ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 50-9-1150 (Supp. 2002) and S.C.
Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 2002). Respondent Franklin E. Oates, Jr. appeals
the suspension of his hunting and fishing license by Petitioner South Carolina Department of Natural
Resources (“DNR”).
STIPULATIONS
During the hearing of this matter, Respondent stipulated that the indictment on which he pled
guilty on June 12, 2003 stated that Respondent had been deer hunting at night.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing
of this matter, and taking into account the credibility and accuracy of the evidence, I make the
following findings of fact by a preponderance of the evidence:
1.Respondent holds a hunting and fishing license issued to him by DNR.
2.Respondent was indicted for the offense of deer hunting at night in violation of S.C.
Code Ann. § 50-11-710. On June 12, 2003, Respondent pled guilty to night hunting “as indicted”
in violation of § 50-11-710. Pursuant to a negotiated sentence, Respondent was sentenced to one
year with the Department of Corrections and a fine of $1,000, provided that upon payment of $400
the balance would be suspended with probation for one year, with an additional provision that
Respondent would have no probation if the fine was paid in full by a certain day and time.
Respondent was represented by an attorney who was in court with him during his plea and
sentencing.
3.On August 25, 2003, DNR notified Respondent in writing, via an “Official Order of
Suspension,” that his hunting and fishing privileges have been suspended for a period of one year
based upon his accumulation of eighteen or more points under the Hunting and Fishing Violations
Point System established by S.C. Code Ann. § 50-9-1120. DNR stated that its records indicated that
Respondent accumulated his eighteen points by violating S.C. Code Ann. § 50-11-710 on December
10, 2002, and it referenced Respondent’s June 12, 2003 trial date for that violation.
4.Had Respondent known at his June 12, 2003 trial date in criminal court that, based
upon a conviction or guilty plea to the charge of night hunting deer, he would accumulate eighteen
points on his hunting and fishing license and DNR would suspend his license for one year,
Respondent would not have pled guilty to the charge, but rather would have requested a jury trial.
5.Respondent was aware of the pamphlets published by DNR containing Rules and
Regulations for Hunting, Fishing & Wildlife; however, Respondent chose not to read any of those
pamphlets.
CONCLUSIONS OF LAW
Based upon the above-listed findings of fact, I conclude the following as a matter of law:
1.To lawfully hunt wildlife in the State of South Carolina, a person must obtain a license
from DNR. S.C. Code Ann. § 50-9-10 (Supp. 2002).
2.Pursuant to S.C. Code Ann. § 50-9-1120 (Supp. 2002), there is a point system for
violations of certain provisions of law. Each time a person is convicted of a violation listed in S.C.
Code Ann. § 50-9-1120, the corresponding number of points must charged against that person’s
license. S.C. Code Ann. § 50-9-1130 (Supp. 2002).
3.If a person accumulates eighteen or more points against his license, DNR must
suspend the license for a period of one year. S.C. Code Ann. § 50-9-1140 (Supp. 2002). Upon
determination that a license has accumulated enough points to warrant a suspension, DNR must
notify the license holder in writing that his privileges are suspended. S.C. Code Ann. § 50-9-1150(A)
(Supp. 2002).
4.A conviction of a violation for purposes of assessing points against a person’s hunting
and fishing license includes the entry of a guilty plea to the violation. S.C. Code Ann. § 50-9-1110
(Supp. 2002).
5.S.C. Code Ann. § 50-11-710 makes it unlawful to night hunt in the State of South
Carolina, with the exception of night hunting of raccoons, opossums, foxes, mink, and skunk. S.C.
Code Ann. § 50-11-710 (Supp. 2002). Thus, night hunting for deer is unlawful pursuant to S.C.
Code Ann. § 50-11-710. “Night” means that period of time between one hour after official sundown
of a day and one hour before official sunrise of the following day. Id.
6.As for the criminal sanctions for a violation of S.C. Code Ann.§ 50-11-710, that
section provides that, upon a first violation, a person must be fined not more than one thousand
dollars or imprisoned for not more than one year, or both. S.C. Code Ann. § 50-11-710 (Supp.
2002). Where the violation of S.C. Code Ann. § 50-11-710 involved the night hunting of deer or
bear, S.C. Code Ann. § 50-11-720 allows an increased criminal sanction. That section provides that,
notwithstanding the provisions of S.C. Code Ann. § 50-11-710, any person convicted of the crime
of night hunting for deer or bear must, for a first offense, be fined not more than two thousand five
hundred dollars or imprisoned as provided in S.C. Code Ann. § 50-11-710. S.C. Code Ann. § 50-11-720 (Supp. 2002). In this case, Respondent pled guilty to night hunting deer in violation of S.C.
Code Ann. § 50-11-710, and the sentence he received falls within the penalty ranges for a first offense
contained in both S.C. Code Ann. § 50-11-710 and S.C. Code Ann. § 50-11-720.
7.The points and penalties assessed pursuant to S.C. Code Ann. § 50-9-1120 are in
addition to and not in lieu of any other civil remedies or criminal penalties which may be assessed.
S.C. Code Ann. § 50-9-1210 (Supp. 2002). A hunting violation for night hunting deer or bear results
in the assessment of eighteen points against a person’s license. S.C. Code Ann. § 50-9-1120(2)(b)
(Supp. 2002). A hunting violation for night hunting of other game except deer or bear results in the
assessment of eight points against a person’s license. S.C. Code Ann. § 50-9-1120(2)(g) (Supp.
2002).
8.The legislature may impose both a criminal and a civil sanction with respect to the
same act or omission. See U.S. v. Ursery, 518 U.S. 267 (1996). “To determine whether a penalty
is criminal or civil, a court must look to the face of the statute and then determine if the statutory
scheme is so punitive in purpose or effect as to transform what was intended as a civil sanction into
a criminal penalty.” State v. Cuccia, 353 S.C. 430, 435, 578 S.E.2d 45, 48 (2003). “Whether a
particular punishment is criminal or civil is, at least initially, a matter of statutory construction.” Id.
The points provisions of S.C. Code Ann. § 50-9-1120 are civil in nature. They apply only against a
person’s hunting and fishing license, which is a privilege, not a right, in this state. This is made even
more clear by the statutory language of S.C. Code Ann. § 50-9-1210, which provides that the points
set forth in S.C. Code Ann. § 50-9-1120 are in addition to any other civil remedies or any criminal
penalties which may be assessed. S.C. Code Ann. § 50-9-1210 (Supp. 2002). Thus, once
Respondent pled guilty to the indicted offense of night hunting deer DNR was required to assess the
civil penalty of eighteen points against his hunting and fishing license pursuant to S.C. Code Ann. §
50-9-1120 and to suspend his license for one year pursuant to S.C. Code Ann. § 50-9-1140.
9.Although Respondent argues that he was not sufficiently informed of all sanctions that
could be imposed against him when he pled guilty to the offense of night hunting deer, including the
civil penalties of S.C. Code Ann. § 50-9-1120, that argument goes to the validity of his guilty plea
in criminal court, which is not before this tribunal.
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that, pursuant to S.C. Code Ann. § 50-9-1120, eighteen points
are to be assessed against Respondent’s hunting and fishing license for his conviction of night hunting
in violation of S.C. Code Ann. § 50-11-710, and his hunting and fishing license is to be suspended
for one year pursuant to S.C. Code Ann. § 50-9-1140.
AND IT IS SO ORDERED.
________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
October 24, 2003
Columbia, South Carolina |