudicatory administrative proceeding. 2 Am.Jur.2d Administrative Law § 360 (1994). The government is the proponent of an order seeking sanctions against a private party. Id.

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 Board of Medical Examiners, Op. No. 24754 (S.C.Sup.Ct. filed January 26, 1998) (Davis Adv.Sh. No. 5 at 11).

4. 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).

5. South Carolina Code Ann. § 13-7-40(F) (Supp. 1997) authorizes DHEC 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.

6. 25A S.C. Code Ann. Regs. 61-106 (Supp. 1997) provides for the registration and regulation of tanning facilities and equipment. 25A S.C. Code Ann. Regs. 61-106.2.2.4(8) (Supp. 1997) requires registrants to provide to DHEC the procedures it will follow for the safe use of equipment, which must include instructions to the consumer, use of protective eyewear, suitability of prospective consumers for tanning equipment use, determination of duration of tanning exposures, spacing of sequential exposures and maximum exposure time(s) in minutes, periodic testing of tanning equipment and timers, handling of complaints of injury from consumers, records to be maintained on each consumer, and sanitizing tanning equipment and prospective eyewear.

7. DHEC's operating procedure guidelines include, but are not limited to, the following requirements: (1) maintenance of a client card containing information on skin type, medications, skin sensitivity, personal medical information, dates of visits, number of visits, duration of tanning times and the operator's initials; (2) determination of suitability of consumer use by review of all relevant information; (3) limitation of exposure time according to skin type; (4) administration of exposure only by a qualified operator; (5) spacing of visits; and (6) establishment of a means to ensure that consumers are not allowed to reset the timer for a period greater than the manufacturer's recommended exposure time. Petitioner violated 25A S.C. Code Ann Regs. 61-106.2.2.4(8) (Supp. 1997) on four occasions at the Rock Hill facility and one occasion at the Greenville facility by failing to follow these procedures.

8. Petitioner adopted DHEC's guidelines for tanning facility operating procedures in its Rock Hill and Greenville applications for registration, and those specific procedures were binding on Petitioner.

9. 25A S.C. Code Ann Regs. 61-106.2.7.1 (Supp. 1997) requires the registrant to notify DHEC before making any change which would render the information contained in the application for registration or the certificate of registration inaccurate. Petitioner violated this regulation on three occasions at the Rock Hill facility by failing to report an additional tanning bed and failing to report changes in operators, and on one occasion at the Greenville facility by failing to report additional operators.

10. Petitioner violated 25A S.C. Code Ann. Regs. 61-106.3.4.9 and - 4.3.3 (Supp. 1997) on two occasions at the Rock Hill facility by failing to test and document testing of timers and off switches.

11. Petitioner violated 25A S.C. Code Ann. Regs. 61-106.3.6.3 (Supp. 1997) on one occasion at the Rock Hill facility by failing to instruct a consumer in the proper use of protective eyewear.

12. Petitioner violated 25A S.C. Code Ann. Regs. 61-106.3.6.4 (Supp. 1997) on one occasion at the Greenville facility by failing to confirm the presence of, and inspect, customers' eyewear.

13. Petitioner violated 25A S.C. Code Ann. Regs. 61-106.3.6.5 (Supp. 1997) on four occasions at the Rock Hill facility by failing to provide protective eyewear with straps, when required.

14. Petitioner violated 25A S.C. Code Ann. Regs. 61-106.4.2.1 (Supp. 1997) on one occasion at the Rock Hill facility by failing to have consumer warning statements signed.

15. Petitioner violated 25A S.C. Code Ann. Regs. 61-106.4.2.4 (Supp. 1997) on one occasion at the Rock Hill facility by failing to have a list of photosensitizing agents.

16. Petitioner violated 25A S.C. Code Ann. Regs. 61-106.4.3.2 (Supp. 1997) on one occasion at the Rock Hill facility by failing to keep accurate records of exposure times, and on one occasion at the Greenville facility by failing to record each customer's skin type.

17. Petitioner violated 25A S.C. Code Ann. Regs. 61-106.5.3.1 (Supp. 1997) on three occasions at the Rock Hill facility and on two occasions at the Greenville facility by allowing customers to exceed allowable spacing of visits and exposure times, by failing to document a base tan when customers were allowed to exceed recommended exposure times, and failing to have means to prevent customers from resetting the timers.

18. Petitioner violated 25A S.C. Code Ann. Regs. 61-106.5.4 (Supp. 1997) on two occasions at the Rock Hill facility and on one occasion at the Greenville facility by failing to document on-the-job training.

19. Petitioner violated 25A S.C. Code Ann. Regs. 61-106.4.7 (Supp. 1997) on one occasion at the Rock Hill facility by failing to have a user's manual available for customers.

20. Petitioner violated 25A S.C. Code Ann. Regs. 61-106.5.2 and - 5.5 (Supp. 1997) on three occasions at the Rock Hill facility and one occasion at the Greenville facility by failing to ensure that tanning equipment was only operated by an adequately trained operator present at the tanning facility.

21. Petitioner violated 25A S.C. Code Ann. Regs. 61-106.5.6 (Supp. 1997) on three occasions at the Rock Hill facility and on one occasion at the Greenville facility by failing to maintain a record of operator training for inspection by DHEC staff.

22. Petitioner violated 25A S.C. Code Ann. Regs. 61-106.1.7.1 (Supp. 1997) on three occasions at the Rock Hill facility by failing to advise DHEC, within twenty days of its citations, of action taken or planned to correct violations.

23. Petitioner violated 25A S.C. Code Ann. Regs. 61-106.1.7.2 (Supp. 1997) on three occasions at the Rock Hill facility and on one occasion at the Greenville facility by failing to correct violations within sixty days from DHEC's citations.

24. 25A S.C. Code Ann. Regs. 61-106.1.8.1 (Supp. 1997) provides:

Upon determination ... that ... these regulations have been violated ..., 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:

... Cites each section of the Act or regulations violated.

... Specifies the manner in which the registrant failed to comply.

... 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.

25. 25A S.C. Code Ann. Regs. 61-106.1.8.3 (Supp. 1997) provides:

In cases where voluntary action by the registrant is not forthcoming, the Department will take one or a combination of the following steps:

1.8.3.1 Impound or order the impounding of sources of ultraviolet radiation ... ;

1.8.3.2 Impose an appropriate civil penalty;

1.8.3.3 Revoke registration;

1.8.3.4 Request the Department attorney or the attorney general to seek court action to enjoin violations and seek conviction for a simple misdemeanor; or

1.8.3.5 Take enforcement action that the Department feels appropriate and necessary and is authorized by law.

26. DHEC 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. 1997); 25A S.C. Code Ann. Regs. 61-106.1.7.3 (Supp. 1997).

27. Assessment of civil penalties must be based on the following criteria: (1) the seriousness of the violation; (2) previous compliance history; (3) the amount necessary to deter future violations; (4) efforts to correct the violations and (5) any other mitigating or enhancing factors. 25A S.C. Code Ann. Regs. 61-106.1.13.2 (Supp. 1997).

28. 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. 1997).

29. 25A S.C. Code Ann Regs. 61-106.1.13.5 (Supp. 1997) provides that DHEC shall issue a civil penalty ranging from $5,000 to $25,000, per violation, for the following conditions characterized as "Severity I": repeated failures by a registrant to correct cited violations within 60 days; repeated failure to correct violations involving matters pertaining to failure to follow or establish procedures, rules and regulations that have major safety significance; repeated failure to maintain required records; failure to provide consumers with adequate protective eyewear; failure to meet consumer warning requirements; failure to ensure that the tanning equipment is only operated by adequately trained personnel; and repeated failure to ensure compliance with operator control requirements.

30. 25A S.C. Code Ann. Regs. 61-106.1.13.5 (Supp. 1997) provides that DHEC shall issue a civil penalty ranging from $1,000 to $5,000, per violation for failure to instruct consumers in proper use of protective eyewear and for violations found on follow-up inspection that were also present on previous inspection, when it is obvious that corrections were not made after initial notification. These violations are characterized as "Severity II." 25A S.C. Code Ann. Regs. 61-106.1.13.5 (Supp. 1997).

31. 25A S.C. Code Ann. Regs. 61-106.2.9.1 (Supp. 1997) provides that DHEC may suspend or revoke a certificate of registration for any false material statement in any statement of fact required by the regulations, for operation of a facility in a manner that threatens to cause hazard to public health and safety, and for failure to correct violations within 60 days of the date of the citation.

32. Petitioner made a false material statement of fact in a client card by allowing an untrained employee to initial the client card as a trained operator.

33. "The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" South Carolina Nat. Bank v. Central Carolina Livestock Market, Inc., 289 S.C. 309, 345 S.E.2d 485 (1986), quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). "Due process does not mandate any particular form of procedure." Id., citing South Carolina Ports Authority v. Kaiser, 254 S.C. 600, 176 S.E.2d 532 (1970). "Instead, due process is a flexible concept, and the requirements of due process in a particular case are dependent upon the importance of the interest involved and the circumstances under which the deprivation may occur." Id., citing Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985).

34. DHEC's enforcement actions afforded Petitioner due process under the law.

35. DHEC's enforcement actions were valid under R. 61-106 (Supp. 1997).

36. Petitioner had constructive notice of R. 61-106 (Supp. 1997).

37. In light of the seriousness and frequency of Petitioner's violations, the $5,000 penalty sought by DHEC is appropriate under R. 61-106 (Supp. 1997).

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

ORDER

IT IS THEREFORE ORDERED that Petitioner's Motion to Dismiss is denied.

IT IS FURTHER ORDERED that Petitioner pay a civil penalty to DHEC in the amount of Five Thousand Dollars ($5,000) for violations of 25A S.C. Code Ann. Regs. 61-106 (Supp. 1997).

IT IS FURTHER ORDERED that Petitioner take all necessary action to correct his violations within ten (10) days of the date of this Order.

AND IT IS SO ORDERED.

______________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

May 7, 1998

Columbia, South Carolina