Opinion
22-ALJ-13-0142-CC
07-22-2022
South Carolina Department of Natural Resources, Petitioner, v. Al Teron Greene, Respondent.
Anthony N. D'Elia, Esquire For Petitioner Al Teron Greene Pro se
Anthony N. D'Elia, Esquire For Petitioner
Al Teron Greene Pro se
FINAL ORDER
MILTON G. KIMPSON, JUDGE
STATEMENT OF THE CASE
This matter is before the Administrative Law Court (ALC or Court) pursuant to a request for a contested case hearing that was filed by Al Teron Greene (Respondent) on April 22, 2022. The South Carolina Department of Natural Resources (Department or Petitioner) suspended Respondent's saltwater fishing privileges following a conviction for violation of S.C. Code Ann. § 50-5-985. The statute requires a mandatory suspension of saltwater fishing privileges for twelve (12) months as a result of a conviction under this statute. Upon the assignment of this case, a Notice of Hearing was issued, scheduling this matter for a de novo hearing at 10:00 a.m. on Thursday, June 16, 2022. Both parties appeared at the hearing, where evidence was introduced and testimony was presented. After carefully weighing the evidence and reviewing the law, this Court finds that the Department's suspension of Respondent's saltwater fishing privileges for one year was proper.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, and taking into consideration the burden of persuasion by the parties, the Court makes the following Findings of Fact by a preponderance of the evidence:
Mr. Greene was summoned to appear in Magistrate's Court in Pawleys Island, South Carolina on February 2, 2022. The South Carolina Department of Natural Resources Arrest Report and Trial Summons (Summons) indicated that Respondent was shellfishing in a closed area in Murrells Inlet, South Carolina on December 31, 2021. Mr. Greene pled guilty before the magistrate judge and was convicted of violating S.C. Code Ann. § 50-5-985. The conviction resulted in a fine of One Hundred and Ten Dollars ($110.00).
The Summons shows that Respondent's license was assessed an 8-point penalty for the violation. However, the Department's witness, Greg Miley, testified that no points have been assessed against Respondent's license because points are not applied for a commercial violation.
As a result of the guilty plea and conviction, the Department mailed an Official Notice of Suspension (Notice) to Respondent on April 1, 2022. The Notice stated that, "Our records reflect that you were convicted of a violation of 50-5-985, SC 1976 Code of Laws." For this violation, the Notice indicated that Respondent's one year suspension for his conviction would commence on March 3, 2022.
During the ALC hearing, Respondent testified that there were other people fishing in the area at the time of the offense, and he did not know the area was closed. Respondent thought the season was still open and he did not see any signs or other indication that the area was closed. He was among more than 30 other people who appeared before the Magistrate for fishing in the area. Respondent further contends that he should have been penalized against his recreation permit, because he was admittedly over his limit shell fishing, instead of his commercial fishing license. However, the Department's witness, Mr. Miley, clarified that there is not recreational fishing in saltwater such that Respondent's activities, which took place in saltwater, were a commercial violation.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, the court concludes the following as a matter of law.
1. Jurisdiction and Review
Jurisdiction over this case is vested with the South Carolina Administrative Law Court pursuant to § l-23-600(A). The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass'n v. S. Bell Tel. &Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992). Furthermore, a trial judge who observes a witness is in the best position to judge the witness's demeanor and veracity and to evaluate the credibility of his testimony. See e.g. Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996): Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).
In presiding over this contested case, the Court serves as the trier of fact and makes a de novo determination regarding the matter at issue. See § l-23-600(A); Brown v. S.C. Dep't of Health & Envtl. Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002); Marlboro Park Hosp. v. S.C. Dep't of Health & Envtl. Control, 358 S.C. 573, 577-79, 595 S.E.2d 851, 853-54 (Ct. App. 2004). The Department has the burden to justify suspension. ALC Rule 29(B) (stating that the agency has the burden of proof in enforcement actions).
Moreover, it is elementary that "[t]he cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature." Alltel Commc'n Inc. v. S.C. Dep't of Revenue, 399 S.C. 313, 320, 731 S.E.2d 869, 873 (2012) (quotation omitted). To that end, "[w]hat a legislature says in the text of a statute is considered the best evidence of the legislative intent or will. Therefore, the courts are bound to give effect to the expressed intent of the legislature." Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) (quoting Norman J. Singer, Sutherland Statutory Construction § 46.03 at 94 (5th ed. 1992)). "Where the statute's language is plain, unambiguous, and conveys a clear, definite meaning, the rules of statutory interpretation are not needed and the court has no right to impose another meaning." State v. Jacobs, 393 S.C. 584, 587, 713 S.E.2d 621, 622 (2011) (quoting Hodges, 341 S.C. at 85, 533 S.E.2d at 581).
2. Shellfishing in a closed area
Section 50-5-985(B) provides that it is unlawful to take or attempt to take shellfish from any grounds closed by the department or any other authorized government agency. In this case, Mr. Greene pled guilty before a Magistrate judge in Pawley's Island, South Carolina on February 2, 2022. Based on this conviction, the validity of which is not before the Court, the issue to be addressed is whether Mr. Greene's commercial saltwater fishing privileges should be suspended for a period of one year. The administrative penalty for the unlawful shellfishing in a closed area is as follows:
(B) It is unlawful to take or attempt to take shellfish from any grounds closed by the department or any other authorized government agency. A person who violates the provision of this subsection for a commercial purpose is guilty of a misdemeanor and, upon conviction, must be fined not less than two hundred dollars nor more than one thousand dollars or imprisoned for not more than thirty days and must have his saltwater privileges suspended for twelve months. A person who violates the provisions of this subsection for a noncommercial purpose is guilty of a misdemeanor and, upon conviction, must be fined not less than two
hundred dollars nor more than one thousand dollars or imprisoned for not more than thirty days. (Italics added).
The code makes is plain that a person convicted of this offense is required to have his or her saltwater privileges suspended for one year. By the terms of the statute, neither the Department nor this Court has any discretion regarding the administrative sanction for a violation of § 50-5-985 once a licensee has been convicted of the same. While the Court finds Mr. Greene to be remorseful, the statute is clear that the one-year suspension must be imposed for the violation. Jacobs, 393 S.C. at 587, 713 S.E.2d at 622. Moreover, this Court is not permitted to entertain a collateral attack on the underlying criminal conviction. See S.C. Wildlife &Marine Res. Dep't v. Kunkle, 287 S.C. 177, 336 S.E.2d 468 (1985) ("It is firmly established that a criminal conviction may not be the subject of a collateral attack in an administrative proceeding.")
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above, IT IS HEREBY ORDERED that the Department's decision to suspend Mr. Greene's saltwater privileges in the state of South Carolina for one year pursuant to S.C. Code Ann. § 505-985 is upheld. The suspension shall run from the date of suspension, March 3, 2022 to March 3, 2023.
AND IT IS SO ORDERED.