South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
DNR vs. Franklin E. Oates, Jr

AGENCY:
South Carolina Department of Natural Resources

PARTIES:
Petitioner:
South Carolina Department of Natural Resources

Respondent:
Franklin E. Oates, Jr
 
DOCKET NUMBER:
03-ALJ-13-0383-CC

APPEARANCES:
For Petitioner: Paul League, Esquire

For Respondent: Ernest A. Finney, III, Esquire
 

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


Brown Bldg.

 

 

 

 

 

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