ORDERS:
ORDER ON PETITIONER'S MOTION FOR RECONSIDERATION
This matter is before the Administrative Law Judge Division (Division) pursuant to
Petitioner's Motion for Reconsideration of the Division's Order dated March 16, 1999. After a
hearing on February 19, 1999, I found that the Respondent failed to show a violation of S.C. Code
Ann.§ 61-4-230 or 23 S.C. Code Reg. § 7-51. Administrative Law Judge Division Rule 29 (D) sets
forth that "[a]ny party may move for reconsideration of a final decision of an administrative law
judge in a contested case, subject to the grounds for relief set forth in Rule 60(B)(1 through 5),
SCRCP.. . ."
Relying on S.C. Code Ann. § 61-6-4090, the Department argues that the evidence that
Demetrius Evans, a servant of the Petitioner, was found guilty of hindering an investigation pursuant
to S.C. Code Ann. § 61-4-230 constitutes conclusive evidence that the offense occurred. I agree that
the introduction of that conviction establishes that Evans hindered an investigation. However, I am
unconvinced that his conviction conclusively establishes that the permittee committed a violation.
It is axiomatic that the General Assembly intended some purpose in enacting Section 61-6-4090. See
Fulghum v. Bleakley, 177 S.C. 286, 181 S.E.2d 30, 32 (1935). Nevertheless, the interpretation
propounded by the Department is not the clear intention of the General Assembly.
I find that the purpose behind §61-6-4090 is to insure that a potentially hostile witness
committed the act for which he was convicted. That interpretation is further supported by the
potential due process issues that result from the Department's interpretation. The licensee may not
have any control of or input into an individual's decision to plead guilty. Furthermore, in this case,
Evans was fired by the Respondent soon after the incident and therefore may be hostile to both the
Respondent as well as the Department. However, the Department's interpretation of this statute
would require that Evans guilty plea be used conclusively against the Respondent though the
Respondent may not have had any input whatsoever into Evans' guilty plea decision. The guarantee
of due process as set forth in the Fourteenth Amendment of the Unites States Constitution provides
that no state shall "deprive any person of life, liberty, or property" without due process of law." U.S.
Const. Amend. XIV. Due process encompasses "[a]ll rights which are of such fundamental
importance as to require compliance with due process standards of fairness and justice" and includes
"[p]rocedural...rights of citizens against government actions that threaten the denial of life, liberty,
or property." Black's Law Dictionary 501 (6th ed. 1990). See Anonymous (M-156-90) v. State
Board of Medical Examiners 323 S.C. 260, 473 S.E.2d 870 (S.C. App. 1996) (rev'd on other
grounds).
Moreover, in order to meet constitutional due process standards, a statute must give sufficient
notice to enable a reasonable person to comprehend what is prohibited. State v. Crenshaw, 274 S.C.
475, 266 S.E.2d 61, cert. denied, 449 U.S. 883, 101 S. Ct. 236, 66 L. Ed. 2d 108 (1980); Toussaint
v. State Board of Medical Examiners, 303 S.C. 316, 400 S.E.2d 488 (1991) (the constitutional
standard for vagueness is the practical criterion of fair notice to those to whom the law applies).
Furthermore, penal statutes must be strictly construed against the state in favor of the citizen.
Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943). In that regard, Section 61-6-4090 does not specifically set forth that if an employee's servant is convicted of 61-4-230 that a
violation by the employee is automatically presumed.
The Final Order and Decision issued by this Court in the above matter was supported by the
preponderance of the credible evidence and by the statutory and case law of South Carolina.
Furthermore, the Respondent has not established sufficient grounds pursuant to SCRCP 60(B) to
warrant reconsideration of this case.
IT IS THEREFORE ORDERED that the Petitioner's Motion for Reconsideration is denied.
AND IT IS SO ORDERED.
_________________________
Ralph King Anderson, III
Administrative Law Judge
May 6, 1999
Columbia, South Carolina |
