SC Administrative Law Court Decisions

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) entitled "Tanning Facilities" (R. 61-106), and assessing civil penalties against the Respondents. The Department's decision was timely appealed by Respondents. After notice to the parties, a hearing was conducted on December 4, 1997, March 4, 1998, and December 15, 1998 at the Administrative Law Judge Division (ALJD or Division).

Respondents raise 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.

The Department, through its Administrative Order, is alleging that the Respondents 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 Respondents committed the alleged violations.

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 evidence:

1. Respondents own and operate tanning facilities in Greenville (Registration numbers 23-0326, 23-1790, 23-1999) and Spartanburg (Registration number 42-2857).

2. Respondents registered all four facilities by submitting application forms, operating protocols, and evidence of operator training, among other required actions. Respondents received copies of R. 61-106 and the Department's "Recommended Tanning Facility Operating Procedures," and adopted the "Recommended Tanning Facility Operating Procedures" as their own. These procedures thereby became part of the Respondents' permit to operate and were never amended by the Respondents. These procedures required Respondents, inter alia, to abide by the manufacturer's exposure schedules without variation for each tanning bed used by the registrant in their facilities.

3. The following events reflect a pattern of non-compliance with the regulations, particularly those regulations dealing with protective eyewear, operator training and exposure schedules. Furthermore, the Petitioner based its civil penalty determination upon the fact that the Respondents have previously violated R. 61-106, excluding those violations listed below. However, no evidence was offered in that regard.

4. During an inspection on October 17, 1996 at registration number 23-1790, the Respondents violated R.61-106.3.7.1 by failing to use a sanitizer approved for use on protective eyewear.

5. On June 5, 1996, registration number 23-0326 violated R.61-106.5.2 and 5.5 by failing to have a formally trained operator present at this location. Additionally, on June 6, 1996, registration number 23-1999 also violated Sections 5.2 and 5.5 by failing to have a formally trained operator present on the premises.

6. On January 27, 1997, the Department sent the Respondents a certified letter for registration number 42-2857 requesting the names of the tanning equipment operators at this location. The letter also set forth that failure to have trained operators present is a violation of R.61-106.5.2 and 5.5, and that failure to comply with the regulations may result in substantial civil penalties.

7. On April 7, 1997, through May 4, 1997, the Department conducted an investigation in which Shannon Carithers, a Department representative, posed as a customer at registration number 23-1999. Investigation results indicated violations of R.61-106.5.5 for failure to have a formally trained operator present at the location.

8. On June 5, 1996, registration number 23-0326 violated R.61-106.5.3.11 by allowing customers to exceed the manufacturer's recommended exposure times and recommended spacing of visits. Respondents' written response stated that they had taken appropriate steps to stay in compliance and that employees had been instructed to make good professional judgments and to adhere to the regulations. Furthermore, Respondents' stated that they had reviewed and would follow the recommended exposure schedule and that a maximum of two visits per week would be allowed for tan maintenance.

9. On June 6, 1996, registration number 23-1999 violated R.61-106.5.3.1 by allowing customers to exceed the manufacturer's recommended exposure times and recommended spacing of visits. Respondents again responded that they had taken appropriate steps to stay in compliance and that employees had been instructed to make good professional judgments and to adhere to the regulations. Furthermore, Respondents stated they had reviewed and would follow the recommended exposure schedule and that a maximum of two visits per week would be allowed for tan maintenance.

10. On October 17, 1996, registration number 23-1790 violated R.61-106.5.3.1by allowing customers to exceed the manufacturer's recommended exposure times and recommended spacing of visits. Respondents' response received December 23, 1996, stated that if a customer is allowed to exceed the initial exposure time, it will be properly documented that they have a base tan or have been tanning elsewhere.

11. A customer, John Hutsler, who tanned at facility #23-1790 on March 18, 1997, suffered burns in the process. That customer was allowed to tan for 10 minutes on his first two visits although the exposure schedule limited exposure to 3 minutes.

12. From April 7, 1997, through May 4, 1997, Shannon Carithers, a Department employee, conducted an undercover investigation of registration number 23-1999. The Respondents informed Mr. Carithers that he could tan daily. Mr. Carithers was directed to a Sun Industries R32B bed. For an untanned individual, the schedule for that bed provides for 3 visits with 3 minutes tanning per visit during the first week. The schedule provides for 3 visits with 7 minutes tanning per visit during the second week for an untanned individual.

Mr. Carithers was untanned with skin type III. However, the Respondents permitted Mr. Carithers to tan as follows:

a. 10 minutes on April 7, 1997;

b. 15 minutes on April 8, 1997:

c. 18 minutes on May 1, 1997;

d. 20 minutes on May 2, 1997;

e. 20 minutes on May 3, 1997; and

f. 20 minutes on May 4, 1997.

By permitting the above tanning, Respondents 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.⁽¹⁾ Therefore, Respondents failed to follow their own approved tanning procedures.

13. On May 16, 1997, Dawn Morrow tanned at facility #42-2857 and suffered burns. Ms. Morrow customer testified that she was allowed to tan for 20 minutes on her second visit despite not having a base tan. This time period is substantially in excess of the Respondents' exposure schedule. 14. David Sowers testified that the bulb life in tanning beds degenerates over a period of time. In fact, a tanning bed bulb with a life of 1,000 hours will produce 50 percent less ultraviolet than a new bulb after approximately 450 hours of use. However, no one in the industry has created an exposure schedule that reflects the degeneration of the ultraviolet radiation output over the useful life of a tanning bed bulb. Furthermore, neither employees, customers nor the Department would have any knowledge as to a bulb's previous use or degeneration.

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

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). Regulation 61-106 was promulgated pursuant to §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, Respondents' 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. Regulation 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.

4. Respondents contend that the procedures set forth in R. 61-106.1.8.2 are a condition precedent to the issuance of an administrative order, and that unless DHEC complied with R. 61-106. 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 R. 61-106.1.8.

Section 1.8.1 of R. 61-106 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).

Respondents argue that a certified letter is a condition precedent to the issuance of an administrative order, and that unless DHEC complied with Section 1.8.2, any subsequent administrative order is ultra vires. Therefore, they contend that since the Department failed to send them a certified letter as described in 1.8.2, this action is ultra vires.

In light of the plain language contained in the regulation, I find Respondents' 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, pursuant to Section 1.8.1.1, the Department notifies a registrant 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 (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 infractions set forth above support the issuance of an administrative order.

5. Respondents next contend 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. Regulation 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 they may simply adopt the Department's recommended operating procedures provided to each registrant during the registration process.

In this case, Respondents adopted the Department's operating procedures for their Greenville and Spartanburg facilities which required Respondents to abide by the manufacturer's exposure schedules for each tanning bed. Furthermore, Respondents 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 Respondents repeatedly violated the procedures addressing recommended duration of tanning exposures, spacing of sequential exposures, and maximum exposure time(s) in minutes. Moreover, the evidence demonstrates that those violations occurred over a period of years.

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.

Respondents challenge the Department's imposition of a $10,000 civil penalty in this case. Respondents contend 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.

S.C. Regs. Ann. 61-106.1.13.2.1-5 sets forth that the assessment of the penalty is based upon:

a. The seriousness of the violation (s);

b. The previous compliance history;

c. The amount necessary to deter future violations; and

d. Any other mitigating or enhancing factors.

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). Respondents' violations were Severity I violations, and, as such, prompted the Department to compel them to rectify their activities. The Department's actions in this case centered around the violation of the exposure schedule. The Respondents contend that exposure schedules are given by the manufacturers to the operators as a guideline to start the tanning process. Nevertheless, Respondents agreed to follow the manufacturer's exposure schedule. Furthermore, the Respondents presented no evidence that the exposure times were determined in accordance with any exposure schedule that specifically set exposure time parameters when the bulbs were strongest and less so as the tanning effects of the ultraviolet radiation diminished. In fact, Respondents own witness testified that no such exposure schedule exist.

On the other hand, the Department relied upon the Respondents' history of repeatedly failing to follow the regulations dealing with protective eyewear, operator training and the exposure schedules in determining the civil penalty it imposed. However, no evidence was offered to support that compliance history. Therefore, I find that $7,000 is the appropriate civil penalty in this case. A $7,000 penalty, while not the maximum allowable, will deter future violations and is not excessive considering the evidence of and the potential for customer burns from exposure to excessive amounts of ultraviolet radiation.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:

ORDERED, that James P. Mastronardi/ Joe H. Norwood d/b/a Ultra Tan, Inc. shall:

1 . Pay a Civil Penalty of $7,000; and

2. Comply with all sections of Regulation 61-106 entitled "Tanning Facilities."

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

May 28, 1999

Columbia, South Carolina

1. While Respondents allowed Mr. Carithers the opportunity to exceed these limits, Mr. Carithers chose not to lie in the tanning bed in order to avoid exposure to the radiation.